REFERRAL AGREEMENT
THIS REFERRAL AGREEMENT (this "Agreement) is made as of this 15th day
of April, 1996, by and between FIRST UNION NATIONAL BANK OF NORTH CAROLINA, a
national banking association in its individual capacity and as agent and
attorneyin4act for each of its national bank affiliates described in Section
13(m) hereof (collectively, "First Union"), and AUTO CREDIT CLEARINGHOUSE L.P.,
a Delaware limited partnership ("ACCH").
STATEMENT OF PURPOSE
ACCH engages in the business of financing, securitizing and servicing
non-prime motor vehicle retail installment contracts originated by motor vehicle
dealers. First Union receives credit applications of borrowers from motor
vehicle dealerships and makes loans to approved borrowers but generally does not
finance non-prime motor vehicle retail installment contracts.
First Union desires to (a) refer on an exclusive basis to ACCH certain
credit applications for motor vehicle retail installment contracts from
dealerships and (b) have its sales finance division introduce ACCH to
dealerships in certain states for whom it currently provides consumer financing,
all in consideration of (i) a fee on each such motor vehicle retail installment
Contract purchased or financed by ACCH and (ii) an equity interest in the parent
company of ACCH as more particularly described in the partnership agreement of
such parent company.
ACCH desires to receive such referrals and introductions to make credit
underwriting decisions, to fund motor vehicle retail installment contracts and
to pay such fees on file terms and conditions provided herein.
NOW, THEREFORE, in consideration of file foregoing premises and the
mutual agreements and covenants contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
file parties hereto, intending legally to be bound, hereby agree as follows:
Section 1. Definitions. The following terms used in this Agreement
shall have the meanings set forth in this Section 1:
"ACCH" means Auto Credit Clearinghouse L.P., a Delaware limited
partnership.
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"ACCH Program" means a program of ACCH by which ACCH solicits and
evaluates credit applications and purchases from, or provides financing to, FU
Dealers for the purchase of Motor Vehicles by their customers, and the
marketing, training and other activities described herein related to such
purchases or financings. The ACCH Program shall be substantially similar to the
current pilot referral program by which First Union National Bank of Georgia
refers certain non-prime loans to ACCH as modified by file terms and conditions
hereof.
"Active FU Dealer" means (a) as of the date hereof, the FU Dealers
listed on Exhibit A hereto and (b) after the date hereof, (i) any FU Dealer such
Dealer has been introduced to ACCH and (ii) thereafter, any FU Dealer with
respect to which (A) ACCH shall have purchased or financed at least one (1)
Motor Vehicle retail installment contract during the first ninety (90) days
after file introduction of such Dealer to ACCH and (B) ACCH shall have purchased
or financed at least three (3) Motor Vehicle retail installment contracts during
each ConseCutive ninety (90) day period thereafter. A FU Dealer set forth on
Exhibit A shall cease to be an Active FU Dealer at such time as such FU Dealer
no longer satisfies the requirements set forth in clauses (A) and (B) of this
definition.
"Affiliate" of a specified Person means any other Person who (a)
directly or indirectly Controls, is Controlled by, or is under common Control
with, such specified Person, (b)owns or Controls either ten percent (10%) or
more of the outstanding voting stock or other voting equity or beneficial
interests of such specified Person or twenty percent (20%) or more of the value
of the total outstanding stock or other equity securities of such specified
Person determined on a xxxxx diluted basis, (c) is an executive officer,
director, general partner, trustee, manager, administrator, or representative or
agent (with respect to any matter for which such representative or agent has
been engaged by such Person) of such specified Person, or (d) is an executive
officer, director, trustee, manager, administrator, or representative or agent
or owns or Controls ten percent (10%) or more of the outstanding voting
interests of such other Person described in clause (a), (b) or (c) of this
Sentence, except that neither First Union nor ACCH shall be considered an
Affiliate of each other.
"Application" means a credit application of a potential purchaser
(excluding potential lessees) of a Motor Vehicle that is either (a) submitted to
FU Sales Finance by a FU Dealer for financing of a Motor Vehicle and thereafter
submitted to ACCH or (b) otherwise originated by a FU Dealer and submitted to
ACCH for financing.
"Bureau Score" means the proprietary score assigned to credit
applicants by TRW, Trans Union or Equifax, or as may otherwise be agreed to in
writing between ACCH and First Union.
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"Business" means the business of ACCH, including, the business of
purchasing, financing, securitizing and servicing Motor Vehicle retail
installment contracts.
"Business Day" means any day other than Saturday, Sunday or any other
day on which national banking associations in the State of North Carolina
generally are closed for commercial banking business.
"C Applications" means those Applications submitted to FU Sales Finance
by a PU Dealer that have a Bureau Score of less than 600, or comparable
Applications should such scoring system hereafter be amended, revised, modified,
discontinued or restated.
"Change of Control" means (a) neither Xxxx X. Xxxxxxx nor Xxxxx Xxxx
have direct or indirect Control of ACCH, (b) NAFCO ceases to own at least
ninety-five percent (95%) of the aggregate equity interests in ACCH or Cc) any
"Put Event" shall occur as set forth in Section 11.5(i), (ii), (iii) or (vi) of
the Second Amended and Restated Agreement of Limited Partnership of NAFCO, as in
effect on the date hereof.
"Control" of a Person means possession, directly or indirectly (through
one or more intermediaries), of the power to direct or Cause the direction of
management and policies of such Person through ownership of voting securities
(or other ownership interests) , contract, voting trust or Otherwise.
"Default" is defined in Section 10(b).
"PU Dealer" means, as of any date of determination, any Motor Vehicle
dealership in the Relevant States (a) which has entered into a written
contractual arrangement with First Union whereby such dealership agrees to offer
for sale, assignment or financing Motor Vehicle retail installment contracts or
Motor Vehicle retail lease contracts and such contractual arrangement has not
ended or been terminated or canceled as of such date and (b) with whom First
Union has purchased or financed at least one (1) Motor Vehicle retail
installment contract or Motor Vehicle retail lease contract since April 15, 1995
"FU Sales Finance" means the division of First Union which administers
substantially all of the indirect Motor Vehicle finance operations of First
Union consisting of the purchase or financing of Motor Vehicle retail
installment contracts originated by Motor Vehicle dealerships.
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"First Union" means First Union National Bank of North Carolina, a
national banking association, in its individual capacity and each of its
national bank affiliates described in Section 13(m) hereof.
"Funded Referral" means any Motor Vehicle retail installment contract
purchased or financed by ACCH with respect to which an Application for such
financing was made.
"GAAP" means generally accepted accounting principles, conventions,
rules and procedures in the United States set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board (or any success or organization) that are applicable
to the circumstances as of the date of determination.
"Governmental Authority" means any foreign, federal, state or local
government, political subdivision Or governmental or regulatory authority,
agency, board, commission, instrumentality or court or quasi-governmental
authority.
"Law" or "Laws" means any or all federal, state and local statutes,
laws, codes, ordinances, judicial decisions, proclamations, interpretive
releases, regulations, published requirements, guidelines, orders, directives,
judgments, decrees and rules of any Governmental Authority, in each case as
amended and in effect from time to time.
"Licenses" means all licenses, permits and other authorizations issued,
or which upon due application would be issued, by any Governmental Authority to
ACCH which are used or useful in the Business.
"Material Adverse Effect" means, with respect to a particular Person, a
material adverse change, effect or development (or any change, effect or
development that could reasonably likely have a material adverse effect) on the
assets, business, revenues, expenses, operations, condition (financial or
otherwise), or prospects or ability to perform under or with respect to the
material contracts (including, for the parties hereto, this Agreement) of the
specified Person.
"Motor Vehicle" means any automobile, van, sport utility vehicle or
light duty truck.
"NAFCO" means National Auto Finance Company L. P., a Delaware limited
partnership, prior to an initial public offering, and the successor entity, if
any, thereof after an initial public offering to which all or a substantial
portion of the assets or operations of
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National Auto Finance Company L.P. are directly or indirectly transferred to
effect such initial public offering.
"Northeast States" means Massachusetts, New York, Connecticut, New
York, Delaware and Pennsylvania.
"Person" means an individual, corporation, association, partnership,
joint venture, trust, estate, limited liability company, limited liability
partnership, Governmental Authority or other entity or organization.
"Regulatory Requirement" is defined in Section 7(f).
"Relevant States" means (a) Florida, Georgia, Maryland, North Carolina,
South Carolina, Tennessee, Virginia and the District of Columbia, (b) the
Northeast States if so elected pursuant to Section 9(g), and (c) any other
States which are mutually agreed to for such purpose by ACCH and First Union by
a written addendum to this Agreement.
"Roll-Out Period" means the period of nine (9) months commencing on the
date hereof.
Section 2. Referrals. On the terms and subject to the conditions set
forth in this Agreement, (a) First Union shall cause FU Sales Finance to refer
to ACCH all C Applications which by their terms may be so referred, (b)First
Union, through FU Sales Finance, may in its sole discretion refer any other
Application which FU Sales Finance declines and (c) ACCH shall pay First Union
$65 in immediately available funds in accordance with Section 7(a) hereof for
each Funded Referral.
Section 3. No Financing by First Union. The parties hereto intend that
all Motor Vehicle retail installment contracts that constitute Funded Referrals
shall be financed directly by ACCH and not refinanced or purchased from First
Union, nor shall such Motor Vehicle retail installment Contracts in any way be
characterized as being refinanced or purchased from First Union.
Section 4. No Recourse. All Funded Referrals shall be without recourse
to First Union, and First Union shall not have any obligation or liability that
is in any way related to such Funded Referrals; provided, that the parties
hereto shall be liable to each other for breach of their respective
representations, warranties, covenants and indemnitIes under the terms of this
Agreement, any of which obligations of First Union are limited so as not to
constitute recourse to First Union for the credit risk of any Funded Referrals.
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Section 5. Representations and Warranties of ACCH. ACCH represents and
warrants to First Union, as of the date hereof, as follows:
(a) Organization and Standing. ACCH is a limited partnership
duly organized, validly existing and in good standing under the laws of the
State of Delaware and is duly qualified in each jurisdiction where the conduct
of the Business requires such qualification.
(b) Authorization and Binding Obligation. ACCH has full power
and authority to execute and deliver this Agreement and to perform and comply
with all terms, covenants and conditions to be performed and complied with by
ACCH hereunder. The execution, delivery and performance of this Agreement by
ACCH have been duly and validly authorized by all necessary action on the part
of AC CM. This Agreement has been duly and validly executed and delivered by
ACCH and constitutes a legal, valid and binding agreement of ACCH enforceable
against ACCH in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws and
related court decisions of general applicability relating to or affecting
creditors' rights generally and by the application of general principles of
equity.
(c) No Conflict. The execution, delivery and performance of
this Agreement by ACCH does not (i) violate, conflict with or result in any
breach of any provision of the organizational documents of ACCH, (ii) violate,
conflict with or result in a breach or default (or give rise to any right of
termination, cancellation or acceleration) under any of the terms, conditions or
provisions of any note, bond, mortgage, deed of t:rust, agreement, indenture,
lease or other instalment or obligation to which ACCH is a party or by which any
of its assets may be bound, or (iii) violate or conflict in any material respect
with any law, order, writ, injunction, rule or decree applicable to ACCH or any
of the assets thereof.
(d) Governmental Authorizations. All authorizations, consents,
orders and approvals of, or other action by, any Governmental Authority that are
required to be obtained by ACCH, and all notices to and filings with any
Governmental Authority that are required to be made by ACCH, including in the
case of each of the foregoing those pertaining to the ACCH Program and the
executiOn of this Agreement, have been obtained or made and are in full force
and effect, except where the failure to obtain or to make any such
authorization, consent, order, approval, notice or filing, individually or in
the aggregate for all such failures, would not have a reasonable likelihood of
having a Material Adverse Effect on ACCH. ACCH is the authorized legal holder of
the Licenses, none of which is subject to any restriction or Condition which
could materially adversely affect the ACCH
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Program. The Licenses are valid for the full term thereof and are in good
standing and full force and effect. ACCH has not engaged, and does not engage,
in any activity which could cause the revocation or suspension of any License.
(e) Compliance with Laws. The operations of the Business are
in Compliance in all respects with all Licenses and all applicable Laws, except
to the extent that any such non compliance, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect on ACCH
(including the ACCH Program).
Section 6. Representations and Warranties of First Union. First Union
represents and warrants to ACCH, as of the date hereof, as follows:
(a) Organization and Standing. First Union is a national
banking association duly Organized, validly existing and in good Standing under
the laws of the United States of America.
(b) Authorization and Binding Obligation. First Union has full
corporate power and authority to execute and deliver this Agreement and to
perform and comply with all terms, covenants and conditions to be performed and
complied with by it hereunder The execution, delivery and performance of this
Agreement by First Union have been duly and validly authorized by all necessary
corporate action on the part of First Union. This Agreement has been duly and
validly executed and delivered by First Union and constitutes a legal, valid and
binding agreement of First Union, enforceable against First Union in accordance
with its terms, except as the Same may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws and related Court decisions of
general applicability relating to or affecting creditors' rights generally and
by the application of general principles of equity.
(c) No Conflict. The execution, delivery and performance of
this Agreement by First Union does not (i) violate, conflict with or result in
any breach of any provision of the organization documents of First Union, (ii)
violate, conflict with or result in a breach or default (or give rise to any
right of termination, cancellation or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, deed of tflL5t, agreement
indenture, lease or other instrument or obligation to which First Union is a
party or by which any of its assets may be bound, or (iii) violate or conflict
in any material respect with any law, order, writ, injunction, rule or decree
applicable to First Union or any of the assets thereof.
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(d) FU Dealers and PU Sales Finance. To the best knowledge of
First Union after due inquiry, Exhibit A sets forth a t:rue and Correct list of
all FU Dealers as of the date hereof. Such FU Dealers represent substantially
all of the Motor Vehicle dealerships in the Relevant States with respect to
which First Union engages in the purchase or finance of Motor Vehicle retail
installment contracts originated by Motor Vehicle dealerships. As of the date
hereof, First Union National Bank of North Carolina and its Affiliate Banks (as
defined in Section 13(m)) are all of the national banks through which FU Sales
Finance operates its business.
Section 7. Covenants of ACCH. So long as this Agreement remains in
effect, ACCH shall perform and comply with the covenants contained in this
Section.
(a) Payment. On or before the tenth (10th) Business Day of
each calendar month, ACCH shall pay to First Union $65.00 for each Funded
Referral during the previous calendar month.
(b) Training. ACCH shall provide reasonable training to sales
representatives of FU Sales Finance in the marketing of the ACCH Program.
(c) Reports. ACCH shall maintain true and complete books and
records of account in accordance with GAAP and shall comply with the following
requirements:
(i) ACCH shall maintain and implement, or cause to be
maintained and implemented, administrative and operating procedures and
shall keep and maintain on a timely basis, or cause to be kept or
maintained, all documents, books, records, accounts and other
information relating to the ACCH Program which are reasonably required
to monitor the results of the ACCH Program.
(ii) On or before the tenth (10th) Business Day of
each Calendar month, ACCH shall furnish to First Union a report (which
may include certain information on Computer diskette) setting forth;
(A) (1) the number of Applications delivered
by FU Sales Finance to ACCH ("SF Applications") during the
previous calendar month and (2) the number of Applications,
other than SF Applications, delivered to ACCH during the
previous calendar month,
(B) (1) the number of SF Applications
approved by ACCH during the previous calendar month and
(2) the number of
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Applications, other than SF Applications, approved by ACCH
during the previous calendar month,
(C) (1) the number of Motor Vehicle retail
installment contracts funded by ACCH during the previous
calendar month in respect of SF Applications delivered to ACCH
and (2) the number of Motor Vehicle retail installment
contracts funded by ACCH during the previous calendar month in
respect of Applications, other than SF Applications, delivered
to ACCH,
(D) (1) the percentage of SF Applications
delivered to ACCH which were approved by ACCH during the
previous calendar month and (2) the percentage of
Applications, other than SF Applications, delivered to ACCH
which were approved by ACCH during the previous calendar
month,
(E) (1) the percentage of SF Applications
delivered to ACCH which were funded by ACCH during the
previous calendar month and (2) the percentage of
Applications, other than SF Applications, delivered to ACCH
which were funded by ACCH during the previous calendar month,
(F) the number and names of Motor Vehicle
dealerships from whom ACCH has purchased, or with respect to
whom has originated, loans,
(G) the number and names of Motor Vehicle
dealerships which have become FU Dealers during the previous
calendar month,
(H) a list describing any Defaults of ACCH
not previously disclosed in writing to First Union and a
description of any developments in respect of any such
previously disclosed Defaults
(I) a management report related to the
operations of ACCH during the previous calendar month
substantially in the form of Exhibit C hereto,
(J) to the extent permitted by law and
available with commercially reasonable, good faith efforts by
ACCH, a list of the names and social security numbers of all
current obligors of Motor Vehicle retail installment contracts
financed by ACCH (provided that such list shall be
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provided on the tenth (10th) Business Day after the end of
each calendar quarter),
(K) all reports delivered by NAFCO and ACCH
pursuant to the letter agreement dated as of April 15, 1996
between NAFCO and ACCH, a copy of which is attached hereto as
Exhibit ID; and
(L) such other information, documents,
records or reports with respect to the ACCH Program as First
Union may reasonably request.
(iii) As soon as possible, and in any event within
ten (10) Business Days after an executive officer, member or partner of
ACCH, as the case may be, has knowledge thereof, ACCH shall give First
Union written notice of (A) any material litigation, investigation or
proceeding pending or to the best knowledge of ACCH, threatened by or
against ACCH in connection with or related to the ACCH Program at law
or in equity, or before any Governmental Authority, (B) any judgment,
settlement or other final disposition with respect to any such
previously disclosed litigation, investigation or proceeding, and (C)
of any action or event constituting an event of default or violation of
ally License or material contract to which ACCH is a party or by which
ACCH is bound, or any investigation, assertion, claim or challenge
relating thereto.
(iv) ACCH will keep its principal place of business
and the offices where it keeps all records described in this Section
7(c) at the address given in Section 13(b) or such other address as may
be changed by notification pursuant to Section 13(b).
(d) Inspection. At all reasonable times, ACCH shall permit any
authorized representatives designated by First Union to visit and inspect, and
conduct accounting reviews of, any of the properties of ACCH and its books and
records pertaining to the ACCH Program, and to take abstracts therefrom and make
copies thereof, and to discuss ACCH's affairs, finances and accounts with the
management, employees and independent accountants of ACCH; provided, that unless
there shall have occurred and be continuing any Default hereunder, neither First
Union nor any of its representatives shall conduct any such inspection more than
four (4) times during any calendar year. If First Union or any third party
retained by First Union prepares any written report of its investigation and no
Default shall have occurred and be continuing, First Union shall offer
representatives of ACCH the opportunity to discuss the contents of such report
before such report is completed in final
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form. First Union shall be responsible for (i) its own out-of-pocket costs in
conducting such visits and inspections and (ii) any extraordinary expenses in
excess of $5,000 per year incurred to third parties in connection with such
visits and inspections (including extraordinary expenses incurred to third party
auditors or consultants retained at the request of First Union).
(e) Compliance with Laws. ACCH shall comply with all Licenses
(including the renewal thereof) and all applicable Laws, except to the extent
that any such non-compliance, individually or in the aggregate, could not have a
Material Adverse Effect on ACCH. Without limiting the generality of the
foregoing, ACCH shall comply in all material respects with all laws related to
fair credit and lending practices and consumer protection that are applicable to
the ACCH Program.
(f) Regulatory Compliance. If First Union reasonably
determines that, by reason of any Law hereafter enacted, promulgated, issued,
decided, ordered, adopted, made, initiated or rendered (collectively, a
"Regulatory Requirement"), it is restricted or prohibited from performing its
obligations or exercising its rights hereunder in any material respect, or being
a party hereto, ACCH shall take such action, at the expense of First Union, as
may be reasonably requested by First Union to permit First Union to comply with
such Regulatory Requirement.
(g) Performance and Compliance With Contracts. ACCH will, at
its expense, timely and fully perform and comply with all provisions, covenants
and other promises required to be observed by it under the Applications, the
Funded Referrals and all Contracts with respect to which it is a party related
to the Funded Referrals, the breach of which provisions, covenants or promises
would have a reasonable likelihood of having a Material Adverse Effect on ACCH.
ACCH shall consider all Applications in good faith and in accordance with the
purpose and intent of the ACCH Program; provided, notwithstanding anything to
the contrary set forth in this Agreement1 ACCH shall have the absolute,
unconditional right and authority to approve, conditionally approve or reject
any Application and to make any other credit decision with respect to any Motor
Vehicle retail installment contract, without notice to, or consent by, First
Union or any other Person. In no event shall First Union have the right (whether
express or implied) to require ACCH or any other Person to purchase or close any
Motor Vehicle installment credit transaction.
(h) Accuracy of Information. All written information furnished
on or after the date hereof by ACCH to First Union pursuant to or in connection
with this Agreement or any transaction contemplated herein shall be true,
accurate and complete in all material respects.
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(i) Diligence. Subject to Section 7(g), ACCH shall receive and
promptly evaluate all Applications received from FU Dealers and shall provide to
such Dealers such information, forms and other documents and materials relative
to such Applications and any Funded Referrals with respect thereto that First
Union may reasonably request.
(j) Conduct. Subject to Section 7(g), ACCH shall conduct its
operations in the manner that comports with sound business practices and shall
not take any willful or intentional actions intended to alienate any FU Dealer
or prejudice the relationship of First Union with any FU Dealer.
(k) Roll-Out of ACCH Program. ACCH, with the assistance of
First Union as provided in Section 9(a), shall roll out the ACCH Program in each
regional center of FU Sales Finance in the Relevant States during the Roll-Out
Period. Upon the introduction of the ACCH Program in each regional center, ACCH
shall give written notice of such introduction to First Union.
(l) Restricted Activities.
(i) ACCH shall not solicit, purchase or finance Motor
Vehicle retail installment Contracts (including directly from any Motor
Vehicle dealership) except through a contract with a third party
financial institution providing for referrals and introductions of such
institution's Motor Vehicle dealership customers to ACCH.
(ii) In order to effectively implement the ACCH
Program in the Relevant States and in consideration of the exclusive
referral arrangement offered hereunder by First Union, ACCH agrees
that, for a period of twelve (12) months commencing on the date hereof,
the business activities of ACCH in the Relevant States shall be limited
to the ACCH Program and arrangements with third party financial
institutions providing for the referral of credit applications, on a
non-exclusive basis, by such institutions to ACCH and the funding of
such applications accepted by ACCH; provided, that the business
activities of ACCH shall not be so limited if for any month commencing
with the seventh (7th) month and ending with the twelfth (12th) month
during such twelve (12) month period, ACCH has purchased or financed
less than three hundred (300) Motor Vehicle retail installment
contracts from FU Dealers in the Relevant States.
(iii) In order to effectively implement the ACCH
Program in the Northeast States and in consideration of the exclusive
referral arrangement offered hereunder by First Union, ACCH agrees
that, for a period commencing on the date
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hereof and ending on the later of (A) nine (9) calendar months after
the date hereof or (B) if the election set forth in Section 9(g) hereof
is made by First Union, twelve (12) calendar months after the date of
the roll-out notice given to First Union pursuant to Section 9(g), the
business activities of ACCH in the Northeast States shall be limited to
the ACCH Program and arrangements with third party financial
institutions providing for the referral of credit applications, on a
non-exclusive basis, by such institutions to ACCH and the funding of
such applications accepted by ACCH; provided, that the business
activities of ACCH shall not be so limited if for any month commencing
with the seventh (7th) month and ending with the twelfth (12th) month
during the twelve (12) month period referred to in clause (3), ACCH has
purchased or financed less than three hundred (300) Motor Vehicle
retail installment contracts from FU Dealers in the Northeast States.
(iv) In no event shall ACCH purchase or finance Motor
Vehicle retail installment contracts through any agreement or
arrangement with a third party financial institution if any such
contract is originated by an Active FU Dealer. In the event of any
violation of this subsection (iv) through error or inadvertence, ACCH
shall pay First Union the referral fee in respect of such contract and
such contract shall be deemed a Funded Referral for all purposes
hereunder.
(v) In no event stall ACCH enter into any agreement
or arrangement with a third party financial institution which would
restrict or prohibit ACCH from purchasing or financing Motor Vehicle
retail installment contracts originated by any FU Dealer.
Section 8. Covenants of First Union. So long as this Agreement remains
in effect, First Union shall perform and comply with the covenants contained in
this Section.
(a) Referral of Applications. Upon receipt of each notice
referred to in Section 7(k) with respect to any region, First Union:
(i) shall refer to ACCH all C Applications which
by their terms may be so referred,
(ii) shall exercise its reasonable, good faith
efforts to cause all C Applications to contain such provisions as may
be necessary to enable First Union to refer such C Applications to
ACCH; and
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(iii) may, in its sole discretion, refer any other
Applications that it has declined.
(b) Duties of First Union. First Union shall cooperate with
ACCH in the implementation of the ACCH Program including taking appropriate
action to introduce ACCH sales representatives to Active FU Dealers, to act as
liaison with such Dealers with respect to the Services provided by ACCH to such
Dealers, and to provide ongoing maintenance of, and sales representative
assistance with respect to, the business relationship among First Union, ACCH
and such Dealers.
(c) Marketing. First Union shall market the ACCH Program as
part of its general marketing efforts to FU Dealers.
(d) Reports and Access. On or before the tenth (10th) Business
Day of each calendar month, First Union shall furnish to ACCH a list of all FU
Dealers (including the name, address, telephone number and contact person for
each such Dealer). In addition, for the sole purpose of validating the active
status of dealers and compliance by First Union with its obligations in Section
8(a)(i) and (ii), First Union shall provide ACCH, upon five (5) Business Days
prior written notice and at reasonable times, access to the records of First
Union containing the written contracts evidencing First Union's relationship
with FU Dealers and other records reasonably necessary for the above described
purposes.
(e) Minimize Adverse Regulatory Impact. If First Union
reasonably determines that, by reason of any Regulatory Requirement, First Union
is materially restricted or prohibited from performing its obligations or
exercising its rights hereunder, First Union shall use its reasonable, good
faith efforts to comply with, and to minimize, to the extent reasonably
possible, the adverse impact of such Regulatory Requirement upon this Agreement
and the rights and obligations of the parties hereunder.
(f) Compliance with Laws. First Union shall comply with all
Laws to the extent strictly applicable to First Union's duties and obligations
under the ACCH program, except to the extent that any such non-compliance,
individually or in the aggregate, does not have a material adverse effect on the
ACCH Program.
(g) Accuracy of Information. All written information furnished
on or after tile date hereof by First Union to ACCH pursuant to or in connection
with this Agreement or any transaction contemplated herein shall be true,
accurate and complete in all material respects.
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Section 9. Implementation of ACCH Program. So long as this Agreement
remains in effect, First Union and ACCH shall use their reasonable good faith
efforts to cooperate in performing and complying with the covenants set forth
below:
(a) First Union and ACCH shall develop a plan for phased
implementation of the ACCH Program during the Roll-Out Period, including the
introduction of the ACCH Program in each regional center of FU Sales Finance in
each of the Relevant States and the order of priority of FU Dealers to whom ACCH
sales representatives should be introduced.
(b) First Union and ACCH shall develop and implement incentive
programs, special promotions and related sales and marketing devices, as
appropriate, relating to the ACCH Program, including premium marketing
promotions relating to the ACCH Program and the costs of such development and
implementation shall be borne by ACCH. The parties shall cooperate to develop
guidelines for the use of the name or logo of Fust Union and ACCH. Each party
agrees that it shall not use the logo or name of the other party or any of the
Affiliates of such other party, or any confusingly similar logo or name, on any
promotional materials, brochures, applications, contract forms or any other
written material used in connection with the ACCH Program or for any other
purpose without the prior written approval of such party. ACCH shall provide all
applications, contracts and other forms reasonably required for the
implementation of the ACCH Program at ACCH's expense and according to format
provided by First Union.
(c) First Union and ACCH shall develop and publish specific
guidelines, policies and procedures, as appropriate, governing the operation of
the ACCH Program and the interrelationship between First Union and ACCH and
shall approve changes, as appropriate from time to time, to such published
guidelines, policies and procedures.
(d) The parties hereto acknowledge that they have had, and may
in the future have, access to certain confidential and proprietary information
(written, oral or observed) of - the other relating to certain proprietary
corporate information of a type typically not disclosed to the public,
including, for example, strategic marketing plans, budgets, customer lists and
proprietary financial information, and such information constitutes valuable,
special and unique property of the parties and shall be deemed to be
confidential. This information may only be used in the proviSion of services
under this Agreement. The parties hereto agree that they will not, for any
reason or purpose whatsoever, use or allow to be used any such information or
reveal or disclose any such information to any Person other than the parties
hereto and those agents, employees and representatives thereof to t4e extent
that access to such information is necessary for a particular agent, employee
and representative (including attorneys, auditors and other
15
professionals) to perform such functions contemplated by this Agreement (who
shall also agree not to disclose such information except as permitted by this
Section 9(d)), except (i) as expressly consented to by the parties, (ii) as
required by Law, or (iii) to the extent such information becomes generally
available to the public under circumstances which do not involve a breach of the
terms hereof. Without limiting the generality of the foregoing provisions of
this Section 9(d), and subject to the exceptions provided above in this Section
9(d), neither ACCH nor First Union (or any Affiliate of either ACCH or First
Union) shall issue a press release or make any disclosure regarding the ACCH
Program in any offering memorandum or similar document or outside the ordinary
course of business, without the written consent of such other party hereto,
which consent shall not be unreasonably withheld.
(e) On or prior to the tenth (10th) Business Day of each
calendar month, ACCH and First Union shall amend Exhibit A to include additional
Active FU Dealers and to eliminate FU Dealers which are not Active FU Dealers;
no negative inference shall be drawn by the failure of the parties to amend
Exhibit A.
(f) On or before March 1 of each calendar year, ACCH and FU
Sales Finance shall mutually engage a professional survey firm to conduct a
survey of dealers participating in the ACCH Program. The out-of-pocket costs of
preparing such dealer surveys shall be shared equally by ACCH and First Union;
provided, that such costs shall not exceed $10,000 per year unless mutually
agreed by ACCH and First Union.
(g) At any time prior to nine (9) calendar months after the
date hereof, First Union shall have the Option, by written notice to ACCH, to
add the Northeast States as additional Relevant States for all purposes of this
Agreement. Upon receipt of such notice from First Union, ACCH shall, prior to
the date which is fifteen (15) calendar months after the date hereof, roll out
the ACCH Program with respect to each FU Dealer in the Northeast States in the
Same manner as provided herein with appropriate modification for roll-out period
and similar matters. ACCH shall give written notice to First Union of the
initiation of the roll-out in the Northeast States as provided above. Exhibit B
lists the FU Dealers in the Northeast States as of the date hereof.
Section 10. Termination of Agreement.
(a) Termination. The term (the "Term") of this Agreement shall
be for an initial period of three years from the date hereof, renewable by ACCH
with the written consent of First Union on each anniversary of the date hereof
for an additional one year such that, if so renewed, the term of this Agreement
shall be extended one year for a remaining period upon renewal of three years
from such anniversary date. ACCH shall renew this
16
Agreement by giving written notice to First Union of its desire to renew at
least thirty (30) but no more than sixty (60) days prior to each anniversary of
the date hereof whereupon First Union shall have a period of fifteen (15) days
after receipt of such notice to notify ACCH in writing of its approval or
disapproval of such renewal. Any failure of First Union to give such written
notification to ACCH shall be deemed a disapproval. Notwithstanding the
foregoing, subject to Section 1OC), the Term of this Agreement shall be
terminated upon the happening of any of the following events, which remain
un-Cured in accordance with Section 10(b):
(i) at any time by mutual written consent of
First Union and ACCH;
(ii) by First Union, if ACCH is in default, breach or
noncompliance in any material respect of its representations,
warranties, Covenants or agreements under this Agreement;
(iii) by ACCH, if First Union is in default, breach
Or noncompliance in any material respect of its representations,
warranties, covenants or agreements under this Agreement;
(iv) 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
party or a substantial part of such party's assets (but if any of the
foregoing occurs involuntarily, 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;
(v) by either party, if in the opinion of First
Union's regulatory counsel, First Union is restricted or prohibited, by
reason of any Regulatory Requirement, from performing its obligations
or exercising its rights hereunder in any material respect, following
First Union's exercise of its reasonable, good faith efforts to comply
with and minimize the adverse impact of such Regulatory Requirement; or
(vi) by First Union, upon a Change of Control except
to the extent contemplated by Section 5.10 of the Second Amended and
Restated Partnership Agreement of NAFCO, as in effect on the date
hereof.
17
(b) Cure Rights. Any right to terminate this Agreement that
either First Union or ACCH (the "Terminating Party") may have under Section
1O(a)(ii), 1O(a)(iii) or 1O(a)(v), as the case may be, with respect to the
default under, breach of or non-compliance with the representations, warranties,
covenants or agreements under this Agreement (collectively, a "Default") of such
other party (the "Defaulting Party"), shall not be effective unless (i) the
Terminating Party delivers written notice to the Defaulting Party in the manner
provided in Section 13(b) of the Default that is alleged to have occurred (a
"Default Notice") and (ii) the Defaulting Party fails to cure and rectify in all
material respects the effect and consequences of such Default to the reasonable
satisfaction of the Terminating Party ("Cure") within thirty (30) days after its
receipt of such Default Notice; Ruled, that if such Defaulting Party shall
within such thirty (30) day period commence action to Cure such failure but is
unable, by reason of the nature of the performance required, to Cure same within
such period, and if such Defaulting Party continues such action thereafter
diligently and without unnecessary delays, such Defaulting Party shall not be in
default hereunder until the expiration of a period of time as may be reasonably
necessary to C ire such failure; provided, further, that extending the Cure
period will not have a Material Adverse Effect on the Terminating Party and
provided, further, that in all events such Cure shall be completely effectuated
no later than the sixtieth (60th) day after the receipt by the Defaulting Party
of the Default Notice.
(c) Arbitration of Disputes. Any dispute, controversy or claim
arising out of, or in connection with, or relating to, whether a Default exists
or whether a Default has been Cured in accordance with this Section 10(b) shall,
upon the request of any party involved, be submitted to, and settled by, binding
arbitration. All arbitration proceedings conducted pursuant to this Section
10(b) shall be administered by the office of the American Arbitration
Association ("AAA") in Wilmington, Delaware (or, if such office has ceased to
exist as of the time arbitration is demanded, the AAA office geographically
closest to Wilm4ington, Delaware), and all hearings shall be held in Wilmington,
Delaware; provided, that the parties involved in such dispute may at any time
agree to settle such dispute, controversy or claim by any other form of dispute
resolution (including mediation or another form of arbitration) that is mutually
acceptable.
(i) Procedure. Arbitration proceedings shall be
conducted in accordance with the commercial arbitration rules of the
AAA in force as of the date demand for arbitration is made, with the
following exceptions if in conflict:
(A) Single Arbitrator. If, within 10 days
of the date demand for arbitration is made, the two parties
thereto are able to agree upon the appointment of a single
person as the arbitrator, the person so agreed upon
18
shall be appointed as the sole arbitrator and notice of such
appointment shall be given to the AAA by the parties.
(B) Arbitration Panel. In the event the
parties are unable to agree upon the appointment of a single
arbitrator as provided in Section 1O(c)(i)(A) hereof, then,
within 15 days of the date demand for arbitration is made,
each party shall appoint one member of an arbitration panel
(each such member being refereed to herein as a
"Party-Appointed Arbitrator") and, within 30 days of the date
demand for arbitration is made, such Party-Appointed
Arbitrators shall appoint a third arbitrator who shall serve
as the chair of the arbitration panel. In the event the
Party-Appointed Arbitrators are unable within such 30 day
period to appoint a third arbitrator, the commercial
arbitration rules referred to in Section 1O(c)(i) shall govern
the appointment of the third arbitrator. In the event a party
fails or neglects to appoint such party's Party-Appointed
Arbitrator within the time period set forth in this
subsection, such Party shall be deemed to have consented to
the selection of the other party's Party-Appointed Arbitrator
as the sole arbitrator for the arbitration proceeding.
(C) Arbitration Decisions. If there is a
single arbitrator, the decisions and awards of such arbitrator
shall be binding. In the event a panel of arbitrators is
conStituted, the decisions and awards of a majority of the
arbitrators on the panel shall be binding. As hereinafter
used, the term "arbitrator" refers either to a single
arbitrator or to an arbitration panel, as the case may be.
(D) Costs. During the pendency of any
arbitration proceeding, the cost and fees of such proceeding
-- other than the attorney's fees incurred by each of the
parties in connection with such proceeding, which shall be the
independent responsibility of such party -- shall be shared
equally by the Parties. However, as pan of the final award or
any interim award agreed to by the parties or found by the
arbitrator to be final for confirmation and enforcement
purposes, the prevailing party shall be entitled to recover
the costs and fees of the arbitration proceeding, other than
attorneys' fees as provided above.
(E) Discovery. The discovery provisions of
the Delaware Rules of Civil Procedure in effect as of the
date demand for arbitration is
19
made shill govern the conduct of discovery in any arbitration
proceeding commenced hereunder.
(F) AAA Rules. Arbitration may proceed in
the absence of any party if written notice (pursuant to the
AAA's rules and regulations) of the proceedings has been
given to such party.
(ii) Binding Effect of Arbitration. The parties to
this Agreement agree to abide and be bound by all decisions and awards
rendered by the Arbitrator. judgment upon such decisions and awards may
be entered in any court of competent jurisdiction.
(iii) All Disputes Subject to Arbitration. Claims or
disputes governed by this Section 10(c) shall be resolved in the manner
set forth herein, in lieu of any action at law or equity. Except as
otherwise provided herein, this arbitration clause constitutes an
explicit waiver of defenses against enforcement and execution of any
judgment on the arbitrators' award; provided, the parties shall not be
deemed to have waived defenses based upon: (A) fraud or corruption in
the procuring of an award, (B) misconduct on the part of an arbitrator,
or (C) action by an arbitrator in excess of his authority Defenses
relating to the validity of scope of this arbitration clause will be
deemed waived unless raised during arbitration. The arbitrators'
decision regarding any issue, controversy, dispute, claim or
counterclaim involving the validity or scope of this arbitration clause
shall be final and binding upon the parties.
(d) Procedure and Effect of Termination
(i) In the event of termination of this Agreement by either or
both of First Union or ACCH pursuant to Section 10(a), prompt written
notice thereof shall forthwith be given to the other parties hereto and
this Agreement shall terminate without other action by any party
hereto; provided, that the obligations of ACCH (A) to make payments for
Funded Referrals made during the previous calendar month as required by
Section 7(a), (B) to make such reports as required by Section 7(c) and
(C) to indemnify First Union as provided in Section 11(a) and the
obligations of First Union to indemnify ACCH as provided in Section
11(b) shall survive. If this Agreement is terminated as provided in
Section 10(a), all information received by a party hereto with respect
to the business of the other party or its affiliates or divisions
(other than information which is a matter of public knowledge at the
time of disclosure to the other party or which has been disclosed to
the general public by mutual agreement of the parties or which is
required to be filed as public information
20
with any Governmental Authority or stock exchange, or which is required
to be disclosed by Law (but only to the extent that such disclosure is
required)) shall not at any time be used for the advantage of, or
disclosed to third parties by, such party for any reason whatsoever.
(ii) Notwithstanding anything to the contrary in this
Agreement, other than Section 10(b), if either ACCH or First Union is
in default, breach or noncompliance in any respect of its
representations, warranties, covenants or agreements under this
Agreement (and such default, breach or noncompliance remains un-Cured
in accordance with Section 10(b)), then and in that event, such other
xxxxx shall have the right to seek all remedies available to it as
provided hereunder or at law Or equity.
(iii) In addition to such continuing obligations
described above in this Section 10(d), the termination of this
Agreement shall not discharge any party hereto from any obligation
which it owes to the other party immediately prior to or as a result of
such termination.
Section 11. Indemnification.
(a) Indemnification by ACCH. ACCH shall indemnify and bold
harmless First Union, each of its successors and all officers, directors,
shareholders, employees and agents of First Union from and against any loss,
liability, expense, damage or injury suffered or sustained by reason of any
claim or other action brought by any third party and arising out of any acts,
omissions or alleged acts or omissions which constitute a breach by ACCH of any
of its representations, warranties and covenants hereunder, including any
judgment, award, settlement, reasonable attorneys' fees and other costs Or
expense incurred in connection with the defense of any actual or threatened
action, proceeding or claim; provided, that no indemnification shall be required
under this Section 11(a) if such acts, omissions or alleged acts or omissions
constitute fraud, gross negligence or willful misconduct by First Union. Any
indemnification under this Section 11(a) shall survive the termination of this
Agreement.
(b) Indemnification by First Union. First Union shall
indemnify and hold harmless ACCH, each of its successors and all officers,
partners, shareholders, directors, employees and agents of ACCH from and against
any loss, liability, expense, damage or injury suffered or sustained by reason
of any claim or other action brought by any third party and arising out of any
acts, omissions or alleged acts or omissions which constitute a breach by First
Union of any of its representations, warranties and covenants hereunder,
including
21
any judgment, award, settlement, reasonable attorneys' fees and other costs or
expense incurred in connection with the defense of any actual Or threatened
action, proceeding or claim; provided, that no indemnification shall be required
under this Section 11(b) if such acts, omissions or alleged acts or omissions
constitute fraud, gross negligence or willful misconduct by ACCH. Any
indemnification under this Section 11(b) shall survive the termination of this
Agreement.
Section 12. Assignment. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by either
First Union or ACCH without the prior written consent of the other party. Any
attempted assignment by one party without the prior written consent of tile
other party shall be null and void; provided, that ACCH shall be entitled to
assign this Agreement to NAFCO (without the consent of First Union), provided
that NAFCO assumes all of the obligations of ACCH under this Agreement arising
from and after such assignment and NAFCO shall be prohibited under this Section
12 from making any subsequent assignment without the prior written consent of
First Union; provided, further, that ACCH shall be entitled to assign this
Agreement as provided in Section 5.10 of the Second Amended and Restated
Partnership Agreement of NAFCO, as in effect on the date hereof.
Section 13. Miscellaneous.
(a) Entire Agreement. This Agreement embodies the entire
agreement and understanding of the parties hereto in respect of the subject
matters hereof. This Agreement supersedes all prior negotiations, agreements and
understandings between the parties with respect to the subject matters hereof
and all letters of intent and other writings relating to such negotiations,
agreements and understandings.
(b) Notices. Any notice, demand or request required or
permitted to be given under the provisions of this Agreement shall be in writing
and delivered personally, by facsimile, reputable overnight courier service or
by registered or certified mail to the following addresses, or to such other
address as any xxxxx may request by notifying the other parties hereto:
22
To First Union:
To each of the individuals listed below:
Xxxxxx X. Xxxxxx, Xx., Esq.
First Union Corporation
Legal Division
000 Xxxxx Xxxxxxx Xxxxxx, Xx-00
Xxxxxxxxx, X.X. 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxx
First Union National Bank
Sales Finance Division, NC-0374
0000 Xxxxxxxx Xx., 0x Xxxxx
Xxxxxxxxx, X.X. 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxxxxx X. Xxxxxxx
First Union Capital Markets Corp.
Asset Securitization Division
301 5. Xxxxxxx Xx., XX-00
Xxxxxxxxx, X.X. 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To ACCH:
Xxxx X. Xxxxxxx
One Park Place, 3rd Floor
000 XX 00xx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
23
Xxxxx X. Xxxxx
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxx Xxxxx
Xxx Xxxx Xxxxx, Xxxxx 000
000 XX 00xx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxx Xxxxx
Xxx Xxxx Xxxxx, Xxxxx 000
000 XX 00xx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(c) Waiver. The failure of any party at any time to insist
upon strict performance of any promise, agreement, or understanding set forth in
this Agreement shall not be construed as a waiver or relinquishment of the right
TO insist upon strict performance of the same or any other promise, agreement,
or understanding at a future time.
(d) Covenant of Further Assurances. Each party shall execute
and deliver such farther instruments and do such further acts and things as may
be reasonably required to carry out the intent and purposes of this Agreement.
(e) Rights of Third Parties. Nothing herein shall be
construed to be to the benefit of or enforceable by any Person other than the
parties hereto.
(f) Severability. If any provision of this Agreement or its
application to any party or circumstances shall be determined by any court of
Competent jurisdiction to be invalid and unenforceable to any extent, the
remainder of this Agreement, or the application of such provision to Persons or
circumstances other than those as to which it is so determined invalid or
unenforceable, shall not be affected thereby, and each provision hereof shall be
valid and shall be enforced to the fullest extent permitted by law.
24
(g) GOVERNING LAW. THIS AGREEMENT SHAI1 BE GOVERNED BY THE
LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD TO ITS LAWS PERTAINING TO
CONFLICTS OF LAW) AS TO ALL MATTERS, INCLUDING BUT NOT LIMITED TO MATTERS OF
VALIDITY, CONSTRUCTION, EFFECT, PERFORMANCE AND REMEDIES EACH OF THE PARTIES
HERETO AGREES THAT (A) THIS AGREEMENT INVOLVES AT LEAST $100,000, AND (B) THIS
AGREEMENT HAS BEEN ENTERED INTO BY THE PARTIES IN EXPRESS RELIANCE UPON 6 DEL.
C. ss. 2708.
(h) Amendment and Modification. This Agreement may be
amended, modified or supplemented only by written agreement of First Union and
ACCH.
(i) Headings. The headings are for convenience only and shall
not affect the meaning or construction of this Agreement.
(j) Construction. Common nouns and pronouns and any variations
thereof shall be deemed to refer to masculine, feminine or neuter, singular or
plural, as the identity of the Person, Persons or other reference in the context
requires whenever used herein; the adjective "any" with respect to a Person,
act, thing or concept shall mean and refer to one or more of such Persons, acts,
things or concepts; and "including" shall be read to mean "including without
limitation." The illustration of a concept herein by including examples thereof
shall not be Construed as a limitation of such concept to the examples given.
Unless otherwise indicated, Section" means and refers to the referenced section
of this Agreement. Words such as "herein, "hereby," "hereinafter," "hereof,"
"hereto," and "hereunder" refer to this Agreement as a whole, unless the context
requires otherwise.
(k) Counterparts. This Agreement may be executed in
counterparts, each of which, when so executed, shall be deemed an original, and
all such Counterparts together shall constitute one and the same instrument.
(l) No Partnership. The parties hereto do not intend by this
Agreement to create a joint venture, partnership or other entity or any agency
or representative relationship between or among the parties, and no party hereto
shall make any representatIons (written or otherwise) that implies or suggests
that any such relationship exists.
(m) First Union as Ant. First Union National Bank of North
Carolina hereby represents and warrants that it is the duly authorized agent of
its national banking affiliates (the "Affiliate Banks") for purposes of this
Agreement and that, as of the date hereof, such Affiliate Banks shall include
First Union National Bank of Georgia, First Union
25
National Bank of Florida, First Union National Bank of South Carolina, First
Union National Bank of Tennessee, First Union National Bank of Virginia, First
Union National Bank of the District of Columbia, First Union National Bank of
Maryland and First Union National Bank (f/k/a First Fidelity Bank, N.A.). First
Union National Bank of North Carolina, in its individual capacity and as agent
for the Affiliate Banks, represents and warrants that it is entitled to accept
all payments from ACCIl hereunder, give all consents and waivers and make all
amendments hereunder and conduct all business under this Agreement on behalf of
itself and its Affiliate Banks.
26
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their duly authorized officers as of the date first above written.
"FIRST UNION"
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, in its individual
capacity and as agent and
attorney-in-fact for the Affiliate
Banks described in Section 13(m)
By:
Name: Xxxx Xxxxxxx
Title: Vice President
"ACCH"
AUTO CREDIT CLEARINGHOUSE L.P.
By: National Auto Finance
Corporation, General Partner
By:
Name:
Title:
27
