Execution Copy
--------------
Exhibit 99.10
================================================================================
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
among
GS MORTGAGE SECURITIES CORP.,
as Assignor
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE
as Assignee
and
GREENPOINT MORTGAGE FUNDING, INC.
as Servicer
and as acknowledged by
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
as Master Servicer
Dated as of
February 24, 2006
================================================================================
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT made this
24th day of February 2006 (this "Assi3gnment Agreement"), among GreenPoint
Mortgage Funding, Inc., a New York corporation (the "Servicer"), U.S. Bank
National Association, not in its individual capacity, but solely as trustee on
behalf of GSAA Home Equity Trust 2006-3 (the "Assignee" or "Trustee"), and GS
Mortgage Securities Corp., a Delaware corporation (the "Assignor" or
"Depositor"), and as acknowledged by JPMorgan Chase Bank, National Association,
as master servicer (the "Master Servicer").
WHEREAS, Xxxxxxx Xxxxx Mortgage Company ("GSMC") and the
Servicer have entered into (i) the Servicing Agreement, dated as of November 1,
2005 (the "Servicing Agreement"), and (ii) the Amended and Restated Master
Mortgage Loan Purchase Agreement, dated as of November 1, 2005 (the "Sale
Agreement"), pursuant to which the Servicer sold to GSMC certain mortgage loans
listed on the mortgage loan schedule attached as an exhibit to the Servicing
Agreement;
WHEREAS, GSMC has assigned and conveyed certain mortgage loans
(the "Mortgage Loans"), which Mortgage Loans are subject to the provisions of
the Servicing Agreement and the Sale Agreement, to the Assignor pursuant to an
Assignment, Assumption and Recognition Agreement, dated as of February 24, 2006
(the "GSMC Assignment Agreement");
WHEREAS, the Assignee has agreed on certain terms and
conditions to purchase from the Assignor the Mortgage Loans acquired by the
Assignor pursuant to the GSMC Assignment Agreement, which Mortgage Loans are
listed on the mortgage loan schedule attached as Exhibit 1 hereto (the "Mortgage
Loan Schedule"); and
WHEREAS, pursuant to a Master Servicing and Trust Agreement,
dated as of February 1, 2006 (the "Trust Agreement"), among the Depositor, the
Trustee, Deutsche Bank National Trust Company, as a custodian, U.S. Bank
National Association, as a custodian, and JPMorgan Chase Bank, National
Association, as master servicer (in such capacity, the "Master Servicer"),
securities administrator (in such capacity, the "Securities Administrator") and
as a custodian, the Assignor will transfer the Mortgage Loans to the Assignee,
together with the Assignor's rights under the Servicing Agreement and the Sale
Agreement, to the extent relating to the Mortgage Loans (other than the rights
of the Assignor to indemnification thereunder).
NOW THEREFORE, in consideration of the mutual promises
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Assignment and Assumption.
(a) The Assignor hereby assigns to the Assignee, as of the
date hereof, all of its right, title and interest in and to the Mortgage Loans
and the GSMC Assignment Agreement (including without limitation the rights of
GSMC under the Servicing Agreement and the Sale Agreement, to the extent
assigned to the Assignor under the GSMC Assignment Agreement) from and after the
date hereof, and the Assignee hereby assumes all of the Assignor's obligations
under the Servicing Agreement and the Sale Agreement, to the extent relating to
the Mortgage
Loans from and after February 24, 2006, and the Servicer hereby
acknowledges such assignment and assumption and hereby agrees to the release of
the Assignor from any obligations under the Servicing Agreement and the Sale
Agreement from and after February 24, 2006, to the extent relating to the
Mortgage Loans.
(b) The Assignor represents and warrants to the Assignee that
the Assignor has not taken any action which would serve to impair or encumber
the Assignor's ownership interest in the Mortgage Loans since the respective
dates of the Servicing Agreement and the Sale Agreement.
(c) The Servicer and the Assignor shall have the right to
amend, modify or terminate the Servicing Agreement or the Sale Agreement without
the joinder of the Assignee with respect to mortgage loans not conveyed to the
Assignee hereunder, provided, however, that such amendment, modification or
termination shall not affect or be binding on the Assignee.
2. Accuracy of Servicing Agreement. The Servicer and the
Assignor represent and warrant to the Assignee that (i) attached hereto as
Exhibit 2 is a true, accurate and complete copy of the Servicing Agreement,
(ii) attached hereto as Exhibit 3 is a true, accurate and complete copy of the
Sale Agreement, (iii) each of the Servicing Agreement and the Sale Agreement is
in full force and effect as of the date hereof, (iv) neither the Servicing
Agreement nor the Sale Agreement has been amended or modified in any respect,
except as pursuant to the GSMC Assignment Agreement and (v) no notice of
termination has been given to the Servicer under the Servicing Agreement or the
Sale Agreement. The Servicer, in its capacity as seller and/or servicer under
the Servicing Agreement and the Sale Agreement, further represents and warrants
that the representations and warranties contained in Section 2.1 of the
Servicing Agreement are true and correct as of the Closing Date (as such term
is defined in the Servicing Agreement), and the representations and warranties
regarding the Mortgage Loans contained in Section 3.02 of the Sale Agreement
were true and correct as of the Closing Date (as such term is defined in the
Sale Agreement).
3. Recognition of Assignee.
(a) From and after the date hereof, the Servicer shall note the
transfer of the Mortgage Loans to the Assignee in its books and records, shall
recognize the Assignee as the owner of the Mortgage Loans and, notwithstanding
anything herein to the contrary, shall service all of the Mortgage Loans for
the benefit of the Assignee pursuant to the Servicing Agreement the terms of
which are incorporated herein by reference. It is the intention of the Assignor,
Servicer and Assignee that the Servicing Agreement shall be binding upon and
inure to the benefit of the Servicer and the Assignee and their successors and
assigns.
(b) The Servicer further acknowledges that, from and after the
date hereof, it (and any of its successors under the Servicing Agreement) will
be subject to the supervision of the Master Servicer and that the Master
Servicer, acting on behalf of the Trustee as the owner of the Mortgage Loans,
shall have the same rights as were assigned by GSMC, in its capacity as the
original "Owner" under the Servicing Agreement, to the Assignor under the GSMC
Assignment Agreement, and further assigned hereunder by the Assignor to the
Trustee, on behalf of the trust formed pursuant to the Trust Agreement. Such
rights that Master Servicer may enforce on behalf
of the Trustee will include, without limitation, the right to terminate the
Servicer under the Servicing Agreement upon the occurrence of an event of
default thereunder, the right to receive all remittances required to be made by
the Servicer under the Servicing Agreement, the right to receive all monthly
reports and other data required to be delivered by the Servicer under the
Servicing Agreement and the right to exercise certain rights of consent and
approval relating to actions taken by the Servicer.
(c) All reports and other data required to be delivered by the
Servicer to the "Owner" under the Servicing Agreement shall be delivered to the
Master Servicer or the Trustee, as designated by the Trustee, at the address
set forth in Section 10 hereof. All remittances required to be made to the
Trustee, as the successor in interest to the Assignor under the Servicing
Agreement, shall be made instead to the Master Servicer by wire transfer to the
following account:
JPMorgan Chase Bank, National Association
ABA #: 000000000
For credit to: SAS Clearing
Acct #: 507198670
FFC to: GSAA 2006-3 Acct #507198670
(d) Monthly Reporting
Notwithstanding anything to the contrary in the Servicing
Agreement, with respect to the Mortgage Loans, not later than the tenth (10th)
calendar day of each month (or if such tenth calendar day is not a Business Day,
the immediately succeeding Business Day), the Servicer shall furnish to the
Master Servicer (i) (a) monthly loan data in a mutually agreed-upon format, (b)
default loan data in the format mutually agreed-upon between the Servicer and
the Master Servicer and (c) information regarding realized losses and gains in
the format mutually agreed between the Servicer and the Master Servicer, in each
case relating to the period ending on the last day of the preceding calendar
month, (ii) all such information required pursuant to clause (i)(a) above on a
magnetic tape, electronic mail, or other similar media reasonably acceptable to
the Master Servicer and (iii) all supporting documentation with respect to the
information required pursuant to clause (i)(c) above.
4. Representations and Warranties of the Assignee. The
Assignee hereby represents and warrants to the Assignor as follows:
(a) Decision to Purchase. The Assignee represents and warrants
that it is a sophisticated investor able to evaluate the risks and merits of
the transactions contemplated hereby, and that it has not relied in connection
therewith upon any statements or representations of the Assignor or the
Servicer other than those contained in the Servicing Agreement, the Sale
Agreement or this Assignment Agreement.
(b) Authority. The Assignee hereto represents and warrants that
it is duly and legally authorized to enter into this Assignment Agreement and
to perform its obligations hereunder and under the Servicing Agreement and the
Sale Agreement.
(c) Enforceability. The Assignee hereto represents and warrants
that this Assignment Agreement has been duly authorized, executed and delivered
by it and (assuming due authorization, execution and delivery thereof by each of
the other parties hereto) constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
5. Representations and Warranties of the Assignor. The
Assignor hereby represents and warrants to the Assignee as follows:
(a) Organization. The Assignor has been duly organized and is
validly existing as a corporation in good standing under the laws of the State
of Delaware with full power and authority (corporate and other) to enter into
and perform its obligations under the Servicing Agreement, the Sale Agreement
and this Assignment Agreement.
(b) Enforceability. This Assignment Agreement has been duly
executed and delivered by the Assignor, and, assuming due authorization,
execution and delivery by each of the other parties hereto, constitutes a legal,
valid, and binding agreement of the Assignor, enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium, or other similar laws affecting creditors' rights generally and to
general principles of equity regardless of whether enforcement is sought in a
proceeding in equity or at law.
(c) No Consent. The execution, delivery and performance by the
Assignor of this Assignment Agreement and the consummation of the transactions
contemplated hereby do not require the consent or approval of, the giving of
notice to, the registration with, or the taking of any other action in respect
of, any state, federal or other governmental authority or agency, except such
as has been obtained, given, effected or taken prior to the date hereof.
(d) Authorization; No Breach. The execution and delivery of
this Assignment Agreement have been duly authorized by all necessary corporate
action on the part of the Assignor; neither the execution and delivery by the
Assignor of this Assignment Agreement, nor the consummation by the Assignor of
the transactions herein contemplated, nor compliance by the Assignor with the
provisions hereof, will conflict with or result in a breach of, or constitute a
default under, any of the provisions of the governing documents of the Assignor
or any law, governmental rule or regulation or any material judgment, decree or
order binding on the Assignor or any of its properties, or any of the provisions
of any material indenture, mortgage, deed of trust, contract or other instrument
to which the Assignor is a party or by which it is bound.
(e) Actions; Proceedings. There are no actions, suits or
proceedings pending or, to the knowledge of the Assignor, threatened, before or
by any court, administrative agency, arbitrator or governmental body (A) with
respect to any of the transactions contemplated by this Assignment Agreement
or (B) with respect to any other matter that in the judgment of the Assignor
will be determined adversely to the Assignor and will, if determined adversely
to the
Assignor, materially adversely affect its ability to perform its obligations
under this Assignment Agreement.
It is understood and agreed that the representations and
warranties set forth in this Section 5 shall survive delivery of the respective
mortgage loan documents to the Assignee or its designee and shall inure to the
benefit of the Assignee and its assigns notwithstanding any restrictive or
qualified endorsement or assignment. Upon the discovery by the Assignor or the
Assignee and its assigns of a breach of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
to the other parties to this Assignment Agreement, and in no event later than
two (2) Business Days from the date of such discovery. It is understood and
agreed that the obligations of the Assignor set forth in Section 6 to repurchase
a Mortgage Loan constitute the sole remedies available to the Assignee and its
assigns on their behalf respecting a breach of the representations and
warranties contained in this Section 5.
It is understood and agreed that the Assignor has made no
representations or warranties to the Assignee other than those contained in this
Section 5, and no other affiliate of the Assignor has made any representations
or warranties of any kind to the Assignee.
6. Repurchase of Mortgage Loans. Upon discovery or notice of
any breach by the Assignor of any representation, warranty or covenant under
this Assignment Agreement that materially and adversely affects the value of
any Mortgage Loan or the interest of the Assignee therein (it being understood
that any such defect or breach shall be deemed to have materially and adversely
affected the value of the related Mortgage Loan or the interest of the Assignee
therein if the Assignee incurs a loss as a result of such defect or breach),
the Assignee promptly shall request that the Assignor cure such breach and, if
the Assignor does not cure such breach in all material respects within 60 days
from the date on which it is notified of the breach, the Assignee may enforce
the Assignor's obligation hereunder to purchase such Mortgage Loan from the
Assignee at the Repurchase Price as defined in the Sale Agreement.
Notwithstanding the foregoing, however, if such breach is a Qualification
Defect as defined in the Sale Agreement, such cure or repurchase must take place
within 60 days of discovery of such Qualification Defect.
In the event the Servicer has breached a representation or
warranty under the Sale Agreement that is substantially identical to, or covers
the same matters as, a representation or warranty breached by the Assignor
hereunder, the Assignee shall first proceed against the Servicer. If the
Servicer does not within 90 days after notification of the breach, take steps to
cure such breach (which may include certifying to progress made and requesting
an extension of the time to cure such breach, as permitted under the Sale
Agreement) or purchase the Mortgage Loan, the Assignee shall be entitled to
enforce the obligations of the Assignor hereunder to cure such breach or to
purchase the Mortgage Loan from the Trust. In such event, the Assignor shall
succeed to the rights of the Assignee to enforce the obligations of the Servicer
to cure such breach or repurchase such Mortgage Loan under the terms of the Sale
Agreement with respect to such Mortgage Loan. In the event of a repurchase of
any Mortgage Loan by the Assignor, the Trustee shall promptly deliver to the
Assignor or its designee the related Mortgage File and shall assign to the
Assignor all of the Assignee's rights under the Sale Agreement, but only insofar
as the Sale Agreement relates to such Mortgage Loan.
Except as specifically set forth herein, the Assignee shall
have no responsibility to enforce any provision of this Assignment Agreement, to
oversee compliance hereof, or to take notice of any breach or default thereof.
7. Termination; Optional Clean-Up Call.
In connection with the Trust Agreement, the Master Servicer
hereby agrees to the following obligations described below. For purposes of this
Section 7 only, any capitalized term used but not defined in this Assignment
Agreement has the same meaning assigned thereto in the Trust Agreement.
If the Master Servicer exercises its option to solicit bids
and terminates the Trust Fund pursuant to Section 11.01(a) of the Trust
Agreement, by no later than the 10th day of the month of the final distribution,
the Master Servicer shall notify the Trustee and the Securities Administrator of
the final Distribution Date and of the applicable sale price of the Mortgage
Loans and REO Properties.
In the event the Mortgage Loans (and REO Properties) are sold
pursuant to Section 11.01(a) of the Trust Agreement, the Trustee shall remit to
the Securities Administrator the applicable Termination Price on the Remittance
Date immediately preceding the applicable final Distribution Date. Upon such
final deposit with respect to the Trust Fund and the receipt by the Securities
Administrator and the Custodians of a Request for Release therefor, the Master
Servicer shall direct the Custodians to release to the Master Servicer or its
designee the Custodial Files for the Mortgage Loans.
8. Continuing Effect. Except as contemplated hereby, the
Servicing Agreement and the Sale Agreement shall remain in full force and
effect in accordance with their respective terms.
9. Governing Law.
THIS ASSIGNMENT AGREEMENT AND THE RIGHTS AND OBLIGATIONS
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF).
EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER, OR IN CONNECTION
WITH, THIS ASSIGNMENT AGREEMENT, OR ANY OTHER DOCUMENTS AND INSTRUMENTS EXECUTED
IN CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN), OR ACTIONS OF SUCH PARTY. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THIS ASSIGNMENT AGREEMENT.
10. Notices. Any notices or other communications permitted or
required hereunder or under the Servicing Agreement or the Sale Agreement shall
be in writing and shall
be deemed conclusively to have been given if personally delivered at or mailed
by registered mail, postage prepaid, and return receipt requested or transmitted
by telex, telegraph or telecopier and confirmed by a similar mailed writing, to:
(a) in the case of the Servicer,
GreenPoint Mortgage Funding, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxx
or such address as may hereafter be furnished by the
Servicer;
(b) in the case of the Master Servicer,
JPMorgan Chase Bank, National Association
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
or such address as may hereafter be furnished by the
Master Servicer;
(c) in the case of the Trustee or the Assignee,
U.S. Bank National Association
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx XX 1179
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
or such other address as may hereafter be furnished
by the Trustee or Assignee; and
(d) in the case of the Assignor,
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
or such other address as may hereafter be furnished
by the Assignor.
11. Counterparts. This Assignment Agreement may be executed in
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
instrument.
12. Definitions. Any capitalized term used but not defined in
this Assignment Agreement has the meaning assigned thereto in the Servicing
Agreement.
13. Trustee Capacity. It is expressly understood and agreed by
the parties hereto that (i) this Assignment Agreement is executed and delivered
by U.S. Bank National Association, not individually or personally but solely on
behalf of GSAA Home Equity Trust 2006-3, as the Assignee, in the exercise of
the powers and authority conferred and vested in it, (ii) each of the
representations, undertakings and agreements by U.S. Bank National Association
is made and intended for the purpose of binding only the GSAA Home Equity Trust
2006-3, (iii) nothing herein contained shall be construed as creating any
liability for U.S. Bank National Association, individually or personally, to
perform any covenant (either express or implied) contained herein, and all such
liability, if any, is hereby expressly waived by the parties hereto, and such
waiver shall bind any third party making a claim by or through one of the
parties hereto, and (iv) under no circumstances shall U.S. Bank National
Association be personally liable for the payment of any indebtedness or
expenses of the GSAA Home Equity Trust 2006-3, or be liable for the breach or
failure of any obligation, representation, warranty or covenant made or
undertaken by the GSAA Home Equity Trust 2006-3 under this Assignment Agreement,
the Trust Agreement or any related document.
IN WITNESS WHEREOF, the parties hereto have executed this
Assignment Agreement the day and year first above written.
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxxxxxx Xxxx
-----------------
Name: Xxxxxxxx Xxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION not
in its individual capacity but
solely as Trustee
By:/s/ Xxxxxxxx X'Xxxxx-Xxxxxxx
----------------------------
Name: Xxxxxxxx X'Xxxxx-Xxxxxxx
Title: Vice President
GREENPOINT MORTGAGE FUNDING, INC.
By:/s/ Xxxxx Xxxxx
---------------
Name: Xxxxx Xxxxx
Title: Vice President
Acknowledged and Agreed:
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as Master Servicer
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
EXHIBIT 1
Mortgage Loan Schedule
[On File with the Securities Administrator as provided by the Depositor]
GreenPoint Step 2 AAR
EXHIBIT 2
Servicing Agreement
[See Exhibit 99.9 as filed with the Commission on February 14, 2006]
EXHIBIT 3
Sale Agreement
[See Exhibit 99.9 as filed with the Commission on February 14, 2006]
