Term Sheet - CarDirect.com and Finance One Corp.
TERM SHEET
Dated December 16, 1999
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Vision
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. CarsDirect.com ("CarsDirect") and Finance One Corporation ("Bank One"), a
wholly-owned subsidiary of BANK ONE CORPORATION, share the view that there
exists an opportunity to create a best-in-class provider of financial
products to buyers of vehicles via CarsDirect.com and the internet;
. that such a provider would rely on a small consortium of like-minded
providers, each of which would bring best-in-class capabilities in their
respective product offerings;
. that such a consortium would require conformity to certain principles aimed
at assuring a highly satisfactory customer experience including: an
attractive and competitive price, straightforward features (no surprises or
small print "gotcha's") and the best on-line, real time decision and
servicing possible;
. that products to be provided by the consortium would include super-prime
loans and leases through super-sub-prime loans, home equity loans, used car
financing, credit cards and relevant insurance products;
. that more than one provider at each level is necessary to avoid impairing
CarsDirect's competitiveness from time to time;
. that agreed-upon independent reference points will be used to gauge the
competitiveness of each provider's pricing, and that price competitiveness
shall not be deemed to mean a need to match manufacturers' captives'
subvention programs or special promotional offers in the marketplace; and
. that CarsDirect and Bank One and/or the consortium will collaborate in
joint releases and other publicity efforts to enhance the stature of both
parties in automotive eCommerce.
1. CarsDirect specifically requires:
a. CarsDirect will determine who will be the members of the consortium
in addition to Bank One and Bank One's own correspondent network. In
addition, CarsDirect has the right to present Bank One with a list
of lenders it would regard as unacceptable participants as Bank One
correspondents because of evidence that they would not deliver the
customer experience as envisioned above, and to propose ending the
participation of any Bank One correspondent who fails to meet
agreed-upon service standards. Bank One is obliged to give these
proposals due consideration.
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b. Integration support in the following areas during the nine-month
period of exclusivity described elsewhere in this document:
(1) Systems (integration for Bank One to the consortium system)
(2) Operations (fulfillment of current plans, e.g., auto
decisioning, custom finance)
(3) MIS (Bank One will continue to provide current monthly
reporting)
(4) Training (limited to the product level to ensure CarsDirect
is an effective distributor)
(5) Legal (ability to offer products that overcome legal and
regulatory constraints in certain states, e.g., balloon
loan, zero-dollar drive off product)
(6) Problem Solving
c. ***
d. A system architecture that allows multiple interfaces between
CarsDirect and its consortium of participating lenders, one of
which is Bank One.
e. In keeping with the above requirement, Bank One will design its
origination systems and processes in a manner that facilitates its
participation in a multi-lender consortium and will help
CarsDirect design standard formats and interconnectivity protocols
that equally facilitate the participation of Bank One and other
lenders in an efficient, on-line loan and lease origination
process linked to the vehicle purchase transaction.
f. The ability to approve credit for virtually all creditworthy
customers.
2. Bank One specifically requires:
a. In exchange for helping CarsDirect develop and implement the
business processes required to function as an effective financial
intermediary, and for training its people, Bank One requires a
period of nine months from the start of this agreement in which
Bank One and its correspondents will be the sole providers of
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loans and leases to CarsDirect customers. This is designed to ensure the
necessary mutual focus on and commitment of both parties to rapid
implementation of a full line of products, protect CarsDirect and Bank
One from unduly complicating development with the introduction of
multiple origination processes, and eliminate the threat of compromising
Bank One's competitive advantage due to financial service competitors
having access to its intellectual capital during the early development
phase.
b. Agreement by CarsDirect that by acting as a sales and distribution
intermediary for Bank One-branded loans and leases, CarsDirect will not
acquire any ownership of such Bank One-branded loans and leases.
c. An understanding as between Bank One and CarsDirect with respect to the
ownership of intellectual property rights in the systems and processes
developed by each of them as follows: (i) with respect to those systems
and processes that are developed by Bank One and/or its vendors, Bank
One and/or its vendors shall have ownership; (ii) with respect to those
systems and processes that are developed by CarsDirect and/or its
vendors, CarsDirect and/or its vendors shall have ownership; and (iii)
with respect to those systems and processes that are developed by both
Bank One and/or its vendors and CarsDirect and/or its vendors, both Bank
One and/or its vendors and CarsDirect and/or its vendors shall have
ownership. It is understood that each of Bank One and CarsDirect will be
concurrently building its own correspondent network and building
technological infrastructure to support its network (and it is therefore
understood that each network may have features and functionality that is
similar to the other); the purpose of delineating ownership rights as
set forth above is to protect each of Bank One's and CarsDirect's
investments in their respective technological infrastructure, and not to
interfere with each's ability to build and operate their respective
networks.
d. If Bank One and CarsDirect decide to co-develop any financial products
or processes, the ownership of such products and processes, and any
provisions governing their marketing and delivery, will be established
under separate agreements.
e. Terms governing the co-branding of any Bank One products provided by
Bank One to CarsDirect customers will likewise be covered under separate
agreements.
f. CarsDirect shall fully implement and make available to its customers any
loans and leases that it has asked Bank One to provide within a
reasonable period of time after its completed development by Bank One
and availability to CarsDirect, and suitable training and operational
requirements are met, unless a mutual delay is agreed upon. This
requires that CarsDirect make readily available for product training,
and for the implementation of related processes and interconnectivity,
all of the sales, customer service and operations personnel who will be
involved in the marketing and delivery of the product.
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g. Bank One will provide loans and leases to CarsDirect customers
only in those states and localities where CarsDirect has full
legal and regulatory clearance to operate, whether as a seller
or broker of vehicles, lessor or sublessor, or intermediary in
the sale and distribution of the loans and leases to be offered.
In the event that CarsDirect (i) obtains licenses in states in
which Bank One has not currently agreed to provide loans and
leases because of CarsDirect licensing considerations, (ii)
obtains a favorable regulatory or other ruling, (iii) modifies
its programs in such a manner that licensing is no longer
required or (iv) develops a legal theory which would reasonably
support CarsDirect engaging in its current business model
without obtaining such required licenses, Bank One will be
afforded the opportunity to review such developments at that
time and shall be permitted to add such additional state(s) to
those states in which Bank One offers exclusive financing for
CarsDirect at Bank One's option. Bank One will use its
reasonable best efforts to notify CarsDirect of its decision
whether to provide such loans or leases within 15 business days
after receipt of notice from CarsDirect of any such development
and CarsDirect shall have the right to obtain such loans or
leases from providers other than Bank One or its consortium in
the circumstances described in clauses (i) through (iv) above if
and to the extent Bank One or the consortium has not agreed to
provide such loans or leases in the circumstances described in
clauses (i) through (iv) above.
h. Bank One and CarsDirect will agree upon and establish
performance standards - encompassing processes and results --
for financial service sales, customer service activity and
interactions with Bank One dealers. CarsDirect will implement
monitoring and timely reporting mechanisms for the agreed-upon
performance metrics. The standards, remedial measures and
consequences of failure to meet the standards will be covered in
separate service agreements.
3. There will be an initial nine-month period of exclusivity during which
Bank One will:
a. provide all loan and lease products subject to Sections 2(g),
3(d) and 3(f), with the exception that CarsDirect may (i) during
the exclusivity period, refer transactions to manufacturers'
captive finance companies or their related dealers for the
express and exclusive purpose of accessing subvention programs
being offered at the same time through their dealers to finance
the sale or lease of specified vehicles and (ii) seek other
providers of loan or lease products for any loans or leases that
have been conclusively "turned-down" by Bank One and its
correspondents.
b. directly or through its correspondents provide coverage of
consumer risk tiers, product requirements and vehicles at to-be
agreed-upon percentages or levels. These categories of coverage,
coverage levels and a timetable for scaling up and achieving
them - along with exceptions necessitated by competitor
subvention and promotional programs -- will be defined in a
separate agreement.
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c. continue to offer the current rate agreement through January 31,
2000, after which time Bank One will ***.
d. continue to offer *** as provided in Section 1(c) and
immediately commence with CarsDirect upon execution of this Term
Sheet a study designed to identify a lease product or products
best suited for CarsDirect by January 31, 2000. Any conclusions
of such study will be implemented as soon as practical after
they are reached, and Bank One agrees that if Bank One and
CarsDirect conclude that Bank One cannot provide lease products
for all automotive makes and models offered by CarsDirect
reasonably acceptable to CarsDirect, Bank One will waive its
rights under Section 3(a) hereof to exclusivity with respect to
such lease product for each make and model for which Bank One
cannot provide a reasonably acceptable lease product.
e. provide resources and support to operationalize all products
within CarsDirect as necessary to support effective sale,
origination and customer service by CarsDirect personnel and to
achieve efficient electronic connectivity with the processing
infrastructure of Bank One and its correspondents.
f. offer *** as defined in Section 1(c) and ensure competitiveness
by keeping Bank One pricing in line with market pricing as
determined by independent measurements and sources and a
mechanism for resolving noncompetitiveness to be defined in a
separate agreement.
g. in order to provide further assurance of competitive pricing at
all levels during the nine-month period of exclusivity, Bank One
will ***.
4. Following the exclusivity period, *** CarsDirect will have no obligation
to consume any such loans and leases, except as contracted for under separate
agreements.
5. The concept of Right of First Refusal will not exist, but in
consideration for Bank One's role in facilitating the creation of multi-lender
capabilities, until the later of (i) three years from the date of this term
sheet or (ii) the termination of this term sheet by either CarsDirect or Bank
One pursuant to Section 8, where CarsDirect offers to its customers a loan,
lease or insurance product, and on any given loan, lease or insurance
transaction Bank One and its correspondents have a loan, lease or insurance
product for such transaction with terms that are at least equal to the most
favorable terms otherwise available to CarsDirect for such transaction, then in
such circumstances CarsDirect will fulfill such transaction needs with the
product provided by Bank One and its consortium. Notwithstanding the foregoing
sentence, if CarsDirect acquires a business that is subject to a pre-existing
contractual obligation with respect to loans, leases or insurance that is
inconsistent with this Section, CarsDirect shall not be subject to the
requirement of the first sentence of this Section until the initial scheduled
expiration date of such existing
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contractual obligation, it being understood, however, that CarsDirect shall act
in good faith to carry out the intent of this Section.
6. After the exclusivity period, CarsDirect will be free to refer any
financial transactions to other lenders of its choosing, with the exception of
members of Bank One's correspondent network. It is understood, however, that
Bank One will not collaborate in the implementation of and training for
competitors' products and will seek to protect its intellectual property and
trade secrets from competitors. While Bank One will have developed origination
processes for CarsDirect and will have trained CarsDirect's originators in a way
that will significantly advance CarDirect's ability to form another lending
consortium, the business relationship with lenders other than Bank One and its
correspondents will be solely between CarsDirect and those other lenders, and
will not involve Bank One unless specific contractual agreements are reached
with Bank One that would enable such involvement.
7. The parties will work urgently to devise a way to offer end-of-term
lease vehicles through CarsDirect, provided that such efforts do not conflict
with Bank One's obligations to other persons with whom it has contracted to
provide such vehicles and/or co-develop used car sales businesses, and provided
that we agree upon a basis for fairly compensating Bank One for all of the
intellectual capital it has developed in the asset remarketing business which
would be made available to CarsDirect in the course of developing this
capability.
8. Neither CarsDirect nor Bank One may terminate this Term Sheet prior to
September 15, 2000. On or after September 15, 2000, either CarsDirect or Bank
One may terminate this Term Sheet provided that (i) the terminating party has
given 30 days prior written notice of such termination to the other party and
(ii) Sections 1(c) and 5 of this Term Sheet shall survive any such termination
for the duration of the periods specified in said sections.
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