GREENPOINT MORTGAGE FUNDING, INC.
BROKER AGREEMENT
This Broker Agreement (the 'Agreement"), is entered into by and
between _______/s/_OneCap___, a /s/Nevada_ Corporation doing
business as /s/ OneCap ("Broker"), end GREENPOINT MORTGAGE
FUNDING, INC. a New York Corporation ("Lender").
RECITALS
A. The Parties hereto wish to establish a non-exclusive
relationship whereby Broker will submit applications for loans
to be secured by first or second priority liens against 1-4
family residential properties (the 'Loans") in Lender on behalf
or Broker's clients ("Borrowers") for, possible funding by
Lender.
B. The Parties desire to enter into this Broker Agreement
to set forth the terms of their relationship.
NOW THEREFORE, the Parties do hereby agree as follows:
AGREEMENT
1. NON-EXCLUSIVE AGREEMENT: Nothing contained herein shall
obligate Broker to submit all loan funding requests that it
brokers to Lender, it being understood that this shall be a
non-exclusive agreement. Nothing contained herein shall obligate
Lender to fund Loans submitted by Broker without Lender's prior
review and approval at Lender's sole discretion. Lender's
obtaining of a Loan Package (as defined below) from Broker does
n:
a. prohibit Lender from considering loan Application packages
from other sources,
b. obligate Lender to accept or consider other or future
packages from Broker,
c. establish an agency relationship with Broker.
2. GENERAL BROKER RESPONSIBILITY: With regard to Loans
submitted by Broker to Lender, Broker shall describe and
represent to a Borrower Lender's policies, procedures and pricing
only as set forth by Lender, Broker shall not advertise or in
tiny manner represent that it is employed by, an agent of,
representative of, or is in any way related to Lender. Broker
shall be responsible at Its own expense for the accurate
preparation and execution of a complete property and credit Loan
Application Package ("Loan Package") on each Loan request
submitted, under such programs, procedures, and fee schedules as
Lender periodically may establish, including but not limited to
those items listed below or as may be required by Lender in
conformance with Lender's policies and procedures as established
and as may be modified from time to time:
a. Loan application
b. Supporting credit information
c. Supporting verification of credit, employment, deposits, and
mortgage payment history
d. Copies or all government required disclosures
e. Original appraisal of the property to be financed plus all
supporting information necessary to substantiate Borrower's
qualification for the Loan
f. Such other credit, financial, and other information as
Lender may require.
Broker shall be solely responsible for any statements,
explanations, or claims made to Borrower about the terms of the
Loan, the approval process, or the status of the Borrower's loan
approval. The contents of all Loan Packages submitted to Lender
immediately shell become the property of Lender and Broker hereby
assigns all rights, title, and interest in the file (except for
Broker's right to receive an origination fee) to Lender. All
information contained in a Loan Package may be subject to
Lender's independent verification. Broker understands that, in
consideration of Lender funding Loans offered by Broker, Lender
relies on Broker's full cooperation, before and after the funding
of any Loan. Broker Agrees to fully assist Lender in obtaining
any information and documentation Lender deems necessary and to
otherwise cooperate fully with Lender to fulfill the purposes of
this Agreement.
3. LOAN APPROVAL: Loan approval shall be within Lender's sole
discretion. Broker shall not commit Lender to do anything or take
action without the prior written approval of Lender. Without
limiting the generality of the foregoing. Broker shall not
represent that Lender has approved or will approve any loan until
Broker is so informed by Lender In writing. All loan approvals
are conditional unless and until Borrower actually executes
escrow instructions presented to Borrower in order to close
escrow. It is also fully understood and agreed that Lender's
approval of the loan application is based upon submission by
Broker of true and accurate information in the Loan Package and
all supporting documentation, including but not limited to the
handwritten and typed Form 1003 and any and all appraisals. The
fact that final approval of the loan application is solely within
the discretion of the Lender shall not be used as a defense to a
claim that Broker has breached any part of this Agreement or that
Broker has submitted false or inaccurate information in the Loan
Package and supporting documentation, including but not limited
to the Form 1003, and any and all appraisals.
4. UNDERWRITING OF LOANS: Lender shall have the right, but not
the obligation, to underwrite any Loan submitted for funding
pursuant to this Agreement. However, the exercise of this right
by Lender shall not affect in any way Broker's obligations
hereunder, including, without limitation. Broker's repurchase
obligations under Section 15 hereof and Broker's indemnification
obligations under Section 13 hereof. Broker understands that
Lender routinely conducts quality control audits to re-verify
income/deposit information, credit documentation, and appraisals
submitted by Broker, Broker understands employment Is verbally
verified on all loan programs offered by Lender. Broker
understands that any discrepancies found by Lender during quality
control And verbal audits are grounds for immediate cancellation
of this Agreement and possible notification to applicable state
and governmental agencies, and are a breach of Section 11 below.
5. CLOSING OF LOANS: All Loans shall close in Lender's name or
in the name of an affiliate of Lender.
6. NOTIFICATION OF ACTION: Lender shall notify Broker by
telephone or facsimile transmission of the conditional approval
or rejection or each completed Loan Package. For cash Loan
conditionally approved by Lender, Lender shall fund the Loan
provided that all conditions precedent are satisfied and all
documentation as required by Lender is timely executed,
acknowledged, and returned to Lender.
7. AMOUNTS DUE TO BROKER:
a. Subject to Sections 7b, 7c, and 7d below, nothing shall be
owed to Broker by Lender an account of any proposed Loan which is
not closed and funded by Lender. Upon closing of any Loan with
respect to which Broker has submitted a Loan Package to Lender,
Lender shall remit to Broker an amount equal to the difference
between the points charged to the Borrowers and the wholesale
points which Lender indicates it will keep us stated in the Loan
Program Statement provided to Broker, except In the case or zero
point loans (i.e. with respect to which the Borrower pays no
points) in which case Lender shall remit to Broker the points
specified in the Loan Program Statement provided to Broker;
provided, however, that in any case, Lender shall deduct from
amounts to be remitted to Broker those fees and charges due to
Lender. Lender shall also remit to Broker such other
consideration as may be agreed from time to time between Broker
and Lender pursuant to a separate agreement.
b. In the event Lender receives conflicting instructions from
Broker and the Broker's broker of record us to who should receive
any monies due Broker under this Agreement, Lender shall escrow
such monies in an interest bearing trust account. Lender shall
release such monies and all interest accrued thereon upon the
execution and delivery of joint instructions from Broker and the
Broker's broker of record.
c. In the event that a Loan pays off due to Broker's
origination efforts within 120 days after funding and Lender has
paid Broker a premium, Broker shall then remit to Lender all of
the premium paid within 10 calendar days after Lender has sent
written notice to Broker. If Lender funds the refinance loan
within 120 days of funding no premium will be paid to Broker. If
Broker falls to remit said payment to Lender within said 10
calendar days, then Lender may reimburse itself for any payments
due from Broker out of loan fees from subsequent closings.
d. In the event of that Lender, at its opinion and sole
discretion, determines that Broker has breached any term of the
Agreement, Lender may withhold payment of funds due to Broker for
any Loan that Lender is funding or is about to fund and for which
the amounts due to Broker under this Section 7 not yet been paid.
Such funds will be placed in a separate Trust Account until such
time as Lender and Broker have settled Lender's claim that Broker
has breached this Agreement.
8. FAILURE TO SUPPLY A COMPLETE LOAN PACKAGE: In the event
that Broker or Borrower fail to supply to Lender any
documentation required or requested with respect to any Loan,
Lender shall have the option, at its sole and absolute
discretion, to:
a. commit to make the Loan on the basis of the documentation
provided:
b. commit to make the Loan subject to delivery by Borrower or
Broker to Lender of such documentation as Lender specifies in
writing at the time such commitment is made; or
c. reject the Loan.
9. USE OF APPROVED VENDORS: in connection with the preparation
or submission of any Loan Package, Broker shall not utilize any
real estate appraiser, credit reporting agency, or other vendor
that is not acceptable to Lender, In the event that Broker shall
submit a Loan Package including information or reports from a
person or entity not acceptable to Lender, Lender may reject or
accept the Loan Package in 8CCOTdancc with Section 8 above.
10. AUTHORlZATION TO OBTAIN BUSINESS CREDIT REPORT: Broker
authorizes Lender to obtain a business and individual credit
report with respect to Broker upon mutual execution of this
Agreement and from time to time thereafter as deemed necessary or
appropriate by Lender. Broker acknowledges and agrees that in the
course of its business, Lender conducts quality control audits of
Loan Packages. Lender shall have the right to review during
Broker's normal business hours the files of Broker related to
Loan Packages submitted to Lender.
11. BROKER'S WARRANTIES: Broker represents and warrants to
Lender, (i) as of the time any Loan Package is submitted to
Lender, and (ii) as of the time the Loan is funded and closed,
that:
a. No Untrue Statements: Broker shall not submit In any Loan
Package any false, fraudulent, inaccurate, or erroneous
information or statements, or omit any material facts necessary
to make any statement or information included in the Loan Package
true, accurate, and understandable. For purposes of this
warranty, the term "submit" shall mean (i) submitting a Loan
Package to Lender with false, fraudulent, inaccurate, or
erroneous information regardless of Broker's actual or prior
knowledge of such false, fraudulent, inaccurate, or erroneous
information; or (ii) submitting a Loan Package to Lender with
false, fraudulent, inaccurate, or erroneous information after
failing to follow standard practices and procedures prevalent in
the mortgage banking industry; or (iii) submitting a Loan Package
to Lender containing an appraisal that contains false,
fraudulent, inaccurate, or erroneous information where such
Information was or should have been within the knowledge or
control of appraiser; or (iv) submitting a Loan Package to Lender
where the Broker has a "non arms-length" business, financial, or
personal affiliation with, or financial interest in, the
appraiser.
b. Absence of Claims: Except as previously disclosed by Broker
to Lender in writing. there is not pending or to the best or
Broker's knowledge, threatened any suit, action, arbitration, or
legal, administrative, or other proceeding or governmental
investigation (including an allegation of fraud by another
Lender) against Broker or its current or former owners, agents,
or employees which could have a material adverse effect an the
Broker's business. assets, financial condition, operations, or
reputation.
c. Contra of Documents: Except where Borrower has been asked to
submit any loan documents directly to Broker, no Borrower shall
have had in its direct or indirect possession or control any
completed credit, income, employment, or deposit verification
document submitted to Lender with respect to any Loan.
d. Duly Licensed: Broker possesses all necessary licenses,
permits, and authority to engage in the activities contemplated
by [his Agreement. If applicable, Broker's license number and its
expiration date appear below.
e. Ownership: Except as otherwise disclosed to Lender in
writing before the submission of any Loan Package, Broker shall
have no direct or Indirect ownership interest or financial
interest in any property serving as security for the Loan, or in
any title company, escrow company, or notary providing settlement
services an a Loan. Broker shall not have any financial interest,
whether evidenced by ownership or debt, in any property serving
its security for the Loan at any time prior to funding of the
Latin by Lender except with prior written approval by Lender, or
in the Seller of the property in the case of loans sought by
Borrowers who are buying the property.
f. Compliance with Laws: With respect to each Loan submitted by
Broker and funded by Lender, Broker has complied with all laws
and regulations applicable to it as a mortgage broker, and as a
Loan correspondent under HUD regulations, including but not
limited to the Real Estate Settlement Procedures Act, the Fair
Credit Reporting Act, the Equal Credit Opportunity Act, the Truth
In Lending Act, and all other applicable local, state, and
Federal laws and regulations.
g. Authority This Agreement and all actions provided for herein
have been duly authorized by Broker's Board Of Directors, if
Broker is a corporation, or by such individual or individuals
empowered and authorized to enter into agreements on behalf of
Broker. Broker shall provide Lender with evidence reasonably
satisfactory to Lender of such authorization. The performance of
Broker's duties under this Agreement will not violate the
provisions of Brokers organizational documents, any agreement to
which it may be a party, or tiny court order, judgment, or decree
to which it may be subject.
h. Valid Documents: All documents submitted to Lender 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 each such a Loan package is true and
accurate.
i. Sale of Loans: Broker has no knowledge of any circumstances
or conditions with respect to any Loan, mortgaged property,
mortgage or mortgagor's credit standing that can be reasonably
expected to cause any governmental, quasi-governmental, or
private institutional investors to regard any Loan as an
unacceptable investment, cause any Loan to become delinquent, or
adversely affect the value of the security or marketability of
the Loan.
12. STATUS OF BROKER: Nothing in this Agreement shall be
construed as making the Broker a joint venturer, partner,
representative, employee, or agent of Lender. Broker shall not
hold itself out as such, nor shall it use Lender's name in any
advertising without Lender's expressed prior written consent.
Broker is an independent contractor, and Broker shall determine
the method, details, and means of performing all services
described in this Agreement.
13. BROKERS INDEMNIFICATION: Broker shall Indemnity, defend, and
hold Lender and its shareholders, directors, officers, agents,
employees, successors, and assigns harmless from and against, and
shall reimburse the same with respect to any and all loss,
damage, liability, costs, and expenses, including reasonable
attorneys' fees (including the allocated cost of in-house
counsel), from any cause whatsoever, including but not limited
to:
a. any breach of any representation or warranty
contained in Section 11 above;
b. Broker's failure to perform any obligation set forth
in this Agreement; or
c. any claim by a Borrower resulting from Lender's
failure or refusal to fund a Loan (collectively, a Loss").
Without limiting the generality of the foregoing, Lender's right
to indemnification from Broker shall extend to all repurchase or
indemnification demands by any third party to which Lender has
sold any Loan originally submitted to Lender by Broker. Broker's
obligation to indemnify Lender under this Agreement shall arise
(i) upon Lender's notification to Broker that a Loss has occurred
or (ii) automatically upon Lender's receipt of a Loan repurchase
demand from a secondary market investor which Lender determines
in its sole and absolute discretion to be enforceable, even if
Lender has not incurred any Loss with respect to such Loan.
14. LENDERS RIGHTS: Broker's obligation to fully indemnify
Lender under this Agreement shall not be affected by Lender's
taking any of the following actions with or without notice to
Broker:
a. Entering into a modification or forbearance agreement with
Borrower;
b. Liquidation, repayment, retirement, or sale or resale of any
Loan;
c. Foreclosure of any Loan, including without Iimitation
Lender's acquisition of the property securing a Loan by making a
full credit bid at such foreclosure sale; or
d. Sale or resale of the property securing any Loan
15. REPURCHASE AGREEMENT: In the event of a breach of any
warranty or representation contained in Section 11 by Broker, or
in the event of a repurchase or indemnification demand from a
secondary market investor which Lender determines in its sole and
absolute discretion to be enforceable, even if Lender has not
incurred any Loss with respect to such Loan, and the Loan in
question is closed and funded by Lender, Broker agrees to either:
(i) repurchase such a Loan immediately upon written demand
therefore, for the repurchase amount set forth in Section 16
hereof, (ii) refinance the Loan at par plus accrued interest and
pay any loss, costs, or damages incurred by Lender, or (iii)
indemnify Lender Pursuant to Section 13. Broker agrees that any
breach of this Section 15 may not be adequately compensable in
damages alone. Therefore, Broker agrees that, in the event of any
breach of Section 15, Lender shall, without limitation, be
entitled to seek and obtain equitable relief by way of specific
performance or otherwise to enforce Broker's repurchase or
indemnification obligation hereunder,
16. REPURCHASE AMOUNT: A repurchase pursuant to Section 15
hereof shall be priced as follows:
a. The original principal amount of the Loan, less principal
reductions received by Lender; plus
b. All interest accrued but unpaid on the principal balance of
the Loan from the date of funding by Lender through and including
the first day of the month following the month the repurchase is
made; plus
c. All costs and expenses Incurred by Lender In connection with
origination, processing, funding, and servicing of the Loan; plus
d. All costs and expenses incurred by Lender in enforcing
Broker's obligation to repurchase such a Loan, including, without
limitation, reasonable attorneys' fees (including the allocated
cost of in-house counsel) and costs of suit,
17. TERMINATION OF AGREEMENT: Either party may terminate this
Agreement at any time, upon written notice to the other party;
provided, however, that any termination of the Agreement shall
not affect:
a. Lender's obligation to pay any amounts due Broker under this
Agreement, or
b. The obligation of Broker with respect to Loans funded by
Lender pursuant to this Agreement, including, without limitation,
the obligation of Broker to indemnify and hold Lender harmless
from and against any Loss pursuant to Section 13 hereof, and to
repurchase a Loan or indemnify Lender pursuant to Section 15
hereof.
18. NOTICE OF CERTAIN MATTERS: Broker hereby covenants and
agrees with Lender that Broker shall promptly give written notice
to Lender of
a. The occurrence of any breach of a representation or warranty
as set forth in Section11 hereof;
b. Any litigation or proceeding affecting Broker involving (i)
amounts in the case of any such individual litigation,
investigation, or proceeding in excess of One Thousand Dollars
($1,000), or (ii) which, regardless of the amount in controversy,
if adversely determined, could have a material adverse effect on
the business, operations, property, or financial or other
condition of Broker or on the ability of Broker to perform its
obligations hereunder;
c. Receipt by Broker of notice from any agency concerning
revocation, or any other adverse action or potential action
relating to any of Brokers licenses to conduct Its business;
d. A materiel adverse change in the business, operations,
property, or financial, or other condition of Broker; or
e. Any change in (i) the ownership structure of Broker; (ii)
the Broker's broker of record for licensing purposes; or (iii)
Broker's name, address, or employer tax identification number.
19. MISCELLANEOUS:
a. Governing Law This Agreement is entered into at the City of
Larkspur, California, and shall be governed by the laws or the
State of California.
b. Notices: All notices required hereunder shall be in writing
and shall be deemed to have been given, made, and received only
(i) upon delivery, if personally delivered to a party: (ii) one
(1) business day after the date of deposit, if by nationally
recognized courier service offering guaranteed overnight
delivery; or (iv) three (3) business days after deposit in the
United Stores first class mail, certified mail, postage prepaid,
return receipt requested, at the addresses appearing below.
c. Attorneys' Fees: If any legal action or other proceeding is
brought for the enforcement of any provision of this Agreement,
or because of an alleged dispute, breach, default, or
misrepresentation in connection with any of the provisions of the
Agreement, the prevailing party or parties shall be entitled to
reasonable attorneys' fees (including the allocated cost of
in-house counsel) and other costs incurred in that action or
proceeding. In addition to any other relief to which it of they
may be entitled. In addition, any such suit or proceeding shall
be brought only in the state courts located in Marin County,
State of California, which courts shall have sole and exclusive
in personam, subject matter, and other jurisdiction in connection
with such suit or proceedings, and venue shall be appropriate for
all purposes in such courts.
d. No Assignment Broker may not assign this Agreement.
e. Entire Agreement, Amendment: This Agreement constitutes the
entire agreement between the parties and supersedes all prior and
contemporaneous agreements, representations, and understandings.
No supplement, modification, or amendment shall be binding unless
executed in writing by and agreed to by both panics hereto. This
Agreement applies to all present and future Loans, as well as
those Loans previously submitted to or closed by Lender.
f. Waivers and Remedies: Failure or delay to audit any Loan or
to exercise any right shall not act as a waiver of any other
right, nor shall any single or partial exercise or any right
preclude any other or further exercise thereof. No waiver of any
of the provisions of this Agreement shall be deemed, or shall
constitute, a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver, No
waiver shall be binding unless executed in writing by the party
making the waiver. All remedies shall be cumulative and
non-exclusive.
g. Partial Invalidity If any provision of this Agreement is
held to be invalid, void, or unenforceable the remaining
provisions shall nevertheless continue in full force and effect.
h. Arbitration: Solely at Lender's discretion, Lender may
require that all disputes, controversies, or differences between
the parties arising out of or related to this Agreement shall be
resolved through binding arbitration. If Lender elects not to use
arbitration, or if a court of competent jurisdiction rules that
Lender's option under this part of the Agreement is invalid, the
parties hereto agree that the provisions of Section 19c shall
control as to the jurisdiction and venue of any legal action
concerning this Agreement. If Lender requires an arbitration to
resolve any disputes, controversy, or differences between the
parties arising out of or related to this agreement, the
arbitration shall occur in San Francisco, California. Arbitration
shall be conducted by a single arbitrator in accordance with the
then-current commercial arbitration rules and supplementary
procedures for commercial arbitration of the American Arbitration
Association ("AAA"). Any discovery shall be conducted in
accordance with laws of the State of California. The arbitrator
shall be selected by the mutual agreement of the parties, or
failing such agreement, shall be selected according to AAA rules.
Judgment upon any arbitrator's may be entered in any court of
competent jurisdiction. The parties hereby consent to such
court's jurisdiction.
i. Insurance: Upon the request of Lender, Broker shall, at its
sole cost and expense obtain such miscellaneous professional
liability or errors and omissions insurance in such amounts and
with such companies as Lender may request, Said insurance; shall
name Lender as an additional insured and shall provide Lender
with thirty (30) days prior written notice of cancellation or
termination.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of this /s/1st day of /s/ March
(month), /s/ 2000 (year).
BROKER LENDER:
NAME:/s/ OneCap GRE ENPOINT MORTGAGE FUNDING,
INC.
0000 Xxxxxxxx Xxxxxxx Xxxxxx #
000
Xxxxxxxx, XX 00000
dba:
Address:1025 Xxxx Xxxxx Xxx. #0
/x/
Xxx Xxxxx, XX 00000 /s/
Telephone:000-000-0000
Telephone:_0000000000 /s/
License Number: MB 00344 /s/
Expiration Date: 6/31/00 /s/
By:/s/ Xxxxx Xxxxxxxx B y:/s/
/s/ Xxxxx Xxxxxxxx
(Print Name) (Print Name)
/s/ Vice President /s/ VP
(Title) (Title)
By: /s/
Authorized Broker of Record
/s/ Xxxxx Xxxxxxxx
(Print Name)
