EXHIBIT 10.16
EXECUTION COPY
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FINANCING INQUIRY REFERRAL AGREEMENT
This FINANCING INQUIRY REFERRAL AGREEMENT ("Agreement"), dated as of
October 25, 1996, between Chase Manhattan Automotive Finance Corporation, a
Delaware corporation ("CAF"), with its principal place of business at 900
Stewart Avenue, Garden City, New York 11530, on the one hand, and Auto-By-Tel
Acceptance Corporation ("ABTAC"), a Delaware corporation, with its principal
place of business at 18722 MacArthur Blvd., Irvine, CA 92612 and Auto-By-Tel,
Inc. ("ABT"), a Delaware corporation, located at 18722 MacArthur Blvd., Irvine,
CA 92612, as guarantor of the obligations of ABTAC under this Agreement, (in
such capacity, the "Guarantor").
W I T N E S S E T H
WHEREAS, ABTAC is in the business of, among other things identifying
persons interested in arranging financing for the purchase or lease of new and
used Vehicles and trucks ("Vehicles") who visit the ABT Internet website and
purchase a new Vehicle ("Customers") and CAF and Chase Manhattan Bank U.S.A.,
N.A. (hereinafter referred to collectively in the singular as "CAF") is in the
business of extending financing to certain persons for the purchase and lease of
Vehicles; and
WHEREAS, ABTAC desires to refer such Customers to CAF, and CAF desires
to purchase from Dealers (as defined herein) retail installment sale contracts
originated by such Dealers to finance the purchase of new motor Vehicles only
(excluding recreational vehicles) (such transactions, "RFTs") and to pay
marketing fees in connection with RFTs purchased by CAF as a result of ABTAC's
referrals;
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 CAF agree as follows:
SECTION 1. FINANCING PROGRAM
(a) ABTAC shall cause to be included on the ABT Website an
application for credit containing requests for the information designated by CAF
as set forth on Exhibit A hereto (the "Application"). The Application shall
request the information specified by CAF and shall be in a form reasonably
satisfactory to CAF. CAF may request changes from time to time in the
information solicited by the Application and, provided the requests are made
[*] Confidential Treatment has been requested for certain portions of this
exhibit.
in writing and with reasonable notice, ABTAC shall use its best efforts to
promptly accommodate such requests; provided, however, that CAF shall use its
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best efforts not to request changes to the information requested by, or form of,
the Application (unless such changes are required by law) more often than once
in any three-month period; provided, further, if such changes are required by
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law, and CAF gives ABTAC 30 days notice, ABTAC shall honor such requested change
within such thirty (30) day period.
(b) Unless it already has done so, CAF will enter into its standard
dealer agreement ("Closing Agreement") with each seller of Vehicles in the
United States and the District of Columbia (the "Territory") who has executed an
on-line purchase referral agreement with ABT (each, a "Dealer," and together the
"Dealers"). The Closing Agreement shall contain customary terms no less
favorable to the Dealers than CAF's customary agreements in use with its other
financing programs and shall govern the terms upon which the Dealer and CAF will
close vehicle financing transactions referred through this Agreement. Upon
execution of a Closing Agreement, CAF shall assign such Dealer an identifying
number (the "Dealer ID") and inform ABTAC of such number. CAF may terminate its
relationship with any Dealer at any time for any reason, subject to the terms
and conditions of its Closing Agreement with such Dealer. CAF shall notify ABT
if it terminates any such Dealer under the provisions of its Closing Agreement
with such Dealer. Notwithstanding the foregoing, CAF shall not be obligated to
enter into a Closing Agreement or otherwise do business with any Dealer which
CAF has determined it will not do any business.
(c) Except as specified to the contrary in this Agreement, ABTAC (i)
shall not be a party to, (ii) shall not have any obligations with respect to,
and (iii) shall be held harmless by each Dealer and CAF with respect to any
losses or liabilities arising from or in connection with, the Closing
Agreements. If for any reason the Closing Agreement between a Dealer and CAF is
terminated, then CAF shall be under no obligation to approve any Application
received from Customers of such Dealer.
(d) CAF agrees to offer a buy-rate for each approved Customer credit
application at terms no less favorable than those offered to the applicable
Dealer by CAF. For each Customer credit application approved, CAF agrees to
inform ABTAC of the buy-rate offered to the applicable Dealer for RFTs. On a
monthly basis, the buy rate for RFTs purchased from Dealers by CAF that month
shall [*] (the "Base Range"). CAF may, upon 90 days written notice (a "Base
Range Notice") to ABTAC, raise the Base Range.
Subject to the ability of CAF to handle the systems issues
involved, as reasonably determined by CAF, and pursuant to a methodology to be
agreed upon by CAF and ABTAC, from time to time, upon ten (10) business days
written request from ABTAC, CAF shall raise the buy rate offered on RFTs, [*]
over the life of the term of this Agreement, which raise shall be paid to ABTAC
in the form of an increase in the fees paid to ABTAC by CAF pursuant to Section
6. Such increase in fees shall be determined by reference to the present value
of such rate raise determined in accordance with the
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assumptions employed by CAF for its valuation of excess spread on the portion of
the excess spread CAF retains on such loan.
(e) For so long as the "Exclusivity Conditions" (as defined below)
are met, CAF shall not enter into any agreement or arrangement similar to this
Agreement with any other Internet automobile buying, purchase assistance, or
automotive pricing information program or service, whereby the Internet program
or service provider receives or solicits credit information from its customers
to finance the purchase of new motor vehicles only (excluding recreational
vehicles), forwards that information for credit review to CAF and CAF purchases
that customer's retail installment sales contract originated by an automobile
dealer that has executed an on-line purchase or financing referral agreement or
similar agreement with the Internet program or service provider; provided,
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however, that (i) CAF's rights to and/or use of IBM's Auto Loan Exchange System
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for indirect dealer financing shall not violate the provisions of this Section
1(e); and (ii) CAF, any affiliate of CAF or any person controlled by or under
common control with CAF may, after the date hereof, acquire control (through
merger, acquisition, consolidation or purchase of all or substantially all of
the assets) of any corporation or other entity (other than a corporation or
entity which has as its primary line of business services substantially similar
to ABT and ABTAC) which at the time of such acquisition is engaged in a business
or service substantially similar to that contemplated by this Agreement, so that
such corporation or entity (including the surviving or continuing entity in any
acquisition effective on a merger, consolidation or purchase of assets) shall
not violate the provisions of this Section 1(e). CAF shall not use or
participate in the use of the ABTAC Marks (as defined in Schedule 2) in
conjunction with the offering or making of any automobile finance product or
product related thereto on the Internet.
For purposes of this Agreement, the term "Exclusivity Conditions" shall
mean the occurrence of the following two conditions:
(i) ABTAC forwards to CAF [*] of the Applications for RFTs ABTAC
receives from Customers who qualify for financing from or through
ABTAC within the Base Range; and
(ii) Of the Applications received by CAF from ABTAC, [*] result in an
RFT purchased from a Dealer.
(f) From time to time, ABTAC shall forward to CAF Applications
received from Customers. CAF shall review each forwarded Application and, if
such Application does not represent a credit which CAF will approve within the
Base Range, CAF shall so inform ABTAC and ABTAC may forward such Application to
another financing source.
(g) ABTAC will be responsible for informing Dealers of the nature of
CAF's financing program. ABTAC will provide CAF with a list of the Dealers with
addresses
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so that CAF may forward Closing Agreements to them for signature. CAF shall
provide ABTAC with a copy of the form of Closing Agreement.
(h) ABTAC shall comply at all times with the provisions of the
federal Fair Credit Reporting Act and the Equal Credit Opportunity Act as well
as the so-called "fair lending" laws, in each case pertaining to the performance
of its obligations under this Agreement: including but not limited to the
following:
{A} ABTAC will not submit any Application or credit information
to CAF with respect to applicants if ABTAC has any knowledge that such
Application, credit information or applicant is fraudulent, or that
the Application or credit information contains information which ABTAC
knows is untrue; and
{B} ABTAC will, on its Website, advise each applicant that
his/her Application may be submitted to Chase Manhattan Bank USA,
N.A., 802 Delaware Avenue, Wilmington DE 19801, or such other address
as CAF may specify from time to time.
SECTION 2. RECEIPT AND TRANSMISSION OF APPLICANT INFORMATION
(a) Subject to the provisions of Section 1 (f), ABTAC will transmit
each completed Application to CAF by telephone, telefax, e-mail, or other
electronic or agreed upon means. When transmitting an Application to CAF, ABTAC
will also designate the Dealer that is to be notified of the credit decision.
(b) ABTAC will not use any such information in any manner which
violates applicable law in effect from time to time.
SECTION 3. UNDERWRITING
(a) Upon receipt, CAF will review each Application in accordance
with its underwriting criteria in effect from time to time. ABTAC acknowledges
that CAF has sole discretion in determining whether or not to approve an
Application, which discretion CAF agrees to exercise in a manner consistent with
its company-wide or market-wide underwriting procedures, as the case may be. CAF
shall inform ABTAC whether an Applicant has been approved, conditionally
approved or denied, but shall not reveal the reasons it has denied any
Application.
(b) CAF will complete its review of [*] of the Applications within
the two (2) business hours after electronic receipt of the Application and a
further [*] of such time. Compliance with these performance standards shall be
measured on a monthly basis. If CAF fails to comply with
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these performance standards, ABTAC's sole remedy shall be to terminate this
Agreement pursuant to Section 9(b). CAF's business hours will be 8:00 a.m. to
9:00 p.m. Eastern Time, each day of the year, except for those days banks
located in New York are required to close. Subject to the mutual agreement of
the parties, the parties shall review the foregoing business hours and expand
same if justified economically by business volume.
(c) CAF reserves the sole right and power to change the
Underwriting Criteria in accordance with sound lending practices consistent with
CAF's normal business practices and subject to applicable law, and further to
suspend, restrict or modify the purchase of RFTs from Dealers in any portion of
the Territory for any reason. CAF shall provide ABTAC with advance written
notice, given as early as practicable, of any actions under this clause (c) it
plans to implement. Any such actions shall be taken in good faith and only if
consistent with actions taken by CAF on a company-wide basis.
SECTION 4. COMMUNICATION OF CREDIT DECISIONS
At the completion of underwriting, subject to the time-frames set
forth in Paragraph 3(b) of this Agreement, CAF will notify ABTAC, [via E-MAIL]
or such other method as agreed upon by the parties from time to time, of CAF's
credit decision, and ABTAC shall use its best efforts to promptly notify the
Dealer and the Applicant on behalf of the Dealer and CAF of CAF's credit
decision, and in any event shall notify [*] and Applicants within two business
hours. If CAF declines a request for credit, CAF will send to the Applicant any
and all notices 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. CAF shall not provide
Applications received from ABTAC which do not result in an RFT purchase from a
Dealer to any other financing source, including without limitation, ProCredit
Corp.
SECTION 5. CLOSING AND FUNDING
CAF and the Dealer shall use its best efforts to close approved
financing within [*] after receipt from the Dealer of all properly completed and
required documentation pursuant to the terms of the Closing Agreements. CAF will
remit the proceeds of each purchased RFT to the related Dealer in a timely
manner.
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SECTION 6. COMPENSATION
(a) During the term of this Agreement, CAF shall pay ABTAC a
service fee, in the amounts determined by reference to Exhibit A, and during the
term of this Agreement, CAF shall pay to each Dealer a service fee, in the
amounts determined by reference to Exhibit A and further subject to the terms of
the Closing Agreement for each RFT purchased under the terms of this Agreement.
The payment to ABTAC shall be made on the business day following any funding and
the payment to Dealer shall be made in accordance with the terms of the
applicable Closing Agreement. Dealer may markup CAF's buy rate, up to a maximum
of [*] subject to the terms of the Closing Agreement and any applicable
agreement between the Dealer and ABTAC, which shall be provided to CAF. Dealers
will earn reserves in accordance with CAF's standard practices in connection
with any such mark up, subject to the terms of the Closing Agreement.
(b) ABTAC may appoint public accountants of its choice no more than
once during any 12 month period, and at its sole expense, for the purpose of
auditing CAF's compliance with the compensation provisions specified in Section
6 of this Agreement and CAF agrees to grant such accountants access, during
normal business hours and upon reasonable notice, to all records necessary to
determine the compliance of CAF with the compensation provisions of Section 6 of
this Agreement. If the results of such audit reveal a discrepancy between the
amounts paid by CAF hereunder and the amounts which should have been paid
hereunder, then the appropriate payments shall be made (i) if to ABTAC,
immediately, and (ii) if to CAF, by the withholding of [*] of such amount from
the payments to be made to ABTAC over the succeeding six months with any balance
due hereunder payable on the 180th day notwithstanding any termination of this
Agreement. If the discrepancy is in ABTAC's favor and exceeds [*] then CAF shall
reimburse ABTAC for the full cost of the audit.
SECTION 7. REPORTS
(a) [*] via facsimile or such other method as agreed upon by the
parties from time to time, CAF will send to ABTAC a report identifying each RFT
to an Applicant, sorted by Dealer ID, that was purchased from a Dealer on the
preceding day (or, in the case of a report submitted [*] each RFT purchased from
a Dealer on each of the three preceding days).
(b) On or before the 10th day of each month, via facsimile or such
other method as agreed upon by the parties from time to time, CAF will send to
ABTAC a report, sorted by Dealer ID, outlining for the preceding month (i) the
number of Applications received from ABTAC, (ii) the number of Applications that
were approved, (iii) the number of Applications that were denied, (iv) the
number of Applications pending at month-end, and (v) the average processing time
for Applications, and the amount financed under each RFT. In the case of the
information set forth in clauses (i), (ii) and (iii) of the preceding sentence,
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the report shall identify each Application by name of applicant. CAF shall
include with such report, a report indicating any Dealers which executed a
Closing Agreement and any Closing Agreements which terminated.
(c) On or before the 10th day of each month, via facsimile or such
other method as agreed upon by the parties from time to time, CAF will send to
ABTAC a report on the performance of RFTs purchased from Dealer detailing, for
each month this Agreement shall have been in effect, the number and aggregate
outstanding balance of (i) RFTs purchased during the month, (ii) RFTs in a
current status, (iii) RFTs more than 30 but less than 60 days delinquent, (iv)
RFTs more than 60 but less than 90 days delinquent, and (v) RFTs more than 90
days delinquent, (vi) repossessions and repossession ratio, (vii) gross and net
charge-offs and loss ratios. This monthly report will be provided on an overall
portfolio basis with respect to RFTs purchased from Dealers.
(d) ABTAC agrees to maintain complete and accurate books and
records and procedures concerning the taking and referral of Applications and
credit information and compliance with all applicable law. Throughout the term
of this Agreement, and for a period of twenty five (25) months after the
termination of this Agreement, CAF, its duly authorized agents, representatives
or employees or federal or state agencies having jurisdiction over CAF, may from
time to time, upon reasonable notice and during normal business hours, inspect
such books, records and procedures to ensure compliance with ABTAC's obligations
concerning the taking and referral of Applications and credit information under
this Agreement and compliance with all applicable law.
(e) On or before the 10th day of each month, via facsimile or such
other method as agreed upon by the partners from time to time, ABTAC will send
to CAF a report specifying for the preceding month, the number of Applications
for RFTs ABTAC receives from customers who qualified that month for financing
from or through ABTAC within the Base Range.
SECTION 8. INDEMNIFICATION
(a) ABTAC shall defend, indemnify and hold harmless CAF 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,
counterclaims, damage, cost or expense (including reasonable attorney's fees and
costs), whether asserted in a judicial or administrative proceeding, arising out
of either (i) [*]
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[*]
(b) CAF shall 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,
counterclaims, damage, cost or expense (including reasonable attorney's fees and
costs), whether asserted in a judicial or administrative proceeding, arising out
of either (i) [*]
(c) Promptly after the receipt by either party hereto of notice of
any claim, action, suit or proceeding of any third party which is subject to
indemnification hereunder, such party (the "Indemnified Party") shall give
written notice of such claim to the party obligated to provide indemnification
hereunder (the "Indemnifying Party"), stating the nature and basis of such claim
and the amount thereof, to the extent known. Failure of the Indemnified Party to
give such notice shall not relieve the Indemnifying Party from any liability
which it may have on account of this indemnification or otherwise, except to the
extent that the Indemnifying Party is materially and adversely prejudiced
thereby. The Indemnifying Party shall be entitled to participate in the defense
of and, if it so chooses, to assume the defense of, or otherwise contest, such
claim, action, suit or proceeding with counsel selected by the Indemnifying
Party and reasonably satisfactory to the Indemnified Party. Upon the election by
the Indemnifying Party to assume the defense of, or otherwise contest, such
claim, action, suit or proceeding, the Indemnifying Party shall not be liable
for any legal or other expenses subsequently incurred by the Indemnified Party
in connection with the defense thereof. although the Indemnified Party shall
have the right to participate in the defense thereof and to employ counsel, at
its own expense, separate from the counsel employed by the Indemnifying Party.
Notwithstanding the foregoing, the Indemnifying Party shall be liable for the
fees and expenses of counsel employed by the Indemnified Party, if, and only to
the extent that (i) the Indemnifying Party has not employed counsel or counsel
reasonably acceptable to the Indemnified Party to assume the defense of action
within a reasonable time after receiving notice of the commencement of the
action, (ii) the employment of counsel and the amount reimbursable therefor by
the Indemnified Party has been authorized in writing by the Indemnifying Party
or (iii) representation of the Indemnifying Party and the Indemnified Party by
the same counsel would, in the opinion of such counsel, constitute a conflict of
interest (in which case the Indemnifying Party will not have the right to direct
the defense of such action on behalf of the Indemnified Party). The parties
shall use commercially reasonable efforts to minimize Losses from claims by
third parties and shall act in good faith in responding to, defending against,
settling or otherwise dealing with such claims, notwithstanding any dispute as
to liability as between the parties under this Article 9. The parties shall also
cooperate in any such defense, give each other full access to all information
relevant thereto and make employees and other representatives available on a
mutually convenient basis to provide additional information and explanation of
any material provided
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hereunder. Whether or not the Indemnifying Party shall have assumed the defense,
the Indemnifying Party shall not be obligated to indemnify the other party
hereunder for any settlement entered into without the Indemnifying Party's prior
written consent, which consent shall not be unreasonably withheld. The
Indemnifying Party shall not compromise or settle any claim, action, suit or
proceeding, without the consent of the Indemnified Party (which consent shall
not be unreasonably withheld) unless the terms of such settlement or compromise
release the Indemnified Party from any and all liability with respect to such
claim, action, suit or proceeding.
SECTION 9. TERM AND TERMINATION
(a) This Agreement shall remain in effect for a period of [*] from
the date hereof unless terminated by either party upon [*] prior written notice.
This Agreement shall also terminate if required by governmental authority or
court of law, but only insofar as this Agreement applies to such jurisdiction
affected.
(b) If any party shall be in breach of any material obligation
under this Agreement and such breach shall remain uncured for a period of [*]
after written notice thereof from the other party (or, if such breach is curable
and requires more than [*] to cure, if such cure is not commenced within [*] and
thereafter diligently prosecuted), then the other party may, by written notice
sent, terminate this Agreement upon 30 days after delivery of such notice. Non-
payment of amounts due under this Agreement shall be deemed to be a breach of a
material obligation hereunder, but institution of suit for payment of amounts
due under this Agreement shall not be deemed to be an automatic termination
hereunder. Notwithstanding anything in this Agreement to the contrary, either
party has the right to terminate this Agreement immediately, upon written notice
to the other party, if the other party's breach of any material obligation of
this Agreement causes the non-breaching party to be in violation of any
applicable law, rule, regulation or order.
(c) ABTAC may terminate this Agreement on [*] notice at any time
between the receipt of a Base Range Notice and the date specified in such notice
for the increase in the Base Range.
(d) Notwithstanding paragraph 9(a) above, CAF may terminate this
Agreement on [*] written notice if, on the first business day of any calendar
month, the Exclusivity Conditions have not been met during the most recently
completed [*], measured on a weighted average basis. For any six month period,
CAF's right under this Section 9(d) shall expire on the fifteenth day of the
month following the end of such period, but shall have no effect on any right
CAF may have to terminate under any other provision of this Agreement.
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(e) At any party's option, and upon written notice of exercise of
the option, this Agreement shall 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 10. NOTICES
All notices or transmissions pursuant to this Agreement, unless
otherwise specified, shall be by facsimile transmission, by personal delivery,
or by registered or certified mail, return receipt requested, to the addresses
of the parties listed on Schedule 1 hereto, or such other address as any party
listed below shall specify in writing to the others in a notice conforming to
this Section.
SECTION 11. GUARANTEE
The Guarantor hereby unconditionally and irrevocably guarantees to
CAF, 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 CAF and ABTAC may mutually agree to modify the Obligations
or any agreement between CAF and ABTAC without in any way impairing or affecting
this Guarantee. The Guarantor agrees that the liability hereunder will not be
affected by any settlement, extension, renewal, or modification of this
Agreement or by the discharge or release of the Obligations of ABTAC, whether by
operation of law or otherwise. The Guarantor agrees to also be liable for all
fees and costs, including reasonable attorney's fees, incurred by CAF in
enforcing the terms of this guarantee.
SECTION 12. REPRESENTATIONS, GENERAL
The representations and warranties set forth on Schedule 2 to this
Agreement and the provisions of general application set forth on Schedule 3 to
this Agreement are incorporated herein by reference and shall have the same
force and effect as if set forth herein in their entirety.
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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.
CHASE MANHATTAN AUTOMOTIVE FINANCE CORPORATION
By: /S/ JAMES B. BREW
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Title:
AUTO-BY-TEL ACCEPTANCE CORPORATION
By: /S/ W. RANDOLPH ELLSPERMANN
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Title: CHIEF OPERATING OFFICER
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AUTO BY-TEL, INC., as Guarantor
By: /S/ PETER R. ELLIS
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Title: /S/ PRESIDENT
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EXHIBIT A
TO
FINANCING INQUIRY REFERRAL AGREEMENT,
DATED AS OF OCTOBER 25, 1996, BETWEEN
CHASE MANHATTAN AUTOMOTIVE FINANCE CORPORATION,
AND AUTO-BY-TEL ACCEPTANCE CORPORATION
AND AUTO-BY-TEL, INC., AS GUARANTOR (THE "AGREEMENT")
COMPENSATION SCHEDULE
Capitalized terms used in this Exhibit and not defined herein shall have the
meanings ascribed thereto in the Agreement.
The following compensation shall be paid [*] to the Agreement:
[*]
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documents are received and accepted by CAF. All amounts paid to Dealer shall be
subject to the terms of the Closing Agreements.
Exhibit A - Page 2 of 1
SCHEDULE 1
TO
FINANCING INQUIRY REFERRAL AGREEMENT,
DATED AS OF OCTOBER 25, 1996, BETWEEN
CHASE MANHATTAN AUTOMOTIVE FINANCE CORPORATION,
AND AUTO-BY-TEL ACCEPTANCE CORPORATION
AND AUTO-BY-TEL, INC., AS GUARANTOR (THE "AGREEMENT")
NOTICES
Capitalized terms used in this Schedule
and not defined herein shall have the meanings
ascribed thereto in the Agreement.
If to CAF:
Chase Manhattan Automotive Finance Corporation
900 Stewart Avenue
Garden City, New York 11530
Attention: Anthony Langan,
Marketing Executive,
or his successor
If to ABTAC: AUTO-BY-TEL ACCEPTANCE CORPORATION
18722 MacArthur Blvd.
Irvine, CA 92612
Attention: Peter Ellis,
President,
or his successor
If to ABT: AUTO-BY-TEL, INC.
18722 MacArthur Blvd.
Irvine, CA 92612
Attention: Peter Ellis,
President,
or his successor
Schedule 1 - Page 1 of 1
SCHEDULE 2
TO
FINANCING INQUIRY REFERRAL AGREEMENT,
DATED AS OF OCTOBER 25, 1996, BETWEEN
CHASE MANHATTAN AUTOMOTIVE FINANCE CORPORATION,
AND AUTO-BY-TEL ACCEPTANCE CORPORATION
AND AUTO-BY-TEL, INC., AS GUARANTOR (THE "AGREEMENT")
REPRESENTATIONS AND WARRANTIES
Capitalized terms used in this Schedule
and not defined herein shall have the meanings
ascribed thereto in the Agreement.
(A) Representations and Warranties of ABTAC.
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ABTAC hereby makes the following representations and warranties to CAF:
(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 as a "Licensee" 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
Schedule 2 - Page 1 of 3
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 (i) its certificate of incorporation or bylaws, (ii) 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 (iii) 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 (i) asserting the invalidity of the
Agreement, (ii) seeking to prevent the consummation of any of the transactions
contemplated by the Agreement, or (iii) 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) ABTAC has all regulatory approvals, authorizations, licenses,
permits and other permissions, consents and authorities whatsoever, needed to
operate the ABT Website and perform ABTAC's obligations under the Agreement.
(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 CAF or used by ABTAC in
connection with the Agreement (the "ABTAC Marks").
(B) Representations and Warranties of CAF. CAF hereby makes the following
- -----------------------------------------
representations and warranties to ABTAC:
(1) CAF is duly licensed where and as required in each state in which
it transacts business and is not in default of such state's applicable laws,
rules and regulations, except where such default would not have a material
adverse effect on the ability of CAF to conduct its business or to perform its
obligations under the Agreement.
(2) CAF 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
CAF have full power and authority to bind CAF. The execution, delivery and
performance of the Agreement, and the performance by CAF of all transactions
contemplated therein, have been duly authorized by all necessary and appropriate
and corporate action on the part of CAF.
Schedule 2 - Page 2 of 3
(3) The Agreement has been duly authorized and executed by CAF and is
valid, binding and enforceable against CAF 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 CAF of the Agreement do not conflict with
any term or provision of the certificate of incorporation or bylaws of CAF, or
any law, rule, regulation, order, judgment, writ, injunction or decree
applicable to CAF of any court, regulatory body, administrative agency or
governmental body having jurisdiction over CAF.
(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 CAF
of the Agreement.
(5) There is no action, proceeding or investigation pending or, to
the best knowledge of CAF, threatened against it before any court,
administrative agency or other tribunal (i) asserting the invalidity of the
Agreement, (ii) seeking to prevent the consummation of any of the transactions
contemplated by the Agreement, or (iii) which could reasonably be expected to
materially and adversely affect the performance by CAF of its obligations under,
or the validity or enforceability of, the Agreement.
(6) CAF warrants that it has all regulatory approvals,
authorizations, licenses, permits and other permissions, consents and
authorities whatsoever, as needed (i) to offer and enter into the financing
arrangements with Customers contemplated by the Agreement in each jurisdiction
in the Territory and to otherwise perform its obligations under the Agreement,
and (ii) to use any materials developed, provided or used by CAF in connection
with the Agreement.
(7) CAF 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 CAF in
connection with the Agreement.
Schedule 2 - Page 3 of 3
SCHEDULE 3
TO
FINANCING INQUIRY REFERRAL AGREEMENT,
DATED AS OF OCTOBER 25, 1996, BETWEEN
CHASE MANHATTAN AUTOMOTIVE FINANCE CORPORATION,
AND AUTO-BY-TEL ACCEPTANCE CORPORATION
AND AUTO-BY-TEL, INC., AS GUARANTOR (THE "AGREEMENT")
PROVISIONS OF GENERAL APPLICABILITY
Capitalized terms used in this Schedule
and not defined herein shall have the meanings
ascribed thereto in the Agreement.
(a) Entire Agreement. Except as specified in paragraph (b) of this
----------------
Schedule 3, the Agreement and the exhibits and schedules 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. The indemnities of Section
8 of the Agreement shall survive the termination thereof.
(b) Confidentiality. Both ABTAC and CAF 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 shall advise the other of material and
information that is confidential and/or proprietary. Proprietary Information
does not include materials or information that: (a) are already, or otherwise
become, generally known by third parties as a result of no act or omission of
the receiving party; (b) subsequent to disclosure hereunder are lawfully
received from a third party having the right to disseminate the information and
without restriction on disclosure; (c) are generally furnished to others by the
disclosing party without restriction on disclosure; (d) 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 (e) are independently developed by the receiving party
without use of confidential information of the disclosing party.
(i) Each party shall 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 required to by
law, rule, regulation or court order
Schedule 3 - Page 1 of 3
of any applicable jurisdiction. Each party shall also keep confidential the
terms of the Agreement and/or schedule hereto. The confidentiality provisions of
the Agreement shall survive the termination of the Agreement. Notwithstanding
any contrary provision of the Agreement, the confidentiality provisions of the
two confidentiality agreements executed by the parties hereto prior to the date
of the Agreement shall remain in full force and effect.
(ii) Notwithstanding any contrary provision of the Agreement,
as long as each party protects Proprietary Information of the other, neither the
exposure to the other party's confidential information nor its ownership of work
products shall prevent either party from using 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.
(c) Limitation of Liability. In no event shall either party be liable
-----------------------
to the other party for any incidental, special, exemplary or consequential
losses or damages of any kind whatsoever (including but not limited to lost
profits), even if advised of the possibility of such losses or damages and
regardless of the form of action.
(d) Assignment. Either party shall have the right to transfer or
----------
assign the Agreement to any direct or indirect wholly-owned subsidiary at no
charge or penalty; provided, however, that such assignee assumes assignors
-----------------
obligations, and assignee remains liable hereunder.
(e) Waiver. Neither party shall 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 shall 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 thirty (30) days, the other party
shall have the right to terminate the Agreement without liability.
(f) Severability. If any provision of the Agreement is declared or
------------
found to be illegal, unenforceable or void, then both parties shall 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 shall 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 it, obligations hereunder in accordance
with all applicable laws, rules and regulations now or hereafter in effect.
(g) Arbitration. The parties acknowledge that the Agreement evidences
-----------
a transaction involving interstate commerce. Any controversy or claim arising
out of or
Schedule 3 - Page 2 of 3
relating to the Agreement, or the breach of the same, shall 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 shall be decided by arbitration which shall
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 Rule 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 the arbitrator(s) (i) will
decide which party must bear the expense, of the arbitration proceedings; (ii)
shall not have the authority to award punitive damages; and (iii) shall apply
the internal laws of the State of California. Notwithstanding anything herein to
the contrary, either party may proceed to a court of competent jurisdiction to
obtain injunctive relief at any time.
(h) Force Majeure. Neither party shall 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 shall be extended to such extent
as may be appropriate after the cause of the delay has been removed.
(i) Media Releases. ABTAC and CAF may utilize media releases to
--------------
publicize their business relationship with the prior approval of the other party
which shall not be unreasonably withheld. ABTAC and CAF shall not use any trade
name, service mark or any other information which identifies the other in sales,
marketing, advertising and publicity materials placed in any medium without
obtaining the prior written approval of the other.
(j) Governing Law. The Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of California, without regard to
conflicts of law principles.
(k) No Agency; No Joint Venture. Neither of ABTAC nor CAF is the
---------------------------
agent or representative of the other. Nothing contained herein nor the acts of
the parties hereto shall be construed to create a partnership, agency or joint
venture between ABTAC and CAF.
(l) Counterparts. The Agreement may be signed in two or more
------------
counterparts, each of which shall be deemed an original, and taken together they
shall be considered one agreement.
Schedule 3 - Page 3 of 3