Exhibit 10.5
MARKETING AGREEMENT
BY AND BETWEEN
XXXX.XXX OPERATIONS, INC.
AND
CENDANT MORTGAGE CORPORATION
MARKETING AGREEMENT
This Marketing Agreement ("Agreement") is entered into as of the 15th
day of March, 2000 by and between Cendant Mortgage Corporation ("Cendant
Mortgage"), a New Jersey corporation having an office at 0000 Xxxxxx Xxx, Xx.
Xxxxxx, Xxx Xxxxxx 00000 and Xxxx.xxx Operations, Inc. ("Xxxx.xxx"), a Delaware
corporation having an office at 000 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000 (collectively, the "Parties").
WHEREAS, Cendant Mortgage is engaged in providing mortgage services
that include counseling, efficient processing, origination, and servicing of
mortgage loans on homes located in the United States; and
WHEREAS, Xxxx.xxx is an entity which provides marketing and access
services to mortgage lenders via the Internet; and
WHEREAS, Cendant Mortgage and Xxxx.xxx wish to develop a marketing and
access program ("Program") the purpose of which will be to market Cendant
Mortgage services on the Internet.
NOW, THEREFORE, in consideration of the mutual promises contained
herein, the Parties hereby agree as follows:
1. THE PROGRAM.
(a) Xxxx.xxx shall provide access to Cendant Mortgage and market
Cendant Mortgage and its various mortgage programs and
products on the Internet at various web sites. The web sites
shall include promotional information about Cendant Mortgage
and educational materials to customers regarding the mortgage
process. Xxxx.xxx shall be responsible for developing and
maintaining these sites which shall serve as a destination for
customers interested home listings, mortgage-related services,
and other real estate-related information online.
(b) The Parties contemporaneously have agreed upon additional
details concerning their respective obligations under the
Program, including but not limited to, as applicable, the
frequency, size, number and general content of the web sites
to be advertised. Xxxx.xxx shall review and make suggestions
to Cendant Mortgage regarding Cendant Mortgage advertisements
and the most effective manner in which to promote its programs
and products on the Internet. Both parties shall cooperate
with each other, in good faith, to agree in selecting the
marketing materials that are ultimately placed on the web
site.
(c) As part of the Program, Xxxx.xxx shall provide monthly reports
to Cendant Mortgage (Xxxx.xxx Reports), in form and format
reasonably acceptable to the
Parties, that describe, among other things, the extent to
which Xxxx.xxx has met its obligations under the Program.
(d) In addition, Cendant Mortgage shall provide to Xxxx.xxx its
standard monthly reporting on registrations, cancellations,
closings and pipeline so that Xxxx.xxx may monitor the
effectiveness and quality of the mortgage services provided by
Cendant Mortgage.
2. COMPENSATION. For the Term (as defined below), Cendant Mortgage shall
pay a fee to Xxxx.xxx ("Marketing Fee") for the access and marketing
provided under the Program. The amount of the Marketing Fee shall be
Two Million One Hundred Eighty Five Thousand Dollars ($2,185,000). The
Marketing Fee shall be paid within thirty (30) days after the Effective
Date (as defined below) of this Agreement. The Parties each acknowledge
and agree that the Marketing Fee reflects the reasonable and fair
market value of the goods and services to be provided by Xxxx.xxx under
the Program, without regard to the value or volume of mortgage loans
that may be attributable to the Program.
3. REGULATORY COMPLIANCE. Each party will comply with all applicable
regulatory requirements of the United States or any state with respect
to its services to be provided under this Agreement. Each party shall
maintain any and all government approvals, licenses or authorizations
required by the laws of the United States or any state to engage in the
activities described in this Agreement.
4. RELATIONSHIP. The relationship between Cendant Mortgage and Xxxx.xxx
shall be that of independent contractors and neither party shall be or
represent itself to be an agent, employee, partner or joint venturer 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. Cendant
Mortgage shall have sole discretion and authority with respect to
product development, origination, processing, underwriting and
servicing of all mortgage financing.
5. 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 in confidence and to use its best
efforts to ensure that such information is held in confidence by its
officers, directors and employees and to be utilized only in accordance
with the terms of this Agreement.
6. TRADEMARKS. Each party shall grant the other party a license to use
certain of its trademarks (the "Marks") during the Term of this
Agreement. Each party agrees that nothing herein shall give to the
other party any right, title or interest in the other party's Marks,
except to use the Marks in accordance with the terms of this Agreement
and that the Cendant Mortgage Marks and the Xxxx.xxx Marks are the sole
and exclusive property of Cendant Mortgage and Xxxx.xxx, respectively.
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7. DISCLAIMER. Neither Cendant Mortgage nor Xxxx.xxx 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.
8. 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.
9. TERM AND TERMINATION.
(a) The term of this Agreement (the "Term") shall commence on May
1, 2000 (the "Effective Date") and shall terminate on December
31, 2000, unless earlier terminated in accordance with the
provisions of this Section 9.
(b) Upon termination of this Agreement, as provided herein: (i)
Xxxx.xxx shall refrain from any and all further use of or
reference to materials utilizing Cendant Mortgage in
connection with this Agreement, unless otherwise agreed in
writing by the parties; (ii) Cendant Mortgage shall continue
to process, in due course, any mortgage loan applications
submitted by Xxxx.xxx's customers prior to termination of this
Agreement; and (iii) Cendant Mortgage shall be obligated to
pay any then due Marketing Fee; and (iv) the provisions of
Sections 5 and 10 of this Agreement shall survive.
(c) When fully executed, this Agreement will constitute a binding
obligation of both parties which may not be terminated by
either party except in the event of a material breach of the
terms of this Agreement by the other party. In the event of a
material breach as set forth above, the breaching party shall
be given written notice of such breach and the opportunity to
cure such breach within thirty (30) days of the date of such
notice. In the event the breaching party fails to cure such
breach within the applicable period stated above, the other
party shall have the right to immediately terminate this
Agreement upon written notice to the breaching party.
10. HOLD HARMLESS.
(a) Cendant Mortgage agrees to indemnify, defend and hold Xxxx.xxx
harmless from and against any and all claims, suits, actions,
liability, losses, expenses, or damages which may hereafter
arise, which Xxxx.xxx, its affiliates, directors, officers,
agents or employees may sustain due to or arising out of any
negligent act or omission by Cendant Mortgage, its affiliates,
officers, agents, representatives or employees or out of any
act by Cendant Mortgage, its affiliates, officers, agents,
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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 (i) any claim, suit, action, liability, loss, expense or
damage that resulted from an act or omission of Xxxx.xxx or
(ii) 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 Xxxx.xxx.
(b) Xxxx.xxx agrees to indemnify, defend and hold Cendant Mortgage
harmless from and against any and all claims, suits, actions,
liability, losses, expenses, or damages which may hereafter
arise, which Cendant Mortgage, its affiliates, directors,
officers, agents or employees may sustain due to or arising
out of any negligent act or omission by Xxxx.xxx, its
affiliates, officers, agents, representatives or employees or
out of any act by Xxxx.xxx, 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 (i) any claim, suit, action, liability, loss, expense or
damage that resulted from an act or omission of Cendant
Mortgage or (ii) 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 Cendant Mortgage.
11. NON-EXCLUSIVITY. The parties acknowledge and agree that the marketing
and access services required of Xxxx.xxx hereunder are provided under
this Agreement on a non-exclusive basis and, as such, Xxxx.xxx may
enter into similar marketing agreements for the Program with parties
other than Cendant Mortgage.
12. 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.
13. AMENDMENT. The terms and conditions of this Agreement may not be
modified or amended other than by a writing signed by both Parties.
14. 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.
15. ENTIRE AGREEMENT. This Agreement and any exhibits, attachments and
schedules attached hereto constitute the entire agreement between the
Parties and supersede all oral or written negotiations (and prior
agreements and understandings) of the Parties with respect to the
subject matter hereof.
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16. GOVERNING LAW. This Agreement shall be subject to and construed under
the laws of the State of New Jersey, 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.
XXXX.XXX OPERATIONS, INC. CENDANT MORTGAGE
CORPORATION
Signature: /s/ Xxxxx Xxxxx Signature: /s/ Xxxxxxx Xxxxxxx
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By: Xxxxx Xxxxx By: Xxxxxxx X. Xxxxxxx
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Title: CFO Title: President & CEO
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