AMENDMENT NUMBER ONE TO DOMAIN NAME ASSIGNMENT AGREEMENT
This AMENDMENT NUMBER ONE TO DOMAIN NAME ASSIGNMENT AGREEMENT
(this "Amendment") is entered into this 30th day of June 1999, by and between
Xxxxxxxx.xxx, Inc. (f/k/a First Mortgage Network, Inc.), a Florida corporation
located at 0000 Xxxxxxx Xxxx., Xxxxxxxxxx, Xxxxxxx 00000 ("Purchaser"), and
Xxxxxx.Xxx, LLC, a California limited liability company located at 00 Xxxxxxxx
Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 ("Seller").
RECITALS
WHEREAS, on January 1st, 1999 PURCHASER and SELLER entered
into, inter alia, the following agreements: (i) Domain Name Assignment Agreement
(the "Domain Name Assignment Agreement"); (ii) Registration Rights Agreement
(the "Registration Rights Agreement"); and (iii) Security Agreement (the
"Security Agreement"); and
WHEREAS, PURCHASER and SELLER desire to amend the Domain Name
Assignment Agreement as more particularly set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants set
forth herein, the parties agree as follows:
1. All capitalized terms used herein that are not otherwise defined herein
shall have the respective meanings ascribed to such terms as set forth
in the Domain Name Assignment Agreement, regardless of whether certain
provisions of the Domain Name Assignment Agreement are deleted hereby.
2. In consideration of SELLER's obligations and agreements set forth in
this Amendment, PURCHASER shall pay to SELLER One Million Five Hundred
Thousand Dollars ($1,500,000) on the date hereof (the "Closing Date")
in cash and in immediately available funds by bank wire transfer to an
account or accounts designated by SELLER.
3. The lead in clause to Paragraph 2 of the Domain Name Assignment
Agreement is hereby amended in its entirety as follows:
"SELLER agrees to provide the PURCHASER the following as long as the
terms and conditions of the marketing agreement set forth in Paragraph
5 of this Agreement are in effect and PURCHASER is not in breach or
default of this Agreement:"
4. Paragraph 3.a. of the Domain Name Assignment Agreement is restated in
its entirety as follows:
"3.a PURCHASER shall provide SELLER with non-hyperlink promotional
space (80x80 pixels in size) the content of which shall be provided by
SELLER and unrestricted by PURCHASER except as otherwise permitted
herein. SELLER's promotional space referred to in the immediately
preceding sentence shall be located in a Premium Location defined as
"above the fold or bottom of the computer screen
fully viewable without scrolling on a seventeen (17) inch computer
monitor using 640x480 resolution", on the Xxxxxxxx.xxx "Home Page"
which is defined herein "as any index, default, root or other web page
which is the first page called and displayed when accessing the
Internet web site addresses, xxxx://xxx.xxxxxxxx.xxx, xxx.xxxxxxxx.xxx,
xxxxxxxx.xxx or any web site address not excluded in paragraph 3.h. of
this Agreement. SELLER shall have the right to provide PURCHASER, and
PURCHASER shall be obligated to host on its web server, or any web
server used to host the Xxxxxxxx.xxx "Home Page", any and all hyper
text markup language (HTML) or code required by SELLER on the
Xxxxxxxx.xxx Home Page.
Without forfeiting any of SELLER's rights contained herein including,
without limitation, those set forth in this Paragraph 3.a:
(a) SELLER agrees its promotional representation on the
Xxxxxxxx.xxx Home Page shall not include any content, code,
design or images considered to be obscene, pornographic or
illegal by a reasonable person residing in San Diego,
California applying the community standards of San Diego,
California.
(b) SELLER agrees to use commercially reasonable efforts to
maintain the "look and feel" of the Xxxxxxxx.xxx Home Page, it
being understood and agreed that the SELLER shall have the
sole and exclusive right to determine whether SELLER is in
compliance with the SELLER's obligations set forth in this
Paragraph 3.a (b) and that PURCHASER shall not have any rights
to determine whether SELLER is in compliance with the
provisions of this Paragraph 3.a(b).
(c) SELLER agrees to use its promotional space on the Xxxxxxxx.xxx
Home Page solely for the purpose of promoting its web site
xxx.xxxxxx.xxx.
(d) SELLER agrees that the only reference to Xxxxxxxx.xxx within
its promotional space on the Xxxxxxxx.xxx Home Page shall be
introduced with the words "member of" or "affiliate of".
(e) SELLER agrees the Xxxxxx.Xxx logo type used in its promotional
space on the Xxxxxxxx.xxx Home Page shall be substantially the
same as the logo type it uses on the Xxxxxx.Xxx Home Page
located at xxx.xxxxxx.xxx.
(f) SELLER agrees the only web site address or (URL) to be
displayed within its promotional space on the Xxxxxxxx.xxx
Home Page shall be xxxx://xxx.xxxxxx.xxx or xxxxxx.xxx.
(g) SELLER agrees it will not use its promotional space on the
Xxxxxxxx.xxx Home Page to reference any third party mortgage
financing web sites or related mortgage financing third party
products.
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(h) SELLER agrees to provide reasonable notice of any significant
changes to its promotional space on the Xxxxxxxx.xxx Home Page
prior to their implementation.
(i) For a period of one year from the date hereof, SELLER agrees
not to use any animated GIF's in SELLER's promotional space on
the Xxxxxxxx.xxx Home Page so long as PURCHASER does not use
any animated GIF's on PURCHASER's Xxxxxxxx.Xxx Home Page, it
being understood and agreed that if PURCHASER shall use any
animated GIF's on PURCHASER Xxxxxxxx.xxx Home Page during such
one year period, then SELLER shall be permitted to use
animated GIF's in SELLER's promotional space on the
Xxxxxxxx.xxx Home Page."
5. Paragraph 3.c. of the Domain Name Assignment Agreement is hereby
restated in its entirety as follows:
"3.c PURCHASER shall provide SELLER with a hyperlink promotional space
(480x60 pixels in size) which shall include a banner advertisement and
the hypertext markup language (HTML) provided by SELLER which shall
include the HTML code (left angle bracket) A HREF="
xxxx://xxx.xxxxxx.xxx/xxx bin/redir/site=FMN/?xxxx://xxx.xxxxxx.xxx/">
(left angle bracket)IMG SRC="
xxxx://xxx.xxxxxx.xxx/xxx/xxxxxx/xxx_xxxxxx.xxx" > (left angle
bracket)/A> and which will allow visitors to hyperlink to SELLER's Home
Page, xxx.xxxxxx.xxx, in a Premium Location as described and defined in
Paragraph 3.a. above, on the final page displayed to all visitors who
have completed the mortgage loan application process on the
xxx.xxxxxxxx.xxx web site or any site not excluded in Paragraph 3.h.
SELLER agrees its banner advertisement on the Xxxxxxxx.xxx website will
not reference any third party mortgage financing web sites or related
mortgage financing third party products."
6. Paragraph 3.d. of the Domain Name Assignment Agreement is hereby
restated in its entirety as follows:
"3.d PURCHASER agrees to replace, and PURCHASER agrees to cause its
affiliates (as defined in Rule 144 promulgated under the Securities Act
of 1933, as amended) ("Affiliates"), to replace PURCHASER's
xxx.xxxxxxxx.xxx web site with xxx.xxxxxxxx.xxx website at all web
sites currently using the loanshop brand, or to point those URLs
directly (without using redirects) at xxxxxxxx.xxx; provided, however,
that the first page of the Xxxxxxxx.xxx web site that any visitor is
directed to or may access on the Internet or otherwise shall contain
SELLER's non-hyper link promotional space (80 by 80 pixels in size) in
a Premium Location as further described in Paragraph 3.a. This
provision shall include all multi lender sites owned, operated and /or
branded by PURCHASER or any of its Affiliate entities."
7. The second sentence of Paragraph 3.i. of the Domain Name Assignment
Agreement is hereby deleted in its entirety.
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8. Seller hereby waives its preemptive rights with respect to all
securities of the Purchaser whether issued or sold prior to, on, or
subsequent to the Closing Date and, accordingly, the second sentence of
Paragraph 4.a. of the Domain Name Assignment Agreement is hereby
deleted in its entirety.
9. SELLER agrees to execute the waiver letter attached hereto as Exhibit A
and the "lock-up" agreement attached hereto as Exhibit B on the date
hereof.
10. SELLER acknowledges that upon payment of the amount set forth in
Paragraph 2 of this Amendment, PURCHASER's payment obligations to
SELLER under Paragraphs 4.c. and 4.d. of the Domain Name Assignment
Agreement shall be satisfied and shall be deemed to have been paid in
full. Accordingly, paragraphs 4.c. and 4.d. of the Domain Name
Assignment Agreement are deleted in their entirety.
11. SELLER hereby waives its rights contained in Paragraph 4.e. of the
Domain Name Assignment Agreement with respect to the IPO. Accordingly,
Paragraph 4.e of the Domain Name Assignment Agreement is deleted in its
entirety and Paragraph 4.f is modified pursuant to Exhibit A attached
hereto.
12. SELLER agrees that upon payment of the amount set forth in Paragraph 2
of this Amendment, the security interest described in Paragraph 4.g. of
the Domain Name Assignment Agreement and in the Security Agreement
shall terminate and be of no further force and effect, and accordingly
the first paragraph of Paragraph 4.g of the Domain Name Assignment
Agreement is deleted in its entirety, and the second paragraph of
Paragraph 4.g of the Domain Name Assignment Agreement is amended and
restated in its entirety as set forth below and the Security Agreement
shall be terminated and be of no further force and effect. SELLER shall
sign such UCC-3 termination statements and other documents as shall be
reasonably requested by PURCHASER to effect the release of the security
interest referred to herein. SELLER hereby represents and warrants that
it never notified Network Solutions, Inc. ("NSI") in writing or
otherwise of PURCHASER's payment obligations to SELLER under Paragraphs
4.c and 4.d of the Domain Name Assignment Agreement, however, upon the
request of PURCHASER SELLER shall notify NSI in writing that
PURCHASER's payment obligations to SELLER under Paragraphs 4.c and 4.d
of the Domain Name Assignment Agreement have been satisfied, and that
the letter to NSI from SELLER (as agreed to by PURCHASER on January 7,
1999) is of no further force and effect and may be disregarded by NSI,
and a form of such notification is attached hereto as Exhibit C.
(1) Restated Second Paragraph of Paragraph 4.g. of the Domain Name
Assignment Agreement:
"In the event that PURCHASER breaches any of its obligations
contained in this Agreement or the Registration Rights
Agreement, then SELLER shall deliver a written notice to
PURCHASER setting forth in reasonable detail the nature of
PURCHASER's breach. Upon receipt of such notice, and, assuming
that such breach
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is the first occurrence of such type of breach, then PURCHASER
shall have ten (10) days to cure such breach; provided,
however, that PURCHASER's cure period with respect to any type
of good faith and unintentional breach for which PURCHASER
previously was afforded such cure period shall be five (5)
days. PURCHASER shall not be afforded any cure period for; (i)
an intentional second occurrence of the same or substantially
similar breach during any consecutive twelve (12) month period
or (ii) the third breach of any obligation of PURCHASER under
this Agreement that occurs during any consecutive twelve (12)
month period. If PURCHASER shall fail to cure its breach
within the applicable time period of this Paragraph or such
breach is an intentional second occurrence of such type of
breach or is the third breach occurring during any consecutive
twelve (12) month period, then, without any further action by
any party hereto PURCHASER: (i) (A)shall be entitled to
recover its actual damages incurred as a result of such
breach; or (B) PURCHASER shall pay to SELLER ONE MILLION and
00/100 DOLLARS ($1,000,000) in cash and in immediately
available funds to an account or accounts designated by SELLER
within three (3) business days, such payment representing
reasonable and agreed upon liquidated damages and not a
penalty; and (ii) SELLER shall have the right, but not the
obligation, to terminate the executory portions of this
Agreement by delivering a written notice to PURCHASER at any
time up until the sixtieth (60th) day after PURCHASER shall
have made the $1,000,000 payment provided herein; and (iii) if
either party has to take legal action to enforce any of the
provisions of this Agreement, then, in addition to any and all
other rights, remedies or causes of action available, the
prevailing party shall be entitled to receive reasonable legal
fees and expenses in connection with such legal action.
To be considered a breach under this Paragraph 4.g, a monetary
payment due under this Agreement must be more than thirty (30)
days late, or more than twenty percent (20%) less than the
amount due, after any applicable cure period. Regardless of
the number of breaches, in no event shall the liquidated
damages referred to in clause (i)(B) of this Paragraph 4.g
exceed One Million Dollars ($1,000,000) in any consecutive
twelve (12) month period."
13. Paragraph 4.h. of the Domain Name Assignment Agreement is restated in
its entirety as follows:
"Any amounts required to be paid by PURCHASER to SELLER
pursuant to this Agreement shall bear interest from its due
date at the rate of EIGHTEEN PERCENT (18%) per annum for each
day that such payment is not made."
14. Paragraph 5 of the Domain Name Assignment Agreement is hereby restated
in its entirety as follows:
"5. Marketing Agreement
In consideration of SELLER's obligations contained hereunder
including, without limitation, SELLER's web site advertising,
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promotion and marketing of the Xxxxxxxx.xxx web site as
provided in Paragraph 2 above, which the parties agree is
valued at Two Million Five Hundred Thousand Dollars
($2,500,000) per year, PURCHASER shall pay SELLER on a monthly
basis, on the fifteenth (15th ) day of each month payable in
arrears, under the fee schedule set forth below for all loans
resulting from the marketing, promoting and advertising of
xxx.xxxxxxxx.xxx by SELLER via its Network, or any other
SELLER controlled site, to xxx.xxxxxxxx.xxx or any other
PURCHASER owned site. Such fees shall not exceed Two Million
Five Hundred Thousand Dollars ($2,500,000) during any twelve
(12) month period commencing on the date of closing of this
Agreement, and the amounts payable pursuant to this Section 5
shall expire ten (10) years from the date hereof.
5.a Mortgage. com shall pay to XXXXXX.XXX a fee of EIGHTY and
00/100 ($80.00) DOLLARS for every completed loan application
(defined as a submitted application and including a valid
Social Security Number, if a Social Security Number is so
requested as a part of such application) resulting or
originating from the XXXXXX.XXX web site (regardless of
whether the application results in a closed loan)."
15. The address set forth in Paragraph 13.g.1 of the Domain Name Assignment
Agreement to which notices must be delivered to the SELLER is hereby
amended by adding the following under the last paragraph of Paragraph
13.g.1 of the Domain Name Assignment Agreement:
"with copies to:
Xxxx X. Xxxxxxx, President and COO
00 Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
and
Xxxxxxx, Xxxxxxxxx LLP
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq."
16. Except as specifically set forth in this Amendment, all terms and
conditions of the Domain Name Assignment Agreement, the Registration
Rights Agreement and all other ancillary documentation executed in
connection therewith shall remain in full force and effect. All
references to the Domain Name Assignment Agreement after the date
hereof shall automatically be deemed to include this Amendment, and,
accordingly, without limiting the generality of this sentence, it is
understood and agreed that the defined term "Agreement"
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found in the Domain Name Assignment Agreement includes, collectively,
the Domain Name Assignment Agreement and this Amendment. In the event
of any conflict between the terms of this Amendment and the terms of
the Domain Name Assignment Agreement or the Registration Rights
Agreement, the terms of this Amendment shall control.
17. This Amendment may be executed in one or more counterparts, each of
which shall be deemed an original, and will become effective and
binding upon the parties as of the Closing Date.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Amendment as of the day and year first written above.
XXXXXXXX.XXX, INC.
By: Date:
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Name: Xxxx Xxxxxx
Title: Chief Executive Officer & President
XXXXXX.XXX, LLC
By: Date:
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Name: Xxxx Xxxxxxx
Title: President and Chief Operating Officer
