- WHEREAS, the undersigned lender (herein "the Lender") wishes to attract more loan applications for commercial mortgage loans, and
- WHEREAS, C-Loans, Incorporated, (herein "C-Loans") has developed software that allows the Lenders to receive commercial mortgage loan applications over the internet;
NOW, THEREFORE it is hereby agreed that -
- C-Loans hereby licenses the Lender to use its loan application software to receive commercial mortgage loan applications directly from borrowers, mortgage brokers and real estate brokers for the term of this agreement.
- The parties hereby stipulate that the relationship between the parties is strictly limited to that of a software developer (C-Loans) and a user of that software (Lender). It is specifically agreed that C-Loans is not providing the services of a mortgage broker for the borrower or a correspondent for the Lender.
- The commercial loan applications shall go directly to the Lender, and C-Loans shall have no duty or obligation to review or to assist in the processing of these applications.
- The Lender agrees to review and respond to all loan applications within two business days and to process the loan applications in a prompt and diligent manner.
- This agreement may be cancelled by either party at any time.
- In consideration for use of the software described above, the Lender promises to pay to C-Loans within 10 banking days of the closing of the loan the contingent licensing fee described below.
- Licensing Fee. If the Lender closes a loan submitted to the Lender through the C-Loans System, either because the borrower (or broker) submitted an online loan app or because the borrower (or broker) saw the Lender's name and/or phone number on C-Loans and then called the Lender directly, the Lender agrees to pay C-Loans a licensing fee of 37.5 basis points (just 25 basis points if the loan exceeds $5 million) if the lender is a bank, S&L, savings bank, REIT, life company, credit union or a CMBS lender, if the CMBS lender charges the borrower a total loan fee of less than 1.5 points; otherwise the Lender agrees to pay a licensing fee of 50 basis points.
- Tracking Fee. The parties agree that it is the responsibility of the Lender to maintain a careful record of the commercial mortgage loan applications and the structured finance loan applications, both written and telephonic, submitted directly, or indirectly, to the Lender as a result of being listed on C-Loans.com and/or as a result of using C-Loans' software. The parties agree that it is very expensive for C-Loans to employ a staff of tracking clerks to determine if a fee is owed to C-Loans and that those lenders who maintain meticulous records and who are zealous about paying C-Loans its Licensing Fee when due should not be responsible for the additional cost of these tracking clerks and systems. Therefore it is hereby agreed that if the Lender notifies C-Loans of any loan closing for which a fee is due, within five days of closing, the Lender shall not be responsible for a Tracking Fee; otherwise the Lender hereby agrees to pay, in addition to his normal Software Licensing Fee, a Tracking Fee equal to an additional 25 basis points, based on the gross amount of the loan. Nothing in this section shall be construed as relieving the Lender of his contractual, legal and moral responsibility to promptly notify C-Loans, Inc. whenever a relevant loan is closed.
- In the event that a dispute should arise out of this agreement, at law or in equity, the parties hereby agree to resolve said dispute according the Commercial Arbitration Rules of the American Arbitration Association. The sole and exclusive venue shall lie in Sacramento, California. The prevailing party shall be entitled to arbitrator's fees, arbitration costs, expert witness fees, and legal costs, but not attorney's fees.
- This writing represents the entire agreement between the parties. No other agreement, oral or written, express or implied, shall be admissible.
Revised 12/7/06 (Licensing fee on loans over $5MM lowered on 1/11/13.)