Client Contract
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This Client Contract (as may be amended, supplemented or otherwise
modified from time to time, this "Contract") is made this ____ day of
____________,19___, by and between Residential Funding Corporation, its
successors and assigns ("Residential Funding"), and Westmark Mortgage
Corporation (the "Customer," and, together with Residential Funding, the
"parties" and each, individually, a "party").
WHEREAS, the Customer desires to sell Loans to, and/or service Loans
for, Residential Funding, and Residential Funding desires to purchase Loans
from, and/or have the Customer service Loans for, Residential Funding, pursuant
to the terms of this Contract and the Guides (as that term is defined below).
NOW, THEREFORE, in consideration of the premises, and the terms,
conditions and agreements set forth below, the parties agree as follows:
1. Incorporation of Guides by Reference.
Residential Funding has approved the Customer to sell Loans
to, and/or service Loans for, Residential Funding under the Guide(s) checked
below. Each Guide that is checked below (as each may be amended, supplemented or
otherwise modified from time to time, together, the "Guides"), is hereby
incorporated into this Contract by reference and for all purposes made a part
hereof.
The Customer has been approved by Residential Funding to sell
Loans to and/or service Loans for Residential Funding, as indicated below, under
the following Guide(s):
STATUS APPLICABLE GUIDES
[ ] Seller Only [ ] Client Guide
[ ] Servicer Only [ ] AlterNet Seller Guide
[ ] Seller and Servicer [ ] Servicer Guide
If a box next to a Guide shown above has not been checked, the
Customer has not been approved by Residential Funding to sell Loans to, or, as
appropriate, service Loans for, Residential Funding, under that Guide(s) at this
time; but, Residential Funding may in the exercise of its sole discretion
approve the Customer to sell Loans to, or, as appropriate, service Loans for,
Residential Funding under that Guide(s) at some time in the future and the
Customer will be authorized to do so upon the execution and delivery by both
Residential Funding and the Customer of an addendum to this Contract in a form
provided to the Customer by Residential Funding containing that approval and
incorporating that Guide(s) into this Contract by reference.
The Customer acknowledges that it has received and read the
Guides. All provisions of the Guides are incorporated by reference into and made
a part of this Contract, and shall be binding upon the parties; provided,
however, that the Customer shall be entitled to sell Loans to and/or service
Loans for Residential Funding only if and for so long as it shall have been
authorized to do so by Residential Funding in writing. Specific reference in
this Contract to particular provisions of the Guides and not to other provisions
does not mean that those provisions of the Guides not specifically cited in this
Contract are not applicable., All terms used herein shall have the same meanings
as such terms have in the Guides, unless the context clearly requires otherwise.
2. Amendments.
This Contract may not be amended or modified orally, and no
provision of this Contract may be waived or amended except in writing signed by
the party against whom enforcement is sought. Such a written waiver or amendment
must expressly reference this Contract. However, by their terms, the Guides may
be amended, modified or supplemented by Residential Funding from time to time.
Any such amendment(s) to the Guides shall be binding upon the parties hereto.
3. Representations and Warranties.
a. Reciprocal Representations and Warranties.
The Customer and Residential Funding each represents
and warrants to the other that as of the date of this Contract:
(1) Each party is duly organized, validly
existing, and in good standing under the
laws of its jurisdiction of organization, is
qualified, if necessary, to do business and
in good standing in each jurisdiction in
which it is required to be so qualified, and
has the requisite power and authority to
enter into this Contract and all other
agreements which are contemplated by this
Contract and to carry out its obligations
hereunder and under the Guides and under
such other agreements.
(2) This Contract has been duly authorized,
executed and delivered by each party and
constitutes a valid and legally binding
agreement of each party enforceable in
accordance with its terms.
(3) There is no action proceeding or
investigation pending or threatened, and no
basis therefor is known to either party,
that could affect the validity or
prospective validity of this Contract.
(4) Insofar as its capacity to carry out any
obligation under this Contract is concerned,
neither party is in violation of any
charter, articles of incorporation, bylaws,
mortgage, indenture, indebtedness,
agreement, instrument, judgment, decree,
order, statute, rule or regulation and none
of the foregoing adversely affects its
capacity to fulfill any of its obligations
under this Contract. Its execution of, and
performance pursuant to, this Contract will
not result in a violation of any of the
foregoing.
b. Customer's Representations, Warranties and Covenants.
In addition to the representations, warranties and
covenants made by the Customer pursuant to subparagraph (a) of this paragraph 3,
the Customer makes the representations, warranties and covenants set forth in
the Guides and agrees to deliver to Residential Funding the certified Resolution
of Board of Directors which authorizes the execution and delivery of this
Contract.
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4. Remedies of Residential Funding.
If an Event of Client Default or Event of Servicer Default
shall occur, Residential Funding may, at its option, exercise one or more of the
remedies set forth in the Guides.
5. Customer's Status as Independent Contractor.
At no time shall the Customer represent that it is acting as
an agent of Residential Funding. The Customer shall, at all times, act as an
independent contractor.
6. Prior Agreements Superseded.
This Contract restates, amends and supersedes any and all
prior Client Contracts or Servicer Contracts between the parties except that any
subservicing agreement executed by the Customer in connection with any
loan-security exchange transaction shall not be affected.
7. Assignment.
This Contract may not be assigned or transferred, in whole or
in part, by the Customer without the prior written consent of Residential
Funding. Residential Funding may sell, assign, convey, hypothecate, pledge or in
any other way transfer, in whole or in part, without restriction, its rights
under this Contract and the Guides with respect to any Commitment or Loan.
8. Notices.
All notices, requests, demands or other communications that
are to be given under this Contract shall be in writing, addressed to the
appropriate parties and sent by telefacsimile, by overnight courier or by first
class United States mail, postage prepaid, to the addresses and telefacsimile
numbers specified below. However, another name, address and/or telefacsimile
number mat be substituted by the Customer pursuant to the requirements of this
paragraph 8, or by Residential Funding pursuant to an amendment to the Guides.
If to Residential Funding, notices must be sent to the
appropriate address or telefacsimile number specified in the Guides.
If to the Customer, notices must be sent to:
Xx. Xxxxxx Story, III
Westmark Mortgage Corporation
000 X. X. 0xx Xxxxxx, Xxxxx 0
Xxxxxx Xxxxx, Xxxxxxx 00000
Attention: Above
Telefacsimile Number ( 000 ) 000-0000
9. Jurisdiction and Venue.
Each of the parties irrevocably submits to the jurisdiction of
any state or federal court located in Hennepin County, Minnesota, over any
action, suit or proceeding to enforce or defend any right under this Contract or
otherwise arising from any loan sale or servicing relationship existing in
connection with this Contract, and each of the parties irrevocably agrees that
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all claims in respect of any such action or proceeding may be heard or
determined in such state or federal court. Each of the parties irrevocably
waives the defense of an inconvenient forum to the maintenance of any such
action or proceeding and any other substantive or procedural rights or remedies
it may have with respect to the maintenance of any such action or proceeding in
any such forum. Each of the parties agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in any other
jurisdiction by suit on the judgment or in any other manner provided by law.
Each of the parties further agrees not to institute any legal actions or
proceedings against the other party or any director, officer, employee,
attorney, agent or property of the other party, arising out of or relating to
this Contract in any court other than as hereinabove specified in this paragraph
9.
10. Miscellaneous.
This Contract, including all documents incorporated by
reference herein, constitutes the entire understanding between the parties
hereto and supersedes all other agreements, covenants, representations,
warranties, understandings and communications between the parties, whether
written or oral, with respect to the transactions contemplated by this Contract.
All paragraph headings contained herein are for convenience only and shall not
be construed as part of this Contract. Any provision of this Contract that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining portions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction, and, to this end,
the provisions hereof are severable. This Contract shall be governed by, and
construed and enforced in accordance with, applicable federal laws and the laws
of the State of Minnesota.
This Contract shall be of no force and effect unless and until
it has been executed by both parties.
IN WITNESS WHEREOF, the duly authorized of ricers of the Customer and
Residential Funding have executed this Contract as of the date first above
written.
[Corporate Seal] CUSTOMER
(if none, so state) ____________________________________
ATTEST: (Name of Customer)
By:___________________________ By:_________________________________
(Signature)
Name:_________________________ Name:_______________________________
(Typed or Printed) (Typed or Printed)
Title:________________________ Title:______________________________
____________________________
[Signatures continued on next page]
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ATTEST: RESIDENTIAL FUNDING CORPORATION
By:__________________________________ By:________________________________
(Signature) (Signature)
Name:________________________________ Name:______________________________
(Typed or Printed) (Typed or Printed)
Title:_______________________________ Title:_____________________________
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