Exhibit 10.7
MASTER LOAN PURCHASE AND SALE AGREEMENT
THIS MASTER LOAN PURCHASE AND SALE AGREEMENT ("Agreement") is made and
dated as of April 14, 1999 between MERRILL LYNCH CREDIT CORPORATION ("MLCC") and
WESTMARK MORTGAGE CORPORATION ("Seller"), 8000 North Federal Highway, Boca
Raton, FL 33487.
RECITALS
Seller is in the business inter alia of originating, making, and
selling one-to-four unit, first lien residential mortgage loans.
MLCC desires to purchase and Seller desires to sell to MLCC such
mortgage loans from time to time on the terms and conditions set forth herein
and in the Merrill Lynch Credit Corporation Seller Guide ("Guide"), a copy of
which Seller has received and reviewed and which is incorporated herein by
reference, including any subsequent amendments delivered by MLCC to Seller from
time to time.
NOW, THEREFORE, in consideration of the mutual covenants made herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. PURCHASE AND SALE OF MORTGAGE LOANS. Following the date of this
Agreement, Seller agrees to deliver to MLCC Mortgage Loans having such
characteristics and in such aggregate principal amounts as are agreed between
MLCC and Seller in accordance with the eligibility guidelines in the Guide and
the Master Commitment. Transactions will be evidenced by Commitment
Confirmations issued by MLCC to Seller pursuant to the Guide. MLCC agrees to
purchase such Mortgage Loans from Seller on the terms and subject to the
conditions of the Commitment Confirmations, this Agreement and the Guide. Seller
hereby acknowledges and agrees to all terms and provisions of the Guide which
relate to the selling of Mortgage Loans, including without limitation, Chapter
2.2 thereof, which are hereby incorporated by reference as if such had been set
forth herein in their entirety and acknowledges that the Guide may be amended
from time to time.
2. GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER. As an
inducement to enter into this Agreement and to consummate each sale hereunder,
Seller and MLCC represent and warrant to each other (as applicable) as follows
(it being acknowledged that each such representation and warranty is made as of
both the date of execution hereof and the Sale Date for each Mortgage Loan):
2.1 DUE INCORPORATION AND GOOD STANDING. Seller and MLCC are
each duly organized, validly existing and in good standing under the laws of its
state of incorporation. Seller and MLCC have and shall continue to maintain in
full force and effect all licenses, registrations and certifications in all
appropriate jurisdictions to conduct all activities to be performed pursuant to
this Agreement. Seller represents that it meets any and all of the eligibility
criteria specified by MLCC.
2.2 AUTHORITY AND CAPACITY. Seller and MLCC have all requisite
corporate power, authority and capacity to enter into this Agreement and to
perform the obligations hereunder. The execution and delivery of this Agreement,
and any related agreements or instruments and the consummation of the
transactions contemplated hereby and thereby, each has been duly and validly
authorized by all necessary corporate action. This Agreement and any related
agreements or instruments each constitutes a valid and legally binding agreement
of Seller and MLCC enforceable in accordance with its terms subject to
bankruptcy law and other similar laws affecting the rights of creditors.
2.3 EFFECTIVE AGREEMENT. The execution, delivery and
performance of this Agreement, and any related agreements or instruments by
Seller or MLCC, its compliance with the terms
hereof and thereof, and consummation of the transactions contemplated hereby and
thereby, will not violate, conflict with, result in a breach of, constitute a
default under, be prohibited by, or require any additional approval under its
articles of incorporation, bylaws, or any instrument or agreement to which
Seller or MLCC is a party or by which it is bound or which materially and
adversely affects the purchase or servicing of the Mortgage Loans, or any state
or federal law, rule, or regulation or any judicial or administrative decree,
order, ruling or regulation applicable to it or to the origination, pooling, or
servicing of the Mortgage Loans.
2.4 COMPLIANCE WITH CONTRACTS AND REGULATIONS. Seller and MLCC
have complied with all applicable (i) agreements and contracts and (ii) federal,
state and local laws and regulations, with respect to any of the Mortgage Loans.
2.5 TITLE TO THE ASSETS. Seller is the lawful owner of the
Mortgage Loans and has the sole right and authority to transfer the Mortgage
Loans as contemplated hereby. Upon payment of the purchase price by MLCC, the
transfer, assignment and delivery of the Mortgage Loans in accordance with the
terms and conditions of this Agreement shall vest in MLCC all rights as owner
free and clear of any and all claims, charges, defenses, offsets and
encumbrances of any kind or nature whatsoever, including but not limited to
those of Seller.
2.6 LITIGATION. There is no litigation, proceeding, claim,
demand or governmental investigation pending or, to the knowledge of Seller or
MLCC, threatened, and no order, injunction or decree outstanding against or
relating to Seller or MLCC, which could have a material adverse effect upon any
of the Mortgage Loans, result in liability to the other party or materially
impair the ability of either party to perform its obligations hereunder, nor
does Seller or MLCC know of any material basis for any such litigation,
proceeding, claim or demand or governmental investigation either against or
relating to Seller or MLCC. Neither Seller nor MLCC is in default with respect
to any order of any court, governmental authority or arbitration board or
tribunal to which Seller or MLCC is a party or is subject, and neither Seller
nor MLCC is in violation of any laws, ordinances, governmental rules or
regulations to which it is subject, the effect of which would have a material
and adverse effect on the ability of either party to perform its obligations
hereunder.
2.7 STATEMENT MADE. No representation, warranty or written
statement made by Seller in this Agreement, or in any schedule or exhibit to
this Agreement furnished to MLCC by Seller, contains, or will contain, any
untrue statement of a material fact or omits, or will omit, to state a material
fact necessary to make the statements contained herein or therein not
misleading.
3. NOTICES. All notices between the parties hereby shall be in writing
and shall be deemed received or given when mailed first-class mail, postage
prepaid, addressed to MLCC at:
4802 Deer Lake Drive East
Jacksonville, FL 32246-6484
Attention: Edward J. McDonald
Senior Vice President/Manager of Sales
Wholesale Lending
(with a copy to General Counsel
at same address)
and to Seller at its address set forth opposite its signature below. MLCC and
Seller may designate to the other party in writing, from time to time, other or
different addresses to which communications hereunder shall be sent.
4. THIRD-PARTY BENEFICIARIES. The assignees, transferees and designees
of MLCC are acknowledged by Seller to be the third-party beneficiaries of this
Agreement entitled to enforce the provisions hereof directly.
5. DEFINITIONS. Capitalized terms not otherwise defined herein shall
have the meaning set forth in the Guide.
6. NON-SOLICITATION. Seller hereby agrees that it will not take any
action or cause any action to be taken by any of its agents, Affiliates, or
independent contractors working on its behalf, personally, by telephone or mail,
to solicit without the prior written consent of MLCC any MLCC Mortgagor for (a)
the prepayment of any Mortgage Loan, in whole or in part, (b) subordinate
mortgage financing, or (c) any financial services or products including, without
limitation, any type of insurance or brokerage account services. Seller agrees
that MLCC may solicit Mortgagors for financial services available from MLCC or
its Affiliates including, without limitation, insurance and brokerage account
services. Seller agrees that it will not prepare or disseminate, for
compensation or otherwise, any mailing list of the Mortgagors to parties other
than MLCC. With the exception of any direct mailings, nothing in this Section 6
shall be deemed to restrict Seller's ability to market any product or service
through solicitations to the general public or through the mass media.
7. POWER OF ATTORNEY. Seller agrees to cooperate with MLCC in order to
permit MLCC to effect transactions with any of its Affiliates, or other parties,
for further sale, assignment, transfer or delivery of any Mortgage Loan or
Mortgaged Property or any part thereof or any interest therein. If so requested
by MLCC, or any successor or assign of MLCC, Seller shall ratify and confirm any
such action, sale assignment, transfer or delivery by executing and delivering
all such instruments and other documents as may be designated in any such
request.
8. SUPPLEMENTARY INFORMATION. From time to time during the term of this
Agreement, Seller shall furnish to MLCC such information supplementary to the
information contained in the documents and schedules delivered pursuant to this
Agreement hereto as MLCC may reasonably request or which may be necessary to
enable MLCC to file any reports due in connection with the Mortgage Loans. If
such information is not readily available to Seller, MLCC agrees to pay Seller a
reasonable fee to compensate Seller for obtaining such information.
9. NO BROKER'S FEES. Each party hereto represents and warrants to the
other that it has made no agreement to pay any agent, finder, or broker or any
other representative, any fee or commission in the nature of a finder's or
broker's fee arising out of or in connection with the subject matter of this
Agreement. The parties hereto covenant with each other and agree to indemnify
and hold each other harmless from and against any such obligation or liability
and any expense incurred by the other in investigating or defending (including
reasonable attorney's fees) any claim based upon the other party's actions under
this paragraph.
10. FURTHER ASSURANCES. Seller shall, at any time and from time to
time, promptly, upon the reasonable request of MLCC or its representatives,
execute, acknowledge, deliver or perform all such further acts, deeds,
assignments, transfers, conveyances, and assurances as may be required for the
better vesting and confirming to MLCC, its successors and assigns of title to
the Mortgage Loans or as shall be necessary to effect the transactions provided
for in this Agreement.
11. TERMINATION. Unless terminated earlier as permitted hereunder, this
Agreement shall expire of its own term, and without the necessity of action by
either party, three (3) years following the date of execution of this Agreement,
unless earlier extended by both parties. This Agreement may be terminated at any
time (a) by mutual written consent of the parties; or (b) by either Party,
without cause, upon thirty (30) days written notice to the other party. MLCC
will honor all Mortgage Loans registered with MLCC by Seller as of the date
notice of termination is given.
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12. EFFECT OF TERMINATION. In the event of termination of this
Agreement as provided in Paragraph 11 hereof, this Agreement shall forthwith
become void and MLCC shall not be required to purchase Mortgage Loans; provided,
however, that termination of this Agreement shall not release any party from
liability for its own misrepresentation or for any breach by it prior to such
termination of any covenant, agreement or warranty contained herein.
13. ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties and supersedes all prior agreements, arrangements and
understandings relating to the subject matter hereof. There are no written or
oral agreements, understandings, representations or warranties between the
parties other than those set forth herein and in that certain Master Commitment
by and between the parties dated as of April 14, 1999, as the same may be
modified, amended, or renewed from time to time, and/or commitment confirmations
between the parties hereto, and in the Guide. Seller acknowledges it is bound by
all conditions of the Guide unless expressly modified by this Agreement or in a
separate written agreement, including but not limited to any Master Commitment
and/or Commitment Confirmation. In the event of a conflict between the terms of
the Guide or any separate written agreement, the terms of the applicable
agreement shall control.
14. RIGHTS CUMULATIVE; WAIVERS. The rights of each of the parties under
this Agreement are cumulative, may be exercised as often as any party considers
appropriate and are in addition to each party's rights under any other documents
executed between the parties or, except as otherwise modified herein, under law.
The rights of each of the parties hereunder shall not be capable of being waived
or varied otherwise than by an express waiver or variation in writing. Any
failure to exercise or any delay in exercising any of such rights shall not
operate as a waiver or variation of that or any other such right. Any defective
or partial exercise of any of such rights shall not preclude any other or
further exercise of that or any other such right. No act or course of conduct or
negotiation on the part of any party shall in any way preclude such party from
exercising any such right or constitute a suspension or any variation of any
such right. At any time prior to any sale, Seller, on the one hand, and MLCC, on
the other, may (a) extend the time for the performance of any of the obligations
or other acts of the other party hereto, (b) waive any inaccuracies in the
representations and warranties of the other party contained herein or in any
document delivered pursuant hereto or (c) waive compliance with any of the
agreements of the other party contained herein. Any agreement on the part of a
party hereto to any such extension or waiver shall be valid if set forth in an
instrument in writing signed by the party granting the extension waiver.
15. SURVIVAL. The representations, warranties, covenants and agreements
contained in this Agreement shall survive the closing of any mortgage loan and
sale to MLCC and shall not terminate, notwithstanding the termination of this
Agreement, any restrictive or qualified endorsement on any mortgage or
promissory note or MLCC's examination or failure to examine any mortgage file or
MLCC's approval of any mortgage loan for purchase.
16. GOVERNING LAW. This Agreement and all related agreements shall be
governed by, construed and enforced in accordance with the laws of the State of
Florida without reference to the choice of law principles thereof.
17. SEVERABILILTY. In the case any provision in this Agreement or any
related agreement shall be found by a court of competent jurisdiction to be
invalid, illegal or unenforceable, such provision shall be construed and
enforced as if it had been more narrowly drawn so as not to be invalid, illegal
or unenforceable, and the validity, legality and enforceability of the remaining
provisions of this Agreement or any related agreement shall not in any way be
affected or impaired thereby.
18. SUCCESSORS AND ASSIGNS. Seller may not assign, or delegate all or
any part of its rights, duties, and/or obligations hereunder without the written
permission of MLCC which may be withheld in its sole discretion. A change in
ownership, merger, or consolidation of Seller shall be considered an assignment
for purposes of this Agreement.
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19. RELATIONSHIP OF PARTIES. The relationship between the parties is an
independent contractor relationship, and Seller is not, and shall not represent
to third parties that it is acting as, an agent for and on behalf of MLCC.
IN WITNESS WHEREOF, Merrill Lynch Credit Corporation and Island
Mortgage Network have caused this Master Loan Purchase and Sale Agreement to be
duly executed in its corporate name by one of its duly authorized officers, all
as of the date first above written.
MERRILL LYNCH CREDIT CORPORATION
By: /s/ Edward J. Mcdonald
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Name: Edward J. Mcdonald
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Title: Senior Vice President
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WESTMARK MORTGAGE CORPORATION
By: /s/ Payton Story, III
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Name: Payton Story, III
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Title: President
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