MANAGEMENT, ACQUISITION AND SERVICING AGREEMENT
Agreement made this 9th day of September, 1994 by and between Summit
Securities, Inc. (hereinafter "SUMMIT"), a Washington corporation with
principal offices at 0000 Xxxx Xxxxxxx, Xxxxx 000, Xxxxx x'Xxxxx, XX 00000, and
Metropolitan Mortgage & Securities Co., Inc. (hereinafter "METROPOLITAN"), a
Washington corporation with its principal office at W. 000 Xxxxxxx Xxx.,
Xxxxxxx, Xxxxxxxxxx 00000, (also hereinafter referred to jointly as the
"Parties".)
WITNESSETH
WHEREAS, METROPOLITAN engages in the business of purchasing and servicing
receivables, and maintains subsidiaries, internal staff, and operations to
support such activities, and;
WHEREAS, SUMMIT also engages in the business of investing in receivables,
but SUMMIT does not maintain internal staff or operations to support the
purchasing and servicing of receivables, and;
WHEREAS, METROPOLITAN has the personnel, systems and expertise to provide
to SUMMIT general support services, receivable acquisition services and
receivable collection and management services, and;
WHEREAS, SUMMIT desires to obtain from METROPOLITAN general support
services, receivable acquisition services and receivable collection and
management services;
NOW THEREFORE, for the foregoing reasons and in consideration of the
mutual promises, covenants and agreements set forth herein, the parties
promise, covenant and agree as follows:
I. REPRESENTATIONS AND WARRANTIES OF METROPOLITAN:
METROPOLITAN REPRESENTS AND WARRANTS TO SUMMIT THAT:
1. METROPOLITAN is a corporation duly organized, validly existing and
in good standing under the laws of the State of Washington.
2. METROPOLITAN is licensed, or qualified, and in good standing in
each of the states where the laws require licensing or qualification in order
to conduct METROPOLITAN'S receivable acquisition, collection and management
activities, or METROPOLITAN is exempt under applicable law from such licensing
or qualification.
3. The consummation of the transactions contemplated herein have been
validly authorized and all requisite corporate action has been taken by
METROPOLITAN to make this agreement binding upon METROPOLITAN in accordance
with its terms.
4. The consummation of the transactions contemplated by this agreement
are in the ordinary course of business of METROPOLITAN.
5. The execution and delivery of this agreement, the servicing of
receivables by METROPOLITAN, the other services and transactions contemplated
hereby, and the fulfillment of and compliance with the terms and conditions of
this agreement, will not conflict with or result in a breach of any of the
terms of METROPOLITAN's articles of incorporation, bylaws or any other
agreement, instrument, law, regulation, rule, order, or judgment to which
METROPOLITAN is now a party or by which it is bound. METROPOLITAN is not
subject to any agreement, instrument, law, regulation, rule, order or judgment
which would impair the ability of SUMMIT to collect its receivables or impair
the value of SUMMIT'S receivables.
6. METROPOLITAN does not believe, nor does it have any reason or cause
to believe, that it cannot perform each and every covenant contained in this
agreement.
7. There is no action, suit, proceeding or investigation pending or
threatened against METROPOLITAN which, either in any one instance or in the
aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of METROPOLITAN, or in
any material impairment of the right or ability of METROPOLITAN to carry on its
business substantially as now conducted, or which would draw into question the
validity of this agreement or of any action taken or to be taken in connection
with the obligations of METROPOLITAN contemplated herein, or which would be
likely to impair materially the ability of METROPOLITAN to perform under the
terms of this agreement.
8. No consent, approval, authorization or order of any court or
governmental agency or body is required for METROPOLITAN'S execution, delivery
and performance of or compliance with this agreement.
9. The receivables acquisition practices, receivable collection
practices and other services provided hereunder shall each be conducted in
accordance with generally accepted business practices in all respects, as
applicable to each respective activity.
II. REPRESENTATIONS AND WARRANTIES OF SUMMIT
SUMMIT REPRESENTS AND WARRANTS TO METROPOLITAN THAT:
1. SUMMIT is a corporation duly organized, validly existing and in
good standing under the laws of the State of Idaho.
2. SUMMIT is licensed or qualified, and in good standing in each of
the states where the laws require licensing or qualification in order to hold
and enforce the terms of its receivables and conduct its business, or SUMMIT
is exempt under applicable law from such licensing or qualification.
3. The consummation of the transactions contemplated herein have been
validly authorized and all requisite corporate action has been taken by SUMMIT
to make this agreement binding upon SUMMIT in accordance with its terms.
4. The consummation of the transactions contemplated by this agreement
are in the ordinary course of business of SUMMIT.
5. The execution and delivery of this agreement, the fulfillment of
and compliance with the terms and conditions of this agreement, will not
conflict with or result in a breach of any of the terms of SUMMITS articles of
incorporation, bylaws or any other agreement, instrument, law, regulation,
rule, order, or judgment to which SUMMIT is a party, by which it is bound or
its property is subject, which would impair the ability of METROPOLITAN to
service and collect the receivables in accordance with the terms of this
Agreement.
6. SUMMIT does not believe, nor does it have any reason or cause to
believe, that it cannot perform each and every covenant contained in this
agreement.
7. There is no action, suit or proceeding or investigation pending or
threatened against SUMMIT which, either in any one instance or in the
aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of SUMMIT, or in any
material impairment of the right or ability of SUMMIT to carry on its business
substantially as now conducted, or which would draw into question the validity
of this agreement or of any action taken or to be taken in connection with the
obligations of SUMMIT contemplated herein, or which would be likely to impair
materially the ability of SUMMIT to perform under the terms of this agreement.
8. No consent, approval, authorization or order of any court or
governmental agency or body is required for SUMMIT's execution, delivery and
performance of or compliance with this agreement.
III. GENERAL SUPPORT SERVICES:
1. DESCRIPTION OF SERVICES
a. Administrative Support Services:
METROPOLITAN shall provide SUMMIT administrative support services
including but not limited to Transfer Agent, Registrar, Human Resources,
Information Systems, Art & Advertising, Accounting, legal, check
processing, and cashiering services.
b. Financial Services:
METROPOLITAN shall provide financial advice to SUMMIT.
c. Office Space:
METROPOLITAN shall lease or sublease to SUMMIT sufficient office space
for SUMMIT'S business needs at METROPOLITAN'S headquarters facility in
Spokane, Washington and/or such other location as agreed to by the
parties. Any such lease may include lease of office furnishing and
equipment.
2. FEES FOR GENERAL SUPPORT SERVICES
SUMMIT will pay METROPOLITAN monthly fees for General Support Services
provided by METROPOLITAN to SUMMIT. Fees for General Support Services shall be
determined by mutual agreement of the parties.
IV. RECEIVABLE ACQUISITION SERVICES
1. GENERAL DUTIES AND AUTHORITY
METROPOLITAN shall provide receivable acquisition services to SUMMIT
which shall be performed substantially in compliance with the following:
a. METROPOLITAN shall secure opportunities for SUMMIT to purchase
receivables through the use of METROPOLITAN's branch office system,
industry contacts and the other methods developed by METROPOLITAN for its
own receivable purchases.
b. In reviewing the receivables offered to SUMMIT, METROPOLITAN shall
review, among other things, the receivable loan to value ratio, security
value, security condition, payment record, payor's credit, security title
reports and legal documents, taking into account the investment
guidelines provided by SUMMIT.
c. METROPOLITAN or its agent, shall close the receivable purchase in a
manner and using practices which are consistent with industry standards
for the location where the receivable is closed.
d. Loans resulting from financing that may be provided by METROPOLITAN
as a means to induce the purchase of property (e.g. for the financing of
repossession resales or other seller financing) may be placed in SUMMIT's
receivable portfolio if such receivables are consistent with SUMMIT's
investment guidelines.
e. METROPOLITAN shall prepare and maintain such books, records,
computer systems and procedures as shall be required and necessary to
maintain control over the day to day activities regarding offers to
purchase and closing of receivable purchases.
f. METROPOLITAN shall furnish to SUMMIT such periodic, special or
other reports or information as requested by SUMMIT including reports of
total receivables purchased, closing periods and closing costs. All such
reports, documents or information shall be provided by and in accordance
with all reasonable instructions and directions which SUMMIT may give.
g. METROPOLITAN may carry out any other activity or procedure, which
in METROPOLITAN's discretion, is necessary or appropriate in connection
with the acquisition and closing of the receivables for the benefit of
SUMMIT.
2. RECEIVABLE ACQUISITION SERVICES FEE:
SUMMIT shall pay METROPOLITAN fees for Receivable Acquisition and Support
Services provided by METROPOLITAN to SUMMIT. Fees shall be determined by
mutual agreement of the parties.
3. RIGHT TO REJECT.
SUMMIT shall have the right at anytime to review the receivables acquired
pursuant to this agreement and to reject any receivables which in SUMMIT's
opinion are not consistent with its investment guidelines as such guidelines
existed at the time of the acquisition. Any receivables not rejected within
three months of acquisition are deemed accepted. Any receivable which is
rejected shall be purchased by METROPOLITAN at its face amount or such other
amount as agreed to by the parties.
V. RECEIVABLE COLLECTION AND MANAGEMENT SERVICES
1. SERVICING:
METROPOLITAN or its agents shall perform collection and management
services for SUMMIT substantially in compliance with the following:
a. Hold and safe keep all original receivable documents and files.
b. Prepare and maintain such books, records, computer systems and
procedures as shall be required and necessary to maintain control over
the day to day activities regarding the collection and enforcement of the
rights, obligations and performance of each receivable subject to this
agreement.
c. Furnish to SUMMIT such periodic, special, or other reports,
documents or information as requested by SUMMIT including, but not
limited to, cash receipt reports, aging of all receivables balances on a
contractual basis, and itemizations of unearned or deferred income all in
accordance with generally accepted accounting and statutory accounting
principles. All such reports, documents or information shall be provided
by and in accordance with all reasonable instructions and directions
which SUMMIT may give.
d. METROPOLITAN shall manage the receipt of receivable payments
substantially as follows:
i. Deposit all monies received from the receivable payors into a
general collection account maintained by METROPOLITAN, or its
agent, which account may contain other monies and funds which may
be held for others. Within a reasonable time the amounts collected
and deposited on behalf of SUMMIT shall be transferred to an
account designated by SUMMIT.
ii. For the purposes of this subparagraph d, reasonable time
shall mean two to three business days, unless extraordinary
circumstances beyond METROPOLITAN'S control, such as computer
failure, makes such time frame unreasonable, in which case the
reasonable time shall be two to three days following elimination of
the circumstances causing the delay.
e. Accept and remit to appropriate parties any amounts designated as
reserves for the payment of real estate taxes, insurance premiums or
similar items as may be provided by the receivable documents;
f. Monitor the tax, insurance and other payments required to be paid
directly by receivable payor to third parties, or collect from the
receivable payors and remit to the appropriate third parties any amounts
due for any taxes imposed upon the real estate securing any receivable,
any insurance premiums and any other sums required to be paid by the
receivable payor pursuant to the terms of any receivable. Any funds so
collected by METROPOLITAN or subsidiaries shall be held in escrow if
required by the receivable documents or applicable regulations, or
METROPOLITAN shall pay such sums to SUMMIT as provided in Paragraph
V.1.d. hereinabove. METROPOLITAN shall pay out such monies to such
taxing authorities or other parties or persons as shall be authorized to
receive such payments.
g. Implement routine collection procedures (including telephone calls
and the preparation and mailing of written notices) as METROPOLITAN may,
in its discretion, deem to be reasonable or appropriate and in accordance
with its customary practice and procedure in the servicing of its own
accounts, on delinquent receivables;
h. When appropriate, in METROPOLITAN's discretion, METROPOLITAN or its
agent may undertake any legal action, whether judicial or non-judicial,
to enforce the payment of any sums due or other performance required by
the terms of any receivable documents or to foreclose upon or forfeit any
real estate or other security securing a receivable.
i. Whenever METROPOLITAN shall commence suit to enforce the terms of a
receivable which is subject to this agreement, METROPOLITAN shall be
deemed to be the authorized legal agent and representative of SUMMIT in
any court of law in any federal, state, or commonwealth, or other court
of competent jurisdiction, and to so act, without receiving any other
prior authority of SUMMIT, to enforce, xxx, settle, compromise, and/or
collect such monies and recover any and all such real estate security
which shall be the subject of any receivable. Any such action may be
maintained in the name of "SUMMIT" or "METROPOLITAN", at METROPOLITAN's
discretion.
j. Carry out any other activity or procedure which, in METROPOLITAN'S
discretion, is necessary or appropriate in connection with the
maintenance and enforcement of the receivables for the benefit of SUMMIT.
2. COOPERATION BY SUMMIT
SUMMIT agrees to cooperate with METROPOLITAN in the enforcement of all
receivables, make personnel available to METROPOLITAN and cause such personnel
to execute documents, and to make such documents, records, papers, or other
items of evidence available as needed to assist METROPOLITAN in the collection
and servicing of the receivables subject to this agreement.
3. RECEIVABLE COLLECTION AND MANAGEMENT SERVICES FEES
SUMMIT agrees to compensate METROPOLITAN for its duties performed
hereunder in the following manner and amounts:
a. SUMMIT agrees to pay in addition to any applicable taxes a monthly
management and servicing fee. Such sum shall be due whether or not a
receivable is in default. The Receivable Collection and Management
Services Fee shall be determined by mutual agreement of the parties.
b. In addition, SUMMIT shall reimburse METROPOLITAN for all outside
attorney costs and all third party fees and charges which may be incurred
in performance of the collections services.
c. SUMMIT agrees that as additional compensation to METROPOLITAN for
such management and collection efforts that METROPOLITAN shall be
entitled to retain any and all late charges, extension charges, and any
other charges or costs imposed upon a delinquent obligor that do not
relate to changing the terms or conditions of the loan to effect a
restructuring or otherwise.
VI. GENERAL TERMS AND CONDITIONS
1. ADJUSTMENTS TO FEES
METROPOLITAN may, from time to time, change the method for determining
any or all of the fees charged pursuant to this agreement so long as the new
method conforms with the intent of the parties, is reasonable and reflects
changes in market rates and/or the cost for providing such services.
2. REVIEW OF FEES
SUMMIT shall have the right at any time to review the method for
determining the fees charged pursuant to this Agreement. If, in SUMMIT's
opinion, any fee is unacceptable SUMMIT may request a review by the officers of
SUMMIT and METROPOLITAN, who shall use their best efforts to resolve any
objection in consideration of the best interests of both parties.
3. NON-EXCLUSIVITY OF AGREEMENT
a. This agreement is non-exclusive. SUMMIT reserves the right and
privilege to employ and engage, from time to time, any other entity or
person to perform any of the services which are the subject of this
agreement, or may itself perform any such services. Such actions by
SUMMIT shall not be construed as an event of termination of this
agreement.
b. SUMMIT may withdraw any receivable at any time from those being
serviced pursuant to this agreement, which action shall not be a breach
or termination of this agreement.
4. DELEGATION
METROPOLITAN may utilize, delegate to or subcontract with any of its
subsidiaries, divisions, affiliates or third parties in connection with its
performance of the terms of this agreement, in full or in part, as deemed
appropriate at METROPOLITAN's discretion.
5. RIGHT TO EXAMINE METROPOLITAN'S RECORDS
SUMMIT shall have the right to examine and audit any and all of the
books, records, or other information of METROPOLITAN, with respect to or
concerning this agreement or the receivables during business hours or at such
other times as may be reasonable under applicable circumstances.
6. EVENT OF DEFAULT
The following shall be construed as an event of default:
a. The failure by METROPOLITAN to deliver any and all monies received
by METROPOLITAN which METROPOLITAN is obligated to pay to SUMMIT pursuant
to the terms of this agreement;
b. The failure by SUMMIT to deliver any sums required to be paid to
METROPOLITAN pursuant to the terms of this agreement.
c. The failure of either party to perform in accordance with the terms
and conditions of this agreement to the extent that such failure to
perform shall constitute a material breach of a term or condition of this
agreement.
d. In the event that METROPOLITAN shall file bankruptcy or otherwise
be determined to be insolvent, this agreement may be terminated by SUMMIT
and SUMMIT may take immediate steps to employ another entity to collect
and service the receivables then being serviced by METROPOLITAN.
7. TERMINATION
a. Either party may terminate this agreement by providing written
notice of termination to the other party, in which event this agreement
shall terminate immediately upon receipt of such notice or at such later
date as provided in said notice.
b. In the event of a default as defined in paragraph VI.6.
hereinabove, the non-defaulting party may, in lieu of immediately
terminating this agreement, provide written notice of default to the
defaulting party, which notice shall set forth the time-period for cure,
which shall be no less than ten (10) days from receipt of the notice by
the defaulting party. If the breaching party does not cure the default
within the time period set forth in the notice, this agreement shall
terminate upon expiration of said time period.
8. NOTICE
Notice under this agreement shall be in writing, and delivered by hand,
receipt acknowledged, or delivered by registered certified United States mail,
return receipt requested, and if refused, by regular United States mail,
addressed to the parties as stated below:
a. ATTN: PRESIDENT
METROPOLITAN MORTGAGE & SECURITIES CO., INC.
W. 000 Xxxxxxx Xxx.
Xxxxxxx, XX 00000.
b. ATTN: PRESIDENT
SUMMIT SECURITIES INC.
0000 X. Xxxxxxx, Xxxxx 000
Xxxxx x'Xxxxx, XX 00000
9. BINDING EFFECT
This agreement sets forth the entire agreement between the parties, and
shall be binding upon all successors and assigns of both of the parties hereto,
and shall be construed under the laws of the State of Washington.
10. PRIOR AGREEMENTS
This agreement replaces and supersedes each and every prior agreement
executed by the parties related to the management, Receivable acquisition and
Receivable collection services provided by METROPOLITAN to SUMMIT.
This agreement is executed the day, month, and year first above written by
the duly authorized officers of each party.
METROPOLITAN MORTGAGE & SUMMIT SECURITIES, INC.
SECURITIES CO., INC.
/S/ C. XXXX XXXXXXXX, XX. /S/ XXXX XXXXXXX
By: By:
C. Xxxx Xxxxxxxx, Xx. Xxxx Xxxxxxx
President President
/S/ XXXXX XXXXXXX /S/ XXX XXXXXX
Attest Attest
Xxxxx Xxxxxxx Xxx Xxxxxx
Assistant Secretary Secretary/Treasurer
ADDENDUM TO MANAGEMENT, ACQUISITION AND SERVICING AGREEMENT
BETWEEN
SUMMIT SECURITIES, INC.
AND
METROPOLITAN MORTGAGE & SECURITIES CO., INC.
DATE OF Amended ORIGINAL AGREEMENT: September 9, 1994
DATE OF THIS ADDENDUM: September 9, 1994
ADDENDUM NUMBER: 1
1. FEES FOR GENERAL SUPPORT SERVICES
a. Administrative Support Fees:
i. SUMMIT will pay METROPOLITAN a monthly fee for general
office services provided by METROPOLITAN to SUMMIT. It is the
intent of the parties hereto that the Administrative Support Fees
be calculated at a fair and equitable rate that reflects the
current market cost for comparable services.
ii. METROPOLITAN has developed and shall continue to maintain a
cost-allocation system designed to measure the activity of the
general support services departments used by both parties, to
provide a basis for allocation of the costs generated by those
departments. The cost allocation system shall be expressed in
terms of labor hours, machine hours, square footage, and/or other
appropriate measures. The cost allocation system will be used to
support charges found in the market place for comparable services
and may be used as an approximation for market charges when the
market cost for such services cannot be determined and as agreed to
by the parties.
b. Financial Services Fees:
i. SUMMIT shall pay to METROPOLITAN an agreed amount to
METROPOLITAN for METROPOLITAN providing financial consultation and
advice.
ii. The financial consultation and advice, when provided, shall be
charged at a fee negotiated by the parties in each instance and
based upon the expertise and hours required to provide the service.
c. Office Space Rental Fees:
i. SUMMIT shall also pay to METROPOLITAN an agreed amount of
rent for the real and personal property utilized by SUMMIT during
the term hereof, which amount shall be determined on the basis of a
triple net lease.
ii. The lease for office space and related triple net charges
shall be determined on a square foot basis, based upon a percentage
of the building's total expenses, or such other appropriate measure
as determined by the parties.
2. RECEIVABLE ACQUISITION SERVICES FEE:
a. METROPOLITAN shall acquire receivables for SUMMIT, which, after
deduction of METROPOLITAN'S fee, earn a minimum net yield equivalent to
the yield obtainable in the market place for assets of comparable credit
quality (estimated to approximate 400 basis points over the average
Treasury Mortgage Equivalent Yield). Calculation of this fee shall be
determined by mutual agreement of the parties.
b. The minimum fee to METROPOLITAN will be no less than 100 basis
points for all receivables purchased through its origination network.
c. The following formula sets forth the initial method for calculating
the fee and corresponds to the sample calculation set forth in Exhibit A.
i. Determine the net carrying value (net book value) of the
receivables(s) by decreasing its/their face amount by the purchase
discount, and adding back the capitalized closing costs. For the
purposes of this paragraph, purchase discount is the difference
between the face value of the receivable and its purchase price
paid to the third party seller.
ii. Determine the weighted average remaining contractual term of
the receivable(s).
iii. Set forth the expected average remaining life for the
receivable(s), which expectation shall be determined after applying
the prepayment assumption set forth in paragraph v. The average
remaining life is equal to the life in which the average balanced
is reached.
iv. Determine the weighted average coupon (weighted average
interest rate) for the receivable(s).
v. Set forth the expected prepayment assumption for the
receivable(s) which shall be determined by considering the weighted
average coupon (set forth in iv. hereinabove) in light of the
current interest rate environment.
vi. Determine the average weekly treasury yield for the expected
average time to maturity of the receivable(s) as set forth in
paragraph IV.2.c.iii. over the time period that the receivable(s)
was/were acquired. The weekly yield shall be a weekly average
calculated on a consistent basis, such as the average weekly rate
published by the Bloomberg Investment System. The rate used may
reflect an interpolation between proximate treasury yields and
terms. The rate may be the result of rounding to the nearest whole
year, e.g. an expected receivable average term of 4.6 years may be
rounded to 5.0 years.
vii. Determine the mortgage equivalent (monthly payment
equivalent) for the average weekly treasury yield set forth in vi.
hereinabove.
viii. Add the appropriate spread to the mortgage yield equivalent
(IV.2.a.). The result is the receivable yield to SUMMIT (subject
to IV.2.b.).
ix. Determine the percent of the face value of the receivable
which SUMMIT can pay to achieve its yield requirement as set forth
in viii. hereinabove.
x. Set forth the dollar amount which results from applying the
percent in paragraph ix, to the face amount of the receivable.
xi. The difference between the amount SUMMIT can pay to obtain
its desired yield (ix.) and the net carrying value (i.), is the
acquisition services fee.
xii. Determine that the fee prescribed in (xi.) is equal to or
greater than the minimum fee prescribed in IV>2.b. If the fee
derived from the above formula is less than the minimum then
recalculate the fee at the prescribed minimum.
d. The receivable acquisition services fee may be calculated by
METROPOLITAN, at its discretion, on an individual receivable basis, or on
a pooled basis.
3. RECEIVABLE COLLECTION AND MANAGEMENT SERVICES FEES
SUMMIT agrees to compensate METROPOLITAN for its duties performed
hereunder in the following manner and amounts:
a. SUMMIT agrees to pay in addition to any applicable taxes a monthly
management and servicing fee. Such sum shall be due whether or not a
receivable is in default. The fee shall be calculated based on the cost
for similar services in the market place. The charge will be derived
based generally on the following methodology: The standard servicing
charge in the market place for conventional residential receivables
(currently 25 basis points) will be applied to the average Washington,
regional, or national average receivable balance. The parties may agree
to further segregate the charges between residential, commercial or other
receivable types. The resulting annual per receivable charge will be
divided by the recent average SUMMIT receivable balance and multiplied by
one plus a factor that considers the additional servicing cost attendant
to the types of receivables generally acquired SUMMIT.
METROPOLITAN MORTGAGE & SUMMIT SECURITIES, INC.
SECURITIES CO., INC.
/S/ C. XXXX XXXXXXXX, XX. /S/ XXXX XXXXXXX
By: By:
C. Xxxx Xxxxxxxx, Xx. Xxxx Xxxxxxx
President President
/S/ XXXXX XXXXXXX /S/ XXX XXXXXX
Attest Attest
Xxxxx Xxxxxxx Xxx Xxxxxx
Assistant Secretary Secretary/Treasurer
