EXHIBIT 10.09
SERVICING AGREEMENT
(METWEST / OSL)
THIS AGREEMENT, entered into between Old Standard Life Insurance
Company, an Idaho corporation ("Old Standard") and Metwest Mortgage Services,
Inc., a Washington corporation (the "Servicer").
WITNESSETH
WHEREAS, Old Standard and certain trusts for which Old Standard is the
beneficial owner (Old Standard together with such trusts, the "Company") own
certain Mortgage Loans, Receivables, and REO Property, all as defined below.
WHEREAS, Old Standard desire that the Servicer service, and the
Servicer desires to service, certain of the Mortgage Loans, Receivables, and REO
Property owned by the Company.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, it is agreed by and between Old Standard and Servicer as
follows:
1. DEFINED TERMS. Whenever used in this Agreement and unless otherwise
defined herein, the following words and phrases, unless the context otherwise
requires, shall have the following meanings:
"Effective Date" means January 1, 2001.
"File" means any servicing file held by Servicer on behalf of the
Company which may include any of the following documents: note, mortgage, deed
of trust, land sale contracts or memorandum of land sale contracts, title
policies, purchase and sale agreements, annuity policies, settlement agreements
and court orders.
"FNMA" means the Federal National Mortgage Association, or any
successor thereto.
"Land Sale Contract" means a contract, together with all amendments and
modifications thereto, for the sale of real estate and the improvements thereon
pursuant to which the Mortgagor promises to pay the amount due thereon to the
holder thereof and pursuant to which fee title to the related Mortgaged Property
is held by such holder until the Mortgagor has made all of the payments required
pursuant to such contract, at which time fee title is conveyed to the Mortgagor.
"Lotteries" means the lotteries and loans secured by payments on
lotteries owned by the Company.
"Mortgage" means either the mortgage, deed of trust or other security
instrument creating a lien on a Mortgaged Property (other than a Mortgaged
Property that is the subject of a Land Sale Contract) securing a Mortgage Loan
(other than a Mortgage Loan that is a Land Sale Contract) including all required
riders, or creating a lien on a leasehold interest.
"Mortgage Loan" means any of the mortgage loans or partial interests
therein secured by a Mortgage and Land Sale Contracts or partial interests
therein owned by the Company, including those mortgage loans for which payments
are received and documents are held by outside escrow companies.
"Mortgaged Property" means the real property securing or the subject of
a Mortgage Loan.
"Mortgagor" means the obligor on the Mortgage Note or Land Sale
Contract.
"Other Assets" means any asset of the Company, other than Mortgage
Loans, Structured Settlement and Lotteries, which the Company requests from time
to time that the Servicer service on behalf of the Company, including but not
limited to farm subsidy payments.
"Receivables" means the Lotteries, Structured Settlements and Other
Assets owned by the Company.
"REO Property" means the real property (and any improvements thereon)
owned by the Company and acquired through either foreclosure of real property, a
deed-in-lieu of foreclosure, or forfeiture of a land sale contract.
"Serviced Assets" means any Mortgage Loan, Receivables and/or REO
Property covered by this Agreement.
"Servicing Fee" has the meaning ascribed to it in Section 2 hereof.
"Structured Settlements" means the right of the Company to receive
payments under settlement agreements, annuity policies and/or life insurance
policies or similar agreement which the Company or a predecessor in interest has
acquired from a claimant.
2. SERVICING.
(a) From and after the Effective Date, Servicer agrees to service the
Serviced Assets in accordance with the terms and provisions of this Agreement.
Servicer will receive such compensation as Company and Servicer shall agree from
time to time, which agreements shall be attached to this and made a part of this
Agreement by this reference. Initially, Servicer shall receive as compensation
for servicing the Mortgage Loans the amount as set forth on Exhibit A hereto. As
compensation for servicing the Receivables Servicer shall receive the amount set
forth on Exhibit B hereto. As compensation for servicing the REO Property
Servicer shall receive the amount set forth on Exhibit C hereto.
Notwithstanding anything to the contrary in this Agreement, the fees
for services performed as set forth in this Agreement will be fair and
reasonable, and expenses incurred and payments received will be allocated to
Company in accordance with statutory accounting principles. The fees will be
charged initially at an estimate of cost, which fees will be adjusted to reflect
actual cost, as determined on an annual basis. Accounts shall be rendered at
quarterly intervals or more often and shall be settled within 30 days
thereafter. The obligations of each party under this Agreement to transfer
payments to another party may be offset by reciprocal obligations of such other
party so that only the net amount of such servicing payments shall be required
to be transferred. Where the difference between estimates and actual costs is
determined to be less than 3%, no actual payment of the difference will be
necessary. However, this difference between the estimates and costs shall be an
adjustment to the calculation of the new estimate. Where the difference between
the estimates and actual costs is determined to be greater than 3%, the account
shall be settled within 30 days thereafter.
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(b) The Servicer shall diligently manage, service, make collections on,
and otherwise administer the Serviced Assets on behalf of the Company (as
determined by the Servicer in its good faith and reasonable judgment) in
accordance with applicable law, the terms of this Agreement and the terms of the
respective Mortgage Loans and Receivables and, to the extent consistent with the
foregoing, in a manner consistent with the ordinary practices of prudent
servicers servicing mortgage loans, receivables and REO properties comparable to
the Serviced Assets, and with a view to the maximization of timely recovery of
principal and interest on the Mortgage Loans, maximizing of timely payment on
the Receivables, and maximizing the sale or lease proceeds of REO Property, but
without regard to: (a) any relationship that the Servicer or any affiliate of
the Servicer may have with any party related to the Serviced Asset, and (b) the
Servicer's right to receive compensation for its services hereunder or with
respect to any particular transaction.
(c) Subject only to the above-described servicing standards and the
terms of this Agreement and of the respective Mortgage Loans and Receivables,
the Servicer shall have full power and authority, acting alone and/or through
one or more subservicers, to do or cause to be done any and all things in
connection with such servicing and administration which it may deem necessary or
desirable, without the consent or approval of the Company, unless any such
consent or approval is expressly required hereunder or under applicable law.
Without limiting the generality of the foregoing, the Servicer, in its own name,
is hereby authorized and empowered by the Company and obligated to execute and
deliver, on behalf of the Company, any and all financing statements,
continuation statements and other documents or instruments necessary to maintain
the lien created by any Mortgage or relating to any Receivable, certificates of
title, or other security document in the related File relating to the secured
property including the related Mortgaged Property and related collateral (it
being herein acknowledged that the Servicer's obligation to file financing
statements and continuation statements is limited to those Mortgage Loans and
Receivables for which an effective financing statement or continuation statement
is on file in the appropriate public filing office as determined by the Servicer
based solely upon a review of the Files and related documents in its
possession); subject to the provisions contained herein, any and all
modifications, waivers, amendments or consents to or with respect to any
documents contained in the related File; and any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge, sale
and lease agreements related to the REO Properties, and all other comparable
instruments, with respect to the Serviced Assets. Company shall furnish, or
cause to be furnished, to the Servicer any powers of attorney and other
documents necessary or appropriate to enable the Servicer to carry out its
servicing and administrative duties hereunder.
(d) The relationship of the Servicer to the Company under this
Agreement is intended by the parties to be that of an independent contractor and
not that of a joint venturer, partner or agent.
(e) Nothing in this Agreement shall preclude the Servicer, in its
individual capacity, from entering into other loans or other financial
transactions with any mortgagor under a Mortgage Loan, any purchaser or other
individual with respect to an REO Property, or any seller, claimant or other
individual with respect to a Receivable.
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3. SUBSERVICING ARRANGEMENTS. The Servicer may enter into subservicing
agreements for the servicing and administration of all or a part of Serviced
Assets, provided that, in each case, the subservicing agreement: (a) is
consistent with this Agreement in all material respects and requires the
subservicer to comply with all of the applicable conditions of this Agreement.
References in this Agreement to actions taken or to be taken by the Servicer
include actions taken or to be taken by a subservicer on behalf of the Servicer.
4. COLLECTION OF CERTAIN PAYMENTS.
(a) The Servicer shall make reasonable efforts to collect all payments
called for under the terms and provisions of the Serviced Assets, and shall, to
the extent such procedures shall be consistent with this Agreement, follow such
collection and payment allocation procedures as it follows with respect to
mortgage loans, receivables and REO properties in its own servicing portfolio
comparable to the Serviced Assets.
(b) The Servicer shall remit to the Company on a daily basis within ten
(10) business days of receipt all amounts received by it which are related to
the Serviced Assets except amounts required to be deposited in an Escrow Account
pursuant to Section 8(1) hereof. Proceeds received with respect to individual
Serviced Assets from any title or other insurance policy shall also be remitted
within ten (10) business days of receipt; provided that, in the discretion of
the Servicer exercised in accordance with the servicing standards set forth in
Section 2 hereof, the Servicer may endorse to the Mortgagor any such proceeds,
other than those received from a title policy, with respect to a Mortgage Loan.
5. DEFAULTED MORTGAGE LOANS AND RECEIVABLES.
(a) The Servicer shall foreclose upon or otherwise comparably convert
to ownership properties securing the Mortgage Loans as come into and continue in
default and as to which no satisfactory arrangements can be made for collection
of delinquent payments as permitted under this Agreement. In connection with
such foreclosure or other conversion, the Servicer shall follow such practices
and procedures as it shall deem necessary or advisable and as shall be normal
and usual in its general mortgage servicing activities. The Servicer shall be
responsible for all other costs and expenses incurred by it in any such
proceedings; provided, however, that the Servicer shall be entitled to
reimbursement from the Company for its costs incurred in connection with legal
and other expenses incurred in connection with foreclosure proceedings.
Notwithstanding the foregoing, in any case in which Mortgaged Property shall
have suffered damage, the Servicer shall not be required to expend its own funds
in connection with any foreclosure or toward the restoration of such Mortgaged
Property unless it shall determine (a) that such restoration and/or foreclosure
will increase the proceeds of liquidation of the related Mortgage Loan to
Company after reimbursement to itself for such expenses and (b) that such
expenses will be recoverable by the Servicer, which reimbursement is
specifically permitted hereunder.
Nothing contained in this Section shall be construed so as to require the
Servicer to make a bid on any Mortgaged Property at a foreclosure sale or
similar proceeding that is in excess of the fair market value of such property,
as determined by the Servicer in its reasonable and good faith judgment, all
such bids to be made in a manner consistent with the servicing standard set
forth in Section 2 hereof. If and when the Servicer deems it necessary and
prudent for purposes of establishing the fair market value of any Mortgaged
Property securing a defaulted Mortgage Loan, whether for purposes of bidding at
foreclosure or otherwise, the Servicer is authorized at the expense of the
Company to have an appraisal performed, obtain a broker's price opinion or
obtain any other inspection of the related Mortgage Property.
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Subject to the foregoing, however, the Servicer shall have full power and
authority to do any and all things in connection herewith as are consistent with
the servicing standard set forth in Section 2 hereof and shall be authorized to
incur costs and expenses necessary for the proper operation, management and
maintenance of such Mortgaged Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such Mortgaged
Property;
(ii) all real estate taxes and assessments in respect of such Mortgaged
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such Mortgaged Property; and
(iv) all costs and expenses necessary to maintain such Mortgaged
Property.
To the extent that amounts then on deposit in the Escrow Account in respect of
such Mortgaged Property are insufficient for the purposes set forth in clauses
(a) through (d) above with respect to such Mortgaged Property, the Servicer
shall advance from its own funds such amount as is necessary for such purposes
unless in the Servicer's reasonable and good faith judgment, the payment of such
amounts will not be recoverable from the operation or sale of such Mortgaged
Property. The Servicer shall be entitled to reimbursement from the Company for
all costs incurred by Servicer pursuant to this Section.
(b) The Servicer shall take all actions, legal or otherwise; necessary
to cure a defaulted Receivable. In connection with such actions the Servicer may
incur litigation costs and other expenses relating to enforcement of the
Receivable on behalf of the Company. The Servicer shall be entitled to
reimbursement of all such costs and expenses incurred by the Servicer from the
Company.
6. CERTAIN PROVISIONS RELATING TO REO PROPERTY.
(a) With respect to each REO Property that is acquired for the benefit
of Company, the Servicer shall provide property management and disposition
services with respect to such REO Property, including analysis of sale and
leasing potential of such property, leasing and collection of rents, property
management (including maintenance and repairs to such Property to render it
suitable for lease or sale), and escrow account administration. Servicer shall
remit to Company all collections in respect of the related REO Properties
(including sale proceeds and rental payments) provided elsewhere in this
Agreement.
(b) If the Servicer hereafter becomes aware that an REO Property is or
may be contaminated with hazardous or toxic materials or waste, Servicer will
promptly notify Company. For any REO Property that Servicer has reason to
believe that is contaminated with hazardous or toxic materials or waste, (e.g.,
the Servicer obtains a broker's price opinion which reveals the potential for
such problem), Servicer will not foreclose or accept a deed-in-lieu of
foreclosure upon any such Property without first obtaining the consent of the
Company.
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7. MODIFICATIONS, WAIVERS, AMENDMENTS AND CONSENTS.
(a) The Servicer may agree to any modification, waiver, forbearance, or
amendment of any term of any Serviced Asset without the consent of the Company.
All modifications, waivers, forbearance or amendments of any Serviced Asset
shall be consistent with the servicing standard set forth in Section 2 hereof.
(b) Notwithstanding anything to the contrary herein, the Servicer may,
in accordance with the servicing standard set forth in Section 2 hereof, modify,
waive, forbear or amend any term of a Serviced Asset that requires the payment
of a prepayment premium or penalty in connection with any principal prepayment
thereon.
(c) The Servicer may, as a condition to granting any request by a
person or entity for consent, modification, waiver, forbearance or amendment of
a Serviced Asset, the granting of which is within the Servicer's discretion
pursuant to the terms of a Serviced Asset and is permitted by the terms of this
Agreement, require that such person or entity pay to the Servicer, as additional
servicing compensation, a reasonable or customary fee for the additional
services performed in connection with such request, together with any related
costs and expenses incurred by the Servicer, which amount shall be retained by
the Servicer as additional servicing compensation or remitted of the Company in
accordance with the provision of Exhibits A, B or C as amended from time to
time.
8. CERTAIN PROVISIONS RELATING TO THE MORTGAGE LOANS.
(1) Collection of Taxes, Assessments and Similar Items. In accordance
with the servicing standards set forth in Section 2 hereof, the Servicer shall
establish and maintain one or more escrow accounts (each an "Escrow Account")
with respect to each Mortgage Loan into which the Servicer shall deposit all
payments received by the Servicer for the account of any mortgagor for
application toward the payment of real estate taxes, assessments, insurance
premiums, and similar items in respect of the related Mortgaged Property, in all
cases, only as such payments are required to be deposited into an escrow account
in accordance with such Mortgage Loan. Such amounts deposited into an Escrow
Account shall be retained therein until withdrawn as permitted in this Section
8(1). Each Escrow Account shall be held in the custody of the Servicer for the
benefit of each related mortgagor as required by applicable law.
(2) Maintenance of Hazard Insurance and Errors and Omissions and
Fidelity Coverage.
(a) The Servicer shall cause to be maintained for each Mortgage Loan
all hazard insurance coverage as is required under the related Mortgage or Land
Sale Contract; provided that if any Mortgage or Land Sale Contract permits the
holder thereof to dictate to the mortgagor the hazard insurance coverage to be
maintained on such Mortgaged Property, the Servicer shall impose such hazard
insurance requirements as are consistent with the servicing standard set forth
in Section 2 hereof. Subject to Section 5 hereof, the Servicer shall also cause
to be maintained for each Mortgaged Property acquired upon forfeiture,
foreclosure, or deed-in-lieu of foreclosure, hazard insurance coverage. All such
hazard insurance policies shall contain a "standard" mortgagee clause, with loss
payable to the Company or Servicer on behalf of the Company, and shall be issued
by an insurer authorized under applicable law to issue such insurance. It is
understood and agreed that no earthquake or other additional insurance is to be
required of any Mortgagor or maintained on property acquired in respect of a
Mortgage or Land Sale Contract other than pursuant to such applicable laws and
regulations as shall at any time be in force and as shall require such
additional insurance. In the event that the Servicer shall obtain and maintain a
blanket policy insuring against hazard losses on all of the Mortgage Loans, it
shall conclusively be deemed to have satisfied its obligations as set forth in
the first sentence of this Section, it being understood and agreed that such
policy may contain a deductible clause, in which case the Servicer shall, in the
event that there shall not have been maintained on the related Mortgaged
Property a policy complying with the first sentence of this Section and there
shall have been a loss which would have been covered by such policy, remit to
the Company the amount not otherwise payable under the blanket policy because of
such deductible clause; provided, that the Servicer shall not be required to
maintain insurance under the blanket policy with respect to any Mortgage Loan
that has a scheduled principal balance of less than $10,000.
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(b) The Servicer shall obtain and maintain at its own expense and keep
in full force and effect throughout the term of this Agreement a blanket
fidelity bond having an errors and omissions rider covering the Servicer's
officers and employees and other persons acting on behalf of the Servicer in
connection with its activities under this Agreement. The amount of coverage
shall be at least equal to the coverage that would be required by FNMA with
respect to the Servicer if the Servicer were servicing and administering the
Mortgage Loans for FNMA in addition to other mortgage loans being serviced and
administered by the Servicer. In the event that any such bond or policy ceases
to be in effect, the Servicer shall obtain a comparable replacement bond or
policy from an issuer or insurer, as the case may be. Coverage of the Servicer
under a policy or bond obtained by an affiliate of the Servicer and providing
the coverage required by this Section shall satisfy the requirements of this
Section.
(3) Enforcement of Due-On-Sale Clauses; Assumption Agreements.
(a) As to each Mortgage Loan which contains a provision in the nature
of a "due-on-sale" cause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the sale or other
transfer of an interest in the related Mortgaged Property; or
(ii) provides that such Mortgage Loan may not be assumed
without the consent of the mortgagee in connection with any such sale
or other transfer, then, the Servicer shall exercise any right it may
have with respect to such Mortgage Loan unless (A) enforcement of such
right is not permitted by applicable law, or (B) the Servicer, in its
discretion, waives its right to enforce such provision, in a manner
consistent with the servicing standard set forth in Section 2 hereof.
(b) As to each Mortgage Loan which contains a provision in the nature
of a "due-on-encumbrance" clause, which by its terms:
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(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the creation of any
additional lien or other encumbrance on the related Mortgaged Property;
or
(ii) requires the consent of the mortgagee to the creation of
any such additional lien or other encumbrance on the related Mortgaged
Property, then, the Servicer shall exercise (or waive its right to
exercise) any right it may have with respect to such Mortgage Loan (A)
to accelerate the payments thereon, or (B) to withhold its consent to
the creation of any such additional lien or other encumbrance, in a
manner consistent with the servicing standard set forth in Section 2
hereof.
(c) If the Servicer waives the "due-on-sale" clause, the person to whom
the related Mortgaged Property has been conveyed or is proposed to be conveyed
must satisfy the terms and conditions contained in the Mortgage Note and
Mortgage or Land Sale Contract, as applicable, related thereto.
(d) Subject to the Servicer's duty to enforce any due-on-sale clause to
the extent set forth in Subsection (a) above, in any case in which a Mortgaged
Property has been conveyed to a person by a mortgagor, and such person is to
enter into an assumption agreement or modification agreement or supplement to
the Mortgage Note or Mortgage or Land Sale Contract, as applicable, that
requires the signature of the Company, or if an instrument of release signed by
the Company is required releasing the mortgagor from liability on the Mortgage
Loan, the Servicer shall prepare or cause to be prepared and execute on behalf
of the Company the assumption agreement with the person to whom the Mortgaged
Property is to be conveyed and such modification agreement or supplement to the
Mortgage Note or Mortgage or Land Sale Contract, as applicable or other
instruments as are reasonable or necessary to carry out the terms of the
Mortgage Note or Mortgage or otherwise to comply with any applicable laws
regarding assumptions or the transfer of the Mortgaged Property to such person.
In addition, the substitute mortgagor and the Mortgaged Property must be
acceptable to the Servicer in accordance with its underwriting standards as then
in effect. Any fee collected by the Servicer for entering into an assumption or
substitution of liability agreement will be retained by the Servicer as
additional servicing compensation or will be remitted to the Company in
accordance with Exhibit A hereto.
(4) Conversion of Land Sale Contracts. If a mortgagor elects to convert
a Land Sale Contract to a mortgage or deed of trust and mortgage note, the
Servicer shall do so in accordance with the servicing standard set forth in
Section 2 hereof.
9. REPRESENTATIONS AND WARRANTIES. Servicer hereby represents and
warrants to Company that:
(a) Servicer is a corporation duly organized, validly existing and in
good standing under the laws of the State of Washington.
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(b) Servicer (i) has the power to own its assets and to transact the
business in which it is presently engaged, and (ii) is duly qualified as a
foreign corporation, has all licenses required and is in good standing under the
laws of each jurisdiction (1) where Servicer's ownership or leasehold interest
in property requires such qualification or licensing, (2) where the conduct of
Servicer's business requires such qualification or licensing, and (3) where the
failure to be so qualified or licensed would have a material adverse effect on
Servicer's ability to perform its obligations hereunder or on the business and
assets of Servicer, taken as a whole.
(c) Servicer (i) has full power and authority (corporate and other) to
execute and deliver this Agreement, to perform its obligations under this
Agreement and to consummate all of the transactions contemplated hereunder and
thereunder, and (ii) has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement.
(d) No consent of any other party and no consent, license, approval or
authorization of, or registration or declaration with, any governmental
authority, bureau or agency is required in connection with the execution,
delivery, performance, validity or enforceability of this Agreement.
10. FACILITIES, RECORDS AND DOCUMENTS; CUSTODIAN.
(a) Servicer shall maintain adequate facilities satisfactory to Company
for the servicing of the Serviced Assets. Servicer shall keep satisfactory books
and records in accordance with generally accepted accounting principles,
consistently applied, pertaining to each Serviced Asset which reflect the
interest of Company therein. Servicer shall permit Company or any of its
authorized representatives, at any time during Servicer's business hours, to
examine all books and records relating to each Serviced Asset and to make copies
thereof. Such records may not be destroyed or otherwise disposed of except as
provided herein.
(b) Servicer shall maintain a file of correspondence, forms, reports
and results of conversations relating to each Serviced Asset. Servicer shall
further maintain, with respect to each Serviced Asset, records which shall
reflect, as collected, the application of each payment made under a Mortgage
Loan, Receivable, or agreement pertaining to REO Property.
(c) The Servicer agrees to act as custodian for the all Files relating
to the Serviced Assets. Servicer shall retain possession of the Files at all
times unless (i) the Serviced Asset has been liquidated and any proceeds thereof
have been remitted to the Company, (ii) the Files have been delivered to an
attorney or to a public trustee or other public official as required by law for
purposes of initiating or pursuing legal action or other proceedings for the
foreclosure, forfeiture or similar action with respect to the related Property
or to otherwise pursue a default against an obligor, mortgagor or payer or
related person or entity of a Serviced Asset or (iii) the Servicer returns the
Files to Company or its designee pursuant to the written request of Company. Any
File held by the Servicer is and shall be held in trust by the Servicer for the
benefit of the Company as the owner thereof and the Servicer's possession of the
File so retained is at the will of such Company for the sole purpose of
servicing the Serviced Asset, and such retention and possession by the Servicer
is in a custodial capacity only.
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(d) All documents, ledger sheets, payment records, correspondence, and
other papers and records of whatever kind or description, whether developed or
originated by Servicer or not, reasonably required to document or to service
properly Serviced Asset being serviced for Company, shall be and remain at all
times the property of Company. Servicer shall not acquire any vested or property
rights with respect to such records, and shall not have the right to possession
of them except at the will of Company and subject to the conditions stated in
this Subsection. It is expressly understood that any of the Files in the
possession of Servicer are retained in custodial capacity only for servicing as
provided in subsection 10(c) above. The right to possession and the ownership of
all of the records relating to each Serviced Asset delivered to Servicer,
prepared by Servicer or to come into the possession of Servicer by reason of
this Agreement shall immediately vest in Company, and may be retained and
maintained by Servicer only at the will of Company.
11. ASSIGNMENT: SUCCESSOR AND ASSIGNEES.
(a) This Agreement shall not be assigned by Servicer without the prior
written consent of Company.
(b) This Agreement shall be binding upon and inure to the benefit of
Company and Servicer and their permitted successors, assignees and designees.
12. NOTICES. All notices and reports shall be sent by Servicer to
Company at the following address unless another address is designated in writing
by Company, 000 X. Xxxxx Xxxxxx, Xxxxxxx, XX 00000, Attn.: General Counsel, Fax
(000) 000-0000. Notices shall be sent to Servicer at the following address
unless another address is designated in writing by Servicer: 000 X. Xxxxx Xxx.,
Xxxxxxx, Xxxxxxxxxx 00000, Attn.: General Counsel, Fax (000) 000-0000.
13. RENEWAL AND TERMINATION; DUTY TO COOPERATE UPON TERMINATION. Unless
sooner terminated as herein provided or by mutual agreement, this Agreement
shall continue in full force and effect for a period of one year from the date
hereof and shall be renewed automatically for additional one year periods
without any action by the parties hereto. Upon termination, Company and Servicer
shall cooperate to ensure an orderly transfer of servicing activities for
Serviced Assets to any successor servicer.
14. SCOPE, PRIOR AGREEMENTS. This Agreement shall apply to any Serviced
Asset that is not the subject of either (a) that Servicing Agreement, dated as
of April 1, 2001, entered into by and among Ocwen Federal Bank FSB ("Ocwen"),
Company and certain of Company's affiliates or (b) the Flow Agreement, dated as
of September 1, 2001, by and among Ocwen, Company and certain of Company's
affiliates. This Agreement replaces and supersedes each and every prior
Agreement executed by Servicer and Company related to the servicing of the
Serviced Assets.
15. GOVERNING LAW AND VENUE. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Washington.
All judicial proceedings between the parties to this Agreement shall be brought
in a court located in the County of Spokane, State of Washington and the parties
hereto agree to venue in such jurisdiction.
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16. MISCELLANEOUS. The parties shall, at their own expense, execute all
other documents and take all other steps requested by each other from time to
time to perform the covenants and obligations herein and effectuate the intent
hereof. The provisions of this Agreement cannot be waived or modified except in
writing signed by the parties hereto. All representations and warranties shall
survive the termination of this Agreement. This Agreement shall be executed in
counterparts, all of which taken together shall constitute one and the same
instrument. Headings and titles are for convenience only and shall not influence
the construction or interpretation of this Agreement. When used herein, the term
"include" or "including" shall mean, without limitation, by reason of
enumeration.
IN WITNESS WHEREOF, the parties have hereunto set their hands on the
date first above written.
OLD STANDARD LIFE INSURANCE COMPANY
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------------------
By: Xxxxxxx X. Xxxxxxxx
Its: Sr Vice President
METWEST MORTGAGE SERVICES, INC.
/s/ Xxxxx Xxxxxxx
-----------------------------------------------------
By: Xxxxx Xxxxxxx
Its: Secretary
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EXHIBIT A
SERVICING AGREEMENT
(METWEST / OSL)
With respect to Mortgage Loans, the Servicing Fee shall be a monthly
fee equal to 1/12 of 75 basis points, from the effective date of this Agreement,
of the aggregate outstanding principal balance of the Mortgage Loan at the first
day of each calendar month. Such Servicing Fee shall be paid by the Company to
the Servicer on or before the last day of the month following the month of which
such Servicing Fee is calculated.
All payments made pursuant to this Agreement shall be made subject to
the cost allocation and true-up provisions contained in Section 2(a) to this
Agreement.
As additional servicing compensation the Servicer may retain all fees
paid by Mortgagors related to modifications or workouts which are immediate
income as opposed to deferred income under GAAP.
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EXHIBIT B
SERVICING AGREEMENT
(METWEST / OSL)
With respect to Receivables, the Servicing Fee shall be a monthly fee
equal to 1/12 of 75 basis points, from the effective date of this Agreement, of
the aggregate outstanding principal balance of the Receivable at the first day
of each calendar month. Such Servicing Fee shall be paid by the Company to the
Servicer on or before the last day of the month following the month of which
such Servicing Fee is calculated.
All payments made pursuant to this Agreement shall be made subject to
the cost allocation and true-up provisions contained in Section 2(a) to this
Agreement.
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EXHIBIT C
SERVICING AGREEMENT
(METWEST / OSL)
With respect to REO, the Servicing Fee shall be a monthly fee equal to
1/12 of 75 basis points, from the effective date of this Agreement, of the
aggregate outstanding principal balance of the REO Property at the first day of
each calendar month. Such Servicing Fee shall be paid by the Company to the
Servicer on or before the last day of the month following the month of which
such Servicing Fee is calculated.
All payments made pursuant to this Agreement shall be made subject to
the cost allocation and true-up provisions contained in Section 2(a) to this
Agreement.
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