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EXHIBIT 10.27
ALLIANCE AGREEMENT
This Alliance Agreement (the "AGREEMENT") is made and entered into as of
this 19th day of March, 1999 (the "EFFECTIVE DATE") by and among E-Loan, Inc., a
corporation organized and existing under the laws of the State of Delaware,
United States of America, having its principal place of business at 0000 Xxxxxx
Xx., Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000, Xxxxxx Xxxxxx of America ("E-LOAN");
Stater BV, a private company with limited liability, organized and existing
under the laws of The Netherlands, having its principal place of business at Xx
Xxxxx 00, 0000 XX Xxxxxxxxxx, Xxx Xxxxxxxxxxx ("STATER"); and E-Loan Europe BV,
a private company with limited liability organized and existing under the laws
of The Netherlands ("E-LOAN EUROPE").
BACKGROUND
A. E-Loan is engaged in an Internet-based marketing business in the
United States in which E-Loan acts as an on-line mortgage originator, offering
automated loan application processes that allow Internet users to apply for and
obtain residential mortgage loans and related services quickly and without a
traditional loan agent; and
X. Xxxxxx is engaged in the creation and provision of integrated systems
and back-office services related to origination, automated lending decision
management, documentation, payment, loan management, debtor management,
collections, arrears management, default management and related services, all
relating to mortgages and related products; and
C. E-Loan and Stater desire to cooperate to support E-Loan Europe, in
establishing and operating a Multi-Lender Site (as defined below) that offers,
over the Internet, residential mortgage loans for which the underlying real
property is located in the Territory (as defined below) and insurance and other
related services ancillary to such mortgages; and
D. Partly in consideration of such cooperation and assistance by Stater
as outlined below, E-Loan Europe and Stater wish to make Stater the preferred
provider to E-Loan Europe Bank (as defined below) of certain services related to
loans funded by E-Loan Europe Bank, all as described more fully below.
NOW THEREFORE, in consideration of the promises and mutual covenants
contained herein, the parties hereto agree as follows:
ARTICLE 1 -- DEFINITIONS
1.1 "AFFILIATE" of an entity means any company that controls, is
controlled by or is under common control with such entity, where "control" means
beneficial ownership (direct or indirect) of at least fifty percent (50%) of the
shares of such entity entitled to vote in the election of directors (or in the
case of an entity that is not a corporation, for the election of the
corresponding managing authority).
1.2 "BROKERAGE FUNCTIONALITY" means technology and/or services to allow a
user to compare, select and apply for residential mortgage loans.
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1.3 "MORTGAGE MANAGEMENT SERVICES" means the automated lending decision
management, documentation, payment, loan management, debtor management,
collections, arrears management, default management and other similar mortgage
management services, in each case to the extent customarily provided by Stater
or its Affiliates. Mortgage Management Services exclude services including or
related to Brokerage Functionality.
1.4 "MULTI-LENDER SITE" means a service by which residential mortgage
loans are offered directly to the public, through the Internet, World Wide Web,
commercial on-line service, interactive broadcast, or any other electronic
on-line means, and that offers or intermediates residential mortgage loans for
multiple lenders, in a format that allows the user to compare, select and apply
for residential mortgage loans through such service.
1.5 "ON LINE RESIDENTIAL MORTGAGE LOAN SITE" means a service by which
residential mortgage loans are offered directly to the public, through the
Internet, World Wide Web, commercial on-line service, interactive broadcast, or
any other electronic on-line means.
1.6 "SECURITIZATION MANAGEMENT SERVICES" means the offering and sale of
securities, which securities consist primarily of a pool of residential mortgage
loans originated by E-Loan Europe Bank through the operation by E-Loan Europe of
a Multi-Lender Site, and the related consulting, due diligence and other
portfolio management activities and services, in each case to the extent
commonly associated with the offering and sale of mortgage-backed securities in
the Territory.
1.7 "STATER SERVICES" means the Mortgage Management Services and the
Securitization Management Services provided by Stater pursuant to this
Agreement.
1.6 "TERRITORY" means the countries identified in EXHIBIT A.
ARTICLE 2 -- COOPERATION AND ASSISTANCE BY STATER
2.1 SERVICES IN SUPPORT OF E-LOAN EUROPE. Stater agrees to use
commercially reasonable efforts to provide to E-Loan Europe, upon E-Loan
Europe's request from time to time, services and facilities to assist E-Loan
Europe in establishing and operating a Multi-Lender Site for residential
mortgage loans on properties located in the Territory. Such services and
facilities shall include, among other things:
(a) Preparation of a business plan ("BUSINESS PLAN") for the initial
activities of E-Loan Europe, with input and assistance from E-Loan, which
Business Plan shall include:
(i) a study assessing the feasibility of the successful
establishment and operation of a Multi-Lender Site by E-Loan Europe in
the Territory;
(ii) an analysis of the legal, tax and regulatory implications
associated with the operation of a Multi-Lender Site by E-Loan Europe
in the Territory;
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(iii) projections of revenue and income (or loss) over a
five-year period, commencing on the Effective Date, in connection with
the operation of a Multi-Lender Site by E-Loan Europe in the
Territory;
(iv) an annual business plan and budget for E-Loan Europe for the
fiscal years ending December 31, 1999, and December 31, 2000, which
shall include, but not be limited to, a balance sheet, an income
statement, a statement of cash flows, cash management and a detail of
product development and personnel costs;
(v) a proposed time-table under which E-Loan Europe shall make a
Multi-Lender Site operational in each of the countries included in the
Territory;
(vi) a summary of the terms and conditions under which E-Loan
Europe shall be managed and under which the operations of E-Loan
Europe, including its product development and personnel costs, shall
be financed;
(vii) a summary of the terms and conditions under which E-Loan
shall license its proprietary information, including proprietary
software, trademark, tradename, or other intellectual property, to
E-Loan Europe for the purpose of operating a Multi-Lender Site in the
Territory;
(viii) a detailed description of the Mortgage Management Services
and Securitization Management Services that Stater shall provide
E-Loan Europe Bank pursuant to the terms of this Agreement;
(ix) a detailed description of the other services and assistance
that shall be provided by Stater pursuant to the terms of this
Agreement;
(x) a detailed description of the services and assistance that
shall be provided by E-Loan pursuant to the terms of this Agreement;
and
(xi) a detailed description of the terms under which Stater could
participate in the equity of E-Loan Europe.
(b) Providing facilities for the offices of E-Loan Europe, and E-Loan
Europe Bank (as defined below);
(c) Consulting regarding regulatory approvals, requirements for
localization and modification of E-Loan's technology for use by E-Loan Europe,
and the like.
2.2 PAYMENT.
(a) BY STATER. Within thirty (30) days after the Effective Date, in
consideration of the covenants and obligations of E-Loan and E-Loan Europe
herein, Stater agrees to pay to E-Loan Europe the sum of five hundred fifty
thousand (550,000) Euros ("EXPENSE ADVANCE"). The parties agree that this amount
will be applied by E-Loan Europe toward the establishment by
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E-Loan Europe of a Multi-Lender Site in the Territory, beginning with the
preparation of the Business Plan for such Multi-Lender Site, and other steps to
establish the Multi-Lender Site.
(b) BY E-LOAN EUROPE. In support of the facilities and services to be
provided by Stater under Section 2.1, E-Loan Europe agrees to reimburse Stater
for the direct costs reasonably incurred by Stater in providing such services
and facilities, up to a maximum amount to be agreed upon in writing by E-Loan
Europe and Stater from time to time prior to the time such facilities and
services are provided. E-Loan Europe agrees to pay such costs monthly in
arrears, within thirty (30) days after the date of Stater's invoice therefor.
2.3 BOARD OF DIRECTORS. The business and affairs of E-Loan Europe shall be
managed by its Board of Directors. For the purpose of this Agreement, the "Board
of Directors" shall mean the Supervisory Board of E-Loan Europe, to the extent
E-Loan Europe is required by law to have a Supervisory Board; otherwise, the
Board of Directors shall be deemed to be the Management Board of E-Loan Europe.
Stater shall be entitled to appoint at least one member of the Board of
Directors of E-Loan Europe.
2.4 INITIAL CAPITALIZATION OF E-LOAN EUROPE. Within thirty (30) days after
the Effective Date, E-Loan shall subscribe for and purchase four hundred fifty
thousand (450,000) shares of capital stock of E-Loan Europe and shall deliver to
E-Loan Europe, in connection with such subscription and purchase, four hundred
fifty thousand (450,000) Euros.
ARTICLE 3 -- STATER SERVICES
3.1 STATER SERVICES TO E-LOAN BANK. The parties anticipate that E-Loan
Europe may organize an entity (or group of entities), or a division of E-Loan
Europe, that will itself (or themselves) fund residential mortgage loans in the
Territory (the "E-LOAN EUROPE BANK"). To the extent that E-Loan Europe Bank
requires Mortgage Management Services, E-Loan agrees to cause E-Loan Europe Bank
to purchase such Mortgage Management Services from Stater, and Stater agrees to
provide such Mortgage Management Services to the E-Loan Europe Bank, all subject
to the terms and conditions of this Article 3.
(a) PRICING AND TERMS. Stater agrees to provide such Mortgage
Management Services, and any other technology and services described in (b)
below, to E-Loan Europe Bank (i) at prices that are no higher than the prices at
which Stater or its Affiliates provide the same or similar services or
technology to any party (including without limitation any Affiliate); and (ii)
upon other terms and conditions no less favorable, in any material respect, than
those under which Stater provides any such services or technology to any party
(including without limitation any Affiliate). In addition, the parties
anticipate that Stater will provide such technology and services to E-Loan
Europe Bank at prices that are discounted from the prices charged for such
services and technology to any party that is not an Affiliate of Stater;
however, due to the complexity of pricing for the variety of services offered by
Stater, such discounts must be negotiated in good faith by Stater and E-Loan
Europe taking into account the country in which such technology or services will
be provided, the volume of such technology or services to be provided, and the
time period during which such technology or services will be provided.
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(b) TIME TO MARKET ADVANTAGE. In the event that Stater introduces
technology or services specifically designed for use in operating an On Line
Residential Mortgage Loan Site, (i) Stater agrees to offer such technology or
services to E-Loan Europe Bank, and (ii) if E-Loan Europe Bank wishes to use
such technology or services, Stater agrees not to provide such technology and
services to any third party that is not an Affiliate of Stater, for use in an On
Line Residential Mortgage Loan Site, until six (6) months after providing such
technology or services to E-Loan Europe Bank. Notwithstanding the foregoing,
Stater's commitment in clause (ii) above shall not apply to the extent that such
technology or services are developed specifically for a particular customer
under a contract between Stater and such customer and such contract precludes
Stater from providing E-Loan Europe with the time advantage described in (ii)
above.
3.2 SECURITIZATION MANAGEMENT SERVICES. To the extent that E-Loan Europe
Bank requires Securitization Management Services, E-Loan agrees to cause E-Loan
Europe Bank to purchase such Securitization Management Services from Stater, and
Stater agrees to provide Securitization Management Services to the E-Loan Europe
Bank, all subject to the terms and conditions of this Article 3. Stater agrees
to provide such Securitization Management Services to E-Loan Europe Bank upon
such terms and conditions no less favorable, in any material respect, than those
under which Stater provides any such Securitization Management Services to any
party (including without limitation any Affiliate).
3.3 EXCLUSIVITY OF STATER SERVICES. The parties intend that Stater will be
the preferred provider of Mortgage Management Services and Securitization
Management Services to E-Loan Europe Bank as set forth below.
(a) Accordingly, E-Loan agrees to not contract with (and agrees to
cause E-Loan Europe Bank not to contract with) any party other than Stater or
its Affiliates to provide Mortgage Management Services or Securitization
Management Services to E-Loan Europe Bank; and E-Loan and E-Loan Europe agree
(and shall cause E-Loan Europe Bank to agree) not to provide such services for
their own account, unless (i) the price, availability, service level, terms, or
other aspects of the Mortgage Management Services or Securitization Management
Services offered by Stater to E-Loan Europe Bank are, on the whole, materially
less favorable than those available from a third party (or in the case of
services that E-Loan Europe and E-Loan Europe Bank propose to provide for their
own account, on the whole, materially less favorable than those available to
E-Loan Europe Bank through such means), or (ii) Stater is otherwise not then
able to meet the reasonable requirements of E-Loan Europe Bank.
(b) E-Loan agrees to cause E-Loan Europe Bank to provide Stater with
at least one hundred eighty (180) days notice prior to first obtaining Mortgage
Management Services or Securitization Management Services for residential
mortgage loans on properties in each particular country of the Territory other
than The Netherlands, Luxembourg, Germany or Belgium.
(c) In the event of a dispute as to whether E-Loan Europe or E-Loan
Europe Bank has the right to obtain any services from a third party (or to
provide such services for their own account), E-Loan Europe or E-Loan Europe
Bank may proceed to obtain such services from a third party, or provide them for
their own account, and will not be deemed in breach of this
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Section 3.3 during the period prior to a determination under Section 7.2(b) that
E-Loan Europe or E-Loan Europe Bank is obligated to obtain such services from
Stater.
(d) Nothing in this Section 3.3 will be deemed to restrict E-Loan
Europe or E-Loan Europe Bank from performing, itself (i.e. in lieu of obtaining
such services from Stater or a third party), any services currently provided by
E-Loan in the United States as of the Effective Date.
3.4 LIMITATION. Any provision contained in this Agreement to the contrary
notwithstanding, in no event shall Stater be required to provide the Mortgage
Management Services or Securitization Management Services in any country within
the Territory in which Stater is not engaged in the business of providing the
same or similar services to other customers of Stater or in which Stater is
prohibited from providing such services by applicable law, rule or regulation.
3.5 SERVICING AGREEMENTS. It is anticipated that the terms and conditions
under which Stater shall perform the Stater Services described in this Article 3
will be set forth in detail in one or more agreements ("SERVICING AGREEMENTS")
between Stater (or an Affiliate of Stater) and E-Loan Europe (or E-Loan Europe
Bank); provided, however, that the terms and conditions of any such Servicing
Agreements shall not vary in any material respect from the provisions of this
Article 3, unless otherwise agreed in writing by E-Loan Europe and Stater.
ARTICLE 4 -- EXCLUSIVITY OF EFFORTS
4.1 PROTECTION OF CONFIDENTIAL INFORMATION. The parties acknowledge that
by virtue of their activities under this Agreement, they will each receive
confidential and proprietary information of E-Loan Europe that would assist the
other parties to unfairly compete with E-Loan Europe. To protect such
confidential information, the parties agree as follows:
(a) STATER. During the term of this Agreement, Stater shall not,
directly or indirectly, through any Affiliate: (i) purchase or hold any equity
interest in any company that operates, as its principal line of business, a
Multi-Lender Site that includes residential mortgage loans on properties located
in the Territory, or (ii) provide Brokerage Functionality for use in a
Multi-Lender Site (other than a Multi-Lender Site operated by E-Loan Europe)
with respect to properties in the Territory.
(b) E-LOAN. During the term of this Agreement, E-Loan shall not,
directly or indirectly, through any Affiliate other than the E-Loan Europe: (i)
purchase or hold any equity interest in any company that operates, as its
principal line of business, a Multi-Lender Site that includes residential
mortgage loans on properties located in the Territory, or (ii) provide Brokerage
Functionality for use in a Multi-Lender Site (other than a Multi-Lender Site
operated by E-Loan Europe) with respect to properties in the Territory.
4.2 EVENTS UPON CHANGE OF CONTROL.
(a) As used herein, "CHANGE OF CONTROL" means (i) a merger or
reorganization of any party to this Agreement (such party, the "SELLING PARTY")
into any other corporation or
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corporations pursuant to which the Selling Party's stockholders immediately
prior to such transaction own, immediately after and as a result of such
transaction, less than fifty percent (50%) of the equity securities of the
surviving corporation; or (ii) a sale of all or substantially all of the assets
of the Selling Party's business relating to residential mortgage loans on
properties in the Territory, or all or substantially all of the outstanding
stock of the Selling Party, pursuant to which transaction the Selling Party's
stockholders immediately prior to such transaction own, immediately after and as
a result of such transaction, less than fifty percent (50%) of the equity
securities of the surviving corporation; provided, however, that in no event
will a public offering of a Selling Party's capital stock in which the
purchasers are not acting together as a group be deemed a Change of Control.
(b) TERMINATION. Upon a Change of Control, the Selling Party agrees
to promptly give notice to all other parties of such Change of Control, and the
Selling Party, or any other party to this Agreement may, in its sole discretion,
either (i) terminate this Agreement upon written notice within ninety (90) days
following the closing of such Change of Control, and such termination will be
without penalty to any party to this Agreement or the party who has obtained
control of Selling Party, or (ii) allow the Agreement to continue in full force
and effect in which case, all of Selling Party's rights and obligations under
this Agreement will be assumed in accordance with Section 7.3 below.
ARTICLE 5 -- TERMINATION
5.1 TERM. The term of this Agreement will commence on the Effective Date,
and, unless terminated earlier as described in Section 4.2 above or Section 5.2
below, will continue in effect for five (5) years thereafter.
5.2 BREACH AND REMEDIES. In the event of a material breach by any party of
a material provision hereof, which breach is not cured within ninety (90) days
after written notice thereof by the other party, then the nonbreaching party
may, effective ninety (90) days after written notice of failure to cure to the
breaching party, terminate this Agreement. The parties agree that such
termination will be the terminating party's sole remedy for breach of this
Agreement by any other party, except for any liability that arises under Article
6 (Non-Disclosure).
5.3 EFFECT OF TERMINATION. The termination of this Agreement will not in
any way operate to impair or destroy any of the rights or remedies of any party,
or to relieve any party of its obligations to comply with any of the provisions
of this Agreement which accrue prior to the date of termination, and the
provisions of Articles 1, 6, and 7 will survive the expiration and any
termination of this Agreement. In the event that this Agreement is terminated by
Stater due to breach by E-Loan or E-Loan Europe under Section 5.2, E-Loan Europe
shall promptly return to Stater the Expense Advance, less any amount that E-Loan
Europe (a) shall have expended in connection with the establishment by E-Loan
Europe of a Multi-Lender Site in the Territory, up to a maximum amount to be
agreed upon in writing by E-Loan Europe and Stater from time to time prior to
the time any such expenses are incurred, or (b) shall have reimbursed to Stater
in accordance with the provisions of Section 2.2(b) above.
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ARTICLE 6 -- NONDISCLOSURE
6.1 DEFINITION. "CONFIDENTIAL INFORMATION" means any information disclosed
by any party to any other party, either directly or indirectly, in writing,
orally or by inspection of tangible objects (including without limitation
documents, prototypes, samples, plant and equipment), which is designated as
"Confidential, " "Proprietary" or some similar designation. Information
communicated orally will be considered Confidential Information if such
information is confirmed in writing as being Confidential Information within a
reasonable time after the initial disclosure. Confidential Information may also
include information disclosed to a disclosing party by other parties.
Confidential Information will not, however, include any information which (i)
was publicly known and made generally available in the public domain prior to
the time of disclosure by the disclosing party; (ii) becomes publicly known and
made generally available after disclosure by the disclosing party to the
receiving party through no action or inaction of the receiving party; (iii) is
already in the possession of the receiving party at the time of disclosure by
the disclosing party as shown by the receiving party's files and records
immediately prior to the time of disclosure; (iv) is obtained by the receiving
party from another party without a breach of such other party's obligations of
confidentiality; (v) is independently developed by the receiving party without
use of or reference to the disclosing party's Confidential Information, as shown
by documents and other competent evidence in the receiving party's possession;
or (vi) is required by law to be disclosed by the receiving party, provided that
the receiving party gives the disclosing party prompt written notice of such
requirement prior to such disclosure and assistance in obtaining an order
protecting the information from public disclosure.
6.2 NON-USE AND NON-DISCLOSURE. As used in this Article 6, "E-LOAN
COMPANIES" refers to E-Loan and E-Loan Europe together. The E-Loan Companies (on
the one hand) and Stater (on the other hand) each agree not to use any
Confidential Information of the other for any purpose except to exercise its
rights and perform its obligations under this Agreement. The E-Loan Companies
and Stater each agree not to disclose any Confidential Information of the other
to third parties or to such party's employees, except to those employees of the
receiving party with a need to know. The E-Loan Companies and Stater each agree
not to reverse engineer, disassemble or decompile any prototypes, software or
other tangible objects which embody the other's Confidential Information and
which are provided hereunder.
6.3 MAINTENANCE OF CONFIDENTIALITY. Each party agrees to take reasonable
measures to protect the secrecy of and avoid disclosure and unauthorized use of
the Confidential Information of the other parties. Without limiting the
foregoing, each party agrees to take at least those measures that it takes to
protect its own most highly confidential information and agrees to ensure that
its employees who have access to Confidential Information of any other party
have signed a non-use and non-disclosure agreement in content similar to the
provisions hereof, prior to any disclosure of Confidential Information to such
employees. No party shall make any copies of the Confidential Information of any
other party unless the same are previously approved in writing by the other
party. Each party agrees to reproduce any other party's proprietary rights
notices on any such approved copies, in the same manner in which such notices
were set forth in or on the original.
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6.4 RETURN OF MATERIALS. Upon the termination of this Agreement, each
party agrees to deliver to each other party all of such other party's
Confidential Information that such party may have in its possession or control.
ARTICLE 7 -- MISCELLANEOUS
7.1 GOVERNING LAW. This Agreement will be governed by and interpreted in
accordance with the laws of California, U.S.A., without reference to conflict of
laws principles.
7.2 ARBITRATION DISPUTES.
(a) If the parties are unable to resolve any dispute, controversy, or
claim arising out of or relating to the validity, construction, enforceability,
or performance of this Agreement (a "DISPUTE") between or among them arising out
of this Agreement, any party may, by written notice to the other, have such
Dispute referred to the Chief Executive Officers of all parties for attempted
resolution by good faith negotiations within thirty (30) days after such notice
is received.
(b) FULL ARBITRATION. Any Dispute, including Disputes relating to
alleged breach or termination of this Agreement that is not resolved pursuant to
Section 7.2(a) above, will be settled by binding arbitration in the manner
described in this Section 7.2. The arbitration will be conducted pursuant to the
Commercial Rules and Supplementary Procedures for Large, Complex Disputes of the
American Arbitration Association then in effect. Notwithstanding those rules,
the following provisions will apply to the arbitration hereunder:
(i) ARBITRATORS. The arbitration will be conducted by a single
arbitrator; provided that at the request of either party, the arbitration will
be conducted by a panel of three (3) arbitrators, chosen according to the Rules
of the American Arbitration Association. In any event, the arbitrator or
arbitrators selected in accordance with this Section 7.2 are referred to herein
as the "PANEL."
(ii) PROCEEDINGS. Except as otherwise provided herein, the
parties and the arbitrators shall use their best efforts to complete the
arbitration within one (1) year after the appointment of the Panel under Section
7.2(b)(i) above, unless a party can demonstrate to the Panel that the complexity
of the issues or other reasons warrant the extension of one or more of the time
tables. In such case, the Panel may extend such time table as reasonably
required. The Panel shall, in rendering its decision, apply the substantive law
of California, U.S.A., without regard to its conflicts of laws provisions. The
proceeding will be conducted in English and will take place in New York, New
York. All pleadings and written evidence will be in the English language. Any
written evidence in a language other than English will be submitted in English
translation accompanied by the original or true copy thereof. The fees of the
Panel will be paid by the losing party or parties, if deemed appropriate by the
Panel. If the Panel does not designate otherwise, the fees will be split equally
between the parties. Each party will bear the costs of its own attorneys' and
experts' fees; provided that the Panel may in its discretion award the
prevailing party or parties all or part of the costs and expenses incurred by
the prevailing party or parties in connection with the arbitration proceeding.
No party may initiate an arbitration hereunder unless it has attempted to
resolve the matter in accordance with Section 7.2(a).
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7.3 ASSIGNMENT. No party may assign this Agreement without the prior
written consent of the other parties, except that each party may assign this
Agreement to a person or entity into which it has merged or which has otherwise
succeeded to all or substantially all of its business or assets relating to
residential mortgage loan business and which has assumed in writing or by
operation of law the assigning party's obligations under this Agreement. Each
party agrees that in any merger in which it is not the surviving company, the
surviving company will assume, in writing or by operation of law, such party's
obligations under this Agreement. Any purported assignment in violation of the
foregoing will be null and void. Subject to the foregoing, the provisions of
this Agreement will apply to and bind the successors and permitted assigns of
the parties. Upon a permitted assignment of this Agreement, all references to
the assigning party herein will be deemed references to the assignee.
7.4 INTELLECTUAL PROPERTY. If at any time either Stater or E-Loan (the
"DISCLOSING PARTY") discloses or provides any technology or intellectual
property, including without limitation modifications or additions to E-Loan
Europe's or the Disclosing Party's technology or intellectual property, the
Disclosing Party agrees to describe such technology or intellectual property to
E-Loan Europe in writing prior to such disclosure. Following receipt of such
description, E-Loan Europe and the Disclosing Party agree to confer concerning
the nature of the proposed technology or intellectual property and agree in
writing upon the terms, if any, under which such modifications or additions
should be made. The parties acknowledge that the Business Plan shall be the
property of E-Loan Europe.
7.5 LANGUAGE. This Agreement is in the English language only, which
language will be controlling in all respects, and all versions hereof in any
other language will be for accommodation only and will not be binding upon the
parties hereto. All communications and notices to be made or given pursuant to
this Agreement will be in the English language.
7.6 CONSTRUCTION. All parties have been represented by legal counsel
during the negotiation and drafting of this Agreement. Accordingly, any rule of
construction relating to the author of specific language will not apply.
7.7 NOTICES. Any notice or other communications required or permitted
hereunder must be in writing and must be mailed by registered or certified mail,
postage prepaid, or otherwise delivered by hand, or by commercial express
courier service, addressed as follows:
To E-Loan:
E-Loan, Inc.
0000 Xxxxxx Xx., Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: President
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with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
To Stater:
Stater BV
De Brand 40
3823 LL, Amersfoort
The Netherlands
Attn: President
with a copy to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxxxxxx
To E-Loan Europe:
E-Loan Europe BV
c/o E-Loan, Inc.
0000 Xxxxxx Xx., Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: President
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
Such notices will be deemed to have been served when delivered or, if delivery
is not accomplished by reason of some fault of the addressee, when tendered.
7.8 PARTIAL INVALIDITY. If any paragraph, provision, or clause hereof in
this Agreement is found or held to be invalid or unenforceable in any
jurisdiction in which this Agreement is being performed, the remainder of this
Agreement will be valid and enforceable and the parties shall use their
respective best efforts to negotiate a substitute, valid and
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enforceable provision which most nearly effects the parties' intent in entering
into this Agreement. In the event a party to this Agreement seeks to avoid a
provision of this Agreement by asserting that such provision is invalid, illegal
or otherwise unenforceable (or by prompting a governmental authority to make
such an assertion), then whichever party did not make such an assertion (or
prompt such governmental assertion) will have the right to terminate this
Agreement upon sixty (60) days notice, unless such assertion is eliminated
within such sixty (60) day period.
7.9 COUNTERPARTS. This Agreement may be executed in two (2) or more
counterparts, all of which, taken together, will be regarded as one and the same
instrument.
7.10 WAIVER. The failure of any party to enforce at any time the provisions
of this Agreement will in no way be construed to be a present or future waiver
of such provisions, nor in any way affect the validity of any party to enforce
each and every such provision thereafter.
7.11 ENTIRE AGREEMENT. The terms and conditions herein contained constitute
the entire agreement between the parties and supersede all previous agreements
and understandings, whether oral or written, between the parties hereto with
respect to the subject matters hereof and thereof and no agreement or
understanding varying or extending the same will be binding upon any party
hereto unless in a written document signed by the party to be bound thereby.
7.12 SECTION HEADINGS. The Section headings contained in this Agreement are
for reference purposes only and will not affect in any way the meaning or
interpretation of this Agreement.
7.13 PUBLICITY. Each of the parties hereto agrees not to disclose the terms
of this Agreement to any other party, without the prior written consent of all
other parties hereto, except to advisors, investors and others on a need-to-know
basis under circumstances that reasonably ensure the confidentiality thereof, or
the extent required by law.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by duly authorized officers or representatives as of the date first above
written.
E-LOAN, INC. STATER BV
By: __________________________________ By: __________________________________
Name: ________________________________ Name: ________________________________
Title: _______________________________ Title: _________________________________
E-LOAN EUROPE BV
By: __________________________________
Name: ________________________________
Title: _______________________________
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EXHIBIT A
TERRITORY
Austria
Belgium
Denmark
Finland
France
Germany
Greece
Hungary
Italy
Luxembourg
Monaco
Poland
Portugal
Republic of Ireland
Spain
The Netherlands
Sweden
