ATLANTA INTERNET BANK MORTGAGE CENTER
MORTGAGE LOAN ORIGINATION, PROCESSING,
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT (this "Agreement") is made as of the __ day of
__________, 1998 by and between ATLANTA INTERNET BANK, FSB ("LENDER"), a Federal
savings bank having an office at 000 Xxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, Attention: Xxx Xxxxxxxxx, and FIRST MORTGAGE NETWORK, INC.
("PROCESSOR"), a Florida corporation having an office located at 0000 Xxxxxxx
Xxxxxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000, Attention: Xxxx X. Xxxxxxx.
RECITALS
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PROCESSOR operates a program that is characterized by borrower
convenience features such as direct on-line Internet access, a standard
business-hour toll-free residential mortgage loan origination hot-line, speed of
commitment, and nationwide availability. PROCESSOR will establish a private
label service bureau (the "Private Label Program") to allow LENDER to offer
residential mortgage loan products on its Internet Bank Mortgage Center via
PROCESSOR's Internet application process. PROCESSOR will develop all forms and
documents necessary in a generic format or will customize the same to be
consistent with the look and feel of LENDER'S other marketing materials and
existing Internet site design. For purposes of this Agreement, "Business Day"
shall mean a day on which national banks are open for the transaction of
business required for this Agreement.
In consideration of the above recitals, the terms and covenants of this
Agreement, and other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
AGREEMENT
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1. Private Label Program.
1.1 Duties of PROCESSOR.
PROCESSOR will perform the following loan processing and underwriting
services on behalf of LENDER in connection with single-family
residential mortgage loans originated through the Private Label Program
("Loans"):
1.1.1 PROCESSOR will provide information on loan products and interest rate
pricing information to LENDER, to be updated each business day.
1.1.2 PROCESSOR will host on the Internet the LENDER's Internet Bank Mortgage
Center site providing FTP access to LENDER. PROCESSOR will add or make
available its Internet mortgage loan application and rate posting
modules to be used in conjunction with LENDER's mortgage loan web site.
1.1.3 PROCESSOR will provide all desired support and counseling services to
assist with the completion of Loan applications and will receive Loan
applications transmitted by LENDER or LENDER's customers by electronic
mail or other means. PROCESSOR will handle all aspects of Loan
processing, underwriting, and origination (collectively, "Loan
Processing Work"), including, without limitation, verification of
borrower information, Loan approval, closing, shipping, and
post-closing work. PROCESSOR will underwrite the Loans and perform all
other Loan Processing Work in conformity with underwriting standards
provided by LENDER to PROCESSOR from time to time (collectively the
"Loan Criteria"). PROCESSOR shall be responsible for promptly advising
LENDER in writing of any Loan Criteria which are inconsistent with the
Applicable Requirements (as defined in Section 1.1.10 below). All Loans
made under the Private Label Program will be closed in the name of
LENDER and will be funded by LENDER. Without limiting the foregoing
provisions of this Section 1.1.3, PROCESSOR will issue timely
instructions to LENDER for funding Loans and will supervise the closing
of Loans in accordance with the Loan Criteria and the Applicable
Requirements.
1.1.4 PROCESSOR will make all disclosures required by federal or state law to
Loan applicants, including, without limitation, disclosures required by
the Real Estate Settlement Procedures Act, Truth in Lending Act, and
Equal Credit Opportunity Act. In all cases, PROCESSOR will issue all
such disclosures within the applicable legal time periods.
1.1.5 PROCESSOR will assist LENDER in compiling any and all information
required in connection with the Loans by federal or state regulatory
agencies, including, without limitation, information required by LENDER
for compliance with the Home Mortgage Disclosure Act and the Community
Reinvestment Act.
1.1.6 PROCESSOR will provide LENDER with weekly status updates of the Private
Label Program, which updates will include information on weekly Private
Label Program usage, comments by users, Loan pipeline reports, and Loan
application reports.
1.1.7 PROCESSOR will respond promptly and professionally to questions,
comments, complaints and other reasonable requests regarding Loans from
LENDER's customers (whether or not expressly requested by LENDER to do
so) and shall cooperate and assist in promptly answering same.
1.1.8 PROCESSOR shall promptly provide copies to LENDER of all written
correspondence related to the Loan Processing Program or any loan
originated thereunder which could reasonably lead to a claim or demand
against LENDER and/or its affiliates by any third party or any
liability of LENDER and/or its affiliates to any third party.
1.1.9 At its sole discretion, PROCESSOR shall use commercially reasonable
efforts to market the Private Label Program and shall, at a minimum,
cooperate with and reasonably assist LENDER by supplying material,
advice and information for LENDER's marketing and promotional
activities which relate to the Private Label Program.
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1.1.10 PROCESSOR hereby represents and warrants to LENDER, and covenants in
favor of LENDER, that all Loans originated on LENDER's behalf pursuant
to this Agreement will be underwritten, processed, originated, and
closed (i) in conformity with all conditions and requirements necessary
for sale of such Loans in the secondary market for single-family
residential mortgage loans and (ii) in compliance with all applicable
federal, state and local laws, rules and regulations, including,
without limitation, the Real Estate Settlement Procedures Act, Truth in
Lending Act, Flood Disaster Protection Act, Equal Credit Opportunity
Act, applicable usury limitations, and applicable lending laws (all
conditions, requirements, laws, rules and regulations referenced in
clauses (i) and (ii) of this Section 1.1.10 being herein collectively
referred to as the "Applicable Requirements"). PROCESSOR further
represents and warrants to LENDER, and covenants in favor of LENDER,
that PROCESSOR (and its agents and employees performing Loan Processing
Work) have such familiarity and experience with the Applicable
Requirements as is necessary to ensure the accuracy of the foregoing
representation and warranty under this Section 1.1.10 and the
fulfillment of the foregoing covenant under this Section 1.1.10.
1.1.11 No later than 4:00pm (prevailing Atlanta, Georgia time) on the business
day immediately preceding the business day on which funding for any
Loan will be due from LENDER in accordance with Section 1.2.7 hereof,
PROCESSOR shall deliver to LENDER true, correct and complete copies of
(1) a nationally recognized title insurance company's insured closing
letter covering the applicable closing attorney with respect to such
Loan, (2) the pertinent borrower's Loan application, and (3) the
PROCESSOR's "Net Check Letter to Escrow Agent" (including, without
limitation, itemization of settlement fees) with respect to such Loan,
and (4) wiring instructions. Within three (3) business days after
closing of each Loan pursuant to this Agreement and the License
Agreement, PROCESSOR shall cause delivery to LENDER (i) the fully
executed original promissory note evidencing such Loan, LENDER agrees
to notify PROCESSOR of receipt of such note, and (ii) a true, correct
and complete copy of the security instrument (i.e., mortgage, deed of
trust, or deed to secure debt) securing such Loan. Each Loan funded by
LENDER pursuant to this Agreement shall be the sole and exclusive
property of LENDER until such Loan is duly sold by LENDER. So long as
any such Loan is the property of LENDER: (a) all documents evidencing,
securing, or otherwise relating to such Loan shall likewise be the sole
and exclusive property of LENDER and shall specify LENDER as sole
holder of such Loan; and (b) any such documents remaining in the
possession of PROCESSOR or its closing attorney or other agent shall be
deemed to be held by PROCESSOR as custodian for LENDER, with PROCESSOR
hereby being charged with all reasonable due care in safeguarding such
documents on behalf of LENDER and hereby being authorized to take only
those actions (with respect to such documents) which LENDER hereafter
authorizes in writing.
1.2 Duties of LENDER.
LENDER will use the Private Label Program as a nonexclusive
single-family residential mortgage lending program. In connection with
the Private Label Program, LENDER will perform the following functions:
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1.2.1 LENDER will use its best efforts to market, promote and advertise the
availability of Loans through the Private Label Program, pursuant to
LENDER's marketing plan and budget.
1.2.2 LENDER may advertise, market, or originate applications for mortgage
loans to be processed, underwritten, closed and funded for LENDER's own
portfolio or for sale by LENDER to other secondary market purchasers
outside the Private Label Program.
1.2.3 LENDER will transmit to PROCESSOR, by electronic mail or other means,
mortgage loan applications received from LENDER's customers for
processing under the Private Label Program in a timely manner. LENDER
shall exercise its best efforts to ensure that the complete Loan
application packages are transmitted to and received by PROCESSOR for
processing within 24 hours of LENDER's receipt. LENDER's failure to
deliver a complete Loan application package to PROCESSOR within such
24-hour period will only relieve PROCESSOR of liability for untimely
disclosures resulting from such delayed delivery.
1.2.4 LENDER, in conjunction with PROCESSOR, will develop and provide to
PROCESSOR the Loan Criteria standards in conformity with applicable
laws, rules and regulations and guidelines of secondary market
investors, including the Federal National Mortgage Association, Federal
Home Loan Mortgage Corporation, and the Government National Mortgage
Association.
1.2.5 LENDER shall be entitled to rely on PROCESSOR's underwriting decisions
on each Loan, provided, however, that LENDER shall maintain ultimate
authority for underwriting decisions and may review and approve or deny
each Loan, including PROCESSOR's recommended credit ^ and underwriting
decisions on any and all Loans. LENDER will, therefore, not be
obligated to fund any Loan which LENDER has not approved.
1.2.6 LENDER will be named as the payee on all Loans, and all disclosures
will be given to Loan borrowers in the name of the LENDER.
1.2.7 LENDER will fund^ all Loans originated through the Private Label
Program, using its own funds or funds obtained by LENDER through a
warehouse line of credit, which funds shall be disbursed by LENDER to
PROCESSOR or its agent in accordance with funding instructions from
PROCESSOR for the Loan closing.
1.3 Purchase and Sale of Loans.
1.3.1 PROCESSOR agrees to purchase from LENDER, and LENDER agrees to sell to
PROCESSOR, in accordance with and subject to the terms and conditions
of this Agreement, all Loans made by LENDER under the Private Label
Program, with each Loan purchase and sale to be consummated (by payment
of the Purchase Price for such Loan in accordance with Section 1.3.2
hereof) within forty-eight (48) hours after Loan
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settlement and funding to the greatest extent practicable and in all
events within seven (7) calendar days after Loan settlement and
funding. Such Loans will be sold by LENDER and purchased by PROCESSOR
without recourse and on a servicing-released basis, with PROCESSOR
undertaking servicing of all Loans so purchased by PROCESSOR.
Notwithstanding the foregoing, LENDER hereby reserves the right,
exercisable in Lender's sole discretion, either to retain Loans funded
under this Agreement in LENDER's portfolio or to sell such Loans
directly to secondary market purchasers other than PROCESSOR; provided
that LENDER must exercise this reserved right by notifying PROCESSOR,
at any time prior to locking in the borrower's interest rate on any
applicable Loan, that such Loan will not be sold to PROCESSOR pursuant
to this Agreement. PROCESSOR shall not be entitled or obligated to
purchase from LENDER, and LENDER shall not be obligated to sell to
PROCESSOR, any Loan in respect of which Seller has exercised such
reserved right under this Section 1.3.1.
1.3.2 The purchase price ("Purchase Price") to be paid by PROCESSOR and
accepted by LENDER for each Loan sold to PROCESSOR pursuant to Section
1.3.1 hereof shall be equal to the sum of: (1) the Loan amount at the
interest rate specified in the note, plus (2) the accrued and unpaid
interest on the Loan through and including the date on which the
purchase and sale of the Loan is consummated, plus (3) all origination
fees and/or discount points paid by or refunded to the borrower, plus
(4) an amount equal to 0.05 percent of loan amount (5 basis points).
PROCESSOR shall be entitled to a credit against the Purchase Price in
the amount of any prepaid interest which is actually received and
retained by LENDER with respect to such Loan and which is applicable to
any period (i) from and including the date on which the sale and
purchase of such Loan is consummated between LENDER and PROCESSOR if
the Purchase Prices is not received by LENDER by12 noon on the date of
consummation, or (ii) after the date on which the sale and purchase of
such Loan is consummated between LENDER and PROCESSOR if the Purchase
Price is not received by LENDER by 12 noon (prevailing Atlanta, Georgia
time) on the date of consummation. The Purchase Price for each Loan
(after netting any applicable credit for prepaid interest) shall be
paid by PROCESSOR to LENDER in immediately available funds.
1.3.3 Upon PROCESSOR's delivery of the Purchase Price applicable to any Loan
which PROCESSOR is obligated to purchase under this Agreement, LENDER
(1) shall deliver to PROCESSOR any and all documents and instruments
which evidence, secure, or otherwise relate to such Loan and which are
then in LENDER's actual possession and (2) shall release in PROCESSOR's
favor any and all rights of LENDER in, to, and under such documents and
instruments.
1.3.4 If PROCESSOR fails to deliver the Purchase Price (for any Loan which
PROCESSOR is obligated to purchase under this Agreement) within seven
(7) calendar days after settlement and funding of such Loan or if
PROCESSOR otherwise fails to consummate the purchase of such Loan in
accordance with this Section 1.3, then LENDER, in its sole discretion,
shall be entitled to exercise any and all rights and remedies, at law
or in equity or otherwise, with respect to any and all
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such failures by PROCESSOR and any and all Loans subject to such
failures by PROCESSOR, including, without limitation, the following:
(1) LENDER shall be entitled to effect the sale of any and all
such Loans to any other person(s) or entity(ies) at any
commercially reasonable price(s) (any such sale being an
"Alternative Sale"), with PROCESSOR being obligated to
indemnify LENDER for any and all losses, damages, liabilities,
claims, legal fees, and other expenses incurred by LENDER as a
direct or indirect consequence of any and all Alternative
Sales, including, without limitation, any positive difference
between the Purchase Price due under this Agreement for any
such Loan and the price actually received by LENDER through
the Alternative Sale of such Loan; and
(2) LENDER shall be entitled to specific performance of
PROCESSOR's obligation to purchase any and all such Loans,
together with monetary relief for any and all losses, damages,
liabilities, claims, legal fees, and other expenses incurred
by LENDER as a direct or indirect consequence of PROCESSOR's
breach of this Agreement.
1.4 Features of the Program.
Customers of LENDER who are qualified for a Loan under the Private
Label Program will be entitled to the following features and services:
1.4.1 A Pre-Approval program which provides customers a written commitment to
obtain a loan prior to purchasing residential property.
1.4.2 Flexible application options, including loan-by-phone, in person, by
mail, fax, or on-line.
1.4.3 Flexible interest rate lock-in options, with interest rate lock
duration up to 270 days, when available.
2. Nonexclusive Agreement.
During the term of this Agreement, PROCESSOR will have the
non-exclusive right to perform the duties outlined above as part of the
Private Label Program. LENDER may enter into any agreement with third
parties for similar services (whether in the aggregate or individually)
or otherwise directly offer mortgage loans through its Internet Bank
Mortgage Center. PROCESSOR retains the right to offer residential
mortgage loans to any customer who applies to PROCESSOR through another
of the PROCESSOR's mortgage loan programs or through a loan offer made
to the public by PROCESSOR. PROCESSOR also retains the right to offer
programs similar to the Private Label Programs to other lenders.
3. Consideration.
3.1 Compensation Due PROCESSOR.
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3.1.1 [REDACTED]
3.1.2 PROCESSOR shall receive no compensation for any Loan which is not
purchased by PROCESSOR pursuant to this Agreement because PROCESSOR
defaults in its obligation to purchase such Loan.
3.1.3 PROCESSOR's compensation under this Section 3.1 shall be subject to
reduction in the amount of any loan administration fees ("Loan
Administration Fees") (as defined in Section 3.2.2 below) which the
PROCESSOR fails to charge borrower, provided that the amount and
characterization of such Loan Administration Fees has been communicated
to PROCESSOR in writing at the time the Loan application is delivered
to PROCESSOR.
3.2 Compensation Due LENDER.
3.2.1 [REDACTED]
3.2.2 Except for pass-through fees, all other fees collected from Loan
borrowers ("Loan Administration Fees") in connection with any Loan
Processing Work or any other aspect of originating Loans shall be
remitted by PROCESSOR to LENDER immediately upon PROCESSOR's receipt
thereof and shall be the sole and exclusive property of LENDER at all
times. LENDER shall have sole authority to establish all Loan
Administration Fees and to set the amount(s) thereof.
4. Term.
Subject to the provisions of Section 5 hereof, this Agreement will
continue in full force and effect for a period of one (1) year from the
date of this Agreement and will thereafter automatically be renewed for
additional periods of one (1) year; provided, however, that either
party may cancel this Agreement as of the expiration of any such
one-year period by giving written notice to the other party hereto at
least sixty (60) days prior to the end of either the initial one-year
term or any subsequent one-year term of this Agreement.
5. Termination.
5.1. Events Causing Termination.
Subject to the provisions of Section 5.2. hereof, this Agreement may be
terminated by either party during the existence of any of the following
conditions:
5.1.1 If the other party ("Other Party") is the subject of any of the
following: (1) a court having jurisdiction shall have entered a decree
or order constituting an order for relief in respect
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of the Other Party under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other applicable federal or
state bankruptcy law or other similar law, or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator, or similar
official of the Other Party or any substantial part of its properties,
or ordering the winding-up or liquidation of the affairs of the Other
Party, or any petition seeking such relief or appointment shall have
been filed in such a court and shall not have been dismissed within a
period of forty-five (45) days; (2) the Other Party shall have filed a
petition, answer, or consent seeking relief under Title 11 of the
United States Code, as now constituted or hereafter amended, or any
other applicable federal or state bankruptcy law or other similar law,
or the Other Party shall consent to the institution of proceedings
thereunder or to the filing of any such petition or to the appointment
or taking of possession of a receiver, liquidator, assignee, trustee,
custodian, sequestrator, or other similar official of the Other Party
or of any substantial part of properties, or the Other Party shall fail
generally to pay its debts as such debts become due, or the Other Party
shall take any corporate action in furtherance of any such action; (3)
any admission by the Other Party of its insolvency or inability to pay
its debts as they fall due; or (4) the adjudication of the Other Party
as bankrupt or insolvent;
5.1.2 If the Other Party fails to pay the terminating party any amount within
sixty (60) days after the date on which such amount was first due the
terminating party in accordance with this Agreement or, if a due date
is not specified herein or therein, within sixty (60) days after the
Other Party's receipt of an invoice for such amount;
5.1.3 If the Other Party is in material breach of or material default under
this Agreement;
5.1.4 If the Other Party engages in any dishonest or fraudulent conduct; or
5.1.5 If it becomes unlawful for the parties hereto to do business in
accordance with this Agreement.
5.2 Duties Upon Termination.
Upon termination of this Agreement for any cause pursuant to Section
5.1 hereof:
5.2.1 The parties agree to continue their cooperation in order to affect an
orderly termination of their relationship. Each party shall immediately
cease accepting applications under the Private Label Program, provided,
however, that PROCESSOR shall, at LENDER's option, continue the Loan
Processing Work under the terms and conditions of this Agreement in
order to consummate any Loan(s) for which an application has been
received by PROCESSOR or LENDER on or prior to the date of termination.
All compensation due any party in connection with any such Loan(s)
shall be paid in accordance with this Agreement, and PROCESSOR's
obligation to purchase any such Loan(s) shall be in full force and
effect in accordance with and subject to the terms and conditions of
this Agreement.
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5.2.2 Each party shall return all copies of promotional materials, marketing
literature, written information and reports pertaining to the other
party's products or services that have been supplied by such other
party.
6. Arbitration.
Any controversy arising in conjunction with or relating to this
Agreement, and any amendment hereof, shall be determined and settled by
arbitration in a location mutually agreed upon by the parties, in
accordance with the rules of the American Arbitration Association. Any
arbitration award rendered hereunder shall be final and binding on each
of the parties hereto and their respective successors and assigns, and
judgment may be entered thereon by any court having jurisdiction. The
parties shall continue their performance under this Agreement while the
arbitration proceeding is pending.
7. Indemnity.
7.1 Each party hereby indemnifies and agrees to hold harmless the other
party against liabilities, claims, damages, costs, charges, judgments,
expenses (including, without limitation, reasonable attorneys' fees),
or any other losses (collectively, "Liabilities") incurred by such
other party as a result of a third party's use of the mortgage loan
origination functions of LENDER's Internet Bank Mortgage Center to the
extent such Liabilities result from any negligent acts or omissions,
bad faith, or willful misconduct of the indemnifying party or its
employees, agents or affiliates (provided that neither party hereto
shall be deemed the other party's agent or affiliate for any purposes,
including, without limitation, the application of this Section 6).
7.2 PROCESSOR will indemnify and hold LENDER harmless against, any and all
Liabilities incurred by LENDER and arising from any act or omission of
PROCESSOR or its agents or employees in connection with PROCESSOR's
rights and obligations under this Agreement, including, without
limitation, any breach of this Agreement by PROCESSOR ^, any breach of
any of PROCESSOR's representations and warranties set forth in Sections
^ 1.1.10, 9.1 and 9.3, or any and all claims by borrowers relating to
such acts or omissions. PROCESSOR will, at its own expense, defend any
action brought against LENDER; provided that PROCESSOR is promptly
notified in writing by LENDER of any such action; and provided,
further, that PROCESSOR shall have the exclusive right to control such
defense. In no event shall LENDER settle any such claim, lawsuit or
proceeding involving Liabilities covered by PROCESSOR's indemnification
obligation under this Section 7.2 without PROCESSOR's prior written
approval, which shall not be unreasonably withheld.
7.3 LENDER will indemnify and hold PROCESSOR harmless against, and will at
its own expense defend, any action brought against PROCESSOR to the
extent such action is based upon a breach of LENDER's representations
and warranties set forth in Sections 9.2 and 9.3; provided that LENDER
is promptly notified in writing by PROCESSOR of any such action; and
provided further that LENDER shall have the exclusive right to control
such defense. In no event shall PROCESSOR settle such claim, lawsuit or
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proceeding without LENDER's prior written approval, which shall not be
unreasonably withheld.
8. Liability.
UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (SUCH AS, BUT
NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST
BUSINESS) ARISING FROM THE USE OR INABILITY TO USE THE INTERNET BANK
MORTGAGE CENTER AND THE PRIVATE LABEL PROGRAM OR ARISING FROM THE USE
OF ANY LINKED UP INTERNET SITE (EVEN IF THAT PARTY HAS BEEN ADVISED OF,
OR HAS FORESEEN THE POSSIBILITY OF, SUCH DAMAGES).
9. Representations, Warranties and Covenants of PROCESSOR and LENDER.
9.1 PROCESSOR hereby represents, warrants and covenants to LENDER as
follows:
9.1.1 PROCESSOR is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Florida and that it has
all requisite corporate power and authority necessary to make and
perform its obligations under this Agreement. The execution and
delivery of this Agreement and all documents, instruments and
agreements required to be executed by PROCESSOR pursuant hereto, and
the consummation of the transactions contemplated hereby, have each
been duly and validly authorized by all necessary action of PROCESSOR.
This Agreement constitutes a valid, legal and binding agreement of
PROCESSOR enforceable by LENDER in accordance with its terms, subject
to bankruptcy, insolvency, reorganization, receivership or other laws
affecting rights of creditors generally and subject to general equity
principles.
9.1.2 PROCESSOR is qualified to do business in all states and in any other
jurisdiction in which such qualification is required or where PROCESSOR
maintains an office or does substantial business.
9.1.3 The execution, delivery and performance of this Agreement by PROCESSOR,
its compliance with the terms hereof and consummation of the
transactions contemplated hereby will not violate, conflict with,
result in a breach of, give rise to any right of termination,
cancellation or acceleration under, constitute a default under, be
prohibited by or require any additional approval under: (1) PROCESSOR's
charter, by-laws, or other organizational documents, or any other
material instrument or agreement to which PROCESSOR is a party or by
which PROCESSOR is bound or which affects this Agreement, or (2) any
and all laws, orders, injunctions or decrees applicable to PROCESSOR.
9.1.4 PROCESSOR possesses and will maintain at all times while this Agreement
is in effect any and all necessary licenses and permits required by any
and all laws necessary to conduct the business contemplated by the
terms of this Agreement. LENDER's
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obligations under this Agreement do not require LENDER to obtain or
maintain any such state or local licenses or permits.
9.1.5 Neither PROCESSOR nor its agents know of, or with the exercise of
reasonable diligence, would know of any suit, action, arbitration or
legal or administrative or other proceeding pending or threatened
against PROCESSOR which would affect its ability to perform its
obligations under this Agreement.
9.2 LENDER hereby represents, warrants and covenants to PROCESSOR as
follows:
9.2.1 LENDER is a federal savings bank duly chartered, validly existing, and
in good standing under the laws of the United States and that it has
all requisite corporate power and authority necessary to make and
perform this Agreement. The execution and delivery of this Agreement
and all documents, instruments and agreements required to be executed
by LENDER pursuant hereto, and the consummation of the transactions
contemplated hereby, have each been duly and validly authorized by all
necessary action of LENDER. This Agreement constitutes a valid, legal
and binding agreement of LENDER enforceable by PROCESSOR in accordance
with its terms, subject to bankruptcy, insolvency, reorganization,
receivership or other laws affecting rights of creditors generally and
subject to general equity principles.
9.2.2 Subject to PROCESSOR's full compliance with all terms and conditions of
this Agreement and with all Loan Criteria:
(1) The execution, delivery and performance of this Agreement by
LENDER, its compliance with the terms hereof and consummation
of the transactions contemplated hereby will not violate,
conflict with, result in a breach of, give rise to any right
of termination, cancellation or acceleration under, constitute
a default under, be prohibited by or require any additional
approval under: (i) LENDER's charter, by-laws, or other
organizational documents, or any other material instrument or
agreement to which LENDER is a party or by which LENDER is
bound or which affects this Agreement, or (ii) any and all
laws, orders, injunctions or decrees applicable to LENDER.
(2) LENDER possesses and will maintain its federal savings bank
charter at all times while this Agreement is in effect.
(3) Neither LENDER nor its agents know of, or with the exercise of
reasonable diligence, would know of any suit, action,
arbitration or legal or administrative or other proceeding
pending or threatened against LENDER which would affect its
ability to perform its obligations under this Agreement.
9.3 Each party agrees that it will not use the trademarks, service marks,
logo, name or any other proprietary descriptions of the other party or
the other party's parent or affiliates, whether registered or
unregistered, without the other party's prior written consent.
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9.4 Each party agrees to notify the other as soon as practicable of any
formal request by a governmental agency to examine records pertaining
to the other party or its customers, if the party being subjected to
such examination is permitted to so notify the other party. Each party
agrees that the other party is authorized to fully cooperate with any
such examination, and that such cooperation will not constitute a
breach of this Agreement, including, without limitation, a breach of
the confidentiality provisions in Section 10.13 hereof.
10. Miscellaneous.
10.1 Nothing in this Agreement will be deemed to constitute a partnership,
joint venture, employment, affiliated business arrangement, or agency
relationship between the parties.
10.2 This Agreement may not be assigned, in whole or in part, by any party
hereto without the prior written consent of the other party, except to:
(1) a parent company or wholly owned subsidiary of the assigning party,
(2) a person or entity that purchases in excess of fifty percent (50%)
of either party's voting stock, or (3) any entity which purchases
substantially all assets of the assigning party. This Agreement shall
be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
10.3 All notices required to be given hereunder will be considered delivered
when placed in the United States Mail, certified mail, return receipt
requested, properly addressed, or when delivered by courier, to the
parties at their respective addresses as set forth at the beginning of
this Agreement; provided that a party may change its address for
notices hereunder by giving the other party written notice of such
change.
10.4 This Agreement constitutes the entire agreement of the parties and
supersedes all prior understandings, whether written or oral, between
the parties thereto. This Agreement will not be modified except by
written instrument duly executed by PROCESSOR and LENDER. Any approvals
or consents required by either party by the terms of this Agreement
shall not be unreasonably withheld. Notwithstanding the above, in the
event either party expressly waives a default or breach of the other
party, this waiver will not be considered a waiver of a later default
or breach of the same or any other provision of this Agreement. If
either party fails to object or take affirmative action with respect to
any conduct of the other party which is in violation of the terms of
this Agreement, this failure shall not be construed as a waiver of such
terms between the parties hereto.
10.5 This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original, but all of which together shall constitute
one and the same agreement.
10.6 Neither party shall be liable to the other party for any loss or damage
due to delays or failure to perform resulting from an event of "Force
Majeure," which shall mean and include: an act of God; accident; war;
fire; lockout; strike or labor dispute; riot or civil commotion; act of
public enemy; enactment, rule, order or act of civil or military
12
authority; acts or omissions of the other party; judicial action;
inability to secure adequate materials, labor, or facilities; the
inability of carriers to make scheduled deliveries; or any other event
beyond the reasonable control of such party. Notwithstanding the
foregoing, Force Majeure shall not excuse either party from making
payments when due.
10.7 If any provision or part of this Agreement is deemed invalid or
unenforceable under applicable laws, the remainder of this Agreement
shall not be affected thereby and shall be fully enforceable to the
extent of the valid portions thereof.
10.8 LENDER shall not solicit or cause to be solicited any Loan borrower for
the purpose of prepaying a Loan in whole or substantially in whole for
a period of three (3) years after the sale of such Loan to PROCESSOR
except with the written permission of PROCESSOR, which may be withheld
for any reason, and provided that nothing in this Section 10.8 will
prevent LENDER from general solicitations in its marketplace for
mortgage loans. Notwithstanding LENDER's agreement to refrain from
making mortgage loan solicitations as described in the preceding
sentence, all customer data relating to Loans sold under this Agreement
will remain the property of LENDER.
10.9 Each party shall pay its own expenses incident to this Agreement and
the transactions contemplated hereby, including, but not limited to,
all fees of its counsel and accountants, whether or not any of the
transactions contemplated shall be consummated; provided, however, that
in addition to the compensation due LENDER pursuant to Section 3.2
hereof, PROCESSOR shall immediately reimburse LENDER for its reasonable
legal fees and related actual expenses for initial development of this
Agreement and related documentation in an amount not to exceed $10,000.
10.10 This Agreement shall be construed fairly as to both parties and not in
favor of or against either party, regardless of which party prepared
this Agreement.
10.11 This Agreement will be interpreted and construed in accordance with,
and will be governed by, the laws of the State of Georgia. The parties
hereto irrevocably submit themselves to the jurisdiction of the courts
of the State of Georgia. Any suit or action arising out of this
Agreement may be brought in the court of competent jurisdiction in the
County of Xxxxxx, State of Georgia. Service of process may be made, in
addition to any other method permitted by law, by certified mail,
return receipt requested, sent to the applicable address set forth
herein.
10.12 The parties acknowledge and agree that the Private Label Program is not
intended to permit the access or transmission of LENDER's customer
names, screen names, addresses or any information concerning LENDER's
customers, other than that required to be accessed or transmitted in
connection with a Loan application.
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10.13 The parties agree to maintain the terms and conditions of this
Agreement confidential during the term of this Agreement. In addition,
each party acknowledges that in performing under this Agreement it may
gain access to confidential information belonging to the other party
and its customers, including but not limited to business, financial and
technological information (collectively, "Confidential Information"),
which Confidential Information constitutes and shall constitute
valuable assets and trade secrets. Accordingly, when a party (the
"Receiving Party") receives Confidential Information from another party
(the "Owning Party"), the Receiving Party shall, both during the term
of this Agreement and following the termination thereof, (1) keep
secret and retain in strict confidence any Confidential Information
received from the Owning Party, (2) not disclose to any third party any
Confidential Information received from the Owning Party for any reason
whatsoever, (3) not disclose any Confidential Information received from
the Owning Party to the Receiving Party's employees, except on a
need-to-know basis, and (4) not make use of any Confidential
Information received from the Owning Party for its own purposes or for
the benefit of any third party except as authorized by this Agreement.
Notwithstanding the foregoing, the parties' duty regarding Confidential
Information shall not apply when disclosure is made pursuant to (i) any
state or federal law or regulation, or (ii) the order of any state or
federal court or agency, provided the party disclosing such
Confidential Information provides prior written notice, wherever
practicable, to the other party.
10.14 All warranties and indemnities by either party under this Agreement
shall survive the expiration or termination of this Agreement.
10.15 In the event PROCESSOR makes secondary market commitments in the name
of LENDER to sell Loans on behalf of LENDER and pursuant to this
Agreement, PROCESSOR agrees to sell and deliver such Loans in
accordance with the secondary market commitments made in the name of
and on behalf of LENDER with respect to such Loans, provided that
nothing in this Agreement shall authorize PROCESSOR to make such
commitments in the name of or on behalf of LENDER.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have executed this Agreement under
seal as of the date and year first set forth above.
LENDER: Atlanta Internet Bank, FSB
By: ________________________________
Name: ______________________________
Title: _____________________________
[BANK SEAL]
PROCESSOR: First Mortgage Network, Inc.
By: ___________________________________
Name: _________________________________
Title: ________________________________
[CORPORATE SEAL]
