DISTRIBUTION, MARKETING, FACILITIES, and SERVICES AGREEMENT
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This DISTRIBUTION, MARKETING, FACILITIES, SERVICES AGREEMENT (the
"Agreement") is entered into as of May 31, 1998, between INTUIT LENDER SERVICES,
INC., a Delaware corporation with its principal place of business at 0000 Xxxxxx
Xxxxxx, Xxxxxxxx Xxxx, XX 00000 ("ILSI"), and FIRST MORTGAGE NETWORK, INC., a
Florida corporation with its principal place of business at 0000 Xxxxxxx Xxxx,
Xxxxxxxxxx, XX, 00000 ("FMN").
WITNESSETH:
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WHEREAS, ILSI owns and operates the QuickenMortgage(R) website located
at (the "Website"), through which consumers can shop for loans, prequalify and
apply for mortgage loans with various lenders online;
WHEREAS, ILSI has agreements with various lenders obligating ILSI to:
display and advertise the loan products of such lenders through the Website;
counsel and prequalify applicants; receive and transmit mortgage loan
applications electronically; and provide other goods and facilities and perform
various other services for lenders;
WHEREAS, FMN is in the business of providing mortgage loan underwriting
and origination support services to mortgage loan brokers and lenders;
WHEREAS, FMN is or will become, prior to performing its duties under
this Agreement, an approved loan correspondent for various mortgage lenders,
with an adequate facility enabling it to fund and close mortgage loans in its
name as creditor;
WHEREAS, ILSI has entered into technology and distribution agreements
with various companies to draw consumer traffic to the Website and facilitate
consumer navigation through mortgage loan financing and related sites;
WHEREAS, ILSI wishes to improve the speed, process, and customer
satisfaction associated with consumers' use of its proprietary mortgage
marketspace, known as QuickenMortgage, by engaging FMN to perform loan
origination and related tasks for some or all of the lenders participating in
QuickenMortgage;
WHEREAS, ILSI and FMN desire to work together to originate, underwrite
and close mortgage loans that have been initiated through Inquiries,
Prequalifications, Short Applications and Enhanced Applications, as defined
herein ("ILSI Loans"), for sale by them, individually or together, in secondary
market transactions to participating lenders (the "Participating Lenders").
NOW, THEREFORE, in consideration of the premises and the respective
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
ARTICLE I
ILSI SERVICES AND FACILITIES
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** indicates information which has been omitted pursuant to a confidential
treatment request filed separately with the Commission.
ILSI shall perform the following services and provide the following
facilities in connection with ILSI Loans:
1.1 Marketing. ILSI shall use commercially reasonable efforts, using
such methods and distribution channels as it deems advisable, to advertise and
market the Website to increase the number of Participating Lenders served by the
Website, the number of borrowers using the Website, and the number and variety
of loan products available on the Website.
1.2 Inquiry. Through a simple question-and-answer format, ILSI shall
collect information consisting of the name, address, income, assets and
liabilities of potential borrowers. Alternatively, potential borrowers may
supply a subset of the above information to ILSI by telephone or through e-mail.
(The information obtained at this stage is called an "Inquiry" or, if more than
one, "Inquiries").
1.3 Prequalifications. Using the information gathered during the
Inquiry stage, as well as additional information that may be gathered on the
Website, and using its proprietary or licensed software, ILSI shall (i) analyze
the prospective borrower's income and debt, (ii) educate the prospective
borrower about the homebuying and financing process, (iii) advise the
prospective borrower about different types of loans available through the
Website, and (iv) prequalify the prospective borrower for the loan or loans
chosen by him or her ("Prequalification" or, if more than one,
"Prequalifications"). Other services shall be provided as part of
Prequalification; these services may be accessed by the prospective borrower at
his or her option, and include linkages to the Participating Lenders' home pages
and websites and linkages to other websites related to mortgage financing.
1.4 Short Application. Following Inquiry and/or Prequalification, ILSI
shall (i) assist the prospective borrower in understanding and clearing any
credit problems; (ii) assist the prospective borrower in completing an
abbreviated loan application form; (iii) provide the initial good faith estimate
of closing costs ("GFE") and other required federal and state disclosures; (iv)
provide a contact point during the loan application process for the prospective
borrower to check the progress of the loan application; (v) identify for
prospective borrowers the necessary financial documentation to be assembled in
support of the application; and (vi) collect credit card information to
facilitate the ordering of property appraisals and consumer credit reports (if
deemed appropriate) (collectively "Short Application"). ILSI shall transmit the
loan application information gathered during the Inquiry through Short
Application stages to FMN for further processing as described in Article II
below.
1.5 Enhanced Application. ILSI shall assist in collecting information
from the borrower to complete the FNMA/FHLMC Form 1003 loan application form
("Form 1003"), provide facilities and software to enable ILSI and FMN to obtain
credit reports online, perform automated underwriting, order appraisal reports
online, conduct home valuation using automated tools, create and send required
verification letters, and perform other ancillary services and provide
additional items as deemed appropriate by the parties ("Enhanced Application").
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1.6 Software Support. ILSI shall provide various facilities including
software engineering and operations resources to assist the parties in
performing the services described in this Agreement, including, without
limitation, (i) building a temporary interface between FMN and the Website by
July 15, 1998, or as soon thereafter as practicable; (ii) building an interface
between the FMN CLOser(R) system, which is described in Section 2.5(a) (the "FMN
CLOser(R)"), and the Website database by October 15, 1998; (iii) providing a
means for FMN to access loan products and pricing on the Website or through a
similar web-based application created by ILSI; (iv) building and maintaining
communication tools to enable loan processors to communicate efficiently with
loan applicants; and (v) developing, maintaining and continuing to enhance other
software productivity tools as needed for the optimal operation of the loan
origination, borrower counseling, loan processing and loan underwriting efforts
of ILSI and FMN.
1.7 Customer Support. ILSI shall provide customer support through the
Website and call centers for prospective borrowers who have questions about the
site and other general questions that are not specific to any loan. ILSI will
provide, through the Website and/or other means, in its discretion, customer
disclosures concerning the participation of FMN in ILSI Loan transactions as it
deems necessary and desirable to fully comply with all legal obligations
applicable to the Website and the parties, including affiliated business
arrangement disclosures under RESPA, and disclosures concerning the source of
funding of ILSI Loans.
1.8 Employee and Software Sharing. ILSI and FMN shall share employees
and software tools as appropriate for processing loan applications, including,
without limitation, employees and tools to order and analyze flood
certifications, inspections, engineering reports, property appraisals and credit
reports.
ARTICLE II
FMN'S SERVICES AND FACILITIES
This Agreement contemplates that FMN will initially act as loan
correspondent for Participating Lenders who offer mortgage loans on the Website.
This Agreement does not, however, preclude ILSI or FMN from establishing
wholesale relationships in the future, with either the Participating Lenders or
other lenders. In connection with ILSI Loans that are transmitted to FMN for
processing initially, FMN shall perform the following services and provide the
following facilities:
2.1 Status Updates. ILSI Loans may be transmitted to FMN for further
processing at any stage of the application process. Thus, either or both FMN and
ILSI may conduct specific processing tasks for ILSI Loans prior to closing and
funding; however, the parties agree to work together to ensure that the services
provided are not duplicative. Once an ILSI Loan has been transmitted to FMN, FMN
shall update the processing system and/or the Website database with the status
of the loan processing as agreed between ILSI and FMN but at a minimum wherever
indicated below. Furthermore, as soon as possible, FMN will begin to notify the
borrower of all status changes as they occur and will work with ILSI to create
an automated system that will update the Website with such status changes and
transmit electronic messages to borrowers by October 15, 1998.
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2.2 Origination. The parties acknowledge and agree that an essential
element of successful loan origination, particularly online loan origination via
the Website, involves making timely contact with prospective borrowers. To that
end, earlier and faster initial and subsequent communications between the loan
originator and the prospective borrower are more likely to result in completed
applications and eventual closed loans. The parties therefore agree that time is
of the essence in all processing tasks involving communications with prospective
borrowers, and that prompt communications are an essential element of the
origination task for which FMN is engaged. FMN shall maintain its status as an
approved loan correspondent of the Participating Lenders, and shall demonstrate
and confirm that status to ILSI upon request.
FMN shall perform the following origination services with respect to
ILSI Loan applications or Inquiries that are transmitted to FMN by ILSI:
(a) Response to Prospective Borrowers. Respond to submissions by
prospective borrowers and finalize loan applications as appropriate for each
Stage described in (i) to (iv) below:
(i) Inquiry Stage. Respond to Inquiries submitted through the
Website or ILSI call centers. If prequalification was not requested through the
Website, analyze Inquiry data, send out prequalification notices and encourage
borrower to submit an application;
(ii) Prequalification Stage. Send out prequalification notices
to prospective borrowers; provide those prospective borrowers who prequalified
for a particular loan or loans through the Website with personalized on-line
prequalification letters; follow up with prospective borrowers; and encourage
them to submit an application for the selected ILSI Loan. Where the borrower has
selected an ILSI Loan that is not appropriate for the borrower, assist the
borrower in choosing a different ILSI Loan;
(iii) Short Application Stage. Confirm to the prospective
borrowers the receipt of the Short Application and assist him or her in
finalizing the application as needed;
(iv) Enhanced Application Stage. Confirm receipt of the
Enhanced Application and assist the prospective borrower in finalizing the
application as needed;
(b) Re-Qualify, Verify, Amend or Modify Information. At the request of
a prospective borrower, re-qualify the prospective borrower for the same or
another loan, based on change of circumstances, change of preferences, or for
other reasons, and answer questions concerning information submitted on
Prequalification, Short Application or Enhanced Application screens.
(c) Credit Report Ordering/Review. Check credit history of borrower as
appropriate, including review of any credit scoring data.
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(d) Commitments. Prepare and send out commitment letters in the name of
the creditor, and/or collect commitment fees, application fees or deposits
toward closing costs, as appropriate.
(e) Loan Application Package Preparation. Prepare completed loan
application packages and send them to borrowers via overnight courier,
electronically, or other means. The loan application package shall include all
data provided by borrowers, itemization of information outstanding, including,
without limitation, Form 1003, GFE, disclosures, Truth-in-Lending statements and
other disclosures required by law to be furnished by creditors, and
instructions.
(f) Borrower Support. Answer any borrower questions concerning the loan
application package and the ILSI Loan.
(g) Transfer to Processing. Ensure that transmission of ILSI Loans from
ILSI to FMN (and within teams at FMN) is a smooth process from the perspective
of the prospective borrower, with the required degree of communication between
all parties.
2.3 Processing and Underwriting. FMN shall process and arrange for
underwriting for all ILSI Loan applications.
(a) Processing. In connection with processing, FMN shall provide the
following services:
(i) Appraisal. FMN shall engage an appraisal firm and ensure
that the property appraisal is performed in a timely manner. FMN's call center
representative shall update the processing system and the Website database with
the status of the appraisal;
(ii) Verifications. FMN shall maintain frequent contact with
the loan applicant to collect verifications of employment (VOE), income (VOI),
assets, and debt, including mortgage debt (VOM). FMN shall update the processing
system, the Website database and the loan application data with the status of
all verifications;
(iii) Underwriting. FMN or its designee shall underwrite the
completed loan package and update the processing system and the Website database
with the underwriting decision. FMN shall call the applicant to inform him/her
of the underwriting decision. FMN shall send the loan applicant an adverse
action letter under the Equal Credit Opportunity Act ("ECOA") if appropriate;
(iv) Flood, Tax, Ancillary Services. FMN shall order flood
certifications, tax service and other ancillary services as needed. FMN shall
update the processing system and the Website database with the status of such
services;
(v) Title. FMN shall assist borrowers to engage a reputable
title firm and follow through to ensure that the title search is completed and
insurance is issued. FMN shall update the processing system and Website database
with the status of title and insurance;
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(vi) Escrow. FMN shall engage a reputable escrow firm and
arrange for escrow services pending closing and sale of ILSI Loans as described
below. FMN shall update the processing system and Website database with the
status of the escrow.
(b) Pricing of Ancillary Services. FMN shall obtain pricing for the
ancillary services listed in Section 2.3(a) and any other third party services
required, which pricing is at least as competitive, for a comparably priced
loan, as the aggregate fees charged by the Index Group of lenders as defined in
Appendix A to this Agreement, for similar services. FMN further agrees that it
will pass through to the borrowers third party fees that are customarily
reimbursed by borrowers with no xxxx-up of any kind, nor will FMN receive
directly or indirectly any monetary or in-kind benefit from the providers of
such ancillary services, except as described in Section 2.3(c) below. ILSI and
FMN will cooperate with each other to negotiate the lowest pricing for such
ancillary services without jeopardizing the quality of service to the borrower
or to the lenders who require such services.
(c) Third Party Servicer Provider Entity. ILSI and FMN may, in the
future and pursuant to a separate agreement, form a separate entity (a limited
liability company, joint venture or other entity), either by themselves or with
one or more service providers, to provide, in connection with ILSI Loans, some
or all of the ancillary services described in Section 2.3(a). If ILSI and FMN
form such an entity, they shall share any resulting profits and expenses in
accordance to their respective ownership interests in the new entity. Each party
will offer the other the right to participate in up to 50% of the ownership of
such new entity. In the event a party offered participation declines to
participate, the other party may proceed with the formation of such an entity
and the provision of ancillary services, so long as the services are priced
competitively with those charged by the Index Group, as described in 2.3(b)
above. A party that declines to participate in the new entity at its formation
may participate thereafter, provided it purchases ownership interests in the
entity at its then-current fair market value, as determined by an independent
public accountant chosen by the parties.
If applicable, any entity formed by the parties pursuant to this
Section 2.3(c) shall comply with the rules governing affiliated business
arrangements, as defined in the Real Estate Settlement Procedures Act (RESPA)
and the regulations adopted thereunder.
(d) Negotiating Loan Pricing. FMN shall use its best efforts to
negotiate the lowest correspondent pricing available from Participating Lenders.
ILSI shall cooperate with FMN in this effort.
2.4 Packaging, Funding and Closing. FMN shall operate initially under
this Agreement as a loan correspondent with warehouse lines of credit available
for loan funding. In that capacity, FMN shall provide the following services
with respect to ILSI Loans:
(a) Packaging. FMN shall package, process, and underwrite ILSI Loans.
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(b) Funding. FMN shall use its own funding sources to close and fund
ILSI Loans in FMN's name as original payee/mortgagee. FMN shall immediately sell
closed loans to the Participating Lender for whom it has acted as correspondent
in the transaction, and which has committed to purchase such loan. For all ILSI
Loans which will be funded and closed by FMN, FMN shall disclose to the borrower
prior to the borrower's binding commitment for the loan (or at an earlier time,
as required by law and in the mutual judgment of ILSI and FMN) the name of the
Participating Lender to whom the loan is being sold.
(c) Closing. FMN shall coordinate and perform or arrange for the
closing of ILSI Loans, and where appropriate, the placement of loan funds in
escrow pending closing and/or sale.
(d) Selling. ILSI Loans closed and funded in FMN's name shall be sold
by FMN to the appropriate Participating Lender. FMN will be responsible for
coordinating the sale, collecting the proceeds, and other tasks involved in the
sale. Nothing in this Agreement may be construed to preclude ILSI from
processing, closing and funding mortgage loans in its own name in the future, as
a correspondent lender or as an originator or broker of loans for wholesale
lenders, but such activities will not relieve ILSI of its obligations under this
Agreement. ILSI agrees not to engage in processing, closing and funding mortgage
loans in its own name to the extent that its doing so shall have the effect of
decreasing the number of ILSI Loans then being transmitted to FMN for processing
under this Agreement, in accordance with FMN's then-current capacity for
processing. Furthermore, ILSI agrees to provide to FMN six (6) months' written
notice of its intention to act as a lender, originator or processor of loans for
other lenders, including wholesale lenders. Following its receipt of such
notice, FMN shall be relieved of the restrictions applicable to it in Section
5.1.
2.5 Facilities. FMN shall provide the following facilities to ILSI in
connection with ILSI Loans:
(a) FMN CLOser(R) System. FMN shall install the FMN CLOser(R) in ILSI
offices and on its computer networks and shall train ILSI personnel in ILSI
offices in its use. FMN CLOser(R) is FMN's proprietary loan origination,
pricing, locking, pipeline management and status reporting system. As used in
this Agreement, FMN CLOser(R) includes interfaces with automated underwriting
and credit evaluation functions and integration with FMN's Internet site. During
the term of this Agreement, ILSI will have a royalty-free worldwide license to
use FMN CLOser(R) in connection with the origination and processing of ILSI
Loans under the terms of this Agreement and in connection with any other loans
for which FMN receives compensation as described in Article IV. This licensed
use of FMN CLOser(R) by ILSI shall not apply to any loans processed, closed and
funded by ILSI without the participation and compensation of FMN as described in
Section 2.4(d), or other compensation arrangement agreed upon by the parties.
(b) Engineering and Other Resources. FMN shall coordinate all tasks
related to the integration of the FMN systems, including CLOser(R), with the
Website. FMN will dedicate a minimum of one full-time person to this effort. FMN
shall further provide such additional staff as are needed from time to time to
work with ILSI as quickly and efficiently as reasonably possible to achieve the
development and operational objectives agreed to by the parties. The parties
shall work together to determine the tasks to be performed, the staffing needed
and the timing of completion of the tasks.
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(c) Security. FMN shall achieve ICSA E-Commerce security standards on
all data transmissions involving ILSI Loans by July 1, 1998 and shall maintain
such standards on such transmissions at all times.
(d) Commitment to OFX. FMN shall work with ILSI to build its services
within OFX guidelines.
ARTICLE III
OPERATIONS AND STANDARDS
3.1 Timing. The parties shall work together to begin offering ILSI
Loans under the terms of this Agreement by July 15, 1998 or as soon thereafter
as practicable, at which point the technical integration of the parties'
electronic and automated systems shall be partially integrated, and a minimum of
three (3) Participating Lenders shall have agreed to offer ILSI loans on the
Website (the "Preliminary Launch"). By October 15, 1998, the parties shall have
completed, or nearly completed, the technical integration of the electronic and
automated systems, and a minimum of four (4) Participating Lenders shall have
agreed to offer loans on the Website (the "Launch").
3.2 Volume Planning. The following are the capacity plans for the first
four (4) months of funding ILSI Loans after the Preliminary Launch:
(a) By the end of **
(b) By the end of **
(c) By the end of **
(d) By the end of **
For each calendar month after the month in which the Preliminary Launch
occurs, the parties shall establish a monthly funding capacity. If the parties
cannot reasonably agree on the funding capacity, FMN shall establish the funding
capacity, which shall be stated in terms of loans to be funded per month. If the
capacity level is inadequate to meet customer demand for mortgage loan services
and ILSI gives FMN fifteen (15) days' written notice of a request for increased
capacity, FMN shall have thirty (30) days to agree to create the additional
capacity, and a reasonable period of time thereafter to put the additional
capacity in place.
If FMN declines to increase capacity following ILSI's written request,
ILSI reserves the right to obtain loan processing services from other sources
without loss of the benefits to ILSI of the exclusivity provisions in Section
5.1.
While the benefits to ILSI of the exclusivity provisions of Section 5.1
remain in place, FMN shall have the exclusive right to provide processing and
related services and facilities as described in this Agreement, for all ILSI
Loans, until such time as FMN is operating at 100% of its production capacity.
** indicates information which has been omitted pursuant to a
confidential treatment request filed separately with the
commission.
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FMN's production capacity shall not be deemed to have reached 100% at any time
that FMN is achieving the conversion ratios described in Section 3.4 and the
closed loan schedules as described in Section 3.5(c).
In the event that FMN declines to increase production capacity
following ILSI's written request within the time periods specified above, FMN
may thereafter increase capacity in response to the ILSI request, and shall give
ILSI six (6) months' notice of its intention to do so.
3.3 Initial Participating Lenders. As stated above, ILSI shall enter
into agreements with a minimum of three (3) lenders to become Participating
Lenders by the time of the Preliminary Launch and four (4) Participating Lenders
by the time of the Launch. ILSI shall select such Participating Lenders in
consultation with FMN based upon competitive pricing and attractive
correspondent programs offered by such lenders. The Participating Lenders will
provide correspondent and/or wholesale pricing to ILSI and FMN. In cases where
correspondent relationships are established, FMN agrees to maintain
correspondent approval from all Participating Lenders. ILSI agrees to make all
necessary agreements with the Participating Lenders to effectuate the purposes
of this Agreement.
3.4 Conversion Ratios. The parties agree to the following minimum
performance standards for FMN.
(a) FMN shall meet the following conversion ratios for ILSI Loans from
the indicated stage or category, to a closed and funded loan:
(i) ** Stage **
(ii) ** Stage **
(iii) ** Stage (assuming prospective borrower submits
a fee or credit card deposit with the application. )**
(iv) ** Stage (assuming prospective borrower does not
submits a fee or credit card deposit with the application).**
(b) The above ratios will be reviewed by the parties after six (6)
months following the Launch (or such other time periods determined by the
parties). The parties may adjust such ratios, but the blended average of the
ratios as adjusted shall provide a combined conversion ratio that is
substantially equivalent to the above ratios. In no event shall the conversion
ratios achieved by FMN fall below the highest conversion rate on a blended
average basis, offered by the top two lenders participating on the Website,
including the QuickenMortgage charter lenders as well as Participating Lenders
as defined in this Agreement.
(c) If FMN does not achieve the agreed-upon conversion ratios for three
(3) consecutive months (based upon a blended average of the categories), then,
upon written notice from ILSI, FMN shall have ninety (90) days to cure the
shortfall. Cure shall be effected by FMN's achieving the blended average
conversion ratios during the ninety (90) day cure period. If the shortfall
continues after the end of the cure period, ILSI shall have the right to
terminate this Agreement in accordance with Article VIII below.
** indicates information which has been omitted pursuant to a
confidential treatment request filed separately with the
commission.
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Notwithstanding the foregoing, if FMN does not achieve at least 50% of
the agreed-upon conversion ratios for two (2) consecutive months, ILSI will
provide written notice of this fact to FMN, and FMN shall have only sixty (60)
days to cure the shortfall. The cure shall be effected in the manner described
immediately above, except that the cure period shall be reduced to 60 days. If
the shortfall continues after the end of the sixty (60) day cure period, ILSI
shall have the right to terminate this Agreement as provided herein.
3.5 Service Levels. The parties shall cooperate with each other to
perform the following customer services:
(a) Customer Survey. The parties shall design a mutually
acceptable customer survey and establish minimum goals for customer
satisfaction. FMN shall transmit the survey to all borrowers at the time of
closing of ILSI Loans. The parties will develop and implement process
improvements to address instances of failure to meet customer satisfaction
goals.
(b) Quality Control Standards. The parties shall cooperate
with each other to develop mutually acceptable quality control standards for
ILSI Loans, which the parties shall work together to maintain. The parties will
develop and implement process improvements to address instances of failure to
meet minimum quality control standards.
(c) Amount of Time to Close Loans. FMN shall monitor the
processing of ILSI Loans to achieve and maintain an average amount of time
between application (Short Application or Enhanced Application) and loan
closing, not to exceed the average time to closing for loans funded by the three
fastest-closing lenders on the Website which information shall be provided to
FMN by ILSI.
(d) Customer Service Commitment. ILSI and FMN agree that
excellent customer service represents one of the foundations for building a
successful business and is a consideration for this Agreement.
To that end, the parties agree to the following customer service standards:
FMN shall deliver customer service performance at least equal to the
service level standards delivered by the average of the two lenders on the
Website determined to have the highest customer service levels (defined as
lowest ratio of complaints to applications) ("High Service Standard"). The two
lenders whose customer service levels are averaged to determine the High Service
Standard shall be selected from among the four lenders on the Website with the
highest application volume. The High Service Standard will be measured monthly,
and will be determined by the ratio of customer complaints received (and found
in ILSI's reasonable judgement to result from lender actions) regarding a
specific lender to the total applications taken by that lender during the month.
If FMN's customer service fails to meet the High Service Standard for
two (2) consecutive months, then upon written notice from ILSI, FMN shall take
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reasonable measures to improve service levels within 15 days and shall cure the
cause(s) of its failure to meet the High Service Standard within an additional
45 days; provided however, that if ILSI identifies a pattern of material
problems resulting from FMN conduct, which problems have resulted in specific
instances of customer complaints, then upon written notice from ILSI, FMN shall
take reasonable measures to improve service levels within 15 days and shall cure
the underlying problems within 45 days.
If the service shortfall is not cured during the cure period, then,
notwithstanding any other term of this Agreement to the contrary, ILSI shall
have the right to terminate this Agreement in accordance with Article VIII of
this agreement.
For purposes of this section a problem shall not be deemed to be
material if the specific events complained of occur in fewer than 2% of loan
applications taken by FMN. The provisions of this Section 3.5(d) shall not apply
during any period where actual loan volume exceeds the capacity levels
established and agreed to by the parties, as described in Section 3.2.
3.6 Management Commitment. Prior to the Preliminary Launch, ILSI and
FMN shall each employ or identify one managerial employee or officer to act as a
liaison between FMN and ILSI to assist with effectuating the goals of this
Agreement.
ARTICLE IV
COMPENSATION
4.1 Federal and State Law. The compensation structure set forth below
reflects the intent of the parties but is subject to change, by mutual agreement
of the parties, to comply with applicable federal and state laws and
regulations.
4.2 Fees for FMN Services and Facilities. ILSI shall compensate FMN for
loan origination, loan, processing services, and related services and facilities
comtemplated by this Agreement based on the following schedule and formulae for
each closed ILSI Loan. The fee structure described in this section is
illustrative on only and is based on a loan in the principal amount of **. It is
acknowledged by the parties that the compensation to be earned by ILSI with
respect to any particular loan(s) approximates by does not exceed net orgination
revenue to ILSI for loans originated via the Website and processed to closing
without the participation of FMN.
FMN's compensation shall consist of a combination of cash paid for loan
orgination services by either ILSI or the Participating Lender purchasing the
loan, and the secondary market profit or margin received by FMN upon sale of the
loan to the Participating Lender.
For example: Inquiry Prequalification Short Application
------- ---------------- -----------------
Total Fees to FMN/ILSI
Standard Correspondent
Fee to Lender ** ** **
Total Loan Origination
Fees ** ** **
Rebate to Borrower ** ** **
Net Orgination Fees
Payable by Borrower ** ** **
Breakdown of Origination Fee
Portion to ILSI ** ** **
Portion to Lender via FMN ** ** **
Portion to FMN ** ** **
** indicates information which has been omitted pursuant to a
confidential treatment request filed separately with the
commission.
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4.3 Competitive Pricing Index. On a monthly basis the parties shall
generate a pricing index ("Index") for the following three (3) base loan
products: (i) thirty (30)-year conforming fixed rate loans, (ii) fifteen
(15)-year conforming fixed rate loans, and (iii) one (1)-year ARM loans. The
initial Index will consist of either the rates of lenders from competitive
websites, as set forth on Appendix A to this Agreement, or will be based on
other mutually agreed-upon standards.
4.4 Retail Pricing. FMN shall recommend retail pricing on a daily basis
by loan product that at least matches or improves upon the Index, and the
parties shall review the pricing on a monthly basis. Final retail pricing posted
on the Website shall be subject to ILSI's approval. For loan products other than
the three (3) base loan products described in Section 4.3, the same spread
between correspondent pricing based on the Index and retail pricing will be
maintained.
4.5 Fee Reduction. If it is determined that total loan origination fees
based on the illustrative example in Section 4.2 do not allow ILSI and FMN to
compete effectively in the market (i.e., to match or improve upon the Index
pricing level), ILSI and FMN will reduce their fees in amounts corresponding to
the proportional share of each in the total fees described in the example in
Section 4.2, to remain competitive.
4.6 Margin Improvement From Increased Loan Orgination Revenue. If FMN
negotiates correspondent pricing from Participating Lenders such that the
difference between that figure and the Index is greater than **, FMN will be
entitled to keep the first ** of incremental revenue in each loan type category
derived from such improved pricing. Incremental additional revenue increases
over ** will be shared, such that the next ** in incremental revenue shall be
split equally between FMN and ILSI. If incremental revenue of more than ** is
achieved on any loan type, such revenue shall be allocate ** to borrowers (to be
used for price reductions or special promotion, offers, which may be offered to
individual borrowers as a group) ** to FMN, and ** to ILSI. Until such time as
ILSI no longer wishes to obtain such reports, FMN will provide weekly price
summaries to ILSI containing details of the correspondent pricing available and
the retail pricing to borrowers, indicating the spreads, by loan product.
** indicates information which has been omitted pursuant to a
confidential treatment request filed separately with the Commission.
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4.7 Margin Improvement From Reduced Costs. FMN and ILSI will use their
best efforts, individually and jointly, to achieve cost reductions related to
the processing of ILSI Loans; the parties will share any expenses incurred by
either of them in achieving these reductions, provided that such expenses have
been agreed upon in advance. Examples of projects resulting in cost reductions
include: adding additional functionality in Website point-of-sale; making
ongoing investments in technology and productivity tools; adding additional
interfaces to third party service providers; and general and administrative cost
reduction projects. The parties will plan, project, and monitor cost savings
anticipated from cost reduction projects. Cost savings achieved as a result of
these efforts will be quantified and allocated as follows ** to the borrower (to
be used for price reductions or special promotional offers to borrowers
individually or consummers as a group) ** to ILSI by reducing the fee paid to
FMN ** of the specified saving, and ** to FMN in the form of annual reduced
costs.
The initial cost-per-loan levels are the targets below, and set forth
in detail on Appendix D hereto, which savings will be shared according to the
formula described above.
Inquiry **
Prequalification **
Short Application **
4.8 Cost Review. On April 15, 1999, the parties shall review the actual
costs incurred by them individually and jointly for operation during the
previous six (6) months, with a view to adjusting the above the formulas to
reflect the actual costs incurred while maintaining the margin objectives of the
parties. ILSI and FMN each commit to working to reduce costs throughout the loan
process and sharing cost-saving data with each other. ILSI shall have access to
FMN's books and records to determine what cost savings, if any, have been
achieved; ILSI may appoint, at its expense, an auditor to review the books and
records of FMN to the extent they relate to ILSI. Initial cost-reduction
projects are set forth on Appendix B attached hereto.
ARTICLE V
EXCLUSIVITY
5.1 Multi-Lender Mortgage Sites. For so long as subsections (a) and (b)
of this Section 5.1 are in effect, neither FMN nor any affiliate of FMN shall
offer a consumer direct multi-lender mortgage website, nor provide services
similiar to the services described in this Agreement to the top eight (8)
consumer direct multi-lender mortgage websites or to the companies which own or
control such sites, as identified on Attachment C of this Agreement and as
thereafter identified by ILSI to FMN at six-month intervals. The top eight (8)
websites shall not include the mortgage sites associated with real estate
franchisees, franchisors, owners, and homebuilders. Notwithstanding the
foregoing, this Section 5.1 shall not restrict FMN from providing services to
companies and Internet sites that use the technology platforms that have been
licensed from those identified on Attachment C (as that Attachment may be
amended), if FMN's services consist of standard linkages and are limited to
transmissions of loan dat from such companies and Internet sites to FMN and/or
the transmission of pricing information, and do not include customized services
(apart from those requested by the licensee) or customized integration of FMN
systems with the technology platforms provided by those companies identified on
Attachment C.
** indicates information which has been omitted pursuant to a
confidential treatment request filed separately with the
commission.
(a) Processing Services. Provided that FMN is not in breach of
any of its material obligations under this Agreement, ILSI shall use FMN as the
sole outsource provider of loan processing services for ILSI Loans.
(b) Minimum Loan Business. Provided that FMN is not in breach
of any of its material obligations under this Agreement, during the first six
(6) months of 1999 ILSI shall transmit to FMN for processing and funding at
least 2,400 ILSI Loans. Thereafter, the number of ILSI Loans transmitted to FMN
will increase in each subsequent six (6) month period by at least 600 until an
aggregate to of 6,000 ILSI Loans are processed and funded by FMN for the six (6)
month period from July 1, 2001 to December 31, 2001. After the year 2001,
provided FMN is not in breach of its material obligations under this Agreement,
ILSI must transmit to FMN for processing and funding at least 6,000 ILSI Loans
during each six (6) month period in order for the exclusivity provision of this
Section 5.1 to remain in effect. The foregoing minimum requirements for
transmission of ILSI Loans to FMN will not be in effect for any six (6) month
period during which FMN does not meet the conversion ratios specified in Section
4.9, but the exclusivity provision in Section 5.1 will continue to apply
regardless of FMN's failure to achieve the conversion ratios.
5.2 Subprime Services. Subprime services are not subject to the
exclusivity provisions of this Agreement. Nothing in this Agreement shall be
construed as preventing FMN from providing services of any kind in support of
the origination of subprime loans on the Internet, provided, however, that FMN
will give ILSI 10 days notice of its intention to offer such services, followed
by a reasonable period, not to exceed 10 days, in which ILSI may notify FMN of
its desire to participate with FMN in the offering of such services on a joint
basis to be determined by the parties. If ILSI notifies FMN of its desire to
jointly offer subprime activities or services, the parties agree to negotiate
with each other in good faith to implement such activities or services within a
period not longer than 30 days, unless extended by mutual consent.
5.3 FMN Lending Services. FMN may offer single lender-branded mortgage
banking services directly to consumers over the Internet, in the name of its AFI
division or in the name of any other lender wholly owned by FMN ("Single Lender
Private Label").
5.4 Single Lender Outsource Services. The parties acknowledge that they
are both presently offering private label solutions for single lenders and that
this Agreement does not prohibit either of them from continuing to do so.
5.5 Joint Multi-Lender Services. FMN and ILSI shall cooperate with each
other to jointly offer multi-lender mortgage banking services to third parties
("Multi-Lender Private Label"), provided that:
(a) ILSI continues to use FMN to provide loan processing
services and related facilities for processing ILSI Loans;
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(b) The third party has not explicitly requested to work with
only FMN or ILSI and there is no pre-existing relationship between the third
party and either FMN or ILSI; and
(c) ILSI's relationship with GHR Systems, the lenders on the
Website, or any other person with whom ILSI has a contractual relationship does
not prevent such an arrangement.
The parties shall share any profits of such joint offering of
Multi-Lender Private Label operations in accordance with their interests in the
venture. Costs of the joint venture shall be allocated in accordance with the
parties interests.
5.6 Xxxxxx Xxx and Xxxxxxx Mac LP Transferable AU Decisions for
Brokers. If, on or before December 31, 1998, FMN offers to brokers in a
commercial setting a service that would allow brokers to electronically obain an
automated underwriting ("AU") score for a particular borrower, using FMN's
seller-servicer status with Xxxxxx Mae and/or Xxxxxxx Mac, and such service
provides a technical and organizational mechanism for the broker to transfer and
transmit such score electronically to different lenders **.
5.7 Right to Fund Non-Exclusive. The processing and funding of ILSI
Loans by FMN does not limit ILSI's present or future ability to act as a
mortgage banker, loan correspondent, loan broker to wholesale lenders, or in any
other similar capacity during the term of this Agreement, with respect to loans
in which FMN has no involvement, provided that ILSI meets its obligations under
this Agreement, and provided further that ILSI shall give FMN six (6) months'
advance written notice of its intentions to carry out any of these functions.
FMN shall be relieved of any exclusivity restrictions imposed upon it by Section
5.1 upon receipt of notice from ILSI of its intention to perform the activities
described in this section.
ARTICLE VI
REPRESENTATIONS, WARRANTIES AND COVENANTS
6.1 Representations and Warranties of FMN. FMN represents and warrants
that the following is true and correct and shall remain true and correct during
the Term:
(a) Authority. FMN is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida with full
corporate power and authority to transact any and all business contemplated by
this Agreement and it possesses all requisite authority, power, licenses,
permits and franchises to conduct its business as presently conducted. Its
execution, delivery and compliance with its obligations under the terms of this
Agreement are not prohibited or restricted by any government agency. FMN has
taken all necessary action to authorize its execution, delivery and performance
of this Agreement.
15
** indicates information which has been omitted pursuant to a confidential
treatment request filed separately with the Commission.
(b) Conflict with Existing Laws or Contracts. The execution
and delivery of this Agreement and the performance of its obligations hereunder
by FMN will not (i) conflict with or violate (A) FMN's Certificate of
Incorporation or By-laws, or (B) any provision of any law or regulation or any
decree, demand or order to which FMN is subject, or (ii) conflict with or result
in a breach of or constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under any of the terms, conditions
or provisions of any agreement or instrument to which FMN is a party or by which
it is bound or any order or decree applicable to FMN or result in the creation
or imposition of any lien on any of its assets or property.
(c) Licenses and Consents. FMN has obtained all necessary or
required governmental licenses, permits, approvals, and consents for the
transactions contemplated by this Agreement. No consent, approval, authorization
or order of any court or governmental agency or body is required for the
execution, delivery and performance by FMN of or compliance by FMN with this
Agreement, or if required, such approval has been obtained or will be obtained
prior to the date of this Agreement.
(d) Legal Action Against FMN. There is no claim, action, suit,
proceeding or investigation pending or, to the best of FMN's knowledge,
threatened against FMN or against any of its principal officers, directors or
key employees, which, either in any one instance or in the aggregate, may result
in any adverse change in the business, operations, financial condition,
properties or assets of FMN, or in any impairment of the right or ability of FMN
to carry on its business substantially as now conducted through its existing
management group, or in any material liability on the part of FMN, or which
would draw into question the validity of this Agreement or any of the other
instruments, documents or agreements entered into by FMN in connection with this
Agreement, or of any action taken or to be taken in connection with the
obligations of FMN contemplated therein, or which would be likely to impair the
ability of FMN to perform the terms of this Agreement.
(e) Binding on FMN; Enforceability. This Agreement, assuming
due authorization, execution and delivery hereof, and all the obligations of FMN
hereunder, constitute the valid and binding obligations of FMN, enforceable
against FMN in accordance with the terms hereof, except as such enforcement may
be limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws affecting the enforcement of creditors' rights in general and by
general equity principles (regardless of whether such enforcement is considered
in a proceeding in equity or at law).
(f) Compliance With Laws. FMN has complied and will continue
to comply with all applicable federal and state laws and regulations in its
business operations, in the loan origination activities proposed to be
conducted, and in the performance of this Agreement. In particular, FMN
represents and warrants that its loan origination, processing and underwriting
systems, including, without limitation, the FMN CLOser(R), comply with
applicable state and federal laws and regulations, including, without
limitation, the Fair Housing Act, Truth-in-Lending Act, and ECOA. FMN will not
16
seek to hold ILSI liable in any action prosecuted against FMN by a borrower,
government agency, or other party which alleges non-compliance with the laws
applicable to originators of mortgage loans, provided that neither the bad faith
or wilful misconduct of ILSI materially contributed to the circumstances giving
rise to the claim against FMN. FMN will maintain errors and omissions insurance,
fidelity bonds and similar financial instruments designed to protect those with
whom it deals in the origination of mortgage loans, in commercially reasonable
amounts, and to provide evidence of such instruments to ILSI upon request. ILSI
will be a named or additional insured in such policies and instruments. The
types and amounts of insurance, bonds and other financial instruments maintained
by FMN will be subject to approval and upward revision by ILSI in its reasonable
discretion, as the volume of FMN activity subject to this Agreement increases.
FMN represents on behalf of its officers, directors, and key employees
that none of these individuals are currently in violation of any federal, state
or other law or regulation applicable to them in their professional capacities
as mortgage bankers, mortgage brokers, or any other regulated field or
occupation, except as disclosed to ILSI in writing in connection with this
Agreement, and that there is no pending legal, administrative or similar action
pending against any of them that would affect their ability to perform their
obligations to FMN or to the Participating Lenders, or to ILSI hereunder.
6.2 Representations and Warranties of ILSI. ILSI represents and
warrants that the following is true and correct and shall remain true and
correct during the Term:
(a) Authority. ILSI is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware with full
corporate power and authority to transact any and all business contemplated by
this Agreement and it possesses all requisite authority, power, and material
licenses, permits and franchises to conduct its business, and to execute,
deliver and comply with its obligations under this Agreement. The execution of
this Agreement and its delivery and the performance by ILSI of its obligations
under this Agreement are not prohibited or restricted by any government agency.
ILSI has taken all necessary action to authorize the execution, delivery and
performance of this Agreement.
(b) Conflict with Existing Laws or Contracts. The execution
and delivery of this Agreement and the performance of its obligations hereunder
by ILSI will not (i) conflict with or violate (A) ILSI's Certificate of
Incorporation or By-laws, or (B) any provision of any law or regulation or any
decree, demand or order to which ILSI is subject, or (ii) conflict with or
result in a breach of or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under any of the terms,
conditions or provisions of any agreement or instrument to which ILSI is a party
or by which it is bound or any order or decree applicable to ILSI or result in
the creation or imposition of any lien on any of its assets or property.
(c) Licenses and Consents. ILSI, in connection with
performance of its duties under this agreement, has obtained or will obtain all
necessary or required governmental licenses and consents requisite for the
transactions contemplated by this Agreement. No consent, approval, authorization
or order of any court or governmental agency or body is required for the
execution, delivery and performance by ILSI of or compliance by ILSI with this
Agreement, or if required, such approval has been obtained prior to the date of
this Agreement.
17
(d) Legal Action Against ILSI. There is no claim, action,
suit, proceeding or investigation pending or, to the best of ILSI's knowledge,
threatened against ILSI, which, either in any one instance or in the aggregate,
may result in any material adverse change in the business, operations, financial
condition, properties or assets of ILSI, or in any material impairment of the
right or ability of ILSI to carry on its business substantially as now
conducted, or in any material liability on the part of ILSI, or which would draw
into question the validity of this Agreement, or any of the other instruments,
documents or agreements entered into by ILSI in connection with this Agreement,
or of any action taken or to be taken in connection with the obligations of ILSI
contemplated therein, or which would be likely to impair materially the ability
of ILSI to perform under the terms of this Agreement.
(e) Binding on ILSI; Enforceability. This Agreement, assuming
due authorization, execution and delivery hereof, and all the obligations of
ILSI hereunder, constitute the valid and binding obligations of ILSI,
enforceable against ILSI in accordance with the terms hereof, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws affecting the enforcement of creditors' rights in general
and by general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(f) Compliance With Laws. ILSI has complied and will continue
to comply with all applicable federal and state laws and regulations in its
business operations, in the operation of the Website, and in the performance of
this Agreement.
6.3 Covenants.
(a) Compliance with Laws. FMN and ILSI covenant to each other
that they will comply with all applicable federal and state laws and regulations
in performing their respective obligations under this Agreement. Any successful
challenge of any particular provision of this Agreement, including the
compensation provisions, by any governmental authority, will, at the option of
either party hereto, constitute sufficient cause for termination of this
Agreement if the Agreement and its purposes cannot be reasonably effectuated
without the challenged provision or term.
(b) Continuing Obligations of the Parties. The parties shall
cooperate with each other in the performance of this Agreement until the
termination hereof. Neither party shall take any action or refrain from taking
any action which would jeopardize or compromise the performance of the Website
or FMN's systems or which would hinder the performance by the parties of their
respective services to the Participating Lenders and to their customers. Each
party shall promptly forward to the other all notices, claims, letters,
documents and other information received by such party which are relevant to the
performance of this Agreement. The parties shall provide to each other all
information and documentation regarding their respective products and services
which are necessary or relevant to the performance of the transactions
contemplated by this Agreement.
18
(c) FMN's Books and Records. FMN shall make all material books
and records pertaining to the services and facilities provided under this
Agreement, including without limitation, records and reports on Inquiries,
Prequalifications, Short Applications and Enhanced Applications that are
initiated through the Website and any other services and facilities provided to
ILSI, available for inspection at FMN's offices or any other mutually convenient
location upon five (5) days prior notice by ILSI.
(d) Further Assurances. At any time, and from time to time
after the execution of this Agreement, upon the reasonable request of a party
hereto, and at the expense of such party, the other party shall do, execute,
acknowledge and deliver, and shall cause to be done, executed, acknowledged and
delivered, all such further acts, deeds, assignments, transfers, conveyances,
powers of attorney and assurances as may be reasonably required in order to
enable the parties to perform their respective obligations hereunder and carry
out the terms of this Agreement.
ARTICLE VII
INDEMNIFICATION
7.1. General Indemnification by ILSI. ILSI shall indemnify FMN and any
directors, officers, employees or agents of FMN (collectively, "FMN Indemnified
Parties") and hold each of them harmless from and against any and all claims,
losses, damage, penalties, fines, forfeitures, reasonable legal fees and
expenses (including attorneys' fees) and related costs, expenses of litigation,
judgments, and any other costs, fees and expenses (each, a "Liability" and
collectively "Liabilities") that were caused by or resulted from a breach of any
of ILSI's representations, warranties, covenants and agreements contained in
this Agreement or by ILSI's willful misfeasance, bad faith or gross negligence
in the performance of or failure to perform as provided in this Agreement.
7.2. General Indemnification by FMN. FMN shall indemnify ILSI and any
directors, officers, employees or agents of ILSI (collectively, "ILSI
Indemnified Parties") and hold each of them harmless from and against any and
all Liabilities that were caused by or resulted from a breach of any of FMN's
representations, warranties, covenants and agreements contained in this
Agreement or by FMN's willful misfeasance, bad faith or gross negligence in the
performance of or failure to perform as provided in this Agreement. Further, FMN
shall indemnify the ILSI Indemnified Parties for losses, damages or Liabilities
resulting from FMN's failure to adhere to commercially reasonable standards and
any applicable canons of ethics in the origination, processing or funding of
mortgage loans. The indemnification based on the professional conduct of FMN
shall not be limited to willful acts, bad faith or gross negligence.
7.3 Survival of Indemnifications. FMN's and ILSI's respective
obligations to indemnify any ILSI Indemnified Party or any FMN Indemnified Party
will survive the expiration or termination of this Agreement by either party for
any reason.
7.4 Notice of Claims. Each party shall promptly notify the other in
writing of any and all litigation and claims known to such party made against it
or the other party in connection with this Agreement.
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ARTICLE VIII
TERM AND TERMINATION
8.1 Term. This Agreement shall remain in effect through June 25, 2004
(the date of termination of a certain agreement between Intuit Inc. and Excite
(the "Intuit/Excite Agreement"). Thereafter, if the Intuit/Excite Agreement is
extended, this Agreement shall be automatically extended for an additional three
(3) years after the end of the initial term. The initial term and any renewal
term of this Agreement shall be collectively referred to as the "Term."
8.2 Termination. This Agreement may be terminated by written notice of
either party prior to the end of the Term due to one of the following Events of
Default, after giving the defaulting party the applicable notice and opportunity
to cure set forth below:
(a) Breach of the Agreement. If a party breaches a material term or
condition of this Agreement, the non-defaulting party must give the defaulting
party written notice of the breach. If the breach is of a monetary nature, the
defaulting party will have five (5) business days to cure the default.
Otherwise, the defaulting party will have thirty (30) days to cure the default.
The non-defaulting party may terminate this Agreement at the expiration of the
applicable cure period if the breach is not cured within the given cure period.
(b) Change in Control. If FMN merges with, or is acquired by, a third
party, and, in the reasonable opinion of ILSI, such change in control materially
adversely affects FMN's ability to perform under this Agreement, then ILSI may
terminate this Agreement after giving three (3), months' prior written notice.
This provision shall specifically exclude mergers in which FMN is the surviving
entity.
(c) Change in Financial Condition. If FMN undergoes a material change
in financial condition such that it is unable to meet its obligations under this
Agreement, ILSI may terminate this Agreement if, after giving FMN written notice
and a 15-day opportunity to cure, FMN's financial condition has not been
restored to the extent that it can perform its obligations hereunder; provided,
however, that if the adverse change in FMN's financial condition results in
FMN's failure to fund loans as and when scheduled for three (3) consecutive
days, ILSI may thereafter immediately terminate this Agreement and at its
option, seek alternative funding for the affected loans.
(d) Performance. If FMN does not meet its minimum requirements for
closing ILSI Loans as set forth in Section 3.4 of this Agreement, ILSI shall
notify FMN in writing of the shortfall. FMN shall have ninety (90) days after
notice to cure the shortfall. If FMN has failed to cure the shortfall during
that period, then ILSI may terminate this Agreement after six (6) months' prior
written notice.
(e) Insufficient Volume. If ILSI does not achieve eighty percent (80%)
of capacity levels set forth in Section 3.2 for three (3) consecutive months,
FMN shall notify ILSI in writing of the shortfall. ILSI shall have ninety (90)
days after notice to cure the shortfall. If ILSI has failed to cure the
shortfall during that period, and for six (6) consecutive months thereafter,
then FMN may terminate this Agreement after giving six (6) months' prior written
notice.
20
(f) Bankruptcy. In the event of the occurrence of any of the following
events, the non-defaulting party may terminate this Agreement immediately upon
giving prior written notice to the defaulting party:
(i) the commencement of any bankruptcy, insolvency,
reorganization, dissolution, liquidation of debt, receivership or
conservatorship proceeding or other similar proceeding under federal or state
bankruptcy, debtors relief, bank regulatory or other law by or against either
party; or
(ii) the appointment of a receiver, conservator, trustee or
similar officer to take charge of, a substantial part of the property of either
party.
ARTICLE IX
MISCELLANEOUS
9.1 Notices. Any written notice required or permitted to be given to
the parties hereunder shall be addressed as follows:
If to ILSI: Intuit Lender Services, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxx Xxxxx, President
Xxxx_Xxxxx@xxxxxx.xxx
with a copy to:
Xxxxxx Xxx Xxxxxxx, Esq.
Negroni & Winston PLLC
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Tel: 000-000-0000
Fax: 000-000-0000
Xxx_Xxxxxxx@xxxxxxx.xxx
If to FMN: Xxxx Xxxxxx, Chairman
First Mortgage Network, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
E-mail address _________
21
with a copy to:
Xxxx Xxxxxx, Esq.
Xxxxx & Xxxxxxx
000 Xxxxx Xx.
Xxxxxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Xxxxxxx@xxxxxxxx.xxx
All notices shall be in writing and delivered in person or shall be
sent by registered or certified mail, return receipt requested, and shall be
deemed effective, three days after the same is mailed as provided above with
postage prepaid. Notice sent by any other method shall be effective only upon
actual receipt.
9.2 Assignment; Contracting. This Agreement shall not be assignable in
whole or in part by ILSI or FMN without the other party's prior written consent,
and any attempted assignment without such consent shall be void. Subject to the
foregoing, this Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and permitted assigns.
9.3 Change of Control or Ownership. FMN will not, during the term of
this Agreement as it may extended, cause or authorized, or obligate itself to
cause or authorize, any Reorganization (defined below) with any entity **. A
Reorganization shall mean any capital reorganization of the Common Stock, or a
merger or consolidation of the Company with or into another corporation, unless
FMN shall be the surviving corporation, or the sale of all or substantially all
of FMN's capital stock or assets to any other person or entity, or any other
form of business combination or reorganization in which control of FMN is
transferred. "Control" shall be deemed to have been transferred in a transaction
or series of transactions in which any person, or group of related persons,
shall have acquired beneficial ownership of more than 25% of the capital stock
of FMN (assuming all rights, options, warrants or convertible or exchangeable
securities entitling the holders thereof to subscribe for or purchase or
otherwise acquire shares of capital stock have been fully exercised or
converted)or of substantially all of the assets of FMN.
9.4 Waiver. No term or provision hereof will be deemed waived, and no
variation of terms or provisions hereof shall be deemed consented to, unless
such waiver or consent shall be in writing and signed by the party against whom
such waiver or consent is sought to be enforced. Any delay, waiver or omission
by ILSI or FMN to exercise any right or power arising from any breach or default
of the other party in any of the terms, provisions or covenants of this
Agreement shall not be construed to be a waiver by ILSI or FMN of any subsequent
breach or default of the same or other terms, provisions or covenants on the
part of either party.
9.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of California, without respect to its conflicts of law
principles.
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** indicates information which has been omitted pursuant to a confidential
treatment request filed separately with the Commission.
9.6 Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto relating to the subject matter hereof, except where
expressly noted herein, and all prior negotiations, agreements and
understandings, whether oral or written, are superseded or canceled hereby.
9.7 Modification. This Agreement may not be amended or modified except
in a written document signed by both parties.
9.8 Severability. If any provision of this Agreement is declared or
found to be illegal, unenforceable or void, this Agreement shall be construed as
if not containing that provision, and the rest of the Agreement shall remain in
full force and effect, and the rights and obligations of the parties hereto
shall be construed and enforced accordingly.
9.9 Independent Contractor. FMN, in performance of this Agreement, is
acting as an independent contractor, is not the partner, joint venturer or agent
of ILSI and has no authority to act on behalf of ILSI except as necessary or
desirable to carry out FMN's obligations under this Agreement. The parties shall
each be responsible for payment of their respective taxes and assessments
incurred in connection with performance of this Agreement. Neither party's
employees are eligible for employee benefits of the other party.
9.10 Confidentiality. Each party agrees to keep all information related
to the other party confidential, as provided in the Non-Disclosure Agreement
dated April 29, 1998. The parties further agree that the business strategy,
marketing plans and product specifications of either party disclosed in
connection with this transaction, as well as the terms of this Agreement, are
confidential and shall not be used by the other party or disclosed by such other
party to third parties unless such information is (i) required to effect the
transactions contemplated herein, (ii) in the public domain or already in the
possession of a party prior to the disclosure to it by the other party
(including information received lawfully from third parties without an
obligation of confidentiality); or (iii) required by law or regulation to be
disclosed.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
signed and delivered by its duly authorized officer as of the date first written
above.
INTUIT LENDER SERVICES, INC.
By /s/ Xxxx Gains
---------------------------------
Name Xxxx Gains
---------------------------------
Title Sr Vice President
---------------------------------
FIRST MORTGAGE NETWORK, INC.
By /s/ Xxxx Xxxxxx
---------------------------------
Name Xxxx Xxxxxx
---------------------------------
Title Chairman & CEO
---------------------------------
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APPENDIX A
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Index of Rates of Lenders
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The initial Index shall consist of the following: **
** indicates information which has been omitted pursuant to a confidential
treatment request filed separately with the Commission.
APPENDIX B
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INITIAL COST-REDUCTION PROJECTS
1. Automated underwriting/automated document transmission systems.
2. Pulling single in-file credit reports.
3. Automated provision of documents/information from consumer.
4. Automated transfer of data from Quicken(R), TurboTax(R) and other sources.
5. Using Brightware for automated e-mail responses.
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APPENDIX C
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TOP EIGHT WEBSITES
Date of this Appendix : May 30, 1998
Site Company
1. Home Advisor Microsoft
2. E-Loan E-Loan
3. HomeShark HomeShark
4. CFN CFN
5. GetSmart GetSmart
6. iQualify Monument
7. Xxxxxxx.xxx RealSelect
8. Lending Tree Lending Tree
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APPENDIX D
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Roll-Up Inquiry Prequalification Short Application
------- ------- ---------------- -----------------
Total Origination Expense ** ** **
Total Processing Expense ** ** **
Total Underwriting Expense ** ** **
Total Closing Expense ** ** **
General & Administrative ** ** **
Total Secondary Expense ** ** **
Total Expense Per Loan ** ** **
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** indicates information which has been omitted pursuant to a confidential
treatment request filed separately with the Commission.
