EXHIBIT 99.3
Confidential information omitted where indicated by "*" has been filed
separately with the Commission pursuant to a request for confidential treatment
under Rule 24b-2 of the Securities Exchange Act of 1934.
MARKETING AGREEMENT
by and between
Xxxxxxx Xxxxxx & Co., Inc.
and
E-Loan Inc.
made and entered into
as of April 25, 2000
TABLE OF CONTENTS
PAGE
RECITALS ..........................................................1
I MARKETING OF E-LOAN SERVICES.........................................2
1.1 Schwab Mortgage Website...................................2
1.2 Access to the Schwab Mortgage Website.....................2
1.3 Customer Service and Loan Service Support.................2
1.4 Restrictions..............................................3
1.5 Additional Promotions ....................................3
1.6 Integrations and Future Integrations .....................3
II OPERATION OF THE SCHWAB MORTGAGE WEBSITE.............................4
2.1 Operation and Maintenance of the Schwab Mortgage Website..4
2.2 Content on the Schwab Mortgage Website....................5
2.3 Advertising and Links.....................................6
2.4 Customer Service Standards................................6
2.5 Responsibilities of E-Loan to Customers ..................6
III E-LOAN SERVICES......................................................6
3.1 Standard of Care..........................................6
3.2 Compliance with Law.......................................7
3.3 Customer Service..........................................7
3.4 Review Rights.............................................7
3.5 Reports to Schwab.........................................8
3.6 Inspection Rights.........................................8
3.7 Schwab Employee Discounts ................................8
IV XXXXXX'X RESPONSIBILITIES............................................9
4.1 Standard of Care..........................................9
4.2 False, Inaccurate and Misleading Statements...............9
4.3 Document Review Rights....................................9
V OWNERSHIP AND EXCLUSIVITY............................................9
5.1 Ownership of Schwab Materials.............................9
5.2 Ownership of E-Loan Materials.............................9
5.3 Right to Own Customer Information........................10
5.4 Treatment of Customer Information........................10
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TABLE OF CONTENTS
PAGE
5.5 Exclusive Relationship...................................10
5.6 Independent Development .................................11
VI LICENSE TO USE MARKS................................................11
6.1 License to Use "Xxxxxx Xxxx".............................11
6.2 License to "E-Loan Marks"................................12
6.3 Ownership and Use of Marks...............................12
VII INDEMNIFICATION.....................................................13
7.1 Indemnification of Schwab................................13
7.2 Notifications and Other Indemnification Procedures.......14
7.3 Settlements..............................................??
viii COMPENSATION TO SCHWAB..............................................16
8.1 Marketing Fee............................................16
8.2 Warrant..................................................16
ix REPRESENTATIONS, WARRANTIES AND COVENANTS...........................17
9.1 Reciprocal Warranties....................................17
9.2 Representations, Warrants and Covenants of E-Loan........17
9.3 E-Loan's Year 2000 Representation........................18
9.4 Xxxxxx'x Year 2000 Representation........................18
X CONFIDENTIALITY AND NON-SOLICITATION................................18
10.1 Definition of Confidential Information...................18
10.2 Exclusions...............................................19
10.3 Treatment of Confidential Information....................19
10.4 Compelled Disclosures....................................20
10.5 Return of Confidential Information.......................20
10.6 Solicitation of Schwab Customers.........................21
10.7 Non-Exclusive Equitable Remedy...........................21
XI TERMINATION.........................................................22
11.1 Term.....................................................22
11.2 Termination on Breach of Law.............................22
11.3 Termination on Breach of Agreement.......................22
11.4 Termination Based on Effectiveness of Marketing..........23
11.5 Effects of Termination...................................24
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TABLE OF CONTENTS
PAGE
11.6 Transition Matters.......................................24
XII MISCELLANEOUS PROVISIONS............................................25
12.1 Board Seat...............................................25
12.2 Disclosure of Relationship...............................25
12.3 Confidentiality of Terms and Results.....................25
12.4 Insurance................................................25
12.5 Notices..................................................26
12.6 Application of Law; Venue................................26
12.7 Headings, Articles and Sections..........................26
12.8 Independent Parties......................................27
12.9 Amendments...............................................27
12.10 Number and Gender........................................27
12.11 Counterparts.............................................27
12.12 Attorneys' Fees..........................................27
12.13 Arbitration..............................................27
12.14 Cooperation..............................................28
12.15 Severability.............................................28
12.16 Entire Agreement.........................................28
12.17 Authorship...............................................28
12.18 Force Majeure............................................28
12.19 Assignment...............................................29
iii
MARKETING AGREEMENT
This Marketing Agreement ("AGREEMENT") is made and entered
into as of April 25, 2000 ("EFFECTIVE DATE"), by and between Xxxxxxx Xxxxxx &
Co., Inc., a California corporation located at 000 Xxxxxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, XX 00000 ("SCHWAB") and E-Loan Inc., a Delaware corporation located
at 0000 Xxxxxx Xxxx, Xxxxx 000, Xxxxxx, XX 00000 ("E-LOAN").
RECITALS
X. Xxxxxx, a securities broker known nationally for its
integrity, innovation and customer service, maintains two separate websites
through the Internet and the World Wide Web relating to financial services: (1)
a Schwab "client only" private website accessible only by Schwab clients (the
"PRIVATE WEBSITE"); and (2) a generally accessible public website (the "PUBLIC
WEBSITE") (the Private Website and the Public Website are collectively called
"SCHWAB WEBSITES");
B. E-Loan, an on-line lender and loan broker which maintains a
website (the "E-LOAN WEBSITE") which, among other things, provides domestic and
international real estate lending services, auto lending services and other
credit arrangements to persons through the Internet and the World Wide Web.
E-Loan desires to advertise its domestic real estate lending services as
specified in Exhibit A attached hereto (hereafter "E-LOAN SERVICES") on the
Schwab Websites and to obtain a license to use the "Schwab" name in connection
with marketing certain of E-Loan Services;
C. In order to assist E-Loan in the marketing of E-Loan
Services, Schwab and E-Loan intend to develop a co-branded website (the "SCHWAB
MORTGAGE WEBSITE") on which E-Loan will offer E-Loan Services to Xxxxxx'x
clients and other persons accessing the Schwab Mortgage Website. Those persons
accessing the Schwab Mortgage Website and others seeking E-Loan Services as a
result of the marketing efforts supporting this Agreement are hereinafter
referred to as "CUSTOMERS".
NOW, THEREFORE, in consideration of the respective
representations, warranties, covenants, agreements, and conditions contained in
this Agreement, and in return for good and valuable consideration, the receipt
and sufficiency of which are hereby specifically acknowledged, Schwab and E-Loan
hereby agree as follows:
TERMS OF AGREEMENT
I
MARKETING OF E-LOAN SERVICES
1.1 SCHWAB MORTGAGE WEBSITE. E-Loan will create the Schwab Mortgage
Website, an internet site accessible by Customers, that will have the "look and
feel" of the Schwab Websites including the current navigation header, with
graphical reference to E-Loan. The date the Schwab Mortgage Website is readily
accessible to the general public via the Schwab Links or otherwise will be
referred to as the "LAUNCH DATE". The Schwab Mortgage Website will contain
various hypertext links to mortgage tools, services, and articles provided by
E-Loan and shall enable Customers to, at a minimum, (a) search for rates for
domestic mortgages, home equity loans, and refinancings (collectively "LOAN
PRODUCTS") from a variety of lenders; (b) apply online for a Loan Product; and
(c) prequalify for a Loan Product. All hypertext links from the Schwab Mortgage
Website shall be subject to the prior written approval of Schwab. All tools,
services, and articles will have a Schwab Mortgage Website co-branded header,
and use the current Schwab navigation header and E-Loan sidebar and footer. Both
parties shall agree to the "look and feel" of the Schwab Mortgage Website.
1.2 ACCESS TO THE SCHWAB MORTGAGE WEBSITE. Schwab and E-Loan will cooperate
in creating, as soon as possible, a readily accessible link between the Schwab
Mortgage Website, the Schwab Websites and, as determined by Schwab, one or more
websites developed, owned, licensed, operated, hosted or otherwise controlled by
Schwab or any Schwab affiliate. Schwab and E-Loan will also cooperate in
creating, as soon as possible, a means to allow Customers access to the Schwab
Mortgage Website by e-mail link, as mutually determined by the parties. All
methods by which Schwab will link Customers to the Schwab Mortgage Website will
be referred to as the "SCHWAB LINKS." Schwab and E-Loan will each pay their own
costs for creating and accepting the Schwab Links. The Schwab Links and the
Schwab Mortgage Website will include such caveats and disclaimers as Schwab and
E-Loan deem necessary or appropriate in the form and location determined by
Schwab and E-Loan.
1.3 CUSTOMER SERVICE AND LOAN SERVICE SUPPORT. E-Loan shall provide
customer service support to users accessing the E-Loan Services. E-Loan shall
create and maintain a toll-free customer service line designed and intended to
be for the exclusive use of Customers (the "Mortgage Service Line"). Schwab and
E-Loan shall create a "warm transfer" telephone call from a Schwab line to the
Mortgage Service Line. In supporting the Mortgage Service Line, E-Loan shall
provide Schwab with customer service metrics and policies which are equal or
superior to E-Loan's standard metrics and
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policies. E-Loan shall provide a level of service to Customers that is equal or
superior to the level of service E-Loan is then providing to other E-Loan
customers.
1.4 RESTRICTIONS. Other than by engaging in the activities described in
Sections 1.1, 1.2 and 1.3 above, E-Loan shall not (i) describe Xxxxxx'x
brokerage services (other than disseminating or posting promotional or
advertising materials approved in each case by Schwab pursuant to Section 3.4
below); (ii) become involved in the financial services offered by Schwab,
including, without limitation, by: (A) opening, maintaining, administering, or
closing customer brokerage accounts with Schwab; (B) soliciting, processing, or
facilitating securities transactions relating to customer brokerage accounts
with Schwab; (C) extending credit to any Customer for the purpose of purchasing
securities through, or carrying securities with, Schwab; (D) answering Schwab
client inquiries or engaging in negotiations involving brokerage accounts or
securities transactions; (E) accepting Schwab client securities orders,
selecting among broker-dealers or routing orders to markets for Schwab
execution; (F) handling funds or securities of Schwab clients, or effecting
clearance or settlement of client securities trades; or (G) resolving or
attempting to resolve any problems, discrepancies, or disputes involving Schwab
client accounts or related transactions. E-Loan acknowledges that engaging in
any of the above activities may subject E-Loan to broker-dealer registration
requirements under the Securities Exchange Act of 1934 and applicable state law.
1.5 ADDITIONAL PROMOTIONS. Schwab shall promote the Schwab Mortgage Website
through various written and electronic mediums up to an aggregate expense of [*]
Dollars [*] per twelve month period beginning as of the Effective Date year. All
such materials will be subject to the review and consent of Schwab and E-Loan
pursuant to Sections 3.4 and 4.3. Schwab will invoice E-Loan monthly for the
costs of such promotional materials and services, which invoice shall be paid
within thirty (30) days. If both parties agree, additional promotional expense
above and beyond the annual [*] Dollars [*] may be incurred. E-Loan will be
invoiced for these additional costs.
1.6 INTEGRATIONS AND FUTURE INTEGRATIONS. E-Loan shall provide all Schwab
clients, whether or not Customers, with access to E-Loan's current and future
tools and calculators. Schwab may use any or all of such tools on the Schwab
Websites, other websites maintained by Schwab, or any third party website linked
to the Schwab Websites or any of its affiliates' websites. Furthermore, it is
the intention of the parties to enter into further discussions concerning the
potential further integration of Xxxxxx'x and E-Loan's technologies, however,
nothing contained herein will obligate any party hereto to enter into any
arrangement to integrate such technologies.
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II
OPERATION OF THE SCHWAB MORTGAGE WEBSITE
2.1 OPERATION AND MAINTENANCE OF THE SCHWAB MORTGAGE WEBSITE. E-Loan
acknowledges and agrees that it will be solely responsible for the operation and
maintenance of the Schwab Mortgage Website. E-Loan accepts all responsibility
for ensuring that the use of the Schwab Mortgage Website complies with this
Agreement and all applicable federal, state, local, foreign and self-regulatory
authorities' laws, rules and regulations. Without limiting the generality of the
foregoing, E-Loan's responsibilities include, without limitation:
(A) MAINTENANCE OF THE SCHWAB MORTGAGE WEBSITE. E-Loan shall maintain
the Schwab Mortgage Website, including all necessary computer systems and
telecommunications capabilities, in accordance with applicable industry
standards and the specifications set forth in the "SYSTEM PERFORMANCE STANDARDS"
attached hereto as Exhibit B.
(B) SUPPORT SERVICES. E-Loan shall, at its own expense, offer to
Customers customer support of the Schwab Mortgage Website which is designed and
intended to be exclusively available to Customers. All forms of support
available to E-Loan customers shall be made available to Customers (i.e. phone
support, live chat, U.S. mail and e-mail). E-Loan customer service
representatives supporting the Loan/Call Center referenced in Section 2.4, shall
use a script designed by E-Loan and approved by Schwab pursuant to Section 3.4.
On-going navigational support for the Schwab Mortgage Website will be provided
by E-Loan. Schwab may also request, from time to time, that E-Loan provide
additional support features and E-Loan shall consider such requests in good
faith.
(C) SYSTEM AVAILABILITY AND INTEGRITY. E-Loan shall maintain its
systems including the Schwab Mortgage Website so as to be available 99% of the
time and to provide 99.9% data integrity. The user interface response time for
the Schwab Mortgage Website shall be no less than that experienced on the E-Loan
Website. E-Loan shall maintain disaster recovery capabilities so as to resume
business functionality within one hour. E-Loan shall maintain a secure server
for the operation of the Schwab Mortgage Website so that no Customer information
can be read by a third party intercepting the transmission.
(D) QUALITY CONTROL. E-Loan will institute quality controls, including
suitable testing procedures, to ensure the availability of the Schwab Mortgage
Website and to ensure that the Schwab Mortgage Website performs in accordance
with the applicable specifications and in a manner consistent with the highest
applicable industry standards. Subject to Article X hereof, upon Xxxxxx'x
reasonable request, Schwab will have the right to review E-Loan's quality
controls in order to verify the quality of the
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Schwab Mortgage Website and the Schwab Mortgage Website's performance. Xxxxxx'x
possession of information gleaned from such review shall be treated as
Confidential Information, as defined below, of E-Loan; and Xxxxxx'x right to
review and/or possession of such information will not obligate Schwab to
establish procedures for dealing with E-Loan's quality controls.
(E) PROBLEM RESOLUTION. On discovery of any significant bugs, errors
in, or problems with the Schwab Mortgage Website, E-Loan shall notify Schwab
within sixty (60) minutes of such discovery and shall advise Schwab when the
problem will be resolved or the next update provided. During the term of this
Agreement, E-Loan shall promptly resolve all significant bugs or errors in, or
problems with the Schwab Mortgage Website reported by Schwab, Customers, other
E-Loan customers or discovered by E-Loan, but in any event no longer than
twenty-four (24) hours after such problem is reported. If E-Loan reasonably
believes that certain bugs or errors cannot be corrected within twenty-four (24)
hours, E-Loan shall provide Schwab with (i) a description of the problem, (ii)
its proposed solution for the problem, and (iii) a commercially reasonable time
estimate for implementation of the solution for the problem within twenty-four
(24) hours after the bug or error is reported.
2.2 CONTENT ON THE SCHWAB MORTGAGE WEBSITE. Subject to Section 1.1 hereof,
E-Loan shall be solely responsible for creating, editing, reviewing, deleting
and otherwise controlling all content that E-Loan posts or otherwise publishes
on the Schwab Mortgage Website, including enforcing its rules relating to the
posting of content by third parties and clients. In connection with such
content, E-Loan represents, warrants and covenants to Schwab that, in connection
with the materials published by E-Loan:
(A) such content does not and will not infringe or violate the
intellectual property rights of any third party;
(B) such content does not and will not (i) contain any false,
defamatory or offensive material, or (ii) violate any applicable law, rule or
regulation;
(C) E-Loan has sufficient rights to such content to grant to Schwab and
to Customers the rights set forth in this Agreement; and no consent of any third
party is necessary for E-Loan to enter into this Agreement; and
(D) neither the content nor the Schwab Mortgage Website will contain
viruses, Trojan horses, worms, time bombs, cancelbots or other similar harmful
or deleterious programming routines.
Prior to creating, editing or deleting any content on the Schwab Mortgage
Website, E-Loan shall obtain the written consent of Schwab.
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2.3 ADVERTISING AND LINKS. E-Loan shall obtain Xxxxxx'x prior written
consent before placing any advertising or third party hyperlinks on the Schwab
Mortgage Website.
2.4 CUSTOMER SERVICE STANDARDS. E-Loan shall conform to or surpass the
following customer service standards: (i) E-Loan's response time in answering
phone calls shall be no more than twenty (20) seconds with an abandoned rate of
less than 5% measured on a monthly basis; (ii) the length of E-Loan's service
calls shall be as long as necessary to satisfy the Customer, with a goal of
one-call resolution; (iii) E-Loan and its customer service personnel shall treat
the Customers with respect and dignity at all times; (iv) in the event an E-Loan
customer service representative is unable to answer a Customer's question during
the first phone call, such customer service representative will follow-up on the
matter, and within twenty-four (24) hours of the original call, E-Loan will
place a return call to such Customer to provide a status update, (v) respond to
all Customer e-mails within 24 hours, (vi) maintain a Loan/Call Center with
adequate number of staff to support the required customer service metrics and
policies under this Agreement, with hours of operation from 5:00 a.m. to 8:00
p.m. PST Monday through Friday and 6:00 a.m. to 6:00 p.m. Saturdays and Sundays,
and (vii) respond to all mail requests within 24 hours or less of being
processed. E-Loan shall institute written procedures to comply with the above
standards.
2.5 RESPONSIBILITIES OF E-LOAN TO CUSTOMERS. E-Loan shall, in the ordinary
course of its business, take and process loan applications from Customers, issue
loan prequalifications and preapprovals, respond to Customer inquiries,
underwrite and make credit decisions on loan applications, arrange and assist
Customers with loan closings, consummate and fund loans, perform mortgage broker
services where appropriate, provide required disclosures (including without
limitation adverse action notices when adverse action is taken by E-Loan on an
application), and perform such other mortgage services as are necessary or
incident to providing initial Loan Products and mortgage services to Customers
obtaining a mortgage loan. E-Loan shall provide a level of service to Customers
identical to, or superior to, the level of service E-Loan is then providing to
other E-Loan customers.
III
E-LOAN SERVICES
3.1 STANDARD OF CARE. E-Loan shall conduct its businesses and operations
with diligence and care, in conformity with the highest levels of business and
ethical standards and in accordance with the terms of this Agreement. E-Loan is
knowledgeable of the laws governing the business of E-Loan and E-Loan
acknowledges that Schwab is relying on E-Loan to assure compliance with each
law, regulation or code affecting the E-Loan
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Services offered by E-Loan on the Schwab Mortgage Website and the Schwab Links
provided by Schwab under this Agreement.
3.2 COMPLIANCE WITH LAW. In connection with the solicitation of Customers
and in the processing of applications and the making of real estate loans (and
the collection of such loans, if E-Loan should ever engage in such activity),
E-Loan shall:
(A) comply fully and completely with all applicable federal, state and
local laws and regulations, including, without limitation, the federal Consumer
Credit Protection Act and Regulation Z, the Equal Opportunity Act and Regulation
B, the Real Estate Settlement Procedures Act and Regulation X, the Fair Debt
Collections Practices Act, all applicable state statutes, and regulations which
are or may be applicable to E-Loan's business, or its use of marketing services
provided by Schwab pursuant to this Agreement;
(B) not accept applications from, solicit or provide E-Loan Services to
any Customer who resides in a state or seeks to obtain a loan secured by
property located in a state where: (a) E-Loan may not legally offer E-Loan
Services; or (b) Schwab may not legally provide the marketing services or
license its name under this Agreement whether by reason of some prohibition,
restriction, limitation, license or registration requirement or otherwise;
(C) not offer E-Loan Services where they can not legally do so or where
the terms of this Agreement would require that Schwab be licensed or would
otherwise be restricted, taxed or controlled without Xxxxxx'x prior written
consent; and
(D) in any advertisement, whether or not on Schwab Websites, or in any
communication of any kind or nature with any Customer, shall state clearly that
the E-Loan Services offered or being provided (including, without limitation
those E-Loan Services which may use the Xxxxxx Xxxx or described on the Schwab
Mortgage Website) are being provided by E-Loan and not by Schwab.
3.3 CUSTOMER SERVICE. The terms and conditions of the E-Loan Services
offered to Customers will be more favorable than or identical to the terms and
conditions of services offered to any other customers of E-Loan.
3.4 REVIEW RIGHTS. E-Loan shall prepare and be responsible for the content
of the Schwab Mortgage Website and all other communications with its customers
(including Customers) and third parties; PROVIDED, however, that prior to the
distribution of any materials that mention Schwab or the Schwab Links to
E-Loan's customers (including the Customers) or any third parties, E-Loan shall
provide Schwab with an opportunity to review and shall obtain Xxxxxx'x prior
written consent, which consent may be withheld in Xxxxxx'x sole discretion, with
respect to those portions of the communication that mention Schwab.
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3.5 REPORTS TO SCHWAB. E-Loan will have a continuous obligation to
cooperate with any requests for information and/or documents from Schwab or any
regulatory body of competent jurisdiction. Specifically, E-Loan agrees to:
(A) provide Schwab with a weekly summary report setting forth the data
described on Exhibit "C"; and
(B) immediately notify Schwab, in writing, of any complaints received
relating to the Schwab Mortgage Website or any Customer.
3.6 INSPECTION RIGHTS. E-Loan will maintain complete records which
accurately reflect its businesses and operations. Subject to the confidentiality
requirements that E-Loan owes to its customers, Schwab will have the right, but
not the duty, upon reasonable notice and during regular business hours, of
unrestricted access to inspect, review and audit the books and records of E-Loan
so as to confirm compliance with its obligations hereunder. Schwab will also
have the right, but not the duty, to obtain copies of all written and electronic
communications with Customers and such other documents, letters and/or
agreements which may be requested by Schwab. The information obtained by Schwab
pursuant to this Section 3.6 shall be treated as Confidential Information (as
hereinafter defined) of E-Loan. Schwab shall, at all times and upon reasonable
notice, have the right but not the obligation, at Xxxxxx'x expense, of
unrestricted access to inspect, either itself or through its duly authorized
representatives, all or any portion of E-Loan's Internet promotions of E-Loan
Services to Customers and to: (a) monitor telephonic, electronic and other
written and oral communications between E-Loan and Customers; (b) review
application, loan processing and loan files; and (c) review any files or
records, whether written or in any other media, relating to customer service,
Customer comments or Customer complaints. Schwab shall not retain any Customer
Information obtained pursuant to this section 3.6 except insofar as is
reasonably necessary to evidence possible non-compliance by E-Loan under this
Agreement. In the event that a dispute should arise between the parties under
the Agreement that requires resolution under section 12.13, the parties shall
cooperate so as to mask any Customer-identifying data to be put before the
arbitrator. All such monitoring and inspection activities shall comply with all
applicable laws and regulations.
3.7 SCHWAB EMPLOYEE DISCOUNTS. E-Loan shall provide employees of Schwab and
its affiliates discounts on E-Loan Services for an amount to be agreed upon by
both parties.
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IV
XXXXXX'X RESPONSIBILITIES
4.1 STANDARD OF CARE. Schwab shall conduct its businesses and operations
with diligence and care, in conformity with the highest levels of business and
ethical standards and in accordance with the terms of this Agreement.
4.2 FALSE, INACCURATE AND MISLEADING STATEMENTS. Schwab shall not make any
claims, warranties or representations with respect to the Schwab Mortgage
Website or E-Loan Services which are false, inaccurate or misleading.
4.3 DOCUMENT REVIEW RIGHTS. Schwab shall prepare and be responsible for the
content of all communications with its clients (including Customers) and third
parties; PROVIDED, HOWEVER, that prior to the distribution of any materials that
mention E-Loan or the Schwab Mortgage Website, Schwab shall provide E-Loan with
an opportunity to review and shall obtain E-Loan's written consent, which may be
withheld in E-Loan's sole discretion, with respect to those portions of the
communication that mention E-Loan or the Schwab Mortgage Website.
V
OWNERSHIP AND EXCLUSIVITY
5.1 OWNERSHIP OF SCHWAB MATERIALS. As between E-Loan and Schwab, all right,
title and interest in and to, and ownership of, all materials delivered by
Schwab to E-Loan, including all patent, copyright, trade secret and other
intellectual property rights embodied therein, for the purpose of assisting
E-Loan in completing its obligations hereunder, including text, graphics, data,
source code, flow charts, technical documentation, marketing plans, domain
names, trademarks, trade dress rights or other identifying symbols of Schwab
(the "SCHWAB MATERIALS") will remain at all times exclusively in Schwab, and
E-Loan will not acquire any right, title, or interest therein, and will not use
the Schwab Materials in any manner without first obtaining Xxxxxx'x express
written consent to such use, which may be withheld at Xxxxxx'x sole discretion.
5.2 OWNERSHIP OF E-LOAN MATERIALS. As between Schwab and E-Loan, all right,
title and interest in and to, and ownership of, all materials delivered by
E-Loan to Schwab, including all patent, copyright, trade secret and other
intellectual property rights embodied therein, for the purpose of assisting
Schwab in completing its obligations hereunder, including text, graphics, data,
source code, flow charts, technical documentation, marketing plans, domain
names, trademarks, trade dress rights or other identifying symbols of E-Loan
(the "E-LOAN MATERIALS") will remain at all times exclusively in E-Loan, and
Schwab will not acquire any right, title, or interest therein,
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and will not use the E-Loan Materials in any manner without first obtaining
E-Loan's express written consent to such use, which may be withheld at E-Loan's
sole discretion.
5.3 RIGHT TO OWN CUSTOMER INFORMATION. As between Schwab and E-Loan, each
party shall retain ownership of the Customer Information (as hereinafter
defined) that it independently collects from its own respective customers during
the term of this Agreement, which independent collection shall not be deemed to
include any information provided by any party hereto to the other. Unless
authorized by Schwab in writing, up to the point where a prospective Customer
begins filling out an application for a Mortgage Loan, E-Loan will not use or
have any rights to any information requested, collected or gathered on-line or
otherwise from a prospective Customer who visits the Schwab Mortgage Website or
who otherwise contacts E-Loan, other than for the purposes of evaluating real
estate loan applications. Further, E-Loan will not have any right to use the
Customer Information in any advertising or promotional materials. "CUSTOMER
INFORMATION" means all data information pertaining to or identifiable to a
Customer, including, without limitation, (i) name, address, zip code, phone
number, social security number, birth date, e-mail address, passwords, personal
financial information, personal preferences, demographic data, marketing data,
credit data or any other identification data, that itself identifies or when
tied to the above information, may identify a Customer; (ii) any information
that reflects Customers', prospects' or users' interactions with a party's
website, including, but not limited to, information concerning computer search
paths, any profiles created or general usage data; or (iii) any data otherwise
submitted in the process of registering for a party's website (such as name,
address, phone number and e-mail address) and data submitted during the course
of using a party's website. However, each party may receive or use Customer
Information for the purposes contemplated by this Agreement, and if either party
learns or obtains any Customer Information of the other party, such party will
treat such Customer Information as proprietary and confidential to the other
party in accordance with Section 5.4 hereof, whether or not such Customer
Information was intentionally disclosed. Subject to the Inspection Rights of
Section 3.6, E-Loan shall not share with Xxxxxx, and Xxxxxx will not have any
rights to, any Customer Information not already in Xxxxxx'x possession that
E-Loan receives in connection with a loan application or any inquiry by a
Customer about E-Loan's mortgage or other loan products or services, except to
the extent a Customer authorizes E-Loan to share such information with Schwab.
5.4 TREATMENT OF CUSTOMER INFORMATION. Without limiting any other warranty
or obligation specified in this Agreement, during the term of this Agreement and
thereafter in perpetuity, E-Loan will not gather, store, or use Xxxxxx'x
Customer Information in any manner and will not disclose, distribute, sell,
share, rent or otherwise transfer any of Xxxxxx'x Customer Information to any
third party, except as such party may be expressly and reasonably directed to in
advance in writing by Schwab. E-Loan represents, covenants, and warrants that it
will collect, use and disclose Customer Information belonging to Schwab only in
compliance with Xxxxxx'x written instructions,
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including, without limitation, its privacy policies then in effect and all
applicable laws (including, but not limited to policies and laws related to
spamming, privacy and consumer protection). E-Loan hereby agrees to indemnify
and hold harmless Schwab against any damages, losses, liabilities, settlements
and expenses (including, without limitation, costs and attorneys' fees) in
connection with any claim or action that arises from an alleged violation of the
foregoing. Nothing contained herein is intended to prevent E-Loan from making
disclosures about its customer base, provided that such information is presented
as generalized aggregate information which does not allow for the identification
of any individual Customer. E-Loan hereby agrees that it will make disclosures
to Customers concerning its customer privacy policies and, in particular, the
sharing of customer information. E-Loan will not disclose to any third party the
fact that a Customer (or group of Customers) is a Schwab client.
5.5 EXCLUSIVE RELATIONSHIP. During the term of this Agreement, E-Loan shall
not enter into any agreement whatsoever relating to providing of E-Loan Services
with [*] or any of its respective affiliates ("SCHWAB COMPETITOR"). During the
term of this Agreement, Schwab shall not enter into any agreement whatsoever
relating to E-Loan Services with [*] or any of their respective affiliates,
successors and assigns ("E-LOAN COMPETITORS"). Subject to the other provisions
of this Agreement, nothing in this Section 5.5 shall prohibit E-Loan or Schwab
from entering into any type of relationship or agreement with any entity other
than a Schwab Competitor or E-Loan Competitor, respectively.
5.6 INDEPENDENT DEVELOPMENT. Nothing in this Agreement will limit Xxxxxx'x
or its affiliates' right to develop and offer products and services that have
the same or similar functionality as the Schwab Mortgage Website, provided that
Schwab does not use, infringe or misappropriate any of E-Loan's intellectual
property rights or Confidential Information. Additionally, subject to Section
5.5, Schwab may obtain services similar to the E-Loan Services from a third
party at any time.
VI
LICENSE TO USE MARKS
6.1 LICENSE TO USE "SCHWAB MARKS". Subject to all the terms and conditions
of this Agreement, Schwab hereby grants E-Loan a nonexclusive, non-transferable,
non-sublicensable license to use the names, logos, trade names, trade marks
and/or service marks of Schwab (collectively "SCHWAB MARKS") solely on the
E-Loan Website and Schwab Mortgage Website, and solely in connection with the
marketing and promotion of the E-Loan Services. Schwab, in its sole discretion
from time to time, may change the appearance and/or style of the Schwab Marks,
provided that, unless required earlier by a court order or to avoid potential
infringement liability, E-Loan shall have fourteen (14) days' notice to
implement any such changes. E-Loan hereby acknowledges and agrees
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that (i) the Schwab Marks are owned solely and exclusively by Schwab, (ii)
except as set forth herein, E-Loan has no rights, title or interest in or to the
Schwab Marks and (iii) all use of the Schwab Marks by E-Loan shall inure to the
benefit of Schwab. E-Loan agrees not to apply for registration of the Schwab
Marks (or any xxxx confusingly similar thereto) anywhere in the world. E-Loan
agrees that it shall not engage, participate or otherwise become involved in any
activity or course of action that diminishes and/or tarnishes the image and/or
reputation of any Schwab Marks.
6.2 LICENSE TO "E-LOAN MARKS". Subject to all the terms and conditions of
this Agreement, E-Loan hereby grants Schwab a nonexclusive, non-transferable,
non-sublicensable license to use the names, logos, trade names, trade marks
and/or service marks of E-Loan (collectively "E-LOAN MARKS") solely on the
Schwab Website and the Schwab Mortgage Website and in connection with the
marketing and distribution of information concerning the E-Loan Services to its
clients. E-Loan, in its sole discretion from time to time, may change the
appearance and/or style of the E-Loan Marks, provided that, unless required
earlier by a court order or to avoid potential infringement liability, Schwab
shall have fourteen (14) days' notice to implement any such changes. Schwab
hereby acknowledges and agrees that, (i) E-Loan has the right to use the E-Loan
Marks, (ii) except as set forth herein, Schwab has no rights, title or interest
in or to the E-Loan Marks and (iii) all use of the E-Loan Marks by Schwab shall
inure to the benefit of E-Loan. Schwab agrees not to apply for registration of
the E-Loan Marks (or any xxxx confusingly similar thereto) anywhere in the
world. Schwab agrees that it shall not engage, participate or otherwise become
involved in any activity or course of action that diminishes and/or tarnishes
the image and/or reputation of any E-Loan Marks.
6.3 OWNERSHIP AND USE OF MARKS. Each party acknowledges that the other has
the right to use its respective Marks and agrees that it will take no action to
challenge or undermine that party's rights or title to its Marks anywhere in the
world. Each party acknowledges that all use of each Xxxx will inure exclusively
to the benefit of the respective owner of such Xxxx. Each party will cooperate
with the other's efforts to protect and register its respective Marks. The
licenses granted in Section 6.1 and 6.2 hereof shall be subject to the following
additional terms and conditions:
(A) each party shall obtain from the other approval in advance of the
specific manner and mode in which any Xxxx licensed under Section 6.1 and 6.2
hereof is used and presented (such as in an advertisement or website);
(B) a party may only use the other's Xxxx in its standard form and
style as used or authorized in writing by such party; no other letter(s),
word(s), design(s), symbol(s), or other matter of any kind will be superimposed
upon, associated with or shown in such proximity to a Xxxx so as to tend to
alter or dilute it, and each party specifically agrees not to combine or
associate a Xxxx with any other Xxxx;
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(C) in all advertisements, promotional literature or other printed
matter in which the Xxxx appears, the Xxxx must be identified as a Xxxx owned by
the respective party, in a form and manner approved by the other party; in
accordance with the foregoing, when used in printed materials, the Xxxx will be
footnoted upon its appearance with a legend that such Xxxx is a Xxxx or
registered Xxxx of the other party, as appropriate under the circumstances.
(D) neither party warrants or represents that the other's use of such
Xxxx will not infringe the rights of other persons. In the event that either
party is subject to any claim or action, or learns any facts that make such a
claim or action reasonably possible, it will notify the other and the parties
will negotiate in good faith a solution, including the adoption by a party of
new names or marks to identify itself or its businesses in the territories where
problems exist. All such new marks or names will be deemed a Xxxx for purposes
of this Agreement; and
(E) each party will maintain the quality of the other's Xxxx in
connection with its usage and placement during the term of this Agreement in a
manner consistent with industry practices. Each party reserves the right to
monitor the services provided under this Agreement to assure compliance with the
standards for the services associated with their respective Marks.
VII
INDEMNIFICATION
7.1 INDEMNIFICATION OF SCHWAB. E-Loan shall indemnify, defend and hold
harmless Schwab and its subsidiaries, affiliated entities, shareholders,
representatives, predecessors, beneficiaries, trustees, partners, joint
venturers, successors and assigns, and their respective officers, directors,
employees, agents and attorneys (collectively, "Indemnified Parties") from and
against any and all losses, liabilities, obligations, damages, costs and
expenses, whether known, unknown, contingent or inchoate, of any nature
whatsoever, including, without limitation, actual attorneys' fees, court costs
and other expenses (collectively, "Losses") incurred by Indemnified Parties and
shall defend Indemnified Parties against any and all actions, causes of action,
claims, demands, rights, suits, and proceedings (collectively, "Claims"),
without regard to the validity of such Claims, brought against Indemnified
Parties, in connection with or as a result of:
(A) acts, representations, practices, or omissions relating to the
E-Loan Services, E-Loan's promotional materials or activities, or E-Loan's use
of the Xxxxxx Xxxx;
(B) an allegation of any contractual, statutory, common law or
equitable claim of any kind or nature arising out of the marketing, sale,
advertisement,
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distribution or provision of any E-Loan Services, including, but not limited to,
any claim by a Customer, or other private party or public agency or public
official;
(C) any breach of any representations or warranties contained herein
and any breach or failure of E-Loan to perform any of its covenants or
agreements set forth herein;
(D) any claim that the promotional materials provided by E-Loan or the
advertisements on the Schwab Websites or the Schwab Mortgage Website by E-Loan
infringe any of the proprietary rights of a third party or violate any
applicable international, national, federal, state and municipal statutes, laws,
decrees, rules, ordinances and regulations;
(E) the violation by E-Loan of any federal, state, local or foreign
law, rule or regulation, including the rules and regulations of applicable self-
regulatory agencies;
(F) any dishonest, fraudulent, negligent or criminal act or omission on
the part of E-Loan's officers, directors, partners, employees, contractors, or
agents or customers, including, without limitation, Customers;
(G) any complaints raised or losses asserted by any E-Loan customer,
including, without limitation, Customers;
(H) the breach by E-Loan of any of its warranties, representations or
covenants or agreements in this Agreement;
(I) any statements, representations, claims or warranties made by
E-Loan to its customers, including, without limitation, the Customers, provided
that the source of such statements, representations, claims or warranties is not
Schwab; or
(J) the infringement of any third party's intellectual property rights
by Schwab arising out of Xxxxxx'x use of E-Loan Materials in a manner authorized
and approved by E-Loan.
Further, E-Loan agrees to reimburse each Indemnified Party for any and all
expenses (including the fees and disbursements of counsel chosen by such
Indemnified Party) as such expenses are reasonably incurred by such Schwab
Indemnified Party in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action. The indemnity agreement set forth in this Section 7.1 will be in
addition to any liabilities that E-Loan may otherwise have.
7.2 NOTIFICATIONS AND OTHER INDEMNIFICATION PROCEDURES. Promptly after
receipt by Schwab under this Article VII of notice of the commencement of any
action, Schwab will, if a claim in respect thereof is to be made against E-Loan
under this
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Article VII, notify E-Loan in writing of the commencement thereof, provided,
however, to the extent it is not prejudiced as a proximate result of such
failure, the omission to notify E-Loan will not relieve E-Loan from any
liability which it may have to Schwab for contribution or otherwise than under
the indemnity agreement contained in this Article VII. In case any such action
is brought against Xxxxxx and Xxxxxx seeks or intends to seek indemnity from
E-Loan, E-Loan will be entitled to participate in, and, to the extent that it
will elect by written notice delivered to Schwab promptly after receiving the
aforesaid notice from Schwab, to assume the defense thereof with counsel
reasonably satisfactory to Schwab; PROVIDED, HOWEVER, if the defendants in any
such action include both Schwab and E-Loan and Schwab will have reasonably
concluded that a conflict may arise between the positions of E-Loan and Schwab
in conducting the defense of any such action or that there may be legal defenses
available to it and/or other Indemnified Parties which are different from or
additional to those available to E-Loan, Schwab will have the right to select
separate counsel to assume such legal defenses and to otherwise participate in
the defense of such action on behalf of Schwab. Upon receipt of notice from
E-Loan to Schwab of the E-Loan's election so to assume the defense of such
action and approval by Schwab of counsel, E-Loan will not be liable to Schwab
under this Article VII for any legal or other expenses subsequently incurred by
such Schwab in connection with the defense thereof unless (i) Schwab will have
employed separate counsel in accordance with the proviso to the next preceding
sentence (it being understood, however, that E-Loan will not be liable for the
expenses of more than one separate counsel (together with local counsel),
approved by E-Loan, representing Schwab who is a party to such action) or (ii)
E-Loan will not have employed counsel satisfactory to Schwab to represent Schwab
within a reasonable time after notice of commencement of the action, in each of
which cases the fees and expenses of counsel will be at the expense of E-Loan.
7.3 SETTLEMENTS. Under this Article VII, E-Loan will not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
E-Loan agrees to indemnify Schwab against any loss, claim, damage, liability or
expense by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time Schwab will have requested E-Loan to reimburse Schwab
for fees and expenses of counsel as contemplated by Section 7.2 hereof, E-Loan
agrees that it will be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than
thirty (30) days after receipt by E-Loan of the aforesaid request and (ii)
E-Loan will not have reimbursed Schwab in accordance with such request prior to
the date of such settlement. E-Loan will not, without the prior written consent
of Schwab, effect any
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settlement, compromise or consent to the entry of judgment in any pending or
threatened action, suit or proceeding in respect of which Schwab is or could
have been a party and indemnity was or could have been sought hereunder by
Schwab, unless such settlement, compromise or consent includes an unconditional
release of Schwab from all liability on claims that are the subject matter of
such action, suit or proceeding.
VIII
COMPENSATION TO SCHWAB
8.1 MARKETING FEE. In addition to the Warrant being provided by E-Loan to
Schwab pursuant to section 8.2, E-Loan shall pay the following to Schwab for its
marketing services provided pursuant to the Agreement:
For the period between the Launch Date or June 1, 2000, whichever is
later, of the Agreement and its first anniversary, the sum of [*] Dollars [*]
payable in 12 equal monthly installments commencing on the Launch date and on
the first day of each succeeding month;
For the period between the first anniversary of the Launch Date, or
June 1, 2001, whichever is later and its second anniversary, the sum of [*]
Dollars [*] payable in 12 equal monthly installments commencing on the first
anniversary of the Launch Date and on the first day of each succeeding month;
For the period between the second anniversary of the Launch Date or
June 1, 2002, whichever is later, and its third anniversary, the sum of [*]
Dollars [*] payable in 12 equal monthly installments commencing on the second
anniversary of the Launch Date and on the first day of each succeeding month;
and
For the period between the third anniversary of the Launch Date or
June 1, 2003, whichever is later, and the end of the term of this Agreement,
the sum of [*] Dollars [*] payable in 12 equal monthly installments commencing
on third anniversary of the Launch Date and on the first day of each succeeding
month.
8.2 WARRANT. In consideration of Xxxxxx'x entering into this Agreement,
E-Loan shall issue to Schwab warrants, dated the date hereof and in the forms
attached hereto as Exhibit D-1, to purchase 6.5 million and 6.6 million shares,
respectively, of E-Loan's common stock. The warrants shall be issued on the
earlier of (a) the date of the closing of the sale of shares of E-Loan common
stock pursuant to the Securities Purchase Agreement of even date, or (b) July
31, 2000. At the time of the issuance of the warrants, E-Loan will also enter
into registration rights agreements with Schwab in essentially the form of the
registration rights agreements attached hereto as Exhibit D-2 (said warrants,
the Securities Purchase Agreement and the registration rights agreements are
referred to collectively as the "Warrant").
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IX
REPRESENTATIONS, WARRANTIES AND COVENANTS
9.1 RECIPROCAL WARRANTIES. Schwab and E-Loan each represent and warrant
with respect to itself as follows: (a) such party is duly organized, validly
existing, in good standing under the laws of the state in which it is organized
and has the power and authority to carry on its business as it is now being
conducted; (b) such party has the financial resources, personnel and
organizational resources to perform its obligations under this Agreement and
will notify the other of any change in such party's circumstances that would
materially adversely impact its ability to perform its obligations under this
Agreement; (c) such party has full corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby;
(d) such party's board of directors or its authorized delegate(s) has duly and
validly approved the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby; (e) no other corporate
proceedings on the part of such party are necessary to approve this Agreement
and to consummate the transactions contemplated hereby, (f) such party has not
employed any broker or finder or incurred any liability for any broker's fees,
commissions or finders fees in connection with this Agreement; and (g) this
Agreement has been duly executed and delivered on behalf of such party and is a
legal and binding obligation of such party enforceable against it in accordance
with the terms and conditions of this Agreement, except (i) as the same may be
limited by bankruptcy, insolvency, reorganization or other laws or equitable
principles relating to or affecting the enforcement of creditors' rights and
(ii) that the availability of equitable remedies, including specific
performance, is subject to general equitable principles applied at the
discretion of a court.
9.2 REPRESENTATIONS, WARRANTIES AND COVENANTS OF E-LOAN. E-Loan represents
and warrants to Schwab as follows:
(A) E-Loan conducts its business only (and solicits business from
persons residing in, and whose real property collateral is located) in states
where, if licensure or registration is required, it is duly licensed or
registered to do so. A list of all of E-Loan's licenses is attached as Exhibit
E. E-Loan will maintain all such licenses and registrations in full force and
effect during the term of this Agreement.
(B) The execution, delivery and performance of this Agreement will not
breach, violate, conflict with or result in a default (whether after giving
notice, lapse of time or both) under any contract or obligation to which E-Loan
is a party.
(C) E-Loan will offer and provide its web-based services in accordance
with applicable law and in a manner consistent with the generally accepted
technical standards and requirements of the World Wide Web and the Internet;
(D) there is no injunction, order, judgment or decree imposed upon
E-Loan, action, suit or proceeding before any court or governmental agency or
body now pending, or, to the best knowledge of E-Loan, threatened against E-Loan
which might
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result in any adverse change in the financial condition or business
of E-Loan which might adversely affect its properties or assets which might
prevent or have a material adverse effect on the transactions contemplated
hereby; and
(E) at any time, and from time to time, during the term of this
Agreement, E-Loan will execute and deliver such additional documents or
instruments, provide Schwab with such additional information and take such other
actions as may be reasonably requested by Schwab to carry out the intent and
purposes of this Agreement.
9.3 E-LOAN'S YEAR 2000 REPRESENTATION. Without limiting any other
representation, warranty or obligation specified in this Agreement, or in any
other agreement, E-Loan expressly warrants to Schwab that the Schwab Mortgage
Website and all services furnished under this Agreement are, and at all times
will be, Year 2000 Compliant (as hereinafter defined). E-Loan further warrants
that in providing the Schwab Mortgage Website and other services to Schwab, all
of E-Loan's information processing services are, and at all times will be, Year
2000 Compliant. "YEAR 2000 COMPLIANT" means that the Schwab Mortgage Website and
services operate and (i) will correctly store, represent, and process (including
sort) all dates (including single and multi-currency formulas and leap year
calculations), such that errors will not occur when the date being used is in
the year 2000, or in a year preceding or following the year 2000; and (ii) will
not cause or result in an abnormal termination or ending. E-Loan further
warrants that in providing the Schwab Mortgage Website and other services to
Schwab, all of E-Loan's information processing services are, and at all times
will be, Year 2000 Compliant.
9.4 XXXXXX'X YEAR 2000 REPRESENTATION. Without limiting any other
representation, warranty or obligation specified in this Agreement, or in any
other agreement, Schwab expressly warrants to E-Loan that all services furnished
by Schwab under this Agreement are, and at all times will be, Year 2000
Compliant. Schwab further warrants that in providing such services, all of
Xxxxxx'x information processing services are, and at all times will be, Year
2000 Compliant.
X
CONFIDENTIALITY AND NON-SOLICITATION
10.1 DEFINITION OF CONFIDENTIAL INFORMATION. Each party agrees that all
information supplied by one party to the other (whether before, on or after the
date hereof) including, without limitation, (a) any Customer Information, (b)
source code, prices, databases, hardware, software, programs, engine protocols,
models, displays and manuals, including, without limitation, the selection,
coordination and arrangement of the contents thereof, and (c) any unpublished
information concerning research activities and plans, marketing or sales plans,
pricing or pricing strategies, operational techniques, strategic plans, the
identity of Customers and Customer contacts, Customer data and unpublished
financial information, including information concerning revenues, profits
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and profit margins, will be deemed confidential and proprietary to the supplying
party ("CONFIDENTIAL INFORMATION").
10.2 EXCLUSIONS. Confidential Information will not include any information
or material, or any element thereof, whether or not such information or material
is Confidential Information for the purposes of this Agreement, to the extent
any such information or material, or any element thereof:
(A) has been published or is published hereafter, unless such
publication is a breach of this Agreement or a similar confidential disclosure
agreement;
(B) was already known to the receiving party prior to being disclosed
by or obtained from the other party as evidenced by written records kept in the
ordinary course of business of, or by proof of actual use by, the receiving
party;
(C) has been or is hereafter rightfully received by the receiving party
from a third person without restriction or disclosure and without breach of this
Agreement; or
(D) has been independently developed by the receiving party as
evidenced by the receiving party's written records kept in the ordinary course
of business.
It will be presumed that any Confidential Information in a receiving party's
possession is not within exceptions (b), (c) or (d) above, and the burden will
be upon the receiving party to prove otherwise by records and documentation.
10.3 TREATMENT OF CONFIDENTIAL INFORMATION. Each party recognizes the
importance of the other's Confidential Information. In particular, each party
recognizes and agrees that Confidential Information of the other is critical to
their respective businesses and that neither party would enter into this
Agreement without assurance that such information and the value thereof will be
protected as provided in this Section 10.3 and elsewhere in this Agreement.
Accordingly, each party agrees as follows:
(A) each party will hold any and all Confidential Information it
obtains in the strictest confidence and will use and permit the use of
Confidential Information solely for the purposes of this Agreement (the
"PERMITTED PURPOSES");
(B) each party may disclose or provide access to its responsible
employees, and may make copies of, Confidential Information only to the extent
reasonably necessary to carry out the Permitted Purposes;
(C) each party currently has, and in the future will maintain in effect
and enforce, rules and policies to protect against access to, use or disclosure
of Confidential Information other than in accordance with this Agreement,
including, without limitation, written instruction to and agreements with
employees and agents to
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ensure that such employees and agents protect the confidentiality of such
Confidential Information. Each party will expressly instruct its employees and
agents not to disclose Confidential Information to third parties, including,
without limitation, customers, subcontractors or consultants, without the
other's prior written consent;
(D) each party, at its own expense, will take all steps, including,
without limitation, the initiation and prosecution of actions at law or in
equity, necessary or appropriate to prevent use or disclosure, and upon any
unauthorized disclosure further unauthorized disclosure or use of which it
becomes aware, of any Confidential Information received or obtained by it,
except as expressly permitted by the terms of this Agreement;
(E) neither party will make any use whatsoever at any time of the
other's Confidential Information, except as expressly authorized in this
Agreement; and
(F) each party will notify the other immediately of any unauthorized
disclosure or use of Confidential Information of which it becomes aware, and
will cooperate with that party to protect all proprietary rights in, and
ownership of, its Confidential Information.
10.4 COMPELLED DISCLOSURES. To the extent required by applicable law or by
lawful order or requirement of a court or governmental authority having
competent jurisdiction over the receiving party, the receiving party may
disclose Confidential Information in accordance with such law, order or
requirement, subject to the following conditions: (a) as soon as possible after
becoming aware of such law, order or requirement and prior to disclosing
Confidential Information or Customer Information pursuant thereto, the receiving
party will, to the extent permitted under applicable law, so notify the other
party in writing and, if permitted by law, the receiving party will provide the
other party with notice not less than five (5) business days prior to the
required disclosure; (b) the receiving party will use reasonable efforts not to
release Confidential Information or Customer Information pending the outcome of
any measures taken by the other party to contest, otherwise oppose or seek to
limit such disclosure by the receiving party and any subsequent disclosure or
use of Confidential Information or Customer Information that may result from
such disclosure; and (c) the receiving party will cooperate with the other party
regarding such measures. Notwithstanding any such disclosure, the receiving
party will not affect its obligations hereunder with respect to Confidential
Information or Customer Information so disclosed.
10.5 RETURN OF CONFIDENTIAL INFORMATION. Upon the disclosing party's
written request or upon expiration or termination of this Agreement for any
reason, the receiving party will promptly:
(A) return or destroy, at the disclosing party's option, all originals
and copies of all documents and materials it has received containing the
disclosing party's information; and
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(B) deliver or destroy, at the disclosing party's option, all originals
and copies of all summaries, records, descriptions, modifications, negatives,
drawings, adoptions and other documents or materials, whether in writing or in
machine-readable form, prepared by the receiving party prepared under its
direction or at its request from the documents and/or materials referred to in
subparagraph (a), and provide a written statement to the disclosing party
certifying that all documents and materials referred to in subparagraphs (a) and
(b) have been delivered to the disclosing party or destroyed, as requested by
the disclosing party.
10.6 SOLICITATION OF SCHWAB CUSTOMERS. During the term of this Agreement
and continuing for the period set forth in the immediately following sentence,
E-Loan agrees not to and shall not (without Xxxxxx'x prior written consent),
directly or indirectly, target, solicit or otherwise communicate with Customers
as such, on behalf of itself or any third party, including, but not limited to,
on behalf of entities that provide brokerage or financial services in direct
competition with Schwab. The obligations set forth in the preceding sentence
shall: (i) continue in perpetuity with respect to targeting, solicitations and
communications made on behalf of third parties, and (ii) continue for a period
of two (2) years after the termination of this Agreement with respect to
targeting, solicitations and/or communications made on behalf of E-Loan or its
affiliates. E-Loan agrees that, during the term of this Agreement and in
perpetuity thereafter, it will not use or sell to others lists containing
information obtained in connection with this Agreement about any Schwab clients.
The foregoing will not prohibit E-Loan from targeting, soliciting, or otherwise
communicating generally with E-Loan's clients, other than Customers, in a manner
that does not mention, refer to, or otherwise allude to Schwab, Customers, or
Schwab clients, either directly or indirectly.
10.7 NON-EXCLUSIVE EQUITABLE REMEDY. Each party acknowledges and agrees
that due to the unique nature of Confidential Information, including Customer
Information, there can be no adequate remedy at law for any breach of its
obligations hereunder, that any such breach may allow a party or third parties
to unfairly compete with the other party resulting in irreparable harm to such
party, and therefore, that upon any such breach or any threat thereof, each
party will be entitled to appropriate equitable relief from a court of competent
jurisdiction in addition to whatever remedies either party may have at law or in
equity before a panel of arbitrators appointed in accordance with Section 12.13
hereof and to be indemnified by the other party from any loss or harm,
including, without limitation, lost profits and attorneys' fees, in connection
with any breach or enforcement of such party's obligations hereunder or the
unauthorized use or release of any such Confidential Information. Each party
will notify the other in writing immediately upon the occurrence of any such
unauthorized release or other breach. Any breach of this Article X will
constitute a material breach of this Agreement and, notwithstanding Section
11.3, hereof be grounds for immediate termination of this Agreement at the
exclusive discretion of the non-breaching party.
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XI
TERMINATION
11.1 TERM. This Agreement will be effective when signed by all parties (the
"EFFECTIVE DATE") and will continue in full force through and until the end of
four (4) years after the Launch Date unless terminated earlier as set forth
herein.
11.2 TERMINATION ON BREACH OF LAW. If E-Loan is in material default under
any rule, order, determination, ordinance or law of any federal, state, local,
foreign or self-regulatory authority and is not in good faith contesting such
default, Schwab may terminate this Agreement at any time thereafter. If Schwab
is in material default under any rule, order, determination, ordinance or law of
any federal, state, local, foreign or self-regulatory authority and such default
materially impairs its ability to perform its obligations hereunder, E-Loan may
terminate this Agreement at any time thereafter.
11.3 TERMINATION ON BREACH OF AGREEMENT. If an Event of Default (as
hereinafter defined) occurs under this Agreement, and if, within thirty (30)
days after the non-defaulting party has given the defaulting party notice of the
Event of Default, the defaulting party has not cured such default or, if the
default cannot reasonably be cured within such time period, the non-defaulting
party may, at its option, terminate this Agreement at any time thereafter. Each
of the following will constitute an "EVENT OF DEFAULT" under this Agreement:
(A) any party substantially fails to perform or observe any term,
covenant or undertaking in this Agreement; or
(B) any party informs the other party of its intention not to perform
or observe a term, covenant or undertaking of this Agreement; or
(C) any warranty, representation or other statement made by or on
behalf of one party and contained in this Agreement or in any other document
furnished in compliance with or in reference to this Agreement is on the date
made, or later proves to be, false, misleading or untrue in any material
respect; or
(D) any party seeks protection under the United States Bankruptcy Code
or similar protection from creditors, or bankruptcy, receivership, insolvency,
reorganization, dissolution, liquidation or other similar proceedings will be
instituted by or against the defaulting party and not dismissed; or
(E) E-Loan shall fail to give access to Schwab to E-Loan's records
pursuant to the provisions hereof to Schwab or its authorized representatives
for the purposes permitted hereunder; or
(F) E-Loan shall fail to comply with any laws, regulations or,
voluntary industry standards as provided in Article III or if any governmental
agency or
-22-
other body, office or official vested with appropriate authority finds that the
E-Loan or the E-Loan Services do not comply with applicable law, regulations or
standards; or
(G) E-Loan does not commence in good faith to provide E-Loan Services
to Customers; or
(H) Schwab, in good faith, determines that E-Loan is failing to provide
adequate service to the Customers; or
(I) E-Loan is the subject of press or similar mass market media, which
Schwab determines, in good faith, to be detrimental to providing E-Loan Services
or the use of the Xxxx; or
(J) E-Loan shall use the Schwab Marks in contravention of its license
for use; or
(K) E-Loan undergoes a substantial change of management or a change in
control (for purposes of this Section, "change of control" shall mean (i) the
consummation of a merger or consolidation of the Company with or into another
entity or any other corporate reorganization, if more than 50% of the combined
voting power of the continuing or surviving entity's securities outstanding
immediately after such merger, consolidation or other reorganization is owned by
persons who were not stockholders of the Company immediately prior to such
merger, consolidation or other reorganization; or (ii) the sale, transfer or
other disposition of all or substantially all of the Company's assets.) A
transaction shall not constitute a Change in Control if its sole purpose is to
change the state of the Company's incorporation or to create a holding company
that will be owned in substantially the same proportions by the persons who held
the Company's securities immediately before such transaction; or
(L) E-Loan has made a material misrepresentation or has omitted to
state a material fact necessary to make the statements not misleading;
(M) E-Loan shall breach any other agreement in effect between E-Loan on
the one hand and Schwab on the other; or
(N) If prior to August 31, 2000, E-Loan has not received financing of
at least Thirty Million Dollars ($30,000,000) pursuant to the Securities
Purchase Agreement of even date between E-Loan and Schwab or an affiliate of
Schwab.
11.4 TERMINATION BASED ON EFFECTIVENESS OF MARKETING. E-Loan shall have the
right to terminate the Agreement if in the Second or Third Year, the number of
pass-throughs by Customers (a pass-through being a visit to the Schwab Mortgage
Website by a Customer) does not exceed 50% of the following:
Second Year: [*] pass-throughs
-23-
Third Year: [*] pass-throughs
If the minimum submitted pass-throughs set forth above are not exceeded in a
year, Schwab and E-Loan will work in good faith to seek to increase the number
of pass-throughs.
11.5 EFFECTS OF TERMINATION. Upon any termination of this Agreement:
(A) notwithstanding the termination of this Agreement, the provisions
set forth in Sections 1.4, 3.1, 3.2, 3.3, 4.1, 4.2, 5.1, 5.2, 5.3, 5.4, 6.3,
Article VII, Section 8.2, Article IX, Article X, Sections 11.6, and Article XII
(other than Sections 12.1 and 12.18) shall survive and continue in perpetuity;
(B) no consideration or indemnity will be payable to E-Loan or Schwab
either for loss of profit, goodwill, creation of clientele or other like or
unlike items, or for advertising costs, costs of samples or supplies,
termination of employees, employees' salaries and other like or unlike items;
(C) the parties will follow the procedures for return of Confidential
Information set forth in Section 10.5 hereof; the licenses set forth in Sections
6.1 and 6.2 hereof shall terminate and the parties will immediately cease use of
the other parties' names and marks, including any Xxxx associated with the
respective links; and
(D) neither party will incur any liability whatsoever for any damage
(including, without limitation, consequential damages), loss (including, without
limitation, loss of profit or goodwill) or expense (including, without
limitation, advertising, technology costs or personnel expenses) of any kind
suffered by the other arising from or incidental to any termination of this
Agreement which complies with the terms of this Agreement whether or not such
party is aware of any such damages, losses or expense.
(E) Notwithstanding the termination of this Agreement, Schwab shall be
entitled to exercise its rights under the Warrant granted pursuant to Section
8.2.
11.6 TRANSITION MATTERS. Prior to the effective date of a termination of
this Agreement, E-Loan shall timely and completely perform its obligations
hereunder. Upon notice of termination the parties shall negotiate in good faith
a transition plan, which shall provide for, among other things, the completion
of those loan applications and loan transactions then in hand and in process on
the effective date of the termination, the closing of the hyperlinks between the
Schwab Websites and the Schwab Mortgage Website and the answering and
redirection of telephone calls, e-mails or other communications seeking Schwab
products.
-24-
XII
MISCELLANEOUS PROVISIONS
12.1 BOARD SEAT. In support of the marketing arrangement between Schwab and
E-Loan created by this Agreement, E-Loan shall nominate a representative of
Schwab, to be designated by Schwab (subject to the consent of E-Loan, which
consent shall not be unreasonably withheld) to its Board of Directors for the
duration of this Agreement.
12.2 DISCLOSURE OF RELATIONSHIP. Subject to Sections 3.4, 4.3 and 12.3
hereof, each party may disclose the existence of the relationship created under
this Agreement to any third party.
12.3 CONFIDENTIALITY OF TERMS AND RESULTS. Except as may be required by
securities or other applicable law, neither party may disclose any of the terms
and conditions of this Agreement to any third party and each party agrees to
seek confidential treatment of the terms and conditions of this Agreement in any
disclosure required by law. The foregoing shall not prohibit a party from
announcing the existence (but not the terms) of the Agreement or the
relationship. Furthermore, neither party may disclose to any third party the
results of operations and transactions contemplated by this Agreement.
12.4 INSURANCE. E-Loan shall maintain throughout the term of this
Agreement, in the amounts set forth, the following insurance policies:
(A) Crime Insurance, including employee fidelity insurance and
computer crime insurance, insuring against dishonest, fraudulent or criminal
acts, including those acts, in a form and with limits sufficient to respond to
E-Loan's indemnification to Schwab under Section 7.1(f) of this Agreement, but
in any event with limits of at least $10 million per occurrence;
(B) Professional Liability Insurance, indemnifying E-Loan for its
expenses and legal obligations arising out of claims of negligence in its acts,
representations, practices or omissions relating to its services, in a form and
with limits sufficient to respond to E-Loan's indemnification to Schwab under
Section 7.1(a), (e), (g) and (i) of this Agreement, but in any event with limits
of at least $10 million per occurrence and in the aggregate;
(C) Commercial General Liability (including Advertising Injury
coverage), Automobile Liability, and Umbrella Liability Insurance; in a form and
with limits sufficient to respond to E-Loan's indemnification to Schwab under
Section 7.1(b) and (g) of this Agreement, but in any event with combined limits
of at least $10 million per occurrence and in the aggregate;
-25-
(D) Intellectual Property Liability Insurance, including coverage
for copyright, trademark, and patent liability coverage, in a form and with
limits sufficient to respond to E-Loan's indemnification to Schwab under Section
7.1(d) and (j) of this Agreement, but in any event with limits of at least $10
million per occurrence and in the aggregate;
(E) All other insurance which Schwab or E-Loan deems appropriate
in order to respond to the indemnifications by E-Loan to Schwab.
All such insurance policies shall be placed with insurer's having a then-current
Best's Rating of at least "A-" and Financial Size Category of at least "X".
Policies required under Section 12.4(c) shall name Schwab as an additional
insured. E-Loan will provide evidence of policies, including all required
renewals thereof, in the form of a Certificate of Insurance to Schwab at least
10 days after to the commencement of this Agreement or to any insurance renewal.
Schwab will receive, upon its request, copies of any insurance policy required
herein. At Xxxxxx'x request, any policy contained herein shall be endorsed to
include provision giving Schwab thirty-days written notice from the insurer
prior to any cancellation, non-renewal, or material change to the policy.
E-Loan represents and warrants that it will maintain insurance policies as set
forth in Sections 12.4 (a) through (e) which will cover any claims or losses
discovered or made within six (6) years following termination of this Agreement.
12.5 NOTICES. Until changed in accordance with the provisions of this
Section 12.5, all notices, notifications, demands and/or requests shall be
provided to the parties at the addresses and at facsimile numbers listed in
Exhibit F hereto. Any notice, notification, demand or request provided or
permitted to be given under this Agreement must be in writing and will have been
deemed to have been properly given, unless explicitly stated otherwise, if sent
by (a) Federal Express or other comparable overnight courier, (b) approved or
certified mail, postage prepaid, return receipt requested, (c) telecopy with
confirmation during normal business hours to the place of business of the
recipient, or (d) personal delivery with a signed receipt. All notices,
notifications, demands or requests so given will be deemed given and received
(i) if mailed, seven (7) days after being deposited in the mail, (ii) if sent
via overnight courier, the next business day after being deposited, (iii) if
telecopied, the next business day after being telecopied, and (iv) if personally
delivered, when delivered.
12.6 APPLICATION OF LAW; VENUE. THIS AGREEMENT AND THE APPLICATION OR
INTERPRETATION HEREOF, WILL BE GOVERNED EXCLUSIVELY BY THE LAWS OF THE STATE OF
CALIFORNIA WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS. VENUE FOR
ANY ACTION RELATING TO THIS AGREEMENT WILL BE MAINTAINED IN SAN FRANCISCO
COUNTY, CALIFORNIA.
-26-
12.7 HEADINGS, ARTICLES AND SECTIONS. The headings in this Agreement are
inserted for convenience only and do not describe, interpret, define or limit
the scope, extent or intent of this Agreement or any provision hereof. Unless
the context requires otherwise, all references in this Agreement to Articles
and/or Sections will be deemed to mean and refer to Articles and/or Sections of
this Agreement.
12.8 INDEPENDENT PARTIES. Nothing contained herein will be deemed to create
or construed as creating a joint venture or partnership between E-Loan and
Schwab. Neither E-Loan nor Schwab is hereto, by virtue of this Agreement or
otherwise, authorized as an agent or legal representative of the other. Neither
E-Loan nor Schwab has granted any right or authority to assume or to create any
obligation or responsibility, express or implied, on behalf of or in the name of
the other or to bind it in any manner. Further, it is not the intention of this
Agreement or of the parties hereto to confer a third party beneficiary right of
action upon any third party or entity whatsoever, and nothing hereinbefore or
hereinafter set forth will be construed so as to confer upon any third party or
entity other than the parties hereto a right of action under this Agreement or
in any manner whatsoever.
12.9 AMENDMENTS. Notwithstanding anything else contained in this Agreement,
this Agreement may be amended, supplemented or restated only with the written
consent of both parties.
12.10 NUMBER AND GENDER. Where the context so indicates, the masculine
includes the feminine and the neuter, the neuter includes the masculine and
feminine and the singular includes the plural.
12.11 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which is considered an original and will be binding upon
the party who executed the same, but all of such counterparts will constitute
the same agreement.
12.12 ATTORNEYS FEES. In the event of any arbitration, proceeding or other
action between the parties arising out of this Agreement, the prevailing party
shall be entitled to recover actual attorneys' fees, costs and other fees and
expenses incurred in connection therewith.
12.13 ARBITRATION. Any controversy with respect to this Agreement, whether
arising before or after the Effective Date of this Agreement, between or among
any party will be resolved by arbitration. Any arbitration under this Agreement
will be conducted in San Francisco, California before a mutually agreeable
single arbitrator chosen by the parties. In the event that the parties cannot
agree on the choice of a single arbitrator, then each party shall submit the
names of two neutral persons, either active members of the State Bar of
California or retired California or federal district court jurists who are
willing and able to serve as arbitrator, to the presiding judge of the Superior
Court in and for the City and County of San Francisco who shall choose an
arbitrator from among the nominees. The arbitration will not be administered by
the American Arbitration Association but the arbitrator shall follow the
Commercial Arbitration Rules
-27-
of the American Arbitration Association, then applying. The award of the
arbitrator will be final and binding on the parties, and judgment upon the
award rendered may be entered in any court, state or federal, having
jurisdiction. This agreement to arbitrate does not entitle any party to
arbitrate claims that would be barred by the applicable statute of limitations
if such claims were brought in a court of competent jurisdiction. If
at the time a demand for arbitration is made, the claims sought to be arbitrated
would have been barred by the relevant statute of limitations or other time bar,
any party may assert the relevant statute of limitations as a bar to the
arbitration by applying to any court of competent jurisdiction. The failure to
assert such bar by application to a court, however, will not preclude its
assertion before the arbitrator. In the event that a Customer initiates an
action against Schwab in another forum relating to an Indemnified Claim, then
E-Loan agrees to participate as a party in such forum and to be bound by the
results thereof.
12.14 COOPERATION. Each party agrees, to the extent called upon by the
other to do so, to cooperate with the other party with regard to matters
relating to regulatory and compliance matters and threatened or pending
litigation or arbitration against the party with regard to activities conducted
under this Agreement.
12.15 SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective during
the term hereof, the legality, validity and enforceability of the remaining
provisions of this Agreement will not be affected thereby, and in lieu of such
illegal, invalid or unenforceable provision, there will be added automatically
as a part of this Agreement a provision as similar in terms to such illegal,
invalid or unenforceable provision as may be legal, valid and enforceable.
12.16 ENTIRE AGREEMENT. This Agreement and its exhibits (a) constitute the
entire agreement between the parties relating to the subject matter hereof, and
(b) supersede all previous contracts and agreements between the parties hereto,
both oral and written.
12.17 AUTHORSHIP. This Agreement will not be construed in favor of or
against either party by reason of the authorship of any provisions hereof.
12.18 FORCE MAJEURE. If either party cannot perform any of its obligations
because of any act of God, accident, strike, court order, fire, riot, war, or
any other cause not within the party's control (a "FORCE MAJEURE EVENT"), then
the non-performing party will: (a) immediately notify the other party; (b) take
reasonable steps to resume performance as soon as possible; and (c) not be
considered in breach during the duration of the Force Majeure Event. In the
event a Force Majeure Event continues for a period of seven (7) days,
notwithstanding Section 11.1 hereof, Schwab may terminate this Agreement by
providing written notice to E-Loan to that effect. In the event that by reason
of a Force Majeure Event, a Schwab Website becomes inoperative for more than 7
days, there shall be a prorated rebate of the monthly Marketing Fee provided in
section 8.1 for the period beyond said 7 days until the restoration of the
Schwab Website. In no
-28-
event will a Force Majeure Event include breach of any
year 2000 obligation or warranty in this Agreement, or failures of hardware or
software of E-Loan.
12.19 ASSIGNMENT. Neither party may assign its rights or delegate its
obligations hereunder without the express written consent of the other party,
which consent may not be unreasonably withheld, provided, however, that Schwab
may assign this Agreement and all of its rights and obligations hereunder to any
Schwab Affiliate upon thirty (30) days prior notice to E-Loan so long as the
assignee agrees to abide by the terms and conditions of this Agreement. For
purposes of this Agreement, "SCHWAB AFFILIATE" means legal entities which
Xxxxxxx Xxxxxx & Co., Inc. controls, is controlled by, or is under common
control with, where "control" means the direct or indirect ownership of at least
fifty percent (50%) of the outstanding equity of such entity. This Agreement
will be binding upon and inure to the benefit of the parties hereto and their
respective representatives, successors or assigns.
/ / /
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-29-
IN WITNESS WHEREOF, this Agreement has been executed by the parties on
the date first stated.
XXXXXXX XXXXXX & CO., INC. E-LOAN, INC.
("Schwab") ("E-Loan")
By: /s/XXXXXXX X. XXXXX By: /s/XXXXXXXXX XXXXXX
______________________________ ______________________________
Print Name: Xxxxxxx X. Xxxxx Print Name: Xxxxxxxxx Xxxxxx
_____________________ ______________________
Title: Chief Marketing Officer Title: Chief Executive Officer
___________________________ ___________________________
Address: 000 Xxxxxxxxxx Xxxxxx Address: 0000 Xxxxxx Xxxx
_________________________ _________________________
Xxx Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
_________________________ _________________________
-30-
EXHIBIT A
REAL ESTATE LENDING SERVICES BY E-LOAN
o Domestic Real Estate Purchase Financing
o Domestic Real Estate Refinancing
o Automatic Rate Search for best rate from over 70 Lenders and over 50,000
loan products
- Includes Closing Cost Estimates and Product Information
o Convenient electronic application via secure server
o Cash out Real Estate Equity
Domestic Home Equity Loans
Domestic Home Equity Lines of Credit
o E-Track(sm) - 24 hour information on Mortgage status
o On-Line "Chat" Feature - Instant online answers; Speak with an E-Loan
representative online
o SPECIAL TOOLS TO MANAGE REAL ESTATE DEBT
- Rate Watch - Will e-mail consumer when target rate is available
- Loan Recommendations - Will make recommendations tailored to
consumer's specific needs
- Buy vs. Rent Calculator
- Payment Calculator
- Amortization Calculator
- Access to online Credit Report
- Market Outlook piece, updated daily
o EDUCATIONAL AIDES
- Glossary of Real Estate Terms
- Home Finance 101 - Overview of Home Financing
- FAQ
o SPECIAL PRODUCTS
- Preapproval Loans
- Zero down loans
- No Closing Cost Loans
- Less than perfect credit options
- Avoid PMI with 80/10/10 combination loans
- Relocation loans, excluding Schwab employees
A-1
EXHIBIT B
PERFORMANCE STANDARDS
WEB SITE PERFORMANCE AND STANDARDS
1. E-Loan shall provide technical and service level documentation as
requested by Schwab to maintain and service the Schwab Links and to respond to
inquiries from Customers regarding the Schwab Mortgage Website. Such
documentation may include, but is not limited to, online service level
commitments, standards, or goals; web availability; and E-Loan customer service
practices relating to outages and scheduled maintenance.
2. E-Loan and Schwab shall agree to have business and technical contacts
for access to the Schwab Mortgage Website. These contacts should be available
(via phone or pager) within 30 minutes during Peak Hours (as defined below).
Prior to the launch date for the web-based Schwab Links, the parties shall
develop and agree to an appropriate escalation path for problem identification
and resolution.
3. Subject to paragraph 5 of this Exhibit, the Schwab Mortgage Website
shall be available 24 hours a day, 7 days a week, 365 days a year, excluding
scheduled maintenance. E-Loan, however, shall not be responsible for connection
and availability problems of particular Customers due to Internet connection,
Internet Service Provider, computer and network, or telecommunications problems
outside of E-Loan's control.
4. Scheduled maintenance must occur during Off-Peak Hours and be
communicated to Schwab within seven (7) days, and at least five (5) business
days, prior written notice. Schwab must consent in advance to the scheduled
maintenance times outside of Off-Peak Hours, but may not unreasonably withhold,
delay, or condition such consent. For the purpose of this Exhibit, "Off-Peak
Hours" shall mean between the hours of 11:00 p.m. and 3:00 a.m. PST. "Peak
Hours" shall mean any time other than Off-Peak Hours.
5. Overall availability of the Schwab Mortgage Website shall be 99%, not
including scheduled maintenance, as calculated over any calendar month. The term
"available" means being in a state where a Customer initiates a request and
receives an error-free response. Schwab Mortgage Website availability numbers
shall be provided to Schwab on a monthly basis.
6. The Schwab Mortgage Website's transaction response time, as determined
over any calendar month, should be no more than 8 seconds or as good as the
transaction time for a competitive or similar product or offer. Within 30 days
after the signing of this
B-1
Agreement, the parties shall agree on an appropriate definition of transaction
time that shall be used for performance monitoring.
7. E-Loan shall agree to maintain system capacity and infrastructure that
provides Customers accessing the Schwab Mortgage Website through the web-based
Schwab Links the same performance levels as E-Loan's other customers.
8. E-Loan shall agree to promptly contact Xxxxxx'x technical and business
groups during an unplanned Outage. For the purpose of this Exhibit, an "Outage"
is unanticipated center downtime due to application or network failure. E-Loan
shall provide contact information (names/phone numbers/pagers) and in the event
of an Outage shall be available to Schwab via phone or pager within 15 minutes
during Peak Hours.
9. During an outage, E-Loan shall use its best efforts to remedy the
problem as quickly as possible. In the event of a sustained Outage of 30 minutes
or longer and when practicable, E-Loan shall implement a mechanism for informing
Customers of an Outage situation and providing a consistent "click-flow" for
Customers. Within 30 days of the signing of this Agreement, E-Loan shall submit
such mechanism or page for Xxxxxx'x review and approval.
10. All information transmitted between the Customer and the Schwab
Mortgage Website shall use SSL (secure socket layer) technology or other
recognized standard providing comparable levels of security. Subject to the
confidentiality provisions of this Agreement with reasonable advance notice and
upon written request, Schwab shall have the right to perform a security
assessment.
11. Schwab may, from time to time, reasonably request enhancements or
changes to the Schwab Mortgage Website for E-Loan to implement. Such requests
shall be given a "high priority" and be completed in a mutually agreed upon time
frame, generally within 10 business days. Expenses for requested changes shall
be allocated between the parties as mutually agreed upon at the time of the
request.
12. E-Loan shall notify and consult with Schwab prior to making any changes
to the infrastructure, format, look and feel, organization, or functionality of
the Custom Pages that would be material to the Customer experience. Such changes
include, but not are not limited to, alterations relating to the online account
application process, online offering memoranda, order entry, and the price and
order allocation process.
13. The Schwab Mortgage Website is subject to Schwab approval. The "look
and feel" of the Schwab Mortgage Website shall be consistent with the Schwab
Website, yet shall clearly signal that the Customer has entered the Schwab
Mortgage Website and is no longer at the Schwab Website.
B-2
EXHIBIT C
REPORTING REQUIREMENTS
E-Loan shall provide a written report with respect to Customers to Schwab on the
following on a weekly basis:
A. CONTACTS/APPLICATIONS/LOANS PROCESSING
1. Number of unique click-throughs
2. Number of applications received through the web
3. Number of applications received by telephone
4. Number of closed loans and average number of days to close
5. Number of loans in the pipeline
6. Percentage of loans approved/declined by reason
B. LOAN CHARACTERISTICS
1. Loan size per application
2. Loan size per closed loan
3. Loan product mix (for applications and closed loans) by (a) loan
product; (b) refinance vs. purchase; and (c) lender selected
C. CUSTOMER SATISFACTION
1. Average service response time
2. Customer satisfaction with representatives
3. Customer satisfaction surveys
D. CUSTOMER RESPONSE METRICS
1. Telephone response time
a. Average hold time
b. Abandoned calls
c. Average talk time
d. Total calls taken
2. E-Mail response time
a. Average response time
b. Percentage of pre-drafted responses
c. Percentage of specific responses
3. Time for credit approval
E. BASIC NAVIGATION/USABILITY ANALYSIS
X-0
XXXXXXX X
XXXXXXX XXXXXXXXX
X-0
EXHIBIT E
E-LOAN LICENSES
Jurisdiction State of Alabama
License type & number Exempt from mfg. lic. - HUD approved
Since 09/19/1999
Jurisdiction State of Alabama
License type & number Non-supervised state for consumer finance lenders
Since
Jurisdiction State of Alaska
License type & number Alaska Business License 248980
Since 11/05/1997
Jurisdiction State of Arkansas
License type & number Exempt from Mortgage Licensing - Agency Approved
Since 03/18/1999
Jurisdiction State of Arkansas
License type & number Non-supervised state for consumer finance lenders
Since
Jurisdiction State of California DRE
License type & number Real Estate Broker License 01259531
Since 05/13/1999
Jurisdiction State of California
License type & number Finance Lender License, File No: 605 2191 (CA); &
File No: 603 7246 (FL)
Since 02/03/2000
Jurisdiction State of Colorado
License type & number Non-supervised state for 1st mortgages
Since 11/03/1997
Jurisdiction State of Colorado
License type & number Uniform Consumer Credit Code Supervised Lender's
License No. 967246
Since 01/26/2000
E-1
Jurisdiction State of Connecticut
License type & number First Mortgage Lender/Broker 0007115
Since 10/01/1998
Jurisdiction State of Connecticut
License type & number Second Mortgage Lender/Broker 0006783
Since 10/01/1998
Jurisdiction State of Connecticut
License type & number Non-supervised state for consumer finance lenders
Since
Jurisdiction State of Delaware
License type & number Chapter 21 Mortgage Broker License 113215
Since 07/28/1998
Jurisdiction District of Columbia
License type & number Mortgage Lender/Broker License 697
Since 01/01/1998
Jurisdiction District of Columbia
License type & number Non-supervised jurisdiction for consumer finance
lenders
Since
Jurisdiction State of Florida
License type & number Correspondent Mortgage Lender Lic. 9901087
Since 05/14/1999
Jurisdiction State of Florida
License type & number Consumer Finance License 160016
Since 03/08/2000
Jurisdiction State of Georgia
License type & number Mortgage Lender License 13189
Since 02/16/1998
Jurisdiction State of Georgia
License type & number Non-supervised state for consumer finance lenders
Since
E-2
Jurisdiction State of Hawaii
License type & number Exempt from Mortgage Licensing - HUD approved
Since 09/14/1999
Jurisdiction State of Idaho
License type & number Mortgage Lender License 1521
Since 03/06/1998
Jurisdiction State of Idaho
License type & number Mortgage Lender License # 995
Since 01/10/2000
Jurisdiction State of Illinois
License type & number Residential Mortgage License #5538
Since 05/12/1999
Jurisdiction State of Indiana
License type & number Loan Broker Registration 96-0082 LB
Since 02/17/1998
Jurisdiction State of Iowa
License type & number Mortgage Broker & Banker License 619
Since 03/30/1998
Jurisdiction State of Iowa
License type & number Consumer Credit Code Notification
Since 01/10/2000
Jurisdiction State of Kansas
License type & number Mortgage Certificate of Registration 97-471
Since 12/18/1997
Jurisdiction Commonwealth of Kentucky
License type & number Exempt from mortgage
licensing because E-Loan is a HUD
approved mortgagee.
Since 09/14/1999
Jurisdiction State of Louisiana
License type & number Exempt from licensing - Xxxxxx Mae approved
Since 02/25/1998
E-3
Jurisdiction State of Louisiana
License type & number Non-supervised state for consumer finance lenders
Since
Jurisdiction State of Maine
License type & number Supervised Lender Lic. 1518; Branch Lic. SLB4652
Since 09/25/1998
Jurisdiction State of Maryland
License type & number Mortgage Lenders License 6103
Since 03/23/2000
Jurisdiction State of Maryland
License type & number Consumer Loan License 887 (CA)
Since 03/17/2000
Jurisdiction Commonwealth of Massachusetts
License type & number Small Loan Agency License Number SL0778. Certifi-
cate 0038434
Since 02/17/2000
Jurisdiction State of Michigan
License type & number Registered Mortgage Broker & Lender No. FR0783
Since 10/12/1999
Jurisdiction State of Michigan
License type & number Secondary Mortgage Broker/Lender Reg. No. SR-0569
Since 11/08/1999
Jurisdiction State of Minnesota
License type & number Residential Mortgage Originator No. MO 20184170
Since 10/28/1997
Jurisdiction State of Mississippi
License type & number Non-supervised state for mortgages
Since 11/24/1997
Jurisdiction State of Mississippi
License type & number Non-supervised state for consumer finance lenders
Since
E-4
Jurisdiction State of Missouri
License type & number Exempt from mtg. lic. - Xxxxxx Xxx approved
Since 02/25/1999
Jurisdiction State of Missouri
License type & number Chapter 367 Small Loan Company License 000-00-000
(CA); 000-00-000 (FL)
Since 03/08/2000
Jurisdiction State of Montana
License type & number Non-supervised state for mortgages
Since 10/20/1997
Jurisdiction State of Nebraska
License type & number Mortgage banker License
Since 03/02/1998
Jurisdiction State of Nevada
License type & number Exempt letter allowing us to originate mtg.
Online
Since 12/18/1997
Jurisdiction State of New Hampshire
License type & number First Mortgage Banker & Broker License No. 6103-
MB
Since 01/20/2000
Jurisdiction State of New Hampshire
License type & number Second Mortgage Home Loan Lender License No. 7712
-MHL
Since 01/20/2000
Jurisdiction State of New Mexico
License type & number Mortgage Certificate of Exemption/Section 58-21-
6(H)
Since 01/27/1998
Jurisdiction State of New Mexico
License type & number Non-supervised state for consumer finance lenders
Since
Jurisdiction State of New York
License type & number File No. A004496
Since 03/06/1998
X-0
Xxxxxxxxxxxx Xxxxx xx Xxxxx Xxxxxxxx
License type & number Mortgage Banker No. A 1467
Since 09/23/1998
Jurisdiction State of North Dakota
License type & number Money Broker A-0499
Since 03/10/1998
Jurisdiction State of Ohio
License type & number Exempt from 1st mtg. Lic. - Xxxxxx Mae approved
Since 05/17/1999
Jurisdiction State of Oklahoma
License type & number Exempt from Mortgage Licensing - Xxxxxx Xxx
approved
Since 02/25/1999
Jurisdiction State of Oregon
License type & number Order to Transact Business Mtg. Bnkr/Br MB/B-1409
Since 02/12/1998
Jurisdiction Commonwealth of Pennsylvania
License type & number First Mortgage Banker License No. 1549
Since 07/20/1999
Jurisdiction Commonwealth of Pennsylvania
License type & number Secondary Mortgage Lender License No. 1857
Since 07/20/1999
Jurisdiction Commonwealth of Pennsylvania
License type & number Consumer Discount Company Licenses 3373 (PA),
3374 (CA), 3375 (FL)
Since 02/17/2000
Jurisdiction State of Rhode Island and Providence Plantations
License type & number Licensed Lender 99001044 LL; Licensed Mtg. Loan
Broker 200010086 LB
Since 12/03/1999
X-0
Xxxxxxxxxxxx Xxxxx xx Xxxxx Xxxxxxxx
License type & number Until Licensed, may lend if don't exceed 12% rate
limit
Since
Jurisdiction State of South Dakota
License type & number Mortgage Lender License #4118 ML
Since 11/19/1997
Jurisdiction State of South Dakota
License type & number Non-supervised state for consumer finance lenders
Since
Jurisdiction State of Tennessee
License type & number Residential Lending & Brokerage 0000000375
Since 01/01/1998
Jurisdiction State of Texas
License type & number Non-supervised state for 1st mortgages
Since 12/06/1997
Jurisdiction State of Utah
License type & number Residential First Mortgage Notification
Since 01/16/1998
Jurisdiction State of Utah
License type & number Consumer Credit Notification
Since 01/20/2000
Jurisdiction State of Vermont
License type & number Lender 4576 (CA), 4577 (FL), Mtg Xxxx 0000 XX(XX)
Since 10/06/1998
Jurisdiction Commonwealth of Virginia
License type & number Mortgage Lender and Broker License No. MLB-642
Since 12/13/1999
Jurisdiction State of Virginia
License type & number Non-supervised state for consumer finance lenders
Since
E-7
Jurisdiction State of Washington
License type & number Mortgage Broker License 510-MB-1007-00
Since 03/02/1998
Jurisdiction State of West Virginia
License type & number Non-supervised state for mortgages
Since 10/14/1997
Jurisdiction State of West Virginia
License type & number Non-supervised state for consumer finance lenders
Since
Jurisdiction State of Wisconsin
License type & number Mortgage Banker Certificate of Registration 1170
Since 09/21/1998
Jurisdiction State of Wyoming
License type & number Non-supervised state for mortgages
Since 10/15/1997
E-8
EXHIBIT F
NOTICES
Notices to E-Loan, Inc.:
E-Loan, Inc.
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxx, Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
E-Loan, Inc.
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices to Xxxxxxx Xxxxxx & Co., Inc.:
Xxxxxxx Xxxxxx & Co., Inc.
The Xxxxxx Building
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxxxxxxx X. Xxxxx
Executive Vice-President & Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
F-1
