INTUIT LENDER SERVICES, INC.
SUBPRIME AGREEMENT FOR DISTRIBUTION, MARKETING, FACILITIES,
AND SERVICES
This SUBPRIME AGREEMENT FOR DISTRIBUTION, MARKETING, FACILITIES, AND
SERVICES (the "Agreement") is entered into as of May 26, 1999, 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. (FORMERLY FIRST MORTGAGE NETWORK, INC.), a Florida
corporation with its principal place of business at 0000 Xxxxxxx Xxxx,
Xxxxxxxxxx, XX, 00000 ("MC").
WITNESSETH:
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WHEREAS, ILSI owns and operates the QuickenMortgage(R) website located
at (the "Website"), through which consumers can shop for mortgage loans,
prequalify and apply for such mortgage loans with various lenders online (the
"Participating Lenders");
WHEREAS, ILSI would like to begin offering subprime mortgage loans to
its customers through the Website, and MC has agreed to provide loan
underwriting, origination support and funding services for the Subprime Loans
originated by ILSI (as defined in Section 9.11 hereof) for sale in the secondary
market to Participating Lenders and other lenders;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the parties hereto agree as follows:
ARTICLE I
ILSI SERVICES AND FACILITIES
ILSI shall perform the following services and provide the following
facilities in connection with Subprime Loans:
1.1 Inquiry. Through a simple question-and-answer format, ILSI shall
collect information consisting of the name, address, income, assets and
liabilities of potential borrowers. Alternatively, potential borrowers may
supply a subset of the above information to ILSI by telephone or through e-mail.
(The information obtained at this stage is called an "Inquiry" or, if more than
one, "Inquiries").
1.2 Prequalifications. Using the information gathered during the
Inquiry stage, as well as additional information that may be gathered on the
Website, and using its proprietary or licensed software, ILSI shall (i) analyze
the prospective borrower's income and debt, (ii) educate the prospective
borrower about the homebuying and financing process, (iii) advise the
prospective borrower about different types of loans available through the
Website, and (iv) prequalify or preapprove the prospective borrower for the loan
or loans chosen by him or her ("Prequalification" or, if more than one,
"Prequalifications"). Other services shall be provided as part of
Prequalification; these services may be accessed by the prospective borrower at
his or her option, and include linkages to the Participating Lenders' home pages
and websites and linkages to other websites related to mortgage financing.
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1.3 Application. Following Inquiry and/or Prequalification, ILSI shall
(i) assist the prospective borrower in understanding and clearing any credit
problems; (ii) assist the prospective borrower in completing an abbreviated loan
application form; (iii) provide the initial good faith estimate of closing costs
("GFE") and other required federal and state disclosures; (iv) provide a contact
point during the loan application process for the prospective borrower to check
the progress of the loan application; (v) identify for prospective borrowers the
necessary financial documentation to be assembled in support of the application;
(vi) collect credit card information to facilitate the ordering of property
appraisals and consumer credit reports (if deemed appropriate); (vii) provide
facilities and software to enable ILSI and MC to obtain credit reports online
(collectively "Application"). ILSI shall transmit the loan application
information gathered during the Inquiry through Application stages to MC for
further processing as described in Article II below.
1.4 Software Support. ILSI shall provide various facilities including
software engineering and operations resources to assist the parties in
performing the services described in this Agreement, including, without
limitation, (i) building an interface between MC and the Website; (ii) building
an interface between the MC CLOser(R) system, which is described in Section
2.5(a) (the "MC CLOser(R)"), and the Website database; (iii) providing a means
for MC to access loan products and pricing on the Website or through a similar
web-based application created by ILSI; (iv) building and maintaining
communication tools to enable loan processors to communicate efficiently with
loan applicants; and (v) developing, maintaining and continuing to enhance other
software productivity tools as needed for the optimal operation of the loan
origination, borrower counseling, loan processing and loan underwriting efforts
of ILSI and MC.
1.5 Customer Support. ILSI shall provide customer support through the
Website and call centers for prospective borrowers who have questions about the
site and other general questions that are not specific to any loan. ILSI will
provide, through the Website and/or other means, in its discretion, customer
disclosures concerning the participation of MC in Subprime Loan transactions as
it deems necessary and desirable to fully comply with all legal obligations
applicable to the Website and the parties, including affiliated business
arrangement disclosures under RESPA, and disclosures concerning the source of
funding of Subprime Loans.
1.6 Employee and Software Sharing. ILSI and MC shall share employees
and software tools as appropriate for processing loan applications, including,
without limitation, employees and tools to order and analyze flood
certifications, inspections, engineering reports, property appraisals and credit
reports.
1.7 Subprime Marketing. ILSI shall use commercially reasonable efforts
to specifically advertise and market the Subprime Loans, using such methods and
distribution channels as it deems advisable, to increase the number of customers
using the
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Website to find Subprime Loans. To the extent feasible, as provided in Section
5.2 of this Agreement, no other Subprime services shall be advertised on the
Website or on Xxxxxxx.xxx or other "Quicken" websites that are owned and
operated by Intuit, Inc. without the consent of MC. Such consent shall not be
unreasonably withheld. ILSI shall not offer first lien Subprime Loans in
principal amounts less than $40,000.
1.8 Customer Information. ILSI shall develop and market articles and
calculators specifically designed for Subprime Loan customers. ILSI shall
regularly update and refine the information it provides to customers of Subprime
Loans.
1.9 Debt Counseling. ILSI shall offer online debt counseling services
to assist all ILSI customers and particularly customers of Subprime Loans.
1.10 Debt Consolidation. ILSI shall upgrade its online and call center
customer support services to include providing advice to customers on debt
consolidation, calculators to compare payments and recommendations on Subprime
Loan programs.
ARTICLE II
MC'S SERVICES AND FACILITIES
In connection with Subprime Loans that are transmitted to MC, MC shall
perform the following services and provide the following facilities:
2.1 Status Updates. Subprime Loans may be transmitted to MC for further
processing at any stage of the application process. Thus, either or both MC and
ILSI may conduct specific processing tasks for Subprime Loans prior to closing
and funding; however, the parties agree to work together to ensure that the
services provided are not duplicative. Once a Subprime Loan has been transmitted
to MC, MC shall update the processing system and the Website database with the
status of the loan processing as agreed between ILSI and MC but at a minimum
wherever indicated below. Furthermore, MC shall notify the borrower of all
status changes as they occur and update the Website with such status changes and
transmit electronic messages to borrowers.
2.2 Origination. The parties acknowledge and agree that an essential
element of successful loan origination, particularly online loan origination via
the Website, involves making timely contact with prospective borrowers. To that
end, earlier and faster initial and subsequent communications between the loan
originator and the prospective borrower are more likely to result in completed
applications and eventual closed loans. The parties therefore agree that time is
of the essence in all processing tasks involving communications with prospective
borrowers, and that prompt communications are an essential element of the
origination task for which MC is engaged. MC shall maintain its status as an
approved loan correspondent of the Participating Lenders, and shall demonstrate
and confirm that status to ILSI upon request.
MC shall perform the following origination services with respect to
Subprime Loan applications or Inquiries that are transmitted to MC by ILSI:
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(a) Response to Prospective Borrowers. Respond to Submissions by
prospective borrowers and finalize loan applications as appropriate for each
Stage described in (i) to (iii) below:
(i) Inquiry Stage. Respond to Inquiries submitted through the
Website or ILSI call centers. If prequalification was not requested through the
Website, analyze Inquiry data, send out prequalification notices and encourage
borrower to submit an application;
(ii) Prequalification Stage. Send out prequalification notices
to prospective borrowers; provide those prospective borrowers who prequalified
for a particular loan or loans through the Website with personalized on-line
prequalification letters; follow up with prospective borrowers; and encourage
them to submit an application for the selected Subprime Loan. Where the borrower
has selected a Subprime Loan that is not appropriate for the borrower, assist
the borrower in choosing a different Subprime Loan;
(iii) Application Stage. Confirm to the prospective borrowers
the receipt of the Application and assist him or her in finalizing the
application as needed.
(b) Re-Qualify, Verify, Amend or Modify Information. At the request of
a prospective borrower, re-qualify the prospective borrower for the same or
another loan, based on change of circumstances, change of preferences, or for
other reasons, and answer questions concerning information submitted on
Prequalification or Application screens.
(c) Credit Report Ordering/Review. Check credit history of borrower as
appropriate, including review of any credit scoring data.
(d) Commitments. Prepare and send out commitment letters in the name of
the creditor, and/or collect commitment fees, application fees or deposits
toward closing costs, as appropriate.
(e) Loan Application Package Preparation. Prepare completed loan
application packages and send them to borrowers via overnight courier,
electronically, or other means. The loan application package shall include all
data provided by borrowers, itemization of information outstanding, including,
without limitation, Form 1003, GFE, disclosures, Truth-in-Lending statements and
other disclosures required by law to be furnished by creditors, and
instructions.
(f) Borrower Support. Answer any borrower questions concerning the loan
application package and the Subprime Loan.
(g) Transfer to Processing. Ensure that transmission of Subprime Loans
from ILSI to MC (and within teams at MC) is a smooth process from the
perspective of the prospective borrower, with the required degree of
communication between all parties.
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2.3 Processing and Underwriting. MC shall process and arrange for
underwriting for all Subprime Loan applications.
(a) Processing. In connection with processing, MC shall provide the
following services:
(i) Appraisal. MC shall engage an appraisal firm and ensure
that the property appraisal is performed in a timely manner. MC's call center
representative shall update the processing system and the Website database with
the status of the appraisal;
(ii) Verifications. MC shall maintain frequent contact with
the loan applicant to collect verifications of employment (VOE), income (VOI),
assets, and debt, including mortgage debt (VOM). MC shall update the processing
system, the Website database and the loan application data with the status of
all verifications;
(iii) Underwriting. MC or its designee shall underwrite the
completed loan package and update the processing system and the Website database
with the underwriting decision. MC shall call the applicant to inform him/her of
the underwriting decision. MC shall send the loan applicant an adverse action
letter under the Equal Credit Opportunity Act ("ECOA") if appropriate;
(iv) Flood, Tax, Ancillary Services. MC shall order flood
certifications, tax service and other ancillary services as needed. MC shall
update the processing system and the Website database with the status of such
services;
(v) Title. MC shall assist borrowers to engage a reputable
title firm and follow through to ensure that the title search is completed and
insurance is issued. MC shall update the processing system and Website database
with the status of title and insurance;
(vi) Escrow. MC shall engage a reputable escrow firm and
arrange for escrow services pending closing and sale of Subprime Loans as
described below. MC shall update the processing system and Website database with
the status of the escrow.
(b) Pricing of Ancillary Services. MC shall obtain pricing for the
ancillary services listed in Section 2.3(a) and any other third party services
required, which pricing is at least as competitive, for a comparably priced
loan, as the aggregate fees charged by the Index Group of lenders as defined in
Appendix A to this Agreement, for similar services. MC further agrees that it
will pass through to the borrowers third party fees that are customarily
reimbursed by borrowers with no xxxx-up of any kind, nor will MC receive
directly or indirectly any monetary or in-kind benefit from the providers of
such ancillary services, except as described in Section 2.3(c) below. ILSI and
MC will cooperate with each other to negotiate the lowest pricing for such
ancillary services without jeopardizing the quality of service to the borrower
or to the lenders who require such services.
(c) Negotiating Loan Pricing. MC shall use its best efforts to
negotiate the
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lowest correspondent pricing available from Participating Lenders. ILSI shall
cooperate with MC in this effort. In addition, in order to qualify for payments
for shortfalls in Submissions, as described in Section 3.2, MC shall maintain
pricing spreads and fees to borrowers that are typical within the Subprime
industry. If the parties cannot reach agreement on what is considered typical
pricing spreads or fees, they shall hire an independent third party to make the
determination. Both parties agree that such determination shall be binding upon
them.
2.4 Packaging, Funding and Closing. MC shall operate initially under
this Agreement as a loan correspondent with warehouse lines of credit available
for loan funding. In that capacity, MC shall provide the following services with
respect to Subprime Loans:
(a) Packaging. MC shall package, process, and underwrite Subprime
Loans.
(b) Funding. MC shall use its own funding sources to close and fund
Subprime Loans in MC's name as original payee/mortgagee. For all Subprime Loans
which will be funded and closed by MC, MC shall disclose to the borrower prior
to the borrower's binding commitment for the loan (or at an earlier time, as
required by law and in the mutual judgment of ILSI and MC) the name of the
servicer to whom the loan will be transferred.
(c) Closing. MC shall coordinate and perform or arrange for the closing
of Subprime Loans, and where appropriate, the placement of loan funds in escrow
pending closing and/or sale.
(d) Selling. Subprime Loans closed and funded in MC's name shall be
sold by MC to the appropriate Participating Lender or other lender. MC will be
responsible for coordinating the sale, collecting the proceeds, and other tasks
involved in the sale. Nothing in this Agreement may be construed to preclude
ILSI from processing, closing and funding mortgage loans in its own name in the
future, as a correspondent lender or as an originator or broker of loans for
wholesale lenders, but such activities will not relieve ILSI of its obligations
under this Agreement.
2.5 Facilities. MC shall provide the following facilities to ILSI in
connection with Subprime Loans:
(a) MC CLOser(R) System. MC shall install the MC CLOser(R) in ILSI
offices and on its computer networks and shall train ILSI personnel in ILSI
offices in its use. MC CLOser(R) is MC's proprietary loan origination, pricing,
locking, pipeline management and status reporting system. As used in this
Agreement, MC CLOser(R) includes interfaces with automated underwriting and
credit evaluation functions and integration with MC's Internet site. During the
term of this Agreement, ILSI will have a royalty-free worldwide license to use
MC CLOser(R) in connection with the origination and processing of Subprime Loans
under the terms of this Agreement and in connection with any other loans for
which MC receives compensation as described in Article IV. This licensed use of
MC CLOser(R) by ILSI shall not apply to any loans processed, closed and funded
by
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ILSI without the participation and compensation of MC as described in Section
2.4(d), or other compensation arrangement agreed upon by the parties.
(b) Engineering and Other Resources. MC shall coordinate all tasks
related to the integration of the MC systems, including CLOser(R), with the
Website. MC will dedicate a minimum of one full-time person to this effort. MC
shall further provide such additional staff as are needed from time to time to
work with ILSI as quickly and efficiently as reasonably possible to achieve the
development and operational objectives agreed to by the parties. The parties
shall work together to determine the tasks to be performed, the staffing needed
and the timing of completion of the tasks.
(c) Security. MC shall maintain ICSA E-Commerce security standards on
all data transmissions involving Subprime Loans at all times.
2.6 Agreement with Participating Lenders. MC shall use its best efforts
to enter into arrangements with Participating Lenders for the purchase of
Subprime Loans originated through the Website in accordance with this Agreement.
To the extent that MC charges participation fees to other lenders, ILSI and MC
shall share such fees on a 50/50 basis.
2.7 Use of Name "FMN" and "First Mortgage Network" on Website. MC shall
take all necessary action to file the trade names "FMN" and "First Mortgage
Network" in the appropriate jurisdictions, and otherwise maintain its ownership,
right and license to use such names in connection with MC products and services.
MC shall cooperate with ILSI in identifying MC products and services on the
Website, through "Quicken"-related portals, co-branded sites and in other media
and communications with consumers in connection with "Quicken" as "FMN" and/or
"First Mortgage Network" products and services.
ARTICLE III
OPERATIONS AND STANDARDS
3.1 Timing of Offering Subprime Loans. The parties shall work together
to begin offering Subprime Loans under the terms of this Agreement by May 31,
1999, or as soon thereafter as practicable (the "Commencement Date"). The first
contract year under this Agreement with respect to Subprime Loans shall begin on
the Commencement Date and end on the date 12 months following the Commencement
Date. The successive contract years under this Agreement shall begin and end on
such dates of the following years (each, a "Contract Year").
3.2 [Redacted]
3.3 [Redacted]
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(b) The above ratios will be reviewed by the parties after six (6)
months following the Commencement Date (or such other time periods determined by
the parties). During the six (6) month review, the parties agree to negotiate in
good faith to agree on appropriate ratios. The parties may further adjust such
ratios from time to time by agreement in writing.
(c) If MC does not achieve the agreed-upon conversion ratios for three
(3) consecutive months (based upon a blended average of the categories), then,
upon written notice from ILSI, MC shall have ninety (90) days to cure the
shortfall. Cure shall be effected by MC's achieving the blended average
conversion ratios during the ninety (90) day cure period. If the shortfall
continues after the end of the cure period, ILSI shall have the right to
terminate this Agreement in accordance with Article VIII below.
3.4 Service Levels for Subprime Loans. MC shall perform the following
customer services in connection with Subprime Loans:
(a) Customer Survey. The parties shall design a mutually
acceptable customer survey and establish minimum goals for customer
satisfaction. MC shall transmit the survey to all borrowers at the time of
closing of Subprime Loans. The parties will develop and implement process
improvements to address instances of failure to meet customer satisfaction
goals.
(b) Quality Control Standards. The parties shall cooperate
with each other to develop mutually acceptable quality control standards for
Subprime Loans, which the parties shall work together to maintain. The parties
will develop and implement process improvements to address instances of failure
to meet minimum quality control standards.
(c) Amount of Time to Close Loans. [Redacted]
If MC fails to achieve the above service levels for two (2) consecutive
months, then upon written notice from ILSI, MC shall take reasonable measures to
improve service levels within 15 days and shall cure such failure within an
additional 45 days. Furthermore, if ILSI identifies a pattern of material
problems resulting from MC conduct, which problems have resulted in specific
instances of customer complaints, then upon written notice from ILSI, MC shall
take reasonable measures to improve service levels within 15 days and shall cure
the underlying problems within 45 days.
If the service shortfall is not cured to ILSI's satisfaction during the
cure period, then, notwithstanding any other term of this Agreement to the
contrary, ILSI shall have
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the right to terminate this Agreement in accordance with Article VIII of this
agreement.
(d) Customer Service Commitment. ILSI and MC agree that
excellent customer service represents one of the foundations for building a
successful business and is a consideration for this Agreement. To that end, the
parties agree to the following customer service standards:
MC shall deliver customer service performance at least equal to the
service level standards delivered by the average of the two lenders on the
Website determined to have the highest customer service levels (defined as
lowest ratio of complaints to applications) ("High Service Standard"). The two
lenders whose customer service levels are averaged to determine the High Service
Standard shall be selected from among the four lenders on the Website with the
highest application volume. The High Service Standard will be measured monthly,
and will be determined by the ratio of customer complaints received (and found
in ILSI's reasonable judgement to result from lender actions) regarding a
specific lender to the total applications taken by that lender during the month.
If MC's customer service fails to meet the High Service Standard for
two (2) consecutive months, then upon written notice from ILSI, MC shall take
reasonable measures to improve service levels within 15 days and shall cure such
failure to meet the High Service Standard within an additional 45 days; provided
however, that if ILSI identifies a pattern of material problems resulting from
MC conduct, which problems have resulted in specific instances of customer
complaints, then upon written notice from ILSI, MC shall take reasonable
measures to improve service levels within 15 days and shall cure the underlying
problems within 45 days.
If the service shortfall is not cured during the cure period, then,
notwithstanding any other term of this Agreement to the contrary, ILSI shall
have the right to terminate this Agreement in accordance with Article VIII of
this agreement.
For purposes of this section a problem shall not be deemed to be
material if the specific events complained of occur in fewer than 2% of loan
applications taken by MC. The provisions of this Section 3.5(d) shall not apply
during any period where actual loan conversion ratios exceed the capacity levels
established and agreed to by the parties, as described in Section 3.3.
3.5 Improving Processing Time. ILSI and MC shall work together and with
GHR to integrate their respective technologies in order to improve processing,
underwriting and closing processes. The parties shall work with each other and
GHR to improve the quality and nature of the back office services so as to
reduce the time, cost and difficulty to the customer of obtaining a Subprime
Loan.
ARTICLE IV
COMPENSATION
4.1 Federal and State Law. The compensation structure set forth below
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reflects the intent of the parties but is subject to change, by mutual agreement
of the parties, to comply with applicable federal and state laws and
regulations.
4.2 [Redacted]
4.3 Fees for ILSI's Services and Facilities. [Redacted]
ILSI's services and facilities, as described in the Agreement shall
include, without limitation, educating the customer on the home buying and
financing process through various articles and chat services on the Website,
providing calculators for the customer to determine appropriate loan products
available, taking customer information and compiling the information into an
application, analyzing the customer's income and debt and pre-qualifying the
customer for Subprime Loans, providing disclosures, and assisting the borrower
in understanding and clearing credit problems, including debt consolidation
advice, and related services and facilities contemplated by this Agreement.
ARTICLE V
EXCLUSIVITY
5.1 Multi-Lender Mortgage Sites. [Redacted]
5.2 Exclusivity with Respect to Subprime Loans. [Redacted]
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ARTICLE VI
REPRESENTATIONS, WARRANTIES AND COVENANTS
6.1 Representations and Warranties of MC. MC represents and warrants
that the following is true and correct and shall remain true and correct during
the Term:
(a) Authority. MC is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida with full
corporate power and authority to transact any and all business contemplated by
this Agreement and it possesses all requisite authority, power, licenses,
permits and franchises to conduct its business as presently conducted. Its
execution, delivery and compliance with its obligations under the terms of this
Agreement are not prohibited or restricted by any government agency. MC has
taken all necessary action to authorize its execution, delivery and performance
of this Agreement.
(b) Conflict with Existing Laws or Contracts. The execution
and delivery of this Agreement and the performance of its obligations hereunder
by MC will not (i) conflict with or violate (A) MC's Certificate of
Incorporation or By-laws, or (B) any provision of any law or regulation or any
decree, demand or order to which MC is subject, or (ii) conflict with or result
in a breach of or constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under any of the terms, conditions
or provisions of any agreement or instrument to which MC is a party or by which
it is bound or any order or decree applicable to MC or result in the creation or
imposition of any lien on any of its assets or property.
(c) Licenses and Consents. MC has obtained all necessary or
required governmental licenses, permits, approvals, and consents for the
transactions contemplated by this Agreement. No consent, approval, authorization
or order of any court or governmental agency or body is required for the
execution, delivery and performance by MC of or compliance by MC with this
Agreement, or if required, such approval has been obtained or will be obtained
prior to the date of this Agreement.
(d) Legal Action Against MC. There is no claim, action, suit,
proceeding or investigation pending or, to the best of MC's knowledge,
threatened against MC or against any of its principal officers, directors or key
employees, which, either in any one instance or in the aggregate, may result in
any adverse change in the business, operations, financial condition, properties
or assets of MC, or in any impairment of the
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right or ability of MC to carry on its business substantially as now conducted
through its existing management group, or in any material liability on the part
of MC, or which would draw into question the validity of this Agreement or any
of the other instruments, documents or agreements entered into by MC in
connection with this Agreement, or of any action taken or to be taken in
connection with the obligations of MC contemplated therein, or which would be
likely to impair the ability of MC to perform the terms of this Agreement.
(e) Binding on MC; Enforceability. This Agreement, assuming
due authorization, execution and delivery hereof, and all the obligations of MC
hereunder, constitute the valid and binding obligations of MC, enforceable
against MC in accordance with the terms hereof, except as such enforcement may
be limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws affecting the enforcement of creditors' rights in general and by
general equity principles (regardless of whether such enforcement is considered
in a proceeding in equity or at law).
(f) Compliance With Laws. MC has complied and will continue to
comply with all applicable federal and state laws and regulations in its
business operations, in the loan origination activities proposed to be
conducted, and in the performance of this Agreement. In particular, MC
represents and warrants that its loan origination, processing and underwriting
systems, including, without limitation, the MC CLOser(R), comply with applicable
state and federal laws and regulations, including, without limitation, the Fair
Housing Act, Truth-in-Lending Act, and ECOA. MC will not seek to hold ILSI
liable in any action prosecuted against MC by a borrower, government agency, or
other party which alleges non-compliance with the laws applicable to originators
of mortgage loans, provided that neither the bad faith or wilful misconduct of
ILSI materially contributed to the circumstances giving rise to the claim
against MC. MC will maintain errors and omissions insurance, fidelity bonds and
similar financial instruments designed to protect those with whom it deals in
the origination of mortgage loans, in commercially reasonable amounts, and to
provide evidence of such instruments to ILSI upon request. ILSI will be a named
or additional insured in such policies and instruments. The types and amounts of
insurance, bonds and other financial instruments maintained by MC will be
subject to approval and upward revision by ILSI in its reasonable discretion, as
the volume of MC activity subject to this Agreement increases.
MC represents on behalf of its officers, directors, and key employees
that none of these individuals are currently in violation of any federal, state
or other law or regulation applicable to them in their professional capacities
as mortgage bankers, mortgage brokers, or any other regulated field or
occupation, except as disclosed to ILSI in writing in connection with this
Agreement, and that there is no pending legal, administrative or similar action
pending against any of them that would affect their ability to perform their
obligations to MC or to the Participating Lenders, or to ILSI hereunder.
6.2 Representations and Warranties of ILSI. ILSI represents and
warrants that the following is true and correct and shall remain true and
correct during the Term:
(a) Authority. ILSI is a corporation duly organized, validly
existing
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and in good standing under the laws of the State of Delaware with full corporate
power and authority to transact any and all business contemplated by this
Agreement and it possesses all requisite authority, power, and material
licenses, permits and franchises to conduct its business, and to execute,
deliver and comply with its obligations under this Agreement. The execution of
this Agreement and its delivery and the performance by ILSI of its obligations
under this Agreement are not prohibited or restricted by any government agency.
ILSI has taken all necessary action to authorize the execution, delivery and
performance of this Agreement.
(b) Conflict with Existing Laws or Contracts. The execution
and delivery of this Agreement and the performance of its obligations hereunder
by ILSI will not (i) conflict with or violate (A) ILSI's Certificate of
Incorporation or By-laws, or (B) any provision of any law or regulation or any
decree, demand or order to which ILSI is subject, or (ii) conflict with or
result in a breach of or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under any of the terms,
conditions or provisions of any agreement or instrument to which ILSI is a party
or by which it is bound or any order or decree applicable to ILSI or result in
the creation or imposition of any lien on any of its assets or property.
(c) Licenses and Consents. ILSI, in connection with
performance of its duties under this agreement, has obtained or will obtain all
necessary or required governmental licenses and consents requisite for the
transactions contemplated by this Agreement. No consent, approval, authorization
or order of any court or governmental agency or body is required for the
execution, delivery and performance by ILSI of or compliance by ILSI with this
Agreement, or if required, such approval has been obtained prior to the date of
this Agreement.
(d) Legal Action Against ILSI. There is no claim, action,
suit, proceeding or investigation pending or, to the best of ILSI's knowledge,
threatened against ILSI, which, either in any one instance or in the aggregate,
may result in any material adverse change in the business, operations, financial
condition, properties or assets of ILSI, or in any material impairment of the
right or ability of ILSI to carry on its business substantially as now
conducted, or in any material liability on the part of ILSI, or which would draw
into question the validity of this Agreement, or any of the other instruments,
documents or agreements entered into by ILSI in connection with this Agreement,
or of any action taken or to be taken in connection with the obligations of ILSI
contemplated therein, or which would be likely to impair materially the ability
of ILSI to perform under the terms of this Agreement.
(e) Binding on ILSI; Enforceability. This Agreement, assuming
due authorization, execution and delivery hereof, and all the obligations of
ILSI hereunder, constitute the valid and binding obligations of ILSI,
enforceable against ILSI in accordance with the terms hereof, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws affecting the enforcement of creditors' rights in general
and by general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
13
(f) Compliance With Laws. ILSI has complied and will continue
to comply with all applicable federal and state laws and regulations in its
business operations, in the operation of the Website, and in the performance of
this Agreement.
6.3 Covenants.
----------
(a) Compliance with Laws. MC and ILSI covenant to each other
that they will comply with all applicable federal and state laws and regulations
in performing their respective obligations under this Agreement. Any successful
challenge of any particular provision of this Agreement, including the
compensation provisions, by any governmental authority, will, at the option of
either party hereto, constitute sufficient cause for termination of this
Agreement if the Agreement and its purposes cannot be reasonably effectuated
without the challenged provision or term.
(b) Continuing Obligations of the Parties. The parties shall
cooperate with each other in the performance of this Agreement until the
termination hereof. Neither party shall take any action or refrain from taking
any action which would jeopardize or compromise the performance of the Website
or MC's systems or which would hinder the performance by the parties of their
respective services to the Participating Lenders and to their customers. Each
party shall promptly forward to the other all notices, claims, letters,
documents and other information received by such party which are relevant to the
performance of this Agreement. The parties shall provide to each other all
information and documentation regarding their respective products and services
which are necessary or relevant to the performance of the transactions
contemplated by this Agreement.
(c) MC's Books and Records. MC shall make all material books
and records pertaining to the services and facilities provided under this
Agreement, including without limitation, records and reports on Inquiries,
Prequalifications and Applications that are initiated through the Website and
any other services and facilities provided to ILSI, available for inspection at
MC's offices or any other mutually convenient location upon five (5) days prior
notice by ILSI.
(d) Further Assurances. At any time, and from time to time
after the execution of this Agreement, upon the reasonable request of a party
hereto, and at the expense of such party, the other party shall do, execute,
acknowledge and deliver, and shall cause to be done, executed, acknowledged and
delivered, all such further acts, deeds, assignments, transfers, conveyances,
powers of attorney and assurances as may be reasonably required in order to
enable the parties to perform their respective obligations hereunder and carry
out the terms of this Agreement.
ARTICLE VII
INDEMNIFICATION
7.1. General Indemnification by ILSI. ILSI shall indemnify MC and any
directors, officers, employees or agents of MC (collectively, "MC Indemnified
Parties")
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and hold each of them harmless from and against any and all claims, losses,
damage, penalties, fines, forfeitures, reasonable legal fees and expenses
(including attorneys' fees) and related costs, expenses of litigation,
judgments, and any other costs, fees and expenses (each, a "Liability" and
collectively "Liabilities") that were caused by or resulted from a breach of any
of ILSI's representations, warranties, covenants and agreements contained in
this Agreement or by ILSI's willful misfeasance, bad faith or gross negligence
in the performance of or failure to perform as provided in this Agreement.
7.2. General Indemnification by MC. MC shall indemnify ILSI and any
directors, officers, employees or agents of ILSI (collectively, "ILSI
Indemnified Parties") and hold each of them harmless from and against any and
all Liabilities that were caused by or resulted from a breach of any of MC's
representations, warranties, covenants and agreements contained in this
Agreement or by MC's willful misfeasance, bad faith or gross negligence in the
performance of or failure to perform as provided in this Agreement. Further, MC
shall indemnify the ILSI Indemnified Parties for losses, damages or Liabilities
resulting from MC's failure to adhere to commercially reasonable standards and
any applicable canons of ethics in the origination, processing or funding of
mortgage loans. The indemnification based on the professional conduct of MC
shall not be limited to willful acts, bad faith or gross negligence.
7.3 Survival of Indemnifications. MC's and ILSI's respective
obligations to indemnify any ILSI Indemnified Party or any MC Indemnified Party
will survive the expiration or termination of this Agreement by either party for
any reason.
7.4 Notice of Claims. Each party shall promptly notify the other in
writing of any and all litigation and claims known to such party made against it
or the other party in connection with this Agreement.
ARTICLE VIII
TERM AND TERMINATION
8.1 Term. This Agreement shall remain in effect for three Contract
Years following the Commencement Date (the "Initial Term"). Thereafter this
Agreement may be renewed for successive three Contract Year terms unless either
party notifies the other at least 30 days prior to the end of a term that it is
terminating the Agreement at the end of the current term. The Initial Term,
together with any successive terms shall be referred to herein as the "Term."
8.2 Termination. This Agreement may be terminated by written notice of
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:
(a) Breach of the Agreement. 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)
15
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 MC merges with, or is acquired by, a third
party, and, in the reasonable opinion of ILSI, such change in control materially
adversely affects MC'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 MC is the surviving
entity.
(c) Change in Financial Condition. If MC 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 MC written notice
and a 15-day opportunity to cure, MC'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 MC's financial condition results in MC'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) Performance. If MC does not meet its minimum requirements for
closing Subprime Loans as set forth in Section 3.3 of this Agreement, ILSI shall
notify MC in writing of the shortfall. MC shall have ninety (90) days after
notice to cure the shortfall. If MC has failed to cure the shortfall during that
period, then ILSI may terminate this Agreement after six (6) months' prior
written notice.
(e) [Redacted]
(f) 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.
ARTICLE IX
MISCELLANEOUS
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9.1 Notices. Any written notice required or permitted to be given to the parties
hereunder shall be addressed as follows:
If to ILSI: Intuit Lender Services, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxx Xxxxx, President
Xxxx_Xxxxx@xxxxxx.xxx
with a copy to:
Xxxxxx Xxx Xxxxxxx, Esq.
Negroni & Winston PLLC
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Tel: 000-000-0000
Fax: 000-000-0000
xxx@xxxxxxx.xxx
If to MC:
Xxxx Xxxxxx, Chairman
Xxxxxxxx.xxx, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
E-mail address Xxxxxxxxxx@xxxxxxxx.xxx
with a copy to:
Xxxxxxx Xxxxxxx, General Counsel
Xxxxxxxx.xxx, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
E-mail address: xxxxxxxxxxxxxx@xxxxxxxx.xxx
All notices shall be in writing and delivered in person or shall be
sent by registered or certified mail, return receipt requested, and shall be
deemed effective, three days after the same is mailed as provided above with
postage prepaid. Notice sent by any other method shall be effective only upon
actual receipt.
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9.2 Assignment; Contracting. Neither party may assign its rights or
obligations hereunder, by operation of law or otherwise, without the express
written consent of the other, except that (i) either party may assign any of its
obligations or rights, in whole or in part, to any parent, affiliate or
subsidiary of such party, and (ii) the acquisition of all or substantially all
of the voting securities of a party by merger or otherwise, shall not constitute
an assignment of its rights or obligations hereunder. Any attempted assignment
in violation of the foregoing will be null and void. Subject to the foregoing,
this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
9.3 [Redacted]
9.4 Waiver. No term or provision hereof will be deemed waived, and no
variation of terms or provisions hereof shall be deemed consented to, unless
such waiver or consent shall be in writing and signed by the party against whom
such waiver or consent is sought to be enforced. Any delay, waiver or omission
by ILSI or MC to exercise any right or power arising from any breach or default
of the other party in any of the terms, provisions or covenants of this
Agreement shall not be construed to be a waiver by ILSI or MC of any subsequent
breach or default of the same or other terms, provisions or covenants on the
part of either party.
9.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of California, without respect to its conflicts of law
principles.
9.6 Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto relating to the subject matter hereof, except where
expressly noted herein, and all prior negotiations, agreements and
understandings, whether oral or written, are superseded or canceled hereby.
9.7 Modification. This Agreement may not be amended or modified except
in a written document signed by both parties.
9.8 Severability. If any provision of this Agreement is declared or
found to be illegal, unenforceable or void, this Agreement shall be construed as
if not containing that
18
provision, and the rest of the Agreement shall remain in full force and effect,
and the rights and obligations of the parties hereto shall be construed and
enforced accordingly.
9.9 Independent Contractor. MC, in performance of this Agreement, is
acting as an independent contractor, is not the partner, joint venturer or agent
of ILSI and has no authority to act on behalf of ILSI except as necessary or
desirable to carry out MC's obligations under this Agreement. The parties shall
each be responsible for payment of their respective taxes and assessments
incurred in connection with performance of this Agreement. Neither party's
employees are eligible for employee benefits of the other party.
9.10 Confidentiality. Each party agrees to keep all information related
to the other party confidential, as provided in the Non-Disclosure Agreement
dated April 29, 1998. The parties further agree that the business strategy,
marketing plans and product specifications of either party disclosed in
connection with this transaction, as well as the terms of this Agreement, are
confidential and shall not be used by the other party or disclosed by such other
party to third parties unless such information is (i) required to effect the
transactions contemplated herein, (ii) in the public domain or already in the
possession of a party prior to the disclosure to it by the other party
(including information received lawfully from third parties without an
obligation of confidentiality); or (iii) required by law or regulation to be
disclosed.
9.11 Definitions. Except where otherwise defined herein, capitalized
terms used in this Amendment shall have the meaning set forth below.
(a) The term "Submission" shall mean any Inquiry through the Website or
call centers, any Prequalification or Application.
(b) The term "Subprime" shall mean having an investment grade of "B" or
below.
(c) The term "Subprime Loans" shall mean residential mortgage
loans, which are Subprime and are offered by ILSI through the Website
or through portals, other co-branded sites or call centers.
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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.
By: /s/ [illegible]
------------------------------------
Name: [illegible]
----------------------------------
Title: President & CEO
---------------------------------
XXXXXXXX.XXX, INC.
By: /s/
-----------------------------------
Name: Xxxx X. Xxxxxxx
---------------------------------
Title: President, Consumer DirectGroup
--------------------------------
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APPENDIX A
INDEX OF RATES OF LENDERS
[Redacted]
00
XXXXXXXX X
[Redacted]
