ONECAP
A Nevada Corporation
Exhibit 10 f
Loan Broker Agreement with Irwin Mortgage Corporation,
Signed October 14, 1999
Loan Broker Agreement
This Agreement, made and entered into this 14th /s/ day of
/s/ October , 19 /s/ 99, by and between Irwin Mortgage
Corporation, an Indiana corporation ("Irwin") and /s/ OneCap
("Broker").
Whereas, Broker is in the business of originating first mortgage
real estate loans by taking and processing loan applications
from prospective borrowers and placing these applications on a
non-exclusive basis with mortgage lenders such as Irwin who
underwrite, close and fund approved loans; and
Whereas, Irwin and Broker desire to engage in similar
transactions for such loans ("Loans")
Now therefore, in consideration of the mutual promises made
herein and the terms and conditions set forth below, Irwin and
Broker agree as follows:
PROCEDURES
1. Registering Loans. Broker may from time to time register
Loans with Irwin. The price for any such Loans, the lock-in
period, and all other price issues will be governed by Irwin's
Pricing Policy and Procedures, a copy of which is attached to
this Agreement. By locking in a Loan, Irwin agrees to fund the
Loan, provided that the Loan complies with all provisions of this
Agreement and the Irwin Pricing Policy and Procedures. Irwin in
its sole discretion, reserves the right to change prices and its
pricing policy at any time and without prior notice to Broker.
In no event, however, shall such a change in prices or pricing
policy affect a Loan previously locked-in with Irwin by Broker.
2. Status of Registered Loans. Broker will keep Irwin informed
as to the pipeline status of Loans to be funded by Irwin under
this Agreement.
3. Broker Duties. Broker understands and agrees that payment of
any compensation shall be based solely on actual and specific
loan origination and processing services provided by Broker in
connection with each Loan transaction. These services shall
include, but are not limited to, the following: (a) counseling
borrowers concerning availability of various loans and the
general process of obtaining a loan; (b) explaining to borrowers
Irwin's loan products, programs and lending philosophy; (c)
completing the loan application with borrowers and obtaining
signatures thereto; (d) obtaining merged credit reports including
FICO scores from two repositories; (e) evaluating such credit
information to pre-qualify borrowers for Irwin's loan products
and programs; (f) assisting borrowers with explanations of
delinquent credit; (g) preparing Good Faith Estimates as required
by the Real Estate Settlement Procedures Act and preliminary
Truth in Lending Act disclosures and sending same to borrowers
within three (3) business days of application; (h) providing
borrowers with all other disclosures required by federal, state
or local laws or regulations; (i) obtaining loan processing
information such as verifications of employment and deposits, tax
filing and pay stubs; (j) processing information to further
qualify borrowers for an Irwin loan products or programs; (k)
ordering property appraisals and reviewing same to ascertain
conditions; (l) ordering title reports and comments; (m) keeping
borrowers informed of status of loan application; and (n)
submitting fully processed application files to Irwin for
understanding.
4. Delivery of Loan Files. Irwin will work directly with title
companies, closing agents and attorneys to ensure delivery to
Irwin of loan documents for Loans closed under this Agreement.
However, where Irwin agrees to allow Broker to prepare its own
closing document, Broker will deliver all closing documents to
Irwin within three (3) days of loan closing.
5. Delivery of Other Information/Documentation. All
information and documentation on any Loan required by Irwin to
satisfy the requirements of FHA, VA, GNMA, GNMA, FHLMC or any
private investor or poll commitment shall be delivered by Broker
to Irwin no later than thirty (30) calendar days after Loan
closing. Broker understands that the timely receipt of such
information and documentation is of critical importance to Irwin,
and agrees to cooperate to the best of its ability in obtaining
and delivering all necessary items to Irwin within the required
thirty (30) days, Any failure by Broker to comply with this
provision could result in the required repurchase of the affected
Loan or Loans from Irwin and/or the formation of this Agreement
by Irwin.
6. Underwriting. Broker to pay an underwriting fee as
established in writing by Irwin from time to time for all Loans
Irwin underwrites. The underwriting of a Loan by Irwin shall not
affect in any way Broker's obligation hereunder, including
without limitation, Broker's repurchase obligations and or
indemnification obligations under this Agreement.
7. Irwin Liability to Broker for Registration/Underwriting
Loans. Notwithstanding any language in this Agreement to the
contrary, Irwin shall have no liability to the Broker for any act
or omission related to the registration and/or underwriting of
Loans, including but not limited to those caused by equipment or
computer failures, labor strike or walkouts, casualty, and act of
God, except where such act or omission constitutes gross
negligence on the part of Irwin.
BROKER REPRESENTATIONS AND WARRANTIES
8. Broker Representations and Warranties. Broker hereby makes
the following representations and warranties to Irwin, which
shall be deemed made as of the date hereof, and hereafter as to
each and every date Broker submits a Loan to Irwin.
A. As to Broker:
1. Broker is duly organized, validly existing and in good
standing under the laws of its state of incorporation and is
qualified to transact business, has all licenses, permits and
registrations and is in good standing in each state where Broker
originates Loans, as necessary to engage in the mortgage broker
business and to perform as set forth in this Agreement;
2. Broker has the full power and authority to enter into this
Agreement and neither the execution and delivery of this
Agreement or the consummation of the transaction contemplated
herein, nor the fulfillment of or compliance with the terms and
conditions of this Agreement, will conflict or result in a branch
of any term, condition or provision of Broker's certificate of
incorporation or by-laws or any agreement to which Broker is a
party or by which Broker is bound, or constitute a material
default or result in an acceleration under any of the following:
3. No consent, approval, authorization or order of any court,
governmental body or any other person or entity is required for
the execution, delivery and performance by Broker of this
Agreement including, but not limited to, submission of Loans to
Irwin;
4. Neither Broker nor its agents know of any suit, action,
arbitration, or legal or administrative or other proceeding
pending or threatened against Broker which would affect its
ability to perform its obligations under this Agreement; and
5. This Agreement has been duly authorized and executed by
Broker and is, or upon delivery will be, a legal, valid and
binding obligation of Broker enforceable in accordance with its
terms, subject only to applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting creditor
rights generally.
B. As to each Loan:
1. Each Loan is a valid first lien on the mortgaged property
free and clear of all encumbrances and liens having priority over
the lien of such Loan, except for real estate taxes and special
assessments not yet due and payable;
2. The mortgaged property is free and clear of all mechanic's
and material men's liens or liens in the nature thereof, and no
rights are outstanding that under law could give rise to any such
lien, nor is Broker aware of any facts which could give rise to
any such lien;
3. Broker shall deliver to Irwin an appraisal report of the
mortgaged property for each such Loan signed by an appraiser
approved or acceptable to Irwin, which report shall be on the
applicable FNMA form for the type of property securing the Loan,
prior to Irwin's approval of such Loan. In the case of insured
or guaranteeing agency of its acceptance of the valuation
assigned to the real estate security by the appraiser;
4. All federal and state laws, rules and regulations applicable
to the Loans have been complied with, including but not limited
to: The Real Estate Settlement Procedures Act; the Flood Disaster
Protection Act; the Federal Consumer Credit Protection Act
including the Truth-in-Lending and Equal Credit Opportunity Acts;
the Home Mortgage Disclosure Act, the Fair Housing Act; statues
or regulations governing fraud, lack of consideration,
unconscionability, consumer credit transactions or interest
charges; and all conditions within the control of Broker as to
the validity of the insurance or guaranty as required by the
National Housing Act of 1934, and the rules and regulations
thereunder; or as required by the Servicemen's Readjustment Act
of 1944, and the rules and regulations thereunder; or as imposed
by the mortgage insurance companies or other insurers;
5. No Loan is the subject of litigation which could affect
Broker's ability to enforce the terms of the obligation or its
rights under the Loan documents;
6. There is in force for each Loan a paid-up title insurance
policy issued by an Irwin-approved title company in the amount at
least equal to the outstanding principal balance of the Loan;
7. There is in force for each Loan a hazard insurance policy
and floor insurance policy, where applicable, meeting the
requirements of Irwin.
8. Where required by applicable state law; Broker will record
the mortgage assignment in the name of "Irwin Mortgage
Corporation" and the assignment of the Loan from Broker to Irwin
is valid and enforceable;
9. The borrower has no right of recession, set-offs,
counterclaims or defenses to the note or mortgage securing the
note arising from the acts and/or omissions of Broker in the
origination of the Loan;
10. Broker has no knowledge that any improvement located on or
being part of the mortgaged property is in violation of any
applicable zoning law or regulation;
11. The mortgage property is (a) in good repair and free of
substantial damage from any cause, including but not limited to
floor, fire, accident, earthquake, hurricane, or other disaster
or calamity; and (b) the market for real estate in the
geographical area of the mortgaged property has not materially
and adversely declined since the date the property appraisal
report was issued; and
12. Neither Broker, borrower or any person or entity engaged by
Broker, its offer, employee's or agents which is involved in the
Loan, including without limitation any appraiser or credit
reporting agency has (a) made any false representation or
provided information which is not true, complete and accurate as
is reasonably necessary for Irwin to make an underwriting
decision; or (b) received any direct or indirect benefit, fee,
commission or other consideration of value from however or any
other party in connection with the Loan except those fee properly
charged to borrower.
BROKER"S REPURCHASE AND INDEMNITY OBLIGATIONS
9. Broker's Repurchase Obligations. Broker shall repurchase
any Loan sold to Irwin pursuant to this Agreement within thirty
(30) business days of receipt of written notice from Irwin of any
of the following circumstances:
A. Broker fraud or misrepresentation in the origination of
processing of the Loan;
B. Broker fails to observe or perform or breaches in any
material respect any of the representations, warranties,
covenants or agreements contained in this Agreement or the Manual
with respect to a particular Loan; or
C. Failure by Broker to deliver to Irwin within thirty (30)
days from the date each Loan was purchase by Irwin the original
information/documentation specified in Section 5 hereof.
The option to request or accept repurchase of any Loan is at the
sole discretion of Irwin, and shall survive termination of this
Agreement.
10. Repurchase Price. Repurchases under Section 9 hereof shall
be priced as the sum of:
A. The unpaid principal balance of the Loan on the date of
repurchase:
B. All accrued and unpaid interest on the Loan as of the date
of repurchase;
C. All unreimbursed advances and extraordinary costs and
expenses incurred by Irwin with regard to the Loan;
D. Any yield spread premium, service release fee or other
amounts previously paid by Irwin to Broker for the Loan; and
E. All losses, costs, damages and expenses incurred by Irwin in
connection with such repurchase.
Upon such repurchase of Loans by Broker, Irwin shall endorse the
promissory note and assign any security interest, both without
recourse, to Broker.
11. Broker Indemnification of Irwin. In addition to Broker's
repurchase obligations under Section 9, Broker will indemnify,
defined and hold Irwin harmless from and against any loss,
damage, cost or expense, including but not limited to, reasonable
attorney's fees and expenses (a) arising out of any act or
omission of Broker or any employee or agent of Broker; (b)
arising out of Broker's failure to perform any of its obligations
hereunder; or (c) arising out of or in connection with falsity,
incorrectness, incompleteness or breach in any material respect
of any representation or warranty made by Broker herein.
OTHER PROVISIONS
12. Loan Fraud. The submission of a loan application to Irwin
containing false or misrepresented information is a federal crime
and Irwin cooperates with government agencies and law enforcement
officials to pursue false information or fraudulent activity.
The following are examples of activities which could lead to such
actions being taken against Broker: (a) submission of inaccurate
information, including false statements on loan applications and
falsification of documents purporting to substantiate credit,
employment, deposit balances, ownership of real property and
other asset information, or false personal information concerning
the borrower; (b) forgery of documents; (c) inaccurate
representations of current occupancy or intent to maintain
required occupancy as agreed in the application and Loan closing
documents, (d) lack of due diligence or appropriate concern by
Broker and its employees in obtaining and ascertaining the
authenticity of all documents submitted to Irwin; and (e)
acceptant of information or documentation which is known or
suspected to be inaccurate, including but not limited to the
concurrent processing of multiple owner-occupied Loan
applications from a single applicant, or permitting an applicant
or other interested party to assist in the processing of a Loan
application.
13. Price Discrimination. Irwin is committed to the
principles of fair lending. Broker acknowledges that Irwin
cannot control or police the prices that Broker charges its
borrowers. Broker agrees that loan fees, discount points and
interest rates must be charged to all borrowers on a non-
discriminatory basis without consideration of race, gender,
national origin or age. Broker agrees to indemnify and hold Irwin
harmless from and against any discriminatory practices employed
by Broker or its employees and agents.
14. No Solicitation. Loans sold to Irwin cannot be solicited
by Broker for prepayment, refinance or any other related products
or services. For purposes of this Agreement, "solicit" shall not
be deemed to include mass advertising via telephone, radio,
newspapers, and similar forms of communication not individually
directed to specific Loan borrowers. Broker shall use its best
efforts to prevent employees and the employees of affiliated
entities from engaging directly or indirectly in any prohibited
solicitations under this Agreement.
15. Additional Assurance Inspection. Broker agree, from time
to time, upon Irwin's request, to provide Irwin with additional
evidence that Broker's representations and warranties contained
herein are true and correct. This may include allowing Irwin to
conduct periodic on-site audits of Broker's business activities
related to the Agreement, including but not limited to all books,
records, and files of Broker pertaining or relating to any Loans
registered with Irwin. In addition, Broker will submit to Irwin
its annual financial statement, certified by an independent
public accountant, within ninety (90) days following the end of
each fiscal year.
16. Loans Originated by Third Party. Irwin shall have no
obligation under this Agreement to accept any Loans from Broker
which were originated by any entity or person other than Broker,
and Broker shall not register any Loans with Irwin that are not
originated by employees of Broker.
17. Continued Employment of Broker's Principals. In the event
that the Principal or Principals of Broker who negotiate this
Agreement with Irwin discontinue their employment with Broker,
Broker shall deliver immediate notice of such event to Irwin.
18. Notices. Any notice or demand which is required or
permitted to be given by any provision of the Agreement shall be
deemed to have been sufficiently given if either served
personally or sent by prepaid, registered or certified mail,
addressed to the party at its address set forth below:
Irwin Mortgage Broke
Corporation r:
9265 Counselor's
Row
Indianapolis, IN
46420
Attention: Mr. Les Attent
Acree ion:
Either party may change its address by notice to the other.
19. Termination. This Agreement may be terminated by either
Irwin or Broker without cause upon written noticed address to the
other party as provided in Section 18 above. In event of such
termination, Irwin aggress to close after termination those Loans
registered by the Broker prior to the date of termination.
However, in the event that Irwin, in its sole judgment and
discretion, reasonably determine that there has been fraud or
misrepresentation concerning Loans registered by Broker, or any
other material breach by Broker of this Agreement, Irwin reserves
the right to cancel this Agreement immediately and without prior
notice, and to refuse to close any Loans registered by the Broker
prior to such termination. All other rights and obligations of
the parties hereto which arose prior to termination shall survive
termination.
20. Irwin Manual. All provisions of the Irwin Wholesale Lending
Manual are incorporated by reference into this Agreement and
shall be binding upon both parties. However, by its agents, the
Manual may be amended or supplemented by Irwin from time to time,
as is reasonably necessary to improve the operation and
efficiency thereof. Written notice of such amendment or
supplement will be given by Irwin to Broker before such amendment
or supplement takes effect.
21. Relationship of the Parties. By virtue of this Agreement,
it is agreed that Irwin and Broker shall not be considered to be
parties or joint ventures, and that Broker is not to act as the
agent of Irwin in origination, processing or performance of any
other obligation, and shall act in all matters hereunder as an
independent contractor.
22. Miscellaneous. No assignment, transfer or other alienation
of this Agreement by Broker shall be effective without the prior
written consent of Irwin. This Agreement is established for the
sale benefit of Irwin and Broker, and no party other than Irwin
and Broker shall be entitled to the benefit thereof. No waiver
by Irwin of any term or condition hereof shall impair any right
of Irwin or be construed as a waiver of any term or condition in
the future. There are no promises or inducements by Irwin to
Broker not contained herein, and this Agreement cannot be amended
or modified orally, and no provision of this Agreement may be
waived or amended except in writing executed by Irwin and Broker.
Such a written waiver or amendment must expressly reference this
Agreement. All of the covenants, agreements, representations and
warranties made herein by the parties hereto shall suffice and
continue in effect after the termination of the Agreement or the
consummation of the transactions contemplated hereby. This
Agreement supersedes any and all prior written or oral agreement
between Broker and Irwin as to the subject matter of this
Agreement. This Agreement may be executed in counterparts, all
of which taken together shall constitute one and the same
instrument. This Agreement has been entered into and shall be
governed and construed in accordance with the laws of the State
of Indiana.
IN WITNESS WHEREOF, the undersigned parties have executed this
Agreement as of the date herein above written:
IRWIN MORTGAGE CORPORATION BROKER/ /s/OneCap
By:/s/ John Nagotski By:/s/ Scott Lawrence
Printed Name: John Nagotski Printed Name: Scott Lawrence
Its:Vice-President Its: Vice President
