Outsourced Mortgage Processing and Fulfillment Services Agreement
Exhibit
10.1
Outsourced
Mortgage Processing and
Fulfillment
Services Agreement
THIS
AGREEMENT is made and entered into as of December 31, 2007, by
and between Rutgers Investment Group, Inc., a Texas
Corporation with headquarters at ▇▇▇▇ ▇. ▇’▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, referred to as "Rutgers" and
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, a corporation organized and existing under the laws of
the
State of California, United States of America and having its principal office
at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, hereinafter referred
to
as "Client."
W
I T N E S S E T H
WHEREAS,
Rutgers is now, and has been, engaged in the business of providing
contract mortgage processing and fulfillment services, and,
WHEREAS,
Client desires to contract for the mortgage processing and fulfillment
services of Rutgers, and,
NOW
THEREFORE, in consideration of the mutual promises and agreements as
set forth herein and for other good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, the parties intending to be
legally bound, do hereby agree that the foregoing recitals are incorporated
herein by reference and made a part hereof as though set forth at length
throughout this Agreement and do further agree as follows:
1.
Specific Obligations and Duties of Rutgers. Subject to the terms and
conditions of this Agreement, Rutgers shall devote its time and attention and
exert its best efforts and skills to provide the Client with Mortgage processing
and fulfillment services which includes data processing, data verification,
document and data review, report preparation, incoming and outgoing calls,
emails and such other similar services hereinafter referred to as
“Services” in a timely manner, including but not limited
to: immediately upon receipt of the loan file via hard copy or electronic means,
Rutgers will begin processing the file for closing including ordering
Verifications of Rent, Mortgage, Employment and Deposit; ordering appraisal;
ordering title commitment; ordering any additional information to complete
processing the file for submission to its underwriter who will
apply criteria provided by Client; delivery of the fully processed
loan file to its underwriter; obtaining any remaining documentation needed
for
closing based on Client’s requirements; schedule closing and obtain final Fee
Sheets; return fully processed and closed file to Client for their required
records once loan has disbursed as well as post-closing and fulfillment
services. As a consequence of complying with various Laws and
Regulations related to the mortgage lending industry, Rutgers is obligated
to
ensure that the Client meets the highest standards of professional quality
and
integrity. Therefore, prior to engagement by Rutgers
and as a continuing condition of engagement by Rutgers, the Client hereby
represents and warrants that he or she is fully licensed or registered as a
mortgage banker by the State of Texas.
2.
Process: Upon execution of this Agreement, Client will submit Loan
applications to Rutgers for processing which resulted from
leads purchased from Rutgers
(“Loans”). Rutgers in accordance with state
and federal laws and utilizing its best efforts will process the application
per
request and direction of Client. The detailed process, requirements and Service
Levels are described in the Schedules attached to this
agreement. At a minimum, Client shall provide Rutgers with the
following: a signed and completed application 1003 and all RESPA required
disclosures; borrower(s) Tri-Merge Credit Report;
selection of program for submission and lock program/rate if needed; and
approval of final fee sheet for Closing. The Client shall also maintain its
mortgage banker license or registration with the State of Texas during the
term
of this Agreement. If the Client’s license is revoked during the term of this
Agreement, this Agreement shall be deemed null and void.
3.
Fees & Payment Terms: Price per file will be as
per the attached Schedule II
depending
upon the type of the loan. All processing fees shall be due and payable at
closing. Client agrees that whenever possible, fees due to Rutgers
as per attached Schedule II will be included in the “Closing Fees
Sheet” and paid directly through the closing agent at settlement. If payment at
settlement is not possible, Client will either direct the closing agent to
withhold all fees due to Rutgers and pay directly to
Rutgers or upon funding immediately forward a corporate
check
payable to Rutgers.
4.
Term and Termination: The term of this Agreement shall be for a period
of ONE (1) year from the execution date of this Agreement. This Agreement and
the relationship created hereby may be terminated by Rutgers at any time without
cause upon 90 days written notice given to the Client. This Agreement and the
relationship created hereby may be terminated by the Client at any time without
cause upon 90 days written notice given to Rutgers. Rutgers shall
have the additional right to terminate this Agreement immediately without notice
to Client when such termination is for cause including, without
limitation, failure to exercise best efforts in the performance of the job,
dishonesty, fraud, misrepresentation to Rutgers or any third person or breach
of
this Agreement or upon the occurrence of any of the following events: a) If
Client, or any of its employees, agents or representatives is convicted of
a
felony, a crime of moral turpitude, dishonesty, breach of trust or unethical
business conduct, or b) If Client, or any of its employees, agents or
representatives engages in willful misconduct, willful or gross neglect, fraud,
misappropriation or embezzlement in the performance of its duties hereunder
or
otherwise to the detriment of Rutgers. During and after the term of
this Agreement, Client shall not disparage, in any manner or respect, Rutgers
or
the financial soundness and responsibility, personnel or practices of Rutgers'
business.
5. Independent
Contractor Relationship: Nothing contained in this Agreement shall
authorize, empower or constitute either party as the agent of the other in
any
manner; authorize or empower either party to assume or create any obligation
or
responsibility whatsoever, expressed or implied, on behalf of or in the name
of
the other; or authorize or empower either party to bind the other in any manner
or make any representation, warranty, covenant, agreement or commitment on
behalf of the other party. Rutgers is acting as an independent
contractor, and nothing contained in this Agreement or in the relationship
between Rutgers and CLIENT shall be deemed to
constitute a partnership, joint venture or any other relationship, except as
specified pursuant to the terms of this Agreement. All information
supplied to and/or collected by Rutgers in the processing of
all mortgage applications submitted by CLIENT to
Rutgers will be held in strict confidence. In addition
Rutgers will not solicit any of the applicants submitted for
processing nor will it transfer any information without written consent of
CLIENT and the applicant.
6.
Indemnity and Limitation of Liability:
a. CLIENT
agrees to indemnify, defend, protect and hold harmless
Rutgers, its officers, employees, affiliates, agents,
successors and assigns from and against any and all claims, liabilities,
actions, suits, proceedings, damages, losses, costs, expenses and court costs
relating to, arising out of, connected with or resulting from the negligent
acts, errors and omissions of CLIENT officers, shareholders,
employees, affiliates, agents and representatives.
b. Rutgers
agrees to indemnify, defend, protect and hold harmless CLIENT,
its officers, shareholders, employees, affiliates,
agents, successors
and assigns from and against any and all claims, liabilities, actions, suits,
proceedings, damages, losses, costs, expenses and court costs relating to,
arising out of, connected with or resulting from the negligent acts, errors
and
omissions of Rutgers officers, employees, affiliates, agents
and representatives.
IN
NO
EVENT OR UNDER ANY CIRCUMSTANCE SHALL EITHER PARTY BE LIABLE TO THE OTHER OR
ANY
THIRD PARTY (OR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM THE OTHER PARTY’S
RIGHTS), IN CONTRACT, TORT OR OTHERWISE, FOR INDIRECT, SPECIAL, INCIDENTAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. REGARDLESS OF THE FORM OR NATURE
OF
ACTION THE TOTAL CUMULATIVE LIABILITY OF RUTGERS TO THE
CLIENT FOR DAMAGES UNDER THIS AGREEMENT SHALL
BE LIMITED TO THE
AGGREGATE OF THE AMOUNT PAID TO RUTGERS IN THE IMMEDIATE
PREVIOUS SIX MONTHS FOR THE SERVICES. THIS LIMITATION ON LIABILITY WAS A
CONTROLLING FACTOR IN THE SETTING OF THE FEES PAYABLE TO
RUTGERS HEREUNDER.
7.
Warranties by Both Parties: Each party represents and warrants to the
other that:
a. it
has the requisite corporate power and authority to enter into this Agreement
and
to perform its obligations hereunder;
b. it
is not a party to any agreement, and knows of no law, regulation or order,
that
would prohibit it from entering into and performing its obligations under this
Agreement, or that would conflict with the terms of this Agreement;
and
c. this
Agreement constitutes a legal, valid and binding obligation of it, enforceable
against it in accordance with the terms of this Agreement, subject to applicable
bankruptcy, insolvency and other laws affecting the enforceability of creditors’
rights generally and the discretion of courts in granting equitable
remedies.
8.
Mediation and Arbitration. Any disputes between the parties hereto,
whether arising under this agreement or otherwise, which the parties cannot
resolve between themselves using good faith shall be referred to a court
certified mediator of the Court in Cameron County, and any mediation shall
be
held in Cameron County. The Client shall bear the cost of said mediation. In
the
event that said dispute is not resolved in mediation, the parties shall submit
the dispute to a neutral arbitrator residing in Cameron County. The arbitration
shall be held in Cameron County and the Client shall bear the cost of said
arbitration. The parties further agree that full discovery shall be allowed
to
each party to the arbitration and a written award shall be entered forthwith.
Any and all types of relief that would otherwise be available in Court shall
be
available to both parties in the arbitration. The decision of the arbitrator
shall be final and binding. Arbitration shall be the exclusive legal remedy
of
the parties. Judgment upon the award may be entered in any court of competent
jurisdiction pursuant to Texas statutes. If either party refuses to comply
with
a ruling or decision of the arbitrator and a lawsuit is brought to enforce
said
ruling or decision, it is agreed that the party not complying with the ruling
or
decision of the arbitrator shall pay all the court costs and reasonable
attorney's fees (including Trial and Appellate attorney's fees) incurred in
enforcing the ruling or decision of the arbitrator. Any rights of injunctive
relief shall be in addition to and not in derogation or limitation of any other
legal rights.
9.
Interpretation of this Agreement. The parties acknowledge that this
Agreement is the product of mutual efforts by the parties and their respective
agents. This Agreement shall be interpreted neither more favorable in favor
of
one party, nor less favorably in favor of another party.
10.
Entire Agreement. This Agreement constitutes the entire understanding
of the parties and supersedes all prior discussions, negotiations, Agreements
and understandings, whether oral or written, with respect to its subject
matter.
11.
Modification. No change, modification or waiver of this Agreement shall
be valid unless it is in writing and signed by all the parties who are bound
by
the terms of this Agreement.
12.
Severability. If any provision of this Agreement is held invalid,
unenforceable, or void by a court of competent jurisdiction, this Agreement
shall be considered divisible as to such provision, and the remainder of the
Agreement shall be valid and binding as though such provision were not included
in this Agreement.
13.
Benefits; Binding Effects. This Agreement shall be binding upon and
shall operate for the benefit of the parties hereto and their respective
executors, administrators, successors, and assigns.
14.
Venue and Jurisdiction. Should a lawsuit be necessary to enforce this
Agreement the parties agree that jurisdiction and venue are waived and suit
shall be brought exclusively in Cameron County.
15.
Notices. Any notice, demand or other communication required or
permitted by this Agreement must be in writing and shall be deemed to have
been
given and received: if delivered by overnight delivery service or messenger,
when sent, or if mailed, on the third business day after deposit in the United
States mail, certified or registered postage prepaid, return receipt requested;
in every case addressed to the party to be notified as follows:
If
to
Rutgers:
Rutgers
Investment Group, Inc.
Attn:
▇▇▇▇ ▇▇▇▇▇▇▇▇, CEO
▇▇▇▇
▇.
▇’▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
If
to
CLIENT:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Attn:
▇▇▇▇ ▇▇▇▇▇▇▇, President
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
16.
No-Waivers. The written waiver by any party of any other party's breach
of any provision of this Agreement shall not operate nor be construed as a
waiver of any subsequent breach, and the written waiver by any party to exercise
any right or remedy shall not operate nor be construed as a waiver or bar to
the exercise of such right or remedy upon the occurrence of any
subsequent breach. All waivers under this Agreement must be in writing and
signed by the parties
hereto.
17.
Headings. Headings in this Agreement are for convenience only and shall
not be used to interpret or construe its provisions.
18.
Governing Law. This Agreement shall be governed by the laws of the
State of Texas (without regard to the laws that might be
applicable under principles of conflicts of law) as to all matters, including,
but not limited to, matters of validity, construction, effect and
performance.
19.
Counterparts. This Agreement may be executed in two or more parts, each
of which shall be deemed an original but all of which together shall be one
and
the same instrument.
20.
Facsimile Copy. A facsimile copy of this Agreement and any signatures
affixed hereto shall be considered for all purposes as originals.
▇▇.▇▇▇▇▇▇▇▇
in fact. Notwithstanding anything else contained in this agreement;
CLIENT shall authorize Rutgers to negotiate
any and all negotiable instruments as their attorney in fact and at law with
respect to the Loans only. Further, Rutgers
expressly has the limited authority to collect funds payable to
CLIENT or any of its agents or assigns and to negotiate same in
Rutgers’s name. Rutgers shall
process all negotiable instruments payable to CLIENT or its
affiliates, agents, representatives, officers, or otherwise and shall provide
an
accounting of same. Rutgers shall, within 48 hours
of receipt, forward to CLIENT all proceeds due to
CLIENT in accordance with the agreements between
the
parties.
▇▇.▇▇▇▇▇▇▇▇
Purpose. Notwithstanding anything else contained in this Agreement; the
parties expressly agree that this Agreement is for the use of the business
and
its employees. Should CLIENT or any of its
employees, owners, shareholders, stockholders, agents, or other authorized
parties seek protection under the bankruptcy laws, the parties expressly agree
that upon the payment of all fees and expenses contemplated herein,
Rutgers may forward all denoted monthly payments into the
bankruptcy court and continue to operate CLIENT for a period
not to exceed 180 days. The parties determining that a fair market
value for the services contemplated herein is denoted herein. Any
objection to such payments for the use of CLIENT is hereby
waived to the extent permitted by law.
IN
WITNESS WHEREOF the parties have executed this Agreement as of the day
and year first above written.
|
Rutgers
Investment Group, Inc.
|
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
|
|||
|
By:
|
/s/
▇▇▇▇ ▇▇▇▇▇▇▇▇
|
By:
|
/s/
▇▇▇▇ ▇▇▇▇▇▇▇
|
|
|
▇▇▇▇
▇▇▇▇▇▇▇▇, CEO
|
▇▇▇▇
▇▇▇▇▇▇▇, President
|
|||
|
Rutgers
Investment Group, Inc
|
||||
|
By
|
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|||
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, CFO
|
||||