Exhibit 99.11(e)
EXECUTION COPY
SERVICING RIGHTS PURCHASE AGREEMENT
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This Servicing Rights Purchase Agreement ("Agreement") is entered
into as of April 17, 2006, by and between CENTRAL MORTGAGE COMPANY, an
Arkansas corporation (the "Servicer"), and XXXXXX XXXXXXX MORTGAGE CAPITAL
INC., a New York corporation (the "Seller").
WHEREAS, the Seller has purchased from various originators certain
conventional, residential, adjustable rate first lien mortgage loans described
on Exhibit A hereto (the "Mortgage Loans") on a servicing released basis,
which Mortgage Loans have an aggregate unpaid principal balance of
approximately $620,382,979.38 as of March 31, 2006.
WHEREAS, GMAC Mortgage Corporation ("GMAC" or "Interim Servicer")
is presently acting as servicer of the Mortgage Loans on behalf of the Seller
pursuant to the Servicing Agreement, dated as of May 20, 2005, and the First
Amended and Restated Servicing Agreement, dated as of January 1, 2006, each
between the Seller and GMAC and attached as Exhibit B hereto (in each case,
the "GMAC Servicing Agreement" or "Servicing Agreement");
WHEREAS, the Seller has sold the Mortgage Loans and assigned the
Servicing Agreement to certain trusts in connection with various
Securitization Transfers; and
WHEREAS, the Seller desires to sell, transfer and assign to the
Servicer all of its right, title and interest in and to the servicing rights
related to the Mortgage Loans (the "Servicing Rights") and the Servicer
desires to purchase and assume all right, title and interest in and to such
Servicing Rights from the Seller; and the parties desire to provide the terms
and conditions of such servicing by the Servicer.
NOW, THEREFORE, in consideration of the mutual premises and
agreements set forth herein and for other good and valuable consideration, the
receipt and the sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms
defined in the Flow Servicing Rights Purchase and Servicing Agreement, dated
as of July 25, 2005 (the "Purchase and Servicing Agreement"), between the
Seller and the Servicer, are used herein as therein defined.
2. Sale and Purchase of Servicing Rights.
The Seller, simultaneously with the execution and delivery of this
Agreement, does hereby sell, transfer, assign, set over and convey to the
Servicer from and after April 17, 2006 (the "Sale Date"), without recourse,
but subject to the terms of this Agreement and the applicable Servicing
Agreement, as amended, all right, title and interest of the Seller in and to
the Servicing Rights.
The Servicer does hereby assume from and after the Sale Date,
without recourse, but subject to the terms of this Agreement, all right, title
and interest of the Seller in and to the related Servicing Rights. In
addition, the Servicer assumes all obligations of the Seller and
related Interim Servicer with respect to the related Servicing Rights and
agrees to service the Mortgage Loans pursuant to the related Servicing
Agreement, as amended. In connection with the purchase of the Servicing Rights
hereunder, the Servicer agrees to execute an assignment and recognition
agreement substantially in the form attached hereto as Exhibit C.
3. Servicing Rights Purchase Price; Payment of Servicing Rights
Purchase Price.
In full consideration for the transfer and sale of Servicing
Rights on the Sale Date, Servicer shall pay to Seller an amount equal to the
related loan type applicable percentage established on the pricing matrix of
the Forward Bulk Servicing Offering attached as Exhibit D hereto (the
"Servicing Rights Purchase Price Percentage") multiplied by the aggregate
unpaid principal balance of the Mortgage Loans as of the Sale Date or other
mutually agreed cut-off date.
The Servicing Rights Purchase Price for the Servicing Rights
purchased on the Sale Date shall be paid by the Servicer to the Seller as
follows:
(i) an amount equal to fifty percent (50%) of the Servicing
Rights Purchase Price shall be paid by Servicer to Seller on the Sale Date
(such portion of the Servicing Rights Purchase Price to be based upon the
aggregate unpaid principal balance of the Mortgage Loans as of the Sale Date
or other mutually agreed cut-off date); and
(ii) the remainder of the Servicing Rights Purchase Price shall
be paid by the Servicer to the Seller no later than seven (7) Business Days
after the servicing transfer date, which is expected to be either June 1, 2006
or July 1, 2006 (the "Transfer Date") and receipt of the related Escrow
Payments.
4. Conveyance of Servicing Rights.
Upon the terms and subject to the conditions of this Agreement and
the related Servicing Agreement, as amended, Seller shall, on the Transfer
Date, sell and assign to Servicer, and Servicer shall purchase and assume from
Seller, (i) all beneficial right, title, interest and obligation of Seller in
and to the specific Servicing Rights to the Mortgage Loans identified on
Exhibit A hereto; and all rights related thereto, (ii) the Monthly Advances
and Servicing Advances, (iii) the Custodial Funds and Escrow Funds, (iv) the
Servicing Files, (v) the exclusive right to enter into arrangements that
generate, or to otherwise receive, Ancillary Income.
The Servicer shall reimburse the Seller or the applicable Interim
Servicer the amount of all unreimbursed Monthly Advances made by such Interim
Servicer prior to the Transfer Date in accordance with the Servicing Transfer
Instructions. From and after the Sale Date until the Transfer Date, the
Servicer shall be entitled to all Servicing Fees less $5.00 per month per
Mortgage Loan. Such Servicing Fees shall be paid to the Servicer five Business
Days after the May 18, 2006 remittance. From and after the Transfer Date, the
Servicer shall be entitled to all Servicing Fees to the extent such amounts
are payable to it as successor servicer pursuant to the terms of the Servicing
Agreement.
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5. Servicing Transfer Instructions.
In connection with the transfer of Servicing Rights from Seller to
Servicer pursuant to this Agreement, Seller and Servicer shall follow the
Servicing Transfer Instructions described in the Purchase and Servicing
Agreement. Seller shall use reasonable efforts to cause the related Interim
Servicer to comply with the Servicing Transfer Instructions and the servicing
transfer provisions set forth in each applicable Servicing Agreement and to
take all steps reasonably necessary or appropriate to effectuate and evidence
the transfer of the servicing of the related Mortgage Loans to Servicer.
6. Servicer to Act as Servicer.
From and after the Transfer Date, the Servicer hereby agrees to
service the Mortgage Loans pursuant to the terms of the Servicing Agreement,
as amended, and shall service and administer each Mortgage Loan and have the
power and authority to do any and all things in connection with such servicing
and administration which the Servicer may deem necessary or desirable
consistent with the terms of the related Servicing Agreement.
7. Representations and Warranties.
Each of the Seller and the Servicer hereby makes the
representations and warranties set forth in Articles X and XI of the Purchase
and Servicing Agreement on the date hereof as if such representations and
warranties were explicitly stated herein.
8. Servicer Information.
With respect to the sale contemplated hereby, the Servicer agrees,
that no later than June 14, 2006, the Servicer shall provide to the Seller, in
writing and in form and substance reasonably satisfactory to the Seller , the
information and materials specified on Exhibit F hereto. The Servicer shall
provide to the Seller (i) any and all information and appropriate verification
of the information on Schedule A which may be reasonably available to the
Servicer or its affiliates, whether through letters of its auditors and
counsel or otherwise, as the Purchaser or any such other participant shall
reasonably request; and (ii) such reasonable and additional representations,
warranties, covenants, opinions of counsel, letters from auditors, and
certificates of public officials or officers of the Servicer as are reasonably
believed necessary by the Purchaser or any such other participant.
Servicer hereby agrees to indemnify the Seller, Xxxxxx Xxxxxxx
Capital I Inc. and each Person who controls them and their respective present
and former directors, officers, employees and agents, and hold each of them
harmless from and against any losses, damages, penalties, fines, forfeitures,
legal fees and expenses and related costs, judgments, and any other costs,
fees and expenses that each of them may sustain arising out of or based upon
any untrue statement or alleged untrue statement of a material fact contained
in the information provided by the Servicer as required by the preceding
paragraph regarding the Servicer or the Servicer's servicing practices set
forth in any offering document or otherwise filed with the Securities and
Exchange Commission.
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9. Indemnification.
(a) The Servicer agrees to indemnify and hold harmless the
Seller and its affiliates and their respective present and former directors,
officers, employees and agents and each person, if any, who controls the
Seller or such affiliate within the meaning of either Section 15 of the
Securities Act of 1933, as amended (the "1933 Act"), or Section 20 of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), against any and
all losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the 1933 Act, the 1934 Act or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based in whole or in part upon any untrue
statement or alleged untrue statement of a material fact contained in the
Servicer Information or any omission or alleged omission to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading
and agrees to reimburse the Seller or such affiliates and each such officer,
director, employee, agent and controlling person promptly upon demand for any
legal or other expenses reasonably incurred by any of them in connection with
investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that Servicer shall be liable in any such case only to the extent
that any such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with the Servicer
Information. The foregoing indemnity is in addition to any liability which
Servicer may otherwise have to the Seller, its affiliates or any such
director, officer, employee, agent or controlling person of the Seller or its
affiliates.
(b) Promptly after receipt by any indemnified party under this
Section 9 of notice of any claim or the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
any indemnifying party under this Section 9, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 9 except to the extent it has
been materially prejudiced by such failure; and provided, further, however,
that the failure to notify any indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 9.
If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party,
to assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, except as
provided in the following paragraph, the indemnifying party shall not be
liable to the indemnified party under this Section 9 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate
counsel in any such action and to participate in the defense thereof, but the
fees and expenses of such counsel shall be
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at the expense of such indemnified party unless: (i) the employment thereof
has been specifically authorized by the indemnifying party in writing; (ii)
such indemnified party shall have been advised by such counsel that there may
be one or more legal defenses available to it which are different from or
additional to those available to the indemnifying party and in the reasonable
judgment of such counsel it is necessary or appropriate for such indemnified
party to employ separate counsel; or (iii) the indemnifying party has failed
to assume the defense of such action and employ counsel reasonably
satisfactory to the indemnified party, in which case, if such indemnified
party notifies the indemnifying party in writing that it elects to employ
separate counsel at the expense of the indemnifying party, the indemnifying
party shall not have the right to assume the defense of such action on behalf
of such indemnified party, it being understood, however, the indemnifying
party shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys (in addition to
local counsel) at any time for all such indemnified parties.
Each indemnified party, as a condition of the indemnity agreements
contained in this Section 9, shall cooperate with the indemnifying party in
the defense of any such action or claim. No indemnifying party shall be liable
for any settlement of any such action effected without its written consent
(which consent shall not be unreasonably withheld), but if settled with its
written consent or if there be a final judgment for the plaintiff in any such
action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for reasonable fees and expenses of counsel, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of
such settlement.
(c) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party, then the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages
or liabilities, in such proportion as is appropriate to reflect the relative
fault of the indemnifying party and the indemnified party, respectively, in
connection with the statements or omissions that result in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnified party and indemnifying
party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
such parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission and any other
equitable considerations.
(d) The indemnity and contribution agreements contained in this
Section 9 and the representations and warranties set forth in Section 7 shall
remain operative and in full
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force and effect regardless of (i) any termination of this Agreement or (ii)
any investigation made by the Seller its affiliates, directors, officers,
employees or agents or any person controlling the Seller or any such
affiliate, and (iii) acceptance of and payment for the Servicing Rights.
10. Closing Documents.
The Closing Documents for the Servicing Rights being sold
hereunder shall consist of fully executed originals of the following
documents:
a) this Agreement;
b) a Collection Account Letter Agreement, as required under the
Servicing Agreement; and
c) a Escrow Account Letter Agreement, as required under the
Servicing Agreement.
11. Notices.
All notices, requests, demands and other communications which are
required or permitted to be given under this Agreement shall be in writing and
shall be deemed to have been duly given upon the delivery or mailing thereof,
as the case may be, sent by registered or certified mail, return receipt
requested:
a. If to Seller to:
Xxxxxx Xxxxxxx Mortgage Capital Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxxx - Whole Loan Operations Manager
Fax: 000-000-0000
Email: xxxxx.xxxxxxxxxx@xxxxxxxxxxxxx.xxx
with copies to
Attention: Xxxx Xxxxxxxx
Xxxxxx Xxxxxxx - Servicing Oversight
0000 X-Xxx Xxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Fax: 000-000-0000
Email: xxxx.xxxxxxxx@xxxxxxxxxxxxx.xxx
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Attention: Xxxxx Xxxxxx
Xxxxxx Xxxxxxx - RFPG
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: 000-000-0000
Email: xxxxx.xxxxxx@xxxxxxxxxxxxx.xxx
b. If to Servicer to:
Central Mortgage Company
000 Xxxx Xxxxxx Xxxx - Xxxxx 0
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxx Xxx Xxxxxx, Servicing Manager
Both the Seller and the Servicer reserve the right to change the
mailing address by written notice.
12. Entire Agreement; Amendment.
This Agreement constitutes the entire Agreement between the
parties with respect to the subject matter hereof. This Agreement may be
amended and any provision hereof waived, but, only in writing signed by the
party against whom such enforcement is sought.
13. Counterparts. This Agreement may be executed by one or more
of the parties hereto on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
14. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS
AND REMEDIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH THE SUBSTANTIVE
LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES), EXCEPT TO THE EXTENT PREEMPTED BY FEDERAL LAW.
15. No Solicitation.
From and after the Transfer Date, the Seller and Servicer agree
that they will not take any action or permit or cause any action to be taken
by any of their agents or affiliates, or by any independent contractors, to
personally, by telephone or mail, solicit the borrower or obligor under any
Mortgage Loan to refinance a Mortgage Loan, in whole or in part, without (i)
the prior written consent of the other party; or (ii) written notice from the
related borrower or obligor under a Mortgage Loan of such party's intention to
refinance such Mortgage Loan. Notwithstanding the foregoing, it is understood
and agreed that promotions undertaken by the Seller or Servicer or any
affiliate of either party which are directed to the general public at large,
including, without limitation, mass mailing based on commercially acquired
mailing lists, newspaper, radio and television advertisements shall not
constitute solicitation under this Section 15.
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16. Waiver of Trial by Jury.
THE SERVICER AND THE SELLER EACH KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
17. Submission to Jurisdiction; Waivers.
The Servicer and the Seller hereby irrevocably and
unconditionally:
i. SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF
ANY JUDGMENT IN RESPECT THEREOF, TO THE EXCLUSIVE GENERAL JURISDICTION OF THE
COURTS OF THE STATE OF DELAWARE, THE FEDERAL COURTS OF THE UNITED STATES OF
AMERICA FOR THE DISTRICT OF DELAWARE, AND APPELLATE COURTS THEREOF;
ii. CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT
IN SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT
IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN
ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN
INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
iii. AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR
CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID,
TO ITS ADDRESS SET FORTH HEREIN OR AT SUCH OTHER ADDRESS OF WHICH THE SELLER
SHALL HAVE BEEN NOTIFIED; AND
iv. AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered as of the day and year first above written.
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
(Seller)
By: ____________________________________
Name:
Title:
CENTRAL MORTGAGE COMPANY
(Servicer)
By: ____________________________________
Name:
Title:
EXHIBIT A
Mortgage Loans
EXHIBIT B
GMAC Servicing Agreement and amendments
EXHIBIT C
Form of Assignment and Recognition Agreement
EXHIBIT D
Forward Bulk Servicing Rights Offering Bid (including Pricing Matrix)
EXHIBIT F
Information to be Provided by Servicer
[Note: Information below derived from ASF Model Language]
If so requested by the Seller, the Servicer shall provide such
information regarding the Servicer, as servicer of the Mortgage Loans, and
each Subservicer (each of the Servicer and each Subservicer, for purposes of
this paragraph, a "Servicer"), as is requested for the purpose of compliance
with Items 1108, 1117 and 1119 of Regulation AB. Such information shall
include, at a minimum:
A. the Servicer's form of organization;
B. a description of how long the Servicer has been servicing
residential mortgage loans; a general discussion of the Servicer's
experience in servicing assets of any type as well as a more
detailed discussion of the Servicer's experience in, and
procedures for, the servicing function it will perform under this
Agreement and any Reconstitution Agreements; information regarding
the size, composition and growth of the Servicer's portfolio of
residential mortgage loans of a type similar to the Mortgage Loans
and information on factors related to the Servicer that may be
material, in the good faith judgment of the Purchaser or any
Depositor, to any analysis of the servicing of the Mortgage Loans
or the related asset-backed securities, as applicable, including,
without limitation:
(1) whether any prior securitizations of mortgage
loans of a type similar to the Mortgage Loans involving the
Servicer have defaulted or experienced an early amortization
or other performance triggering event because of servicing
during the three-year period immediately preceding the
related Securitization Transaction;
(2) the extent of outsourcing the Servicer utilizes;
(3) whether there has been previous disclosure of
material noncompliance with the applicable servicing
criteria with respect to other securitizations of
residential mortgage loans involving the Servicer as a
servicer during the three-year period immediately preceding
the related Securitization Transaction;
(4) whether the Servicer has been terminated as
servicer in a residential mortgage loan securitization,
either due to a servicing default or to application of a
servicing performance test or trigger; and
(5) such other information as the Purchaser or any
Depositor may reasonably request for the purpose of
compliance with Item 1108(b)(2) of Regulation AB;
C. a description of any material changes during the three-year period
immediately preceding the related Securitization Transaction to
the Servicer's policies or procedures with respect to the
servicing function it will perform under this Agreement and any
Reconstitution Agreements for mortgage loans of a type similar to
the Mortgage Loans;
D. information regarding the Servicer's financial condition, to the
extent that there is a material risk that an adverse financial
event or circumstance involving the Servicer could have a material
adverse effect on the performance by the Company of its servicing
obligations under this Agreement or any Reconstitution Agreement;
E. information regarding advances made by the Servicer on the
Mortgage Loans and the Servicer's overall servicing portfolio of
residential mortgage loans for the three-year period immediately
preceding the related Securitization Transaction, which may be
limited to a statement by an authorized officer of the Servicer to
the effect that the Servicer has made all advances required to be
made on residential mortgage loans serviced by it during such
period, or, if such statement would not be accurate, information
regarding the percentage and type of advances not made as
required, and the reasons for such failure to advance;
F. a description of the Servicer's processes and procedures designed
to address any special or unique factors involved in servicing
loans of a similar type as the Mortgage Loans;
G. a description of the Servicer's processes for handling
delinquencies, losses, bankruptcies and recoveries, such as
through liquidation of mortgaged properties, sale of defaulted
mortgage loans or workouts;
H. information as to how the Servicer defines or determines
delinquencies and charge-offs, including the effect of any grace
period, re-aging, restructuring, partial payments considered
current or other practices with respect to delinquency and loss
experience; and
I. a description of any material legal or governmental proceedings
pending (or known to be contemplated) against the Servicer; and
J. a description of any affiliation or relationship between the
Servicer and any of the following parties to a Securitization
Transaction, as such parties are identified to the Servicer by the
Purchaser or any Depositor in writing in advance of such
Securitization Transaction:
(1) the sponsor;
(2) the depositor;
(3) the issuing entity;
(4) any servicer;
(5) any trustee;
(6) any originator;
F-2
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material transaction party.
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