EXHIBIT 99.3
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
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
as Servicer
Dated as of
October 30, 2006
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ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, dated October
30, 2006 (this "Agreement"), among GS Mortgage Securities Corp. ("Assignor" or
"Depositor"), 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 ▇▇▇▇▇ Fargo Bank, National Association ("▇▇▇▇▇ Fargo"), as
servicer (in such capacity, the "Servicer").
WHEREAS, ▇▇▇▇▇▇▇ Sachs Mortgage Company ("GSMC") 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 GSMC 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, GSMC 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
GSMC from time to time;
WHEREAS, GSMC has agreed to assign and convey certain 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,
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 A 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 (in such capacity, the "Custodian"),
the Assignor will transfer the Mortgage Loans to the Assignee, together with
the Assignor'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 GSMC Assignment
Agreement (including without limitation the rights of GSMC under the Servicing
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, 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.
(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 or the Servicing Agreement
since the date of the Servicing Agreement.
2. Accuracy of the Servicing Agreement. The Servicer and the
Assignor represent and warrant to the Assignee that (i) attached as Exhibit 2
to the GSMC Assignment Agreement 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) except as contemplated herein or as previously
disclosed in the GSMC Assignment Agreement, the Servicing Agreement has not
been amended or modified in any respect and (iv) no notice of termination has
been given to the Servicer under the Servicing Agreement.
3. Recognition of the Assignee.
(a) 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 on or after the
applicable Transfer Date 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 GSMC 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 and the Servicer
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.
(b) 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
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.
(c) 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 Trustee and that the Trustee, acting in
its capacity as Assignee hereunder and 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
Assignee. Such rights that Assignee may enforce will include, without
limitation, the right to terminate the Servicer under the Servicing Agreement
with respect to the Mortgage Loans 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 with respect to the
Mortgage Loans.
(d) All reports and other data required to be delivered by the
Servicer to the "Owner" under the Servicing Agreement with respect to the
Mortgage Loans shall be delivered to the Trustee at the address set forth in
Section 8 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 #: ▇▇▇▇▇▇▇▇▇
Acct #: 173103322058
Ref: 106654000 NCAMLT 2006-ALT2
(e) 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 Trustee (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 Trustee and (c) information regarding realized losses and gains in the
format mutually agreed between the Servicer and the Trustee, in each case
relating to the period beginning on the second day of the immediately
preceding month and ending on the first day of the then current 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
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).
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 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 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. Continuing Effect. Except as contemplated hereby, the Servicing
Agreement shall remain in full force and effect in accordance with its terms.
7. Termination; Optional Clean-Up Call.
In connection with the Trust Agreement, the 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.
In the event that a Person or Persons 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. 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,
▇▇▇▇▇ Fargo Bank, National Association
1 Home Campus, MAC #X2302-033
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇ Fargo Bank, National Association
1 Home Campus, MAC #X2401-06T
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address as may hereafter be furnished by the Servicer;
(b) in the case of the Trustee or Assignee,
U.S. Bank National Association
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇-▇▇-▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Structured Finance/NCAMLT 2006-ALT2
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address as may hereafter be furnished by the Assignee; and
(c) in the case of the Assignor,
GS Mortgage Securities Corp.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or such address as may hereafter be furnished by the Assignor.
9. Counterparts. This 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.
10. Definitions. Any capitalized term used but not defined in this
Agreement has the meaning assigned thereto in the Servicing Agreement or the
Trust Agreement, as applicable.
11. Trustee Capacity. It is expressly understood and agreed by the
parties hereto that (i) this 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 Agreement, the Trust
Agreement or any related document.
12. 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.
(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 and the Servicer acting on the Trust's behalf).
Any entity into which the Assignor or Assignee may be merged or
consolidated shall, without the requirement for any further writing, be
deemed Assignor, or Assignee, 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) 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.
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/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION, not in
its individual capacity but solely as Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION, as Servicer
By: /s/ M. ▇▇▇▇▇▇▇ ▇▇▇▇
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Name: M. ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Sr. Vice President
EXHIBIT A
Mortgage Loan Schedule
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[On File with the Trustee as provided by the Depositor]
A-1
