ASSIGNMENT, ASSUMPTION AND RECOGNITION
AGREEMENT
This Assignment, Assumption and
Recognition Agreement (this “AAR Agreement”) is made
and entered into as of January 1, 2007 (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”), PHH Mortgage Corporation (the
“Servicer”) and Bishop’s Gate Residential
Mortgage Trust (the “Company”), having an address at
3000 Leadenhall Road
Mt. Laurel, NJ 08054, 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 (the “ Assigned Loans ”) listed
on Attachment 1 annexed hereto which were purchased by the
Assignor from the Servicer and the Company pursuant to the Mortgage
Loan Flow Purchase, Sale & Servicing Agreement, dated as of
December 1, 2005 among the Assignor, the Servicer and the Company
(the “ Servicing Agreement ”) and which are now
serviced by the Servicer for the Assignor and its successors and
assigns pursuant to the Servicing Agreement, shall be subject to
the terms of this AAR Agreement. Capitalized terms used
herein but not defined shall have the meanings ascribed to them in
the Servicing Agreement. The Assigned Loans are being
securitized pursuant to the Pooling and Servicing Agreement, dated
as of January 1, 2007 (the “ Pooling and Servicing
Agreement ”) among the Assignee, as depositor, HSBC Bank
USA, National Association, as trustee (the “ Trustee
”), the Master Servicer and securities
administrator.
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 and the Assignee hereby assumes all of the
Assignor’s obligations with respect to the Servicing
Agreement to the extent of the Assigned Loans from and after the
date hereof. 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 .
Representations, Warranties and
Covenants
2.
Assignor warrants and represents to, and
covenants with, Assignee, the Servicer and the 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, Assignee shall have
good title to each and every Assigned Loan, as well as any and all
of Assignee’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 charter
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, Servicer 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;
(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; and
(f)
Assignor hereby covenants to promptly
deliver to the Assignee or its designee any Assigned Loan document
received by the Assignor from the Servicer with respect to the
Assigned Loans.
3.
Assignee warrants and represents to, and
covenants with, Assignor, the Servicer and the 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 organization 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 charter
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, Servicer 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 Assignor all of
Assignor’s obligations thereunder but solely with respect to
such Assigned Loans.
4.
Servicer warrants and represents to, and
covenants with, Assignor, and Assignee, 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)
Servicer 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 with respect to the Assigned
Loans;
(c)
Servicer 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 Servicer’s
business and will not conflict with, or result in a breach of, any
of the terms, conditions or provisions of Servicer’s charter
or by-laws or any legal restriction, or any material agreement or
instrument to which Servicer 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 Servicer or its property is
subject. The execution, delivery and performance by Servicer
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 Servicer. This AAR Agreement
has been duly executed and delivered by Servicer, and, upon the due
authorization, execution and delivery by Assignor, Assignee and
Company will constitute the valid and legally binding obligation of
Servicer, enforceable against Servicer 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 Servicer
in connection with the execution, delivery or performance by
Servicer of this AAR Agreement, or the consummation by it of the
transactions contemplated hereby;
(e)
Pursuant to Section 13 of the Servicing
Agreement, the Servicer hereby restates the representations and
warranties made by it in Article III of the Servicing Agreement, as
such representations and warranties are amended pursuant to Section
8 of this AAR Agreement, with respect to itself as seller and
servicer and the Assigned Loans 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 of the remedies under the Servicing Agreement;
and
(f)
Servicer shall establish a Collection
Account and an Escrow Account under the Servicing Agreement with
respect to the Assigned Loans separate from the Collection Account
and the Escrow Account previously established under the Servicing
Agreement in favor of Assignor, and shall remit collections
received on the Assigned Loans to such accounts. The Collection
Account and Escrow Account shall be entitled “PHH Mortgage
Corporation, as servicer in trust for PHH Alternative Mortgage
Trust, Series 2007-1”;.
5.
Company warrants and represents to, and
covenants with, Assignor and Assignee, 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 formation, and has all requisite power and authority to perform
its obligations under the AAR Agreement;
(c)
Company has full entity 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 organizational
document 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, Servicer 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)
Pursuant to Section 13 of the Servicing
Agreement, the Company hereby restates the representations and
warranties made by it in Article III of the Servicing Agreement, as
such representations and warranties are amended pursuant to Section
8 of this AAR Agreement, with respect to itself as seller and the
Assigned Loans 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 of 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 Servicer 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 Servicer and to the
enforcement or exercise of any right or remedy against the Servicer
by Assignee. 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 date hereof, Servicer
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, the Servicer 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
the Servicer 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.
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 related certificateholders.
Modification of Servicing
Agreement
8.
The Servicer, Company and Assignor hereby
amend the Servicing Agreement with respect to the Assigned Loans as
follows:
(a)
The definition of “Business
Day” in Article I of the Servicing Agreement is hereby
amended by adding “, the State of Maryland and the State of
Minnesota” after the word “New York”.
(b)
The definition of “Cut-off
Date” in Article I of the Servicing Agreement is hereby
amended by deleting such definition in its entirety and replacing
it with the following:
“ Cut-off Date : January
1, 2007.”
(c)
The definition of “Eligible
Account” in Article I of the Servicing Agreement is hereby
amended by deleting such definition in its entirety and replacing
it with the following:
“ Eligible Account :
Either (i) an account or accounts maintained with a federal
or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of
a depository institution or trust company that is the principal
subsidiary of a holding company, the short-term unsecured debt
obligations of such holding company of which) are rated A-1 by
S&P, Prime-1 by Moody’s or [___] by Fitch (or a
comparable rating if another rating agency is specified by the
Purchaser by written notice to the Seller) at the time any amounts
are held on deposit therein, (ii) an account or accounts the
deposits in which are fully insured by the FDIC or (iii) a trust
account or accounts maintained with a federal or state chartered
depository institution or trust company acting in its fiduciary
capacity. Eligible Accounts may bear
interest.”
(d)
The following definition of
“Opinion of Counsel” shall be added to Article I of the
Servicing Agreement:
“ Opinion of Counsel :
A written opinion of counsel, who may be salaried counsel for
the Person on behalf of whom the opinion is being given, reasonably
acceptable to each Person to whom such opinion is
addressed.”
(e)
The definition of “Negative
Amortization” shall be deleted from Article I of the
Servicing Agreement.
(f)
The following definition of “REMIC
Provisions” shall be added to Article I of the Servicing
Agreement:
“ REMIC Provisions :
Provisions of the federal income tax law relating to REMICs, which
appear in Sections 860A through 860G of the Code, and related
provisions, and proposed, temporary and final regulations and
published rulings, notices and announcements promulgated
thereunder, as the foregoing may be in effect from time to
time.”
(g)
The following definition of
“Servicing Criteria” shall be added to Article I of the
Servicing Agreement:
“ Servicing Criteria
”: The “servicing criteria” set forth in
Item 1122(d) of Regulation AB, as such may be amended from time to
time.
(h)
The definition of “Scheduled
Principal Balance” is hereby amended by deleting the words
“, plus (iii), the cumulative amount of any Negative
Amortization, if any”.
(i)
The definition of “Unpaid Principal
Balance” is hereby amended by deleting the words
“including any cumulative Negative Amortization” at the
end of such definition.
(j)
Section 5.10 of the Servicing Agreement
is hereby amended by deleting the words “including the
maximum amount of Negative Amortization” in subsection (b)(1)
of such section.
(k)
The following provision shall be added as
Section 5.20 of the Servicing Agreement:
“ Compliance with REMIC
Provisions . If a REMIC election has been made with
respect to the arrangement under which the Mortgage Loans and REO
Property are held, the Servicer shall not take any action, cause
the REMIC to take any action or fail to take (or fail to cause to
be taken) any action that, under the REMIC Provisions, if taken or
not taken, as the case may be, could (i) endanger the status of the
REMIC as a REMIC or (ii) 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) unless the Seller has received an
Opinion of Counsel (at the expense of the party seeking to take
such action) to the effect that the contemplated action will not
endanger such REMIC status or result in the imposition of any such
tax.”
(l)
Section 3.03(4) of the Servicing
Agreement is hereby amended by deleting such section in its
entirety and replacing it with the following:
(4) Payments Current .
No Monthly Payment required to be made under any Mortgage
Loan has been contractually delinquent by one month or more at any
time preceding the date such Mortgage Loan was purchased by the
Purchaser;
(m)
Section 3.03(8) of the Servicing
Agreement is hereby amended by deleting such section in its
entirety and replacing it with the following:
(8) Hazard Insurance .
The buildings and improvements on the Mortgaged Property are
insured against loss by fire and hazards of extended coverage
(excluding earthquake insurance) in an amount which is at least
equal to the lesser of (i) the amount necessary to compensate for
any damage or loss to the improvements which are a part of such
property on a replacement cost basis or (ii) the outstanding
principal balance of the Mortgage Loan. To the best of the
Purchaser’s knowledge, if the Mortgaged Property is in an
area identified on a flood hazard map or flood insurance rate map
issued by the Federal Emergency Management Agency as having special
flood hazards (and such flood insurance has been made available), a
flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration is in effect.
All such insurance policies contain a standard mortgagee clause
naming the originator of the Mortgage Loan, its successors and
assigns as mortgagee and the Purchaser has not engaged in any act
or omission which would impair the coverage of any such insurance
policies. Except as may be limited by applicable law, the Mortgage
obligates the Mortgagor thereunder to maintain all such insurance
at the Mortgagor's cost and expense, and on the Mortgagor's failure
to do so, authorizes the holder of the Mortgage to maintain such
insurance at Mortgagor's cost and expense and to seek reimbursement
therefor from the Mortgagor;
(n)
Section 3.03(
