MANAGEMENT, ACQUISITION AND SERVICING AGREEMENT
Agreement made this 10th day of October, 1996 by and between Arizona Life
Insurance Company (hereinafter "ARIZONA LIFE"), an Arizona corporation with
principal administrative offices at 0000 X. Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxx,
Xxxxx 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, ARIZONA LIFE also engages in the
business of investing in receivables, but ARIZONA LIFE 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 ARIZONA LIFE general support services, receivable acquisition services and
receivable collection and management services, and;
WHEREAS, ARIZONA LIFE desires to obtain from Metropolitan general support
services, receivable acquisition services and account receivable 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 ARIZONA LIFE 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 ARIZONA LIFE to collect its receivables or
impair the value of ARIZONA LIFE'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 ARIZONA LIFE
ARIZONA LIFE REPRESENTS AND WARRANTS TO METROPOLITAN THAT:
1. ARIZONA LIFE is a corporation duly organized, validly existing and
in good standing under the laws of the State of Arizona.
2. ARIZONA LIFE 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
ARIZONA LIFE 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 ARIZONA
LIFE to make this agreement binding upon ARIZONA LIFE in accordance with its
terms.
4. The consummation of the transactions contemplated by this agreement
are in the ordinary course of business of ARIZONA LIFE.
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 ARIZONA LIFE'S
articles of incorporation, bylaws or any other agreement, instrument, law,
regulation, rule, order, or judgment to which ARIZONA LIFE 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. ARIZONA LIFE 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 ARIZONA LIFE 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 ARIZONA LIFE, or in
any material impairment of the right or ability of ARIZONA LIFE 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 ARIZONA LIFE contemplated herein, or which
would be likely to impair materially the ability of ARIZONA LIFE to perform
under the terms of this agreement.
III. GENERAL SUPPORT SERVICES:
1. DESCRIPTION OF SERVICES
a. Administrative Support Services:
METROPOLITAN shall provide ARIZONA LIFE administrative support services
including but not limited to Human Resources, Information Systems, Art &
Advertising, Accounting, legal, check processing, and cashiering
services. Such services shall not include third party administrator
services, as that term is defined under the laws of the State of Arizona.
b. Financial Services:
METROPOLITAN shall provide financial advice and securities portfolio
management services to ARIZONA LIFE pursuant to the investment policies
and guidelines of ARIZONA LIFE, as set forth in Exhibit A. Such
guidelines may be changed and amended at any time and from time to time
at the sole discretion of ARIZONA LIFE.
2. FEES FOR GENERAL SUPPORT SERVICES
ARIZONA LIFE will pay METROPOLITAN monthly fees for General Support
Services provided by METROPOLITAN to ARIZONA LIFE. 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 ARIZONA
LIFE which shall be performed substantially in compliance with the following:
a. METROPOLITAN shall secure opportunities for ARIZONA LIFE 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 ARIZONA LIFE, METROPOLITAN
shall review, among other things, the receivable loan to value ratio,
security value, security condition, payment record, payor's credit,
collateral title reports and legal documents, taking into account the
investment guidelines provided by ARIZONA LIFE.
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 ARIZONA
LIFE's receivable portfolio if such receivables are consistent with
ARIZONA LIFE's investment guidelines, as set forth in Exhibit A.
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 ARIZONA LIFE such periodic, special
or other reports or information as requested by ARIZONA LIFE 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
ARIZONA LIFE 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
ARIZONA LIFE.
2. RECEIVABLE ACQUISITION YIELD REQUIREMENT:
ARIZONA LIFE shall purchase receivables from METROPOLITAN at the yield
requirement established by ARIZONA LIFE. Such yield requirement may be changed
by ARIZONA LIFE at any time and from time to time in its sole discretion. Such
changes will apply prospectively for all acquisitions made subsequent to the
change.
3. RIGHT TO REJECT.
ARIZONA LIFE shall have the right at anytime to review the receivables
acquired pursuant to this agreement and to reject any receivables which in
ARIZONA LIFE'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 ARIZONA LIFE 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 ARIZONA LIFE such periodic, special, or other reports,
documents or information as requested by ARIZONA LIFE 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 ARIZONA LIFE 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 ARIZONA LIFE shall be transferred to an
account designated by ARIZONA LIFE.
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 ARIZONA LIFE 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 ARIZONA
LIFE 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 ARIZONA LIFE, 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 "ARIZONA LIFE" 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 ARIZONA
LIFE.
2. COOPERATION BY ARIZONA LIFE
ARIZONA LIFE 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
ARIZONA LIFE agrees to compensate METROPOLITAN for its duties performed
hereunder in the following manner and amounts:
a. ARIZONA LIFE 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, ARIZONA LIFE 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. ARIZONA LIFE 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
ARIZONA LIFE shall have the right at any time to review the method for
determining the fees charged pursuant to this Agreement. If, in ARIZONA LIFE's
opinion, any fee is unacceptable ARIZONA LIFE may request a review by the
officers of ARIZONA LIFE 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. ARIZONA LIFE 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
ARIZONA LIFE shall not be construed as an event of termination of this
agreement.
b. ARIZONA LIFE 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
ARIZONA LIFE 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 ARIZONA LIFE
pursuant to the terms of this agreement;
b. The failure by ARIZONA LIFE 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
ARIZONA LIFE and ARIZONA LIFE may take immediate steps to employ another
entity to collect and service the receivables then being serviced by
METROPOLITAN.
7. TERM AND TERMINATION
a. The term of this Agreement shall be monthly. It shall
automatically renew each month unless terminated by either party as set
forth below.
b. 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.
c. 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
ARIZONA LIFE INSURANCE COMPANY
0000 Xxxxxxx, Xxxxx 000
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. CONTROL, RESPONSIBILITY AND CUSTODY
ARIZONA LIFE retains the ultimate control and responsibility for all
functions delegated. ARIZONA LIFE retains the ownership and custody of all
its general corporate accounts and records.
11. ASSIGMENT
This Agreement shall not be assignable by either party.
This agreement is executed the day, month, and year first above written
by the duly authorized officers of each party.
METROPOLITAN MORTGAGE & ARIZONA LIFE INSURANCE COMPANY
SECURITIES CO., INC.
By: /S/ C. XXXX XXXXXXXX, XX. By: /S/ M. XXXXX XXXXXX
C. Xxxx Xxxxxxxx, Xx. M. Xxxxx Xxxxxx
President Vice President
Attest /S/ XXXX XXXXXXX Attest /S/ XXX XXXXXX
Xxxxx Xxxxxxx Xxx Xxxxxx
Secretary/Treasurer Secretary
Exhibit A
Arizona Life Insurance Company
Investment Guidelines
ADDENDUM TO MANAGEMENT, ACQUISITION AND SERVICING AGREEMENT
BETWEEN
ARIZONA LIFE INSURANCE COMPANY
AND
METROPOLITAN MORTGAGE & SECURITIES CO., INC.
DATE OF ORIGINAL AGREEMENT: October 10, 1996
DATE OF THIS ADDENDUM: October 10, 1996
ADDENDUM NUMBER: 1
1. FEES FOR GENERAL SUPPORT SERVICES
a. Administrative Support Fees:
i. ARIZONA LIFE will pay METROPOLITAN a monthly fee for general
office services provided by METROPOLITAN to ARIZONA LIFE. It is
the intent of the parties hereto that the Administrative Support
Fees be calculated at a fair and equitable rate that reflects the
actual cost of the 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 to be allocated to ARIZONA LIFE. 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. The
current fee schedule, which approximates actual costs, is set forth
in Exhibit A.
b. Financial Services Fees:
i. ARIZONA LIFE shall pay to METROPOLITAN an agreed amount to
METROPOLITAN for METROPOLITAN providing financial consultation and
advice, and for managing ARIZONA LIFE's investment portfolio.
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.
The current fee schedule, which approximates actual costs is set
forth in Exhibit A.
2. RECEIVABLE COLLECTION AND MANAGEMENT FEES
ARIZONA LIFE agrees to compensate METROPOLITAN for its duties performed
hereunder in the following manner and amounts:
a. ARIZONA LIFE 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 an
approximation of the cost to provide the services, which currently is $12 per
month per receivable outstanding as of each month end. Such fee is payable or
subject to settlement through offset as of the 10th day following each month
end.
METROPOLITAN MORTGAGE & ARIZONA LIFE INSURANCE COMPANY
SECURITIES CO., INC.
By: /S/ C. XXXX XXXXXXXX, XX. By: /S/ M. XXXXX XXXXXX
C. Xxxx Xxxxxxxx, Xx. M. Xxxxx Xxxxxx
President Vice President
Attest /S/ XXXXX XXXXXXX Attest /S/ XXX XXXXXX
Xxxxx Xxxxxxx Xxx Xxxxxx
Assistant Secretary Secretar
EXHIBIT A
Administrative
Fees
Accounting 250
Data Processing 250
G & A 250
Shared System Amortization 250
1,000
The financial consultation and advice, when provided, shall be charged at a fee
of .5% per annum of the average monthly balance managed.
