Exhibit 10.2
WMC
---
MORTGAGE CORP. BROKER ORIGINATION AGREEMENT
----------------------------
This Broker Origination Agreement ("Agreement") is made this 27th day of April,
1999, by and between WMC Mortgage Corp., a California corporation ("Lender") and
WESTMARK MORTGAGE CORPORATION, a California corporation ("Broker").
WHEREAS, Lender is in the business of originating, loans secured by residential
real property; and
WHEREAS, Broker is in the business of submitting to lenders loan application
packages on behalf of its clients who are seeking loans on their residential
real property;
NOW, THEREFORE, Lender end Broker enter into this Agreement for the purpose of
Broker submitting loan application packages to Lender on the following terms and
conditions, intending to be legally bound:
1. NATURE OF LENDER/BROKER RELATIONSHIP. Broker shall prepare and
submit to Lender loan applications and related information and documentation, as
required by Lender's program information and procedures as communicated to
Broker from time to time. Lender shall underwrite each application and, in its
sole discretion, approve or decline such applications. The relationship between
Lender and Broker shall be that of independent contractor; Broker is not the
Agent of Lender. Broker shall have no authority, and shall refrain from
representing that it has authority, to bind, or commit Lender with respect to
the terms or approval of any loan application. This relationship is
non-exclusive, Lender and Broker are free to do business with any other lenders
and brokers they so choose. This Agreement may be terminated by either party
upon written notice.
2. NATURE OF BROKER/APPLICANT RELATIONSHIP. Broker, in submitting loan
applications, is acting as agent for the applicant and is responsible for
keeping the applicant fully informed as to the status of the application. Lender
shall keep Broker informed of such status, and Broker agrees to accurately and
promptly pass all such information on to the applicant. Broker, as the agent for
the applicant, provides services directly to the applicant, which services will
vary from applicant to applicant depending upon the applicant's individual
credit and financial circumstances as well as the specific property for which
financing is sought. The Broker's services shall include those set forth on
Exhibit "A" attached hereto. Broker is responsible for arranging the amount of
its compensation and any fees directly with each applicant, and agrees to
provide this information to Lender at the earliest opportunity in the
application process. Broker shall be responsible for reviewing all loan product
pricing options with each applicant and shall inform the applicant of any
compensation to be paid by Lender to Broker as e result of the selection of a
particular product. Broker shall update the applicant in this regard if any
aspect of the applicant's loan transaction changes.
3. APPROVED BRANCHES. Lender will accept application packages only from
Broker's branch offices as listed on Exhibit "B" attached hereto. Broker agrees
that it is fully responsible for all applications submitted by such approved
branches. In the event that Broker wishes to authorize additional branches to
submit applications pursuant to this Agreement. Broker shall submit to Lender an
updated Exhibit "B". In the event that Broker wishes to terminate the
authorization for a branch to submit applications, Broker must notify Lender in
writing of such fact. Broker agrees that any application submitted by a branch
which has been authorized by Broker pursuant to these provisions shall be
subject to the terms of this Agreement and that Broker shall be fully liable for
such application, unless and until Broker notifies Lender in writing of the
revocation of such authorization.
4. CLOSING. Loans approved by Lender shall be closed in Lender's name
on forms and by settlement agents approved by Lender. Where applicable, Broker
shall ensure that an Insured closing protection letter is obtained in connection
with the closing of each loan. In some cases, Lender and Broker may agree that
loans will be closed in the Broker's name, using funds provided by Lender at
closing. Broker agrees to fully cooperate with Lender in the processing of any
application submitted and, upon the reasonable request of Lender prior or
subsequent to funding, perform all such further acts as may be required to
effect the transactions provided for in this Agreement.
5. BROKER REPRESENTATIONS AND WARRANTIES. Broker represents and
warrants as of the date of each agreement and with the submission of each
application and its related documentation: (i) that it has all requisite
authority to enter into this Agreement and to execute the transactions
contemplated hereunder; (ii) that it has all
required legal or regulatory approvals, licenses, or authorizations to conduct
the business of brokering loans in all jurisdictions in which operates; (iii)
that the entering into and performance under this Agreement shall not cause
Broker to violate the terms of any governing organizational instrument of Broker
or any other instrument or agreement to which Broker is a party; and (iv) that
there is no action, suit, proceeding or investigation pending or threatened
against Broker which may result in a material adverse change in Broker's
business or financial condition or its ability to perform under this Agreement.
Broker further represents and warrants that all information regarding Broker
submitted to Lender is true, accurate and complete in all respects.
6. LOAN REPRESENTATIONS AND WARRANTIES. Broker represents and warrants
as to each loan application submitted to Lender, as of the date of submission
and the date of funding:
a. Broker has full right and authority to assign and transfer
each loan application to Lender, not subject to any other
person's interest or lien therein;
b. The application was taken and processed by Broker and such
application and all documentation and information provided to
Lender by Broker was produced in full compliance with all
applicable federal, state and local laws and regulations. Broker
specifically acknowledges its obligations to comply with laws and
regulations governing "Fair Lending."
c. All documentation and information submitted to Lender by
Broker in connection with a loan application is true and correct
in all material respects and does not fail to include any
information the exclusion of which would cause such documentation
to be misleading.
d. Broker and Broker's employees have not engaged in any
fraudulent activity and, to the best of Broker's knowledge, no
fraud has occurred by act or omission of any person in connection
with the application or the processing of the application or the
origination of the loan.
e. The appraisal obtained by Broker provides a bona fide market
value of the property to be mortgaged and was performed by an
appraiser who holds all required licenses or approvals and has no
interest in the real property to be appraised and who will
receive no compensation which is affected by the approval or
declination of the loan application. Lender shall not be
responsible for the cost of such appraisal.
7. REMEDIES FOR BREACH. In the event that Lender suffers any loss or
incurs any expense as the result of Broker's breach of its covenants,
representations or warranties obtained in this Agreement, upon written
notification from Lender. Broker shall have fifteen (15) days to cure such
default, and in the event that such default is not cured, or in a case of a
default which cannot be cured, Broker shall immediately pay to Ladder the full
amount of any costs, damages, losses, expense or liability which Lender has
incurred as a result of Broker's breach. Broker agrees that any such breach
which results in the impairment of a loan originated hereunder may result in
Lender being required to repurchase such loan from a subsequent investor, and
will cause Lender to exercise certain remedies including, but not limited to,
resale at a discount or foreclosure and sale of the collateral, which may result
in damages subject to reimbursement by Broker pursuant to this paragraph. Lender
shall have full discretion to deal with such impaired loans as it sees fit so
long as Lender exercises good faith in making such determinations, and shall not
be required to consult with or give notice of such actions to Broker. Broker
further agrees that in the event that a loan originated hereunder is rescinded
by the borrower, that Broker shall refund to Lender all broker compensation and
fees paid by borrower or Lender whether such compensation or fees were paid
through or outside of closing.
8. EARLY REFINANCE. Broker agrees that it will not solicit the
prepayment of any loan originated hereunder, and will not for compensation or
otherwise prepare or disseminate any list of borrowers arising from applications
submitted to Lender. In the event that Broker causes any loan originated
hereunder to be paid off within six (6) months of the funding date, due to a
refinance loan arranged by Broker, Broker shall reimburse Lender for the full
amount of any compensation paid by Lender to Broker for the origination of the
loan.
9. GENERAL PROVISIONS. This Agreement, along with Lender's product
guidelines, policies and procedures as provided to Broker from time to time as
well as the Zero Fraud Tolerance and Fair Lending Compliance Policies,
constitutes the entire agreement between the parties and supersedes any and all
prior written or oral agreements between the parties as to the subject matter
hereof and may not be modified or amended except in writing and signed by both
parties. Broker may not assign this Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and Lender's successors and
assigns In the event that any
2
Exhibit 10.2
provision of this Agreement is held to be invalid, the same shall not affect the
validity of the remainder of this Agreement. The prevailing party in any
judicial proceeding regarding this Agreement shall be entitled to recover from
the losing party its reasonable attorneys' fees and out of pocket expenses
incurred in connection with such dispute. This Agreement shall be governed by
and construed in accordance with the laws of the State of California. This
Agreement may be executed in one or more counterparts. Notices or other
communication required or permitted to be given under this Agreement shall be in
writing and shall be deemed to have been given upon actual delivery or upon the
mailing by registered or certified mail, telecopy, courier or overnight express
delivery to the address for each party set forth below or to such other address
as either party shall designate in writing:
If to Lender: WMC MORTGAGE CORP.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: Broker Approval Dept.
If to Broker: WESTMARK MORTGAGE CORP
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇ Story
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized representatives as of the date set forth above.
WMC MORTGAGE CORP., a California corporation Broker: WESTMARK MORTGAGE CORP.,
a California corporation
By: By: ▇▇▇▇▇▇ STORY, III
---------------------------- ----------------------------
Its: ASSISTANT SECRETARY Its: PRESIDENT
--------------------------- ----------------------
3