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Last modified: 4/11/2023
WILLOW PROCESSING TERMS AND CONDITIONS (“TERMS”)
These Willow Processing General Terms and Conditions ("Terms") are hereby accepted and agreed to by the company identified within the Willow Processing sign-up process ("Broker"), and constitute a legally binding agreement by and between Broker and Willow Processing, LLC, an Arizona limited liability company (the “Company”), with office located at 3526 E. Elm St Phoenix, AZ 85018. These General Terms set forth the terms and conditions under which Broker may establish an account and conduct business.
1.1 Loan Processing. The Broker may submit residential mortgage loan applications it has originated to the Company for loan processing. Company agrees to promptly and diligently process the residential loan applications received from the Broker in compliance with applicable laws and regulations. Company will make commercially reasonable efforts to ensure that all residential mortgage loan applications are fully processed to the extent that the selected lender requirements are satisfied.
1.2 Broker Protection and Company Non-Solicitation. See Exhibit “A”. Broker’s clients, past and present are protected from solicitation during and after services have been performed by Company.
1.3 Duties of Broker. See Exhibit “B”. Exhibit A may be amended from time to time by the Company in its sole discretion, by written notice from the Company to Broker.
1.4 Duties of Company. See Exhibit “C”. Exhibit B may be amended from time to time by the Company in its sole discretion, by written notice from the Company to Broker. The Company agrees to process such loan applications in compliance with all applicable laws and regulations.
1.5 Loan Processing Fees. Broker shall pay to the Company for the Services. Exhibit C may be amended from time to time by the Company in its sole discretion, by written notice from the Company to Broker. Additionally, Broker shall pay directly to third parties, or to the Company for payment to such third parties, all third-party fees and costs incurred by the Company on behalf of Broker, including but not limited to credit report fees, appraisal fees, condo certs, tax service fees, HOA fees and lien subordination fees ("Costs"). Broker understands and agrees that all Fees, and the balance of any Costs that have not been paid or reimbursed by the Broker, shall be paid directly to the Company by the closing agent or escrow agent for each loan transaction at the closing of the loan transaction (the "Closing") and Broker shall verify that all such Fees and Costs are fully, and property disclosed for each loan transaction. Broker acknowledges and agrees to this stated method of payment of the Fees and Costs and agrees to provide any additional documentation required by the Company, or a third- party closing agent or escrow agent, regarding the same. Broker further agrees that if payment of third-party processing fees is restricted, Broker will instruct the closing agent or escrow agent to deduct the Fees and Costs from amounts due to Broker and pay them directly to the Company. Broker agrees that if payment to the Processor is not made by the closing or escrow agent, or by the Broker, as described above, then the Processor is hereby authorized to charge the full amount due to Company to Broker’s credit card identified in Exhibit “E”. The Broker further agrees to update Exhibit D, from time to time, so that a valid credit card is available to be charged, in accordance with this paragraph.
1.6 Access to Systems and Information of Broker. Broker shall provide the Company access to Broker’s systems and information, including the following, as applicable:
1.7 Quality Control. Company may record telephone conversations with or without use of a warning tone and we may use these recordings as evidence for a particular purpose or in relation to disputes as well as for our ongoing quality control and training programme. We may also maintain a record of all emails sent by or to us. All those recordings and records will be maintained at our absolute discretion and are our property and can be used by us in the case of a dispute. We do not guarantee that we will maintain such recordings or records or be able to make them available to you. You consent to the use and admissibility of any such recording as evidence in any dispute or anticipated dispute between the parties which relates to the dealings between the parties.
1.7a Indemnification. Broker shall indemnify, defend and hold the Company, its affiliates and its officers, members, employees, representatives and agents, harmless for, from and against any and all claims, actions, causes of action, proceedings, costs, fines, assessments, penalties, fees, damages and liabilities, including its reasonable attorneys’ fees, expert witness fees, litigation related expenses, and court or other costs incurred in any litigation or proceeding, arising out of or in any way connected to: i) performance by Broker and/or its employees of this Agreement or the underlying loan transaction for which the Company is providing Services; ii) any violation of any statute, ordinance or regulation; iii) errors or omissions in any documentation provided to the Company, including but not limited to closing documents and documents provided by Broker to the Company; iv) breach of any representation or warranty of Buyer; and v) Broker's breach or non-compliance with the terms of this Agreement.
1.7b Indemnification. Broker shall indemnify Company from liability related to fee tolerances and cures that arise during the processing of a loan. In the event that the Broker requests the Company to request or send a the initial disclosures on a file, the Company will send the Broker a copy of the initial loan estimate to review and approve by email and in writing. It is important that the Broker review and approve the loan estimate. The email will contain the following verbiage: By approving this LE you are confirming that the required fees are listed and in the right section. Fees that are not disclosed properly are the responsibility of the licensed loan originator, not Willow Processing. Please pay attention to county specific fees applicable to the county you originate. Based on our state licensing, Willow spans over 600 counties.
1.8 Representations and Warranties. Company and Broker each represent and warrant to the other that the respective duties and obligations of each party shall be performed in a prompt, professional and prudent manner in accordance with all applicable state and federal laws and regulations.
1.9 Communications and Contact of Applicant. The preferred method of communication between the Company and Broker shall be electronic mail due to time constraints and to maximize the speed of processing. The Company acknowledges that the Applicant is proprietary to the Broker, however, the Broker agrees that Company may contact and otherwise discuss the Loan File and obtain information directly from the Applicant with the permission of the Broker.
1.10 Termination. Either party may terminate this Agreement upon thirty (30) days advance written notice. In the event of termination, Company agrees to promptly deliver to Broker all Loan Files currently being processed, and all Loan Files which have closed, in exchange for a check for all work performed by Company as provided in this Agreement.
1.11 Non-Solicitation. The Broker hereby agrees not to solicit or utilize employees or independent contractors of Company during the term of this Agreement and for one (1) year following the termination of this Agreement. Additionally, the Company agrees not to solicit Broker employees during the term of this Agreement and for one (1) year following the termination of this Agreement. Company will not recommend or solicit loan officers at any time for any type of employment.
1.12 Governing Law, Jurisdiction and Venue. This Agreement shall be governed and construed under the laws of the State of Arizona, without regard to its choice or conflict of laws, irrespective of the residence of parties. The parties hereto hereby unconditionally and irrevocably: (a) submit to the jurisdiction of the Maricopa County (Arizona) Circuit Court (hereinafter the "Courts"), in any action arising out of this Agreement; (b) agree that all claims in any action may be decided in either of said Courts; and (c) waive, to the fullest extent that they may effectively do so, the defenses of: (i) lack of subject matter jurisdiction of such Courts; (ii) the absence of personal jurisdiction by such Courts over the parties to this Agreement.
1.13 Authority. The persons signing this Agreement on behalf of the Broker and Company hereby represent and warrant to one another that they have been duly authorized and empowered to execute and deliver this Agreement on behalf of the Broker and Company respectively.
1.14 Confidentiality. The parties to this Agreement hereby covenant and agree that: (a) the terms and conditions of this Agreement shall be confidential and shall not be disclosed unless required by applicable law; (b) all information received from loan applicants, lenders, Broker and third parties concerning a loan application or Loan File shall be maintained in a confidential manner and shall not be disclosed to third parties unless required under applicable law; (c) they shall not use any personal or confidential information of the loan applicants for purposes other than processing the Loan File; (d) they shall reveal the personal or confidential information of the loan applicants only to those employees and independent contractors having a need to know same; and (e) they shall return all personal and confidential information received from loan applicants upon request, provided that Broker and Company shall be permitted to retain all information required by applicable law and/or which may be maintained in computer archives. If Broker or Company are requested to reveal personal or confidential information concerning any loan applicant, they shall promptly notify the other party in writing unless prohibited by applicable law.
1.15 Assignment. Neither party shall assign any of its rights under this Agreement without the prior written consent of the other party.
1.16 Parties Bound and Benefitted. This agreement shall bind and inure to the benefit of the respective heirs, personal representatives, successors, and assigns of the parties.
1.17 Entire Understanding; Modification. This Agreement contains the entire understanding between the parties concerning the subject matter hereof and supersedes all prior understandings and agreements, whether oral or written, between them regarding the subject matter thereof. There are no representations, agreements, arrangements or understanding, oral or written, between or among the parties hereto relating to the subject matter of this Agreement which are not fully expressed herein. This Agreement can only be modified, amended or supplemented by the signed written consent of both parties.
1.18 Choice of Law and Venue; Dispute Resolution. It is the intention of the parties that this agreement shall be subject to, governed by, construed, and enforced in accordance with the laws of the State of Arizona, without reference to Choice of Law rules. Any legal proceedings to enforce its provisions shall be brought only in a court of competent jurisdiction situated in the State of Arizona. The parties agree to waive any right to a trial by jury in any such dispute and that the matter will be tried solely to the court. The parties understand that they are giving up valuable legal rights under this provision, including the right to trial by jury, and that they voluntarily and knowingly waive those rights. In addition to all rights and remedies available at law, if Broker breaches its obligations under this Agreement, including payment of Fees and Costs, the Company may file a complaint with the Arizona Department of Financial Institutions.
1.19 Attorneys' Fees. Should either party commence any legal action, proceeding or arbitration against the other based on this Agreement, the prevailing party shall be entitled to an award of reasonable attorneys' fees and costs incurred by reason of such proceeding.
1.20 Severability. The provisions of this Agreement are severable, and if any one or more provisions may be determined to be judicially unenforceable, in whole or in part, the remaining provisions, and any partially unenforceable provisions to the extent enforceable, shall nevertheless be binding and enforceable.
1.21 Captions. The captions appearing at the beginning of the various paragraphs of this Agreement are for convenience of reference only and shall not be given any effect whatsoever in the construction or interpretation of this Agreement.
1.22 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute on and the same instrument.
1.23 Company SLA's. The Company's processors are required to adhere to the following SLA's:
EXHIBIT “A” Broker Protection and Company Non-Solicitation
2.1 Company acknowledges, among other things, Broker’s business methods, leads, clients, prospect lists and information, advertising programs, referral sources, marketing strategies, and any proprietary software (the "Confidential Information") have been developed by Broker through the expenditure of substantial time, effort and money, which Broker wishes to maintain in confidence.
2.2 Company acknowledges during the performance of duties and services, and after the termination of duties and services, Company will not use such information except solely for duties and services performed in this agreement, and Company will maintain as secret and will not disclose any of the Confidential Information to any third party (except as Company’s duties may require) without Broker’s prior express written authorization.
2.3 Company further acknowledges and agrees:a. Company and the employees of the Company will not directly or indirectly, solicit any customer or client or prospective client of Broker during or after the duties and services of Company are performed.b. Company and the employees of the Company are prohibited to disclose, transfer, exhibit, sell publish any confidential or private information relating to Broker’s clients to any other third party except solely for duties and services performed in this agreement.c. Company and the employees of the Company are prohibited to encourage or facilitate any third-party to call upon, contact and/or solicit any of the Broker’s leads, clients, prospect lists and information, advertising programs, referral sources except solely for duties and services performed in this agreement.
EXHIBIT “B” Broker Responsibilities
3.1 The Broker shall:
The Broker shall be solely responsible for verifying closing figures and all documents prior to signing, as well as ensuring that all loan documents comply with applicable state and federal guidelines and requirements. Purchase Loans: provide the following documentation (per DU/LP and any investor overlays):Upon loan submission, Broker shall provide the following:fully executed purchase contract and all addendums; assist in gathering: income: paystubs, W-2’s, tax returns etc. assist in gathering: required assets for down payment and/or cash-to-close; assist in gathering: identifications; assist in gathering missing documentation required to close the loan in a timely manner; Refinance Loans: provide the following documentation (per DU/LP and any investor overlays):
Assist in gathering: required assets for cash-to-close; assist in gathering: identifications; assist in gathering missing documentation required to close the loan in a timely manner;
Loan Restructuring:
Exhibit “C” Processor Responsibilities Upon receipt of the Loan Submission File from the Broker