AMENDMENT NUMBER ONE
TO DISTRIBUTION, MARKETING, FACILITIES and SERVICES AGREEMENT
This AMENDMENT NUMBER ONE TO DISTRIBUTION, MARKETING, FACILITIES,
SERVICES AGREEMENT (the "Amendment") is entered into as of July ____, 1999
("Effective Date"), between INTUIT LENDER SERVICES, INC., a Delaware corporation
with its principal place of business at 0000 Xxxxxx Xxxxxx, Xxxxxxxx Xxxx, XX
00000 ("ILSI"), and XXXXXXXX.XXX, INC. (f/k/a FIRST MORTGAGE NETWORK, INC. or
FMN), a Florida corporation, with its principal place of business at 0000
Xxxxxxx Xxxx, Xxxxxxxxxx, XX 00000 ("MDC"). ILSI and MDC are hereinafter
referred to as the "Parties."
WITNESSETH:
WHEREAS, the Parties entered into a DISTRIBUTION, MARKETING,
FACILITIES, and SERVICES AGREEMENT (the "Agreement") as of May 31, 1998 and
desire to amend the Agreement as more particularly set forth herein.
NOW, THEREFORE, in consideration of the premises and the respective
representations, warranties, covenants and agreements contained herein, the
Parties hereto agree as follows:
1. All capitalized terms used herein that are not otherwise defined herein shall
have the respective meanings ascribed to them in the Agreement.
2. Section 3.4 is deleted and the following replacement section shall be
inserted in its place:
3.4 Conversion Ratios. The following minimum performance standards
shall apply to MDC's conversion of ILSI Loans from the indicated
stage or category to a closed and funded loan.
(i) ** Stage: **
(ii) ** Stage: **
(iii) ** Stage (assuming prospective borrower
submits a fee or credit card deposit with the application):
**
(iv) ** Stage (assuming prospective borrower does
not submit a fee or credit card deposit with the application:
**
(a) If, MDC does not achieve conversion of ILSI Loans for three (3)
consecutive months (based upon a blended average of the categories),
then, upon notice from ILSI, MDC shall have ninety (90) days to cure
the shortfall in conversions. If MDC fails to cure such shortfall
during the cure period, ILSI shall have the right to terminate this
Agreement in accordance with Article VIII.
3. Section 8.2 of the Agreement is deleted and the following replacement section
shall be inserted in its place:
8.2 Termination. This Agreement may be terminated upon written notice
by either party prior to the end of the Term due to one of the
following Events of Default, after giving the defaulting party the
applicable notice and opportunity to cure set forth below:
** indicates information which has been omitted pursuant to a confidential
treatment request filed separately with the Commission.
(a) Termination for Breach. If a party breaches a material term or
condition of this Agreement, the non-defaulting party must give the
defaulting party written notice of the breach. If the breach is of a
monetary nature the defaulting party will have five (5) business days
to cure the default. Otherwise, the defaulting party will have thirty
(30) days to cure the default. The non-defaulting party may terminate
this Agreement at the expiration of the applicable cure period if the
breach is not cured within the given cure period.
(b) Change in Control. If MDC merges with, or is acquired by, a third
party, and, in the reasonable opinion of ILSI, such change in control
materially adversely affects MDC's ability to perform under this
Agreement, then ILSI may terminate this Agreement after giving three
(3), months' prior written notice. This provision shall specifically
exclude mergers in which MDC is the surviving entity.
(c) Change in Financial Condition. If MDC undergoes a material change
in financial condition such that it is unable to meet its obligations
under this Agreement, ILSI may terminate this Agreement if, after
giving MDC written notice and a 15-day opportunity to cure, MDC's
financial condition has not been restored to the extent that it can
perform its obligations hereunder; provided however, that if the
adverse change in MDC's financial condition results in MDC's failure to
fund loans as and when scheduled for three (3) consecutive days, ILSI
may thereafter immediately terminate this Agreement and at its option,
seek alternative funding for the affected loans.
(d) Termination for Failure of Performance in Achieving Conversion. If
MDC does not meet minimum requirements for converting ILSI Loans as set
forth in Section 3.4 of this Agreement, ILSI shall notify MDC in
writing. Thereafter, MDC shall have ninety (90) days to cure such
shortfall. If MDC has failed to cure the shortfall during the ninety
(90) day cure period, then ILSI may terminate this Agreement after six
(6) months prior written notice to MDC.
(e) Bankruptcy. In the event of the occurrence of any of the following
events, the non-defaulting party may terminate this Agreement
immediately upon giving prior written notice to the defaulting party:
(i) the commencement of any bankruptcy, insolvency,
reorganization, dissolution, liquidation of debt, receivership or
conservatorship proceeding or other similar proceeding under federal or
state bankruptcy, debtors relief, bank regulatory or other law by or
against either party; or
(ii) the appointment of a receiver, conservator, trustee or
similar officer to take charge of, a substantial part of the property
of either party.
(f) Termination Without Cause.
(i) By ILSI. At any time during the Term commencing three (3)
months from the date of this Amendment Number One, ILSI will have the
right, with or without cause, to terminate this Agreement upon nine (9)
months prior written notice to MDC. In such
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event MDC will have no other remedies, and ILSI will have no other
obligations, under this Agreement following the effective date of such
termination; provided, however, that during such nine (9) month notice
period, ILSI will continue to perform its obligations under the
Agreement, and MDC shall continue to process, underwrite and close ILSI
Loans in accordance with the performance criteria established in this
Amendment Number One even if such closings extend beyond the
termination date.
(ii) By MDC. At any time during the Term, MDC shall have the
right, with or without cause, to terminate this Agreement upon twelve
months (12) months prior written notice to ILSI. In such event ILSI
will have no other remedies, and MDC will have no other obligations
under this Agreement following the effective date of such termination;
provided, however, that during such twelve (12) month notice period,
MDC shall continue to process, underwrite and close ILSI Loans in
accordance with the performance criteria established in this Amendment
Number One even if such closings extend beyond the termination date.
(g) Termination With or Without Cause. In the event of termination by
either party with or without cause in accordance with the provisions of
this Agreement, both Parties shall be relieved of any exclusivity
restrictions imposed upon them by Agreement immediately upon
notification of intent to terminate with or without cause delivered
hereunder. In the event of termination with or without cause, the
Minimum Loan Business obligation of ILSI established under Section 5.1
(b) of the Agreement shall be reduced by a steady rate over the period
between the date of the notice of termination and the date of
termination such that, if this agreement is terminated with or without
cause by ILSI, the number of ILSI loans that ILSI is obligated to
transmit to MDC for funding and processing is reduced by one-ninth
(1/9) each month. In the event that this agreement is terminated by MDC
then the same incremental reduction in ILSI's obligation to transmit
loans to MDC shall apply except that the reductions shall be over 12
months rather than nine.
(h) Non-exclusive Remedy. The exercise by either party of any remedy
under this Agreement will be without prejudice to its other remedies
under this Agreement or otherwise.
4. Except as specifically set forth in this Amendment, all terms and
conditions of the Agreement shall remain in full force and effect. All
references to the Agreement after the date hereof shall automatically be
deemed to include this Amendment, and, accordingly, without limiting the
generality of this sentence, it is understood and agreed that the defined
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term "Agreement" includes, collectively, the Agreement and this Amendment.
In the event of any conflict between the terms of this Amendment and the
terms of the Agreement, the terms of the Agreement shall control.
5. This Amendment may be executed in one or more counterparts, each of which
shall be deemed an original.
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be
signed and delivered by its duly authorized officer as of the date first written
above.
INTUIT LENDER SERVICES, INC. XXXXXXXX.XXX, INC.
By_______________________________ By_______________________________
Name_____________________________ Name_____________________________
Title____________________________ Title______________________________
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