WAIVER AGREEMENT
This Waiver Agreement ("Agreement") is executed by and between Cendant
Mortgage Corporation ("Cendant") and First Mortgage Network Inc. ("FMNI")
(collectively, the "Parties").
In 1997, Cendant (formerly known as PHH Mortgage Services Corporation)
entered into a Marketing Agreement with NRT under the terms of which, among
other things, for a fee paid by Cendant, NRT generally agrees not to market, or
grant unlimited access or space to, mortgage origination entities other than
Cendant, within certain NRT real estate brokerage offices (the Marketing
Agreement Exclusivity Provision), including, without limitation, the NRT offices
in Northern California other than Cornish and Xxxxx described in Exhibit A
appended hereto (collectively, the NRT Northern California Offices).
FMN is a mortgage origination entity that seeks to originate mortgage
loans for real estate brokerage customers of the NRT Northern California
Offices, with the cooperation of such offices, without regard to the limitations
that otherwise would be imposed upon it and its loan officers under the terms of
the Marketing Agreement Exclusivity Provision.
Cendant is willing to permit FMN (or its designee, Old Redwood Mortgage
Corp., for purposes of certain offices ("Designee"; FMNI and Designee shall be
collectively referred to herein as "FMN")) to seek mortgage loan origination
business within the NRT Northern California Offices, without regard to the
Marketing Agreement Exclusivity Provision, and, accordingly, to waive the
applicability of the Marketing Agreement Exclusivity Provision, and NRT is
willing to consent to the such waiver, all under the terms and conditions of
this Agreement. FMN's agreement to indemnify Cendant is as set forth herein.
The Parties agree as follows:
1. FMN represents and warrants that it is duly incorporated; that it is
authorized to do business in California; and that it is duly licensed by and in
good standing with the State of California to originate and close single-family
residential mortgage loans in and around each of the NRT Northern California
Offices.
2. For the exclusive benefit of FMN, Cendant waives the applicability
of the Marketing Agreement Exclusivity Provision and Cendant agrees that FMN may
seek to originate mortgage loans for real estate brokerage customers of the NRT
Northern California Offices, all in accordance with the terms and conditions of
this Agreement. FMN agrees to comply with all the reasonable rules and
regulations adopted from time to time by NRT for the use, entry, management and
enjoyment of the NRT Northern California Offices. In addition, FMN agrees to
comply with all statutes, laws, rules and regulations affecting FMN's mortgage
lending business. FMN further agrees not to make any alterations or additions or
place any signs to or throughout the NRT Northern California offices without the
consent of NRT, which consent will not be unreasonably withheld.
3. FMN agrees that its loan officers placed throughout the NRT Northern
California offices shall: (i) become involved in the NRT Northern California
Offices' activities to the fullest extent permitted by law; (ii) be accessible
24 hours a day, 7 days a week to pre-qualify potential customers; (iii) maintain
high visibility in such offices; and (iv) maintain a professional manner in
providing high quality service at all times to NRT real estate agents and
customers.
4. FMN agrees to pay to Cendant, in advance, each month during the term
of this Agreement by no later than the 10th day of each month, the sum of
$24,000 (twenty-four thousand dollars) for the waiver provided hereunder. The
parties agree that the waiver fee set forth herein represents the fair and
reasonable value of the waiver by Cendant of the Marketing Agreement Exclusivity
Provision with respect to the offices attached on Exhibit A. The parties further
agree that in the event there is a material change to the offices listed on
Exhibit A, the fees paid herein will be adjusted to reflect the continued fair
and reasonable value of the waiver by Cendant.
5. The Term of this Agreement shall commence January 1, 1999, and shall
end December 31, 2003 (the Termination Date), unless earlier terminated as
provided in this Agreement. Cendant may terminate this Agreement prior to the
Termination Date: (a) if the Marketing Agreement or any of the Correspondent
Agreement(s) executed between the parties are modified in any material way; (b)
if Cendant reasonably concludes that FMN is or likely will be in material
default under the terms of any other agreement it has with Cendant; or (c) in
the event Cendant receives written notice from the NRT that FMN, in NRT's
judgment, is performing in an unacceptable manner. In any such event, Cendant
shall give at least thirty (30) days written advance notice (the Notification
Period) of such early termination date to FMN. FMN may terminate this Agreement,
at any time, with or without cause, by providing thirty (30) days written notice
to Cendant. Notwithstanding the foregoing, the provisions of Paragraphs 6, 7, 8
and 10 shall survive termination of this Agreement.
6. Indemnification.
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(a) The Parties each agree to indemnify the other from any and all
expenses, penalties, liabilities, loss, damage, including reasonable attorneys'
fees, or costs any Party may suffer as a result of claims, demands, suits,
costs, and/or judgments arising out of (i) any breach by any party of its
respective representations, warranties, covenants and/or obligations under this
Agreement or (ii) the negligence or willful misconduct of such Party.
(b) The Parties each agree to indemnify the other from any and all
liability, loss or damage any Party may suffer as a result of claims, demands,
suits, costs, judgments against it, or reasonable attorneys' fees arising out of
the failure of any Party to conform to the statutes, ordinances, or other
regulations or requirements of any governmental authority in all material
respects, in connection with this Agreement.
7. Other than for any action, claim, lawsuit or proceeding made or
started prior to execution of this Agreement of which the Parties are aware, in
the event any allegedly injured party ("Indemnitee") intends to make a claim for
indemnification hereunder, it shall notify the
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other ("Indemnitor") of the claim in writing promptly (but in no event later
than 30 days) after receiving written notice of any action, lawsuit, proceeding,
investigation or other claim or discovering the liability, obligation or facts
giving rise to such claim for indemnification, describing the claim, the amount
thereof (if known and quantifiable), and the basis thereof; provided that the
failure to so notify the Indemnitor shall not relieve the Indemnitor of its
obligations hereunder except to the extent such failure shall have actually
prejudiced the Indemnitor. The Indemnitor shall be entitled to assume and
control (with counsel of its choice) the defense of the action, lawsuit,
proceeding, investigation or other claim giving rise to Indemnitee's claim for
indemnification at the option and expense of the Indemnitor by sending written
notice of his election to do so within 15 days after receiving written notice of
such claim from the Indemnitee as aforesaid; provided, however, that:
(a) The Indemnitee shall be entitled to participate in the defense
of such claim and to employ counsel of its choice for such purpose, the fees and
expenses of such separate counsel which shall be borne by the Indemnitee;
(b) If the Indemnitor elects to assume the defense of any such
claim, the Indemnitor shall be entitled to compromise or settle such claim so
long as either (x) such settlement provides an unconditional release of all
Indemnitees with respect to such claim and requires the payment of monetary
damages only or (y) Indemnitor obtains the prior written consent of the
Indemnitee (which consent shall not he unreasonably withheld); and
(c) If the Indemnitor shall not have assumed the defense of such
claim within the 15-day period set forth above, the Indemnitee may assume the
defense of such action, lawsuit, proceeding, investigation or such other claim
with counsel selected by it (which counsel shall be reasonably acceptable to the
Indemnitor) at the expense of the Indemnitor, provided that the Indemnitee shall
under no circumstances settle or compromise such claim without the prior written
consent of the Indemnitor (which consent shall not be unreasonably withheld).
(d) No notification of any indemnification claim under the terms of
this Agreement shall be effective or timely unless it is given during the Term
of this Agreement. An obligation to indemnify under the terms of this Agreement
with respect to a claim notification which is timely given shall survive the
termination of this Agreement. Notification shall be given to the last known
address.
8. The terms of this Agreement shall be binding upon and shall inure to
the benefit of the respective parties. This Agreement shall not be assigned by
either party without the express prior written consent of the other, which
consent may be given or withheld in the sole discretion of the party whose
consent in required hereby. The obligation of FMN to pay the fee then owed, as
set forth in Section 2 of this Agreement, and the respective obligations of the
parties to indemnify as set forth in this Agreement, shall survive the
termination of this Agreement.
9. This Agreement shall be subject to and construed under the laws of
the State of New Jersey, without reference to the conflicts of laws provisions
thereof and FMN consents to
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the personal jurisdiction of the Courts of the State of New Jersey and the
United States District Court for the District of New Jersey.
The parties each have caused this Agreement to be executed, as of this
28th day of December, 1998, each by their duly appointed officers, as evidenced
below.
Cendant Mortgage Corporation
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Its: Senior Vice President
First Mortgage Network, Inc.
By: /s/ Xxxx Xxxxxx
--------------------------------
Name: Xxxx Xxxxxx
its: Chief Executive Officer
Attachment: Exhibit A (NRT Northern California Offices)
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EXHIBIT A
C21/Contempo Almaden 0000 Xxxxxxx Xxxx Xx., #000
Xxx Xxxx Xxx Xxxx, XX 00000
C21/Contempo Bascom 0000 X. Xxxxxx Xxx., #000
Xxx Xxxx Xxx Xxxx, XX 00000
C21/Contempo Cupertino 1 00000 Xxxxxxx Xxxxx Xxxx.
Xxxxxxxxx, XX 00000
C21/Contempo Cupertino 2 00000 Xxxxxxx Xxxxx Xxxx.
Xxxx Xxxxxx Xxxxxxxxx, XX 00000
C21/Contempo Danville 000 Xxx Xxxxx Xxxxxx Xxxx.
Xxxx & Xxxxx Xxxxxxxx, XX 00000
C21/Contempo Fremont 00000 Xxxxx Xxxxx Xxxx
Xxxxxxx, XX 00000
C21/Contempo Gilroy 0000 Xxxx Xxx.
Xxxxxx, XX 00000
C21/Contempo Hollister 000 Xxxx Xxxxx Xx.
Xxxxxxxxx, XX 00000
C21/Contempo Lafayette 0000 Xx. Xxxxxx Xx.
Xxxxxxxxx, XX 00000
C21/Contempo Livermore 0000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
C21/Contempo Los Gatos 000 Xxx Xxxxx-Xxxxxxxx Xx.
Xxx Xxxxx, XX 00000
C21/Contempo Xxxxxx Xxxx 000 Xxxxxxx Xxxxxxx
Xxxxxx Xxxx, XX 00000
C21/Contempo Pleasanton 0000 Xxxxxxxxxx Xx., #000
Xxxxxxxxxx, XX 00000
C21/Contempo Sunnyvale 000 X. Xx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
C21/Contempo Walnut Creek 0000 Xxxxxxx Xxxxxx Xx., #000
Xxxxxx Xxxxx, XX 00000
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C21/Contempo Willow Xxxx 0000 Xxxxxxxx Xxx.
Xxx Xxxx Xxx Xxxx, XX 00000
C21/Seville Los Altos 000 X. Xxx Xxxxxxx Xx.
Xxx Xxxxx, XX 00000
C21/Seville Menlo Park 000 Xx Xxxxxx Xxxx
Xxxxx Xxxx, XX 00000
C21/Seville Saratoga 00000 Xxxxxxxx-Xxxxxxxxx Xx.
Xxxxxxxx, XX 00000
Coldwell Banker San Francisco 0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx Xxxxxxx Xxx Xxxxxxxxx, XX 00000
Coldwell Banker San Francisco 0000 Xxx Xxxx Xxx.
Xxx Xxxxxxx Xxx Xxxx Xxx Xxxxxxxxx, XX 00000
Coldwell Banker San Francisco 0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx Xxxxxxx Xxx Xxxxxxxxx, XX 00000
Coldwell Banker Sunnyvale TBD
Xxx Xxxxxxx
Coldwell Banker Mill Valley 000 Xxxxxxx Xxxx.
Xxx Xxxxxxx Xxxx Xxxx Xxxxxx, XX 00000
Coldwell Banker San Mateo TBD
Xxx Xxxxxxx
Coldwell Banker Greenbrae 000 Xxx Xxx Xxxxxx, Xxx. 000
Xxx Xxxxxxx Xxxxxxxxx, XX 00000
Coldwell Banker San Xxxxxx 000 Xxxxx Xxx.
Xxx Xxxxxxx Xxx Xxxxxx, XX 00000
Coldwell Banker San Xxxx 000 X Xxxxxx
Xxx Xxxxxxx Xxxxx Xxxx, XX 00000
Coldwell Banker Novato 0000 Xxxxxx Xxxx., #000
Xxx Xxxxxxx Xxxxxx, XX 00000
Coldwell Banker Petaluma 000 X. XxXxxxxx Xxxx.
Xxx Xxxxxxx Xxxxxxxx, XX 00000
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Coldwell Banker Sausalito 0 Xxxxxx Xx., Xxx. 000
Xxx Xxxxxxx Xxxxxxxxx, XX 00000
Coldwell Banker Santa Xxxx 000 Xxxxxx Xxx.
PPM Sonoma Xxxxx Xxxx, XX 00000
Coldwell Banker Santa Xxxx 0000 Xxxxxxxxx Xxx.
XXX Xxxxxxxxx Xxxxx Xxxx, XX 00000
Coldwell Banker Sebastopol 000 Xxxxxxxx Xxx.
XXX Xxxxxxxxxx, XX 00000
Coldwell Banker Xxxxxxx Xxxx 00 Xxxxxxxxxx Xx.
PPM Xxxxxxx Xxxx, XX 00000
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