(a) A licensee that is a finance lender may pay compensation to a person that is not licensed pursuant to this division in connection with the referral of one or more prospective borrowers to the licensee, when all of the following conditions are met: (1) The referral by the unlicensed person leads to the consummation of a commercial loan, as defined in Section 22502, between the licensee and the prospective borrower referred by the unlicensed person. (2) The loan contract provides for an annual percentage rate that does not exceed 36 percent. (3) Before approving the loan, the licensee does both of the following: (A) Obtains documentation from the prospective borrower documenting the borrowerâs commercial status. Examples of acceptable forms of documentation include, but are not limited to, a sellerâs permit, business license, articles of incorporation, income tax returns showing business income, or bank account statements showing business income. (B) Performs underwriting and obtains documentation to ensure that the prospective borrower will have sufficient monthly gross revenue with which to repay the loan pursuant to the loan terms, and does not make a loan if it determines through its underwriting that the prospective borrowerâs total monthly expenses, including debt service payments on the loan for which the prospective borrower is being considered, will exceed the prospective borrowerâs monthly gross revenue. Examples of acceptable forms of documentation for verifying current and projected gross monthly revenue and monthly expenses include, but are not limited to, tax returns, bank statements, merchant financial statements, business plans, business history, and industry-specific knowledge and experience. If the prospective borrower is a sole proprietor or a corporation and the loan will be secured by a personal guarantee provided by the owner of the corporation, a credit report from at least one consumer credit reporting agency that compiles and maintains files on consumers on a nationwide basis shall also be considered. (4) The licensee maintains records of all compensation paid to unlicensed persons in connection with the referral of borrowers for a period of at least four years. (5) The licensee annually submits information requested by the commissioner regarding the payment of compensation in the report required pursuant to Section 22159. (b) A licensee that pays compensation to a person that is not licensed pursuant to this division in connection with a referral for a commercial loan made by that licensee to a borrower shall be liable for any misrepresentation made to that borrower in connection with that loan. (c) The following activities by an unlicensed person are not authorized by this section: (1) Participating in any loan negotiation. (2) Counseling or advising the borrower about a loan. (3) Participating in the preparation of any loan documents, including credit applications. (4) Contacting the licensee on behalf of the borrower other than to refer the borrower. (5) Gathering loan documentation from the borrower or delivering the documentation to the licensee. (6) Communicating lending decisions or inquiries to the borrower. (7) Participating in establishing any sales literature or marketing materials. (8) Obtaining the borrowerâs signature on documents. (d) The prohibitions in subdivision (c) do not apply if the unlicensed person meets one or more of the following criteria: (1) Is exempt from licensure under this division. (2) Is exempt from federal income taxes under Section 501(c)(3) of the Internal Revenue Code. (3) Is a business assistance organization recognized by the United States Small Business Administration. (4) Is engaged in one or more of the activities described in paragraphs (1) to (8), inclusive, of subdivision (c) in connection with five or fewer commercial loans in a 12-month period made by persons licensed under this division. (e) The commissioner may adopt regulations under this
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