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.
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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.
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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.
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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
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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
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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.
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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
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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).
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(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")
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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
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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
aln@loanlaw.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: michaelbrenner@mortgage.com
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.
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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.
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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
--------------------------------
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APPENDIX A
INDEX OF RATES OF LENDERS
[Redacted]
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Domain Name Assignment Agreement - First Mortgage Network Inc. and Credit.com LLC
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