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EXHIBIT 10.17
CONVENTIONAL LOAN PURCHASE AGREEMENT
This Purchase Agreement dated as of July 1, 1998, by and between
CRESTAR MORTGAGE CORPORATION, a Virginia corporation with its principal office
at 000 Xxxxxx Xxxxxx, Xxxxxxxx, XX 00000, ("Purchaser"), and E. LOAN, Inc., a
California corporation with its principal office at 0000 Xxxxxxx Xxxxxxx # 000
Xxxxxx, XX 00000 ("Seller"), provides as follows:
Section 1. RECITALS. Seller desires to originate and sell to Purchaser
on a servicing released basis certain conventional residential Mortgage Loans as
set forth in the Manual, defined below, provided to Seller by Purchaser.
Purchaser and Seller desire to set forth in this Agreement the terms and
conditions under which Mortgage Loans originated by Seller will be purchased by
Purchaser, in consideration of the mutual promises and covenants contained
herein, Seller agrees to sell Mortgage Loans to Purchaser and Purchaser agrees
to purchase Mortgage Loans from Seller, all subject to the following terms and
conditions of this Agreement.
Section 2. DEFINITIONS. As used herein, the term:
Section 2.1. "BORROWER" means the Individual(s) obligated to
repay a Mortgage Loan.
Section 2.2. "BUSINESS DAY" means any day on which Purchaser
is open to the public for business, Purchaser is normally open to the public for
business on any day other than (i) a Saturday or Sunday or (ii) New Year's Day,
Xxxxxx Xxxxxx Xxxx Day, President's Day, Memorial Day, Independence Day, Labor
Day, Columbus Day, Veterans Day, Thanksgiving Day and Christmas Day.
Section 2.3. "CLOSING" means the time when a Borrower signs a
Note evidencing a Mortgage Loan and the Mortgage securing payment of such Note.
Section 2.4. "CLOSING PACKAGE" shall have the same meaning as
defined in the Manual.
Section 2.5. "CONFORMING" means that the Loan Amount of a
Mortgage Loan is within FHLMC/FNMA Requirements.
Section 2.6. "CONSUMER DISCLOSURES" means all disclosures or
notices required, or customarily used by residential mortgage lenders, to comply
with all applicable federal, state and local laws and regulations applying to
consumer credit transactions Involving loans secured by residential real estate,
including, without limitation, the Truth-In-Lending Act, the Real Estate
Settlement Procedures Act, the Equal Credit Opportunity Act, and the Fair Credit
Reporting Act.
Section 2.7. "CREDIT PACKAGE" shall have the same meaning as
defined in the Manual.
Section 2.8. "DELINQUENT" means that all or any part of the
monthly installment of principal and interest due on a Note is unpaid after the
due date set forth in the Note or that Escrows or other amounts required by the
Mortgage to be paid have not been paid.
Section 2.9. "ESCROWS" means all funds collected from the
Borrower to pay expenses required to be paid pursuant to the Mortgage,
including, without limitation, hazard Insurance premiums, mortgage insurance
premiums, taxes, special assessments, ground rents, water, sewer and other
governmental charges that, if not paid, may result in liens on the Secured
Property with priority over the Mortgage Loan.
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Section 2.10. "FALLOUT LOAN" means a Mortgage Loan subject to
a Lock-In which cannot be delivered according to the terms of the Lock-In,
including, without limitation, (i) a Mortgage Loan which never reaches Closing
due to Seller's denial of the Borrower's loan application or the Borrower's
withdrawal of the loan application, or (ii) a Mortgage Loan which cannot be
delivered under the terms of the Lock-In because of a change in the type of loan
requested by the Borrower, or (iii) a Mortgage Loan which Purchaser for any
reason declines to purchase.
Section 2.11. "FHLMC" means the Federal Home Loan Mortgage
Corporation.
Section 2.12. "FNMA" means the Federal National Mortgage
Association.
Section 2.13. "FHLMC/FNMA REQUIREMENTS" mean the requirements,
representations and warranties established from time to time by FHLMC and FNMA
as set forth in the FHLMC Sellers' and Servicers" Guide, the FNMA Selling Guide
or the FNMA Servicing Guide.
Section 2.14. "LOAN AMOUNT" means the principal amount of a
Mortgage Loan at the time of Closing.
Section 2.15. "LOCK-IN" means an agreement between Seller and
Purchaser establishing the price and terms for the purchase of a Mortgage Loan.
Section 2.16. "MANUAL" means the manual provided to Seller by
Purchaser, as the same may be amended and updated from time to time by
Purchaser.
Section 2.17. "MORTGAGE" means the security instrument
securing a Mortgage Loan with real property, Including, without limitation, a
mortgage, a deed of trust, a deed to secure debt, a security deed or any other
security instrument.
Section 2.18. "MORTGAGE LOAN" means any eligible conventional
Mortgage Loan product as set forth in the Manual and meeting all the
requirements of Section 4 of this Agreement. The term Mortgage Loan encompasses
all of the Seller's right, title and interest in and to the Mortgage Loan,
including, without limitation, the servicing rights, all Escrows, the Note, the
Mortgage, all applicable insurance policies and all other documentation and
Information collected by Seller in connection with the Mortgage Loan.
Section 2.19. "NON-CONFORMING" means the Loan Amount of the
Mortgage Loan exceeds FHLMC/FNMA Requirements.
Section 2.20. "NOTE" means the written Instrument evidencing
the Borrower's promise to repay the Loan Amount, plus interest, of the Mortgage
Loan.
Section 2.21. "POST CLOSING DOCUMENTS" shall have the same
meaning as defined in the Manual.
Section 2.22. "PURCHASE DATE" means the date on which the
Purchaser remits funds to Seller or to Seller's warehouse lender for the
purchase of a Mortgage Loan.
Section 2.23. "PURCHASE PRICE" means the price paid by
Purchaser for a Mortgage Loan exclusive of any Servicing-Release Premium.
Section 2.24. "SECURED PROPERTY" means the land and
improvements thereon subject to the lien of the Mortgage securing a Mortgage
Loan.
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Section 2.25. "SERVICING RELEASE PREMIUM" means the amount in
addition to the Purchase Price that Purchaser pays, if any, to obtain a Mortgage
Loan without reservation by Seller of the servicing right for such Mortgage
Loan.
Section 3. GENERAL. This Agreement sets forth the conditions
and procedures under which Seller will sell Mortgage Loans to Purchaser and
Purchaser will purchase Mortgage Loans from Seller. No obligation is created by
this Agreement for Seller to sell or Purchaser to purchase a particular amount
of Mortgage Loans or any particular Mortgage Loan.
Section 4. MORTGAGE LOANS ELIGIBLE FOR PURCHASE. A Mortgage
Loan must meet the following criteria to be eligible for purchase by Purchaser
pursuant to this Agreement:
Section 4.1. ELIGIBLE PROPERTY AND LIEN STATUS. A Mortgage
Loan must be secured by a first priority lien Mortgage on a one-to-four family
residential dwelling located in a state or jurisdiction in the United States
approved by Purchaser, as set forth in the Manual.
Section 4.2. PURCHASE OF LOANS ORIGINATED BY A PARTY OTHER
THAN SELLER. Purchaser shall have no obligation to purchase a Mortgage Loan
originated by a person other than Seller. For purposes of this Section 4.2,
origination by a person other than Seller shall mean that any or all of the
following conditions, as applicable, exist: (i) the loan application was taken
by, or (ii) documents evidencing the credit-worthiness of the Mortgage Loan were
collected by, or (iii) the appraisal of the Secured Property was obtained by, or
(iv) the Mortgage Loan was closed by and/or in the name of a person other than
Seller or other than a person in the direct and principal employment of Seller
or other than a settlement agent acting on behalf of Seller. Notwithstanding the
foregoing, for purposes of this paragraph Section 4.2, loan applications
transferred from another lender to Seller for the convenience of the borrower
and not as part of any business arrangement between the lender and Seller shall
not be considered by Purchaser to be an origination by a person other than
Seller.
Section 4.3. UNDERWRITING GUIDELINES. Each Mortgage Loan
purchased by Purchaser pursuant to this Agreement must conform to Purchaser's
underwriting guidelines as set forth in the Manual as of the date the Credit
Package is received by Purchaser or by Purchaser's designated underwriter.
Section 4.4. SUBJECT TO LOCK-IN. Each Mortgage Loan purchased
by Purchaser pursuant to this Agreement must be subject to a Lock-In no later
than one Business Day prior to delivery of the Mortgage Loan to Purchaser.
Section 5. TERMS OF LOCK-IN.
Section 5.1. LOCK-IN OF PURCHASE TERMS. Seller must obtain
from Purchaser a Lock-In for each Mortgage Loan to be offered for sale to
Purchaser not later than one Business Day prior to delivery of the Mortgage Loan
to Purchaser. The Lock-In shall establish the agreement of Seller to sell and
Purchaser to purchase a particular Mortgage Loan subject to the terms and
conditions of this Agreement and the Manual. Each Lock-In must relate to a
particular Mortgage Loan. Seller may obtain a Lock-In of the Purchase Price and
purchase terms for a particular Mortgage Loan according to procedures described
in the Manual. Each Lock-In will have a stated expiration date. In addition to
the purchase terms established by the Lock-In, Purchaser may charge to Seller
fees in connection with the purchase or underwriting of Mortgage Loans,
including without limitation underwriting and funding fees as set forth in the
Manual.
Section 5.2. TIME WHEN LOCK-IN PRICES ARE ESTABLISHED.
Purchaser will establish each Business Day, the Purchase Price and
Servicing-Release Premium it will pay for Mortgage Loans and will communicate
such information to Seller in the time and manner set forth in the Manual.
Section 5.3. CONFIRMATION OF LOCK-IN. Purchaser will confirm
any Lock-In in writing according to procedures described in the Manual.
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Section 5.4. CLOSING OF MORTGAGE LOAN SUBJECT TO A LOCK-IN.
Seller agrees to close and deliver the Mortgage Loan on or before the expiration
of a Lock-In. If the Mortgage Loan is not closed and delivered on or before the
expiration of the Lock-In, the Mortgage Loan shall be subject to repricing as
described in the Manual.
Section 5.5. DELIVERY OF MORTGAGE LOAN SUBJECT TO A LOCK-IN.
Seller agrees to deliver the Mortgage Loan to Purchaser for purchase within
fifteen calendar days after its Closing. If such delivery is not made, the
Mortgage Loan shall be subject to repricing as described in the Manual.
Section 5.6. BEST EFFORTS LOCK-INS AND MANDATORY LOCK-INS.
Purchaser may offer either "best efforts" Lock-Ins or "mandatory" Lock-Ins, or
both. The terms of best efforts Lock-Ins include: (1) Seller will use its best
efforts to close the Mortgage Loan according to the terms of the Lock-In, (2) if
the Borrower changes the type of Mortgage Loan requested with the result that
the terms of the Mortgage Loan no longer agree with the terms of the Lock-In,
Seller will notify Purchaser in accordance with the procedures in the Manual and
the Lock-In price may be changed at Purchaser's discretion, and (3) after
Closing, the Mortgage Loan is required to be delivered to Purchaser. Seller must
notify Purchaser of any Mortgage Loan subject to a Lock-In that does not reach
Closing in accordance with the procedures with the Manual. Purchaser reserves
the right to verify with the Borrower or by other means that the Mortgage Loan
did not reach Closing. If Seller fails to deliver to Purchaser after Closing a
Mortgage Loan subject to a best efforts Lock-In, such failure constitutes an
Event of Default under this Agreement and, notwithstanding any other remedies
set forth in Section 13 of this Agreement, Purchaser in its sole discretion may
assess a pair-off fee as described and calculated in accordance with the
provisions of the Manual. If the Lock-In is designated as a mandatory Lock-In,
Seller must deliver the Mortgage Loan to Purchaser or pay Purchaser a pair-off
fee, as described and calculated in accordance with the provisions of the
Manual, regardless of whether or not the Mortgage Loan closes.
Section 5.7. FALLOUT LOANS.
a. NOTIFICATION. Seller shall notify Purchaser
immediately in accordance with the procedures in the Manual of any Mortgage Loan
which is a Fallout Loan. Such Notification must include the reason the Mortgage
Loan became a Fallout Loan, documented in accordance with the Manual.
b. MONITORING THE AMOUNT OF FALLOUT LOANS. Purchaser
shall evaluate Seller's performance in managing Fallout Loans according to
parameters described in the Manual. Seller's failure to manage Fallout Loans
effectively may cause Purchaser to terminate this Agreement pursuant to 17
below.
Section 6. APPROVAL OF MORTGAGE LOANS.
Section 6.1. SUBMISSION OF CREDIT PACKAGE. Prior to closing a
Mortgage Loan, Seller shall submit to Purchaser or Purchaser's designated
underwriter the Credit Package for such Mortgage Loan as described and defined
in the Manual. Seller agrees to pay an underwriter fee as set forth in the
Manual for each conforming Mortgage Loan purchased and for each non-conforming
Mortgage Loan submitted to Purchaser for review. Underwriting fees will be
deducted from the funding on conforming and non-conforming Mortgage Loans. The
FHLMC/FNMA Requirements and the requirements of the Manual applicable to credit
and appraisal standards in effect as of the date a Credit Package is received by
Purchaser shall apply to the related Mortgage Loan.
Section 6.2. NOTIFICATION OF APPROVAL DECISION. Purchaser will
use its best efforts to review and notify Seller of its purchase decision within
two Business Days, but in no event later than five Business Days, after
receiving the Credit Package for a Conforming Mortgage Loan. For Non-conforming
Mortgage Loans, the underwriting may be performed by a mortgage insurance
company or Investor designated by Purchaser and that company's policy concerning
turnaround time shall apply. If the Credit Package is incomplete, Purchaser or
Purchaser's designated underwriter shall notify Seller of the missing
documentation, and Purchaser shall have no obligation to make a purchase
decision on the Mortgage Loan until such documentation is received.
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Section 6.3. ISSUANCE OF UNDERWRITER'S APPROVAL. Upon approval
of a Credit Package for purchase, Purchaser shall issue to Seller a notification
that the Mortgage Loan has been approved (the "Underwriter's Approval"), stating
the conditions upon which purchase shall be made. The Lock-In, rather than the
Underwriter's Approval, shall establish the Purchase Price for the Mortgage
Loan. Unless an Underwriter's Approval has been issued with respect to a Credit
Package, Purchaser shall have no obligations under this Agreement to purchase
the related Mortgage Loan. The purchase will be subject to the conditions set
forth in the Underwriter's Approval, the Lock-In, the Manual and this Agreement.
Each Underwriter's Approval shall state an expiration date. If Seller does not
close a Mortgage Loan on or before such expiration date, Seller shall resubmit
to Purchaser the Credit Package along with such updated information as may be
required by Purchaser for reapproval and issuance of a new Underwriter's
Approval.
Section 6.4. RETENTION OF CREDIT PACKAGE. If an Underwriter's
Approval has been issued, Purchaser will retain the Credit Package pending
Closing and purchase of the Mortgage Loan unless alternative arrangements are
agreed to by Purchaser and Seller.
Section 7. CLOSING OF MORTGAGE LOANS.
Section 7.1. CLOSING A MORTGAGE LOAN SUBJECT TO A LOCK-IN.
Seller agrees to notify Purchaser of the Closing not later than one Business Day
after the Closing of any Mortgage Loan subject to a Lock-In. Seller agrees not
to close any Mortgage Loan subject to a Lock-In unless Purchaser has issued an
Underwriter's Approval which is in effect at the Closing.
Section 7.2. TRANSMITTAL OF CLOSING PACKAGE TO PURCHASER.
Within fifteen calendar days after the Closing of a Mortgage Loan, Seller shall
provide to Purchaser the Closing Package as described and defined in the Manual.
Seller agrees to do all acts necessary to transfer ownership of Mortgage Loan to
Purchaser and shall assign and deliver the Closing Package to Purchaser with
respect to the purchase of each Mortgage Loan, subject to the approval of
Purchaser as to proper form, content and execution of all documents related to
the Mortgage Loan. Purchaser shall use its best efforts to notify Seller within
two Business Days, but in no event in more than five Business Days, if the
Closing Package complies with Purchaser's requirements. The Closing Package will
not be satisfactory if (i) it does not satisfy the terms and conditions of the
Underwriter's Approval, the Lock-In, the Manual and this Agreement, or (ii) it
contains one or more errors or is incomplete. If Purchaser determines that a
Closing Package is not satisfactory due to an error or an omission that can be
corrected, Purchaser shall grant to Seller an additional period of five Business
Days, starting on the date that Purchaser notifies Seller of an unsatisfactory
Mortgage Loan or starting fifteen calendar days After Closing, whichever occurs
later, to correct any defect. If Seller corrects the defect within such five
Business Day period, Purchaser shall purchase the Mortgage Loan in accordance
with the Lock-In terms. If the defect is corrected after this time period,
Purchaser shall have the option to establish a new Purchase Price for the
Mortgage Loan.
Section 7.3. ORIGINAL NOTE. If a copy of the Note was provided
to Purchaser with the Closing Package, Seller agrees to deliver the original
Note, properly endorsed, to Purchaser prior to the Purchase Date.
Section 7.4. PURCHASE FUNDS. In the event Purchaser determines
that a Mortgage Loan is acceptable for purchase, Purchaser shall transmit the
purchase funds for the Mortgage Loan within five Business Days after receiving
the Closing Package for such Mortgage Loan, provided, however, if the Note is
received by Purchaser five or more Business Days after receipt of the Closing
Package, Purchaser shall have two Business Days after receipt of the Note in
which to transmit the purchase funds. The purchase funds will be transmitted net
of any amounts due Purchaser in connection with such purchase, including,
without limitation, all funds held in Escrow. Any funds due Seller by Purchaser
in connection with such purchase, including, without limitation, per diem
interest and any Servicing-Release Premium that may be owed, will be added to
the purchase funds transmitted to Seller on the Purchase date. Purchaser shall
have the right to offset any amount owed by Seller to Purchaser against any and
all balances, credits, deposits, accounts or monies of Seller then or thereafter
held by Purchaser.
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title insurance policy with respect to the Secured Property issued by a title
insurance company acceptable to Purchaser on standard ALTA mortgagee policy
forms in an amount satisfactory to Purchaser and containing all applicable
endorsements. By assignment or endorsement of Seller's Interest, Purchaser, its
successors and assigns, is designated as a mortgagee and additional named
insured with regard to the title insurance. Seller has not done, by act or
omission, anything which would impair the title insurance coverage.
Section 8.6. SECURED PROPERTY INTACT. The Secured Property has
not been damaged so as to adversely and materially affect its value and is
otherwise in good repair. There are no proceedings pending for the partial or
total condemnation of the Secured Property.
Section 8.7. HAZARD AND CASUALTY INSURANCE. There is in force
for the Mortgage Loan adequate hazard and casualty insurance coverage with
respect to the Secured Property in an amount and pursuant to a policy of
insurance satisfactory to Purchaser insuring against fire or other casualty,
and, if required by federal law, flood insurance. By assignment or endorsement
of Seller's Interest, Purchaser, its successors and assigns, is designated as a
mortgagee and additional named insured with regard to such insurance.
Section 8.8. DELINQUENT STATUS. As of the Purchase Date, the
Mortgage Loan is not sixteen calendar days or more Delinquent and Seller has no
knowledge of any default or breach existing or threatened under the Security
Instrument or Note.
Section 8.9. MODIFICATION OF MORTGAGE LOAN DOCUMENTATION. The
terms of the Mortgage Loan have in no way been changed or modified and the lien
of the Security Instrument has not been released or subordinated. All Mortgage
Loan documentation submitted to Purchaser is genuine, complete and accurate, and
all representations as to each Mortgage Loan are true and correct and meet the
requirements and specifications of all parts of this Agreement.
Section 8.10. TAXES. All taxes due and payable on or prior to
the Purchase date with respect to the Secured Property have been paid in full.
Section 8.11. ACCEPTABLE INVESTMENT. Seller has no knowledge
of any circumstances or conditions with respect to the Mortgage Loan, the real
property secured by the Security Instrument, the Borrower or the Borrower's
credit standing that can reasonably be expected to: (i) cause private
institutional investors to regard the Mortgage Loan as an unacceptable
Investment; or (ii) cause the Mortgage Loan to become delinquent; or (iii)
adversely affect the Mortgage Loan's value or marketability.
Section 8.12. ASSIGNMENT. A valid and recordable instrument of
assignment, recorded, has been duly executed and delivered by the proper
person(s) or entity(ies) to Purchaser, and such assignment is not subject to any
other assignment, claim, lien, mortgage, pledge, charge, security interest or
encumbrance.
Section 8.13. QUALIFICATION OF SELLER. Seller has been duly
incorporated and is validly existing and in good standing under the laws of the
state of its incorporation. Seller is duly and validly qualified and authorized
to do business and to originate and sell the Mortgage Loans in each state where
the Secured Property is located or, in the event Seller is not so qualified, the
lending of money and the acquisition and holding of Mortgage Loans does not
constitute doing business in such state. Seller has all licenses required to
engage in such transactions in each state where it originates Mortgage Loans.
Section 8.14. QUALIFICATION OF APPRAISER. All appraisers
performing and furnishing appraisals with respect to a Mortgage Loan must meet
the qualifications set forth in the Manual.
Section 9. OTHER WARRANTIES AND REPRESENTATIONS. Seller represents and
warrants to Purchaser as of the date of this Agreement as follows:
Section 9.1. DUE EXECUTION AND DELIVERY. The execution and
delivery of this Agreement are within the corporate powers of Seller and have
been duly authorized by all necessary action on the part of the
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Seller and neither the execution and delivery of this Agreement by Seller, nor
the consummation by Seller of the transactions herein contemplated nor
compliance with the provisions hereof by Seller will (i) conflict with or result
in a breach of, or constitute a default under, any of the provisions of the
articles of Incorporation or bylaws of Seller or any law, governmental rule or
regulation, or any Judgment, decree, or order binding on Seller, or any of its
properties, or any of the provisions of any indenture, mortgage, deed of trust,
contract or other instrument to which it is a party or by which it is bound or
(ii) result in the creation or imposition of any lien, charge, or encumbrance
upon any of its properties pursuant to the terms of any such indenture,
mortgage, deed of trust, contract or other instrument.
Section 9.2. BINDING AGREEMENT. This Agreement has been
executed and delivered by Seller and constitutes a legal, valid and binding
agreement of Seller, enforceable in accordance with Its terms, subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization, Insolvency,
or other similar laws affecting creditors rights generally from time to time in
effect, and to general principles of equity.
Section 9A. SURVIVAL OF WARRANTIES. The representations and warranties
made in this Agreement in Sections 8 and 9 above or elsewhere, shall survive the
Purchase Date and shall Inure to the benefit of Purchaser, its successors,
affiliates and assigns and with respect to any Mortgage Loan, regardless of any
review or investigation made by or on behalf of Purchaser.
Section 10. COVENANT REGARDING TAXES. Seller hereby covenants and
agrees with Purchaser that if any taxes relating to the Secured Property are due
within the sixty calendar days following the Closing date, and the bills for
such taxes are available as of the Closing date, Seller will cause the taxes to
be paid in full by the due date.
Section 11. REPURCHASE REQUIREMENTS. In addition to any other rights
and remedies which Purchaser may have against Seller, Seller agrees to
repurchase any Mortgage Loan within ten calendar days after Purchaser's demand,
and to indemnify Purchaser for any incurred loss or liability resulting from the
occurrence of any of the following events:
Section 11.1. BREACH OF WARRANTY OR REPRESENTATION. Purchaser
has determined that there exists a breach of any representation or warranty made
pursuant to this Agreement, provided that Seller shall have fifteen calendar
days following notice thereof to cure any breach resulting from a clerical
error.
Section 11.2. TIMELY DELIVERY OF POST-CLOSING DOCUMENTS. The
Post-closing Documents or any other documentation or corrections of any
documentation have not been delivered within the time periods set forth in this
Agreement.
Section 11.3. FALSE OR MISLEADING STATEMENTS. Purchaser
determines that any information submitted to seller or any statement, report or
document furnished by Seller to Purchaser hereunder was incomplete, inaccurate,
false, or misleading in any material respect when made or delivered. This
provision includes any condominium or PUD warranties made by Seller to
Purchaser.
Section 11.4. REPURCHASE OF EARLY DEFAULTS. Seller agrees to
repurchase any conforming or non-conforming conventional Mortgage Loan from
Purchaser if a default occurs with respect to the payment of any installment of
principal and interest due on the first payment due date after the Purchase
Date.
Section 12. REPURCHASE PRICE. In the event Seller is obligated to
repurchase a Mortgage Loan, the repurchase price shall be at par or at the
purchase price paid by Purchaser, whichever is greater, in an amount equal to
the then unpaid principal balance of such Mortgage Loan, plus all accrued and
unpaid interest and any costs or expenses, including, without limitation,
reasonable attorney's fees and expenses and court costs incurred by Purchaser in
connection with the repurchase of any such Mortgage Loan, enforcing such
repurchase obligation, enforcing any obligation of the Borrower arising under
the Note or foreclosing on the Secured Property. In addition, Seller shall repay
to Purchaser any Servicing-Release Premium paid by Purchaser in connection with
such repurchased Mortgage Loan. Purchaser shall have the right to offset the
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amount owed by Seller to Purchaser against any and all balances, credits,
deposits, accounts or monies of Seller then or thereafter held by Purchaser.
Purchaser may, at the request of Seller, perform the servicing of a Mortgage
Loan that Seller is required to repurchase pursuant to the provisions of this
Agreement. The repurchase obligations under this Agreement shall survive (i)
purchase of the Mortgage Loan; (ii) any transfer or grant of any interest in or
sale of the Mortgage Loan by Purchaser or its affiliates or any of their
successors or assignees; and (iii) termination of this Agreement.
Section 13. EVENTS OF DEFAULT. Purchaser, at its option, shall have the
right to immediately terminate this Agreement without notice should an Event of
Default occur. In the event this Agreement is terminated, no additional Lock-Ins
will be permitted. The following shall be Events of Default under this
Agreement:
Section 13.1. Repeated breaches by Seller of any warranty or
representation contained in this Agreement, regardless of any action by Seller
to cure breaches.
Section 13.2. Repeated failure by Seller to deliver to
Purchaser any Closing Documents or Post-closing Documents within the time
periods required by the Manual or this Agreement.
Section 13.3. Detection by Purchaser of participation by
Seller or any of Seller's employees in fraudulently documenting one or more
Mortgage Loans that are sold or offered for sale to Purchaser.
Section 13.4. Failure by Seller to use its best efforts to
close and deliver Mortgage Loans subject to a Lock-In to Purchaser for purchase
pursuant to the terms of this Agreement.
Section 14. INDEMNITY. Seller hereby agrees to indemnify and hold
harmless Purchaser and its affiliates and the successors and assigns of
Purchaser and its affiliates collectively referred to herein as "Indemnities"
from and against any and all claims, losses, damages, fines, penalties,
forfeitures, legal fees, judgments and any costs, fees and expenses relating to
(i) a breach by Seller of any representation, warranty or obligation contained
in or made pursuant to the Manual, this Agreement or any other agreement between
Seller and Purchaser relating to the purchase of Mortgage Loans, (ii) a failure
by Seller to disclose any information that renders any such representation or
warranty misleading or inaccurate, or (iii) any material inaccuracy in
information provided to Purchaser or misrepresentation made to Purchaser
concerning any Mortgage Loan which is known to Seller or which Seller should
have known if it exercised practices customarily undertaken by prudent
residential mortgage lenders. This indemnification shall survive purchase, sale
or transfer of the Mortgage Loan or any Interest therein by any of the
indemnities, the liquidation of the Mortgage Loan or the termination of this
Agreement.
Section 15. RELATIONSHIP OF PARTIES. The parties understand and agree
that neither party shall be deemed an agent, employee or legal representative of
the other party, and that each party is acting solely on its own behalf and as
an independent contractor. Neither party to this Agreement shall have the power
or authority to represent, act for, bind or commit the other party in connection
with any action taken pursuant to this Agreement. Neither execution nor
performance of this Agreement shall be construed to establish any partnership or
joint venture between the parties.
Section 16. NOTICES. All Notices required to be given hereunder shall
be in writing; provided, however, that at Seller's request Purchaser may give
any notice orally to Seller, and provided further, that in the event any notice
is given orally by Purchaser, Purchaser shall not be liable or responsible in
any respect for any error, omission or delay in providing such oral notice. Any
written notice required or permitted to be given hereunder shall be sufficient,
if either personally delivered or sent by U.S. Mail, postage prepaid, to the
following addresses:
If to Purchaser: Crestar Mortgage Corporation
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Correspondent Loan Department
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If to Seller: E LOAN, Inc.
0000 Xxxxxxx Xxxxxxx #000
Xxxxxx, XX 00000
Attn: Xxxxx Mu??
Section 17. TERM OF AGREEMENT. This Agreement may be terminated by
either party at any time without cause by giving fifteen calendar days notice to
the other party. In addition, this Agreement may be terminated by Purchaser
pursuant to the provision of Section 13 hereof. Upon such notification,
Purchaser shall cease accepting Mortgage Loans for credit approval as of the
effective date of termination, but purchase pursuant to the terms of this
Agreement any Mortgage Loans for which as Underwriter's Approval is in effect as
of the termination date. Seller's representations, warranties, covenants and its
obligation to indemnify Purchaser as to repurchase Mortgage Loans shall survive
termination of this Agreement.
Section 18. FINANCIAL STATEMENTS. Seller will deliver to Purchaser
financial statements of Seller, as specified in the manual, within ninety
calendar days after the end of the Seller's fiscal year.
Section 19. ASSIGNMENT. This Agreement may not be assigned by Seller
without prior written consent of Purchaser.
Section 20. THE MANUAL. The Manual provided to Seller by Purchaser is
incorporated herein by reference and shall be deemed to supplement this
Agreement. All Mortgage Loans purchased pursuant to the Agreement will be
subject to the terms of the Manual and this Agreement. Purchaser reserves the
right to amend the Manual in its sole discretion from time to time by giving
written notice of such amendments to Seller.
Section 21. ENTIRE AGREEMENT. This Agreement and the Manual constitute
the entire understanding of the parties with respect to the purchase and safe of
Mortgage Loans covered by this Agreement. No modification or amendment of this
Agreement shall be valid unless set forth in writing and executed by both Seller
and Purchaser
Section 22. NO WAIVER; RIGHTS AND REMEDIES CUMULATIVE. No failure or
any delay on the part of Purchaser in exercising its rights, powers, privileges
or remedies hereunder shall operate as a waiver thereof, nor shall a single or
partial exercise thereof preclude any other future exercise or the exercise of
any other rights, powers, privileges or remedies, all of which shall be
cumulative
Section 23. CAPTIONS. The captions of the various sections of this
Agreement have been inserted only for purposes of convenience. Such captions are
not part of this Agreement and shall not be deemed in any manner to modify,
explain, enlarge or restrict any provisions of this Agreement.
Section 24. APPLICABLE LAW. This Agreement shall be enforced and
interpreted in accordance with the laws of the Commonwealth of Virginia.
Section 25. TRAINING FEES. Seller agrees to reimburse Purchaser for
travel expenses incurred during training of Seller should training be mutually
agreed upon as necessary.
Section 26. VALID AGREEMENT. This Agreement is not valid until accepted
and signed by Purchaser.
Section 27. AGREEMENT OF NON-SOLICITATION. Seller agrees it will not,
after the execution of this Agreement, make any direct solicitation of any kind
of the Borrowers, including, without limitation, solicitation to refinance any
of the Mortgage Loans, or take any other action which would otherwise encourage
the prepayment of any of the Mortgage Loans. In addition, Seller agrees that it
will neither transfer or otherwise disclose any
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information with respect to the Mortgage Loans to a third party, nor assist any
other person or entity in making any direct solicitation of the respective
Borrowers.
IN WITNESS WHEREOF, each party has caused this Agreement to be executed by its
duly authorized officer, all as of the date first above written.
CRESTAR MORTGAGE CORPORATION SELLER
By: /s/ Signature Illegible By: /s/ Xxxxx X. Xxxxxxx
Title: /s/ Signature Illegible Title: Director, Mortgage Banking
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