ASSIGNMENT, ASSUMPTION AND RECOGNITION
AGREEMENT
This Assignment, Assumption and
Recognition Agreement (this “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 GMAC Mortgage, LLC, having an address
at 100 Witmer Road, Horsham, Pennsylvania 19044 (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 as
amended from time to time to include subsequent mortgage loans (the
“Assigned Loans”) which are now or in the future
serviced by the Company for the Assignor and its successors and
assigns pursuant to the Servicing Agreement, dated as of August 5,
2005, as amended by Amendment Number One, dated as of January 31,
2006 (the “Servicing Agreement”), between the Assignor
and the Company, 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, as trustee, the Master Servicer and
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 Assigned Loans. Assignor specifically reserves and does
not assign to Assignee any right, title and interest in, to or
under any mortgage loans subject to the Servicing Agreement other
than the Assigned Loans set forth on Attachment 1 , the
right to transfer the servicing for any Charged-Off Loans pursuant
to Section 2.15 of the Servicing Agreement or the obligation to
indemnify the Company pursuant to Section 8.01(b) 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
Servicing Agreement is in full force and effect as of the date
hereof 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.
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
with respect to the Assigned Loans, 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 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 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;
(e)
No event has occurred as of Closing Date
which would render the representations and warranties made by
Company in Section 9.01 the Servicing Agreement, including any
representations and warranties referenced thereunder, to be untrue
in any material respect;
(f)
From and after the Closing Date with
respect to the Assigned Loans, the Company shall service the
Assigned Loans in accordance with the terms and provisions of the
Servicing 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 to such accounts. The Custodial Account and Escrow
Account shall be entitled “GMAC Mortgage, LLC, as servicer in
trust for Deutsche Alt-A Securities Mortgage Loan Trust, Series
2006-AR5”; and
(g)
Company shall furnish, on a monthly
basis, in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and complete borrower credit
files to Equifax, Experian and the TransUnion Credit Information
Company with respect to each Assigned Loan serviced by the Company
subject to this AAR Agreement.
5.
Company hereby acknowledges that Wells
Fargo Bank, N.A. has been appointed as the Master Servicer for the
Assigned Loans pursuant to the Pooling and Servicing Agreement.
Company shall deliver any reports, certificates and other
information required to be delivered under the Servicing Agreement,
as modified by this AAR Agreement, to:
Wells Fargo Bank, National
Association
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: DBALT 2006-AR5
Telecopier No.: (410)
715-2380
Recognition of Assignee
6.
From and after the Closing Date with
respect to the Assigned Loans, Company shall recognize
Assignee as owner of the Assigned Loans, and the Company
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 and, with
respect to the servicing of the Assigned Loans, the Master
Servicer. 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.
In addition, Company hereby acknowledges
that the Assigned Loans will be subject to the terms and conditions
of the Pooling and Servicing Agreement pursuant to which the Master
Servicer is required to monitor the performance by Company of its
servicing obligations under the Servicing Agreement, as modified by
this AAR Agreement, and has the right to enforce the obligations of
Company under the Servicing Agreement, as modified by this AAR
Agreement, with respect to the servicing of the Assigned Loans.
Such right will include, without limitation, the right to
terminate Company under the Servicing Agreement as provided
therein, the right to receive all remittances required to be made
by Company under the Servicing Agreement, the right to receive all
monthly reports and other data required to be delivered by Company
under the Servicing Agreement, the right to examine the books and
records of Company, indemnification rights, and the right to
exercise certain rights of consent and approval relating to actions
taken by Company. In connection therewith, the Company hereby
agrees to make all remittances required under the Servicing
Agreement with respect to the Assigned Loans to the Master Servicer
in accordance with the following wire transfer
instructions:
Wells Fargo Bank, N.A.
ABA #: 121000248
Account Name: SAS Clearing
Account #: 3970771416
For Further Credit to: DBALT 2006-AR5
Account # 50956100
Modification of the Servicing
Agreement
7.
Company and Assignor hereby amend the
Servicing Agreement with respect to the Assigned Loans as
follows:
(a)
The following definitions are added to
Section 1.01 of the Servicing Agreement:
Final Recovery
Determination : With
respect to any defaulted Mortgage Loan or any REO Property (other
than a Mortgage Loan or REO Property repurchased by the Servicer
pursuant to this Agreement), a determination made by the Servicer
that all Insurance Proceeds, Liquidation Proceeds and other
payments or recoveries which the Servicer, in its reasonable good
faith judgment, expects to be finally recoverable in respect
thereof have been so recovered. The Servicer shall maintain
records, prepared by a servicing officer of the Servicer, of each
Final Recovery Determination.
Monthly Advance
: The aggregate of the advances
made by the Servicer on any Remittance Date pursuant to Section
3.04 of the Servicing Agreement.
Nonrecoverable Monthly
Advance : Any Monthly
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 Servicer, will not, or, in the case of a proposed
Monthly 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.
Pooling and Servicing
Agreement : the Pooling
and Servicing Agreement, dated as of October 1, 2006, among the
Depositor, the Trustee, the Master Servicer and the Securities
Administrator.
Report Remittance Date
: Shall have the meaning assigned
thereto in Section 3.02 of this Agreement.
Securities Administrator
: Wells Fargo Bank, N.A., or any
successor thereto.
Servicing Fee Rate
: 0.375% per annum for each adjustable
rate Mortgage Loan and 0.25% per annum for each fixed-rate Mortgage
Loan.
Trustee : HSBC Bank USA, National Association, or any
successor thereto.
(b)
The definition of “Depositor”
in Section 1.01 of the Servicing Agreement is hereby deleted in its
entirety and replaced with the following:
Depositor : Deutsche Alt-A Securities, Inc.
(c)
The definition of “Determination
Date” in Section 1.01 of the Servicing Agreement is hereby
deleted in its entirety and replaced with the following:
Determination Date
: With respect to each Remittance
Date, the fifteenth (15th) day of the calendar month in which
su
