FIRST AMENDMENT TO
This First Amendment to (the "First
Amendment") is entered into as of January 8, 2001 by and among
XxxxXxxxxXxxxxx.xxx Inc. an Arizona corporation, whose address is 00000 Xxxxx
Xxxxxx Xxxx, Xxxxx 0, Xxxxxxxxxx XX 00000 (hereinafter "ATC"); and
American Honda Finance Corporation, a California corporation, whose address is
000 Xxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000 (hereinafter "AHFC").
WHEREAS, ATC and AHFC entered into a
("Agreement") dated as of December 15, 1999 whereby AHFC engaged ATC to assist
AHFC in the sale and promotion of certain Honda Vehicles under the terms and
conditions of the Agreement; and
WHEREAS, AHFC agreed to use the website and technology developed by ATC for AHFC
(the "ATC/Honda website"), as reflected in the document entitled "Honda Website
Overview" prepared by ATC and provided to AHFC (a copy of which is attached to
the Agreement as Exhibit A), as its primary method of remarketing Honda
Vehicles; and
WHEREAS, since the effective date of the Agreement ATC and AHFC have gained
experience in the application, processes, and benefits of the technology and
remarketing activities related thereto, and have determined that new
opportunities exist to expand and enhance the remarketing program for Honda
Vehicles; and
WHEREAS, ATC and AHFC have mutually agreed that it is in their respective best
interests to amend certain provisions of the Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and
promises herein contained, the parties hereto agree as follows:
1. Capitalized terms used in this First Amendment, which are defined in
the Agreement, shall have the same meaning, unless otherwise herein
defined.
2. The Honda Vehicle Inter-Dealer Purchase System or VIPS will be a
private label website hosted on the ATCADVANTAGE platform.
3. The Agreement is hereby amended as follows:
a) The ATC/Honda website will heretofore be referred to as the
ATCADVANTAGE website (the "ATCADVANTAGE website") as provided in
the document entitled ATCADVANTAGE Expanded e Commerce Website
Overview (a copy of which is attached to this First Amendment as
Exhibit E).
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b) Paragraph 2. of the Agreement is hereby replaced in its entirety
as follows:
2. The term of this Agreement shall commence effective as of the 1st day
of January 2001 and shall be for a period of thirty-six (36) months.
AHFC may, at its option, terminate this Agreement upon sixty (60) days
prior written notice to ATC ("Early Termination") at any time prior to
December 31, 2003. If AHFC does not elect either Option #1 or Option
#2, listed below, AHFC shall pay to ATC an Early Termination fee. If
such Early Termination occurs after the date of this contract and
before December 31, 2001, the Early Termination fee will be $ * .
If Early Termination occurs after January 1, 2002, and before December
31, 2002, the early termination fee will be $ * : If Early
Termination occurs after January 1, 2003, and before June 30, 2003, the
early termination fee will be $ * : and if Early Termination occurs
after July 1, 2003, and before December 31, 2003, the early termination
fee will be $ * .
Following are the options available to AHFC, upon the earlier of Early
Termination or the expiration of the Agreement at December 31, 2003.
Option #1. In the event AHFC desires to continue using the ATCADVANTAGE
technology, but also desires to bring the remarketing activities in
house, ATC agrees to license the use of the ATCADVANTAGE technology to
AHFC. The fee for such license is herein called "Data Management Fee".
ATC will maintain, service and upgrade the ATCADVANTAGE technology for
AHFC. ATC, however, will not provide remarketing services. Furthermore,
AHFC agrees not to disclose or share the ATCADVANTAGE technology with
any third party including, but not limited to, ATC competitors.
If Option #1 is selected, AHFC will pay to ATC a "Data Management Fee"
of $ * per vehicle for every Honda Vehicle posted on the site. This
fee assumes that AHFC posts at least 90,000 vehicles on the
ATCADVANTAGE website annually. In the event postings on the
ATCADVANTAGE website are less than 90,000 vehicles annually ATC
reserves the right to renegotiate the Data Management Fee.
Option #2. In the event AHFC desires to bring both ATCADVANTANGE
technology and remarketing activities in house, ATC agrees to license
the use of the ATCADVANTAGE technology, then in effect at December 31,
2003, to AHFC. The fee for such license is herein called "Data
Management Fee". ATC will not be responsible for maintaining, servicing
and upgrading the ATCADVANTAGE technology. Furthermore, AHFC agrees
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* Confidential information omitted and filed separately with the Securities and
Exchange Commission
not to disclose or share ATCADVANTAGE technology with any third party
including, but not limited to, ATC competitors.
If Option #2 is selected by AHFC, AHFC will pay to ATC a "Data
Management Fee" of $ * per vehicle for every Honda Vehicle posted on
the ATCADVANTAGE WEBSITE. This fee assumes that AHFC posts at least
90,000 vehicles on the ATCADVANTAGE WEBSITE annually. In the event
posting on the ATCADVANTAGE WEBSITE are less than 90,000 vehicles
annually ATC reserves the right to renegotiate the Data Management Fee.
Option #3 In the event AHFC desires to utilize competing technology,
and enters into a remarketing relationship with a vendor other than
ATC, this Agreement will continue to control the relationship between
AHFC and ATC until such time as the competing technology is placed into
service; however, in no case will such time period exceed 12 months.
If the ATCADVANTAGE website is not continuously operational for any
reason other than acts of God during any consecutive twenty-four hour
period (a "24 Hour Down Period") that does not include any time within
any other 24 Hour Down Period, ATC agrees to pay AHFC $ * per 24
Hour Down Period.
The parties hereto may elect to renew this Agreement on such terms and
conditions as may be mutually agreed upon. All renewals must be agreed
upon in writing and signed by all parties hereto.
4. Paragraph 4. of the Agreement is hereby replaced in its entirety as
follows:
4. As compensation for the services to be rendered by ATC, effective
January 12, 2001 for California Honda/Acura franchise dealer
purchases and February 1, 2001 for all dealer purchases, AHFC
shall pay to ATC a Fee as follows:
a. For Honda Vehicles sold on the ATCADVANTAGE website to an
originating/receiving Honda/Acura franchise dealer $ * per
vehicle.
b. For Honda Vehicles sold on the ATCADVANTAGE website to a
non-originating/non-receiving Honda/Acura franchise dealer
$ * per vehicle.
c. At AHFC's sole option, certain Honda Vehicles listed on the
ATCADVANTAGE website may become available for purchase by a
non-Honda and/or non-Acura dealer for Honda Vehicles sold on
the
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* Confidential information omitted and filed separately with the Securities and
Exchange Commission
ATCADVANTAGE website to a non-Honda/Acura franchise dealer
the fee payable by AHFC to ATC will be $ * per vehicle.
d. ATC reserves the right to assess additional fees for the sale
of Honda Vehicles on the ATCADVANTAGE website to be paid by
purchasing non-Honda/Acura franchise dealers (Buy Fees).
e. ATC reserves the right to charge monthly subscription and/or
transactional fees to participating Inter-Dealer Trading
Community Honda/Acura franchise dealers (Exhibit E, 7).
f. Special reports other than those currently provided to AHFC,
as listed in the ATC/AHFC Current Reports (Exhibit D), will
be provided to AHFC upon request. Prior to initiating
services to create a special report, ATC will provide to AHFC
an estimate of the charges for developing such special
report. The estimated charge will consist of either a fixed
charge or a charge computed on a time and material basis at
$ * per hour. If after acceptance by AHFC of a special
report to be charged on a time and material basis, and after
initiation of services to develop such special report, ATC
believes it will exceed the estimate previously provided, it
will immediately notify AHFC of such additional costs before
proceeding.
g. Functional changes unique to AHFC would continue to be
charged to AHFC. These will include but not be limited to:
o Pricing model or formula changes
o Special programs unique to AHFC
o Investigative efforts to resolve data problems between AHFC,
ATC, and/or Honda vendors |X| API changes (data communication
between ATC and AHFC).
Prior to initiating functional changes and/or new
projects, ATC will provide to AHFC an estimate of the charges
for developing such functional changes and/or new projects.
The estimated charge will consist of either a fixed charge or
a charge computed on a time and material basis at $ * per
hour. If after acceptance by AHFC of functional changes
and/or new projects, to be charged on a time and material
basis, and after initiation of services to develop such
functional changes and/or new projects, ATC believes it will
exceed the estimate previously provided, it will immediately
notify AHFC of such additional costs before proceeding.
Billing for services will be presented to AHFC monthly. All
payments shall be payable to ATC at 00000 Xxxxx Xxxxxx Xxxx
Xxxxx 0
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* Confidential information omitted and filed separately with the Securities and
Exchange Commission
Xxxxxxxxxx, XX 00000, or at such other place or places as ATC
may, by written notice, direct.
5. Except as explicitly outlined in this First Amendment, all of the terms
and conditions of the Agreement shall remain in full force and effect
and shall apply to all parties thereunder.
6. This First Amendment shall be effective when the parties thereto each
have received an executed original thereof.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be
executed as of the date first written above.
XXXXXXXXXXXXXXX.XXX INC AMERICAN HONDA FINANCE CORP
BY:/S/XXXXX X. XXXXXXXXXX BY:/S/XXXXXXX X. XXXXX
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EXHIBIT D
ATC/AHFC CURRENT REPORTS
ATC provides to AHFC, at ATC's expense, the following reports on a
weekly/monthly basis.
REPORTS GENERATED DAILY
Honda Portfolio Facts Make and model mix, sales performance
by model, and various other portfolio
facts.
Daily Sales Report Sales of vehicles, daily
TID vs. NTID sales Compares sales of Turn in Dealer (TID)
against Non Turn in Dealer (NTID), daily
Branch Sales Report Cumulative sales by branch, daily.
Branch Activity Report Roll-off, TID and NTID activity, by
branch, daily
Condition Report (CR) CR's received from 3rd party vendors,
by State.
REPORTS GENERATED MONTHLY
Analysis of sales by dealer; by branch and dealer code,
by dealer and branch, and by district
and dealer code.
Schedule of top 10 buyers
EXHIBIT E
ATCADVANTAGE EXPANDED E COMMERCE OVERVIEW
GENERAL
The ATCADVANTAGE website, designed, developed, executed, and maintained by
XxxxXxxxxXxxxxx.xxx Inc., on behalf of American Honda Finance Corporation,
utilizes the ATCADVANTAGE technology. This technology is designed specifically
to deliver expanded e-commerce remarketing tools. In AHFC's application it
facilitates the management, viewing, sale, documentation, auction consignment,
and report generation for available Honda vehicles. Specific website features
which may be subject to additions, deletions and/or other modifications follow.
SPECIFIC
1. COMMUNITY
a. Restricted access - User name and Password
b. Calendaring feature - AHFC manageable
c. Newsletter and/or other static information links
d. Transportation links
e. Dealer account history
2. CARGROUP - "A collection of vehicles that behave in the same way"
a. The Honda-Acura Franchise dealer community will initially include a
CarGroup for standard off-lease vehicles and a second CarGroup for
balloon payment vehicles.
b. Honda Vehicles are available to Honda/Acura franchise dealers from all
grounding locations.
c. The business rules (vehicle behavior rules) are determined by AHFC.
d. Additional CarGroups can be added to accommodate other vehicle bodies.
e. Basic incentive program capability (attaches notification of
participation in the sale document).
3. VEHICLE UPLOAD AND ROLL OFF
a. Vehicle-
i. ATC database is populated by data feeds from AHFC and AHFC
vendors.
ii. Honda Vehicles are visible to enrolled dealers beginning sixty
(60) days prior to lease maturity and continuing until vehicle
Roll Off.
iii. Honda Vehicles are purchasable at various times based on business
rules defined by AHFC.
b. Condition Report
i. Condition reports are linked to vehicle records by "VIN".
ii. Enrolled dealers may access all available condition reports.
iii. Condition reports are used to determine MBPO pricing.
c. Roll Off
i. At a time determined in CarGroup rule set, vehicles will "Roll
Off" the site, meaning, the vehicle is no longer available for
sale on the site. This is measured in days from the grounding
date.
4. CONSIGNMENT TOOL - An electronic method of transferring vehicles from
franchise dealer locations to select auctions.
a. After specified number of days of exposure on the website, unsold
vehicles will be assigned electronically by the ATC consignment tool to
designated auction locations.
b. Consigned inventory will remain viewable/purchasable by interested
dealers en route to auction and throughout auction
marshalling/pre-auction sale period.
c. AHFC will be responsible for entering area codes into the ATC
Consignment Tool for vehicle transfer to appropriate auction.
5. AUCTION VISIBILITY
a. Vehicles are visible and/or purchasable throughout turn-in/grounding
period at dealership locations, up to and including auction
consignment/marshalling period. This includes transportation time and
auction grounding. All vehicles will be visible for a specified number
of days.
b. A vehicle is considered "received" at auction once an auction
supplementary Condition Report is completed.
6. TRANSACTION PROCESSING
a. Upon sale of a vehicle, the site will create and send notifications by
email to all parties identified by AHFC. Content of sale notification
includes, but is not limited to:
i. Purchasing dealer number, name, address
ii. Purchased vehicle info: VIN, purchase price, vehicle summary info
(NOT including CR)
iii. Vehicle location: auction and contact phone number
7. INTER-DEALER TRADING COMMUNITY (FUTURE) - An online sales community venue
affording Honda/Acura dealers the ability to upload, track, and sell or
trade "used" and/or "new" vehicle inventories. AHFC and ATC agree to
mutually define the scope, content, and size of such a community, and
further agree to negotiate the development costs for said community.
8. SITE REPORTING
a. Daily sales report - summary of sales made for the date specified
b. Sales by location - Breakdown of location performance
c. Sales by Model - Breakdown of sales by model d. Sales by dealer -
Breakdown of sale by dealer e. Month sales report - Aggregate daily
sales report
