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EXHIBIT 10.14
[*] Confidential Treatment has been requested for certain portions of this
exhibit.
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 600 Hart Road, Barrington, Illinois, 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 18872
MacArthur Boulevard, Suite 200, Irvine, California 92612.
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
(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
non-specific 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.
(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 on-line purchase request referral agreement with
ABT and who otherwise meets GECAFS'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's 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.
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(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 will be the rate factor announced by GECAFS from time
to time in its sole discretion as the minimum rate factor acceptable to GECAFS.
Upon ten business days' prior written notice, 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 [*] greater than the lowest monthly Contract payment 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, 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's underwriting criteria then in effect
which would enable ABTAC to forward to GECAFS only those GECAFS Applications
meeting an agreed-upon subset of credit criteria and to forward the remaining
applications to other financing sources. Such responsibilities are illustrated
by 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 monthly Contract volume targets of [*], [*] and [*],
respectively, during the first three years 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 six months, and periodically thereafter, based upon the extent to which
those expectations are being realized.
SECTION 2. RECEIPT AND TRANSMISSION OF APPLICANT INFORMATION
(A) Subject to the provisions of Section 1, ABTAC will transmit each
completed GECAFS Application to GECAFS by telephone, telefax, e-mail, 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.
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(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.
SECTION 3. UNDERWRITING
(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's 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 four hours
after electronic receipt of a GECAFS Application but, absent unusual
circumstances, such review will be completed not later than the following
business day.
(C) GECAFS reserves the sole right and power to change the underwriting
criteria in accordance with GECAFS's 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's 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
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 two business days
following compliance with all requirements for submission of Contracts under the
terms of the 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
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[*] Confidential Treatment Requested
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
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 1.D. hereof, weekly for Contracts funded in
the prior period but in no event will compensation for any Contract be paid more
than 30 days 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
(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: [*].
(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 pre-defined 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.
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SECTION 9. GUARANTEE
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
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 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) All 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.
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(7) ABTAC warrants that it has the legal and valid right to use
any registered or unregistered trademark, tradename, service mark, 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
following representations and warranties to ABTAC:
(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, tradename, service mark, logo, emblem
or other proprietary designation, or any variations, derivatives and
modifications thereof, used by it in any materials provided to ABTAC or used by
GECAFS in connection with the Agreement.
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[*] Confidential Treatment Requested
SECTION 11. INDEMNIFICATION
(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 attorney's 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 attorney's fees and costs) by third parties
arising out of any gross negligence or intentional misconduct of GECAFS in
connection with GECAFS's performance of its obligations under this Agreement or
relating to any claim regarding GECAFS's 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
(A) This Agreement will remain in effect for a period of [*] years
from the date hereof unless terminated by either party upon [*] months' 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 below. Notwithstanding the foregoing, such termination fee
will be reduced by [*] for each full calendar month during which the volume
targets set forth in Section 1(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 six months as set forth in Section l(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.
Non-payment 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.
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SECTION 13. NOTICES
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 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 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 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, know-how, 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 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 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
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.
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(F) Severability. If any provision of the Agreement is declared or 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 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 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
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 mark 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
accordance with the laws of the State of California, without regard to conflicts
of law principles.
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: [SIG]
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Its: Managing Dir. N.A.
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AUTO-BY-TEL ACCEPTANCE CORPORATION
By: [SIG]
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Its: Chief Operating Officer
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AUTO-BY-TEL CORPORATION, as Guarantor
By: [SIG]
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Its: Vice President/GC
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[GE LOGO] GE Capital EXHIBIT A
Consumer Application
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INSTRUCTIONS: Please Use Black Ink To Complete Application. You may apply for credit individually or jointly. Please indicate
whether you are applying: [ ] Individually or [ ] Jointly
Please indicate whether the vehicle will be used primarily for: [ ] Personal or Family Purposes or
[ ] Business, Commercial or Agricultural Purposes
Boxes A and C below are to be completed by the Applicant.
If this is a joint application, the Joint Applicant should complete Box B. If this is not a joint application, Box B should be
completed with information about the Applicant's spouse if: (1) the Applicant is relying on the spouse's income as a repayment
source for the credit requested or (2) the Applicant resides in a community property state or is relying on property as a repayment
source which is located in a community property state (that is, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas,
Washington, or Wisconsin).
When completing Boxes A and B please note that alimony, child support, or separate maintenance income need not be revealed if you
do not wish it considered a repayment source.
If you reside in a community property state, please indicate whether you are:
Applicant [ ] Married [ ] Separated [ ] Unmarried (includes single, divorced, or widowed)
Joint Applicant [ ] Married [ ] Separated [ ] Unmarried (includes single, divorced, or widowed)
If you are married and reside in a community property state, unless otherwise indicated on this application it will be presumed
that all stated income and assets are community property, all stated debts and obligations are liabilities of the community
property, and this request for credit is made in the interest of your marriage or family.
VEHICLE INFORMATION
Type of Contract:
[ ] Retail Installment [ ] "Flexible Loan" [ ] Long Term Lease [ ] Lease Assumption # Dealership Name
- -----------------------------------------------------------------------------------------------------------------------------------
Dealer Phone Contact Yr. Make []New Model Mileage
[]Used
[]Demo
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LEASE INFORMATION Cap MSRP Term Mo. Payment
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RETAIL INSTALLMENT INFORMATION Amount Financed Invoice Dlr. Installed Options Credit Ins. MBP
$ $ $ $ $
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Fax Other Charges Cash Down Payment $ Yr. Make Model Residual "Flexible Loan" Only Term Mo. Payment
$ $ Trade In $
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A. INFORMATION REGARDING APPLICANT:
- -----------------------------------------------------------------------------------------------------------------------------------
Full Name Date of Birth Social Security Number Ages of Dependents Home Phone
- - [ ]
- -----------------------------------------------------------------------------------------------------------------------------------
Current Address Street City State County Zip Code How Long? # Yrs. in Community
Yrs. Mos.
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Previous Address (Min. 5 yr. history - use addt'l sheets if necessary) Zip Code How Long? Business Phone
Yrs. Mos. [ ]
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Employer Name Business Address How Long? Occupation
Yrs. Mos.
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Self Employed Nature of Business Gross Monthly Income Source of Other Income Amount Total Gross Monthly
[ ]Yes [ ]No $ (Alimony, Child Support Maintenance Optional) $ Income $
- -----------------------------------------------------------------------------------------------------------------------------------
Previous Employer Name, City, State Phone How Long? Occupation
[ ] Yrs. Mos.
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Nearest Relative Not Living With You (Full Address) Phone Relationship
[ ]
- -----------------------------------------------------------------------------------------------------------------------------------
Personal Reference (Full Address) Phone
[ ]
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B. INFORMATION REGARDING JOINT APPLICANT, SPOUSE OR OTHER PERSONS:
- -----------------------------------------------------------------------------------------------------------------------------------
Full Name Relationship to the Applicant (if any) Date of Birth Social Security Number
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Current Address (if different than applicant) Street City State Zip Code How Long? Occupation
Yrs. Mos.
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Employer Name Business Address How Long? Business Phone
Yrs. Mos. [ ]
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Self Employed Nature of Business Total Gross Monthly Source of Other Income Amount Total Gross Monthly
[ ]Yes [ ]No Income $ (Alimony, Child Support Maintenance Optional) $ Income $
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Previous Employer Name, City, State Phone How Long? Occupation
[ ] Yrs. Mos.
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C. FINANCIAL INFORMATION - ALL LOANS, LEASES AND OTHER OBLIGATIONS (INCLUDING ALIMONY, CHILD SUPPORT, MAINTENANCE)
- -----------------------------------------------------------------------------------------------------------------------------------
Residence Lienholder or Landlord Name Account No. Original Balance Balance Owing Mo. Payment
[ ]Buying or Own
[ ]Rent -----------------------------------------------------------------------------------------------------------------
[ ]With Parents Address $ $ $
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Name and Account No. Address $ $ $
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Name and Account No. Address $ $ $
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Previous Vehicle Was Name of Lessor or Financing Creditor Branch No. City, State Account No. Original Balance [ ]Open
[ ]Leased [ ]Purchased [ ]Paid
[ ]Trade
- -----------------------------------------------------------------------------------------------------------------------------------
Checking Name Branch Phone Account No. Balance
[ ] $
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Saving/ Name Branch Phone Account No. Balance
Money Mkt. [ ] $
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Have You Ever Obtained Credit [ ] Yes (List Name & Address) Have You Ever No
Under A Different Name? [ ] No Filed Bankruptcy Yes - Date_____________
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The following driver information is not required if application is being made for retail installment credit or "Flexible Loan"
credit.
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LIST ALL OPERATORS IN ORDER OF MOST FREQUENT USE:
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% of Vehicle Use Birth Date Operator's License Number State Years Licensed
Mo. Day Yr.
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Garaging Address Number & Street City State Zip Phone Number
If Other Than Residence [ ]
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11
[*] Confidential Treatment Requested
Exhibit A: Continued
[*]
12
[*] Confidential Treatment Requested
Exhibit A: Continued
[*]
13
[*] Confidential Treatment Requested
Exhibit A: Continued
[*]
14
Exhibit B
[FLOW CHART]
GECAL - AFS / ABT
Process Flow
As Of
01/28/97
15
[*] Confidential Treatment Requested
EXHIBIT C
to
Financing Inquiry Referral Agreement.
dated as of February 1, 1997, between
General Electric Capital Auto Financial Services, Inc.
and Auto-By-Tel Acceptance Corporation
and Auto-By-Tel, Inc., as Guarantor (the "Agreement")
INFORMATION STANDARDS
[*]