LISTING LOAN PROGRAM AGREEMENT
WHEREAS the Agent is in the business of selling houses and properties for Customers; AND WHEREAS Vault has agreed to configure and provide hosting and support services for the Software to facilitate the online adjudication of Applications of Customers for Listing Loans that will be used by Customers to finance home improvement expenditures in advance of the sale of the Customer’s home or property; AND WHEREAS Vault has agreed, subject to the terms of this Agreement, to provide Listing Loans to the Agent’s Customers;NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1 - DEFINITIONS
1.1 Definitions; In this Agreement:
“Agreement” means this Agreement, including all schedules hereto;
“Application” means an application for a Listing Loan made by the Agent on behalf of a Customer by means of the Software;
“Approved Listing Loan” means an Application that has been approved by Vault by means of the Software;
“Customer” means an individual who has retained the Agent to assist with the sale of their house and/or property and who is seeking a Listing Loan from Vault;
“Agent Checklist” means the checklist in respect of an Approved Listing Loan as amended from time to time which sets out, and pursuant to which the Agent represents and warrants to Vault that it has performed, all of the acts and things required of the Agent by Vault in the preparation, completion and execution of the Application and Listing Loan Documents relating to the Approved Listing Loan. The current Agent Checklist requires the Agent to confirm, among other things, that all of the Listing Loan Documents have been properly, accurately and fully completed without any amendments or modifications, all of the Listing Loan Documents have been executed by the Customer and a copy thereof given to the Customer, the Designated Representative has confirmed the identification of the Customer using photo identification, descriptive details of which have been delivered to Vault with the rest of the Listing Loan Documents, and all consumer protection requirements have been complied with and the Agent has confirmed that the Customer will use the proceeds of the Listing Loan for home improvement expenditures in advance of the sale of the Customer’s house or property;
“Designated Representative” means an individual designated by the Agent to prepare, complete, process and review Applications and Listing Loan Documents and to administer the Finance Program available to the Agent via the Software as the case may be;
“Finance Program” means the finance program arranged by Vault for financing the home improvement expenditure by a Customer through Listing Loans which were approved by means of the Software;
“Funded Amount” means that portion of the Maximum Available Amount which is actually approved for funding by Vault;
“Listing Loan” means a loan or other financing transaction between Vault and a Customer, to be used for home improvement expenditures in advance of the sale of the Customer’s house or property, in an amount not exceeding the Maximum Available Amount, which is to be fully repaid at the date of the sale of the Customer’s house or property;
“Listing Loan Agreement” means a Listing Loan agreement between a Vault and a Customer;
“Listing Loan Documents” means the Listing Loan Agreement and all other loan, security and other agreements from time to time required by Vault in connection with an Approved Listing Loan;
“Material Adverse Event” means (a) the Agent fails to perform when due any obligation under this Agreement or any Listing Loan Documents (including, but not limited to, the Agent’s obligation to pay Vault’s Fees); (b) the Agent shall (i) generally not pay its debts when due, (ii) admit in writing its inability to pay its debts generally, (iii) make any assignment for the general benefit of creditors, (iv) commence or have instituted against it any formal or informal proceedings seeking to adjudicate it bankrupt or insolvent or seeking composition of its debts, protection or relief from creditors or the appointment of any receiver or trustee for it or any of its property or (v) take any action to authorize any of the foregoing; (c) any encumbrancer takes possession of, any execution, sequestration, extent or other process of any court becomes enforceable against, or any distress or analogous process is levied upon, any material property of the Agent; (d) the Agent commits or attempts to commit a fraud against Vault; (e) Vault experiences a significant amount (determined by Vault in its sole discretion) of customer service disputes, inquiries or complaints from Customers or identifies fraudulent Listing Loans;
“Maximum Available Amount” in respect of any Approved Listing Loan means the aggregate of the Principal Amount, Registration Fees and other fees payable by a Customer in connection therewith;
“Person” means an individual, body corporate, partnership or other juridical entity;
"Principal Amount” in respect of an Approved Listing Loan means the amount disbursed by Vault to the Customer;
“Registration Fees” means the fees and disbursements payable to the registration agent in respect of a security registration related to a Listing Loan;
“Software” means the financial portal software known as “VaultPay.ca” licensed and used by Vault to deliver services covered by this Agreement, as such software and application may from time to time be amended, supplemented or otherwise modified or replaced by Vault; and
“Vault’s Fees” means the amounts payable by the Agent to Vault as compensation for the services provided by Vault to the Agent’s Customers.
ARTICLE 2 - TERM AND TERMINATION
This Agreement shall remain in full force and effect for a period of 5 years from the date set out on the first page hereof and will be automatically renewed for successive periods of 1 year thereafter unless notice of termination is given by either party upon not less than 90 days notice prior to the last day of the term or any renewal period thereof.
This Agreement may be terminated by Vault upon written notice to the Agent at any time that a Material Adverse Event has occurred and is continuing. Notwithstanding the foregoing, if notice of termination is given by Vault, only the obligations of Vault after the effective date of termination shall terminate, and the obligations of the other parties shall continue in full force and effect. Each party shall remain liable to the other for all obligations arising under this Agreement prior to any termination of this Agreement. Upon termination of this Agreement by Vault the Agent shall not submit any further Applications.
ARTICLE 3 - REPRESENTATIONS, WARRANTIES, FEES AND RETURN OF FUNDING
3.1 Representations and Warranties - The Agent represents and warrants to Vault as follows:
(a) This Agreement has been duly executed and delivered by the Agent and constitutes a valid and legally binding obligation of the Agent enforceable in accordance with its terms;
(b) With respect to any home improvements or similar services acquired by a Customer financed by way of a Listing Loan, there are and have been no agreements, commitments or understandings between the Agent, its employees, servants or agents and any Customer in connection with the home improvements or similar services which would modify, amend or waive any terms or conditions of any Listing Loan Documents relating to the Listing Loan;
The representations and warranties made by the Agent pursuant to this Agreement shall be true and correct on each day that this Agreement or any Transaction Document remains in effect as if such representations and warranties had been made and given on and as of each such day and shall survive any termination of this Agreement. The representations and warranties made under this Agreement and the ability of Vault to rely upon them, shall not be affected or qualified in any way by any investigation at any time made by, or any actual knowledge of Vault.
3.3 Vault’s Fees
The Agent acknowledges that Vault is providing services to the Agent’s Customers, including no-interest or low-interest Listing Loans. The Agent agrees to pay Vault’s Fees as set out in Appendix A to Vault as compensation for these services. The Agent agrees that Vault’s Fees in relation to each Approved Listing Loan will be paid prior to advancing the Funded Amount to the Customer and that those funds are non-refundable after such advance.
3.4 Return of Funding
Upon the occurrence of any of the following:
(a) The Listing Loan Documents in respect of an Approved Listing Loan were not duly executed by the Customer;
(b) The Agent has failed to comply with material requirements in the Agent Checklist in relation to the Approved Listing Loan;
(c) The Customer has rescinded the Listing Loan Agreement or can validly deny having entered into the Listing Loan Agreement;
(d) A Listing Loan is for any reason illegal, null, void, voidable or invalid, or the indebtedness evidenced thereby is for any reason unenforceable;
(e) A Listing Loan was obtained or induced by fraud or misrepresentation, or the Financing Transaction represents a fictitious transaction, or is otherwise a fraud or an attempt to defraud Vault as determined by Vault in its sole discretion;
(f) An agreement exists whereby a term of a Listing Loan has been varied in a material way;
(g) The Listing Loan was obtained or induced by unfair, unconscionable or deceptive trade practices or other unlawful conduct by the Agent, its employees or agents;
(h) The credit information furnished by a Customer was not accurately reported by the Agent to Vault;
(i) The Agent has failed to comply with any of the terms of this Agreement, or has breached a representation or a warranty made in this Agreement;
(j) The Agent has or has attempted to reduce or disguise the amount of an Approved Listing Loan by the use of multiple Listing Loans; or
(k) The Agent has knowledge or notice that would negatively affect, in a material way, the performance of the transaction by the Customer or the collection of the amount due from the Customer,
Then in any such case Vault may in its sole discretion (i) not advance the Funded Amount of the relevant Approved Listing Loan to the Customer or (ii) require the Agent to immediately repay the Funded Amount of the relevant Approved Listing Loan to Vault. In the event Vault takes either of the actions contemplated by the preceding clauses (i) or (ii), the relevant Approved Listing Loan shall be deemed not to be an Approved Listing Loan for the purposes of this Agreement and Vault shall have no liability to the Agent in respect thereof. In the event the Agent owes Vault any amounts pursuant to the preceding clause (ii), then Vault may not advance the Funded Amount of any other Approved Listing Loans referred by the Agent for which the advance of the Funded Amount has not yet occurred and for which the Funded Amount of all such Approved Listing Loans is equal to or greater than the amounts owed by the Agent to Vault pursuant to clause (ii) above, and Vault shall set-off against any amounts owing to it by the Agent pursuant to clause (ii) above the Funded Amount of such Approved Listing Loans for which payment has been withheld.
ARTICLE 4 - INDEMNITY
The Agent hereby agrees to indemnify and save harmless Vault, on demand, from and against any and all actions, claims, damages, losses, costs and expenses of any nature or kind (including reasonable legal fees and disbursements on a solicitor and his own client basis) which may be imposed upon, incurred by or asserted or awarded against Vault arising under or in connection with any inaccuracies or breaches by the Agent of the representations, warranties or covenants made by the Agent under or in connection with this Agreement or any Listing Loan Documents, any misrepresentation made by any Designated Representative, agent or employee of the Agent in the course of negotiations regarding any Listing Loan, any act or omission of the Agent which reduces or adversely affects the obligations of the Customer or any Guarantor to Vault under any Listing Loan Documents, or any breach or violation by the Agent of any law or regulation.
4.2 Remedies Cumulative
The rights and remedies of Vault under this Agreement are in addition to and not in substitution of any other rights or remedies of Vault at law and all such rights and remedies are cumulative and may be exercised separately or in combination.
ARTICLE 5 - MISCELLANEOUS
The Agent agrees to keep the information provided by Vault and/or the Customer in connection with the provision of the Listing Loan strictly private and confidential and agrees not to release such information to any third party or to use any of the Customer information for any purpose whatsoever other than in connection with the arrangement of a Listing Loan. Without limiting the generality of the foregoing, the Agent agrees that it will not provide any information about Vault’s product, services, operations, rates or documentation to any third party and that it will cause its employees, sales persons, partners, sub-contractors and agents to keep such information strictly private and confidential.
(a) Conditional upon the Agent complying with the terms of this Agreement, Vault hereby grants Agent a non-exclusive, non-transferable, limited license during the term of this Agreement, to access the Software from locations in Canada, and use the Software for the sole and exclusive purpose of facilitating the adjudication and administration of Applications and/or Approved Listing Loans for Customers (the “Licence”).
(b) The Agent shall not use the Software for any purpose or in any manner, other than in a manner consistent with the Licence. Vault reserves the right, at its sole discretion, to amend Software and the criteria for participation by authorized Agents including cancelling the License. The Agent agrees that, upon being notified of the cancellation of this License, it will immediately stop using Software. The Agent also agrees that it will not modify the Software or any part thereof in any way including, but not limited to, disabling any license or control features.
(c) The Software is owned exclusively by Vault. This License confers no title or ownership and does not represent the purchase or sale of any rights except the right to use the Software. The Agent agrees that it will not copy the Software or any part thereof onto any public network, bulletin board or similar system or for any unauthorized purpose, including displaying the Software to other parties.
(d) The Software and any updates thereto are provided to the Agent on an “as is” basis without warranties of any kind, expressed or implied. In no event shall Vault or its suppliers be liable for any direct, indirect, special, incidental or consequential damages (including, without limitation, lost profit, lost data or downtime costs) or any other damages arising out of the use, the inability to use or the results of use of the Software, whether based in contract, tort or otherwise and whether or not advised of the possibility of such damages
No waiver of any right or remedy of Vault under this Agreement or any Listing Loan Documents shall be effective unless made in writing and signed by an authorized signing officer of Vault and any waiver granted by Vault shall be effective only to the extent and in the circumstances specified therein. No failure, delay or omission by Vault to exercise or enforce any rights or remedies under this Agreement or any Listing Loan Documents shall constitute a waiver thereof or of any other rights or remedies of Vault.
5.4 Relationship of the Parties
The parties hereto agree that they are not partners or joint venturers. The parties hereto agree that neither party shall be liable for the obligations of the other party.
Vault may assign any of its rights under this Agreement without the consent of the Agent. The Agent may not assign any of its rights under this Agreement without the prior written consent of Vault.
5.6 Governing Law, Successors and Assigns
This Agreement shall be governed by and construed in accordance with the laws of Ontario and shall enure to the benefit of and be binding upon the Agent and Vault and their respective successors and permitted assigns.
5.7 Execution in Counterparts
This agreement may be executed and delivered in any combination of original and electronically transmitted counterparts, all of which taken together shall constitute one and the same original agreement, effective as of the date set forth above.
Agent shall maintain accurate business records of all Listing Loans and Listing Loan Documents, approved through the Vault Express system, at its head office. Such records shall be open for inspection or audit by Vault or its agents and representatives, at its expense, during normal business hours on Business Days, upon not less than ten (10) days prior written notice. Agent shall maintain all such records for a period of at least three (3) years after the date to which the records relate. Vault shall have the right to make copies of such records at its own expense.
APPENDIX A – VAULT’S FEES
In relation to each Approved Listing Loan, the Agent will pay the following Fees to Vault:
• 1% of the Loan Amount for each month of No Interest / No Payments