EXECUTION
COPY
ASSIGNMENT, ASSUMPTION AND RECOGNITION
AGREEMENT
This Assignment, Assumption and
Recognition Agreement (the “AAR Agreement”) is made and
entered into as of October 31, 2006 (the “Closing
Date”), among DB Structured Products, Inc., having an address
at 60 Wall Street, New York, New York 10005 (the
“Assignor”), Deutsche Alt-A Securities, Inc., having an
address at 60 Wall Street, New York, New York 10005 (the
“Assignee”), and GreenPoint Mortgage Funding, Inc.,
having an address at 100 Wood Hollow Drive, Novato, California
94945 (the “Company” or the “Servicer”) and
acknowledged and agreed to by Wells Fargo Bank, N.A., as master
servicer, (the “Master Servicer”).
In consideration of the mutual promises
contained herein, the parties hereto agree that the residential
mortgage loans listed on Attachment 1 annexed hereto (the
“Assigned Loans”), which are now serviced by the
Company on behalf of the Assignor and its successors and assigns
pursuant to the Amended and Restated Master Mortgage Loan Purchase
and Servicing Agreement, dated as of January 1, 2005, between the
Assignor and the Company as amended by Amendment One, dated as of
April 8, 2005, Amendment Two, dated as of June 30, 2005, Amendment
Three, dated as of October 7, 2005, Amendment Four, dated as of
March 7, 2006, and Amendment Five, dated as of June 9, 2006 (the
“Servicing Agreement”), shall be sold by the Assignor
to the Assignee pursuant to the Mortgage Loan Purchase Agreement,
dated as of October 31, 2006 (the “MLPA”), between the
Assignor and the Assignee and subject to the terms of this AAR
Agreement. The Assignee intends to transfer all right, title
and interest in and to the Assigned Loans to HSBC Bank USA,
National Association, as trustee (the “Trustee”) for
the holders of Deutsche Alt-A Securities Mortgage Loan Trust,
Series 2006-AR5 Mortgage Pass-Through Certificates (the
“Certificateholders”) pursuant to the Pooling and
Servicing Agreement, dated as of October 1, 2006 (the
“Pooling and Servicing Agreement”) among the Assignee,
as depositor, the Trustee and Wells Fargo Bank, N.A., as Master
Servicer and as securities administrator. Capitalized terms
used herein but not defined shall have the meanings ascribed to
them in the Servicing Agreement.
Assignment and
Assumption
1.
Assignor hereby grants, transfers and
assigns to Assignee all of the right, title and interest of
Assignor in, to and under the Servicing Agreement as it relates to
the servicing of the Assigned Loans. Assignor specifically
reserves and does not assign to Assignee any right, title and
interest in, to or under the Servicing Agreement, as it relates to
loans other than the Assigned Loans set forth on Attachment
1 , including any right, title and interest in, to or under
Subsections 7.04 and 7.05 of the Servicing Agreement, the
representations and warranties contained in Subsections 7.01 and
7.02 of the Servicing Agreement or the right to enforce the
representations and warranties set forth in Section 7 of the
Servicing Agreement against the Company, including, without
limitation, the rights set forth in Subsections 7.03 of the
Servicing Agreement.
Representations, Warranties and
Covenants
2.
Assignor warrants and represents to
Assignee and Company as of the Closing Date:
(a)
Attached hereto as Attachment 2 is
a true and accurate copy of the Servicing Agreement, which
agreement is in full force and effect as of the Closing Date and
the provisions of which have not been waived, amended or modified
in any respect, nor has any notice of termination been given
thereunder;
(b)
Assignor is the lawful owner of the
Assigned Loans with full right to transfer the Assigned Loans and
any and all of its interests, rights and obligations under the
Servicing Agreement as they relate to the Assigned Loans, free and
clear from any and all claims and encumbrances; and upon the
transfer of the Assigned Loans to Assignee under the MLPA, Assignee
shall have good title to each and every Assigned Loan, as well as
any and all of Assignor’s interests, rights and obligations
under the Servicing Agreement as they relate to the Assigned Loans,
free and clear of any and all liens, claims and
encumbrances;
(c)
There are no offsets, counterclaims or
other defenses available to Company with respect to the Assigned
Loans or the Servicing Agreement;
(d)
Assignor has no knowledge of, and has not
received notice of, any waivers under, or any modification of, any
Assigned Loan;
(e)
Assignor is duly organized, validly
existing and in good standing under the laws of the jurisdiction of
its incorporation, and has all requisite power and authority to
acquire, own and sell the Assigned Loans;
(f)
Assignor has full corporate power and
authority to execute, deliver and perform its obligations under
this AAR Agreement, and to consummate the transactions set forth
herein. The consummation of the transactions contemplated by
this AAR Agreement is in the ordinary course of Assignor’s
business and will not conflict with, or result in a breach of, any
of the terms, conditions or provisions of Assignor’s articles
of incorporation or by-laws or any legal restriction, or any
material agreement or instrument to which Assignor 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 Assignor or
its property is subject. The execution, delivery and
performance by Assignor of this AAR Agreement and the consummation
by it of the transactions contemplated hereby, have been duly
authorized by all necessary corporate action on the part of
Assignor. This AAR Agreement has been duly executed and
delivered by Assignor and, upon the due authorization, execution
and delivery by Assignee and Company, will constitute the valid and
legally binding obligation of Assignor enforceable against Assignor
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; and
(g)
No consent, approval, order or
authorization of, or declaration, filing or registration with, any
governmental entity is required to be obtained or made by Assignor
in connection with the execution, delivery or performance by
Assignor of this AAR Agreement, or the consummation by it of the
transactions contemplated hereby. Neither Assignor nor anyone
acting on its behalf has offered, transferred, pledged, sold or
otherwise disposed of the Assigned Loans or any interest in the
Assigned Loans, or solicited any offer to buy or accept a transfer,
pledge or other disposition of the Assigned Loans, or any interest
in the Assigned Loans or otherwise approached or negotiated with
respect to the Assigned Loans, or any interest in the Assigned
Loans with any Person in any manner, or made any general
solicitation by means of general advertising or in any other
manner, or taken any other action, which would constitute a
distribution of the Assigned Loans under the Securities Act of
1933, as amended (the “1933 Act”) or which would render
the disposition of the Assigned Loans a violation of Section 5 of
the 1933 Act or require registration pursuant thereto.
3.
Assignee warrants and represents to, and
covenants with, Assignor and Company as of the Closing
Date:
(a)
Assignee is duly organized, validly
existing and in good standing under the laws of the jurisdiction of
its incorporation and has all requisite power and authority to
acquire, own and purchase the Assigned Loans;
(b)
Assignee has full corporate power and
authority to execute, deliver and perform its obligations under
this AAR Agreement, and to consummate the transactions set forth
herein. The consummation of the transactions contemplated by
this AAR Agreement is in the ordinary course of Assignee’s
business and will not conflict with, or result in a breach of, any
of the terms, conditions or provisions of Assignee’s articles
of incorporation or by-laws or any legal restriction, or any
material agreement or instrument to which Assignee 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 Assignee or
its property is subject. The execution, delivery and
performance by Assignee of this AAR Agreement and the consummation
by it of the transactions contemplated hereby, have been duly
authorized by all necessary corporate action on the part of
Assignee. This AAR Agreement has been duly executed and
delivered by Assignee and, upon the due authorization, execution
and delivery by Assignor and Company, will constitute the valid and
legally binding obligation of Assignee enforceable against Assignee
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 Assignee
in connection with the execution, delivery or performance by
Assignee of this AAR Agreement, or the consummation by it of the
transactions contemplated hereby; and
(d)
Assignee agrees to be bound by all of the
terms, covenants and conditions of the Servicing Agreement with
respect to the Assigned Loans, and from and after the Closing Date,
Assignee assumes for the benefit of each of Assignor and Company
all of Assignor’s obligations thereunder but solely with
respect to such Assigned Loans.
4.
Company warrants and represents to, and
covenants with, Assignor and Assignee (unless otherwise specified)
as of the Closing Date:
(a)
Attached hereto as Attachment 2 is
a true and accurate copy of the Servicing Agreement, which
agreement is in full force and effect as of the Closing Date and
the provisions of which have not been waived, amended or modified
in any respect, nor has any notice of termination been given
thereunder;
(b)
Company is duly organized, validly
existing and in good standing under the laws of the jurisdiction of
its incorporation, and has all requisite power and authority to
service the Assigned Loans and otherwise to perform its obligations
under the Servicing Agreement;
(c)
Company has full corporate power and
authority to execute, deliver and perform its obligations under
this AAR Agreement, and to consummate the transactions set forth
herein. The consummation of the transactions contemplated by
this AAR Agreement is in the ordinary course of Company’s
business and will not conflict with, or result in a breach of, any
of the terms, conditions or provisions of Company’s articles
of incorporation or by-laws or any legal restriction, or any
material agreement or instrument to which Company 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 Company or its
property is subject. The execution, delivery and performance
by Company of this AAR Agreement and the consummation by it of the
transactions contemplated hereby, have been duly authorized by all
necessary corporate action on the part of Company. This AAR
Agreement has been duly executed and delivered by Company, and,
upon the due authorization, execution and delivery by Assignor and
Assignee, will constitute the valid and legally binding obligation
of Company, enforceable against Company 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;
(d)
No consent, approval, order or
authorization of, or declaration, filing or registration with, any
governmental entity is required to be obtained or made by Company
in connection with the execution, delivery or performance by
Company of this AAR Agreement, or the consummation by it of the
transactions contemplated hereby; and
(e)
From and after the Closing Date, the
Company shall service the Assigned Loans in accordance with the
terms and provisions of the Servicing Agreement, as modified by
this AAR Agreement, and the Company shall establish a Custodial
Account and an Escrow Account under the Servicing Agreement with
respect to the Assigned Loans separate from the Custodial Account
and Escrow Account previously established under the Servicing
Agreement in favor of Assignor, and shall remit collections
received. The Custodial Account and Escrow Account shall be
entitled “GreenPoint Mortgage Funding, Inc., as servicer in
trust for Deutsche Alt-A Securities Mortgage Loan Trust, Series
2006-AR5”.
(f)
There are no legal proceedings or
investigations pending or threatened against the Company or
proceedings known to be contemplated by governmental authorities
against the Company which in the judgment of the Company would
result, in each case, in any material adverse change in the ability
of the Company to perform its obligations under this AAR Agreement
or the Servicing Agreement. The Company is solvent;
5.
Pursuant to Section 12(3) of the
Servicing Agreement, the Company hereby restates to the Assignor
the representations and warranties set forth in Subsections 7.01
and 7.02 of the Servicing Agreement as of the Closing Date, as if
such representations and warranties were set forth herein in full.
In the event of a breach of any such representations and
warranties as of the Closing Date, the Assignor shall be entitled
to all the remedies under the Servicing Agreement.
Recognition of
Assignee.
6.
The parties hereto acknowledge that
Assignee will acquire the Assigned Loans for the purpose of
assigning such Assigned Loans to the Trustee for the Trust, for the
benefit of the related certificateholders on the date hereof.
Assignor and Company hereby acknowledge and consent to the
assignment by Assignee to the Trustee, on behalf of the Trust of
all of Assignee’s rights against the Company and to the
enforcement or exercise of any right or remedy against the Company
by Assignee, Trustee or Master Servicer. Such enforcement of
a right or remedy by the Master Servicer or the Trustee, on behalf
of the Trust, shall have the same force and effect as if the right
or remedy had been enforced or exercised by Assignee
directly.
7.
From and after the Closing Date, Company
shall recognize Assignee as owner of the Assigned Loans, and
acknowledges that the Assigned Loans will be part of a REMIC, and
will service the Assigned Loans in accordance with the Servicing
Agreement, as modified by this AAR Agreement, but in no event in a
manner that would (i) cause any REMIC to fail to qualify as a REMIC
or (ii) result in the imposition of a tax upon any REMIC (including
but not limited to the tax on prohibited transactions as defined in
Section 860F(a)(2) of the Code and the tax on contributions to a
REMIC set forth in Section 860G(d) of the Code). It is the
intention of Assignor, Company and Assignee that this AAR Agreement
shall be binding upon and for the benefit of the respective
successors and assigns of the parties hereto. Neither Company nor
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 Assigned Loans without the prior written consent
of the Trustee and the Master Servicer. Company hereby
acknowledges that pursuant to the Pooling and Servicing Agreement,
the Assignee will assign all of its rights under this AAR Agreement
to the Trustee for the benefit of the Certificateholders.
Company hereby acknowledges and consents to the assignment by
the Assignee of all of the Assignee’s rights against the
Company pursuant to this AAR Agreement and to the enforcement or
exercise of any right or remedy against the Company pursuant to
this AAR Agreement by the Trustee or Master Servicer.
Modification of Servicing
Agreement
8.
The Company and Assignor hereby modify
the Servicing Agreement with respect to the Assigned Loans as
follows:
(a)
The following definitions in Section 1 of
the Servicing Agreement are modified by deleting such definitions
in their entirety and replacing them with the following:
Business Day : Any day other than a Saturday or Sunday, or a
day on which banking and savings and loan institutions in the
states of California, Minnesota, Maryland or New York are
authorized or obligated by law or executive order to be
closed.
Cut-off Date : October 1, 2006.
Master Servicer
: Wells Fargo Bank, N.A., its
successors and assigns.
Nonrecoverable Monthly
Advance : Any Monthly
Advance or Servicing Advance previously made or proposed to be made
in respect of a Mortgage Loan or REO Property that, in the good
faith business judgment of the Seller, will not, or, in the case of
a proposed Monthly Advance or Servicing Advance, would not be
ultimately recoverable from related late payments, Insurance
Proceeds or Liquidation Proceeds on such Mortgage Loan or REO
Property as provided herein.
Regulation AB : Subpart 229.1100 – Asset Backed Securities
(Regulation AB), 17 C.F.R. §§229.1100-229.1123, as such
may be amended from time to time, and subject to such clarification
and interpretation as have been provided by the Commission in the
adopting release (Asset-Backed Securities, Securities Act Release
No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the
staff of the Commission, or as may be provided by the Commission or
its staff from time to time.
Servicing Fee Rate
: 0.250% per annum for each fixed rate
Mortgage Loan and 0.375% per annum for each adjustable rate
Mortgage Loan.
Subservicer :
Any Person that services Mortgage Loans on behalf of the Seller or
any Subservicer and is responsible for the performance (whether
directly or through Subservicers or Subcontractors) of a
substantial portion of the material servicing functions required to
be performed by the Seller under this Agreement or any applicable
Reconstitution Agreement related thereto that are identified in
Item 1122(d) of Regulation AB.
Whole Loan Transfer
: Any sale or transfer of some or
all of the Mortgage Loans, other than a Securitization
Transaction.
(b)
Section 1 of the Servicing Agreement is
modified by adding the following new definitions
thereto:
Commission : The United States Securities and Exchange
Commission.
Depositor : Deutsche Alt-A Securities, Inc.
Reconstitution : Any Securitization Transaction or Whole Loan
Transfer.
Sarbanes-Oxley Act
: The Sarbanes-Oxley Act of 2002, as
amended from time to time.
Securities Act : The Securities Act of 1933, as amended.
Securitization Transaction
: Any transaction involving either (1) a
sale or other transfer of some or all of the Mortgage Loans
directly or indirectly to an issuing entity in connection with an
issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (2) an issuance of publicly offered
or privately placed, rated or unrated securities, the payments on
which are determined primarily by reference to one or more
portfolios of residential mortgage loans consisting, in whole or in
part, of some or all of the Mortgage Loans.
Subcontractor : Any vendor, subcontractor or other Person that is
not responsible for the overall servicing (as
“servicing” is commonly understood by participants in
the mortgage-backed securities market) of Mortgage Loans but
performs one or more discrete functions identified in Item 1122(d)
of Regulation AB with respect to Mortgage Loans under the direction
or authority of the Seller or a Subservicer.
Trustee : HSBC Bank USA, National Association, a
national banking association, or its successors in interest, or any
successor trustee.
(c)
Section 1 of the Agreement is hereby
amended by deleting the definition of “Pass-Through
Transfer” in its entirety.
(d)
Subsection 14.01(ix) of the Servicing
Agreement is hereby amended by deleting the phrase “Sections
11.23, 11.24 or 11.35” in its entirety and replacing it with
the phrase “Subsections 11.15, 11.23 or
11.35”.
(e)
The Agreement is hereby amended by
deleting all references to “Pass-Through Transfer” in
their entirety and replacing them with “Securitization
Transaction”.
(f)
Subsection 11.01 of Exhibit 8 to the
Servicing Agreement is modified by deleting the third paragraph of
such subsection in its entirety and replacing it with the
following:
Notwithstanding anything in this
Agreement to the contrary, in the event of a Principal Prepayment
in full or in part of a Mortgage Loan, the Seller may not waive any
Prepayment Charge or portion thereof required by the terms of the
related Mortgage Note unless (i) the Seller determines that such
waiver would maximize recovery of Liquidation Proceeds for such
Mortgage Loan, taking into account the value of such Prepayment
Charge and the Mortgage Loan, and the waiver of such Prepayment
Charge is standard and customary in servicing similar Mortgage
Loans (including the waiver of a Prepayment Charge in connection
with a refinancing of the Mortgage Loan related to a default or a
reasonably foreseeable default) or (ii) (A) the enforceability
thereof is limited (1) by bankruptcy, insolvency, moratorium,
receivership, or other similar law relating to creditors’
rights or (2) due to acceleration in connection with a foreclosure
or other involuntary payment, or (B) the enforceability is
otherwise limited or prohibited by subsequent changes in applicable
law. In no event shall the Seller waive a Prepayment Charge
in connection with a refinancing of a Mortgage Loan that is not
related to a default or a reasonably foreseeable default. If
the Seller waives or does not collect all or a portion of a
Prepayment Charge relating to a Principal Prepayment in full or in
part due to any action or omission of the Seller, other than as
provided above, the Seller shall deposit the amount of such
Prepayment Charge (or such portion thereof as had been waived for
deposit) into the Custodial Account at the time of such prepayment
for distribution in accordance with the terms of this
Agreement.
(g)
Subsection 11.04 of Exhibit 8 to the
Servicing Agreement is modified by deleting the term
“servicing compensation” in subpart (xi) and replacing
it with “Servicing Fee”.
(h)
Subsection 11.04 of Exhibit 8 to the
Servicing Agreement is further modified by inserting the phrase
“for any Principal Prepayments in part and at the Net
Mortgage Interest Rate for any Principal Prepayments in full”
after the term “Mortgage Interest Rate” in subpart
(xi).
(i)
Subsection 11.05 of Exhibit 8 to the
Servicing Agreement is modified by inserting the phrase “or
Servicing Advance” after the term “Monthly
Advance” in subpart (vii).
(j)
Subsection 11.14 of Exhibit 8 to the
Servicing Agreement is modified by replacing the phrase “On
each Distribution Date” in the first line thereof with the
phrase “Not later than 12:00 noon (eastern time) on each
Distribution Date”;
(k)
Subsection 11.15 of Exhibit 8 to the
Servicing Agreement is modified by deleting the subsection in its
entirety and replacing it with the following:
No later than the fifth Business Day of
each month, the Seller shall furnish to the Master Servicer, in an
acceptable electronic format via e-mail, the information specified
in Exhibit 11, which data shall reflect information from the Due
Period immediately preceding the Distribution Date and such other
information with respect to the Mortgage Loans as the Master
Servicer may reasonably require to allocate remittances made
pursuant to this Agreement and provide appropriate statements with
respect to such remittances.
(a)
The Servicer shall provide to the Master
Servicer prompt notice of the occurrence of any of the following:
any event of default under the terms of this Agreement, any
merger, consolidation or sale of substantially all of the assets of
the Seller, the Seller’s engagement of any Subservicer to
perform or assist in the performance of any of the Seller’s
obligations under this Agreement, any litigation involving the
Seller that would be material to holders of securities issued in a
Securitization Transaction, and any affiliation or other
significant relationship between the Seller and other transaction
parties.
The Seller shall provide to the Master
Servicer such additional information as the Master Servicer may
reasonably request, including evidence of the authorization of the
person signing any certification or statement, financial
information and reports and of the fidelity bond and errors and
omissions insurance policy required to be maintained by the Seller
pursuant to Section 11.12 of Exhibit 8 hereto, and such other
information related to the Seller or its performance
hereunder.
(l)
Subsection 11.28 of Exhibit 8 to the Servicing
Agreement is modified by deleting the third paragraph in its
entirety.
(m)
Subsection 11.29 of Exhibit 8 to the
Servicing Agreement is modified by deleting the subsection in its
entirety and replacing it with the following:
Notwithstanding anything in this
Agreement to the contrary, the Seller (a) shall not permit any
modification with respect to any Mortgage Loan that would change
the Mortgage Interest Rate and (b) shall not (unless the Mortgagor
is in default with respect to the Mortgage Loan or such default is,
in the judgment of the Seller, reasonably foreseeable) make or
permit any modification, waiver or amendment of any term of any
Mortgage Loan that would both (i) effect an exchange or reissuance
of such Mortgage Loan under Section 1001 of the Code (or Treasury
regulations promulgated thereunder) or (ii) cause the related trust
fund to fail to qualify as a REMIC under the Code or the imposition
of any tax on “prohibited transactions” or
“contributions” after the startup date under the REMIC
Provisions.
Prior to taking any action with respect
to the Mortgage Loans which is not contemplated under the terms of
this Agreement, the Seller will obtain an Opinion of Counsel
acceptable to the Trustee with respect to whether such action could
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 and the tax on contributions to a REMIC set
forth in Section 860G(d) of the Code) (either such event, an
“Ad
