|
This
Participation Agreement ("Agreement") contains the terms of the agreement
between you ("User") and Select Automotive Management, Inc. (hereinafter
"SAM"). By continuing to use this Internet site, User is indicating acceptance
of the terms and conditions of this Agreement and User's promise to comply with
any and all laws and regulations which pertain to the use of this site and to
the use of the Internet as a whole.
Purpose
of the Agreement
SAM
is operating an Internet site for the purpose of facilitating the sale of debt
obligations between willing sellers and willing purchasers. The mechanism
through which such sales will be consummated will be detailed in Article II.
SAM anticipates using advanced search engines as a part of the Web site in
order to facilitate the identification of Debt ("Debt") in which User might
have an interest. User is interested in purchasing Debt by examining
information regarding Debt and making purchases accordingly. User wishes to
become an active user of the SAM marketplace, and SAM wishes to accept User as
a registered member of this site.
I.
Statement of General Agreement
User
hereby agrees to become a registered User of the SAM Internet marketplace, and
SAM hereby accepts User as a registered member of said marketplace. After User
completes the registration materials, SAM will transmit to User an account name
and password that User will use in order to access the restricted areas of this
Internet site. If User wishes to focus a search for Debt based on specified
criteria, User will provide the relevant criteria based upon the input options
and specifications which SAM permits.
II.
Debt Listing and
Sale
Procedures
1.
User will have the right to browse and enter bids for the purchase of the Debt
instruments and/or portfolios that are listed on the site.
2.
Each instrument or portfolio that is available will be given a unique
identification number.
3.
SAM will facilitate on-line access to reports and information provided by the
seller of the respective Debt so that prospective debt purchasers may make
informed decisions regarding the purchase of the listed Debt securities or
instruments. Only registered users will be able to access this information. SAM
will provide no information beyond that provided by the seller of the Debt.
4.
The User may use the Internet site to submit bids for the listed Debt
instruments or securities. The sale of these items of Debt is conducted in an
open-bid auction format.
Sale
of assets may be subject to an unpublished reserve price or minimum bid. SAM
reserves the right to advance bidding to such reserve price or minimum bid.
However, in all cases, the seller of the Debt makes final determinations
regarding the selection of the party to which it will sell its Debt.
III.
Declarations by the User
1.
User is knowledgeable and experienced in the origination, sale and purchase of
performing and non-performing or distressed debt, including debt secured by
real estate or other types of collateral, as well as other financial and
business matters, and User is capable of evaluating the merits and risks of its
prospective acquisition and ownership of the Assets to be offered at auction,
including the risk that User may not be able to collect such Debt.
2.
User has the expertise and capability to service the Debt to be offered for
sale at auction or will hire a qualified third party to do so on its behalf,
based upon the User's own knowledge of such servicer's
capabilities and expertise.
3.
User acknowledges and agrees that User has been given the opportunity to
inspect certain trial balance and other information and materials relating to
the debt being offered at auction. User further acknowledges and agrees that no
representative or employee of either SAM or any Seller has been authorized to
make, and User has not relied upon, any representations or warranties relating
to such Debt other than those contained in the Purchase and
Sale
contract. User has determined whether or not to purchase any Debt offered for
sale at auction base solely upon its own independent examination, study,
inspection and knowledge of such Debt and has relied solely upon its own
determination of the quality, value, condition and marketability of such Debt
and any and all properties or other collateral securing payment of such Debt
and not on any information, statement, representation or promise made or to be
made by SAM or any Seller in connection with its decision to bid on (and, if
successful, purchase) such assets.
4.
User acknowledges and agrees that the proposed sale of the Debt does not
involve, nor is intended to in any way constitute, the sale of a "security"
within the meaning of any applicable federal or state securities law.
5.
Acquisitions of assets such as those which may be offered at auction involve a
high degree of risk and are therefore suitable only for entities of substantial
financial means which have no need for liquidity and which could hold such
assets indefinitely or bear the partial or entire loss of the value of such
Debt.
IV.
SAM Confidentiality Agreement For Review Of Assets
by User
As
part of the process by which User may make a decision regarding whether or not
to purchase a particular Debt instruction or portfolio, the User is permitted
to examine information that relates to the Debt. Because this information is
confidential, which may result in damages if further disclosure is made, User
agrees to the following:
THIS
CONFIDENTIALITY AGREEMENT FOR REVIEW OF ASSETS ("Article VI”) is made and
agreed to by User and Select Automotive Management, Inc. (“SAM”) for the
benefit of certain owners of financial debt instruments (collectively
“Sellers”).
Preamble:
Sellers
and SAM are offering for sale certain financial debt instruments (the
“Assets”). In connection therewith, User has requested permission to review and
inspect certain information relating to the Assets. It is specifically
acknowledged by User that all Confidential Information (as defined below) is
confidential and/or proprietary in nature and that damages
to Sellers and SAM may result if the Confidential Information is revealed. User
further acknowledges that this information may be provided by SAM to more than
one prospective purchaser and is not exclusive to the User. Further, User
agrees and acknowledges that such lack of exclusivity shall, in no way, be
deemed to affect the enforceability of this Agreement or invalidate any of the
terms or conditions contained herein.
In
consideration of being granted the opportunity to review and inspect the
Confidential Information, and for other good and valuable consideration,
including the rights and obligations of the parties herein expressed, the
adequacy and sufficiency of which is hereby acknowledged, the SAM and User
agree as follows:
Agreement
Section
1: Confidential Information
Confidential
Information as used in this Agreement shall include: (a) all documents,
reports, and other information relating to or in any way pertaining to the
Assets; (b) all information provided in response to any request from User,
regardless of the form of such response or the manner in which such information
may be provided; (c) all electronically produced information in any form; or
(d) information made available through the SAM internet web site. The term
“Confidential Information” shall not include information which: (a) is already
known to the User from sources not known by the User to be subject to any
confidentiality obligations to the Sellers or SAM; (b) is or becomes generally
available to the public other than as a result of a disclosure by the User or
any of its Qualified Persons (as defined below); or (c) is required to be
disclosed by law or by regulatory or judicial process.
Section
2: Purpose
The
User agrees that its review and inspection of the Confidential Information
shall be solely to conduct due diligence, on its own behalf, for the sole
purpose of determining whether or not to submit a bid to purchase some or all
of the Assets, and for no other purposes. The User agrees that any credit or
consumer report information contained in the Confidential Information will be
used by the User solely for the purpose of analyzing the credit transaction
involved or the collectability of such account.
Section
3:
Non-Disclosure and Use of Confidential
Information
The
User agrees that, except as set forth below, all Confidential Information shall
be used by the User solely for the purpose stated in Section 2 herein. The User
further agrees not to disclose any of the Confidential Information, without the
prior written consent of SAM, to any party other than (i)
its employees, officers, and directors (including those of its affiliates);
(ii) its agents and representatives, including attorneys, accountants, lenders,
and financial advisors; or (iii) insurance and reinsurance firms; (individually
and collectively referred to herein as “Qualified Person”). Each Qualified
Person shall (i) have a need to know the
Confidential Information for the purpose stated in Section 2 herein, and (ii)
have entered into an agreement with the User substantially in the form of this
Agreement pertaining to their use and protection of the Confidential
Information. The User shall inform each Qualified Person that receives any of
the Confidential Information of the requirements of this Agreement and shall
require each such Qualified Person to comply with such requirements.
Section
4: Duplication
No
reproductions, other than handwritten summaries or notes and self-generated
computer records, of any items of Confidential Information shall be made
without the prior written consent of the SAM.
Section
5: Restrictions on Contact
The
User and its Qualified Persons shall communicate solely with SAM relative to
any Asset unless it has received the prior written consent of the SAM to speak
with other parties concerning said Asset. This restriction on contact shall
extend to all Sellers, debtors, guarantors, and any current or former agents,
advisors, employees, managers, or representatives of any of them, including by
way of illustration, not limitation, any accountants or attorneys.
Section
6: Legal Requirements
The
User acknowledges that the Confidential Information may contain customer
information subject to federal, state, local or common laws, rules and
regulations regarding privacy rights or otherwise limiting the use and
dissemination of such information, including specifically the Right to
Financial Privacy Act. The User agrees not to take any action in violation of
any laws, rules or regulation.
Section
7: Notices
All
notices, waivers, demands, requests or other communications required or
permitted by this Agreement (collectively “Notices”), to be effective, shall be
in writing, properly addressed, and shall be given by (a) personal delivery,
(b) established overnight commercial courier with delivery charges prepaid or
duly charged, or (c) registered or certified mail, return receipt requested,
first class postage prepaid, as follows:
Advisor:
Select
Automotive Management
7910
N. Tamiami Trail
, Suite 104
Sarasota
,
FL 34243
Attention:
Dr. Douglas Colkitt, President
Prospective
User: shall be sent to the address information as listed in the User
Registration information, or, to any other address or addressee as any party
entitled to receive notice under this Agreement shall designate, from time to
time, by Notice given to the others in the manner provided in this Section.
Notices given by personal delivery shall be deemed received upon tender to the
respective natural person named above. Notices given by overnight courier shall
be deemed received the next business day after delivery to such overnight
commercial courier. Notices given by mail shall be deemed received on the
second (2nd) day after deposit into the United States Postal System. All copies
to the respective persons or entity(ies)
listed above to receive copies shall be given in the same manner as the
original Notice, and such giving shall be a prerequisite to the effectiveness
of any Notice.
Section
8: Indemnification
By
execution of this Agreement, User hereby agrees to indemnify, defend (through
attorneys reasonably acceptable to SAM and Sellers and their successors and
assigns) and hold SAM and Sellers and all officers, directors, employees, and
agents of SAM and Sellers harmless from and against any and all pending or
threatened claims, causes of action, damages, losses, costs (including
reasonable and necessary attorney’s fees) and liabilities of any nature, which
may at any time be assessed against or suffered by SAM or Sellers directly or
indirectly relating to or arising out of a breach of this Agreement by the User
or its Qualified Persons. These rights to indemnification shall include, by way
of illustration, not limitation, any such pending or threatened claims, causes
of action, damages, losses, costs (including reasonable and necessary
attorney’s fees) and liabilities arising as a result of User's use or
disclosure of the Confidential Information in violation of any applicable laws,
rules or regulations referenced in Section 6 hereof.
Section
9: Termination / Survival of Certain Terms
The
restrictions in this Agreement shall terminate as to any of the Assets acquired
by the User; provided, however, that any claim by SAM based on a breach of this
Agreement occurring prior to such acquisition shall survive the acquisition
unless waived by SAM in writing. In addition, the Purchase and Sale Contract
executed between Sellers and User for assets acquired may contain further
Confidentiality requirements. The terms and conditions of this Agreement shall
remain in full force and effect as to any Assets not acquired by the User. The
User shall destroy or, at SAM's request, deliver to
SAM, all information received by User from SAM or its representatives,
including any compilations, studies, notes or other documents or records that
contain or reflect Confidential Information relating to the Assets not acquired
by the User. The terms and conditions of this Agreement pertaining to User’s
duty to indemnify, defend and hold harmless, as
provided in Section 8 above, shall survive the termination of this Agreement
and are not conditioned upon User’s purchase decision.
Section
10: No Representations or Warranties
User
acknowledges and understands that the Confidential Information has been
prepared by parties other than SAM and that SAM makes no representations or
warranties whatsoever, express or implied, with respect to the content,
completeness or accuracy of the Confidential Information. User hereby releases
SAM and their respective agents, officers, directors, attorneys, employees,
contractors and representatives from all claims, causes of action, losses,
damages, liabilities, judgments, costs and expenses (including, without
limitation, attorney’s fees, whether suit is instituted or not) asserted
against or incurred by User by reason of the Confidential Information.
Section
11: Scope of Agreement/Future Offerings
This
Agreement shall govern all Confidential Information heretofore provided by SAM
to User, as well as all future offerings regarding Assets. User expressly
agrees to such retroactive application, provided, however, no breach of the
obligations created by this Agreement, nor claims arising hereunder, shall be
claimed for any actions of User occurring prior to its acceptance hereof.
Future offerings will be sent to User unless User notifies SAM, in writing, to
delete User’s name from SAM’s database.
Section
12: Fees
At
the time of closing of any transaction as a result of User or seller utilizing
information posted on the SAM Exchange; the User shall pay to the SAM Exchange
a fee equal to 2% (two per cent) of the transaction price (sales price) of each
loan sold or each package of loans sold. Such fee shall be withheld, if
possible, by the SAM Exchange at the time of closing. If not withheld by the
SAM Exchange such fees shall be paid within 5 business days from the date of
closing. In the event that either User or seller circumvents the SAM Exchange
and closes a transaction in violation of this agreement outside of the SAM
Exchange or without the knowledge of the SAM Exchange, all parties will agree
that the fee due to the SAM Exchange is double the normal standard fee.
Section
13: Remedies for Breach / Liquidated Damages
In
the event the Confidential Information is disclosed without express permission,
or used for any purpose other than in accordance with Section 2 hereof, the
User, its employees, officers, agents, subcontractors, or other Qualified
Persons engaging or participating in such unauthorized use or disclosure, will
be in violation of this Confidentiality Agreement. Upon the occurrence of any
such breach, User and SAM hereby agree that the
damages arising therefrom may be impossible or
difficult to fully ascertain. User and SAM, having considered such
difficulties, the purpose of this Agreement and each being fully advised of
their legal rights and having had the opportunity to seek the advice of legal
counsel, hereby agree that a liquidated damage provision is necessary and
appropriate under the circumstances. While specific damages may differ with
respect to the nature and extent of the breach, the quality and price of the
Asset that is the subject of such breach, and other factors too numerous to
list, the parties have agreed that the sum of Two Hundred Fifty Thousand U.S.
Dollars ($250,000.00) represents a reasonable amount to be paid by User to SAM
and Seller as liquidated damages for any breach of this Agreement by User. The
User and SAM acknowledge and agree that this provision represents the
negotiated agreement of the Parties and constitutes a valid and enforceable
liquidated damage provision. Each waives any claim or defenses that might be
presented with respect to the validity or enforceability of this provision,
including specifically, that such amount constitutes an unenforceable penalty
provision.
Section
14: Waiver
No
failure to enforce or waiver of any rights with respect to any breach of this
Agreement shall be construed to establish any course of dealing or prohibit, in
any manner, any Party’s right to seek damages for any subsequent breach of this
Agreement.
Section
15: Entire Agreement
This
Agreement, including the Preamble and all introductory remarks which are
intended by the Parties to be a substantive part hereof, represents the entire
agreement between the User and SAM relating to the treatment of Confidential
Information heretofore or hereafter reviewed or inspected by the User. The
acceptance of this Agreement does not create any right, title or interest,
express or implied, on behalf of the User regarding the purchase of any Assets.
No such right, title or interest shall exist except those created by a
subsequent Purchase and
Sale
Contract executed by both User and Sellers.
Section
16: Governing Law/Jurisdiction
This
Agreement shall be governed by the laws of the State of
Florida
.
In the event of any litigation arising out of this Agreement, the parties
hereby agree to submit to the jurisdiction to the courts of said State and
expressly waive any claimed defenses to the exercise of such jurisdiction. User
agrees to submit to personal jurisdiction to the courts located in
Sarasota
,
Florida
for the purpose of litigating any and all such claims and disputes.
No
Agency
No
agency, partnership, joint venture, employee-employer or franchiser-franchisee
relationship is intended by this agreement.
Notices
Except
as explicitly stated otherwise, legal notices shall be served at:
Select
Automotive Management
7910 N. Tamiami Trail
,
Suite 104
Sarasota
,
FL
34243
or
to the email address provided to SAM during the registration process by the
User (in the case of the User). Notice shall be deemed given 24 hours after
email is sent, unless the sending party is notified that the email address is
invalid. Alternatively the User may be notified by mail to the address given
during the registration process. In such case, notice shall be deemed given
three days after the mailing date.
Resolution
of Disputes
If
dispute arises between User and SAM, our goal is to provide Users with a
neutral and cost effective means of dissolving the dispute quickly.
Accordingly, User and SAM agree to resolve any claim or controversy at law or
equity that arises out of this agreement or our services (a “Claim”) in
accordance with one of the subsections below or as Sam and User otherwise agree
in writing. Before resorting to these alternatives, we strongly urge Users to
contact us directly to seek a resolution by going to (insert “Contact Us”
Link). We will consider reasonable requests to resolve the dispute through
alternative dispute resolution procedures, such as mediation or arbitration, as
alternatives to litigation.
-
Law
and Forum Disputes- This agreement shall be governed in all respects by the
laws of the state of Florida as they apply to agreements entered into and to be
performed entirely within Florida between Florida residents, without regard to
conflict of law provisions. User agrees that any claim or dispute User may have
against SAM must be resolved by a court located in
Sarasota
,
Florida
except as otherwise agreed by the parties or as described in the Arbitration
Option paragraph below. User agrees to submit to the personal jurisdiction of
the courts located in
Sarasota
,
Florida
for the purpose of litigated all such claims and disputes.
-
Arbitration
Option- For any claim (excluding claims for injunctive or other equitable
relief) where the total amount of the award sought is less then $100,000.00,
the party requesting relief may elect to resolve the dispute in a cost
effective manner through binding non-appearance-based arbitration. In the event
a party elects arbitration, they shall initiate such arbitration through an
established alternative dispute resolution (“ADR”) provider mutually agreed
upon by the parties. The ADR provider and the parties must comply with the
following rules: a) The arbitration shall be conducted by telephone, online
and/or be solely based on written submissions, the
specific manner shall be chosen by the party initiating the arbitration; b) the
arbitration shall not involve any personal appearance by the parties or
witnesses unless otherwise mutually agreed by the parties.
|