CORRESPONDENT ORIGINATION AND SALES AGREEMENT
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Closed Loan Purchases
This Origination and Sales Agreement ("Agreement") is made this 27th
day of April, 1999, by and between CHASE MANHATTAN MORTGAGE CORPORATION d/b/a
Chase Manhattan Funding ("Chase"), a New Jersey corporation with offices located
at 000 Xxxx Xxxxxxxxx, Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000, its successors and
assigns, and WESTMARK MORTGAGE CORPORATION ("Correspondent"), whose principal
office is located at 0000 X. Xxxxxxx Xxxxxxx, Xxxx Xxxxx, Xxxxxxx 00000.
BACKGROUND
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This Agreement governs the origination, sale, and transfer of
residential Loans, including the transfer of Servicing Rights. From time to
time, Correspondent may offer to sell and Chase may agree to buy loans which
meet Chase requirements in accordance with the terms set forth herein.
In consideration of the mutual promises, covenants, and agreements
contained herein, the parties agree as follows
ARTICLE I
DEFINITIONS
Section 1.1 As used in this Agreement, the following capitalized terms
shall have the following meanings, unless the context requires otherwise:
"Assignment of Mortgage": An assignment of the Mortgage, notice of
transfer or equivalent instrument sufficient under the laws of the jurisdiction
wherein the related collateral is located to reflect of record the transfer of
the Loan from the originator to Chase.
"CMF Correspondent Manual": The written information and instructions
provided to Correspondent by Chase which establishes guidelines and procedures,
rate reservation, underwriting, and delivery requirements of the Credit File and
Loan File to be purchased by Chase, as amended by Chase from time to time in its
sole discretion, including notices or bulletins issued by Chase.
"Closing Date": The date on which a Loan transaction is fully executed
by and disbursed to the Mortgagor.
"Commitment": Chase's written confirmation for the purchase of a Loan
or a group of Loans at a given Purchase Price, as outlined in the CMF
Correspondent Manual.
"Credit File": All documentation required by Chase for underwriting
review as set forth in the CMF Correspondent Manual.
"Expiration Date": With respect to any Commitment, the expiration date
thereof.
"Fraudulent Document": Any Loan File document which, in the reasonable
judgment of Chase, is falsified, defective, misleading or inaccurate in any
material respect.
"Investor Rights": Any and all rights and privileges associated with
the ownership of a Loan, including but not limited to the right to receive all
payments of principal and interest paid by a Mortgagor.
"Loan(s)": 1-4 unit residential Loans (including Investor Rights and
Servicing Rights) which are subject to this Agreement.
"Loan File": All documentation required for a Loan as established by
the CMF Correspondent Manual, including but not limited to the Mortgage Note
(properly endorsed to the order of Chase), the recorded Mortgage, the recorded
Assignment of Mortgage, evidence of all required insurance, all required
disclosures, and any other documentation required by the CMF Correspondent
Manual.
"Loan-to-Value": the original principal amount of the Mortgage Note
divided by the lesser of the appraised value of the Property or the purchase
price if the Loan is a purchase transaction.
"Mortgage": The mortgage, deed of trust or other security instrument
which secures a Mortgage Note end creates a first lien on an estate in fee
simple in real property (including a condominium or leasehold where and when
permitted by Chase).
"Mortgage Note": The promissory note of a Mortgagor secured by a
Mortgage.
"Mortgagor(s)": The maker(s), obligor(s) and/or guarantor(s) of a
Mortgage Note.
"Property": The residential real property consisting of land and a
one-to-four family dwelling which is completed and ready for occupancy. The
dwelling may be a condominium unit or a unit in a planned unit development or
other property type as set forth in the GMF Correspondent Manual, none of which
Is a mobile home or a cooperative apartment.
"Purchasable Loan(s)": A Loan which meets all the requirements for
purchase set forth in the CMF Correspondent Manual and has been approved for
purchase by Chase.
"Purchase Date": The date when the Purchase Price is paid by Chase
(without regard to any funds held by Chase for any reason).
"Purchase Price": The purchase price for the Loan(s) described in each
Commitment which shall be equal to the sum of: (i) the outstanding principal
amount of the Loan as of the related Purchase Date times the Purchase Price
Percentage set forth in the Commitment plus (i) all interest accrued (up to but
not including the Purchase Date) and unpaid; and less (iii) any fees outlined in
the CMF Correspondent Manual.
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"Purchase Price Percentage": The price paid by Chase pursuant to the
terms of the related Commitment and expressed as a percentage of the outstanding
principal amount as of the related Purchase Date.
"Repurchase Price": The greater of par or the related Purchase Price
Percentage, multiplied by the outstanding principal amount on the date of
repurchase, plus: (i) accrued interest at the rate set forth under the Mortgage
Note through the last day of the month in which such repurchase occurs; (ii) any
and all costs and expenses, including reasonable attorney fees incurred by Chase
to effect the repurchase; and (iii) any and all advances made by Chase and
charges due from Mortgagor.
"Servicing Rights": All rights to service Loans for investors.
"Third Party Origination": Any Loan for which a Third Party Originator
performs a significant portion of the origination process for a fee, including
but not limited to, processing the loan application, ordering appraisals and/or
credit reports, verifying income and/or employment.
"Third Party Originator": Any person or entity, not an employee of
Correspondent, who is duly authorized to perform all or part of the origination
process, including but not limited to processing a loan application, ordering
appraisals and/or credit reports, verifying income and/or employment, and who is
compensated by Correspondent for this activity.
ARTICLE II
SUBMISSION AND APPROVAL
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Section 2.1 Submission. Correspondent may, from time to time, submit
Credit Files or Loan Files to Chase for approval in accordance with the CMF
Correspondent Manual In connection with a closed Loan, from the date
Correspondent submits a Credit File or a Loan File to Chase, until Chase
notifies Correspondent of its underwriting decision (and, if credit is approved,
until Chase purchases the Loan), Correspondent will not offer the Credit File or
Loan File for purchase to any other person. Such underwriting decision shall be
made by Chase within three (3) Business Days of submission for any individual
Loan delivery and within the time set forth in the Commitment for any delivery
consisting of a group of Loans.
Section 2.2 Acceptance/Rejection of Loan. Following receipt by Chase of
a Credit File or Loan File, Chase shall, notify Correspondent of Chase's
underwriting decision as outlined in the CMF Correspondent Manual and/or the
Commitment. Chase may accept or reject any proposed Loan based on applicable
underwriting and origination guidelines as provided by Chase. If the proposed
Loan is rejected, Chase shall promptly return the Credit File and/or Loan File
to Correspondent.
Section 2.3 Rate Reservation. In connection with individual Loan
deliveries, Correspondent may request a rate quotation and rate confirmation in
accordance with the CMF Correspondent Manual. In order to receive payment for a
Loan based on a rate confirmation or on a Commitment, Correspondent must deliver
to Chase a Purchasable Loan File and Credit File,
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including any required fees and any additional information concerning the
Property and/or the applicant which Chase may deem necessary, prior to the
Expiration Date. As set forth in the CMF Correspondent Manual, if timely
delivery of a closed Loan is not made, Chase reserves the right to reprice the
Loan.
Section 2.4 Revision of Requirements. Chase may from time to time amend
or revise its documentation requirements, underwriting criteria or other
requirements pertaining to any residential Loan program. Notice of any such
amendment shall be given as set forth in the CMF Correspondent Manual.
ARTICLE III
DELIVERY AND PAYMENT
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Section 3.1 Timely Delivery of Loans. For each Loan purchased by Chase,
Correspondent shall promptly deliver the Loan File and Credit File.
Correspondent shall do al[ further acts necessary to perfect Chase's title to
and security for each such Loan end to execute and deliver additional documents
reasonably required by Chase.
Correspondent acknowledges that time is of the essence in connection
with the delivery of all Loans locked and closed by Correspondent or its Chase
approved Third Party Originator. Correspondent acknowledges and understands that
Chase has executed forward commitments to sell and immediately deliver Loans to
third parties. Loans must be delivered before the Expiration Date.
Section 3.2 Payment of Purchase Price. Chase shall pay Correspondent
the Purchase Price for each Loan after receipt of a complete Loan File and
Credit File in accordance with the CMF Correspondent Manual. Chase will pay the
Purchase Price to the Correspondent or, if applicable, to the warehouse lender
as instructed by an appropriate bailee agreement. In order to receive payment of
the Purchase Price, Correspondent must comply with all document delivery
requirements established by the CMF Correspondent Manual. For rescindable Loans,
payment of the Purchase Price shell be made on or after the rescission period
has elapsed. payment of any fee to Correspondent does not evidence the
acceptability of the Loan F IC or the Credit File.
Unless earlier agreed in writing by Chase, no fees, commissions, or any
other consideration shall be paid to Correspondent or any Third Party Originator
for any Loan submitted to Chase for purchase Correspondent covenants and agrees
that: (i) the compensation received by Correspondent or any Third Party
Originator shall not exceed the fair market value of Its services; (ii) neither
Correspondent nor any Third Party Originator shall accept any fee or other
compensation except as permitted by applicable law and regulation; and (iii)
neither Correspondent nor any Third Party Originator has disclosed any fee or
other compensation in writing to the applicant, and Chase except as required by
applicable law and regulation.
Section 3.3 Investor Rights and Servicing Rights. The Purchase Price of
each Loan shall include all Investor Rights and Servicing Rights and benefits
pertaining to such Loan. Correspondent shall execute and deliver documentation,
as outlined by the CMF Correspondent Manual, sufficient to transfer all Investor
Rights and Servicing Rights from Correspondent to
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Chase free and clear of all claims, liens and encumbrances, and to enable Chase
(or its designated representative) to own, sell and service such Loan.
Section 3.4 Inspection of Loan Files. Chase reserves the right to
inspect all Loan Files and Credit Files and satisfy itself that all Loans comply
with the applicable Commitment, and Correspondent's representations concerning
the Loans, however, no such inspection shall minimize any rights to recovery
under the terms of this Agreement. The Loan Files and Credit Files shall
evidence compliance with all federal and state rules, orders and regulations
affecting the Loans. Correspondent shall make Chase the loss payee of each
hazard and Flood insurance policy. Ownership of, and title to, a Loan will be
vested in Chase only when a Loan is accepted by Chase.
Section 3.5 Premium Recapture. With respect to any Loan for a period of
one year following the Purchase Date of each such Loan, Correspondent shall
rebate to Chase a portion of the premium paid for any Loan that is paid off in
full during the first year after its respective Purchase Date as follows: one
twelfth (1/12) of the premium paid for each full or partial month remaining in
the one year period following the Purchase Date. Correspondent shall pay Chase
such rebate within ten (10) days after it receives written notice of full payoff
from Chase.
In the event the Loan provides for a prepayment penalty (as outlined in
the CMF Correspondent Manual and legally enforceable), Chase agrees to offset
the amount of any prepayment penalty actually collected against any premium
recapture payment due Chase from Correspondent under this section.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND
COVENANTS OF CORRESPONDENT
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Section 4.1 Representations and Warranties regarding Correspondent.
After due and diligent investigation and inquiry, and notwithstanding any
assignment without recourse, Correspondent represents and warrants to Chase as
of the date of execution of this Agreement through and including each Purchase
Date, the following:
A. Correspondent is duly organized, validly existing, and In good
standing under the laws of the state of its organization and has all
qualifications, registrations, licenses, and permits necessary to carry on its
business in each state in which Correspondent originates or purchases Loans, and
in any event Correspondent is in compliance with the laws of any state to the
extent necessary to ensure the enforceability of each Loan in accordance with
the terms of this Agreement Correspondent agrees to provide Chase with copies of
all applicable licenses, permits, etc. evidencing compliance with this Section
4.1A upon request. Correspondent has all requisite power, authority and consent
to hold transfer and convey each Loan, to sell each and to execute, deliver and
perform this Agreement and any agreements contemplated hereby. All requisite
action has been taken by Correspondent to make this Agreement and any agreements
contemplated hereby valid and binding upon Correspondent in accordance with its
terms.
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B. The consummation of the transactions contemplated by this Agreement
are in the ordinary course of business of Correspondent and will not result in:
(a) a breach of any term or provision of the charter or bylaws of Correspondent;
(b) the breach of any term or provision of, or conflict with, or constitute a
default under any agreement to which Correspondent or its property is subject or
(c) the violation of any law, rules, regulation, order, judgment or decree to
which Correspondent or its property is subject;
C. There is no claim, litigation, investigation or proceeding pending
or threatened, or any order or decree outstanding, against or otherwise is
reasonable likely to materially adversely affect Correspondent, Correspondent's
business, or performance of its obligations under this Agreement or any Loan and
Correspondent has no knowledge of any circumstances indicating that any such
suit investigation or proceeding is likely or imminent;
D. No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Correspondent of or compliance by the Correspondent with this
Agreement, or the sale of the Loans and delivery of the Mortgage Files to Chase
or the consummation of the transactions contemplated by this Agreement, except
for consents, approvals, authorizations and orders which have been obtained;
E. Correspondent does not believe, nor does it have any cause or reason
to believe, that it cannot perform each and every covenant contained in this
Agreement. The transfer, assignment and conveyance of Loans by Correspondent
pursuant to this Agreement are in the ordinary course of Correspondent's
business and are not subject to the bulk transfer of any similar statutory
provisions in effect in any applicable jurisdiction. Correspondent is not
transferring the Loans with an actual intent to hinder, delay or defraud any of
its creditors. Correspondent is solvent and will not be rendered insolvent by
the sale of any Loans. Correspondent used no selection procedures that
identified the Loans as being less desirable or valuable than other comparable
Loans in the Correspondent's portfolio at the Purchase Date;
F. The origination and servicing practices used by the Correspondent,
with respect to each Mortgage Note and Mortgage have been legal and in
accordance with applicable laws and regulations and the loan documents, and in
all material respects proper and prudent in the mortgage origination and
servicing business;
Section 4.2 Representations and Warranties Regarding Loans. After due
and diligent investigation and inquiry, Correspondent further represents and
warrants to Chase that as of the Purchase Date:
A. Except for Mortgages on leasehold property, the Mortgage creates a
valid, subsisting and enforceable first lien or a first priority ownership
interest in an estate in fee simple in real property securing the related
Mortgage Note subject to principles of equity, bankruptcy, insolvency and other
laws of general application affecting the rights of creditors.
B. All payments due prior to the Purchase Date for such Loan have been
made, the Loan has not been dishonored; there are no material defaults under the
terms of the Loan; Correspondent has not advanced its own funds, or induced,
solicited or knowingly received any
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advance of funds from a party other than the owner of the Property subject to
the Mortgage, directly or indirectly, for the payment of any amount required by
the Loan; and there has been no more than one delinquency during the preceding
twelve month period, and such delinquency did not last more than 30 days (an
occurrence of a "rolling" past due will be considered a breach of this
provision);
C. There are no defaults by Correspondent in complying with the terms
of the Mortgage, and all taxes, governmental assessments, insurance premiums,
water, sewer and municipal charges, leasehold payments or ground rents which
previously became due and owing have been paid, or escrow funds have been
established `in an amount sufficient to pay for every such escrowed item which
remains unpaid and which has been assessed but is not yet due and payable:
D. The terms of the mortgage Note and the Mortgage have not been
impaired, waived, altered or modified in any respect, except by written
instruments which have been recorded to the extent any such recordation is
required by law, or, necessary to protect the interest of Chase. No instrument
of waiver, alteration or modification has been executed and no Mortgagor has
been released, in whole or in part, from the terms thereof;
E. The Mortgage Note end the Mortgage are not subject to any right of
rescission, setoff, counterclaim or defense, including, without limitation, the
defense of usury, nor will the operation of any of the terms of the Mortgage
Note or the Mortgage, or the exercise of any right thereunder, render the
Mortgage Note or Mortgage unenforceable, in whole or in part, or subject to any
right of rescission, setoff, counterclaim or defense, including the defense of
usury, and no such right of rescission, setoff, counterclaim or defense has been
asserted with respect thereto; and the Mortgagor was not a debtor in any state
or federal bankruptcy or insolvency proceeding at the time the Loan was
originated;
F. All buildings or other customarily insured improvements upon the
Property are Insured by an Insurer acceptable under the CMF Correspondent
Manual, against loss by fire, hazards of extended coverage and such other
hazards as are provided for in the CMF Correspondent Manual. All such standard
hazard policies are in full force and effect and on the date of origination
contained a standard mortgagee clause naming the Correspondent and its
successors in interest and assigns as loss payee and such clause is still In
effect and all premiums due thereon have been paid. If required by the Flood
Disaster Protection Act of 1973, as amended, the Loan is covered by a flood
insurance policy meeting the requirements of the current guidelines of the
Federal Insurance Administration which policy conforms to the CMF Correspondent
Manual. Such policy was issued by an insurer acceptable under the CMF
Correspondent Manual. The Mortgage Obligates the Mortgagor thereunder to
maintain all such insurance at the Mortgagor's cost and expense, and on the
Mortgagor's failure to do so, authorizes the holder of the Mortgage to maintain
such Insurance at the Mortgagor's cost and expense and to seek reimbursement
therefor xxx the Mortgagor;
G. Any and all requirements of any federal, state or local law
including, without limitation, usury, truth-in-lending, real estate settlement
procedures, consumer credit protection,
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equal credit opportunity or disclosure laws applicable to the Loan have been
complied with in all material respects; the Correspondent maintains, and shall
maintain, evidence of such compliance as required by applicable law or
regulation and shall make such evidence available for inspection at the
Correspondent's office during normal business hours upon reasonable advance
notice. The Loan is not subject to the Homeownership and Equity Protection Act
of 1994 ("High Cost Mortgage Act"), (Section 103 (aa) of the Truth -in Lending
Act, as amended and Section 226.32 of Regulation Z as amended), and satisfies
Chase policy set forth in the CMF Correspondent Manual in relation to defining a
"high cost mortgage";
H. The Mortgage has not been satisfied, canceled or subordinated, in
whole or in part, or rescinded, and the Property has not been released from the
lien of the Mortgage, in whole or In part nor has any instrument been executed
that would effect any such release, cancellation, subordination or rescission.
Correspondent has not waived the performance by the Mortgagor of any action, if
the Mortgagor's failure to perform such action would cause the Loan to be in
default, nor has the Correspondent waived any default resulting from any action
or inaction by the Mortgagor.
I. The Mortgage is a valid, subsisting, enforceable and perfected first
lien on the Property, including all buildings on the Property and all
installations and mechanical, electrical, plumbing, heating and air conditioning
systems affixed to such buildings, and all additions, alterations and
replacements made at any time with respect to the foregoing securing the
Mortgage Note's original principal balance subject to principals of equity,
bankruptcy, insolvency and other laws of general application affecting the
rights of creditors. The Mortgage and the Mortgage Note do not contain any
evidence of any security interest or other interest or right thereto. Such lien
is free and clear of all adverse claims, liens and encumbrances having priority
over the first lien of the Mortgage subject only to (1) the lien of
non-delinquent current real property taxes and assessments not yet due and
payable, (2) covenants, conditions and restrictions, rights of way, easements
and other matters of the public record as of the date of recording which are
acceptable to mortgage lending institutions generally and either (A) which are
referred to or otherwise considered in the appraisal made for the originator of
the Loan, or (B) which do not adversely affect the residential use or appraised
value of the Property as set forth in such appraisal, and (3) other matters to
which like properties are commonly subject which do not individually or in the
aggregate materially interfere with the benefits of the security intended to be
provided by the Mortgage or the use, enjoyment, value or marketability of the
related Property. Any security agreement, chattel mortgage or equivalent
document related to and delivered in connection with the Loan establishes and
creates a valid, subsisting, enforceable and perfected `first lien and first
priority security interest on the property described therein, and the
Correspondent has the full right to sell and assign the same to Chase;
J. The Mortgage Note and the related Mortgage are original and genuine
and each is the legal, valid and binding obligation of the maker thereof,
enforceable in all respects in accordance with its terms subject to principals
of equity, bankruptcy, insolvency and other laws of general application
affecting the rights of creditors, and the Correspondent has taken all action
necessary to transfer such rights of enforceability to Chase, All parties to the
Mortgage Note and the Mortgage had the legal capacity to enter into the Loan and
to execute and deliver the
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Mortgage Note and the Mortgage. The Mortgage Note and the Mortgage have been
duly and properly executed by such parties. No fraud, error, omission,
misrepresentation negligence or similar occurrence with respect to a Loan has
taken place on the part of Correspondent or the Mortgagor, or on the part of any
other party involved in the origination of the Loan. The proceeds of the Loan
have been fully disbursed and there is no requirement for future advances
thereunder, and any and all requirements as to completion of any on-site or
off-site improvements and as to disbursements of any escrow funds therefor have
been complied with. All costs, fees and expenses incurred in making or closing
the Loan and the recording of the Mortgage were paid or are in the process of
being paid and the Mortgagor is not entitled to any refund of any amounts paid
or due under the Mortgage Note or Mortgage;
K. The Correspondent is the sole owner and holder of the Loan and the
indebtedness evidenced by the Mortgage Note. As of the Purchase Date, the Loan,
including the Mortgage Note and the Mortgage, were not subject to an assignment,
sale or pledge to any person other than Chase, and the Correspondent had good
and marketable title to and was the sole owner thereof and had full right to
transfer and sell the Loan to Chase free and clear of any encumbrance, equity,
lien, pledge, charge, claim or security interest and has the full right and
authority subject to no interest or participation of, or agreement with, any
other party, to sell and assign the Loan pursuant to this Agreement and
following the sale of the Loan, Chase will own such Loan free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim or
security interest. The Correspondent intends to relinquish all rights to
possess, control and monitor the Loan;
L. Each Loan is covered by an ALTA lender's title insurance policy or
other generally acceptable form of policy or insurance acceptable to Chase as
set forth in the CMF Correspondent Manual (including adjustable rate
endorsements), issued by a title insurer acceptable to FNMA or FHLMC and
qualified to do business in the jurisdiction where the Property is located,
insuring (subject to the exceptions contained in (l)(1), (2) and (3) above) the
Correspondent, its successors and assigns, as to the first priority lien of the
Mortgage in the original principal amount of the Loan. Where required by state
law or regulation, the Mortgagor has been given the opportunity to choose the
carrier of the required mortgage title insurance. The Correspondent, its
successors and assigns, are the sole insureds of such lender's title insurance
policy, such title insurance policy has been duly and validly endorsed to Chase
or the assignment to Chase of the Correspondent's interest therein does not
require the consent of or notification to the insurer and such lender's title
Insurance policy is in full force and effect and will be in full force and
effect upon the consummation of the transactions contemplated by this Agreement.
No claims have been made under such lender's title insurance policy, and no
prior holder of the related Mortgage, including the Correspondent, has done, by
act or omission, anything which would impair the coverage of such lender's title
insurance policy;
M. There is no default, breach, violation or event of acceleration
existing under the Mortgage or the related Mortgage Note and no event which,
with the passage of time or with notice and the expiration of any grace or cure
period, would constitute a default, breach, violation or event permitting
acceleration; and neither Correspondent, nor any prior mortgagee has waived any
default, breach, violation or event permitting acceleration;
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N. To the best of Correspondent's knowledge and belief, after diligent
inquiry there are no mechanics' or similar liens or claims which have been filed
for work, labor or material (and no rights are outstanding that under law could
give rise to such liens) affecting the related Property which are or may be
liens prior to or equal to the lien of the related Mortgage;
O. To the best of Correspondent's knowledge and belief, after diligent
inquiry all improvements subject to the Mortgage which were considered in
determining the appraised value of the Property lie wholly within the boundaries
and building restriction lines of the Property (and wholly within the project
with respect to a condominium unit) and no improvements on adjoining properties
encroach upon the Property except those which are insured against by the title
insurance policy referred to in clause (L) above and all improvements on the
property comply with all applicable zoning and subdivision laws and ordinances;
P. The Loan was originated by or for the Correspondent. The Loan
complies with all the terms, conditions and requirements of the underwriting
standards set forth in the CMF Correspondent Manual in effect at the time of
origination of such Loan (or as otherwise agreed to in the Commitment). The
Mortgage Notes and Mortgages are on forms generally acceptable in the industry.
The Monthly Payments under the Mortgage Note are due and payable on the first
day of each month. The Mortgage contains the usual and enforceable provisions of
the originator at the time of origination for the acceleration of the payment of
the unpaid principal amount of the Loan if the related Property is sold without
the prior consent of the mortgagee thereunder;
Q. To the best of Correspondent's knowledge and belief, after diligent
inquiry the Property is not subject to any material damage by waste, fire,
earthquake, earth movement, windstorm, tornado, flood or other casualty which is
not covered by insurance. At origination of the Loan there was, and there
currently is, no proceeding pending for the total or partial condemnation of the
Property. To the best of Correspondent's knowledge there have not been any
condemnation proceedings with respect to the Property and there are no such
proceedings scheduled to commence at a future date;
R. The related Mortgage contains customary and enforceable provisions
such as to render the rights and remedies of the holder thereof adequate for the
realization against the Property of the benefits of the security provided
thereby, including, (1) in the case of a Mortgage designated as a deed of trust,
by trustee's sale, and (2) otherwise by judicial foreclosure. There is no
homestead or other exemption available to the Mortgagor which would interfere
with the right to sell the Property at a trustee's sale or the right to
foreclose the Mortgage;
S. If the Mortgage constitutes a deed of trust, a trustee, authorized
and duly qualified if required under applicable law to act as such, has been
properly designated and currently so serves and is named in the Mortgage, and no
fees or expenses, except as may be required by local law, are or will become
payable by Chase to the trustee under the deed of trust, except in connection
with a trustee's sale or attempted sale after default by the Mortgagor;
T. The actual Loan-to-Value ratio of each Loan does not exceed the
maximum amount permitted under the CMF Correspondent Manual for the applicable
program and credit, grade. The appraisal prepared in connection with each
Property provides an accurate estimate of
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the bona fide market value of such Property and was prepared by a licensed real
estate appraiser, acceptable to Chase (meeting the requirements set forth in the
CMF Correspondent Manual), with no direct or indirect interest in the Property;
U. All parties which have had any interest in the Mortgage, whether as
mortgagee, assignee, pledgee or otherwise, are (or, during the period in which
they held and disposed of such interest, were) (a) in compliance with any and
all applicable licensing requirements of the laws of the state wherein the
Property is located, and (b) (1) organized under the laws of such state, or (2)
qualified to do business in such state, or (3) federal savings and loan
associations or national banks or a Federal Home Loan Bank or savings bank
having principal offices in such state, or (4) not doing business in such state;
V. The related Mortgage Note is not and has not been secured by any
collateral except the lien of the corresponding Mortgage and the security
interest of any applicable security agreement or chattel mortgage referred to
above and such collateral does not serve as security for any other obligation;
W. The Loan does not contain any "graduated payment" features and no
Loan is subject to a buydown agreement or contains any buydown provision.
X. The Mortgagor is not in bankruptcy and, to the best of the
Correspondent's knowledge, the Mortgagor is not insolvent the Correspondent does
not have any knowledge of any circumstance or condition with respect to the
Mortgage, the Property, or the Mortgagor that could reasonably be expected to
cause investors to regard the Loan as an unacceptable investment, cause the Loan
to become delinquent, or materially adversely affect the value or marketability
of the Loan;
Y. The Assignment of Mortgage is in recordable form and is acceptable
for recording under the laws of the jurisdiction in which the Property is
located;
Z. As to Loans that are not secured by an Interest In a leasehold
estate, the Property is located in the state identified in the Loan Schedule and
consists of a single parcel of real property with a detached single family
residence erected thereon, or a townhouse, or a two-to four-family dwelling, or
an individual condominium unit in a condominium project, or an individual unit
in a planned unit development or a de minimis planned unit development,
provided, however, that no residence or dwelling is a single parcel of real
property with a, or a mobile home. As of the date of origination, no portion of
any Property is used for commercial purposes, and since the origination date, to
the best of the Correspondent's knowledge, the Property is lawfully occupied and
no portion of any Property is used for commercial purposes;
AA. Principal payments on the Loan commenced no more than sixty (60)
days after the funds were disbursed in connection with the Loan. The Mortgage
Note is payable on the first day of each month in monthly installments of
principal and interest, with interest calculated and payable in arrears,
sufficient to amortize the loan fully by the stated maturity date, over an
original term of not more than thirty years from commencement of amortization;
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BB. To the best of Correspondent's knowledge and belief, after diligent
inquiry as of the date of origination of the Loan, the Mortgage Property was
lawfully occupied under applicable law, and all inspections, licenses and
certificates required to be made or issued with respect to all occupied portions
of the Property and, with respect to the use and occupancy of the same,
including but not limited to certificates of occupancy and fire underwriting
certificates have been made or obtained from the appropriate authorities;
CC. To the best of Correspondent's knowledge, there is no pending
action or proceeding directly involving the Property in which compliance With
any environmental law, rule or regulation is an issue; to the best of
Correspondent's knowledge, there is no violation of any environmental law rule
or regulation with respect to the Property; and Correspondent has not received
any notice of any environmental hazard on the Property and nothing further
remains to be done to satisfy in full all requirements of each such law, rule or
regulation constituting a prerequisite to use and enjoyment of said property;
DD. No Loan was made in connection with the construction or
rehabilitation of a Property or facilitating the trade-in or exchange of a
Property;
EE. The Loan was originated by a mortgagee approved by the Secretary of
Housing and Urban Development pursuant to Sections 203 and 211 of the National
Housing Act, a savings and loan association, a savings bank a commercial bank,
credit union, insurance company or an institution which is supervised and
examined by federal or state authority;
FF. With respect to any ground lease to which a Property may be
subject: (I) the Mortgagor is the owner of a valid and subsisting leasehold
interest under such ground lease; (ii) such ground lease is in full force and
effect, unmodified and not supplemented by any writing or otherwise; (iii) all
rent, additional rent end other charges reserved therein have been fully paid to
the extent payable as of the Purchase Date; (iv) the Mortgagor enjoys the quiet
and peaceful possession of the leasehold estate, subject to any sublease; (v)
the Mortgagor is not in default under any of the terms of such ground lease, and
there are no circumstances which, with the passage of time or the giving of
notice, or both, would result in a default under such ground lease; (vi) the
lessor under such ground lease is not in default under any of the terms or
provisions of such ground lease on the part of the lessor to be obsessed or
performed; (vii) the lessor under such ground lease has satisfied any repair or
construction obligations due as of the Closing Date pursuant to the terms of
such ground lease; and (viii) the execution, delivery and performance of the
Mortgage do not require the consent (other than those consents which have been
obtained and are in full force and effect under, and will not contravene any
provision of or cause a default under, such ground lease;
GG. Correspondent has complied with all of its obligations under this
Agreement;
HH. All Loans purchased by Chase comply with all Chase and applicable
private investor regulations requirements, and standards, and all
representations and warranties required to be made by Correspondents therein are
hereby made by Correspondent to Chase;
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II. To the best of Correspondent's knowledge and belief, after diligent
inquiry no portion of any Property is for sale, and no portion of any Property
identified as owner occupied is for lease. All required certificates of
occupancy related to the Property have been obtained;
JJ. The origination, servicing, recordkeeping and collection practices
used with respect to each Loan have been and are in all respects in accordance
with legal and prudent business practices;
KK. No representation, warranty or written statement made by
Correspondent in this Agreement, nor any application, documentation, schedule,
exhibit, statement or certificate furnished to Chase by Correspondent contains
any untrue statement of material fact or fails to state any material fact which
could render such statement misleading. All information contained in the Credit
File or Loan File is true, complete and accurate. Correspondent is not aware of
any fact not set forth in the Credit File or Loan File which Chase might
reasonably consider to be adverse to the approval of the loan, or would make the
Loan ineligible for sale in the secondary market;
LL. The Mortgagor is not seeking relief under the provisions of the
Soldiers and Sailors Relief Act:
MM. The Mortgage Note provides for a late charge equal to five percent
of the outstanding payment due or the maximum late charge permitted by the state
where the Loan was originated;
NN. Correspondent has not entered into any agreement or understanding
with Mortgagor or any other party to refinance any Loan sold to Chase hereunder.
All of the representations and warranties set forth in Article IV shall
survive and continue in force for the full remaining life of the Loan and are
made for the benefit of Chase and its successors and assigns.
Section 4.3 Covenants of Correspondent. Correspondent covenants and
agrees with Chase as follows:
A. Correspondent shall notify Chase immediately of:
(i) any material changes in its ownership, financial
condition, or principal management;
(ii) if following the sale of any Loan to Chase, Correspondent
becomes aware of any fact or circumstance regarding any Loan
of which would have caused the Loan to be ineligible for sale
to Chase if known prior to such sale.
B. At all times during the term of this Agreement, Correspondent shall
be in compliance with the requirements that correspondent must maintain in order
to be eligible to sell Loans to Chase, as set forth in the CMF Correspondent
Manual.
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C. Correspondent shall timely deliver to each applicant a completed
Regulation Z disclosure statement, Good Faith Estimate of Closing Costs,
federally mandated fixed rate, or ARM disclosure, CHARMS and HUD booklets as
applicable. Correspondent shall be responsible for compliance with aggregate
accounting requirements relating to escrow account statements and escrow
accounting procedures mandated by RESPA. Correspondent shall also be responsible
for compliance with ECOA concerning notification of adverse action to an
applicant whose Loan Package Chase does not accept (Chase may, at its option,
deliver notice of adverse action to Correspondent for further delivery to
applicant). Correspondent shall comply with Regulation Z concerning return of
all monies paid by the applicant to Correspondent should the applicant rescind
and Correspondent shall not seek reimbursement from Chase for such refund.
D. Correspondent shall deliver evidence, in a form satisfactory to
Chase, of such compliance, including, but not limited to copies of any notice or
disclosure form furnished to an applicant.
E. Correspondent utilizes only licensed real estate appraisers that
meet the requirements set forth in the CMF Correspondent Manual, and whose
approval and appointment is made in compliance with the regulations and
standards contained in the Financial Institutions Reform Recovery and
Enforcement Act.
F. At all times during the term of this Agreement, Correspondent shall
maintain a complete set of files and records of all business activities and
operations conducted by Correspondent in its capacity as loan correspondent of
Chase. Such files and records shall be maintained in a neat, orderly and
organized manner. For a period of not less than twenty-five (25) months from and
alter the date of termination or expiration of this Agreement Correspondent
shall continue to maintain all such files and records at a reasonably accessible
location. Alternatively, Correspondent may deliver to Chase all such files and
records. At all times during the term of this Agreement and at all times during
the twenty-five (25) month period following expiration or termination of this
Agreement, Chase, its duly authorized agents, representatives and employees, any
necessary party involved in any public offering (such as rating agencies) and
federal and state regulatory agencies which supervise Chase shall have a right,
upon reasonable notice, to audit, inspect and copy any of the foregoing records,
report, files, and related materials of Correspondent, and Correspondent shall
cooperate and assist in any such audit or inspection.
G. Prior to the execution of this Agreement, Correspondent shall
provide a resolution from its board of directors, authorizing the individual
signing this Agreement to enter into this Agreement on behalf of Correspondent
and authorizing specific individuals who may (i) enter into Commitments and
assign and transfer Loan documents or (ii) appoint other individuals to enter
into Commitments and assign and transfer Loan documents. Correspondent shall
provide to Chase, within 150 days after the end of each fiscal year, audited
financial statements of Correspondent (or other financial information acceptable
to Chase) for such fiscal year. Correspondent acknowledges that it will be
required to recertify certain information annually to Chase and agrees to supply
any and all information reasonably
14
requested by Chase to accomplish such recertification. Correspondent shall also
provide any additional information reasonably requested by Chase, from time to
time, including, but not limited to, proof of adequate licensing and bonding.
H. Correspondent hereby `irrevocably assigns to Chase all of its
rights, remedies, indemnities and causes of action arising out of or in
connection with Correspondent's agreements, contracts, understandings, or other
dealings with any Third Party Originator regarding any Loan sold and transferred
to Chase pursuant to this Agreement.
All representations, warranties and covenants of Correspondent
in this Agreement also shall be deemed to constitute representations, warranties
and covenants by Correspondent regarding any Third Party Originator as if such
Third Party Originator was the Correspondent hereunder, Correspondent shall bear
the risk of the proper performance and/or involvement of Third Party Originator
as if the Third Party Originator was the Correspondent, irrespective of
Correspondent's knowledge of activities of the Third Party Originator, the
Mortgagor, or otherwise.
ARTICLE V
REMEDIES/REPURCHASE/INDEMNIFICATION
Section 5.1 Breach of Representation of Warranty. Upon discovery of a
breach of any representation, warranty or covenant set forth in this Agreement,
the party discovering such breach shall give written notice to the other.
Correspondent shall have sixty (60) days following its discovery or its receipt
of notice of any such breach, to cure such breach to the reasonable satisfaction
of Chase. If in the reasonable judgment of Chase such breach is not cured within
such sixty (60) day period, or is incapable of being cured, Correspondent shall,
at the request of Chase, proceed to repurchase the affected Loan (or Property,
if title thereto is held by Chase at the related Repurchase Price.
Section 5.2 Repurchase of Loans by Correspondent. Upon the occurrence
of any of the following events, Correspondent agrees to immediately repurchase
the related Loan (or Property, if title thereto is held by Chase), at the
Repurchase Price.
A. Correspondent fails to provide all of the documentation required by
Chase and/or fails to satisfy all other requirements of this Agreement within
one hundred twenty (120) days following the Purchase Date. Such date shall be
extended to a date one hundred and eighty (180) days following the Purchase Date
for documents sent out for recording, but not yet returned due to delays solely
within the applicable recording office;
X. Xxxxx repurchases any Loan previously conveyed, transferred or
assigned by Chase to any third party due to defects which existed prior to, or
arose as a result of an occurrence on or before the Purchase Date provided,
however, that such defect would have been the basis for repurchase based on
contract between Chase and Correspondent.
C. The Loan File or Credit File contains any Fraudulent Document
regardless of whether or not such Loan is delinquent.
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Section 5.3 Reconveyance of Loan Following Repurchase by Correspondent.
Upon repurchase by Correspondent, Chase will endorse the Mortgage Note without
recourse and execute a recordable assignment of the Mortgage and reasonably
cooperate in the transfer of the Loan and all information relating thereto to
the Correspondent.
Section 5.4 Indemnification. Each of Correspondent and Chase hereby
agree to indemnify, save, and hold harmless the other, its successors and
assigns, from and against any and all losses, damages, fines, costs or expenses
of any nature, including loss of marketability and attorney's fees arid costs,
resulting from breach of any representation or warranty, covenant or agreement,
made by the other. This indemnification shall survive any termination or
cancellation of this Agreement.
Section 5.5 Early Payment Default. With respect to Loans for which the
first scheduled monthly principal and interest amortization payment due to Chase
is not paid by the Mortgagor when due and remains unpaid for thirty (30) days,
Correspondent shall repurchase such Loan at the related Repurchase Price.
Section 5.6 Review Appraiser. Chase may obtain a review appraisal of
any Property in connection with its review of any Loan File. If the review
appraisal indicates a fair market value which is more than ten (10%) percent
less than the original appraisal value then upon demand, Correspondent shall
repurchase the Loan at the Repurchase Price and reimburse Chase for the cost of
the review appraisal In the event that Correspondent does not agree with the
value set forth in the review appraisal, upon request, Chase shall, at the
expense of Correspondent, obtain a second review appraisal, If such second
review appraisal is also more than ten (10%) percent loss than the original
appraisal value, Correspondent shall repurchase the Loan at the Repurchase Price
and reimburse Chase for the costs of the review appraisal and the second review
appraisal. Appraisals must possess the minimum qualifications specified in the
Correspondent Manual, and appraisals must be performed in accordance with
industry standards. The review Appraiser must determine the appraised value as
of the original appraisal date using comparable sales that were available as of
the date of the original appraisal.
Section 5.7 Remedies not Exclusive. The remedies set forth in this
Article V, in other sections of this Agreement, and in the CMF Correspondent
Manual, are in addition to and not to the exclusion of any and all rights and
remedies available to Chase at law or in equity including specific performance.
ARTICLE VI
TERMINATION OF THIS AGREEMENT
-----------------------------
Section 6.1 Conditions of Termination. This Agreement may be
terminated, as to the future submission of Loans, by either party upon fifteen
(15) days written notice. If prior to the effective date of termination, a rate
and rate reservation period has been given by Chase to Correspondent or
Correspondent has transmitted a Credit File or Loan File, or any part thereof,
to Chase, then Chase shall accept assignment of the loan provided such Loan
conforms to Chase's customary underwriting and origination guidelines as set
forth in the CMF
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Correspondent Manual, and Chase did not terminate this Agreement for cause.
Notwithstanding any termination of this Agreement, the representations and
warranties, covenants, agreements, and obligations of Correspondent, including
but not limited to, its continuing responsibility to promptly supply Chase with
outstanding documentation regarding Loans previously submitted for approval, and
its obligation to repurchase Loans and to indemnify Chase as provided herein
shall remain in full force and effect.
ARTICLE VII
MISCELLANEOUS PROVISIONS
------------------------
Section 7.1 Assignment. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and any permitted assignees. Correspondent
may not assign, or delegate any of its rights, duties, and/or obligations
hereunder without the written permission of Chase which may be withheld in its
sole discretion. A change in ownership, merger, or consolidation of
Correspondent shall be considered an assignment for purposes of this Agreement.
Chase may assign this Agreement to any affiliate without consent.
Section 7.2 Relationship between Parties. No exclusive relationship
between Correspondent and Chase shall result from this Agreement. Correspondent
is an independent contractor and nothing herein shall be construed to make
Correspondent a partner, joint venture, employee or agent of Chase.
Correspondent shall not make any statement which leads any third party to
reasonably believe that it is an agent of Chase, and shall have no authority to
bind or make any representations on behalf of Chase. Correspondent shall not use
or refer to Chase's name in any form of advertising, written materials or
circulars except as may be required by law.
Section 7.3 No Third Party Benefits. This Agreement is made for the
express benefit of Correspondent and Chase, not for the benefit or interest of
any other persons or entities, including but not limited to Third Party
Originators, and accordingly, no third party shall obtain or acquire any rights
or interest in this Agreement or by reason of the performance or failure of
performance of either of the parties hereto or of their respective rights,
privileges, duties or obligations arising hereunder.
Section 7.4 Entire Agreement. This Agreement, any addendum(s) attached
hereto and executed by all parties, and the CMF Correspondent Manual constitute
the entire understanding of the parties regarding the subject matter hereof. Any
additions, changes, amendments or modifications of this Agreement must be in
writing and executed by an authorized officer of Chase. The invalidity of any
portion of this Agreement shall not affect the remaining provisions.
Section 7.5 Notice. Any notice required to be given to a party hereto
under the provisions of this Agreement must be in writing and delivered either
personally, by telecopy transmission, or by certified mail to the other party at
the addresses indicated herein above.
Section 7.6 Captions. Paragraph or other headings Contained in this
Agreement are for reference Purposes Only and shall not affect in any way the
meaning or interpretation of this Agreement.
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Section 7.7 Governing Law. This Agreement and the interpretation of its
terms shall be governed by the laws of the State of New Jersey without giving
effect to its principles of conflicts of law. THE PARTIES WAIVE THEIR RIGHTS TO
A JURY TRIAL IN ANY ACTION UNDER THIS AGREEMENT.
Section 7.8 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which,
taken together, shall be deemed to be one Agreement.
Section 7.9 Limited Power of Attorney. Correspondent irrevocably
appoints Chase as its attorney-in-fact for the limited purpose of permitting
Chase to: (a) endorse any check, draft or other instrument n its possession
which is made payable to Correspondent but which is due to Chase under the terms
of this Agreement, and (b) endorse Mortgage notes to Chase and prepare
Assignments of Mortgages in its possession.
Section 7.10 Confidentiality. Correspondent shall not, at any time
during or following termination of this Agreement, regardless of the manner,
reason, time or cause of such termination, directly or indirectly disclose or
furnish to any person not entitled to receive the same for the immediate benefit
of Chase (except to the extent actually required in connection with any
litigation between parties arising out of this Agreement or by applicable laws,
any trade secrets or confidential information including, but not limited to,
information related to Chase business operations, credit policies, procedures,
Customers and the CMF Correspondent Manual.
Section 7.11 Attorney Fees. In connection with any litigation or court
proceeding arising out of the enforcement of this Agreement, the prevailing
party shall be entitled to recover from the other, all cost incurred, including
reasonable attorneys fees incurred for services rendered before suit is brought,
prior to trial, at trial, or appeal, or in federal bankruptcy proceedings.
Section 7.12 Set-off. Correspondent agrees that Chase may, at its
option, deduct from any payment due Correspondent, any monies paid by Chase on
behalf of Correspondent, or due to Chase based upon Correspondent's failure to
perform under the terms of this Agreement, the CMF Correspondent Manual and/or
any related documentation, including, but not limited to, premium recapture
owned by Correspondent to Chase pursuant to Section 3.5
Section 7.13 Non-Solicitation. Correspondent covenants and agrees that
it will not directly or indirectly take any action, or cause any action to be
taken by any of its agents, contractors, employees or affiliates, to (i) solicit
the prepayment of, refinance of, or any alteration in payment procedures or
terms of any Loan sold to Chase under the terms of this Agreement, or (ii)
solicit any Loan sold to Chase under the terms of this Agreement for the purpose
of making another loan, or establishing a line of credit, which will be secured
in whole or in part, by a lien on such Mortgagor's principal residence. The
preceding statement shall not preclude Correspondent from engaging in general
advertising to encourage or recommend Loans offered by Correspondent, so long as
such notices or other program materials are not addressed or directed to
mortgagors of any Loan. In the event that a Mortgagor seeks to refinance a Loan
with Correspondent, or an affiliate of Correspondent, and such Loan is then
owned or serviced
18
by Chase, Correspondent will offer Chase the right of first refusal with respect
to the making of such refinancing Loan.
Section 7.14 Prepayments and Delinquencies. Chase monitors the number
of Loan closed and funded by Chase which are prepaid or which become
delinquency. If Chase determines that the number of prepayments or delinquencies
on Loans sold to it by Correspondent are, in its opinion, excessive, Chase
reserves the right to limit the amount of fees Correspondent is able to earn
with respect to future sales and transfers of Loans under this Agreement, and/or
to terminate this Agreement Chase agrees to provide advance notice to
Correspondent under this section.
IN WITNESS WHEREOF Chase and the Correspondent have caused this
Correspondent Origination and Sales Agreement to be executed as of the date and
year first above written.
CHASE MANHATTAN MORTGAGE CORPORATION
By:
---------------------------------
Title:
------------------------------
CORRESPONDENT:
WESTMARK MORTGAGE CORP.
By: /s/ Xxxxxx Story, III
--------------------------
Title: President
------------------------------
FORM OF BUSINESS ORGANIZATION [Circle one]
[Corporation, Partnership, Proprietorship]
19
