ACCH REFERRAL CONTRACT
THIS REFERRAL CONTRACT ("Agreement") is made as of this 14th day November, 1996,
by and between Community Bank ("BANK"), a corporation and Auto Credit
Clearinghouse L.P. ("ACCH"), a limited partnership.
WITNESSETH:
WHEREAS, ACCH engages in the business of purchasing, securitizing and servicing
non-prime motor vehicle retail installment contracts originated by automobile
dealers and/or BANKS;
WHEREAS, BANK receives credit applications of borrowers from automobile dealers
and makes loans to approved borrowers but generally does not finance non-prime
motor vehicle retail installment contracts;
WHEREAS, BANK desires to refer to ACCH motor vehicle credit applications that it
declines (and introduce ACCH to those Dealers in their trading area for whom
BANK provides consumer financing in exchange for a fee based on the number of
loans made by ACCH with respect to the credit applications and Dealers BANK
refers or introduces to ACCH; and
WHEREAS, ACCH desires to receive such referrals and introductions and to pay
such fee, all on the terms and conditions provided herein.
NOW THEREFORE, in consideration of the 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, the
parties hereto1 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:
"Affiliate" of a specified person means any other person who (i)
directly or indirectly controls, is controlled by, or is under common
control with, such specified person; (ii) 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 fully
diluted basis; (iii) is an officer, director, general partner, trustee,
manager, administrator, representative or agent of such specified
person; or (iv) is an officer, director, trustee, manager,
administrator, representative or agent or owns or controls ten percent
(10%) or more of the outstanding voting interests of such other person
described in clause (i), (ii) or (iii) of this sentence, except that
neither BANK (or any of its Affiliates) nor ACCH (or any of its
Affiliates) shall be considered an Affiliate of such other party (or
the Affiliates of such other party). For purposes of the preceding
sentence, "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.,
"Application" means either a ACCH Auto Application or BANK
Application. "Applications means both ACCH Applications and BANK
Applications.
"Business Day" means any day other than Saturday, Sunday or any other
day on which national banking associations in the State of Florida or
California generally are closed for commercial banking business.
"C Applications" means those BANK Applications that BANK declines to
accept and or fund.
"BANK Application" means a loan or lease application by a potential
purchaser (or lessee) of a Motor Vehicle that is submitted to BANK by a
Dealer for financing of such Motor Vehicle.
"Dealer" means any Motor Vehicle dealer in California or in such other
states as the parties hereto may mutually agree, from whom, as of the
date hereof BANK, purchases Motor Vehicle retail installment contracts
or receives customer credit applications.
"Direct Referral" means any loan which is actually made and funded by
ACCH with respect to which a BANK Application was received by BANK (and
not funded by the Bank) and referred to ACCH for such loan.
"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
successor 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.
"Implementation Period" means the first 180 days after the date hereof.
"National Auto Application" means a loan or lease application by a
potential purchaser (or lessee) of a Motor Vehicle that is submitted
directly to ACCH by a Dealer for financing of such Motor Vehicle.
"Imputed Referral" means (i) any loan which is actually made and funded
by ACCH to which a National Auto Application for such loan was received
by BANK and referred to ACCH and (ii) any other loan (other than loans
attributable to BANK Applications) sold or refinanced by a Dealer to
ACCH.
"Law" or "Laws" means any or all federal, state or local statutes,
laws, codes, ordinances, judicial decisions, proclamations,
interpretive releases, regulations, published requirements, orders,
judgments, decrees and rules of any Governmental Authority, in each
case as amended and in effect from time to time.
"Licenses" means all material licenses, permits and other
authorizations issued by any Governmental Authority to ACCH which are
used or useful in the ACCH Program.
"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.
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"Motor Vehicle" means any automobile, sport utility vehicle or light
duty truck.
"Person" means an individual, corporation, association, partnership,
joint venture, trust, estate, limited liability company, limited
liability partnership, Governmental Authority or other entity or
organization.
"Referral" means any Imputed Referral or Direct Referral.
"ACCH Program" means the program of ACCH by which ACCH or any of its
Affiliates solicits and evaluates Applications and provides (or causes
to be provided) financing; constituting Referrals hereunder, to Dealers
and their customers for the purchase or lease of motor vehicles, and
the marketing, training and other activities described herein related
to such financing.
Section 2. Referrals.
Subject to the terms and conditions set forth in this Agreement, (a)
BANK (i) shall refer to ACCH all C Applications, which by their terms
may be so referred and (ii) may, in its sole discretion, refer any
other BANK Application that it declines, and (b) ACCH shall pay to BANK
the sum of $125 if amount financed is below $10,000 or 1.5% of amount
financed if amount financed is $10,000 or higher for each Referral made
which is actually closed and funded by ACCH. Notwithstanding anything
to the contrary set forth in this Agreement, ACCH may in its sole and
absolute discretion choose not to accept any particular Referral, and
nothing in this Agreement shall be construed to impose any funding
requirement on ACCH.
Section 3. No Indirect Financing.
The parties hereto intend that all loans made and purchased with
respect to a Referral shall be made by ACCH and purchased directly by
ACCH from the Dealers or the Dealers' customers, as the case may be,
and shall not be refinanced or purchased from BANK or any of its
Affiliates, nor shall such loans in any way be characterized as being
refinanced or purchased from BANK or any of its Affiliates.
Section 4. No Recourse.
All Referrals, and any loans made and purchased by ACCH, and any of its
Affiliates, shall be without recourse to BANK or any of its Affiliates,
and BANK and its Affiliates shall not have any obligation or liability
that is in any way related to such Referrals, loans; provided, however,
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; provided, further, that the
obligations of BANK under this Agreement shall not constitute recourse
to BANK for the credit risk of any loan made or purchased by ACCH or
any Affiliate of ACCH.
Section 5. Representations and Warranties of ACCH.
ACCH represents and warrants to BANK 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 California and is duly qualified in each
jurisdiction where the conduct of the ACCH Program requires such
qualification.
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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 has been duly and validly
authorized by all necessary action on the part of ACCH. 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 respective 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. Consents and Approvals; No Violation.
(i) There is no requirement applicable to ACCH that has not been
previously satisfied without qualification to make any filing
with, or to obtain any permit, authorization, consent or
approval of, any Governmental Authority or other Person (A) in
connection with the ACCH Program or (B) to maintain the
continuing validity and effectiveness of (and to prevent any
default under or violation of) any License from and after the
date hereof.
(ii) The execution, delivery and performance of this Agreement by
ACCH will not (A) violate, conflict with or result in any
breach of any provision of the organizational documents of
ACCH, (B) 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
trust, agreement, indenture, lease or other instrument or
obligation to which ACCH is a party or by which any of its
assets may be bound, or(C)violate or conflict with, in any
material respect, any Law, order, writ, injunction, rule or
decree applicable to ACCH or any of is assets.
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 filing 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 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 Program. The Licenses are
valid for the full term thereof, are in good standing and full
force and effect and are not subject to any liens, encumbrances,
charges or other claims. 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 ACCH Program 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, could not have a Material Adverse
Effect on ACCH or the ACCH Program.
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F. Litigator. Except in the ordinary course of the recovery of
obligations of third parties to ACCH, no action, suit, litigation,
arbitration, dispute, proceeding, governmental investigation or
governmental audit is pending against, or to the knowledge of ACCH
is threatened against, ACCH or any of its assets or businesses that
is reasonably likely to have a material adverse effect on the
obligations contemplated by this Agreement, and to the knowledge of
ACCH, there is no basis therefore.
Section 6. Representations and Warranties of BANK.
BANK represents and warrants to ACCH as follows:
A. Organization and Standing. BANK is a corporation duly organized,
validly existing and in good standing under the laws of the State
of California.
B. Authorization and Binding Obligation. BANK 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 BANK have been duly
and validly authorized by all necessary corporate action on the
part of BANK. This Agreement has been duly and validly executed
and delivered by BANK and constitutes a legal, valid and binding
agreement of BANK, enforceable against BANK 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.
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. Each month, ACCH shall pay to BANK the sum of $126.00
if amount financed is below $10,000 or 1.5% of amount financed if
amount financed is $10,000 or higher for each Referral which is
actually closed and funded during the previous month.
B. Training. ACCH shall provide initial and on-going training to
BANK sales representatives with respect to 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 delivery and notice requirements:
(i) ACCH shall maintain and implement, or cause to be maintained
maintained and implemented, administrative and operating
procedures (including records evidencing its loans and all
Applications reviewed by it) and shall keep and maintain, or
cause to be kept and maintained, all documents, books,
records and other information which, in the reasonable
determination of BANK, are necessary or advisable to
monitor the results of
the ACCH Program. BANK shall maintain or cause to be
maintained at all times, accurate and complete books, records
and
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accounts relating to the ACCH Program, including all loans,
Applications and Referrals in which timely entries shall be
made.
(ii) Each week, ACCH shall furnish to BANK (a) the number of BANK
of BANK Applications delivered to ACCH, (b) the number of
BANK Applications approved by ACCH, (c) the number of Direct
Referrals, (d) the number of Imputed Referrals, (e) the
number and names of motor vehicles dealers who have
become Dealers during the previous week and (f) such
other information as BANK may reasonably request.
(iii) As soon as possible and in any event within five Business
Days after an executive officer, member or partner of ACCH
has knowledge thereof, ACCH shall give BANK written notice
of (a) any litigation, investigation or proceeding pending
or to the best knowledge of ACCH, threatened by or against
ACCH or any Affiliate 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 any License or material contract to which
either ACCH or any Affiliate of either is a party or by
which any of them is bound, or any investigation,
assertion, claim or challenge relating thereto.
(iv) ACCH will keep its principal place of business and the
the offices where it keeps all records described in this
Section 7(c) at the address given in Section 13(B).
D. Information and Inspection. ACCH shall furnish to BANK from time
to time, upon written request, such reasonable information
requested by BANK pertaining to any covenant, provision or
condition hereof. At all reasonable times, ACCH shall permit any
authorized representatives designated by BANK to visit and inspect,
conduct accounting reviews of, any of the properties of ACCH and
their books and records (including those 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, however, that neither BANK nor any of its
representatives shall conduct any such inspection more than
semi-annually.
E. Compliance with Laws. ACCH shall comply in all respects with all
Licenses and all applicable Laws (including, without limitation,
all applicable commercial consumer Laws), except to the extent that
any such non-compliance, individually or in the aggregate, could
not have a Material Adverse Effect on ACCH.
F. Regulatory Compliance. If BANK reasonably determines that, by
reason of any future federal or state rule, regulation, guideline,
order, interpretive release, ruling, request, or directive (having
the force of law and where the failure to comply therewith would be
unlawful) (collectively, a "Regulatory Requirement"), it is
effectively restricted or prohibited from performing its
obligations or exercising its rights hereunder, ACCH shall take
such action as may be deemed reasonably necessary by BANK to
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permit ACCH to comply with such Regulatory Requirement or ACCH
shall be entitled to terminate this Agreement by sending written
notice to BANK.
G. Performance and Compliance with Referrals, Receivables and
Applications. 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 this Agreement, the
Applications, the Referrals and all contracts with respect to which
it is a party related to the Referrals, the breach of which
provisions, covenants or promises would have a reasonable
likelihood of having a Material Adverse Effect on ACCH.
H. Accuracy of Information. All written information furnished on and
after the date hereof by ACCH to BANK pursuant to or in connection
with this Agreement or any transaction contemplated herein shall
not contain any untrue statement of a material fact or omit to
state material facts necessary to make the statements made and
other information provided not misleading, in each case on the date
such statement was made and in light of the circumstances under
which such statements were made or such information was furnished.
I. Other Information. Promptly from time to time ACCH shall provide
BANK (a) such other information, documents, records or reports
respecting the Applications, Referrals and the ACCH Program or (b)
such other available information respecting the condition or
operation of ACCH in each case as BANK may from time to time
reasonably request in order to protect its interests under or as
contemplated by this Agreement.
J. Exclusivity. Whereas, ACCH agrees to a one year exclusive
territory right to BANK. Territory boundary is defined as all
dealers within a two hundred mile radius of Pasadena, California.
Section 8. Covenants of BANK.
So long as this Agreement remains in effect, BANK shall perform and
comply with the covenants contained in this Section.
A. Referral of Applications. BANK:
(i) shall refer to ACCH all "C" Applications as previously
defined, which by their terms may be so referred.
(ii) may, in its sole discretion, refer any other BANK
Applications that BANK has declined.
B. Marketing. BANK shall market the ACCH Program as part of its
general marketing efforts to Motor Vehicle dealers.
C. Records and Reports. BANK shall maintain complete and accurate
records of all applications received and all applications referred
to ACCH. BANK will, upon request by ACCH, promptly furnish a copy
of such records. BANK shall furnish to ACCH such information
concerning dealer's financial and business affairs as ACCH may
request.
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Section 9. Joint Covenants of SANK and ACCH.
So long as this Agreement remains in effect, BANK and ACCH shall use
their best efforts to cooperate in performing and complying with the
covenants contained in this Section.
A. BANK and ACCH shall determine a plan for phased implementation
of the ACCH Program during the Implementation Period, including
without limitation, the introduction of the ACCH Program in each
office, branch, center and Affiliate of BANK.
B. BANK and ACCH shall determine the order of priority of Dealers to
whom BANK sales representatives should be introduced.
C. BANK and ACCH shall develop incentive programs, special
promotions and related sales and marketing devices, as appropriate,
relating to the ACCH Program.
D. BANK and ACCH shall develop and publish specific guidelines,
policies and procedures, as appropriate, governing the operation of
the ACCH Program.
E. BANK and ACCH shall approve changes, as appropriate, to published
guidelines, policies and procedures governing the operation of the
ACCH Program.
F. The parties hereto acknowledge that they have had, and may in the
future have, access to certain confidential and proprietary written
information of the other in connection with or related to the ACCH
Program, and such information constitutes valuable, special and
unique property of the parties and shall be deemed to be
confidential. This written 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 written information or reveal or
disclose any such written information to any Person other than the
parties hereto and those agents, employees and representatives
thereof to the extent that access to such written information is
necessary for a particular agent, employee and representative to
perform such functions contemplated by this Agreement (who shall
also agree not to disclose such written information except as
permitted by this Section 9F, except (i) as expressly consented to
by all of the other parties, (ii) as required by Law, or (iii) is
or 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 9F, no
party hereto shall issue a press release or make other public (or
private) disclosure regarding the ACCH Program, without the written
consent of the other parties hereto.
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 BANK on or before
each anniversary of the date hereof for additional one year terms
thereafter, except that this Agreement shall be terminated prior
thereto upon the happening of any of the following events:
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(i) at any time by mutual written consent of BANK and ACCH;
(ii) by BANK, if ACCH is in default, breach or noncompliance in
any respect of its representations, warranties, covenants or
agreements under this Agreement and ACCH fails to cure such
default, breach or noncompliance after the expiration of
thirty days after written notice is received by ACCH from
BANK;
(iii) by ACCH if BANK is in default, breach or noncompliance in
any respect of its representations, warranties, covenants or
agreements under this Agreement and BANK fails to cure such
default, breach or noncompliance after the expiration of
thirty days after written notice is received by BANK from
ACCH;
(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) if ACCH determines that, by reason of any Regulatory
Requirement, it is effectively restricted or prohibited
from performing its obligations or exercising its rights
hereunder, following BANK's exercise of its best efforts to
overcome such Regulatory Requirement.
B. Procedure and Effect of Termination.
(i) In the event of termination of this Agreement by either
or both of BANK and/or ACCH pursuant to Section 10A (except
for termination as a result of the expiration of the Term, in
which case this Agreement shall terminate without any further
action), prompt written notice thereof shall forthwith be
given to the other party and this Agreement shall terminate
without further action by either party hereto; provided,
however, that the obligations of ACCH (a) to make payments
for Referrals made during the previous month as required by
Section 7A and B to make such reports regarding the previous
month as required by Xxxxxxx 0X xxxxx xxxxxxx. If this
Agreement is terminated as provided in Section 10A, all
written 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 with any Governmental Authority) shall not
at any time be used for the advantage of, or disclosed to
third parties by, such party for any reason whatsoever.
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(ii) Notwithstanding anything to the contrary in this Agreement,
if either party is in default. breach or noncompliance in any
material respect of its representations, notice, warranties,
covenants or agreements under this Agreement (and such party
fails to cure such default, breach or noncompliance within
the cure period set forth in Section 10A), then and in that
event, the other party 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 10B, the termination of this Agreement shall
not discharge any party hereto from any obligation which it
owes to the other parties immediately prior to or as a result
of such termination.
Section 11. Indemnification.
ACCH shall indemnity and hold harmless BANK, each of its successors and
all officers, directors, shareholders, employees and agents of BANK and
its Affiliates from and against any loss, liability, expense, claim,
damage or injury suffered or sustained by reason of any acts, omissions
or alleged acts or omissions arising out of activities of ACCH pursuant
to this Agreement arising out of or based on the arrangement created by
this Agreement and the activities of any such Persons taken pursuant
thereto, 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 or
if any party to a Referral of a C Application by BANK alleges any
actual or threatened action, proceeding or claim against BANK alleging
that the execution of this Agreement as of the date first above written
is in violation of any state or federal statutes, laws or regulations
affecting the validity of this Agreement; provided, however, that no
indemnification shall be required under this Section 11 if such acts,
omissions or alleged acts or omissions constitute violations of Law,
fraud, gross negligence or willful misconduct by BANK or its
Affiliates; and provided, further, that no indemnification shall be
required for any liabilities, cost or expense of BANK and its
Affiliates with respect to any federal, state or local income or
franchise taxes (or any interest or penalties with respect thereto)
required to be paid by BANK or any of its Affiliates in connection
herewith to any taxing authority. Any indemnification under this
Section 11 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
BANK without the prior written consent of ACCH. ACCH shall be entitled
to assign this Agreement without the consent of BANK Any attempted
assignment by BANK without the prior written consent of ACCH shall be
null and void.
Section 13. Miscellaneous.
A. Entire Agreement. This Agreement embodies the entire agreement
and understanding of the panties 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.
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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 party may request by
notifying the other parties hereto:
TO BANK: Xxxxxxx X. Xxxxxxxxx
First Vice President
Community Bank
00000 Xxxxxxxxx Xx., #000, Xxxx xx Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
TO ACCH: _____________________________
_____________________________
_____________________________
Telephone: _____________________________
Facsimile: _____________________________
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 further instruments and do such further acts and
things as may be 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. Waiver of Trial by Jury. To the maximum extent permitted by law,
the parties hereby waive any right that they may have to a trial
by jury of any dispute (whether a claim in tort, contract, equity
or otherwise) arising under or relating to this Agreement, and
agree that any such dispute shall be tried before a judge sitting
without a jury.
G. Damages. The extent of any liability under this Agreement to the
the Bank should not exceed the amount of the consideration and
referral fees received by the Bank under this Agreement.
Furthermore, incidental, consequential, and punitive damages should
be prohibited, provided that incidental, consequential and punitive
damages will not be prohibited hereunder arising from violations of
fraud, law, gross negligence or willful misconduct of the Bank as
determined by a court of competent jurisdiction.
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H. Legal Fees and Expenses. Should any of the parties hereto
institute any action or proceeding in court to enforce any
provision hereof or for damages by reason of any alleged breach of
any provision of this Agreement or for any other judicial remedy,
the prevailing party shall be entitled to receive from the losing
party all reasonable attorneys' fees and all court costs in
connection with said proceeding. Except as otherwise expressly
provided in this Agreement each party will bear its respective
expenses incurred in connection with the preparation, execution,
and performance thereby, including all fees and expenses of agents,
representatives, counsel and accountants.
I. 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.
J. GOVERNING LAW. THIS AGREEMENT SHALL 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 OR 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 HERETO IN EXPRESS RELIANCE UPON 6 DEL. C
SECTION 2708.
K. Amendment and Modification. This Agreement may be amended,
modified or supplemented only by written agreement of BANK and
ACCH.
L. Headings. The headings are for convenience only and shall not
affect the meaning or construction of this Agreement.
M. 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.
N. 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.
O. Arbitration. The parties hereto agree that they will attempt
through good faith negotiation to resolve their disputes. The term
"disputes" includes, without limitation, any disagreements between
the parties pertaining to this agreement. If the parties hereto are
unable to resolve their disputes by negotiation, the parties hereto
agree to resolve their disputes by Arbitration. Either party may
commence Arbitration by sending a written Demand For Arbitration to
J.A.M.S. Endispute ("JAMS") or to the American Arbitration
Association ("AAA") by registered or certified mail to the other
party and to
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JAMS or AAA, as Arbitrator. The Demand For Arbitration must
contain a description of the dispute, the amount involved, and the
remedy sought. The Arbitrator must be an individual possessing a
current valid California State Bar license and must be experienced
in automobile finance matters. The Arbitrator shall be selected by
agreement of the parties from lists supplied by JAMS or AAA. If the
parties hereto are unable to agree, JAMS or AAA will provide the
names of three (3) qualified Arbitrators, and each party shall
strike one (1) name. The remaining Arbitrator shall serve as the
Arbitrator in the Arbitration proceedings. The Arbitration shall be
conducted in Los Angeles County in accordance with the Rules
promulgated by JAMS or AAA. Pursuant to California Code of Civil
Procedure Section 1283.1(b), the provisions of California Code of
Civil Procedure Section 1283.05 are incorporated into the
Arbitration. Further, the Arbitration shall be conducted with the
widest rights of discovery as provided in the California Code of
Civil Procedure by all parties, and each party shall have the right
to cross-examine the opposing party's witnesses, either through
legal counsel, expert witnesses or both. As part of the
Arbitrator's decision, the Arbitrator shall allocate the costs of
Arbitration, including fees of attorneys and experts as he or she
deems fair and equitable in light of all relevant circumstances,
including the costs of in-house legal services provided on behalf
of the Bank. The decision of the Arbitrator shall be final, binding
and conclusive on all parties. The only ground for appeal shall be
that the Arbitrator committed an error or errors of law and those
grounds set forth in California Code of Civil Procedure Section
1286.2.
WAIVER OF STATUTE OF LIMITATIONS
ARBITRATION MUST BE INITIATED WITHIN ONE (1) YEAR AFTER EITHER
PARTY' KNOWS OR SHOULD HAVE KNOWN THAT THE CLAIMED DISPUTE
OCCURRED. FAILURE OF EITHER PARTY TO INITIATE ARBITRATION WITHIN
ONE (1) YEAR CONSTITUTES AN ABSOLUTE BAR TO THE INSTITUTION OF ANY
NEW PROCEEDINGS. IN LIMITING INITIATION OF ARBITRATION TO ONE (1)
YEAR, THE PARTIES SPECIFICALLY WAIVE AND GIVE UP THEIR RESPECTIVE
RIGHTS UNDER THE CALIFORNIA CODE OF CIVIL PROCEDURE, CALIFORNIA
COMMERCIAL CODE AND ANY OTHER LAW WHICH MAY ALLOW A GREATER AMOUNT
OF TIME WIThIN WHICH TO BRING AN ACTION UNDER THIS AGREEMENT.
WAIVER OF JURY TRIAL
NOTICE: BY SIGNING IN THE SPACE PROVIDED BELOW, THE PARTIES ARE
AGREEING TO HAVE ANY DISPUTE ARISING OUT OF ANY OF THE MATTERS
REFERENCED ABOVE DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY
CALIFORNIA LAW AND THE PARTIES ARE GIVING UP ANY RIGHTS THE PARTIES
MIGHT POSSESS TO HAVE ANY DISPUTE LITIGATED IN A COURT OR JURY
TRIAL, BY SIGNING IN THE SPACE BELOW, THE PARTIES ARE GIVING UP
THEIR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS
ARE SPECIFiCALLY INCLUDED HEREIN. IF THE PARTIES REFUSE TO SUBMIT
TO ARBITRATION AFTER EXECUTING THIS AGREEMENT, THE PARTIES MAY BE
COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE
13
CALIFORNIA CODE OF CIVIL PROCEDURE. IT IS HEREBY UNDERSTOOD AND
AGREED THAT THE EXECUTION OF THIS AGREEMENT BY THE PARTIES HERETO
IS VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT ANY
DISPUTES ARISING OUT OF THE MATTERS INCLUDED HEREIN TO NEUTRAL
ARBITRATION AS PROVIDED ABOVE.
P. Time of Essence. With regard to all dates and time periods set
forth or referred to in this Agreement, time is of the essence.
Q. Further Assurances. The parties agree (a) to furnish upon
request to each other such further information (b) to execute and
deliver to each other such other documents and (c) to do such other
acts and things, all as any other party may reasonably request for
the purpose of carrying out the intent of this Agreement and the
documents referred to in each of such agreements.
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.
COMMUNITY BANK
By: /s/ Xxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxxxx
------------------------------------------
Title: President & Chief Executive Officer
------------------------------------------
AUTO CREDIT CLEARINGHOUSE L.P.
By: /s/ Xxxx Xxxxx
------------------------------------------
Name: Xxxx Xxxxx
------------------------------------------
Title: Executive Vice President
------------------------------------------
14