EXHIBIT 4.05
XxxxXxxxxxx.xxx Builder Gold Program Agreement
This Builder Gold Program Agreement (the "Agreement") is dated as of
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_______, 1999, and is entered into by and among National New Homes, Inc., a
Delaware corporation, operator of XxxxXxxxxxx.xxx ("XxxxXxxxxxx.xxx"),
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RealSelect, Inc., a Delaware corporation ("RealSelect"), NetSelect, Inc., a
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Delaware corporation that intends to change its name to XxxxXxxxx.xxx, Inc. and
is an affiliate of XxxxXxxxxxx.xxx ("XxxxXxxxx.xxx") and the persons and
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entities who execute a counterpart of this Agreement as a "Builder"
(individually a "Builder" and collectively, the "Builders").
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RECITALS
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WHEREAS, Builder is a member of the National Association of Home Builders
("NAHB");
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WHEREAS, Builder has entered into an agreement with XxxxXxxxxxx.xxx dated
______________ a copy of which is attached hereto as Exhibit A. ("Builder Gold -
National Advertising Agreement");
WHEREAS, XxxxXxxxx.xxx has filed a registration statement with the Securities
and Exchange Commission (the "SEC") under the Securities Act of 1933, as amended
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("Securities Act"), registering the offer and sale of shares of XxxxXxxxx.xxx
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Common Stock (the "Common Stock") in an underwritten initial public offering
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("IPO");
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WHEREAS, XxxxXxxxx.xxx has also filed a related registration statement (which
will be referred to herein as the "Registration Statement") with the SEC
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registering the offer and sale of certain shares of Common Stock, warrants to
purchase shares of Common Stock, and the shares of Common Stock that are
issuable upon exercise of such warrants, to certain persons and entities
including the Builders who purchase shares of Common Stock and warrants pursuant
to this Agreement and the agreements contemplated by this Agreement; and
WHEREAS, in order to induce Builder to participate in the Builder Gold Program
(the "Program"), and to enter into this Agreement and, if applicable, the
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National Builder Contract, XxxxXxxxx.xxx desires to offer and sell to Builder,
and Builder desires to purchase, shares of Common Stock of XxxxXxxxx.xxx.
pursuant to the Registration Statement and on the terms and subject to the
conditions set forth in this Agreement.
WHEREAS, in order to induce Builder to participate as a Exclusive Data
Collection Partner, XxxxXxxxx.xxx desires to offer and sell to Builder, and
Builder desires to purchase a warrant to purchase shares of Common Stock of
XxxxXxxxx.xxx, pursuant to the Registration Statement and on the terms and
subject to the conditions set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the foregoing Recitals, the
covenants and agreements set forth hereinafter, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. Term. This Agreement shall become effective with respect to a Builder when
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it is executed and delivered by the Builder, XxxxXxxxxxx.xxx, XxxxXxxxx.xxx
and
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RealSelect. The initial term of this Agreement will commence on the date
hereof and shall terminate three years from the date hereof.
2. Definitions. The following terms shall have the following meaning when used
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in this Agreement.
"Current Inventory Data" means (i) any and all information regarding the
availability of models, spec inventory and plan offerings within a
subdivision including but not limited to base plan lists, price lists, lot
inventory, base descriptions of homes such as bedrooms, baths and square
footages and other home amenities, (ii) the copyrighted and/or non-
copyrighted architectural plans and/or renderings of homes including
photographs of such homes, and (iii) the subdivision information including
the marketing name of the subdivision, the contact names and contact
numbers.
"Internet Display Advertising" means advertisements such as banners and
links placed by Builder on Internet sites.
"National Listing Site" means any Internet site that aggregates and/or
displays Current Inventory Data and/or residential real estate listings
from more than one Metropolitan Statistical Area (US Census Bureau
designation) whether accessed at a single URL or at a URL that then links
to multiple URLs where such Current Inventory Data is then available.
"Purchaser" shall mean a particular Builder that purchases shares of Common
Stock and/or Warrants pursuant to the terms of this Agreement.
"Qualified Builder" shall mean a new home builder which offers homes for
sale in at least 50 different Subdivisions.
"Subdivision" shall mean a set of lots in a single area marketed to the
consumer under one name in which the Builder offers new homes for sale
built by the Builder on the date which the determination is made.
3. Builder Obligations. In the event that Builder elects to become an
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Exclusive Data Collection Partner by marking Option #1 on the signature
page of this Agreement, and only in such case, shall the provisions of this
Section 3.1, 3.2 and 3.3 apply. In the event that Builder elects to become
a Preferred Data Collection Partner by marking Option #2 on the signature
page of this Agreement, and only in such case, shall the provisions of this
Section 3.4 apply.
3.1. Data Collection. In the event that Builder elects to become an
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Exclusive Data Collection Partner, during the first year of this
Agreement, Builder will use all reasonable efforts to cause its
employees and agents to provide Builder's Current Inventory Data on an
exclusive basis to XxxxXxxxxxx.xxx and will not, directly or
indirectly, allow any person or entity, to collect or aggregate its
Current Inventory Data ("Third-Party Collectors") where the data is
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then displayed on a National Listings Site. The foregoing sentence
shall not preclude Builder from collecting and/or displaying Builder's
Current Inventory Data on its own Internet
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site nor for the purpose of posting such data on Realtor MLS systems
nor shall it preclude Builder from placing Internet Display
Advertising on any site worldwide.
3.2. Procedures for Notification of Third-Party Collectors. In the event
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that Builder elects to become an Exclusive Data Collection Partner,
during the first year of this Agreement, Builder and XxxxXxxxxxx.xxx
agree to use reasonable efforts to work together to notify Third-Party
Collectors and/or National Listing Sites of XxxxXxxxxxx.xxx's
exclusivity as set forth above. During the first year of this
Agreement, Builder gives XxxxXxxxxxx.xxx the right to send
notification to such companies on its behalf using the "Notification
Letter" attached as Schedule C to the Builder Gold - National
Advertising Agreement attached hereto as Exhibit A and Builder agrees
to work with XxxxXxxxxxx.xxx to use reasonable commercial efforts to
enforce the requests made of such Third-Party Collectors as outlined
in the Notification Letter.
3.3. Communication of Exclusive Data Collection Partner Status. In the
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event that Builder elects to become an Exclusive Data Collection
Partner, during the Term of this Agreement, Builder shall permit
XxxxXxxxxxx.xxx to publicly communicate that Builder is an Exclusive
Data Collection Partner.
3.4. Communication of Preferred Data Collection Partner Status. In the
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event that Builder elects to become a Preferred Data Collection
Partner, during the Term of this Agreement, Builder shall permit
XxxxXxxxxxx.xxx to publicly communicate that Builder is a Preferred
Data Collection Partner.
4. Opportunity to Purchase Shares of XxxxXxxxx.xxx Common Stock.
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4.1. Purchase of Shares. Subject to the terms of this Agreement, Builder
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may make an equity investment in XxxxXxxxx.xxx (including any
successor entity resulting from a reorganization, recapitalization,
merger or consolidation transaction to which XxxxXxxxx.xxx is a party
(a "Reorganization")) through the purchase of shares of Common Stock
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(or, if there is a Reorganization, such class of common stock of the
resulting entity as the Common Stock is converted into in connection
with such Reorganization) (such shares purchased by Builder referred
to as the "Shares"), and (ii) provided that Builder satisfies the
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Subdivision Listing requirements described in Section 5.1 below, the
Warrant (as defined and described below). Purchaser must purchase
Shares in units (the "Units"), each Unit consisting of 5,000 Shares.
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The Company may, in its discretion, sell more than one Unit to a
single Builder, but no Builder shall have the right to purchase more
than one Unit. Even if a Purchaser purchases more than one Unit,
Purchaser may only acquire one Warrant (as defined below). The
offering of the Shares and Warrants shall be made pursuant to the
Registration Statement. In addition, XxxxXxxxx.xxx may in its
discretion offer to one or more persons affiliated with Builder the
opportunity to purchase up to 100 shares (after adjusting for any
stock split, stock dividend or similar recapitalization transaction
that may be effected between the date of this Agreement and the
closing of the IPO) of Common Stock
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in the IPO pursuant to a directed share program described in the
registration statement filed with the SEC related to the IPO.
4.2. Timing of Purchase and Procedures. In order for Builder to purchase
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the Shares and the Warrant, Builder must execute and deliver to
XxxxXxxxx.xxx such agreements and other instruments, which may
include without limitation a subscription agreement, all in form and
substance satisfactory to XxxxXxxxx.xxx, as XxxxXxxxx.xxx may
require in connection with such purchase. Builder must also execute
and deliver a copy of this Agreement to XxxxXxxxx.xxx and deliver a
check made payable to "XxxxXxxxx.xxx, Inc." in the amount of the
purchase price described below. Until the Closing, the Company shall
maintain all funds delivered to it by Purchasers in a separate
escrow account. The Company shall have no obligation to any Builder
that does not execute and deliver a copy of this Agreement to the
Company on or before such date. The closing of the transactions
contemplated by this Agreement (including purchase of the Units)
(the "Closing") shall occur as soon as reasonably practicable, at a
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place, and date and time ("Closing Date"), determined by
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XxxxXxxxx.xxx, after XxxxXxxxx.xxx has received executed copies of
all required documents from all Builders. XxxxXxxxx.xxx may, in its
discretion, issue and sell Units to Builders in more than one
closing.
4.3. Purchase Price for Units; Number of Shares. The purchase price for a
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Unit shall be $82,500 (i.e., $16.50 per Share).
4.4. Number of Subdivision and Form of Participation. Builder represents
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and warrants to the Company that as of the date of this Agreement,
Builder is a Qualified Builder. Builder will deliver to the Company
such evidence of the number of Subdivisions as the Company may
reasonably request. Builder understands and agrees that the Builder
Gold Program is open to only one Builder in any group of affiliated
companies, whether such affiliation is through ownership of one
another or through common ownership. It is further understood that
Builder is not entitled to aggregate the Subdivisions of any
unaffiliated group of Builders for inclusion in the Program.
4.5. Effect of Stock Splits, Stock Dividends, etc. Share numbers and per
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share figures in this Agreement give effect to a two-for-one stock
split of the Common Stock effected earlier this year, but to do not
give effect to any stock split, stock dividend or similar
recapitalization transaction that may be effected between the date
of this Agreement and the closing of the IPO. Unless otherwise
specifically set forth herein, Share and per share numbers in this
Agreement (including but not limited to Sections 4 and 5) shall be
appropriately adjusted for any stock split, stock dividend or
similar recapitalization transaction.
5. Warrants. In the event that Builder elects to become an Exclusive Data
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Collection Partner by marking Option #1 on the signature page of this
Agreement, and only in such case, shall the provisions of this Section 5
apply.
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5.1. Purchase of Warrants. Upon the Closing, if Builder is a Qualified
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Purchaser, XxxxXxxxx.xxx shall also issue to Purchaser a warrant (the
"Warrant") granting Purchaser the right to purchase up to 5,000 Shares
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of Common Stock (the "Maximum Warrant Shares"). The exercise price per
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share shall equal the price to public of the Common Stock sold by
XxxxXxxxx.xxx in the IPO (without adjustment for any stock split,
stock dividend or similar recapitalization transaction effected prior
to the IPO). The number of shares of Common Stock that may be acquired
by a particular Purchaser upon exercise of the Warrant shall be
determined in accordance with the following table:
Number of Subdivisions of Total Shares Issuable Upon
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Builder as of the Closing Date Exercise of Warrant
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100 or more 100% of Maximum Warrant Shares
50 to 99 5,000 multiplied by the number
of Subdivisions, divided by
100. For example, if a Builder
has 50 Subdivisions,
5,000x50/100=2,500 shares.
Less than 50 None
5.2. Exercisability of Warrants; Term. The Warrant will not be exercisable
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in whole or in part until after the Closing. In addition, the
exercisability of some or all of the Warrant will be subject to
additional conditions, as set forth in the Warrant. The Warrant shall
have a term of three (3) years from the date it is issued and shall
contain an exercise price equal to the price of the Common Stock sold
by the Company in the IPO (without adjustment for any stock split,
stock dividend or similar recapitalization transaction effected prior
to the IPO).
5.3. Form of Warrant. The Warrant shall be in such form, and shall contain
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such provisions (not conflicting with the terms described in this
Agreement), as XxxxXxxxx.xxx may determine.
5.4. Lock-Up Agreement and Market Stand-Off. Builder agrees that, without
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the prior written consent of the Xxxxxx Xxxxxxx & Co., Incorporated
(or the then lead managing underwriter(s)) on behalf of the
underwriters in the IPO, it will not, during the period commencing in
the date of this Agreement and ending 180 days after the date of the
final prospectus relating to the IPO (the "Prospectus"), (1) offer,
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pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise transfer or dispose
of, directly or indirectly, any shares of Common Stock or any
securities convertible into or exercisable or
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exchangeable for Common Stock or (2) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any
such transaction described in clause (1) or (2) above is to be settled
by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (a) transactions
relating to shares of Common Stock or other securities acquired in
open market transactions after the completion of the IPO; (b) a bona
fide gift or gifts, provided that the donee or donees thereof agree in
writing to be bound by the germs of this Agreement; or (c) a transfer
to any trust for the benefit of the undersigned or the undersigned's
immediate family, provided that the trustee of the trust agrees in
writing, on behalf of the trust, to be bound by the terms of this
Agreement. Builder acknowledges that the provisions of this paragraph
are valid and binding notwithstanding any prior agreements relating to
this matter and further agrees and consents to the entry of stop-
transfer instructions with the Company's transfer agent against the
transfer of shares of Common Stock held by Builder except in
compliance with the terms and conditions of this paragraph.
6. Representations and Warranties of Builder and XxxxXxxxx.xxx.
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6.1. Builder, XxxxXxxxxxx.xxx, XxxxXxxxx.xxx and RealSelect each represent
and warrant to the other parties hereto that each of the following
statements is true and correct:
6.1.1. such party has all right, power and authority to enter into
and perform its obligations set forth in this Agreement in
accordance with its terms;
6.1.2. the execution, delivery and performance of this Agreement
(and the other agreements contemplated hereby) by such party
has been authorized and approved by all necessary corporate
or other action of such party;
6.1.3. the person executing this Agreement (and the other agreements
contemplated hereby) on behalf of such party has the
authority and power to execute and deliver the Agreement (and
the other agreements contemplated hereby) on behalf of such
party; and
6.1.4. this Agreement (and the other agreements contemplated hereby)
constitutes a valid and legally binding obligation of such
party, enforceable against such party in accordance with its
terms.
6.2. Each Builder represents and warrants to the Company that the
execution, delivery and performance of this Agreement (and all other
agreements contemplated hereby) by Builder, does not violate, conflict
with, or require consent under, any federal, state, local or foreign
judgment, order, statute, rule, regulation or licensing requirements
(including without limitation those relating to real estate and
including any rules or regulations of any real estate or home builder
licensing or other real estate or home builder related body or
organization), applicable to Builder or its business or any contract
agreement to which Builder is a party or by which its business is
bound. Builder also represents, warrants and acknowledges
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that its ownership of any Shares or shares acquired upon exercise of
the Warrant will be subject to, among other instruments, the
provisions of any subscription agreement relating to Shares, the
agreement relating to the Warrant, and such other instruments as the
Company may require in connection with acquisition of such
securities.
7. Securities Law Matters. The issuance of any shares of Common Stock, or any
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warrants or other securities, to any Purchaser shall be contingent on
Purchaser's execution of agreements and instruments in form and substance
reasonably satisfactory to the Company . This Agreement does not constitute
an offer to sell or solicitation of an offer to buy any shares of Common
Stock, warrants or other securities in any jurisdiction where it is
unlawful to make such offer or solicitation, and no grant of warrants or
issuance of Common Stock, Warrants or other securities, or offer or
agreement to do any of the foregoing, is made hereby that would be in
violation of the securities or "blue sky" laws of any jurisdiction.
8. Builder Advisory Board. XxxxXxxxxxx.xxx and the Builders will cooperate in
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good faith to create an advisory board, with a membership mutually
satisfactory to XxxxXxxxxxx.xxx and a majority of the Builders that
participate in national contracts with XxxxXxxxxxx.xxx. The advisory board
will meet periodically (currently contemplated to be once per quarter) with
the President of XxxxXxxxxxx.xxx and a representative of NAHB.
9. National Builder Contract Superseded. If Builder is a party to an existing
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XxxxXxxxxxx.xxx National Builder Contract and the provisions of that
contract are contradictory or otherwise inconsistent with the terms of this
Agreement, the terms of this Agreement shall control over the provisions of
the existing National Builder Contract.
10. Miscellaneous.
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10.1. Governing Law; Consent to Jurisdiction. This Agreement shall be
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governed in all respects by the laws of the state of California
applicable to contracts entered into and performed entirely within
California. Each party irrevocably consents to the exclusive
jurisdiction and venue of the state and federal courts located in
Los Angeles County, California in connection with any action to
enforce the provisions of this Agreement, to recover damages or
other relief for breach or default of this Agreement, or otherwise
arising under or by reason of this Agreement, and agrees that
service of process in any such action may be effected by the means
provided in this Agreement for delivery of notices.
10.2. Assignment. Neither this Agreement nor any obligation arising
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hereunder may be assigned (voluntarily, by operation of law or
otherwise), in whole or in part, by Builder without the prior
written consent of XxxxXxxxx.xxx, which consent shall not be
unreasonably withheld, except to another Builder already
participating in the Program (in which case the assignment shall be
valid after due notice to XxxxXxxxx.xxx), and the assignee (or
surviving company in a corporate reorganization whether by merger,
sale of assets or stock purchase) shall, within thirty (30) days of
such assignment or corporate reorganization, assume and agree
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to be bound by all of the terms and conditions of this Agreement.
Improper assignments are void, and without limiting the foregoing or
any other remedies, in such event following an attempted improper
assignment, XxxxXxxxx.xxx can elect within sixty (60) days after
notice of such improper assignment to cancel unexercised warrants
and to repurchase the Shares (and shares acquired upon exercise of
warrants) at their original purchase price. If XxxxXxxxx.xxx so
elects, XxxxXxxxx.xxx shall deliver a repurchase notice and Builder
shall promptly deliver to XxxxXxxxx.xxx any stock certificates and
warrants of XxxxXxxxx.xxx which are then held by Builder, together
with such stock assignments or other instruments of transfer as
XxxxXxxxx.xxx may request. Promptly after receipt of the required
documents, XxxxXxxxx.xxx shall deliver the repurchase price to
Builder by means of either a check (or wire transfer of funds) or by
promissory note in commercially reasonable form payable in equal
monthly installments of principal and interest over thirty six (36)
months (prepayable at any time without penalty) and with interest at
the rate of two percentage points over the prime rate announced by
Citibank, N.A., in effect on the date of the repurchase.
XxxxXxxxx.xxx and RealSelect may assign this Agreement without the
consent of the Builders.
10.3. Successors and Assigns. This Agreement shall be binding upon, and
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inure to the benefit, the parties and their respective successors
and permitted assigns, subject to paragraph 10.2 above.
10.4. Entire Agreement. This Agreement sets forth the entire agreement
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between the parties with respect to the subject matter hereof and
supersedes all prior or contemporaneous understandings,
communications or agreements, whether written or oral, regarding
such subject matter.
10.5. Amendment. Any provision of this Agreement may be amended, waived or
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modified, either retroactively or prospectively, only by a written
instrument signed by XxxxXxxxx.xxx and a majority of the signing
Builders (provided that such amendment, waiver or modification does
not discriminate against one or more signing Builders in a manner
different from other signing Builders). Any such amendment shall be
binding on all parties hereto.
10.6. Notices. All notices or other communications given under this
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Agreement shall be in writing and shall be delivered in person, by
first class mail, by national overnight courier service, or
facsimile, addressed as follows:
If to Builder:
To the address for the Builder set forth on the signature page
hereto.
If to XxxxXxxxx.xxx, Inc.:
000 Xxxx Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Attn: General Counsel
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Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Either party may change its address or addressee for the purpose of
this Agreement by notice. Notices or other communications shall be
deemed given or delivered upon receipt if delivered in person, four
(4) days after deposit in the mails, one (1) business day after
deposit with a reputable overnight courier service, or one (1)
business day after transmission if delivered by facsimile with
confirmation of receipt.
10.7. Waiver. No waiver by either party of any breach or default by any
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other shall be deemed a waiver of any other breach or default.
10.8. Severability. If any term or other provision of this Agreement is
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invalid, illegal or incapable of being enforced by any rule of law, or
public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby
are not affected in any manner materially adverse to any party. Upon
such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties shall negotiate in
good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable
manner in order that the transactions be consummated as originally
contemplated to the fullest extent possible.
10.9. Survival. If this Agreement is terminated for any reason, including
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without limitation termination because of the expiration of the Term,
Sections 5, 6 and 7 shall survive termination of this Agreement.
10.10. Counterparts. This Agreement may be executed in any number of
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counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts
have been signed by both parties and delivered to the other party.
[Remainder of this page intentionally left blank]
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10.11 Election of Option by Builder. Builder, after reviewing the effect
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of each option, elects the following option:
(Builder to check one)
Option #1: _____ (To Become an Exclusive Data Collection Partner)
Option #2: _____ (To Become a Preferred Data Collection Partner)
This Agreement does not constitute an offer to sell or solicitation of an offer
to buy any Warrants or Common Stock in any jurisdiction where it is unlawful to
make such an offer or solicitation, and no grant of Warrants or issuance of
Common Stock is made hereby that is in violation of the securities or "blue sky"
laws of any jurisdiction.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first written above.
REALSELECT, INC. XXXXXXXXX.XXX, INC.
By: ____________________________ By: ____________________________
Name: __________________________ Name: __________________________
Title: _________________________ Title: _________________________
NATIONAL NEW HOMES, INC.,
dba XXXXXXXXXXX.XXX
By: ____________________________
Name: __________________________
Title: _________________________
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BUILDER
Name: __________________________ Address:_______________________
Typed Name of Builder
_______________________________
_______________________________
By: ____________________________ Telephone:_____________________
Title: _________________________ Facsimile:_____________________
[COUNTERPART SIGNATURE PAGE TO BUILDER GOLD
PROGRAM AGREEMENT]
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Exhibit A
BUILDER GOLD NATIONAL ADVERTISING AGREEMENT
This National Advertising Agreement ("Agreement") is by and between National New
Homes Co., Inc ("NNH"), dba XxxxXxxxxxx.xxx, a Delaware corporation and a
subsidiary of XxxxXxxxx.xxx having its principle place of business in Dallas,
Dallas County, Texas, and "Builder" as set forth below:
Builder (legal): _____________________________________________
Builder DBA:
Builder Address _________________________________________ Suite ______
City____________________________ State ___ Zip _____________
Phone (_____) ________________________ Fax (_____) ________________________
Billing Contact: _________________________e-mail: _____________________________
RECITALS
A. WHEREAS, NNH is in the business of collecting new home construction
information in markets throughout the United States; and
B. WHEREAS, NNH owns and operates Internet sites at the URL addresses
XxxxXxxxxxx.xxx, XxxXxxxXxxxxx.xxx, XxxXxxxXxxxxxxx.xxx and
XxxXxxxXxxxxx.xxx; and
C. WHEREAS, NNH distributes new home construction information through the
NNH Consumer Internet Distribution Channels and the NNH Realtor
Distribution Channels; and
D. WHEREAS, Builder desires to have NNH collect, database and advertise
Builder's new home construction information through the NNH Distribution
Channels.
NOW, THEREFORE, for and in consideration of the foregoing recitals, the
covenants and agreements set forth hereinafter, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. Definitions. As used in this Agreement, the following terms will have the
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meanings set forth below:
"Builder" means the entity as set forth as Builder above and includes all
entities in the new home construction business that are owned or controlled
by the Builder.
"Builder On-Line Updating" means that certain program that allows Builder
to update its Current Inventory Data and Solds Data on the Internet using
any browser.
"Current Inventory Data" means (i) any and all information regarding the
availability of models, spec inventory and plan offerings within a
subdivision including but not limited to base plan lists, price lists, lot
inventory, base descriptions of homes such as bedrooms, baths and square
footages and other home amenities, (ii) the copyrighted and/or non-
copyrighted architectural plans and/or renderings of homes including
photographs of such homes, and (iii) the subdivision information including
the marketing name of the subdivision, the contact names and contact
numbers.
"National Listing Site" means any Internet site that aggregates and/or
displays Current Inventory Data and/or residential real estate listings
from more than one Metropolitan Statistical Area (US Census Bureau
designation) whether accessed at a single URL or at a URL that then links
to multiple URLs where such Current Inventory Data is then available.
"NNH Consumer Internet Distribution Channels" means the Internet sites and
other media owned and operated by NNH including but not limited to
XxxxXxxxxxx.xxx, the official new homes site of the National Association of
Home Builders ("NAHB"), XxxXxxxXxxxxx.xxx and other third-party sites where
NNH Text Data and Plans are advertised primarily to the consumer.
"NNH Markets" means markets within the U.S. where NNH offers its services.
"NNH Housing Research Reports" means compilations of the data NNH collects
into reports, which are then distributed, on the Internet at
XxxXxxxXxxxxxxx.xxx.
"NNH Realtor Distribution Channels" means those certain distribution
products advertised primarily to the Realtors in certain markets; such
products include the New Home Directory and/or the Internet site at the URL
address XxxXxxxXxxxxx.xxx.
"NNH Distribution Channels" means both NNH Consumer Internet Distribution
Channels and NNH Realtor Distribution Channels, cumulatively.
2. Responsibilities of NNH.
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A. Data Collection. NNH shall collect Builder's Current Inventory Data
from Builder's on-site salespersons or Builder's corporate office
(Builder's choice) on a periodic updating basis in all markets where
Builder builds.
B. On-Line Updating by Builder. If Builder so chooses, Builder may
participate in Builder On-Line Updating where NNH shall give Builder a
password and access to a secure Internet program that will allow
Builder to make changes to Builder's Current Inventory Data, Solds
Data and Traffic data on a daily basis. This shall not replace the NNH
periodic updating as set forth in 2 (A).
C. Builder Name Link Including Data Link. NNH shall provide a hyperlink
from Builder's name on the NNH electronic Distribution Channels
("Builder Name Link") to the home page of Builder's web site and
provide the inventory links (including individual search engines) to
Builder to allow Builder to display framed inventory data on Builder's
web site. Builder's web site address is:
URL: HTTP://__________________________________________________________
D. NNH Construction of Builder's Web Site. NNH provides web development
services for builders. If Builder so desires, NNH shall build, house
and maintain a web site custom designed for Builder. If Builder
chooses this option, please check the "Yes" box that follows and
initial. The specifications and cost for the construction and on-going
maintenance of such web site shall be set forth in detail on the
attached Schedule B and such fees shall become a part of this
Agreement as if set forth herein verbatim.
Builder desires that NNH build, house and maintain a custom web site
for Builder:
_________ YES (See Schedule B for detail)
_________ NO
E. Consumer Advertising Distribution. NNH shall advertise Builder's
Current Inventory Data in all NNH Consumer Internet Distribution
Channels.
F. Realtor Advertising Distribution. Builder's Current Inventory Data
shall be advertised in all NNH Realtor Distribution Channels (not
available in all markets).
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G. Tracking Reports. NNH shall furnish to builder one (1) NNH Tracking
Report for each of Builder's markets including three (3) national
reports at a minimum of once each calendar quarter.
H. Housing Research Reports. NNH shall furnish to Builder at no
additional cost the basic NNH Housing Research Reports for each market
where NNH offers such products.
2. Fees.
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A. Basic Service Fees. Builder shall pay to NNH the greater of $125.00
per month or the then-going published rate per active subdivision
("Basic Service Fee") in markets where both NNH Consumer Internet
Distribution Channels and NNH Realtor Distribution Channels are
available. Builder agrees to list all subdivisions and its models,
spec inventory and plan inventory in all markets where Builder is an
active builder.
(i.) Basic Service Fee Adjustments. NNH adjusts its Basic Service
Fees annually on a market by market basis to be effective on
January 1 of each year. NHN agrees to notify Builder of the
adjusted rate for the upcoming year for each market applicable
to Builder no later than October 1 of the preceding year. If
Builder receives no notification, the then current year's Basic
Service Fee shall apply for the upcoming year.
(ii.) Most Favored Basic Service Fees. NHN agrees to give Builder
most favored Basic Service Fees that shall be no more than the
lowest Basic Service Fees afforded like builders within a
market.
(iii.) Internet-Only Markets. In markets where only NNH Consumer
Internet Distribution Channels are available, Builder shall
initially pay $75.00 per month per active subdivision.
(iv.) Setup Fees. Set up fees for each new subdivision entering the
system shall be at the rate of $125.00 per subdivision.
B. Builder Markets and Associated Fees. The markets where Builder builds
and the associated initial Basic Service Fees are set forth on the
attached Schedule A.
C. Builder Name Link. Builder shall pay $250.00 per month per market for
a Builder Name Link.
D. Fees for different phases of the same subdivision. When subdivisions
are closing-out of one phase and moving into a new phase, NNH treats
it as one subdivision if the same plans are offered and at the same
---------------------------------------------
price in the new phase as in the closing-out phase. If Builder offers
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different plans in the new phase or if the prices for the same plans
are different, the subdivision must be advertised and billed as two
separate subdivisions, i.e. Phase I and Phase II.
E. Close-outs. When a volume subdivision is at the stage of close-out
where only spec homes are offered, all plans have been removed from
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the subdivision and there are less than three lots available, NNH will
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charge Builder the lesser of $15.00 per spec per month advertised or
the basic service fee, as set forth in 3 (A), whichever is less. This
reduces the cost on subdivisions as they are closed out. If Builder
desires to advertise all plans as being available in a close out
-----
subdivision, the full Basic Service Fee will apply.
F. Consumer Markets vs. Realtor Markets. NNH shall notify Builder that a
market will be converted from a consumer Internet-only market to a
market where both NNH Consumer Distribution Channels and NNH Realtor
Distribution Channels will be available. Builder will be billed at the
new rate ninety (90) days after such notification.
G. National Discount. In the event, and only in the event, that Builder elects
to become an Exclusive Data Collection Partner by marking Option #1 on the
signature page to the
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XxxxXxxxxxx.xxx Builder Gold Program Agreement to which this Agreement is
attached as Exhibit A, Builder shall receive a ten percent (10%) discount
on all products and services purchased from NNH in all markets. Existing
contracts executed before the Effective Date of this Agreement shall not
apply.
2. Billing. Billing is on a MONTHLY basis. Terms are net 15. Builder will be
------- -------
billed for the number of subdivisions advertised in the system on the twentieth
day of each month for the next month. New subdivision set up fees will be billed
as they occur and will be included with the next monthly xxxx. The billing is
computer calculated based on the information furnished to NNH by Builder.
Corrections given to NNH on or before the twentieth of the month will be
credited. After the twentieth, no credit will be given for the then current
month's billing. Any amounts not paid by the due date shall be deemed past due
and shall bear interest at the rate of eighteen percent (18%) per annum. The
obligation to pay such fees shall constitute an independent covenant and shall
not be subject to cancellation, offset, abatement or reduction.
3. Term and Renewal. The "Initial Term" of this Agreement shall be for thirty-
----------------
six (36) months beginning on the "Effective Date" as set forth on the Signature
Page below. At the end of the Initial Term, this Agreement shall automatically
renew for an additional one (1) year "Renewal Term" and from year to year unless
terminated in writing by either party thirty (30) days prior to expiration of
the then current Term or applicable Renewal Term. The terms and conditions of
the Renewal Term(s) shall be the same as set forth herein.
4. Intellectual Property Rights. All Current Inventory Data NNH collects and
----------------------------
processes is the property of, and is deemed to be owned by, NNH. This shall not
include copyrighted architectural plans and/or renderings of Builder's homes or
photographs of such homes to the extent such ownership and/or copyright existed
before delivery to NNH. Builder acknowledges that NNH shall have the unlimited
right to distribute such Plans in electronic format in the NNH Distribution
Channels and in the NNH Market Research Reports and understands such Plans shall
be available for printing from the electronic source by the users of the NNH
Distribution Channels including the NNH Housing Research Reports.
5. Limitation of Liability. In no event shall Builder or NNH be liable to each
-----------------------
other for any lost profits or other damages, including direct, indirect,
incidental, special, consequential or any other type of damages, arising out of
errors or omissions in Text Data or Plans displayed in the NNH Distribution
Channels. NNH agrees to place an "Information Disclaimer" on its web sites and
other media. Such Information Disclaimer shall state that the information is
deemed reliable but not guaranteed and must be independently verified.
6. No warranty. All goods or services provided by NNH are provided "AS IS"
-----------
without warranty of any kind, express or implied, including, but not limited to,
warranties of performance or merchantability or fitness for a particular
purpose. NNH retains the right to change the appearance and placement of the
advertising positions and listings on the NNH Distribution Channels and to
refuse any advertising it deems inappropriate.
7. Indemnity. Each party will defend, indemnify, save and hold harmless the
---------
other party and the officers, directors, agents, affiliates, distributors and
employees of the other party from any and all third party claims, demands,
liabilities, costs or expenses, including reasonable outside and in-house
attorneys' fees ("Liabilities"), resulting from the indemnifying party's
material breach of any obligation, duty, representation or warranty of this
Agreement , except where Liabilities result from the gross negligence or knowing
and willful misconduct of the other party. Each party agrees to (i) promptly
notify the other party in writing of an indemnifiable claim and give the other
party the opportunity to defend or negotiate a settlement of any such claim at
such other party's expense and (ii) cooperate fully with the other party, at
that other party's expense, in defending or settling the claim.
8. Builder Obligations. In the event that Builder elects to become an Exclusive
---------------------
Data Collection Partner by marking Option #1 on the signature page of this
Agreement, and only in such case,
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shall the provisions of this Section 8.1, 8.2 and 8.3 apply. In the event
that Builder elects to become a Preferred Data Collection Partner by marking
Option #2 on the signature page of this Agreement, and only in such case,
shall the provisions of this Section 8.4 apply.
8.1. Data Collection. In the event that Builder elects to become an Exclusive
---------------
Data Collection Partner, during the first year of this Agreement,
Builder will use all reasonable efforts to cause its employees and
agents to provide Builder's Current Inventory Data on an exclusive basis
to XxxxXxxxxxx.xxx and will not, directly or indirectly, allow any
person or entity, to collect or aggregate its Current Inventory Data
("Third-Party Collectors") where the data is then displayed on a
----------------------
National Listings Site. The foregoing sentence shall not preclude
Builder from collecting and/or displaying Builder's Current Inventory
Data on its own Internet site nor for the purpose of posting such data
on Realtor MLS systems nor shall it preclude Builder from placing
Internet Display Advertising on any site worldwide.
8.2. Procedures for Notification of Third-Party Collectors. In the event that
-----------------------------------------------------
Builder elects to become an Exclusive Data Collection Partner, during
the first year of this Agreement, Builder and XxxxXxxxxxx.xxx agree to
use reasonable efforts to work together to notify Third-Party Collectors
and/or National Listing Sites of XxxxXxxxxxx.xxx's exclusivity as set
forth above. During the first year of this Agreement, Builder gives
XxxxXxxxxxx.xxx the right to send notification to such companies on its
behalf using the "Notification Letter" attached as Schedule C to the
Builder Gold - National Advertising Agreement attached hereto as Exhibit
A and Builder agrees to work with XxxxXxxxxxx.xxx to use reasonable
commercial efforts to enforce the requests made of such Third-Party
Collectors as outlined in the Notification Letter.
8.3. Communication of Exclusive Data Collection Partner Status. In the event
-----------------------------------------------------------
that Builder elects to become an Exclusive Data Collection Partner,
during the Term of this Agreement, Builder shall permit XxxxXxxxxxx.xxx
to publicly communicate that Builder is an Exclusive Data Collection
Partner.
8.4. Communication of Preferred Data Collection Partner Status. In the event
-----------------------------------------------------------
that Builder elects to become a Preferred Data Collection Partner,
during the Term of this Agreement, Builder shall permit XxxxXxxxxxx.xxx
to publicly communicate that Builder is a Preferred Data Collection
Partner.
9. General Terms and Conditions.
----------------------------
A. Acknowledgment. The parties acknowledge and represent that they have
carefully read this Agreement and have had an opportunity to have the
terms of the Agreement explained to them by their attorneys, that they
understand the same and have executed the same, voluntarily and upon
their own best judgment.
B. Agreement Effective. This Agreement shall become effective only upon
the execution of this Agreement by each party or person whose
signature is designated above.
C. Amendment. No change or modification of this Agreement shall be valid
unless the same shall be in writing and signed by all parties hereto.
D. Assignment. Neither party shall assign this Agreement or any right,
interest or benefit under this Agreement without the prior written
consent of the other party, provided, however, that either party may
assign this Agreement to its affiliates or to a successor in
5
a reorganization or restructuring of the group of entities to which
such party belongs without the consent of the other party. Subject to
the foregoing, this Agreement shall be fully binding upon, inure to
the benefit of and be enforceable by the Parties hereto and their
respective successors and assigns.
E. Authority. Each person executing this Agreement on behalf of any
corporation, partnership or other entity hereby acknowledges,
represents and warrants that such person has full and complete
authority to execute this Agreement on behalf of such corporation,
partnership or other entity as its act and deed.
F. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of
which together shall constitute a single document.
G. Entire Agreement. This Agreement contains the entire understanding
between and among the parties hereto, and there are no
representations, agreements, arrangements, or understandings, whether
oral or written, between or among the parties hereto, relating to the
subject matter of this Agreement, which are not fully expressed
herein.
H. Further Assurances. Each party hereto agrees to perform any further
act and execute and deliver any further document which may be
reasonably necessary to carry out the terms and provisions of this
Agreement.
I. Governing Law. This Agreement has been executed in and shall be
governed by the laws of the State of Texas, without reference to
conflicts of law principles. For any disputes arising out of this
Agreement, the parties irrevocably consent to the personal and
exclusive jurisdiction of, and venue in, the state or federal courts
within the State of Texas.
J. Notices. All notices called for or required by this Agreement shall be
in writing and shall be deemed to have been delivered, whether
received or not, when placed in the United States mail, certified,
return receipt requested, postage prepaid, addressed to the respective
parties at the addresses set forth with their signatures below, or at
such other addresses as any party may hereafter designate by written
notice delivered in accordance with the terms and provisions of this
paragraph:
If to Builder: If to NNH:
____________________________________ General Counsel
____________________________________ National New Homes Co., Inc.
____________________________________ 00000 Xxxxx Xxxxxx Xxxxxxx
____________________________________ Suite 175
____________________________________ Xxxxxx, XX 00000
K. Severability. In the event any of the provisions, or portions thereof,
of this Agreement are held to be unenforceable or invalid by any Court
of competent jurisdiction, the validity and unenforceability of the
remaining provisions, or portions thereof, shall not be affected
thereby.
L. Independent Contractor. The relationship of Builder and NNH
established by this Agreement is that of independent contractors, and
nothing contained in this Agreement will be construed to (i) give
either party the power to direct and control the day-to-day activities
of the other, (ii) constitute the parties as partners, joint
venturers, co-owners or otherwise as participants in a joint
undertaking, or (iii) allow either party to create or
6
assume obligations on behalf of the other for any purpose whatsoever.
All financial and other obligations with a party's business are the
sole responsibility of that party.
M. Modification; Waiver. No modification of or amendment to this
Agreement, nor any waiver of any rights under this Agreement, will be
effective unless in writing signed by the party to be charged, and the
waiver of any breach or default will not constitute a waiver of any
other right hereunder or any subsequent breach or default.
N. Force Majeure. Nonperformance of either party will be excused to
the extent that performance is rendered impossible by storm, lockout
or other labor trouble, riot, war, rebellion, strike, fire,
earthquake, accident or other act of God, governmental acts, orders or
restrictions, or any other reason where failure to perform is beyond
the control and not caused by the gross negligence or knowing and
willful misconduct of the non-performing party.
O. Termination. This Agreement will terminate, (i) upon the
institution by or against either party of insolvency, receivership or
bankruptcy proceeding or any proceedings for the settlement of the
party*s debts; (ii) upon either party*s making an assignment of
substantially all of its assets for the benefit of creditors; (iii)
upon either party*s dissolution or cessation of business; (iv) in the
event a party materially breaches any material term, condition or
representation of this Agreement or materially fails to perform any of
its material obligations or undertaking hereunder, and fails to remedy
such default within thirty (30) days after being notified in writing
by the non-breaching party of such breach or failure.
P. Special Conditions: (none - if there are special conditions,
strike this and enter below)
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SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates set
forth below, to be effective as of the ______ day of ____________________, 1999.
NATIONAL NEW HOME CO., INC.
Date Executed: _________, 1999 By: __________________________________
Title: _______________________________
BUILDER
Date Executed: ____________, 1999 By: __________________________________
Title: _______________________________
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Schedule A
Applicable Builder Markets / Initial Basic Service Fees
9
Schedule B
Custom Web Site Detail and Specifications
10
Schedule C
Sample Notification Letter
Date
To: Company - "Third-Party Collector and/or National Listing Site"
From: NNH and Builder
Re: Notification
To whom it may concern,
This letter is to serve as notification for Company to cease and desist from
collecting [Builder's] current inventory information and/or displaying such
information on [National Listing Site]. [Builder] has retained XxxxXxxxxxx.xxx
as its preferred data collection partner for the collection and distribution of
its current inventory data on the Internet.
XxxxXxxxxxx.xxx
_____________________________________
By its President
Phone contact # _____________________
[Builder]
_____________________________________
By its ______________________________
Phone contact # _____________________
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