Domain Name Assignment Agreement This Domain Name Assignment Agreement is made this 1st day of January, 1999 ("the Agreement"), by and between First Mortgage Network, Inc., a Florida Corporation, located at 8751 Broward Boulevard, Plantation, Florida 33324, hereinafter ("PURCHASER"), and Credit.Com. LLC. a California limited liability company, located at 87 Stillman Street, San Francisco, California 94107, hereinafter ("SELLER"). RECITALS SELLER hereby agrees to sell, transfer and assign, and PURCHASER hereby agrees to purchase the domain name www.mortgage.com (the "Domain Name") subject to the terms and conditions of this Agreement. AGREEMENT The parties agree as follows: 1. Domain, Name Assignment Agreement. 1.a Assignment of Domain Name. For good and valuable consideration, payable at Closing as more particularly described herein SELLER hereby agrees to transfer and assign to PURCHASER at the Closing all of SELLER'S right, title and interest in and to the Domain Name "www.mortgage.com" and the registration thereof, together with the goodwill of the business connected with and symbolized by such Domain Name, including the trademark and the service mark "mortgage.com" and any intellectual property rights relating thereto, to the extent any such trademark, service mark, or intellectual property rights exist. The transfer and the assignment shall take effect at the Closing as set forth herein upon PURCHASER'S making the payments provided for in Sections 4a and 4b. 1.b Cooperation in Transferring Domain Name. SELLER agrees to cooperate with PURCHASER and to follow PURCHASER'S reasonable instructions in order to effectuate the transfer of the Domain Name registration in a timely manner. Specifically, at the Closing SELLER agrees to prepare and transmit the necessary InterNic Registrant Name Change Agreement (RNCA) and or to correspond with InterNic to authorize transfer of the Domain Name, effective as of the Closing Date as hereinafter defined. 1.c Warranty. SELLER warrants and represents that it has unencumbered rights in the Domain Name, that SELLER property registered the Domain Name with InterNic without committing fraud or misrepresentation, that SELLER has the authority to transfer the Domain Name, and, that to the best of SELLER'S knowledge, the Domain Name does not infringe the rights of any third party. 1.d Other Foreign Language Versions. The parties hereto agree that if either party acquires rights to other URL's which are foreign language versions of mortgage.com, that the acquiring party shall be required to link such URLs directly to mortgage.com for as long as this Agreement is in effect. 2. Obligations of SELLER. SELLER agrees to provide PURCHASER the following during the term of this Agreement: 2.a SELLER shall provide PURCHASER with a text URL link at a Premium Location (as defined below), on SELLER'S home page, www.credit.com, for and to the web site www.mortgage.com. (Premium location is defined herein as "above the screen cutoff line - i.e., the viewable page area without scrolling on a typical computer screen"). Directly underneath such link, SELLER shall provide a web site description of mortgage.com the content of which shall be provided by SELLER. 2.b SELLER shall provide PURCHASER with promotional space (445x56 pixels in size) which will include a banner advertisement for www.mortgage.com within the Mortgage Directory of the 4credit.com web site located within the Credit.ComNetwork, (the "Network") and hyper text markup language (HTML) which will allow visitors to hyperlink to PURCHASER'S homepage www.mortgage.com. 2.c SELLER shall conduct via its Network member sign in interface, for a period of two years, two customer surveys for each such year. Each survey shall consist of no more, than 10 questions. The content of each survey shall be subject to the SELLER'S reasonable approval. 2.d SELLER shall promote via an email campaign, PURCHASER'S upsell offers to SELLER'S member database twice per year for a term of two years. The content of each such email campaign and the PURCHASER'S upsell offers shall be subject to the SELLER'S reasonable approval. 2.e As may be mutually agreed between the parties, SELLER may (i) offer and PURCHASER may accept any vacant or remnant banner advertisement space or special links throughout the Network free of charge to PURCHASER, (ii) provide imbedded links to www.mortgage.com in contexts wherever the subject matter references mortgage companies and mortgage lending on the Network. This linking strategy shall be performed on a goodwill basis and shall be discussed as an ongoing strategic component between both parties. 3. Obligations of PURCHASER. PURCHASER shall provide SELLER the following during the term of this Agreement: 3.a PURCHASER shall provide SELLER with non-hyperlink promotional space (110x110 pixels in size), located in a Premium Location as described and defined in Paragraph 2a above on the mortgage.com homepage designating mortgage.com as a member of the Credit.Com Network. 3.b PURCHASER shall host and provide support for the SELLER'S Network members Common Gateway Interfaces "CGI's" and "cookies". 3.c PURCHASER shall provide SELLER with promotional space (480x60 pixels in size) which shall include a banner advertisement and the hyper text markup language (HTML) provided by SELLER which shall include the HTML code A HREF="http://www.credit.com/cgi-bin/redir/site=FMN /?http://www.credit.com/"> IMG SRC="http://www.credit.com/ads/images /frm_banner.gif"> /A and which will allow visitors to hyperlink to SELLER'S home page, www.credit.com, in a Premium Location as described and defined in Paragraph 2a above, on the final page displayed to visitors who have completed the mortgage loan application process on www.mortgage.com. 3.d PURCHASER agrees to replace, and PURCHASER agrees to cause its affiliates (as defined in Rule 144 promulgated under the Securities Act of 1933, as amended) ("Affiliates"), to replace PURCHASER'S www.loanshop.com web site with www.mortgage.com at all web sites currently using the loanshop brand, or to point those URLs directly (no redirects) at mortgage.com. This provision shall include all multi lender sites owned, operated and/or branded by PURCHASER or any of its Affiliate entities. 2 3.e PURCHASER shall be responsible for the cost and execution of all marketing and sales activities to promote. the mortgage.com brand. PURCHASER shall have complete responsibility for, and control over, the development of the mortgage.com site. PURCHASER shall work with a person designated by SELLER (initially, Todd Meagher) on the implementation of cookies and CGI's. 3.f PURCHASER on behalf of itself and its Affiliates agrees that it shall make www.mortgage.com its exclusive online owned, operated and/or branded web site covering all areas of direct to consumer mortgage lending, thereby replacing www.loanshop.com which is currently PURCHASER'S web site for that purpose, and customlending.com which was to be PURCHASER'S subprime internet mortgage lending web site. 3.g PURCHASER shall have the sole right to use an alternative domain name other than mortgage.com or add other PURCHASER owned and branded web sites to mortgage.com, subject to the provisions of this Agreement, including without limitation, the provisions of paragraphs 4.c. and 4.d. herein. 3.h It is acknowledged and agreed by the parties hereto that (i) SELLER shall not be entitled to any payments under this Agreement as a result of fees earned by PURCHASER from loan services performed by PURCHASER so long as such loans are originated by third parties that are not PURCHASER, Affiliates of PURCHASER or their respective Affiliates; and (ii) SELLER is not entitled to any fees generated from third party web sites created by PURCHASER if those third party web sites are owned by persons or entities that are not PURCHASER, Affiliates of PURCHASER, or their respective Affiliates, including without limitation, (a) web sites that are owned by third party clients (that are not Affiliates of PURCHASER or PURCHASER'S Affiliates) which are operated on an outsource or vanity label basis by PURCHASER, (b) any back office outsourcing contracts, such as for Quickenmortgage lenders for whom PURCHASER is the outsource provider and where the site is owned by the third party client (that is not an Affiliate of PURCHASER or PURCHASER'S Affiliates) and operated in the name of the third party client, and (c) PURCHASER'S web site www.onlinecap.com (so long as this PURCHASER broker referral service is a lead generation service that requires face to face loan officer assistance) and any third party business acquired in the future by PURCHASER that does not have representation on or links from mortgage.com. 3.i PURCHASER covenants and agrees that during the term of this Agreement PURCHASER shall cause the re-registration of the Domain Name with InterNic: (or any successor organization) for the mutual benefit of the parties hereto and the PURCHASER shall file all necessary renewals for the Domain Name. If PURCHASER fails to file any required application, registration, renewal or amendment necessary to preserve the registration of the Domain Name with InterNic (or any successor organization), or if at anytime PURCHASER shall fail to perform its obligations set forth in the immediately preceding sentence then PURCHASER shall promptly pay within three (3) business days of such breach to SELLER the Default Amount as defined below in immediately available funds. For purposes of this Agreement, the term "Default Amount" means the dollar amount equal to the difference between (x) one million eight hundred thousand dollars ($1,800,000) and (y) the aggregate amount of payments made to SELLER pursuant to Paragraphs 4c and 4d above plus the Present Value of the Receivables converted under Section 4.e. 3 4. Purchase Price. PURCHASER agrees to pay SELLER as follows: 4.a At Closing, PURCHASER shall issue Twenty Thousand (20,000) shares (collectively, the "Shares") of its Common Stock, $0.01 par value per share (the "Common Stock"), to SELLER, representing approximately 0.28% of the issued and outstanding capital stock of PURCHASER as consideration hereunder. Subject to the rights of first refusal granted to signatories of the Series B Preferred Stock Purchase Agreement dated March 29, 1996, as amended, among PURCHASER and such signatories, SELLER shall have preemptive rights (as governed by the principles set forth in Section 607.0630(2). Florida Statutes) prior to an initial public offering. In connection with the issuance of the Shares of Common Stock, SELLER represents, and warrants that (i) it is an "accredited investor" (within the meaning of Regulation D of the Securities Act of 1933, as amended (the "Act"); (ii) it is aware that such Common Stock will be "restricted securities" subject to transfer restriction, and will not be registered under the Securities Act of 1933, as amended; (iii) such Common Stock is being acquired solely for SELLER'S own account for investment and is not being purchased for resale, fractionalization or distribution; and (iv) it has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge such Common Stock, or any part thereof and it has no present plan to enter into any such contract, undertaking, agreement or arrangement. SELLER agrees not to dispose of the Shares of Common Stock or any interest therein, unless and until such Common Stock has been validly registered under the Act and all applicable state securities laws or transfers are permitted under Rule 144 of the Securities Act of 1933, as amended, or PURCHASER has been furnished an opinion of counsel reasonably safisfactory to PURCHASER that the intended disposition does not violate the Act or the rules and regulations of the Securities and Exchange Commission thereunder, nor any applicable state securities laws. PURCHASER shall provide SELLER with registration rights to the extent set forth in the Registraton Rights Agreement attached hereto as Exhibit A. 4.b At Closing, Two Hundred Thousand Dollars ($200,000.00) via wire transfer in immediately available funds to an account designated by SELLER. 4.c Commencing on the Closing Date, PURCHASER shall pay SELLER Fifty Dollars ($50.00) per loan funded through www.mortgage.com, or any other PURCHASER owned, operated or branded consumer direct web sites originating residential mortgage loans of any kind (excluding web sites excluded from this Agreement), and excluding any loans pursuant to which the SELLER is entitled to receive a fee pursuant to paragraph 5 below, up to a cap of Three Hundred Thousand Dollars ($300,000.00) (the "Funded Cap"). Payment under this Paragraph 4c shall be paid to SELLER on a monthly basis in arrears and are due on the fifteenth (15th) day of each calendar month. 4.d Once the Funded Cap has been reached, PURCHASER shall pay SELLER Fifty-Dollars ($50.00) per each loan funded through the www.mortgage.com web site or any other PURCHASER owned, operated or branded consumer direct web sites dealing with residential mortgage loans of any kind (excluding web sites excluded from this Agreement) in excess of six thousand (6,000) loans per year (or prorata portion thereof) and excluding any loans pursuant to which the SELLER is entitled to receive a fee pursuant to paragraph 5 below, up to a cumulative cap of One Million Five Hundred Thousand Dollars ($1,500,000.00) (the "Additional Cap"). Payment under this Paragraph 4d shall be paid to SELLER on a monthly basis in arrears and are due on the fifteenth (15th) day of each calendar month after the 6,000 loan level is reached as set forth above. 4 4.e Upon the first fully underwritten, firm commitment public offering pursuant to an effective registration statement (other than any registration statement on any form not permitting registration of securities offered by selling security holders) under the Act, covering the offer and sale by PURCHASER of Common Stock (an "IPO"), SELLER shall have the right to convert receivables that may be earned pursuant to Paragraphs 4c and 4d (the "Receivables"), into Common Stock of PURCHASER. The Receivables shall be appraised by an independent appraiser (the "Independent Appraiser") who assesses the present value or the stream of Receivables expected to be received by SELLER under the terms of this Agreement after the conversion, taking into account such factors as the Independent Appraiser deems necessary (the "Present Value of the Receivables"). SELLER shall have the right to convert any percentage of the Present Value of the receivables from zero to one hundred percent (0% to 100%), at SELLER'S option. PURCHASER shall give SELLER notice of the IPO by registered mail, mailed not less than 60 days prior to the date the registration statement is expected to be filed with the Securities and Exchange Commission, at the address set forth in Section 13g. In order to convert the Receivables into Common Stock, SELLER shall provide to the Company written notice that SELLER elects to convert that percentage of the Receivables as is identified in such notice. Such notice will also state the name(s) and address(es) in which SELLER wishes the certificate(s) of Common Stock issuable upon conversion and will designate an Independent Appraiser to perform the appraisal contemplated in this Section 4.e. The Independent Appraiser selected by SELLER shall be instructed to complete the required appraisal of the receivables within thirty (30) days of his appointment. PURCHASER and SELLER shall, promptly and without delay, supply all information necessary to allow the Independent Appraiser to perform the appraisal. The Present Value of the receivables, as determined by the Independent Appraiser, shall be final and binding upon PURCHASER and SELLER, absent manifest error. Conversion will be deemed to have been effected as of the opening of business on the day on which the closing with respect to the IPO is held, and such date is referred to herein as the "IPO Conversion Date." On the IPO Conversion Date, SELLER shall be entitled to receive that number of shares of Common Stock as is equal to (a) the Present Value of the Receivables multiplied by the percentage of the Receivables being converted, divided by (b) the price per share at which the Common Stock is being offered to the public in the IPO. PURCHASER shall issue and deliver to SELLER a certificate or certificates for the number of full shares of Common Stock to which SELLER is entitled pursuant to this subsection. The person in whose name the certificate or certificates for Common Stock are to be issued shall be deemed to have become a holder of record of the Common Stock on the IPO Conversion Date. No fractional shares shall be issued upon conversion of the receivables into Common Stock and the number of shares of Common Stock shall be rounded to the nearest whole share. Notwithstanding anything in this Agreement to the contrary, if SELLER converts any portion of its receivables on the IPO Conversion Date, it shall not have the right to convert any receivables at any time after the IPO Conversion Date. In the event, SELLER converts 100% of the Receivables into Common Stock, then the Security Interest (as defined below) granted in the Domain Name pursuant to the Security Agreement (as defined below) shall terminate. In the event SELLER converts less than 100% of the Receivables into Common Stock, then PURCHASER shall have a one-time option to pay to SELLER, in cash, the difference between the Present Value of the Receivables converted (i.e., the 5 Present Value of the Receivables multiplied by the percentage of Receivables being converted) and the Present Value of the Receivables. If the PURCHASER elects to make such a payment, then upon payment PURCHASER'S payment obligations under Paragraphs 4c and 4.d. shall be satisfied in full. In the event PURCHASER does not so elect, and if the Funded Cap has not been reached on or prior to the IPO Conversion Date, then the Present Value of the Receivables converted (i.e., the Present Value of the Receivables multiplied by the percentage of Receivables being converted) shall be applied first to reduce the Funded Cap (after reducing the Funded Cap by amounts previously paid by PURCHASER under Section 4.c. prior to the IPO Conversion Date), and then shall be applied to reduce the Additional Cap. In the event PURCHASER does not so elect and the Funded Cap has been reached on or, prior to the IPO Conversion Date, then the Present Value of the Receivables converted (i.e., the Present Value of the Receivables multiplied by the percentage of Receivables being converted), shall be applied to reduce the Additional Cap. 4.f Any Common Stock received by the SELLER pursuant to this Agreement, whether at the Closing or subsequent to the Closing shall be included in the Registration Rights Agreement attached hereto as Exhibit A (the "Registration Rights Agreement"). 4-g PURCHASER hereby grants to SELLER a first priority, and assuming proper filing by SELLER of a UCC-1 financing statement with the Secretary of State of Florida, a fully perfected, security interest in the Domain Name to secure payment of all amounts due to the SELLER pursuant to Sections 4.a, 4.b, 4.c, 4.d and 4e above (the "Security Interest") in accordance with the Security Agreement attached hereto as Exhibit A (the "Security Agreement"). PURCHASER shall reasonably cooperate with SELLER in preparing and executing necessary documentation, including financing statements, to evidence and perfect SELLER's Security Interest On full payment of all amounts due to the SELLER pursuant to Sections 4.a, 4.b, 4.c, 4.d and 4e above under the terms of this Agreement the Security Interest shall expire and the SELLER'S Security Interest shall terminate. Following termination of the Security Interest SELLER shall have no further interest in or right to the Domain Name. In the event that PURCHASER breaches any of its obligations contained in this Agreement, the Registration Rights Agreement, or the Security Agreement, then SELLER shall deliver a written notice to PURCHASER setting forth in reasonable detail the nature of PURCHASER'S breach. Upon receipt of such notice, PURCHASER shall have sixty (60) days to cure its breach. If PURCHASER shall fail to cure its breach within such sixty (60) days period, then, without any further action by any party hereto PURCHASER shall return to SELLER the Domain Name (and in connecton therewith, PURCHASER shall execute and deliver to SELLER any and all documentation reasonably requested by SELLER to effectuate such return of the Domain Name to SELLER including, without limitation, a Registrant Name Change Agreement (RNCA)) free and clear of any and all security interests, liens or other encumbrances or restrictions of any nature (other than the Security Interest provided for in this Section 4.g), (collectively, an "Encumbrance,") within three (3) business days; and (ii) SELLER shall have the right, but not the obligation, to terminate the executory portions of this Agreement by delivering an additional written notice to PURCHASER at any time up until the sixtieth (60th) day after PURCHASER shall have returned the Domain Name. Notwithstanding any provision contained herein to the contrary. If PURCHASER fails to return the Domain Name free and clear of any and all Encumbrances, within the time period specified in (i) above, and SELLER has to take legal action to enforce the provisions of this Section 4.g, then PURCHASER'S payment obligations shall be satisfied hereunder by returning the Domain Name to SELLER, paying SELLER $100,000 as liquidated damages, and paying the reasonable legal fees and expenses of SELLER in connection with such legal action. If PURCHASER complies with this Section 4.g., SELLER shall have no right to claim 6 any deficiency with respect to amounts owed under this Section 4. Upon satisfaction of PURCHASER'S payment obligations under this Section 4, the Security Interest granted pursuant to the Security Agreement shall terminate. 4.h. Any amounts required to be paid by PURCHASER to SELLER pursuant to this Agreement shall bear interest from its due date at the rate of 18% per annum for each day that such payment is not made. 5. Marketing Agreement The marketing, promoting and advertising of www.mortgage.com by SELLER via its Network is valued at Two Million Five Hundred Thousand Dollars ($2,500,000.00) per year. PURCHASER shall pay SELLER on a monthly basis under the fee schedule set forth below for all loans resulting from the marketing, promoting and advertising of www.mortgage.com by SELLER via its Network, or any other SELLER controlled site, to www.mortgage.com or any other PURCHASER owned site. Such fees shall not exceed Two Million Five Hundred Thousand Dollars ($2,500,000.00) during any 12 month period commencing on the date of closing of this Agreement, and the amounts payable pursuant to this Section 5 shall expire ten years from the date hereof. 5.a Two Hundred Seventy Five Dollars ($275.00) per funded first lien loan which does not conform to both Freddie Mac and Fannie Mae credit underwriting guidelines which includes sub prime; and, 5.b Two Hundred Dollars ($200.00) per funded first lien loan which meets both Freddie Mac and Fannie Mae underwriting guidelines; and, 5.c Fifty Dollars ($50.00) per funded second lien Home Equity or Line of Credit loan. 6. Accounting. PURCHASER shall keep reasonable, detailed and accurate records in connection with its respective performance under this Agreement (including without limitation, records in relation to submitted applications, Server Logs and revenue calculation), and shall permit SELLER and SELLER'S representatives access to such records upon reasonable notice. When PURCHASER shall remit its monthly payments to SELLER, pursuant to Sections 4.c, 4.d or Section 5 PURCHASER shall provide a schedule detailing the following information for the subject month; 6.a. unique file identifier code or reference number for each application; 6.b. the date of each application; 6.c. the total number of submitted applications; 6.d. the method of the application submission (i.e., online, mail fax, telephone, etc.); 6.e. the total number of funded loans and dates of closing; and, 6.f. each loan will be coded only in one of two ways, either as sourced from credit.com, or Other. SELLER or its independent outside accountants, attorneys, or other representatives shall have the right, at its expense, upon not less than five (5) business days' written notice and during PURCHASER'S normal business hours, disrupting as little as possible PURCHASER'S business operations, to inspect and audit the books and records of PURCHASER relating to this Agreement, for the purpose of verifying any reports, information or payments due to SELLER under this Agreement. If such audit shows that any of PURCHASER'S reports understated the actual amounts due to SELLER by more than five percent (5%), then PURCHASER shall immediately pay SELLER the amount determined to be due and all (iv) Security Interest - The Security Interest constitutes a first priority, and assuming proper filing by SELLER of a UCC-1 financing statement with the Secretary of State of Florida. a perfected, Security Interest in favor of SELLER as further provided in the Security Agreement. 9. Closing. 9.a. Conditions to PURCHASER'S Obligation to Close. The PURCHASER'S obligations to consummate the transactions contemplated by this Agreement at the Closing are subject to completion of the following: 9.a.1. Transfer of Domain Name. SELLER shall have delivered to PURCHASER all documents necessary to cause the Domain Name and the registration thereof, together with the goodwill of the business connected with and symbolized by such Domain Name, including the trademark and the service mark "mortgage.com" and any intellectual property rights relating thereto (to the extent any such trademark, service mark, or intellectual property rights exist) to be transferred from SELLER to PURCHASER. Such documents shall contain no omissions and shall be fully executed by authorized officers of SELLER, such that the only remaining step to be taken by PURCHASER to accomplish the transfer of the Domain Name and the registration therefor from SELLER to PURCHASER is the PURCHASER'S filing of such documents with the appropriate third parties. 9.a.2. Representations, Warranties and Covenants. The obligations of SELLER required to be performed by SELLER hereunder at or prior to the date of Closing shall have been performed and complied with in all material respects, and the representations and warranties of SELLER set forth in this Agreement shall be true and correct in all respects as of the date of Closing as though made on and as of the date of Closing. 9.a.3. Consent to Registration Rights Agreement PURCHASER shall have received from existing registration rights holders all necessary consents to the Registration Rights Agreement. 9.b Conditions to SELLER'S Obligation to Close. The SELLER'S obligations to consummate the transactions contemplated by this Agreement at the Closing are subject to completion of the following: 9.b.1. Execution and Delivery of Security Agreement and Registration Rights Agreement PURCHASER shall have executed and delivered to SELLER the Security Agreement and the UCC-1 financing statements referenced therein and shall have granted to SELLER a first priority, and assuming proper filing by SELLER of a UCC-1 financing statements with the Secretary of State of Florida, a fully perfected, Security Interest in the Domain Name; and the SELLER shall have executed and delivered to SELLER the Registration Rights Agreement. 9.b.2 Payment of Purchase Price and Delivery of Shares. The SELLER shall have received the two hundred thousand dollar payment from PURCHASER referenced in Section 4b and SELLER shall have received the 20,000 Shares of Common Stock of PURCHASER referenced in Section 4a. 9 9.b.3. Representations, Warranties and Covenants. The obligations of PURCHASER required to be performed by PURCHASER hereunder at or prior to the date of Closing shall have been performed and complied with in all material respects, and the representations and warranties of PURCHASER set forth in this Agreement shall be true and correct in all respects as of the date of Closing as though made on and as of the date of Closing. 9.b.4. Consent to Registration Rights Agreement. PURCHASER shall have received from existing registration rights holders all necessary consents to the Registration Rights Agreement. 9.c. Place and Date of Closing. After satisfactory completion of the enumerated conditions above, the Closing shall take place at the California offices of the SELLER no earlier than January 4, 1999 nor later than 5:00 p.m. Eastern time on January 15, 1999. In the event the Closing does not take place by 5:00 p.m. Eastern time on January 15, 1999, then this Agreement shall terminate and the rights and obligations of the parties to this Agreement shall be of no further force and effect provided that no party hereunder shall be relieved of any breach of this Agreement occurring prior to such termination date. At Closing, each party shall deliver to the other such payments, documents, certificates, consents, approvals and waivers that shall be reasonably necessary to consummate the obligations of the parties hereunder. 10. Expenses. Except as specified in the last paragraph of Article 6 and Section 16, each party to this Agreement shall bear all of his or its expenses incurred in the performance hereof, regardless of whether the transactions contemplated herein are consummated. 11. Cooperation. The parties agree that after Closing they shall provide reasonable cooperation with respect to the matters that are subject to this Agreement. 12. Confidentiality and Public Relations. 12.a. Each party will not without the consent of the other, disclose the provisions contained herein to any third parties (other than as may be required by law, in connection with legal or administrative proceedings, or to attorneys, accountants, and consultants they may have retained to represent them in connection herewith), and this provision shall survive the Closing. There will be no public announcement of this Agreement except as provided below. 12.b In the initial press release announcing the acquisition of the mortgage.com URL, PURCHASER shall identify the SELLER as Credit.Com, L.L.C. and the www.mortgage.com website as a Credit.Com Network affiliate site. Subsequent public relations and advertising related to mortgage.com shall be strictly under the control and approval of PURCHASER, as to timing and content, including any announcements related to this transaction, which is otherwise to be strictly confidential. 13. Miscellaneous. 13.a Choice of Law. This Agreement shall be construed in accordance with the laws of the State of Florida. 13.b Venue. The parties agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in the federal (if permitted by law and a 10 party elects to file an action in federal court) courts located in the County of Broward. This choice of venue is intended by the parties to be mandatory and not permissive in nature, and to preclude the possibility of litigation between the parties with respect to, or arising out of, this Agreement in any jurisdiction other than that specified in this Section. Each party waives any right it may have to assert the doctrine of forum non-conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this Secton. 13.c Indemnity. Each party hereto will indemnify, defend and hold harmless the other party hereto from and against losses incurred through claims of third persons or arising from breach by any party hereto of such party's representafions, warranties or covenants, contained in this Agreement. 13.d Agreement Drafted By All Parties. This Agreement is the result of arm's length negotiations between the parties and shall be construed to have been drafted by all parties such that any ambiguities in this Agreement shall not be construed against either party. 13.e Section Headings. The section headings contained herein are for convenience in reference and are not intended to define or limit the scope of any provision of this Agreement. 13.f Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and will become effective and binding upon the parties as of the execution date at such time as all the signatories hereto have signed a counterpart of this Agreement. 13.g Notices. 13.g.1 Any notices required or permitted to be given hereunder by either party to the other shall be given in writing: (1) by personal delivery; (2) by electronic facsimile with confirmation sent by United States first class registered or certified mail, postage prepaid return receipt requested; (3) by bonded courier or by a nationally recognized overnight delivery company; or (4) by United States first class registered or certified mail, postage prepaid, return receipt requested, in each case, addressed to the parties as follows (or to such other addresses as the parties may request in writing by notice given pursuant to this section): TO: PURCHASER Seth Werner, Chairman & CEO First Mortgage Network Inc. 8751 Broward Boulevard - Fifth Floor Plantation, FL 33324 And TO: SELLER Adam Levin, Chairman & CEO Credit.Com, L.L.C. 87 Stillman Street San Francisco, CA 94107 13.g.2 Notices shall be deemed received on the earliest of personal delivery, upon delivery by electronic facsimile with confirmation from the transmitting machine that the transmission was completed, twenty-four (24) hours following deposit with a bonded 11 courier or overnight delivery company; or seventy-two (72) hours following deposit in the U.S. Mail as required herein. 14. Entire Agreement. This Agreement contains the entire agreement between the parties with respect to the subject matter of this Agreement, and it supersedes all other prior and contemporary agreements, understandings, and commitments between the parties with respect to the subject matter of this Agreement 15. Successors and Assigns. This Agreement is binding on and shall inure to the benefit of the respective successors and/or assigns of the parties. 16. Attorney's Fees. In the event either party files suit to enforce any of the terms hereof, the prevailing party shall be entitled to an award of all reasonable attorney's fees and court costs. 17. Signatures. IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement on the dates written below: First Mortgage Network, Inc. /s/ John J. Hogan 12/24/98 --------------------------------------------------- ---------- John J. Hogan, Executive Vice President Date Credit.Com, L.L.C. /s/ Todd Meagher 1-6-99 --------------------------------------------------- ---------- Todd Meagher, President and Chief Operating Officer Date 12 TYPE: EX-10.31 SEQUENCE: 39 DESCRIPTION: SUBPRIME AGREEMENT DATED MAY 26, 1999 BETWEEN THE ISSUER AND INTUIT LENDER SERVICES, INC. INTUIT LENDER SERVICES, INC. SUBPRIME AGREEMENT FOR DISTRIBUTION, MARKETING, FACILITIES, AND SERVICES This SUBPRIME AGREEMENT FOR DISTRIBUTION, MARKETING, FACILITIES, AND SERVICES (the "Agreement") is entered into as of May 26, 1999, between INTUIT LENDER SERVICES, INC., a Delaware corporation with its principal place of business at 2535 Garcia Avenue, Mountain View, CA 94043 ("ILSI"), and MORTGAGE.COM, INC. (FORMERLY FIRST MORTGAGE NETWORK, INC.), a Florida corporation with its principal place of business at 8751 Broward Blvd, Plantation, FL, 33324 ("MC"). WITNESSETH: ----------- WHEREAS, ILSI owns and operates the QuickenMortgage(R) website located at (the "Website"), through which consumers can shop for mortgage loans, prequalify and apply for such mortgage loans with various lenders online (the "Participating Lenders"); WHEREAS, ILSI would like to begin offering subprime mortgage loans to its customers through the Website, and MC has agreed to provide loan underwriting, origination support and funding services for the Subprime Loans originated by ILSI (as defined in Section 9.11 hereof) for sale in the secondary market to Participating Lenders and other lenders; NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the parties hereto agree as follows: ARTICLE I ILSI SERVICES AND FACILITIES ILSI shall perform the following services and provide the following facilities in connection with Subprime Loans: 1.1 Inquiry. Through a simple question-and-answer format, ILSI shall collect information consisting of the name, address, income, assets and liabilities of potential borrowers. Alternatively, potential borrowers may supply a subset of the above information to ILSI by telephone or through e-mail. (The information obtained at this stage is called an "Inquiry" or, if more than one, "Inquiries"). 1.2 Prequalifications. Using the information gathered during the Inquiry stage, as well as additional information that may be gathered on the Website, and using its proprietary or licensed software, ILSI shall (i) analyze the prospective borrower's income and debt, (ii) educate the prospective borrower about the homebuying and financing process, (iii) advise the prospective borrower about different types of loans available through the Website, and (iv) prequalify or preapprove the prospective borrower for the loan or loans chosen by him or her ("Prequalification" or, if more than one, "Prequalifications"). Other services shall be provided as part of Prequalification; these services may be accessed by the prospective borrower at his or her option, and include linkages to the Participating Lenders' home pages and websites and linkages to other websites related to mortgage financing. 1 1.3 Application. Following Inquiry and/or Prequalification, ILSI shall (i) assist the prospective borrower in understanding and clearing any credit problems; (ii) assist the prospective borrower in completing an abbreviated loan application form; (iii) provide the initial good faith estimate of closing costs ("GFE") and other required federal and state disclosures; (iv) provide a contact point during the loan application process for the prospective borrower to check the progress of the loan application; (v) identify for prospective borrowers the necessary financial documentation to be assembled in support of the application; (vi) collect credit card information to facilitate the ordering of property appraisals and consumer credit reports (if deemed appropriate); (vii) provide facilities and software to enable ILSI and MC to obtain credit reports online (collectively "Application"). ILSI shall transmit the loan application information gathered during the Inquiry through Application stages to MC for further processing as described in Article II below. 1.4 Software Support. ILSI shall provide various facilities including software engineering and operations resources to assist the parties in performing the services described in this Agreement, including, without limitation, (i) building an interface between MC and the Website; (ii) building an interface between the MC CLOser(R) system, which is described in Section 2.5(a) (the "MC CLOser(R)"), and the Website database; (iii) providing a means for MC to access loan products and pricing on the Website or through a similar web-based application created by ILSI; (iv) building and maintaining communication tools to enable loan processors to communicate efficiently with loan applicants; and (v) developing, maintaining and continuing to enhance other software productivity tools as needed for the optimal operation of the loan origination, borrower counseling, loan processing and loan underwriting efforts of ILSI and MC. 1.5 Customer Support. ILSI shall provide customer support through the Website and call centers for prospective borrowers who have questions about the site and other general questions that are not specific to any loan. ILSI will provide, through the Website and/or other means, in its discretion, customer disclosures concerning the participation of MC in Subprime Loan transactions as it deems necessary and desirable to fully comply with all legal obligations applicable to the Website and the parties, including affiliated business arrangement disclosures under RESPA, and disclosures concerning the source of funding of Subprime Loans. 1.6 Employee and Software Sharing. ILSI and MC shall share employees and software tools as appropriate for processing loan applications, including, without limitation, employees and tools to order and analyze flood certifications, inspections, engineering reports, property appraisals and credit reports. 1.7 Subprime Marketing. ILSI shall use commercially reasonable efforts to specifically advertise and market the Subprime Loans, using such methods and distribution channels as it deems advisable, to increase the number of customers using the 2 Website to find Subprime Loans. To the extent feasible, as provided in Section 5.2 of this Agreement, no other Subprime services shall be advertised on the Website or on Quicken.com or other "Quicken" websites that are owned and operated by Intuit, Inc. without the consent of MC. Such consent shall not be unreasonably withheld. ILSI shall not offer first lien Subprime Loans in principal amounts less than $40,000. 1.8 Customer Information. ILSI shall develop and market articles and calculators specifically designed for Subprime Loan customers. ILSI shall regularly update and refine the information it provides to customers of Subprime Loans. 1.9 Debt Counseling. ILSI shall offer online debt counseling services to assist all ILSI customers and particularly customers of Subprime Loans. 1.10 Debt Consolidation. ILSI shall upgrade its online and call center customer support services to include providing advice to customers on debt consolidation, calculators to compare payments and recommendations on Subprime Loan programs. ARTICLE II MC'S SERVICES AND FACILITIES In connection with Subprime Loans that are transmitted to MC, MC shall perform the following services and provide the following facilities: 2.1 Status Updates. Subprime Loans may be transmitted to MC for further processing at any stage of the application process. Thus, either or both MC and ILSI may conduct specific processing tasks for Subprime Loans prior to closing and funding; however, the parties agree to work together to ensure that the services provided are not duplicative. Once a Subprime Loan has been transmitted to MC, MC shall update the processing system and the Website database with the status of the loan processing as agreed between ILSI and MC but at a minimum wherever indicated below. Furthermore, MC shall notify the borrower of all status changes as they occur and update the Website with such status changes and transmit electronic messages to borrowers. 2.2 Origination. The parties acknowledge and agree that an essential element of successful loan origination, particularly online loan origination via the Website, involves making timely contact with prospective borrowers. To that end, earlier and faster initial and subsequent communications between the loan originator and the prospective borrower are more likely to result in completed applications and eventual closed loans. The parties therefore agree that time is of the essence in all processing tasks involving communications with prospective borrowers, and that prompt communications are an essential element of the origination task for which MC is engaged. MC shall maintain its status as an approved loan correspondent of the Participating Lenders, and shall demonstrate and confirm that status to ILSI upon request. MC shall perform the following origination services with respect to Subprime Loan applications or Inquiries that are transmitted to MC by ILSI: 3 (a) Response to Prospective Borrowers. Respond to Submissions by prospective borrowers and finalize loan applications as appropriate for each Stage described in (i) to (iii) below: (i) Inquiry Stage. Respond to Inquiries submitted through the Website or ILSI call centers. If prequalification was not requested through the Website, analyze Inquiry data, send out prequalification notices and encourage borrower to submit an application; (ii) Prequalification Stage. Send out prequalification notices to prospective borrowers; provide those prospective borrowers who prequalified for a particular loan or loans through the Website with personalized on-line prequalification letters; follow up with prospective borrowers; and encourage them to submit an application for the selected Subprime Loan. Where the borrower has selected a Subprime Loan that is not appropriate for the borrower, assist the borrower in choosing a different Subprime Loan; (iii) Application Stage. Confirm to the prospective borrowers the receipt of the Application and assist him or her in finalizing the application as needed. (b) Re-Qualify, Verify, Amend or Modify Information. At the request of a prospective borrower, re-qualify the prospective borrower for the same or another loan, based on change of circumstances, change of preferences, or for other reasons, and answer questions concerning information submitted on Prequalification or Application screens. (c) Credit Report Ordering/Review. Check credit history of borrower as appropriate, including review of any credit scoring data. (d) Commitments. Prepare and send out commitment letters in the name of the creditor, and/or collect commitment fees, application fees or deposits toward closing costs, as appropriate. (e) Loan Application Package Preparation. Prepare completed loan application packages and send them to borrowers via overnight courier, electronically, or other means. The loan application package shall include all data provided by borrowers, itemization of information outstanding, including, without limitation, Form 1003, GFE, disclosures, Truth-in-Lending statements and other disclosures required by law to be furnished by creditors, and instructions. (f) Borrower Support. Answer any borrower questions concerning the loan application package and the Subprime Loan. (g) Transfer to Processing. Ensure that transmission of Subprime Loans from ILSI to MC (and within teams at MC) is a smooth process from the perspective of the prospective borrower, with the required degree of communication between all parties. 4 2.3 Processing and Underwriting. MC shall process and arrange for underwriting for all Subprime Loan applications. (a) Processing. In connection with processing, MC shall provide the following services: (i) Appraisal. MC shall engage an appraisal firm and ensure that the property appraisal is performed in a timely manner. MC's call center representative shall update the processing system and the Website database with the status of the appraisal; (ii) Verifications. MC shall maintain frequent contact with the loan applicant to collect verifications of employment (VOE), income (VOI), assets, and debt, including mortgage debt (VOM). MC shall update the processing system, the Website database and the loan application data with the status of all verifications; (iii) Underwriting. MC or its designee shall underwrite the completed loan package and update the processing system and the Website database with the underwriting decision. MC shall call the applicant to inform him/her of the underwriting decision. MC shall send the loan applicant an adverse action letter under the Equal Credit Opportunity Act ("ECOA") if appropriate; (iv) Flood, Tax, Ancillary Services. MC shall order flood certifications, tax service and other ancillary services as needed. MC shall update the processing system and the Website database with the status of such services; (v) Title. MC shall assist borrowers to engage a reputable title firm and follow through to ensure that the title search is completed and insurance is issued. MC shall update the processing system and Website database with the status of title and insurance; (vi) Escrow. MC shall engage a reputable escrow firm and arrange for escrow services pending closing and sale of Subprime Loans as described below. MC shall update the processing system and Website database with the status of the escrow. (b) Pricing of Ancillary Services. MC shall obtain pricing for the ancillary services listed in Section 2.3(a) and any other third party services required, which pricing is at least as competitive, for a comparably priced loan, as the aggregate fees charged by the Index Group of lenders as defined in Appendix A to this Agreement, for similar services. MC further agrees that it will pass through to the borrowers third party fees that are customarily reimbursed by borrowers with no mark-up of any kind, nor will MC receive directly or indirectly any monetary or in-kind benefit from the providers of such ancillary services, except as described in Section 2.3(c) below. ILSI and MC will cooperate with each other to negotiate the lowest pricing for such ancillary services without jeopardizing the quality of service to the borrower or to the lenders who require such services. (c) Negotiating Loan Pricing. MC shall use its best efforts to negotiate the 5 lowest correspondent pricing available from Participating Lenders. ILSI shall cooperate with MC in this effort. In addition, in order to qualify for payments for shortfalls in Submissions, as described in Section 3.2, MC shall maintain pricing spreads and fees to borrowers that are typical within the Subprime industry. If the parties cannot reach agreement on what is considered typical pricing spreads or fees, they shall hire an independent third party to make the determination. Both parties agree that such determination shall be binding upon them. 2.4 Packaging, Funding and Closing. MC shall operate initially under this Agreement as a loan correspondent with warehouse lines of credit available for loan funding. In that capacity, MC shall provide the following services with respect to Subprime Loans: (a) Packaging. MC shall package, process, and underwrite Subprime Loans. (b) Funding. MC shall use its own funding sources to close and fund Subprime Loans in MC's name as original payee/mortgagee. For all Subprime Loans which will be funded and closed by MC, MC shall disclose to the borrower prior to the borrower's binding commitment for the loan (or at an earlier time, as required by law and in the mutual judgment of ILSI and MC) the name of the servicer to whom the loan will be transferred. (c) Closing. MC shall coordinate and perform or arrange for the closing of Subprime Loans, and where appropriate, the placement of loan funds in escrow pending closing and/or sale. (d) Selling. Subprime Loans closed and funded in MC's name shall be sold by MC to the appropriate Participating Lender or other lender. MC will be responsible for coordinating the sale, collecting the proceeds, and other tasks involved in the sale. Nothing in this Agreement may be construed to preclude ILSI from processing, closing and funding mortgage loans in its own name in the future, as a correspondent lender or as an originator or broker of loans for wholesale lenders, but such activities will not relieve ILSI of its obligations under this Agreement. 2.5 Facilities. MC shall provide the following facilities to ILSI in connection with Subprime Loans: (a) MC CLOser(R) System. MC shall install the MC CLOser(R) in ILSI offices and on its computer networks and shall train ILSI personnel in ILSI offices in its use. MC CLOser(R) is MC's proprietary loan origination, pricing, locking, pipeline management and status reporting system. As used in this Agreement, MC CLOser(R) includes interfaces with automated underwriting and credit evaluation functions and integration with MC's Internet site. During the term of this Agreement, ILSI will have a royalty-free worldwide license to use MC CLOser(R) in connection with the origination and processing of Subprime Loans under the terms of this Agreement and in connection with any other loans for which MC receives compensation as described in Article IV. This licensed use of MC CLOser(R) by ILSI shall not apply to any loans processed, closed and funded by 6 ILSI without the participation and compensation of MC as described in Section 2.4(d), or other compensation arrangement agreed upon by the parties. (b) Engineering and Other Resources. MC shall coordinate all tasks related to the integration of the MC systems, including CLOser(R), with the Website. MC will dedicate a minimum of one full-time person to this effort. MC shall further provide such additional staff as are needed from time to time to work with ILSI as quickly and efficiently as reasonably possible to achieve the development and operational objectives agreed to by the parties. The parties shall work together to determine the tasks to be performed, the staffing needed and the timing of completion of the tasks. (c) Security. MC shall maintain ICSA E-Commerce security standards on all data transmissions involving Subprime Loans at all times. 2.6 Agreement with Participating Lenders. MC shall use its best efforts to enter into arrangements with Participating Lenders for the purchase of Subprime Loans originated through the Website in accordance with this Agreement. To the extent that MC charges participation fees to other lenders, ILSI and MC shall share such fees on a 50/50 basis. 2.7 Use of Name "FMN" and "First Mortgage Network" on Website. MC shall take all necessary action to file the trade names "FMN" and "First Mortgage Network" in the appropriate jurisdictions, and otherwise maintain its ownership, right and license to use such names in connection with MC products and services. MC shall cooperate with ILSI in identifying MC products and services on the Website, through "Quicken"-related portals, co-branded sites and in other media and communications with consumers in connection with "Quicken" as "FMN" and/or "First Mortgage Network" products and services. ARTICLE III OPERATIONS AND STANDARDS 3.1 Timing of Offering Subprime Loans. The parties shall work together to begin offering Subprime Loans under the terms of this Agreement by May 31, 1999, or as soon thereafter as practicable (the "Commencement Date"). The first contract year under this Agreement with respect to Subprime Loans shall begin on the Commencement Date and end on the date 12 months following the Commencement Date. The successive contract years under this Agreement shall begin and end on such dates of the following years (each, a "Contract Year"). 3.2 [Redacted] 3.3 [Redacted] 7 (b) The above ratios will be reviewed by the parties after six (6) months following the Commencement Date (or such other time periods determined by the parties). During the six (6) month review, the parties agree to negotiate in good faith to agree on appropriate ratios. The parties may further adjust such ratios from time to time by agreement in writing. (c) If MC does not achieve the agreed-upon conversion ratios for three (3) consecutive months (based upon a blended average of the categories), then, upon written notice from ILSI, MC shall have ninety (90) days to cure the shortfall. Cure shall be effected by MC's achieving the blended average conversion ratios during the ninety (90) day cure period. If the shortfall continues after the end of the cure period, ILSI shall have the right to terminate this Agreement in accordance with Article VIII below. 3.4 Service Levels for Subprime Loans. MC shall perform the following customer services in connection with Subprime Loans: (a) Customer Survey. The parties shall design a mutually acceptable customer survey and establish minimum goals for customer satisfaction. MC shall transmit the survey to all borrowers at the time of closing of Subprime Loans. The parties will develop and implement process improvements to address instances of failure to meet customer satisfaction goals. (b) Quality Control Standards. The parties shall cooperate with each other to develop mutually acceptable quality control standards for Subprime Loans, which the parties shall work together to maintain. The parties will develop and implement process improvements to address instances of failure to meet minimum quality control standards. (c) Amount of Time to Close Loans. [Redacted] If MC fails to achieve the above service levels for two (2) consecutive months, then upon written notice from ILSI, MC shall take reasonable measures to improve service levels within 15 days and shall cure such failure within an additional 45 days. Furthermore, if ILSI identifies a pattern of material problems resulting from MC conduct, which problems have resulted in specific instances of customer complaints, then upon written notice from ILSI, MC shall take reasonable measures to improve service levels within 15 days and shall cure the underlying problems within 45 days. If the service shortfall is not cured to ILSI's satisfaction during the cure period, then, notwithstanding any other term of this Agreement to the contrary, ILSI shall have 8 the right to terminate this Agreement in accordance with Article VIII of this agreement. (d) Customer Service Commitment. ILSI and MC agree that excellent customer service represents one of the foundations for building a successful business and is a consideration for this Agreement. To that end, the parties agree to the following customer service standards: MC shall deliver customer service performance at least equal to the service level standards delivered by the average of the two lenders on the Website determined to have the highest customer service levels (defined as lowest ratio of complaints to applications) ("High Service Standard"). The two lenders whose customer service levels are averaged to determine the High Service Standard shall be selected from among the four lenders on the Website with the highest application volume. The High Service Standard will be measured monthly, and will be determined by the ratio of customer complaints received (and found in ILSI's reasonable judgement to result from lender actions) regarding a specific lender to the total applications taken by that lender during the month. If MC's customer service fails to meet the High Service Standard for two (2) consecutive months, then upon written notice from ILSI, MC shall take reasonable measures to improve service levels within 15 days and shall cure such failure to meet the High Service Standard within an additional 45 days; provided however, that if ILSI identifies a pattern of material problems resulting from MC conduct, which problems have resulted in specific instances of customer complaints, then upon written notice from ILSI, MC shall take reasonable measures to improve service levels within 15 days and shall cure the underlying problems within 45 days. If the service shortfall is not cured during the cure period, then, notwithstanding any other term of this Agreement to the contrary, ILSI shall have the right to terminate this Agreement in accordance with Article VIII of this agreement. For purposes of this section a problem shall not be deemed to be material if the specific events complained of occur in fewer than 2% of loan applications taken by MC. The provisions of this Section 3.5(d) shall not apply during any period where actual loan conversion ratios exceed the capacity levels established and agreed to by the parties, as described in Section 3.3. 3.5 Improving Processing Time. ILSI and MC shall work together and with GHR to integrate their respective technologies in order to improve processing, underwriting and closing processes. The parties shall work with each other and GHR to improve the quality and nature of the back office services so as to reduce the time, cost and difficulty to the customer of obtaining a Subprime Loan. ARTICLE IV COMPENSATION 4.1 Federal and State Law. The compensation structure set forth below 9 reflects the intent of the parties but is subject to change, by mutual agreement of the parties, to comply with applicable federal and state laws and regulations. 4.2 [Redacted] 4.3 Fees for ILSI's Services and Facilities. [Redacted] ILSI's services and facilities, as described in the Agreement shall include, without limitation, educating the customer on the home buying and financing process through various articles and chat services on the Website, providing calculators for the customer to determine appropriate loan products available, taking customer information and compiling the information into an application, analyzing the customer's income and debt and pre-qualifying the customer for Subprime Loans, providing disclosures, and assisting the borrower in understanding and clearing credit problems, including debt consolidation advice, and related services and facilities contemplated by this Agreement. ARTICLE V EXCLUSIVITY 5.1 Multi-Lender Mortgage Sites. [Redacted] 5.2 Exclusivity with Respect to Subprime Loans. [Redacted] 10 ARTICLE VI REPRESENTATIONS, WARRANTIES AND COVENANTS 6.1 Representations and Warranties of MC. MC represents and warrants that the following is true and correct and shall remain true and correct during the Term: (a) Authority. MC is a corporation duly organized, validly existing and in good standing under the laws of the State of Florida with full corporate power and authority to transact any and all business contemplated by this Agreement and it possesses all requisite authority, power, licenses, permits and franchises to conduct its business as presently conducted. Its execution, delivery and compliance with its obligations under the terms of this Agreement are not prohibited or restricted by any government agency. MC has taken all necessary action to authorize its execution, delivery and performance of this Agreement. (b) Conflict with Existing Laws or Contracts. The execution and delivery of this Agreement and the performance of its obligations hereunder by MC will not (i) conflict with or violate (A) MC's Certificate of Incorporation or By-laws, or (B) any provision of any law or regulation or any decree, demand or order to which MC is subject, or (ii) conflict with or result in a breach of or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under any of the terms, conditions or provisions of any agreement or instrument to which MC is a party or by which it is bound or any order or decree applicable to MC or result in the creation or imposition of any lien on any of its assets or property. (c) Licenses and Consents. MC has obtained all necessary or required governmental licenses, permits, approvals, and consents for the transactions contemplated by this Agreement. No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by MC of or compliance by MC with this Agreement, or if required, such approval has been obtained or will be obtained prior to the date of this Agreement. (d) Legal Action Against MC. There is no claim, action, suit, proceeding or investigation pending or, to the best of MC's knowledge, threatened against MC or against any of its principal officers, directors or key employees, which, either in any one instance or in the aggregate, may result in any adverse change in the business, operations, financial condition, properties or assets of MC, or in any impairment of the 11 right or ability of MC to carry on its business substantially as now conducted through its existing management group, or in any material liability on the part of MC, or which would draw into question the validity of this Agreement or any of the other instruments, documents or agreements entered into by MC in connection with this Agreement, or of any action taken or to be taken in connection with the obligations of MC contemplated therein, or which would be likely to impair the ability of MC to perform the terms of this Agreement. (e) Binding on MC; Enforceability. This Agreement, assuming due authorization, execution and delivery hereof, and all the obligations of MC hereunder, constitute the valid and binding obligations of MC, enforceable against MC in accordance with the terms hereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights in general and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law). (f) Compliance With Laws. MC has complied and will continue to comply with all applicable federal and state laws and regulations in its business operations, in the loan origination activities proposed to be conducted, and in the performance of this Agreement. In particular, MC represents and warrants that its loan origination, processing and underwriting systems, including, without limitation, the MC CLOser(R), comply with applicable state and federal laws and regulations, including, without limitation, the Fair Housing Act, Truth-in-Lending Act, and ECOA. MC will not seek to hold ILSI liable in any action prosecuted against MC by a borrower, government agency, or other party which alleges non-compliance with the laws applicable to originators of mortgage loans, provided that neither the bad faith or wilful misconduct of ILSI materially contributed to the circumstances giving rise to the claim against MC. MC will maintain errors and omissions insurance, fidelity bonds and similar financial instruments designed to protect those with whom it deals in the origination of mortgage loans, in commercially reasonable amounts, and to provide evidence of such instruments to ILSI upon request. ILSI will be a named or additional insured in such policies and instruments. The types and amounts of insurance, bonds and other financial instruments maintained by MC will be subject to approval and upward revision by ILSI in its reasonable discretion, as the volume of MC activity subject to this Agreement increases. MC represents on behalf of its officers, directors, and key employees that none of these individuals are currently in violation of any federal, state or other law or regulation applicable to them in their professional capacities as mortgage bankers, mortgage brokers, or any other regulated field or occupation, except as disclosed to ILSI in writing in connection with this Agreement, and that there is no pending legal, administrative or similar action pending against any of them that would affect their ability to perform their obligations to MC or to the Participating Lenders, or to ILSI hereunder. 6.2 Representations and Warranties of ILSI. ILSI represents and warrants that the following is true and correct and shall remain true and correct during the Term: (a) Authority. ILSI is a corporation duly organized, validly existing 12 and in good standing under the laws of the State of Delaware with full corporate power and authority to transact any and all business contemplated by this Agreement and it possesses all requisite authority, power, and material licenses, permits and franchises to conduct its business, and to execute, deliver and comply with its obligations under this Agreement. The execution of this Agreement and its delivery and the performance by ILSI of its obligations under this Agreement are not prohibited or restricted by any government agency. ILSI has taken all necessary action to authorize the execution, delivery and performance of this Agreement. (b) Conflict with Existing Laws or Contracts. The execution and delivery of this Agreement and the performance of its obligations hereunder by ILSI will not (i) conflict with or violate (A) ILSI's Certificate of Incorporation or By-laws, or (B) any provision of any law or regulation or any decree, demand or order to which ILSI is subject, or (ii) conflict with or result in a breach of or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under any of the terms, conditions or provisions of any agreement or instrument to which ILSI is a party or by which it is bound or any order or decree applicable to ILSI or result in the creation or imposition of any lien on any of its assets or property. (c) Licenses and Consents. ILSI, in connection with performance of its duties under this agreement, has obtained or will obtain all necessary or required governmental licenses and consents requisite for the transactions contemplated by this Agreement. No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by ILSI of or compliance by ILSI with this Agreement, or if required, such approval has been obtained prior to the date of this Agreement. (d) Legal Action Against ILSI. There is no claim, action, suit, proceeding or investigation pending or, to the best of ILSI's knowledge, threatened against ILSI, which, either in any one instance or in the aggregate, may result in any material adverse change in the business, operations, financial condition, properties or assets of ILSI, or in any material impairment of the right or ability of ILSI to carry on its business substantially as now conducted, or in any material liability on the part of ILSI, or which would draw into question the validity of this Agreement, or any of the other instruments, documents or agreements entered into by ILSI in connection with this Agreement, or of any action taken or to be taken in connection with the obligations of ILSI contemplated therein, or which would be likely to impair materially the ability of ILSI to perform under the terms of this Agreement. (e) Binding on ILSI; Enforceability. This Agreement, assuming due authorization, execution and delivery hereof, and all the obligations of ILSI hereunder, constitute the valid and binding obligations of ILSI, enforceable against ILSI in accordance with the terms hereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights in general and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law). 13 (f) Compliance With Laws. ILSI has complied and will continue to comply with all applicable federal and state laws and regulations in its business operations, in the operation of the Website, and in the performance of this Agreement. 6.3 Covenants. ---------- (a) Compliance with Laws. MC and ILSI covenant to each other that they will comply with all applicable federal and state laws and regulations in performing their respective obligations under this Agreement. Any successful challenge of any particular provision of this Agreement, including the compensation provisions, by any governmental authority, will, at the option of either party hereto, constitute sufficient cause for termination of this Agreement if the Agreement and its purposes cannot be reasonably effectuated without the challenged provision or term. (b) Continuing Obligations of the Parties. The parties shall cooperate with each other in the performance of this Agreement until the termination hereof. Neither party shall take any action or refrain from taking any action which would jeopardize or compromise the performance of the Website or MC's systems or which would hinder the performance by the parties of their respective services to the Participating Lenders and to their customers. Each party shall promptly forward to the other all notices, claims, letters, documents and other information received by such party which are relevant to the performance of this Agreement. The parties shall provide to each other all information and documentation regarding their respective products and services which are necessary or relevant to the performance of the transactions contemplated by this Agreement. (c) MC's Books and Records. MC shall make all material books and records pertaining to the services and facilities provided under this Agreement, including without limitation, records and reports on Inquiries, Prequalifications and Applications that are initiated through the Website and any other services and facilities provided to ILSI, available for inspection at MC's offices or any other mutually convenient location upon five (5) days prior notice by ILSI. (d) Further Assurances. At any time, and from time to time after the execution of this Agreement, upon the reasonable request of a party hereto, and at the expense of such party, the other party shall do, execute, acknowledge and deliver, and shall cause to be done, executed, acknowledged and delivered, all such further acts, deeds, assignments, transfers, conveyances, powers of attorney and assurances as may be reasonably required in order to enable the parties to perform their respective obligations hereunder and carry out the terms of this Agreement. ARTICLE VII INDEMNIFICATION 7.1. General Indemnification by ILSI. ILSI shall indemnify MC and any directors, officers, employees or agents of MC (collectively, "MC Indemnified Parties") 14 and hold each of them harmless from and against any and all claims, losses, damage, penalties, fines, forfeitures, reasonable legal fees and expenses (including attorneys' fees) and related costs, expenses of litigation, judgments, and any other costs, fees and expenses (each, a "Liability" and collectively "Liabilities") that were caused by or resulted from a breach of any of ILSI's representations, warranties, covenants and agreements contained in this Agreement or by ILSI's willful misfeasance, bad faith or gross negligence in the performance of or failure to perform as provided in this Agreement. 7.2. General Indemnification by MC. MC shall indemnify ILSI and any directors, officers, employees or agents of ILSI (collectively, "ILSI Indemnified Parties") and hold each of them harmless from and against any and all Liabilities that were caused by or resulted from a breach of any of MC's representations, warranties, covenants and agreements contained in this Agreement or by MC's willful misfeasance, bad faith or gross negligence in the performance of or failure to perform as provided in this Agreement. Further, MC shall indemnify the ILSI Indemnified Parties for losses, damages or Liabilities resulting from MC's failure to adhere to commercially reasonable standards and any applicable canons of ethics in the origination, processing or funding of mortgage loans. The indemnification based on the professional conduct of MC shall not be limited to willful acts, bad faith or gross negligence. 7.3 Survival of Indemnifications. MC's and ILSI's respective obligations to indemnify any ILSI Indemnified Party or any MC Indemnified Party will survive the expiration or termination of this Agreement by either party for any reason. 7.4 Notice of Claims. Each party shall promptly notify the other in writing of any and all litigation and claims known to such party made against it or the other party in connection with this Agreement. ARTICLE VIII TERM AND TERMINATION 8.1 Term. This Agreement shall remain in effect for three Contract Years following the Commencement Date (the "Initial Term"). Thereafter this Agreement may be renewed for successive three Contract Year terms unless either party notifies the other at least 30 days prior to the end of a term that it is terminating the Agreement at the end of the current term. The Initial Term, together with any successive terms shall be referred to herein as the "Term." 8.2 Termination. This Agreement may be terminated by written notice of either party prior to the end of the Term due to one of the following Events of Default, after giving the defaulting party the applicable notice and opportunity to cure set forth below: (a) Breach of the Agreement. If a party breaches a material term or condition of this Agreement, the non-defaulting party must give the defaulting party written notice of the breach. If the breach is of a monetary nature, the defaulting party will have five (5) 15 business days to cure the default. Otherwise, the defaulting party will have thirty (30) days to cure the default. The non-defaulting party may terminate this Agreement at the expiration of the applicable cure period if the breach is not cured within the given cure period. (b) Change in Control. If MC merges with, or is acquired by, a third party, and, in the reasonable opinion of ILSI, such change in control materially adversely affects MC's ability to perform under this Agreement, then ILSI may terminate this Agreement after giving three (3), months' prior written notice. This provision shall specifically exclude mergers in which MC is the surviving entity. (c) Change in Financial Condition. If MC undergoes a material change in financial condition such that it is unable to meet its obligations under this Agreement, ILSI may terminate this Agreement if, after giving MC written notice and a 15-day opportunity to cure, MC's financial condition has not been restored to the extent that it can perform its obligations hereunder; provided, however, that if the adverse change in MC's financial condition results in MC's failure to fund loans as and when scheduled for three (3) consecutive days, ILSI may thereafter immediately terminate this Agreement and at its option, seek alternative funding for the affected loans. (d) Performance. If MC does not meet its minimum requirements for closing Subprime Loans as set forth in Section 3.3 of this Agreement, ILSI shall notify MC in writing of the shortfall. MC shall have ninety (90) days after notice to cure the shortfall. If MC has failed to cure the shortfall during that period, then ILSI may terminate this Agreement after six (6) months' prior written notice. (e) [Redacted] (f) Bankruptcy. In the event of the occurrence of any of the following events, the non-defaulting party may terminate this Agreement immediately upon giving prior written notice to the defaulting party: (i) the commencement of any bankruptcy, insolvency, reorganization, dissolution, liquidation of debt, receivership or conservatorship proceeding or other similar proceeding under federal or state bankruptcy, debtors relief, bank regulatory or other law by or against either party; or (ii) the appointment of a receiver, conservator, trustee or similar officer to take charge of, a substantial part of the property of either party. ARTICLE IX MISCELLANEOUS 16 9.1 Notices. Any written notice required or permitted to be given to the parties hereunder shall be addressed as follows: If to ILSI: Intuit Lender Services, Inc. 2535 Garcia Avenue Mountain View, CA 94043 Tel: (619) 784-1214 Fax: (619) 784-1244 Attention: Carl Reese, President Carl_Reese@intuit.com with a copy to: Andrea Lee Negroni, Esq. Negroni & Winston PLLC 1156 Fifteenth Street, N.W. Suite 1105 Washington, D.C. 20005 Tel: 202-887-1610 Fax: 202-887-1902 email@example.com If to MC: Seth Werner, Chairman Mortgage.com, Inc. 8751 Broward Blvd Plantation, FL 33324 Tel: (954) 452-0000 Fax: (954) 472-0800 E-mail address Sethwerner@mortgage.com with a copy to: Michael Brenner, General Counsel Mortgage.com, Inc. 8751 Broward Blvd Plantation, FL 33324 Tel: (954) 452-0000 Fax: (954) 472-0800 E-mail address: firstname.lastname@example.org All notices shall be in writing and delivered in person or shall be sent by registered or certified mail, return receipt requested, and shall be deemed effective, three days after the same is mailed as provided above with postage prepaid. Notice sent by any other method shall be effective only upon actual receipt. 17 9.2 Assignment; Contracting. Neither party may assign its rights or obligations hereunder, by operation of law or otherwise, without the express written consent of the other, except that (i) either party may assign any of its obligations or rights, in whole or in part, to any parent, affiliate or subsidiary of such party, and (ii) the acquisition of all or substantially all of the voting securities of a party by merger or otherwise, shall not constitute an assignment of its rights or obligations hereunder. Any attempted assignment in violation of the foregoing will be null and void. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. 9.3 [Redacted] 9.4 Waiver. No term or provision hereof will be deemed waived, and no variation of terms or provisions hereof shall be deemed consented to, unless such waiver or consent shall be in writing and signed by the party against whom such waiver or consent is sought to be enforced. Any delay, waiver or omission by ILSI or MC to exercise any right or power arising from any breach or default of the other party in any of the terms, provisions or covenants of this Agreement shall not be construed to be a waiver by ILSI or MC of any subsequent breach or default of the same or other terms, provisions or covenants on the part of either party. 9.5 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of California, without respect to its conflicts of law principles. 9.6 Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto relating to the subject matter hereof, except where expressly noted herein, and all prior negotiations, agreements and understandings, whether oral or written, are superseded or canceled hereby. 9.7 Modification. This Agreement may not be amended or modified except in a written document signed by both parties. 9.8 Severability. If any provision of this Agreement is declared or found to be illegal, unenforceable or void, this Agreement shall be construed as if not containing that 18 provision, and the rest of the Agreement shall remain in full force and effect, and the rights and obligations of the parties hereto shall be construed and enforced accordingly. 9.9 Independent Contractor. MC, in performance of this Agreement, is acting as an independent contractor, is not the partner, joint venturer or agent of ILSI and has no authority to act on behalf of ILSI except as necessary or desirable to carry out MC's obligations under this Agreement. The parties shall each be responsible for payment of their respective taxes and assessments incurred in connection with performance of this Agreement. Neither party's employees are eligible for employee benefits of the other party. 9.10 Confidentiality. Each party agrees to keep all information related to the other party confidential, as provided in the Non-Disclosure Agreement dated April 29, 1998. The parties further agree that the business strategy, marketing plans and product specifications of either party disclosed in connection with this transaction, as well as the terms of this Agreement, are confidential and shall not be used by the other party or disclosed by such other party to third parties unless such information is (i) required to effect the transactions contemplated herein, (ii) in the public domain or already in the possession of a party prior to the disclosure to it by the other party (including information received lawfully from third parties without an obligation of confidentiality); or (iii) required by law or regulation to be disclosed. 9.11 Definitions. Except where otherwise defined herein, capitalized terms used in this Amendment shall have the meaning set forth below. (a) The term "Submission" shall mean any Inquiry through the Website or call centers, any Prequalification or Application. (b) The term "Subprime" shall mean having an investment grade of "B" or below. (c) The term "Subprime Loans" shall mean residential mortgage loans, which are Subprime and are offered by ILSI through the Website or through portals, other co-branded sites or call centers. 19 IN WITNESS WHEREOF, each of the parties has caused this Agreement to be signed and delivered by its duly authorized officer as of the date first written above. INTUIT LENDER SERVICES, INC. By: /s/ [illegible] ------------------------------------ Name: [illegible] ---------------------------------- Title: President & CEO --------------------------------- MORTGAGE.COM, INC. By: /s/ ----------------------------------- Name: John D. Rodgers --------------------------------- Title: President, Consumer DirectGroup -------------------------------- 20 APPENDIX A INDEX OF RATES OF LENDERS [Redacted] 21
Domain Name Assignment Agreement - First Mortgage Network Inc. and Credit.com LLC
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