SERVICE AGREEMENT
This Agreement, made as of the 1st day of April 2002, as supplemented on
October 21, 2004 for purposes of clarification of the intent of the original
agreement, by and between INTERVEST NATIONAL BANK, a national banking
association with principal offices at Xxx Xxxxxxxxxxx Xxxxx (Xxxxx 000), Xxx
Xxxx, Xxx Xxxx 00000 ("INB"), and INTERVEST MORTGAGE CORPORATION, a New York
corporation with principal offices at Xxx Xxxxxxxxxxx Xxxxx (Xxxxx 000), Xxx
Xxxx, Xxx Xxxx 00000 ("IMC").
WITNESSETH
WHEREAS, INB desires to retain the services of IMC in accordance with the
terms and conditions hereinafter set forth; and
WHEREAS, IMC desires to perform such services in accordance with the terms
and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained, the parties hereto agree as follows:
1. Retention and Description of Services. INB hereby retains IMC to perform
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the following services:
(a) Mortgage Originations. IMC shall assist in identification of potential
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properties and borrowers for purposes of the origination by INB of mortgage
loans (the "Origination Services"). The Origination Services shall include the
inspection of properties constituting collateral for such loans and the
negotiation of the terms and conditions of such loans. Any such loan shall, in
all events, be subject to the approval of INB, and IMC shall, in the performance
of its services hereunder, be guided by the mortgage investment policies of INB
as in effect from time to time.
(b) Agents. In the performance of its services hereunder, IMC shall have
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authority to interact with attorneys, approved appraisers, engineers,
environmental consultants, and such other consultants and professional as
retained by INB.
(c) Mortgage Servicing. To the extent requested to do so by INB for any
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particular mortgage, IMC shall act as mortgage-servicing agent for specified
mortgages (the "Mortgage Servicing Services"). The Mortgage Servicing Services
shall include the collection of mortgages receivable, the payment of mortgages
payable, the payment of property taxes, insurance premiums and other impositions
for the mortgaged premises.
IMC agrees to perform all services as may be reasonably requested by INB
hereunder and as may be mutually agreed by the parties to the best of its
abilities and within reasonable time periods, and shall allocate sufficient time
and resources to this end. Notwithstanding the foregoing, IMC provides no
warranties or guaranty of results with respect to any of its services, which may
be performed under this Agreement.
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2. Monthly Service Fee. In consideration for the Origination Services to be
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rendered by IMC hereunder, INB agrees to pay IMC a monthly service fee so long
as this agreement is in effect that will be calculated as follows:
INB will aggregate and track all Eligible Fees (as defined below) on a
monthly basis from loan activity for each month. Each month's service fee that
is due IMC will be calculated by taking 1/12 (one twelfth) of the sum of all
Eligible Fees in the current month and each of the preceding eleven months. The
total fees paid to IMC shall be limited to the total Eligible Fees collected by
INB.
Eligible Fees are defined as follows:
- All origination fees collected by INB for any real estate loan
originated and closed less $2,000 per loan;
- Any extension fees (including any fee to extend open commitments)
collected by INB for any real estate loan extended and closed
less $1,000 per loan;
- All origination and/or extension fees collected by INB for any
real estate loan that does not close because it is withdrawn, the
commitment expires, or otherwise less $1,000 per loan.
- For purposes of this agreement, fees are deemed collected on the
date a loan origination/extension closes or when the loan is
withdrawn, the commitment expires, or otherwise fails to close.
Exhibit A (attached) will be prepared by INB and reported to IMC monthly.
The monthly fee will be automatically deposited into IMC's money-market account
# 3150000059 on or about the 15th of each month.
Additionally, INB shall also pay, upon receipt of a written inspection
report, any property inspection fees and/or property re-inspection fees received
in connection with inspections performed by IMC. Such fees shall be payable to
IMC when received.
3. Term. The term of this Agreement shall commence upon its execution and
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shall continue in full force and effect through December 31, 2002, after which
time it shall be subject to automatic annual renewals, provided that either
party may terminate this Agreement upon 90 days written notice.
4. Termination. In the event of any termination of this Agreement, IMC
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shall not be entitled to any eligible fees that have not been paid to IMC
hereunder prior to the date of termination and IMC shall, to the extent
necessary, cooperate in the transfer of any services to INB or its designated
agent.
5. Confidential Information.
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(a) As used in this Agreement, the "Confidential Information" of one party
(the "Party") shall mean any information disclosed to or obtained by the other
party ("other") as a result of the relationship between the parties existing by
virtue of this or any other agreement of the parties, which information is not
generally known in the trade or industry in which the Party operates, and
relating to the Party's past, present and future products, processes and
services, and information relating to the Party's customers, as well as
financial, sales and business planning information. The term Confidential
Information does not include any information which the other can show was in the
public domain at the time the other became aware of it, because a part of the
public domain through no fault of the other after the other became aware of it,
or is disclosed to the other by a third party free of any obligation of
confidence.
(b) The parties mutually agree to hold all Confidential Information of the
other party in trust and confidence, and to use it only for the benefit of the
other party. Unless approved by either party in writing, each party agrees not
to disclose any Confidential Information of the other party by publication or
otherwise to any third party.
6. Liability; Indemnification. Each party shall be liable to the other for
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its own negligence, willful misconduct, bad faith, fraud and material breach of
its obligations. INB shall indemnify, defend and hold harmless IMC from and
against any claims or actions arising out of its performance of service
hereunder, except to the extent such claims or actions are due to the
negligence, willful misconduct, bad faith and material breach of IMC's
obligations. In any event, INB is wholly responsible for the review and analysis
of any third party reports including but not limited to credit, tax returns,
financial statements, environmental, engineering and appraisals.
7. Outside Business Interest. INB acknowledges and understands that IMC is
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engaged in a mortgage banking business and, as such, originates mortgages for
its own account. Both INB and IMC and their respective affiliates may engage in
or possess an interest in other businesses of any nature or description,
independently or with others, and the other party shall not have any rights by
virtue of this Agreement in and to such independent businesses or the income or
profits derived therefrom, and the pursuit of any such business shall not be
deemed wrongful or improper. Neither party shall be obligated to present any
particular business or investment opportunity, including mortgage originations,
to the other party as a result of this Agreement.
8. Independent Contractor. The parties agree that IMC is an independent
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contractor and shall not be deemed to be, for any purposes whatsoever, an
employee of INB.
9. Assignment. Neither this Agreement nor any interest herein or claim
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hereunder, may be assigned or transferred to any third party without the prior
written authorization of the other party to this Agreement.
10. Governing Law. This Agreement is made pursuant to, and shall be
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construed in accordance with, the laws of the State of New York.
11. Survival. The rights and obligations of the parties as set forth in
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paragraphs 5 and 6 of this Agreement shall survive and continue after the
expiration or termination of this Agreement, and shall bind the parties hereto,
and their respective successors and assigns.
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12. Modification. This Agreement shall be modified only by an instrument in
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writing and signed by duly authorized representatives of each of the parties.
13. Entire Agreement. This document constitutes the entire agreement
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between the parties with respect to the subject matter hereof, and supersedes
all previous communications, representations, understandings and agreements,
whether oral or written, between the parties or any official or representative
thereof.
14. Force Majeure. Neither party to this Agreement is responsible to the
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other party for nonperformance or delay in performance of the terms and
conditions hereof caused or occasioned by acts of God, fires, strikes, civil or
military authority, insurrection, riot, requirements of any statute, order or
directive of any governmental authority, or, without limiting the generality of
the foregoing, by any other similar cause or event which is unavoidable or
beyond the reasonable control of the parties.
15. Non-Waiver. The failure of either party to insist, in any one instance
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or more upon the performance of any of the covenants or conditions of this
Agreement, or failure to exercise any right or privilege herein contained, shall
not be construed as a waiver of any such covenant, conditions, rights or
privileges, but the same shall continue and remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
INTERVEST NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, President
INTERVEST MORTGAGE CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxxx
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Xxxxxxxx X. Xxxxxxx, Vice President
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