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 IndyMac Bank, F.S.B., having an
address at 3465 East Foothill Boulevard, Pasadena, California 91107
(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 First Amended and Restated Master Mortgage Loan
Purchase and Servicing Agreement, dated as of June 1, 2005, as
amended and restated to and including December 1, 2005, between the
Assignor and the Company (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, Wells Fargo Bank,
N.A., as Master Servicer and as securities administrator (the
“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 .
Notwithstanding anything to the contrary contained herein,
the Assignor specifically reserves and does not assign to the
Assignee 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, 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 or the right to
negotiate a termination fee in connection with the termination of
the Company pursuant to Subsection 14.01(x) of the Servicing
Agrement.
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 was 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)
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;
(d)
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
certificate 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
(e)
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
certificate 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 certificate 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)
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 “IndyMac Bank, F.S.B., 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
(a) the representations and warranties set forth in Subsection 7.01
as of the
Closing Date, (b) the representations and warranties set forth in
Subsections 7.02(iv), (vi), (viii), (x), (xvii), (except with
respect to the first two sentences), (xxiii), to the knowledge of
the Company (xxiv), to the knowledge of the Company (xxv) (except
with respect to the first sentence), (xxxiv), to the knowledge of
the Company (xxxv), to the knowledge of the Company (xliii), (lxvi)
and (lxxii) as of the Closing Date, and (c) the representations and
warranties set forth in Subsection 7.02, other than those set forth
in clause (b) above, as of the related date on which the Assignor
purchased the Assigned Loans from the Company, 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 date set forth above, the Assignor shall be
entitled to all the remedies under the Servicing
Agreement.
Recognition of
Assignee.
6.
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 herein, 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, with respect to the servicing of the Assigned Loans, 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.
Modification of Servicing
Agreement
7.
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.
Servicing Fee Rate
: shall be 0.375% per adjustable
rate Mortgage Loan per annum.
(b)
The definition of “Distribution
Date” in Section 1 of the Servicing Agreement is amended by
deleting the word “following” in the fourth line and
replacing it with the word “preceding”.
(c)
Section 1 of the Servicing Agreement is
modified by adding the following new definition thereto:
Trustee : HSBC Bank USA, National Association, its
successors and assigns.
(d)
Subsection 12A.03(e) to the Servicing
Agreement is modified by inserting “, any Master
Servicer” immediately after the first reference to
Purchaser
(e)
Subsection 12A.05(a) to the Servicing
Agreement is modified by deleting subpart (iv) in its entirety and
replacing it with the following:
(iv)
deliver, and cause
each Subservicer and Subcontractor described in clause (iii) to
provide to the Purchaser, any Depositor, any Master Servicer and
any other Person that will be responsible for signing the
certification (a “Sarbanes Certification”) required by
Rules 13a-14(d) and 15d-14(d) under the Exchange Act (pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002) on behalf of an
asset-backed issuer with respect to a Securitization Transaction a
certification, signed by the appropriate officer of the Seller, in
the form attached hereto as Exhibit 13.
(f)
Subsection 12A.06(c) to the Servicing
Agreement is modified by inserting the phrase “and other
certifications” immediately after the phrase
“compliance and attestation”.
(g)
Subsection 12A.07(a) to the Servicing
Agreement is modified by deleting the phrase “in written or
electronic form” in its entirety from subpart
12A.07(i)(A).
(h)
Subsection 12A.07(b) to the Servicing
Agreement is modified by deleting the entirety of subpart (i)
thereto and replacing it with the following:
(i)
Any failure by the Seller, any
Subservicer, any Subcontractor or any Third-Party Originator to
deliver any information, report, certification, accountants’
letter or other material when and as required under this Section
12A, or any breach by the Seller of a representation or warranty
set forth in Subsection 12A.02(a) or in a writing furnished
pursuant to Subsection 12A.02(b) and made as of a date prior to the
closing date of the related Securitization Transaction, to the
extent that such breach is not cured by such closing date, or any
breach by the Seller of a representation or warranty in a writing
furnished pursuant to Subsection 12A.02(b) to the extent made as of
a date subsequent to such closing date, shall immediately and
automatically, if not cured within ten (10) days of notice,
constitute an Event of Default with respect to the Seller under
this Agreement and any applicable Reconstitution Agreement, and
shall entitle the Purchaser, any Master Servicer or any Depositor,
as applicable, in its sole discretion to terminate the rights and
obligations of the Seller as servicer under this Agreement and/or
any applicable Reconstitution Agreement without payment
(notwithstanding anything in this Agreement or any applicable
Reconstitution Agreement to the contrary) of any compensation to
the Seller (and if the Company is servicing any of the Mortgage
Loans in a Securitization Transaction, appoint a successor servicer
reasonably acceptable to any Master Servicer for such
Securitization Transaction); provided that to the extent that any
provision of this Agreement and/or any applicable Reconstitution
Agreement expressly provides for the survival of certain rights or
obligations following termination of the Seller as servicer, such
provision shall be given effect.
(i)
Subsection 14.01 to the Servicing
Agreement is hereby modified by deleting subpart (ix) in its
entirety and replacing it with the following:
(ix)
[Reserved];
(j)
Subsection 11.01 of Exhibit 8 to the
Servicing Agreement is modified by deleting the phrases “the
Seller servicing guide” and “during the Preliminary
Servicing Period” in the first paragraph of such
subsection.
(k)
Subsection 11.01 of Exhibit 8 of the
Servicing Agreement is further modified by deleting the last
sentence in the third paragraph of such subsection.
(l)
Subsection 11.04 of Exhibit 8 to the
Servicing Agreement is further modified by deleting the phrase
“, including all Prepayment Charges” in subpart
(ii).
(m)
Subsection 11.04 of Exhibit 8 to the
Servicing Agreement is further modified by deleting the final
paragraph of such subsection in its entirety and replacing it with
the following:
If the balance on deposit in the
Custodial Account exceeds $75,000 as of the commencement of
business on any Business Day and the Custodial Account constitutes
an Eligible Account solely pursuant to clause (ii) of the
definition of Eligible Account, the Seller shall, on or before
twelve o’clock noon Eastern time on such Business Day,
withdraw from such Custodial Account any amounts in excess of
$75,000 and deposit such excess amounts in a separate Custodial
Account, which shall be an Eligible Account.
(n)
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).
(o)
Subsection 11.14 of Exhibit 8 to the
Servicing Agreement is further modified by deleting the wire
transfer instructions set forth therein and replacing them with the
wire transfer instructions set forth in Section 11 of this AAR
Agreement.
(p)
Subsection 11.14 of Exhibit 8 to the
Servicing Agreement is further modified by deleting the third
paragraph of such subsection in its entirety and replacing it with
the following:
With respect to any remittance received
by the Purchaser on or after the first (1 st ) day
following the Business Day on which such payment was due, the
Seller shall pay to the Purchaser interest on any such late payment
at an annual rate equal to the rate of interest as is publicly
announced from time to time at its principal office by JPMorgan
Chase Bank, New York, New York, as its prime lending rate, adjusted
as of the date of each change, plus three percentage points, but in
no event greater than the maximum amount permitted by applicable
law. Such interest shall be paid by the Seller to the Purchaser on
the date such late payment is made and shall cover the period
commencing with the day following the Business Day on which such
payment was due and ending with the Business Day on which such
payment is made, both inclusive. Such interest shall be remitted
along with such late payment. The payment by the Seller of any such
interest shall not be deemed an extension of time for payment or a
waiver by the Purchaser of any Event of Default by the
Seller.
(q)
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 ninth 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.
(r)
Subsection 11.23 of Exhibit 8 to the
Servicing Agreement is modified by deleting the subsection in its
entirety and replacing it with the following:
Subsection 11.23
[Reserved].
(s)
Subsection 11.24 of Exhibit 8 to the
Servicing Agreement is modified by deleting the subsection in its
entirety and replacing it with the following:
Subsection 11.24
[Reserved].
(t)
Subsection 11.28 of Exhibit 8 to the
Servicing Agreement is modified by deleting the third paragraph in
its entirety.
(u)
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:
N
