Exhibit 10.9
MORTGAGE BROKER AGREEMENT
This agreement (the "Agreement") is effective as of the 23 day of March, 1999,
and is entered into in San Jose, California, by and between FIRST FRANKLIN
FINANCIAL CORPORATION, a Delaware corporation ("FFFC"), and WESTMARK MORTGAGE
CORP. ("BROKER").
RECITALS
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A. BROKER is in the business of negotiating loans on behalf of others
("Borrower(s)") for a fee or other consideration.
B. FFFC is in the business of, among other things, making loans secured by
real property.
C. The parties wish to establish a relationship whereby BROKER. as an
independent contractor, will submit Borrower loan packages to FFFC for
possible funding ("Loan(s)"), all in accordance with the terms contained
herein.
AGREEMENT
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NOW, THEREFORE, the parties agree as follows:
1. SUBMISSION OF LOAN Packages. BROKER will:
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1.1 COMPLETED PACKAGES. Submit to FFFC completed Loan packages for
Borrowers under such programs, terms, and requirements as FFFC
may establish from time to time;
1.2 CREDIT INFORMATION. Furnish to FFFC at BROKER'S sole expense
such credit, financial, and other information concerning
Borrowers that FFFC may require in determining whether to
approve and fund the Loan(s); and
1.3 OTHER SERVICES. Perform at BROKER'S sole expense such other
services as FFFC shall require in closing the Loan(s). No
Appraisal or Title company controlling, controlled by or under
common control with Broker shall be used in connection with
the closing of any loan.
2. FFFC'S DISCRETION. Nothing in this Agreement shall require FFFC to
approve and/or fund any Loan presented by BROKER, which approval shall
be solely within FFFC's absolute discretion. BROKER shall not warrant
or represent to any Borrower that FFFC has approved or will approve and
fund any Loan until such time as BROKER is so informed by FFFC in
writing.
3. FEES. Any fee, commission, or other consideration to be received by
BROKER with respect to any Loan shall be paid by FFFC to BROKER only
after FFFC deducts from the Loan all its fees and charges in connection
therewith as specified in FFFC price schedules released from time to
time. No payment whatsoever shall be owed to BROKER by FFFC on account
of any proposed Loan which is not funded and closed.
4. Warranties by BROKER. BROKER represents and warrants to FFFC that:
4.1 LOAN SUBMISSION. The contents of all Loan packages submitted
to FFFC immediately shall become the property of FFFC, and all
information therein may be subject to FFFC's independent
verification.
4.2 NO UNTRUE STATEMENTS. None of the statements or information
with respect to income documentation, cash or cash equivalent
asset documentation, or subject property occupancy
documentation contained in any Loan package submitted to FFFC
will contain any untrue statement or omit to state a fact
necessary in order to make such statements or information not
misleading. BROKER understands that by making the warranty
contained in this subparagraph it is warranting the accuracy
of all income documentation, cash or cash equivalent
documentation, or subject property occupancy documentation
contained in any Loan package submitted to FFFC, whether or
not BROKER has knowledge, or reason to suspect, any inaccuracy
contained therein.
4.3 DULY LICENSED. BROKER possesses all necessary licenses and
permits from all applicable local, state and federal
authorities to engage in the activities contemplated by this
Agreement.
4.4 COMPLIANCE WITH LAWS. In connection with BROKER's activities
in general and with the preparation of Loan packages for
Borrowers. BROKER wilt comply with all applicable laws. rules,
and regulations, and amendments thereto, including without
limitation the Truth-ln-Lending Act and Regulation Z issued
thereunder; the Fair Credit Reporting Act; the Equal Credit
Opportunity Act and Regulation B issued thereunder; the Real
Estate Settlement Procedures Act and Regulation X issued
thereunder; and all state and federal fair lending laws and
regulations.
4.5 VALID ORGANIZATION. BROKER is. and throughout the term of this
Agreement will be. a corporation duly organized, validly
existing, and in good standing under the laws of the state of
its organization and has all necessary power and authority to
execute this Agreement, which has been authorized by all
necessary corporate action. The execution, delivery, and
performance of this Agreement by BROKER will not violate any
agreement to which BROKER is a party.
5. REPRESENTATION; WARRANTIES TRUE AT FUNDING; CLOSING. The
representations and warranties made by BROKER to FFFC shall be true in
ail respects on the dates the Loan is funded by FFFC and the Loan
transaction closes. If at any time during the period between the
submission of any Loan package to FFFC and the funding and closing of
the Loan, BROKER learns, or has reason to believe, that any of its
representations and warranties may cease to be true, BROKER shall give
written notice thereof to FFFC immediately.
6. BROKER'S INDEMNIFICATION. BROKER shall indemnify and hold FFFC harmless
from and against, and shall reimburse FFFC with respect to forty
percent (40%) of any and all loss, damage, liability, costs, and
expenses, including, reasonable attorneys' fees and incurred by FFFC by
reason of or arising out of or in connection with (a) any breach of any
representation or warranty contained in paragraph 4, and (b) and the
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failure of BROKER to perform any obligation required by the Agreement
to be performed by it. Should any event requiring indemnification under
this paragraph occur, in its attempt to mitigate its losses FFFC shall
consult with the Broker with regard to (a) selecting a Realtor to
market the property securing the Loan, (b) selling the Loan to another
investor at a discount, or (c) refinancing the Loan through the BROKER.
Not withstanding the foregoing, all decisions respecting mitigation
shall be made by FFFC.
7. NO SOLICITATION. For one hundred-twenty (120) days after the funding of
any Loan by FFFC with above par pricing, BROKER shall not solicit, or
take any refinance loan application on the same property from, the
Borrower(s) to whom such Loan was made.
8. TERMINATION OF AGREEMENT. This Agreement may be terminated at any time
by written notice by either party, provided that the obligations
contained in paragraphs 3 through 12 shall survive termination.
9. FORUM; GOVERNING LAW. This Agreement shall be deemed to have been
entered in the County of Santa Clara, State of California, and all
questions regarding the validity, interpretation, or performance of any
of its terms or of any rights or obligations of the parties shall be
governed by California law. Any action arising out of this Agreement
shall be initiated only in a California court or in the Northern
District of the United States District Court.
10. MISCELLANEOUS.
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10.1 ATTORNEYS' FEES. If any legal action or other proceeding is
brought for the enforcement of this Agreement, or because of
an alleged dispute, breach, default, or misrepresentation in
connection with any of the provisions of this Agreement, the
successful or prevailing party or parties shall be entitled to
recover reasonable attorneys' fees and other costs incurred in
that action or proceeding, in addition to any other relief to
which it or they might be entitled.
10.2 ENTIRE AGREEMENT AMENDMENT. This Agreement constitutes the
entire agreement between the parties pertaining to the subject
matter contained in it and supersedes all prior and
contemporaneous agreements, representations, and
understandings of the parties. No supplement, modification, or
amendment of this Agreement shall be binding unless executed
in writing by all parties.
10.3 WAIVERS; NON-CUMULATIVE REMEDIES. Failure or delay on the part
of either party to audit any Loan or to exercise any right
provided for herein shall not act as a waiver of any right
hereunder, nor shall any single or partial exercise of any
right by any party preclude any other or further exercise
thereof. No waiver of any, of the provisions of this Agreement
shall be deemed, or shall constitute, a waiver of any other
provision, whether or not similar, nor shall any waiver
constitute a continuing waiver. No waiver shall be binding
unless executed in writing by the party making the waiver.
Remedies herein are deemed as cumulative and nonexclusive on
each other.
11. DISCLOSURE OF INFORMATION. BROKER understands and agrees that FFFC may
report instances of BROKER's making any material misstatement in
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connection with a Loan, or BROKER's knowingly aiding a Borrower to do
the same, to the appropriate regulatory agency or any other interested
party, including other mortgage bankers. BROKER acknowledges the
importance to the mortgage industry of FFFC's right and necessity to
disclose such information and waives any and all claims for liability,
damages, or equitable or administrative relief in connection with
FFFC's disclosure of such information.
Wherefore, the parties have executed this agreement effective as of the date
first above written.
BROKER: FFFC:
Print Name: Westmark Mortgage Corporation First Franklin Financial Corporation
2150 N. First Street
Address: 8000 N. Federal Highway San Jose, California 95131
(408) 955-9600
City, State, Zip: Boca Raton, FL 33487
By: /s/
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Fax: 561-526-3696 Name Title
By: /s/ Payton Story, III President Date: 8/20/99
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Name Title
Date: 3/23/99
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