Exhibit 10.9
CORRESPONDENT
AGREEMENT
FORM 200
This Correspondent Loan Purchase Agreement
(“Agreement”), dated the 26 th day of
April, 2004, by and between CitiMortgage, Inc.
(“CMI”), for itself and on behalf of Citibank, FSB,
Citibank (West), FSB, and Citibank, N.A., and;
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HOME LOAN CENTER,
INC (“Correspondent”).
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In consideration of the terms contained in this
Agreement, CMI and Correspondent agree as follows:
1. PURCHASE AND SALE OF MORTGAGE LOANS
From time to time, Correspondent may
sell to CMI and CMI may purchase from Correspondent one or more
residential mortgage, home equity or other loans
(“Loan(s)”) in accordance with the terms, conditions,
requirements, procedures, representations and warranties set forth
in the “CitiMortgage, Inc. Correspondent Manual”
and all amendments, bulletins, program requirements and supplements
to such Manual (collectively hereinafter referred to as the
“CMI Manual”), and this Agreement. CMI and
Correspondent agree that the CMI Manual is incorporated by
reference herein and is part of this Agreement. Further, CMI and
Correspondent agree that Citibank, FSB; Citibank (West), FSB; and
Citibank, N.A. are intended third party beneficiaries of this
Agreement.
For each Loan offered for sale by
Correspondent to CMI, Correspondent will deliver Loan documentation
to CMI in accordance with the applicable terms, conditions,
requirements, procedures, representations and warranties set forth
in the CMI Manual. CMI may purchase Loans with or without
conducting a complete review of the Loan documentation. CMI’s
review of, or failure to review, all or any portion of the Loan
documentation shall not affect CMI’s rights to demand
repurchase of a Loan or any other CMI right or remedy provided by
this Agreement.
For each Loan CMI agrees to
purchase, CMI shall pay the amount agreed upon by CMI and
Correspondent (“Purchase Price”) in accordance with the
applicable provisions of the CMI Manual. CMI may offset against the
Purchase Price any outstanding fees or other amounts owing from
Correspondent to CMI in connection with the particular purchase or
other transactions.
As of the date CMI purchases each
Loan, Correspondent will (i) transfer to CMI all of its right,
title and interest in and to each Loan, including without
limitation all documents held or subsequently acquired by
Correspondent relating to each Loan and (ii) execute all
documents necessary to transfer such right, title and interest to
CMI.
2. REPRESENTATIONS AND WARRANTIES
Correspondent represents, warrants
and covenants throughout the term of this Agreement as
follows:
(a) That it is duly organized, validly existing, in
good standing, qualified and authorized to do business in each
jurisdiction where it originate Loans or where a property securing
any of its Loans is located; that all corporate or other actions
and approvals necessary for the execution and performance of this
Agreement have been taken and/or received; and that no consent from
any third party is required for the execution and performance of
this Agreement.
(b) That it (i) holds and shall maintain in
good standing throughout the term of this Agreement all applicable
license(s) and/or registration(s) in each jurisdiction
that is/are necessary for Correspondent’s Loan origination,
purchase and sale activities under this Agreement and (ii) is
in full compliance with all laws in each jurisdiction which govern
Correspondent’s activities under this Agreement.
Correspondent agrees to promptly provide CMI with copies of all
such license(s) and/or registration(s) upon request by
CMI.
(c) That it will allow CMI to periodically
investigate the financial (including but not limited to obtaining
corporate and/or individual credit reports) and other status of
Correspondent and, if necessary, the financial and other status of
Correspondent’s directors, officers and/or employees. If
necessary, Correspondent shall cooperate with CMI to obtain the
written consent of one or more of Correspondent’s directors,
officers and/or employees to such periodic investigation.
Correspondent agrees that the failure to obtain such consent may
result in the termination of this Agreement in accordance with the
provisions of Sec. 7.
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(d) That it is thoroughly familiar with and will
comply with all applicable federal (including but not limited to
the Real Estate Settlement Procedures Act, Truth-In-Lending Act,
Equal Credit Opportunity Act and federal fair lending laws), state
and, if necessary, local laws and regulations directly or
indirectly relating to its activities under this Agreement
(including but not limited to involvement in such activities of
individuals convicted of crimes involving dishonesty or breach of
trust).
(e) That Correspondent is an approved
seller/servicer of conventional residential adjustable and
fixed-rate mortgage Loans for Fannie Mae, Freddie Mac, and/or is a
FHA-, VA- and/or HUD- approved mortgagee; that Correspondent is
duly qualified, licensed, registered and otherwise authorized under
all applicable laws and regulations and is in good standing to
(i) originate, sell, endorse and assign Loans and, if
applicable, the related Loan collateral to CMI, (ii) service
Loans in the jurisdiction(s) where, if applicable, the
properties securing such Loans are located for Fannie Mae, Freddie
Mac, FHA or VA, and (iii) no event has occurred that would
make Correspondent unable to comply with Fannie Mae, Freddie Mac,
FHA, VA or HUD eligibility requirements or that would require
notification to Fannie Mae, Freddie Mac, FHA or VA or
HUD.
(f) That it does not believe, nor does it have any
reason or cause to believe, it cannot perform every covenant
contained in this Agreement or continue to carry on its business
substantially as now conducted; that it is solvent and the sale of
Loans will not cause it to become insolvent; that no action, suit,
proceeding or investigation pending or threatened against
Correspondent, either alone or in the aggregate, may result in its
inability to carry on its business substantially as now conducted;
and that the sale of Loans under this Agreement is not undertaken
with the intent to hinder, delay or defraud any of its
creditors.
(g) That it has obtained and reviewed or will, upon
execution of this Agreement, promptly obtain and review the CMI
Manual and will fully comply with its terms, conditions,
requirements and procedures.
(h) That it does not currently and will not in the
future employ any entity or individual on the Freddie Mac
exclusionary list.
(i) That neither this Agreement nor any statement,
report or other information provided or to be provided pursuant to
this Agreement (including but not limited to the statements and
information contained in the documentation for each Loan purchased
by CMI) contains or will contain any misrepresentation or untrue
statement of fact or omits or will omit to state a fact necessary
to make the information not misleading. The provisions of this
sub-section shall not apply to information obtained from
(i) appraisers, escrow agents, title companies, closers,
credit reporting agencies or any other entity approved by CMI
(“Approved Entity”) unless Correspondent knows or has
reason to believe that any information provided by such Approved
Entity is not true, correct or valid in any material respect and
(ii) the Loan applicant(s) unless Correspondent knows,
has reason to believe or, after performing its normal due diligence
and quality control review, should have known that any information
provided by the Loan applicant(s) is not true, correct or
valid in any material respect.
(j) That the documentation for each Loan sold to CMI
(i) shall be duly executed by the borrower(s), (ii) shall
create a valid and legally binding obligation of the
borrowers(s) and (iii), if applicable, shall create a fully
enforceable first or subordinate lien on the property securing
repayment of the Loan.
(k) That each mortgage, home equity or other Loan
(i) shall be fully enforceable and originated in accordance
with the terms, conditions, representations, warranties and
covenants contained in the CMI Manual and this Agreement which were
in effect as of the Loan closing date, (ii), if applicable, was
serviced in accordance with applicable Fannie Mae, Freddie Mac,
FHA, VA and/or HUD requirements and industry standards, and
(iii) is subject to no defects or defenses, including but not
limited to damage to the property securing the Loan, lien
imperfections or environmental risk.
(I) That any third-party originators referring, or
in any way involved with, any Loan shall be, at a minimum, approved
by Correspondent according to Fannie Mae, Freddie Mac, FHA, VA
and/or HUD guidelines for approving third-party originators as
described in the CMI Manual.
(m) That
it will immediately notify CMI if it (i) fails to maintain any
license or registration in violation of Sec. 2(b) above and/or
(ii) becomes subject to any enforcement and/or
investigative
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proceeding by any licensing or
regulatory authority or agency and/or (iii) is named as a
party or becomes involved in any material litigation.
(n) That it will immediately notify CMI if
(i) Correspondent and/or any of its principal
director(s) or owner(s) becomes the debtor in any
voluntary or involuntary bankruptcy proceeding,
(ii) Correspondent and/or any of its principal
director(s) or owner(s) requests the appointment of a
receiver and/or (iii) Correspondent and/or any of its
principal director(s) or owner(s) has incurred or is likely to
incur a material, adverse change in its/their financial
condition.
(o) That it will immediately notify CMI of any
material change in ownership and/or management.
(p) That it will promptly respond to or otherwise
comply with CMI’s reasonable request(s) for periodic
financial statements of Correspondent and/or any of its principal
director(s) or owners and any other documentation required by
CMI in connection with the recertification of
Correspondent.
(q) That it will fully comply with all additional
representations, warranties and covenants contained in the CMI
Manual.
(r) That all representations, warranties and
covenants contained in this Agreement and the CMI Manual shall
survive the expiration and termination of this
Agreement.
3. COSTS
Correspondent shall pay all costs
and expenses incurred in connection with the transfer and delivery
of Loans to CMI purchased pursuant to this Agreement, including but
not limited to mortgage Loan assignment preparation and recording
fees, fees for title policy endorsements and continuations, and
Correspondent’s attorneys’ fees.
4. CORRESPONDENT ADVERTISING; NON-SOLICITATION AND
CUSTOMER PRIVACY
Correspondent may advertise to the
public the availability of various Loan programs, but Correspondent
may not, in any way, directly or indirectly identify CMI in all
such advertising unless (i) required by applicable law or
(ii) CMI has, in advance, approved use of CMI’s name in
such advertising.
Correspondent agrees that the
borrower(s) on all Loans shall, at the time of purchase by
CMI, become the exclusive customers of CMI for all
Loan-related purposes. During the first
twelve (12) months after the date any Loan is purchased
by CMI, Correspondent represents and warrants that
Correspondent, Correspondent’s
directors,&nbs
