EXHIBIT 10.18
MARKETING AND APPLICATION PROCESSING AGREEMENT
This MARKETING AND APPLICATION PROCESSING AGREEMENT ("Agreement"),
dated as of February 1, 1997, between General Electric Capital Auto Financial
Services, Inc. (GECAFS), a Delaware corporation with its principal place of
business at 000 Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx, and Auto-By-Tel Acceptance
Corporation ("ABTAC") and Auto-By-Tel Corporation ("ABT") (as guarantor of the
obligations of ABTAC under this Agreement, in such capacity, the "Guarantor"),
each a Delaware corporation with its principal place of business at 00000
XxxXxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000.
WITNESSETH:
WHEREAS, ABTAC is in the business of, among other things marketing
financial services to persons interested in arranging financing for the lease
of new and used motor vehicles ("Vehicles") who visit the ABT Internet website
("Customers") and GECAFS and its affiliates are in the business of purchasing
leases of Vehicles from authorized dealers in the business of leasing such
goods; and
WHEREAS, ABTAC desires to promote the services of GECAFS to certain
such Customers in exchange for a marketing fee, and GECAFS desires to purchase
leases and is willing to pay such fees, in connection with new lease accounts
opened as a result of ABTAC's marketing;
NOW, THEREFORE, in consideration of the foregoing premises, and for
other good and valuable consideration the receipt and sufficiency of which is
hereby acknowledged, and intending to be legally bound, ABTAC and GECAFS agree
as follows:
SECTION 1.
FINANCING PROGRAM
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(A) ABTAC will cause to be included on the ABT Website, along with
specific identification of GECAFS as a participating lender in form and content
reasonably satisfactory to GECAFS, either an application in a form reasonably
satisfactory to GECAFS, substantially as set forth on Exhibit A hereto, or a
nonspecific credit application soliciting information requested by GECAFS.
(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 "Applicant.") GECAFS may, from time to 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
information requested by GECAFS.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN
PORTIONS OF THIS DOCUMENT.
(B) GECAFS will offer to enter into 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 ("United
States") who has executed an online purchase request referral agreement with
ABT and who otherwise meets GECAF's standards for such relationships
("Dealer(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 will contain customary terms no
less favorable to the Dealers than GECAFS' customary agreements in use with its
other leasing programs and will govern the terms upon which the Dealer and
GECAFS will close the Vehicle leasing transactions the subject of this
Agreement ("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, GECAFS will assign such Dealer an identifying number (the "Dealer
ID") and inform ABTAC of such number. GECAFS will be responsible for informing
Dealers of the nature of its leasing programs. ABTAC will be responsible for
informing Dealers of the nature of its services and the differences, if any,
between the programs described by GECAFS and the ABTAC programs.
(C) ABTAC will not be a party to, will have no obligations with
respect to and will be held harmless by GECAFS with respect to any act or
omission by GECAFS which gives rise 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 GECAFS is terminated, then GECAFS will be under
no obligation to approve any application received from customers of such Dealer.
(D) GECAFS agrees to provide each Applicant lease rates and terms not
less favorable to Applicants than those offered by GECAFS to similar customers
in its customary lease programs unless ABTAC requests, and GECAFS agrees to
offer, less favorable terms. The standard money factor used to derive a
monthly payment for any Contract [*]. Upon ten business days' prior written
notice, ABTAC may request that GECAFS increase such rate factor, for such
Contracts purchased by GECAFS and for such period as ABTAC may specify, by an
amount which will result in a remittance to ABTAC, 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 volume targets set forth in Section 1(F) are achieved. 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 [*] otherwise available to the Applicant, all other Contract terms
being equal, from any other source of 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 available data. GECAFS and ABTAC each reserves the right to
audit the process by which "competitiveness" is determined. If GECAFS declines
to proceed with the transaction as described,
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[*] CONFIDENTIAL TREATMENT REQUESTED
GECAFS will return such GECAFS Application to ABTAC for additional information
or forwarding to another financing source, as the case may be. If ABTAC
requests, GECAFS will cooperate with ABTAC in developing a screening methodology
based upon GECAFS' 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 the Process Map
attached hereto as Exhibit B, as may be modified from time to time. GECAFS and
ABTAC have agreed upon the responsibilities of each in developing the tools
necessary to implement this Process Map and this Agreement.
(F) The terms of this Agreement are based in part upon the expectation
by GECAFS of [*] Contract volume targets of [*], respectively, during the [*] of
this Agreement and upon the expectation of ABTAC of providing such volume. The
standard for "competitiveness" set forth above and volume targets will be
subject to review after [*] and periodically thereafter, based upon the extent
to which those expectations are being realized.
SECTION 2.
RECEIPT AND TRANSMISSION OF APPLICANT INFORMATION
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(A) Subject to the provisions of Section 1, ABTAC will transmit each
completed GECAFS Application to GECAFS by telephone, telefax, email, or other
electronic or agreed upon means. Also subject to the provisions of Section 1,
ABTAC is under no obligation to screen or review any GECAFS Application before
transmission to GECAFS; provided, however, that ABTAC agrees not to transmit
incomplete Applications or Applicant information that ABTAC actually knows to
be false or misleading in any material respect.
(B) ABTAC also agrees to subject Applicant information to the security
and confidentiality procedures consistent with its corporate policies in effect
from time to time. ABTAC will not use any such information in any manner which
violates applicable law in effect from time to time and will keep
communications from GECAFS to Applicants or Dealers confidential.
(C) GECAFS acknowledges and agrees that ABTAC has no liability, duty
or obligation with respect to the processing, underwriting, funding, or closing
of any lease. Except as set forth herein, ABTAC will have no responsibility
for, and makes no representation or warranty in connection with, the truth or
accuracy of the information provided by or on behalf of any Applicant or in the
GECAFS Application or regarding the eligibility of the Applicant for a lease.
(D) ABTAC will not make, and will use its best efforts to keep any of
its employees or agents from making, any oral or written statement to
Applicants or Dealers that would discourage, on a basis prohibited by law, an
Applicant from making or pursuing any transaction contemplated by this
Agreement.
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[*] CONFIDENTIAL TREATMENT REQUESTED
SECTION 3.
UNDERWRITING
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(A) Upon receipt, GECAFS will review each GECAFS Application in
accordance with its underwriting criteria and applicable law. GECAFS will
approve all GECAFS Applications meeting the underwriting criteria unless, in
accordance with its usual practice of applying GECAFS' underwriting policies,
the Applicant is otherwise not creditworthy. ABTAC acknowledges that GECAFS
has sole discretion in determining whether or not to approve a GECAFS
Application, which discretion GECAFS agrees to exercise in a manner consistent
with its customary underwriting procedures in effect from time to time.
(B) The goal of GECAFS will be to complete its review within [*] after
electronic receipt of a GECAFS Application but, absent unusual circumstances,
such review will be completed not later than the [*].
(C) GECAFS reserves the sole right and power to change the
underwriting criteria in accordance with GECAFS' normal business practices and
subject to applicable law, and further to suspend, restrict or modify the
purchase of leases in any portion of the United States for regulatory reasons.
GECAFS will provide ABTAC with advance written notice, given as early as
practicable, of any actions it plans to implement under this Section. Any such
actions will be taken in good faith.
SECTION 4.
COMMUNICATION OF CREDIT DECISIONS
---------------------------------
At the completion of underwriting as set forth in Section 3(B) of this
Agreement, GECAFS will notify ABTAC of GECAFS' credit decision. ABTAC will
notify the Dealer and the Applicant on behalf of GECAFS, in the case of
approval and the Applicant in the case of disapproval. If GECAFS declines a
request for credit, GECAFS will send to the Applicant any and all notices
required, but only those required, pursuant to federal or applicable state law
or regulation including, but not limited to, those required under the federal
Equal Credit Opportunity Act and Federal Reserve Regulation B.
SECTION 5.
CLOSING AND FUNDING
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After the notification to the Dealer and Applicant, ABTAC will have no
responsibility under this Agreement to any of the Dealer (except as set forth
in Section l(B)), the Applicant or GECAFS. GECAFS will use its best efforts to
close all approved Contracts and will, absent unusual circumstances, remit the
proceeds of each Contract to the related Dealer within [*] following compliance
with all requirements for submission of Contracts under the terms of the
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[*] CONFIDENTIAL TREATMENT REQUESTED
applicable Closing Agreement. Contracts submitted incorrectly with respect to
the parameters of the ABTAC program will not be accepted by GECAFS but will be
corrected by agreement with the Dealer or returned to the Dealer for correction
and resubmission provided, however, that GECAFS may afford the Dealer the
benefit of any GECAFS program available to its dealers from time to time the
effect of which does not adversely affect the applicant's rate. GECAFS will
advise ABTAC of the existence and provisions of such programs. ABTAC will assist
GECAFS in encouraging Dealers to resubmit such corrected Contracts to GECAFS for
approval and not to other lenders.
SECTION 6.
COMPENSATION
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During the term of this Agreement, GECAFS will pay to ABTAC a marketing
fee of [*] for each Contract that is funded under the terms of this Agreement.
GECAFS will use its best efforts to effect such payment, and any amount payable
pursuant to Section x.X. hereof, [*] for Contracts funded in the prior period
but in no event will compensation for any Contract be paid more than [*] after
funding. ABTAC will be responsible for compensating the associated Dealer in
accordance with its on-line purchase referral agreement with such Dealer.
SECTION 7.
REPORTS
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(A) On or before the 10th day of each month, GECAFS will transmit
electronically to ABTAC a report, sorted by Dealer ID and identifying the name
of each Applicant, outlining for the preceding month: (1) the number of GECAFS
Applications received from ABTAC, (2) the number of GECAFS Applications that
were approved and funded, (3) the number of GECAFS Applications pending at
month-end and (4) the number and aggregate outstanding balance of Contracts
funded during the effectiveness of this Agreement. GECAFS will include with
such report a report indicating any Dealers which executed a Closing Agreement
and any Closing Agreements which terminated during the preceding month.
(B) On the effective date of this Agreement, ABTAC will advise GECAFS
in writing of all sources of financing with whom ABTAC is doing business in the
same or similar fashion as GECAFS. On or before the 10th day of each month,
ABTAC will advise GECAFS in writing of any additions or deletions to such list.
In addition, on or before the 10th day of each month, ABTAC will transmit
electronically to GECAFS a report outlining for the preceding month: [*]
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[*] CONFIDENTIAL TREATMENT REQUESTED
(C) GECAFS and ABTAC will meet periodically, upon reasonable request,
to review all aspects of the program. GECAFS agrees to discuss with ABTAC, not
less than quarterly, at least the following aggregate portfolio performance
information for the ABTAC leases: [*].
SECTION 8.
STANDARDS FOR TRANSMITTING INFORMATION
--------------------------------------
GECAFS will either provide or make available to ABTAC its unique code
sets and edit procedures on a periodic basis as deemed necessary by GECAFS to
permit performance hereunder. ABTAC will transmit all Applications and other
information to GECAFS in the predefined format utilizing such GECAFS code sets
and in accordance with such parameters, all as set forth in Exhibit C attached
hereto and as may be amended from time to time.
SECTION 9.
GUARANTEE
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Guarantor hereby unconditionally and irrevocably guarantees to GECAFS,
its successors, endorsees and assigns, the performance when due of all present
and future obligations and liabilities of all kinds of ABTAC arising out of or
in connection with the Agreement, whether due or to become due, secured or
unsecured, absolute or contingent, joint or several ("Obligations"). The
Guarantor agrees that GECAFS and ABTAC may mutually agree to modify the
obligations or any agreement between GECAFS and ABTAC without in any way
impairing or affecting this Guarantee.
SECTION 10.
REPRESENTATIONS AND WARRANTIES
------------------------------
(A) Representations and Warranties Of ABTAC. ABTAC hereby makes the
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following representations and warranties to GECAFS:
(1) ABTAC has been duly organized and is validly existing as a
corporation under the laws of the state of Delaware and is duly licensed where
required or is otherwise qualified in each
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[*] CONFIDENTIAL TREATMENT REQUESTED
state in which it transacts business and is not in default of such state's
applicable laws, rules and regulations, except where the failure to so qualify
or such default would not have a material adverse effect on its ability to
conduct its business or to perform its obligations under the Agreement.
(2) ABTAC has the requisite power and authority and legal right
to execute and deliver the Agreement, engage in the transactions contemplated
by the Agreement, and perform and observe those terms and conditions of the
Agreement to be performed or observed by it hereunder. The person signing the
Agreement, and any document executed pursuant to it, on behalf of ABTAC has
full power and authority to bind ABTAC. The execution, delivery and
performance of the Agreement, and the performance by ABTAC of all transactions
contemplated therein, have been duly authorized by all necessary and
appropriate corporate action on the part of ABTAC.
(3) The Agreement has been duly authorized and executed by ABTAC
and is valid, binding and enforceable against ABTAC in accordance with its
terms, except that such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws (whether statutory, regulatory
or decisional) now or hereafter in effect relating to creditors' rights
generally, and the execution, delivery and performance by ABTAC of the
Agreement do not conflict with any term or provision of (a) its certificate of
incorporation or bylaws, (b) any law, rule, regulation, order, judgment, writ,
injunction or decree applicable to ABTAC of any court, regulatory body,
administrative agency or governmental body having jurisdiction over ABTAC or
(3) any agreement to which ABTAC is a party or by which its property is bound.
(4) No consent, approval, authorization or order of, registration
or filing with, or notice to any governmental authority or court is required
under applicable law in connection with the execution, delivery and performance
by ABTAC of the Agreement.
(5) There is no action, proceeding or investigation pending or,
to the best knowledge of ABTAC, threatened against it before any court,
administrative agency or other tribunal (a) asserting the invalidity of the
Agreement, (b) seeking to prevent the consummation of any of the transactions
contemplated by the Agreement, or (3) which could reasonably be expected to
materially and adversely affect its performance of its respective obligations
under, or the validity or enforceability of, the Agreement.
(6) AR regulatory approvals, authorizations, licenses, permits
and other permissions, consents and authorities whatsoever needed to operate
the ABT Website and perform this Agreement have been received.
(7) ABTAC warrants that it has the legal and valid right to use
any registered or unregistered trademark, trade name, service xxxx, logo,
emblem or other proprietary designation, or any variations, derivatives and
modifications thereof, used by it in the materials provided to GECAFS or used
by ABTAC in connection with the Agreement.
(B) Representations and Warranties of GECAFS. GECAFS hereby makes the
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following representations and warranties to ABTAC:
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(1) GECAFS has been duly organized and is validly existing as a
corporation under the laws of the state of Delaware and is duly licensed where
required or is otherwise qualified in each state in which it transacts business
and is not in default of such state's applicable laws, rules and regulations,
except where the failure to so qualify or such default would not have a
material adverse effect on its ability to conduct its business or to perform
its obligations under the Agreement.
(2) GECAFS has the requisite power and authority and legal right
to execute and deliver, engage in the transactions contemplated by, and perform
and observe the terms and conditions of, the Agreement. The person or persons
signatory to the Agreement and any document executed pursuant to it on behalf
of GECAFS have full power and authority to bind GECAFS. The execution,
delivery and performance of the Agreement, and the performance by GECAFS of all
transactions contemplated therein, have been duly authorized by all necessary
and appropriate and corporate action on the part of GECAFS.
(3) The Agreement has been duly authorized and executed by GECAFS
and is valid, binding and enforceable against GECAFS in accordance with its
terms, except that such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws (whether statutory, regulatory
or decisional) now or hereafter in effect relating to creditors' rights
generally, and the execution, delivery and performance by GECAFS of the
Agreement do not conflict with any term or provision of (a) its certificate of
incorporation or bylaws, (b) any law, rule, regulation, order, judgment, writ,
injunction or decree applicable to GECAFS of any court, regulatory body,
administrative agency or governmental body having jurisdiction over GECAFS or
(3) any agreement to which GECAFS is a party or by which its properly is bound.
(4) No consent, approval, authorization or order of, registration
or filing with, or notice to any governmental authority or court is required
under applicable law in connection with the execution, delivery and performance
by GECAFS of the Agreement.
(5) There is no action, proceeding or investigation pending or,
to the best knowledge of GECAFS, threatened against it before any court,
administrative agency or other tribunal (a) asserting the invalidity of the
Agreement, (b) seeking to prevent the consummation of any of the transactions
contemplated by the Agreement, or (3) which could reasonably be expected to
materially and adversely affect the performance by GECAFS of its obligations
under, or the validity or enforceability of, the Agreement.
(6) GECAFS warrants that it has all regulatory approvals,
authorizations, licenses, permits and other permissions, consents and
authorities whatsoever, as needed (a) to offer and enter into the financing
arrangements with Customers contemplated by the Agreement in each jurisdiction
in the United States and to otherwise perform its obligations under the
Agreement, and (b) to use any materials developed, provided or used by GECAFS
in connection with the Agreement.
(7) GECAFS warrants that it has the legal and valid right to use
any registered or unregistered trademark, trade name, service xxxx, logo,
emblem or other proprietary designation, or
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any variations, derivatives and modifications thereof, used by it in any
materials provided to ABTAC or used by GECAFS in connection with the Agreement.
SECTION 11.
INDEMNIFICATION
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(A) ABTAC will defend, indemnify and hold harmless GECAFS and its
affiliates and all of its and their officers, directors, owners, agents,
attorneys, and employees, from and against any and all loss, liability, claims,
damage, cost or expense (including attorneys' fees and costs) by third parties
arising out of any gross negligence or intentional misconduct of ABTAC in
connection with ABTAC's performance of its obligations under this Agreement or
relating to any breach or alleged breach of a third party's proprietary rights
in connection with any intellectual property (except if provided by GECAFS),
used by ABTAC in performance of its obligations under this Agreement.
(B) GECAFS will defend, indemnify and hold harmless ABTAC and its
affiliates and all of its and their officers, directors, owners, agents,
attorneys, and employees, from and against any and all loss, liability, claims,
damage, cost or expense (including attorneys' fees and costs) by third parties
arising out of any gross negligence or intentional misconduct of GECAFS in
connection with GECAFS' performance of its obligations under this Agreement or
relating to any claim regarding GECAFS' conduct with respect to any financing
transaction or proposed financing transaction (including Customer claims) in
connection with this Agreement and any breach or alleged breach of any law by
GECAFS relating to consumer financing (unless caused solely by ABTAC) in
connection with this Agreement and the transactions contemplated thereby.
(C) The indemnified party must give the indemnifying party prompt
notice of any claims covered by the indemnity of this Agreement. Each party
will promptly notify the others of any legal or regulatory proceeding or threat
of legal or regulatory proceeding with respect to any matters which are the
subject of this Agreement; provided, however, that the failure to notify will
not afford relief hereunder except to the extent that it results in prejudice.
SECTION 12.
TERM AND TERMINATION
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(A) This Agreement will remain in effect for a period of [*] from the
date hereof unless terminated by either party upon [*] prior written notice.
This Agreement will also terminate if, required by governmental authority or
court of law, but only insofar as this Agreement applies to such jurisdiction
affected. In consideration of the significant investment made by GECAFS in the
implementation of this Agreement, a termination fee in the amount of [*] will be
due and payable from ABTAC to GECAFS in the event that ABTAC terminates this
Agreement prior to the first anniversary hereof, except for cause as set forth
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[*] CONFIDENTIAL TREATMENT REQUESTED
below. Notwithstanding the foregoing, such termination fee will be reduced by
[*] for each [*] during which the volume targets set forth in Section l(F) are
met and, provided further, that no termination penalty will be incurred in the
event that the parties cannot agree in good faith upon the continued validity of
the "competitiveness" standard after [*] as set forth in Section 1(E).
(B) If any party will be in breach of any material obligation under
this Agreement and such breach will remain uncured for a period of 30 days
after written notice thereof from the other party (or, if such breach is
curable and requires more than 30 days to cure, if such cure is not commenced
within 30 days and thereafter diligently prosecuted), then the other party may,
by written notice sent, terminate this Agreement 30 days after delivery of such
notice. Nonpayment of amounts due under this Agreement will be deemed to be a
breach of a material obligation hereunder, but institution of suit for payment
of amounts due under this Agreement will not be deemed to be an automatic
termination hereunder.
(C) At any party's option, and upon written notice of exercise of the
option, this Agreement will terminate upon the voluntary or involuntary
bankruptcy or insolvency of a party, the voluntary or involuntary dissolution
or liquidation of a party, the admission in writing by a party of its inability
to pay its debts as they mature, or the assignment by a party for the benefit
of creditors.
SECTION 13.
NOTICES
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All notices or transmissions pursuant to this Agreement, unless
otherwise specified, will be by facsimile transmission, by personal delivery,
or by registered or certified mail, return receipt requested, to the addresses
of the parties set forth in the Preamble to this Agreement or such other
address as any party listed below will specify in writing to the others.
SECTION 14.
PROVISIONS OF GENERAL APPLICABILITY
-----------------------------------
(A) Entire Agreement. The Agreement and the exhibits thereto
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constitute the entire agreement of the parties, and may be amended from time to
time only upon the execution of a written amendment by the parties.
(B) Confidentiality. Both ABTAC and GECAFS have made and will
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continue throughout the term of the Agreement to make available to the other
party confidential and proprietary materials and information ("Proprietary
Information"). Prospectively, each party will advise the other of material and
information that is confidential and/or proprietary. Proprietary Information
does not include material or information that: (1) are already, or otherwise
become, generally known by third
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[*] CONFIDENTIAL TREATMENT REQUESTED
parties as a result of no act or omission of the receiving party; (2) subsequent
to disclosure hereunder are lawfully received from a third party having the
right to disseminate the information and without restriction on disclosure; (3)
are generally furnished to others by the disclosing party without restriction on
disclosure; (4) were already known by the receiving party prior to receiving
them from the disclosing party and were not received from a third party in
breach of that third party's obligations or confidentiality; or (5) ideas,
concepts, expressions, knowhow, skills and experience possessed by either party
prior to its association with the other party or developed by either party
during its association with the other party without regard to Proprietary
Information.
Each party will maintain the confidentiality of the other's Proprietary
Information and will not disclose such Proprietary Information without the
written consent of the other party unless legally required by law, rule,
regulation or court order of any applicable jurisdiction; in which case, each
party will before disclosing the Information, (unless prior notice is
prohibited), promptly notify the other of the compelled disclosure. If a
protective order or other appropriate relief from compelled disclosure is not
obtained before disclosure is due, or if compliance with the provisions of this
section is waived, only that portion of the Information will be furnished which
counsel advises is legally required. Each party will also keep confidential
the terms of the Agreement. The confidentiality provisions of the Agreement
will survive the termination of the Agreement.
(C) Limitation of Liability. In no event will either party be liable
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to the other party for any incidental, special, exemplary or consequential
damages, even if advised of the possibility of such damages.
(D) Appointment or Assignment. ABTAC and GECAFS will have the right
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to appoint an affiliate to provide any services to be provided hereunder or to
assign the Agreement to any affiliate at no charge or penalty; provided,
however, that such appointee will agree to be governed by the provisions hereof
with respect to the provision of such services and such assignee assumes the
obligations of its assignor.
(E) Waiver. Neither party will be deemed to be in default of any
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provision of the Agreement or be liable to the other party or to any third
party for any delay, error, failure in performance or interruption of
performance resulting directly or indirectly from causes beyond that party's
reasonable control. The period of performance will be extended to such extent
as may be appropriate after the cause of the delay has been removed. If any
excusable delay or failure to perform by a party exceeds 30 days, the other
party will have the right to terminate the Agreement without liability.
(F) Severability. If any provision of the Agreement is declared or
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found to be illegal, unenforceable or void, then both parties will be relieved
of all obligations arising under such provision, but only to the extent that
such provision is illegal, unenforceable or void; it being the intent and
agreement of the parties that the Agreement will be deemed amended by modifying
such provision to the extent necessary to make it legal and enforceable while
preserving its intent or, if that is not possible, by substituting therefore
another provision that is legal and enforceable and achieves
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the same objective. Each party agrees that it will perform its obligations
hereunder in accordance with all applicable laws, rules and regulations now or
hereafter in effect.
(G) Arbitration. Any controversy or claim arising out of or relating
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to the Agreement, or the breach of the same, will be settled through
consultation and negotiation in good faith and a spirit of mutual cooperation.
However, if those attempts fail, the parties agree that any misunderstandings
or disputes arising from the Agreement will be decided by arbitration which
will be conducted, upon request by either party, in Orange County, California,
before three (3) arbitrators (unless both parties agree on one (1) arbitrator)
designated by the American Arbitration Association (the "AAA"), in accordance
with the terms of the Commercial Arbitration Rules of the AAA, and, to the
maximum extent applicable, the United States Arbitration Act (Title 9 of the
United States Code), or if such Act is not applicable, any substantially
equivalent state law. The parties further agree that they will share the
expense of the arbitration proceedings equally. Notwithstanding anything
herein to the contrary, either party may proceed to a court of competent
jurisdiction to obtain injunctive relief at any time.
(H) Media Releases. ABTAC and GECAFS may utilize media releases to
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publicize their business relationship only with the prior approval of the other
party which will not be unreasonably withheld. ABTAC and GECAFS will not use
any trade name, service xxxx or any other information which identifies the
other in sales, marketing and publicity materials without obtaining the prior
written approval of the other.
(I) Governing Law. The Agreement will be governed by and construed in
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accordance with the laws of the State of California, without regard to conflicts
of law principles.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officer on the date first above written.
GENERAL ELECTRIC CAPITAL AUTO FINANCIAL
SERVICES, INC.
By:
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Its:
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AUTO-BY-TEL ACCEPTANCE CORPORATION
By: /s/ W. Xxxxxxxx Xxxxxxxxxxx
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Its: Chief Operating Officer
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AUTO-BY-TEL, CORPORATION, as Guarantor
By: /s/ Xxxx X. Xxxxxxx
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Its: Vice President/General Counsel
-13-
GE CAPITAL EXHIBIT A
CONSUMER APPLICATION
[*]
14
[*] CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT A: CONTINUED
[*]
15
[*] CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT A: CONTINUED
[*]
16
[*] CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT A: CONTINUED
[*]
17
[*] CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT B
[*]
18
[*] CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT C
[*]
19
[*] CONFIDENTIAL TREATMENT REQUESTED
