ONECAP
A Nevada Corporation
Exhibit 10 e.
Wholesale Lending Agreement with Interfirst,
A Division of ABN Amro Mortgage Corporation,
Signed October 8. 1999
WHOLESALE LENDING AGREEMENT
This agreement is made this ______ day of ______, 2000
by and between ABN AMRO Mortgage Group, Inc., a Delaware
corporation of 000 X. Xxxxxxxxxx Xxxx., Xxx. 000, Xxx Xxxxx,
XX 00000 ("Buyer") and OneCap /s/ of Las Vegas, NV /s/
("Seller").
RECITALS:
A. Seller is in the business of originating, processing,
the applications for, and preparing and arranging the
closing of, residential estate mortgage loans.
B. Buyer, from time to time desires to purchase or fund
such mortgage loans and the related mortgage servicing
rights; and seller desires to deliver such mortgage loans
and the related mortgage servicing rights to Buyer.
Now, therefore, for good and valuable consideration,
the receipt of which is hereby acknowledged, Buyer and
Seller agree as follows:
ARTICLE I
1. DEFINITIONS
The following words and phrases, as used in this
Agreement shall have the following meanings:
a) "Borrower" shall mean the individuals who are obligated
to pay under the terms of the Mortgage Note.
b) "Commitment" shall mean that written correspondence
sent by Buyer to Seller which indicates Buyer agrees to fund
or purposes a specific Mortgage Loan if all the conditions
stated in the Commitment, this Agreement, the Manual and as
required by FHLMC or FNMA guidelines are met.
c) "Delivery Date" shall mean the date on or before which
a mortgage loan must be delivered to Buyer.
d) "FHMLC" shall mean The Federal Home Loan Mortgage
Corporation.
e) "FNMA" shall mean The Federal National Mortgage
Association.
f) "Manual" shall mean that certain Client Services Manual
as given to Seller by Buyer which contains the procedures,
terms, conditions and mortgage loan documents required for
the use by Buyer, as it may be amended from time to time.
g) "Mortgage" shall mean a mortgage or deed of trust or
the Mortgaged Property securing a Mortgage Loan.
h) "Mortgaged Property" shall mean a single family (or up
in one-to-four family) residence which is subject to the
Mortgage.
i) "Mortgage Loan" shall mean these loans evidenced by
Mortgage Notes, secured by the related Mortgages, together
with the associated servicing rights, the application of
which will be taken and processed by seller, and
underwritten by and purchased by Buyer, from time to time.
j) 'Mortgage Note" shall mean that certain promissory note
given by Borrower to Seller, as secured by the Mortgage.
k) "Mortgagor" shall mean the individuals who own the
Mortgaged Property and who executed the Mortgage.
l) "Rate Lock" shall mean that communication by and
between Buyer and Seller whereby Buyer agrees to fund or
purchases a Mortgage Loan at a particular interest rate
within a particular time period, and Seller aggress to
deliver a Mortgage Loan at that interest rate and with that
time period.
The definitions of other terms used in this Agreement,
or in any other document arising from this Agreement shall
be interpreted in accordance with FHLMC or FNMA definitions
and usages.
2. TERMS AND CONDITIONS OF SALE
a) At the request of Seller, and providing Seller complies
with the terms of this Agreement, and providing the proposed
or existing Mortgage Loan conforms with Buyer's then
applicable underwriting standards, Buyer may, in Buyer's
sole and absolute discretion issue a Commitment to fund or
purchase the Mortgage Loan. Notwithstanding anything in
this Agreement to the contrary, Buyer shall only be
obligated to fund or purchase a Mortgage Loan: 1) if a
Commitment to fund or purchase the Mortgage Loan was issued
by Buyer; ii) if Seller, and the Mortgage, strictly conform
with the terms of the Commitment and this Agreement; iii) if
the Mortgage Loan is salable to FHLMC, FNMA or a prudent
investor in the recognized secondary mortgage market, or ,
is underwritten by Buyer, conforms with all of Buyer's
underwriting requirement; and iv) if all document relating
to the Mortgage Loan are complete and acceptable to Buyer in
its sole and absolute discretion.
b) Seller shall submit to Buyer, as available, application
for, or other offerings of, Mortgage Loans, of the kinds and
types and containing such terms and conditions as Buyer may
from time to time prescribe. Upon Acceptance and approval
of any such application or offering. Buyer, in its sole
discretion, shall issue a Commitment to Seller for the
funding or purchase of the Mortgage loan stating where
applicable the interest rate, discount pointe, margin, loan
term, first interest rate, adjustment date, other terms and
conditions of the funding or purchase, and Delivery Date,
subject to which Buyer will hold the Mortgage Loan.
c) Seller shall present to buyer for its underwriting
review, property, and credit information as to the Mortgagor
and Mortgaged Property as specified in the Manual and in
FHMA and FHLMC guidelines. Mortgage loan Applications shall
be underwritten by Buyer in accordance with its program
specifications and current underwriting policies which
shall, from time to time, be communicated to Seller.
Decisions as to the acceptability of Mortgage Loans for
funding or purchase by Buyer shall be solely at the
discretion of Buyer. Buyer shall have no responsibility to
fund or purchase any Mortgage Loan until all underwriting
and closing conditions, as stated in the Commitment have
been met.
d) Seller shall use its best efforts to close each loan on
which a Commitment or Rate Lock has been issued. Seller
agrees that the mandatory delivery date as stated in the
Commitment or Rate Lock may only be extended by Buyer's
issuing a written amendment to the Commitment or Rate Lock.
Seller agrees that delivery of Mortgage Loans closed under a
commitment is mandatory. If Seller does not deliver a
Mortgage Loan upon which Buyer has issued a Rate Lock and
the Mortgage Loan actually closes, Buyer may require Seller
to pay and all losses, expenses and damages incurred by
Buyer as a result of non-delivery of the Mortgage Loan under
the terms committed in the Rate Lock.
e) Any Commitment issued by Buyer is voidable by Buyer if
Buyer believes, in good faith, that Seller breached any
material term or condition of this Agreement as to any
Mortgage Loan offered by Seller for funding or purchase, or
as to any Mortgage Loan actually purchased by Buyer from
Seller. Buyer may void such a Commitment by giving written
notice thereof to Seller at any time prior to payment for a
Mortgage Loan, which notice shall be effective upon mailing
or telefaxing.
3. REPRESENTATION AND WARRANTIES
Seller represent, warrants and agrees and, for each
Mortgage Loan to be funded or purchased by Buyer, Seller
shall be deemed to represent, warrant and agree; as of the
date of this Agreement and as of each subsequent date that
Buyer funds the purchase price for each Mortgage Loan, as
follows:
a) Seller is duly organized and existing in good standing
under the laws of the state of its incorporation.
b) Seller has all requisite power, authority and capacity
to enter into this Agreement and to perform all obligations
required of it hereunder and compliance with any of the
terms and conditions contained herein will not violate any
provisions of its documents of organization.
c) Either Seller or Buyer is the named mortgagee for all
loans purchased or funded under this Agreement.
d) Seller has materially performed and complied with all
covenants, and agreements contained in this Agreement.
e) Seller is the sole owner and holder of the loan and has
the authority to sell, transfer, and assign to Buyer each
Mortgage Loan, and further, shall have the right and
authority to sell, transfer and assign to Buyer any payments
owing thereunder and to assign to Buyer each Mortgage.
f) Seller has not made any prior sale, pledge, assignment
or hypothecation of any Mortgage Loan covered by this
Agreement, or any portion thereof, to any other person or
entity, which shall not be automatically released upon
Buyer's payment for the purchase of the Mortgage Loan.
g) The payment of any sums owing under any Mortgage Loan
is not contingent upon fulfillment of any conditions or
warranties, expressed or implied.
h) Seller does not know of any suit, action, arbitration,
or legal administrative or other proceeding pending or
threatened against Seller, Mortgagor, Borrower or the
Property which would affect its ability to perform its
obligations under this Agreement.
i) Each Mortgage Loan is valid and, to the best of
Seller's knowledge, secured by a valid first lien on the
Mortgaged Property and, the Mortgaged Property is free and
clear of all encumbrances and liens having priority over the
lien of each Mortgage Loan except for real estate taxes and
special assessments, not yet due and payable. A mortgage
title insurance policy on currently prescribed ALTA Forces
(or such other form approved in writing by Buyer and
acceptable to FNMA or FHLMC) will be furnished to Buyer and
will insure Buyer, its successors and assigns without
exceptions, as holding the first lien against the real
estate for the full amount of the Mortgage Loan. Seller or
an attorney acting in Seller's behalf, has obtained and
reviewed a commitment to insure the title and first lien on
the Mortgaged Property to assure that the warranty made in
this sub-paragraph (i) is true and to accurate.
j) Neither the Borrower not the mortgagor have any set-
offs, counter-claims or defenses to the Promissory note or
the Mortgage rising from the acts and/or omissions of Seller
in the origination of Mortgage Loan and to the best of
Seller's knowledge, all signatures on said Mortgage Note and
Mortgage are the true signatures of the Mortgagor and
Borrower as applicable.
k) All Mortgage Loans originated by Seller for
sale/assignment to Buyer are not usurious as of the date(s)
of origination of said Mortgage Loans.
l) The Mortgaged Property is covered by a valid paid-in
full policy of hazard insurance, covering at least the full
interest of the Mortgage which policy shall be assigned to
Buyer, with Buyer named as mortgagee and additional insured
on each such policy, in place of Seller, effective as of the
date of purchase by Buyer.
m) Seller has not: modified any Mortgage Loan in any
material respect; satisfied, canceled or subordinated any
Mortgage Loan in whole or in part; released the Mortgaged
Property in whole or in part from the lien of any Mortgage
Loan; or executed any instrument of release, cancellation,
modification or satisfaction of any Mortgage Loan.
n) Each Mortgage Loan is not 15 days or more delinquent
and there are no defaults in complying with the terms of any
Mortgage Loan, and, to the best of Seller's knowledge, all
taxes, governmental assessments, insurance premiums, water,
sewer and municipal charges relating to any loan or any
Mortgaged Property which previously became due and owing
have been paid, or an escrow of funds has been established
in an amount sufficient to pay for every such item which
remains unpaid. Seller has not advanced funds, or induced,
solicited or knowingly received any advance of funds by a
party other than the Borrower, directly or indirectly, for
the payment of any amount required by any Mortgage Loan,
except for interest securing from the date of the Mortgage
note or date of disbursement of the Mortgage Loan proceeds,
whichever is greater, to the day which precedes by one month
the due date of the first installment of principal and
interest.
o) All documents or instruments submitted by Seller in
connection with a Mortgage Loan are, in every respect, valid
and genuine, being what on their face they purport to be,
and all information (credit or otherwise) submitted in
connection with such Mortgage Loan packages is true and
accurate.
p) To the best of Seller's knowledge, there is no
proceeding pending for the total or partial condemnation of
any Mortgaged Property and the Mortgaged Property is free of
substantial damage (including) but not limited to any damage
by fire, windstorm or other casualty) and in good repair.
q) To the best of Seller's knowledge, all of the
improvements which are included for the purpose of
determining the appraised value of any Mortgaged Property
lie wholly within the boundaries and building restrictions
lines of such Mortgaged Property, and no improvements on
adjoining properties encroach upon the Mortgage Property.
Seller has obtained a mortgage title insurance policy issued
without standard exceptions.
r) Seller has no knowledge of any circumstances or
conditions with respect to any Mortgage Loan, Mortgaged
Property, the Borrower, the Mortgagor or Mortgagor's or
Borrower's credit standing that can be reasonably expected
to cause private institutional investors, FNMA, FHLMC, or
GNMA to regard the loan as an unacceptable investment cause
the Mortgage Loan to become delinquent or adversely effect
the value or marketability of the Mortgage Loan.
s) Seller has no knowledge that any improvement located on
or being part of the Mortgage Property is in violation of
any applicable zoning law or regulation.
t) If any Mortgage Loan is represented as being insured or
guaranteed or was required to be insured or guaranteed by
Buyer as a condition of the purchase in the Commitment,
pursuant to a contract with a mortgage insurance company.
Seller has complied with all applicable provisions of the
contract or mortgage insurance or guarantee and the
insurance or guarantee is in full force and effect.
u) Seller has made to the Mortgage or Borrower all
disclosures required by state and federal law in an accurate
and timely fashion each Mortgage Loan and the documentation
pertaining thereto comply and conform with all federal;
state and local laws and regulation applicable thereto
including, without limitation, the Equal Credit Opportunity
Act, Regulation S, Fair Credit Reporting Act, the Fair
Housing Act, the Real Estate Settlement and Procedure Act,
Regulation X, and the Federal Truth in Lending Act and
Regulation Z; the Flood Disaster Protection Act; the Fair
Credit Reporting Act; the Home Mortgage Disclosure Act; and
any application laws, rules or regulations issued by
HUD/FHA; VA; the Office of Thrift Supervision; the Office of
the Comptroller of the Currency and the Federal Deposit
insurance Corporation; and with all terms and conditions set
forth in the Commitment.
v) Seller has complied with all requirements of the
Federal Credit Opportunities Act ("Reg B"), including
issuing any denial letters required thereunder and gathering
government monitoring information.
w) All required reports have been filed with the Internal
Revenue Service as to discount points received by Seller
from the Borrower, or from the Seller of the property. The
Seller has obtained the correct tax payer ID number from
Borrower.
x) Seller has all applicable and required license and
registration required to do business and originate Mortgage
Loans in each state in which it is doing business. Copies
of such licenses and registration have been delivered to
Buyer.
y) To the best of Seller's knowledge, each Mortgage,
assignment, financing statement, if any, and any other
document required to be filed or recorded in a public office
perfect the lien of the Mortgage against third parties has
been duly and timely filed or recovered.
z) All escrow accounts pertaining to any Mortgage Loan are
maintained n accordance with the terms of the Mortgage and
related agreements and in accordance with applicable state
and federal laws. The full amount held in escrow has been
transferred to Buyer on the date the Mortgage Loan was
transferred to Buyer. No interest on escrow is required or
promise, "by contract" only unless required by state law.
The above warranties shall survive the execution of
this Agreement and shall inure to the benefit of Buyer, its
successors and signs Seller acknowledges that Buyer has
funded or purchased, and any transfers or purchaser, will
purchase, the Mortgage Loans in reliance upon the truth and
accuracy of each of the above warranties.
4. BUYER'S REPRESENTATIONS AND WARRANTIES
Buyer represents, and warrants that:
a) Buyer is a Delaware corporation, duly organized and
existing under the laws of the State of Delaware.
b) Buyer has all requisite power, authority and capacity
to enter into this Agreement and to perform all obligations
required if it hereunder and its compliance with the terms
and conditions contained herein will violate any provisions
of its documents of organization.
5. INDEMNIFICATION OF BUYER BY SELLER
a) Seller shall defend and indemnify Buyer and hold Buyer
harmless from any and all liability, claims, losses or other
damages, including loss or damage due to the unmarketability
of any loan and resulting from i) any negligent or
fraudulent act or omission of Seller or its agents or
employees; or ii) any material breach of any warranty or
representation contained herein; or iii) any material breach
of all term or condition of this Agreement; or iv) Seller's
use for any Mortgage Loan of any form or document not
provided or approved by Buyer; or any miscalculations and
other errors which result from Seller's independent
processing procedures and for its misuse or alteration of
any forms or documents provided by Buyer.
b) If Buyer suffers any liability, loss or damage, or if
any claim, action or proceeding shall be asserted or brought
against Buyer by reason of any such act or omission of
Seller, as stated in paragraph (a) above, Seller shall, upon
demand from Buyer, obtain, at its expense, representation by
legal counsel acceptable to Buyer to defend Buyer against
any such action and/or claim and shall pay all costs
incurred by Buyer in such defense.
6. REPURCHASE
c) Buyer, written notice to Seller, shall have the right
to require Seller to repurchase a Mortgage Loan for any of
the following reasons. i) if a representation or warranty
given by Seller all to a particular Mortgage Loan is
materially breached; ii) if there has been a material period
of time after the loan closing, the determination of which
is at Buyer's discretion; or iv) if Buyer discovers fraud in
the part of Seller or its agents or employees or Borrower or
Mortgagor or v) if FHLMC, FNMA or any other investor has
requested the repurchase of the Mortgage Loan because of any
of the breaches stated in paragraph i - iv herein.
d) At Buyer's option, Seller shall, within such reasonable
time frames as set by Buyer in the notice, be required, at
Seller's option, to either promptly cure such breach or
defeot (if curable) or repurchase the Mortgage Loan if the
defect is not cured within such period as FHLMC or FNMA
permit seller shall immediately repurchase the Loan. The
repurchase price shall be derived by multiplying the unpaid
balance of the Mortgage Loan as of the date of repurchase of
the Mortgage Loan by the purchase price (expressed as a
percentage of par) originally paid by the Buyer for such
Mortgage Loan by Seller and any charges incurred by or
properly payable to Buyer, including but not limited to, any
discount (calculated the same as above) paid by Buyer upon
sale, if any of the Mortgage Loan.
Upon any such repurchase of a Mortgage Loan by Seller,
Buyer shall endorse the Mortgage Note (without recourse) and
shall assign any security therefore (without recourse and in
recordable form) to Seller.
7. OTHER REMEDIES
In addition to the Indemnification and Right of
Repurchase set forth above, Buyer shall be entitled to any
other remedy otherwise available to Buyer at law or equity.
Buyer may also offset any sum due to Buyer from Seller
against sums due from Buyer to Seller.
8. INDEMNIFICATION OF SELLER BY BUYER
If Buyer materially breaches this Agreement, Seller may
recover damages from Buyer. Buyer agree to indemnify and
hold Seller harmless from and in respect to, any and all
losses, liabilities, costs and expenses which Seller may
incur in connection with or as a result of any material
breach of any covenant, representation or warranty made by
Buyer hereunder.
9. TERMINATION DEFAULT
a) Either party may terminate this Agreement at any
time without cause upon thirty (30) days prior written
notice. Termination shall not affect any outstanding
commitments to sell or purchase Mortgage Loans or limit
Seller's duties or obligations to Buyer under this Agreement
with respect to Mortgage Loans already purchased by Buyer.
b) If Seller materially fails to perform any of the
terms and conditions of this Agreement; or if Seller
materially breaches any of its representations or warranties
contained herein; or if Seller acts negligently or if fraud
is discovered as to any Mortgagor or Mortgage Loan, Buyer
may terminate this Agreement immediately, by giving written
notice to Seller (which notice may be sent via telefax).
Upon such termination for cause Buyer's obligation under any
existing Commitment shall terminate, although Buyer may
continue to honor any outstanding Commitments in its sole
discretion.
10. MISCELLANEOUS
a) This Agreement is not assignable or transferable by
Seller.
b) All notices require or desired to be given pursuant to
this Agreement shall be deemed sufficient if given in
writing delivered personally or sent be Certified Mail,
return receipt requested, postage prepaid addressed as
follows:
If to Buyer:
ABN AMRO Mortgage Group, Inc.
InterFirst Division
000 X. Xxxxxxxxxx Xxxx., Xxx. 000
Xxx Xxxxx, XX 00000
If to Seller:
______/s/OneCap______
__/s/ 0000 Xxxx Xxxxx Xxxxxx__
__/x/__Xxx Xxxxx, Xxxxxx 00000
The address to which notices are to be made may be changed
by the respective parties from time to time by providing
written notices thereof to the other party.
c) This Agreement and all instruments executed in
connection herewithin shall be construed according to the
laws of the State of Michigan. The parties hereto submit
themselves to the jurisdiction of the courts of the State of
Michigan. Any suit or action arising out of this Agreement
or any instrument executed in connection herewith may be
brought in the court of competent jurisdiction for the
County of Washtenaw, State of Michigan, or the Federal
District Court for the Eastern District of Michigan Southern
Division.
d) This Agreement may only be modified by means of written
amendment executed by each of the parties hereto, and shall
supersede any prior "Selling Agreement" or "Correspondent
Agreement" previously executed by the parties.
e) Seller agrees to supply Buyer, on an annual basis,
within 120 days after Seller's fiscal year and, financial
statements (including a balance sheet and profit and loss
statement) and, if required by Buyer, verification of its
fidelity bond and forgery and errors and omissions insurance
coverage.
f) In the event any provision contained in this Agreement
is illegal or unenforceable, this Agreement shall be
construed as if the illegal or unenforceable provision were
not a part of it.
g) Notwithstanding the use of a particular word or phrase,
or any other implication, it is expressly understood and
agreed that Seller, in every instance contemplated by this
Agreement is the Offeror making the offer to be accepted by
the Buyer, the Offeree, with the Commitment being the
evidence of acceptance.
h) Nothing contained herein shall be construed as creating
an agency relationship between Seller and Buyer, Seller is
expressed not authorized to act as the agent of Buyer with
respect to this Agreement or in any other capacity.
i) All representations, warranties, covenants, indemnities
and agreements to repurchase pertaining to each Mortgage
Loan purchase under this Agreement shall survive this
Agreement and remain in full force and effect until the
interest of Buyer and its successors and assigns in such
Mortgage Loan is terminated completely.
j) This agreement is made as of the date stated in the
first paragraph hereof.
"Buyer"
ABN AMRO Mortgage Group, Inc.
a
Delaware Corporation
By:_____/s/____
Its: __Vice President
"Seller"
___/s/___ OneCap
a ____/s/__ Nevada Corporation
By:_____/s/ Xxxxx Xxxxxxxx,
V.P.
Its:_____/s/__V.P.
