BROKER AGREEMENT
Exhibit
10.2
Private
& Confidential
SERVICES
| A. |
This
agreement (the “Agreement”) is by and between Xxxx X. Xxxxxxx, as a
California broker (the “Broker”), and OL Funding, Inc., a California
corporation (the “Company”), whereby Broker agrees to serve as the
representative Broker for Company.
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| B. |
The
parties agree that Broker may provide services outside of the scope
of
Real Estate. Company does not limit the work Broker performs for
others.
Services for Company are not required to be performed during any
set
hours, nor is there a guarantee of hours to be provided by Broker.
Either
party may terminate this Agreement as set forth
herein.
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DECISION-MAKING
CAPACITY OF BROKER – Broker agrees to generally defer to the President of
Company with respect to all decision-making on behalf of Company.
Notwithstanding the foregoing, Broker shall retain final decision-making
authority with respect to any decision that may adversely affect Broker’s
licensing status with the California Department of Real Estate (“DRE”). Company
hereby agrees to promptly present to Broker all such matters that may adversely
affect Broker’s license for discussion and resolution.
TERM
– The term of this Agreement will be for a period of one (1) year,
commencing on August 1, 2007 and subject to the termination provisions provided
herein. Notwithstanding the foregoing, this Agreement will not be effective
until Broker is listed as Broker of Record for Company by the California
DRE.
BROKER
COMPENSATION
| A. |
Company
will pay to Broker a $600 fee per transaction, the total sum of which
shall be based on the number of transactions closed and funded by
the
Company during any calendar month (the “Broker Fee”). The Broker Fee shall
be paid to Broker by Company no later than five (5) business days
following the close of each transaction. Additionally, notwithstanding
anything in this agreement to the contrary, any transactions originated
by
the Broker, the Broker shall receive a 100% commission, less ordinary
costs; including admin costs, processing costs, on transactions brought
without any of Company’s leads, and Broker shall receive 40% commission on
transactions brought in with Company’s leads - less ordinary costs;
including admin costs, processing costs. Additional, compensation
shall
include $5,000 good faith start-up
money, as well as, back-end compensation in the form of _____% of
stock,
before the company goes to, series A and series B, or
IPO.
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TERMINATION
| A. |
Notwithstanding
anything to the contrary contained herein, this Agreement shall terminate
immediately upon any of the following
occurrences:
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|
1.
Any material breach of the Agreement by Company or Broker, subject
to a
five (5) day cure period upon written notice to the breaching
party;
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2.
Any violation of applicable and governing real estate laws by Company
or
Broker; or
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3.
Dissolution of the Company; or
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|
4.
As of the effective date of the Agreement between Broker’s individual or
corporate entity with Company; or
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5.
Death of the Broker.
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| B. |
This
Agreement may be terminated by either party upon thirty (30) days
written
notice to the other party. Upon termination of this Agreement, Broker
shall be entitled to receive the Broker Fee on all loans closed and
funded
to Company as of the date of termination. Such Broker Fee shall be
paid by
Company no later than five (5) business days following the end of
the
termination calendar month.
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DEATH
OF BROKER – Should Broker die during the term of this Agreement, estate of
Broker shall be entitled to payments in the same manner as if Broker had
terminated the Agreement as set forth above.
INDEPENDENT
CONTRACTOR
A.
Broker
hereunder is an independent contractor and is responsible for his business
license, taxes and insurance. It is understood that Broker is entitled to
benefits available to employees, such as FICA taxes, state disability, state
unemployment, workers compensation, including - pension and profit sharing
plan
contributions and other employment benefits or insurance available to the
employees of Company.
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B.
It is
hereby acknowledged that federal, state and employment taxes will not be
withheld from the Broker’s Fee. Broker expressly assumes full responsibility for
the payment of any and all applicable federal and state income and employment
taxes. In the event that any taxing agency (federal, state or municipal)
requires Company to pay any unpaid tax of Broker for an agreed upon justified
reason, Broker agrees to pay such tax. In the event that Company is compelled
to
pay such tax for Broker, Broker shall reimburse such amount to Company within
sixty (60) days of written notice to Broker by Company.
C.
Company shall be responsible for all of Company’s applicable business license,
taxes and insurance, as well as any benefits available to employees, such as
FICA taxes, state disability, state unemployment, workers compensation, pension
or profit sharing plan contributions or any other employment benefits or
insurance available to the employees of Company.
D.
Company expressly assumes full responsibility for the payment of any and all
applicable federal and state income and employment taxes. In the event that
any
taxing agency (federal, state or municipal) requires Broker to pay any unpaid
tax of Company for an agreed upon justified reason, Company agrees to pay such
tax. In the event that Broker is compelled to pay such tax for Company, Company
shall reimburse such amount to Broker within sixty (60) days of written notice
to Company by Broker.
LIQUIDATION
OF COMPANY – Upon dissolution of Company for any reason, and during the
course of the Company winding up its affairs, specifically the settling and
closing of the Company's Business, the Company agrees to categorize Broker
Fees
owed to Broker as of the date of dissolution as a liability, to be handled
in
the manner consistent with other creditors of the Company with respect to the
disposal and conveyance of the Company's property.
EXPENSES
OF THE COMPANY – Company shall be responsible for all expenses incurred by
the Company, including, but not limited to, salaries, commissions, insurance,
equipment and general office overhead. In no way shall the Company be entitled
to reimbursement by the Broker for any such expenses. Additionally, Company
shall be responsible for legal, filing and licensing costs.
CONFIDENTIALITY
AND NON-DISPARAGEMENT
Company
will not authorize or release advertising or publicity materials or give
interviews concerning the existence or details of this Agreement without
Broker's prior written approval. Nevertheless, after Broker has announced the
association between Broker and Company or the association otherwise becomes
public, Company may respond, discuss and comment that Broker is associated
with
Company in a favorable and positive and non-disparaging manner during any public
events and/or interviews. It is specifically acknowledged and agreed that the
amount of compensation paid to Broker hereunder must be held in strict
confidence and under no circumstances be released publicly by Company, Company’s
agent, employees or representatives, unless otherwise required by law. Such
confidentiality is the essence of the Agreement. Further, during the Term and
for a period of one (1) year thereafter, Company will not make or authorize
any
statements in derogation of Broker or Broker’s business or his representatives,
nor shall Broker make or authorize any statements in derogation of
Company.
COMPLETION
OF DRE FORMS – Company shall be responsible for completing and filing all
forms required by the California Department of Real Estate, including, but
not
limited to, Form RE 201 and/or Form RE 204A. Additionally, Company shall be
responsible for completing and filing all forms required by any State Forms
that
is required for Broker to conduct business within that State or Jurisdiction.
The Broker shall have the opportunity to review and appropriately revise any
such forms before filing.
REPRESENTATIONS
AND COVENANTS – Company represents and warrants to Broker that it is not a
party to or bound by any presently effective agreement, contract, or
understanding with any third party or entity that would in any way restrict
or
prohibit Company from undertaking or performing its obligations or the terms
and
conditions set forth in this agreement. Broker represents and warrants to
Company that Broker is not a party to or bound by any presently effective
agreement, contract or understanding, whether for employment or otherwise,
with
any third party or entity that would in any way restrict or prohibit Broker
from
undertaking or performing Broker’s obligations or the terms and conditions set
forth in this Agreement. Notwithstanding anything to the contrary in this
agreement, Broker’s services shall not restrict his work as an advisor,
consultant, lawyer, investor, or in any such business capacity. It is understood
that Broker owns, operates, and invests in several businesses. As such, each
party holds harmless and defends the other party from liability for any such
obligations or covenants set forth above.
INDEMNIFICATION
– Company agrees to indemnify Broker and hold Broker harmless from and
against any liability, loss, damage, cost or expense including reasonable legal
fees paid or incurred by Company by reason of any breach or threatened breach
by
Company or failure of the covenants, representations or warranties contained
herein.
ACCOUNTING
– The Company shall maintain records in sufficient detail for the purpose
of
determining the amount of the Broker Fee and shall provide Broker with a written
accounting each month. In the event of a termination of this Agreement, Broker
shall have the right to inspect the Company accounting records for the limited
purpose of verifying calculation of the Broker Fee, subject to such restrictions
as Company may reasonably impose to protect the confidentiality of the records.
Such inspections shall be made during reasonable business hours as may be set
by
Company at the main office.
NOTICES
- All notices shall be addressed to the respective party at the applicable
address set forth immediately below (or such other address as the parties
designate in writing from time to time). All notices and, other communications
required or permitted hereunder shall be in writing and shall be deemed
effectively given upon personal delivery, confirmation of telex or telecopy
(to
be followed by a confirmation copy sent by first class mail), or upon the fifth
day following mailing by registered mail, postage prepaid, whichever shall
be
first, shall be deemed the date such notice is effective and addressed (a)
if to
Company at such address as listed below, or to Broker at such other address
listed below at:
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To
Company:
0000
Xxxxxx Xxx. Xxxxxxxxxx, XX 00000
Phone:
818. 322.8612
Fax:
000.000.0000
Attn:
Xxxxxx Xxxxxx, President
To
Broker:
Xxxx
X.
Xxxxxxx
0000
Xxxx
Xxxxxx Xxxxx
Xxxxxx
Xxxx, XX 00000
Phone:
000.000.0000
Fax:
000.000.0000
WAIVER
- The waiver of any of the provisions, terms or conditions contained in
this
Agreement shall not be considered as a waiver of any of the other provisions,
terms or conditions hereof.
GOVERNING
LAW - This Agreement has been entered into in the State of California and
its validity, construction, interpretation and legal effect shall be governed
by
the laws of the State of California applicable to contracts entered into and
performed within the State of California. In the event any provisions hereof
shall for any reason be illegal or unenforceable then, and in such event, the
same shall not affect the validity of the remaining portion and provisions
hereof.
SEVERABILITY
- If any term or provision of this Agreement is held illegal, invalid or
unenforceable, such illegality, invalidity or unenforceability shall not affect
the legality, validity or enforceability of the remainder of this Agreement
or
any other provisions herein.
RESOLUTION
OF DISPUTES - Any controversy arising out of or related to this Agreement or
the breach thereof shall be settled by arbitration in Los Angeles County,
California, in accordance with the rules of the American Arbitration
Association, and judgment entered upon the award rendered may be enforced by
appropriate judicial action pursuant to the California Code of Civil Procedure.
Both parties shall equally share any fees and expenses of the arbitrator, other
tribunal fees and expenses, and each party shall bear its own attorney’s fees,
any costs of producing witnesses and any other costs or expenses incurred by
such party in connection therewith.
HEADINGS
- The descriptive headings of the sections of this Agreement have been
included for convenience of reference and shall not to any extent have the
effect of modifying, amending or changing the express terms and provisions
of
this Agreement.
ENTIRE
AGREEMENT - This Agreement contains the entire understanding of the parties
hereto with respect to the transactions contemplated hereby and supersedes
all
prior arrangements or understandings with respect thereto. There are no
restrictions, agreements, promises, warranties, covenants, or undertakings
other
than those expressly set forth herein. This Agreement cannot be modified,
changed, amended and/or cancelled in any way except by an instrument in writing
signed by both parties.
COUNTERPARTS
- This Agreement may be executed in two or more counterparts, each of which
will be deemed to be an original copy of this Agreement and all of which, when
taken together, will be deemed to constitute one and the same
agreement.
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IN
WITNESS WHEREOF, the parties have executed and delivered this instrument as
of
the date first written above.
BROKER:
____________________________________
By:
Xxxx
X. Xxxxxxx Broker ID Number
COMPANY:
____________________________________
By:
Xxxxxx Xxxxxx, President
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