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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
April 3, 2000 (March 17, 2000)
Date of Report (Date of Earliest Event Reported)
NATIONAL AUTO CREDIT, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 1-11601 34-1816760
(State or Other Jurisdiction of (Commission (I.R.S. Employer
Incorporation or Organization) File No.) Identification No.)
30000 AURORA ROAD, SOLON, OHIO 44139
(Address of principal executive offices and zip code)
(440) 349-1000
(Registrant's telephone number, including area code)
NOT APPLICABLE
(Former name or former address, if changed from last report)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On March 17, 2000, National Auto Credit, Inc. acting through its NAC,
Inc. subsidiary (the "Company") sold to Crescent Bank & Trust substantially all
of the automobile retail installment contracts remaining in the Company's active
portfolio for a selling price of $17.9 million. In March 2000, the Company also
sold to First Southwestern Financial Services for $2.7 million certain
automobile retail installment contracts held in the Company's active portfolio
and to Ameristar Financial Servicing Company, L.L.C. for $2.2 million certain
automobile retail installment contracts held in the Company's portfolio of
charged-off accounts (representing approximately one-third of the charged-off
portfolio). The Company is in the process of determining the book value of the
porfolio as of the dates of sale. The resulting gain or loss will then be
determined and disclosed in the quarter ending April 30, 2000. In each of the
three transactions, the buyer was an independent party that did not have a
material relationship with the Company, any affiliate of the Company, any
director or officer of the Company or any associate of any officer or director
of the Company. In each case, the selling price of the assets was determined
based upon arm's length negotiations between the parties and was paid in cash at
closing.
ITEM 5. OTHER EVENTS
Following its disposition of these automobile installment sale
contacts, the Company's assets consist principally of money market funds,
commercial paper, government securities and other short-term, highly liquid
investments. The Company's board of directors is assessing its strategic
business alternatives and will announce the direction it intends to take in its
business when the board has fully weighed the available alternatives and has
reached a decision.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(A) FINANCIAL STATEMENTS OF BUSINESSES ACQUIRED.
Not applicable.
(B) PRO FORMA FINANCIAL INFORMATION.
To be filed by amendment.
(C) EXHIBITS
10.1 Purchase and Sale of Agreement of Contracts between
Crescent Bank & Trust and NAC, Inc. dated March 17,
2000.
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SIGNATURE
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Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
National Auto Credit, Inc.
Date: April 3, 2000 By: /s/David L. Huber
------------------ ----------------------
David L. Huber
Chairman
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Exhibit 10.1
PURCHASE AND SALE AGREEMENT OF CONTRACTS
This Purchase and Sale Agreement of Contracts is entered into this __th day of
March 2000, between Crescent Bank & Trust, a Louisiana corporation ("Buyer"),
and NAC, Inc., a Delaware corporation ("Seller").
WHEREAS, Seller wishes to sell and Buyer wishes to buy all of Seller's rights,
title and interest in and to certain retail installment sales contracts secured
by liens on motor vehicles.
NOW, THEREFORE, in consideration of the premise and of the mutual covenants and
agreements hereinafter contained, the receipt and adequacy of which are hereby
acknowledged, the Buyer and Seller hereby agree as follows:
ARTICLE 1
DEFINITIONS
Whenever used herein, the following words and phrases, unless the context
otherwise requires, will have the following meanings:
AGREEMENT: This Purchase and Sale Agreement of Contracts,
together with all exhibits hereto and all
subsequent written amendments and supplements
hereto and thereto.
BILL OF SALE: The Bill of Sale in the form attached hereto as
Exhibit A.
BUSINESS DAY: Any day other than a Saturday or Sunday, or a day
on which banking institutions in Louisiana are
authorized or obligated by law or executive order
to be closed.
BUYER: As defined in the first paragraph of this
Agreement.
CERTIFICATE OF TITLE: That document issued by a jurisdiction that
evidences the owner(s) and lienholder(s), if any,
of a motor vehicle registered in such
jurisdiction.
CLOSING: The consummation of the transactions contemplated
to take place under this Agreement on the Closing
Date.
CLOSING DATE: March 17, 2000, or such earlier date as may be
agreed to by all parties to this Agreement.
CONTRACT: A retail installment sales contract evidencing an
Obligor's obligation to pay the indebtedness
provided for therein and evidencing the respective
security interest in a motor vehicle.
CONTRACT FILE: The documents described in Section 10.03(a) of
this Agreement.
CONTRACT RATE: With respect to a Contract, the annualized rate of
interest to be paid by an Obligor, as stated in a
Contract, which may or may not be the same as the
federal Truthin Lending Act/Regulation Z Annual
Percentage Rate.
CONVEYED PROPERTY: As defined in Section 2.01 of this Agreement.
CUT-OFF DATE: Close of business on March 10, 2000.
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DAMAGES: With respect to a Person and a specified event,
the losses, liabilities, reasonable costs and
expenses actually incurred and appropriately
documented by such Person resulting from such
specified event.
OBLIGOR: The Person or Persons who executed a Contract.
PERSON: Any individual, corporation, partnership, limited
liability company, joint venture, association,
joint stock company, trust (including any
beneficiary thereto), unincorporated organization
or government or any agency or political
subdivision thereof.
PURCHASE PRICE: As defined in Section 3.01 of this Agreement.
REPURCHASE PRICE: As defined in Section 5.03 of this Agreement.
SCHEDULE OF CONTRACTS: The schedule listing the Contracts to be purchased
by Buyer on the Closing Date, in the form attached
to this Agreement as Exhibit B, and delivered in
accordance with Section 10.01 of this Agreement.
SELLER: As defined in the first paragraph of this
Agreement.
SERVICING TRANSFER DATE: The Closing Date.
TITLE FILE: The documents described in Section 10.03(b) of
this Agreement.
UNPAID PRINCIPAL BALANCE: With respect to a Contract, as of a date of
determination, the Obligor's original principal
balance minus the cumulative principal portion of
each installment received prior to such date from
the Obligor and applied to reduce such balance,
the application of such installment having been
determined in accordance with the terms and
conditions of the Contract.
ARTICLE 2
PURCHASE AND SALE
2.01 PURCHASE AND SALE: Subject to the terms and conditions set forth in
this Agreement, on the Closing Date, Seller hereby agrees to sell,
assign, transfer, set over, and convey to Buyer, and Buyer agrees to
accept, without recourse but subject to the terms of this Agreement,
(a) all of Seller's rights, title and interest in and to the Contracts
described in the Schedule of Contracts (including, without limitation,
the security interests created thereby), including all principal of and
interest due on or with respect to and fees imposed pursuant to such
Contracts on or after the CutOff Date, (b) all of the rights under any
lender's single interest insurance policy relating to a motor vehicle
securing any such Contract for the benefit of the creditor of such
Contract (to the extent that such rights may be assigned or otherwise
conveyed), (c) all documents contained in the related Contract Files
and servicing files and (d) all proceeds derived from any of the
foregoing, other than the Purchase Price, paid pursuant to this
Agreement (the "Conveyed Property").
ARTICLE 3
PURCHASE PRICE
3.01 PURCHASE PRICE FOR CONTRACTS: Buyer agrees to pay the Seller the
Purchase Price (less the Deposit Amount of $1,000,000, to be retained
by Buyer for a period of 60 days following closing in surety of Seller
transmitting customer payments after the sale, by wire transfer, in
immediately
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available funds to a bank account specified by Seller to Buyer, at the
Closing. The "Purchase Price" shall be calculated as of the CutOff Date
and shall be equal to 67% for specifically listed accounts, of the
Unpaid Principal Balance (net of the unearned discount) of each
Contract listed on the Schedule of Contracts.
ARTICLE 4
TRANSFER
4.01 TRANSFER DOCUMENTATION AND NOTICE: Seller shall, at Seller's expense,
cooperate with Buyer to take the following actions necessary to
transfer to Buyer the Conveyed Property:
(a) Notifying the Obligors of Buyer's ownership and servicing of the
Contracts by the mailing of a letter, in the form attached as exhibit.
(b) Executing endorsements and assignments, in the form provided by Buyer,
for each Contract evidencing that the Contracts (and the security
interests created thereby) are owned by Buyer or execute Limited Powers
of Attorney in an acceptable form to transfer NAC, Inc. rights, titles,
interests in notes, lien holder interests and payments to Buyer.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF SELLER
5.01 SELLER REPRESENTATIONS AND WARRANTIES. Seller hereby represents and
warrants to Buyer, as of the Closing Date, as follows:
(a) ORGANIZATION AND GOOD STANDING. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its organization and has the corporate power to own its
assets and to transact the business in which it is currently engaged.
Seller is duly qualified to do business as a foreign corporation and is
in good standing in each jurisdiction in which the character of the
business transacted by it or properties owned or leased by it requires
such qualification and in which the failure so to qualify would have a
material adverse effect on the business, properties, assets or
condition (financial or other) of Seller.
(b) AUTHORIZATION: BINDING OBLIGATIONS. Seller has the power and authority
to make, execute, deliver, and perform this Agreement and all of its
transactions contemplated under this Agreement and has taken all
necessary corporate action to authorize the execution, delivery, and
performance of this Agreement. When executed and delivered, this
Agreement will constitute the legal, valid and binding obligation of
Seller enforceable in accordance with its terms, except as enforcement
of such terms may be limited by bankruptcy, insolvency, or similar laws
affecting the enforcement of creditors' rights generally and by the
availability of equitable remedies.
(c) NO CONSENT REQUIRED. Seller is not required to obtain the consent of
any other party, financial or otherwise or any consent, license,
approval or authorization from, or registration or declaration with,
any governmental authority, bureau, or agency in connection with the
execution, delivery, performance, validity or enforceability of this
Agreement.
(d) NO VIOLATIONS. The execution, delivery, and performance of this
Agreement by Seller will not violate any provision of any existing law
or regulation or any order or decree of any court or the Certificate of
Incorporation or Bylaws of Seller, or constitute a material breach of
any mortgage, indenture, contract, or other agreement to which Seller
is a party or by which Seller may be bound.
(e) LITIGATION. No litigation or administrative proceeding of or before any
court, tribunal, or governmental body is currently pending, or to the
knowledge of Seller threatened, against Seller or any of its properties
or with respect to this Agreement which, if adversely determined, would
in the
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opinion of Seller have a material adverse effect on the transactions
contemplated by this Agreement.
(f) LICENSING. Seller is duly licensed in each state in which Contracts
were originated; to the extent such registration is required by
applicable law.
5.02 REPRESENTATIONS AND WARRANTIES WITH RESPECT TO CONTRACTS. For each
Contract purchased by Buyer, Seller hereby represents and warrants to
Buyer that, as of the Closing Date:
(a) SCHEDULE OF CONTRACTS. The information set forth in the Schedule of
Contracts and the electronic data files are, to the best of Seller's
knowledge and in all material respects, true and correct as of its
date.
(b) LAWFUL ASSIGNMENT. The Contract was not originated in and is not
subject to the laws of any jurisdiction whose laws would make the
transfer of the Contact pursuant to this Agreement unlawful or render
the Contract unenforceable.
(c) OWNERSHIP. Seller purchased the Contract for fair value and took
possession thereof in the ordinary course of its business, without
actual knowledge that the Contract was subject to a security interest
(other than that held by Seller prior to Seller's purchasing the
Contract). Seller has not sold, assigned or pledged the Contact to any
Person and, prior to the transfer of the Contract by the Seller to
Buyer, has good and marketable title thereto free and clear of any
encumbrance, equity, loan, pledge, charge, claim or security interest
(except for any of the foregoing released in connection with the sale
and transfer in accordance herewith) and was the sole owner thereof
with full right to transfer the Contract to Buyer.
(d) CERTIFICATE OF TITLE. Seller has obtained a Certificate of Title (or
the functional equivalent thereof for jurisdictions that do not deliver
a Certificate of Title to secured lenders) for the motor vehicle that
is security for the Contract.
(e) MARKING RECORDS. With respect to a Contract if the Closing Date is
before the Servicing Transfer Date, by the Closing Date, the Seller
will have caused the portions of the electronic ledger relating to such
Contract to be clearly and unambiguously marked to indicate that such
Contract is owned by Buyer.
(f) CONTRACT FILE. With respect to a Contract, the related Contract File
contains, in all material respects, the documents required to be
contained therein pursuant to this Agreement.
(g) NO WAIVERS. The terms of the Contract have not been waived, altered, or
modified in any material respect, except by instruments or documents
identified in the Contract File or in the servicing records.
(h) CONTRACT IN FORCE. The Contract has not been satisfied or subordinated
in whole or in part or rescinded, and the motor vehicle securing the
Contract has not been released from the lien of the Contract in whole
or in part.
5.03 REMEDY FOR BREACH OF REPRESENTATION AND WARRANTY AND LIMITATION OF
SAME. The representations and warranties set forth herein shall survive
the sale of the Contracts to the Buyer and shall inure to the benefit
of the Buyer, notwithstanding any restrictive or qualified endorsement
on any Contract, PROVIDED, HOWEVER, that the representations and
warranties made herein by Seller under Sections 5.01 and 5.02 shall
terminate and expire ninety (90) days after the Closing Date and any
claim not asserted by Borrower in writing on or prior to such date
shall be forever barred and extinguished. Upon discovery by Buyer of
any material breach of any of the aforesaid representations and
warranties that results in Damages to Buyer, Buyer shall give prompt
written notice to Seller. Within ninety (90) days of its receipt of
notice of breach, Seller shall, at Seller's election, (i) cure such
breach, (ii) repurchase without recourse the Contract with
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respect to which such breach exists from Buyer at the related
Repurchase Price or (iii) pay Buyer the lesser of the Damages resulting
from such breach or the related Repurchase Price.
If Seller elects to repurchase, Seller shall give written notice of its
election within such ninety (90) day period and shall within fifteen
(15) days thereafter pay to Buyer an amount equal to such Repurchase
Price, and, upon such payments, Seller shall have no further obligation
to Buyer with respect to such Contract. In the event Seller elects to
repurchase the Contract, Buyer, shall deliver to Seller the related
Contract File and assign to Seller all of Buyer's right, title, and
interest in and to the related Conveyed Property, free and clear of any
and all claims, liens, and encumbrances, except for those which existed
at the time of Buyer's purchase thereof from Seller. THE "REPURCHASE
PRICE" shall be 67% for specifically listed accounts, of the Unpaid
Principal Balance (net of unearned discount) as of the date of the
repurchase.
5.04 LIMITATION OF WARRANTY. BUYER MAY NOT ASSERT A CLAIM FOR BREACH OF ANY
REPRESENTATION OR WARRANTY SET FORTH HEREIN WITH RESPECT TO ANY
CONVEYED PROPERTY IF BUYER IS AWARE OF SUCH BREACH AT OR BEFORE THE
CLOSING DATE AND DOES NOT ELECT TO EXCLUDE THE AFFECTED CONVEYED
PROPERTY FROM THE CONVEYED PROPERTY TO BE SOLD AND PURCHASED PURSUANT
HERETO. SELLER MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE
SUBJECT MATTER OF THIS AGREEMENT, EITHER EXPRESS OR IMPLIED, EXCEPT AS
EXPRESSLY SET FORTH HEREIN. SELLER HEREBY EXPRESSLY DISCLAIMS ANY
WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR
USE. SELLER'S MAXIMUM AGGREGATE LIABILITY TO BUYER UNDER THIS AGREEMENT
IS THE PURCHASE PRICE
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF BUYER
6.01 BUYER REPRESENTATIONS AND WARRANTIES. Buyer hereby represents and
warrants to Seller, as of the Closing Date, as follows:
(a) ORGANIZATION AND GOOD STANDING. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its organization and has the corporate power to own its
assets and to transact the business in which it is currently engaged.
Buyer is duly qualified to do business as a foreign corporation and is
in good standing in each jurisdiction in which the character of the
business transacted by it or properties owned or leased by it requires
such qualification and in which the failure so to qualify would have a
material adverse effect on the business, properties, assets or
condition (financial or other) of Buyer.
(b) AUTHORIZATION: BINDING OBLIGATIONS. Buyer has the power and authority
to make, execute, deliver, and perform this Agreement and all of its
transactions contemplated under this Agreement and has taken all
necessary corporate action to authorize the execution, delivery, and
performance of this Agreement. When executed and delivered, this
Agreement will constitute the legal, valid and binding obligation of
Buyer enforceable in accordance with its terms, except as enforcement
of such terms may be limited by bankruptcy, insolvency, or similar laws
affecting the enforcement of creditors' rights generally and by the
availability of equitable remedies.
(c) NO CONSENT REQUIRED. Buyer is not required to obtain the consent of any
other party or any consent, license, approval or authorization from, or
registration or declaration with, any governmental authority, bureau,
or agency in connection with the execution, delivery, performance,
validity or enforceability of this Agreement.
(d) NO VIOLATIONS. The execution, delivery, and performance of this
Agreement by Buyer will not violate any provision of any existing law
or regulation or any order or decree of any court or the Certificate of
Incorporation or Bylaws of Buyer, or constitute a material breach of
any mortgage,
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indenture, contract, or other agreement to which Buyer is a party or by
which Buyer may be bound.
(e) LITIGATION. No litigation or administrative proceeding of or before any
court, tribunal, or governmental body is currently pending, or to the
knowledge of Buyer threatened, against Buyer or any of its properties
or with respect to this Agreement which, if adversely determined, would
in the opinion of Buyer have a material adverse effect on the
transactions contemplated by this Agreement.
(f) APPROVALS, LICENSING, ETC. All actions, approvals, consents, waivers,
exemptions, variances, franchises, orders, permits, authorizations,
rights, and licenses required to be taken, given or obtained, as the
case may be, by or from any federal, state or other governmental
authority or agency, that are necessary or advisable in connection with
the execution and delivery by Buyer of this Agreement and other
documents have been duly taken, given, or obtained, as the case may be,
are in full force and effect to be entered into in connection herewith,
are not subject to any pending proceedings or appeals (administrative,
judicial, or otherwise) and either the time within which may appeal
therefrom may be taken or review thereof may be obtained has expired or
no review thereof may be obtained or appeal therefrom taken, and are
adequate to authorize the consummation of the transactions contemplated
by this Agreement and other documents to be entered into in connection
herewith on the part of Buyer and the performance by Buyer of its
obligations hereunder and thereunder.
ARTICLE 7
SERVICING
7.01 TRANSFER AND ASSIGNMENT. Effective as of the Servicing Transfer Date,
(a) Seller shall transfer, delegate, and assign all of its rights,
duties and obligations regarding the servicing of the Conveyed
Property, including all rights to receive payment, to Buyer and (b)
Buyer shall assume all of the Seller's such duties and obligations and
accept all of Seller's such rights. After the execution of this
Agreement and prior to the Servicing Transfer Date, Seller shall
service the property that will, after the Closing, be Conveyed Property
in accordance with its current customary practices unless the Buyer
provides in writing other directions and agrees to pay for such
servicing. Seller agrees to forward all payments received after the
Cutoff Date and the Closing Date to the Buyer, on date of receipt of
payments from customer, via overnight delivery or wire with faxed
listing of accounts for credit.
ARTICLE 8
FURTHER ASSURANCES
8.01 FURTHER ASSURANCES. In order to protect and secure Buyer's rights
hereunder, Seller, upon the request of and at the expense of the Buyer
or its assigns, shall perform or cause to be done and performed, every
reasonable act necessary or advisable to put Buyer in position to
enforce the payment of the Contracts and to carry out the intent of
this Agreement, including the execution of documents such as
applications for certificates of title and Uniform Commercial Code
financing statements assigning Seller's security interests in the motor
vehicles securing the Contracts, and the execution of , and if
necessary, the recordation of, additional documents, including separate
endorsements and assignments, upon request of Buyer.
8.02 INDEMNIFICATION BY BUYER. Buyer hereby agrees to fully indemnify and
defend Seller from and against, and hold Seller harmless from any
claim, lawsuit, proceeding, inquiry, or other matter arising out of the
Contract(s) which are the subject of this Agreement, only on matters
based upon events arising after the Closing Date
8.03 AUDIT. To the extent that Seller may be subject to state by state audit
or similar inquiry as to Contracts, Buyer agrees, at Sellers' expense,
to promptly cooperate with Seller for purposes of
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complying with such state by state audit or inquiries, and provide
necessary data, for and copies of, Contracts.
ARTICLE 9
BROKERAGE AND OTHER THIRD PARTY FEES
9.01 BROKERS. Seller hereby assumes responsibility for any and all brokerage
or finder's fees, or any similar payments whatsoever called, due on
this transaction between Seller and Buyer or other like payments that
may or can be claimed as a result of this Agreement, it being
understood that the Purchase Price is the full and complete amount the
Buyer is obligated to pay to Seller for the Conveyed Property. Seller
hereby assumes responsibility for any and all brokerage or finder's
fees, or any similar payments whatsoever called, due on this
transaction between Seller and Buyer or other like payments that may or
can be claimed by any other Person as a result of this Agreement except
for HouTex Financial Services, which Buyer will pay .25% of the
purchase price. Seller represents that it has not incurred any
obligation for broker's commissions or finder's fees in connection with
this transaction to any Person.
ARTICLE 10
THE CLOSING
10.01 SCHEDULE OF CONTRACTS. At least two (2) Business Days prior to the
Closing, Seller shall provide to Buyer, a Schedule of Contracts which
shall list each Contract to be purchased on the Closing Date and which
shall set forth as to each Contract, as of the CutOff Date.
(a) the Contract origination date;
(b) the account number of the Contract;
(c) the name of the Obligor;
(d) the year, make, model, and vehicle identification number of the motor
vehicle which is security for the Contract;
(e) the original term of the Contract in months;
(f) the remaining term of the Contract in months;
(g) the then Unpaid Principal Balance;
(h) the Contract Rate;
(i) the accrued interest at the Contract Rate;
(j) the current due date;
(k) the Purchase Price of all Contracts; and
(l) the electronic data file to effect the electronic conversion of
servicing.
10.02 CLOSING LOCATION. The Closing hereunder will take place at the offices
of Seller.
10.03 SELLER DELIVERIES. At the Closing, Seller shall deliver to Buyer the
following with respect to each Contract
(a) The Contract File, which shall include the following documentation as
to each Contract, set forth in the Schedule of Contracts:
(i) The original Contract with an assignment in a form acceptable
to Buyer of all of Seller's rights, title and interest therein
or Limited Power of Attorney to effectuate same.
(ii) Obligor credit files including the original application,
credit investigation and insurance information.
(b) The Title File, which shall include the Certificate of Title (to the
extent the state of origin has such Certificate of Title or notice of
recorded lien in Seller's name then assigned to Buyer) for the motor
vehicle that secures the related Contract.
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(c) Obligor payment, insurance and collection records.
(d) The Bill of Sale.
(e) A certificate in the form attached hereto as Exhibit C signed by
Seller's President.
(f) A certificate of resolution of the Board of Directors of Seller,
authorizing Seller to enter into this Agreement and any and all
transactions contemplated hereby and stating that said resolution is in
full force and effect as of the Closing Date.
10.04 PAYMENT OF PURCHASE PRICE. Subject to Seller's complying on the Closing
Date in all material respects with the terms and conditions of this
Agreement, Buyer shall pay the Purchase Price to Seller on the Closing
Date, by wire transfer, in immediately available funds, to:
National City Bank, Cleveland, Ohio
ABA #041000124
Account #2393370
Account Name: National Auto Credit, Inc.
10.05 BUYER DELIVERIES. At the Closing, Buyer shall deliver to Seller the
following:
(a) A certificate in the form attached hereto as Exhibit D signed by
Buyer's Executive Vice President & Chief Operating Officer;
(b) A certificate of resolution of the Board of Directors of Buyer,
authorizing Buyer to enter into this Agreement and any and all
transactions contemplated hereby and stating that said resolution is in
full force and effect as of the Closing Date.
ARTICLE 11
NOTICES
11.01 NOTICES. Any notice, demand or communication which either party desires
or is required to give to the other party in connection with the
Agreement must be in writing and must be either served personally or
sent by fax and overnight mail, addressed to the other party, as
follows, or to such other fax number and/or address as either party
hereafter specifies in accordance with this Article:
IF TO BUYER: IF TO SELLER:
Crescent Bank & Trust NAC, Inc.
P. O. Box 61813 30000 Aurora Rd.
New Orleans, LA 701611813 Solon, OH 44139
Fax (504) 5524454 Fax: (440) 349-0442
Attn: Paul R. Trapani, Jr. Attn: Dave Huber
Title Executive Vice President & Title: President
Chief Operating Officer
With a copy to:
NAC, Inc.
30000 Aurora Rd.
Solon, OH 44139
Fax: (440) 3493959
Attn: General Counsel
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ARTICLE 12
GENERAL
12.01 ENTIRE AGREEMENT. This Agreement together with all Exhibits hereto
constitutes the entire agreement between the parties hereto and
supercedes any and all representations, promises and statements, oral
and written, made in connection with the subject matter of this
Agreement and the negotiation hereof, and no such representation,
promise or statement not written herein will be binding on the parties.
This Agreement may not be varied or altered or its provisions waived
except by an agreement in writing executed by duly authorized agents of
both parties hereto. This Agreement will be binding upon and inure to
the benefit of the parties hereto and each of their respective
successors and assigns.
12.02 GOVERNING LAW. This Agreement will be interpreted, construed, and
enforced in accordance with the laws of the State of Louisiana without
reference to that state's laws or rules pertaining of conflict of laws.
12.03 SEVERABILITY. Any provision of this Agreement, which is prohibited or
unenforceable in any jurisdiction, will, as to such jurisdiction, be
ineffective to the extent of each prohibition or unenforceability
without invalidating the remaining provision hereof, and any such
prohibition or unenforceability in any jurisdiction will not invalidate
or render unenforceable such provisions in any other jurisdiction.
12.04 CAPTIONS. Captions are for convenience of reference only and are not to
be considered as defining or limiting in any way the scope of intent of
the provision hereof.
12.05 WAIVERS: CUMULATIVE REMEDIES. The waiver of any breach, term, provision
or condition of this Agreement may not be construed to be a subsequent
waiver of any other breach, term, provision or condition. All remedies
afforded by this Agreement for a breach hereof will be cumulative, that
is, in addition to all other remedies provided for herein or at law or
in equity.
12.06 CONSTRUCTION. Unless otherwise specifically provided, references in
this Agreement to Sections and Exhibits are to Sections and Exhibits of
or to this Agreement. All Exhibits hereto are incorporated herein by
the references thereto in this Agreement. The designations of the
parties to this Agreement and any pronouns referring to any party,
wherever used, must be so construed as to include the plural as well as
the singular number, and whenever the context permits, any gender
includes all other genders and the singular number includes the plural.
As used in this Agreement, the words "includes" and "including" are not
limiting, and the words "hereof" and "hereunder" and words of similar
import when used in this Agreement refer to this Agreement as a whole
and not to any particular provision of this Agreement.
12.07 COUNTERPARTS. This Agreement may be executed in one or more
counterparts of duplicate originals, each of which must be deemed an
original, but all of which together will constitute but one and the
same instrument.
12.08 ASSIGNMENT. No party hereto may assign any of its rights or obligations
hereunder without the prior written consent of the other parties
hereto.
12.09 DISPUTE RESOLUTION.
(a) In the event of any claim, suit, or controversy (collectively, a
"claim") involving any matter governed by or related to this Agreement,
the parties shall first use their diligent and good faith efforts to
resolve the dispute by exchanging relevant information and negotiating
in good faith, including not less than one facetoface meeting at an
agreed upon location in or near the city of the party against whom the
claim is raised by each party's Chief Operating Officer.
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(b) Mediation. If the dispute resolution efforts described in the preceding
section are unsuccessful, either party may, by written notice to the
other party, require that the parties participate in nonbinding
mediation to attempt to resolve such dispute. Such mediation shall be
conducted in New Orleans, Louisiana, in the event Seller or Buyer has a
claim and administered by a mediator mutually acceptable to Buyer and
Seller, but absent their mutual agreement, by a mediator selected by
the New Orleans Office of the American Arbitration Association under
its commercial Mediation Rules. Each party shall bear its own costs of
mediation. Unless the parties have attempted to resolve a dispute
through the mediation procedures described above, neither party may
file a lawsuit in connection with such dispute until such time as such
party shall give written notice to the other party indicating the
intent to file the lawsuit. Upon receipt of such notice of intent to
file litigation, the other party shall have ten (10) business days in
which to require that the mediation efforts specified above be
undertaken as a mutually acceptable mediation situs prior to the
commencement of litigation in connection with such dispute.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
Crescent Bank & Trust NAC, Inc.
---------------------------- -----------------------
By: Paul R. Trapani, Jr. By: Dave Huber
Its: Executive Vice President & Its: President
Chief Operating Officer
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