EXHIBIT 99.2
Execution Copy
--------------
================================================================================
NEW CENTURY ALTERNATIVE MORTGAGE LOAN TRUST 2006-ALT2
ASSET-BACKED CERTIFICATES
SERIES 2006-ALT2
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
among
XXXXXXX XXXXX MORTGAGE COMPANY,
as Assignor
GS MORTGAGE SECURITIES CORP.,
as Assignee
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Servicer
Dated as of
October 30, 2006
================================================================================
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, dated October 30,
2006 (this "Agreement"), among Xxxxxxx Xxxxx Mortgage Company, a New York
limited partnership (the "Assignor"), GS Mortgage Securities Corp., a Delaware
corporation (the "Assignee") and Xxxxx Fargo Bank, National Association, a
national banking association (the "Servicer").
WHEREAS, the Assignor and New Century Mortgage Corporation ("New
Century") have entered into the Flow Mortgage Loan Purchase and Warranties
Agreement, dated as of March 1, 2006 (the "Sale Agreement"), pursuant to which
New Century sold to the Assignor certain mortgage loans on a servicing-released
basis listed on the mortgage loan schedule attached as an exhibit to the Trust
Agreement (as defined below);
WHEREAS, the Assignor and the Servicer have entered into the
Servicing Agreement, dated as of June 30, 2006 (the "Servicing Agreement"),
pursuant to which the Servicer has agreed to service certain mortgage loans
acquired by the Assignor from time to time;
WHEREAS, the Assignee has agreed on certain terms and conditions to
purchase from the Assignor certain of the mortgage loans acquired from New
Century (the "Mortgage Loans"), which will become subject to the provisions of
the Servicing Agreement as of November 1, 2006, and are listed on the mortgage
loan schedule attached as Exhibit A hereto (the "Mortgage Loan Schedule"); and
WHEREAS, pursuant to a Trust Agreement, dated as of October 1, 2006
(the "Trust Agreement"), among GS Mortgage Securities Corp., as depositor, U.S.
Bank National Association, as trustee (in such capacity, the "Trustee"), and
Deutsche Bank National Trust Company, as custodian (in such capacity, the
"Custodian"), the Assignee will transfer the Mortgage Loans to the Trustee,
together with the Assignee's rights under the Servicing Agreement, to the extent
relating to the Mortgage Loans (other than the rights of the Assignor (and if
applicable its affiliates, officers, directors and agents) 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, and of the mutual covenants herein contained, the
parties hereto hereby agree as follows:
1. Assignment, Assumption and Conveyance.
(a) The Assignor hereby assigns to the Assignee, as of the date
hereof, all of its right, title and interest in and to the Servicing Agreement,
to the extent relating to the Mortgage Loans (other than the rights of the
Assignor (and if applicable its affiliates, officers, directors and agents) to
indemnification thereunder), and the Assignee hereby assumes all of the
Assignor's obligations under the Servicing Agreement, to the extent relating to
the Mortgage Loans, from and after the date hereof, 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 from and after the date hereof, to the extent relating to
the Mortgage Loans.
The Assignor specifically reserves and does not assign to the
Assignee hereunder (i) any and all right, title and interest in, to and under
and any obligations of the Assignor with respect to any mortgage loans subject
to the Servicing Agreement that are not the Mortgage Loans set forth on the
Mortgage Loan Schedule and are not the subject of this Agreement, (ii) any
rights and obligations of the Assignor pursuant to the Servicing Agreement
arising prior to the date hereof, (iii) the rights and obligations of the Owner
under the following sections of the Servicing Agreement: Section 11.02 (relating
to the Owner's right to terminate the Servicer) or Section 7.01 (relating to the
Owner's right to receive information from the Servicer), which rights shall
survive the execution and delivery of this Agreement.
The Assignee hereby assumes all of the Assignor's obligations under
the Mortgage Loans and the Servicing Agreement solely insofar as such
obligations relate to the Mortgage Loans, other than the obligations set forth
in clauses (ii) and (iii) of the preceding paragraph.
(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 date of the
Servicing Agreement.
2. Recognition of the Servicer.
From and after the date hereof (the "Securitization Closing Date"),
the Servicer shall and does hereby recognize that the Assignee will transfer the
Mortgage Loans and assign its rights under the Servicing Agreement (solely to
the extent set forth herein) and this Agreement to the Trustee of the New
Century Alternative Mortgage Loan Trust 2006-ALT2 (the "Trust") created pursuant
to the Trust Agreement. The Servicer hereby acknowledges and agrees that from
and after the date hereof (i) the Trust will be the owner of the Mortgage Loans
and the Servicer will be the servicer of the Mortgage Loans as of November 1,
2006 pursuant to the terms set forth in the Servicing Agreement, (ii) the
Servicer shall look solely to the Trust (including the Trustee acting on the
Trust's behalf) for performance of any obligations of the Assignor under the
Mortgage Loans and the Servicing Agreement (solely insofar as it relates to the
Mortgage Loans) (except for such obligations of the Assignor retained by the
Assignor hereunder), (iii) the Trust (including the Trustee acting on the
Trust's behalf) shall have all the rights and remedies available to the
Assignor, insofar as they relate to (A) the Mortgage Loans, under the Sale
Agreement pursuant to which the Owner purchased the Mortgage Loans from New
Century and (B) the Servicing Agreement, and shall be entitled to enforce all of
the obligations of the Servicer thereunder insofar as they relate to the
Mortgage Loans, including without limitation, the remedies for breaches of
representations and warranties set forth in Section 3.02 of the Servicing
Agreement (except for the rights and remedies retained by the Assignor
hereunder), (iv) all references to the "Owner" under the Servicing Agreement
insofar as they relate to the Mortgage Loans shall be deemed to refer to the
Trust (except to the extent of the rights and obligations retained by the
Assignor hereunder) (including the Trustee acting on the Trust's behalf) and (v)
the Mortgage Loans will be part of a REMIC, and the Servicer shall service the
Mortgage Loans and any real property acquired upon default thereof (including,
without limitation, making or permitting any modification, waiver or amendment
of any term of any Mortgage Loan) after the applicable Transfer Date in
accordance with the Servicing Agreement but in no event in a manner that would
(A) cause the REMIC to fail to qualify as a REMIC or (B) result in the
imposition of a tax upon the REMIC (including but not limited to the tax on
prohibited transactions as defined in Section 860F(a)(2) of the Code, the tax on
contributions to a REMIC set forth in Section 860G(d) of the Code, and the tax
on "net income from foreclosure property" as set forth in Section 860G(c) of the
Code). Neither the Servicer nor the Assignor shall amend or agree to amend,
modify, waive, or otherwise alter any of the terms or provisions of the
Servicing Agreement which amendment, modification, waiver or other alteration
would in any way affect the Mortgage Loans or the Servicer's performance under
the Servicing Agreement with respect to the Mortgage Loans without the prior
written consent of the Depositor as set forth in the Trust Agreement.
3. Modifications of the Servicing Agreement. Only in so far as it
relates to the Mortgage Loans, the Servicer and the Assignor hereby amend the
Servicing Agreement as follows:
(a) The definition of "Remittance Date" set forth in Article I shall
be deleted in its entirety and replaced with the following:
"Remittance Date: With respect to any Remittance Date, the 18th day
(or if such 18th day is not a Business Day, the first Business Day
immediately succeeding such date) of any month."
(b) The definition of "Servicing Fee Rate" set forth in Article I
shall be deleted in its entirety and replaced with the following:
"Servicing Fee Rate: With respect to any Mortgage Loan, 0.250% per
annum."
(c) Section 4.04 shall be amended as follows:
(i) clause (viii) of Section 4.04 shall be deleted in its
entirety and replaced with the following:
"(viii) with respect to each Principal Prepayment an amount (to be
paid by the Servicer out of its funds without reimburement therefor) which, when
added to all amounts allocable to interest received in connection with the
Principal Prepayment, equals one month's interest on the amount of principal so
prepaid at the Mortgage Loan Remittance Rate (it being understood that such
amounts to be paid by the Servicer shall not exceed the Servicing Fee paid to
the Servicer for such Remittance Date);"
(ii) a new sentence shall be added immediately following the
last paragraph of Section 4.04 which shall be as follows:
"To the extent the Servicer causes the funds on deposit from time to
time in the Custodial Account to be invested in the form of time deposit
accounts, such
investments shall mature not later than the Business Day immediately
preceding the applicable Remittance Date next following the date of such
investment."
(d) The first sentence of the fifth paragraph of Section 4.16 shall
be deleted in its entirety and replaced with the following:
"Subject to two (2) Business Days' prior written notice to the
Owner, at the address specified in Section 12.05, of its intent to do so, the
disposition of REO Property shall be carried out by the Servicer at such price,
and upon such terms and conditions, as the Servicer deems to be in the best
interests of the Owner and in accordance with Accepted Servicing Practices."
4. Accuracy of Servicing Agreement.
The Servicer and the Assignor represent and warrant to the Assignee
that (i) attached hereto as Exhibit B is a true, accurate and complete copy of
the Servicing Agreement, (ii) the Servicing Agreement is in full force and
effect as of the date hereof, (iii) the Servicing Agreement has not been amended
or modified in any respect (other than as set forth herein) and (iv) no notice
of termination has been given to the Servicer under the Servicing Agreement.
5. Recognition of Assignee.
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 or in the Servicing Agreement to the contrary, shall service all of the
Mortgage Loans for the benefit of the Assignee pursuant to the terms of the
Servicing Agreement, as modified by this Assignment 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.
6. Representations and Warranties of the Servicer.
The Servicer warrants and represents to and covenants with, the
Assignor, the Assignee and the Trust as of the date hereof that:
(a) The Servicer is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation;
(b) The Servicer has full power and authority to execute, deliver
and perform its obligations under this Agreement and has full power and
authority to perform its obligations under this Agreement and the
Servicing Agreement. The execution by the Servicer of this Agreement is in
the ordinary course of the Servicer's business and will not conflict with,
or result in a breach of, any of the terms, conditions or provisions of
the Servicer's charter or bylaws or any legal restriction, or any material
agreement or instrument to which the Servicer is now a party or by which
it is bound, or result in the violation of any law, rule, regulation,
order, judgment or decree to which the Servicer or its property is
subject. The execution, delivery and performance by the Servicer of this
Agreement have been duly authorized by all necessary corporate action on
part of the Servicer. This Agreement has been duly executed and delivered
by the Servicer, and, upon the due authorization, execution and delivery
by the Assignor and the Assignee, will constitute the valid and legally
binding obligation of the Servicer, enforceable against the Servicer in
accordance with its terms except as enforceability may be limited by
bankruptcy, reorganization, insolvency, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights generally, and by
general principles of equity regardless of whether enforceability is
considered in a proceeding in equity or at law;
(c) No consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required to be
obtained or made by the Servicer in connection with the execution,
delivery or performance by the Servicer of this Agreement or the
consummation by it of the transaction contemplated hereby;
(d) There is no action, suit, proceeding or investigation pending or
threatened against the Servicer, before any court, administrative agency
or other tribunal, which would draw into question the validity of this
Agreement or the Servicing Agreement, or which, either in any one instance
or in the aggregate, is likely to result in any material adverse change in
the ability of the Servicer to perform its obligations under this
Agreement or the Servicing Agreement, and the Servicer is solvent;
(e) To the extent the Mortgage Loans have been transferred to the
Servicer as of Securitization Closing Date, the Servicer has serviced the
Mortgage Loans in accordance with the Servicing Agreement and has provided
accurate "paid through" data (assuming the correctness of all "paid
through" data provided by the Assignor to the Servicer at the time the
Servicer began servicing the Mortgage Loans) with respect to the Mortgage
Loans to the Assignor;
(f) To the extent the Mortgage Loans have been transferred to the
Servicer as of Securitization Closing Date, except as reflected in the
"paid through" data delivered to the Assignor (assuming the correctness of
all "paid through" data provided by the Assignor to the Servicer at the
time the Servicer began servicing the Mortgage Loans), there is no payment
default existing under any Mortgage or any Mortgage Note as of the
Securitization Closing Date; and
(g) To the extent the Mortgage Loans have been transferred to the
Servicer as of Securitization Closing Date, to the Servicer's knowledge,
there is no non-payment default existing under any Mortgage or Mortgage
Note, or any event which, with the passage of time or with notice and the
termination of any grace or cure period, would constitute a non-payment
default, breach, violation or event which would permit acceleration as of
the Securitization Closing Date.
(h) Pursuant to Section 9.01 of the Servicing Agreement, the
Servicer hereby represents and warrants, for the benefit of the Assignor,
the Assignee and the Trust, that the representations and warranties set
forth in Section 3.01 of the Servicing Agreement
are true and correct as of the date hereof as if such representations and
warranties were made on the date hereof.
7. 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 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.
(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).
8. 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 limited partnership in good standing under the laws
of the State of New York with full power and authority (corporate and
other) to enter into and perform its obligations under the Servicing
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 Section 8 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, with respect to the Mortgage
Loans, the Assignor has made no representations or warranties to the Assignee
other than those contained in Section 8, and no other affiliate of the Assignor
has made any representations or warranties of any kind to the Assignee.
9. Miscellaneous.
(a) This Agreement shall be construed in accordance with the laws of
the State of New York, without regard to conflicts of law principles, and
the obligations, rights and remedies of the parties hereunder shall be
determined in accordance with such laws.
(b) No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party
against whom such waiver or modification is sought to be enforced, with
the prior written consent of the Trustee.
(c) This Agreement shall inure to the benefit of (i) the successors
and assigns of the parties hereto and (ii) the Trust (including the
Trustee acting on the Trust's behalf). Any entity into which the Assignor,
Assignee or the Servicer may be merged or
consolidated shall, without the requirement for any further writing, be
deemed Assignor, Assignee or the Servicer, respectively, hereunder.
(d) Each of this Agreement and the Servicing Agreement shall survive
the conveyance of the Mortgage Loans and the assignment of the Purchase
Agreements and the Servicing Agreement (to the extent assigned hereunder)
by the Assignor to the Assignee and by Assignee to the Trust and nothing
contained herein shall supersede or amend the terms of the Purchase
Agreements and the Servicing Agreement.
(e) This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and all
such counterparts shall constitute one and the same instrument.
(f) In the event that any provision of this Agreement conflicts with
any provision of the Purchase Agreements or the Servicing Agreement with
respect to the Mortgage Loans, the terms of this Agreement shall control.
(g) Capitalized terms used in this Agreement (including the exhibits
hereto) but not defined in this Agreement shall have the meanings given to
such terms in the purchase agreements or the Servicing Agreement, as
applicable.
10. Notices.
Any notices or other communications permitted or required hereunder
or under the Servicing 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,
Xxxxx Fargo Bank, National Association
1 Home Campus, MAC #X2302-033
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Xxxx X. Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to,
Xxxxx Fargo Bank, National Association
1 Home Campus, MAC #X2401-06T
Xxx Xxxxxx, Xxxx 00000-0000
Attention: General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000
or such other address as may hereafter be furnished by the Servicer;
(b) in the case of the Assignee,
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
or such other address as may hereafter be furnished by the 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
with a copy to:
Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
or such other address as may hereafter be furnished by the Assignor.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxxxxxx Xxxx
-------------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
XXXXXXX XXXXX MORTGAGE COMPANY, a New
York limited partnership
By: XXXXXXX SACHS REAL ESTATE FUNDING
CORP., a New York corporation, as General
Partner
By: /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Servicer
By: /s/ M. Xxxxxxx Xxxx
-------------------------------------
Name: M. Xxxxxxx Xxxx
Title: Sr. Vice President
Step 1 AAR
EXHIBIT A
---------
Mortgage Loan Schedule
----------------------
[On File with the Trustee as provided by the Depositor]
A-1
EXHIBIT B
---------
Servicing Agreement
-------------------
[On File with the Depositor]
