EXHIBIT 10.22
LICENSE AGREEMENT
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THIS LICENSE AGREEMENT ("Agreement") is entered into as of the 27th day of
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November, 1996 by and among HomeOwners Mortgage and Equity, Inc., a Delaware
corporation ("Home"), and Builders Square, Inc., a Delaware corporation
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("Builders Square").
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RECITALS
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A. Home is a consumer finance company in the business of originating,
purchasing, selling and servicing permanent, fixed term, home improvement and
other secondary priority mortgage and unsecured loans for owners of residential
real property.
B. Builders Square is a multi-store retailer selling home improvement and
repair building materials, hardware and related merchandise to consumers and
commercial contractors and providing installed sales of home improvement and
repair projects on a turn-key basis to its customers.
C. Builders Square desires to grant a license to Home, and Home desires to
accept a license from Builders Square, to allow Home to enter certain Builders
Square stores for the limited purposes described in this Agreement and otherwise
in accordance with this Agreement.
In consideration of the premises and the mutual promises, covenants, and
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. DEFINITIONS. For purposes of this Agreement, the following terms shall
have the following definitions:
"Builders Square customers": All customers of Builders Square which buy
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Builders Square's goods or services directly from Builders Square in
connection with any of the Stores.
"Designated employees": Employees of Builders Square selected by Builders
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Square in its sole discretion.
"Home's Loan Products" or "Loan Products": All terms, conditions,
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features and other descriptions of fixed term home improvement loans
offered by Home to customers of Builders Square that own residential real
property and are qualifying loans in all respects with the FHA Title I
mortgage insurance program and/or Home's conventional underwriting,
closing and funding criteria, as the same is revised or modified from time
to time, inclusive of unsecured loans up
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to $7,500.00, secured "no equity required" loans of up to $25,000.00, and
secured loans of over $25,000.00 with equity requirements. Loan Products
include permanent, fixed term loans for the purpose of financing the
purchase of materials or installed sales projects on a turn-key basis.
"Kiosk": A kiosk with an automated loan machine which includes certain
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computer hardware and software developed and manufactured by Affinity
Technology Group, Inc. ("Affinity"), which originates, processes, closes
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and funds loans in an automated fashion.
"Loan Documents": Any and all loan documents relating to any of Home's
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Loan Products or the MoneyLink financing program, including, without
limitation, any and all loan agreements, promissory notes, deeds of
trusts, mortgages, financing statements, disclosures, notices, and any and
all other agreements, disclosures, correspondence and/or notices related
thereto.
"MoneyLink" financing program: The array of Home's Loan Products and the
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method in which such loans are offered, originated, underwritten,
approved, closed, funded and serviced for customers of Home.
"Promotional Materials": Home's informational brochures, sales counter
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brochures and displays, advertising copy, advertising banners, books,
audio tapes, and other similar materials which describe Home's Loan
Products and/or MoneyLink financing program.
2. LICENSE; TERM AND TERMINATION.
2.1 LICENSE. Upon the terms and subject to the conditions contained in this
Agreement, Builders Square hereby grants a license (the "License") to Home, and
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Home hereby accepts such a License, to enter the Builders Square stores
described on Exhibit "A" attached hereto and incorporated herein for all
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purposes (collectively, the "Stores") to (i) place Kiosks in the Stores in order
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to make available Home's Loan Products to customers of Builders Square and (ii)
otherwise allow Home to make available its Loan Products to customers of
Builders Square, in accordance with the provisions of this Agreement. The actual
location of each Kiosk within each Store shall be designated by Builders Square
in a reasonably visible and accessible space within each Store. During the Test
Period (defined in Section 2.2 hereof), and subject to availability from
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Affinity, Home shall place one (1) Kiosk in each of the particular Test Stores
(defined in Section 2.2 hereof) which are designated as containing a Kiosk on
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Exhibit "A". After the Test Period, Home shall place one (1) Kiosk in such
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Builders Square stores and at such times as will be in accordance with a
schedule to be agreed upon by Home and Builders Square prior to the end of the
Test Period, or as may be otherwise agreed upon by Home and Builders Square.
Notwithstanding any provision
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contained herein to the contrary, this Agreement shall not apply to any Builders
Square stores which are not in existence as of the date hereof.
All loans offered by Home under its Loan Products program shall be subject
to the requirements of Home's underwriting guidelines, credit standards, rates
of return and expense reimbursement standards, payment features, loan and credit
documentation requirements and other features and criteria as may be established
by Home from time to time for its Loan Products offered to customers of Builders
Square. In no event shall Builders Square have any authority, duty,
responsibility or obligation whatsoever to review any credit applicant's
information for determining their worthiness of meeting Home's loan requirements
or rendering any decision regarding the approval of a requested loan from Home.
All credit decisions shall be the sole decision and responsibility of Home.
Builders Square agrees that its designated employees shall, from time to time,
inform interested customers about available Loan Products offered by Home,
without remuneration of any kind from Home, by supplying the customers with
Promotional Materials furnished by Home and informing the customers of the
nature and benefits of Home's Loan Products.
2.2 TERM. The term of this Agreement shall commence on the date hereof and
continue through May 31, 1997 (the "Test Period"). Notwithstanding anything to
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the contrary contained herein, during such Test Period, this Agreement shall
only apply to those Builders Square stores identified on Exhibit "A" as the
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"Test Stores." Prior to the end of the Test Period, either party may terminate
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this Agreement based on either party's determination that the results achieved
during the Test Period are unsatisfactory, in that party's sole judgment and
discretion, by giving to the other party written notice of cancellation before
the end of the Test Period. In the event this Agreement is not terminated before
the end of the Test Period as described herein, this Agreement shall continue
and remain in force and effect (unless terminated as provided in this Section 2)
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with respect to all the Stores for an initial term of three (3) years following
the date of this Agreement. This Agreement shall thereafter be automatically
renewed for three (3) successive renewal terms of three (3) years each, unless
(i) either Home or Builders Square shall give to the other party at least ninety
(90) days prior written notice of its intent not to renew this Agreement prior
to the expiration of the initial three (3) year term or any three (3) year
renewal term, or (ii) otherwise terminated pursuant to any other provision of
this Section 2. For purposes of this Agreement, "term" means the Test Period,
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the initial term, and any renewal terms. Notwithstanding anything to the
contrary contained herein, should Builders Square, for any reason whatsoever,
close or cease operations at any Store, this Agreement shall ipso facto
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terminate with respect to that Store, and Builders Square shall, in such
instance, have no liability whatsoever to Home as a result of such closure or
cessation of operations.
2.3 TERMINATION. Notwithstanding the provisions of Section 2.2 hereof, this
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Agreement may be terminated as follows:
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(a) Termination by Mutual Consent. Home and Builders Square may
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terminate this Agreement at any time by mutual written consent.
(b) Termination Upon Default. Either party may terminate this Agreement
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upon default by the other party with (i) thirty (30) days prior written notice
to the other party of such party's default with respect to an obligation other
than a breach of any warranty or representation contained in Sections 11.1 or
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11.2 of this Agreement or (ii) fifteen (15) days prior written notice to the
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other party of such party's default with respect to a breach of any such
warranty or representation, unless such default is cured prior to the expiration
of the applicable notice period. Any notice of default shall contain a detailed
description of the alleged default and shall refer to the relevant provisions of
this Agreement.
(c) Termination by Notice. Either party may terminate this Agreement for
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any reason whatsoever in its sole and absolute discretion by giving the other
party notice of its election to terminate. The termination shall be effective
one (1) year from the date of the notice of termination (the "Notice Termination
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Date"). The effect of a notice of termination is to change the expiration date
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of the term of the Agreement to the Notice Termination Date; in all other
respects, this Agreement will remain in full force and effect until the Notice
Termination Date unless this Agreement is terminated earlier under subparagraphs
(a) or (b) of this Section.
(d) Damages Limited. In no event shall either party hereunder be liable
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for any special, indirect, incidental, consequential or exemplary damages that
may be incurred or claimed to be incurred by the other party, and each party
hereby waives its rights to recover any such damages from the other party.
3. Operation of Kiosks.
3.1 GENERAL; OWNERSHIP; TAXES. Each Kiosk shall be no larger than six feet
(6') by eight feet (8') in dimension. The Kiosks shall not be physically affixed
to the Stores. Builders Square may move each Kiosk to a different location
within the same Store (which different location is mutually acceptable to
Builders Square and Home), at Builders Square's sole cost and expense, no more
than once in every calendar year, unless otherwise agreed by the parties. The
Kiosks, and all personal property located on, in or at the Kiosks, shall be
owned by Home, and Home shall pay any and all personal property taxes and any
other taxes that may be levied by any governmental authority or quasi-
governmental authority with jurisdiction in connection with the Kiosks, the
operation or use of the Kiosks (including, without limitation, the loan and
financing services to be offered by Home to Builders Square customers as
described in this Agreement), and/or the personal property contained on, in or
at the Kiosks.
3.2 MAINTENANCE; REPAIRS. Any and all repairs and maintenance in connection
with the Kiosks shall be the obligation of Home; Builders Square shall have no
obligation
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whatsoever to repair or maintain any of the Kiosks. Home shall keep and maintain
the Kiosks clean and in good working condition at all times during the term
hereof at Home's sole cost and expense.
3.3 ELECTRICITY AND TELEPHONE SERVICE. Builders Square shall make available
reasonable lighting and power for Home to operate and maintain the Kiosks and
agrees that Home may obtain telephone service for the Kiosks; provided that (i)
all telephone lines and service used by Home in connection with the Kiosks shall
be at Home's sole cost and expense, (ii) Builders Square shall not be
responsible for the costs of extending any utility lines or utilities, and (iii)
Builders Square shall not be responsible for, and shall not incur any liability
to Home or any other person or entity as a consequence of, any electrical
failure, power outage or telephone service failure which may affect the Kiosks
and/or their operation.
3.4 SIGNS; NOISE. Home shall not place or erect any directional,
informational or other signs or banners (collectively, the "Signs") in
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connection with the Kiosks at the Stores without the prior consent of Builders
Square (including, without limitation, with regard to the size, color,
dimensions, composition, and method of installation of the Signs). Any and all
signs shall be the sole cost and expense of Home. Home shall comply with all
Applicable Laws in connection with the Signs. All Signs shall be removed by Home
on the termination or expiration of this Agreement. In addition, no
loudspeakers, horns, flashing lights, music, public announcement system, or
other similar loud or disruptive noise or communication shall be used by Home in
connection with any of the Kiosks.
3.5 HOURS OF OPERATION; ACCESS. Home agrees to operate the Kiosks during the
same hours and days that the relevant Stores are open to the public. Home's
employees shall have access through the Stores to the Kiosks during the term
hereof for purposes of maintaining the Kiosks; provided, however, that (i) such
access through the Stores shall be restricted to normal business hours on days
when the Stores are otherwise open to the public, and (ii) the activities of
Home and its employees shall not interfere with the normal activities of
Builders Square or its employees or customers. Builders Square shall make
available reasonable work space surrounding the Kiosks for Home's employees to
perform the services described in this Agreement.
4. COVENANTS.
4.1 AFFIRMATIVE COVENANTS OF HOME. During the term of this Agreement, Home
agrees to and acknowledges the following affirmative covenants of Home, in
addition to any other covenants of Home in this Agreement:
(a) During the Test Period, Home shall offer its Loan Products to
customers of Builders Square as provided in this Agreement only in connection
with the Test Stores. After the Test Period, Home shall offer its Loan Products
to customers of
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Xxxxxxxx Xxxxxx as provided in this Agreement in connection with the Stores in
accordance with a schedule to be agreed upon by Home and Builders Square prior
to the end of the Test Period.
(b) Home will continuously provide each Store (subject to the
provisions of Section 4.1(a) hereof) with an ample supply of Promotional
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Materials for use by Builders Square in Builders Square's sole discretion, all
of which Promotional Materials shall accurately and adequately describe Home's
Loan Products.
(c) Home will schedule and present training classes, seminars and
conferences at times and in locations as mutually agreed by Builders Square and
Home to adequately train the designated employees of Builders Square to use the
Loan Products of Home and to effectively inform their respective customers of
the benefits of Home's Loan Products. The training will be in accordance with
the procedures set forth in Part Two of the ringbinder captioned The MoneyLink
Book furnished to Builders Square as an appendix to this Agreement and as the
same may be amended and modified from time to time, provided such an amended or
modified version is furnished by Home to Builders Square and their designated
employees, and provided, further, that all modifications and amendments shall be
subject to the reasonable approval of Builders Square, to the extent such
modifications or amendments may affect the rights, obligations or duties or
Builders Square or its employees. Home's training and training materials shall
also be consistent with the terms of this Agreement, including Exhibit "B"
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hereto. For the initial term of this Agreement, this training will be provided
by Xxxxxx Xxxxxxxxxxxxx and HomeTech Information Systems, Inc. on behalf of Home
and will include such additional topics as are mutually agreeable between the
parties and Xxxxxx Xxxxxxxxxxxxx and HomeTech Information Systems, Inc.
Notwithstanding anything to the contrary set forth in this Agreement or in the
training materials, it is expressly understood and agreed that Builders Square's
designated employees shall not be expected or have any obligation to perform any
tasks under or in connection with this Agreement other than the tasks set forth
in Exhibit "B" attached hereto and made a part hereof for all purposes, and Home
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agrees to provide adequate training in the performance of such tasks at the
foregoing-described training classes, seminars and conferences.
(d) Home's Loan Products shall comply in all respects with the FHA Title
I Home Improvement Loan Program and such other conventional loan programs as it
deems necessary in its sole discretion to make credit available to customers of
Builders Square considered to be within Home's grades as "A" through "C" credit
quality loans, using Home's underwriting and credit scoring criteria and
systems.
(e) During the term hereof, Home agrees not to offer or make available
its Loan Products or MoneyLink financing program through any home-improvement
retail store operated by The Home Depot, Inc., Lowe's Co., Inc., Xxxxxx, Inc.,
or any affiliate or subsidiary of the foregoing, that is located within a twenty
(20) mile radius of any
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Store. Notwithstanding the above, (i) the restriction described in the
immediately preceding sentence shall not apply in connection with any Builders
Square stores that do not exist as of the date of this Agreement, and (ii) Home
may offer its Loan Products in any of the aforementioned stores, but only (A)
with regard to unsecured loans, not secured loans, and (B) through the use of a
Kiosk or similar automated technology.
4.2 AFFIRMATIVE COVENANTS OF BUILDERS SQUARE. During the term of this
Agreement, Builders Square agrees to the following affirmative covenants:
(a) Builders Square will allow Home to offer its Loan Products and
MoneyLink financing program in all of the Stores, in accordance with the terms
of this Agreement.
(b) Builders Square will direct its designated employees to inform
Builders Square customers of the availability of, and benefits provided by,
Home's Loan Products and its MoneyLink financing program; provided, however,
that Builders Square's designated employees shall not be required or expected to
undertake any tasks with respect to Home's Loan Products or the MoneyLink
financing program other than those set forth in Exhibit "B" hereto.
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(c) Builders Square will display Home's Signs (in accordance with
Section 3.4 hereof), point-of-sale marketing displays and Promotional Materials
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in its Stores, provided that the amount and general appearance of the marketing
displays and Promotional Materials are subject to Builders Square's prior
approval.
(d) Builders Square will direct its designated employees to participate
in training classes, sessions and conferences provided by Home and Home's
selected training representatives and vendors. Notwithstanding any provision to
the contrary contained herein, however, Builders Square shall not be required to
hire additional employees or pay any overtime to any employees in order to
afford such employees the opportunity to attend such classes, sessions and
conferences, or to otherwise satisfy Builders Square's obligations hereunder.
(e) The license granted herein to Home shall be non-exclusive, except
that Home's rights granted herein to offer Builders Square customers at the
Stores permanent, fixed-term loans for the purposes of financing the purchase of
materials or an installed sale project on a turn-key basis shall be exclusive to
the extent specified herein. During the term hereof, Builders Square shall not
permit itself or any other third party (except Home) to offer such permanent,
fixed-term Loan Products as described in the immediately preceding sentence at
the Stores. However, nothing contained herein shall be construed to prohibit
Builders Square from offering, either itself or through any other third parties,
any loan products that are of a revolving-term nature, such as credit card sales
or commercial revolving line of credit programs,
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Square Plus, regular private label cards, business credits, or revolving third
party credit cards, at any of the Stores.
5. ADVERTISING.
5.1 Home agrees to provide joint marketing and/or advertising to promote its
Loan Products, Kiosks, and/or MoneyLink financing program at the Stores and
Builders Square's products and services in connection therewith. Home agrees
that such marketing and advertising will be conducted jointly with Builders
Square, in accordance with the provisions of this Article 5 and this Agreement.
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The content of the joint marketing and advertising and the expenditure of funds
related thereto shall be subject to the prior joint approval of Home and
Builders Square. Except as provided below, Home agrees that the amount of its
participation in advertising and promotion as described in this Section will, on
a quarterly basis, be equal to (but may in Home's sole discretion exceed) one
percent (1%) of the gross amount of all loans made by Home through Home's
MoneyLink financing program, through the Kiosks or otherwise, to customers of
Builders Square during the preceding quarter (the "Advertising Budget"). Home is
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not required to contribute any funds toward advertising and marketing during the
Test Period; Home's contribution during the first (1st) quarter following the
Test Period will be equal to one percent (1%) of the gross funding of all loans
made by Home to Builders Square customers during the Test Period. Home's
contributions to marketing and advertising as described in this Section shall be
in addition to Home's costs and expenses for the preparation of Promotional
Materials to be used in the Stores (excluding advertising copy), which costs and
expenses are Home's sole responsibility and shall not be part of the Advertising
Budget.
5.2 Home agrees to provide Builders Square and its auditors with copies of
such financial information as Builders Square or its auditors may reasonably
request to establish the amount of the Advertising Budget and to verify the
required amount of Home's expenditures relating to the Advertising Budget. Home
shall also provide Builders Square with [monthly] [quarterly] written reports,
in form and substance acceptable to both parties, describing its marketing and
advertising during the reporting period, which reports shall include an
itemization of the amounts spent by Home (including copies of invoices) in
connection with such marketing and advertising and a copy of the actual
advertising copy or other marketing materials. Home will fund its participation
in the marketing and advertising described above by making payments directly to
third party vendors of such services. Notwithstanding anything contained herein
to the contrary, neither party hereto shall issue any publicity or press release
regarding the terms and conditions of its contractual relations with the other
party hereunder, and neither party shall refer to this Agreement in the
solicitation of business without obtaining the other party's prior written
approval.
5.3 Home shall not use the Kiosks, Promotional Materials or the MoneyLink
financing program to advertise, promote, refer or offer for sale the goods or
services of
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any third parties without the prior written consent of Builders Square, and Home
agrees to pay to Builders Square fifty percent (50%) of any fees, commissions or
other payments Home receives in connection with any such approved third party
advertisements, promotions, referrals or offers.
6. SERVICE MARKS, TRADEMARKS AND TRADE NAMES. Neither party shall use any of
the service marks, trademarks or trade names (collectively, the "Marks") of the
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other party without such party's prior written consent and only under the terms
of any such consent; provided, however, that Builders Square may not
unreasonably withhold its consent to Home's use of Builders Square's name and
address in Home's Promotional Materials and advertising for the purpose of
informing potential customers of the Stores at which Home's Loan Products are
available. Each party will comply with all rules and procedures pertaining to
the Marks prescribed by the owner of such Marks as may be amended from time to
time (collectively, the "Rules"). Any unauthorized use of the Marks will
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constitute a default under this Agreement. Upon the termination or expiration
of this Agreement, each party will immediately discontinue any and all uses of
the other party's Marks.
7. EXPENSES. Home shall be solely responsible for all costs and expenses in
connection with the Kiosks except as provided in Section 3.3 hereof. Home shall
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also be solely responsible for all costs and expenses in connection with the
Promotional Materials, including, without limitation, the creative design,
production and printing of the Promotional Materials (in accordance with Article
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5 hereof).
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8. HOME RESPONSIBILITIES.
8.1 LOAN PRODUCTS. Home will be solely responsible for creating, modifying
and maintaining Home's Loan Products to be offered to customers of Builders
Square for the purpose of enhancing the retail sales of Builders Square at the
Stores. Home shall be solely responsible for explaining and selling its Loan
Products to Builders Square customers (except only to the extent of the
participation of Builders Square's designated employees as described in Exhibit
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"B"), and processing, closing, funding, and servicing all loans thereunder;
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Builders Square shall have no such responsibilities (except only to the extent
described in Exhibit "B"). Without limiting the foregoing, it is expressly
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understood and agreed that (i) all Promotional Materials shall state in a manner
approved by both Builders Square and Home that Home is the sole lender with
respect to Home's Loan Products, that Home is not affiliated with Builders
Square, and that Builders Square has no liability or responsibility with respect
to Home's Loan Products, and (ii) Home shall provide, either in all Loan
Documents or as a separate disclosure that shall constitute a Loan Document and
shall be provided at the same time as the other Loan Documents, a notice that
Home is the sole lender with respect to Home's Loan Products, that Home is not
affiliated with Builders Square, and that Builders Square has no liability or
responsibility with respect to Home's Loan Products.
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8.2 LOAN PROCESSING, CLOSING AND FUNDING; HOME REPRESENTATIVES. Home shall
maintain sufficient facilities and staff to review adequately all loan
applications of Builders Square customers and process, close and fund all
approved applicants in an expedient and timely manner, subject to the receipt of
any requested documentation from and the cooperation of, customers of Builders
Square. All of the persons described in the foregoing sentence shall be Home
employees or representatives (collectively, the "Home Representatives"). Home
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shall be solely responsible for arranging, directly or through third-party
employers, for all compensation, workers' compensation, disability and taxes
applicable to the Home Representatives. Home Representatives shall not
represent that they are employees or agents of Builders Square. The Home
Representatives shall comply with all rules and regulations that are applicable
to Builders Square employees at the Stores whenever they are working at a Store.
In addition, Builders Square reserves the right to deny access to any Store to
any member of the Home Representatives who, in Builders Square's sole opinion,
is disruptive, disorderly, under the influence of alcohol or drugs, harasses
customers or Builders Square employees, or causes damages to persons or property
located within the Store.
8.3 LOAN REPORTING. Home will furnish Builders Square with hardware and
software in thirty-three (33) regional installed sales offices and the Builders
Square home offices, consisting of thirty-four (34) personal computers as
specified in Exhibit "C" attached hereto, together with software that allows the
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personal computers to furnish Builders Square with the hereafter described
reports. The hardware and software will be made available on a timetable to be
agreed by the parties. Home will furnish Builders Square with three (3) reports
on a daily basis detailing (i) the number of applications received from the
previous day's activity, the loan decision by Home with respect to each
application, the borrower's name, and the originating Store location, (ii) the
number of loans funded for the previous day, the borrower's name, the loan
amount funded and the originating Store location, and (iii) the number of
approved and unfunded loans with closings pending (the "pipeline report"),
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showing the borrower's name, loan amount, status of closing and the originating
Store location. Home shall retain ownership of the hardware and software and
shall allow Builders Square to use the same free of charge for the term of this
Agreement. Home will pay shipping costs involved in delivery of the hardware
and software to each Builders Square office, and shall be responsible for any
maintenance or replacement of the same throughout the term of this Agreement.
Builders Square shall be responsible for the costs of setting up the hardware
and installation of the software. Upon termination of this Agreement for any
reason, Builders Square shall return all hardware and software to Home at
Builders Square's sole cost and expense.
9. BUILDERS SQUARE RESPONSIBILITIES. Builders Square will have no
responsibilities under this Agreement except as otherwise specifically provided
herein. Notwithstanding any other provision herein to the contrary, it is
expressly understood and agreed that Builders Square is not the lender with
respect to Home's Loan Products. Furthermore, it is understood and agreed that
Builders Square shall not in
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any way be responsible for closing, funding, servicing, collecting, qualifying
or making any loan that is a Home Loan Product, for underwriting or guarantying
any loan that is a Home Loan Product, or for investigating or verifying any
information provided by any applicant for any Home Loan Product, it being
understood and agreed that all such tasks are to be performed solely by Home.
10. RELATIONSHIP BETWEEN BUILDERS AND HOME. Home is an independent contractor
and licensee hereunder and nothing contained in this Agreement shall be deemed
or construed to create a partnership, joint venture or employee-employer or
principal-agent relationship between Home and Builders Square. Neither Home nor
Builders Square shall make any representations to any customer or any other
person or entity that implies that Builders Square is an ostensible or apparent
agent, partner or joint venturer of Home or that Home is an ostensible or
apparent agent, partner or joint venturer of Builders Square.
11. REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION.
11.1 REPRESENTATIONS AND WARRANTIES OF HOME. Home represents and warrants to
Builders Square that:
(a) Home currently possesses and shall maintain during the term of this
Agreement, all necessary or required licenses, permits, consents or approvals
(collectively, the "Licenses") required under any applicable federal, state or
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local law, regulation, code or ordinance (collectively, "Applicable Laws"), by
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the states and/or governmental or quasi-governmental agencies or political
subdivisions of such states as set forth in paragraph (a) of Exhibit "D", in
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connection with this Agreement, including the loan and financing services
offered by Home hereunder and/or the establishment and operation of the Kiosks
at the Stores.
(b) As of the date hereof, Home has applied for all necessary Licenses
required under Applicable Laws in such states as set forth in paragraph (b) of
Exhibit "D". Home shall diligently pursue the obtainment of all such Licenses
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and upon obtainment of such Licenses, shall maintain the Licenses thereafter in
good standing with the appropriate state and/or other governmental authorities.
(c) Home will, within fifteen (15) business days after the date of this
Agreement, apply for and diligently pursue all necessary Licenses required under
Applicable Laws by the states set forth in paragraph (c) of Exhibit "D". Home
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shall diligently pursue the obtainment of all such Licenses, and upon obtainment
of such Licenses, shall maintain the Licenses thereafter in good standing with
the appropriate state and/or other governmental authorities.
(d) If Home does not obtain the Licenses described in paragraphs (b) or
(c) above by the end of the Test Period, then this Agreement may be terminated
by either
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party upon written notice to the other party. In addition, if any governmental
or regulatory authority now or hereafter in existence shall disapprove of the
offering of loan and financing services by Home at the Stores or any aspect of
the performance by either party as required herein to satisfy this Agreement, or
if any such authority shall direct any party hereto to discontinue its
performance hereunder, the parties agree that this Agreement may be immediately
terminated at the election of either party by written notice, without liability
to either party hereunder.
(e) Home currently possesses and shall maintain during the term of this
Agreement sufficient financial capability to originate, close, fund and service
all qualifying loans to customers of Builders Square in accordance with the
terms of this Agreement.
(f) Home currently possesses and shall maintain during the term of this
Agreement a contract of insurance for property improvement home loans under
Title I of the National Housing Act as issued by the U.S. Department of HUD,
Federal Housing Commissioner, or in absence of such a contract if, and only if,
the same ceases to exist due to a statutory change of law, the ability to
originate, close, fund and service loans of a similar nature to loans made
available under the Title I program.
(g) Home's execution of and entering into this Agreement does not
violate or contravene any provision of any other contract or agreement to which
Home is a party.
(h) Home has no actual knowledge of any fact which would prohibit Home
from receiving the Licenses described in subparagraphs (b) or (c) above.
(i) Home shall comply with all Applicable Laws (including, without
limitation, all Applicable Laws relating to usury, installment sales, consumer
credit, billing errors, credit discrimination, debt, collection, liens,
encumbrances, and unfair, deceptive or unconscionable practices) in connection
with this Agreement and the services to be provided by Home hereunder,
including, without limitation, Home's offering, evaluating, funding, processing,
servicing, and collecting of loans, its Promotional Materials, and its Loan
Documents.
11.2 REPRESENTATION AND WARRANTIES OF BUILDERS SQUARE. Builders Square
represents and warrants to Home that, except where the consent of a landlord of
Builders Square may be required as hereinbelow described, Builders Square's
execution of and entering into this Agreement does not violate or contravene any
provision of any other contract or agreement to which Builders Square is a
party. Should any Store lease require the consent of the landlord thereunder
prior to the installation of a Kiosk or commencement by Home of the activities
herein contemplated, Builders Square agrees to use commercially reasonable
efforts to promptly obtain such consent, and Home shall have no right to enter
or use such Store pursuant to this Agreement until such consent is obtained.
-12-
11.3 INDEMNIFICATION.
(a) Home shall indemnify and hold Builders Square, its affiliates,
employees, officers, directors, representatives, and agents harmless from and
against all expenses, claims, losses, damages and liabilities (or actions,
proceedings or settlements in respect thereof) arising out of or based on (i)
any breach by Home or any agent or employee thereof of any covenant, agreement,
warranty or representation set forth in this Agreement or any covenant,
agreement, warranty or representation made to any customer in any Promotional
Materials or in any Loan Document or in connection therewith, and (ii) the
negligence, misrepresentation, fraud, recklessness, intentional misconduct or
willful act or omission of Home or any agent or employee thereof, and (iii) any
violation of law, legal deficiency, misrepresentation or omission in any
Promotional Materials or in any Loan Document, or in the offering, evaluating,
funding services and/or collection of any loans (including, without limitation,
any damages or claims arising out of or in connection with the failure by Home
to provide adequate training or guidance to Builders Square or its employees
concerning Home's Loan Products, the Loan Documents, the MoneyLink financing
program, or Applicable Laws relating thereto or to the offering of the same to
the public), and (iv) any claim by any person or entity that Home failed or
refused to provide loan or financing services to such person or entity, and (v)
any property damage, personal injury or death arising, directly or indirectly,
from any occurrence at any of the Stores in connection with the Kiosks, and (vi)
any electrical, telephone or other utility failure that may affect the Kiosks,
and shall reimburse Builders Square for any legal and any other expenses
reasonably incurred in connection with investigating and defending or settling
any such claim, loss, damage, liability or action, as incurred; provided,
however, that Home shall not be liable in any case to the extent that such
claim, loss, damage, liability or expense arises out of or is based on the gross
negligence, recklessness or intentional actions of Builders Square or any of its
agents or employees.
(b) Builders Square shall indemnify and hold Home, its affiliates,
employees, officers, directors, representatives, and agents harmless from and
against all expenses, claims, losses, damages and liabilities (or actions,
proceedings or settlements in respect thereof) arising out of or based on (i)
any fraud or willful misconduct on the part of Builders Square or any of its
employees in connection with this Agreement, or (ii) an alleged defect in
Builders Square's goods or services, but only to the extent that the particular
claim or loss is covered by a Builders Square express written warranty (the
"Builders Square Warranty") that benefits the particular Builders Square
-------------------------
customer that is involved in such claim. Notwithstanding any provision contained
herein to the contrary, including, without limitation, the immediately preceding
sentence and Section 15.10 hereof, Builders Square's indemnity described in
-------------
clause (ii) above shall expire on the earlier of the expiration date of the
Builders Square Warranty or the date of the Builders Square customer's signed
acceptance of the relevant goods and/or services of Builders Square. Builders
Square shall provide a Builders Square Warranty to each of its customers who
purchases a Builders Square's installed sales program. A
-13-
copy of the Builders Square Warranty is attached hereto as Exhibit "E" and
----------
incorporated herein for all purposes.
(c) Each party entitled to indemnification under this Section 11.3 (the
------------
"Indemnified Party") shall give notice to the party required to provide
------------------
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
------------------
becomes aware of any claim as to which indemnity may be sought, and shall permit
the Indemnifying Party to assume the defense of any such claim or any litigation
resulting therefrom, provided that counsel for the Indemnifying Party, who shall
conduct the defense of such claim or litigation, shall be approved by the
Indemnified Party, whose approval shall not be unreasonably withheld. The
Indemnified Party may participate in such defense at such party's expense;
provided, however, that the Indemnifying Party shall bear the expense of such
defense of the Indemnified Party if representation of both parties by the same
counsel would be inappropriate due to actual or potential conflicts of interest.
The failure of any Indemnified Party to give notice as provided herein shall
relieve the Indemnifying Party of its obligations under this Section 11.3 only
------------
to the extent that such failure to give notice shall materially and adversely
prejudice the Indemnifying Party in the defense of any such claim or any such
litigation. The Indemnifying Party litigation shall not be liable under this
Section 11.3 for amounts paid in settlement of any claim covered hereby if such
------------
settlement is effected without the consent of the Indemnifying Party, which
consent shall not be unreasonably withheld. No Indemnifying Party, in the
defense of any such claim or litigation, shall, except with the consent of each
Indemnified Party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release from all liability
in respect to such claim or litigation.
12. INSURANCE. Home shall, at its sole cost and expense, obtain and maintain,
throughout the term hereof, commercial general liability insurance with limits
of not less than $1,000,000 for bodily injury and $500,000 for property damage
per occurrence, protecting it and Builders Square, and Builders Square's
landlords and their respective mortgagees, against any liability that may accrue
against them or any of them on account of occurrences on or about the Stores as
a consequence of the presence of the Kiosks at the Stores, which occurrences may
result in property damage, personal injury or death. Home shall also, at its
sole cost and expense, obtain and maintain, throughout the term hereof, errors
and omissions insurance with limits of not less than $1,000,000, protecting it
(with Builders Square as a loss payee) against any liability that may accrue in
connection with Home's Loan Products, including based on breach of duty,
negligence, error, misstatement, misleading statement or omission. Home shall
provide Builders Square and its landlords with certificates of insurance
acknowledging Builders Square and its landlords as additional insureds (or loss
payee, as applicable) under said insurance policies. Such insurance shall
contain waiver of subrogation clauses and shall provide that the same may not be
canceled unless thirty (30) days prior written notice of such cancellation is
given to Builders Square and its landlords
-14-
by the insurers. Home shall maintain the Kiosks adequately insured against
casualty or damage, and Builders Square shall have no liability to Home for any
losses or damages suffered by the Kiosks.
13. SECURITY. Home shall provide any and all security that it may desire in
connection with the Kiosks and the personal property located on or in the
Kiosks; Builders Square shall have no liability or responsibility to Home or any
other person or entity for any security in connection with the Kiosks,
regardless of whether Home elects to provide any security as described in this
Section.
14. CONFIDENTIALITY. Each party (the "Receiving Party") covenants and agrees
---------------
that, both during the term of this Agreement and at all times thereafter, it
shall not use or disclose to any other person or entity any Confidential
Information (defined below) of the other party (the "Disclosing Party"), shall
----------------
not in any other way publicly or privately disseminate any Confidential
Information, and shall not help anyone else to do any of these things, except
(i) to the Receiving Party's employees to whom disclosure is necessary for
proper use of the Confidential Information in accordance herewith; (ii) to any
third party authorized in writing by an officer of the Disclosing Party to
receive such disclosure; and (iii) as may be required by law. "Confidential
Information" shall mean all information disclosed by the Disclosing Party to the
Receiving Party, not generally known to the public, that relates to the business
or customers of either party, including but not limited to any information
regarding Home's customers and/or Builders Square customers. All Confidential
Information shall be considered trade secrets of the Disclosing Party and the
Receiving Party shall treat such Confidential Information as it would treat its
own Confidential Information.
15. MISCELLANEOUS.
15.1 GOVERNING LAW AND VENUE. This Agreement shall be governed by and shall be
construed and enforced in accordance with the laws of the State of Texas
applicable to agreements entered into and performed within such State, but
without reference to the conflicts of law rules of such State, and suits brought
in connection with this Agreement shall be brought in the courts of Bexar
County, Texas.
15.2 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of and
be binding upon both of the parties hereto and their respective successors and
permitted assigns. Neither party shall assign this Agreement nor delegate any
obligations hereunder without the prior written consent of the other party which
consent may be withheld at each party's sole discretion. In this regard, Home
acknowledges that Builders Square is relying on the skill and character of Home
in the performance of this Agreement.
15.3 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the parties hereto with respect to the subject matter hereof, and this Agreement
-15-
supersedes and renders null and void any and all other prior oral or written
agreements, understandings, or commitments pertaining to the subject matter
hereof. No variation hereof shall be deemed valid unless in writing and signed
by the parties hereto, and no discharge of the terms hereof shall be deemed
valid unless by full performance by the parties hereto or by a writing signed by
the parties hereto.
15.4 WAIVER. The failure of any party to insist upon the strict performance of
any of the terms, conditions and provisions of this Agreement shall not be
construed as a waiver or relinquishment of future compliance therewith, and said
terms, conditions and provisions shall remain in full force and effect. No
wavier of any term or any condition of this Agreement on the part of either
party shall be effective for any purpose whatsoever unless such waiver is in
writing and signed by such party. No waiver by either party of any provision or
condition of this Agreement to be performed shall be deemed a waiver of similar
or dissimilar provisions and conditions at the same time or any prior or
subsequent time.
15.5 INVALIDITY. Should any part of this Agreement, for any reason whatsoever,
be declared invalid, illegal, or incapable of being enforced in whole or in
part, such decision shall not affect the validity of any remaining portion,
which remaining portion shall remain in full force and effect as if this
Agreement had been executed with the invalid portion thereof eliminated, and it
is hereby declared the intention of the parties hereto that they would have
executed the remaining portion of this Agreement without including therein any
portion which may for any reason be declared invalid.
15.6 NOTICES. Any notices required to be delivered under this Agreement shall
be in writing and sent to the addresses or telecopy numbers set forth below. Any
party may change its address and/or telecopy number for notice purposes by
giving written notice of such change as set forth herein:
If to Home: HomeOwners Mortgage and Equity, Inc.
0000 Xxxxxx Xxxxxx Xxxx., Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxx X. Xxxxxxx, President & CEO
Telecopy: (000) 000-0000
If to Builders Square: Builders Square, Inc.
0000 Xxxxxxxxx Xxxxx
Xxx Xxxxxxx, Xxxxx 00000
Attn: Senior Vice President - Chief Financial
Officer
Telecopy: (000) 000-0000
Each such notice, request or other communication shall be effective (i) if given
by telecopier, when such telecopy is transmitted to the telecopy number set
forth in this
-16-
Section 15.6 and the telecopy machine used by the sender provides a written
------------
confirmation that such telecopy has been so transmitted or receipt of such
telecopy transmission is otherwise confirmed, (ii) if given by U.S. Mail, 72
hours after such communication is deposited in the mail for delivery by
certified or registered first class mail, return receipt requested, with the
appropriate postage prepaid, addressed as set forth in this Section 15.6, (iii)
------------
if delivered by overnight courier service, when such notice is actually received
at the address set forth in this Section 15.6 as recorded by such overnight
------------
courier service or (iv) if given by any other means, when actually received at
the address set forth in this Section 15.6.
------------
15.7 CAPTIONS. The captions contained in this Agreement are for convenience of
reference only and shall not control or affect the meaning or construction of
any of the provisions of this Agreement.
15.8 COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which taken together shall
constitute one and the same instrument.
15.9 ATTORNEYS' FEES. If either party is required to retain the services of
any attorney to enforce or otherwise litigate or defend any matter or claim
arising out of or in connection with this Agreement, the prevailing party shall
be entitled to recover from the other party, in addition to any other relief
awarded or granted, its reasonable costs and expenses (including, without
limitation, reasonable attorneys' fees and reasonable expert witnesses' fees)
incurred in such proceeding.
15.10 SURVIVAL. The obligations of the parties set forth in Sections 11.3
-------------
(except as otherwise expressly provided in Section 11.3(b)), 14 and 15.9 shall
--------------- -- ----
survive the termination or expiration of this Agreement.
15.11 AMENDMENT. This Agreement may be amended or modified at any time and in
all respects, and may be waived as to any provisions, only by an instrument in
writing executed by all parties hereto.
15.12 AUTHORITY. Each person who executes this Agreement below on behalf of the
indicated party represents that he or she has obtained all consents, approvals,
and authority necessary to execute this Agreement on behalf of said party.
15.13 NO THIRD PARTY BENEFICIARIES. There are no third party beneficiaries of
this Agreement, it being the intention of the parties that this Agreement is for
the exclusive benefit of the parties hereto and for no one else.
-17-
IN WITNESS WHEREOF, HOME AND BUILDERS SQUARE have executed this Agreement
as of the date first set forth above.
HOMEOWNERS MORTGAGE AND EQUITY, INC.
ATTEST:
BY:/s/ Xxxx X. Xxxxxx BY: /s/ Xxxx X. Xxxxxxx
--------------------- --------------------------------------
NAME:Xxxx X. Xxxxxxx
------------------------------------
TITLE:President/CEO
-----------------------------------
BUILDERS SQUARE, INC.
ATTEST:
BY:/s/ Xxxxx Xxxx BY:/s/ Xxxxxx X. Xxxxxxxx
---------------------- --------------------------------------
NAME:XXXXXX X. XXXXXXXX
------------------------------------
TITLE:SR. V.P/C.F.O.
-----------------------------------
-00-
XXXXX XX XXXXX (S)
(S)
COUNTY OF Xxxxxx (S)
------
Before me, the undersigned Notary Public in and for the County and State
aforesaid, personally appeared Xxxx Xxxxxxx, who upon oath acknowledged to be
------------
the President of Builders Square, a Delaware corporation, and that he/she
---------
executed the same as the act of such corporation for the purposes and
consideration therein expressed, and in the capacity therein stated.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal this 27th day of November, 1996.
---- --------
[NOTARY PUBLIC SEAL] /s/ Xxxxxxx Xxxxxxxx
---------------------
Notary Public
My appointment expires:
____________________________
STATE OF TEXAS (S)
(S)
COUNTY OF BEXAR (S)
Before me, the undersigned Notary Public in and for the County and State
aforesaid, personally appeared XXXXXX X. XXXXXXX, who upon oath acknowledged to
------ -- -------
be the SR.V.P./C.F.O. of Builders Square, a Delaware corportion, and that
---------------
he/she executed the same as the act of such corporation for the purposes and
consideration therin expressed, and in the capacity therein stated.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal this 27 day of November, 1966.
--
/s/ Xxxxx X. Xxxxxx
-----------------------
Notary Public
My appointment expires:
2-15-2001
------------------------- [NOTARY PUBLIC SEAL]
-19-
EXHIBIT A
* Designates Test Stores
BUILDERS SQUARE BY STATE
------------------------
State Store Address City, State, Zip
----- ----- ------- ----------------
ALABAMA 1554 0000 X. Xxxxxxxx Xxxxxxxxxx, XX 00000
COLORADO 1041 000 X. Xxxxxxxx Xxxx. Xxxxxxxx, XX 00000
1378 000 X. Xxxxxxx Xx. Xxxxxx, XX 00000
1379 0000 X. Xxxxxxxxx Xxxxxxxxxxx, XX 00000
1499 0000 Xxxxxxxx Xxxx. Xxxxxxxxx, XX 00000
1580 000 X. Xxxxxxx Xx. Xx. Xxxxxxx, XX 00000
1595 0000 X. Xxxxxxxxx Xxx Xxxxxx, XX 00000
FLORIDA 1009 00000 X.X. 00xx Xx. Xxxxx, XX 00000
1033 2495 Gulf to Xxx Xxxxxxxxxx, XX 00000
1313 00000 X. Xxxxxxx Xxxx. Xxxxxxx, XX 00000
1321 0000 X. Xxxxxxx Xxxx. Xxxxxx, XX 00000
1322 0000 Xxx Xx. Xxxx Xxxxx, XX 00000
1323 000 X. Xxxxxxx Xxxx. Xxxxxxx, XX 00000
1325 000 Xxxxxxxxxx Xx. Xxxxx Xxxxxxx, XX 00000
1345 0000 Xxxxxxxxx Xx. Xxxxxx Xxxxx, XX 00000
1350 00000 X. Xxxxxxxx Xx. Xxxxxxx, XX 00000
1353 0000 Xxxxxxxxx Xxxxxx Xxxx Xxx, XX 00000
1355 00000 X. Xxxxx Xxx. Xxxxxx Xxxxx, XX 00000
1369 00000 X. Xxxxxxxx 000 Xx. Xxxxx, XX 00000
1372 00000 X. Xxxxx Xxx. Xxxxx, XX 00000
1377 0000 Xxxxxxx Xxxxxxxxx, XX 00000
1382 00000 Xxxxx Xxxx. Xxxxxxxx Xxxxx, XX 00000
1397 0000 X. Xxxxxxxxxxxxx Xxxxxxx Xxxxx, XX 00000
1423 0000 X. Xxxxxxxxx Xx. Xxxxxxxxx, XX 00000
1512 0000 XX 00 X. Xxxxxxxx, XX 00000
1526 000 Xxxxxxx Xxxx. Xxxxxxxxxxx, XX 00000
1535 0000 000xx Xxx X. Xxxxxxxxxx, XX 00000
ILLINOIS 1001 000 X. Xxxxxxxx Xx. 00 Xxxxxx, XX 00000
1003 0000 X. Xxxxx Xx. Xxxxxxxx, XX 00000
1021 0000 Xxxxxxx Xxxxx, XX 00000
1043 0000 Xxxxxxxxx Xx. Xxxxxxxx, XX 00000
1311 000 X. Xxxxxxxxxx Xx. Xxxxxxxxxxx, XX 00000
1318 0000 Xxxxxxx Xxx. Xxxxxxxx, XX 00000
1332 0000 Xxxxxxxx Xxx. Xxxxxxxxx, XX 00000
1336 00000 Xxxxxxx Xx. Xxxxxxxx, XX 00000
1337 0000 X. Xxxxxx Xxx. Xxxxxxx, XX 00000
1368 000 X. Xxxxxxxxx Xxxxxx Xxxxx, Xx 00000
1376 0000 Xxxxxxxxxx Xx. Xxxxxx, XX 00000
1386 0000 Xxxxxxx Xx. Xxxxxxxxxx, XX 00000
1399 0000 Xxxxxxx Xxxxx Xxxxxxx Xxxx, XX 00000
1414 000 Xxxxx Xx 00 Xxxxxxxx, XX 00000
State Store Address City, State, Zip
----- ----- ------- ----------------
ILLINOIS 1426 0000 X. Xxxxxxxxx Xxx. Xxxxxx, XX 00000
1430 00000 Xxxxx Xxxxxx Xxxxxx Xxxx, XX 00000
1432 000 Xxxx Xxxxx Xx. Xxxxxxxxxxxx, XX 00000
1433 000 Xxxxxxx Xx. Xxxxx, XX 00000
1434 0000 X. Xxxx Xx. Xxxxxxxx, XX 00000
1520 0000 Xxxx Xx. Xxxxxxxx, XX 00000
1531 0 Xxxxxxxxxxx Xxxxx Xxxxxxxxxxx, XX 00000
INDIANA 1016 0000 Xxxx Xxxx Xx. Xxxxx, XX 00000
1017 000 Xxxxx Xxxxxx Xxxx. Xxxxxxxxxx, XX 00000
1018 0000 Xxxxxxxxx Xxxxxxxxxxxx, XX 00000
1049 0000 Xxxx 00xx Xxx. Xxxxxxxxxxxx, XX 00000
1429 0000 Xxxxxxxxxx Xxxxx Xxxxxxx, XX 00000
1480 000 X. Xxxxxxxxxx Xxxxxxxxxxxx, XX 00000
KANSAS 1320 0000 X. Xxxxxxx Xxxxxxx, XX 00000
0000 00xx X. X. Xxxxxxxxx Xxxxxx, XX 00000
1471 000 X. Xxxxx Xx. Xxxxxxx, XX 00000
1473 00000 X. 00xx Xx. Xxxxxx, XX 00000
KENTUCKY 1339 000 Xxxxxxx Xxxx. Xxxxxxxx, XX 00000
MICHIGAN 1011 0000 Xxxxxxx Xxxxxxx, XX 00000
1019 00000 Xxxxxxx Xxx. Xxxxxxxxx, XX 00000
1020 00000 0 Xxxx Xx. Xxxxxxx, XX 00000
1035 000 Xxx. Xx. X.X. Xxxxxx, XX 00000
1039 00000 Xxx Xxxx Xxxxxxxx Xxxxxxx, XX 00000
1301 0000 Xxxxxxx Xx. Xxxxxxxxx, XX 00000
1361 00000 Xxxxx Xxxx Xxxx. Xxxxx, XX 00000
1383 0000 Xxxxxx Xxxx Xx. Xxxxxxxxx, XX 00000
1398 0000 Xxxxxxx Xx. Xxxxxxxx, XX 00000
1435 0000 Xxxx 0 Xxxx Xxxxxxx, XX 00000
1436 00000 Xxx Xxxxxx Xx. Xxxxxxxxx, XX 00000
1461 0000 Xxxxxx Xx. Xxxxx, XX 00000
1490 00000 Xxxx Xxxx Xxxx, XX 00000
1528 0000 00xx Xx. X.X. Xxxxx Xxxxxx, XX 00000
1530 0000 Xxxxxxxx Xxx. Xxxxx Xxx, XX 00000
1533 0000 X. Xxxxx Xxxxxxx, XX 00000
1541 0000 Xxxxxxxxx Xxx. Xxxxxxxxx, XX 00000
1570 000 Xxxxxx X. Xxxxxxxxx Xxxxx, XX 00000
1578 00000 Xxxx Xx. Xxxxxx Xxxxxxxx, XX 00000
1598 0000 00xx Xxxxxx Xx. Xxxxxxx, XX 00000
State Store Address City, State, Zip
----- ----- ------- ----------------
MISSOURI 1013 0000 Xxxxxx Xx. Xxxxxxxxx, XX 00000
1394 00000 Xxxxxxxxxx Xx. Xx. Xxxxx, XX 00000
1458 00000 Xxxxxxx Xxxxx Xxxxxx Xxxx, XX 00000
1459 00000 Xxx 00 X. Xxxxxx Xxxx, XX 00000
1537 00000 Xx. Xxxxxxx Xxxx Xxxxxxxxx, XX 00000
1557 00000 X. Xxxxxxxxxx Xxxxxxxx, XX 00000
1579 0000 X. Xxxxxxxxx Xxxxxxxxxxx, XX 00000
1589 0000 Xxxxxxxxxx Xxx. Xx. Xxxxx, XX 00000
NEW JERSEY 1396 0000 X. Xxxxxxxxxx Xxxxxxxxxxxx, XX 00000
1588 000 Xxxxxxxx Xxx Xxxxxxxx, XX 00000
NEW MEXICO 1495 00 Xxxxx Xxxxxx XX Xxxxxxxxxxx, XX 00000
NEVADA 1439 0000 X. Xxxxxxxxxx Xxx Xxxxx, XX 00000
NEW YORK 1304 0000 Xxxxxxxxx Xxxxxxxxxxx Xxx, XX 00000
0000 Xxxxxxxx Xxxxxx Xxx, Xx 00 X. Xxxxxxxx, XX 00000
1331 0000 Xxxxxxxxx Xx. Xxxxxxxx, XX 00000
1380 00 X. Xxxxxxxx Xxxx. Xxxxxxx Xxxx, XX 00000
1385 000 Xxxxxxxx Xxx Xxxxxxx Xxxxx, XX 00000
1560 0000 Xxxxxxx Xxx. Xxxxxxx, XX 00000
1567 000 Xxx Xxxxxx Xxxx. Xxxxxxxxx, XX 00000
OHIO 1025 0000 Xxxxx Xx. Xxxxxxxxxxxx, XX 00000
1306 0000 Xxxxxxxx Xxxx. Xxxxxxxxxx, XX 00000
1343 0000 X. Xxxxxx Xx. Xxxxxxxx, XX 00000
1364 0000 Xxxxxxx Xx. Xxxxxxxx, XX 00000
1392 0000 Xxxxxxxx Xxx. Xxxxxxxxxx, XX 00000
1441 0000 Xxxxxx Xxxxxxx, Xxxx X Xxxxxx, XX 00000
1463 0000 Xxxxxxx Xxx. Xxxxx, XX 00000
1465 0000 Xxxxxxxx Xx. Xxxxxx, XX 00000
1486 000 Xxxx Xxx. Xxxxxxxx Xxxxx, XX 00000
1489 00000 Xxx. Xxxxx Xxxxx Xxxxx, XX 00000
1513 0000 Xxxxxxxx Xx. Xxxxxxxx, XX 00000
1527 0000 Xxxxxxx Xxx. Xxxxxx, XX 00000
1542 0000 Xxxxxx Xxxxxx Xxxx, XX 00000
1566 0000 Xxxxxx Xxxxx Xx. Xxxxxxxx Xxx, XX 00000
1572 00000 Xxxxxxxx Xxxxxxx Xxxxxxx, XX 00000
1592 0000 X. Xxxxxx-Xxxxxxxxxx Xxxxxxxx, XX 00000
OKLAHOMA 1388 0000 X. 00xx Xx. Xxxxx, XX 00000
1440 0000 X. Xxxxxx Xxxxxxxx Xxxx, XX 00000
1442 000 X. Xxxxxxxx Xxxxx, XX 00000
1456 0000 X.X. 00xx Xx. Xxxxxxxx Xxxx, XX 00000
State Store Address City, State, Zip
----- ----- ------- ----------------
OREGON 1464 0000 X.X. 00xx Xxx. Xxxxxxxx, XX 00000
1466 0000 X. Xxxxxx Xxxxxx Xxxxxxxx, XX 00000
PENNSYLVANIA 0000 Xx. 00 Xxxxxxxxxxxx Xxxxxx Xxxxx, XX 00000
1358 000 Xxxxxxxx Xx. Xxxxxxxxx, XX 00000
1359 000 Xxxx Xxxx. Xxxx xx Xxxxxxx, XX 00000
1384 0000 Xxxxxxxxx Xx. Xxxxxxxxxx, XX 00000
1448 0000 Xxxx Xxxx. Xxxxxxxx Xxxxx, XX 00000
1488 0000 XxXxxxxx Xx. Xxxxxxxxxx, XX 00000
1510 0000 X. Xxxxxxx Xxx. Xxxxxxxxx, XX 00000
1558 000 Xxxxxx Xx. Xxxx, XX 00000
1565 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx, XX 00000
1573 0000 Xxxxx Xx, 000 Xxxx, XX 00000
1574 0000 Xxxxxxxx Xxxx Xxxx Xxxxxxx, XX 00000
PUERTO RICO 0000 Xxx Xxxxxxx, XX 0 XX 00.0 Xxxxxxxx, XX 00000
0000 Xxxxxxxxxxx Xxx 0000 Xxx Xxxx, XX 00000
0000 Xxxxx Xxxx 00, Xxx 00 Xxxxxx, XX 00000
1309 0000 Xxxx #0 Xxxxxxx, XX 00000
1310 0000 Xxxx #0 Xxxxxxxx, XX 00000
0000 Xx Xxxxx Xxxxxxxxxx Xxx Xxxxx, XX 00000
TEXAS * 1005 0000 XX 0000 Xxxxxxx, XX 77070(KIOSK)
* 1006 00000 X-00 X. Xxxxxxxxx, XX 77380(KIOSK)
* 1007 0000 Xxxxxxxx Xxxx Xxxxxxxx, XX 00000
1008 0000 Xxxxx Xxxx. Xxxxxxxx, XX 00000
1030 00000 Xxxxxxx X. Xx Xxxx, XX 00000
1031 000 Xxxxxxx Xxxx, Xxx X Xx Xxxx, XX 00000
1032 0000 Xxxxxxx Xxx Xxxxxxx, XX 00000
* 1036 0000 XX Xxxx 000 Xxx Xxxxxxx, XX 00000
* 1340 00000 XX 000 X. Xxx Xxxxxxx, XX 00000
1341 000 X. Xxxxx 00 XxXxxxx, XX 00000
* 1344 00000 X. Xxxx Xxxxxxx, XX 00000
* 1346 0000 XX 00 Xxxxx Xxx Xxxxxxx, XX 78218(KIOSK)
1348 0000 Xxxx Xxxxx Xxxxxxxxxxx, XX 00000
* 1351 00000 Xxxx Xxxxxx Xx. Xxxxxxx, XX 00000
* 1373 0000 XX Xxxxxxxx Xxx Xxxxxxx, XX 00000
* 1401 000 Xxxxxxxxxx, 000 Xxx Xxxxxxx, XX 00000
1406 0000 00xx Xx. Xxxxxxx, XX 00000
* 1409 4645 Beechnut Xxxxxxx, XX 00000
* 1411 00000 Xxxx Xxxx Xxxxxxx, XX 00000
* 1421 0000 Xxxx Xxxx X. Xxxxxxx, XX 00000
1422 0000 Xxxxxxx Xxxx. Xxxxxx, XX 00000
1561 0000 X. Xxxxx Xxxxxx Xxxxxx Xxxxxxx, XX 00000
1583 0000 000 X, 0 Xxxxxx, XX 00000
1584 00000 X. XxXxx Xxxxx. Xxxxxx, XX 00000
1590 0000 Xxx Xxxxxxxx Xxxxxx, XX 00000
VIRGINIA 1515 0000 Xxxxxxxx Xxxxx Xxxxxxxx Xxxxx, XX 00000
State Store Address City, State, Zip
----- ----- ------- ----------------
WISCONSIN 1362 0000 X. Xxxxxxxx Xx. Xxxxxx, XX 00000
1393 000 X. Xxxxxxx Xx. Xxxxxxxxx, XX 00000
1483 000 Xxxx Xxxx Xxx. Xxxxxxxxx, XX 00000
1487 0000 X. Xxxxxxxxxx Xxxx Xxxxx, XX 00000
1523 00000 X. Xxxxxx Xxxxxx Xxxxxxxxx, XX 00000
EXHIBIT "B"
TASKS TO BE PERFORMED BY BUILDERS SQUARE EMPLOYEES
In any instance where Builders Square is acting as a contractor to the
customer, the following procedures (in the sequence they are shown below) shall
apply to the employee(s) or representative(s) of Builders Square communicating
with the customer.
1. Builders Square shall determine the nature of the improvements and/or repairs
being sought by the customer to their residence by discussing the same with the
customer.
2. The customer shall be asked by Builders Square how they plan to pay for the
project.
3. The customer shall be shown by Builders Square the Authorized MoneyLink
Contractor Certificate which evidences that Builders Square is authorized to
introduce the customer to Home, inc. and its MoneyLink financing programs.
4. Builders Square shall discuss with the customer other projects that are
similar to the project the customer is inquiring about and their range of costs,
including the total prices of the comparison projects and the amount of monthly
payments for the prices if the projects were financed by Home, inc.
5. Builders Square shall explain to the customer the advantages of using Home,
inc.'s MoneyLink financing programs as explained in Home inc.'s Promotional
Materials furnished at the "point of purchase/sale" in the stores of Builders
Square, including pointing out to the customer the possibility of upgrades in
the project and/or allowing a more comprehensive project to be considered by the
customer as a result of using a MoneyLink loan offered by Home, inc.
6. At any time when the customer asks Builders Square the question, "What is the
interest rate for the loan?", Builders Square shall respond in a manner
consistent with the suggested responses contained on Page 19, in Part Two, The
MoneyLink Book.
7. Builders Square shall provide the customer with a MoneyLink brochure and
explain the features offered to the customer by Home, inc.'s loans, as set forth
in the brochure. Builders Square shall ask the customer to fill out the
"Preliminary Credit Worksheet" form contained in the brochure in the event the
customer is interested in requesting a loan from Home, inc. (THE FORM MUST BE
----------------
FILLED OUT BY THE CUSTOMER(S) AND SIGNED WITHOUT ANY ASSISTANCE FROM BUILDERS
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SQUARE)
------
8. Builders Square shall offer to fax the "Preliminary Credit Worksheet" to
Home, inc. on behalf of the customer.
Page Two
Exhibit "B"
9. On a customer's request for a proposal for Builders Square's installed sales
with Home, inc. financing, Builders Square shall prepare a written job proposal
covering Builders Square's installed sales with financing by Home, inc. for the
customer's review and acceptance. Upon the customer's signature accepting such
job proposal, Builders Square shall send a copy of the job proposal to Home,
inc. via facsimile, with the name of the customer and the relevant Builders
Square store set forth on the job proposal. Any financing by Home, inc. shall be
subject to Home, inc.'s approval of the loan to the customer.
THE FOLLOWING PROCEDURES AND RESPONSES ON THE PART OF BUILDERS SQUARE ARE
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PROHIBITED BY HOME, INC.:
------------------------
1. Any statement or representation by Builders Square to the customer that
Builders Square is the lender, or makes any decision on a customer's request for
a loan from Home, inc., including, but not limited to, the approval or denial of
the loan, or the setting of its terms and conditions.
2. Any statement or representation by Builders Square to the customer regarding
the rate of interest, fees or other charges that will be incurred by the
customer on an approved loan from Home, inc., or the terms and conditions under
which Home, inc. will approve a loan to a customer, or the probability that
Home, inc. will approve a loan to the customer.
3. Builders Square filling out the "Preliminary Credit Worksheet" for the
customer.
4. Builders Square using (or providing to any third party) any information
contained in the customer's "Preliminary Credit Worksheet" for any purpose other
than transmitting the same by fax or mail to Home, inc.
5. Builders Square using (or providing to any third party) any of the training
materials furnished by Home, inc. for any purpose other than its own use in
informing customers about Home, inc. and its MoneyLink financing programs.
IN THE EVENT THAT CLARIFICATION OF THE MATTERS SET FORTH ABOVE IS NECESSARY, THE
CONTENTS OF PART TWO, THE MONEYLINK BOOK ("PART TWO") MAY BE REFERRED TO BY THE
PARTIES. HOWEVER, NOTWITHSTANDING ANY PROVISION TO THE CONTRARY HEREIN OR
OTHERWISE, (A) THE TERMS OF THIS EXHIBIT SHALL GOVERN TO THE EXTENT OF ANY
CONFLICT BETWEEN THIS EXHIBIT AND PART TWO, AND (B) PART TWO SHALL BE REVISED BY
HOME, INC. IN ACCORDANCE WITH THE PROVISIONS OF EXHIBIT "B-1" ATTACHED HERETO
AND INCORPORATED HEREIN FOR ALL PURPOSES.
[LETTERHEAD OF HOME, INC.]
EXHIBIT "B-1"
-------------
November 25, 1996
Xx. Xxx Xxxxxxxx (Via Fax #000-000-0000)
Xx. Xxxx Xxxxxxx " "
Builders Square, Inc.
0000 Xxxxxxxxx Xxxxx
Xxx Xxxxxxx, Xxxxx 00000
Xxxx Xxxxxxxx Xxxxxx (Via Fax #000-000-0000)
Fulbright & Xxxxxxxx
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxx 00000
Re: Changes (in process) to the MoneyLink Book
Dear Cal, Xxxx and Xxxx:
The last draft of the License Agreement prepared by Xxxx on November 8th
provides under paragraph 4.1(c) that Home will furnish Builders Square with any
modifications it intends to make to The MoneyLink Book, of which Part Two is
incorporated in the License Agreement as an appendix. We have finished a review
of The MoneyLink Book for purposes of its intended use as a part of the training
we will be providing the designated employees of Builders Square and in
preparation of Exhibit "B" to the License Agreement. Accordingly, the following
modifications and updates will be included in the versions used for the training
of the designated Builders Square employees:
PART ONE, PAGE 12. This section will be updated with the changes related to
------------------
branch offices of Home, inc. and the licensed states.
PART TWO, PAGE 2. In the first sentence under the second section titled
-----------------
MoneyLink OneDoc, the sentence will be modified as follows "... if the home is
at least three months old." The balance of the sentence will be deleted. (These
changes are as a result of changes in Title 1 regulations permitting the home to
only be three months old instead of six months old and deleting the requirement
the home be owner-occupied.)
PART TWO, PAGE 6. (MONEYLINK ESTIMATED PAYMENT TABLE) This table will be
-----------------------------------------------------
modified to reflect a change in the amortization term for all loans under $8,000
being 10 years and all loans $8,000 and over, up to $25,000, being amortized
over 20 years. The resulting
Page Two
Xxxxxxxx, Xxxxxxx and Xxxxxx letter
November 25, 1996
estimated monthly payment amounts will also change due to the longer
amortization period allowed, resulting in lower monthly payments for loans under
$15,000 than what was previously depicted in the table.
PART TWO, PAGE 8. (LOAN COMPARISON CHART) This chart will be revised to reflect
-----------------------------------------
an $8,000 loan example shown underneath the title of the chart instead of the
$15,000 example previously shown, in order to better reflect the typical
Builders Square loan. Additional changes will be made to the interest rate
column in the chart as follows:
CREDIT QUALITY TYPE OF LOAN INTEREST RATE
-------------- ------------ -------------
A HOME, INC. MONEYLINK+PLUS 9.99%
(CONVENTIONAL)
B HOME, INC. MONEYLINK 13.00%
C HOME, INC. MONEYLINK+PLUS 14.00% - 15.00%
(CONVENTIONAL)
C HOME, INC. MONEYLINK 14.00% - 15.00%
The corresponding monthly payments for each of the above loan types will also
change due to the change in the interest rate used for each loan type. (The
changed rates reflect the change in market conditions. As rate changes occur in
the future, it may be necessary to modify the chart to reflect the fluctuation
in interest rates.)
PART TWO, PAGE 19. After the second sentence in the fifth paragraph, insert the
------------------
following new sentence: "However, in Texas, home equity loans can only be
secured with a lien by the lender if loan proceeds are used for either improving
or repairing one's primary home, paying taxes, or as part of the purchase
price." In the sixth paragraph, delete the last sentence in its entirety. In the
eighth paragraph, modify the last sentence to read as follows: "Otherwise, a
home improvement loan that does not require the borrower to have a certain
amount of equity is probably your only recourse."
PART TWO, PAGE 21. The last sentence in the first section will be modified as
------------------
follows: "..., or a closing agent will come to the house, except in Texas where
regulations prohibit a closing to occur in a borrower's residence." (This is due
to regulations promulgated by the Consumer Credit Commissioner of Texas)
Page Three
Xxxxxxxx, Xxxxxxx and Xxxxxx letter
November 25, 1996
In closing, the above changes are all that are contemplated for the Builders
Square version of The MoneyLink Book that will be used in the training of
employees. Since this letter is being used as an exhibit to the License
Agreement, we will consider your acceptance of the same to occur upon the
execution of the License Agreement by Builders Square and Home, inc.
Sincerely,
/s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx
GJD/me
EXHIBIT "C"
PROPOSED COMPUTER EQUIPMENT CONFIGURATION
Description Amount
----------- ------
Dell 5133/GL
1.4 GIG Hard Drive
16 Meg Ram
US Robotics 33.6 Fax/Modem
15" Monitor
HP-682C Printer
(ea) $2,017.08 x Quantity of 34 = $68,580.72
Tax = 5,315.00
----------
73,895.72
Shipping & Handling = 50.00
TOTAL = $74,745.72
----------
-22-
EXHIBIT "D"
Section 11.1(a) Colorado
Florida
Indiana
Missouri
New Mexico
Oklahoma
Oregon
Texas
Section 11.1(b) Alabama
Kansas
Michigan
Nevada
Virginia
Section 11.1(c) Illinois
Kentucky
New York
Ohio
Pennsylvania
Wisconsin
Puerto Rico
-23-
EXHIBIT E
LABOR GUARANTEE
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If the workmanship of any installation arranged by Builders
Square proves faulty within one year from date of this invoice,
Builders Square will, upon notice from you, cause such faults to
be corrected at no additional cost to you.
------------------------------------------------------------------------
INSTALLATION: IT IS UNDERSTOOD THAT BUILDERS SQUARE WILL NOT INSTALL SAID
MATERIALS BUT THAT BY ACCEPTANCE OF THIS PROPOSAL YOU AUTHORIZE BUILDERS SQUARE
TO ARRANGE WITH A CONTRACTOR LICENSED WHERE REQUIRED TO MAKE THE INSTALLATION
YOU AUTHORIZE BUILDERS SQUARE (1) TO ISSUE TO SAID CONTRACTOR A COPY OF THESE
SPECIFICATIONS (2) TO INSPECT THE INSTALLATION UPON COMPLETION WHEN CONSIDERED
NECESSARY AND (3) TO PAY THE CONTRACTOR HIS CHARGE FOR SUCH INSTALLATION UPON
YOUR SIGNATURE BELOW OR ELSEWHERE ESTABLISHING THAT THE INSTALLATION HAS BEEN
SATISFACTORILY COMPLETED. YOU AGREE TO PAY THE AMOUNT SPECIFIED HEREIN WHICH
WILL COVER THE PRICE OF SAID MATERIALS AND THE INSTALLATION CHARGES.
. THIS ESTIMATE IS BASED ON A COMPLETED JOB AND ANY SURPLUS MATERIAL REMAINS THE
PROPERTY OF BUILDERS SQUARE NO CREDIT SHALL BE DUE CUSTOMER ON RETURN OF SUCH
MATERIAL.
. THERE SHALL BE NO LIABILITY FOR DELAYS, OR FAILURE TO COMPLETE, DELIVER OR
INSTALL ALL OR ANY OF THE AFORESAID MERCHANDISE, IF DUE TO FIRE, STRIKES,
WAR, GOVERNMENT REGULATIONS, OR ANY CAUSE BEYOND OUR CONTROL.
. ANY CHANGES MADE BY YOU IN THESE SPECIFICATIONS NECESSITATING ADDITIONAL
MATERIALS OR LABOR SHALL NOT BE INCLUDED OR COVERED BY THIS PROPOSAL BUT SHALL
BE PROVIDED FOR UNDER SEPARATE AND ADDITIONAL ORDERS FROM YOU
THIS PROPOSAL AND SAID SPECIFICATIONS SHALL NOT BE ALTERED OR MODIFIED EXCEPT BY
WRITTEN AGREEMENT BETWEEN THE PARTIES HERETO AND VERBAL UNDERSTANDINGS AND
AGREEMENTS WITH REPRESENTATIVES SHALL NOT BE BINDING UNLESS SET FORTH HEREIN.
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NOTICE TO OWNER
Under the law, any contractor, subcontractor, material supplier,
or other entity or person who provides improvements to your real
property who is not paid for the labor, services or material supplied,
has a right to enforce a claim for same against your property (even
though you did not contract directly with such person.) Under the law,
there are one or more steps you may take to protect yourself against
such claims and/or minimize your exposure in correction therewith.
It's up to you to review the law and decide whether you want to
take these precautions. You should consult your attorney if
you have any questions.
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TO CONTRACTOR:
The customer, named on the reverse side, wishes you to proceed with the
installation at the specified address, of materials specified on the reverse
side and/or on attached sketch or specification sheet. By the acceptance of this
order you agree to protect and indemnify said customer and Builders Square from
all claims or demands on account of injury to persons or property occurring
during or as a result of said installation. You are responsible for payment of
all contributions and taxes due under and for all requirements of Federal and
State Social Security and Income Tax laws with respect to any payrolls incurred
in performance of the work herein specified. These provisions do not in any way
amend or modify any other agreement that you may have with Builders Square. On
completion of the job you agree to obtain the customer's signature on the
Letter of Satisfaction below, and execute the Waiver of Lien, submitting both to
Builders Square, along with your invoice and any monies due on this contract.
CONTRACTOR: WAIVER AND RELEASE OF LIEN
The undersigned Contractor, in consideration of the sum of One Dollar and other
good and valuable considerations, the receipt whereof from the customer whose
name appears on the reverse side hereof is acknowledged, hereby waives,
relinquished and forever releases all liens, rights of lien, claims and demands
whatsoever which the undersigned, or any subcontractor, laborer, mechanic, or
materialman claiming thru or under the undersigned, now has or might or could
have for work done or for materials furnished on or to the building or buildings
and premises situated at the address appearing on the reverse side hereof as the
job location, the undersigned represents that all of the work performed on the
said premises and materials furnished therefor by any other party or parties
upon the order of the undersigned has been fully paid for, and the undersigned
agrees to cause the prompt release of any mechanics liens which may be filed
against said premises by any subcontractor, laborer, mechanic, or materialman
claiming the right to file such lien through or under the undersigned, and the
undersigned further agrees to defend, hold harmless and indemnify Builders
Square, the customer whose name appears on the reverse side hereof and the owner
of title to said premises, from and against all cost and expenses arising from
or by reason of such lien or the release and discharge thereof.
SEALED AND DELIVERED THIS ________ DAY OF ______________ 19 __
SIGNATURE OF CONTRACTOR ______________________________________
CONTRACTORS LICENSE (Where required) _________________________
CUSTOMER APPROVAL OF INSTALLATION
THE INSTALLATION AS SET FORTH IN THIS INVOICE HAS BEEN COMPLETED TO MY
SATISFACTION
____________________________________ ______________________
CUSTOMER SIGNATURE DATE
