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EXHIBIT 10.121
REFERRAL AGREEMENT
THIS REFERRAL AGREEMENT (the "Agreement") is effective as of this 22nd
day of September, 1999 ("Effective Date"), by and between National Auto Finance
Company, Inc. (the "Company") and Atlantic Coast Federal Credit Union
("Atlantic").
A. The Company is engaged in the purchase, financing and servicing of
retail installment sales contracts (each, a "Contract") originated by
automobile dealers (each, a "Dealer") in connection with such Dealers'
sale of new and used automobiles, vans and light duty trucks
(collectively, "Automobile") to non-prime consumers.
B. The Company desires to pay Atlantic a referral fee for each
Contract referred by Atlantic, which is actually purchased and funded
by the Company, and Atlantic is willing to accept such referral fee in
accordance with the terms of this Agreement.
NOW THEREFORE, for a valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties mutually agree with
each other as follows:
1. Payment of Referral Fee. In the event, and only in the event,
(1) Atlantic enters into a contractual agreement with a
Dealer whereby the Dealer offers to the Company the right to
purchase one or more contracts which are originated by such
Dealer (such Dealer, a "Referred Dealer") and (ii) the
Company actually purchases and funds such Contract from such
Referred Dealer, at the sole discretion of the Dealer, then
the Company shall pay to Atlantic an amount equal to $50.00
for each purchased and funded Contract as a one-time referral
fee (the Referral Fee) in full, final and complete
compensation for Atlantic's services in finding the Referred
Dealer and causing the Referred Dealer to refer the Contract
to this Company and $25.00 for each NAFI GAP policy sold with
each purchased and funded contract as a one time fee. The
Referral Fees and GAP Referral Fees shall be payable by the
Company to Atlantic on the 15th day of each calendar month
during the term of this Agreement for all Contracts which are
actually purchased from any Referred Dealer and funded by the
Company during the previous 30-day period.
2. Company's Representations and Warranties. The Company
represents and warrants to Atlantic that it (i) is duly
organized, validly existing and in good standing under the
laws of its jurisdiction of formation; (ii) has
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all requisite power and authority and all licenses and
permits to own and operate its properties and to carry on its
business as now conducted, and to enter into and perform its
obligations under this Agreement and the transactions
contemplated thereby and the performance of its obligations
thereunder; and (iii) has duly qualified and is authorized to
do business and is in good standing as a foreign corporation
(or is exempt from such requirements) and has obtained all
necessary licenses and approvals in each jurisdiction where
the character of its properties or the nature of its
activities makes such qualification necessary.
3. Atlantic's Representation and Warranties. Atlantic represents
and warrants to the Company that it (i) is duly organized,
validly existing and in good standing under the laws of its
jurisdiction of formation; (ii) has all requisite power and
authority and all licenses and permits to own and operate its
properties and to carry on its business as now conducted, and
to enter into and perform its obligations under this
Agreement and the transactions contemplated thereby and the
performance of its obligations thereunder; and (iii) has duly
qualified and is authorized to do business and is in good
standing as a foreign corporation (or is exempt from such
requirements) and has obtained all necessary licenses and
approvals in each jurisdiction where the character of its
properties or the nature of its activities makes such
qualification necessary.
4. Each Party Responsible for Own Costs and Expenses. Each party
agrees that all costs or expenses incurred by such party in
connection with referring any Contract to the Company and/or
this Agreement shall be paid by such party, without
reimbursement from the other party (except for the payment of
the Referral Fee with respect to any refunded Contract as set
forth in paragraph 1 of this Agreement).
5. No Agency, Authority or Power to Bind. Both parties are and
shall be independent contractors with respect to the terms,
provisions, and operation of this Agreement. In no event
shall either party have the right or power (whether express
or implied) to make any representation or warranty (express
or implied) on behalf of the other party or otherwise to bind
the other party in any way whatsoever.
6. Term and Modification. This Agreement shall be effective
commencing as of the date hereof. The term of this Agreement
shall be for one year from the date hereof. At the end of
such year and any succeeding years if the term of this
Agreement is extended (the "Anniversary Date"), such term
will be automatically extended for an additional year without
action on the part of either party. Either party may give
written notice to the other party, no less than the date that
is sixty (60) days prior to the Anniversary Date in any such
year, to the effect that the automatic
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extension will not occur, in which event the Agreement will
terminate on such Anniversary Date. Notwithstanding the
foregoing, the term of this Agreement shall be terminated
upon the happening of either of the following events: (a) the
mutual written consent of the Company and Atlantic; or (b)
Atlantic withdraws from the automobile dealer financing
market; or (c) if either party is in default, breach or
noncompliance in any respect of its representations,
warranties, covenants or agreements under this Agreement and
such defaulting party fails to cure such default, breach or
non-compliance after the expiration of forty five (45) days
after written notice is received by such party; or (d) if
either party makes an assignment for the benefit of creditors
or admits in writing its inability to pay its debts when due,
or if any liquidation, dissolution, bankruptcy,
reorganization, insolvency or other proceeding for the relief
of financially distressed debtors is commenced by or against
such party or a receiver, liquidator, custodian or trustee is
appointed for such a party or a substantial part of such a
party's assets (but if any of the foregoing occurs
involuntary, dissolution shall not occur unless the same is
not dismissed, stayed or discharged within ninety (90) days,
or if an offer for relief is entered against such party under
Title 11 of the United States Code).
In the event this Agreement is terminated for any reason,
NAFI's obligation to pay any compensation of any type or
nature, (except for Contracts funded or to be funded prior to
such termination) shall be terminated.
7. Negation of Partnership. Nothing contained in this Agreement
or in any document executed in connection with this Agreement
is intended to create any partnership, joint venture or
association between the parties hereto with reference to any
Contract, Dealer, automobile or the business of the Company
or Atlantic referenced herein and any inferences to the
contrary are expressly negated.
8. Governing Law. The law of the State of Florida (without
regard to conflict of law principles) and applicable federal
law shall govern, construe and apply to all aspects of this
Agreement.
9. Entire Agreement. This Agreement constitutes the entire
understanding and agreement between the parties hereto and
supersedes all prior written or oral understandings and
agreements between the parties hereto with respect thereto.
Each party hereto hereby acknowledges that, except as set
forth in this Agreement, there are not, and were not, any
representations, understandings, stipulations, agreements or
promises, oral or written, with respect to the payment of the
Referral Fee or otherwise.
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10. Company Indemnification. Company shall indemnify and hold
Atlantic harmless against any and all losses, claims,
damages, liabilities, regulatory or civil actions, costs or
expenses (including any attorneys' fees or other expenses
reasonably incurred by Atlantic in connection with
investigating any claim against it and defending any action
and any amounts paid in settlement or compromise) that arise
out of or are based upon (a) the failure of the Company, its
officers, employees or agents to conform to the statutes,
ordinances and other regulations and requirements of any
governmental authority in connection with performance of this
Agreement or any other contract thereunder, (b) the
negligence of Company, its officers, employees and agents,
(c) any action or inaction of Company, its officers,
employees and agents in performing the obligations of Company
under this Agreement or any Contract thereunder, and (d) any
breach by Company, its officers, employees or agents of any
term, condition, warranty, representation or any other
portion of this Agreement. Company's duties as set forth in
this section shall survive termination of this Agreement for
any reason.
11. Atlantic Indemnification. Atlantic shall indemnify and hold
Company harmless against any and all losses, claims, damages,
liabilities, regulatory or civil actions, costs or expenses
(including any attorneys' fees or other expenses reasonably
incurred by Company in connection with investigating any
claim against it and defending any action and any amounts
paid in settlement or compromise) that arise out of or are
based upon (a) the failure of Atlantic, its officers,
employees or agents to conform to the statutes, ordinances
and other regulations and requirements of any governmental
authority in connection with performance of this Agreement or
any other contract thereunder, (b) the negligence of
Atlantic, its officers, employees and agents, (c) any action
or inaction of Atlantic, its officers, employees and agents
in performing the obligations of Atlantic under this
Agreement or any Contract thereunder, and (d) any breach by
Atlantic, its officers, employees or agents of any term,
condition, warranty, representation or any other portion of
this Agreement. Atlantic's duties as set forth in this
section shall survive termination of this Agreement for any
reason.
12. Notices. Any notice, request, demand or other communication
shall be sufficiently given if in writing and delivered in
person or transmitted by telecopier (confirmed by reliable
overnight delivery service guaranteeing delivery by 10:30
A.M. on the next Business Day) or mailed by registered or
certified mail, postage prepaid, return receipt requested, or
sent by reliable overnight delivery service, addressed as
follows:
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If to the Company: National Auto Finance Company, Inc.
00000 Xxxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telephone Number: 000-000-0000
Fax Number: 000-000-0000
If to Atlantic: Atlantic Coast Federal Credit Union
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telephone Number: 000-000-0000
Fax Number: 000-000-0000
13. Waiver. To be effective, any waiver or modification of any
term or condition stated in this Agreement must be in writing
and signed by an authorized officer of the Company and
Atlantic and shall not be considered as a waiver of any
future obligation or right.
14. Severability. In the event that any paragraph of this
Agreement or portion thereof is held by a court to be invalid
or unenforceable for any reason, the other paragraphs and
portions of the Agreement shall not be invalid or
unenforceable and will continue in full force and effect.
15. Legal Action. If legal action is necessary to enforce this
Agreement or collect any amounts owing to Atlantic or the
Company, the prevailing party has the right, subject to
applicable law, to payment by the other party of all
attorney's fees and costs, including fees on any appeal and
any post-judgment actions.
16. Company Confidentiality. Company warrants that Company, its
officers, employees and agents will hold in strictest
confidence all information in any way related to Atlantic and
Atlantic's members, including, but not limited to names,
addresses, telephone numbers and all other information
regarding any member or their relationship with Atlantic.
Company warrants that Company, its officers, employees and
agents will not use such information for any purpose other
than providing the services set forth in this Agreement.
Company warrants that Company, its officers, employees and
agents will not provide any information about Atlantic or
Atlantic's members to any third party without Atlantic's
prior written consent. It is the express intent of the
parties that these warranties of confidentiality be construed
broadly and comprehensively. All warranties set forth in this
Section shall survive termination of this Agreement for any
reason.
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17. Atlantic Confidentiality. Atlantic warrants that Atlantic,
its officers, employees and agents will hold in strictest
confidence all information in any way related to Company and
Company's members, including, but not limited to names,
addresses, telephone numbers and all other information
regarding any member or their relationship with Company.
Atlantic warrants that Atlantic, its officers, employees and
agents will not use such information for any purpose other
than providing the services set forth in this Agreement.
Atlantic warrants that Atlantic, its officers, employees and
agents will not provide any information about Company or
Company's members to any third party without Company's prior
written consent. It is the express intent of the parties that
these warranties of confidentiality be construed broadly and
comprehensively. All warranties set forth in this Section
shall survive termination of this Agreement for any reason.
18. Assignment. This Agreement will be binding on the parties and
their respective successors and assigns. Atlantic's right to
assign this Agreement shall be subject to the written consent
of Company and such consent shall not be unreasonably
withheld. Atlantic may, without the necessity of obtaining
consent, assign this Agreement to a credit union service
organization or to any entity that directly or indirectly
controls or is controlled by Atlantic, which acquires all or
substantially all of its assets or into which it is merged or
reorganized. Company may not assign its rights under the
Agreement (except for the right to receive money) nor shall
controlling interest in Company be sold, transferred or
assigned to any party not currently an affiliate or a
shareholder of Company or a trust with a shareholder of
Company as trustee, without Atlantic first being given an
option to terminate this Agreement. Atlantic's option to
terminate shall continue for a period of twelve months after
assignment or transfer, but may be exercised only if there is
a substantial deterioration in the quality of Company's
services and support after the assignment or change in
controlling interest of Company. Such option to terminate
shall be exercised by notice given within the option period.
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IN WITNESS WHEREOF, each party set forth below has executed this
Agreement as of the date of acknowledgment to be effective on the date first
written above.
NATIONAL AUTO FINANCE COMPANY, INC.
By: /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
Title: President
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ATLANTIC COAST FEDERAL CREDIT UNION
By: /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
Title: President
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