RESIDENTIAL MORTGAGE LOAN
ORIGINATION AGREEMENT
THIS AGREEMENT (the "Agreement") is made this 4th day of
September, 2003, by and between SADDLEBACK INVESTMENT SERVICES,
INC., DBA AMERICAN NATIONAL MORTGAGE, a California corporation,
and AMERICAN PREMIER BANK, a bank chartered by the State of
California.
RECITALS:
American National Mortgage ("American National") is a
mortgage company licensed under the laws of the State of
California and various other states. American National has an
established retail mortgage loan origination operation and
proposes by the terms of this Agreement to process and close
residential mortgage loans for customers of American Premier Bank
(the "Bank").
Bank proposes, by the terms of this Agreement, to take
residential mortgage loans from its customers that will be
originated, processed and closed by American National.
NOW, THEREFORE IT IS AGREED AS FOLLOWS:
1. Services of American National.
(a) American National agrees to appoint Bank as its lending
agent for the purpose of allowing Bank to take residential
mortgage loans for Bank customers for submission to American
National. However, this appointment is on a non-exclusive basis
and American National and Bank are free to pursue other retail
loan origination relationships.
(b) American National agrees to receive the loan applications
from the Bank and to complete origination, process and close
residential loans resulting from such applications.
In furtherance thereof, American National shall:
(1) Train and provide ongoing supervision of designated
personnel of the Bank to take loan applications from
customers of the Bank and submit them to American
National.
(2) Provide loan application packages for distribution by the
Bank for use by its Customers.
(3) Publish from time to time, by means of hard
copy or electronic rate sheets, for use by Bank in
promoting American National's loan products, a schedule
of available loan products and terms.
(4) Receive mortgage loan applications that are
taken by the Bank and prepare and provide loan
applicants with all disclosures or notices when and as
required by applicable law or regulation, including, but
not limited to, all disclosures and notices required
under the Real Estate Settlement Procedures Act
("RESPA") in a timely manner.
(5) Complete all origination and processing of loan
applications and submission of processed loan packages
to mortgage lenders of American National's choice for
underwriting, approval and documentation and closing of
mortgage loans, when and as required, all in compliance
with applicable laws and regulations.
(6) Advise loan applicants of credit decision,
loan approval and/or status, and to provide for closing
of approved loans. In addition, it shall send notices as
required by law or regulation on disapproved loans.
(7) Maintain records concerning all application as
required by applicable law and regulations.
(8) Furnish to Bank regular reports showing the action
taken on all customer loan applications and the status
of pending customer loan applications.
(c) For services rendered pursuant to the terms of this
Agreement which are paid by a loan applicant or borrower, the
charges of American National for such services are set forth
in Exhibit "A" hereto. All of such fees shall be paid by
borrower directly or through the closing of the loan, as
applicable. Such charges may be changed by American National
with thirty (30) days written notice to Bank.
2. Participation by Bank.
(a) Bank agrees to take loan applications in conformity
with the procedures and instructions provided Bank by American
National, and to deliver such completed loan applications to
American National for processing.
(b) Bank will distribute to its customers residential
mortgage loan application packages. All loan application
packages, marketing material and other information made available
to customers must be approved in advance by the Bank. Preparation
and distribution of the loan application packages shall be
pursuant to a schedule mutually agreed upon by Bank and American
National.
3. Fees Paid to Bank.
In accordance with RESPA, as set forth in the Code of Federal
Regulations, Title 24, Chapter XX, Part 3500, Sections 3500.14(b)
and 3500.14(g)(1)(iii):
(a) American National will pay to Bank, and, if
required, properly disclose in accordance with RESPA and
Regulation "Z", as compensation for its services rendered under
Section 2 of this Agreement those fees as determined as follows:
fifty percent (50%) of (i) all points charged borrowers and (ii)
all rebates, services release premiums or other moneys received by
American National from mortgage lenders resulting from closing of
loans to customers of the Bank.
(b) Fees payable by American National to Bank will be due
and payable in a timely manner, no more than seven (7) calendar
days from the date of funding, recording and payment to American
National by its lender/investor of any applicable loan.
4. Representations and Warranties.
(a) American National represents and warrants with
respect to each loan it processes, has underwritten, and closes,
that each such application or loan has been processed,
underwritten, closed, and purchased in conformance with all
applicable federal and state laws and regulations, including, but
not limited to, RESPA, Regulation "B", Regulation "Z" and
Regulation "X" and in accordance with its internal procedures.
Such representations and warranties include, but are not limited
to, the following:
(1)That American National is not aware of any fraud,
misrepresentation, fact or circumstance on the part
of the borrower, the appraiser, or other parties
associated with the loan transaction which would
render the borrower ineligible for the subject
mortgage loan.
(2) That each application was processed
or loan was made in compliance with all
applicable federal and state statutes and
regulations relating to the mortgage loan process,
including, but not limited to, the Federal Consumer
Credit Protection Act, the Real Estate Settlement
Procedures Act, the Federal Fair Housing Act, the
Flood Disaster Protection Act, the California
Housing Financial Discrimination Act, and without
limitation, laws and regulations relating to
adjustable or variable rate mortgage loans, as
applicable.
(b) American National further represents and warrants to
Bank that American National has full legal rights, power and
authority to enter into and perform this Agreement. The execution
and delivery of this Agreement by American National and the
consummation by American National of the transactions contemplated
hereby have been duly authorized by all necessary action by or on
behalf of American National. This Agreement is a valid and bind
obligation of American National, enforceable against American
National in accordance in accordance with its terms.
(c) Bank represents and warrants with respect to each loan
application that it takes, that each such application or loan has
been taken in accordance with the procedures and instructions of
American National. Such representations and warranties include,
but are not limited to, the following:
(1) That the Bank is not aware of any fraud, misrepresentation,
fact or circumstance on the part of the borrower, or other
parties associated with the loan transaction which would render
the borrower ineligible for the subject mortgage loan.
(d) Bank further represents and warrants to American National
that the Bank has full legal rights, power and authority to enter
into and perform this Agreement. The execution and delivery of
this Agreement by the Bank and the consummation by the Bank of the
transactions contemplated hereby have been duly authorized by all
necessary action by or on behalf of the Bank. This Agreement is a
valid and bind obligation of American National, enforceable
against the Bank in accordance in accordance with its terms.
5. Indemnification. American National shall defend, indemnify
and hold harmless the Bank from and against all losses, claims,
damages, liability, actions, costs or expenses (including
attorney's fees) where such matters arise out of or are based in
whole or part upon any act or omission by American National, its
employees, agents, or representatives (other than Bank). Bank
shall defend, indemnify and hold harmless American National from
and against all losses, claims, damages, liability, actions, costs
or expenses (including attorney's fees) where such matters arise
of or are based in whole or part upon any act or omission by Bank,
its employees, agents or representatives (other than American
National).
6. Term and Termination. This Agreement will continue at the
will of the parties for an indefinite term, cancelable by either
party with, or without, cause upon six (60) days written notice.
Termination of this Agreement shall result in the cessation of the
origination of residential mortgage loans from and after the
effective date of termination, but this Agreement shall continue
to govern the rights of the parties, after the effective date of
termination, until each loan closed under this Agreement has been
paid in full. Notwithstanding anything to the contrary, this
Agreement may be immediately terminated by either party to this
Agreement upon the material breach of the other party to this
Agreement.
7. Confidentiality and Records.
(a) American National agrees to keep any and all information
pertaining to the Bank, including, but not limited to, information
pertaining to the Bank's customers, strictly confidential, and
American National agrees not to use such list of customers for any
business purpose and will not release such information to third
parties except as essential to performance of its obligations
under this Agreement. Bank agrees to keep and maintain
confidential all business practices that may be revealed by
American National to Bank in furtherance of this Agreement that is
not otherwise generally available to the public, or has not been
disclosed to Bank from a third party, except for information that
Bank may be required to disclose pursuant to any federal, state or
local law governing Bank or information that Bank may be required
to disclose to its auditors. American National and Bank shall
comply with all federal, state or local laws, rules, regulations
and ordinances governing or relating to privacy rights in
connection with performance of their respective duties under this
Agreement including, without limitation, the Xxxxx-Xxxxx-Xxxxxx
Act and its implementing regulations.
(b) At all reasonable times during business hours and upon
advance notice, Bank shall have access to all mortgage loan files
and records related to mortgage loans extended to Bank's customers
as reasonably necessary or convenient to confirm compliance with
the terms of this Agreement or as necessary or convenient to meet
the requirements of regulators, auditors or other third parties
having a valid business need for access to such information.
8. Cooperation of Parties. The parties to this Agreement
agree to cooperate with each other in doing all things reasonably
necessary to originate mortgage loans for Bank customers as
contemplated by this Agreement.
9. Assignment. This Agreement shall not be assigned in whole
or in part by either party.
10. Waiver. If either party shall waive any requirement of
this Agreement or any breach of this Agreement, such waiver shall
be in writing, such waiver shall apply only to the specific
requirement or breach waived and the Agreement thereafter shall be
enforced as though no waiver shall have occurred. Waiver of any
requirement or any breach in any one instance shall not be
construed to be a waiver or strict adherence to the terms of this
Agreement.
11. Notices. Any notice required or permitted by this
Agreement shall be deemed given when sent by first-class mail,
postage prepaid, or by overnight or other delivery service, and
addressed to the party at its address set forth on the signature
page. Either party may change its address in like manner.
12. Miscellaneous Provisions.
(a) Governing Law. This Agreement shall be construed
and enforced in accordance with, and the rights of the parties
shall be governed by, the laws of the State of California
notwithstanding any conflicts-of-laws doctrines of such state or
other jurisdictions to the contrary, and without the aid of any
canon, custom or rule of law requiring constructions against the
draftsman. The parties agree to submit to the jurisdiction and
venue of the state and federal courts of Orange County,
California, for the purposes of resolving disputes hereunder, and
authorize any such action to be instituted and prosecuted
exclusively in the Superior Court of the State of California or,
if appropriate, the United State District Court for the Central
District of California.
(b) Breach. In the event that either party fails to
comply with or otherwise breaches this Agreement, the prevailing
party in any action or proceeding to enforce this Agreement shall
be entitled to all costs of enforcement, including reasonable
attorney's fees and legal expenses incurred by it.
(c) Severability. If any provision of this Agreement is
held invalid or unenforceable, such invalidity or unenforceability
shall not affect the validity or enforceability of the other
provisions of this Agreement, all of which are declared severable.
(d) Headings. The headings used in this Agreement are
solely for convenience of reference and shall not affect its
interpretation.
(e) Words and Phrases. Words and phrases such as "to this
Agreement," "herein," "hereinafter," "hereto," "hereof,"
"hereby," and "hereunder," when used with reference to this
Agreement, refer to this Agreement as a whole, unless the context
otherwise requires.
(f) Gender and Number. Wherever from the context of this
Agreement it appears appropriate, each term stated in either the
singular or the plural shall include the singular or the plural,
and pronouns sated in either the masculine, feminine or neuter
gender, shall include the masculine, feminine and neuter.
(g) Entire Understanding. Except as expressly reserved or
otherwise provided herein, this Agreement contains the entire
understanding among the parties hereto with respect to the
subject matter hereof, and supersedes all prior and
contemporaneous agreements and understandings, inducements or
conditions, express or implied, oral or written, except as herein
contained. The express terms hereof control and supersede any
course of performance and/or usage of the trade inconsistent with
any of the terms hereof.
(h) Jury Waiver. THE PARTIES HEREBY WAIVE TRIAL BY JURY IN
ANY COURT IN ANY SUIT, ACTION OR PROCEEDING ON ANY MATTER ARISING
IN CONNECTION WITH OR IN ANY WAY RELATED TO THE FINANCING
TRANSACTIONS OF WHICH THIS AGREEMENT IS A PART AND/OR THE
ENFORCEMENT OF ANY OF THE PARTIES' RESPECTIVE RIGHTS AND REMEDIES,
INCLUDING WITHOUT LIMITATION, TORT CLAIMS. THE PARTIES ACKNOWLEDGE
THAT EACH MADE THIS WAIVER VOLUNTARILY, INTELLIGENTLY, KNOWINGLY,
WITHOUT DURESS AND ONLY AFTER EXTENSIVE CONSIDERATION OF THE
RAMIFICATIONS THEREOF.
(i) Counterparts. This Agreement may be executed in any
number of counterparts, including separate counterparts, all of
which when taken together, shall constitute one instrument.
(j) Independent Contractors. The parties to this Agreement
are independent contractors and no agency (except as to the
limited provisions of Section 1(a)), partnership, joint venture or
employee-employer relationship is intended or created by this
Agreement.
SIGNATURES ON FOLLOWING PAGE
IN WITNESS WHEREOF the parties hereto have executed this
Agreement effective the date and year first above written.
SADDLEBACK INVESTMENT SERVICES, INC.
dba AMERICAN NATIONAL MORTGAGE
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
by: /s/ Xxxxxxx X. Xxxxxx
---------------------
Xxxxxxx X. Xxxxxx
President
AMERICAN PREMIER BANK
000 X. Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
by /s/ Xxxxxx Xxxx
----------------------
Xxxxxx Xxxx
President and Chief Executive Officer
by_________________________________
Xxxx Xxxx
Executive Vice President and
Chief Credit Officer
EXHIBIT "A"
American National will charge Bank's customers the following
amounts for services rendered and costs incurred:
$395.00 for loan processing
$20.00 for credit report fees
$65.00 for Residential Mortgage Credit report fees, when required
Other fees for appraisals, underwriting, funding, documents, etc.
will be charged by third parties.
