EXHIBIT 10.03
MANAGEMENT, RECEIVABLES ACQUISITION
AND UNDERWRITING AGREEMENT
(MM&S/OWAL)
Agreement effective this 1st day of January, 2001, by and between Old
West Annuity & Life Insurance Company (hereinafter "Investor"), an Arizona
corporation with principal offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, and Metropolitan Mortgage & Securities Co., Inc. (hereinafter
"METROPOLITAN"), a Washington corporation with its principal office at ▇▇▇ ▇.
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, (also hereinafter referred to
jointly as the "Parties".)
WITNESSETH
WHEREAS, METROPOLITAN engages in the business of purchasing and selling
Receivables as defined in Paragraph I.1 below, and maintains subsidiaries,
internal staff, and operations to support such activities, and;
WHEREAS, INVESTOR also engages in the business of investing in and
selling Receivables, but INVESTOR does not maintain internal staff or operations
to support such activities, and;
WHEREAS, METROPOLITAN has the personnel, systems and expertise to
provide to INVESTOR general support, Receivables acquisition, underwriting and
sales services, and;
WHEREAS, INVESTOR desires to obtain from METROPOLITAN general support
services, Receivables acquisition and underwriting 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. RECEIVABLE ACQUISITION AND SALES SERVICES
1. RECEIVABLES DEFINED
"Receivables" means all types of investments that can be lawfully held
by an insurance company, including, but not limited to, mortgage loans,
lotteries, bonds, and annuities. Investments must be in compliance with the
State of Arizona insurance laws.
2. GENERAL DUTIES AND AUTHORITY
METROPOLITAN shall provide services related to Receivables acquisition,
underwriting and sales services to INVESTOR which shall be performed
substantially in compliance with the following:
a. METROPOLITAN shall secure opportunities for INVESTOR to purchase and
sell Receivables through the use of METROPOLITAN'S acquisition system,
industry contacts and the other methods developed by METROPOLITAN for
its own Receivable purchases.
b. In reviewing the Receivables offered for purchase to, or for sale
from, INVESTOR, METROPOLITAN shall review, among other things, the
Receivables loan to value ratio, collateral value, collateral
condition, payment record, payor's credit, title reports and legal
documents, taking into account the investment guidelines provided by
INVESTOR.
c. METROPOLITAN or its agent shall close the Receivables acquisition or
sale in a manner that is consistent with industry standards for the
type of Receivables and the location where the Receivables acquisition
or sale is closed.
d. METROPOLITAN shall originate all Receivables on behalf of and in the
name of INVESTOR.
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METROPOLITAN / OWAL
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e. INVESTOR shall allow METROPOLITAN to use funds from INVESTOR's bank
account solely for the purpose of acquiring Receivables under this
Agreement. METROPOLITAN shall also place all funds received from the
sale of INVESTOR Receivables into INVESTOR's bank account. INVESTOR and
METROPOLITAN funds shall not be commingled. Only METROPOLITAN employees
duly authorized in writing, by both METROPOLITAN and INVESTOR, shall
have access to the INVESTOR bank account for purposes of this
Agreement.
f. METROPOLITAN shall prepare and maintain such books, records,
computer systems and procedures as shall be necessary to pursue offers
for the purchase or sale of Receivables and as necessary to execute the
purchase or sale of Receivables.
g. METROPOLITAN shall furnish to INVESTOR such periodic, special or
other reports or information as requested by INVESTOR including reports
of total Receivables purchased and sold, closing periods and closing
costs. All such reports, documents or information shall be provided in
accordance with all reasonable instructions and directions which
INVESTOR may give.
h. INVESTOR shall have ultimate control and responsibility of the
functions it has delegated to METROPOLITAN under this Agreement.
3. INVESTMENT GUIDELINES AND PURCHASE/SALE YIELD REQUIREMENTS
a. METROPOLITAN shall assist INVESTOR in acquiring Receivables which
are consistent with INVESTOR'S then current investment guidelines and
yield requirements. INVESTOR'S current investment guidelines and yield
requirements are set forth in Exhibit B. INVESTOR may change its
investment guidelines at any time by written notice to METROPOLITAN.
Such changes will apply prospectively for all acquisition originations
made subsequent to METROPOLITAN'S receipt of notice of the change.
b. METROPOLITAN may propose the acquisition of Receivables which do not
on an individual basis satisfy INVESTOR'S then current investment
guidelines and yield requirements if METROPOLITAN believes such
investments to be in INVESTOR'S best interest. Any such proposed
acquisition must be approved by an appropriately designated officer of
INVESTOR in advance of METROPOLITAN closing the acquisition or sale of
such Receivables. Notwithstanding the foregoing, METROPOLITAN shall not
propose the acquisition of any Receivables for INVESTOR which do not
comply with applicable statutes and regulations regarding investments
of an insurance company.
4. RECEIVABLES ACQUISITION, NO RIGHT OF FIRST REFUSAL
INVESTOR acknowledges that METROPOLITAN provides Receivable acquisition
services to itself and to others. INVESTOR acknowledges that it has no priority
or right of first refusal to acquire any Receivable(s) from METROPOLITAN, and
METROPOLITAN may determine in its sole discretion, subject to INVESTOR'S
underwriting guidelines and yield requirements, which Receivables, if any, to
provide to INVESTOR for acquisition.
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II. GENERAL SUPPORT SERVICES
1. DESCRIPTION OF SERVICES
METROPOLITAN shall provide INVESTOR administrative support services
including but not limited to receivable acquisition, accounting and finance,
portfolio management, human resources, information systems, legal and marketing.
2. FEES FOR GENERAL SUPPORT SERVICES
INVESTOR will pay METROPOLITAN monthly fees for General Support
Services provided by METROPOLITAN to INVESTOR. Fees for General Support Services
shall be set forth in Exhibit A to this Agreement. The fees and Exhibits may be
supplemented, amended and modified from time to time by mutual written agreement
of the Parties, subject to the notice and approval requirements contained in
paragraph IV.8 below.
Notwithstanding anything to the contrary in this Agreement, the fees
for services performed as set forth in Exhibit A will be fair and reasonable,
and expenses incurred and payments received will be allocated to INVESTOR in
accordance with statutory accounting principles. The fees will be charged
initially at an estimate of cost, which fees will be adjusted to reflect actual
cost, as determined on an annual basis. Accounts shall be rendered at quarterly
intervals or more often and shall be settled within 30 days thereafter. The
obligations of each party under this Agreement to transfer payments to another
party may be offset by reciprocal obligations of such other party so that only
the net amount of such servicing payments shall be required to be transferred.
Where the difference between estimates and actual costs is determined to be less
than 3%, no actual payment of the difference will be necessary. However, this
difference between the estimates and costs shall be an adjustment to the
calculation of the new estimate. Where the difference between the estimates and
actual costs is determined to be greater than 3%, the account shall be settled
within 30 days thereafter.
3. COSTS FOR GENERAL SUPPORT SERVICES
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 methodology used for determining the costs may be
reviewed by either party at any time, and is subject to change by mutual written
agreement of the Parties as the specific services may vary and/or other
applicable conditions warrant.
III. REPRESENTATIONS AND WARRANTIES OF METROPOLITAN
METROPOLITAN REPRESENTS AND WARRANTS TO INVESTOR 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 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.
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5. The execution and delivery of this Agreement, the acquisition and
underwriting of Receivables, the performance of 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 INVESTOR'S ability to enforce any acquired Receivables
according to its terms, or which would impair the value of any Receivable
acquisitions by INVESTOR pursuant to this Agreement.
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 services provided by METROPOLITAN hereunder shall each be conducted in
accordance with generally accepted business practices in all respects, as
applicable to each respective activity.
IV. REPRESENTATIONS AND WARRANTIES OF INVESTOR
INVESTOR REPRESENTS AND WARRANTS TO METROPOLITAN THAT:
1. INVESTOR is a corporation duly organized, validly existing and in good
standing under the laws of the State of Arizona.
2. INVESTOR 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 INVESTOR 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 INVESTOR to make
this Agreement binding upon INVESTOR in accordance with its terms.
4. The consummation of the transactions contemplated by this Agreement are in
the ordinary course of business of INVESTOR.
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 INVESTORS articles of
incorporation, bylaws or any other agreement, instrument, law, regulation, rule,
order, or judgment to which INVESTOR is a party, by which it is bound or its
property is subject, which would impair the ability of METROPOLITAN to provides
services in accordance with the terms of this Agreement.
6. INVESTOR 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 INVESTOR 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 INVESTOR, or in any material impairment of
the right or ability of INVESTOR to carry on its business substantially as now
conducted, or which would draw
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into question the validity of this Agreement or of any action taken or to be
taken in connection with the obligations of INVESTOR contemplated herein, or
which would be likely to impair materially the ability of INVESTOR to perform
under the terms of this Agreement.
8. This Agreement and any amendments hereto, including any modification to the
fees payable hereunder, are subject to the prior notification and approval
requirements of A.R.S. Section 20-481.12 and may be required to be provided to,
and may be subject to review by, the Arizona Department of Insurance. Except as
noted above, no consent, approval, authorization or order of any court or
governmental agency or body is required for INVESTOR'S execution, delivery and
performance of or compliance with this Agreement.
V. GENERAL TERMS AND CONDITIONS
1. NON-EXCLUSIVITY OF AGREEMENT
This Agreement is non-exclusive. INVESTOR 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 INVESTOR shall not be
construed as an event of termination of this Agreement.
2. NON-ASSIGNMENT
This Agreement shall not be assigned.
3. RIGHT TO EXAMINE METROPOLITAN'S RECORDS
INVESTOR 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 acquired under the terms of this
Agreement during business hours or at such other times as may be reasonable
under applicable circumstances.
4. EVENT OF DEFAULT
The following shall be construed as an event of default:
a. The failure by INVESTOR to deliver any sums required to be paid to
METROPOLITAN pursuant to the terms of this Agreement.
b. 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.
5. TERMINATION
a. Either Party may terminate this Agreement without cause by providing
not less than thirty (30) days advance written notice of termination to
the other Party, in which event this Agreement shall terminate at date
provided in said notice.
b. In the event of a default as defined in paragraph V.4. above, 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 may be terminated by the
non-defaulting Party upon expiration of said time period, or such later
date as set forth in the non-defaulting Party's notice of default.
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6. 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:
ATTN: PRESIDENT
METROPOLITAN MORTGAGE & SECURITIES CO., INC.
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
ATTN: PRESIDENT
OLD WEST ANNUITY & LIFE INSURANCE CO.
▇▇▇▇ ▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
7. 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. Investments
must be in compliance with state of Arizona insurance laws.
8. PRIOR AGREEMENTS
This Agreement replaces and supersedes each and every prior Agreement
executed by the Parties related to the Management, Receivable Acquisition and
Underwriting Services provided by METROPOLITAN to INVESTOR.
This Agreement is executed the day, month, and year first above written
by the duly authorized officers of each Party.
METROPOLITAN MORTGAGE & OLD WEST ANNUITY & LIFE INSURANCE CO.
SECURITIES CO., INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
------------------------------------ ----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
Title: Secretary Title: Sr Vice President
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EXHIBIT A
MANAGEMENT, ACQUISITION AND SERVICING AGREEMENT
(MM&S / OWAL)
FEES
SERVICE FEE
------- ---
General support services including but not $115,000.00 per month
limited to receivable acquisition, accounting
and finance, portfolio management, human
resources, information systems, legal and
marketing.
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EXHIBIT B
MANAGEMENT, ACQUISITION AND SERVICING AGREEMENT
(MM&S / OWAL)
MANAGEMENT GUIDELINES AND YIELD REQUIREMENTS
ACQUISITION YIELD APPRAISAL
INVESTMENT TYPE REQUIREMENTS LOAN TO VALUE REQUIRED? OTHER
--------------- ----------------- ------------- --------- -----
Real estate loans, 9.5% over $50K residential 80% maximum first Yes at time of Second liens ok if combined
individual loan 9.75% under $50K residential liens acquisition first and second does not
acquisition (20-553) (20-553) exceed 80% LTV
+1% non SFR (20-557 & 20-536)
+2% non-1st pos.
Maximum 35 year amortization
Minimum annual payment
(20-553)
Commercial loans Negotiated each transaction 80% maximum first Yes Same as Above
liens
Alternative Cash Flows Negotiated each transaction Negotiated each N/A Limited to aggregate of 10%
(lotteries, annuities, transaction of assets and 2% in any one
etc.) category of investment
(20-549)
Real estate loans, bulk Negotiated each transaction Negotiated each Yes
purchases transaction
Bond Investments N/A N/A SVO rating no lower than,
and % of investment no
greater than permitted by
A.R.S. Sections 20-540, 20-544,
20-545 and Arizona
Department of Insurance
Order Docket No. 00A-123-INS.
Other general underwriting guidelines include, but are not limited to the
followings:
o All mortgages must be secured by improved unencumbered real property.
(20-553)
o Single issuer (or borrower) limitation is 10% of admitted assets of
preceding yearend. (20-535)
Investments must be in compliance with State of
Arizona insurance laws.
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