LOAN SERVICING AGREEMENT
This LOAN SERVICING AGREEMENT (the "Agreement") is dated April 6, 1998
between Wilshire Credit Corporation, a Nevada corporation ("the Servicer") and
Wilshire Real Estate Investment Trust Inc., a Maryland corporation (the
"Company").
RECITALS
The Company and certain of its affiliates intend to acquire and/or
originate mortgage loans, real estate, mortgage backed securities and other real
estate related assets (the "Real Estate Assets") during the term of this
Agreement. The Company desires that the Servicer service such loans and the
Servicer desires to do the same.
The parties hereby agree for good and valuable consideration as follows:
1. Exclusive Servicing of Real Estate Assets. The Servicer shall provide
portfolio management services, including billing, portfolio administration and
collection services ("Services") for all Real Estate Assets unless the Servicer
and the Company agree that specific Real Estate Assets shall not be so serviced
("Excluded Real Estate Assets"). The Company agrees that the Servicer shall not
be required to service Real Estate Assets for which the Servicer may not have
applicable licenses. The Company agrees that all of its Real Estate Assets and
any Affiliate's Real Estate Assets, except for Excluded Real Estate Assets,
shall be serviced by the Servicer under this Agreement. The Company or one of
its subsidiaries (or any partnership managed by it) shall assign all of its
servicing rights (including any Special Servicing Rights as described in the
Company's prospectus relating to its initial public offering) in Real Estate
Assets acquired by it to the relevant Servicer; provided, however, with respect
to Special Servicing Rights, the Company shall retain the right to direct
foreclosure.
2. Manner and Performance of Service. Except as otherwise specifically
provided herein, the Servicer shall be entitled to exercise its sole discretion
in servicing the Real Estate Assets. The Servicer shall devote such time and
attention as shall be necessary to provide the Company with the Services
described herein. The Servicer may service its own loans, real estate and
financial assets and render services to any current or future clients, provided
that such activities do not interfere with the Servicer's performance of the
Services. The Services to be provided by the Servicer include the following:
2.1 The Servicer's Duties in General. The Servicer shall administer
the Real Estate Assets with reasonable care, using that degree of skill and
attention that the Servicer exercises with respect to comparable Real Estate
Assets that it services for its own account or as a fiduciary for others. The
Servicer shall take all necessary actions which the Servicer in good faith
determines are commercially reasonable in regard to each Real Estate Asset,
which in the case of a loan shall continue until it is collected
or the Servicer, in its good faith judgment, determines that it is no longer
commercially reasonable to continue to try to collect the outstanding
indebtedness on such loan.
2.2 Compliance. The Servicer shall use its best efforts to comply
throughout the term of this Agreement with all requirements of applicable
federal, state and local laws and foreign laws and regulations thereunder,
including to the extent applicable, any consumer and debt collection protection
laws and any other consumer credit, equal opportunity and disclosure laws.
2.3 Collection. The Servicer shall use its reasonable efforts, but
not less than the same efforts it uses with respect to comparable Real Estate
Assets that it services for its own account or for others, to collect all
payments due and to become due under each of the Real Estate Assets from the
party or parties liable thereunder (a "Borrower").
2.4 [Reserved].
2.5 Indemnity. The Servicer shall reimburse and indemnify the
Company and its successors and assigns for and against, and hold the Company and
its successors and assigns harmless from and against, any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses and disbursements, including without limitation reasonable fees and
disbursements of counsel, which may be imposed upon, or incurred by the Company
in any way relating to or arising out of the Servicer's gross negligence in its
performance of its duties hereunder. The Company shall reimburse and indemnify
the Servicer and its successors and assigns for and against, and hold the
Servicer and its successors and assigns harmless from and against, any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses and disbursements, including without limitation reasonable fees
and disbursements of counsel, which may be imposed upon, or incurred by the
Servicer in any way relating to or arising out of the Servicer's performance of
its duties hereunder, the Real Estate Assets or the servicing thereof prior to
the servicing by the Servicer other than arising out of the Servicer's gross
negligence.
2.6 Modifications, Adjustable Rate, and Payoffs. In connection with
its collection efforts the Servicer may modify or change the interest rate of
any loan, and quote to, and accept from, a Borrower a full or partial payoff
amount on any loan as full settlement.
2.7 Monthly Accounting Reports. For each month during the term of
this Agreement, the Servicer will furnish the Company with a monthly report
regarding the Real Estate Assets by the twenty-fifth (25th) day of the following
month. The Servicer shall furnish at the Servicer's cost such other information
regarding the Servicer, the Real Estate Assets and this Agreement as the Company
may from time to time reasonably request, provided, that if the information or
data requested by the Company is something the Servicer cannot produce
internally from its then existing reporting systems without manual compilation
or production, or reprogramming its computer system, the Company shall reimburse
the Servicer for its cost for furnishing such information.
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3. Term. This Agreement shall commence on the date hereof and shall
continue in force for two (2) years, and thereafter, will automatically renew
for successive one-year periods unless either party delivers a notice of
termination at least 120 days prior to the end of the then current term.
Notwithstanding any other provision to the contrary, this Agreement shall be
terminated if the Management Agreement, dated April 6, 1998 between the Company
and Wilshire Realty Services Corp., a Delaware corporation ("WRSC") is
terminated by either the Company or WRSC.
4. Subservicing Agreements.
4.1 Engagement of Subservicer. The Servicer shall not enter into
Subservicing Agreements, permit the subservicing of, or delegate any of its
duties to any Subservicers with respect to, all or part of the Real Estate
Assets except under the circumstances described in the next sentence or as
approved by WRSC. In the event that the Servicer is not permitted to service one
or more Real Estate Assets in any jurisdiction pursuant to the laws, ordinances,
rules or regulations ("Laws") of such jurisdiction that are applicable to such
Real Estate Assets, the Servicer may retain a Subservicer under a Subservicing
Agreement for the purpose of performing any servicing of such Real Estate Assets
that the Servicer is not permitted by such Laws to perform; provided, however,
that such Subservicer shall be retained only for so long as and to the extent
that such Laws do not permit the Servicer to perform particular servicing
duties. The Servicer shall notify the Company and/or WRSC of each Subservicing
Agreement entered into by it pursuant to this Section 4.1 within twenty (20)
business days after such Subservicing Agreement is entered into, which notice
shall set forth the reasons such Subservicing Agreement is necessary and is
permitted under this Section 4.1 and shall attach a copy of such Subservicing
Agreement. The Servicer shall also notify the Company and/or WRSC as soon as any
Subservicing Agreement is no longer necessary with respect to any Real Estate
Assets and shall immediately terminate such Subservicing Agreement as to such
Real Estate Assets. Each Subservicing Agreement shall provide that it is
terminable at will without payment of a termination fee or penalty.
4.2 Qualification to do Business. Each Subservicer shall be licensed
to transact business and to perform its obligations under its Subservicing
Agreement in each jurisdiction required by the Laws applicable to the Real
Estate Assets being serviced by such Subservicer. Each Subservicing Agreement
will be upon such terms and conditions as are not inconsistent with this
Agreement and as the Servicer and the Subservicer have agreed. As part of its
servicing activities hereunder, the Servicer shall enforce the obligations of
each Subservicer under the related Subservicing Agreement.
4.3 Liability. Notwithstanding any Subservicing Agreement, any of
the provisions of this Agreement relating to agreements or arrangements between
the Servicer and Subservicer or reference to actions taken through a Subservicer
or otherwise, the Servicer shall remain obligated and liable to the Company for
the servicing and administering of the Real Estate Assets in accordance with the
provisions of this Agreement without diminution of such obligation or liability
by virtue of indemnification from a Subservicer and to the same extent and under
the same terms and conditions as if the Servicer alone were servicing and
administering the Real Estate Assets.
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4.4 Indemnity. Any Subservicing Agreement and any other transactions
or services relating to the Real Estate Assets involving a Subservicer shall be
deemed to be between such Subservicer and Servicer alone, and the Company shall
have no obligation, duty or liability with respect to such Subservicer,
including, without limitation, any obligation, duty or liability to pay such
Subservicer's fees and expenses. For purposes of remittances by the Servicer
pursuant to this Agreement, the Servicer shall be deemed to have received a
payment on a Mortgage Loan when the applicable Subservicer has received such
payment.
4.5 Action of Subservicer. References in this Agreement to actions
taken or to be taken by the Servicer in servicing the Real Estate Assets include
actions taken or to be taken by a Subservicer on behalf of the Servicer to the
extent that under applicable Laws the Servicer may not take such actions
directly.
5. Maintenance of Insurance and Errors and Omissions and Fidelity
Coverage.
5.1 Insurance Coverage Requirements. The Servicer shall use its best
efforts to cause the borrower on each mortgage loan to maintain for such
mortgage loan all insurance required by the terms of the such mortgage loan and
related documents. If the borrower fails to maintain such insurance, then the
Servicer shall notify the Company and/or WRSC of such failure and cause to be
maintained prior to the termination of any existing such policy, or if there is
no existing such policy, as promptly as is practicable and as conforms with
accepted servicing practices (i) fire and hazard insurance with extended
coverage in an amount which is at least equal to the lesser of the current
principal balance of such mortgage loan and the replacement cost of the
improvements which are a part of the related property and (ii) to the extent
that the mortgage loan is located in a federally designated special flood hazard
area, flood insurance in respect thereof. Such flood insurance shall be in an
amount equal to the lesser of (y) the unpaid principal balance of the mortgage
loan or (z) the maximum amount of such insurance as is available for the
mortgage loan under the National Flood Insurance Act. After notifying the
Company pursuant to the second preceding sentence, the Servicer shall take such
action as the Company and/or WRSC reasonably requests with respect to the
maintenance of any other forms of insurance which are required to be maintained
pursuant to the documents governing the mortgage loan. Any amounts collected by
the Servicer under any such policies (other than amounts to be applied to the
restoration or repair of the underlying property or amounts released to the
borrower in accordance with the terms of the mortgage loan) shall be paid to the
Company. To the extent the Servicer has expended its own funds to pay for
insurance premiums under this Subsection 5.1, the cost of such premiums shall be
deemed a servicing advance, which is reimbursable to the Servicer.
5.2 Servicer Insurance Requirement. In the event that the Servicer
shall obtain and maintain a blanket policy insuring against losses on mortgage
loans serviced for the Company with a qualified insurer, to the extent such
policy provides no less coverage in scope and amount with respect to each Real
Estate Assets than the insurance required to be maintained by the Servicer
pursuant to Section 5.1, the Servicer shall conclusively be deemed to have
satisfied its obligations as set forth in Section 5.1, it being understood and
agreed that such policy may contain a deductible clause, in which case the
Servicer
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shall, in the event that there shall not have been maintained on any mortgage
loan a policy complying with Section 5.1 and there shall have been a loss which
would have been covered by such policy, pay to the Company the amount not
otherwise payable under the blanket policy because of such deductible clause to
the extent that any such deductible exceeds the deductible limitation that
pertained to the mortgage loan, or, in the absence of any such deductible
limitation, the deductible limitation which is consistent with accepted
servicing practices. In connection with its activities as administrator and
servicer of the mortgage loans, the Servicer agrees to present, on behalf of
itself and the Company, claims under any such blanket policy.
5.3 Servicer Bond and Insurance Requirement for Officers and
Directors. The Servicer shall obtain and maintain at its own expense, and keep
in full force and effect throughout the term of this Agreement, a blanket
fidelity bond and an errors and omissions insurance policy covering the
Servicer's officers and employees acting on behalf of the Servicer in connection
with its activities under this Agreement. The amount of such coverage shall meet
the servicing requirements of prudent institutional commercial or residential
mortgage loan servicers for the relevant market. In the event that any such bond
or policy ceases to be in effect, the Servicer shall obtain a comparable
replacement bond or policy. Coverage of the Servicer under a policy or bond
obtained by an affiliate of the Servicer and providing the coverage required by
this Section shall satisfy the requirements of this Section.
6. Annual Statement as to Compliance. The Servicer will deliver to the
Company, on or before December 31 of each year, beginning December 31, 1998, an
officer's certificate stating as to each signatory thereof, that (a) a review of
the activities of the Servicer during the preceding calendar year (or during the
period from the date of execution of this Agreement until the end of the
preceding calendar year in the case of the first such certificate) and of
performance under this Agreement has been made under such officer's supervision;
and (b) to the best of such officer's knowledge, based on such review, the
Servicer has fulfilled in all material respects all of its obligations under
this Agreement throughout such period, or if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof.
7. Annual Independent Public Accountants' Servicing Report. On or before
December 31 of each year, beginning December 31, 1998, the Servicer, at its
expense, shall cause a firm of independent public accountants that is a member
of the American Institute of Certified Public Accountants to furnish a statement
to the Company to the effect that such firm has examined certain documents and
records relating to the servicing practices of the Servicer for the preceding
calendar year (or during the period from the date of execution of this Agreement
until the end of the preceding calendar year in the case of the first such
certificate) and that, on the basis of such examination conducted substantially
in compliance with generally accepted auditing standards and the Uniform Single
Attestation Program for Mortgage Bankers or the Audit Program for Mortgages
serviced for FHLMC, such firm is of the opinion that such servicing during such
period has been conducted generally in compliance with this Agreement except for
such exceptions that, in the opinion of such firm, generally accepted auditing
standards and the Uniform Single Attestation Program for Mortgage Bankers or the
Audit Program for Mortgages serviced for FHLMC requires it to report, in which
case such exceptions shall be set forth in such statement.
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8. Access to Certain Documentation Regarding the Real Estate Assets. Upon
reasonable advance notice, the Servicer will provide reasonable access during
its normal business hours at its offices to the Company and/or WRSC, and with
the Company's consent, to a savings and loan association, bank or insurance
company to certain reports and to information and documentation regarding the
Real Estate Assets sufficient to permit the Company, the Office of Thrift
Supervision, the FDIC, the supervisory agents and the examiners of any such
entity to comply with applicable regulations of the Office of Thrift Supervision
or other regulatory authorities with respect to investment in the Real Estate
Assets.
9. Fees and Costs. The Company shall pay the Servicer and the Servicer may
retain or disburse from any Asset proceeds the following amounts:
9.1 Reimbursement of Costs. All bona fide amounts paid by the
Servicer to third parties in connection with this Agreement, including without
limitation, stationery suppliers, related printing costs, fees for recordings
and filings, mailgrams, repossession agency fees, legal fees, travel, insurance
costs, and payments arising out of acts or omissions of third parties (including
persons from which the Real Estate Assets are acquired), and the Servicer's
standard photocopy charges.
9.2 Service Fee. The Servicer shall be entitled to a fee (the
"Servicer's Service Fee") for servicing Real Estate Assets equal to (a) all
interest and other earnings paid or accrued on amounts from time to time on
deposit in any accounts in which proceeds of Real Estate Assets are deposited
plus (b) a monthly fee equal to an amount negotiated by the parties for each
particular Real Estate Assets portfolio, which monthly fee shall be comparable
to fees charged by other industry participants for servicing comparable loan
portfolios.
9.3 Payment. The Servicer may withdraw on a monthly basis from all
Real Estate Assets proceeds all escrow payments, costs, and the Servicer's
Service Fee. Within twenty-five (25) days after the last day of each calendar
month the Servicer shall pay to the Company or the Affiliate owning the Real
Estate Assets the net proceeds received in that calendar month. The Company or
the applicable Affiliate shall pay the Servicer within fifteen (15) days after
billing for any excess fees and costs. The Servicer shall receive any ancillary
income, other than any float revenue.
10. Independent Contractor. The Servicer shall provide the Services in the
capacity of an independent contractor. Nothing in this Agreement shall be
construed as establishing an employment, partnership or joint venture between
the Company and the Servicer.
11. Representations of the Company. The Company represents and warrants as
follows:
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11.1 The Company has been duly organized and is validly existing and
in good standing under the laws of the jurisdiction of its organization, with
power and authority to own its properties and to conduct its business as such
properties are currently owned and such business is currently conducted.
11.2 The Company has the power and authority to execute and deliver
this Agreement and to carry out its terms; and the execution, delivery, and
performance of this Agreement have been duly authorized by the Company by all
necessary action on the part of the Company.
11.3 This Agreement constitutes a legal, valid and binding
obligation of the Company enforceable in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium, or other similar laws
affecting enforcement of creditor rights generally.
12. Representations of the Servicer. The Servicer represents and warrants
as follows:
12.1 The Servicer has been duly organized and is validly existing
and in good standing under the laws of the jurisdiction of its organization,
with power and authority to own its properties and to conduct its business as
such properties are currently owned and such business is currently conducted and
has corporate power, authority and legal right to service the Real Estate Assets
as provided in this Agreement.
12.2 The Servicer has the power and authority to execute and deliver
this Agreement and to carry out its terms; and the execution, delivery, and
performance of this Agreement have been duly authorized by WCC and the European
Servicer by all necessary corporate action on the part of WCC or the European
Servicer.
12.3 This Agreement constitutes a legal, valid and binding
obligation of WCC and the European Servicer enforceable in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium, or other
similar laws affecting enforcement of creditor rights generally.
13. Audits and Examinations.
13.1 The Servicer shall use reasonable efforts to maintain in good
order and condition throughout the term of this Agreement all Real Estate Assets
files and relevant materials that the Servicer has received regarding the Real
Estate Assets.
13.2 The Servicer shall maintain a copy of each Real Estate Assets
file at its office or elsewhere within its control, provided, that at the
Company's request, the Servicer will deliver copies of such Real Estate Assets
to the Company or a designee of the Company. The Servicer shall make available
to the Company or its duly authorized representatives, attorneys or auditors the
Real Estate Assets files and the related accounts, records and computer systems
maintained by the Servicer at such times as the Company shall reasonably
request.
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13.3 The Servicer shall permit the Company, and its agents to audit
the books and records of the Servicer applicable to the Real Estate Assets at
the Servicer's business premises during the Servicer's normal business hours
upon reasonable prior notice to the Servicer. The Company shall have direct
access to the Servicer's management information system for the Real Estate
Assets or, if applicable, to any service bureau used by the Servicer for the
Real Estate Assets.
14. Substitute Servicer; Limited Arbitration.
14.1 If at any time during the term of this Agreement the Servicer
shall breach, or default in the performance of a material obligation of the
Servicer undertaken in this Agreement, the Company and the Servicer shall
consult for such period of time as the Company may determine is reasonable under
the circumstances to determine a mutually acceptable resolution. In the event
the Company and the Servicer fail to agree thereon within such period as the
Company may specify, then the Company may, by written notice to the Servicer and
without limitation of any other right or remedy of the Company, require that the
Servicer transfer the Real Estate Assets, and all of the Servicer's servicing
and related rights and obligations in and with respect to the Real Estate
Assets, to a substitute servicer to be designated by the Company. Such
substitute servicer shall thereupon perform, pursuant to a servicing contract
acceptable to the Company, all of the Servicer's duties and obligations under
this Agreement. Upon the Company's designation of such a substitute servicer,
the Servicer shall within a reasonable time and to the extent it holds
possession thereof, deliver to such substitute servicer all written evidence and
documentation of the Real Estate Assets and the Servicer thereafter shall
cooperate and follow all instructions of the Company in all reasonable respects
to facilitate such substitute servicer's performance of the Servicer's duties
and obligations under this Agreement. The fees and expenses of the substitute
servicer shall be paid by the Company. The Servicer, however, shall continue to
be entitled to the Servicer's Service Fee with regard to any Real Estate Assets
being serviced under this section, net of all servicing fees paid by the Company
to the substitute servicer for such Real Estate Assets.
14.2 If the Servicer wishes to contest or dispute the Company's
appointment of a substitute servicer, The Servicer shall so notify the Company
in writing within thirty (30) days after such appointment, specifying in the
notice the Servicer's reasons for doing so. Such controversy or dispute
regarding the Company's appointment of a substitute servicer shall be settled by
arbitration, by one arbitrator in Portland, Oregon in accordance with the Rules
of the American Arbitration Association ("AAA"), subject to the provisions of
Section 9.3 and any other applicable provisions of this Agreement. The
arbitrator, whether appointed by the parties or pursuant to the Rules of the
AAA, shall be impartial and neutral and shall have experience in the management
of operations of an institution which performs financing and collection services
similar to those to be performed by the Servicer under this Agreement. The
decision of the arbitrator shall be final, binding and conclusive upon the
parties. The arbitrator shall comply with the privacy restrictions provided in
Section 14.7 regarding publication of any award.
14.3 In no event shall the arbitrator have power or authority to add
to or detract from the agreements of the parties nor to award punitive or
consequential damages. The arbitrator shall be authorized only to render an
award regarding a dispute or controversy concerning the Company's
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appointment of a substitute servicer pursuant to Section 14.1 hereof, including
an award of costs and expenses as herein provided, and the arbitrator shall not
purport to determine, or issue an award regarding, any other legal or equitable
rights or remedies of the parties.
14.4 The arbitration hearing will conclude and the arbitrator's
award shall be rendered in writing within 30 days after it commences. The
arbitrator will make every effort to enforce this requirement strictly, but may
extend the time for the hearing upon a showing that exceptional circumstances
require extension to prevent manifest injustice.
14.5 The parties will share equally the expense of deposits and
advances required by the AAA but either party may advance such amounts, subject
to recovery thereof as an addition or offset to any award. The arbitrator shall
award to the prevailing party, as determined by the arbitrator, all costs, fees
and expenses related to the arbitration, including reasonable fees and expenses
of attorneys, experts and other professionals incurred by the prevailing party.
14.6 In the event of any legal action relating to the arbitration,
including any action to stay the arbitration, to vacate, modify or correct any
award or otherwise, the prevailing party in such action as determined by the
court shall be entitled to recover from the other party its court costs and
reasonable fees and expenses of attorneys, experts and other professionals
incurred in connection with the action, including such costs, fees and expenses
upon appeal. The institution and maintenance of an action for judicial relief,
or the pursuit of any provisional, ancillary, or judicial remedy by any party,
shall not constitute a waiver of the right of any party, including the plaintiff
in such judicial action, to submit the controversy or claim to arbitration
pursuant to Section 14.2 hereof.
14.7 The Servicer and the Company acknowledge that the existence,
progress and results of any arbitration held under this Agreement, and any
arbitral award, are to remain private. Each party agrees not to publish or
disclose any information regarding the arbitration or any such award by any
means, except as may be required for enforcement of any arbitral award and
further agrees to take reasonable care, but in no event less care than it takes
to protect its own confidential business information generally, to prevent
disclosure and dissemination of such information.
14.8 The award rendered in any arbitration may be enforced in any
court of competent jurisdiction.
15. General Provisions.
15.1 Written Notices. Notices under this Agreement must be in
writing and mailed, U.S. Mail with first class postage prepaid or overnight
mail, or telecopied, to the appropriate address shown above unless the address
has been changed by notice given as provided herein at least three (3) business
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days in advance of the effective date of such change. Notice will be effective
three (3) business days after mailing or one business day after telecopy.
Wilshire Credit Corporation
0000 XX Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with a copy to: Xxxxx X. Xxxxxxxxxx, Esq.
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Wilshire Real Estate Investment Trust Inc.
0000 XX Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with a copy to: Xxxxx X. Xxxxxxxxxx, Esq.
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Wilshire Realty Services Corp.
0000 XX Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with a copy to: Xxxxx X. Xxxxxxxxxx, Esq.
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000-0000
15.2 Attorneys' Fees. If any judicial proceeding is initiated by
either of the parties arising out of the subject matter of this Agreement,
including without limitation any suit or action arising under state or federal
securities laws, trial, appeal, or bankruptcy, the prevailing party in such
proceeding will be entitled to recover, in addition to any judgment obtained in
such proceeding, reasonable attorneys' fees and court costs incurred.
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15.3 Events Beyond the Control of the Parties. Performance by either
party hereunder will not be deemed to be in default where the delay or default
is due to events beyond its reasonable control, including without limitation
war, insurrection, strike, lock-outs, riots, floods, earthquakes, fires,
casualties, acts of God, epidemics, quarantine restrictions, governmental
restrictions, inability to secure necessary labor or materials, acts of the
other party or failure to act of any public or governmental agency or entity.
15.4 Further Assurances. Following the execution of this Agreement,
the Servicer and the Company, respectively, shall, from time to time at the
request of the other, execute and deliver such other documents and instruments,
and shall take such other actions, as may be reasonably necessary or appropriate
to carry out and perform more effectively the terms and purposes of this
Agreement.
15.5 Governing Law. This Agreement will be governed by the laws of
the state of Oregon. Any dispute arising from or in connection with this
Agreement, other than as provided in Section 9, shall be resolved in the
applicable state or federal court in Portland, Oregon.
15.6 Severability. If any provision herein is deemed unenforceable
in whole or in part, such provision shall be deemed severable solely to the
extent of such enforceability without impacting the remainder of this Agreement.
15.7 Counterparts. This Agreement may be executed in one or more
counterparts. Each signed counterpart shall be deemed an original, but all of
them together constitute one and the same instrument.
15.8 Entire Agreement. This Agreement constitutes the entire
agreement between the parties as to its subject matter and supersedes all
proposals, oral or written, and all negotiations, conversations or discussions
heretofore had between the parties related to the subject matter of this
Agreement. Any amendment to this Agreement must be in writing signed by the
party to be charged.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, this agreement has been duly signed by the Servicer
and on behalf of the Company on the day and year first above written.
Wilshire Credit Corporation
/s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------------------
Xxxxxx X. Xxxxxxxxxx
Chairman of the Board, Chief Executive Officer,
Treasurer and Secretary
Wilshire Real Estate Investment Trust Inc.
/s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------------------
Xxxxxx X. Xxxxxxxxxx
Chairman of the Board, Chief Executive Officer,
Treasurer and Secretary
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WCC - WREIT
LOAN SERVICING AGREEMENT
SERVICING FEE SCHEDULE
Pursuant to the Loan Servicing Agreement dated April 6, 1998, between Wilshire
Credit Corporation ("WCC") and Wilshire Real Estate Investment Trust Inc.,
("WREIT") the parties agree that the Servicer's Service Fees shall be as follows
for the following assets. These service fees are in addition to any management
fees to be paid by WREIT under its Management Agreement with Wilshire Realty
Services Corporation.
Asset Service Fees
----- ------------
Real Property 3% of cash receipts (gross rent) collected
Commercial Mortgage Loans 5% of cash collected for
discounted loans and REO; 37.5 basis
points per annum on unpaid principal
balance for non-discounted loans.
Residential Mortgage Loans To be negotiated
Mortgage Backed Securities 0
Mezzanine Loans 0
Dated as of January 1, 1999
Wilshire Credit Corporation Wilshire Real Estate Investment Trust Inc.
By: /s/ Xxxxxxxx X. Xxxxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxxxx
---------------------------- --------------------------------------
Name: Xxxxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx
Title: President Title: Chief Executive Officer
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