NATIONAL CITY MASTER TREASURY MANAGEMENT SERVICES AGREEMENT
NATIONAL
CITY
NATIONAL
CITY BANK (“National
City”) and FREEDOM
FINANCIAL MORTGAGE CORPORATION (“Client”)
are entering into a Master Treasury Management Services Agreement (the “Master
Agreement”), consisting of the following general terms and conditions (these
“General Terms and Conditions”), the Software Addendum attached hereto, and
product guides (“Product Guides”) for the treasury management services selected
by Client on a Master Selection Sheet from time to time (“Services”), as of this
27th
day of
March, 2007.
Client
and National City, intending to be legally bound, hereby agree as
follows:
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1.
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Services;
Accounts. National
City will provide one or more Services in connection with designated
deposit accounts (the “Accounts”) maintained by Client at National City
and/or banking affiliates of National City (“Affiliates”) from time to
time. The Accounts are and continue to be governed by Account rules,
agreements, disclosures, and other documents as may be in effect
from time
to time in connection with the Accounts (collectively, the “Account
Rules”), except as expressly provided in the Master Agreement. Client
agrees to comply with all rules, regulations, and procedures set
forth in
product manuals and related materials furnished by National City
from time
to time in connection with the
Services.
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2.
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Client
Representations. Client
represents that it will use the Services only for its own internal
and
proper business purposes and will not sell, lease, or otherwise provide,
directly or indirectly, any of the Services or any portion thereof
to any
third party, except as may be specifically authorized in a Product
Guide.
Client further represents and agrees that it will perform its obligations
under the Master Agreement in accordance with all applicable laws
and
regulations, including, without limitation, those administered by
the
United States Office of Foreign Assets Control
(OFAC).
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3.
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Information;
Instructions. Client
will provide Account information and other necessary processing
instructions to National City in a form acceptable to National City
in
order to enable National City to provide the Services. Client agrees
to
use its best efforts to ensure that all such information and instructions
provided to National City by or on behalf of Client are accurate
and
complete and have not been modified by deletion or other alteration.
National City is not responsible for delays and errors caused by
Client’s
failure to provide National City with such information and/or instructions
on a timely basis or caused by inaccurate, incomplete, garbled, or
otherwise unprocessable information and/or
instructions.
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4.
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Additional
Information. Client
will supply any information National City may reasonably request
evidencing any individual’s authority to take any action contemplated
under the Master Agreement. National City shall be entitled to rely
upon
any written, oral, or electronic notice or communication believed
by it in
good faith to be genuine and to have been signed or given by an authorized
individual, and any such communication shall be deemed to have been
signed
or given by Client. Except as otherwise expressly provided for in
a
Product Guide, National City shall not be required to act upon any
notice
or communication received from Client, or to provide any notice or
communication to Client with respect to any matter.
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5.
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Security
Devices; Responsibility. National
City may, from time to time, provide or assign to Client security
procedures, personal identification numbers (“PINs”), initial and
replacement passwords, physical security devices, telephone numbers,
and
other confidential codes (collectively, “Security Devices”). Client shall
control the distribution and safekeeping of, and access to, all Security
Devices. Client shall promptly notify National City of any breach
of
security involving any Security Devices, including without limitation,
the
actual or suspected misuse, loss, misplacement, or unauthorized disclosure
thereof. Client shall be solely responsible for any transactions
resulting
from Client’s failure to control the distribution and safekeeping of, and
access to, any Security Devices. Any information and/or instructions
accompanied by an appropriate Security Device will be deemed to have
been
made by Client.
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6.
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Electronic
Recording. If
a dispute arises between Client and National City with respect to
one or
more terms of any transaction initiated, amended, or confirmed by
telephonic communication, then any electronic recording of the telephonic
communication maintained by National City in the ordinary course
of
business shall be conclusive as to the terms of the transaction in
dispute.
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7.
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Compensation.
Client
shall compensate National City for its performance of the Services
at the
rates agreed to by the parties at the time the Services are selected;
provided, however, that National City shall have the right to modify
its
rates for each Service upon at least thirty (30) days prior notice
to
Client. Client shall be responsible for any and all applicable federal,
state, and local taxes related to said compensation and the performance
of
Services including, without limitation, sales, use, value added,
and gross
receipts taxes, but excluding taxes based on National City’s
income.
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8.
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Notification.
Except
as otherwise provided in a Product Guide, Client must review periodic
Account statements and other advices received from National City
and
report any discrepancy or unauthorized transaction to National City
in
writing within thirty (30) calendar days from the date the statement
or
other advice containing such discrepancy or unauthorized transaction
is
mailed or otherwise made available to Client by National City. If
Client
fails to do so, Client shall be precluded from asserting any discrepancy
or unauthorized transaction contained therein, and National City
shall be
relieved of liability for any such discrepancy or unauthorized
transaction, including any loss of interest in connection therewith.
Client and National City agree that this provision shall have no
effect on
Client’s obligation to review each Account statement and report
alterations, unauthorized signatures, unauthorized endorsements,
and any
other errors to National City in accordance with the Account
Rules.
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9.
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Available
Funds. Client
agrees to maintain available funds on deposit at all times in the
Accounts
sufficient in amount to cover in full all outgoing funds transfers
which
are effected in connection with any of the Services and Client’s other
payment or reimbursement obligations to National City in connection
with
the Services. In the event Client fails to maintain available funds
on
deposit, National City may refuse to effect any outgoing funds transfers
from the applicable Account and/or refuse to provide the Services
to which
such payment or reimbursement relates until sufficient funds are
deposited
or payment or reimbursement is received by National City. National
City
shall have the right without prior notice or demand to charge any
of the
Accounts to obtain payment of any amount due and payable to it. In
the
event there are insufficient available funds in the Accounts to cover
these transfers and/or obligations, Client agrees to pay for such
obligations upon demand by immediate delivery of available funds
and
further agrees that National City may, at its option, (a) overdraw
Client’s Accounts and charge Client for the use of the funds or (b) charge
any deposit account maintained by Client at National City or any
Affiliate
to obtain such funds.
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10.
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Client
Hardware and Software. Client
will provide and maintain, and shall be solely responsible for hardware,
software programs (“Software”), and/or delivery channels, including,
without limitation, internet service providers, not supplied or specified
by National City. In addition, Client shall be solely responsible
to
ensure that any such hardware and/or software conforms to the standards
established by National City from time to
time.
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11.
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Software
Addendum. Some
of the Services provided by National City hereunder require Client
to use
Software made available by National City. The rights, duties, and
obligations of National City and Client with respect to any such
Software
are set forth in the Software Addendum attached to these General
Terms and
Conditions and incorporated herein by
reference.
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12.
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No
Warranties. NATIONAL
CITY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A
PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES PROVIDED BY NATIONAL
CITY
OR THE USE OF THE RECOMMENDED HARDWARE AND/OR SOFTWARE IN CONNECTION
THEREWITH.
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13.
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Liabilities;
Indemnification. National
City shall be required to perform only the Services which it has
expressly
agreed to provide and shall be liable only for losses or damages
caused by
its failure to exercise ordinary care in the performance of the Services.
National City shall not be responsible for Client’s acts or omissions or
those of any other person, including, without limitation, any Federal
Reserve Bank or transmission or communications facility or any other
non-affiliated financial institution, and no such party shall be
deemed to
be National City’s agent. Client and National City agree that National
City’s liability, if any, for loss of interest on any funds transfer shall
be calculated by using the rate of interest, as reasonably determined
by
National City, payable to National City for the purchase of “federal
funds” at the time or times in question on a daily overnight basis. Client
shall reimburse and indemnify National City and hold National City
harmless from and against any and all losses, damages, expenses (including
reasonable attorneys’ fees), fines, and penalties arising from, and shall
defend National City in connection with, any and all claims, actions,
and
suites brought by third parties in connection with any of the Services
provided to Client, unless the sole basis for such claim, action,
or suit
is National City’s gross negligence or willful misconduct. In any event,
National City shall not be liable for any special, consequential,
incidental, or punitive losses, damages, or expenses (including attorneys’
fees) in connection with any of the Services, even if National City
has
knowledge of the possibility thereof. This provision shall survive
the
termination of the Master
Agreement.
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14.
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Foreign
Transactions. As
to any U.S. dollar amount which is payable in a foreign country,
National
City does not guarantee that its correspondents or agents can or
will make
payment in U.S. dollars, nor does National City guarantee that there
will
not be a charge made by some other bank or other entity in connection
therewith. Client agrees that neither National City nor its correspondents
or agents shall be liable for any loss or damage due to errors, omissions,
delays, loss, or destruction in or through the mail, telegraph, or
cable
of any country. In addition, National City shall not be responsible
for
the acts or omissions of any of its correspondents, sub-agents, or
other
agencies employed in making the payment requested. All tracers of
non-receipt, late receipt, or of any other type are subject to National
City’s ordinary charges and to charges, if any, of its correspondents
or
agents.
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15.
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Force
Majeure. National
City shall have no liability and shall be excused from any act, failure
to
act, or delay in acting if such act, failure, or delay is caused
in whole
or in part by orders or restraints of any kind of the government
of the
United States of America or any other country or of any state or
other
political subdivision and their respective departments, agencies,
and/or
officials, interruption of transmission or communications facilities,
equipment failure, war, emergency conditions, acts of God, fire, labor
disputes, power failures, acts or omissions of civil authority, civil
disturbance, severe weather conditions, any present or future rules
and
regulations of any governmental authority, or any similar or dissimilar
cause beyond National City’s control, so long as National City makes a
reasonable effort to remove or avoid the effects thereof; provided,
however, that the settlement of labor disputes shall be in the sole
discretion of National City.
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16.
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Assignment.
Client
may not assign the Master Agreement, or any of its rights, duties,
or
obligations under the Master Agreement, including, without limitation,
Client’s rights as a sublicense of Software, without the prior written
consent of National City, and any attempted assignment without such
consent shall be null and void; provided, however, that Client may
assign
its rights, duties, and obligations under the Master Agreement, in
whole
but not in part, to a subsidiary or affiliate of Client without the
prior
written consent of National City, so long as Client remains fully
liable
hereunder. National City may assign the Master Agreement or any of
its
rights, duties, or obligations under the Master Agreement, without
the
prior written consent of Client.
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17.
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Subcontractors.
National
City may perform some or all of the Services hereunder through one
or more
subcontractors, provided that the hiring of any subcontractor to
perform
the Services hereunder shall not modify National City’s obligations to
cause the Services to be provided hereunder. All references in the
Master
Agreement to National City include National City acting through its
subcontractors and any subcontractor’s performance hereunder shall be
deemed performance by National
City.
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18.
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Independent
Contractor. National
City will perform the Services as an Independent contractor. Nothing
in
the Master Agreement shall be construed to create a relationship
of
employer and employee, principal and agent, partnership, or joint
venture
between the parties.
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19.
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Captions.
Any
paragraph or other captions are inserted for convenience only and
shall
not be considered a part of or affect the interpretation or construction
of any of the provisions of the Master
Agreement.
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20.
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Termination.
The
Master Agreement shall remain in full force and effect until terminated
by
either party in accordance with this paragraph. Termination of the
Master
Agreement will terminate all of the Services provided to Client.
Notwithstanding the termination of the Master Agreement or any Service,
the Master Agreement will remain in full force and effect with respect
to
all transactions that occur prior to the effective date of
termination.
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Voluntary
Termination. Either
party may terminate the Master Agreement and/or any Service by providing notice
to the other party. Such termination shall take effect as soon as practicable,
but not more than ten (10) calendar days after receipt of such notice, unless
Client and National City agree otherwise.
Events
of Default; Termination. The
occurrence of any of the following shall constitute an “Event of Default”
hereunder: (a) Client fails to pay any amount to National City within three
(3)
business days of its due date, or (b) Client fails to maintain available funds
in any Account in accordance with paragraph 9 of these General Terms and
Conditions, or ( c ) any voluntary petition by or involuntary petition against
Client shall be filed pursuant to any chapter of any bankruptcy code or Client
shall make an assignment for the benefit of creditors, or there shall be any
other marshalling of the assets and liabilities of Client for the benefit of
Client’s creditors. Upon the occurrence of an Event of Default, and in addition
to any other remedies available to National City hereunder, by operation of
law,
or otherwise, National City shall have the right to terminate the Master
Agreement and/or any Service immediately by giving Client notice thereof.
Thereafter, National City shall have no further obligation to provide any such
Services to Client. Client agrees to safeguard, remove, and deliver all
properties belonging to National City at the time the Master Agreement or any
Service is terminated, or prior to surrender of Client’s property to a receiver.
Client shall reimburse National City for all costs and expenses (including
reasonable attorneys’ fees and court costs) incurred by National City to enforce
collection of any moneys due to it in connection with any Service or in
enforcing Client’s obligations under the Master Agreement.
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21.
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Notices.
All
notices permitted or required by the Master Agreement shall be in
writing
and shall be deemed to have been duly given (a) upon personal delivery
(whether by messenger, overnight delivery, telegram, or otherwise),
(b)
upon facsimile transmission (receipt of which is orally confirmed
by the
recipient) or upon transmission by tested telex, or ( c ) three (3)
business days after deposit, postage prepaid, in the United States
mail,
if sent by certified or registered mail, return receipt requested,
and
addressed:
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| In the case of notice to Client, to: | and in the case of notice to National City, to: | |
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FREEDOM
FINANCIAL MORTGAGE CORPORATION
|
NATIONAL CITY BANK | |
| ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇ | ||
| ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||
| Attn: ▇▇▇▇▇ ▇▇▇▇ | Attn: | |
| Fax: (▇▇▇) ▇▇▇-▇▇▇▇ | Fax: |
or
in
accordance with such other address information as the party to receive notice
may provide in writing to the other party in accordance with the above notice
provisions. Any notice given by ay other method will be deemed to have been
duly
given upon receipt thereof. For the purposes of the Master Agreement, “Business
Day” means a day on which National City’s main office is open to the public for
carrying on substantially all of its banking functions, but shall not include
Saturdays, Sundays or legal holidays.
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22.
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Conflicts.
In
the event of a conflict between the provisions of any Product Guide
or the
Software Addendum and these General Terms and Conditions, the provisions
of the Product Guide shall prevail. In the event of a conflict between
the
provisions of any Product Guide and the Software Addendum, the provisions
of the Software Addendum shall
prevail.
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23.
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Entire
Agreement; Amendments. The
Master Agreement contains the entire agreement of the parties with
respect
to its subject matter, and no oral or prior written statements or
representations not incorporated therein shall have any force or
effect.
Capitalized terms used in the Software Addendum and/or the Product
Guides,
and not otherwise defined, shall have the meanings set forth in these
General Terms and Conditions. Except as otherwise provided in the
Master
Agreement, National City shall have the right to modify the Master
Agreement upon at least thirty (30) days prior notice to Client.
In the
event performance of any Services in accordance with the terms of
the
Master Agreement would result in a violation of any present or future
statute, regulation, or government policy to which National City
is
subject, and which governs or affects the transactions contemplated
by the
Master Agreement, then the Master Agreement shall be deemed amended
to the
extent necessary to comply with such statute, regulation, or policy,
and
National City shall incur no liability to Client as a result thereof.
The
Master Agreement shall be binding upon and inure to the benefit of
Client
and National City and their respective legal representatives, successors,
and permitted assigns.
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24.
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Waiver.
The
failure of either party at any time to require performance by the
other
party of any provision of the Master Agreement shall not affect in
any way
the full right to require performance at any subsequent time. Any
waiver
by either party of the breach of any provision of the Master Agreement
shall be in writing and shall not operate as or be construed tobe
a waiver
of any other breach of the provision or of any breach of any other
provision of the Master Agreement. No course of dealing or performance
shall be deemed to amend or otherwise affect any provision of the
Master
Agreement.
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25.
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Severability.
If
any provision of the Master Agreement is determined by a court of
competent jurisdiction to be invalid, illegal, or unenforceable,
that
determination shall not affect any other provision of the Master
Agreement, and each such other provision shall be construed and enforced
as if the invalid, illegal, or unenforceable provision were not contained
herein.
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26.
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No
Third Party Beneficiaries. The
Master Agreement is entered into for the sole and exclusive benefit
of the
parties hereto. Nothing in the Master Agreement shall be construed
to
grant any person other than the parties hereto, and their respective
successors and permitted assigns, any right, remedy, or claim under
or
with respect to the Master Agreement or any provision
hereof.
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27.
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Subsidiaries.
If
Client is entering into the Master Agreement for the purpose of obtaining
Services for itself and for its various subsidiaries and affiliates,
as
they exist from time to time (collectively, the “Subsidiaries”), Client
represents that it is authorized to enter into the Master Agreement
on
behalf of the Subsidiaries, Client makes the representations set
forth in
paragraph 2 above with respect to each of the Subsidiaries, and Client
shall be solely responsible to ensure that the use of the Services
by each
of the Subsidiaries complies with the Master Agreement. Client’s
obligations hereunder may be performed by any one or more of the
Subsidiaries, and Client agrees that Client will be fully responsible
for
the actions and omissions of any of the Subsidiaries to the same
extent as
if such actions or omissions were those of Client itself. Client
shall
reimburse and indemnify National City and hold National City harmless
from
and against any and all losses, damages, expenses (including reasonable
attorneys’ fees), fines, and penalties arising from National City’s
reliance on the representations made in this paragraph. This provision
shall survive the termination of the Master
Agreement.
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28.
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Governing
Law. The
Master Agreement and the rights, duties, and obligations of Client
and
National City hereunder shall be governed by the laws of the State
of
Ohio. In addition, all wire transfer requests, and amendments and/or
cancellations of such requests, communicated to National City in
the name
of Client shall also be subject, where applicable, to Subpart B of
▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇ ▇▇▇ Part 210, issued by the Board of Governors of
the
Federal Reserve System, as modified from time to
time.
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29.
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Counterparts.
The
Master Agreement may be executed in any number of counterparts, each
of
which shall be deemed an original but all of which together shall
constitute one and the same
instrument.
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IN
WITNESS WHEREOF, the parties hereto have caused the Master Agreement to be
duly
executed, and each of the undersigned hereby warrants and represents that he
or
she has been and is, on the date of the Master Agreement, duly authorized by
all
necessary and appropriate action to execute the Master Agreement.
| FREEDOM FINANCIAL MORTGAGE CORPORATION | NATIONAL CITY BANK | |
| By: /s/ | By: /s/ | |
| ▇▇▇▇▇ ▇▇▇▇▇▇▇ | ▇▇▇▇▇ ▇▇▇▇▇ | |
| Title: Director | Title: Assistant Vice President |