Recitals
1. Lender is interested in accepting Private Mortgage Loans secured by real property (the “Loan” or “Loans”) for funding consideration. The term “Mortgage Loan,” for purposes of this Agreement, shall mean and refer to a mortgage loan wherein the loan proceeds are primarily intended for something other than personal, family or household purposes.
2. Broker desires to submit such Loans to Lender in a form accepted for approval and funding.
3. As to any Loan submitted by Broker, Lender, in its sole discretion, will decide within two (2) business days whether to approve and/or fund that Loan. The lender has no obligation to fund and/or approve any Loan.
4. As to any Loan submitted by Broker, Lender, in its sole discretion, may elect to approve and fund the Loan.
5. As to any Loan submitted by Broker, Lender, in its sole discretion, may elect to approve and fund the Loan with third party funds.
Now, therefore, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lender and Broker agree as follows:
Article 1 - Representations and Warranties of Broker
1.01 General Representations and Warranties. Broker represents and warrants to Lender that as
of the date first set forth above and as of the date of Lender’s funding of each Loan hereunder that:
a. Broker is, and at all times during the term of this Agreement shall be, duly organized, validly existing and in good standing under the laws of the State(s) in which it does business and is qualified and/or licensed as necessary to originate Loans in the State in which the real property used to secure each Loan submitted by Broker exists.
b. Broker has and at all times will have the requisite power and authority to enter into and perform this Agreement.
c. this Agreement has been duly authorized, executed and delivered to Lender and constitutes a valid, legally binding, and enforceable agreement.
d. the execution and performance of this Agreement will not violate any provision of any organizational document, instrument, agreement, judgment, order, statute, or regulation by which Broker is bound or to which it is a party.
e. there is no action, proceeding or investigation pending or, to Broker’s knowledge, threatened, that has or would have an adverse effect on Broker’s performance of its obligations under this Agreement or which questions the validity of this Agreement or of any action taken or to be taken pursuant thereto.
f. no consent, approval, authorization or order of any court, government body or any other person or entity is required for the execution, delivery and performance by Broker of this Agreement.
g. Broker is not a party to, bound by or in breach or violation of any agreement or instrument, or subject to or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects, or may in the future materially and adversely affect, the ability of Broker to perform its obligations under this Agreement; and,
h. Broker possesses and shall maintain, at no cost to Lender, during the term of this Agreement, errors and omissions insurance, and shall furnish evidence of such coverage upon request of Lender. Such insurance shall be in reasonable amounts, with acceptable standard coverage, satisfactory to Lender and compliant with applicable law. Broker shall immediately notify Lender of any changes in, or cancellation of, such errors and omissions insurance.
1.02 Representations and Warranties with respect to Loans. Broker represents and warrants to Lender as to each Loan, as of the date of funding, that:
a. the Loan originated according to acceptable industry standards, including but not limited to any specific standards communicated to Broker by Lender, in compliance with all applicable guidelines, rules, statutes, regulations and ordinances.
b. all persons involved in the origination of the Loan were and are duly licensed by the State in which the real property securing said Loan exists, when and if so, required by law;
c. except where disclosed to Lender in writing prior to funding, all negotiations and discussions with the borrower have been conducted in English;
d. the loan proceeds are primarily intended for something other than personal, family or household purposes;
e. there are no agreements of any kind with the borrower other than those set forth in the Loan documents submitted to Lender;
f. there are no fees or compensation of any kind being paid to any individual or entity which is not identified in the Loan documents submitted to Lender;
g. there are no lenders, agents, finders, representatives, brokers or loan originators who are not identified in the Loan documents submitted to Lender;
h. no information contained in the Loan documents has been altered or modified by Broker, and to the best of Broker’s knowledge, after reasonable inquiry, all information contained in the Loan documents submitted to Lender is true and correct;
i. Broker has not concealed any information which would or could adversely or materially affect Lender’s decision to fund the Loan submitted by Broker;
j. all federal and state laws, rules and regulations applicable to the services to be provided by Broker hereunder have been complied with and will be complied with throughout the term of this and the execution and performance of this Agreement will not violate any provision of any organizational document, instrument, agreement, judgment, order, statute or regulation by which Broker is bound or to which it is a party;
e. there is no action, proceeding or investigation pending or, to Broker’s knowledge, threatened, that has or would have an adverse effect on Broker’s performance of its obligations under this Agreement or which questions the validity of this Agreement or of any action taken or to be taken pursuant thereto;
f. no consent, approval, authorization or order of any court, government body or any other person or entity is required for the execution, delivery and performance by Broker of this Agreement;
g. Broker is not a party to, bound by or in breach or violation of any agreement or instrument, or subject to or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects, or may in the future materially and adversely affect, the ability of Broker to perform its obligations under this Agreement; and,
h. Broker possesses and shall maintain, at no cost to Lender, during the term of this Agreement, errors and omissions insurance, and shall furnish evidence of such coverage upon request of Lender. Such insurance shall be in reasonable amounts, with acceptable standard coverage, satisfactory to Lender and compliant with applicable law. Broker shall immediately notify Lender of any changes in, or cancellation of, such errors and omissions insurance.
1.02 Representations and Warranties with respect to Loans. Broker represents and warrants to Lender as to each Loan, as of the date of funding, that:
a. the Loan has been originated according to acceptable industry standards, including but not limited to any specific standards communicated to Broker by Lender, in compliance with all applicable guidelines, rules, statutes, regulations and ordinances.
b. all persons involved in the origination of the Loan were and are duly licensed by the State in which the real property securing said Loan exists, when and if so required by law;
c. except where disclosed to Lender in writing prior to funding, all negotiations and discussions with the borrower have been conducted in English;
d. the loan proceeds are primarily intended for something other than personal, family or household purposes;
e. there are no agreements of any kind with the borrower other than those set forth in the Loan documents submitted to Lender;
f. there are no fees or compensation of any kind being paid to any individual or entity which is not identified in the Loan documents submitted to Lender;
g. there are no lenders, agents, finders, representatives, brokers or loan originators who are not identified in the Loan documents submitted to Lender;
h. no information contained in the Loan documents has been altered or modified by Broker, and to the best of Broker’s knowledge, after reasonable inquiry, all information contained in the Loan documents submitted to Lender is true and correct;
i. Broker has not concealed any information which would or could adversely or materially affect Lender’s decision to fund the Loan submitted by Broker;
j. all federal and state laws, rules and regulations applicable to the services to be provided by Broker hereunder have been complied with and will be complied with throughout the term of this Agreement;
k. no Loan is the subject of, and Broker is not aware of any facts which could give rise to, litigation which could affect Lender’s ability to enforce the terms of any obligation of borrower or Broker, or which could affect Lender’s rights under the Loan documents;
l. there are no circumstances or conditions with respect to any Loan, the real property securing the Loan and/or the borrower’s financial and/or credit standing that reasonably could be expected to cause private investors to regard the Loan as an unacceptable investment, cause the Loan to become delinquent or adversely affect the value or marketability of the Loan; and,
m. to the best of Broker’s knowledge, after reasonable inquiry, all statements made by the borrower in the Loan application and Loan documents are true, correct and complete.
1.03 Indemnification.
a. Broker shall indemnify, defend and hold Lender, its officers, directors, employees, affiliates
and their respective successors and assigns, harmless from and against any and all liability, claims, losses, costs, expenses, penalties, fines, forfeitures, judgments and damages, including reasonable attorneys’ fees, court costs, accounting fees and other related costs actually incurred, both direct and indirect, by whomsoever asserted, arising out of or in connection with any claim related directly or indirectly to Broker’s breach of any covenant, agreement, representation or warranty in this Agreement or under the Loan documents and/or Broker’s negligence, willful misconduct or fraud in connection with any Loan.
b. Any dispute between Lender and Broker with respect to indemnification shall be resolved in accordance with Article 6 of this Agreement.
Article 2 - Performance Requirements
2.01 Duties of Broker. With respect to each Loan submitted by Broker to Lender for funding consideration, Broker shall, as appropriate to the particular Loan:
a. prepare and secure each borrower’s signature on a loan application in such form as Lender shall require;
b. assist Lender in securing such other and further documentation from and/or concerning borrower, as Lender may require;
c. assist Lender in collection of financial information (such as bank statements) and other related documentation, as Lender may require;
d. assist Lender in securing verifications, such as mortgage, or bank deposits, as Lender may require;
e. assist Lender in securing appraisals, inspections, surveys, engineering reports and/or rent rolls, as Lender may require;
f. assist Lender in communicating, with borrower, potentially including direct communication between Lender and borrower, as Lender may require; and,
g. Perform such other services as Lender may reasonably require.
2.02 Disclosures. Broker agrees to timely provide all written disclosures required of it by law, including but not limited to a Mortgage Loan Disclosure Statement, and to secure all signatures required thereon. Prior to funding, Broker shall provide Lender with a fully executed copy of all disclosures given by Broker with respect to each Loan.
2.03 Loan Approval. Broker shall not represent to any borrower that Lender has approved or will approve and/or fund any Loan until such time as Lender has so informed Broker in writing.
2.04 Underwriting. Underwriting and funding of any Loan submitted to Lender by Broker shall be at the sole discretion of Lender. Lender may determine and change its underwriting standards at any time, without prior notice, during the term of this Agreement.
2.05 Non-exclusive Engagement. Broker acknowledges that it is not now and will not be the exclusive provider of goods and services to Lender and that Lender has made no representation as to any volume of Loan applications which it may accept or approve from Broker or from any other source. Lender acknowledges that Broker has no obligation to provide Loan applications to Lender. Broker acknowledges that Lender has no obligation to approve and/or fund any Loan submitted by Broker.
Article 3 – Compensation and Term of Agreement
3.01 Compensation. Broker’s compensation for any Loan shall be agreed upon in writing between Lender and Broker at the time of Broker’s initial submission of that Loan. Subject to Broker’s timely and full performance of all obligations set forth in Article 2, upon the closing and funding of such Loan, Lender shall pay such agreed upon compensation to Broker through escrow.
3.02 Taxes. Any compensation paid by Lender to Broker under this Article 3 shall exclude all taxes and duties of any kind, if any, which either Party is required to pay with respect to the goods and services covered by this Agreement.
3.03 Right to Offset. Lender shall have the right, at any time and without notice, to deduct from any amounts otherwise owing to Broker hereunder, any fees, expenses, charges or other obligations of any kind owed by Broker to Lender.
3.04 Term of Agreement. The commencement date of this Agreement shall be the date first written above at the beginning of this Agreement (the “Commencement Date”). This Agreement shall remain in effect for a period of one (1) year from the Commencement Date, unless earlier terminated in writing as provided below. Thereafter, unless terminated in writing as provided below, this Agreement shall be renewed automatically for successive one (1) year terms.
Article 4 - General
4.01 Laws, Regulations and Permits. Broker agrees to comply with all applicable federal, state and local laws, regulations and ordinances as they relate to this Agreement, the goods and services delivered hereunder and the Loans.
4.02 Assignment. Lender has entered into this Agreement with Broker in reliance on the specific qualifications of Broker to provide the services contemplated hereunder; therefore, Broker may not assign or delegate this Agreement or any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Lender, which consent may be withheld in Lender’s sole discretion. Lender, in its sole discretion may assign its rights and benefits hereunder, and delegate its duties and obligations hereunder, without limitation.
4.03 Confidential Information of Lender. Broker acknowledges that Lender owns proprietary Confidential Information which constitutes a valuable, special and unique asset of Lender. This Confidential Information has been compiled and developed by Lender over time at considerable expense and effort, has not been divulged to third parties and is not known to Lender’s competitors who could obtain economic value from such information if it were known. As used herein, the term “Confidential Information” includes all information and materials belonging to, used by or in the possession of Lender relating to its products, processes, services, technology, inventions, patents, contracts, forms, records, data, processes, ideas, financial information, business strategies, pricing, marketing plans, customer lists, Contacts and trade secrets of every kind and character, but shall not include (i) information that was already within the public domain at the time the information was acquired by Broker or, (ii) information that subsequently becomes public through no act or omission of Broker. Broker agrees that all Confidential Information is and shall continue to be the exclusive property of Lender, whether or not prepared in whole or in part by Broker and whether or not disclosed to or entrusted to Broker’s custody. Broker shall not divulge or disclose Confidential Information to any person without the prior written consent of Lender. Broker’s obligation to preserve the secrecy of Confidential Information shall survive the termination of this Agreement. Upon termination of this Agreement, Broker agrees to return to Lender all files, papers and materials of any and every kind containing or relating to Confidential Information.
4.04 Confidential Information of Broker. Lender acknowledges that Broker owns proprietary Confidential Information which constitutes a valuable, special and unique asset of Broker. This Confidential Information has been compiled and developed by Broker over time at considerable expense and effort, has not been divulged to third parties and is not known to Broker’s competitors who could obtain economic value from such information if it were known. As used herein, the term “Confidential Information” includes all information and materials belonging to, used by or in the possession of Broker relating to its products, processes, services, technology, inventions, patents, contracts, forms, records, data, processes, ideas, financial information, business strategies, pricing, marketing plans, customer lists, Contacts and trade secrets of every kind and character, but shall not include (i) information that was already within the public domain at the time the information was acquired by Lender or, (ii) information that subsequently becomes public through no act or omission of Lender. Lender agrees that all Confidential Information is and shall continue to be the exclusive property of Broker, whether or not prepared in whole or in part by Broker and whether or not disclosed to or entrusted to Lender’s custody. Lender shall not divulge or disclose Confidential Information to any person without the prior written consent of Broker; however, notwithstanding the foregoing provision, Lender may divulge or disclose Confidential Information to the extent that divulgence or disclosure of such information is necessary and relevant to the transaction at hand or in the normal course of Lender’s day to day business activities. Lender’s obligation to preserve the secrecy of Confidential Information shall survive the termination of this Agreement. Upon termination of this Agreement, and upon written request by Broker, Lender agrees to return to Broker all files, papers and materials of any and every kind containing or relating to Confidential Information, other than as required by law for Loans submitted and/or funded.
4.05 Borrower Information. “Borrower Information” shall mean and refer to any record containing non-public personal information as defined by federal law, including, but not limited to, the Gramm-Leach-Bliley Act, as it may be amended, any regulations promulgated thereunder and any other information protected by applicable state law pertaining to a borrower, regardless of the form in which it is handled or maintained, and includes, without limitation, bank and credit card account numbers, income and credit information and social security numbers. Broker agrees to develop, implement and maintain a comprehensive information security program which contains administrative, technical and physical safeguards appropriate to the size and complexity of Broker’s business and the sensitivity of any Borrower Information. Such safeguards shall be adequate to ensure the security and confidentiality of Borrower Information, to protect against any anticipated threats or hazards to the security of such information and to protect against the unauthorized access to or use of Borrower Information which could result in substantial harm or inconvenience to any borrower. Broker further agrees that such Borrower Information will be used only for the limited purpose(s) for which it has been disclosed, and for no other purpose.
4.06 Use of Lender’s Name. Broker may not refer to, use or display the name of Lender, or any derivations thereof, or any signs, symbols, trademarks, service marks, slogans or logos owned, licensed or used by Lender, or in any way associated with the name of Lender, either directly or indirectly, including without limitation in any advertising or promotional materials, print media, press release, electronic media, web page advertising or internet advertising without the prior written consent of Lender, which consent may be withheld in Lender’s sole discretion.
4.07 Independent Contractor.
a. The Parties are independent contractors. Nothing in this Agreement or in the activities contemplated by the Parties hereunder shall be deemed to create any agency, partnership, employment or joint venture relationship between the Parties. Neither Broker nor anyone associated with Broker shall represent that it or they are agents or employees of Lender. The relationship between the Parties is strictly contractual and shall not be construed as a joint venture partnership or other business enterprise between the Parties. At all times the Parties are independent and Broker has no authority to represent itself or hold itself out as an agent of Lender. Unless otherwise specified in this Agreement, the manner and means of providing the agreed services are under the sole control of Broker, subject to the Lender’s right to specify the desired results. Broker may perform services for others when Broker is not providing services under this Agreement and may actively market Broker’s services to others.
b. Lender is not liable for any expenses paid or incurred by Broker unless otherwise agreed in writing.
c. Broker has no authority to enter into any contract or agreement on behalf of Lender.
d. Broker has obtained or will obtain all business registrations or professional or regulatory
licenses required by law for Broker to conduct its business and perform its duties under this Agreement.
e. Broker is engaged in an independently established business and Broker will represent to the public that Broker is operating as an independently established business and not as an employee, partner or affiliate of Lender.
4.08 Agency. There is no agency relationship between Lender and Broker. Neither Lender nor Broker is the agent, sub-agent or dual agent of the other. The broker represents and warrants that each borrower has been, and will be, so informed.
Article 5 - Termination
Either Party may terminate this Agreement upon ten (10) days written notice to the other, with or without cause. In connection with closed and funded Loans, Lender shall pay for services provided, performed and accepted prior to the termination date, provided that if Broker terminates this Agreement and such termination results in any increased cost to Lender related to an already-approved Loan which has not yet closed or funded then Lender shall have the right to offset any compensation owing to Broker by the amount of such additional cost. Broker shall provide and perform services on Loans approved by Lender prior to the effective date of termination and shall be compensated in accordance with the parties’ agreement, when such Loan(s) close and fund. Each Party agrees to safeguard and return to the other Party all property, including all Confidential Information, belonging to other Party which is in Party’s possession at the time this Agreement is terminated and to comply with Sections 4.03, 4.04 and 4.05 for a period of one (1) year after the time this Agreement is terminated.
Article 6 - Forum and Dispute Resolution
Broker hereby irrevocably submits generally and unconditionally for itself and in respect of its property to the jurisdiction of any state or local court, or any United States federal court, sitting in the State of Utah, or any other forum selected by Lender, over any suit, action or proceeding arising out of or relating to this Agreement. Broker hereby irrevocably waives, to the fullest extent permitted by Law, any objection that Broker may now or hereafter have to the laying of venue in any such court and any claim that any such court is an inconvenient forum. Broker hereby agrees and consents that, in addition to any methods of service of process provided for under applicable law, all service of process in any such suit, action or proceeding in any state court, or any United States federal court, sitting in the State of Utah, or such other state as Lender may select, may be made by certified or registered mail, return receipt requested, directed to Broker at Broker’s address for notice set forth in Section 7.06 of this Agreement, and service so made shall be complete five (5) days after the same shall have been so mailed. Nothing herein shall affect the right of Lender to serve process by any manner permitted by Law or limit the right of Lender to bring proceedings against Broker in any other court or jurisdiction.
Article 7 - Miscellaneous Provisions
7.01 Section Headings. Article and section headings are included for convenience only and are not to be used to construe or interpret this Agreement.
7.02 No Waiver. No delay, failure or waiver of either Party’s exercise or partial exercise of any right or remedy under this Agreement shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy.
7.03 Survival. The covenants, agreements, representations, and warranties made herein shall survive the termination of this Agreement.
7.04 Severability. If any provision of this Agreement is held invalid, illegal, or unenforceable, the validity, legality or enforceability of the remaining provisions shall in no way be affected or impaired thereby.
7.05 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original, but all of which together shall constitute one and the same instrument. The Parties agree that a signed copy of this Agreement transmitted by one Party to the other by facsimile transmission (fax) or by electronic transmission (e-mail) shall be binding upon the sending Party to the same extent as a signed original of this Agreement.
7.06 Notices. All notices permitted or required to be delivered hereunder shall be in writing and shall be deemed to have been properly given: a) seventy-two (72) hours after being sent by certified mail, return receipt requested; b) forty-eight (48) hours after being sent by national overnight courier; c) on delivery, if personally delivered to the named individual addressees; or, d) if sent by facsimile transmission (fax) or by electronic transmission (e-mail), upon receipt if receipt was electronically (e-mail acknowledgement) confirmed by the recipient. All such notices permitted or required to be delivered hereunder shall be addressed as follows:
If to Lender:
Realty Capital Financial, LLC
311 Boulevard of the Americas
Lakewood, NJ 08701
Either Party may change the address to which notices are to be given to that Party, by a notice properly given in accordance with this Section 7.06.
7.07 Remedies. The remedies set forth in this Agreement are not exclusive. Election of one remedy shall not preclude the use of other remedies and a Party may seek any remedy generally available at law or in equity.
7.08 Third Party Beneficiaries. This Agreement has been made by and is solely made for the benefit of the Parties. Except as otherwise specifically provided herein, nothing expressed or implied in this Agreement is intended, or shall be construed, to confer upon or give any person or entity, other than Broker and Lender, and its assigns or successors, any rights or remedies under or by reason of this Agreement.
7.09 Governing Law. This Agreement shall be governed by and construed under the laws of the State of Utah, without regard to its conflicts of laws principles.
7.10 Integration. This Agreement contains the final and entire agreement of the Parties and all other agreements whether oral or written made with respect to the subject matter and the transactions contemplated by this Agreement shall have no force or effect, except that Broker and lender may enter into a separate writing or writings agreeing to and detailing Broker’s compensation for any Loan. No amendments, supplements or waivers of any provision of this Agreement shall be valid, unless set forth in a writing, signed by authorized representatives of both Parties.
7.11 Interpretation. Any ambiguities in this Agreement will not be strictly construed against the drafter of the language concerned but will be resolved by applying the most reasonable interpretation under the circumstances, considering the likely intentions of the Parties at the time of contracting. This Agreement will not be construed against any Party by reason of its preparation.
7.12 Further Assurances. The Parties shall execute and deliver any and all additional papers, documents and other assurances and shall do any and all acts and things reasonably necessary in connection with the performance of their respective obligations hereunder to carry out the intent of this Agreement.
7.13 Attorneys fees. In the event that a suit or arbitration is initiated by either Party to enforce the terms of this Agreement, the prevailing Party on a claim shall be entitled to reasonable attorneys' fees incurred in connection with such claim.
Agreed and Accepted:
