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EXHIBIT 10.35
Prism Mortgage Company
Correspondent Purchase Agreement
This Agreement is made this 22nd day of March 1998 between, E-Loan, Inc. a
Corporation duly organized and in good standing under the laws of the State of
California with its principal place of business at 000 Xxxxxxxxxx Xxx. #000/Xxxx
Xxxx, XX 00000 (Seller) and Prism Mortgage Company (Purchaser), a corporation
duly organized and validly existing under the laws of the State of Colorado with
its principal place of business at 000 Xxxx Xxxxxxx, Xxx. 000, Xxxxxxx, Xxxxxxxx
00000 (Purchaser). This Agreement shall govern the sale and transfer of mortgage
loans from Seller to Purchaser and such sale shall be subject to the warranties,
representations, terms and conditions contained herein. The purchase price and
any other additional terms of purchase for each such sale will be established
from time to time either by written agreement between the parties hereto or by
Seller's full compliance with all of the policies and procedures outlined by
Purchaser from time to time in writing (Manual), which may be modified from time
to time in accordance with procedures specified in the Manual. Seller is and
shall remain an independent contractor and agrees that it is not an employee,
servant, agent, partner or joint venture/partner of Prism Mortgage Company.
Other than those application packages registered, Purchaser is not obligated to
accept nor is Seller obligated to submit any application packages for
underwriting. Except as expressly stated in the Agreement, neither the Seller
nor Purchaser shall have any control over the operation of the other's business.
Seller shall not advertise Purchaser's loan products under Purchaser's name nor
represent to anyone that it is authorized to represent Purchaser in any manner
not specifically authorized by this Agreement without Purchaser's prior written
consent.
IN CONSIDERATION OF THE MUTUAL COVENANTS HEREIN, THE PARTIES AGREE AS
FOLLOWS:
REPRESENTATIONS AND WARRANTIES:
As to each mortgage loan offered to Purchaser for sale under this Agreement,
Seller hereby makes the following representations and warranties, each of which
is true, survives loan closing and all deliveries made hereunder, and is
material and is being relied upon by Purchaser:
A. Seller and any other entity that held the mortgage loan are, and were
at all relevant times, authorized to transact business in the
jurisdiction where the real estate securing the mortgage loan is
located unless the activities performed by Seller or such other entity
in originating, selling, and/or holding the mortgage loans did not
require such authorization pursuant to the laws of the jurisdiction
where said real estate is located.
B. Seller is the sole unencumbered owner of the mortgage loan and has full
right and authority to sell, transfer and assign same to Purchaser free
and clear of all liens, claims and encumbrances whatsoever.
C. All mortgage loans have been originated in accordance with requirements
set forth in the Manual. All documents related to the mortgage loan are
genuine and have been duly executed by the mortgagor and properly
acknowledged where necessary; the mortgage (or Deed of Trust or other
acceptable security instrument hereafter referred to as the Mortgage)
has been recorded in the appropriate recorder's office or registered
with the registrar of titles so as to create a valid and subsisting
lien against the real estate securing the loan pursuant to all
applicable laws of the jurisdiction where the real estate is located.
D. The full principal amount of the mortgage has been advanced to the
mortgagor, either by payment direct to the mortgagor or by payment made
on mortgagor's request or approval; the unpaid principal balance is as
stated; all costs, fees and expenses incurred in making, closing and
recording the mortgage have been paid; no part of the mortgaged
property has been released from the lien of the mortgage the terms of
the mortgage have in no way been changed or modified, canceled,
satisfied, subordinated or
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rescinded; and the mortgage is current and not in default on the date
of delivery to Purchaser
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E. Seller has obtained and shall deliver to Purchaser a written report of
appraisal on Federal National Mortgage Association/Federal Home Loan
Mortgage Corporation (FNMA/FHLMC) approved forms of the real estate
securing the mortgage loan, signed by a qualified appraiser who is
currently licensed and is in accordance with the Purchaser's approval
process, and who has no interest, direct or indirect, in the real
estate or in any loan secured by the real estate and whose compensation
is not affected by the approval or rejection of the mortgage loan.
F. Seller has carefully reviewed and verified the appraisal report,
employment verification, credit standing and other documentation
submitted by the mortgagor as if Seller were originating the loan for
its own portfolio and based on said review, no fact or circumstance
exists which is known or should be known by Seller to cause FNMA, FHLMC
or a private institutional investor to regard the mortgage loan as an
unacceptable investment or which would adversely affect the value or
marketability of the mortgage loan.
G. There is in force a paid-up ALTA mortgage title insurance policy or
other title evidence satisfactory to Purchaser insuring the mortgage
and issued by an accredited title company acceptable to FNMA and
Purchaser, in an amount at least equal to the outstanding principal of
the mortgage loan. Said mortgage title policy insets Purchaser, its
successors and assigns that the mortgage loan is a first lien against
the real estate subject only to those exceptions to title which are
customary in the jurisdiction where such real estate is located and
which do not affect the marketability of title of the mortgage loan,
Said title policy also insures Purchaser against loss of lien priority
due to the adjustments to the interest rate or principal balance of the
loan, if any, pursuant to the terms of the mortgage documents.
H. If private mortgage insurance is required on the loan pursuant to the
Manual, Seller has obtained and will deliver to Purchaser a standard
mortgage insurance policy, issued by a private mortgage insurance
company acceptable to Purchaser.
ASSIGNMENT OF APPLICATION PACKAGE
The submission of an application package to Purchaser for underwriting shall
constitute Seller assignment of all it right, title and interest therein to
Purchaser and Purchaser's approval of an application package as set forth in
paragraph 6 shall constitute Purchaser's acceptance of the assignment. No
further or separate documentation shall be required to evidence as accepted
assignment.
REPRESENTATIONS, WARRANTIES, AND COVENANTS OF THE SELLER REGARDING LOANS
Seller represents, warrants, and covenants to Purchaser that in connection with
each loan transaction:
a. All signatures, names, addresses, amounts, credit information,
property appraisal, and other statements of fact contained in
and associated with the loan transaction are complete,
accurate, true, correct, and genuine, in all material
respects;
b. There are no bankruptcy, foreclosure, or litigation suits
pending or threatened against the borrower;
c. There will be no claims or defenses as to the loan by reason
of any act or omission of Seller or its directors, officers,
agents, or employees;
d. The loan has not been refereed or brokered to Seller by
another lender or third party;
e. There is no undisclosed secondary financing involved in this
transaction;
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f. Seller has complied with all material respects with all
applicable federal, state, and local laws and regulations
including, but not limited to, Real Estate Settlement and
Procedures Act, the Flood Insurance Protection Act, the Equal
Credit Opportunity Act, the Fair Credit Reporting Act, the
Consumer Credit Protection Act, and Truth in Lending Act.
Seller, by signing and accepting this Agreement, does hereby
warrant that all loans delivered under this Agreement were so
originated and do comply with all applicable state and federal
laws and regulations. Sufficient documentary evidence to
substantiate such compliance shall be contained in each
respective loan file;
g. The loans shall be qualified in all material respects to FNMA
and FHLMC unless specifically waive by Purchaser during the
underwriting process.
COMPENSATION
Seller's compensation for performing under this Agreement shall:
a. Be paid by applicant.
b. Be disclosed, agreed to, and signed by the applicant in
writing at the tie of application, which agreement shall
(i) clearly state the amount (or the way the amount in
which the amount will be determined)
(ii) the fact that payment is solely the obligation of the
applicant
(iii) any conditions pursuant to which payment will be
waived or a refund will be made in whole or part,
(iv) the time at and manner in which payment is due and
(v) the specific services to be performed by Seller and
the estimated date(s) by which they will be
performed.
c. Be lawful.
d. Be disclosed in accordance with the requirements of applicable
law.
e. Be reasonable in amount and solely for services actually
performed and not include, in whole or part, anything of value
paid pursuant to any agreement or understanding that business
be referred to or by it.
f. Seller has neither said nor done anything in its dealings with
any other borrower or otherwise that give rise to any
fiduciary duty to any borrower, and the documentation between
Seller and each borrower contains an acknowledgment by
borrower that no such duty exists.
g. Seller has not made any representations to any borrower with
regard to the comparison of the market lending rates offered
by Purchaser to the market lending rate of any other lender
and Seller has not made any representations or promises to any
borrower to the effect that the market lending rates offered
by Purchaser are lower than the market rates offered by all
other mortgage lenders.
h. Seller and each of its directors, officers, agents, and
employees maintain all licenses required of them;
i. The execution and delivery of the Agreement by Seller and the
obligations which it will perform hereunder do not, and will
not, violate any provision of any law, rule, regulation,
order, writ, judgment, injunction, decree, determination or
award having applicability to Seller or the Articles of
Incorporation or Bylaws of Seller;
j. Seller agrees it will not use for its own benefit or will not
disclose to any person or entity confidential information
relating to Purchaser which it may acquire during the term of
this Agreement.
k. Seller has in full force and effect an errors and omissions
policy or policies and mortgage bankers blanket bond covering
all its activities hereunder. Seller hereby agrees to provide
Purchaser evidence that both policies are in full force and
effect upon renewal each year.
l. Seller will not, during the term of this Agreement, either
directly or indirectly, promote, solicit, or otherwise contact
in any manner, any borrower of a loan sold hereunder for the
purpose of offering to refinance or assist in the refinancing
of such loan.
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m. Seller will not, during the term of this Agreement, either
directly or indirectly, promote, solicit, or otherwise contact
in any manner, any borrower of loan sold, hereunder, for the
purpose of offering insurance services including, but not
limited to, hazard insurance or mortgage credit insurance.
n. There is in force a paid-up fire and extended coverage hazard
insurance policy issued by a company acceptable to Purchaser
and in an amount at least equal to the outstanding principal
balance of the mortgage loan or the full insurable value of
the improvements whichever is less, containing a standard
mortgage clause and providing for at least 10 days prior
written notice of cancellation to the mortgagee.
o. There is in force such flood insurance policy as is required
under the Flood Disaster Protection Act of 1973, as amended
and its implementing regulations regardless of whether Seller
is specifically subject to such statute or regulations.
p. All documentation containing all required up-front disclosures
for fixed rate mortgage loan programs and for loan programs
which provide for adjustments to the interest rate, principal
balance, payment amount and/or loan term shall be provided by
Seller to borrower in a timely manner. If the mortgage loan
documents provide for adjustments to the interest rates and/or
principal balance of the loan, all terms of the mortgage loan
may be enforced by Purchaser or its successors and assigns and
any such adjustments will not affect the first lien status of
the mortgage loan.
q. There are no defaults under the terms of the mortgage loan
documents as of the date of sale of the loans to the
Purchaser.
r. Seller has no knowledge that any improvements located on the
real estate securing the mortgage loan:
1) violate any applicable zoning laws or regulations
2) have been damaged by fire, wind or other casualty:
3) are subject to condemnation proceedings: or
4) encroach on any property lot lines or building lines
unless such encroachment has been approved in writing
by Purchaser
s. With regard to both Seller's activities in general and each
mortgage loan in particular, Seller shall comply with all loan
disclosure rules and regulations issued by the Office of
Thrift Supervision, the Office of the Comptroller of the
Currency, and the Federal Deposit Insurance Corporation and
with all applicable State and Federal laws, rules and
regulations, enacted or adopted now and in the future,
including but not limited to: licensing requirements, usury
limitations, the Real Estate Settlement Procedures Act, the
Fair Housing Act, the Equal Credit Opportunity Act, the Flood
Disaster Protection Act (as if it were a covered entity), the
Truth-In-Lending Act of 1969, the Fair Credit Reporting Act,
the Home Mortgage Disclosure Act, the Financial Institutions
Reform Recovery and Enforcement Act of 1989, and all
regulations issued pursuant thereto. Seller shall timely
deliver to each applicant a completed Regulation Z disclosure
statement, Good Faith Estimate of Closing Costs, Federally
mandated ARM disclosures and HUD booklets. Seller shall be
responsible for compliance with ECOA concerning notification
of adverse action to an applicant whose mortgage loan
application Purchaser does not accept Purchaser may, at its
option, deliver notice of adverse action to Seller for further
delivery to applicant.) Seller shall comply with Regulation Z
concerning return of all monies paid by the applicant to
Seller should the applicant rescind and Seller shall not seek
reimbursement from Purchaser for such refund. Seller shall
deliver evidence of such compliance upon demand by Purchaser.
t. All taxes governmental assessments, condominium assessments,
planned unit development and similar homeowner association
assessments, insurance premiums, water, sewer and municipal
charges have been paid.
u. Seller has no knowledge of any facts which could cause the
mortgage note or the mortgage to be subject to any set off,
counterclaim or defense.
v. There are no proceedings pending affecting the Seller or any
loan or mortgage which would adversely affect its ability to
perform herein.
w. There are no mortgage brokers or other consultants or finders
that were consulted or contacted in connection with or in
bringing about the mortgage or this mortgage sale transaction,
that would be due a fee.
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SERVICES OF SELLER
a. Seller will assist prospective borrowers in completing credit
applications and such other documents in the form designated
by Purchaser and as may be required for residential mortgage
loans that meet the then current underwriting standards and
loan policies of either FNMA, FHLMC, or Purchaser. Seller will
promptly submit all information generated pursuant to such
application to Purchaser for its review and approval.
b. Seller shall make no credit commitments on behalf of Purchaser
since Purchaser shall have the sole discretion to determine
whether a loan will be granted and under what terms and
conditions.
c. Seller shall obtain real estate appraisals only from Purchaser
approved appraisers as determined in the Seller Manual
provided by Purchaser. All appraisers must meet state or
national licensing requirements.
d. Seller, at its own expense, shall furnish to Purchaser all
credit data, financial statements, real estate information,
and such additional items as Purchaser, from time to time, may
require. In addition, Seller, at its own expense, shall
perform such other functions as Purchaser may require to
close, fund, and complete the loan transaction.
e. Immediately after funding of the loan by Purchaser, Seller
agrees to execute such assignments, endorsements, or other
documentation as necessary to transfer ownership of the loan
to Purchaser and/or assignee as may be designated by Purchaser
concurrent with the closing of such loan or as Purchaser may
otherwise direct.
ORIGINATION, REGISTRATION, PROCESSING AND SUBMISSION FOR APPROVAL
Seller may originate, register, process and submit application packages to
Purchaser for underwriting in accordance with the following procedures and
requirements:
a. Seller must register each application. Registration may be
accomplished by either of the following: (i) faxing to
Purchaser's lock-in desk a forward lock during normal business
hours or (ii) by presenting to the underwriting office (as
designated in the Seller Manual) a completed loan credit
application package fully processed as industry standards from
FNMA. Upon registration of either of the above the Seller will
be assigned a Purchaser loan number via either (1) a lock
confirmation or (2) an underwriting transmittal indicating the
status of the loan.
It is the Seller's responsibility to notify immediately upon
receipt in the event that:
1. the terms in the confirmation conflict with Seller's
understanding of the registration terms
2. Seller becomes aware of any mistake,
misunderstanding, error or inconsistency regarding
the registration
3. the loan terms applied for changed subsequent to
registration; or
4. the application is withdrawn or canceled by the
applicant, or Seller becomes aware that the loan
applied for will fail to close for any other reason.
b. Each application package must evidence that the property to be
secured by the mortgage is improved acceptable real estate,
such as defined in the loan program materials supplied
periodically in writing by Purchaser. Each loan shall be fully
secured by a mortgage. Each loan shall be eligible by FNMA,
FHLMC or other specific secondary market investor approved by
Purchaser. Credit of the borrower and the condition and
location of the property shall be subject to approval of
Purchaser prior to purchase.
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c. The following documentation, in form and substance and, as
applicable, from a source acceptable to Purchaser, which
acceptance shall not be unreasonably withheld (the
"application package"), must accompany each request to
Purchaser for credit and property underwriting:
1. Purchaser's loan submission form.
2. Transmittal Summary 1008 or the equivalent FHLMC
form, or the most current version of either of them
as subsequently revised by FNMA or FHLMC.
3. Signed and dated Residential Loan Application and
Statement of Assets and Liabilities, if necessary
(FNMA 1003 and 1003A or the equivalent FHLMC form or
the most current versions of them if they are
subsequently revised by FNMA or FHLMC), including
monitoring information, unless collection of such
information is prohibited by law.
4. Credit reports for each borrower who will be
personally obliged to repay the loan with three (3)
major credit repositories and credit scores.
5. Verification(s) of Employment and Deposit (FNMA forms
1005 and 1006 or the equivalent FHLMC form, or the
most current versions of them if they are
subsequently revised by FNMA or FHLMC).
6. Uniform Residential Appraisal Form (appropriate to
the subject property type by FNMA or the equivalent
FHLMC form) signed by an Appraiser acceptable to
Purchaser per the Seller Manual with a copy of the
Appraiser's current license.
7. Interest rate and discount point commitment between
Seller and applicant(s) that meets all requirements
of applicable laws.
8. Written evidence that the applicant(s) has been
notified of the right to freely select the
provider(s) of certain insurance services, and the
right to select a private mortgage insurance premium
payment plan, if required by applicable law.
9. Written evidence that a copy of the Dept. of Housing
and Urban Development (HUD) booklet "Settlement
Costs" and a properly completed Good Faith Estimate
of settlement costs were either delivered or placed
in the mail to the applicant(s) no later than three
(3) business days following the date of the
application, if required by the Real Estate
Settlement Procedures Act (RESPA) or the regulations
promulgated pursuant to it.
10. For each adjustable rate mortgage (ARM) loan
application, proof that all disclosure requirements
of applicable law have been timely met.
11. Written evidence that all loan program information
was timely disclosed in accordance with the
requirements of applicable law.
12. Written evidence that a properly completed
Truth-in-Lending disclosure statement was personally
delivered or placed in the mail to the applicant(s)
no later than three (3) business days following the
Seller's receipt of the application.
13. Written evidence of the applicant's timely receipt of
any escrow related disclosures or forms required by
law.
14. Written evidence that the applicant(s) has been
provided with all disclosures required pursuant to
any applicable law, including without limitation,
each federal, state and local consumer protection
statute, regulation, ordinance, rule or ruling, as
for example and again without limitation, RESPA, any
non-discriminatory regulations, the Equal Credit
Opportunity Act (ECOA), and the Truth-in-Lending Act
(TIL).
15. Written evidence that the Seller has complied with
the requirements of Section K (Compensation).
16. Any additional document(s) which Purchaser reasonably
determines are necessary to (I) aid it in evaluating
the credit worthiness of the applicant(s) or (ii)
meet the requirements of FNMA or FHLMC, of its
underwriting standards or of the applicable loan
program, and all correspondence or other items
received by Seller in connection with the
application.
d. Each application must be for a loan program that has expressly
been made available to Seller by Purchaser and which is in
effect on the date of application. All applications must
comply with Purchaser's underwriting standards and lending
requirements in effect on the date of application.
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c. All documents must meet either FNMA or FHLMC aging
requirements, unless specified otherwise by Purchaser at the
time of closing as well as at the time of Purchaser's
underwriting approval.
f. From time to time throughout the term of this Agreement,
Purchaser will make available its current interest rate and
discount point requirements available to Seller, by telephone,
facsimile reproduction, or in another mutually acceptable
means. Purchaser's rates and discount points shall be subject
to change at any time, at the sole discretion of Purchaser and
without notice.
DELIVERY OF DOCUMENTS.
Seller agrees to do all acts necessary to perfect title to each mortgage in the
Purchaser, and shall sell, assign, and deliver to the Purchaser prior to the
purchase of each such mortgage, the following supporting documents, all subject
to the approval and reverification by the Purchaser and its legal counsel as to
proper form and execution:
1. Mortgage note properly endorsed to Purchaser without
recourse.
2. Copies of the recorded mortgage and assignment of
mortgage certified as true and correct by the title
company insuring the lien status of the mortgage
loan.
3. Signed appraisal report.
4. Commitment for Mortgage title insurance policy.
Exceptions listed on such policy shall be subject to
the Purchaser's approval.
5. A current (six months) survey of the real estate
identifying the property by legal description and
common address and showing all improvements to be
within lot lines and applicable building lines,
except for such encroachments approved in writing by
Purchaser, or in the alternative, title insurance
(including a location note endorsement where
available), insuring over survey defects, if any.
6. Hazard insurance policy meeting the requirements of
this Agreement
7. Private mortgage insurance policy, if required.
8. Any other documents required by the Purchaser
pursuant to its Manual, as amended from time to time.
The original recorded mortgage and assignment of mortgage shall be delivered to
the Purchaser as soon as possible following the purchase but not later than 60
days following purchase of the mortgage loan unless the delay is caused solely
by the local recorder/registrar, in which case documents shall be forwarded
immediately upon registration.
INDEMNIFICATION
The representations and warranties set forth herein shall survive and continue
in force for the full remaining life of the loan and are made for the benefit of
Purchaser and its successors and assigns. Seller, upon Purchaser's request,
shall promptly indemnify and hold harmless Purchaser from and against any and
all losses, damages, costs or expenses of any nature, including loss of
marketability and attorneys' fees resulting from (a) breach of any
representation or warranty, covenant or agreement made by Seller with respect to
each mortgage loan; or (b) any misstatement or omission of material fact in each
mortgage loan file or credit file, whether such misstatement or omission is
intentional or not, whether disclosed by actual inspection by Purchaser or its
representative, or otherwise. This indemnification shall survive any termination
or cancellation of this Agreement.
This Agreement is intended to require Seller to indemnify Purchaser to the
fullest permitted by law, regardless of whether a claim against Purchaser is
based on tort, breach of contract, strict liability intentional misconduct or
violation of federal or state statute or regulation, and regardless of whether
such claim arises out of the conduct of Purchaser. If the law does not permit
Seller to indemnify Purchaser for any judgment rendered against Purchaser,
Seller shall nonetheless indemnify Purchaser for all expenses of litigation,
including but not limited to all attorney fees reasonable and necessarily
incurred in defense of any such claim.
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REPURCHASE OF MORTGAGE LOANS
Seller agrees to repurchase, upon Purchaser's request, any mortgage loan covered
by this Agreement if:
I. there is a breach of any warranty or representation set forth in
Section I (Representations and Warranties) or any other provision of
this Agreement;
II. any misstatement or omission of material fact is made by the Seller or
the Seller's agents, representatives or Sellers;
III. any loan file contains fraudulent documentation, which is executed or
submitted by or on behalf of the borrower respect to any material
matter;
IV. any loan documentation is not delivered pursuant to the terms set forth
in Section II of this Agreement; or 5) any loan that becomes ninety
days or more delinquent with the delinquency having originated within
the first six months after purchase by Purchaser or subsequently
becomes ineligible for sale to FNMA, FHLMC or a private investor, or
whose repurchase is requested by FNMA, FHLMC or the private investor
who owns it due to a delinquency that originated within the first six
months after purchase by Purchaser regardless of whether or not a
foreclosure is instituted in connection with such delinquency. Such
repurchase shall be for an amount equal to the then unpaid principal of
the mortgage loan plus accrued interest, the consideration originally
paid by the Purchaser to Seller for the servicing rights of such
mortgage and costs including reasonable attorney's fees incurred by the
Purchaser for action taken. In the event the Purchaser sells all or any
part of or this Agreement; or
V. any loan that becomes ninety days or more delinquent with the
delinquency having originated within the first six months after
purchase by Purchaser or subsequently becomes ineligible for sale to
FNMA, FHLMC or a private investor, or whose repurchase is requested by
FNMA, FHLMC, or the private investor which owns it due to a delinquency
that originated within the first six months after purchase by Purchaser
regardless of whether or not a foreclosure is instituted in connection
with said delinquency. Such repurchase shall be for an amount equal to
the then unpaid principal of the mortgage loan plus accrued interest,
the consideration originally paid by Purchaser to Seller for the
servicing rights of such mortgage, and costs including reasonable
attorney's fees incurred by the Purchaser for action taken. In the
event the Purchaser sells all or any parts of its interest in the
mortgages covered by this Agreement to a third party or parties
including the sale of participating interest therein, such third
parties shall succeed to all of the rights of the Purchaser hereunder
and this agreement shall remain in full force and effect.
Seller shall repurchase any such loan within 10 days after notice from
Purchaser if Purchaser discovers, in its sole discretion that a loan
purchased pursuant to the terms of this Agreement were not closed and
documented in strict conformity under each and every requirement of
this Agreement or any loan in which the first payment due Purchaser or
its assigns is not made and becomes delinquent.
TERMINATION.
This Agreement may be terminated without cause as to the future acceptance of
mortgages by either party at any time upon thirty days written notice of
termination to the other party, but such termination shall not change or modify
the rights, duties and obligations of Purchaser and Seller hereunder with
respect to either mortgages previously purchased by Purchaser, or mortgages
which are the subject of the then outstanding written commitments and/or
Agreements between Purchaser and Seller.
In addition, Purchaser shall have the right to terminate this Agreement
immediately by notice in writing to Seller in the event of any of the following:
1. Sellers defaults in any of its obligations under this
Agreement or any other agreements between the parties and such
default is not cured within ten (10) business days after
notice to Seller of such default:
2. Seller fails to deliver acceptable loans to Purchaser under
the terms and conditions of any commitment agreement;
3. Seller shall initiate or suffer any proceedings of insolvency
or reorganization under the Bankruptcy Code or other Federal
or state receivership laws, or make common law assignment for
the benefit of creditors, or be unable to pay its debts as the
same become due;
4. Seller assigns or attempts to assign its rights and
obligations hereunder;
5. Seller by operation of law becomes unable to faithfully
perform its duties pursuant to this Agreement;
6. Purchaser suffers any involuntary sale or execution upon any
interest in any loan purchased hereunder and such is the
result of any act or omission on the part of the Seller.
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Termination shall not affect the obligations of Seller with respect to any event
occurring before termination. However, termination of this Agreement, shall be
deemed to be for or with cause, and Purchaser at its option shall have the right
to cancel any open commitment agreement(s) issued on the date of termination.
Seller agrees that in the event of a breach of this Agreement or any other
agreement between Purchaser and Seller, or upon the default of Seller under any
instrument payable to Purchaser, or upon failure of Seller to pay any amounts
due Purchaser, Purchaser shall have the immediate right of set-off from and
against any amounts otherwise due and payable to Seller.
DEFINITIONS
The terms mortgage and mortgages as used herein shall include mortgages,
security deeds, trust deeds, and deeds of trust, and the words mortgagor and
mortgagors shall be deemed to mean mortgagors, trustors of trust deeds and the
deeds of trust, and grantors of any security deeds it being agreed that the
appointment of any trustees under any trust deeds of trust shall be subject to
the approval of the Purchaser.
SERVICING
All mortgage loans sold hereunder shall be sold with servicing released to
Purchaser. The consideration to be paid by Purchaser for the servicing rights of
such mortgage loans shall be published from time to time in writing by
Purchaser, or shall be quoted by Purchaser as part of the purchase price of the
mortgage loan pursuant to Purchaser's Manual.
ATTORNEYS' FEES AND EXPENSES.
If any party to this Agreement brings legal action against the other as
a result of an alleged breach or failure by the other party to fulfill
or perform any covenant or obligation under this Agreement the
prevailing party obtaining final judgment shall be entitled to receive,
from the non-prevailing party reasonable attorneys fees incurred by
reason of such action and all other costs of suit and preparation
thereof at both trial and appellate levels.
MISCELLANEOUS PROVISIONS
A. Purchaser's failure to enforce any provision of this Agreement
shall not be deemed a waiver of that or any other provision of
this Agreement.
B. Seller's rights and obligations hereunder shall not be
assignable without Purchaser's prior written consent.
C. This agreement is entered into, maintained in, and shall be
governed by, and construed and enforced in accordance with the
laws of the State of Illinois. The parties hereby consent to
service of process, personal jurisdiction, and venue in the
courts of general jurisdiction of Chicago, Illinois or Xxxx
County, Illinois, and any federal court with concurrent
jurisdiction, with respect to any action or proceeding brought
to enforce any liability or obligation under this Agreement.
D. This Agreement contains all of the terms and conditions agreed
to by the parties and shall supersede all prior Agreements,
and any modification of the terms of the Agreement must be in
writing, executed by the parties hereto.
E. In the event that any provision of this Agreement is held to
be invalid or unenforceable by a court of law, such provisions
may be stricken from the Agreement and such findings skit have
no effect as to the validity or enforceability of any other
provisions of this Agreement.
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F. Time is of the essence with respect to each and every term,
condition and provision of this Agreement and the commitments
entered into pursuant thereto.
G. Seller shall notify Purchaser immediately of any material
changes in its ownership, financial condition or management.
H. Seller agrees to provide its most recent audited financial
statement, on yearly basis, alone with a resolution by its
Board of Directors, with specimen signatures, authorizing the
individual signing this Agreement to enter into contracts on
behalf of the Seller and authorizing the specific individuals
who may accept Purchasers pricing of individual loans to be
purchased hereunder. Seller also agrees to provide to the
Purchaser on an annual basis, proof of the Seller's renewal of
its fidelity and errors and omission insurance coverage in an
amount acceptable to the Purchaser.
1. All representations and warranties hereunder are made directly
from Seller to Purchaser for the mortgage loans originated by
Seller and all such representations and warranties shall
survive this Agreement.
j. Purchaser may, from time, to time, review, at Seller's place
of business, or at Purchaser's place of business, Seller's
loan files, policies, procedures and records, in order to
determine whether Seller meets Purchaser's quality control
standards set forth in the Manual.
K. No exclusive relationship between the Seller and the Purchaser
shall result from this Agreement. Seller is and shall remain
an independent contractor and agrees that it is not an
employee, servant agent or partner of Purchaser and shall not
hold itself out as an agent of the Purchaser. Seller shall not
make any statement which leads any third party to reasonably
believe that it is an agent of Purchaser. Seller shall not use
or refer to Purchaser's name in any form of advertising
written materials or circulars except as may be required by
law.
L. Seller shall be responsible for obtaining the Manual from
Purchaser at or immediately after the execution of this'
Agreement
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
and year indicated below:
Purchaser SELLER
Prism Mortgage Company E-Loan, Inc.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxxxxxx X. Xxxxxx
Name: Xxxxx Xxxxxx Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President Title: President
ATTEST: ATTEST:
By: /s/ Xxxx Bokenkump By: /s/ Xxxxxx Xxxxxxxxx
Name: Xxxx Bokenkump Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President Title: CEO
(SEAL) (SEAL) N/A
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