MASTER COMMERCIAL MORTGAGE LOAN REFERRAL AGREEMENT
THIS MASTER COMMERCIAL MORTGAGE LOAN REFERRAL AGREEMENT (this “Agreement”) is entered into as of the date set forth on the applicable Referral Schedule, as defined below (the “Effective Date”), by and between WALTZ, INC., a Delaware corporation with its principal offices located at 1111 Brickell Avenue, 10th Floor Industrious, Sabadell Financial Center, Miami, Florida 33131 (the “Company”), and the referring party who signed the Referral Schedule (the "Referring Party"). The Company and the Referring Party may be referred to herein individually as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, the Company engages in the business of originating Commercial Mortgage Loans, as defined below.
WHEREAS, the Referring Party desires to make Referrals, as defined below, of Commercial Mortgage Loan to Company, and the Company desires to accept such Referrals from the Referring Party for the purpose of originating such Commercial Mortgage Loans.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, all parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. For purposes of this Agreement, the following capitalized terms shall have the respective meanings set forth below:
“Agreement” means this Master Commercial Mortgage Loan Referral Agreement, including all exhibits, schedules, and attachments hereto (as amended, restated, supplemented, or otherwise modified from time to time.
“Borrower” means a prospective borrower who is the subject of a Referral submitted to the Company by the Referring Party.
“Borrower-Related Party” If a Borrower is an individual, any member of the immediate family of such Borrower and any guarantor of the related Commercial Mortgage Loan and any member of the immediate family of such guarantor; and if Borrower is an entity, any officer, partner, member, equity owner, or employee of such entity and any member of the immediate family of any of the foregoing and any guarantor of the related Commercial Mortgage Loan and any member of the immediate family of such guarantor.
“Broker Activity” means any of the following activities engaged in by the Referring Party: (a) taking an application for a Borrower or assisting the Borrower in applying for a Mortgage Loan; (b) discussing with a Borrower any particular credit terms of a Mortgage Loan that may be available; (c) offering particular credit terms to, or discussed particular credit terms with, a Borrower in connection with a Mortgage Loan; (d) negotiating or offering credit terms relating to a Mortgage Loan available from the Company to a Borrower; (e) counseling or advising a Borrower about any Mortgage Loan product or term; (f) gathering Mortgaged Loan documentation from a Borrower or delivering documentation to the Company; (g) communicating lending decisions or inquiries from the Company to a Borrower or communicating inquiries from the Borrower to the Company; (h) establishing or participating in establishing any sales literature or marketing materials relating to the Company or any Mortgage Loan; (i) obtaining a Borrower’s signature in connection with any Mortgage Loan document, disclosure, or any other document or instrument; (j) representing to a Borrower that the Referring Party can or will perform any of the activities discussed above, or (k) any other activity that is deemed by a State to require a mortgage broker license with respect to a Commercial Mortgage Loan.
“Broker License State” means a State in which a Property is located and that requires the Referring Party to obtain a Mortgage Broker License or a Real Estate Broker License if the Referring Party does not limit its activity to a simple Referral and engages in a Broker Activity. The Broker License States are identified in Exhibit A to this Agreement.
“Commercial Mortgage Loan” means a loan that is made or will be made by Company to a Borrower for business or commercial purposes and that is or will be secured by non-owner occupied residential real property.
“Company” has the meaning in the preamble to this Agreement.
“Nonqualified State” means a state in which a Property is located and that requires the Referring Party to obtain a Mortgage Broker License or a Real Estate Broker License for a mere Referral, even if the Referring Party does not engage in a Broker Activity. The Nonqualified States are identified in Exhibit A to this Agreement.
“Property” means the real property that will secure a Referred Mortgage Loan.
“Qualified Loan” means a Commercial Mortgage Loan that satisfies all requirements of this Agreement, including, but not limited to, Section 2 hereof.
“Qualified State” means a state in which a Property is located and for which a Referral Incentive may be paid by the Company to the Referring Party. A Qualified State does not include any Nonqualified State.
“Referral” means, with respect to a Commercial Mortgage Loan (a) the introduction of a Borrower to Company, (b) the introduction of the Company to the Borrower, (c) the sharing of a Borrower’s contact information with Company, or (d) the sharing of Company’s contact information with a Borrower.
“Referral Incentive” means the payment from the Company to the Referring Party for a Referral of a Qualified Loan in the manner described in Section 4 of this Agreement.
“Referral Schedule” means that certain Mortgage Loan Referral Incentive Schedule executed and entered into by and between the Company and the applicable Referral Party as of the applicable Effective Date, including all exhibits, schedules, and attachments thereto (as amended, restated, supplemented, or otherwise modified from time to time). All of the Terms set forth in (a) this Agreement are hereby incorporated by reference into the Referral Schedule, with the same force and effect as if such Terms had been fully set forth in the Referral Schedule, and (b) the Referral Schedule are hereby incorporated by reference into this Agreement, with the same force and effect as if such Terms had been fully set forth herein.
“Referred Loan” means a Commercial Mortgage Loan that is the subject of a Referral.
“Terms” means all Terms, conditions, covenants, agreements, obligations, rights, representations, and warranties.
ARTICLE II
REFERRALS
Section 2.01 Referring Borrowers. Upon execution of this Agreement and registration by the Referring Party on the Company’s Partner Portal, Referring Party may refer to Company one or more Borrowers for Qualified Loans to be processed, underwritten, closed and funded by Company in Qualified States.
Section 2.02 Qualified Loans. A Qualified Loan is a Referred Loan that meets each of the following conditions:
- The Referred Loan must be a Commercial Mortgage Loan currently offered by or through Company in a State where the Company originates Commercial Mortgage Loans;
- The Referring Party must submit a Referral to the Company by submitting a Company Partner Submission Form;
- The Borrower must apply to the Company for a Qualified Loan after the date of this Agreement and within one hundred and twenty (120) days after the date on which the Referring Party made the related Referral;
- The Mortgage Loan may not be a Mortgage Loan in process with the Company prior to a Referral or the subject of an application submitted to the Company by a Borrower or another referring party prior to a Referral;
- The Mortgage Loan may not have a Borrower who (i) is an existing Borrower with the Company or is an existing servicing customer of the Company, (ii) is the subject of a prior Referral with respect to a Qualified Mortgage for which a Referral Incentive has already been paid to the Referring Party;
- The Mortgage Loan must be secured by a Property in State that (i) is a Qualified State (or a Nonqualified State if the Referring Party obtains and maintains in good standing all required licenses and registrations); and (ii) is a State in which the Company is authorized to originate, close, and fund Commercial Mortgage Loans; and
- Referred Loan must be approved for financing and closed and funded by Company.
Section 2.03 Licensing and Approvals.
- Referrals. If a state in which the Property is situated is a Non-Qualified State that requires the Referring Party to obtain a license to make a Referral or accept a Referral Incentive, the Referring Party must obtain such a license and maintain the license in good standing before making any Referral or accepting any Referral Incentive.
- Broker Activity. If a state in which the Property is situated is a Broker License State that requires the Referring Party to obtain a license to engage in a Broker Activity, the Referring Party must either (x) not engage in any Broker Activity and limit its services hereunder to a simple Referral, or (y) obtain a mortgage broker license or real estate broker license, as applicable, in the applicable Broker License State and maintain such license in good standing before engaging in any Broker Activity.
Section 2.04. Applicable Law. The Referring Party must comply with all applicable law in connection with each Referral and all other activities and services hereunder. The Referring Party may not make any Referral or accept any Referral Incentive that is prohibited by applicable law.
Section 2.06. Referral Incentives.
- In General. The Company shall pay to the Referring Party a Referral Incentive if: (a) the Referred Loan is a Qualified Loan, (b) the Property for the Referred Loan is located in a Qualified State, (c) the Referred Party possesses all applicable required licenses and approvals including, but not limited to, a broker license in a Broker License State in which the Referring Party engages in a Broker Activity, and (d) the Referred Loan is closed and funded by the Company. Each Referral Incentive is due and payable to the Referring Party promptly after the applicable Referred Loan has been closed and funded by the Company.
- Calculating the Referral Incentive. The specific amount and calculation of each Referral Incentive shall be determined in the manner set forth in the Referral Schedule.
Section 2.07 No Obligation to Approve. Company may, in its sole discretion, approve or deny an application relating to a Referred Loan in accordance with Company’s applicable underwriting guidelines and policies in effect from time to time. Company is not obligated to approve any such Referred Loan
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE REFERRING PARTY
Referring Party represents, warrants and agrees as of the date of this Agreement, as of each subsequent date that Referring Party makes a Referral to Company, and as of the closing date for the Mortgage Loan related to each Referral, as follows:
Section 3.01 Due Organization and Licensing. Referring Party is duly organized and existing in good standing under the laws of the state of its formation. Referring Party has all applicable and required licenses, registrations and approvals required to do business and to make Referrals in each state in which it is doing business. If Referring Party engages in a Broker Activity in any Broker License State, Referring Party has all required licenses, registrations and approvals required to engage in a Broker Activity in such Broker License State. If applicable, copies of any such licenses, registrations and approvals have been delivered to Company.
Section 3.02 Authority. Referring Party has all requisite power, authority and capacity to enter into this Agreement and to perform all obligations required of it hereunder. Referring Party’s compliance with any of the terms and conditions contained in this Agreement will not violate any provisions of its documents of organization or any other agreement to which Referring Party is a party.
Section 3.03 Compliance with Agreement. Referring Party will perform and comply with all requirements in this Agreement.
Section 3.04 Authority. Referring Party has the authority to make a Referral hereunder.
Section 3.05 No Prior Referral. No Referral of a Borrower to the Company for a Mortgage Loan hereunder is the subject of another referral to another Company for a similar Commercial Mortgage Loan.
Section 3.06 Compliance with Law. The Referring Party will perform its services hereunder in compliance with all applicable laws, rules, regulations and orders.
Section 3.07 Referring Party’s Account. The Referring Party made each Referral its own account, and the Referring Party is not acting as a referring party, arranger or conduit for any other Referring Party, originator or Company. The Referring Party is not, and will not, split or share any Referral Incentive with any other person.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES SPECIFIC TO EACH REFERRAL
Referring Party further represents, warrants and agrees as of the date of this Agreement, as of each subsequent date that Referring Party makes a Referral to Company, and as of the closing date for the Mortgage Loan related to each Referral, as follows:
Section 4.01 Referral. Each Referral submitted to Company complies with the terms and conditions of this Agreement. The Borrower has not stated to the Referring Party that either the Borrower or any Borrower-Related Party will occupy any part of the Mortgaged Property. If a Borrower or Borrower-Related Party intends to occupy any part of the Mortgaged Property, the Referring Party has not directed or encouraged the Borrower to falsely state that the Borrower or Borrower-Related Party will not occupy the Mortgaged Property.
Section 4.02 No Fraud. intentional misrepresentation, gross negligence, fraud or similar occurrence with respect to any Referral has taken place on the part of the Referring Party or the Borrower.
Section 4.03 Contact Information. The Referring Party has submitted contact information for a Borrower directly to the Company in connection with each Referral.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Company represents, warrants and agrees as of the date of this Agreement and as of the closing date for the Commercial Mortgage Loan related to each Referral, as follows:
Section 5.01 Due Organization and Licensing. Company is duly organized and existing in good standing under the laws of the state of its formation. Company has all applicable and required licenses and registrations required to do business and originate the Mortgage Loans in each state in which it is doing business.
Section 5.02 Authority. Company has all requisite power, authority and capacity to enter into this Agreement and to perform all obligations required of it hereunder. Company’s compliance with any of the terms and conditions contained in this Agreement will not violate any provisions of its documents of organization or any other agreement to which Company is a party.
ARTICLE VI
CONFIDENTIALITY AND NON-SOLICITATION
Section 6.01 Confidentiality. Each of the Referring Party and the Company hereby agrees to fully comply with all applicable laws, rules and regulations governing the confidentiality of any information acquired from or concerning the Borrowers. The Referring Party further agrees that all information provided pursuant to this Agreement by or on behalf of Company to the Referring Party is confidential and proprietary to the Company, and Referring Party shall not use or permit the use of any information provided by or on behalf the Company for any purpose other than as permitted or required for performance under this Agreement. If Referring Party becomes aware of any threatened or actual violation of the obligations or restrictions set forth in this Section 6.01, including an actual or potential threat of unauthorized access to its systems impacting the information or data of the Company, the Referring Party will promptly notify the Company thereof and will assist the Company with its efforts to terminate such access, to curtail such threatened or actual unauthorized use or disclosure, or to recover such information or materials.
Section 6.02 Non-Solicitation. Company shall not solicit a Borrower referred to Company by Referring Party for an additional Commercial Mortgage Loan following the date of the Referral. Notwithstanding the foregoing, the following solicitations, if undertaken by the Company or any affiliate of the Company, shall not be prohibited to: (i) engage in Commercial Mortgage Loan solicitations or promotions that are directed to the general public at large, including, without limitation, mass mailings based on mailing lists and newspaper, radio, television and other mass media advertisements; (ii) solicitations for Commercial Mortgage Loans made as a part of a campaign directed to borrowers with mortgage loans meeting certain defined parameters (other than parameters relating to the borrowers or Mortgage Loans specifically), provided, that such solicitations are made to other borrowers of similar-type mortgage loans serviced by the Company and such affiliates with respect to mortgage loans meeting such defined parameters, including, but not limited to, those mortgage loans serviced for the Company’s and/or such affiliates own account; or (iii) fund and close a mortgage loan for any borrower that directly requests the Company to originate such a loan without the Company having first solicited such borrower.
ARTICLE VII
LIMITATION OF LIABILITY
Section 7.01 In General. Company’s determination of which states are designated as a Broker License State and/or a Nonqualified State (collectively, the “Determination”) is for informational purposes only and Company does not represent or warrant the accuracy of Company’s Determination. Referring party acknowledges and understands that the regulatory authorities and court systems empowered to administer the laws discussed in this Survey have broad discretionary powers that may permit them to interpret specific provisions in different manners than made by Company in connection with its Determination. Referring Party should consult with and rely upon the advice of Referring Party’s counsel with respect to the validity of Company’s Determination.
Section 7.02 Release of Liability. Neither Company nor any of the directors, officers, employees, agents, or representatives of Company (“Company Parties”) shall be under any liability to Referring Party or any of the directors, officers, employees, agents, or representatives of Referring Party (“Referring Parties”) relating to or arising out of Company’s Determination. Referring Parties hereby release Company Parties from any liability in connection with any claims, damages or liability of Referring Party in connection with Company’s Determination.
ARTICLE VIII
MISCELLANEOUS
Section 8.01 Term. This Agreement shall remain in full force and effect until either party (the “Terminating Party”) delivers written notice to the other party that the Terminating Party has elected to terminate this Agreement. The termination date shall be the date of receipt of such notice as set forth in Section 8.1 of this Agreement.
Section 8.02 Severability. Any part, provision representation or warranty of this Agreement which is prohibited or unenforceable or is held to be void or unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction, to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction as to any Referral shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by applicable law, the parties hereto waive any provision of law which prohibits or renders void or unenforceable any provision hereof.
Section 8.03 Counterparts. This Agreement may be executed simultaneously in any number of counterparts. Each counterpart shall be deemed to be an original, and all such counterparts shall constitute one and the same instrument. The parties agree that this Agreement, any documents to be delivered pursuant to this Agreement and any notices hereunder may be transmitted between them by email and/or by facsimile. Delivery of an executed counterpart of a signature page of this Agreement in Portable Document Format (PDF) or by facsimile transmission shall be effective as delivery of a manually executed original counterpart of this Agreement.
Section 8.04 Governing Law Jurisdiction; Consent to Service of Process. THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ITS CHOICE OF LAW RULES AND PRINCIPLES. EACH OF THE COMPANY AND THE REFERRING PARTY IRREVOCABLY (I) SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF DELAWARE AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE DISTRICT OF DELAWARE FOR THE PURPOSE OF ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT; (II) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM IN ANY ACTION OR PROCEEDING IN ANY SUCH COURT; (III) AGREES THAT A FINAL JUDGMENT IN ANY ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER JURISDICTION BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW; AND (IV) CONSENTS TO SERVICE OF PROCESS UPON IT BY MAILING A COPY THEREOF BY CERTIFIED MAIL ADDRESSED TO IT AS PROVIDED FOR NOTICES HEREUNDER.
Section 8.05 Successors and Assigns. This Agreement shall bind and inure to the benefit of and be enforceable by the Company and the Referring Party and the respective permitted successors and assigns of the Company and the Referring Party. This Agreement shall not be assigned, pledged or hypothecated by the Referring Party to a third party without the prior written consent of the Company, which consent may be withheld or delayed by the Company, in its sole discretion. This Agreement may be assigned by the Company, in whole or in part, and with respect to one or more of the Referrals, to a third party.
Section 8.06 Waivers. No term or provision of this Agreement may be waived or modified unless such waiver or modification is in writing and signed by the party against whom such waiver or modification is sought to be enforced.
Section 8.07 Further Agreements. The Company and the Referring Party each agree to execute and deliver to the other such reasonable and appropriate additional documents, instruments or agreements as may be necessary or appropriate to effectuate the purposes of this Agreement.
Section 8.08 Relationship of Parties. Nothing herein contained shall be deemed or construed to create a co-partnership or joint venture between the parties hereto.
Section 8.09 Amendments. This Agreement may be amended from time to time by the Company and the Referring Party only by written agreement signed by the Company and the Referring Party.
Section 8.10 Waiver of Trial by Jury. THE COMPANY AND REFERRING PARTY EACH KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 8.11 Entire Agreement. This Agreement and the Referral Schedule constitute the entire agreement and understanding of the Parties with respect to the matters and transactions contemplated by this Agreement and the Referral Schedule. Except to the extent otherwise set forth in writing, this Agreement and the Referral Schedule supersede any prior agreement and understandings with respect to those matters and transactions.
Section 8.12. Referral Schedule. All Terms set forth in this Agreement are hereby incorporated by reference into the Referral Schedule, with the same force and effect as if such Terms had been fully set forth in the Referral Schedule.
Section 8.13 Signatures. The signatures of the Company and the Referring Party set forth on the Referral Schedule shall (a) be deemed to constitute each such Party’s valid signature to this Agreement, (b) be deemed to constitute each such Party’s consent and agreement to all Terms of this Agreement, and (c) bind each such Party hereto as if each such signature were fully set forth directly on this Agreement.
EXHIBIT A
BROKER LICENSING STATES AND NONQUALIFYING STATES
Referral Fee Restrictions for Broker Activities and for Simple Referrals
(Assumes Referring Party is not a Licensed Mortgage Broker or Mortgage Company and that all Waltz loans are made to a business entity and secured by a non-owner occupied 1-to-4 family rental property.)
1 ILLINOIS REFERRING PARTY: An Illinois Broker Registration is required if the Referring Party is involved in any role in the negotiation of a loan and the Referring Party is paid a referral fee prior to the loan closing.
2 MICHIGAN REFERRING PARTY: A Michigan Real Estate Broker License is required if the Referring Party is involved in any role in the negotiation of any mortgage loan.
3 NEBRASKA REFERRING PARTY: A filing must be made under the Nebraska Loan Brokers Act if the Referring Party is involved in any role in the negotiation of a mortgage loan.
4 NEW JERSEY REFERRING PARTY: A New Jersey Real Estate Broker License is required if the Referring Party is involved in any role in the negotiation of a mortgage loan.
5 NEW YORK REFERRING PARTY: A New York Real Estate Broker License is required if the Referring Party is involved in any role in the negotiation of a mortgage loan.
6 NORTH CAROLINA REFERRING PARTY: A Referring Party must file a copy of a broker disclosure and a $10,000 bond with the North Carolina Secretary of State if the Referring Party is involved in any role in the negotiation of a mortgage loan.
7 PENNSYLVANIA REFERRING PARTY: A Pennsylvania Real Estate Broker License is required if the Referring Party is involved in any role in the negotiation of a mortgage loan.