From time to time Broker desires to make referrals to CFP for Leases of Equipment (as such terms are hereafter defined) between lessees and CFP, and CFP desires from time to time to have Broker make said referrals to it subject to the terms and conditions set forth in this Agreement.
In consideration of CFP’ acceptance of such referrals and of Broker’s warranties and representations set forth herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Broker and CFP hereby agree:
DEFINITIONS: The following terms shall have the meaning set forth below:
Equipment: All goods that are leased to a lessee pursuant to a Lease, including all substitutions, replacements, additions and attachments.
Transaction: The leasing or financing of Equipment to a lessee when the leasing or financing of the Equipment results from a referral by Broker, or is arranged by Broker with CFP as Lessor.
Lease: Any written agreement and all related documents in connection therewith, including without limitation all addenda, equipment schedules, financing statements or other writings, pursuant to which CFP has leased personal property or fixtures to an individual, partnership, corporation or other entity (hereinafter “Lessee”) for business purposes and which Lease is arranged by Broker.
ACCEPTANCE OF TRANSACTION REFERRALS: This Agreement shall not obligate CFP to accept transactions referred by Broker nor obligate Broker to refer transactions to CFP.
AUTHORITY OF BROKER: Broker is and shall at all times act as an independent contractor and as such shall have no authority to incur any obligation on behalf of CFP; to make any statements or representations on behalf of CFP; to bind or commit CFP to any transaction; nor to make, alter, or execute any document or agreement on behalf of CFP. Broker shall not represent to any party that Broker is employed by or represents or acts as an agent for CFP. Broker is an independent contractor and no partnership, agency, joint venture or any other similar relationship with CFP exists or is contemplated. Broker shall not accept service of any legal process in any action which may be brought against CFP.
BROKER OBLIGATIONS: With respect to any proposed Transactions referred by Broker to CFP, and at the time of the presentation of such Transactions by Broker to CFP, Broker shall furnish to CFP credit and financial information with respect to a prospective Lessee, together with a complete description of the Equipment and cost thereof, and such other information as may from time to time be requested by CFP.
Rebrokered, Sub-brokered or Super-brokered Transactions: Broker will notify CFP at the time of submission if the transaction is rebrokered (as that term is generally understood in the leasing industry), and list the originating source. Broker acknowledges they have verified the existence and validity of the originating source and will provide that information to CFP if requested.
Split Transaction: A Lease Application shall not be split between various funding sources without full disclosure in advance to CFP. In the event a Lease Application should be for less than the full amount of equipment, Broker warrants that it will disclose such facts to CFP in writing at the time the Lease Application is submitted to CFP.
DOCUMENTATION: All Transactions shall be documented on/with documents provided and/or acceptable by CFP. Any documentation, materials and/or supplies furnished by CFP to Broker shall at all times remain the sole exclusive property of CFP and shall be immediately returned to CFP upon demand.
ACCEPTANCE OF LEASE TRANSACTION: CFP shall have five (5) working days following receipt of any proposed Lease Transaction referred to it by Broker within which to accept or decline the same. During this period of time Broker shall not refer the proposed Lease Transaction to any other equipment finance or leasing company.
EXPENSES OF BROKER: Broker shall be responsible for payment of all costs and expenses incurred in connection with the discharge of any Broker’s obligations hereunder.
COMPENSATION OF BROKER: Upon CFP’ approval, acceptance and funding of a Transaction, Broker shall be paid by CFP, as full compensation for referring the Transaction to CFP, CFP’ standard brokerage fee in accordance with CFP’ then current commission schedule for such transactions.
Notwithstanding the foregoing, if an Event of Default (as defined in the Lease) arises under the Lease at any time within six (6) months of the Final Acceptance Date (as defined in the Lease), and such Event of Default is not cured within any time allowed under the Lease for cure, then upon notice to Broker of such Event of Default, Broker shall promptly refund and pay to CFP the full amount of the brokerage fee and any other compensation paid by CFP to Broker in connection with the Transaction. Failure to refund and pay CFP consistent with this provision shall constitute a breach and default by Broker under this Agreement.
TERMINATION: This Agreement shall be effective upon execution hereof and shall continue in effect until terminated by either party upon thirty (30) days written notice, except that CFP may, at its option, terminate this Agreement effective immediately upon breach of any term, representation or warranty hereof by Broker. The rights and obligations of the parties hereunder with respect to Transactions originated prior to termination of this Agreement shall survive such termination.
INDEMNITY: Broker shall indemnify and hold CFP harmless from any and all expenses, injury, damage, loss or claims, including reasonable attorney’s fees, which CFP may hereafter incur, pay or suffer as a result of any acts or omissions of Broker, its agents, principals, employees, or representatives. Broker further agrees that any defense that accrues to it may be used by CFP.
BROKER’S WARRANTIES AND REPRESENTATIONS; With respect to all Transactions referred to CFP, Broker represents and warrants that:
The Lease is the only lease executed with respect to the equipment and no agreement exists with respect to the Lease or Equipment except as the same has been furnished by Broker to CFP.
The equipment is free of all security interests, claims, liens, and encumbrances of any kind or nature whatsoever. The Equipment has been delivered to and accepted by Lessee in a condition satisfactory to Lessee at the location specified in the Lease, and the Equipment is being utilized exclusively for business purposes.
The vendor is not affiliated with Lessee or Broker and is a bona fide dealer who regularly stocks and sells equipment of the type which is the subject of the Lease.
Each Lessee and/or guarantor is in existence, has the full legal right, power, and authority to enter into the Lease or guaranty and all signatures, names, addresses, amounts and other statements contained in the Lease and Guaranty are true and correct.
No rental payments or other amounts due under such Lease have been prepaid by Lessee or any supplier and no deposit has been paid by Lessee on the Equipment or Lease except as stated in the Lease.
No representations or warranties have been made by Broker to any Lessee or guarantor other than those representations or warranties contained in the Lease.
All information supplied by Broker to CFP concerning the Lessee, the Equipment, or otherwise with respect to the proposed Transaction is true and correct and Broker acknowledges that CFP is relying on said information in deciding to accept or reject the Lease transaction referral.
No part of the money required to commence the Lease has been loaned, rebated or advanced by Broker and Broker has entered into no reciprocal agreements with any Lessee or officer, director, employee or guarantor of Lessee.
Broker shall not solicit or accept collection of any payment due under a Lease, repossess or consent to the return of any Equipment, modify or terminate the Lease, or waive any of CFP’ rights thereunder.
Compliance with Laws and Regulations: Broker has taken all action necessary for compliance with applicable laws and regulations, including but not limited to disclosure of the right to request specific reasons for credit denial set forth under Regulation “B” of the Equal Credit Opportunity Act (the “ECOA Disclosure”). A copy of each ECOA Disclosure shall be mailed to CFP at the same time the original ECOA Disclosure is delivered to the proposed Lessee.
All representations and warranties made by Broker to CFP or Lessee are true, correct, and not misleading, false, or fraudulent in any respect.
OBLIGATIONS SURVIVE TERMINATION: Broker’s obligations, representations, and warranties under this Agreement shall survive the expiration or termination of this Agreement.
BREACH OF BROKER’S WARRANTIES OR REPRESENTATIONS: If Broker shall breach any of its warranties, representations or obligations contained herein, or should CFP discover the Broker misrepresented any fact pertaining to a Lease, or should CFP discover that Broker was aware of and did not notify CFP of misrepresentation of any fact by Lessee or Vender pertaining to a Lease, the Broker shall unconditionally guaranty the full performance of all the terms and conditions of the Transaction including the immediate payment of the balance of rent for the remaining term of the Lease.
ATTORNEY’S FEES: Should CFP retain legal counsel to enforce the terms and conditions of this Agreement, Broker shall pay CFP a sum equal to all its expenses, including reasonable attorney’s fees incurred by CFP whether or not litigation is instituted.
NOTICES: Any written notice or demand under this Agreement may be given to a party by mail at its address set forth herein or at such other address as the party may provide in writing from time to time. Notice or demand so made shall be effective when deposited in the United States mail duly addressed with postage prepaid, or if given by FAX, at such time as the FAX is successfully transmitted.
ASSIGNMENT AND SUCCESSORS IN INTEREST: Broker shall not assign, transfer, pledge or otherwise dispose of its interest in this Agreement. CFP may freely assign any interest it has in this Agreement. Subject to the foregoing prohibition against Broker’s assignment, this Agreement shall be binding upon and inure to the benefit of the heirs, successors, and assigns of the parties.
CHOICES OF LAW, VENUE AND JURISDICTION: This Agreement shall be deemed to have been entered into in Salt Lake County and shall be construed in accordance with the laws of the State of Utah. Broker hereby agrees that in the event a suit is brought in any qualified state or federal court located in the State of Utah, Broker consents to the jurisdiction of such courts and consents to venue in the County of Salt Lake, State of Utah, or at CFP’ option, venue may be in any other county or judicial district appropriate under the applicable Rules of Procedure.
SEVERABILITY: If any provision of this Agreement is held invalid, such invalidity shall not effect other provisions which can be given effect without the invalid provision.
ENTIRE AGREEMENT: This agreement is the entire, final, and complete Agreement of the parties pertaining to the referral of Lease Transactions by Broker to CFP and supersedes or replaces all written or oral communications heretofore made or existing by and between the parties or their representatives with respect thereto and no modification hereof or addition hereto shall be binding unless agreed to in writing and signed by the party against whom enforcement is sought.
CAPTIONS: The captions of the various paragraphs hereof are for reference only and are not part of this Agreement.
IN WITNESS WHEREOF, this Broker Transaction Agreement is executed in duplicate effective the above date.