GATEWAY CONSUMER FINANCE CONTRACTS PROGRAM
This Gateway Consumer Finance Contacts Program Agreement ("Agreement)
is made effective as of January 6, 2000, ("Effective Date") by and between
T.A.C. Technology Finance Corp. ("TAC"), a Florida corporation which is a one
hundred percent owned specialty purpose corporation of Travelers Acceptance
Corporation, Travelers Acceptance Corporation is a subsidiary of Finantra
Capital, Inc., a Delaware corporation ("Finantra") and Gateway Companies, Inc.,
a Delaware corporation ("Gateway").
RECITALS:
A. The parties desire to enter into this Agreement under which TAC will
provide financing under consumer finance contracts generated as a result of
product sold by Gateway on the terms and conditions set forth in this Agreement.
B. The parties intend that TAC will provide financing under consumer
finance contracts to Gateway's customers to permit customers to purchase
products from Gateway. Except as otherwise provided herein, the parties do not
intend to permit TAC to solicit Gateway's customers for any products or services
other than the products specified in this Agreement (as it may be amended from
time to time).
NOW THEREFORE in consideration of the terms and conditions stated
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, TAC and Gateway agree as follows:
1. DEFINITIONS
The following words shall have the following meanings when used in this
Agreement.
"Affiliate" means any entity that is owned by, owns or is under common
control with TAC or Gateway or their respective ultimate parents.
"Applicable Law" means collectively or individually any applicable law,
rule, regulation or judicial, governmental or administrative order, decree,
ruling, opinion or interpretation.
"Applicant" means any person who applies for or obtains a Contract or
whom Gateway refers to the Program through any means.
"Application" means separately and collectively an application for a
Contract in electronic form which is received by TAC electronically from
Gateway.
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* Omitted pursuant to a request for confidential treatment and filed
separately with the SEC.
"Authorization" means permission from TAC to enter into a Contract.
"Authorization Center" means the facility designated by TAC as the
facility to provide Authorization to Gateway.
"Business Day" means any day except Saturday or Sunday or a day on
which banks are closed in the State of New York.
"Contract" means a consumer finance contract assigned to TAC to be used
by a Customer to finance the purchase of Goods from Gateway pursuant to the
terms thereof.
"Customer" means a person who is approved for and executes a Contract.
"Customer Agreement" means the agreement or other operative
documents(s), including any amendments, between TAC and each Customer.
"Customer Finance Documents" has the meaning set forth in Section 4.2.
"Sale" means any sale of Goods that Gateway makes to a Customer that is
financed by Customer pursuant to a Contract.
"Credit" means the credit issued to Finantra, TAC, or Travelers
Acceptance Corporation pursuant to Section 3.1 herein.
"Confidential Information" has the meaning given in Section 2.7.
"Credit Slip" means evidence of a credit in a paper or electronic form
for Goods purchased from Gateway.
"Event of Default" means any of the acts, events and omissions
described in Section 6.1.
"Fed Funds Rate" means the average of the high and low "Federal Funds"
interest rates for any day (or the immediately preceding day that is a Business
Day if such day is not a Business Day), as such rate is reported on the
following Business Day in the Money Rates Column of The Wall Street Journal or
as determined in such other mutually acceptable manner as the parties agree if
The Wall Street Journal is no longer reporting such rate.
"Finance Charges" shall mean the total U.S. Dollar amount of all
assessed interest, net of customary adjustments, arising from the application of
the daily periodic rate against the balances subject to finance charges pursuant
to all Contracts. The annual percentage rates ("APR") to be charged on loans
under Contracts shall be as established by TAC. Transaction fees are not
included as Finance Charges so long as not prohibited by law, regulation or
ordinance.
"Goods" means computers, software, accessories, certain warranties, and
other related
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goods and services sold by Gateway or any vendors of Gateway in the ordinary
course of Gateway's business to consumers for individual, family, personal or
household use.
"Payments" has the meaning given in Section 3.1.
"Program" means the program associated with Gateway whereby Contracts
will be generated and assigned to TAC and Sales funded pursuant to the terms of
this Agreement and the Customer Agreement.
"Purchase" means a purchase by a Customer from Gateway or, to the
extent approved by Gateway in writing, any of Gateway's partners or vendors
(other than TAC) of Goods pursuant to a Contract.
"Report Information" has the meaning given in Section 4.9.
"Sales Slip" means evidence of a Sale in paper or electronic form for
Goods purchased from Gateway.
2. ESTABLISHING THE PROGRAM
2.1 Term and Credit Availability. The Program shall commence on January
l, 2000 (the "Commencement Date") and will expire on* unless terminated earlier
pursuant to this Agreement. Finantra has previously provided to Gateway a letter
from Finantra's lenders confirming the existence and sufficiency of Finantra
credit facilities in regard to consumer contracts and will provide reasonable
evidence reasonably satisfactory to Gateway that such credit facilities are
available to fund Contracts assigned to TAC. Finantra agrees to provide upon
reasonable written request evidence of credit availability sufficient to meet
its obligations under this Agreement to Gateway from Gateway from time to time
during the term of this Agreement.
2.2 Program. TAC agrees to accept the assignment of contracts and
finance loans to Gateway's customers during the term of this agreement. The
assignment of contracts and subsequent financing shall be governed by the
customer profile described in 2.4 herein as well as other conditions and
criteria that TAC, in its sole discretion, shall make. Gateway agrees to make
commercially reasonable efforts to assign and TAC agrees to make commercially
reasonable efforts to accept assignment of Contracts of not less than * during
the term of this agreement, * per month beginning with the month of January,
2000.
2.3 Exclusivity. During the term of this Agreement and for *
thereafter, TAC will not acquire consumer finance contracts from any
manufacturer of personal computers utilizing * other than Gateway. During the
term of this Agreement and for ninety (90) days thereafter, Gateway will not
offer a consumer finance program involving consumer finance contracts on
substantially the same terms and conditions and involving substantially the same
credit profile utilizing the eCredit Financial Network, provided that TAC
understands that Gateway has a pre-
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* Omitted pursuant to a request for confidential treatment and filed
separately with the SEC.
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existing revolving credit financing programs* that utilize and nothing in this
Agreement shall limit such programs and further provided that TAC is not in
breach of this Agreement. In the event that this Agreement shall be terminated
by Gateway as a result of a default by TAC pursuant to Section 6.1(5), Gateway
shall have no further obligations hereunder except for any breach of its
warranties set forth in Sections 5.1 and 5.2 and its obligation for indemnity
under Section 7.2 for Losses incurred on Contracts assigned prior to the date of
termination.
2.4 Customer Profile. Gateway shall offer to TAC all Contracts * which
are deemed acceptable to TAC; subject, however, to the existing financing
programs of Gateway and the program limitations and guidelines that Gateway has
instituted. Gateway acknowledges that TAC, in its sole discretion, shall make
all credit decisions as to those Contracts TAC agrees to fund. TAC shall accept
an assignment of any Application approved for funding by TAC in accordance with
its credit process and the obligation to accept an assignment of any contract
shall be in TAC's sole discretion.
2.5 No Solicitation, Limitation on Use of Accounts. During and after
the term of this Agreement without the prior consent of Gateway which shall not
be unreasonably withheld, TAC shall not solicit Applicants; provided, however,
that Applicants whose names are selected or have been obtained by TAC from
sources other than their relationship to Gateway may be solicited by TAC for any
purpose so long as such Applicants are not solicited under cover of the Gateway
relationship and such solicitation does not involve any goods or services which
are competitive with the Goods. A Contract may not be used for any purpose other
than the purchase of Gateway approved products, services and software.
2.6 Applicant Information. All information about Applicants, either
individually or in the aggregate, derived or collected by TAC as a result of the
Program or provided by Gateway shall constitute Applicant Information
("Applicant Information"). TAC shall treat the Applicant Information as
confidential and shall not disclose, without the prior consent of Gateway which
shall not be unreasonably withheld, the same to any other person, or use the
same except in connection with the performance of this Agreement and as required
by Applicable Law. TAC agrees that it will limit access to Applicant Information
to (i) those of its employees, agents or subcontractors who reasonably require
the same to carry out the purposes of this Agreement, including credit reporting
and collection agencies and (ii) those who are entitled to access to Applicant
Information pursuant to Applicable Law. TAC acknowledges that the Applicant
Information of Gateway customers constitutes a unique and valuable asset, and
that any use thereof except as specifically authorized herein would be wrongful
and would cause irreparable harm, and that it would be difficult to compensate
fully with damages for a violation of this Section. Accordingly, TAC agrees that
Gateway shall be entitled to temporary and permanent injunctive relief to
enforce this Section; this provision shall not, however, be deemed to diminish
or supplant the right of Gateway to claim and recover compensatory monetary
damages for any breach hereof in addition to obtaining equitable relief
therefor.
2.7 Confidential Information. In connection with the performance of
this Agreement, TAC and Gateway may disclose to the other, in writing or orally,
other information concerning its business, marketing techniques and methods of
operation (the "Confidential Information"). Each shall treat the Confidential
Information of the other as confidential and shall not disclose
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* Omitted pursuant to a request for confidential treatment and filed
separately with the SEC.
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the same to any other person, or use the same except in connection with the
performance of this Agreement. TAC and Gateway each agrees that it will limit
access to the Confidential Information of the other to those of its employees,
agents or subcontractors who reasonably require the same to carry out the
purposes of this Agreement. The obligations set out in this Section shall not
apply to any Confidential Information that the recipient can establish that: (a)
was known to the recipient at the time it was disclosed to the recipient; (b)
was in the public domain at the time it was disclosed to the recipient; or (c)
had entered into the public domain subsequent to disclosure to the recipient
through no unlawful act of the recipient or breach of the recipient's
obligations under this Agreement. TAC and Gateway acknowledge that the
Confidential Information of the other constitutes unique and valuable assets of
the other, and that any disclosure or use thereof except as specifically
authorized herein would be wrongful and would cause irreparable harm, and that
it would be difficult to compensate fully with damages for a violation of this
Section. Accordingly, each agrees that the other shall be entitled to temporary
and permanent injunctive relief to enforce this Section; this provision shall
not however be deemed to diminish or supplant the right of TAC and Gateway to
claim and recover compensatory money damages for any breach hereof in addition
to obtaining equitable relief therefor.
2.8 Trademark License. Each party grants to the other the nonexclusive,
limited license to use its trademarks and service marks during the term of this
Agreement to the extent necessary to perform the other party's obligations under
this Agreement and to the extent the specific use is approved by it as required
by this Agreement.
3. PAYMENTS
3.1 Payments. TAC shall pay Gateway for all Contracts assigned to TAC.
The payment for each Contract assigned shall be the total principal amount
financed under the Contract for Goods*. TAC may take as a Credit against
Payments to Gateway any amounts previously paid to Gateway on any Contract
(limited to the corresponding amount paid to Gateway for such Contract less any
discounts received by TAC in respect of such Contract):
(i) for which a Customer can establish to the
satisfaction of TAC and Gateway that it has either
not received and/or returned any merchandise
purchased. Such return must comply with applicable
law and the return policies of Gateway, including
time limitations of Gateways' return policy;
(ii) or where Gateway has failed to properly meet
disclosure procedures that TAC previously supplied to
Gateway and as a result of such failure by Gateway,
TAC has suffered an out of pocket loss under a
Contract;
(iii) and/or where Gateway has failed to comply with TAC's
credit and processing procedure which TAC previously
supplied to Gateway and as a result of such failure
by Gateway, TAC has suffered an out of pocket loss
under a Contract.
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* Omitted pursuant to a request for confidential treatment and filed
separately with the SEC.
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Payments shall be made by TAC to Gateway by wire transfer on or before 1:00 p.m.
Pacific Standard time for Contracts assigned to TAC through the * of such week.
TAC shall pay interest on all Payments that are not received by Gateway within
such time at the Fed Funds Rate.
3.2 Notification of Gateway. At any time that TAC's available credit to
fund Contracts is less than the aggregate principal amount of Contracts
assigned, approved and accepted for purchase during the preceding 7 calendar
days, TAC will immediately notify Gateway.
3.3 Verification Procedure. Upon Gateway's written request, but no more
frequently than twice in any twelve (12) month period, TAC shall permit Gateway
to engage the independent certified public accountant then being utilized by TAC
for the annual audit of its financial statements (the "Primary Auditor"), to
verify the accuracy of Payments paid and Report Information provided to Gateway
under this Agreement (the "Audit"), fully to the extent the same concerns the
Contracts and the Customers and may be disclosed by TAC without violating any
legal rights of any third party or contractual or regulatory obligations of TAC.
TAC will permit Gateway to engage another independent certified public
accounting firm selected by Gateway to review the report of the Primary Auditor
and, to the extent necessary validate that report and examine the work papers of
the Primary Auditor as to the financial obligations of or to Gateway.
All Audits, reviews and validations shall be subject to TAC's standard
confidentiality and security requirements.
TAC agrees to provide access to its facilities and relevant personnel to the
Primary Auditor and the independent auditor during normal business hours as
necessary or appropriate to effect these provisions. The parties agree to make
proper adjustment to compensate each party for any errors or omissions disclosed
by such Audit, together with interest thereon from the date the original payment
should have been made to the date the adjusted payment is made at the Fed Funds
Rate.
The costs of the Audit, review and validation shall be borne by Gateway, unless
material underpayments to Gateway are discovered, in which case TAC shall bear
the cost of such Audit, review and validation. "Material" shall mean an amount
equal to or greater than three percent (3%) difference in the Payments that were
or should have been paid during the period covered by the Audit. If overpayments
to Gateway are discovered, Gateway shall promptly compensate TAC for any such
discrepancies together with interest from the date of overpayment at the Fed
Funds Rate. If underpayments to Gateway are discovered, TAC shall promptly
compensate Gateway for any such discrepancies together with interest from the
date of overpayment at the Fed Funds Rate.
4. ADMINISTRATION OF PROGRAM
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* Omitted pursuant to a request for confidential treatment and filed
separately with the SEC.
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4.1 Administration. TAC and Gateway shall cooperate with and assist
each other in administering the Program and offering and providing the Program
to Applicants. TAC and Gateway shall follow the operating procedures set forth
in this Agreement to offer and provide financing under the Program. The parties
will cooperate in refining and supplementing these operating procedures as may
be necessary to make them more efficient and to address changes in Gateway's
business.
4.2 Consumer Finance Documents. TAC shall be responsible for the
content and compliance with Applicable Law of Applications, Customer Agreements,
Contracts, monthly periodic statements and other documentation used in
connection with the Program ("Consumer Finance Documents"). TAC shall be
responsible for any expense in providing said Consumer Finance Documents. TAC
will also provide Gateway with disclosure procedures and a credit and processing
procedure for use with Contracts. TAC warrants that such disclosures and
procedures and Consumer Finance Documents comply with all Applicable Laws. In
addition, TAC shall arrange for Gateway to be indemnified by the Account
Document supplier in the event any Account Document provided to Gateway does not
comply with the laws of the jurisdiction in which it was used.
4.3 Credit Determination. Gateway, at its cost and expense, shall
arrange for an electronic credit processing facility to supply TAC with such
credit information reasonably required by TAC so as to allow TAC to determine
whether the customer requesting financing meets TAC's criteria. TAC shall
provide, at its cost and expense, an electronic interface to receive the credit
information electronically. The criteria established by TAC may include, but not
be limited to, a scoring system provided by nationally recognized credit scoring
agencies and may include other credit requirements determined by it in its sole
discretion. Nothing contained herein shall be a requirement to TAC to accept any
Application.
4.4 Application Processing. Gateway shall advise TAC and/or TAC's
servicer * of an Application. TAC shall use information provided by Gateway,
Gateway's servicer and/ or the applicant to review and accept or reject such
Application. If approved, documents shall be prepared for execution *. Gateway
shall warrant to TAC that approval conditions supplied by TAC have been met and
shall forward to TAC all original documentation.
4.5 Gateway Responsibilities. Gateway agrees to perform and be
responsible solely for the following with respect to or in connection with any
Application:
(1) Make sure all information requested on the
Application is complete.
(2) *
(3) Transmit the information on the Application to TAC.
(4) *
(5) The Application and Assignment is delivered to TAC or
its designee.
4.6 Servicing. TAC shall service, process, administer and collect all
Contracts with reasonable care, consistent with accepted servicing practices of
prudent lending institutions, using the highest degree of skill and attention
that TAC exercises with respect to the administering and servicing of its own
contracts and the contracts of third parties for which
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* Omitted pursuant to a request for confidential treatment and filed
separately with the SEC.
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it services loans, and in accordance with all Applicable Laws (including without
limitation the Federal Consumer Credit Protection Act, as amended, 15 U.S.C. ss.
1601 et seq., and all implementing regulations). TAC shall pay all expenses for
such administration and servicing from its own funds and without reimbursement
from Gateway. TAC shall be responsible for mailing monthly periodic statements
to Customers and collecting all amounts due on the Contracts. Subject to mutual
agreement, TAC agrees to xxxx, collect and remit to Gateway monthly charges due
from Customers for other Gateway services charged to Contracts.
4.7 Credit Slips. If any Goods are returned, or any Sale is terminated
or canceled, Gateway shall complete and deliver promptly to TAC a Credit Slip
evidencing the refund or adjustment. On each Credit Slip Gateway shall include
the following information: (1) description of the Goods returned, (2) amount of
the refund or adjustment made, (3) the date of the original Sale, (4) Customer's
name, (5) Contract Number, and (6) the date of the credit.
4.8 Marketing Gateway shall be responsible for any marketing or
advertising of the Goods and of the Program and will incorporate such
advertising disclosures as are required by Applicable Law. Gateway may request
that TAC provide to Gateway standard advertising disclosures, as are required by
Applicable Law, to be used in the promotion of credit terms.
4.9 On-Going Reporting. TAC shall provide to Gateway information in
electronic, computer-readable form on the following as legally permissible: *
None of the information provided hereunder shall be provided to any third party.
The parties shall mutually work together to report information required by each
party on a timely and meaningful basis electronically, including but not limited
to Report Information.
5. REPRESENTATIONS AND WARRANTIES
5.1 Mutual. Finantra and TAC and Gateway each represents to the other
that:
(1) It is duly organized, validly existing and in good
standing.
(2) It has all necessary power, authority, licenses and
permits necessary to execute, deliver and perform its
obligations under this Agreement.
(3) This Agreement constitutes its legal, valid and
binding obligation, enforceable against it in
accordance with the terms of this Agreement.
(4) The execution, delivery and performance of this
Agreement does not require any filing or registration
with, or the consent or approval of, any governmental
body, agency, authority, or any other person which
has not been made or obtained.
(5) The execution, delivery and performance of this
Agreement does not conflict with or result in the
breach of' or constitute a default under any
indenture, mortgage, deed of trust, loan, agreement,
or other instrument to which it is a party or by
which it or any of its assets or property are bound.
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5.2 By Gateway. Gateway represents to TAC that:
(1) Trademarks. Gateway has the right and power to
license its trademarks and service marks to TAC under
this Agreement.
(2) Goods Warranties. Gateway will sell its Goods to
Customers under its standard terms, conditions and
warranties and will comply with its obligations
contained in those standard terms, conditions and
warranties.
(3) Compliance with Laws. Gateway will comply with all
laws applicable to the Program and the sale of its
Goods to Customers.
5.3 Representations by Finantra TAC. Finantra and TAC represent to
Gateway that:
(1) Trademarks. TAC has the right and power to license
its trademarks and service marks to Gateway under
this Agreement.
(2) Compliance with Laws. TAC shall comply with all
Applicable Laws relating to the offering of consumer
finance loans to Customers, the extension of credit
and the collection of Contracts. To the extent
Gateway is required to comply with any such laws, TAC
shall advise Gateway thereof and provide reasonable
operating instructions to Gateway to enable it to
comply with such laws.
(3) Year 2000. TAC has (i) conducted a comprehensive
review and assessment of all areas of their business
that could be adversely affected by the "year 2000
problem" (that is, the risk that computer
applications may not be able to properly perform
date-sensitive functions after December 31, 1999),
(ii) developed a detailed plan and timeline for
addressing the year 2000 problem on a timely basis
and (iii) to date, implemented that plan in
accordance with that timetable. TAC reasonably
anticipates that all computer applications that are
material to its business will on a timely basis be
able to perform properly date-sensitive functions
for all dates before and after January 1, 2000 (i.e.,
be "year 2000 compliant").
6. EVENTS OF DEFAULT; RIGHTS AND REMEDIES
6.1 Events of Default. The occurrence of any one or more of the
following events shall constitute an "Event of Default" hereunder:
(1) TAC shall fail to make any payment of any amount due
and payable or declared due and payable pursuant to
this Agreement, and the same shall remain unpaid for
a period of five (5) Business Days;
(2) Either Gateway or TAC shall fail to perform its
material obligations under this Agreement, and the
same shall remain uncured for a period of thirty (30)
days after the other party shall have given written
notice
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thereof.
(3) Any representation or warranty made or delivered by
either Gateway or TAC in this Agreement shall not be
true and correct in any material respect as of the
date when made or reaffirmed;
(4) Either Gateway or TAC shall (i) file a petition
seeking relief pursuant to the Bankruptcy Code or any
other applicable bankruptcy or other similar law;
(ii) consent to the institution of proceedings
pursuant thereto or to the filing of any such
petition or to the appointment of or taking
possession by a custodian, receiver, liquidator,
assignee, trustee, or sequestrator (or similar
official) of either party of any substantial part of
its properties, (iii) fail generally to pay its debts
as such debts become due; or (iv) take corporate
action in furtherance of any such action.
(5) Finantra or TAC shall be unable to provide reasonable
evidence of credit availability in an amount
acceptable to Gateway in accordance with Paragraph
3.2 hereof.
6.2 Remedies. If any Event of Default shall have occurred and be
continuing for the applicable cure period, the non-defaulting party shall give
notice of such default to the defaulting party. The defaulting party shall have
ten (10) Business Days from the date of delivery of the notice to cure the
default. If the default shall remain uncured and unwaived by the non-defaulting
party, the non-defaulting party shall have the right to terminate this Agreement
on 30 days' written notice, unless the non-defaulting party reasonably believes
that such default cannot be cured within 30 days in which case the
non-defaulting party may elect to terminate this Agreement immediately.
7. INDEMNIFICATION
7.1 By Finantra and TAC. Finantra and TAC shall be liable to and shall
indemnify and hold harmless Gateway, its past, present and future subsidiaries
and Affiliates, and their respective past, present and future officers,
directors, employees, agents, representatives, successors and assigns from and
against any Losses, as defined below, arising out of (i) failure by either of
Finantra or TAC to properly perform its duties and obligations under this
Agreement, (ii) failure by either of Finantra or TAC to comply with the terms of
this Agreement or any Applicable Laws, or (iii) any breach of a representation
or warranty of either of Finantra and TAC set forth in this Agreement.
7.2 By Gatewav. Gateway shall be liable to and shall indemnify and hold
harmless TAC, Finantra and their past, present and future subsidiaries and
Affiliates, and their respective past, present and future officers, directors,
employees, agents, representatives, successors and assigns from and against any
Losses, as defined below, arising out of (i) failure by Gateway to properly
perform its duties and obligations under this Agreement, (ii) failure by Gateway
to comply with the terms of this Agreement or any Applicable Laws, or (iii) any
breach of a representation or warranty of Gateway set forth in this Agreement.
7.3 General. Gateway and Finantra and TAC shall promptly notify the
other of any
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claim, demand, suit or threat of suit of which it becomes aware (except with
respect to a threat of suit either party might institute against the other)
which may give rise to a right of indemnification pursuant to this Agreement;
provided that failure to provide such notice does not relieve the indemnifying
party of any liability hereunder. The indemnifying party will be entitled to
participate in the settlement or defense thereof and, if the indemnifying party
elects, to take over and control the settlement or defense thereof with counsel
satisfactory to the indemnified party. In any case, the indemnifying party and
the indemnified party shall cooperate (at no cost to the indemnified party) in
the settlement or defense of any such claim, demand, suit or proceeding. For
purposes of this Section 7, with respect to indemnification claims made by third
parties, the term "Losses" shall mean any losses, damages, costs and expenses,
liabilities settlements, claim, proceeding, suit or any other liability of every
nature, kind and description whatsoever, including, without limitation, any
attorneys' fees and disbursements and court costs reasonably incurred by
Finantra and TAC or Gateway, as the case may be; and, with respect to claims by
Gateway against Finantra and TAC or by Finantra and TAC against Gateway, not
arising out of claims by third parties, the term "Losses" shall not include any
incidental or consequential damages.
8. MISCELLANEOUS
8.1 Independent Contractors. In performing their respective
responsibilities under this Agreement, TAC and Gateway are independent
contractors. This Agreement is not intended to create and shall not be construed
to create a partnership, joint venture or an association for profit between TAC
and Gateway.
8.2 Assignment Delegation of Duties. Without the express written
consent of the other party, neither Gateway nor TAC may assign this Agreement or
delegate any of its duties hereunder except that either Gateway or TAC may
delegate such duties and/or rights to any Affiliate provided that the assigning
party shall guaranty all obligations assigned including payment.
8.3 Amendment. This Agreement may not be amended except by written
instrument signed by both TAC and Gateway.
8.4 Non-Waiver. No delay by Gateway or TAC hereto in exercising any of
its rights hereunder or partial or single exercise of such rights shall operate
as a waiver of that or any other right. The exercise of one or more of Gateway's
or TAC's rights hereunder shall not be a waiver of, nor preclude the exercise
of, any right or remedies available to such Party under this Agreement or in law
or equity.
8.5 Severability. If any provision of this Agreement is held to be
invalid, void or unenforceable, all other provisions shall remain valid and be
enforced and construed as if such invalid provision were never a part of this
Agreement.
8.6 Survival. The rights and obligations of the parties hereunder with
respect to transactions completed or events occurring on or before the
termination of this Agreement shall not be affected by such termination. Without
limitation of the foregoing, Sections 2.3, 2.5, 2.7 and 3.1 shall survive any
such termination.
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8.7 Governing Law. This Agreement and all rights and obligations
hereunder shall be governed by and construed in accordance with the substantive
laws of the State of New York.
8.8 Dispute Resolution. All material disputes between TAC and Gateway
concerning Payments, settlements or Credits, arising from this Agreement shall
be resolved by the following procedures.
(1) A letter shall be sent from the parties raising the
dispute to the other party in accordance with the
notice provisions of Section 8. l 2, identifying with
particularity the nature of the dispute, the proposed
resolution of the dispute ("Proposed Resolution"),
and the executives from the party raising the dispute
who are authorized to resolve the dispute ("Demand
Letter"). The Demand Letter shall include the facts
supporting such party's position on the dispute and
include copies of any written materials.
(2) The party receiving the Demand Letter shall have five
(5) Business Days to send a written response
("Response Letter"), which shall be sent in
accordance with Section 8.12. The Response Letter
must accept the Proposed Resolution in the Demand
Letter or offer some other resolution.
(i) If the Response Letter accepts the proposed
resolution in the Demand Letter or no
Response Letter has been received within
five (5) Business Days, then the Proposed
Resolution shall be promptly implemented by
the parties and shall, where applicable, be
considered an amendment of this Agreement.
(ii) If the Response Letter offers some other
resolution, it shall include all facts
supporting the responding party's position
on the dispute, include copies of any
written materials, and identify the
executives of the responding party who are
authorized to resolve the dispute. The
executives identified in the Demand Letter
and Response Letter shall meet one or more
times and exchange such additional written
materials and proposals as needed to reach a
resolution of the matter or for one of them
to declare an impasse.
(3) The party declaring an impasse shall obtain a list of
five mediators from the Judicial Arbitration and
Mediation Service ("JAMS") if the mediation is in
California or equivalent proceeding, if any, if the
mediation is in Florida. Such party shall send such
list to the other party. If Gateway declares an
impasse then the Mediation will be administered in
Jacksonville, Florida; if TAC declares an impasses
then the Mediation will be administered by the JAMS
Los Angeles or San Diego office. Within three (3)
Business Days, the other party shall select one of
the five mediators. If the other party fails to
select an arbitrator within three (3) Business Days,
then the party declaring the impasse shall ask JAMS
to select a mediator.
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(4) The mediator shall immediately arrange a conference
call with the mediator and the executives identified
in the Demand Letter and Response Letter. In the
initial conference, the mediator shall set a place
and a time where the executives and mediator will
resolve the dispute ("Mediation"). The Mediation must
take place within five (5) Business Days of the
initial conference call. The parties shall each pay
one half of the costs of the mediator unless directed
otherwise by the mediator.
(5) At least 48 hours prior to the Mediation, each party
shall submit to the mediator the Demand Letter and
Response Letter, any additional written materials
exchanged prior to the declaration of an impasse, and
the party's final proposal to resolve the dispute
("Final Proposal"). No other written materials may be
submitted to the mediator or used in the Mediation.
(6) The Mediation shall be attended only by the mediator
and the executives identified in the Demand Letter
and Response Letter. The Mediation shall take no more
than one day. Each side shall have counsel available
by telephone to draft any documents necessary to
implement any resolution of the Mediation. If at the
end of the Mediation the parties have not reached a
mutual resolution, the mediator shall within 24 hours
adopt one of the party's Final Proposals or set forth
in writing a resolution of the matter that is between
the parties' Final Proposals ("Mediator's
Resolution").
(7) The Mediator's Resolution shall be immediately
implemented by the parties. The Mediator's Resolution
shall be binding upon the parties and not subject to
any further review.
(8) Any party dissatisfied with the Mediator's Resolution
meeting the criteria in Section 8.8(g) above must
initiate a proceeding within sixty (60) days of
receipt of the Mediator's Resolution ("Proceeding").
The Proceeding shall make a de novo review of the
parties' dispute, except the Mediator's Resolution
shall be admissible. The Proceeding shall be
conducted by a retired judge from JAMS sitting by
reference under California Code of Civil Procedure
Section 638(1) or the comparable Florida law (if
any), as applicable. The parties shall each pay one
half of the costs of the retired judge unless
directed otherwise by the retired judge.
8.9 Force Majeure. Neither party to this Agreement shall be liable to
the other by reason of any failure in performance of this Agreement in
accordance with its terms if such failure arises out of a cause beyond the
control and without the fault or negligence of such party. Such causes may
include but are not limited to acts of God, of the public enemy or of civil or
military authority, unavailability of energy resources, system or communication
failure, delay in transportation, fires, strikes, riots or war. In the event of
any force majeure occurrence, the disabled party shall use its best efforts to
meet its obligations as set forth in this Agreement. If
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either party is unable to meet its obligations set forth in this Agreement for
five (5) consecutive Business Days, due to a force majeure occurrence as set
forth in this Section 8.9, the other party may terminate this Agreement.
8.10 Entire Agreement. This Agreement, including the Schedules,
constitutes the entire Agreement between TAC and Gateway with respect to the
Program and any matters relating thereto and all prior agreements, negotiations
and communications on such subject are hereby superseded.
8.11 Captions. Captions used in this Agreement are for convenient
reference only and shall not be construed as limiting or defining the
substantial content of this Agreement.
8.12 Notices. Except as otherwise provided in this Agreement, all
notices, demands and other communications hereunder shall be in writing an shall
be delivered personally or sent by facsimile, other electronic means or
nationally recognized overnight courier service addressed to the party to whom
such notices or other communication is to be given or made at such party's
address as set forth below, or to such other address as such party may designate
in writing to the other party from time to time in accordance with the
provisions hereof, and shall be deemed given when personally delivered, when
sent electronically or one (1) business day after being sent by overnight
courier.
- 14 -
To TAC: TAC Capital, Inc.
000 X. Xxxx Xxxxxx Xxxx, 0xx Xx.
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxx, President
Facsimile: 000-000-0000
To Finantra: Finantra Capital Corporation
000 X. Xxxx Xxxxxx Xxxx
0xx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx, General Counsel
To Gateway: Gateway, Inc.
0000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Vice President
Facsimile: 858.799.3412
with copies to: Gateway Companies, Inc.
0000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxxx, XX 9212 I
Attention: Xxxxxxx X. Xxxxxxx, General Counsel
Facsimile: 858.799.3413
8.13 Securitization. In addition, Finantra, TAC, or any Affiliate of
either, shall not syndicate or securitize any portfolio with respect to which: *
8.14 Finantra Guaranty. Finantra hereby guaranties each and all
obligations of TAC contained in this Agreement.
8.15 Multiple Counterparts. This Agreement may be executed in any
number of multiple counterparts, all of which shall constitute but one and the
same original.
------------
* Omitted pursuant to a request for confidential treatment and filed
separately with the SEC.
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IN WITNESS WHEREOF, Finantra and TAC and Gateway have hereunto set
their hands as of the date first written above.
FINANTRA CAPITAL, INC. GATEWAY COMPANIES, INC.
By: /s/ Xxxxxxx Xxxx By: /s/ Xxxx X. Xxxx
------------------------------ ------------------------------------------
Name: Xxxxxxx Xxxx Name: Xxxx X. Xxxx
------------------------------ ------------------------------------------
Title: President Title: Senior Vice President and
------------------------------ Chief Financial Officer
------------------------------
T.A.C. TECHNOLOGY FINANCE CORP.
By: /s/ Xxxxxxx Xxxx
------------------------------
Name: Xxxxxxx Xxxx
------------------------------
Title: President
------------------------------
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