REFERRAL FEE AGREEMENT
This Referral Fee (“Agreement”) is made effective [swift_date_today] (“Effective Date”), by and between [swift_name name=”name” size=”medium”](Company Name), [swift_textbox name=”state_1492116926398″ placeholder=”state in which you are registered” required size=”medium”] (State of Incorporation) (“Company”) and NORTH PEAK FUNDING, a Delaware LLC, on behalf of itself and its franchisees and/or affiliates, North Peak Investments and North Peak Property Group (collectively “NPF”).
- WHEREAS, Company on behalf of itself or for others sells and/or offers to sell real property suitable for purchase by real estate investors (“Property”) in the [swift_textbox name=”region_1492116879170″ placeholder=”indicate general region” required size=”medium”] region (“Area”).
- WHEREAS, NPF is a licensed real estate brokerage in the State of Oregon, and assists potential real estate investors, through its franchisees, in identifying Property and referring such investors to licensed salespersons, agents, brokers, developers, and builders.
- WHEREAS, NPF and Company have entered into a separate Confidentiality Agreement and desire to establish a business relationship as set forth herein.
THEREFORE, for good and valuable consideration the adequacy and receipt of which is acknowledged the undersigned parties agree as follows:
As used in the Agreement, the following capitalized terms have the definitions set forth below:
- “Company” includes (a) any officer, director, shareholder, employee, or agent of Company, (b) any person acting for or on Company’s behalf or at Company’s direction and (c) any affiliate, sister or other entity directly or indirectly owned or controlled by any other party considered to be a Company, as set forth in (a) and (b).
- “Investor” means the person (naturally or an entity, including all officers, directors, equity holders, affiliates and agents) that NPF refers to Company, but does not include any person that Company has preexisting relations with, provider Company has notified NPF of such fact in accordance with section (3).
- “Property” includes, but is not limited to residential real estate, commercial real estate, TIC interests, REITs, equity interests, debt interests, tax deeds, tax liens, notes/bonds and all other forms of investments.
- “Writing” means correspondence, email, fax and all other written or electronic forms of communication used commercially and designed to reasonably ensure transmission and receipt of such communication.
NPF may, but is not obligated to, introduce to Company potential buyers who are interested in purchasing Property located in the Area (“Investor”). Company may, but is not obligated to, provide Investor with information, details and documents concerning such Property; negotiate with (if Company is a seller) or on behalf of Investor (if Company is a salesperson, agent or broker); and, otherwise assist Investor in purchasing suitable Property located within the Area.
NPF will submit to Company, in writing (usually via email and/or web form), the name of each Investor introduced by NPF to Company. If Company has a preexisting documented relationship with such person, Company will inform NPF, in writing, within twenty-four (24) hours of receipt of the submission of Investor’s name to Company, that Company has a preexisting relationship (not originally introduced by NPF, its franchisees or North Peak Property Group) with such Investor and that the Fee (defined below) will not be paid. If Company fails to notify NPF of its preexisting relationship with Investor within the aforementioned time period, the Fee will be paid to NPF as provided herein.
IV. REFERRAL FEES
Upon the closing of a sale of Property, Company will pay to NPF a finder’s fee (“Fee”) equal to $3,000 flat fee or 3.00% of the aggregate purchase price(s) whichever is greater, total capital contributed, and/or total loan amount, whichever is greater, as the case may be on the first transaction.
Company also agrees to pay an additional $2,000 flat fee or 2.00% of the aggregate purchase price(s) whichever is greater, total capital contributed, and/or total loan amount, whichever is greater on any recurring/repeat business from the same Investor referred by NPF for up to two additional Property sales.
- The Fee will be paid within three (3) business days of the date of such closing or transaction completion.
- For the purposes of this section, a closing is deemed to have occurred, and a transaction completed, when Company or another party on Company’s behalf has received or has access to Investor’s purchase proceeds, capital, and/or loan funds. The total purchase price, total capital contributed and total loan amount shall include all forms of consideration and value given by Investor, whether in the form of immediately available funds or otherwise.
- Company will not interfere with, or circumvent in any manner, or attempt to interfere with or circumvent, the payment of the Fee to NPF, and will execute all documents and do all additional acts reasonable to ensure payment of the fee to NPF.
- The Fee is due hereunder in the event an investor purchases an interest in an entity that owns or controls the Property.
V. DUTIES OF COMPANY
Company will perform the following duties:
- Upload properties to NPF’s website at northpeakinvest.net with complete realistic income, financing and other investment property characteristics.
- Provider regular updates to NPF of the status of negotiations with Investor regarding any Property, including Investor’s perceived level of satisfaction with the Area of Property.
- Notify NPF immediately upon the signing of a purchase contract by an Investor, and provider NPF the estimated closing date; the name, address and contract information for the:
- Title insurance company
- Escrow, title company, settlement (where applicable) and/or closing agent’s attorney, the officer’s name and the file number for all transactions of such Investor.
VI. REPRESENTATIONS AND WARRANTIES OF COMPANY
Company represents, warrants and covenants to NPF and to any Investor (as a third party beneficiary of this Agreement) referred to Company by NPF, that the following is true and correct:
- Company is authorized and has legal right to offer to Investor the right to purchase any Property presented to Investor.
- Company maintains all insurances required by state or local laws, including an Errors and Omissions (E&O) policy and will indemnify, defend and hold NPF harmless from any claims asserted by Investor or any other party that may arise out of any referral as contemplated hereunder.
- Company will use its best efforts, timely communicate with Investor and do all other things reasonable and necessary to assist Investor in evaluating the Property and making prudent investment decisions.
- All Property is or will be suitable for real estate investment purposes in that such property can be leased and/or rented, without restriction, at the rates listed and/or state by Company and if such Property is restricted in any manner, Company will inform Investor of such restrictions prior to Investor entering into a purchase agreement for such Property.
- Company will promptly disclose to Investor all material information concerning the Property and provide Investor with accurate information concerning the Property’s value, viability, rental rates and other information without embellishment, hype or exaggeration.
- The Fee, as contemplated herein, is both reasonable and in compliance with the laws (including, but not limited to any statute, regulation, ordinance, or court opinion) (“Law”) of the jurisdiction that the Property is located within.
- Company acknowledges that NPF is relying upon Company’s superior knowledge and understanding of the applicable Law and market conditions within the jurisdiction or Area the Property is located within, and NPF would not enter into this Agreement, but for Company’s representation hereunder. To the fullest extent permitted under any such Law, Company irrevocably waives any claim or defense to payment of such Fee based on a claim that such Fee constitutes an improper or illegal commission.
- The Property offered to any Investor and/or sold to any Investor, as the case may be, does not exceed the fair market value of the Property.
- If Company is a salesperson, broker, agent or other sales professional, Company will not (i)increase Company’s or NPF’s fee or commission beyond it’s ordinary and customary fee or commission in order to offset the payment of the Fee set forth in this Agreement; and, (ii) fail to disclose any and all conflicts of interest to Company, NPF and Investor.
- If company is a seller of the Property or an agent of the seller, Company will not (i) increase the purchase price of the Property to any Investor in order to offset the payment of the Fee set forth in this Agreement; (ii) market, advertise or offer to sell the Property or substantially similar properties/investments to any third party for a price that is less than the price offered to any Investor; and (iii) fail to notify, give or offer any discount, rebate, allowance, upgrade or other consideration to any Investor that Company providers to third party purchasers.
VII. REPRESENTATION AND WARRANTIES OF NPF.
NPF represents, warrants and covenants to Company that the following is true and correct:
- NPF holds a valid corporate real estate brokerage license in the state of Oregon.
- NPF is not licensed as a real estate agent or broker in the State in which the Area or Property is located, unless such State is Oregon.
For a period of three (3) years from the date of this Agreement, Company will not circumvent or attempt to circumvent NPF by presenting Property to an Investor or marketing to, communicating or dealing with an Investor, without promptly informing NPF of such presentation or communication.
For a period of three(3) years from the date of this Agreement, Company will not directly or indirectly enter into any commission, finder’s fee, agency, partnership or similar agreement with any of the NPF’s past or current associate, employees, contractors, vendors or Investors (“NPF Parties”), provided Company learned of, was introduced to, or communicated with such NPF Parties, during the term of this Agreement. Nothing contained herein will prohibit NPF from referring any Investor to another person or entity that providers similar services as Company.
X. THIRD PARTIES
If Company involves any other finder, broker salesperson or agent (“Third Parties”) in any transaction involving an Investor, Company will be solely responsible for paying the fees or commissions to such Third Parties, and the Fee payable to NPF will be considered a separate and distinct obligation from Company’s obligation to any Third Parties. Company will indemnify and hold harmless NPF from all damages, costs, and expenses (including legal fees and costs) arising from any claims by any Third Parties against NPF and the payment of the Referral Fee to NPF.
- This Agreement will be construed in accordance with the laws of the state of Delaware. Jurisdiction and venue for any dispute arising out of this Agreement will be in an appropriate court located in the State of Delaware, in a county to be agreed upon when applicable.
- This Agreement may be terminated, with or without cause, by giving written notice to the other party. The obligations of the parties set forth in Sections 4 through 10 and 11 will survive any termination of this Agreement.
- The prevailing party in any action, litigation, claim or arbitration arising from this Agreement will be entitled to recover its reasonable attorneys’ fees, expenses and costs.
- No waiver by either party of any breach of any provisions of this Agreement shall be deemed to be a waiver of any breach of any other provision hereof.
- In the event any provision contained herein is deemed to be invalid by any court or government body having competent jurisdiction, the invalidity of such provision shall not invalidate any other provision contained herein.
- This Agreement may be executed in counterparts and all fully executed counterparts shall constitute this Agreement, binding on all Parties thereto, notwithstanding that, all of the parties may not be concurrent signatories to the original or any particular counterpart.
- Those individuals who are signing this Agreement on behalf of entities represent and warrant that they are, respectively, duly authorized to sign on behalf of the entities and to bind the entities fully to each and all of the obligations set forth in this Agreement.
- This Agreement constitutes the entire agreement between the parties as it relates to the subject matter contained herein and it may not be modified in any respect except by a written amendment executed by the Parties hereto. Nothing contained herein is intended to reduce or alter the provisions of any confidentiality agreement or local market specialist agreement that may exist between the parties.
ACKNOWLEDGED AND AGREED AS OF THE EFFECTIVE DATE.
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North Peak Funding
Grant Diggles, President
18765 SW Boones Ferry Rd. Suite 325
Tualatin, OR 97062