Exhibit 99.8d
EXECUTION COPY
SERVICING RIGHTS PURCHASE AGREEMENT
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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