EXHIBIT 10.04
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SERVICING AGREEMENT
AMONG
OCWEN FEDERAL BANK FSB,
(SERVICER)
AND
METWEST MORTGAGE SERVICES, INC.,
METROPOLITAN MORTGAGE & SECURITIES CO., INC.,
WESTERN UNITED LIFE ASSURANCE COMPANY,
SUMMIT SECURITIES, INC.,
OLD STANDARD LIFE INSURANCE COMPANY, AND
OLD WEST ANNUITY & LIFE INSURANCE COMPANY
(OWNERS)
DATED AS OF APRIL 1, 2001
MORTGAGE AND NON-MORTGAGE LOANS AND RECEIVABLES
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS.............................................................................................1
Section 1.1. Definitions.................................................................................1
Section 1.2. Interpretation of Agreement................................................................11
ARTICLE II TRANSFER OF SERVICING, SERVICING RESPONSIBILITIES AND SERVICING COMPENSATION..........................12
Section 2.1. Transfer of Servicing Files to the Servicer................................................12
Section 2.2. Custodial Files to be Held by Servicer.....................................................13
Section 2.3. Servicing Responsibilities.................................................................14
Section 2.4. Collection and Resolution Activities.......................................................18
Section 2.5. Servicing Compensation.....................................................................18
Section 2.6. Additional Servicing Provisions Relating to Land Sale Contracts............................18
ARTICLE III DEFAULT MANAGEMENT SERVICES..........................................................................19
Section 3.1. Default Management Responsibilities........................................................19
Section 3.2. Foreclosure................................................................................19
Section 3.3. Deed in Lieu...............................................................................20
Section 3.4. Bankruptcy of Obligor......................................................................20
ARTICLE IV PROPERTY MANAGEMENT AND DISPOSITION SERVICES..........................................................21
Section 4.1. Property Management and Disposition Responsibilities.......................................21
Section 4.2. Environmental Problems.....................................................................21
ARTICLE V STANDARDS FOR CONDUCT..................................................................................22
Section 5.1. Standards of Care and Delegation of Duties.................................................22
Section 5.2. Transactions with Related Persons..........................................................23
Section 5.3. Access to Records..........................................................................23
Section 5.4. Annual Audit...............................................................................23
ARTICLE VI REMITTANCES AND REPORTS TO OWNER......................................................................24
Section 6.1. Servicing Advances.........................................................................24
Section 6.2. Remittances and Monthly Report.............................................................24
Section 6.3. Remittance Upon Termination................................................................26
ARTICLE VII REPRESENTATIONS AND WARRANTIES.......................................................................26
Section 7.1. Representations and Warranties of the Servicer.............................................26
Section 7.2. Representations and Warranties of the Owners...............................................27
i
ARTICLE VIII INDEMNIFICATION.....................................................................................28
Section 8.1. Liabilities to Obligors....................................................................28
Section 8.2. Servicer's Indemnity of the Owner..........................................................28
Section 8.3. Owners' Indemnity of the Servicer; Limitation on Liability of the Servicer.................30
Section 8.4. Indemnification Procedures.................................................................31
Section 8.5. Operation of Indemnities...................................................................33
ARTICLE IX DEFAULT...............................................................................................33
Section 9.1. Events of Default..........................................................................33
Section 9.2. Effect of Transfer.........................................................................34
ARTICLE X TERM...................................................................................................34
Section 10.1. Term of Agreement.........................................................................34
Section 10.2. Transfers of Servicing....................................................................34
Section 10.3. Servicer Not to Resign....................................................................34
Section 10.4. Successor Servicer........................................................................35
ARTICLE XI MISCELLANEOUS.........................................................................................35
Section 11.1. Successors and Assigns; No Third Party Beneficiaries......................................35
Section 11.2. Choice of Law.............................................................................35
Section 11.3. Notices...................................................................................35
Section 11.4. Entire Agreement; Amendments; Waivers.....................................................37
Section 11.5. No Joint Venture; Limited Agency..........................................................37
Section 11.6. Severability; Interpretation..............................................................37
Section 11.7. Counterparts..............................................................................37
Section 11.8. Waiver of Jury Trial......................................................................37
Section 11.9. Limitation of Damages.....................................................................37
EXHIBITS
The following exhibits are incorporated into this Agreement:
EXHIBIT A Additional Servicing Requirements
SCHEDULE A Schedule of Assets
Schedule A-1 Metwest Assets
Schedule A-2 Metropolitan Assets
Schedule A-3 Western Assets
Schedule A-4 Summit Assets
Schedule A-5 Old Standard Assets
Schedule A-6 Old West Assets
ii
SERVICING AGREEMENT
This
SERVICING AGREEMENT (this "Agreement") dated effective as of April
1, 2001, by and among METWEST MORTGAGE SERVICES, INC. (formerly known as Spokane
Mortgage Company), a Washington corporation ("Metwest"), METROPOLITAN MORTGAGE &
SECURITIES CO., INC., a Washington corporation ("Metropolitan"), WESTERN UNITED
LIFE ASSURANCE COMPANY, a Washington insurance corporation ("Western United"),
SUMMIT SECURITIES, INC., an Idaho corporation ("Summit"), OLD STANDARD LIFE
INSURANCE COMPANY, an Idaho insurance corporation ("Old Standard"), OLD WEST
ANNUITY & LIFE INSURANCE COMPANY (formerly known as Arizona Life Insurance
Company), an Arizona insurance corporation ("Old West", and together with
Metwest, Metropolitan, Western United, Summit and Old Standard, collectively the
"Owners" and individually an "Owner") and OCWEN FEDERAL BANK FSB, a federally
chartered savings bank (the "Servicer").
WITNESSETH:
WHEREAS, the Owners own certain residential (including timeshare)
mortgage loans, commercial and land mortgage loans, and other secured loans and
receivables identified on Schedules A-1 through A-6 (collectively, the
"Assets"); and
WHEREAS, the Servicer has acquired the Servicing Rights relating to
such Assets pursuant to the terms of the Servicing Rights Purchase Agreement;
and
WHEREAS, the Owners and the Servicer desire to set forth the terms and
conditions on which the Servicer will service and provide management and
disposition services for such Assets (including REO Properties and other
property acquired with respect to the Assets);
NOW, THEREFORE, in consideration for the mutual benefits and
obligations as hereinafter set forth, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. Capitalized terms used in this Agreement and
not otherwise defined shall have the meanings given to them in this Section 1.1,
and if not defined herein shall have the meanings assigned to such terms in the
Servicing Rights Purchase Agreement.
"ACCEPTED SERVICING PRACTICES" means, with respect to any Asset or
Property, those servicing, collection, resolution or disposition practices that
are undertaken to maximize the net present value to the related Owner of such
Owner's investment in any Asset or Property followed with the same care, skill,
prudence and diligence with which (i) the Servicer services and administers
assets or properties held for other portfolios similar to such Asset or
Property, or (ii) if the Servicer does not service or administer similar assets
or properties, servicers of similar
Servicing Agreement Page 1
assets and properties service and administer such assets or properties for their
own portfolio and for others, but in each case without regard to:
1 any relationship that the Servicer, any subservicer or any
affiliate of the Servicer or any other subservicer may have
with the related Obligor; or
2. the Servicer's or any subservicer's right to receive
compensation for its services hereunder or with respect to any
particular transaction; or
3. the ownership, or servicing or management for others, by the
Servicer or any other subservicer, of any other loans or
property;
provided, however, that such services are performed in compliance with the terms
of this Agreement, the Requirements, the Contractual Requirements (to the extent
the related documents have been made available to the Servicer) and the
provisions contained in Exhibit A attached hereto and incorporated herein.
"AGREEMENT" means this
Servicing Agreement as amended, modified or
supplemented from time to time, including all exhibits and schedules hereto.
"ANCILLARY INCOME" means all release fees, late payment charges,
assumption fees, insufficient funds charges, modification fees (other than fees
paid to Metwest for modifications negotiated by Metwest in accordance with
Section 3.1), fees associated with any repayment plan or forbearance agreement,
interest on the Collection Account and Escrow Accounts (net of any interest
payments due Obligors pursuant to the Requirements) and other similar fees
(exclusive of Prepayment Penalties).
"ASSET" means a Loan or a Receivable, with each Owner's Assets
separately set forth on Schedule A.
"ASSOCIATION" means any homeowners' association or condominium
association.
"BALLOON MORTGAGE LOAN" means any Mortgage Loan that by its original
terms or by virtue of any modification provides for an amortization schedule
extending beyond its originally scheduled Maturity Date.
"BALLOON PAYMENT" means, with respect to a Balloon Mortgage Loan as of
any date of determination, the amount outstanding on the Maturity Date of such
Balloon Mortgage Loan in excess of the related Scheduled Payment.
"BANKRUPTCY CODE" means 11 U.S.C. 101 et. seq., as the same may be
amended, modified or supplemented from time to time.
"BUSINESS DAY" means any day other than (a) a Saturday or Sunday or (b)
a day on which banking and savings and loan institutions in the principal
business location of the Owners or of the Servicer are authorized or obligated
by law or executive order to be closed.
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"COLLECTION ACCOUNT" means the separate account(s) created pursuant to
Section 2.3(a) of this Agreement, which shall be entitled "Ocwen Federal Bank
FSB, as the Servicer, in trust for certain Owners under a
Servicing Agreement
dated as of April 1, 2001."
"COLLECTION PERIOD" means with respect to each Distribution Date, the
period commencing on the first day of the month preceding the month of the
Distribution Date and ending on the last day of the month preceding the month of
the Distribution Date.
"COMMERCIAL MORTGAGE LOAN" means a Mortgage Loan secured by a
multifamily residential property or a commercial property including, among
others, multifamily, retail, mixed use, office and industrial properties.
"CONTRACTUAL REQUIREMENTS" means the provisions, terms and conditions
set forth in the Custodial Documents, any contract or other governing agreement
relating to an Asset, any mortgage insurance policy relating to a Mortgage Loan,
if any, and any escrow agreement relating to an Escrow Mortgage Loan, if any.
"CURRENT SERVICER" means an Owner or any other servicer, subservicer,
document custodian, owner, holder, originator or other Person who has possession
of any document or information constituting a part of a Servicing File prior to
the Transfer Date.
"CUSTODIAL DOCUMENTS" means, with respect to an Asset, the original
note, Mortgage or other security agreement and other original documents relating
to an Asset that are held by a Custodian.
"CUSTODIAN" means an Owner or any custodian appointed by an Owner to
hold the related Custodial Documents until such time that the Custodial
Documents are delivered to the Servicer, at which time the Servicer shall become
the Custodian pursuant to Section 2.2.
"DETERMINATION DATE" means the last day (or if such day is not a
Business Day, the Business Day immediately preceding such day) of the Collection
Period.
"DISPOSITION" means any (a) taking of Mortgaged Property by eminent
domain or condemnation or sale in lieu thereof, (b) the liquidation of a
defaulted Asset through a foreclosure sale, trustee's sale, forfeiture,
deed-in-lieu of foreclosure or otherwise, (c) a sale or assignment of an Asset
or Property in accordance with the terms hereof, and/or (d) any other
disposition of an Asset or Property whether through a discounted payoff,
prepayment, Balloon Payment or any other similar disposition.
"DISTRIBUTION DATE" means the 5th Business Day of each month.
"ELIGIBLE ACCOUNT" means an account maintained with a depository
institution, (i) whose accounts are insured by the FDIC and (ii) whose (or whose
direct or indirect parent's) long term unsecured debt obligations are rated at
least "A" or better by one of the Rating Agencies.
"ENVIRONMENTAL LIABILITY" shall have the meaning ascribed thereto in
Section 8.3(c).
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"ENVIRONMENTAL PROBLEM PROPERTY" means a Property that is in violation
of any environmental law, rule or regulation.
"ESCROW ACCOUNTS" means the separate account(s) created pursuant to
Section 2.3(a) of this Agreement, for the payment of taxes, Association dues,
assessments, Hazard Insurance and Mortgage Insurance premiums, ground rents and
similar items which shall be entitled "Ocwen Federal Bank FSB, as the Servicer,
in trust for related Owners and Obligors under a
Servicing Agreement dated as of
April 1, 2001."
"ESCROW PAYMENTS" means amounts required to be paid for taxes,
Association dues, assessments, Hazard Insurance and Mortgage Insurance premiums,
ground rents and similar items and any and all other purposes for which funds
may or may not be held in escrow.
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"FHLMC" means Xxxxxxx Mac (formerly known as the Federal Home Loan
Mortgage Corporation), or any successor thereto.
"FITCH" means Fitch, Inc.
"FLOOD INSURANCE" or "FLOOD INSURANCE POLICY" means an insurance policy
insuring against flood damage to a Mortgaged Property.
"FNMA" means Xxxxxx Xxx (formerly known as the Federal National
Mortgage Association), or any successor thereto.
"HAZARD INSURANCE" means casualty, fire, hazard, flood, wind, liability
or similar insurance policies relating to a Mortgaged Property.
"HUD" means the United States Department of Housing and Urban
Development.
"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 Obligor 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 Obligor has made all of the payments required
pursuant to such contract, at which time fee title is conveyed to the Obligor.
"LIABILITY" shall have the meaning ascribed thereto in Section 8.2.
"LIQUIDATION PROCEEDS" means cash received in connection with the
liquidation of an Asset, whether through a Disposition or otherwise, net of the
amount of any broker's fees payable in connection with any sale of the related
Property (but without any deduction for any legal fees or other costs or
expenses).
"LOAN" means an Asset listed on Schedule A that is either a Mortgage
Loan or Non Mortgage Loan, as the case may be.
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"MATURITY DATE" means, with respect to any Loan, the date on which the
last payment of principal is due and payable under the related promissory note
and, with respect to any Receivable, the date on which the final payment is due
with respect to such Receivable.
"MISSING DOCUMENT REPORT" means the report prepared by the Servicer and
delivered to an Owner pursuant to Section 4.11 of the Servicing Rights Purchase
Agreement.
"MONTHLY COLLECTION AMOUNT" means, for each Distribution Date and each
Owner, all amounts actually received into the Servicer's lock box during the
related Collection Period with respect to the Assets relating to such Owner from
whatever source (other than partial and forbearance payments), minus (i) amounts
representing accrued taxes and insurance premiums not yet due and payable to the
applicable taxing authority or insurer, calculated in accordance with the then
current escrow analysis performed by the Servicer in accordance with applicable
Requirements, (ii) Servicing Fees and Ancillary Income with respect to the
related Assets to the extent received and retained by the Servicer prior to
distribution pursuant to Section 6.02 and (iii) any amounts refunded to an
Obligor with respect to any such Asset that are determined to be in excess of
the amounts required under the terms of the related Custodial Documents.
"MONTHLY REPORT" means the monthly report prepared by the Servicer and
delivered to an Owner pursuant to Section 6.2.
"MOODY'S" means Moody's Investor's Service Inc.
"MORTGAGE" means, the mortgage, deed of trust or other instrument
creating a first or junior lien on real property securing a Mortgage Loan.
"MORTGAGE INSURANCE" means any mortgage insurance or guaranty relating
to a Mortgage Loan issued by a Mortgage Insurer.
"MORTGAGE INSURER" means the Federal Housing Administration as a
mortgage insurer, the United States Department of Veterans Affairs as a mortgage
guarantor and any issuer of private mortgage insurance.
"MORTGAGE LOAN" means an Asset listed on Schedule A that is an
individual mortgage loan or Land Sale Contract including any Mortgaged Property
that was acquired in foreclosure or similar action.
"MORTGAGED PROPERTY" means the real property securing a Loan that is a
Mortgage Loan.
"NON-MORTGAGE LOAN" means any Loan listed on Schedule A hereto that is
not a Mortgage Loan.
"NON-RECOVERABLE ADVANCE" shall have the meaning set forth in Section
2.3(b) below.
"OBLIGOR" means (i) with respect to a Loan, the individual(s) obligated
to repay such Loan and (ii) with respect to a Receivable, the individual(s)
obligated to make payments with respect to such Receivable.
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"OWNER" means (i) Metwest with respect to the Assets set forth on
Schedule A-1, (ii) Metropolitan with respect to the Assets set forth on Schedule
A-2, (iii) Western with respect to the Assets set forth on Schedule A-3, (iv)
Summit with respect to the Assets set forth on Schedule A-4, (v) Old Standard
with respect to the Assets set forth on Schedule A-5 and (vi) Old West with
respect to the Assets set forth on Schedule A-6. Metwest, Metropolitan, Western,
Summit, Old Standard and Old West are collectively referred to herein as the
"Owners".
"PERMITTED INVESTMENTS" means, any one or more of the obligations and
securities listed below which investment provides for a date of maturity not
later than the Distribution Date in each month:
(a) direct obligations of, and obligations fully guaranteed
by, the United States of America, FHLMC, FNMA, the Federal Home Loan
Banks or any agency or instrumentality of the United States of America
the obligations of which are backed by the full faith and credit of the
United States of America;
(b) (i) demand and time deposits in, certificates of deposit
of, bankers acceptances issued by, or federal funds sold by, any
depository institution or trust company (including the Servicer or its
agent acting in their respective commercial capacities) incorporated
under the laws of the United States of America or any state thereof and
subject to supervision and examination by federal or state authorities,
so long as, at the time of such investment or contractual commitment
providing for such investment, such depository institution or trust
company or its ultimate parent has a short-term unsecured debt rating
in one of the two highest available rating categories of S&P and the
highest available rating category of Moody's and provided that each
such investment has an original maturity of no more than 365 days, and
(ii) any other demand or time deposit or deposit which is fully insured
by the FDIC;
(c) repurchase obligations with a term not to exceed 30 days
with respect to any security described in clause (a) above and entered
into with a depository institution or trust company (acting as
principal) rated "A" or higher by S&P and rated "A2" or higher by
Moody's; provided, however, that collateral transferred pursuant to
such repurchase obligation must be of the type described in clause (a)
above and must (i) be valued daily at current market price plus accrued
interest, (ii) pursuant to such valuation, be equal, at all times, to
at least 105% of the cash transferred by the Servicer in exchange for
such collateral, and (iii) be delivered to the Servicer, or if the
Servicer is supplying the collateral, an agent for the Servicer, in
such a manner as to accomplish perfection of a security interest in the
collateral by possession of certificated securities;
(d) securities bearing interest or sold at a discount issued
by any corporation incorporated under the laws of the United States of
America or any state thereof which has a short-term unsecured debt
rating in the highest available rating category of each of the Rating
Agencies at the time of such investment;
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(e) commercial paper having an original maturity of less than
180 days and issued by an institution having a short-term unsecured
debt rating in the highest available rating category of each of the
Rating Agencies at the time of such investment;
(f) a guaranteed investment contract approved by each of the
Rating Agencies and the Owners and issued by an insurance company or
other corporation having a short-term unsecured debt rating in the
highest available rating category of each of the Rating Agencies at the
time of such investment;
(g) money market funds having one of the two highest available
rating categories of S&P and the highest available rating category of
Moody's at the time of such investment, which invests only in other
Eligible Investments;
(h) Federal Housing Administration debentures; provided, that
any such investment shall be rated in one of the two highest ratings
categories by each Rating Agency;
(i) FHLMC participation certificates which guaranty timely
payment of principal and interest and senior debt obligations;
(j) consolidated senior debt obligations of any Federal Home
Loan Banks;
(k) FNMA mortgage-backed securities (other than stripped
mortgage securities which are valued greater than par on the portion of
unpaid principal) and senior debt obligations;
(l) federal funds, certificates of deposit time deposits, and
bankers' acceptances (having original maturities of not more than 365
days) of any domestic bank, the short-term debt obligations of which
have been rated F-1+ or better by Fitch, A-1+ or better by S&P and P-1
by Moody's; or
(m) deposits of any bank or savings and loan association (the
long-term deposit rating of which is Baa3 or better by Moody's and BBB
by each of S&P and Fitch) which has combined capital, surplus and
undivided profits of at least $50,000,000 which deposits are insured by
the FDIC and held up to the limits insured by the FDIC;
provided that all instruments described hereunder shall mature at par on or
prior to the next succeeding Distribution Date unless otherwise provided in this
Agreement and that no instrument described hereunder may be purchased at a price
greater than par if such instrument may be prepaid or called at a price less
than its purchase price prior to stated maturity.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, limited liability company,
unincorporated organization or government or agency or political subdivision
thereof.
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"PREPAYMENT PENALTY" means, with respect to each Loan, if applicable,
the penalty or premium required to be paid if the Obligor prepays such Loan as
provided in the related Custodial Documents.
"PROPERTY" means, (a) as of any Determination Date for the purpose of
calculating the relevant Servicing Fee, and (b) as of the actual date of
acquisition of title for all other purposes: any (i) Mortgaged Property or other
collateral property subject to a Loan and (ii) any Mortgaged Property or other
collateral property that was subject to a Loan, after such property has been
acquired on behalf of the related Owner pursuant to this Agreement through
foreclosure or similar proceedings, acceptance of deed-in-lieu of foreclosure,
acquisition of title in lieu of foreclosure or the acquisition of title by
operation of law.
"PROPERTY IMPROVEMENT EXPENSES" means any costs and expenses for
repairs, replacements or improvements which the Servicer deems advisable under
the circumstances, but only to the extent that they:
(a) are paid to Persons who are generally in the business of
providing such goods and services;
(b) are reasonable for the types of goods or services provided
in the geographical area in which such goods or services are provided;
(c) are designed to maintain or improve the value of a
Property but not immediately necessary to operate it; and
(d) are incurred for the purpose of facilitating the sale of
the related Loan or REO Property and maximizing the proceeds thereof,
including but not limited to the following:
(i) cosmetic improvements such as painting and
landscaping;
(ii) build-out or modification to suit a
particular prospective or actual tenant or
buyer;
(iii) replacement of items which are obsolete or
wearing out but which may not be
dysfunctional; and
(iv) moneys paid to a tenant or buyer for a
purpose similar to a Property Improvement
Expense.
"PROPERTY PROTECTION EXPENSES" means the following costs and expenses,
but only to the extent that they are paid to Persons who are generally in the
business of providing such goods and services and are reasonable for the types
of goods or services provided in the geographical area in which such goods or
services are provided:
(a) utility costs;
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(b) payments required under service contracts, including but
not limited to service contracts for heating, ventilation and air
conditioning systems, elevators, landscape maintenance, pest
extermination, security, model furniture, swimming pool service, trash
removal, answering service and credit checks;
(c) property management fees;
(d) payroll costs and benefits for on-site maintenance
personnel, including but not limited to housekeeping employees, porters
and general maintenance and security employees;
(e) usual and customary leasing and sales brokerage expenses
and commissions;
(f) permits, licenses and registration fees and costs;
(g) any expense necessary in order to prevent or cure a breach
under a lease, contract or agreement including any debt secured by a
lien which is superior or prior to the lien encumbering the Loan, if
the consequences of failure to prevent or cure could, in the sole
judgment of the Servicer, have a material adverse effect with respect
to a Loan or Property;
(h) any expense necessary in order to prevent or cure a
material violation of any applicable law, regulation, code or
ordinance;
(i) costs and expenses of brokers' price opinions and surveys,
appraisals, valuations, surveys, inspections (including environmental
and engineering), environmental assessments and/or market studies
incidental to evaluation, leasing and/or sale of the Loans and/or
Properties;
(j) fees and expenses of attorneys, paralegals, surveyors,
title and escrow companies and uniform commercial code search/filing
companies (including, without limitation, costs, fees and/or expenses
for title insurance premiums, tax searches, title searches, escrow
fees, recording costs, uniform commercial code searches, and all costs
similar or related thereto), costs incurred to obtain documents or
information for the Servicing File, and any costs and expenses related
to the preparation and/or recordation of releases of liens or
satisfactions of mortgages (in whole or in part);
(k) property inspections; and
(l) other such reasonable fees and expenses incurred by the
Servicer in connection with the enforcement, collection, foreclosure,
management and operation of the Property, sales of Properties
(including, without limitation, the costs and expenses set forth in
subsection (i) above and any and all transfer taxes and other closing
costs customarily paid by the seller in the locale where such sale
occurs) and the performance of its servicing activities.
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"RATING AGENCIES" means, collectively, Fitch, Xxxxx'x and S&P.
"RECEIVABLE" means an Asset listed on Schedule A that represents rights
to certain specified amounts due from an Obligor and is not a Loan.
"REO PROPERTY" means a Mortgaged Property acquired by the Servicer on
behalf of the related Owner through foreclosure, forfeiture, deed-in-lieu of
foreclosure or otherwise in accordance with applicable law in connection with
the default of a Mortgage Loan.
"REQUIREMENTS" means all federal, state or local laws and any other
requirements of any government or agency or instrumentality thereof applicable
to the servicing of the Assets, the management of the Properties or the
provision of services hereunder by the Servicer, including, without limitation,
all servicing requirements imposed on an Owner or any successor to an Owner.
"S&P" means Standard & Poor's Rating Group, A Division of The
XxXxxx-Xxxx Companies, Inc.
"SCHEDULE A" means Schedule X-0, X-0, X-0, X-0, X-0 and A-6,
collectively.
"SCHEDULED PAYMENT" means the scheduled payment of principal and
interest or other amounts due on an Asset, if any, payable monthly or otherwise.
"SERVICER" means Ocwen Federal Bank FSB, a federal savings bank, its
successors in interest and permitted assigns.
"SERVICER EVENT OF DEFAULT" shall have the meaning set forth in Section
9.1.
"SERVICING ADVANCES" means all amounts advanced by the Servicer in
payment of Property Protection Expenses, Escrow Payments and Property
Improvement Expenses, but not including (i) Advances purchased pursuant to the
Advance Purchase Agreement and (ii) Advances of tax and insurance payments that
are reflected in negative escrow balances and are to be paid by the related
Obligor following the next escrow analysis (to the extent paid by the Obligor).
"SERVICING DOCUMENTS" means, with respect to an Asset, the documents
pertaining to such Asset that are included in the related Asset File.
"SERVICING FEE" means with respect to each Distribution Date the
monthly fee payable to the Servicer equal to 1/12 of 0.75% of the outstanding
principal balance (or outstanding balance) of each Asset for the first sixty
(60) months following the Cut-off Date and thereafter a monthly fee payable to
the Servicer of 1/12 of 0.35% of the outstanding principal balance (or
outstanding balance) of each Asset, in each case such balance to be determined
as of the first day of the calendar month preceding such Distribution Date. For
purposes of determining the Servicing Fee, the outstanding principal balance (or
outstanding balance) of an Asset shall be deemed to be zero on and after the
month following the month (A) in the case of a Mortgage Loan, in which all
amounts reasonably likely to be received upon liquidation of the related
Mortgage Property have
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been received and (B) in the case of an Asset that is not a Mortgage Loan, in
which an Owner has notified the Servicer that such Asset is a non-performing
Asset and that the Servicer shall not continue to service such Asset.
"SERVICING FILE" means with respect to each Asset, the Servicing
Documents and information (including any servicing tapes, images and conversion
reports) received from the Current Servicer, provided by the related Owners
(including title company investigations of matters relating to the Assets and
REO Properties), or obtained through the efforts of the Servicer hereunder.
"SERVICING PORTFOLIO" means all Assets serviced by the Servicer
pursuant to this Agreement.
"SERVICING RIGHTS PURCHASE AGREEMENT" means that certain Servicing
Rights Purchase Agreement, dated as of April 1, 2001, by and among the Owners
and the Servicer, pursuant to which the Servicer acquired the Servicing Rights
in respect of, among other things, the Assets.
"TRANSFER DATE" means with respect to an Asset, the date on which the
physical servicing of such Asset is transferred to the Servicer pursuant to the
Servicing Rights Purchase Agreement, which date shall be July 1, 2001, unless
otherwise mutually agreed by the Owners and the Servicer.
SECTION 1.2. INTERPRETATION OF AGREEMENT.
(a) All references in this Agreement to designated Sections,
Articles, Exhibits and Schedules are to the designated sections and
articles of and exhibits and schedules to this Agreement.
(b) Use of the masculine gender is intended to include the
feminine gender.
(c) The headings and captions used in this Agreement are for
convenience of reference only and do not define, limit or describe the
scope or intent of the provisions of this Agreement.
(d) Terms in the singular include the plural and vice versa.
(e) The terms "includes" or "including" are intended to be
inclusive rather than exclusive.
Servicing Agreement Page 11
ARTICLE II
TRANSFER OF SERVICING, SERVICING RESPONSIBILITIES AND SERVICING
COMPENSATION
SECTION 2.1. TRANSFER OF SERVICING FILES TO THE SERVICER.
(a) The Assets will become a part of the Servicing Portfolio
on the Closing Date. The Owners shall cause the Current Servicer to
transfer to the Servicer the Servicing Files and other servicing
records necessary to provide current data with respect to each of the
Assets in the manner and at such time as set forth in the Servicing
Rights Purchase Agreement. In the event that not all of the related
Servicing Files and other necessary servicing records are transferred
in accordance with the terms and conditions of the Servicing Rights
Purchase Agreement, the Servicer, at the Owner's expense, shall use its
best efforts to cause the Current Servicer to transfer to the Servicer
any Servicing Files and other servicing records necessary to provide
current data with respect to each Asset that was not transferred to the
Servicer in accordance with the terms and conditions of the Servicing
Rights Purchase Agreement. The Servicer shall transfer and convert the
Servicing Files to the Servicer's system as soon as reasonably possible
from the date of receipt by the Servicer of the Servicing Files and
such other documents as are reasonably necessary to service the Assets
from the Current Servicer, but in no event later than five (5) Business
Days following such receipt.
(b) Effective as of the Closing Date, the Servicer owns the
Servicing Rights and, subject to Section 6.01 of the Servicing Rights
Purchase Agreement, assumes and accepts responsibility for providing
the services described herein with respect to each Asset; provided,
however, that if the Servicer is making diligent efforts to complete
and verify the Servicing File because a Servicing File is not complete
or contains incorrect information on the Transfer Date, the Servicer
shall not be responsible for any failure to provide any service
hereunder, or for any inaction or any action taken hereunder related to
such incompleteness or incorrectness.
(c) The Servicer shall not be responsible for the payment of
Servicing Advances with respect to an Asset unless the Servicer has
been provided with the necessary information to determine the
existence, amount and due date of such obligations, in which case the
Servicer shall determine in accordance with Accepted Servicing
Practices whether or not to make any such payments within five (5)
Business Days after it has been provided with such information. In the
case of property taxes and similar items, the Servicer shall be deemed
not to have knowledge of the existence, amount and/or due date of such
obligations until two (2) Business Days after receiving a current
report with respect to the Property from a tax service retained by or
transferred to the Servicer. The Servicer shall take any required
action with respect to the information from the tax service within five
(5) Business Days of such current report. The Servicer shall be
entitled to rely in all respects on any tax service report and shall
have no liability to the Owners if a tax sale occurs for which the
Servicer (i) received no notice from the applicable taxing authority,
or (ii) received a report from a tax service indicating that the taxes
were current.
Servicing Agreement Page 12
(d) Upon reasonable request by the Servicer, each Owner shall
furnish the Servicer with such limited powers of attorney and other
documents prepared by the Servicer and reasonably satisfactory in form
and substance to such Owner as may be necessary or appropriate to
enable the Servicer to liquidate, collect payments against and
otherwise service and manage the Assets in accordance with this
Agreement. Additionally, the Servicer may appoint certain designated
servicing officers in a writing to an Owner and such designated
servicing officers shall be authorized to act on behalf of such Owner
hereunder. Such list (or any amended list) designating such servicing
officers shall be sufficient so long as it is executed by any officer
of the Servicer. All documents so provided to the Servicer shall be
held in trust by the Servicer on behalf of such Owner.
(e) The Owners agree to cooperate fully with the Servicer with
respect to all reasonable requests made by the Servicer in connection
with this Section 2.1.
(f) The Servicer shall have no obligation or responsibility
for preparing or recording mortgage assignments or filing financing
statements with respect to any Asset, provided, however, that the
Servicer shall, at the related Owner's cost, record mortgage
assignments if necessary to service a Mortgage Loan in accordance with
this Agreement and shall prepare and file continuation statements to
original UCC-1 financing statements for Assets for which such original
financing statements and filing information are included in the related
Asset File.
SECTION 2.2. CUSTODIAL FILES TO BE HELD BY SERVICER. The Servicer
agrees to act as Custodian for the Custodial Files relating to the Assets. In
such capacity, the Servicer shall act exclusively as the Custodian for, and the
bailee of the related Owners to the extent of their respective interests
therein. Metropolitan, on behalf of the Owners, shall pay a one-time fee of
$10,000 to the Servicer in consideration for acting as Custodian of the
Custodial Files, such fee to be payable on the Closing Date in accordance with
the instructions provided to Metropolitan by the Servicer. The Owners shall
cause the related Custodial Files to be delivered to the Servicer in accordance
with the terms and conditions of the Servicing Rights Purchase Agreement.
The Servicer shall retain possession of any Custodial Documents at all
times unless (i) the Asset has been liquidated and the Liquidation Proceeds
relating to the Asset have been deposited in the Collection Account, (ii) the
Custodial Documents 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 of an Asset or (iii) the Servicer returns the Custodial
Documents to related Owner or its designee pursuant to the written request of
such Owner.
Custodial Documents held by the Servicer are and shall be held in trust
by the Servicer for the benefit of the related Owner as the owner thereof and
the Servicer's possession of the Custodial Documents so retained is at the will
of such Owner for the sole purpose of servicing the related Asset, and such
retention and possession by the Servicer is in a custodial capacity
Servicing Agreement Page 13
only. The Custodial Documents with respect to each Asset shall be appropriately
marked to clearly reflect the ownership of such Asset by the related Owner.
SECTION 2.3. SERVICING RESPONSIBILITIES.
Subject to Accepted Servicing Practices, the Servicer shall have full
power and authority 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.
Subject to Section 2.1 and in accordance with Accepted Servicing Practices, in
performing its obligations hereunder, the Servicer shall comply with the
following with respect to each Asset, continuously from the date hereof until
the date each Asset ceases to be subject to this Agreement. To the extent there
is a conflict between the provisions set forth below and the Accepted Servicing
Practices, the Accepted Servicing Practices shall control:
(a) The Servicer shall hold all funds received for the Owners
hereunder in trust for such Owners in a segregated Collection Account
in accordance with all applicable Requirements. Such funds shall be
deposited to the Collection Account within one (1) Business Day of
receipt. The Collection Account shall be held at the Servicer, or if it
is not held at the Servicer, then it must be an Eligible Account. In
the event the amount held in the Collection Account maintained at the
Servicer exceeds $5 million, the Servicer shall promptly deposit any
excess amounts to another Collection Account not maintained at the
Servicer. Any amounts held in the Collection Account may be, but are
not required to be, invested by the Servicer in Permitted Investments.
Any income on the Collection Account shall belong to the Servicer and
may be withdrawn therefrom in accordance with Sections 6.2 and 6.3. If
losses are incurred on investments in the Collection Account, the
Servicer promptly shall deposit, from its own funds without right to
reimbursement, the full amount of such losses. The Servicer shall make
remittances from the Collection Account as provided in Sections 6.2 and
6.3. The Servicer shall hold all funds received to cover Escrow
Payments in connection with the Assets in trust for the related Owners
and the related Obligor in a segregated Escrow Account (which shall be
maintained in accordance with all applicable Requirements and the terms
of the Custodial Documents). The Servicer shall disburse such funds
from the appropriate Escrow Accounts as necessary or advisable. The
Servicer shall also be authorized to hold all partial payments and
forbearance payments in the Escrow Account and shall not be required to
deposit same into the Collection Account nor to remit same to the
related Owner until such time as the Servicer applies such payments to
the applicable Asset.
(b) The Servicer shall timely determine the amounts of all
required disbursements from the Escrow Accounts and shall make
disbursements as they become due. The Servicer shall also determine
whether any delinquency exists in the payment of Escrow Payments and
shall use commercially reasonable efforts to cause such deficient
amounts to be paid by the Obligor. If there are not sufficient funds in
the appropriate Escrow Account to make such payments as they become
due, the Servicer shall advance Escrow Payments unless the Servicer
determines in its reasonable judgment that an advance pursuant to this
or any other section will not be ultimately recoverable from late
Servicing Agreement Page 14
payments, insurance proceeds, Liquidation Proceeds or any other
recovery on such Asset or the related Property (a "Non-Recoverable
Advance"). If the Servicer determines that the Escrow Payment would
constitute a Non-Recoverable Advance, the Servicer will not be
obligated to make such advance. Any advances made towards Escrow
Payments shall be deemed to be Servicing Advances. The Servicer shall
be entitled to reimbursement of all such Servicing Advances as provided
in Section 6.2.
(c) The Servicer shall comply with the provisions of all
applicable Contract Requirements, the Requirements and the Custodial
Documents relating to the giving of all notices or other communications
required to be given by or on behalf of the related Owner to any
Mortgage Insurer, title insurer or other insurer or guarantor, as
applicable. The Servicer shall maintain all licenses that are material
to servicing the Assets pursuant to this Agreement. Where any
applicable Requirement or the Custodial Documents require any notice or
other communication to be given to an Obligor, the Servicer shall, in
the absence of instructions to the contrary from the related Owner,
give such notice or other communication to the Obligor.
(d) In accordance with the Acceptable Servicing Practices, the
Servicer shall advance the payment of property taxes and other similar
payments that are not timely paid by an Obligor on the date when such
tax or other cost for which such payment is intended is due, in each
instance if and to the extent amounts deposited into any related Escrow
Account are insufficient to pay such item when due and the related
Obligor has failed to pay such item on a timely basis, but the Servicer
shall be required to so advance only to the extent that such Servicing
Advances would not be deemed to be a Non-Recoverable Advance. If there
is no Escrow Account, the Servicer will be required to advance such
amounts necessary to protect the related Owner's interest in such
Mortgaged Property in accordance with Acceptable Servicing Practices.
The Servicer also will be required to make Servicing Advances necessary
to protect the related Owner's interest in any REO Property in
accordance with Acceptable Servicing Practices. All such Servicing
Advances shall be reimbursable to the Servicer as provided in Section
6.02. Notwithstanding any provision in this Agreement to the contrary,
the Servicer shall not be required to make any Servicing Advance that
it deems to be a Non-Recoverable Advance.
(e) The Servicer shall, as a Property Protection Expense if
not paid by an Obligor, (i) enforce the Obligor's obligations under the
Custodial Documents to cause each Property to be insured against risks,
hazards and liabilities as required by all applicable Requirements and
the Custodial Documents, in an amount at least equal to the unpaid
principal balance of the Asset, and (ii) cause each real estate owned
Property to be insured against risks, hazards and liabilities, in an
amount which is at least equal to the lesser of (A) the full
replacement value of the improvements which are a part of such real
estate owned Property, and (B) the outstanding principal balance of the
related Asset at the time it became real estate owned Property; such
insurance shall be obtained from a financially sound and reputable
insurance carrier. The Servicer shall retain copies of all Hazard
Insurance policies or certificates of insurance representing such
coverage. The Servicer shall comply with all of the terms of Mortgage
Insurance and guarantees
Servicing Agreement Page 15
relating to any Asset and shall use its best efforts to maintain such
Mortgage Insurance and guarantees in full force and effect provided
that the Servicer has actual knowledge of such insurance or guaranty.
In the event of an insured loss with respect to any Property, unless
the Servicer has actual knowledge that the Obligor has filed such a
claim with respect to a Property, the Servicer shall promptly file or
cause to be filed a claim on the Hazard Insurance. In the case of a
Property, the Servicer shall apply or disburse all insurance proceeds
in accordance with the terms and provisions of the Custodial Documents
and all Requirements, and, in the case of a real estate owned Property,
the Servicer shall apply or disburse all insurance proceeds in
accordance with the instructions of the related Owner, in each case net
of any amounts due to the Servicer as otherwise provided herein. The
Servicer shall be responsible for submitting a claim under any Mortgage
Insurance or other guaranty or insurance on a timely basis provided
that the Servicer has actual knowledge of such insurance or guaranty.
Except as otherwise prescribed by Accepted Servicing Practices with
respect to any Assets which are not first liens on the related
Properties, the Servicer shall, as a Property Protection Expense and
where the Obligor fails or refuses to maintain insurance on the
Property in accordance with the applicable Custodial Documents (or to
pay escrows sufficient therefor, as the case may be), subject the
Properties to the coverage of its "force-placed" hazard insurance
policy with such deductible as the Servicer maintains for similar
properties serviced for itself and for others by the Servicer. The
amount of any premiums to the Servicer resulting from obtaining such
coverage shall be treated as a Property Protection Expense hereunder.
The related Owner shall be solely responsible for the amount of the
deductible in the event of any loss and the Servicer shall have no
liability to such Owner therefor; provided however that the Servicer
will take all reasonable action in accordance with Accepted Servicing
Practices to collect such amounts from the Obligor.
Subject to the preceding paragraph, the Servicer shall keep in
force during the term of this Agreement a fidelity bond and a policy or
policies of insurance covering errors and omissions in the performance
of the Servicer's obligations under this Agreement. Such fidelity bond
and policy or policies shall be maintained with recognized insurers and
shall be in such form and amount as would permit the Servicer to be
qualified as a FNMA or FHLMC seller-servicer. The Servicer shall be
deemed to have complied with this provision if an affiliate of the
Servicer has such errors and omissions and fidelity bond coverage and,
by the terms of such insurance policy or fidelity bond, the coverage
afforded thereunder extends to the Servicer. The Servicer shall provide
Metropolitan, on behalf of the Owners, with a copy of such bond or
insurance policy on or prior to the Closing Date and shall provide
Metropolitan in the future within a reasonable time of receipt thereof
with copies of any material endorsements to any such policy or bond or
new or replacement polices or bonds.
If life-of-loan flood zone determination tracking currently
exists and has been transferred to the Servicer with respect to a
Mortgage Loan, the Servicer shall ensure that Flood Insurance is
maintained on the related Property that are identified in the Federal
Register by the Federal Emergency Management Agency as having special
flood hazards (and the flood insurance described below has been made
available). Any such Flood
Servicing Agreement Page 16
Insurance shall meet the current guidelines of the Federal Insurance
Administration and shall be with a generally acceptable insurance
carrier. If life-of loan flood zone determination tracking has not been
transferred to the Servicer with respect to a Mortgage Loan, the
Servicer shall not have an obligation to track or maintain flood
insurance with respect to the related Property.
The amount of the Flood Insurance Policy shall equal not less
than the least of (i) the lesser of (a) the unpaid principal balance of
the Asset, plus accrued interest and the aggregate of all Servicing
Advances, and (b) the full insurable value of the Property, but in each
case not less than such amount as is necessary to prevent the mortgagor
and/or the mortgagee from becoming a co-insurer or loss payee, and (ii)
the maximum amount of insurance which was available under the Flood
Disaster Protection Act of 1973.
(f) The Servicer shall prepare promptly each report required
by all applicable Requirements including reports to be delivered to all
governmental agencies having jurisdiction over the servicing of the
Assets and the Escrow Accounts, shall execute such reports or, if the
related Owner must execute such reports, shall deliver such reports to
such Owner for execution prior to the date on which such reports are
due and shall file such reports with the appropriate Persons. The
Servicer shall timely prepare and deliver to the appropriate Persons
such Internal Revenue Service forms as is required to service the
Assets in accordance with the Accepted Servicing Standards, including
but not limited to 1098 int, 1098 misc, 1099, 1099A and 1099C (or any
similar replacement, amended or updated Internal Revenue Service forms)
that are required with respect to any Asset for the time period such
Asset has been serviced by the Servicer. The related Owner shall be
solely responsible for filing any other forms including, without
limitation and to the extent applicable, forms 1041 and K-1 or any
similar replacement, amended or updated Internal Revenue Service forms.
The reports to be provided under this subsection shall cover the period
through the end of the month following the termination of this
Agreement or, in the case of reports to be sent to the Internal Revenue
Service, the end of the calendar year following termination of the
Agreement. The Servicer shall promptly prepare all reports or other
information required to respond to any inquiry from or give any
necessary instructions to any Mortgage Insurer, provider of Hazard
Insurance or other insurer or guarantor, taxing authority, tax
servicer, Association or the Obligor.
(g) The Servicer shall maintain such computer systems
(hardware and software), experienced staff and facilities as is
necessary to service the Assets hereunder.
(h) The Servicer shall hold and be responsible for responding
promptly and accurately to all reasonable requests from the related
Owner, the Obligor or other Persons for information relating to an
Asset or to the Obligor that the Servicer is required or permitted to
disclose to such Person, upon compliance by such Person of any
conditions to the release of such information.
(i) Following a payment in full of any Mortgage Loan, the
Servicer shall prepare and cause to be recorded the related instrument
of satisfaction or deed of reconveyance.
Servicing Agreement Page 17
SECTION 2.4. COLLECTION AND RESOLUTION ACTIVITIES. The Servicer shall
be responsible until the date an Asset ceases to be subject to this Agreement,
for using measures consistent with the Contract Requirements, the Requirements,
and the Accepted Servicing Practices to attempt to collect delinquent payments
on such Asset.
SECTION 2.5. SERVICING COMPENSATION.
The Servicer shall be entitled each month to the Servicing Fee. The
Servicing Fee shall be prorated for any period of less than a full calendar
month (not including Assets that pay off or are liquidated during any calendar
month). In addition, the Servicer shall be entitled to retain all Ancillary
Income. The Servicer shall not be obligated to deposit any Ancillary Income into
the Collection Account. In the event that the Servicer deposits into the
Collection Account any Ancillary Income, the Servicer may withdraw such amount
at any time from the Collection Account, any provision herein to the contrary
notwithstanding.
SECTION 2.6. ADDITIONAL SERVICING PROVISIONS RELATING TO LAND SALE
CONTRACTS.
If an Obligor elects to convert a Land Sale Contract to a mortgage or
deed of trust and mortgage note, the Servicer shall, (a) if the terms of the
Land Sale Contract provide for such conversion or if local law requires such
conversion or (b) if the conditions set forth in the succeeding paragraph are
met, prepare a special warranty deed, mortgage note and mortgage or deed of
trust, in each case containing the same basic terms as the Land Sale Contract to
be converted and in recordable form in the appropriate jurisdiction and
complying with any terms specified in the Land Sale Contract, along with a
mortgage note. If an Obligor under a Land Sale Contract that does not
specifically provide for conversion requests that such Land Sale Contract be
converted to a mortgage or deed of trust, the Servicer shall convert such Land
Sale Contract if the following conditions are met:
(i) the Servicer or its agent shall have checked
the applicable title records and shall have
determined that, after conversion of the
Land Sale Contract and recordation of the
resulting mortgage or deed of trust, such
mortgage or deed of trust will evidence a
first priority perfected security interest
on the Mortgaged Property; and
(ii) the Servicer shall have determined, in its
sole discretion and pursuant to any means it
deems appropriate, that it will be able to
collect all expenses and any processing fees
relating to the conversion of the Land Sale
Contract from the Obligor.
Prior to the execution of the mortgage note, mortgage or deed of trust,
Owner shall confirm that the Obligor, the amount of the debt secured by the
mortgage or deed of trust, the interest rate on the mortgage note, the schedule
of payments and the maturity date of the mortgage note are identical to the
corresponding terms of the related Land Sale Contract at the time of conversion.
Servicing Agreement Page 18
ARTICLE III
DEFAULT MANAGEMENT SERVICES
SECTION 3.1. DEFAULT MANAGEMENT RESPONSIBILITIES. Without limiting the
generality of Section 2.3, the Servicer is hereby authorized and empowered by
each Owner to take the following actions, without limitation: (i) prepare,
execute and deliver, on behalf of an Owner at its expense, any and all financing
statements, continuation statements and other documents or instruments necessary
to maintain the lien on each Property and related collateral; and, at the
Servicer's expense, modifications, waivers (including, without limitation,
waivers of any late payment charge in connection with any delinquent payment on
an Asset), consents, amendments, discounted payoff agreements, forbearance
agreements, cash management agreements or consents to or with respect to any
documents contained in the related Servicing File; and any and all instruments
of satisfaction or cancellation, or of partial or full release or discharge, and
all other instruments comparable to any of the types of instruments described in
this subsection (i), and (ii) institute and prosecute judicial and non-judicial
foreclosures, suits on promissory notes, indemnities, guaranties or other
Custodial Documents (including, without limitation, suits for collection of
monthly rental income under assignments of rents and suits for enforcement of
collateral contract obligations), actions for equitable and/or extraordinary
relief (including, without limitation, actions for temporary restraining orders,
injunctions, and appointment of receivers), suits for waste, fraud,
misapplication of rents and any and all other tort, contractual and/or other
claims of whatever nature, and to appear in and file on behalf of an Owner such
pleadings or documents as may be necessary or advisable in any bankruptcy
action, state or federal suit or any other action. The Servicer shall notify the
related Owner regarding any Asset that is proceeding through
foreclosure/forfeiture without modification, and the Owner shall have the option
to attempt an Asset modification with the related Obligor to the extent
permitted by law. All such fees generated in respect of a modification
undertaken by the related Owner shall be remitted by the Servicer to such Owner
unless the Servicer has provided services in connection therewith, in which case
the related Owner and the Servicer shall cooperate in determining the
appropriate allocation of such fees. The Servicer and the Owners agree to
cooperate in good faith to effect any Asset modifications desired to be entered
into pursuant to this Agreement.
SECTION 3.2. FORECLOSURE. If the Servicer reasonably
determines that foreclosure or forfeiture is appropriate with respect to an
Asset (including if it determines that foreclosure/forfeiture is appropriate in
conjunction with or as an alternative to collection efforts and default
management services hereunder), the Servicer shall retain an attorney and
supervise the conduct of the foreclosure/forfeiture proceeding, provided,
however, that the Servicer shall use its best efforts to notify and consult with
the related Owner in the event that the related Obligor has asserted legal
defenses based on the enforceability of the related Loan documents and, at such
Owner's option, the Owner may direct such foreclosure action in those cases
where such defenses are raised. If the Property is acquired in the
foreclosure/forfeiture proceeding, the Servicer may acquire the Property in the
name of the related Owner or its designee, and the Servicer shall commence
providing property management and disposition services as provided in Section
4.1. Notwithstanding anything to the contrary contained herein, in the event the
Servicer has reasonable cause to believe that a Property is an Environmental
Problem Property as described in Section 4.2 hereof, the Servicer shall notify
the related Owner in writing within
Servicing Agreement Page 19
three (3) Business Days of the Servicer's discovery of the existence of the
Environmental Problem Property, describe such problem, make a recommendation to
such Owner regarding handling the Property and carry out the recommendation
unless otherwise directed by such Owner in writing within five (5) Business Days
after such Owner's receipt (or deemed receipt) of such notice in accordance with
the terms and provisions of Section 11.3 below. In no event will the Servicer be
required to acquire record title to an Environmental Problem Property. If the
Servicer elects to proceed with a foreclosure/forfeiture in accordance with the
laws of the state where the Property is located, the Servicer shall not be
required to pursue a deficiency judgment against the related Obligor or any
other liable party if the laws of the state do not permit such a deficiency
judgment after such foreclosure or if the Servicer determines in its reasonable
judgment that the likely recovery if a deficiency judgment is obtained will not
be sufficient to warrant the cost, time, expense and/or exposure of pursuing the
deficiency judgment. The Servicer and Owners agree to cooperate in good faith to
effectuate the intent of this Section.
SECTION 3.3. DEED IN LIEU. If the Servicer pursues a deed in
lieu of foreclosure pursuant to the authority granted to the Servicer by the
terms and provisions of Section 3.1 above, the Servicer will retain counsel to
prepare appropriate documentation, execute and deliver such documentation on
behalf of the related Owner and may enter into an agreement with Obligor
regarding payment of any deficiency. The actions described herein shall be taken
by the Servicer in accordance with Accepted Servicing Practices or otherwise
with the consent of the related Owner. Title to such Property may be taken in
the name of the related Owner or its designee. Notwithstanding anything to the
contrary contained herein, in connection with a deed in lieu of foreclosure, in
the event the Servicer has reasonable cause to believe that a Property is an
Environmental Problem Property as described in Section 4.2 hereof, the Servicer
shall notify the related Owner in writing within three (3) Business Days of the
Servicer's discovery thereof of the existence of the Environmental Problem
Property, describe such problem, make a recommendation to such Owner regarding
handling the Property and carry out the recommendation unless otherwise directed
by such Owner in writing within five (5) Business Days after such Owner's
receipt (or deemed receipt) of such notice in accordance with the terms and
provisions of Section 11.3 below. In no event will the Servicer be required to
acquire record title to an Environmental Problem Property. The Servicer will
provide the services described in Section 4.1 with respect to each Property for
which a deed in lieu of foreclosure is received by the Servicer.
SECTION 3.4. BANKRUPTCY OF OBLIGOR. If the Servicer has actual
knowledge that an Obligor is the subject of a proceeding under the Bankruptcy
Code or any other similar law, has made an assignment for the benefit of
creditors or has had a receiver or custodian appointed for its property, the
Servicer shall retain an attorney to pursue claims to payment on the Asset and,
if applicable, foreclosure or begin a forfeiture action on the Property,
provided, however, that the Servicer shall use its best efforts to notify and
consult with the related Owner in the event that the related Obligor has
asserted legal defenses based on the enforceability of the related Loan
documents and, at such Owner's option, the Owner may direct such bankruptcy
proceeding and related actions in those cases where such defenses are raised. If
the Property is acquired in an insolvency proceeding, it shall be acquired in
the name of the related Owner or its designee. Within three (3) Business Days of
the Servicer's obtaining actual knowledge thereof, the Servicer shall notify
such Owner regarding any Asset the Obligor in respect of which is the subject of
a
Servicing Agreement Page 20
proceeding under the Bankruptcy Code or any other similar law, has made an
assignment for the benefit of creditors or has had a receiver or custodian
appointed for its property. The Servicer and Owners agree to cooperate in good
faith to effectuate the intent of this Section.
ARTICLE IV
PROPERTY MANAGEMENT AND DISPOSITION SERVICES
SECTION 4.1. PROPERTY MANAGEMENT AND DISPOSITION RESPONSIBILITIES. With
respect to each Property that is acquired for the benefit of the related Owner,
the Servicer shall, in accordance with Accepted Servicing Practices, provide
property management and disposition services with respect to such 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 leasable or salable), Escrow Account administration
for payment of Escrow Payments and property sales, provided, however, that in
the event the Property Improvement Expenses to be incurred with respect to any
individual Property will equal or exceed $10,000, the Servicer shall notify the
related Owner and such Owner will review and approve or reject all or part of
such expenditure within five (5) Business Days of such notice by the Servicer.
An Owner may, in its discretion, participate in the marketing and sales process
in respect of any Property acquired on such Owner's behalf, and such Owner may
make the determination as to sales price and marketing method and the selection
of third-party vendors; provided, that the Servicer shall have no responsibility
or liability with respect to such determination and any third-party vendor
selected by an Owner in respect of a Property acquired on such Owner's behalf
may be terminated by the Servicer for cause. Furthermore, an Owner may offer
financing to a purchaser of REO Property. Any fees charged by an Owner in
connection with the marketing of any REO Property will be remitted to such Owner
by the Servicer from the related sales proceeds to the extent received by the
Servicer. The Servicer and Owners agree to cooperate in good faith to effectuate
the intent of this Section.
SECTION 4.2. ENVIRONMENTAL PROBLEMS. If the Servicer hereafter becomes
aware that a Property is an Environmental Problem Property, the Servicer will
notify the related Owner in writing within three (3) Business Days of the
existence of the Environmental Problem Property. Additionally, the Servicer
shall set forth in such notice a description of such problem, a recommendation
to the related Owner relating to the proposed action regarding the Environmental
Problem Property and the Servicer shall carry out the recommendation set forth
in such notice unless otherwise directed by such Owner in writing within five
(5) Business Days after such Owner's receipt (or deemed receipt) of such notice
in accordance with the terms and provisions of Section 11.3 below. If the
Servicer has reason to believe that a Property is an Environmental Problem
Property (e.g., the Servicer obtains a broker's price opinion which reveals the
potential for such problem), the Servicer will not accept a deed-in-lieu of
foreclosure upon any such Property without first obtaining a preliminary
environmental investigation for the Property satisfactory to the related Owner.
Servicing Agreement Page 21
ARTICLE V
STANDARDS FOR CONDUCT
SECTION 5.1. STANDARDS OF CARE AND DELEGATION OF DUTIES.
(a) The obligation of the Servicer to perform its duties under
this Agreement, including any duty to obtain or verify information,
will be satisfied so long as the Servicer acts in a manner consistent
with Accepted Servicing Practices. The Servicer shall not be
responsible for the form, substance, validity, perfection, priority,
effectiveness or enforceability of any documents in the Servicing File
on the applicable Transfer Date or on the date that it obtains such
documents from the Current Servicer. The Servicer shall notify the
Owner in writing within three (3) Business Days of the Servicer's
discovery thereof of a claim against the substance, validity,
perfection, priority, effectiveness or enforceability of any documents
in the Servicing File or Custodial File.
(b) In the performance of its duties and obligations under
this Agreement, the Servicer may act directly or through agents,
subservicers, independent counsel, accountants and other independent
professional Persons, or it may delegate the performance of functions
and consult with agents, independent counsel and other independent
Persons; provided, however, that no such delegation shall relieve the
Servicer from any of its obligations hereunder and any subservicing
arrangement shall require the prior consent of the related Owner.
Additionally, in the event that the Servicer believes that it is unable
to comply with the requirements of Section 5.1(a) with respect to any
particular Asset as a result of the Servicer's relationship with an
Obligor or some other reason which would cause the Servicer to be in
violation of Accepted Servicing Practices, it may enter into a
subservicing agreement whereby a subservicer shall perform the
Servicer's duties with respect to such Asset. In such event, so long as
such subservicer performs such duties on behalf of the Servicer, in
accordance with the other terms and provisions of this Agreement, then
the Servicer shall be deemed to be in compliance therewith.
(c) the Servicer shall be entitled to rely upon any notice,
document, correspondence, request, directives or other communication
received by it from an Owner that the Servicer believes to be genuine
and to have been signed or presented by an authorized officer or
representative of an Owner, and shall not be obligated to inquire as to
the authority or power of any Person so executing or presenting any
notice, document, correspondence, request, directive or other
communication or as to the truthfulness of any statements therein.
Servicing Agreement Page 22
SECTION 5.2. TRANSACTIONS WITH RELATED PERSONS. In carrying out its
obligations and duties under this Agreement, the Servicer may contract with its
affiliates, provided that all Persons with whom the Servicer may contract, enter
into arrangements with or otherwise deal with, shall be engaged on a
commercially reasonable arm's-length basis and at competitive rates of
compensation. Nothing contained in this Agreement will prevent the Servicer or
its affiliates from engaging in other businesses or from acting in a similar
capacity for any other Person even though such Person may engage in business
activities similar to those of an Owner or its affiliates.
SECTION 5.3. ACCESS TO RECORDS.
(a) To the extent required by this Agreement, the Servicer
will establish and maintain a system of (i) records of operational
information relating to the collection of Assets, the conduct of
default management services and the administration, management,
servicing, repair, maintenance, rental, sale or other disposition of
Assets and Properties and (ii) books and accounts, which shall be
maintained in accordance with customary business practices, of
financial information relating to the Assets and the Properties.
Information may be maintained on a computer or electronic system. The
Servicer shall maintain a disaster recovery system with respect to such
information.
(b) If an Owner provides reasonable prior written notice, such
Owner and its respective accountants, regulators, attorneys, agents or
designees may, subject to the confidentiality provisions of Section
8.3(d), examine the Servicer's books and records relating to the Assets
during normal business hours of the Servicer. Any expenses incurred by
any parties conducting such examination shall not be the responsibility
of the Servicer. In addition, the Servicer shall provide to an Owner
any other information, related to the Assets reasonably requested by
such Owner in a format reasonably requested by such Owner, provided,
however, that such information and format are readily accessible and
available to the Servicer at no added cost to the Servicer. The
Servicer agrees to reasonably cooperate with any requested audits of
the servicing of the Assets by the Owners or their respective insurance
or other regulators, provided, however, that the Servicer shall be
compensated for any extraordinary time or document production demands
placed on the Servicer in connection with such audits. The Servicer
shall make available to Metropolitan, on behalf of all the Owners,
on-line access to the Servicer's servicing system with respect to the
Assets and, when available, on-line images of the Servicing Documents
contained in the Servicing Files, in each case as further provided in
Section 7.04 of the Servicing Rights Purchase Agreement.
(c) Upon the written request by an Owner, the Servicer shall
deliver to such Owner for a period of not more than ten (10) Business
Days the Servicing File for any Asset.
SECTION 5.4. ANNUAL AUDIT. On or before April 30 of each year,
beginning with April 30, 2002, the Servicer shall furnish a statement to
Metropolitan, on behalf of the Owners, prepared by a firm of independent public
accountants (who may also render other services to the Servicer), which is a
member of the American Institute of Certified Public Accountants, to the
Servicing Agreement Page 23
effect that such firm has examined certain documents and records for the
preceding calendar year (or during the period from the date of commencement of
such servicer's duties hereunder until the end of such preceding calendar year
in the case of the first such certificate) and that, on the basis of such
examination conducted substantially in compliance with the Uniform Single
Attestation Program for Mortgage Bankers, such firm is of the opinion that the
Servicer's overall servicing operations have been conducted in compliance with
the Uniform Single Attestation Program for Mortgage Bankers except for such
exceptions that, in the opinion of such firm, the Uniform Single Attestation
Program for Mortgage Bankers requires it to report, in which case such
exceptions shall be set forth in such statement.
ARTICLE VI
REMITTANCES AND REPORTS TO OWNER
SECTION 6.1. SERVICING ADVANCES. The Servicer shall make Servicing
Advances with respect to the Assets in accordance with this Agreement and
Accepted Servicing Practices; provided, however, that the Servicer shall not be
obligated to make any such Servicing Advance if the Servicer determines in its
reasonable judgment that such advance will be a Non-Recoverable Advance. Any
advances made towards Escrow Payments, Property Protection Expenses and/or
Property Improvement Expenses shall be deemed to be Servicing Advances. The
Servicer shall be entitled to reimbursement of all Servicing Advances made
pursuant to this Agreement pursuant to Section 6.2. To the extent that the
Servicer has previously withdrawn funds from the Collection Account to pay for
third party costs relating to any Servicing Advances and the Servicer thereafter
recovers cash from the Obligor or any other Persons for such amounts, the
Servicer shall deposit such recovered cash into the Collection Account. The
Servicer shall use reasonable efforts to seek reimbursement from Obligors for
Servicing Advances made with respect to the related Assets to the extent
permitted under the related Contract Requirements and the Requirements.
SECTION 6.2. REMITTANCES AND MONTHLY REPORT. On each Distribution Date,
the Servicer shall submit to Metropolitan, on behalf of each Owner, a Monthly
Report for each Owner in electronic format substantially in the form hereafter
mutually agreed upon by the Owners and the Servicer), which report will include
the following, without limitation: (i) all collections of interest and principal
(from whatever source) and Prepayment Penalties on the Assets related to such
Owner and all collections in respect of the related REO Properties (including
sale proceeds and rental payments), if any, during the related Collection
Period, (ii) a detailed description of Servicing Fees and Ancillary Fees with
respect to the related Assets, (iii) a detailed description of all Servicing
Advances with respect to the related Assets incurred during the related
Collection Period, (iv) a detailed description of amounts received from Obligors
or other Persons in payment of Servicing Advances previously made with respect
to the related Assets, (v) all distributions from the Collection Account with
respect to the related Assets since the preceding Distribution Date with respect
to each Owner, (vi) those Assets with respect to such Owner that are in
foreclosure/forfeiture or subject to bankruptcy proceedings and the relevant
status date relating to each, (vii) the delinquency status of the Assets related
to such Owner, and (viii) those Assets for which an assumption has been
processed during the related Collection Period. On each Distribution Date, the
Servicer shall withdraw the Monthly
Servicing Agreement Page 24
Collection Amount with respect to each Owner from the Collection Account and
distribute the amount withdrawn in the following priority:
(a) to pay itself the applicable Servicing Fee with respect to
the Assets relating to such Owner earned during the related Collection
Period and to pay itself all Ancillary Income with respect to such
Assets earned during the related Collection Period (to the extent
deposited into the Collection Account);
(b) to reimburse itself for Servicing Fees and Ancillary
Income with respect to the Assets relating to such Owner earned during
Collection Periods prior to the related Collection Period, to the
extent not previously paid or reimbursed;
(c) to reimburse itself for unreimbursed Servicing Advances
made with respect to the Assets relating to such Owner during the
related Collection Period or prior Collection Periods to the extent
received from the related Obligor or other Persons or from Liquidation
Proceeds or proceeds from Mortgage Insurance for the related Asset for
which such Servicing Advance was made;
(d) to reimburse itself for any Servicing Advances that are
Non-Recoverable Advances to the extent amounts specified in clause (c)
are insufficient to reimburse the Servicer for such Servicing Advances;
(e) to reimburse the Servicer for any expenses incurred by and
reimbursable to the Servicer pursuant to this Agreement, but not
including expenses incurred pursuant to Section 8.3; and
(f) to each Owner, the amount remaining from the Monthly
Collection Amount relating to such Owner after applying amounts
pursuant to clauses (a) through (e) above.
Notwithstanding any provision in this Agreement to the contrary, the
Servicer shall remit the proceeds from any loan liquidations or prepayments in
full (net of Servicing Fees and other amounts due the Servicer with respect to
the related Asset) to Metropolitan, on behalf of the related Owner, within five
(5) Business Days of receipt by the Servicer.
Amounts payable to the Owners pursuant to this Section 6.2 shall be
paid by wire transfer in immediately available funds (by 3:00 p.m., eastern time
on the day of transfer) to a single account designated by Metropolitan, on
behalf of the Owners.
Notwithstanding any provision in this Agreement to the contrary,
Servicing Fees and Ancillary Income received by the Servicer need not be
deposited by the Servicer in the Collection Account and may be retained by the
Servicer. In addition, prior to remitting amounts to the Collection Account the
Servicer may reimburse itself for Servicing Advances made with respect to a
particular Asset to the extent received from the related Obligor or other
Persons or from Liquidation Proceeds or proceeds from Mortgage Insurance for the
related Asset. In the event the Servicer shall deposit in the Collection Account
any amount not required to be deposited therein,
Servicing Agreement Page 25
it may at any time withdraw such amount from the Collection Account, any
provision to the contrary notwithstanding.
SECTION 6.3. REMITTANCE UPON TERMINATION.
Upon the termination of this Agreement, the Servicer shall withdraw all
funds from the Collection Account and shall distribute such funds in the
following priority:
(a) from amounts in the Collection Account received with
respect to the Assets relating to each Owner, to reimburse itself for
all unpaid Servicing Fees, Servicing Advances and Ancillary Income with
respect to such Assets; and
(b) to each Owner the remaining amount in the Collection
Account received with respect to the Assets relating to such Owner
after applying amounts pursuant to clause (a) above.
Amounts payable to the Owners shall be paid by wire transfer in immediately
available funds (by 3:00 p.m., eastern time on the day of transfer) to a single
account designated by Metropolitan, on behalf of the Owners.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. REPRESENTATIONS AND WARRANTIES OF THE SERVICER. The
Servicer, as a condition to the consummation of the transactions contemplated
hereby, hereby makes the following representations and warranties to Owners as
of the Closing Date and the Transfer Date:
(a) Organization and Good Standing; Licensing. The Servicer is
a federal savings association duly organized, validly existing and in
good standing under the laws of the United States of America and has
the power and authority to own its assets and to transact the business
in which it is currently engaged. The Servicer is duly qualified to do
business as a foreign corporation and is in good standing and is duly
licensed in each jurisdiction in which the character of the business
transacted by it or properties owned, or leased or serviced by it
requires such qualification or licensing (except where there is an
appropriate statutory exemption applicable to the Servicer or the
failure so to qualify would not have a material adverse effect on the
business, properties, assets or financial condition of the Servicer or
any Owner).
(b) Authorization: Binding Obligations. The Servicer has the
power and authority to make, execute, deliver and perform this
Agreement, including all instruments of transfer to be delivered
pursuant to this Agreement, and perform all of the transactions
contemplated to be performed by it under this Agreement, and has taken
all necessary action to authorize the execution, delivery and
performance of this Agreement. When executed and delivered, this
Agreement will constitute the legal, valid and binding obligation of
the Servicer enforceable against it in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally
and by the availability of equitable remedies.
Servicing Agreement Page 26
(c) No Consent Required. The Servicer is not required to
obtain the consent of any other party or any consent, license, approval
or authorization from, or registration or declaration with, any
governmental authority, bureau or agency in connection with the
execution, delivery, performance, validity or enforceability of this
Agreement, except such as have been obtained or made or as to which the
failure to obtain or make will not materially adversely affect the
ability of the Servicer to perform its obligation hereunder.
(d) No Violations. The execution, delivery and performance of
this Agreement by the Servicer will not violate any provision of any
existing law or regulation or any order or decree of any court
applicable to the Servicer, except for violations that will not
adversely affect the Servicer's ability to perform its obligations
hereunder, or the charter or by-laws of the Servicer, or constitute a
material breach of any mortgage, indenture, contract or other agreement
to which the Servicer is a party or by which the Servicer may be bound.
(e) Litigation. No litigation or administrative proceeding of
or before any court, tribunal or governmental body is currently pending
or to the knowledge of the Servicer threatened, against the Servicer or
any of its properties or with respect to this Agreement, which if
adversely determined, would have a material adverse effect on the
transactions contemplated by this Agreement.
(f) FNMA or FHLMC Approved. The Servicer is an approved
seller/servicer for FNMA or FHLMC in good standing. No event has
occurred that would make the Servicer unable to comply with FNMA or
FHLMC eligibility requirements, would require notification to FNMA or
FHLMC, or, with notification to FNMA or FHLMC, would result in a breach
of the representation made in the preceding sentence.
SECTION 7.2. REPRESENTATIONS AND WARRANTIES OF THE OWNERS. Each Owner,
as a condition to the consummation of the transactions contemplated hereby,
hereby makes the following representations and warranties to the Servicer as of
the Closing Date and the Transfer Date, provided, however, that no Owner makes
any such representation or warranty with respect to any other Owner or any other
Owner's related Assets:
(a) Organization and Good Standing; Licensing. Each Owner is a
corporation or insurance corporation, as the case may be, duly
organized, validly existing and in good standing under the laws of the
state of its organization and has the power and authority to own its
assets and to transact the business in which it is currently engaged.
Each Owner is duly qualified to do business as a foreign corporation
and is in good standing in each jurisdiction in which the character of
the business transacted by it or properties owned or leased by it
requires such qualification (except where there is an appropriate
statutory exemption applicable to an Owner or the failure so to qualify
would not have a material adverse effect on the business, properties,
assets or condition (financial or otherwise) of such Owner or the
Servicer).
(b) Authorization: Binding Obligations. Each Owner has the
power and authority to make, execute, deliver and perform this
Agreement (including all
Servicing Agreement Page 27
instruments of transfer to be delivered pursuant to this Agreement) and
perform all of the transactions contemplated to be performed by it
under this Agreement, and has taken all necessary action to authorize
the execution, delivery and performance of this Agreement. When
executed and delivered, this Agreement will constitute the legal, valid
and binding obligation of each Owner enforceable in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency
or similar laws affecting the enforcement of creditors' rights
generally and by the availability of equitable remedies.
(c) No Consent Required. No Owner is required to obtain the
consent of any other party or any consent, license, approval or
authorization from, or registration or declaration with, any
governmental authority, bureau or agency in connection with the
execution, delivery, performance, validity or enforceability of this
Agreement, except such as have been obtained or made.
(d) No Violations. The execution, delivery and performance of
this Agreement by each Owner will not violate any provision of any
existing law or regulation or any order or decree of any court
applicable to such Owner, or constitute a material breach of any
mortgage, indenture, contract or other agreement to which such Owner is
a party or by which such Owner may be bound.
(e) Litigation. No litigation or administrative proceeding of
or before any court, tribunal or governmental body is currently pending
or to the knowledge of any Owner threatened, against such Owner or any
of its properties or with respect to this Agreement, which if adversely
determined would have a material adverse effect on the transactions
contemplated by this Agreement.
(f) Compliance with Laws. Each Asset has been originated and
serviced in compliance with all applicable federal, state and local
laws and regulations and consistent with the requirements of the
Assets.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1. LIABILITIES TO OBLIGORS. No liability to any Obligor under
any of the Assets arising out of any act or omission to act of any servicer,
subservicer, owner, holder or originator of the Assets prior to the applicable
Transfer Date is assumed by the Servicer under or as a result of this Agreement
and the transactions contemplated hereby and, to the maximum extent permitted
and valid under mandatory provisions of law, the Servicer expressly disclaims
such assumption.
SECTION 8.2. SERVICER'S INDEMNITY OF THE OWNER. (a) The Servicer shall
defend and indemnify each Owner against any and all claims, losses, damages,
liabilities, judgments, penalties, fines, forfeitures, reasonable legal fees and
expenses, and any and all related costs and/or expenses of litigation,
administrative and/or regulatory agency proceedings, and any other costs, fees
and expenses, suffered or incurred (excluding, however, punitive damages,
exemplary
Servicing Agreement Page 28
damages and loss of profit damages) by such Owner (each, a "Liability") arising
out of or resulting from third party claims or actions that were caused directly
by or directly resulted from a breach of any of the Servicer's representations
and warranties contained in this Agreement or the failure of the Servicer to
perform its duties in accordance with the terms of this Agreement. The Servicer
shall not be liable to any Owner, however, with respect to action taken, or for
refraining from taking any action, with respect to any Asset at or in conformity
with the direction of an Owner, or for any Liability caused by or resulting from
a delay occasioned by an Owner's objection to a proposal by the Servicer
hereunder, or for any Liability caused by or resulting from an Owner's breach of
a representation or warranty herein or for any Liability incurred by reason of
an Owner's willful misfeasance, bad faith or negligence in acting or refraining
from acting or any failure of performance or as a result of a breach of any
representations, warranties or covenants made by an Owner hereunder. In any
event, the Servicer shall not have any liability or obligations for any actions
of any prior servicer, subservicer, originator, holder or owner, or any
successor servicer (other than the Servicer), of the Assets.
(b) It is understood and agreed that during the term of this Agreement
the Servicer and its agents may have access to certain of each Owner's
confidential and proprietary information including, without limitation, each
Owner's acquisition methods and underwriting standards and procedures, and other
proprietary systems and procedures (the "Confidential Information"). The term
"Confidential Information" does not include information which becomes generally
available to the public other than as a result of disclosure by the Servicer or
its representatives. The Servicer shall keep confidential and shall not divulge
to any party other than an officer or employee or its agents of the Servicer who
has a need to know, without any Owner's prior written consent, any Confidential
Information. In the event that the Servicer is requested or required (by oral
questions, interrogatories, requests for information or documents, subpoena,
civil investigative demand or similar process) to disclose any Confidential
Information, it is agreed that the Servicer will provide an Owner with prompt
notice of such request(s) so that such Owner may seek an appropriate protective
order and/or waive compliance with the provisions of this subsection, in such
Owner's sole and absolute discretion. If, failing the entry of a protective
order or the receipt of a waiver hereunder, the Servicer is, in the opinion of
its counsel, compelled to disclose Confidential Information, the Servicer may
disclose that portion of the Confidential Information, which counsel advises
that the Servicer is compelled to disclose and will exercise reasonable efforts
to obtain assurance that confidential treatment will be accorded to that portion
of the Confidential Information which is being disclosed. The Servicer
acknowledges that an Owner will incur irreparable damage if the Servicer should
breach the terms and provisions of this subsection. Accordingly, if the Servicer
or the Servicer's directors, officers, employees, invitees, agents or
representatives breaches or threatens to breach any of the provisions of this
subsection, such Owner shall be entitled, without prejudice, to all the rights
and remedies available to it, including a temporary restraining order and an
injunction restraining any breach of the provisions of this subsection (without
any bond or other security being required therefor).
Servicing Agreement Page 29
SECTION 8.3. OWNERS' INDEMNITY OF THE SERVICER; LIMITATION ON LIABILITY
OF THE SERVICER.
(a) Each Owner shall defend and indemnify the Servicer against
any Liability arising from (i) third party claims or actions that were
caused by or resulted from (A) any actions or omissions in respect of
any Asset of any Owner or any prior servicer, subservicer, owner or
originator of an Asset and/or (B) taking any action, or refraining from
taking any action, with respect to any Asset at or in conformity with
this Agreement or the direction of an Owner, and/or (ii) any
Environmental Liability (as defined in Section 8.3(c) below), (iii) any
breach by an Owner or an Owner's directors, officers, employees,
agents, invitees or representatives of an Owner's obligations under
Section 8.3(d) below, and (iv) any Liability relating to the failure or
refusal of an Owner or any trustee or custodian in possession of
original Custodial Documents to timely provide to the Servicer the
originals of any Custodial Documents in order to allow the Servicer
sufficient time to timely process satisfactions, payoffs and releases.
(b) Neither the Servicer nor any directors, officers,
employees or agents of the Servicer shall be liable to an Owner for any
action taken or for refraining from taking any action in good faith
pursuant to this Agreement or for errors in judgment; provided,
however, that this provision shall not protect the Servicer against any
liability directly and solely caused by the Servicer that would
otherwise be imposed by reason of the Servicer's negligence, willful
misfeasance or bad faith in the performance of or failure to perform
duties hereunder. The Servicer may rely in good faith on any document
of any kind prima facie properly executed and submitted to the Servicer
respecting any matters arising hereunder and shall not be liable for
taking any action or refraining from taking any action in good faith
reliance thereon, pursuant to this Agreement.
(c) The term "Environmental Liability" shall mean any and all
claims, losses, damages, liabilities, judgments, penalties, fines,
forfeitures, reasonable legal fees and expenses, and any and all
related costs and/or expenses of litigation, administrative and/or
regulatory agency proceedings, and any other costs, fees and expenses,
suffered or incurred by the Servicer arising out of or resulting from
the introduction of such materials on any Property before and/or after
the date hereof, including, without limitation, (a) any liability under
or on account of the Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. Section 9601 et seq., as the same may be
amended from time to time, and/or any other federal or state
environmental laws, and specifically including, without limitation, any
liability relating to asbestos and asbestos containing materials,
polychlorinated biphenyls, radon gas, petroleum and petroleum products,
urea formaldehyde and any substances classified as being "in
inventory", "usable work in process" or similar classification which
would, if classified as unusable, be included in the foregoing
definition, including the assertion of any lien thereunder, (b) claims
brought by third parties for loss or damage incurred or sustained
subsequent to the date hereof, and (c) liability with respect to any
other matter affecting the Property within the jurisdiction of the
federal Environmental Protection Agency or state environmental
regulatory agencies pursuant to any state laws, and in the regulations
adopted pursuant to any of said laws; provided, however, that the
indemnity for
Servicing Agreement Page 30
Environmental Liability shall not be effective with respect to any
liability directly and solely caused by the Servicer that would
otherwise be imposed by reason of the Servicer's gross negligence,
willful misfeasance or bad faith in the performance of or failure to
perform duties hereunder.
(d) It is understood and agreed that during the term of this
Agreement the Owners and their agents may have access to certain of the
Servicer's confidential and proprietary information including, without
limitation, the Servicer's computer systems and models, secure web
site, investor reporting systems, default management systems and
procedures, and other proprietary systems and procedures (the
"Confidential Information"). The term "Confidential Information" does
not include information which becomes generally available to the public
other than as a result of disclosure by an Owner or its
representatives, but shall be deemed not to include the Servicing Fee
contained herein (to the extent required to be reflected in an Owner's
financial statements) or any document that any Owner must file with
securities regulators, but shall include any and all passwords or
identification codes, access codes, modem dial-up numbers and similar
items. The Owners shall keep confidential and shall not divulge to any
party other than an officer, employee or agent of the Owners who has a
need to know, without the Servicer's prior written consent, any
Confidential Information. In the event that any Owner is requested or
required (by oral questions, interrogatories, requests for information
or documents, subpoena, civil investigative demand or similar process)
to disclose any Confidential Information, it is agreed that such Owner
will provide the Servicer with prompt notice of such request(s) so that
the Servicer may seek an appropriate protective order and/or waive
compliance with the provisions of this subsection, in the Servicer's
sole and absolute discretion. If, failing the entry of a protective
order or the receipt of a waiver hereunder, the Owner is, in the
opinion of its counsel, compelled to disclose Confidential Information,
the Owner may disclose that portion of the Confidential Information,
which counsel advises that the Owner is compelled to disclose and will
exercise reasonable efforts to obtain assurance that confidential
treatment will be accorded to that portion of the Confidential
Information which is being disclosed. Each Owner acknowledges that the
Servicer will incur irreparable damage if any Owner should breach the
terms and provisions of this subsection. Accordingly, if an Owner or an
Owner's directors, officers, employees, invitees, agents or
representatives breaches or threatens to breach any of the provisions
of this subsection, the Servicer shall be entitled, without prejudice,
to all the rights and remedies available to it, including a temporary
restraining order and an injunction restraining any breach of the
provisions of this subsection (without any bond or other security being
required therefor).
SECTION 8.4. INDEMNIFICATION PROCEDURES. If, for so long as this
Agreement is in effect, a party entitled to indemnification hereunder
("Indemnified Party") has actual notice or knowledge of any claim or loss for
which indemnification by an indemnifying party hereunder ("Indemnifying Party")
is asserted, the Indemnified Party shall give to the Indemnifying Party written
notice within such time as is reasonable under the circumstances, describing
such claim or loss in reasonable detail. In the event that a demand or claim for
indemnification is made hereunder with respect to losses the amount or extent of
which is not yet known or certain, the
Servicing Agreement Page 31
notice of demand for indemnification shall so state, and, where practicable,
shall include an estimate of the amount of the losses.
(a) In the case of actual notice of indemnification hereunder
involving any litigation, arbitration, legal or regulatory proceeding,
the Indemnifying Party shall have responsibility to, and shall employ
counsel reasonably acceptable to the Indemnified Party, and shall
assume all expense with respect to, the defense or settlement of such
claim; provided however, that:
(i) the Indemnified Party shall be entitled to
participate in the defense of such claim and
to employ counsel at its own expense to
assist in the handling of such claim; and
(ii) the Indemnifying Party shall obtain the
prior written approval of the Indemnified
Party before entering into any settlement of
such claim or ceasing to defend against such
claim if, pursuant to or as a result of such
settlement or cessation, (1) injunctive or
other relief (excepting the payment of money
damages) would be imposed against any
Indemnified Party which could materially
interfere with the business, operations,
assets, conditions (financial or otherwise)
or prospects of the Indemnified Party, or
(2) the settlement of cessation shall result
in an indemnification obligation of the
Indemnifying Party that, in the reasonable
judgment of the Indemnified Party, cannot be
fulfilled by the Indemnifying Party in
accordance with the terms of this Agreement.
If the Indemnifying Party does not provide
to the Indemnified Party, within fifteen
(15) days after receipt of a notice of
indemnification, a written acknowledgment
that the Indemnifying Party shall assume
responsibility for the defense or settlement
of such claim as provided in this Section
8.4, the Indemnified Party shall have the
right to defend and settle the claim in such
manner as it may deem appropriate at the
cost and expense of the Indemnifying Party,
and the Indemnifying Party shall promptly
reimburse the Indemnified Party therefor in
accordance with this Agreement.
Servicing Agreement Page 32
SECTION 8.5. OPERATION OF INDEMNITIES. If any Person has made any
indemnity payments to any other Person pursuant to this Article VIII and such
other Person thereafter collects any of such amounts from others, such other
Person will repay such amounts collected, together with any interest collected
thereon. The provisions of this Article VIII shall survive any termination of
this Agreement, the liquidation of any Asset, or the transfer or assignment by
an Owner to another Person of any Asset or any interest in any Asset.
ARTICLE IX
DEFAULT
SECTION 9.1. EVENTS OF DEFAULT. The following shall constitute
"Servicer Events of Default" hereunder by the Servicer:
(a) any failure by the Servicer to make any deposit or
payment, or to remit any payment (including a Servicing Advance
required to be made pursuant to this Agreement), required to be made
under the terms of this Agreement which continues unremedied for a
period of three (3) Business Days after the date upon which written
notice of such failure, requiring the same to be remedied, shall have
been given to the Servicer by an Owner; or
(b) failure on the part of the Servicer duly to observe or
perform in any material respect any other of the representations,
warranties, covenants or agreements on the part of the Servicer set
forth in this Agreement which continues unremedied for a period of
sixty (60) days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the
Servicer by an Owner; or
(c) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency or
similar law or appointing a conservator or receiver or liquidator in
any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the
Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of sixty (60) days; or
(d) the Servicer shall consent to the appointment of a
trustee, conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings of or relating to the Servicer or of or relating to all or
substantially all of the property of the Servicer; or
(e) the Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute, make
an assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations or take any action in furtherance of the
foregoing; or
(f) the Servicer assigns or attempts to assign its rights to
the servicing compensation hereunder or attempts to assign this
Agreement or the servicing
Servicing Agreement Page 33
responsibilities hereunder without the consent of the Owners except as
otherwise expressly permitted by the other terms and provisions of this
Agreement.
SECTION 9.2. EFFECT OF TRANSFER. After the effective date of the
termination of servicing duties pursuant to Section 10.1, the Servicer shall
have no further obligations hereunder other than under Article VIII or Article
X.
ARTICLE X
TERM
SECTION 10.1. TERM OF AGREEMENT.
(a) This Agreement shall terminate upon the distribution of
the final payment of Liquidation Proceeds on the last Asset subject to
this Agreement.
(b) If the Servicer fails to perform any of its obligations
which would result, after expiration of the applicable notice and cure
or grace period (if applicable), in a Servicer Event of Default
hereunder, the Owners may terminate this Agreement by written notice to
the Servicer, specifying the effective date of such termination and
instructions with respect to the Servicing Files and Custodial Files.
The Servicer shall do all things necessary or appropriate to effect the
purposes of such termination and the transfer of servicing, including
payment of all of its costs and expenses related to the transfer of
servicing. On or after the receipt by the Servicer of such written
notice, all authority and power of the Servicer under this Agreement
with respect to the Assets shall terminate effective as of the date
specified in such written notice. If the Servicer fails to perform any
of its obligations which would result, after expiration of the
applicable notice and cure or grace period (if applicable), in a
Servicer Event of Default hereunder, the non-breaching party may also
pursue whatever rights it may have at law or in equity to damages,
including injunctive relief and specific performance.
(c) This Agreement also may be terminated with respect to one
or more Assets in connection with the sale of the related Servicing
Rights pursuant to the terms of the Agreement to Sell Servicing Rights.
Otherwise, this Agreement may not be terminated without cause by the
Owners.
SECTION 10.2. TRANSFERS OF SERVICING. Except as provided in this
Agreement, the Servicing Rights Purchase Agreement or the Agreement to Sell
Servicing Rights, the Servicer shall not pledge or assign this Agreement or its
rights to the Servicing Fee or transfer the servicing hereunder or delegate its
rights or duties hereunder without the prior written approval of each Owner.
SECTION 10.3. SERVICER NOT TO RESIGN. The Servicer shall not resign
from the obligations and duties imposed on the Servicer by this Agreement,
except (i) by mutual consent of the Servicer and each Owner, (ii) upon a
material breach of an Owner's obligations hereunder or under the Servicing
Rights Purchase Agreement, (iii) upon the determination that the Servicer's
duties hereunder are no longer permissible under applicable law and such
incapacity
Servicing Agreement Page 34
cannot be cured by the Servicer or (iv) as a result of the transfer of Servicing
Rights pursuant to the Agreement to Sell Servicing Rights. Any determination
under clause (iii) above shall be evidenced by an opinion of counsel to such
effect delivered to each Owner in form and substance reasonably acceptable to
the Owners. No resignation shall become effective until the Owners or their
designee shall have assumed the Servicer's responsibilities and obligations
hereunder.
SECTION 10.4. SUCCESSOR SERVICER. If any successor servicer succeeds to
the obligations of the Servicer after a termination pursuant to Sections 10.1 or
10.3 above, the successor servicer, to the extent necessary to permit the
successor servicer to carry out the provisions of the terms hereof and without
act or deed on the part of the successor servicer, shall succeed to all of the
rights and obligations of the Servicer under any servicing agreement entered
into pursuant to Section 5.1(b). In such event, the successor servicer shall be
deemed to have assumed all of the Servicer's interest therein and to have
replaced the Servicer as a party to such servicing agreement to the same extent
as if such servicing agreement had been assigned to the successor servicer,
except that the Servicer, as applicable, shall not have any liability or
obligation under such servicing agreement in respect of events that occur after
such succession unless so provided in such servicing agreement or unless such
events arise out of actions or events that occurred prior to such succession. In
the event that the successor servicer assumes the servicing obligations of the
Servicer, upon request of the successor servicer, the Servicer, shall at its own
expense (if the transfer of servicing is occasioned by a Servicer Event of
Default or the resignation of the Servicer pursuant to clause (iii) of Section
10.3) or at the Owners' expense (if the transfer is occasioned by the
resignation of the Servicer pursuant to clauses (i) and (ii) of Section 10.3)
deliver to the successor servicer (as the case may be) all documents and records
relating to this Agreement and the Assets then being serviced thereunder and an
accounting of amounts collected and held by it, if any, and will otherwise use
its best efforts to effect the orderly and efficient transfer of any servicing
agreement to the successor servicer.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. SUCCESSORS AND ASSIGNS; NO THIRD PARTY BENEFICIARIES.
This Agreement will inure to the benefit of and be binding upon the parties
hereto and their successors and permitted assigns. This Agreement may not be
assigned by either party without the written consent of the other party, subject
to the provisions of Sections 10.2 and 10.3 hereinabove. This Agreement is not
intended to confer on any person other than the parties hereto and their
successors and assigns any rights, obligations, remedies or liabilities.
SECTION 11.2. CHOICE OF LAW. This Agreement is made under and shall be
governed by and construed under the laws of the State of
New York.
SECTION 11.3. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed given and received: (a) upon receipt if
delivered personally (unless subject to clause (b)) or if mailed by registered
or certified mail return receipt requested, postage prepaid five (5) Business
Days after deposit in the U.S. Mail; (b) at 5:00 p.m. local time on the business
day after dispatch if sent by a nationally recognized overnight courier; or (c)
upon the
Servicing Agreement Page 35
completion of transmission (which is confirmed by telephone or by a statement
generated by the transmitting machine) if transmitted by telecopy or other means
of facsimile which provides immediate or near immediate transmission to
compatible equipment in the possession of the recipient, in any case to the
parties at the following addresses or telecopy numbers (or at such other address
or telecopy number for a party as will be specified by like notice):
if to the Servicer:
Ocwen Federal Bank FSB
The Forum, Suite 1002
0000 Xxxx Xxxxx Xxxxx Xxxxxxxxx
Xxxx Xxxx Xxxxx, XX 00000
Attention: Secretary
Facsimile Number: (000) 000-0000
Confirmation Number: (000) 000-0000
If to the Owners:
[Name of the Owner]
c/o Metropolitan Mortgage & Services Co., Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Legal Department
Facsimile Number: (000) 000-0000
Confirmation Number: (000) 000-0000
Any change of address must be in writing.
Servicing Agreement Page 36
SECTION 11.4. ENTIRE AGREEMENT; AMENDMENTS; WAIVERS. This Agreement
constitutes the entire agreement between the parties with respect to the
transactions contemplated hereby and supersedes all prior agreements (or
contemporaneous oral agreements) of the parties with respect thereto. This
Agreement may be amended only in writing signed by each of the parties hereto.
Each of the Servicer or the Owners may, by written notice to the other, extend
the time for or waive the performance of any of the obligations of such other
hereunder. The waiver by any party hereto of a breach of this Agreement shall
not operate or be construed as a waiver of any other or subsequent breach. No
delay, omission or act by a party shall be deemed a waiver of such party's
rights, powers or remedies. No course of dealing between the parties hereto
shall operate as a waiver of any provision hereof.
SECTION 11.5. NO JOINT VENTURE; LIMITED AGENCY. The services provided
by the Servicer are in each case those of an independent contractor providing a
service. Nothing contained in this Agreement: (i) shall constitute the Servicer
and the Owners as members of any partnership, joint venture, association,
syndicate, unincorporated business or other separate entity, (ii) shall be
construed to impose any liability as such on the Servicer or the Owners or (iii)
shall, except as otherwise expressly provided in this Agreement as to the
Servicer, constitute a general or limited agency or be deemed to confer on it
any express, implied or apparent authority to incur any obligation or liability
on behalf of the other.
SECTION 11.6. SEVERABILITY; INTERPRETATION. If any provision hereof is
invalid, illegal or unenforceable, the remaining provisions shall not be
affected or impaired thereby. No provision of this Agreement shall be construed
against or interpreted to the disadvantage of any party hereto by any court or
other authority by reason of such party having or being deemed to have
structured, dictated or drafted such provision. The parties hereto acknowledge
that no other agreement entered into by the Servicer for the provision of
servicing, default management services and property management and disposition
services shall be used or referred to in construing the provisions of this
Agreement.
SECTION 11.7. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same instrument.
SECTION 11.8. WAIVER OF JURY TRIAL. EACH PARTY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY, WAIVES (TO THE 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 AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED
BEFORE A JUDGE SITTING WITHOUT A JURY.
SECTION 11.9. LIMITATION OF DAMAGES. NOTWITHSTANDING ANYTHING CONTAINED
HEREIN TO THE CONTRARY, THE PARTIES AGREE THAT NEITHER PARTY SHALL BE LIABLE TO
THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, WHETHER
IN CONTRACT, TORT OR ANY OTHER LEGAL OR EQUITABLE PRINCIPLE.
Servicing Agreement Page 37
IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto effective as of the date first written above.
OWNERS:
METWEST MORTGAGE SERVICES, INC.
By: /s/ C. XXXX XXXXXXXX, XX.
--------------------------------------
Name: C. Xxxx Xxxxxxxx, Xx.
------------------------------------
Title: President
-----------------------------------
METROPOLITAN MORTGAGE &
SECURITIES CO., INC.
By: /s/ C. XXXX XXXXXXXX, XX.
---------------------------------------
Name: C. Xxxx Xxxxxxxx, Xx.
------------------------------------
Title: President
------------------------------------
WESTERN UNITED LIFE ASSURANCE
COMPANY
By: /s/ C. XXXX XXXXXXXX, XX.
---------------------------------------
Name: C. Xxxx Xxxxxxxx, Xx.
------------------------------------
Title: Vice President
------------------------------------
SUMMIT SECURITIES, INC.
By: /s/ XXX XXXXXX
---------------------------------------
Name: Xxx Xxxxxx
------------------------------------
Title: President
------------------------------------
OLD STANDARD LIFE INSURANCE COMPANY
By: /s/ XXX XXXXXX
---------------------------------------
Name: Xxx Xxxxxx
------------------------------------
Title: Vice President/Secretary/Treasurer
------------------------------------
Servicing Agreement Page 38
OLD WEST ANNUITY & LIFE
INSURANCE COMPANY
By: /s/ XXX XXXXXX
-----------------------------------
Name: Xxx Xxxxxx
--------------------------------
Title: Secretary/Treasurer
--------------------------------
SERVICER:
OCWEN FEDERAL BANK FSB
By: /s/ XXXXXXX XXXXXXX
-----------------------------------
Name: Xxxxxxx Xxxxxxx
--------------------------------
Title: Vice President
--------------------------------
Servicing Agreement Page 39
EXHIBIT A
ADDITIONAL SERVICING REQUIREMENTS
Servicing Agreement Exhibit A - Page 1
SCHEDULE A
SCHEDULE OF ASSETS
[Electronic Copy on File]
Servicing Agreement
