ONECAP
A Nevada Corporation
Exhibit 10 c.
Mortgage Broker Agreement with Fleet Mortgage Corporation,
Signed October 1. 1999
FLEET MORTGAGE MORTGAGE BROKER AGREEMENT
THIS MORTGAGE B14OKER AGREEMENT ("Agreement") is made and
entered into this 1 day of OCTOBER 199 9, by and between
Fleet Mortgage Corp, (hereinafter called "Lender") and
OneCap (hereinafter called "Broker") (collectively, the
"parties"). In consideration of the mutual promises and
covenants contained herein, Broker and Lender hereby agree
as follows:
1. Subject to the terms hereof. Lander hereby
authorizes Broker to take mortgage applications based on
Lender program and pricing information. Broker understands
that Lender intends to sell closed loans to Institutional
investors, including the Federal National Mortgage
Association ("FNMA') and the Federal Home Loan Mortgage
Association ("FHLMC"), and Broker agrees to deliver mortgage
applications to Lender that are taken by Broker in
accordance with pertinent FNMA and FHLMC requirements and
warranties, as well as Lender's mortgage application
specifications. From time to time, Lender may prescribe
procedures for the submission to Lender of mortgage
applications taken by Broker. which procedures may include
the manner for Lender's establishment of the interest ratio
arid/or discount points for mortgage loans.
2. Broker agrees to deliver to Lender mortgage
applications that are taken by Broker in accordance with all
applicable federal, state and local legal requirements.
Particularly, Broker covenants that it shall: (a) comply
with the Equal Credit Opportunity Act ("ECOA") and its
Regulation B. and with this Fair Housing Art, In Brokers
pre- and post-qualification communications with the
applicants. Where Broker makes an adverse credit decision
with respect to any applicant prior or after completing a
mortgage application. Broker will timely deliver to such
applicant a properly completed adverse action notice as
required by ECOA and Regulation B; (b) comply with the Home
Mortgage Disclosure Act ("HMDA") and its Regulation C, with
respect to accurately completing the Government Monitoring
Information sought on a Mortgage Application: and (c) comply
with the Real Estate Settlement Procedures Act ("RESPA") and
its Regulation X, with respect to the Mortgage Loan
application and settlement process. Including: (1) providing
any applicant with a completed Good Faith Estimate of
Closing Costs ("GFE") in form sufficient to comply with
Regulation X, and which sets forth specifically a "Broker
Fee to [Broker]" an a line of the GFE which indicates that
it corresponds with one of Lines 808-811 of the HUD-I
Settlement Statement. the amount of the Broker fee payable
to the applicant/borrower to Broker: and (2) providing any
applicant with any Affiliated Business Arrangement (ABA)
notices,. as required by Regulation X.
3. Upon receipt of a completed mortgage application,
Lender shall underwrite such mortgage application and
approve/deny such mortgage applications submitted by Broker
on the basis of Lender's underwriting criteria and the
program guidelines of the applicable investors and insurers.
Nothing herein constitutes any representation or commitment
Lender that it will extend credit to any applicant, and
Lender's determination as the credit-worthiness of any
applicant is final and conclusive as to the parties hereto.
Loans shall be closed in the name of Lender and, subject to
Broker's right the Broker Fee as set forth herein, Broker
agrees to assign to Lender, at the time of submission of
mortgage application to Lender, all right, title and
interest in and to the mortgage application and related
file.
4. Broker shall maintain at all times during the term
of this Agreement at its own expense such insurance as is
required by applicable legal requirements, and that Is
otherwise appropriate given the nature of Broker's business,
including: (i) hazard and liability insurance; (ii) an
errors and omissions policy or policies, and (iii) a blanket
fidelity bond.
5. Broker shall be entitled to negotiate with and
receive from the loan applicant(s), payable at the time of
closing, of a mortgage loan, a reasonable broker fee for its
services, including taking this loan application,
counseling, documentation ordering and loan processing
services up to but not exceeding an amount equal to four
percent (4%) of the mortgage low amount. or such other
amount as Lender shall prescribe In its program issuances to
Broker (which amount includes all less payable to the broker
by borrower except fees payable to third-parties), provided
that such broker fee does not exceed the fee, or range of
fees, that is typical for the type and amount of the
mortgage loan applied for in Broker's market area. Broker
shall disclose the fee which it charges to any applicant(s)
on the GFE as required in paragraph 2 above and in
accordance with all applicable legal requirements. Lender
will cause Broker's fee to be so disclosed on the HUD-I
Settlement Statement, and to be collected at closing and
remitted to Broker. Payment of third-party charges for
credit reports, appraisals or similar out-of-pocket expenses
will be the responsibility of Broker, Certain services, such
as appraisals, must be with a supplier that has been
approved by Lender. Broker will use its best efforts to
collect such items directly from mortgagors if so directed
by Lender and if permitted by applicable legal requirements.
6. As an inducement to Lender to enter into this
Agreement and to consummate the making of each mortgage loan
from mortgage applications submitted by Broker. Broker
represents and warrants to Lender as follows, as of the of
execution hereof and the date of each mortgage application
which is delivered by Broker to Lender for approval: 8/26/98
(a) If a corporation. Broker, a corporation, and if a
partnership. Broker is a partnership, duly organized,
validly existing and in good standing under the laws of its
state of incorporation. Broker is properly licensed, or is
exempt, and qualified to transact business in all
jurisdictions where it originates mortgage loans and to
conduct all activities contemplated by this Agreement.
Specifically, Broker maintains a Lender's and/or Broker's
license to originates first lien residential mortgage loans
as may be required by applicable legal requirements.
(b) Broker has all requisite corporate power,
authority and capacity to enter into this Agreement and to
perform it obligations hereunder. The execution and delivery
of this Agreement and any related agreements and instruments
and the consummation of the transactions contemplated hereby
and thereby, each have been duly and validly authorized by
all necessary corporate action.
(c) No representation, warranty or written statement
made by or on behalf at Broker in this Agreement or in any
written or verbal communication made to Lender In connection
with the transactions contemplated hereby, contains, or
which contain, any untrue statement of a material fact or
omits, or will omit to state a material fact necessary to
make the statements contained herein or therein not
misleading.
(6) Each mortgage application has been submitted in
compliance with the requirements of this Agreement and a
applicable legal requirements. Broker has no knowledge of
any circumstances or conditions with respect to any mortgage
application or the related mortgaged property or loan
applicant which Broker reasonably believes could be expected
to cause any investor- to regard such mortgage! loan as an
unacceptable investment, cause the mortgage loan to become
delinquent or adversely affect the value or marketability of
such mortgage loan. Broker has committed no act or omission
that will impair or invalidate Lender's interest in. or the
enforceability of, any mortgage loan. All information and
documentation submitted by or an behalf of a loan applicant
to Broker and by Broker to Lander pursuant to this Agreement
are genuine, and the information contained in such documents
is true, accurate and complete to the best of Broker's
knowledge.
(a) Each mortgage application includes each of the
documents and Instruments specified by Lender and/or the
applicable agency or investor to be included therewith, each
of which document and instrument, and all signatures
contained thereon are, genuine and enforceable in accordance
with its terms.
7. Broker shall promptly notify Lender: (i) in the
event of any substantial change in the financial condition,
ownership or management of Broker; (ii) if Broker knows or
has reason to believe that any information in any mortgage
application or other document delivered to Lender is untrue;
and (iii) In the event any governmental or other agency has
made any adverse finding or taken any adverse action with
respect to the Broker or Its officers, directors or
employees.
8. Broker shall execute and deliver all such
Instruments and take all such action as Lender may
reasonably request from time to time in order to effectuate
the purposes and to carry out the terms of this Agreement.
For loans on which Lender has paid a premium, price within
six (6) months of Broker seeking lo refinance such loan with
Lender, any such refinance is eligible only for par or
discount pricing. Lender reserves the right, in its sole
discretion, to amend this time frame in accordance with
market conditions or company policy.
9. In addition to any other remedies that the parties
hereto may have at law or equity. Broker shall indemnify
Lender and hold Lender harmless against any and all claims,
losses, liabilities, costs, expenses, damages, penalties,
fine and forfeitures of any kind, including but not limited
to reasonable attorneys' fees, resulting from: (a) the
breach by Broker of any representation, warranty or covenant
of this Agreement; or (b) the failure of Broker to comply
with applicable legal requirements or Lender's requirements.
In the event that Broker falls to pay Lender any sums due
hereunder. or which are owed to the Lender pursuant to this
section Lender shall be permitted to offset such sums from
any amounts which are due or become due to Broker pursuant
to the terms of this Agreement.
10. This Agreement shall continue in existence and
effect until terminated as provided for herein. This
Agreement may be terminated with respect to future mortgage
applications submitted by Broker to Lender by either party
at any time by giving thirty (30) days prior written notice
of termination to the other party. Such termination shall
not in any respect change, alter, modify or terminate the
obligations of any party, including the representations and
warranties of Broker with respect to mortgage loans which
have been submitted by Broker to Lender prior to the date of
such termination. The Agreement may be terminated
immediately by either party upon written notice of a
material breach of the other party's obligations hereunder.
11. Any notice or demand which is given pursuant to
this Agreement shall be deemed to have been sufficiently
given if in writing and delivered personally or sent by
registered or certified mail (return receipt requested).
postage prepaid, or sent by facsimile (and confirmed
promptly by telephone) with a hard copy sent by overnight
courier service, or sent by overnight delivery.
12. This Agreement constitutes the entire agreement
between the parties with respect to the relationship hereby
established and shall supersede and cancel all prior
agreements, offers and negotiations whether in writing or
otherwise. This Agreement may be amended and any provision
hereof waived, but only in writing signed by the party
against whom such amendment or waiver is sought to be
enforced.
13. The right of Broker to assign this Agreement or any
of its duties, obligation or rights hereunder requires the
prior written consent of Lender. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and
their successors and permitted assigns. Nothing in this
Agreement, express or implied, is intended to confer on any
person other than the parties hereto and their successors
and permitted assigns, any rights, obligations, remedies or
liabilities.
14. Any part, provision, clause, sentence,
representation or warranty of this Agreement which is
prohibited or which Is held to be void or unenforceable
shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining
provisions hereof.
15. Nothing herein contained shall be deemed or
construed to create a partnership, agency or joint venture
between the parties hereto. The services of Broker shall be
rendered as an independent contractor and not as agent for
Lender, and Broker shall not represent to any applicant(s)
that it is an agent for Lender. This Agreement creates a
nonexclusive relationship between the parties.
16. If either party institutes litigation under this
Agreement against the other party, the prevailing party
shall be entitled to be reimbursed by the other for
reasonable attorneys' fees and costs paid or incurred by the
prevailing party in connection therewith.
17. This Agreement shall be governed by and construed
in all respects in accordance with the laws of the state of
Lender's branch or sales office where this Agreement was
accepted.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed as of the day and year
first above written.
Lender: Broker:
FLEET MORTGAGE /s/ One Cap
BY: /s/ BY: /s/
ITS: ITS: Vice President
