This Consulting Fee & Indemnification Agreement (hereinafter “Agreement”) is made and effective this _____ day ___________, 20___ by and between:
1) ___________________; and
2) ___________________ (individually and collectively “Client” hereinafter; and
3) DreamLoan, LLC dba HomeStart of 6017 Osceola Trail, Austin, TX 78738 (hereinafter “Company”)
for the express purpose of setting forth the schedule of fees, the payment mechanisms and the indemnifications for consulting services to be provided to Client by Company.
Recitals:
Whereas, the Client and the Company are the only Parties to this Agreement (hereinafter “Party” or “Parties”);
Whereas, the Client may have approached the Company to provide services that Client’s real estate agent should have provided; and
Whereas, the Client will be responsible for paying all fees incurred as provided by the Company (hereinafter the “Consideration”).
Whereas, Client has requested consulting service(s) from the Company (hereinafter “Primary Service(s)”).
Whereas, this Consulting Fee & Indemnification Agreements shall, hereinafter, be referred to as the “Agreement”.
Now, therefore, in consideration of the mutual covenants, agreements and restrictions contained herein, the Parties hereto agree as follows:
Section 1: Term of Agreement
This Agreement shall exist until and will terminate as soon as the Company receives the entire Consideration from the Client.
Section 2: Responsibilities of the Parties
The Client may one or all of the following fees for consulting services. Not all consulting services apply to all clients though multiple services may be required to achieve Client objectives. Client will at least verbally approve all consulting services before incurring fees. Written approval of services and incurred fees is not required to bind Client.
1. Consulting services related to real estate contracts for purchases
Services are charged at a flat fee of ONE AND NO/100THS PERCENT (1.00%) of the final, agreed upon purchase price of the property for which contracts were drawn. This fee is due within TWENTY FOUR (24) hours of seller signature on contract. Decimals are rounded up.
2. Consulting services for wholesaler-mandated revenue splits*
Services are charged at a flat fee of ONE AND NO/100THS PERCENT (1.00%) of the final loan amount for the wholesaler mandating the revenue split. This fee is due within TWENTY FOUR (24) hours of loan closing. Decimals are rounded up. If compensation for Company cannot be included on the Settlement Statement, Item #7: Consulting services related to commercial loans supersedes this Item (#2).
* - These are services related to mortgage financing associated with Non-QM, non-regulated loans.
3. Consulting services related to real estate negotiations
These services have no charge whatsoever.
4. General real estate advice related to real estate already owned**
Services rendered from 9:00 a.m. to 6:00 p.m, Monday - Friday, excluding holidays are TWO HUNDRED SEVENTY FIVE AND NO/100 DOLLARS ($275.00) per hour charged in ONE TENTH (1/10TH) of an hour increments due within FIFTEEN (15) days of billing per Section 9: Notices & Accounts of your Consulting Fee & Indemnification Agreement.
Services rendered from 6:01 p.m. to 8:59 a.m. Monday - Sunday and from 8:00 a.m. to 6:00 p.m. and holidays are THREE HUNDRED SEVENTY FIVE AND NO/100 DOLLARS ($375.00) per hour charged in ONE TENTH (1/10TH) of an hour increments due within fifteen (15) days of billing per Section 9: Notices & Accounts of your Consulting Fee & Indemnification Agreement.
** - These services do not include mortgage financing and mortgage financing must be provided by Mortgage Portfolio Services.
5. General Business Consulting
Services rendered from 8:00 a.m. to 6:00 p.m, Monday - Friday, excluding holidays are TWO HUNDRED SEVENTY FIVE AND NO/100 DOLLARS ($275.00) per hour charged in ONE TENTH (1/10TH) of an hour increments due within FIFTEEN (15) days of billing per Section 9: Notices & Accounts.
Services rendered from 6:01 p.m. to 7:59 a.m. Monday - Sunday and from 8:00 a.m. to 6:00 p.m. and holidays are THREE HUNDRED SEVENTY FIVE AND NO/100 DOLLARS ($375.00) per hour charged in ONE TENTH (1/10TH) of an hour increments due within fifteen (15) days of billing per Section 9: Notices & Accounts.
6. Consulting services related to credit advice
Services rendered for credit development cost NINETY NINE AND NO/100 DOLLARS ($99.00) for every three trade lines or part thereof due in advance; and Services rendered for rapid rescoring cost NINETY NINE AND NO/100 DOLLARS ($99.00) for every three trade lines or part thereof; plus
Rescoring with documentation costs FORTY FIVE AND NO/100 DOLLARS ($45.00)/trade line/bureau for ordering the rescore of a line item change where documentation provided by Client or Company is accepted by a bureau; or
Rescoring without documentation costs NINETY AND NO/100 DOLLARS ($90.00)/trade line/bureau for ordering the rescore of a line item change where the is either no documentation provided by Client or Company or where the documentation provided by Client or Company is not accepted by a bureau.
The client is also responsible for the cost of all pre- and post- credit development credit reports.
All Consideration for consulting services related to credit advice are due in advance per Section 9: Notices & Accounts of your Consulting Fee & Indemnification Agreement.
7. Consulting services related to TPO Arrangements & Commercial Loans
Services rendered for commercial loans placed by Company for Client are between TWO AND 75/100THS PERCENT (2.75%) and FOUR AND NO/100THS PERCENT (4.00%) of the closed loan amount, depending whether the loan is residential or commercial, on the complexity of the client file, the time needed to find an appropriate lender and the ease or difficulty of the lender’s process. The size of the loan is not a factor in the determination of the fee. Full Consideration is due within TWENTY FOUR (24) hours following loan closing or, in the case of an owner-occupied dwelling, within TWENTY FOUR (24) hours of the funding of the loan.
Company will provide all services to commercial Clients normally provided for residential customers including loan product determination, loan placement with wholesaler(s), multiple loan submissions, documentation, verifications, closing and funding.
8. Consulting services related to Business Loans
Services rendered for business loans procured by Company for Client are THREE AND 50/100THS PERCENT (3.50%) of the total loan amount for which Client is approved and Consideration is due within FORTY EIGHT (48) hours after Client signs loan documents for any portion of any business financing or any other similar agreement documentation. The issuance of a Letter of Intent or similar document constitutes agreement documentation and does not have to be signed by Client in order for the financing that is the subject of the Letter of Intent to be considered procured.
The Company is responsible for providing all services in a professional and timely manner within its ability depending on wholesaler turn times, vendor schedules (appraisers, surveyors, city and county officials, etc).
Section 3: Final Agreement
This Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof. This Agreement may not be modified or amended except through writing duly executed by all of the Parties hereto and in the presence of a Notary in each Party’s respective state or commonwealth. This Agreement embodies all the understandings and obligations of the Parties with respect to the subject matter hereof.
Section 4: No Assignment
Neither Party may assign this Agreement or any interest herein without the express prior written consent of all Parties to the Agreement. Section 5: Severability If any term of this Agreement is held by a court jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.
Section 5: Heirs
This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and heirs.
Section 6: No Implied Waiver
Either Party’s failure to insist in any one or more instances upon strict performance by the other Party of any of the terms of this Agreement shall not be construed as a waiver of any continuing or subsequent failure to perform or delay in performance of any term hereof.
Section 7: Governing Law
This Agreement shall be governed and construed in accordance with the laws of the United States of America and the State of Texas and the Parties consent to the exclusive jurisdiction of the state courts and the U.S. Federal Courts
located there for any dispute arising out of this Agreement. Owner and Recipient understand and agree that in the event of any breach by one Party, the other Party may obtain, in addition to any other legal remedies which may be available, such equitable relief as may be necessary to protect said Party against any such breach including but not limited to provable damages, court costs and attorney’s fees.
All disputes, claims, or controversies arising from or related to Client’s loan transactions originated or processed through Company, including statutory claims, shall be resolved by binding arbitration, and not by court action, at Company’s sole discretion. This Arbitration Agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by The Federal Arbitration Act (9 U.S.C. 1-14). The Client, however, surrenders the right to have small claims court as the final option, despite its inclusion in The Federal Arbitration Act. In the event that The Federal Arbitration Act is found inapplicable, this Agreement shall be governed by Texas State Arbitration provisions, but the Client still surrenders the right to bring suit in small claims court. Said claims shall be resolved in accordance with the rules of the American Arbitration Association (with the exception of the small claims court remedy) then in effect, and judgment of the award rendered may be entered by any court having jurisdiction under the provisions of The Federal Arbitration Act or Texas State Arbitration provisions.
The Party initiating the arbitration shall pay the appropriate filing and upfront fees for instituting arbitration proceedings. Each Party shall be responsible for the fees and expenses of their legal representation, witnesses, consultants and any other expenses associated with the presentation of their case throughout the proceedings, unless costs and attorneys fees are otherwise awarded by the arbitrators as part of their judgment.
The Parties understand and agree that each Party is waving their right to have any case determined in court; that any provision to file a small claims court action is surrendered; that arbitration is final and binding; that discovery is generally more limited in arbitration proceedings, than in court proceedings; and that the award in an arbitration proceeding is not required to contain both factual findings and legal reasoning.
Section 8: Breach
In the event of a breach of this Agreement, the prevailing Party will be entitled to all costs, charges and attorney fees incurred in seeking equitable relief in addition to the equitable relief awarded to the prevailing Party. In the event of a perceived or threatened breach of the terms of this Agreement, Company shall be entitled to an injunction restraining or compelling any other Party or Parties about to commit any breach of this Agreement, or who have committed a breach hereof, without showing or proving any actual damage sustained by Company.
Failure to tender full consideration for services by Client will constitute a material breach of this Agreement. Unpaid, late payment of billings whether received or agreed to per this Agreement will accrue interest at the rate of TEN AND NO/100 PERCENT (10.000%) per month, compounding monthly, until full payment is received by Company. Interest accrued is in addition to any compensation awarded under this section of this Agreement.
Section 9: Notices & Accounts
Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given to the appropriate Party by personal delivery or by certified mail, postage prepaid, or recognized overnight delivery services
requiring a signature. Emails and facsimiles will not be considered proper notice.
Client: Printed Name / Printed Name
Address / Address
City State Zip / City State Zip
Company: HomeStart (DreamLoan, LLC)
6017 Osceola Trail
Austin, TX 78738
Payments: Personal checks are not accepted. If Client goes to a Prosperity Bank branch to deposit consideration into our account, only cash
will be accepted.
For certified (cashier’s) checks:
Payable to: Pete Fajkowski
Mail to: HomeStart (DreamLoan, LLC)
6017 Osceola Trail
Austin, TX 78738
Section 10: Headings
Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.
Section 11: Severability
If any term of this Agreement is held by a court jurisdiction to be invalid or unenforceable, then this Agreement, including all the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.
Section 12: Indemnification
As the consulting requested from Client is in the area of residential real estate, commercial real estate, subdividing, credit or any other such matter for which the company can claim reasonable expertise, Client agrees to hereby indemnify Company and Peter W. Fajkowski as an individual from any consequence, real or imagined, of the interpretation or use of the information contained in the services provided to client.
Section 13: Extension
This agreement is automatically may extend exclusively and solely for the consulting services contained in Section 2, Item #1 of this Agreement as follows:
If an offer is accepted and becomes a contract and Client has tendered the full consideration for services rendered and that contract is terminated due to inspection, catastrophe or an event beyond the control of the Client, Company will credit Client all fees paid and will prepare and provide logistical support for up to FOUR (4) more offers on behalf of Client. Fees for contracts secured under this Extension will be affected as follows:
1. Subsequent Contract Has Higher Purchase Price than Prior
In the event that Client secures another contract for another residential real estate property under this Extension and that contract is for a property whose purchase price exceeds the purchase price of the property for which Client tendered full consideration, Client will owe ONE PERCENT (1.00%) of the difference in those purchase prices.
2. Subsequent Contract Has Lower Purchase Price than Prior
In the event that Client secures another contract for another residential real estate property under this Extension and that contract is for a property whose purchase price is lower than the purchase price of the property for which Client tendered full consideration, Client will receive no refund of any percentage of the difference in purchase prices.