ORIGINATOR AGREEMENT

Transcription

1 ORIGINATOR AGREEMENT This agreement is made the day of, 20, by and between BERKSHIRE LENDING, LLC, a Texas limited partnership ( Berkshire Lending ), with offices at 8848 Greenville Avenue, Dallas, Texas and ( Originator ) WHEREAS, Berkshire Lending is engaged in the residential mortgage loan business, including the origination of such loans; and WHEREAS, Berkshire Lending desires to employ Originator to work in its branch office number, to originate residential mortgage loans, and Originator desires to be so employed on the following terms and conditions: 1. TERM: Originator shall be an employee at will and may be terminated at any time with or without cause. 2. DUTIES: Originators primary duties shall be to originate residential mortgage loans meeting the guidelines of Berkshire Lending and such other duties as Berkshire Lending may from time to time assign. Originator shall devote regular full-time attention to Berkshire Lending's business. Originator agrees that Originator will at all times faithfully, industriously, and to the best of Originator's ability, experience, and talents, perform all of the duties that may be required of Originator pursuant to the terms of this Agreement. Originator shall be subject to the supervision and direction of the Branch Manager and the Compliance Department of Berkshire Lending or its designee. Originator shall perform all duties and services in strict accordance with all policies and procedures now or hereafter established by Berkshire Lending and in accordance with all applicable federal, state and local laws, regulations and ordinances. 3. RESTRICTIONS: Originator during the term of employment shall not engage in any other real estate or mortgage related business. Originator shall not alone or in concert with others participate with any other entity or person or engage in any pursuit in competition with Berkshire Lending or that is adverse to Berkshire Lending s best interest. Originator shall not enter into any contract for goods or services on behalf of Berkshire Lending other than a mortgage loan origination agreement in a form approved by and provided by Berkshire Lending. 4. Originator, its immediate family, representatives or agents MAY NOT HAVE DIRECT OR INDIRECT INTEREST, including but not limited to, any ownership interest in a loan secured by property related in any manner with a loan, in any property pledged as security for a loan, in any loan application package, in any loan disbursement (other than fees payable to Berkshire Lending) or an affiliation or relationship with any person or entity having a financial interest in a loan, an application package or a loan transaction without the express and prior written consent from the Compliance Department of Berkshire Lending. 5. COMPLIANCE WITH LAW: Originator represents that it is knowledgeable of all laws and regulations applicable to the services to be performed by Berkshire Lending in the origination of residential mortgage loans, and agrees to abide by all such laws and regulations. 6. QUALIFICATIONS: Originator represents that he/she is registered, licensed or otherwise qualified by law and experience to engage in the profession of a mortgage loan originator in the state or states Originator will be working and for the states in which the property securing mortgage loans. 7. WORK HOURS AND CONTROL: While Originator agrees to use his/her best efforts to meet Berkshire Lending s production goal of a minimum of three (3) funded loans per calendar quarter. Originator will, consistent with Berkshire Lending s policies and procedures, perform

2 his/her duties during hours selected by Originator and approved by the Branch Manager. Overtime work hours are prohibited. 8. QUALITY CONTROL: Originator shall adhere strictly to the quality control standards of Berkshire Lending. 9. CONFIDENTIALITY: Originator agrees that all confidential information of Berkshire Lending that Originator learns of or that may come into the possession of Originator during the term of employment, shall during the term of employment and thereafter neither directly or indirectly be used or disclosed, revealed, made available or disseminated to any person who is not an authorized employee of Berkshire Lending and transmitted in the regular course of business. The term "confidential information" shall mean, in addition to the foregoing, any information, positive or negative and whether marked "confidential" or not, which has been used, is used or may be used in the future in connection with the Company and which gives, or may give, the Company an advantage in the market place against competitors or which is not readily available to an outsider, including, but not limited to systems and information designs; accounting methodology; borrower and loan applicant lists, records and information, Mortgage Loan Applications; marketing techniques; proposed developments; information regarding relationships with other entities involved in the Company, including but not limited to, real estate brokers, title insurance companies, insurance companies, surveyors, appraisers, mortgage brokers, investors and warehouse lenders; products, services, processes, training, business strategies and philosophies, manuals and reference guides; investor and customer information including their identities, needs, preferences, requirements, expectations, financial information, contract terms, rates and pricing structure; marketing data, information and plans; pricing, commission and rate information; information about this Agreement; and information about Originator or any other Originator concerning compensation or other personnel matters. In the event of a violation or attempted violation of this Section 9, in addition to any and all legal and equitable remedies which may be available, this covenant may be enforced by a temporary and/or permanent injunction issued by a Court of competent jurisdiction. 10. COMPENSATION: Originator shall be compensated in accordance with the schedule attached as Exhibit A hereto subject to the terms set forth in the TERMINATION paragraph. 11. TERMINATION: Originator or Berkshire Lending may terminate this agreement and terminate Originator s employment upon providing Berkshire Lending with 30 calendar day s prior written notice. Upon receipt of such notice from Originator, Berkshire Lending may elect to terminate Originator on an earlier date. If Berkshire Lending terminates Originator's employment for cause, Originator shall not be entitled to any notice and Berkshire Lending may terminate the employment without prior notice. (a) Berkshire Lending shall be deemed to have terminated Originator's employment "for cause" in the event that: (i) Originator's conduct is intended or likely to injure Berkshire Lending's Business, as hereinafter defined; (ii) (iii) (iv) Originator's conduct is dishonest, fraudulent, unethical or illegal; Originator engages in unlawful discrimination or harassment; Originator materially breaches any of the provisions of this Agreement; (v) Originator is dependent on illegal controlled substances or Originator abuses the use of alcohol; (vi) Originator engages in willful misconduct; (vii) Originator fails to meet and continue to meet any requirements, standards, qualifications or procedures imposed in connection with Berkshire Lending's business by any law or regulation.

3 (b) Unless terminated for cause, Originator shall be entitled to receive compensation for Originator s originated loans in process that close and fund within thirty (30) calendar days after the date of termination pursuant to Subsection (d) of this Section 11. To receive such compensation, Originator must submit a complete list of all loans in process, reporting the status of each, and cooperate with Berkshire Lending to process such loans to completion. In the event that Originator's employment is terminated by Berkshire Lending for cause or Originator terminates its employment, Originator shall not be entitled to any compensation after the date of termination, but Originator shall remain obligated under Sections 7 and 8 hereof. (c) Upon termination of Originator's employment, Originator shall return to Berkshire Lending all of Berkshire Lending's property in the possession of the Originator, including, but not limited to, supplies, forms, manuals, documents, files and all other books and records of Berkshire Lending; and documents in Originator's possession or control with respect to all applications for Mortgage Loans received prior to the date of termination of employment. (d) Berkshire Lending shall pay Originator the full commission to which Originator would otherwise be entitled to under this Agreement on all loans on Originator s list verified by Berkshire Lending settled and funded within thirty (30) calendar days after Originator s last day of employment with Berkshire Lending. (e) Originator shall receive no compensation for any loan on Originator s verified list in the event that the loan: (1) does not conform in any material respect to Berkshire Lending s standards; or (2) is rescinded, Originator shall receive no compensation for loans on Originator s verified list in the event that Originator does not satisfy, in any material respect, the terms and conditions of this Agreement, or Originator s other terms of employment with Berkshire Lending. (f) In the event Berkshire Lending terminates Originator s employment for cause, Originator shall not be entitled to receive any compensation for loans that close, settle, or fund after the date of termination. 12. INDEMNITY: Originator shall indemnify Berkshire Lending for any losses incurred by Berkshire Lending due to Originators illegal or unethical conduct, or for any violation of this Agreement. Illegal conduct shall include all conduct and omissions that violate any law, rule, or ordinance, or interpretations of any one of these. Unethical conduct shall include any violation of Berkshire Lending policy or procedure, or any conduct or omission that violates any requirement imposed on Berkshire Lending by the purchaser or a subsequent purchaser of Originators loans. Losses include all damages, judgments, fines and amounts paid in settlement, as well as any and all costs and expenses, including reasonable attorneys' fees (whether or not litigation is commenced), court costs and accountants' fees, incurred or sustained by or charged to Berkshire Lending, whether or not awarded by a court, administrative tribunal, arbitration forum or through a settlement of a claim, and also Berkshire Lendings expenses and legal fees incurred in defense of any claim. Losses shall also include all funds paid by Berkshire Lending to repurchase an Originators loan upon demand of the holder or beneficial owner of the Originators loan, or upon demand of the holders or beneficial owners representative. Claim shall include any and all cause or causes of action, suits, demands, choses in action, contracts, specialties, covenants, bonds, bills, debts, dues, sums of money, accounts, reckonings, controversies, agreements, promises, trespasses, judgments, executions, damages, demands, liabilities and claims emanating from any right or source of every conceivable kind or nature whatsoever, whether known or unknown, in law or in equity. Originator shall not have the right to control the defense and settlement of any claim. Originator expressly acknowledges and agrees that all loans originated and applications and other documents obtained by Originator or by any other Originator of Berkshire Lending during Originator s employment with Berkshire Lending are the sole and exclusive property of the Berkshire Lending, without regard to whether Originator took the applications, and without

4 regard to the stage of processing of such loans or performance of such contracts. Upon Originator s termination such loans, applications, and documents shall remain the sole and exclusive property of Berkshire Lending. Without the express written consent of the Berkshire Lending, Originator agrees that Originator shall take no action of any type to originate loans with another lender for customers who provided applications to Originator during Originator s employment with Berkshire Lending. Originator agrees to reimburse and hold Berkshire Lending harmless from and against any all losses Berkshire Lending sustains as a result of Originator s breach of this provision. Originator, upon termination, shall return all materials of any type provided to Originator by the Berkshire Lending, including without limitation, all confidential information and equipment. 13. REPRESENTATIONS OF EMPLOYEE: Originator represents and warrants to Berkshire Lending that all Representations of Originator made herein, or in advance hereof, to induce Berkshire Lending to enter into this Agreement are true and correct. Originator further represents that he/she is not a party to or bound by any agreement, contract or understanding with any other party or entity that would in any way restrict or prohibit them from entering into this Agreement or performing all the terms hereof. 14. GOVERNING LAW: This Agreement shall be governed by and construed and enforced under the laws of the State of Texas. In the event of any lawsuits or other proceedings related to this Agreement, each party hereby (1) waives its right trial by jury; (2) consents to jurisdiction in the state and federal courts located in the State of Texas; (3) agrees that venue will be in Dallas County, Texas; and (4) agrees that the prevailing party shall be entitled to recover from non-prevailing party its reasonable attorneys fees and costs. 15. ALTERNATIVE DISPUTE RESOLUTION: The parties agree that, any dispute between the parties to this Agreement involving the construction or application of any of the terms, covenants, or conditions of this Agreement, other than Originator s violation of Non-Disclosure of Confidential Information above, shall be submitted to mediation in accordance with Section of Texas Civil Practice and Remedies Code, prior to the commencement of any litigation. Such mediation shall be conducted within thirty (30) days of delivery of a written request of one party served on the other. If such dispute is not resolved by mediation, it shall be submitted to arbitration and such arbitration shall comply with and be governed by the provisions of the Texas General Arbitration Act, Sections et. Seq. Of the Texas Civil Practice and Remedies Code. Each of the parties shall appoint one person as an arbitrator to hear and determine the dispute, and if they shall be unable to agree, then two arbitrators so chosen shall select a third impartial arbitrator whose decision shall be final and conclusive upon the parties to this Agreement. The expense of arbitration proceedings conducted pursuant to this Paragraph shall be borne in such a proportion. 16. SUCCESSORS AND ASSIGNS: Originator may not, under any circumstances assign or delegate Originator s rights or obligations under this Agreement. This Agreement shall be binding upon the parties hereto and their respective successors, assigns, and personal representatives, including any successor of the Berkshire Lending by merger, consolidation or other reorganization. 17. ENTIRE AGREEMENT: This Agreement represents the entire agreement between the parties and may only be amended in a written instrument signed by the parties. 18. NOTICES: Any notice required by this Agreement shall be given in writing and personally delivered or sent to the respective parties with proper postage by registered or certified mail addressed to the parties at their addresses set forth below. Such notice shall be deemed given five (5) days after mailing by registered or certified mail, unless personally delivered, 19. WAIVERS: A waiver by either party of any of the terms or conditions of the Agreement in any instance shall not be deemed or construed to be a waiver of such term or condition for the future, or of any subsequent breach thereof, or any other term or condition of the Agreement. No delay

5 or failure of either party to exercise any right under this Agreement shall constitute a waiver of that or any other right, unless otherwise expressly provided herein. 20. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be valid under applicable law, but if any such provision is invalid or prohibited under said applicable law, such provision shall be ineffective to the extent of such validity or prohibition without invalidating the remainder of such provision or the remaining provision of the affected document. Each party has participated fully in the negotiation and preparation of this Agreement with full benefit or availability of counsel. Accordingly, this Agreement shall not be more strictly construed against either party. 21. This Agreement supercedes all prior written and oral understandings, promises, and agreements between the parties hereto with respect to the Originator's employment with Berkshire Lending. This Agreement constitutes the entire agreement between the parties hereto with respect to the Originator s employment with Berkshire Lending, and may be amended, waived, modified or superseded only by a written agreement signed by both parties hereto and is binding on the parties hereto and their respective successors, assigns, and personal representatives. Berkshire Lending, LP By: Title: Branch Manager Originator By: Title: Originator Berkshire Lending, LP By: Name: Brett Sampson Title: Managing Member

6 EXHIBIT A ORIGINATOR AGREEMENT Please check applicable box(es) and amount % OF BROKER S BPS ALL LOANS FUNDED BY ORIGINATOR BPS TIERED ON NUMBER OF LOANS FUNDED MONTHLY BY ORIGINATOR BPS LOAN 1 BPS LOAN 2 BPS LOAN 3 BPS LOAN 4 BPS LOAN 5 + $ HOURLY WAGE $ ANNUAL SALARY BONUS METHOD AND FORUMLA TO CALCULATE BONUS: Berkshire Lending, LLC Originator By: Title: Branch Manager By: Title: Originator Berkshire Lending, LP By: Name: Brett Sampson Title: Managing Member