EXECUTION COPY
ASSIGNMENT, ASSUMPTION AND RECOGNITION
AGREEMENT
This Assignment, Assumption and
Recognition Agreement (the “AAR Agreement”) is made and
entered into as of September 29, 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 Corporation, 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 (the
“Assigned Loans”), which are now serviced by the
Company on behalf of the Assignor and its successors and assigns
pursuant to the Servicing Agreement, dated as of April 1, 2004,
between the Assignor and the Company, as amended by Amendment
Number One, dated as of January 31, 2006, the “Servicing
Agreement”), shall be sold by the Assignor to the Assignee
pursuant to the Mortgage Loan Purchase Agreement, dated as of
September 29, 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-B Securities Mortgage Loan Trust, Series 2006-AB4
Mortgage Pass-Through Certificates (the
“Certificateholders”) and Financial Security Assurance,
Inc. (the “Insurer”) pursuant to the Pooling and
Servicing Agreement, dated as of September 1, 2006 (the
“Pooling and Servicing Agreement”) among the Assignee,
as depositor, the Trustee, as trustee and Wells Fargo Bank, N.A.,
as master servicer (the “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 .
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 the representations
and warranties contained in Section 3.01 of the Servicing Agreement
and the Assignor is retaining the right to enforce the
representations and warranties set forth in Article III of the
Servicing Agreement against the Company.
Representations, Warranties and
Covenants
Representations, Warranties and
Covenants
2. Assignor warrants and represents to
Assignee and Company as of the date hereof:
(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 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 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 date
hereof:
(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 date hereof,
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 date hereof:
(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 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) 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 “GMAC Mortgage Corporation, as Servicer in trust for
Deutsche Alt-B Securities Mortgage Loan Trust, Series
2006-AB4”.
Recognition of Assignee
.
5. From and after the date hereof,
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 and the
Insurer. 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 and the Insurer. 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
6. The Company and Assignor hereby modify
the Servicing Agreement with respect to the Assigned Loans as
follows:
(a) The following definitions in Section
1.01 of the Servicing Agreement are hereby modified by deleting
each definition in its entirety and replacing it with the
following:
Business Day : Any day other than (i) a Saturday or Sunday, or
(ii) a legal holiday in the States of New York, Maryland,
Minnesota, Iowa or the Commonwealth of Pennsylvania, or (iii) a day
on which banks in the States of New York, Iowa, Maryland or
Pennsylvania are authorized or obligated by law or executive order
to be closed.
Master Servicer
: Wells Fargo Bank, N.A., its successors
and assigns.
Mortgage Loan Remittance
Rate : With respect to each
Mortgage Loan, the annual rate of interest remitted to the Owner,
which shall be equal to the related Mortgage Interest Rate minus
(i) the Servicing Fee Rate and (ii) the Lender-Paid Mortgage
Insurance Rate, if applicable.
Servicing Fee Rate
: The Servicing Fee Rate shall be 0.25%
per annum.
(b) The following definitions in Section
1.01 are added to the Servicing Agreement:
Principal Prepayment Period
: The month preceding the month in which
the related Remittance Date occurs.
Trustee : HSBC Bank USA, National Association, its successors
and assigns.
(c) The Servicing Agreement is amended by
deleting the definitions of “Excess Servicing Fee” and
“Excess Servicing Fee Rate” in Section 1.01
thereof.
(d) The definition of “Servicing
Rights” in Section 1.01 of the Servicing Agreement is
modified by deleting the phrase “including without limitation
any late fees, assumption fees, penalties and Prepayment Charges to
the extent set forth in the related Confirmation” in subpart
(b) and replacing such phrase with “including without
limitation any late fees, assumption fees and
penalties”.
(e) Section 4.01 of the Servicing
Agreement is modified by deleting the phrase “unless the
Servicer has obtained the prior written consent of the
Owner,” from the second paragraph thereof.
(f) Section 4.01 of the Servicing
Agreement is modified by deleting the third paragraph 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 Servicer may not waive
any Prepayment Charge or portion thereof required by the terms of
the related Mortgage Note unless (i) the Servicer 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 Servicer
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 Servicer 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
Servicer, other than as provided above, the Servicer 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) Section 4.04 of the Servicing
Agreement is modified by deleting the first paragraph in its
entirety and replacing it with the following:
“The Servicer shall segregate and
hold all funds collected and received pursuant to each Mortgage
Loan separate and apart from any of its own funds and general
assets and shall establish and maintain one or more Custodial
Accounts. Each Custodial Account shall be established with a
Qualified Depository. To the extent such funds are not
deposited in a Custodial Account, such funds may be invested in
Permitted Investments for the benefit of the Owner (with any income
earned thereon for the benefit of the Servicer); provided, however,
that any such funds which are invested in such Permitted
Investments shall be deemed to be deposited in the Custodial
Account for the purpose of calculating remittances pursuant to
Section 5.01 of this Agreement. All investments pursuant to this
Section 4.04 shall be in one or more Permitted Investments bearing
interest or sold at a discount, and maturing, unless payable on
demand, no later than the Business Day immediately preceding the
Remittance Date. All income and gain realized from the investment
of funds deposited in the Custodial Account held by or on behalf of
the Servicer shall be for the benefit of the Servicer and shall be
subject to its withdrawal in accordance with Section 4.05. The
Servicer shall deposit in the Custodial Account the amount of any
loss incurred in respect of any such Permitted Investment
immediately upon realization of such loss. Funds deposited in
the Custodial Account may be drawn on by the Servicer in accordance
with Section 4.05. The creation of any Custodial Account shall be
evidenced by a letter agreement in the form shown in Exhibit B
hereto. The original of such letter agreement shall be
furnished to the Owner on the initial Servicing Transfer Date.
The Servicer shall give notice to the Owner prior to any
change of the location of the Custodial Account. The Servicer
acknowledges and agrees that the Servicer shall bear any losses
incurred with respect to Permitted Investments. The amount of
any such losses shall be immediately deposited by the Servicer in
the Custodial Account, as appropriate, out of the Servicer’s
own funds, with no right to reimbursement
therefor.”
(h) Section 4.05(ii) of the Servicing
Agreement is modified by deleting “and Excess Servicing Fee
if applicable” from the first parenthetical.
(i) Section 4.05(iv) of the Servicing
A
