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Exhibit 10.10
MARKETING AGREEMENT
This Marketing Agreement ("Agreement") is entered into as of May 1, 1998
("Effective Date") between Prism Mortgage Company ("Prism"), an Illinois
corporation having an office at 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000 and E-Loan, Inc., a California corporation having an office at 000
Xxxxxxxxxx Xxx, Xxxx Xxxx, Xxxxxxxxxx 00000 ("E-Loan") (the "Parties")
WHEREAS, Prism is engaged in providing mortgage services that include
counseling, processing, origination, and funding mortgage loans secured by
residential properties located in the United States; and
WHEREAS, E-Loan is engaged in marketing mortgage services via the Internet
including attracting visitors to E-Loan's website, providing visitors with a
variety of mortgage options, and displaying the most competitive products on
the market for various types of loans.
WHEREAS, Prism and E-Loan wish to develop a marketing program ("Program")
the purpose of which will be to market Prism's loan products to visitors of
E-Loan's web site.
NOW, THEREFORE, in consideration of the mutual promises contained herein,
the Parties hereby agree as follows:
1. The Program.
(a) E-Loan shall market Prism's various mortgage programs and products to
Internet users. The Program shall include a comprehensive marketing
plan designed, executed, and paid for by E-Loan, that will attract
visitors to E-Loan's website ("Customers") for the purpose of
obtaining mortgage loans from Prism and other mortgage companies. In
addition, E-Loan will advise Customers regarding the various mortgage
programs and products that Prism offers and match Customers with
specific Prism mortgage products. E-Loan will then engage Customers in
on-line prequalification interviews and help Customers complete an
on-line preliminary application form for Prism mortgage products. As
part of the Program, E-Loan will transfer all completed preliminary
applications to Prism for further processing.
(b) Although E-Loan shall market Prism to its Customers as required by
the Program: (i) E-Loan shall not be required to, and shall not,
endorse Prism, in any communications under the Program that are
targeted to Customers; (ii) E-Loan shall not be required to recommend
Prism as a mortgage provider and (iii) E-Loan shall not be required
to, and shall not as part of the Program, provide advice, counseling
or assistance to Customers in connection with any particular mortgage
loan, for which they have applied to Prism.
2. Compensation.
(a) Beginning the Effective Date, Prism shall pay a fee to E-Loan
("Semiannual Marketing Fee") for the marketing provided under the
Program every six months during the term of this Agreement. The amount
of the Semiannual Marketing Fee shall be $72,000 ("First Semiannual
Marketing Fee"), unless adjusted as provided in this Section 2.
(b) The First Semiannual Marketing Fee will be paid as follows: (i)
$20,000 shall be paid within ten (10) days of the Effective Date and
(ii) $13,000 shall be paid within ten (10) days following July 31,
1998 and each month thereafter for a total of four (4) months.
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(c) All Semiannual Marketing Fees thereafter shall be paid in arrears, in
equal monthly installments, within ten (10) days following the end of
each month. The Parties each acknowledge and agree that the Semiannual
Marketing Fee reflects the reasonable and fair market value of the
goods and services to be provided by E-Loan under the Program, without
regard to the value or volume of mortgage loans that may be
attributable to the Program.
(d) Not more than once each six-month term, either party may notify the
other, in writing, of its determination (Determination), and the bases
therefore, that the Semiannual Marketing Fee amount may fail to
reflect the reasonable and fair market value of the goods and services
to be provided by E-Loan, and upon other information made available to
the Parties including but not limited to: (i) the number of visitors
to E-Loan's website; (ii) E-Loan's marketing coverage; and (iii)
E-Loan's effectiveness in disseminating accurate information regarding
mortgage programs and products as indicated by surveys or other mean.
If the other party agrees with the Determination, the Semiannual
Marketing Fee amount shall be so adjusted, effective upon the
commencement of the next six-month term. If there is disagreement, the
Parties shall attempt in good faith to resolve the disagreement.
(e) E-Loan guarantees the delivery of no less than one hundred and forty
(140) referrals of similar quality of all referrals to Prism by the
61st day following the Effective Date.
(f) Referrals pertain to sales leads only. The actual number of closed
loans resulting from the Program does not affect this Agreement in any
way, including, but not limited to, the guarantee in this Section
2(e).
3. Relationship. The relationship between Prism and E-Loan shall be that of
independent contractors and neither party shall be or represent itself to
be an agent, employee, partner or joint venture of the other, nor shall
either party have or represent itself to have any power or authority to act
for, bind or commit the other.
4. Confidential Information. Each party recognizes that, during the term of
this Agreement, its directors, officers or employees may obtain knowledge
of trade secrets, membership lists and other confidential information of
the other party which are valuable, special or unique to the continued
business of that party. Accordingly, each party hereby agrees to hold such
information and all information contained in or pertaining to this
Agreement in confidence and to use its best efforts to ensure that such
information is held in confidence by its officers, directors and employees.
5. Disclaimer. Neither Prism or E-Loan make any representation or warranty to
the other regarding the effect that this agreement and the consummation of
the transactions contemplated hereby may have upon the Foreign, Federal,
State or local tax liability of the other.
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6. Severability. If any provision of this Agreement should be invalid, illegal
or in conflict with any applicable state or federal law or regulation, such
law or regulation shall control, to the extent of such conflict, without
affecting the remaining provisions of this Agreement.
7. Term and Termination.
(a) The term of this Agreement shall be for a period of one (1) year
commencing on its Effective Date unless earlier terminated in
accordance with the provisions of this Section 8. Upon expiration of
the initial one (1) year term, this Agreement shall automatically
renew from year to year unless earlier terminated in accordance with
the provisions of this Section 8.
(b) Prism may terminate this Agreement, at any time, with or without cause
by providing thirty (30) written days notice to E-Loan. E-Loan may
terminate this Agreement with or without cause by providing thirty
(30) written days notice to Prism.
(c) Upon termination of this Agreement, as provided herein: (i) Prism
shall continue to process, in due course, any mortgage loan
applications submitted by E-Loan's customers prior to termination of
this Agreement and (ii) Prism's obligation to pay any then due
Semiannual Marketing Fee will be prorated as of such date, and the
provisions of Section 5 and 9 of this Agreement shall survive.
8. Hold Harmless:
(a) Prism agrees to indemnify, defend and hold E-Loan harmless from and
against any and all claims, suits, actions, liability, losses,
expenses or damages which may hereafter arise, which E-Loan, its
affiliates, directors, officers, agents or employees may sustain due
to or arising out of any negligent act or omission by Prism, its
affiliates, officers, agents, representatives or employees or out of
any act by Prism, its affiliates, officers, agents, representatives or
employees in violation of this Agreement or in violation of any
applicable law or regulation. Provided, however, the above
indemnification shall not provide coverage for (a) any claim, suit,
action, liability, loss, expense or damage that resulted from an act
or omission of E-Loan or (b) the amount by which any cost, fee,
expense or loss associated with any of the foregoing were increased as
a result of an act or omission on the part of E-Loan.
(b) E-Loan agrees to indemnify, defend and hold Prism harmless from and
against any and all claims, suits, actions, liability, losses,
expenses or damages which may hereafter arise, which Prism, its
affiliates, directors, officers, agents or employees may sustain due
to or arising out of any negligent act or omission by E-Loan, its
affiliates, officers, agents, representatives or employees or out of
any act by E-Loan, its affiliates, officers, agents, representatives
or employees in violation of this Agreement or in violation of any
applicable law or regulation. Provided, however, the above
indemnification shall not provide coverage for (a) any claim, suit,
action, liability, loss, expense or damage that resulted from an act
or omission of Prism or (b) the amount by which any cost, fee, expense
or loss associated with any of the foregoing were increased as a
result of an act or omission on the part of Prism.
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9. Notices. All notices required or permitted by this Agreement shall be in
writing and shall be given by certified mail, return receipt requested or
by reputable overnight courier with package tracing capability and sent to
the address at the head of this Agreement or such other address that a
party specified in writing in accordance with this paragraph.
10. Amendment. The terms and conditions of this Agreement may not be modified
or amended other than by a writing signed by both parties.
11. Assignment: Binding Nature. The terms of this Agreement shall be binding
upon and shall inure to the benefit of the Parties hereto. This Agreement
shall not be assigned by any party without the express prior written
consent of the other party.
12. Entire Agreement. This Agreement and any Exhibits attached hereto
constitute the entire Agreement between the Parties and supersede all oral
and written negotiations of the Parties with respect to the subject matter
hereof.
13. Governing Law. This agreement shall be subject to and construed under the
laws of the State of California, without reference to conflicts of law
provisions thereof.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
the day and year first above written.
E-LOAN
Attest: Signature: /s/ Xxxx Xxxxx
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By: Xxxx Xxxxx
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Its: VP Bus. Dev.
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PRISM MORTGAGE COMPANY
Attest: Signature: /s/ Xxxxxx Xxxxxx
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By: Xxxxxx Xxxxxx
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Its: VP Bus. Dev.
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