EXHIBIT 10.12
UNITED FINANCIAL MORTGAGE CORP.
WHOLESALE AGREEMENT
This Wholesale Agreement ("Agreement") regarding the underwriting, closing, and
funding of mortgage loans is hereby entered into by and between TIME LENDING, CA
("Broker"), with offices at 0000 X. XXXXXXX XXX. X-0, XXXXXX, XX 00000 and
United Financial Mortgage Corp. ("UFMC"), with offices at 000 Xxxxxxxxxx Xxxxx,
Xxxxx # 000, Xxx Xxxxx, XX 00000.
RECITALS:
(i) UFMC is willing to underwrite, close, and fund mortgage loans approved
by UFMC and originated by Broker which are secured by real property
("Loans"), and Broker is willing to originate, transfer and assign such
Loans to UFMC. UFMC has no obligation by reason of this Agreement or
otherwise to fund and/or purchase any Loan{s) from Broker.
BROKER AGREES TO THE FOLLOWING:
(i) Broker represents and warrants that it is a duly organized and validly
existing and that it is in good standing under applicable laws and
regulations of the United States and the State of Incorporation, which
is CALIFORNIA; and
(ii) Broker has the requisite corporate authority and capacity to enter into
this Agreement; and
(iii) Broker's compliance with the terms and conditions of this Agreement
will not violate any provisions of Broker's Articles of Incorporation
or Bylaws, any instrument relating to the conduct of its business, or
any other agreement to which it may be a party.
Now, therefore, for good and valuable considerations, the receipt and
sufficiency of which are hereby acknowledged, Broker and UFMC agree as follows:
1. GENERAL DESCRIPTION:
UFMC will furnish to Broker various Loan Schedules ("Schedules") of
available loan programs ("Program" or "Programs") with terms and at
such interest rates as UFMC may determine from time to time. Broker
shall offer to UFMC Loans which Broker has originated and fully
processed according to the Loan Program Guidelines and/or Agency
Regulations, as defined herein, whereupon Loans may be funded by UFMC
in its sole discretion. Broker shall be responsible for verifying the
availability of the Loan Programs since Programs may be added or
deleted from time to time at the sole discretion of UFMC.
2. RESPONSIBILITIES, LOAN APPROVAL, DELIVERY, AND FUNDING PACKAGE
SUBMISSION FOR APPROVAL AND FUNDING SHALL BE AS FOLLOWS:
A. Broker's Responsibility: Broker shall produce a complete loan
application package including a completed and signed Loan
application, verifications of employment and deposit, credit
reports, and appraisals, Real Estate Settlement and Procedures Act
(RESPA), Good Faith Estimates, Truth-In-Lending (TIL)
disclosure(s), and other forms and documents required by UFMC
underwriting guidelines, mortgage insurance underwriters, and/or
other investor requirements ("Guidelines") as UFMC may identify.
B. Approval and Funding: Broker shall submit, at its own expense, a
loan package(s) to UFMC for review. Such package(s) will be
reviewed by UFMC before the scheduled closing of the Loan or
expiration of any lock-in and must contain all documentation
required by UFMC and/or its investor. UFMC shall review the Broker
Loan submission for each loan and advise Broker whether it will
issue a loan commitment within a reasonable time from Broker
submission. It is understood that Broker shall make no credit
commitments on behalf of UFMC. UFMC shall have sole discretion to
determine whether a Loan commitment will be issued. However, after
termination of this Agreement, a Loan may be accepted for funding
by UFMC, if UFMC has issued a written commitment to fund the Loan,
provided the commitment terms are satisfied, the Loan meets the
requirements of this Agreement, unless this Wholesale Agreement
with Broker has been terminated by UFMC due to the Broker not
complying with the terms hereof.
C. Agency Acceptance: Broker understands that UFMC intends to sell
Loans to investors in the secondary market. Broker warrants that
in submitting Loans to UFMC each such Loan package shall in
compliance with all requirements and warranties of the United
States Department of Housing and Urban Development (HUD/FHA), the
Department of Veterans Affairs (VA), the Federal National Mortgage
Association (FNMA), the Federal Home Loan Mortgage Corporation
(FHLMC), or the guidelines of any other investor as UFMC may
identify.
D. Regulatory Compliance: Broker warrants that any Loan it submits to
UFMC for approval will be in compliance with all applicable
federal, state and local statutes, ordinances and regulations,
including but not limited to the Real Estate Settlement Procedures
Act; the Truth in Lending Act; the Equal Credit Opportunity Act,
the Fair Credit Reporting Act, the Flood Disaster Protection Act,
and any regulations issued pursuant to such laws and statutes
("Regulations").
3. WARRANTIES: WITH REGARD TO EACH LOAN PACKAGE DELIVERED BY BROKER TO
UFMC UNDER THIS AGREEMENT, BROKER WARRANTS:
A. Loan Meets Guidelines: The Loan conforms to the applicable
Guidelines and Regulations and satisfies all conditions as
specified in this Agreement and/or the loan commitment
B. Broker Right to Sell and Assign: The Broker has full right and
authority to sell and assign the Loan package to UFMC. In
addition, the Broker's right to sell or assign is not subject to
any other party's interest or to any agreement with any other
party.
C. Documents Submitted by Broker: Fraud and Misrepresentations: Each
document included in or with the Loan package delivered to UFMC by
Broker is complete and accurate, contains no misleading
information, has been properly prepared and executed, with all
required disclosures delivered to the Borrower(s) as required by
law, and all signatures and initials therein are authorized and
genuine. Broker has no adverse information or documentation
concerning Borrower or other third party which has not been
communicated to UFMC. Broker hereby represents and warrants that
each and every document included in or submitted in conjunction
with the Loan package is free of fraud and misrepresentation, and
that all signatures appearing therein are genuine.
D. Loan is Acceptable Investment: Nothing involving the Loan package,
the property, the Borrower(s) or his or her credit standing exists
which would: (1) adversely affect the value of the real estate
securing the Loan; (2) cause the Loan to become delinquent; or (3)
adversely affect the Loan's value and marketability. All
documentation and/or information obtained by Broker that might
affect an underwriter's decision has been submitted to UFMC, or
pursuant to its direction.
E. Lock-Ins: Broker shall close "locked-in" Loans within the term of
the Loan commitment. If a Loan closes in or out of the commitment,
Broker agrees that delivery is mandatory and if not delivered to
UFMC, a pair-off fee calculated from the lock terms and current
market rate, whichever provides the highest yield to UFMC, shall
become the obligation of the Broker to pay UFMC within ten days of
notification to Broker by UFMC.
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F. Document Delivery: It shall be Broker's responsibility to ensure
that, on each Loan acquired by UFMC from Broker, additional
documentation including recorded security instrument, recorded
assignment, title policy, and for FHA and VA loans, the
appropriate Certificate of Insurance/guaranty, is delivered to
UFMC within 45 days from the date UFMC acquired the Loan. Further.
Broker shall timely comply with UFMC's requests to obtain
corrected documents it requires after conducting its post-closing
audit review of the Loan.
G. Appraisal and Guarantees: Broker has furnished to UFMC an accurate
appraisal by a qualified appraiser who has no interest, direct or
indirect, in the real estate which is the security for the Loan,
and whose compensation is not affected by the approval or
declination of the Loan.
H. Proscription Against Loan Fraud: Broker is aware that UFMC may
bear responsibility for certain actions of Broker. UFMC may be
responsible for the content and quality of each application taken
and each Loan submitted by Broker. Consequently, Broker represents
and warrants that it understands that the following constitutes
Loan fraud; (i) Submission of inaccurate information, including
false statements on loan application(s) and falsification of
documents purporting to substantiate income, credit, employment,
deposit and asset information, state and federal tax information
or returns; personal information including identity,
ownership/non-ownership of real property, and marital status (ii)
Forgery of any document relating to a Borrower or other party in
the Loan settlement Process. (iii) Incorrect statements regarding
current occupancy or intent to maintain minimum continuing
occupancy as stated in the security instrument. (iv) Lack of due
diligence by Broker or its loan officer/interviewer/processor,
including failure to obtain all information as dictated by
Borrower's response to other questions. (v) Unquestioned
acceptance of information or documentation which is known to be
false, should be known to be false, or should be suspected to be
inaccurate, including (a) simultaneous or consecutive processing
of multiple owner-occupied loans from one applicant supplying
different information on each application, or (b) allowing an
applicant, or interested third-party to "assist" with the
processing of the loan, and/or (vi) Any failure to disclose all
relevant information to UFMC regarding a Loan package.
In addition, the effects of "Loan Fraud" are costly to all parties
involved. UFMC strives to insure the quality of its Loan
production. Fraudulent Loans cannot be sold into the secondary
market and, if sold, may require repurchase by UFMC and ultimately
the Broker under this agreement. Fraudulent loans damage UFMC's
reputation with investors. The price paid by those who participate
in "Loan Frauds" is even more costly. Consequently, the Broker
warrants and represents that it understands that the following are
potential consequences of Loan fraud; (i) Loan Repurchase costs
and the expenses relating thereto. (ii) Criminal prosecution.
(iii) Loss of Broker license. (iv) Loss of lender access. (v)
submission of Broker complaints to investors, and regulatory
agencies. (vi) Civil action by UFMC. (vii) Civil action against
Broker by applicant/borrower or other parties to the transaction.
(viii) Loss of Broker status with UFMC.
Broker also warrants and represents that it has made the
borrower(s) aware of the consequences of fraud by the borrower.
These types of fraud include but are not limited to; (i)
Acceleration of debt. Borrower also shall be in default if
Borrower, during the loan application process, gives materially
false or inaccurate information or statements to UFMC including,
but not limited to, representations concerning Borrower's
occupancy of the property as a principal residence. (ii) Criminal
prosecution. (iii) Civil action by UFMC and any subsequent
investor. (iv) Civil action by other parties to the transaction,
such as seller or real estate agent/broker. (v) Employment
termination. (vi) Loss of professional license if any (vii)
Adverse effect on credit history.
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4. NO AGENCY OR EMPLOYMENT RELATIONSHIP:
Broker shall conduct all business as a duly licensed, independent
contractor, and is not an employee, partner, servant, agent or
affiliate of UFMC. Broker shall not commit, contract or obligate UFMC
to any third party in any manner, implied, written, or otherwise.
Broker shall not use UFMC or its name in any advertising or other
promotional campaigns, without the prior written consent of UFMC.
5. BREACH, REMEDIES AND INDEMNITY:
If after funding or purchasing of a Loan by UFMC it is discovered that
any of the warranties of Broker contained herein are breached or that
the Loans do not meet the requirements of this Agreement, the
Guidelines, other written agreements or the Regulations, then UFMC may,
at its option, and without limitation as to any other remedy available
to UFMC, make demand upon Broker for repurchase of such Loan. Broker
shall within thirty (30) days of demand pay UFMC an amount derived by
multiplying the unpaid principal balance of the Loan at the time of
purchase by the purchase price (expressed as a percentage of par)
originally funded by UFMC for such Loan, with adjustments for interest
prepayments and any comparable items at the time of purchase and any
attorney's fees, legal expenses, court costs or other expenses that may
have been incurred by UFMC in connection with Loan. Broker shall
indemnify, hold harmless and defend UFMC from and against all losses,
damages, penalties, fines, forfeitures, legal fees and related costs,
judgments, and any other costs, fees and expenses heretofore or
hereafter resulting from any claim, demand, defense, or assertions
based or grounded upon or resulting from a breach of the warranties of
this Agreement. All rights and remedies provided in this Agreement are
separate and cumulative to any other right or remedy under this
Agreement or afforded by law or equity, and may be exercised by UFMC
concurrently, independently or successively, and such rights and
remedies shall inure to the benefit of UFMC, and its successors and
assigns.
6. UFMC LIMITATIONS AND TERMINATION:
This Agreement does not obligate UFMC to fund/purchase any Loan from
Broker. UFMC and/or Broker may terminate this Agreement at any time. In
the event of such termination, this Agreement shall remain in full
force and effect with respect to all Broker's outstanding obligations,
representations, warranties and covenants arising out of or relating to
Loans subject to this Agreement. Broker shall be responsible for and
pay all unreimbursed Borrower or other costs, including appraisal fees,
title charges, over-night or other delivery or courier charges and
credit report charges. UFMC shall be entitled to withhold any final
payments due Broker to ensure that all payables relating to closed
Loans or other amounts due UFMC have been paid and UFMC shall be
entitled to set-off and deduct such charges from any amounts due Broker
hereunder. UFMC shall remain obligated to accept and fund any approved
Loan after termination, provided the Borrower continues to satisfy the
Lender's underwriting requirements and Broker will remain obligated to
deliver any Loan as specified in Section 3.
7. ASSIGNABILITY:
This Agreement shall not be assignable or transferable by Broker.
8. NOTICES:
All notices, demands, requests, consents, approvals, or other
communication required or permitted shall be in writing and shall be
delivered personally, or sent by U.S. mail, postage prepaid, to the
addresses above listed or such addresses as the parties subsequently
request in writing.
9. TITLE, HEADING AND SEVERABILITY:
Titles and headings in this Agreement are for convenience of reference
only and shall not affect the construction of any provision of this
Agreement. In the event any provision of this Agreement shall be held
invalid or unenforceable by a court of competent jurisdiction, such
determination shall not invalidate or render unenforceable the
remaining provisions of this Agreement.
10. DELIVERY AND SPOT-CHECK:
Broker agrees that all Loans locked-in with UFMC that close will be
delivered to UFMC in accordance with the terms hereof. UFMC reserves
the right to spot-check any and all Loans to ensure compliance with
applicable state and federal regulations and the Guidelines.
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11. PURCHASE AND SALE AGREEMENT AND POST SETTLEMENT ADJUSTMENTS:
In the event that a premium is paid by UFMC to Broker on a Loan and
such Loan is prepaid in full by the Borrower(s) within six (6) months
from the date of the first payment due UFMC, as a result of financing
arranged by the Broker, and/or as a result of sale of the property in
which Broker had knowledge of such sale prior to origination and/or
closing of the original mortgage, then Broker shall, within ten (10)
business days, remit to UFMC in immediately available funds 100% of the
premium paid to Broker by UFMC.
12. REMEDY FOR EARLY PAYMENT DELINQUENCY STATEMENT:
Any failure by a Borrower(s) to make the first (lst) payment due to the
service and/or investor by the close of business on the date on which
the following payment becomes due; regardless of whether such payment
is subsequently paid by borrower; such loan shall be considered an
"Early Payment Default" notwithstanding the preceding sentence. Broker
shall not be obligated to repurchase a mortgage Loan solely because an
early payment defaults exists with respect thereto if such "Early
Payment Default" was caused directly and only by a mitigating cause. A
"Mitigating Cause" is an event or circumstance that (i) occurred after
the closing date for such Mortgage Loan and (ii) was beyond the control
of the Broker and any other person or entity involved in the
origination of the Loan and (iii) at the time the Mortgage loan was
funded, was unforeseeable by Broker, and any other person or entity
involved in the origination of the Mortgage loan or the related
mortgagor. UFMC in its sole discretion will determine if the Early
Payment Default was caused directly by a mitigating cause.
13. ARBITRATION AND ALTERNATIVE DISPUTE RESOLUTION:
It is agreed between the parties herein that any unresolved dispute
between the parties arising out of, in connection with the terms of
this Agreement shall be adjudicated by arbitration in the City of Oak
Brook, Illinois, in accordance with the rules of the American
Arbitration Association ("AAA") in effect at the time any arbitration
proceeding is commenced, which roles are hereby incorporated herein by
reference and made apart of this Agreement. The arbitration award shall
be final and binding on the parties herein, and judgment upon such
arbitration award may be entered in any court having jurisdiction. The
parties also may select other forms of alternative dispute resolutions
to address the outstanding dispute on such basis as the parties shall
mutually agree.
In order to induce UFMC to enter into this Agreement, the execution of
this Agreement by Broker shall be deemed the absolute and unconditional
joint and several personal guarantees of the officers, directors and
shareholders of Broker to UFMC of the following: (i) the punctual
payment at UFMC'S address, as and when due (whether by acceleration or
otherwise) of all the obligations of the Broker set forth in this
Agreement, requiring payment; and (ii) performance by the Broker, as
and when required, of all the obligations of the Broker, as set forth
in this Agreement, requiring performance. The guarantors agree that
this is a guaranty of payment and not of collection and expressly
waives any right to require that any action be brought against the
Broker or to require that resort be had to any security or any credit
on the books of UFMC in favor of the Broker or to any other right or
remedy which may be available to UFMC. The guarantors further expressly
waives any right to presentment, protest, notice of dishonor, and any
defense available to a guarantor under any state or federal law. This
guaranty applies to all transactions with Broker under this Agreement.
14. ENTIRE AGREEMENT:
This Agreement contains the entire agreement of the parties and
supersedes any other understandings, if any, with respect to the terms
hereof. This Agreement may not be modified, changed or supplemented,
nor may any obligations hereof be waived without written consent and
subsequent approval by both UFMC and Broker.
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IN WITNESS WHEREOF, UFMC and Broker hereby execute this Agreement, effective
this date, and affix their hands and seals hereto:
Date: 10/10/00 Date: 9-26-00
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UNITED FINANCIAL MORTGAGE CORP. BROKER
BY: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxxxx X. Xxxx
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Xxxxxx Xxxxxxxx Xxxxxxx X. Xxxx
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TYPE/PRINT NAME TYPE/PRINT NAME
President President
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TITLE TITLE
ATTEST: ATTEST:
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BY: BY:
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TYPE/PRINT NAME TYPE/PRINT NAME
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TITLE TITLE
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