1. RIGHT TO PROCURE: Registered Borrower(“Client”) hereby grants Blackhawk Investments Corp, (“Company”), the right to procure a real estate financing commitment of any type, including debt, equity, joint venture, guarantee, sale, equipment financing commitment or any other type of financing (the “Commitment”), from any lender, bank, insurance company, investor, joint venturer or its affiliated entities (“Investor”), upon terms acceptable to Client including but not limited to any other type of commercial financing arranged by Company. The term of this Agreement shall start on the date of execution by Client (the “Term”).
2. FINANCING PLACEMENT FEE: Client agrees to pay Company a financing placement fee of the greater of either $5,000 (five thousand dollars) OR 2.5% (two and one-half percent) of the gross amount of each 1st mortgage debt commitment, joint venture, hybrid debt commitment, mezzanine debt commitment, guarantee, sale, lease, or any secondary financing commitment secured during the term, including any amounts. Client agrees that all Fees shall be fully earned upon loan closing or the closing of any service described above. If a commitment is procured and signed by Client and Client does not close, except for any reason outside Client’s control, a Fee of one third (1/3) of the financing placement fee shall be paid to Company for services rendered.
3. ACCEPTANCE AFTER EXPIRATION OF TERM: If a Commitment is not procured during the Term, but within 360 days after the expiration of the Term, and Client or any representative of Client commences, continues, or resumes oral or written negotiations with, and thereafter Client accepts a Commitment from any Investor that Company has contacted prior to the expiration of the Term on behalf of Client, in an effort to procure a Commitment, Client agrees to pay the Fee to Company promptly upon Client’s acceptance of the Commitment.
4. SUBSEQUENT FINANCING: If Client accepts an initial Commitment from an Investor pursuant to this Agreement and Client accepts a subsequent Commitment from such Investor on or before as such then Client shall pay to Company the Fee described in Section 3 promptly upon the closing of such subsequent Commitment, Company shall be fully informed of any subsequent business meetings, upcoming transactions, or any subsequent information submitted to Lender or Investor. This provision shall be extended automatically for thirty-six (36) months beyond the date of Client’s acceptance of each Commitment from such Investor.
5. COOPERATION: Client shall cooperate with Company and Investor in procuring the Commitment, and shall promptly provide any information and documents requested by Company or Investor, which shall be accurate and complete. Client shall disclose to Company all known material facts relevant to the transaction.
6. ADVICE: Company shall not advise Client with “Expert Matters.” Such Expert Matters shall include but are not limited to the Americans with Disabilities Act, hazardous materials studies, ground lease, legal, engineering, appraisal or tax issues.
7. ASSIGNMENT: Neither party may assign this Agreement without the written consent of the other party. This Agreement shall be binding upon and enforceable by the parties and their successors and assigns.
8. ENTIRE AGREEMENT: This Agreement is the entire agreement between the subject parties regarding this subject matter. No prior agreement, representation or warranty, whether written or oral, by or between the parties regarding this subject matter, shall be binding upon the parties.
9. ARBITRATION: Any dispute between the parties arising out of this Agreement shall be resolved by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Venue for all purposed shall be in San Francisco, California and substantive California law shall apply. Judgment upon the award rendered by the Arbitrators may be entered in any court having jurisdiction. The prevailing party in the arbitration proceeding shall be entitled to recover its expenses, including the costs of the arbitration proceeding and reasonable attorney’s fees, and experts fees, if any. In no event shall the award be greater than the original fee plus attorney’s costs.
10. MODIFICATION: This Agreement may not be modified by the Commitment or any other means, except by a written modification executed by Company and Client.
11. AUTHORITY: Each of the signatories of the Agreement personally represents and warrants that he or she has full authority to sign this Agreement on behalf of the party for which he or she signs.
12. LAW: This Agreement shall be governed by the laws of the State of California.
13. ASSIGNMENT OF FUNDS: To the extent permitted by applicable law, Company is authorized to deduct its Fee from any deposits, payments, or other funds, including financing proceeds paid by the Investor in connection with a transaction contemplated by this Agreement, and Client hereby irrevocably assigns said funds and proceeds to Company to the extent necessary to pay said Fee. Company shall retain the right in its sole discretion to assign said funds to any Company of its choosing currently licensed within the State of California per a separate agreement between Company and additionally named Company. Company is authorized to provide a copy of this Agreement to any escrow or closing agent working on such transaction, and such escrow or closing agent is hereby instructed by Client to pay Company’s Fee from any such funds or proceeds available. Client shall remain liable for the entire amount of said Fee regardless of whether Company exercises its rights under this paragraph.
14. INDEMNITY: Client agrees to defend and indemnify Company against any claims, damages, costs and attorneys’ fees arising from any incorrect or incomplete information supplied by Client or the failure of Client to disclose any known material fact in the transaction.
15. ADVERTISING: Company shall have the right to advertise the successful procurement, closing and funding of a Commitment pursuant to this Agreement.
16. LIMITS ON LIABILITY: Company shall not be liable for any causes of action relating to said transaction absent fraud, misrepresentation, and/or gross negligence. Furthermore, the Client agrees and understands that in no event shall Company’s liability to Client and to all agents and employees of Client be greater than the fees paid to Company, plus legal fees, for services rendered in connection with this agreement, and the Client expressly agrees to said limitation of liability.
17. KNOWLEDGEABLE PARTIES: The parties hereto acknowledge that they will enter this agreement as an arm’s length transaction. The Client further understands and acknowledges that Client had an opportunity to accept, reject, or modify the “Arbitration” provision and an opportunity to seek advice from independent counsel and outside Companies. The Client further acknowledges that they have read and fully understand this provision and have executed this agreement knowingly, freely, and voluntarily.
18. OTHER COMPANIES: Client shall defend and indemnify Company against any claim for compensation by any other Company or finder in this transaction, excluding any claims arising out of Company’s written commitment to said Company(s).
19. CORRESPONDENT: Client acknowledges and hereby consents to the fact that Company may serve as a Correspondent agent to Investor. As a correspondent, Company may be entitled to servicing fees or other awards. This expressly does not constitute a conflict of interest.
If you have questions regarding the Financing Fee Agreement or the practices of Blackhawk Investments Corp, please contact us by e-mail at email@example.com or by regular mail at Blackhawk Investments Corp. 1793 Union Street, San Francisco, CA 94123.