LICENSE AGREEMENT
[Material
marked with an asterisk has been omitted from this document pursuant to a
request for confidential treatment and has been filed separately with the
Securities and Exchange Commission.]
This
License Agreement (“Agreement”)
is made
this 14th day of April, 2006 (“Effective Date”) at Dallas, Texas, between
PrimeSource Mortgage, Inc., a Texas corporation, whose principal place of
business is located at 0000 X. Xxxx Xx. Xxxxxxx, Xxx Xxxxxx and PSM Holdings,
Inc. (collectively “PrimeSource”)
and
Nationwide By Owner, Inc., a Texas corporation (“NWBO”),
whose
principal place of business is located at 0000 Xxxx Xxxxx, Xxxxx X, Xxxx Xxxxx,
Xxxxx 00000 (collectively the “Parties”).
WHEREAS,
PrimeSource
is engaged in the business of loan origination and brokering real estate
mortgage loans to Lenders;
WHEREAS,
NWBO
is
engaged in the business of marketing real property for sale by owners;
WHEREAS,
NWBO,
in
the course of its business, generates a proprietary system that produces a
Sales
Leads Database (as defined below) that contains a homebuyer/home seller
proprietary database of persons seeking financing on the purchase or refinance
of real property;
WHEREAS,
PrimeSource desires to have exclusive use of and access to the Sales Lead
Database and is willing to compensate NWBO for its exclusive use of such Sales
Leads Database in the origination of mortgage applications for submission to
PrimeSource and/or Lenders according to the terms of this
Agreement;
WHEREAS,
PrimeSource
plans to establish a national processing center for the collection, organization
and tracking of the Sales Leads Database for the origination of loans resulting
from such Sales Leads Database;
WHEREAS,
NWBO desires
to grant PrimeSource an exclusive license in and to the Sales Lead Database,
according to the terms of this Agreement;
WHEREAS,
the
Parties wish to define the parameters of their relationship regarding the
exclusive license of such Sales Leads Database through this Agreement;
NOW,
THEREFORE,
in
consideration of the mutual promises contained in this Agreement, and other
good
and valuable consideration, the receipt of which is hereby acknowledged, the
Parties agree as follows:
ARTICLE
I—TERM
|
1.01
|
Term.
This Agreement shall be in force beginning on the Effective Date
and shall
continue thereafter for a term of five (5) years from the Effective
Date
(“Initial Term”). This Agreement shall automatically renew for three (3)
successive three (3) year terms (hereinafter referred to as the
“1st”,
“2nd”
or “3rd”
“Automatic Renewal Term”, respectively), and thereafter, shall
automatically renew for successive one (1) year terms (each, a “Subsequent
Renewal Term”), unless either party gives the other party written notice
of its intent not to renew this Agreement at least ninety (90) days
prior
to the expiration of the 3rd
Automatic Renewal Term or any Subsequent Renewal
Term.
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|
1.02
|
Termination
Rights.
|
1.02.1 Termination
Upon Breach. In
the
event that either party to this Agreement shall fail, or refuse to fulfill
or
perform, any material condition, covenant or obligation of this Agreement,
such
party shall be deemed to have breached this Agreement, and said breach shall
entitle the other party to terminate this Agreement by giving written notice
thereof to the party in breach. If the party in breach does not rectify the
default within one hundred twenty (120) days, the party providing such
notification of breach may, at such party’s sole discretion, terminate this
Agreement upon the expiration of said one hundred twenty (120) day period by
providing written notice to the other party within five (5) days after
termination of the one hundred twenty (120) day period.
1.02.2 Termination
Upon Change of Control. If
a
party to this Agreement experiences a Change of Control (the “Change of Control
Party”), the other party shall have the right to terminate this Agreement by
giving written notice to the Change of Control Party upon the occurrence of
such
Change of Control. For purposes of this Agreement, a Change of Control shall
be
deemed to have occurred if (i) a majority of the voting capital stock in the
Change of Control Party is acquired by a third party or third parties other
than
the persons holding shares of the Change of Control Party’s voting capital stock
on the date hereof, (ii) the Change of Control Party enters into a merger,
consolidation or other business combination with another person in which the
Change of Control Party is not the surviving person, or (iii) more than fifty
percent (50%) of the assets of the Change of Control Party are sold or
transferred.
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1.03
|
Return
of Sales Lead Database.
In the event of the termination of this Agreement, unless otherwise
agreed
by NWBO and PrimeSource, upon NWBO’s written request, PrimeSource shall
promptly return to NWBO at PrimeSource’s expense the Sales Lead Database
and its contents, together with any and all copies of all media,
documents, software, source code, materials and other Intellectual
Property Rights (as defined below) of NWBO associated with the Sales
Lead
Database. It is acknowledged by NWBO that the obligation to return
such
Sales Leads Database under this Section 1.03 is limited to the database
as
it exists when this Agreement is terminated and does not require
PrimeSource to generate a list of all leads generated more than a
year
prior to the date of termination.
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ARTICLE
II—DEFINITIONS
|
2.01
|
Definitions.
In
this Agreement, the following definitions
apply:
|
2.01.1 “Sales
Leads Database”
shall
mean the proprietary database, list or collection of potential homebuyers
compiled, accumulated, collected, assembled or gathered by NWBO through its
marketing of real property for sale by owners including, without limitation,
leads generated via NWBO’s website, NWBO’s call capture system (which generates
an email to the seller, NWBO and, upon execution of this Agreement, PrimeSource
every time a prospective buyer calls in to get information on the advertised
property) and NWBO’s brilliant yellow signs. Sales Leads Database, as defined in
this Section 2.01.1, does not include loan originations or leads generated
by
NWBO associates, through personal referrals, who are located in markets where
NWBO serves customers. Further, Sales Leads Database does not include any leads
generated by PrimeSource, any affiliate or network branch office of PrimeSource,
or any other source not attributable to NWBO, all such leads being the sole
property of PrimeSource.
2.01.2 “Annual
Net Profit”
shall
mean gross profit attributable to and arising from the Sales Leads Database
tracked through the National Processing Center less all expenses directly
related to the National Processing Center., all such records being maintained
in
accordance with generally accepted accounting principles consistently
applied.
2.01.3 “National
Share Price”
shall
mean the greater of the (i) price per share of PSM Holdings, Inc. (“PSMH”) stock
(symbol XXXX.XX or its successor) on the last day of the fiscal year for the
year in question, or (ii) average price per share of PSMH stock over the entire
twelve month period for the fiscal year in question, in each case as determined
by the over-the-counter trading billboards or national exchanges in which the
PSMH stock is listed or quoted.
2.01.4 “Base
Value of Shares” shall
mean the
respective percentage of the Annual Net Profit for a given fiscal year,
according to the table below:
|
Term
|
Applicable Percentage Rate
|
|||
|
Initial
Term
|
15
|
%
|
||
|
1st
Automatic Renewal Term
|
20
|
%
|
||
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2nd
Automatic Renewal Term
|
25
|
%
|
||
|
3rd
Automatic Renewal Term
|
30
|
%
|
||
|
All
Subsequent Renewal Terms
|
30
|
%
|
||
2.01.5 “Price
Per Share”
or
“PPS”
shall
mean seventy-five percent (75%) of the National Share Price.
2.01.6 Total
Bonus Cash”
shall
have the meaning given in Section 3.06.3.2(b).
2.01.7 “Total
Bonus Shares” for
purposes of this Agreement shall be defined as the total number of shares to
be
issued pursuant to Section 3.06.3 for a given fiscal year, which will be
distributed according to the distribution schedule in Section 3.06.3.2.
2.01.8 “Intellectual
Property Rights” shall
mean, collectively, any and all copyrights, whether registered or unregistered,
mask works, and other copyrightable works; any computer software applications,
software systems, tools, interfaces, in any form, including object code and
source code, in any media, and related documentation; and any proprietary
inventions, discoveries, improvements, know-how, show-how, works-in-progress,
processes, designs, concepts, technologies, ideas, customer information,
customer lists, marketing strategies, market research, industrial designs and
any other trade secrets, and any and all modifications, enhancements, changes
or
improvements to the foregoing.
ARTICLE
III—OBLIGATIONS
| 3.01 |
Exclusive
License to Access and Use Sales Leads Database. NWBO
grants, according to the terms of this Agreement and subject
to all of
NWBO’s Intellectual Property Rights in and to the Sales Lead Database,
an
exclusive license to PrimeSource in and to the Sales Leads Database
for
the purpose of developing the National Processing Center to originate
and
broker real estate mortgage loans. NWBO further agrees to supply,
provide
access to, make available and deliver to PrimeSource on a continuing
basis
during any and all terms of this Agreement, the Sales Lead Database.
Except as otherwise expressly set forth herein, the license by
NWBO to
PrimeSource of the Sales Leads Database pursuant to this Agreement
is
exclusive to PrimeSource, but only to the extent PrimeSource
utilizes the
Sales Lead Database for the purpose of developing the National
Processing
Center to originate and broker real estate mortgage loans. NWBO
agrees
that it shall NOT
have the right to assign, sublicense, sell or provide the Sales
Leads
Database to any other third party or third parties that is in
the business
of loan origination and/or brokering real estate mortgage loans,
except to
the extent that such assignment, sublicense, sale or provision
of the
Sales Leads Database to another third party would benefit NWBO
and
PrimeSource and would otherwise enhance the development of the
National
Processing Center, in which case NWBO shall obtain PrimeSource’s prior
written consent to so assign, sublicense, license, sell or provide
the
Sales Lead Database to any such third party, such consent not
to be
unreasonably withheld.
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| 3.02 |
Representations
of NWBO.
NWBO represents and warrants that no other person or entity has
any
rights, title or interest in and to the Sales Leads
Database.
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| 3.03 |
Ownership
of Sales Leads Database.
PrimeSource acknowledges and agrees that NWBO owns and will continue
to
own the Sales Leads Database and any and all Intellectual Property
Rights
with respect thereto during the term of this Agreement and
thereafter.
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| 3.04 |
Limitations.
The license and the other rights granted to PrimeSource hereunder
shall
not be assigned, individually or together as a whole, by PrimeSource
without the prior written consent of NWBO, which may be withheld
by NWBO
in its sole discretion. Accordingly, under no circumstances shall
PrimeSource sell, license, sublicense, assign, publish, display,
distribute, or otherwise transfer or provide access to a third
party the
Sales Leads Database, or any copy or source code thereof, in
whole or in
part, without NWBO’s prior written consent, which may not be unreasonably
withheld by NWBO. PrimeSource may sell, license, sublicense,
assign,
publish, display, distribute, or otherwise transfer or provide
access to a
wholly-owned subsidiary of PrimeSource, any affiliate or network
branch
office of PrimeSource the Sales Leads Database, in whole or in
part, with
NWBO’s prior written consent, which consent may not be unreasonably
withheld by NWBO.
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| 3.05 |
National
Processing Center.
PrimeSource shall create and implement a National Processing
Center or
other system for the collection, organization, and tracking of
the Sales
Leads Database generated by NWBO under this Agreement (“National
Processing Center”), for the sole purpose of originating home loans. NWBO
shall cause the Sales Leads Database to be delivered and/or transmitted
to
PrimeSource via the National Processing Center. NWBO acknowledges
and
agrees that PrimeSource owns and will continue to own the National
Processing Center and any and all Intellectual Property Rights
with
respect thereto during any term of this Agreement and thereafter;
provided, that to the extent that the National Processing Center
is
comprised (in whole or in part) of the Sales Lead Database, the
portion of
the National Processing Center that is comprised of the Sales
Lead
Database will be owned by and the property of
NWBO.
|
| 3.06 |
Consideration
for Exclusive License of Sales Leads Database.
As
consideration for the exclusive license of the Sales Lead Database
and
obligations set forth in Section 3.01 and otherwise in this Agreement,
PrimeSource will compensate NWBO as
follows:
|
3.06.1
Stock.
Following the execution of this Agreement, PrimeSource shall cause PSMH
to issue
150,000 shares of PSMH stock , valued at $1.00 per share, according to
the
following breakdown:
50,000
shares to Xxx Xxxxx
50,000
shares to Xxxx Xxxx
50,000
shares to NWBO.
The
Stock
issued pursuant to Sections 3.06.1 and 3.06.3 are "restricted securities,” as
defined by the Securities Act of 1933, as amended (the “Securities Act”). With a
view to making available to the holders of the Stock (each, a “Holder”) the
benefits of certain SEC rules and regulations, including Rule 144 under the
Securities Act that may permit the sale of the Stock to the public without
registration, PrimeSource agrees to cause the issuer of the Stock (the “Issuer”)
to:
(a) make
and
keep public information available, as those terms are understood and defined
in
Rule 144 or any similar or analogous rule promulgated under the Securities
Act,
at all times;
(b) file
with
the SEC in a timely manner all reports and other documents required of the
Company under the Securities Act and the Exchange Act of 1934, as amended (the
“Exchange Act”); and
(c) so
long
as a Holder owns any Stock, furnish to the Holder promptly upon written request,
or otherwise make available to a Holder (i) a written statement by Issuer as
to
the Issuer’s compliance with the reporting requirements of Rule 144 and of the
Securities Act and the Exchange Act; (ii) a copy of the Issuer’s most recent
annual or quarterly report; and (iii) such other reports and documents as a
Holder may reasonably request in availing itself of any SEC rule or regulation
allowing such Holder to sell any
of
the
Stock without registration.
[Material
marked with an asterisk has been omitted from this document pursuant to a
request for confidential treatment and has been filed separately with the
Securities and Exchange Commission.]
3.06.2
Loan
Processing Payment. PrimeSource
shall pay NWBO a Loan Processing Payment of $* for each loan closed and
processed through the National Processing Center. The Loan Processing Payment
shall be paid by PrimeSource on or before the 10th
of each
month for all loans (as described above) closed by PrimeSource during the
preceding month. The
Loan Processing
Payment shall be accompanied by a monthly report certified by an officer
of
PrimeSource setting forth the number of loans processed and closed for
the
preceding month. PrimeSource shall also make available at the National
Processing Center to NWBO, at NWBO’s sole cost and expense, the HUD-1 settlement
statements and other non-confidential, non-proprietary evidence and support
to
verify the number of loans processed and closed for the preceding
month.
3.06.3
Year-End
Bonus.
3.06.3.1 Generally.
In
addition to the stock issued pursuant to Section 3.06.1 above, PrimeSource
shall
provide year-end bonuses, issued in stock or paid in cash, based on the Annual
Net Profit attributable to the National Processing Center for a given fiscal
year. NWBO shall elect whether to take the year-end bonus in stock (Total Bonus
Shares) or cash (Total Bonus Cash) or any combination of the two not exceeding
the Base Value of Shares.
3.06.3.2 Calculation
and Distribution of Year-End Bonus.
As a
year-end bonus, PrimeSource shall issue the Total Bonus Shares or the Total
Bonus Cash according to the distribution schedule below.
(a) PrimeSource
will calculate the Total Bonus Shares to be issued as follows: Calculate the
Base
Value of Shares
by
multiplying the Annual Net Profit by the respective percentage rate according
to
the table in Section 2.01.4; Determine the National
Share Price;
calculate the Price Per Share (PPS) by multiplying the National Share Price
for
the fiscal year in question by * (*%); calculate the Total
Bonus Shares
to be
issued by dividing the Base Value of Shares by the Price Per Share (PPS); The
Total Bonus Shares will be distributed according to the following distribution
schedule:
*%
to Xxx
Xxxxx
*%
to
Xxxx Xxxx
*%
to
NWBO
*%
to
NWBO’s employee pool (to be issued by NWBO in its sole discretion)
For
example,
should
the Annual Net Profit for a given year during the Initial Term be $* and the
National Share Price for the fiscal year in question $*/share, the issuance
of
stock would be calculated as follows:
$*
Base
Value of Shares
(*% of
Annual Net Profit)
$*
Price
Per Share (*% of * National Share Price)
[Material
marked with an asterisk has been omitted from this document pursuant to a
request for confidential treatment and has been filed separately with the
Securities and Exchange Commission.]
*
Total
Bonus Shares
issued
pursuant to Section 3.06.3, according to the following
distribution schedule:
*
shares
to Xxx Xxxxx
*
shares
to Xxxx Xxxx
*
shares
to NWBO
*
shares
to NWBO’s employee pool (to be issued by NWBO in its sole
discretion)
(b) PrimeSource
will calculate the Total Bonus Cash (as herein so called) to be paid as follows:
Multiply the Annual Net Profit by the respective percentage rate according
to
the table in Section 2.01.4. Based on the previous example, the Total Bonus
Cash
payment would be equal to $*.
3.06.3.3
Time
of Issuance or Payment. The
stock
issued or cash paid under this Section 3.06 shall be issued and paid promptly
after the determination of Annual Net Profit following the close of the fiscal
year in question, but in any event within ninety (90) days after the close
of
the fiscal year in question.
| 3.07 |
Other
Obligations of PrimeSource. PrimeSource
shall (i) promptly but in any event no later than twelve (12)
months after
the date of this Agreement, obtain the appropriate licenses in
thirty-five
(35) states in the United States necessary to originate mortgage
loans in
all such states and shall endeavor in good faith and use its
best efforts
to obtain licensure in all fifty (50) states during such period;
provided,
that, to the extent that PrimeSource is not licensed in all states
as of
the end of such twelve (12) month period but provides evidence
satisfactory to NWBO in its discretion that PrimeSource is diligently
and
in good faith seeking licensure in such state(s), NWBO shall
grant a
one-time six (6) month extension to PrimeSource to obtain licensure
in
such states, and (ii) close that number of loans per year commensurate
with industry standards for mortgage companies that are similarly
situated
to PrimeSource.
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ARTICLE
IV—RIGHT OF FIRST REFUSAL
|
4.01
|
Right
of First Refusal. NWBO
agrees that if NWBO receives a bona fide written offer for the purchase
or
acquisition of NWBO from a third party, either through the sale of
a
controlling or majority interest in NWBO shares of stock, an asset
purchase agreement or otherwise, NWBO shall give PrimeSource written
notice of such offer, including the general terms of such offer (the
“Offer Notice”). PrimeSource shall give NWBO in writing its competing
offer (the “Competing Offer”) within thirty (30) days after receiving the
Offer Notice. If PrimeSource fails to deliver the Competing Offer
to NWBO
within such thirty (30) day period, NWBO shall have the right to
enter
into the transaction with the third party. If PrimeSource delivers
a
Competing Offer to NWBO, within the period described above, that
is
substantially similar in terms of structure (i.e., same type of
consideration) and represents a substantial premium over the value
of the
offer contained in the Offer Notice, NWBO and PrimeSource shall enter
into
the transaction based on the terms set forth in the Competing Offer;
provided, that if the transaction is not closed within sixty (60)
days of
NWBO’s receipt of the Competing Offer, then NWBO shall have the right
to
enter into the transaction with the third
party.
|
ARTICLE
V—DISPUTE RESOLUTION
|
5.01
|
Dispute
Resolution.
Both PrimeSource and NWBO agree that any controversy or claim arising
out
of or relating to this contract, or the breach thereof, is subject
to
arbitration under the Federal Arbitration Act and shall be settled
by
binding arbitration to be conducted in Dallas, Texas and administered
by
the American Arbitration Association in accordance with its Commercial
Arbitration Rules and judgment on the award rendered by the arbitrator(s)
may be entered in any court having jurisdiction thereof. The costs
of any
arbitration shall be borne equally by the Parties. A willful violation
of
this provision or any breach of this Agreement by either Party shall
entitle the non-breaching Party to specific performance of this Agreement,
to recover actual damages, to recover liquidated damages as stated
herein
and to receive reimbursement for expenses and attorneys’ fees incurred in
securing enforcement herein.
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ARTICLE
VI. MISCELLANEOUS
|
6.01
|
Assignment
and Transfer. Neither
this Agreement nor any duties or obligations under it shall be assignable
or transferable by either Party without the prior written consent
of the
other Party; provided, that if NWBO otherwise complies with Section
4.01
with respect to a proposed sale transaction, and PrimeSource or one
of its
affiliates is not the purchaser in such transaction, then NWBO shall
have
the right without obtaining PrimeSource’s consent to assign or transfer
this Agreement in connection with such transaction. In the event
of an
assignment or transfer that complies with this Section 6.01, the
assignee,
transferee or assignee’s or transferee’s legal representative shall agree
in writing to personally assume, perform and be bound by all the
covenants, obligations and agreements contained in this
Agreement.
|
|
6.02
|
Successors
and Assigns.
Subject to the provisions regarding assignment and transfer, this
Agreement shall be binding upon and inure to the benefit of the Parties
hereto and their respective heirs, executors, administrators, legal
representatives, successors and
assigns.
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|
6.03
|
Attorney’s
Fees.
If
any action at law or in equity is brought to enforce or interpret
the
provisions of this Agreement, the prevailing Party shall be entitled
to
reasonable attorney’s fees in addition to any other relief to which it may
be entitled.
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6.04
|
Governing
Law.
THE LAWS OF THE STATE OF TEXAS SHALL GOVERN THE VALIDITY, CONSTRUCTION
AND
INTERPRETATION OF THE AGREEMENT OR ANY OF ITS TERMS OR PROVISIONS,
AS WELL
AS THE RIGHTS AND DUTIES OF THE
PARTIES.
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|
6.05
|
Amendment.
This Agreement may be amended only by the mutual agreement of the
Parties,
in a writing to be attached to and incorporated in this
Agreement.
|
|
6.06
|
Invalidity.
In
the event that any one or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions, and the Agreement
shall be construed as if such invalid, illegal or unenforceable provision
had never been contained herein.
|
|
6.07
|
Entire
Agreement.
The terms of this Agreement are intended by the Parties as a final
expression of their agreement with respect to the subject matter
of this
Agreement and may not be modified by evidence of any prior or
contemporaneous negotiations, representations, agreements or
understandings. This Agreement supersedes all agreements previously
entered into between the Parties. No other representations, agreements,
or
understandings between the Parties will be binding, unless in writing
and
signed by authorized representatives of the Parties to this Agreement.
|
|
6.08
|
Nature
of Agreement.
This Agreement does not in any way create the relationship between
PrimeSource and NWBO of agency, partnership, joint venture or employment
or any other relationship, other than as licensor and licensee, and
the
mutual desire to build the National Processing Center for the benefit
of
both Parties.
|
|
6.09
|
Headings.
The article and paragraph headings of this Agreement are for convenience
only and in no way limit or enlarge the scope or meaning of the language
hereof.
|
|
6.10
|
No
Third-Party Beneficiary.
This Agreement is not intended to give or confer any benefits, rights,
privileges, claims, actions or remedies to any person or entity as
a
third-party beneficiary or otherwise, other than Xxx Xxxxx and Xxxx
Xxxx
(but only as to Section 3.06).
|
|
6.11
|
Time.
Time is of the essence of performance of each and every term, condition
and covenant contained in this
Agreement.
|
|
6.12
|
Use
of Captions.
Any captions contained in this Agreement are for convenience only
and are
not to be given any substantive meaning in construing this Agreement.
|
|
6.13
|
Notices.
All notices required or permitted hereunder shall be in writing and
shall
be served on the Parties at the following
address:
|
|
If
to PrimeSource:
|
PrimeSource
Mortgage, Inc.
|
|
0000
Xxxxx Xxxx
|
|
|
Xxxxxxx,
XX 00000
|
|
|
Telephone:
000.000.0000
|
|
|
Facsimile:
505.622.5233
|
|
|
With
Copy to :
|
XxXxxxxx
& Xxxxxxxxx XX
|
|
00000
Xxxxxxx Xx., Xxx 000
|
|
|
Xxxxxx,
Xxxxx, 00000
|
|
|
If
to NWBO :
|
Nationwide
By Owner, Inc.
|
|
0000
Xxxx Xxxxx, Xxxxx X
|
|
|
Xxxx
Xxxxx, Xxxxx 00000
|
|
|
Telephone:
_________________________
|
|
|
Facsimile: _________________________
|
Any
such
notices shall be either (a) sent by certified mail, return receipt requested,
in
which case notice shall be deemed delivered three (3) business days after
deposit, postage prepaid in the U.S. Mail, (b) sent by overnight delivery using
a nationally recognized overnight courier, in which case it shall be deemed
delivered one (1) business day after deposit with such courier, (c) sent by
facsimile, in which case notice shall be deemed delivered upon transmission
of
such notice, or (d) sent by personal delivery. The above address may be changed
by written notice to the other provided; provided, however, that no notice
of
such a change of address shall be effective until actual receipt of such
notice.
|
6.14
|
Waiver.
Any failure by either Party to enforce and require the strict keeping
and
performance of any of the terms and conditions of this Agreement
shall not
constitute a waiver of any such terms and conditions at any future
time
and shall not prevent such Party from insisting on the strict keeping
and
performance of such terms and conditions at any later time.
|
|
6.15
|
|
6.16
|
Construction.
The Parties agree that this Agreement will be construed fairly and
without
regard to which Party authored the Agreement.
|
|
6.17
|
Indemnification.
Each Party shall indemnify and hold the other harmless from and against
any and all actions, suits, claims, liabilities, damages, costs,
and
reasonable attorney's fee or expenses arising from any breach of
any of
the representations, warranties or agreements contained in this Agreement
by such Party, or such Party's officers, directors, agents or employees,
in connection with the transactions contemplated by this Agreement.
Notwithstanding anything to the contrary herein, neither Party shall
be
entitled to special, consequential, punitive or other speculative
damages
as a result of the breach or termination of this
Agreement.
|
|
6.18
|
Effectiveness
of Agreement.
Notwithstanding anything contained in this Agreement to the contrary,
this
Agreement shall not be deemed effective until NWBO has received the
approval of the Agreement from its Executive Committee and Board
of
Directors.
|
EXECUTED
on the day, month and year first set forth above.
PRIMESOURCE
MORTGAGE, INC.
|
By:
|
/s/
Xxxxxxx X. Xxxxx
|
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XXXXXXX
X. XXXXX,
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PRESIDENT
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PSM
HOLDINGS, INC.
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By:
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/s/
Xxxxxxx X. Xxxxx
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XXXXXXX
X. XXXXX,
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PRESIDENT
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NWBO
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By:
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/s/ Xxxxxx Xxxxx
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Its:
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President
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ADDENDUM
TO LICENSE AGREEMENT
THIS
ADDENDUM TO LICENSE AGREEMENT, dated as of April 14th 2006 (this “Addendum”),
is by
and among PrimeSource Mortgage, Inc., a Texas corporation, PSM Holdings, Inc.
(collectively “PrimeSource”),
and
Nationwide By Owner, Inc., a Texas corporation (“NWBO”
and
together with PrimeSource, the “Parties”).
WITNESSETH:
WHEREAS, the
Parties previously entered into that certain License Agreement, effective as
of
April 14, 2006 (the “Agreement”),
in
connection with the license by NWBO to PrimeSource of the Sales Leads Database;
and
WHEREAS,
the Parties desire to enter into this Addendum to the Agreement in order to
clarify (i) certain rights of PrimeSource with respect to the Sales Leads
Database system, which includes the ability to sell signs to customers at the
market price for such signs and listings and to have complete access to the
loan
origination leads from the NWBO system, and (ii) the consideration that
PrimeSource will pay to NWBO for such license; and
WHEREAS,
capitalized terms not otherwise defined in this Addendum shall have the meaning
given such terms in the Agreement.
NOW,
THEREFORE, in consideration of the foregoing recitals and of the mutual
covenants set forth below, the Parties agree as follows:
1. License;
Consideration.
The
Parties acknowledge and agree that (i) as part of the license of the Sales
Lead
Database, PrimeSource shall have the right to sell NWBO signs to customers
at
the market price for such signs and listings and to have complete access to
the
loan origination leads from the NWBO system, and (ii) as additional
consideration for the license of the Sales Lead Database pursuant to the terms
of the Agreement as further clarified by this Addendum, PrimeSource shall pay
NWBO $150,000, $75,000 of which shall be due immediately upon signing of this
Addendum, and the remaining $75,000 shall be paid upon the first to occur of
the
following: (a) PrimeSource’s completion of its anticipated financing, whether
through a private or public offering of equity, debt, or otherwise, the proceeds
of which are to be used for the development of the National Processing Center,
or (ii) ninety (90) days following the Effective Date. The consideration to
be
paid by PrimeSource to NWBO as set forth in this Section 1 of this Addendum
is
in addition to (and shall not limit) the consideration to be paid by PrimeSource
to NWBO pursuant to the terms of the Agreement.
2. Survival
of Agreement.
Except
as expressly set forth in this Addendum, the terms and provisions of the
Agreement shall continue in full force and effect and shall survive in all
respects the execution of this Addendum.
3. Complete
Agreement; Counterparts.
The
Agreement as amended by this Addendum shall constitute the entire agreement
among the Parties with respect to the subject matter hereof and thereof and
shall supersede any previous negotiations, commitments and writings with respect
to such subject matter. This Addendum may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Facsimiles shall be
deemed originals for purposes of this Addendum.
4. Governing
Law.
This
Addendum shall be governed by, and construed in accordance with, the laws of
the
State of Texas.
5. Severability.
Should
any provision of this Agreement be declared or be determined by any court to
be
illegal or invalid, the validity of the remaining parts, terms or provisions
shall not be affected thereby and the illegal or invalid part, term or
provisions shall be deemed not to be a part of this Addendum.
[Remainder
of page intentionally left blank]
IN
WITNESS WHEREOF, the undersigned have executed this Addendum as of the
14th
day of
April, 2006.
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PRIMESOURCE
MORTGAGE,
INC. |
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By:
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/s/
Xxxxxxx X. Xxxxx
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XXXXXXX
X. XXXXX,
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PRESIDENT
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PSM
HOLDINGS, INC.
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By:
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/s/
Xxxxxxx X. Xxxxx
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XXXXXXX
X. XXXXX,
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PRESIDENT
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NWBO
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By:
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/s/
Xxxxxx Xxxxx
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Its:
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President
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ADDENDUM
TO LICENSE AGREEMENT
This
is
an addendum to the License agreement (“Agreement”) made April 14, 2006 at
Dallas, Texas between PrimeSource Mortgage, Inc. whose principal place of
business is 0000 Xxxxx Xxxx, Xxxxxxx, XX 00000 and PSM Holdings, Inc.
(collectively “PrimeSource”) and Nationwide By Owner, Inc. whose principal place
of business is located at 0000 Xxxx Xxxxx, Xxxxx X, Xxxx Xxxxx, Xxxxx
00000.
WHEREAS,
Section 3.07 of the original agreement date April 14, 2006 states:
Other
obligations of PrimeSource. PrimeSource
shall (i) promptly but in any event no later than twelve (12) months after
the
date of this Agreement, obtain the appropriate licenses in thirty-five (35)
states in the United States necessary to originate mortgage loans in all such
states and shall endeavor in good faith and use its best efforts to obtain
licensure in all fifty (50) states during such period, provided, that, to the
extent that PrimeSource is not licensed in all states as of the end of such
twelve (12) month period but provides evidence satisfactory to NWBO in its
discretion that PrimeSource is diligently and in good faith seeking licensure
in
such state(s), NWBO shall grant a one-time (6) month extension to PrimeSource
to
obtain licensure in such states, and (ii) clo9se that number of loans per year
commensurate with industry standards for mortgage companies that are similarly
situated to PrimeSource;
WHEREAS,
NWBO does recognize that PrimeSource has in good faith and diligently been
pursuing to become licensed in all fifty states per the original
agreement;
WHEREAS,
PrimeSource has committed to NWBO that they will continue in good faith to
diligently strive to become licensed in all states;
THEREFORE
BE IT RESOLVED that the specific dates be removed from this section of the
agreement. It is understood by both parties that PrimeSource shall move forward
with diligence to continue to become licensed in all fifty (50) states or in
those that NWBO requests they become licensed in.
Signed
effective this 1st
day of
March, 2007.
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PRIMESOURCE
MORTGAGE, INC.
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NWBO,
INC
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By:
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/s/ Xxxxxxx X. Xxxxx
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By:
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/s/ Xxxxxx Xxxxx
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Xxxxxxx X. Xxxxx
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Xxxxxx Xxxxx
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President
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President
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PSM
HOLDINGS, INC.
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By:
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/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
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