EXHIBIT 99.5
EXECUTION COPY
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NEW CENTURY ALTERNATIVE MORTGAGE LOAN TRUST 2006-ALT2
ASSET-BACKED CERTIFICATES
SERIES 2006-ALT2
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
among
GS MORTGAGE SECURITIES CORP.,
as Assignor
U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE FOR NEW CENTURY
ALTERNATIVE MORTGAGE LOAN
TRUST 2006-ALT2, as
Assignee
and
NEW CENTURY MORTGAGE CORPORATION,
as the Responsible Party
Dated as of
October 30, 2006
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ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT made this 30th
day of October, 2006 (this "Assignment Agreement"), among New Century Mortgage
Corporation, a California corporation (the "Responsible Party"), U.S Bank
National Association ("U.S. Bank"), not in its individual capacity, but solely
as trustee (in such capacity, the "Trustee") on behalf of New Century
Alternative Mortgage Loan Trust 2006-ALT2 (the "Assignee"), and GS Mortgage
Securities Corp., a Delaware corporation (the "Assignor" or "Depositor").
WHEREAS, Xxxxxxx Xxxxx Mortgage Company ("GSMC") and the
Responsible Party have entered into (i) the Flow Interim Servicing Agreement,
dated as of March 1, 2006 (the "Servicing Agreement"), and (ii) the Flow
Mortgage Loan Purchase and Warranties Agreement, dated as of March 1, 2006
(the "Sale Agreement") and the related purchase price and terms letter
("PPTL"), dated as of each of August 3, 2006 and August 23, 2006, pursuant to
which the Responsible Party sold to GSMC certain mortgage loans listed on the
mortgage loan schedule attached as an exhibit to the related PPTL;
WHEREAS, GSMC has assigned and conveyed certain mortgage loans
(the "Mortgage Loans"), which Mortgage Loans are subject to the provisions of
the PPTL, the Servicing Agreement and the Sale Agreement, to the Assignor
pursuant to an Assignment, Assumption and Recognition Agreement, dated as of
October 30, 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 Trust Agreement, dated as of October 1,
2006 (the "Trust Agreement"), among the Depositor, the Trustee and Deutsche
Bank National Trust Company, as 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 the date hereof, and the Responsible Party 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 the date hereof, 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 Responsible Party 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 the Servicing Agreement and the Sale Agreement. The
Responsible Party 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 and (iv)
neither the Servicing Agreement nor the Sale Agreement has been amended or
modified in any respect, except as contemplated herein or pursuant to the GSMC
Assignment Agreement. The Responsible Party, in its capacity as seller and/or
servicer under each of the Servicing Agreement and the Sale Agreement, further
represents and warrants that (i) the representations and warranties contained
in Article 9 and Section 12.02(a) of the Servicing Agreement are true and
correct as of the date hereof, (ii) the representations and warranties
regarding the Mortgage Loans contained in Sections 9.01, 9.02 (other than
9.02(b) and (q)) and 33.02(a) of the Sale Agreement are true and correct as of
the date hereof; provided, however, that with respect to the representation
and warranty set forth in Section 9.02(hh) of the Sale Agreement, the
Responsible Party's restatement of such representation and warranty as of the
date hereof shall be qualified "to the best of the Responsible Party's
knowledge") and (iii) the representations and warranties regarding the
Mortgage Loans contained in Sections 9.02(b) and (q) of the Sale Agreement are
true and correct as of the related Closing Date (as such term is defined in
the Sale Agreement).
3. Recognition of Assignee.
(a) From and after the date hereof, the Responsible Party 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, until the
transfer of servicing to Xxxxx Fargo Bank, National Association occurs on or
about November 1, 2006 (the "Transfer Date"). It is the intention of the
Assignor, Responsible Party and Assignee that the Servicing Agreement shall be
binding upon and inure to the benefit of the Responsible Party and the
Assignee and their successors and assigns.
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(b) The Responsible Party further acknowledges that until the
Transfer Date has occurred, it (and any of its successors under the Servicing
Agreement) will be subject to the supervision of the Assignee as the owner of
the Mortgage Loans, shall have the same rights as were assigned by GSMC, in
its capacity as the original "Purchaser" under the Servicing Agreement, to the
Assignor under the GSMC Assignment Agreement, and further assigned hereunder
by the Assignor to the Assignee. Such rights that the Assignee may enforce
will include, without limitation, the right to terminate the Responsible Party
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
Responsible Party under the Servicing Agreement, the right to receive all
monthly reports and other data required to be delivered by the Responsible
Party under the Servicing Agreement and the right to exercise certain rights
of consent and approval relating to actions taken by the Responsible Party.
(c) Until the Transfer Date has occurred, all reports and other
data required to be delivered by the Responsible Party to the "Purchaser"
under the Servicing Agreement shall be delivered to 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 by wire transfer to the following account:
U.S. Bank National Association
ABA #: 000000000
Acct #: 173103322058
Ref: 106654000 NCAMLT 2006-ALT2
(d) Monthly Reporting
Notwithstanding anything to the contrary in the Servicing
Agreement and until the Transfer Date has occurred, 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 Responsible Party shall furnish to the Trustee (i) (a)
monthly loan data in a mutually agreed-upon format, (b) default loan data in
the format mutually agreed-upon between the Responsible Party and the Trustee
and (c) information regarding realized losses and gains in the format mutually
agreed between the Responsible Party and the Trustee, 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 Trustee
and (iii) all supporting documentation with respect to the information
required pursuant to the immediately preceding paragraph.
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
Responsible Party other than those contained in the Servicing Agreement, the
Sale Agreement or this Assignment Agreement.
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(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,
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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 sixty (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.
In the event the Responsible Party 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 Responsible
Party. If the Responsible Party does not within sixty (60) 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), purchase the Mortgage
Loan or provide a Qualified Substitute Mortgage Loan (as such term is defined
in the Sale Agreement), 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 Responsible Party 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
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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 Trustee 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.
In the event that a Person specified in Section 9.01 of the Trust
Agreement chooses to exercise its option set forth therein to purchase the
Mortgage Loans and REO Properties or to conduct an Auction Call for such
property of the Trust Fund, as the case may be, by no later than the 10th day
of the month of the final distribution, such Person shall notify the Depositor
and the Trustee of the final Distribution Date and of the applicable purchase
or sale price of the Mortgage Loans and REO Properties determined and in the
manner as provided in the Trust Agreement.
In the event the Mortgage Loans and REO Properties are purchased
or sold pursuant to Section 9.01 of the Trust Agreement, the Servicer shall
remit to the Trustee 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 Trustee and the
Custodian of a Request for Release therefor, the Trustee shall direct the
Custodian to release to the Trustee 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
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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 Responsible Party,
New Century Mortgage Corporation
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxx
With a copy to:
New Century Mortgage Corporation
00000 XX Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxx
or such address as may hereafter be furnished by the
Responsible Party;
(b) in the case of the Trustee or the Assignee,
U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
XX-XX-XX0X
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Structured Finance/NCAMLT 2006-ALT2
Fax: (000) 000-0000
or such other address as may hereafter be furnished by the
Trustee or Assignee; and
(c) 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.
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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, the Sale Agreement or the Trust Agreement, as applicable.
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, not individually or personally, but solely on behalf of New Century
Alternative Mortgage Loan Trust 2006-ALT2, 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 is made and intended
for the purpose of binding only the New Century Alternative Mortgage Loan
Trust 2006-ALT2, (iii) nothing herein contained shall be construed as creating
any liability for U.S. Bank, 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 be personally liable
for the payment of any indebtedness or expenses of the New Century Alternative
Mortgage Loan Trust 2006-ALT2, or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by the New
Century Alternative Mortgage Loan Trust 2006-ALT2 under this Assignment
Agreement, the Trust Agreement or any related document.
[SIGNATURE PAGE FOLLOWS]
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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
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Name: Xxxxxxxx Xxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION, not in
its individual capacity but solely as
Trustee
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
NEW CENTURY MORTGAGE CORPORATION
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Executive Vice President
New Century Step 2 AAR
EXHIBIT 1
Mortgage Loan Schedule
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[On File with the Trustee as provided by the Depositor]
EXHIBIT 2
Servicing Agreement
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[On File with the Depositor]
EXHIBIT 3
Sale Agreement
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[On File with the Depositor]
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