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EXHIBIT 10.4
CORRESPONDENT AGREEMENT
This CORRESPONDENT AGREEMENT (this "Agreement") dated as of __________,
1998 is by and between XXXXXXXX XXXXXXXX XXXXXX X.X., a Delaware limited
partnership ("HFF") and AMRESCO CAPITAL TRUST, a Texas real estate investment
trust ("AMCT"), with reference to the following:
A. AMCT, together with its affiliated entities, is in the business of,
among other things, (i) originating and purchasing various types of commercial
mortgage loans, including participating loans, construction loans, bridge loans,
permanent loans and mezzanine loans, and (ii) investing in commercial real
estate.
B. HFF serves commercial real estate developers and owners by
originating and placing commercial mortgage loans and providing brokerage and
other real estate capital market services for commercial real estate
transactions.
C. AMCT desires to review from time to time the real estate investment
opportunities identified by HFF through its services which meet the investment
criteria and objectives of AMCT and HFF desires to submit such investment
opportunities to AMCT.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties hereto agree as follows:
1. SUBMISSION OF INVESTMENT OPPORTUNITIES.
(a) During the term of this Agreement, HFF shall submit to AMCT
those commercial mortgage loan origination and commercial real estate
investment opportunities for which HFF has been engaged to provide
brokerage or other services and that HFF reasonably determines meet
the investment criteria and objectives of AMCT (individually, an
"Investment Opportunity," and collectively, the "Investment
Opportunities").
(b) AMCT shall from time to time provide to HFF a written copy of
its then current investment criteria and objectives, and the terms,
conditions and characteristics of investments generally acceptable to
it. A copy of AMCT's investment criteria and objectives in effect as
of the date of this Agreement have been delivered to HFF. HFF
understands and acknowledges that AMCT's investment criteria and
objectives are subject to change, in AMCT's sole discretion.
(c) HFF shall use commercially reasonable efforts to inform its
officers and employees responsible for commercial mortgage loan
origination and commercial real estate investment and disposition
activities of AMCT's investment criteria and objectives.
(d) In connection with the submission to AMCT of the Investment
Opportunities, HFF, at its sole cost and expense, shall provide to
AMCT such loan applications, credit reports, rent rolls, financial
statements and other documentation
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and information as HFF customarily provides to third parties in
connection with their investigation and consideration of such
Investment Opportunities. In addition, HFF shall, at its sole cost and
expense, perform those other duties and responsibilities which HFF
customarily provides to third parties to facilitate the underwriting
and closing of the applicable Investment Opportunity.
(e) HFF will take the same care in verifying facts regarding the
Investment Opportunities as it would if the investment were being made
by HFF for its own account with its own funds. HFF will apply
practices which are in all respects legal, proper and prudent and
which meet the usual and customary standards.
2. REPRESENTATIONS AND WARRANTIES OF HFF. HFF represents and warrants
to AMCT that (a) HFF is duly qualified to do business and has obtained all
necessary licenses to conduct its business as presently conducted and to perform
its obligations under this Agreement, (b) HFF has not made and will not make any
representations to any borrower or seller regarding any investment proposal
submitted to AMCT or AMCT's conduct with respect thereto and (c) HFF has
complied, in all material respects, with the terms of its licenses and all
applicable laws, including without limitation any disclosure obligations to the
borrower or seller. The representations and warranties of HFF contained herein
will survive the termination of this Agreement.
3. FEES. No fees or commissions, or reimbursement of expenses, shall be
payable by AMCT to HFF in connection with any Investment Opportunity presented
to AMCT, regardless of whether any such proposed investment is made by AMCT. Any
fees and commissions due and payable to HFF in connection with any Investment
Opportunity presented to AMCT which are required to be paid by the applicable
borrower or seller must be disclosed in writing to AMCT. Further, neither AMCT,
nor any of its officers, trust managers, shareholders or affiliates shall have
any liability or obligation to pay any fees or other compensation including,
without limitation, finder's fees, to any third party or co-broker which may
have an agreement or arrangement, express or implied, with HFF in connection
with AMCT's funding of any investment, and any obligation arising from such
agreement or arrangement shall be the sole responsibility of HFF.
4. NO OBLIGATION. HFF acknowledges and agrees that nothing in this
Agreement or the submission of any Investment Opportunity to AMCT shall be
construed as creating any obligation on behalf of AMCT to accept any Investment
Opportunity. HFF further acknowledges that neither AMCT nor any of its
affiliates shall have any obligation or liability to HFF or any other third
party for any refusal or failure by AMCT or any of its affiliates to make a
proposed investment or for any delay in processing any proposal submitted by HFF
to AMCT.
5. TERMINATION OF AGREEMENT. This Agreement may be terminated by AMCT
at any time upon the delivery of thirty (30) days prior written notice of
termination to HFF. This Agreement may be terminated by HFF, upon the delivery
of thirty (30) days prior written notice to AMCT, at any time after the
termination of the Management Agreement
CORRESPONDENT AGREEMENT - PAGE 2
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dated as of the date hereof, between AMCT and AMREIT Managers, L.P., a Delaware
limited partnership and an affiliate of HFF. Any notice shall become effective
upon either personal delivery or delivery by mail, first class postage prepaid,
to the address set forth below.
6. NON-EXCLUSIVE AGREEMENT. This Agreement is non-exclusive. Each of
AMCT and HFF and their respective affiliates may enter into similar agreements
with other parties without limitation.
7. INDEPENDENT CONTRACTOR/LIMITATION ON AUTHORITY. HFF agrees that it
is an independent contractor in performing its services for AMCT and its
affiliates. Accordingly, HFF and its employees, agents, and contractors are not
employees of AMCT or any of its affiliates and shall not receive any
compensation or any employee benefits provided by AMCT with respect to services
performed hereunder. As an independent contractor, HFF's duties are limited as
provided by this Agreement, and its employees, agents and contractors have no
authority to represent or to obligate AMCT in any way.
8. TAXES. HFF at HFF's expense, shall pay all taxes imposed by reason
of the services or work to be performed by HFF, including but not limited to all
sales and use taxes, licenses, fees, income, franchise and personal property
taxes, and all employment taxes (including but not limited to FICA and state
unemployment taxes) or contributions imposed by any law or trade union contracts
or regulations with respect to or measured by the wages, salaries or other
compensation paid to employees of HFF or contractors of HFF in connection with
this Agreement, including but not limited to, taxes or contributions for
unemployment compensation insurance, old age benefits, welfare fund, pensions
and annuities and disability insurance.
9. TRADEMARK. HFF IS NOT ENTITLED, AUTHORIZED OR PERMITTED TO USE
AMCT'S TRADEMARK OR TRADENAME, OR ANY OTHER IDENTIFYING SYMBOL OR NAME OWNED BY
AMCT OR PHOTOGRAPHS OF AMCT'S PROPERTIES, EQUIPMENT, PRODUCTS OR FACILITIES IN
ADVERTISEMENTS, BROCHURES, PUBLICITY, RELEASES OR SIMILAR MATERIALS WITHOUT THE
EXPRESS WRITTEN APPROVAL OF AMCT. AMCT may provide HFF promotional and other
material relating to its lending and investment programs and HFF may distribute
such materials in accordance with the directions of AMCT, subject to the
limitations as independent contractor contained in paragraph 7.
CORRESPONDENT AGREEMENT - PAGE 3
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10. NOTICES. Any notices necessary to be given under the provisions of
this Agreement shall be in writing and delivered either personally or by
facsimile or by mail, first class postage prepaid, to the address set forth
below:
Xxxxxxxx Xxxxxxxx Xxxxxx X.X.
0000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000-0000
Attn: President
AMRESCO Capital Trust
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000, XX 000
Xxxxxx, Xxxxx 00000-0000
Attn: President and General Counsel
11. MISCELLANEOUS PROVISIONS.
(a) The arrangements and relationships contemplated in this
Agreement are the sole understandings of the parties hereto with
respect to the subject matter hereof, and any other agreements,
expressed or implied, entered into prior or contemporaneous to this
Agreement are null and void.
(b) This Agreement shall be considered the entire agreement and no
further arrangements between the parties will be considered valid and
enforceable under this Agreement or any amendment thereto unless they
are in writing and executed by the parties herein.
(c) This Agreement shall be governed by the laws of the State of
Texas. Any suit or controversy arising out of this Agreement, if
litigated shall be filed in state or federal court in the State of
Texas.
(d) If any part of this Agreement is found to be unenforceable, the
remainder of the Agreement shall still remain in full force and effect.
(e) If any action or claim is made by any party hereto against the
other, the prevailing party shall be entitled to their reasonable
attorney's fees and costs.
(f) This Agreement may be executed in counterparts, each of which
shall be deemed an original, but both of which taken together shall
constitute one and the same instrument.
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12. NO PARTNERSHIP. Nothing herein contained shall be deemed or
construed to create a partnership or joint venture between the parties hereto.
13. NON-DISCRIMINATION. HFF shall not discriminate, either directly or
indirectly, against any person because of race, color, creed, sex or national
origin in the origination of any loans under this Agreement, or hiring employees
or agents to perform services for HFF under this Agreement.
Executed and effective as of the date first written above.
AMRESCO CAPITAL TRUST
By:
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Name:
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Title:
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XXXXXXXX XXXXXXXX XXXXXX, X.X.
By: AMRESCO Mortgage Capital, Inc.,
its general partner
By:
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Name:
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Title:
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