2. Best Efforts:
Broker agrees to use reasonable commercial efforts to assist in securing the Loan; however, Broker does not guarantee the Loan can or will be obtained. Client agrees that Broker will not be liable to Client for any losses or damages whatsoever in the event Loan is not secured.
3. Disclosure of Origination Fees:
If Client secures a Loan as a direct or indirect result of Broker’s efforts, Client also agrees to pay to Broker origination Points as indicated in Schedule 1 herein below as a percentage of the Loan amount (the “Points”). The Points shall be earned upon issuance of a commitment with terms and conditions acknowledged in writing to be acceptable to the Client. The parties agree that the Points shall be due and payable on the HUD at the Loan closing.
Schedule 1: Origination Points:
(Please note that Origination Points are payable on the HUD at the loan closing.)
Residential Loans (1-4 units/apartments.)
$30,000 up to 100,000 = 2.75 Points
Above $100,000 up to FHA Cap = 2.55 Points
Jumbo Loans & FHA Non-Conforming Loans:
FHA Cap up to $500,000 = 2.25 Points
Above $500,000 up to $1 million = 2.00 Points
Above $1 million up to $3 million = 1.75 Points
Above $3 million up to $5 million = 1.50 Points
Above $5 million = 1.25 Points
Commercial Loans (5+ units, apartments, condos, mixed use, storage, etc.):
$100,000 up to $400,000 = 2.55 Points
Above $400,000 up to $1 million = 2.00 Points.
Above $1 million up to $3 million = 1.75 Points
Above $3 million up to $5 million = 1.50 Points
Above $5 million = 1.00 Point
4. Term
Broker and Client agree that this Agreement and authority of Broker by Client shall continue six (6) months from Effective Date, thereafter this Agreement shall continue until terminated in writing by either party.
5. No Circumvention
For a period of six (6) months following the termination of this Agreement, Client shall not circumvent Broker by directing, approaching, dealing, contacting or entering into a transaction with any funding source introduced to Client by the Broker during the term of this Agreement.
If Client does circumvent the Broker, Broker shall be entitled to the Points described in Section 3, notwithstanding any other payments made by Client to other brokers concerning the subject circumvention. Broker shall also be entitled to recover reasonable attorney’s fees and costs necessary to collect the Points from the Client for non-payment. Broker shall also be entitled to receive twenty-three percent (23%) interest per annum on any unpaid balance Client owes to Broker for more than ninety (90) days. This Section 5 shall survive the termination of this Agreement.
6. Relationship
The parties agree that the relationship of Broker and Client shall be that of an independent contractor. This Agreement is neither intended to, nor will it be construed as, an agreement to create a joint venture, partnership, or other form of business association between the parties. All parties recognize that this Agreement is non-exclusive with respect to the Broker.
7, Miscellaneous
Each party specifically acknowledges and agrees that this Agreement and its interpretation and enforcement are governed by the laws of the State of Oregon.
Furthermore, each party irrevocably
(i) submits to the jurisdiction of any court of the State of Oregon located in Jackson County for the purpose of any suit, action or other proceeding arising out of this Agreement or any of the agreements or transactions contemplated hereby (each, a “Proceeding”),
(ii) agrees that all claims in respect of any Proceeding may be heard and determined in any such court,
(iii) waives, to the fullest extent permitted by law, any immunity from jurisdiction of any such court or from any legal process therein,
(iv) agrees not to commence any Proceeding other than in such courts and
(v) waives, to the fullest extent permitted by law, any claim that such Proceeding is brought in an inconvenient forum. The substantially prevailing party will be entitled to recover its attorneys’ fees from the substantially non-prevailing parties incurred in connection with the prevailing party’s efforts to enforce this Agreement, regardless of whether any action or proceeding is commenced. Any purported assignment without the other party’s prior written consent will be void ab initio.
8. Entire Understanding
This Agreement sets forth the entire understanding of the Parties with respect to the subject matter of this Agreement and supersedes all prior agreements and understandings between the parties regarding the subject matter of this Agreement. This Agreement may not be amended except in writing and signed by each party.
9. Severability
If for any reason any provision of this Agreement is determined by a tribunal of competent jurisdiction to be legally invalid or unenforceable, the validity of the remainder of the Agreement will not be affected and such provision will be deemed modified to the minimum extent necessary to make such provision consistent with applicable law and, in its modified form, such provision will then be enforceable and enforced.
10. Agreement Binding Upon Successors and Assigns
This Agreement is binding upon the parties and will bind their executors, personal representatives, legatees, heirs, successors and assigns.
11. No Waiver
No waiver by any party of any right or default under this Agreement will be effective unless in writing and signed by the waiving party. No such waiver will be deemed to extend to any prior or subsequent right or default or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.
12. Counterparts; Facsimile or Electronic Signatures
This Agreement may be executed in counterparts and via facsimile or PDF electronic transmission or web form email transmission, and each such counterpart will be deemed to be an original instrument. All such counterparts together will constitute one and the same Agreement.
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