Financing Program. (a) ABTAC shall cause to be included on the ABT Website an application for credit containing requests for the information designated by CAF as set forth on Exhibit A hereto (the "Application"). The Application shall request the information specified by CAF and shall be in a form reasonably satisfactory to CAF. CAF may request changes from time to time in the information solicited by the Application and, provided the requests are made in writing and with reasonable notice, (b) Unless it already has done so, CAF will enter into its standard dealer agreement ("Closing Agreement") with each seller of Vehicles in the United States and the District of Columbia (the "Territory") who has executed an on-line purchase referral agreement with ABT (each, a "Dealer," and together the "Dealers"). The Closing Agreement shall contain customary terms no less favorable to the Dealers than CAF's customary agreements in use with its other financing programs and shall govern the terms upon which the Dealer and CAF will close vehicle financing transactions referred through this Agreement. Upon execution of a Closing Agreement, CAF shall assign such Dealer an identifying number (the "Dealer ID") and inform ABTAC of such number. CAF may terminate its relationship with any Dealer at any time for any reason, subject to the terms and conditions of its Closing Agreement with such Dealer. CAF shall notify ABT if it terminates any such Dealer under the provisions of its Closing Agreement with such Dealer. Notwithstanding the foregoing, CAF shall not be obligated to enter into a Closing Agreement or otherwise do business with any Dealer which CAF has determined it will not do any business. (c) Except as specified to the contrary in this Agreement, ABTAC (i) shall not be a party to, (ii) shall not have any obligations with respect to, and (iii) shall be held harmless by each Dealer and CAF with respect to any losses or liabilities arising from or in connection with, the Closing Agreements. If for any reason the Closing Agreement between a Dealer and CAF is terminated, then CAF shall be under no obligation to approve any Application received from Customers of such Dealer. (d) CAF agrees to offer a buy-rate for each approved Customer credit application at terms no less favorable than those offered to the applicable Dealer by CAF. For each Customer credit application approved, CAF agrees to inform ABTAC of the buy-rate offered to the applicable Dealer for RFTs. On a monthly basis, the buy rate for RFTs purchased from Dealers by CAF that month shall average no higher than 210 basis points over the 18-month treasury (the "Base Range"). CAF may, upon 90 days written notice (a "Base Range Notice") to ABTAC, raise the Base Range. Subject to the ability of CAF to handle the systems issues involved, as reasonably determined by CAF, and pursuant to a methodology to be agreed upon by CAF and ABTAC, from time to time, upon ten (10) business days written request from ABTAC, CAF shall raise the buy rate offered on RFTs, up to a limit 50bps over the life of the term of this Agreement, which raise shall be paid to ABTAC in the form of an increase in the fees paid to ABTAC by CAF pursuant to Section 6. Such increase in fees shall be determined by reference to the present value
Appears in 2 contracts
Samples: Financing Inquiry Referral Agreement (Autobytel Com Inc), Financing Inquiry Referral Agreement (Autobytel Com Inc)
Financing Program. (a) ABTAC shall cause to be included on the ABT Website an application for credit containing requests for the information designated by CAF as set forth on Exhibit A hereto (the "Application"). The Application shall request the information specified by CAF PROVIDENT and shall be in a form reasonably satisfactory to CAFPROVIDENT. CAF PROVIDENT may request changes from time to time in the information solicited by the Application and, provided the such requests are made in writing and with reasonable notice,, ABTAC shall use its best efforts to promptly accommodate such requests; provided however, that PROVIDENT shall use its best efforts not to request changes to the information requested by, or form of, the Application (unless such changes are required by law) more often than once in any three-month period; provided further, that if such changes are required by law and PROVIDENT gives ABTAC thirty (30) days notice, ABTAC shall honor such requested change within such thirty (30) day period.
(b) Unless it already has done so, CAF PROVIDENT will attempt to enter into its standard dealer agreement ("Closing Dealer Agreement") with each seller of Vehicles Dealer in the United States and the District of Columbia their designated area as set forth in Schedule A (the "Territory") who has executed an on-line purchase referral agreement with ABT (each, a "Dealer," and together the "Dealers"). The Closing Dealer Agreement shall contain customary terms no less favorable to the Dealers than CAFPROVIDENT's customary Dealer agreements in use with its other Vehicle Lease financing programs and shall govern the terms upon which the Dealer and CAF PROVIDENT will close vehicle Vehicle Lease financing transactions referred through this Agreement. Upon execution of a Closing Dealer Agreement, CAF PROVIDENT shall assign such Dealer an identifying number (the "Dealer ID") and inform ABTAC of such number. CAF PROVIDENT may terminate its relationship with any Dealer at any time for any reasontime, subject to the terms and conditions of its Closing Dealer Agreement with such Dealer. CAF PROVIDENT shall notify ABT ABTAC if it terminates any such Dealer under the provisions of its Closing Dealer Agreement with such Dealer. Notwithstanding the foregoing, CAF PROVIDENT shall not be obligated to enter into a Closing Dealer Agreement or otherwise do business with any Dealer Dealer, which CAF PROVIDENT has determined in good faith it will not do any business.
(c) Except as specified to the contrary in this Agreement, ABTAC (i) shall not be a party to, (ii) shall not have any obligations with respect to, and (iii) shall be held harmless by each Dealer and CAF PROVIDENT with respect to any losses or liabilities arising from or in connection with, the Closing Dealer Agreements. If for any reason the Closing Dealer Agreement between a Dealer and CAF PROVIDENT is terminated, then CAF PROVIDENT shall be under no obligation to approve any Application received from Customers of such Dealer.
(d) CAF agrees to offer a buy-rate for each approved Customer credit application at terms no less favorable than those offered to the applicable Dealer by CAF. For each Customer credit application approved, CAF PROVIDENT agrees to inform ABTAC of the buy-rate lease terms offered to the applicable Customer.
(e) PROVIDENT agrees to offer competitive lease terms and conditions to Dealers who have executed a Dealer Agreement. Competitive shall mean that PROVIDENT will offer monthly payments on comparable leases, and to comparable lessees with comparable credit qualifications within ten dollars ($10) per month of the least expensive lessor located within the Territory. These terms will be extended to Dealers representing eighty percent (80%) of the vehicles sold in the Territory. For purposes of the $10/month and the 80% test, lease terms offered by manufacturers or their representatives shall be excluded. The $10/month test shall be measured utilizing "LeaseLink," an automotive leasing software provider, or other comparable information supplier if LeaseLink no longer provides such data.
(f) For so long as the Exclusivity Conditions (as defined below) are met, PROVIDENT shall not enter into any agreement or arrangement similar to this Agreement with any other Internet automobile leasing program, or service, whereby the Internet program or service provider receives or solicits credit information from its customers to finance the lease of vehicles (excluding recreational vehicles), forwards that information for RFTs. On a monthly basiscredit review to PROVIDENT and PROVIDENT purchases that customer's lease contract originated by an automobile dealer that has executed an on-line purchase or financing referral agreement or similar agreement with the Internet program or service provider; provided, however, that (i) PROVIDENT's rights to and/or use of CMSI's Auto Loan Exchange System, credit connection, or other similar system for indirect dealer lease financing; shall not violate the buy rate for RFTs purchased from Dealers provisions of this Section 1(f); and (ii) PROVIDENT, any affiliate of PROVIDENT, or any person controlled by CAF that month shall average no higher than 210 basis points over the 18-month treasury or under common control (the "Base Range"). CAF including partnership and joint ventures) with PROVIDENT may, upon 90 days written notice (a "Base Range Notice") to ABTACafter the date hereof, raise the Base Range. Subject to the ability acquire control through merger, acquisition, consolidation or purchase of CAF to handle the systems issues involved, as reasonably determined by CAF, and pursuant to a methodology to be agreed upon by CAF and ABTAC, from time to time, upon ten (10) business days written request from ABTAC, CAF shall raise the buy rate offered on RFTs, up to a limit 50bps over the life all or substantially all of the term assets or other arrangements of any corporation or other entity shall not violate the provisions of this Section 1(f): and (iii) PROVIDENT shall not use or participate in the use of the ABTAC Marks or the ABT Marks in conjunction with the offering or making of any automobile finance product or product related thereto on the Internet.
(g) For purposes of this Agreement, which raise the term "Exclusivity Conditions" shall be paid mean, as it relates to ABTAC in ABTAC, the form occurrence of an increase in the fees paid to ABTAC by CAF pursuant to Section 6. Such increase in fees shall be determined by reference to the present valuefollowing:
Appears in 1 contract
Samples: Financing Inquiry Referral Agreement (Autobytel Com Inc)
Financing Program. (aA) ABTAC shall will cause to be included on the ABT Website Website, along with specific identification of GECAFS as a participating lender in form and content reasonably satisfactory to GECAFS, either an application for credit containing requests for the information designated by CAF in a form reasonably satisfactory to GECAFS, substantially as set forth on Exhibit A hereto hereto, or a non-specific credit application soliciting information requested by GECAFS. (the Each such completed application is referred to herein as a "GECAFS Application" and each Customer who completes a GECAFS Application is referred to herein as an "). The Application shall request the information specified by CAF and shall be in a form reasonably satisfactory to CAF. CAF may request changes Applicant.") GECAFS may, from time to time time, request changes in the information solicited by such application and ABTAC will use its best efforts to accommodate such requests. GECAFS will be under no obligation hereunder with respect to any GECAFS Application which does not solicit the Application and, provided the requests are made in writing and with reasonable notice,information requested by GECAFS.
(bB) Unless it already has done so, CAF GECAFS will offer to enter into its standard dealer a contract purchase agreement ("Closing Agreement") with each seller of Vehicles in the continental United States (excluding Alaska and Hawaii) and the District of Columbia (the "TerritoryUnited States") who has executed an on-line purchase request referral agreement with ABT and who otherwise meets GECAFS's standards for such relationships (each, a "Dealer," and together the "DealersDealer(s)"). ABTAC will assist GECAFS in securing signed Closing Agreements with Dealers and will provide GECAFS with the address of each Dealer to facilitate this process. The Closing Agreement shall will contain customary terms no less favorable to the Dealers than CAFGECAFS's customary agreements in use with its other financing leasing programs and shall will govern the terms upon which the Dealer and CAF GECAFS will close vehicle financing the Vehicle leasing transactions referred through the subject of this AgreementAgreement (Contracts"). ABTAC agrees, subject to its reasonable business judgment and available resources, to promote its leasing programs to Dealers and to support, assist and cooperate with GECAFS in the marketing of this program, and its proper execution, to Dealers. Upon execution of a Closing Agreement, CAF shall GECAFS will assign such Dealer an identifying number (the "Dealer ID") and inform ABTAC of such number. CAF may terminate its relationship with any Dealer at any time GECAFS will be responsible for any reason, subject to informing Dealers of the terms and conditions nature of its Closing Agreement with such Dealerleasing programs. CAF shall notify ABT if it terminates any such Dealer under ABTAC will be responsible for informing Dealers of the provisions nature of its Closing Agreement with such Dealer. Notwithstanding services and the foregoingdifferences, CAF shall not be obligated to enter into a Closing Agreement or otherwise do business with any Dealer which CAF has determined it will not do any businessif any, between the programs described by GECAFS and the ABTAC programs.
(cC) Except as specified to the contrary in this Agreement, ABTAC (i) shall will not be a party to, (ii) shall not will have any no obligations with respect to, to and (iii) shall will be held harmless by each Dealer and CAF GECAFS with respect to any act or omission by GECAFS which gives rise to any losses or liabilities arising from or in connection with, with the Closing Agreements. If for any reason the Closing Agreement between a Dealer and CAF GECAFS is terminated, then CAF shall GECAFS will be under no obligation to approve any Application application received from Customers customers of such Dealer.
(dD) CAF GECAFS agrees to offer a buy-rate for provide each approved Customer credit application at Applicant lease rates and terms no not less favorable to Applicants than those offered by GECAFS to the applicable Dealer by CAF. For each Customer credit application approvedsimilar customers in its customary lease programs unless ABTAC requests, CAF and GECAFS agrees to inform ABTAC of the buy-rate offered offer, less favorable terms. The standard money factor used to the applicable Dealer for RFTs. On derive a monthly basispayment for any Contract will be the rate factor announced by GECAFS from time to time in its sole discretion as the minimum rate factor acceptable to GECAFS. Upon ten business days' prior written notice, the buy ABTAC may request that GECAFS increase such rate factor, for RFTs such Contracts purchased from Dealers by CAF that month shall average no higher than 210 basis points over the 18-month treasury (the "Base Range"). CAF mayGECAFS and for such period as ABTAC may specify, upon 90 days written notice (by an amount which will result in a "Base Range Notice") remittance to ABTAC, raise in accordance with Section 6 hereof, of a certain sum requested by ABTAC, not to exceed [*] unless otherwise agreed, for each applicable Contract purchased by GECAFS during such period.
(E) Each GECAFS Application received by ABTAC with respect to which GECAFS is competitive will be forwarded to GECAFS for review until such time as the Base Rangevolume targets set forth in Section 1(F) are achieved. Subject As used herein, "competitive" will mean cases in which the Applicant's monthly Contract payment under the standard GECAFS program applicable to such Contracts would be not more than [*] greater than the lowest monthly Contract payment otherwise available to the ability Applicant, all other Contract terms being equal, from any other source of CAF financing with whom ABTAC is then doing business under the same or similar terms as ABTAC's agreement with GECAFS. "Competitiveness" will be determined as accurately as possible in good faith with reference to handle available data. GECAFS and ABTAC each reserves the systems issues involvedright to audit the process by which "competitiveness" is determined. If GECAFS declines to proceed with the transaction as described, GECAFS will return such GECAFS Application to ABTAC for additional information or forwarding to another financing source, as reasonably determined the case may be. If ABTAC requests, GECAFS will cooperate with ABTAC in developing a screening methodology based upon GECAFS's underwriting criteria then in effect which would enable ABTAC to forward to GECAFS only those GECAFS Applications meeting an agreed-upon subset of credit criteria and to forward the remaining applications to other financing sources. Such responsibilities are illustrated by CAFthe Process Map attached hereto as Exhibit B, and pursuant to a methodology to as may be agreed upon by CAF and ABTAC, modified from time to time, . GECAFS and ABTAC have agreed upon ten (10) business days written request from ABTAC, CAF shall raise the buy rate offered on RFTs, up responsibilities of each in developing the tools necessary to a limit 50bps over the life of the term of implement this Process Map and this Agreement, which raise shall be paid to ABTAC in the form of an increase in the fees paid to ABTAC by CAF pursuant to Section 6. Such increase in fees shall be determined by reference to the present value.
Appears in 1 contract
Samples: Marketing and Application Processing Agreement (Autobytel Com Inc)
Financing Program. (a) ABTAC shall cause If Seller or an affiliate of Seller requests an Approval or sends to be included on Red Iron an Invoice, and the ABT Website an application Dealer and/or Distributor related to such Approval or Invoice is eligible for floorplan inventory financing in accordance with the credit containing requests for the information designated by CAF as set forth on Exhibit A hereto (the "Application"). The Application shall request the information specified by CAF and shall be in a form reasonably satisfactory to CAF. CAF may request changes operational policies of Red Iron, then Red Iron shall, from time to time in the information solicited by the Application andits commercially reasonable discretion consistent with such credit and operational policies, provided the requests are made in writing issue such Approvals and with reasonable notice,
(b) Unless it already has done soadvance against such Invoices, CAF will enter into its standard dealer agreement ("Closing Agreement") with each seller of Vehicles in the United States and the District of Columbia (the "Territory") who has executed an on-line purchase referral agreement with ABT (each, a "Dealer," and together the "Dealers"). The Closing Agreement shall contain customary terms no less favorable to the Dealers than CAF's customary agreements in use with its other financing programs and shall govern all under the terms upon which the Dealer and CAF will close vehicle financing transactions referred through of this Agreement. Upon execution issuance of a Closing Agreementan Approval by Red Iron, CAF Seller shall assign such Dealer (or, as applicable, shall cause its affiliate to) deliver an identifying number original Invoice to Red Iron. Provided Red Iron receives the Invoice within sixty (60) days of the "Dealer ID"date Red Iron issued the Approval and within thirty (30) and inform ABTAC days of such number. CAF may terminate the ship date referred to in the Invoice, Red Iron shall pay Seller or its relationship with any Dealer at any time for any reasonaffiliate, as applicable, the amount of the Invoice, subject to the terms of the financing program then in effect between Seller and Red Iron. If the Invoice is not received within said 60- and 30-day periods, or is not acceptable in form or content once received, Red Iron has the right, without notice to Seller or its affiliate, as applicable, to cancel the Approval related to said Invoice. Prior to funding any Approval, Red Iron has the right to cancel said Approval upon oral or written notice (provided, however, that oral notice be promptly confirmed in writing) to Seller or its affiliate, as applicable, should Dealer or Distributor be in default of any of its obligations to Red Iron and provided that Seller or its affiliate, as applicable, has not shipped Inventory in reliance on Red Iron’s Approval. Advances on Invoices and Approvals for such advances issued by Red Iron as provided hereunder shall constitute an acceptance of the terms and conditions hereof by Seller (for itself or on behalf of its Closing affiliate, as applicable) and Red Iron as to each such advance, and no other act or notice shall be required on the part of Red Iron or Seller (or its affiliate, as applicable) to entitle such advances and Approvals to the benefits of this Agreement. Red Iron may deduct, set-off, withhold and/or apply any sums from payments due to Seller (either on behalf of itself or its affiliate, as applicable) from Red Iron under this Agreement any sums or payments due to Red Iron from Seller and/or its affiliates in respect of any advance to be made by Red Iron against any Invoice. Seller and Red Iron may from time to time enter into written agreements for any Seller sponsored special financing program for Dealers and/or Distributors.
(b) If Seller or an affiliate of Seller delivers to Red Iron an original Invoice that is the subject of open account financing of inventory and related items and the amount of such Invoice is within (i) pre-established credit limits applicable to the Dealer and/or Distributor related to such Invoice and (ii) unsecured credit limits established by Red Iron from time to time (which shall not be less than $4,000,000 in the aggregate at any time unless otherwise agreed by the parties hereto), then Red Iron shall, from time to time in its commercially reasonable discretion consistent with the credit and operational policies of Red Iron, make an advance against such Dealer. CAF shall notify ABT if it terminates any such Dealer Invoice under the provisions terms of its Closing Agreement with such Dealerthis Agreement. Notwithstanding Subject to the foregoing, CAF if Red Iron receives the Invoice within thirty (30) days of the ship date referred to in the Invoice, Red Iron shall not pay Seller or its affiliate, as applicable, the amount of the Invoice, subject to the terms of the financing program then in effect between Seller and Red Iron. Advances on Invoices issued by Red Iron as provided hereunder shall constitute an acceptance of the terms and conditions hereof by Seller (for itself or on behalf of its affiliate, as applicable) and Red Iron as to each such advance, and no other act or notice shall be obligated required on the part of Red Iron or Seller (or its affiliate, as applicable) to enter into a Closing entitle such advances to the benefits of this Agreement. Red Iron may deduct, set-off, withhold and/or apply any sums from payments due to Seller (either on behalf of itself or its affiliate, as applicable) from Red Iron under this Agreement any sums or otherwise do business with payments due to Red Iron from Seller and/or its affiliates in respect of any Dealer which CAF has determined it will not do advance to be made by Red Iron against any businessInvoice.
(c1) Except as specified to the contrary in this Agreement, ABTAC If (i) shall Seller or an affiliate of Seller requests an Approval or sends to Red Iron an Invoice or requests that Red Iron accept a group of Invoices attributable to a single Dealer or Distributor, which would otherwise be subject to Section 2(a) above but for the fact that the Dealer and/or Distributor related to such Approval or Invoice is not be a party to, eligible for floorplan inventory financing in accordance with the credit and operational policies of Red Iron or (ii) shall not have Seller or an affiliate of Seller delivers to Red Iron an original Invoice or requests that Red Iron accept a group of Invoices attributable to a single Dealer or Distributor, which would otherwise be subject to Section 2(b) above but for the fact that such Invoice fails to meet the requirements of Section 2(b) (in either case whether as part of an individual request or group request a “Non-conforming Invoice”), then, provided such request indicates that any obligations such Non-conforming Invoice is subject to the Non-conforming Invoice Recourse Obligation set forth below, Red Iron shall, from time to time in its commercially reasonable discretion, issue such Approval and advance against such Non-conforming Invoice, all under the terms of this Agreement including the applicable terms set forth in Section 2(a) and 2(b) above but subject to the Non-conforming Invoice Recourse Obligation. Seller hereby requests that Red Iron accept all Invoices which would otherwise be subject to Section 2(a) or Section 2(b) with respect toto the Dealers/Distributors listed on Schedule 1 attached hereto and agrees that all such Invoices are subject to the Non-conforming Invoice Recourse Obligation.
(2) If a Dealer or Distributor shall default in the payment of any Non-conforming Invoice, after the expiration of any cure period applicable to such Non-conforming Invoice and (iii) upon demand by Red Iron which shall set forth in reasonable detail the nature of such default, Seller shall repurchase such Non-conforming Invoice from Red Iron as provided below, which repurchase, subject to Seller’s performance thereof, shall be held harmless Red Iron’s sole and exclusive remedy with respect to such defaulted Non-conforming Invoice (such repurchase obligation being referred to herein as the “Non-conforming Invoice Recourse Obligation”). In connection with such repurchase, Seller shall pay to Red Iron in immediately available funds not later than five (5) business days after Seller’s receipt from Red Iron of demand for the repurchase of such Non-conforming Invoice, in payment for such repurchase, an amount equal to the outstanding balance (including accrued but unpaid interest) remaining unpaid under such Non-conforming Invoice. The payment of such amount in immediately available funds shall otherwise be considered payment in full of such Non-conforming Invoice.
(3) Upon the payment required to be made to Red Iron as provided in clause (c)(2), Red Iron shall automatically and without further action be deemed to transfer, assign, set over and otherwise convey to Seller or its designee, without recourse, representation or warranty, except as set forth in the immediately following sentence, all the right, title and interest of Red Iron in and to the applicable Non-conforming Invoice and any related Wholesale Instrument, all moneys due or to become due and all collateral security with respect thereto and all amounts received with respect thereto and all proceeds thereof. Such transfer shall be free and clear of any liens created by each Dealer and CAF or through Red Iron. Any collections received by Red Iron after the date of transfer with respect to any losses Non-conforming Invoices transferred to Seller or liabilities arising its designee pursuant to this clause (c)(3), as well as any amounts received by Red Iron after the date of transfer from or in connection with, the Closing Agreements. If for any reason the Closing Agreement between a Dealer and CAF is terminated, then CAF an account debtor with respect thereto shall be under no obligation deemed held by Red Iron in trust and as fiduciary for Seller or its designee and Red Iron shall pay the same over to approve Seller or its designee promptly upon receipt. Red Iron will irrevocably instruct any Application received from Customers account debtor with respect to such repurchased Non-conforming Invoice to make all payments on account thereof after such assignment to Seller or its designee. Red Iron shall execute such documents and instruments of transfer or assignment and take such other actions as shall reasonably be requested by Seller or its designee to effect the conveyance of such Dealer.
(d) CAF agrees to offer a buyNon-rate for each approved Customer credit application at terms no less favorable than those offered to the applicable Dealer by CAF. For each Customer credit application approved, CAF agrees to inform ABTAC of the buy-rate offered to the applicable Dealer for RFTs. On a monthly basis, the buy rate for RFTs purchased from Dealers by CAF that month shall average no higher than 210 basis points over the 18-month treasury (the "Base Range"). CAF may, upon 90 days written notice (a "Base Range Notice") to ABTAC, raise the Base Range. Subject to the ability of CAF to handle the systems issues involved, as reasonably determined by CAF, and conforming Invoice pursuant to a methodology to be agreed upon by CAF and ABTAC, from time to time, upon ten this clause (10) business days written request from ABTAC, CAF shall raise the buy rate offered on RFTs, up to a limit 50bps over the life of the term of this Agreement, which raise shall be paid to ABTAC in the form of an increase in the fees paid to ABTAC by CAF pursuant to Section 6. Such increase in fees shall be determined by reference to the present valuec)(3).
Appears in 1 contract
Samples: Repurchase Agreement (Toro Co)
Financing Program. (a) ABTAC shall cause to be included on the ABT Website an application for credit containing requests for the information designated by CAF as set forth on Exhibit A hereto (the "Application"). The Application shall request the information specified by CAF and shall be in a form reasonably satisfactory to CAF. CAF may request changes from time to time in the information solicited by the Application and, provided the requests are made [*] Confidential Treatment has been requested for certain portions of this exhibit. in writing and with reasonable notice,, ABTAC shall use its best efforts to promptly accommodate such requests; provided, however, that CAF shall use its -------- ------- best efforts not to request changes to the information requested by, or form of, the Application (unless such changes are required by law) more often than once in any three-month period; provided, further, if such changes are required by -------- ------- law, and CAF gives ABTAC 30 days notice, ABTAC shall honor such requested change within such thirty (30) day period.
(b) Unless it already has done so, CAF will enter into its standard dealer agreement ("Closing Agreement") with each seller of Vehicles in the United States and the District of Columbia (the "Territory") who has executed an on-line purchase referral agreement with ABT (each, a "Dealer," and together the "Dealers"). The Closing Agreement shall contain customary terms no less favorable to the Dealers than CAF's customary agreements in use with its other financing programs and shall govern the terms upon which the Dealer and CAF will close vehicle financing transactions referred through this Agreement. Upon execution of a Closing Agreement, CAF shall assign such Dealer an identifying number (the "Dealer ID") and inform ABTAC of such number. CAF may terminate its relationship with any Dealer at any time for any reason, subject to the terms and conditions of its Closing Agreement with such Dealer. CAF shall notify ABT if it terminates any such Dealer under the provisions of its Closing Agreement with such Dealer. Notwithstanding the foregoing, CAF shall not be obligated to enter into a Closing Agreement or otherwise do business with any Dealer which CAF has determined it will not do any business.
(c) Except as specified to the contrary in this Agreement, ABTAC (i) shall not be a party to, (ii) shall not have any obligations with respect to, and (iii) shall be held harmless by each Dealer and CAF with respect to any losses or liabilities arising from or in connection with, the Closing Agreements. If for any reason the Closing Agreement between a Dealer and CAF is terminated, then CAF shall be under no obligation to approve any Application received from Customers of such Dealer.
(d) CAF agrees to offer a buy-rate for each approved Customer credit application at terms no less favorable than those offered to the applicable Dealer by CAF. For each Customer credit application approved, CAF agrees to inform ABTAC of the buy-rate offered to the applicable Dealer for RFTs. On a monthly basis, the buy rate for RFTs purchased from Dealers by CAF that month shall average no higher than 210 basis points over the 18-month treasury [*] (the "Base Range"). CAF may, upon 90 days written notice (a "Base Range Notice") to ABTAC, raise the Base Range. Subject to the ability of CAF to handle the systems issues involved, as reasonably determined by CAF, and pursuant to a methodology to be agreed upon by CAF and ABTAC, from time to time, upon ten (10) business days written request from ABTAC, CAF shall raise the buy rate offered on RFTs, up to a limit 50bps [*] over the life of the term of this Agreement, which raise shall be paid to ABTAC in the form of an increase in the fees paid to ABTAC by CAF pursuant to Section 6. Such increase in fees shall be determined by reference to the present valuevalue of such rate raise determined in accordance with the [*] Confidential Treatment Requested assumptions employed by CAF for its valuation of excess spread on the portion of the excess spread CAF retains on such loan.
(e) For so long as the "Exclusivity Conditions" (as defined below) are met, CAF shall not enter into any agreement or arrangement similar to this Agreement with any other Internet automobile buying, purchase assistance, or automotive pricing information program or service, whereby the Internet program or service provider receives or solicits credit information from its customers to finance the purchase of new motor vehicles only (excluding recreational vehicles), forwards that information for credit review to CAF and CAF purchases that customer's retail installment sales contract originated by an automobile dealer that has executed an on-line purchase or financing referral agreement or similar agreement with the Internet program or service provider; provided, -------- however, that (i) CAF's rights to and/or use of IBM's Auto Loan Exchange System ------- for indirect dealer financing shall not violate the provisions of this Section 1(e); and (ii) CAF, any affiliate of CAF or any person controlled by or under common control with CAF may, after the date hereof, acquire control (through merger, acquisition, consolidation or purchase of all or substantially all of the assets) of any corporation or other entity (other than a corporation or entity which has as its primary line of business services substantially similar to ABT and ABTAC) which at the time of such acquisition is engaged in a business or service substantially similar to that contemplated by this Agreement, so that such corporation or entity (including the surviving or continuing entity in any acquisition effective on a merger, consolidation or purchase of assets) shall not violate the provisions of this Section 1(e). CAF shall not use or participate in the use of the ABTAC Marks (as defined in Schedule 2) in conjunction with the offering or making of any automobile finance product or product related thereto on the Internet.
Appears in 1 contract
Samples: Financing Inquiry Referral Agreement (Auto by Tel Corp)
Financing Program. (a) ABTAC shall cause to be included on the ABT Website an application for credit containing requests for the information designated by CAF as set forth on Exhibit A hereto (the "Application"). The Application shall request the information specified by CAF PROVIDENT and shall be in a form reasonably satisfactory to CAFPROVIDENT. CAF PROVIDENT may request changes from time to time in the information solicited by the Application and, provided the such requests are made in writing and with reasonable notice,, ABTAC shall use its best efforts to promptly accommodate such requests; provided however, that PROVIDENT shall use its best efforts not to request changes to the information requested by, or form of, the Application (unless such changes are required by law) more often than once in any three-month period; provided further, that if such changes are required by law and PROVIDENT gives ABTAC thirty (30) days notice, ABTAC shall honor such requested change within such thirty (30) day period.
(b) Unless it already has done so, CAF PROVIDENT will attempt to enter into its standard dealer agreement ("Closing Dealer Agreement") with each seller of Vehicles Dealer in the United States and the District of Columbia their designated area as set forth in Schedule A (the "Territory") who has executed an on-line purchase referral agreement with ABT [*] Confidential Treatment Requested (each, a "Dealer," and together the "Dealers"). The Closing Dealer Agreement shall contain customary terms no less favorable to the Dealers than CAFPROVIDENT's customary Dealer agreements in use with its other Vehicle Lease financing programs and shall govern the terms upon which the Dealer and CAF PROVIDENT will close vehicle Vehicle Lease financing transactions referred through this Agreement. Upon execution of a Closing Dealer Agreement, CAF PROVIDENT shall assign such Dealer an identifying number (the "Dealer ID") and inform ABTAC of such number. CAF PROVIDENT may terminate its relationship with any Dealer at any time for any reasontime, subject to the terms and conditions of its Closing Dealer Agreement with such Dealer. CAF PROVIDENT shall notify ABT ABTAC if it terminates any such Dealer under the provisions of its Closing Dealer Agreement with such Dealer. Notwithstanding the foregoing, CAF PROVIDENT shall not be obligated to enter into a Closing Dealer Agreement or otherwise do business with any Dealer Dealer, which CAF PROVIDENT has determined in good faith it will not do any business.
(c) Except as specified to the contrary in this Agreement, ABTAC (i) shall not be a party to, (ii) shall not have any obligations with respect to, and (iii) shall be held harmless by each Dealer and CAF PROVIDENT with respect to any losses or liabilities arising from or in connection with, the Closing Dealer Agreements. If for any reason the Closing Dealer Agreement between a Dealer and CAF PROVIDENT is terminated, then CAF PROVIDENT shall be under no obligation to approve any Application received from Customers of such Dealer.
(d) CAF agrees to offer a buy-rate for each approved Customer credit application at terms no less favorable than those offered to the applicable Dealer by CAF. For each Customer credit application approved, CAF PROVIDENT agrees to inform ABTAC of the buy-rate lease terms offered to the applicable Customer.
(e) PROVIDENT agrees to offer competitive lease terms and conditions to Dealers who have executed a Dealer Agreement. Competitive shall mean that PROVIDENT will offer monthly payments on comparable leases, and to comparable lessees with comparable credit qualifications within [*] per month of the least expensive lessor located within the Territory. These terms will be extended to Dealers representing [*] of the vehicles sold in the Territory. For purposes of the [*] and the [*] test, lease terms offered by manufacturers or their representatives shall be excluded. The [*] test shall be measured utilizing "LeaseLink," an automotive leasing software provider, or other comparable information supplier if LeaseLink no longer provides such data.
(f) For so long as the Exclusivity Conditions (as defined below) are met, PROVIDENT shall not enter into any agreement or arrangement similar to this Agreement with any other Internet automobile leasing program, or service, whereby the Internet program or service provider receives or solicits credit information from its customers to finance the lease of vehicles (excluding recreational vehicles), forwards that information for RFTs. On a monthly basiscredit review to PROVIDENT and PROVIDENT purchases that customer's lease contract originated by an automobile dealer that has executed an on-line purchase or financing referral agreement or similar agreement with the Internet program or service provider; provided, however, that (i) PROVIDENT's rights to and/or use of CMSI's Auto Loan Exchange System, credit connection, or other similar system for indirect dealer lease financing; shall not violate the buy rate for RFTs purchased from Dealers provisions of this Section 1(f); and (ii) PROVIDENT, any affiliate of PROVIDENT, or any person controlled by CAF that month shall average no higher than 210 basis points over the 18-month treasury or under common control (the "Base Range"). CAF including partnership and joint ventures) with PROVIDENT may, upon 90 days written notice (a "Base Range Notice") to ABTACafter the date hereof, raise the Base Range. Subject to the ability acquire control through merger, acquisition, consolidation or purchase of CAF to handle the systems issues involved, as reasonably determined by CAF, and pursuant to a methodology to be agreed upon by CAF and ABTAC, from time to time, upon ten (10) business days written request from ABTAC, CAF shall raise the buy rate offered on RFTs, up to a limit 50bps over the life all or substantially all of the term assets or other arrangements of any corporation or other entity shall not violate the provisions of this Section 1(f): and (iii) PROVIDENT shall not use or participate in the use of the ABTAC Marks or the ABT Marks in conjunction with the offering or making of any automobile finance product or product related thereto on the Internet.
(g) For purposes of this Agreement, which raise the term "Exclusivity Conditions" shall be paid mean, as it relates to ABTAC in ABTAC, the form occurrence of an increase in the fees paid to ABTAC by CAF pursuant to Section 6. Such increase in fees shall be determined by reference to the present valuefollowing:
Appears in 1 contract
Samples: Financing Inquiry Referral Agreement (Autobytel Com Inc)
Financing Program. (a) ABTAC shall cause to be included on the ABT Website an application for credit containing requests for the information designated by CAF as set forth on Exhibit A hereto (the "Application"). The Application shall request the information specified by CAF and shall be in a form reasonably satisfactory to CAF. CAF may request changes from time to time in the information solicited by the Application and, provided the requests are made in writing and with reasonable notice,, ABTAC shall use its best efforts to promptly accommodate such requests; provided, however, that CAF shall use its best efforts not to request changes to the information requested by, or form of, the Application (unless such changes are required by law) more often than once in any three-month period; provided, further, if such changes are required by law, and CAF gives ABTAC 30 days notice, ABTAC shall honor such requested change within such thirty (30) day period.
(b) Unless it already has done so, CAF will enter into its standard dealer agreement ("Closing Agreement") with each seller of Vehicles in the United States and the District of Columbia (the "Territory") who has executed an on-line purchase referral agreement with ABT (each, a "Dealer," and together the "Dealers"). The Closing Agreement shall contain customary terms no less favorable to the Dealers than CAF's customary agreements in use with its other financing programs and shall govern the terms upon which the Dealer and CAF will close vehicle financing transactions referred through this Agreement. Upon execution of a Closing Agreement, CAF shall assign such Dealer an identifying number (the "Dealer ID") and inform ABTAC of such number. CAF may terminate its relationship with any Dealer at any time for any reason, subject to the terms and conditions of its Closing Agreement with such Dealer. CAF shall notify ABT if it terminates any such Dealer under the provisions of its Closing Agreement with such Dealer. Notwithstanding the foregoing, CAF shall not be obligated to enter into a Closing Agreement or otherwise do business with any Dealer which CAF has determined it will not do any business.
(c) Except as specified to the contrary in this Agreement, ABTAC (i) shall not be a party to, (ii) shall not have any obligations with respect to, and (iii) shall be held harmless by each Dealer and CAF with respect to any losses or liabilities arising from or in connection with, the Closing Agreements. If for any reason the Closing Agreement between a Dealer and CAF is terminated, then CAF shall be under no obligation to approve any Application received from Customers of such Dealer.
(d) CAF agrees to offer a buy-rate for each approved Customer credit application at terms no less favorable than those offered to the applicable Dealer by CAF. For each Customer credit application approved, CAF agrees to inform ABTAC of the buy-rate offered to the applicable Dealer for RFTs. On a monthly basis, the buy rate for RFTs purchased from Dealers by CAF that month shall average no higher than 210 basis points over the 18-month treasury [*] (the "Base Range"). CAF may, upon 90 days written notice (a "Base Range Notice") to ABTAC, raise the Base Range. Subject to the ability of CAF to handle the systems issues involved, as reasonably determined by CAF, and pursuant to a methodology to be agreed upon by CAF and ABTAC, from time to time, upon ten (10) business days written request from ABTAC, CAF shall raise the buy rate offered on RFTs, up to a limit 50bps [*] over the life of the term of this Agreement, which raise shall be paid to ABTAC in the form of an increase in the fees paid to ABTAC by CAF pursuant to Section 6. Such increase in fees shall be determined by reference to the present value
Appears in 1 contract
Samples: Financing Inquiry Referral Agreement (Autobytel Com Inc)
Financing Program. (a) ABTAC shall cause to be included on the ABT Website an application for credit containing requests for the information designated by CAF as set forth on Exhibit A hereto (the "Application"). The Application shall request the information specified by CAF and shall be in a form reasonably satisfactory to CAF. CAF may request changes from time to time in the information solicited by the Application and, provided the requests are made [*] Confidential Treatment has been requested for certain portions of this exhibit. in writing and with reasonable notice,, ABTAC shall use its best efforts to promptly accommodate such requests; provided, however, that CAF shall use its -------- ------- best efforts not to request changes to the information requested by, or form of, the Application (unless such changes are required by law) more often than once in any three-month period; provided, further, if such changes are required by -------- ------- law, and CAF gives ABTAC 30 days notice, ABTAC shall honor such requested change within such thirty (30) day period.
(b) Unless it already has done so, CAF will enter into its standard dealer agreement ("Closing Agreement") with each seller of Vehicles in the United States and the District of Columbia (the "Territory") who has executed an on-line purchase referral agreement with ABT (each, a "Dealer," and together the "Dealers"). The Closing Agreement shall contain customary terms no less favorable to the Dealers than CAF's customary agreements in use with its other financing programs and shall govern the terms upon which the Dealer and CAF will close vehicle financing transactions referred through this Agreement. Upon execution of a Closing Agreement, CAF shall assign such Dealer an identifying number (the "Dealer ID") and inform ABTAC of such number. CAF may terminate its relationship with any Dealer at any time for any reason, subject to the terms and conditions of its Closing Agreement with such Dealer. CAF shall notify ABT if it terminates any such Dealer under the provisions of its Closing Agreement with such Dealer. Notwithstanding the foregoing, CAF shall not be obligated to enter into a Closing Agreement or otherwise do business with any Dealer which CAF has determined it will not do any business.
(c) Except as specified to the contrary in this Agreement, ABTAC (i) shall not be a party to, (ii) shall not have any obligations with respect to, and (iii) shall be held harmless by each Dealer and CAF with respect to any losses or liabilities arising from or in connection with, the Closing Agreements. If for any reason the Closing Agreement between a Dealer and CAF is terminated, then CAF shall be under no obligation to approve any Application received from Customers of such Dealer.
(d) CAF agrees to offer a buy-rate for each approved Customer credit application at terms no less favorable than those offered to the applicable Dealer by CAF. For each Customer credit application approved, CAF agrees to inform ABTAC of the buy-rate offered to the applicable Dealer for RFTs. On a monthly basis, the buy rate for RFTs purchased from Dealers by CAF that month shall average no higher than 210 basis points over the 18-month treasury [*] (the "Base Range"). CAF may, upon 90 days written notice (a "Base Range Notice") to ABTAC, raise the Base Range. Subject to the ability of CAF to handle the systems issues involved, as reasonably determined by CAF, and pursuant to a methodology to be agreed upon by CAF and ABTAC, from time to time, upon ten (10) business days written request from ABTAC, CAF shall raise the buy rate offered on RFTs, up to a limit 50bps [*] over the life of the term of this Agreement, which raise shall be paid to ABTAC in the form of an increase in the fees paid to ABTAC by CAF pursuant to Section 6. Such increase in fees shall be determined by reference to the present valuevalue of such rate raise determined in accordance with the [*] Confidential Treatment Requested assumptions employed by CAF for its valuation of excess spread on the portion of the excess spread CAF retains on such loan.
(e) For so long as the "Exclusivity Conditions" (as defined below) are met, CAF shall not enter into any agreement or arrangement similar to this Agreement with any other Internet automobile buying, purchase assistance, or automotive pricing information program or service, whereby the Internet program or service provider receives or solicits credit information from its customers to finance the purchase of new motor vehicles only (excluding recreational vehicles), forwards that information for credit review to CAF and CAF purchases that customer's retail installment sales contract originated by an automobile dealer that has executed an on-line purchase or financing referral agreement or similar agreement with the Internet program or service provider; provided, -------- however, that (i) CAF's rights to and/or use of IBM's Auto Loan Exchange System ------- for indirect dealer financing shall not violate the provisions of this Section 1(e); and (ii) CAF, any affiliate of CAF or any person controlled by or under common control with CAF may, after the date hereof, acquire control (through merger, acquisition, consolidation or purchase of all or substantially all of the assets) of any corporation or other entity (other than a corporation or entity which has as its primary line of business services substantially similar to ABT and ABTAC) which at the time of such acquisition is engaged in a business or service substantially similar to that contemplated by this Agreement, so that such corporation or entity (including the surviving or continuing entity in any acquisition effective on a merger, consolidation or purchase of assets) shall not violate the provisions of this Section 1(e). CAF shall not use or participate in the use of the ABTAC Marks (as defined in Schedule 2) in conjunction with the offering or making of any automobile finance product or product related thereto on the Internet.
Appears in 1 contract
Samples: Financing Inquiry Referral Agreement (Auto by Tel Corp)
Financing Program. (a) ABTAC shall cause If Seller or an affiliate of Seller requests an Approval or sends to be included on Red Iron an Invoice, and the ABT Website an application Dealer and/or Distributor related to such Approval or Invoice is eligible for floorplan inventory financing in accordance with the credit containing requests for the information designated by CAF as set forth on Exhibit A hereto (the "Application"). The Application shall request the information specified by CAF and shall be in a form reasonably satisfactory to CAF. CAF may request changes operational policies of Red Iron, then Red Iron shall, from time to time in the information solicited by the Application andits commercially reasonable discretion consistent with such credit and operational policies, provided the requests are made in writing issue such Approvals and with reasonable notice,
(b) Unless it already has done soadvance against such Invoices, CAF will enter into its standard dealer agreement ("Closing Agreement") with each seller of Vehicles in the United States and the District of Columbia (the "Territory") who has executed an on-line purchase referral agreement with ABT (each, a "Dealer," and together the "Dealers"). The Closing Agreement shall contain customary terms no less favorable to the Dealers than CAF's customary agreements in use with its other financing programs and shall govern all under the terms upon which the Dealer and CAF will close vehicle financing transactions referred through of this Agreement. Upon execution issuance of a Closing Agreementan Approval by Red Iron, CAF Seller shall assign such Dealer (or, as applicable, shall cause its affiliate to) deliver an identifying number original Invoice to Red Iron. Provided Red Iron receives the Invoice within sixty (60) days of the "Dealer ID"date Red Iron issued the Approval and within thirty (30) and inform ABTAC days of such number. CAF may terminate the ship date referred to in the Invoice, Red Iron shall pay Seller or its relationship with any Dealer at any time for any reasonaffiliate, as applicable, the amount of the Invoice, subject to the terms of the financing program then in effect between Seller and Red Iron. If the Invoice is not received within said 60- and 30-day periods, or is not acceptable in form or content once received, Red Iron has the right, without notice to Seller or its affiliate, as applicable, to cancel the Approval related to said Invoice. Prior to funding any Approval, Red Iron has the right to cancel said Approval upon oral or written notice (provided, however, that oral notice be promptly confirmed in writing) to Seller or its affiliate, as applicable, should Dealer or Distributor be in default of any of its obligations to Red Iron and provided that Seller or its affiliate, as applicable, has not shipped Inventory in reliance on Red Iron’s Approval. Advances on Invoices and Approvals for such advances issued by Red Iron as provided hereunder shall constitute an acceptance of the terms and conditions hereof by Seller (for itself or on behalf of its Closing affiliate, as applicable) and Red Iron as to each such advance, and no other act or notice shall be required on the part of Red Iron or Seller (or its affiliate, as applicable) to entitle such advances and Approvals to the benefits of this Agreement. Red Iron may deduct, set-off, withhold and/or apply any sums from payments due to Seller (either on behalf of itself or its affiliate, as applicable) from Red Iron under this Agreement any sums or payments due to Red Iron from Seller and/or its affiliates in respect of any advance to be made by Red Iron against any Invoice. Seller and Red Iron may from time to time enter into written agreements for any Seller sponsored special financing program for Dealers and/or Distributors.
(b) If Seller or an affiliate of Seller delivers to Red Iron an original Invoice that is the subject of open account financing of inventory and related items and the amount of such Invoice is within (i) pre-established credit limits applicable to the Dealer and/or Distributor related to such Invoice and (ii) unsecured credit limits established by Red Iron from time to time (which shall not be less than $4,000,000 in the aggregate at any time unless otherwise agreed by the parties hereto), then Red Iron shall, from time to time in its commercially reasonable discretion consistent with the credit and operational policies of Red Iron, make an advance against such Dealer. CAF shall notify ABT if it terminates any such Dealer Invoice under the provisions terms of its Closing Agreement with such Dealerthis Agreement. Notwithstanding Subject to the foregoing, CAF if Red Iron receives the Invoice within thirty (30) days of the ship date referred to in the Invoice, Red Iron shall not pay Seller or its affiliate, as applicable, the amount of the Invoice, subject to the terms of the financing program then in effect between Seller and Red Iron. Advances on Invoices issued by Red Iron as provided hereunder shall constitute an acceptance of the terms and conditions hereof by Seller (for itself or on behalf of its affiliate, as applicable) and Red Iron as to each such advance, and no other act or notice shall be obligated required on the part of Red Iron or Seller (or its affiliate, as applicable) to enter into a Closing entitle such advances to the benefits of this Agreement. Red Iron may deduct, set-off, withhold and/or apply any sums from payments due to Seller (either on behalf of itself or its affiliate, as applicable) from Red Iron under this Agreement any sums or otherwise do business with payments due to Red Iron from Seller and/or its affiliates in respect of any Dealer which CAF has determined it will not do advance to be made by Red Iron against any businessInvoice.
(c) Except as specified Upon payment to Seller or an affiliate of Seller of the amount of an Invoice pursuant to the contrary in this Agreementterms of the preceding paragraphs (a) or (b), ABTAC (i) Seller or its affiliate, as applicable, shall not be a party todeemed, (ii) shall not without the necessity of any further action, to have transferred, assigned, set over and otherwise conveyed to Red Iron, without recourse except as provided herein, all its right, title and interest in, to and under, such Invoice and any obligations related Wholesale Instrument, any collateral security securing payment thereof and any other credit support together with all monies due or to become due and all amounts received or receivable with respect tothereto, and (iii) including all rights to receive payments thereon from any Dealer and/or Distributor. For accounting purposes, no Seller or affiliate of Seller, as applicable, shall be held harmless account for the transactions contemplated by each Dealer and CAF this Agreement in any manner other than, with respect to any losses or liabilities arising from or the sale of each Invoice, as a true sale and absolute assignment of its full right, title and ownership interest therein to Red Iron. Seller and its affiliates shall also maintain their respective records and books of account in connection with, the Closing Agreements. If for any reason the Closing Agreement between a Dealer and CAF is terminated, then CAF shall be under no obligation manner which clearly reflects each such sale of Invoices to approve any Application received from Customers of such DealerRed Iron.
(d) CAF agrees Seller (on behalf of itself and its affiliates) hereby grants to offer Red Iron a buy-rate limited power of attorney for each approved Customer credit application at terms no less favorable than those offered the sole purpose of endorsing checks, drafts and other instruments received by Red Iron payable to the applicable Dealer order of Seller and its affiliates and relating, in whole or in part, to receivables held by CAF. For each Customer credit application approved, CAF agrees to inform ABTAC of the buy-rate offered to the applicable Dealer for RFTs. On a monthly basis, the buy rate for RFTs purchased from Dealers by CAF that month shall average no higher than 210 basis points over the 18-month treasury (the "Base Range"). CAF may, upon 90 days written notice (a "Base Range Notice") to ABTAC, raise the Base Range. Subject to the ability of CAF to handle the systems issues involved, as reasonably determined by CAF, and pursuant to a methodology to be agreed upon by CAF and ABTAC, from time to time, upon ten (10) business days written request from ABTAC, CAF shall raise the buy rate offered on RFTs, up to a limit 50bps over the life of the term of this Agreement, which raise shall be paid to ABTAC in the form of an increase in the fees paid to ABTAC by CAF pursuant to Section 6. Such increase in fees shall be determined by reference to the present valueRed Iron.
Appears in 1 contract
Samples: Repurchase Agreement (Toro Co)
Financing Program. (aA) ABTAC shall will cause to be included on the ABT Website Website, along with specific identification of GECAFS as a participating lender in form and content reasonably satisfactory to GECAFS, either an application for credit containing requests for the information designated by CAF in a form reasonably satisfactory to GECAFS, substantially as set forth on Exhibit A hereto hereto, or a non-specific credit application soliciting information requested by GECAFS. (the Each such completed application is referred to herein as a "GECAFS Application" and each Customer who completes a GECAFS Application is referred to herein as an "). The Application shall request the information specified by CAF and shall be in a form reasonably satisfactory to CAF. CAF may request changes Applicant.") GECAFS may, from time to time time, request changes in the information solicited by such application and ABTAC will use its best efforts to accommodate such requests. GECAFS will be under no obligation hereunder with respect to any GECAFS Application which does not solicit the Application and, provided the requests are made in writing and with reasonable notice,information requested by GECAFS.
(bB) Unless it already has done so, CAF GECAFS will offer to enter into its standard dealer a contract purchase agreement ("Closing Agreement") with each seller of Vehicles in the continental United States (excluding Alaska and Hawaii) and the District of Columbia (the "TerritoryUnited States") who has executed an on-line purchase request referral agreement with ABT and who otherwise meets GECAFS's standards for such relationships (each, a "Dealer," and together the "DealersDealer(s)"). ABTAC will assist GECAFS in securing signed Closing Agreements with Dealers and will provide GECAFS with the address of each Dealer to facilitate this process. The Closing Agreement shall will contain customary terms no less favorable to the Dealers than CAFGECAFS's customary agreements in use with its other financing leasing programs and shall will govern the terms upon which the Dealer and CAF GECAFS will close vehicle financing the Vehicle leasing transactions referred through the subject of this AgreementAgreement (Contracts"). ABTAC agrees, subject to its reasonable business judgment and available resources, to promote its leasing programs to Dealers and to support, assist and cooperate with GECAFS in the marketing of this program, and its proper execution, to Dealers. Upon execution of a Closing Agreement, CAF shall GECAFS will assign such Dealer an identifying number (the "Dealer ID") and inform ABTAC of such number. CAF may terminate its relationship with any Dealer at any time GECAFS will be responsible for any reason, subject to informing Dealers of the terms and conditions nature of its Closing Agreement with such Dealerleasing programs. CAF shall notify ABT if it terminates any such Dealer under ABTAC will be responsible for informing Dealers of the provisions nature of its Closing Agreement with such Dealer. Notwithstanding services and the foregoingdifferences, CAF shall not be obligated to enter into a Closing Agreement or otherwise do business with any Dealer which CAF has determined it will not do any businessif any, between the programs described by GECAFS and the ABTAC programs.
(cC) Except as specified to the contrary in this Agreement, ABTAC (i) shall will not be a party to, (ii) shall not will have any no obligations with respect to, to and (iii) shall will be held harmless by each Dealer and CAF GECAFS with respect to any act or omission by GECAFS which gives rise to any losses or liabilities arising from or in connection with, with the Closing Agreements. If for any reason the Closing Agreement between a Dealer and CAF GECAFS is terminated, then CAF shall GECAFS will be under no obligation to approve any Application application received from Customers customers of such Dealer.
(dD) CAF GECAFS agrees to offer a buy-rate for provide each approved Customer credit application at Applicant lease rates and terms no not less favorable to Applicants than those offered by GECAFS to the applicable Dealer by CAF. For each Customer credit application approvedsimilar customers in its customary lease programs unless ABTAC requests, CAF and GECAFS agrees to inform ABTAC of the buy-rate offered offer, less favorable terms. The standard money factor used to the applicable Dealer for RFTs. On derive a monthly basispayment for any Contract will be the rate factor announced by GECAFS from time to time in its sole discretion as the minimum rate factor acceptable to GECAFS. Upon ten business days' prior written notice, the buy ABTAC may request that GECAFS increase such rate factor, for RFTs such Contracts purchased from Dealers by CAF that month shall average no higher than 210 basis points over the 18-month treasury (the "Base Range"). CAF mayGECAFS and for such period as ABTAC may specify, upon 90 days written notice (by an amount which will result in a "Base Range Notice") remittance to ABTAC, raise in accordance with Section 6 hereof, of a certain sum requested by ABTAC, not to exceed $100 unless otherwise agreed, for each applicable Contract purchased by GECAFS during such period.
(E) Each GECAFS Application received by ABTAC with respect to which GECAFS is competitive will be forwarded to GECAFS for review until such time as the Base Rangevolume targets set forth in Section 1(F) are achieved. Subject As used herein, "competitive" will mean cases in which the Applicant's monthly Contract payment under the standard GECAFS program applicable to such Contracts would be not more than $10 greater than the lowest monthly Contract payment otherwise available to the ability Applicant, all other Contract terms being equal, from any other source of CAF financing with whom ABTAC is then doing business under the same or similar terms as ABTAC's agreement with GECAFS. "Competitiveness" will be determined as accurately as possible in good faith with reference to handle available data. GECAFS and ABTAC each reserves the systems issues involvedright to audit the process by which "competitiveness" is determined. If GECAFS declines to proceed with the transaction as described, GECAFS will return such GECAFS Application to ABTAC for additional information or forwarding to another financing source, as reasonably determined the case may be. If ABTAC requests, GECAFS will cooperate with ABTAC in developing a screening methodology based upon GECAFS's underwriting criteria then in effect which would enable ABTAC to forward to GECAFS only those GECAFS Applications meeting an agreed-upon subset of credit criteria and to forward the remaining applications to other financing sources. Such responsibilities are illustrated by CAFthe Process Map attached hereto as Exhibit B, and pursuant to a methodology to as may be agreed upon by CAF and ABTAC, modified from time to time, . GECAFS and ABTAC have agreed upon ten (10) business days written request from ABTAC, CAF shall raise the buy rate offered on RFTs, up responsibilities of each in developing the tools necessary to a limit 50bps over the life of the term of implement this Process Map and this Agreement, which raise shall be paid to ABTAC in the form of an increase in the fees paid to ABTAC by CAF pursuant to Section 6. Such increase in fees shall be determined by reference to the present value.
Appears in 1 contract
Samples: Marketing and Application Processing Agreement (Autobytel Com Inc)
Financing Program. (a) ABTAC shall cause If Seller or an affiliate of Seller requests an Approval or sends to be included on Red Iron an Invoice, and the ABT Website an application Dealer and/or Distributor related to such Approval or Invoice is eligible for floorplan inventory financing in accordance with the credit containing requests for the information designated by CAF as set forth on Exhibit A hereto (the "Application"). The Application shall request the information specified by CAF and shall be in a form reasonably satisfactory to CAF. CAF may request changes operational policies of Red Iron, then Red Iron shall, from time to time in the information solicited by the Application andits commercially reasonable discretion consistent with such credit and operational policies, provided the requests are made in writing issue such Approvals and with reasonable notice,
(b) Unless it already has done soadvance against such Invoices, CAF will enter into its standard dealer agreement ("Closing Agreement") with each seller of Vehicles in the United States and the District of Columbia (the "Territory") who has executed an on-line purchase referral agreement with ABT (each, a "Dealer," and together the "Dealers"). The Closing Agreement shall contain customary terms no less favorable to the Dealers than CAF's customary agreements in use with its other financing programs and shall govern all under the terms upon which the Dealer and CAF will close vehicle financing transactions referred through of this Agreement. Upon execution issuance of a Closing Agreementan Approval by Red Iron, CAF Seller shall assign such Dealer (or, as applicable, shall cause its affiliate to) deliver an identifying number original Invoice to Red Iron. Provided Red Iron receives the Invoice within sixty (60) days of the "Dealer ID"date Red Iron issued the Approval and within thirty (30) and inform ABTAC days of such number. CAF may terminate the ship date referred to in the Invoice, Red Iron shall pay Seller or its relationship with any Dealer at any time for any reasonaffiliate, as applicable, the amount of the Invoice, subject to the terms of the financing program then in effect between Seller and Red Iron. If the Invoice is not received within said 60- and 30-day periods, or is not acceptable in form or content once received, Red Iron has the right, without notice to Seller or its affiliate, as applicable, to cancel the Approval related to said Invoice. Prior to funding any Approval, Red Iron has the right to cancel said Approval upon oral or written notice (provided, however, that oral notice be promptly confirmed in writing) to Seller or its affiliate, as applicable, should Dealer or Distributor be in default of any of its obligations to Red Iron and provided that Seller or its affiliate, as applicable, has not shipped Inventory in reliance on Red Iron’s Approval. Advances on Invoices and Approvals for such advances issued by Red Iron as provided hereunder shall constitute an acceptance of the terms and conditions hereof by Seller (for itself or on behalf of its Closing affiliate, as applicable) and Red Iron as to each such advance, and no other act or notice shall be required on the part of Red Iron or Seller (or its affiliate, as applicable) to entitle such advances and Approvals to the benefits of this Agreement. Red Iron may deduct, set-off, withhold and/or apply any sums from payments due to Seller (either on behalf of itself or its affiliate, as applicable) from Red Iron under this Agreement any sums or payments due to Red Iron from Seller and/or its affiliates in respect of any advance to be made by Red Iron against any Invoice. Seller and Red Iron may from time to time enter into written agreements for any Seller sponsored special financing program for Dealers and/or Distributors.
(b) If Seller or an affiliate of Seller delivers to Red Iron an original Invoice that is the subject of open account financing of inventory and related items and the amount of such Invoice is within (i) pre-established credit limits applicable to the Dealer and/or Distributor related to such Invoice and (ii) unsecured credit limits established by Red Iron from time to time (which shall not be less than $4,000,000 in the aggregate at any time unless otherwise agreed by the parties hereto), then Red Iron shall, from time to time in its commercially reasonable discretion consistent with the credit and operational policies of Red Iron, make an advance against such Invoice under the terms of this Agreement. Subject to the foregoing, if Red Iron receives the Invoice within thirty (30) days of the ship date referred to in the Invoice, Red Iron shall pay Seller or its affiliate, as applicable, the amount of the Invoice, subject to the terms of the financing program then in effect between Seller and Red Iron. Advances on Invoices issued by Red Iron as provided hereunder shall constitute an acceptance of the terms and conditions hereof by Seller (for itself or on behalf of its affiliate, as applicable) and Red Iron as to each such advance, and no other act or notice shall be required on the part of Red Iron or Seller (or its affiliate, as applicable) to entitle such advances to the benefits of this Agreement. Red Iron may deduct, set-off, withhold and/or apply any sums from payments due to Seller (either on behalf of itself or its affiliate, as applicable) from Red Iron under this Agreement any sums or payments due to Red Iron from Seller and/or its affiliates in respect of any advance to be made by Red Iron against any Invoice.
(c) If (i) Seller or an affiliate of Seller requests an Approval or sends to Red Iron an Invoice or requests that Red Iron accept a group of Invoices attributable to a single Dealer or Distributor, which would otherwise be subject to Section 2(a) above but for the fact that the Dealer and/or Distributor related to such Approval or Invoice is not eligible for floorplan inventory financing in accordance with the credit and operational policies of Red Iron or (ii) Seller or an affiliate of Seller delivers to Red Iron an original Invoice or requests that Red Iron accept a group of Invoices attributable to a single Dealer or Distributor, which would otherwise be subject to Section 2(b) above but for the fact that such Invoice fails to meet the requirements of Section 2(b) (in either case whether as part of an individual request or group request a “Non-conforming Invoice”), then, provided such request indicates that any such Non-conforming Invoice is subject to the Recourse Obligation set forth below, Red Iron shall, from time to time in its commercially reasonable discretion, issue such Approval and advance against such Non-conforming Invoice, all under the terms of this Agreement including the applicable terms set forth in Section 2(a) and 2(b) above but subject to the Recourse Obligation. Seller hereby requests that Red Iron accept all Invoices which would otherwise be subject to Section 2(a) or Section 2(b) with respect to the Dealers/Distributors listed on Schedule 1 attached hereto and agrees that all such Invoices are subject to the Recourse Obligation. If a Dealer or Distributor shall default in the payment of any Non-conforming Invoice, after the expiration of any cure period applicable to such Non-conforming Invoice and upon demand by Red Iron which shall set forth in reasonable detail the nature of such default, Seller shall repurchase such Non-conforming Invoice from Red Iron as provided below, which repurchase, subject to Seller’s performance thereof, shall be Red Iron’s sole and exclusive remedy with respect to such defaulted Non-conforming Invoice (such repurchase obligation being referred to herein as the “Recourse Obligation”). In connection with such Dealerrepurchase, Seller or Toro, as appropriate, shall pay to Red Iron in immediately available funds not later than five (5) Business Days after Seller’s receipt from Red Iron of demand for the repurchase of such Non-conforming Invoice, in payment for such repurchase, an amount equal to the outstanding balance (including accrued but unpaid interest) remaining unpaid under such Non-conforming Invoice. CAF The payment of such amount in immediately available funds shall notify ABT if it terminates otherwise be considered payment in full of such Non-conforming Invoice. Upon the payment required to be made to Red Iron as provided in this Section 2(c), Red Iron shall automatically and without further action be deemed to transfer, assign, set over and otherwise convey to Seller or its designee, without recourse, representation or warranty, except as set forth in the immediately following sentence, all the right, title and interest of Red Iron in and to the applicable Non-conforming Invoice, all moneys due or to become due and all collateral security with respect thereto and all amounts received with respect thereto and all proceeds thereof. Such transfer shall be free and clear of any liens created by or through Red Iron. Any collections received by Red Iron after the date of transfer with respect to any Non-conforming Invoices transferred to Seller or its designee pursuant to this Section 2(c), as well as any amounts received by Red Iron after the date of transfer from an account debtor with respect thereto shall be deemed held by Red Iron in trust and as fiduciary for Seller or its designee and Red Iron shall pay the same over to Seller or its designee promptly upon receipt. Red Iron will irrevocably instruct any account debtor with respect to such Dealer repurchased Non- conforming Invoice to make all payments on account thereof after such assignment to Seller or its designee. Red Iron shall execute such documents and instruments of transfer or assignment and take such other actions as shall reasonably be requested by Seller or its designee to effect the conveyance of such Non-conforming Invoice pursuant to this Section 2(c). Red Iron’s rights under this paragraph with regard to Non-conforming Invoices are in lieu of Red Iron’s rights under the provisions of its Closing Sections 3(a) and 3(b) of this Agreement with such Dealerand are not subject to the limitation set forth in Section 4(a) of this Agreement. Notwithstanding the foregoing, CAF if Red Iron notifies Seller, as a result of its own determination or in response to a request from Seller, that due to changed circumstances any Non-conforming Invoice or any group of Non-conforming Invoices attributable to a single Dealer or Distributor sold to Red Iron pursuant to this Section 2(c) is no longer subject to any condition requiring that it or they be treated as Non-conforming Invoice(s) such that it or they would qualify for sale pursuant to either Section 2(a) or 2(b) above, the subject Invoice(s) shall not no longer be obligated to enter into a Closing Agreement or otherwise do business with any Dealer which CAF has determined it will not do any business.
(cconsidered as Non-conforming Invoice(s) Except as specified and Seller shall no longer be subject to the contrary in Recourse Obligation with respect thereto; provided, however, that such Invoice shall be subject to the provisions of Section 3(a), 3(b) and 4(a) of this Agreement. Red Iron agrees to respond to any request from Seller made pursuant to the preceding sentence, ABTAC which request shall specify with reasonable detail the basis for such request, indicating Red Iron’s acceptance of such request or rejection of such request and the reason for such rejection, in writing within [five (i5) shall not Business Days] after Red Iron’s receipt of such request from Seller. At such time as all Invoices due from any of the Dealers/Distributors listed on Schedule 1 attached hereto are determined in accordance with the foregoing procedure no longer to be a party toNon-conforming Invoices, (ii) shall not have any obligations with respect to, and (iii) such Schedule 1 shall be held harmless by each amended to delete reference to such Dealer/Distributor. Likewise, at such time as Seller requests that Red Iron accept a group of Invoices attributable to a single Dealer and CAF or Distributor as Non-conforming Invoices in accordance with respect to any losses or liabilities arising from or in connection withthe provisions of this Section 2(c), the Closing Agreements. If for any reason the Closing Agreement between a Dealer and CAF is terminated, then CAF such Schedule 1 shall be under no obligation amended to approve any Application received from Customers of add a reference to such Dealer/Distributor.
(d) CAF agrees Upon payment to offer a buy-rate for each approved Customer credit application at terms no less favorable than those offered Seller or an affiliate of Seller of the amount of an Invoice pursuant to the applicable terms of the preceding paragraphs (a), (b)or (c), Seller or its affiliate, as applicable, shall be deemed, without the necessity of any further action, to have transferred, assigned, set over and otherwise conveyed to Red Iron, without recourse except as provided herein, all its right, title and interest in, to and under, such Invoice and any related Wholesale Instrument, any collateral security securing payment thereof and any other credit support together with all monies due or to become due and all amounts received or receivable with respect thereto, including all rights to receive payments thereon from any Dealer by CAFand/or Distributor. For each Customer credit application approvedaccounting purposes, CAF agrees to inform ABTAC no Seller or affiliate of Seller, as applicable, shall account for the buy-rate offered transactions contemplated by this Agreement in any manner other than, with respect to the applicable Dealer sale of each Invoice, as a true sale and absolute assignment of its full right, title and ownership interest therein to Red Iron. Seller and its affiliates shall also maintain their respective records and books of account in a manner which clearly reflects each such sale of Invoices to Red Iron.
(e) Seller (on behalf of itself and its affiliates) hereby grants to Red Iron a limited power of attorney for RFTs. On a monthly basisthe sole purpose of endorsing checks, the buy rate for RFTs purchased from Dealers drafts and other instruments received by CAF that month shall average no higher than 210 basis points over the 18-month treasury (the "Base Range"). CAF may, upon 90 days written notice (a "Base Range Notice") to ABTAC, raise the Base Range. Subject Red Iron payable to the ability order of CAF Seller and its affiliates and relating, in whole or in part, to handle the systems issues involved, as reasonably determined receivables held by CAF, and pursuant to a methodology to be agreed upon by CAF and ABTAC, from time to time, upon ten (10) business days written request from ABTAC, CAF shall raise the buy rate offered on RFTs, up to a limit 50bps over the life of the term of this Agreement, which raise shall be paid to ABTAC in the form of an increase in the fees paid to ABTAC by CAF pursuant to Section 6. Such increase in fees shall be determined by reference to the present valueRed Iron.
Appears in 1 contract
Samples: Repurchase Agreement (Toro Co)
