Exhibit 10(v)
AGREEMENT
AGREEMENT, dated as of the 21st day of November, 2001, among Warrantech
Corporation ("Warrantech Corp."), WCPS of Florida, Inc. ("WCPS Florida"),
Warrantech Consumer Product Services, Inc. ("WCPS Consumer"), Warrantech Help
Desk, Inc. ("Help"), Warrantech Home Assurance Company ("Assurance"), Warrantech
Home Service Company ("Service"), Warrantech Automotive of Florida, Inc.
("Automotive Florida"), Vemeco, Inc. ("Vemeco") , Warrantech Automotive, Inc.
("Automotive", together with Warrantech Corp., WCPS Florida, WCPS Consumer,
Help, Assurance, Service, Automotive Florida and Vemeco, collectively, they are
"Warrantech" or the "Warrantech Entities", and each is individually, a
"Warrantech Entity"), and ▇▇▇▇▇▇ Financial Solutions, LLC ("▇▇▇▇▇▇").
WHEREAS, ▇▇▇▇▇▇ and the applicable Warrantech Entities have existing
business relationships; and
WHEREAS, due to the Reliance bankruptcy, ▇▇▇▇▇▇ and Warrantech have
negotiated this Agreement to assist each of them in satisfying certain of their
existing and future obligations and other claims which were to be satisfied by
Reliance; and
WHEREAS, each Warrantech Entity has agreed to sell, transfer and assign
certain debts, liabilities and obligations to ▇▇▇▇▇▇, ▇▇▇▇▇▇ has agreed to
acquire and assume all such debts, liabilities and obligations in consideration
for certain financial benefits in addition to the benefits to which ▇▇▇▇▇▇ is
presently entitled, and the parties have made certain other agreements, all on
the terms and conditions hereinafter set forth; and
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions. Capitalized terms and phrases used in this Agreement
without definition shall have the respective meanings set forth on Schedule 1.
2. Assumption of Debts, Liabilities and Obligations.
2.1 Each Warrantech Entity hereby sells, transfers and assigns to
▇▇▇▇▇▇ all of such Warrantech Entity's now or hereafter existing debts,
liabilities and obligations identified on Schedule 2, whether fixed, contingent,
joint, several, combined or otherwise, and ▇▇▇▇▇▇ hereby acquires and assumes
and agrees to pay and perform in full and in a timely manner all of such debts,
liabilities and obligations (all such debts, liabilities and obligations for the
Warrantech Entities are collectively, the "Assumed Liabilities"). To the maximum
extent permitted by applicable law, ▇▇▇▇▇▇ hereby releases each Warrantech
Entity and each of their respective Affiliates and Associates and all successors
and assigns of any of the foregoing (each of the Warrantech Entities, each of
their respective Affiliates and Associates and all successors and assigns of any
of the foregoing, the "Exculpated Persons"), from all of the Assumed
Liabilities, and ▇▇▇▇▇▇ hereby agrees, to the maximum extent permitted by
applicable law, that each Warrantech Entity and each other Exculpated Person
shall have no debt, liability or obligation of any kind, whether fixed,
contingent, joint, several, combined or otherwise, in respect of or related
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to any Assumed Liability. ▇▇▇▇▇▇ hereby agrees to indemnify, defend and hold
each Warrantech Entity and each of the other Exculpated Persons harmless from
any and all liabilities, damages, losses, costs and expenses, including, without
limitation, attorneys' fees and expenses, included within or in any way relating
to or arising out of the Assumed Liabilities.
2.2 Notwithstanding anything in Section 2.1, ▇▇▇▇▇▇ shall in no
event be required to pay Assumed Liabilities in excess of $16,000,000 in the
aggregate.
2.3 The terms of this Section 2 shall survive forever.
3. Additional Fee Agreement. The Subject Agents have agreed to pay to
Great American into the Great American Fund the fees summarized on Schedule 3,
subject to the terms and conditions of this Section 3 and Schedule 3. Great
American has agreed to pay over such fees to ▇▇▇▇▇▇ (the "Additional Fees"). As
security for, inter alia, all obligations under the Notes (as hereinafter
defined), until all of ▇▇▇▇▇▇'▇ existing or future obligations of any kind to
any Warrantech Entity under the Notes (as hereinafter defined), this Agreement
or otherwise and all Assumed Liabilities have been indefeasibly satisfied in
full, and, even after said satisfaction, at all times that there are any dollar
amounts in the Account, absent Warrantech's prior written consent, ▇▇▇▇▇▇ hereby
agrees that all Additional Fees shall be paid exclusively into either bank
account included within the definition of Account. As security for, inter alia,
all obligations under the Notes (as hereinafter defined), until all of ▇▇▇▇▇▇'▇
existing or future obligations of any kind to any Warrantech Entity under the
Notes, this Agreement or otherwise and all Assumed Liabilities have been
indefeasibly satisfied in full, and, even after said satisfaction, at all times
that there are any dollar amounts in the Account, absent Warrantech's prior
written consent, ▇▇▇▇▇▇ hereby agrees not to change or attempt to change said
payment flow. ▇▇▇▇▇▇ hereby agrees that regardless of the source of causation or
any other fact, event, occurrence or circumstance, no Warrantech Entity or any
Exculpated Person shall under any circumstances have any liability or obligation
of any kind in respect of or relating to the Additional Fees, including, without
limitation, any change, reduction, nonpayment, redirection, cessation or
termination of any such Additional Fees, and ▇▇▇▇▇▇ also hereby agrees that any
such change, reduction, nonpayment, redirection, cessation or termination may
occur at any time and may be caused by any person or entity.
4. ▇▇▇▇▇▇ Loans. On the terms and conditions specified in this Section 4
and on Schedule 4, any Warrantech Entity may, in its sole and absolute
discretion, but shall not be obligated to, make loans to ▇▇▇▇▇▇ in accordance
with Schedule 4 (the "▇▇▇▇▇▇ Loans") in such amounts as shall be determined by
such Warrantech Entity from time to time in its sole and absolute discretion.
Notwithstanding anything in this Agreement, no Warrantech Entity shall have any
obligation to make any ▇▇▇▇▇▇ Loan and this shall not be modified by any
dealing, any course or pattern of conduct between the parties or any other
circumstances or events except a written amendment to this Agreement which
specifically amends this sentence. ▇▇▇▇▇▇ hereby agrees to repay the ▇▇▇▇▇▇
Loans, together with interest accrued thereon and costs of collection and
enforcement in connection therewith, in accordance with the applicable Secured
Promissory Notes in favor of each Warrantech Entity, a form of which is attached
hereto as Exhibit A, as amended, restated, supplemented or modified from time to
time (all of such Promissory Notes, collectively, the "Notes").
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5. Use of Proceeds; Deposit. Unless otherwise consented to in writing by
Warrantech, the proceeds of all ▇▇▇▇▇▇ Loans and the Additional Fees shall be
deposited exclusively into either bank account included within the definition of
the Account (as determined by Warrantech). Both bank accounts constituting the
Account and the funds therein shall be used, administered and withdrawn
exclusively in accordance with Schedule 5. Both bank accounts constituting the
Account and all assets in either bank account constituting the Account and all
other existing and future assets and properties of ▇▇▇▇▇▇ of any and every kind,
except ▇▇▇▇▇▇'▇ equity investment in Stamford Insurance Company Ltd. which
▇▇▇▇▇▇ presently owns (the "Excluded Stock"), shall be subject to the first
priority perfected security interest of Warrantech Corporation, as agent for the
ratable benefit of the Warrantech Entities, which security interest shall
secure, inter alia, all existing and future obligations of any kind of ▇▇▇▇▇▇ to
any Warrantech Entity. The above security interest shall be created by a
Security Agreement between ▇▇▇▇▇▇ and Warrantech Corporation, as agent for the
ratable benefit of the Warrantech Entities, as amended, restated, supplemented
or modified from time to time (the "Security Agreement"; together with this
Agreement, as amended, restated, supplemented or modified from time to time, the
Notes, documentation relating to the Accounts and any other documents now or
hereafter executed by or on behalf of ▇▇▇▇▇▇ or any of its members or officers
in connection with any of the foregoing, the "Relevant Documents" or "Relevant
Agreements").
6. Compliance with Relevant Documents and Schedules. ▇▇▇▇▇▇ hereby agrees
to comply with all of the provisions of each Relevant Agreement and all Exhibits
and Schedules to this Agreement.
7. Representations and Warranties by ▇▇▇▇▇▇. In order to induce Warrantech
to enter into this Agreement, ▇▇▇▇▇▇ hereby represents and warrants to each of
the Warrantech Entities as follows:
7.1 ▇▇▇▇▇▇ is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
the limited liability company and other power and authority to carry on its
business as now being conducted and to own and operate the properties and assets
now owned and being operated by it. ▇▇▇▇▇▇ has delivered to Warrantech on this
date a complete and correct certified copy of its certificate of formation as
amended and in effect on the date hereof, together with certified copies of
member resolutions satisfactory to Warrantech authorizing the execution and
delivery of this Agreement, all Relevant Documents and the transactions
contemplated hereby and thereby. ▇▇▇▇▇▇ is duly qualified or licensed to do
business and is in good standing as a limited liability company in all
jurisdictions required by the conduct of its business. ▇▇▇▇▇▇'▇ sole member is
▇▇▇▇▇ ▇▇▇▇▇ and she has duly authorized ▇▇▇▇▇▇ ▇▇▇▇▇▇ as President of ▇▇▇▇▇▇ to
execute any document on behalf of ▇▇▇▇▇▇ and bind ▇▇▇▇▇▇. ▇▇▇▇▇▇ has no manager
and is managed exclusively by its member, subject to any delegation of that
authority to ▇▇▇▇▇▇ ▇▇▇▇▇▇ as President of ▇▇▇▇▇▇.
7.2 ▇▇▇▇▇▇ has the power to enter into this Agreement and each
Relevant Agreement and to carry out its obligations under this Agreement and
each Relevant Agreement. The execution, delivery and performance of this
Agreement and each Relevant Agreement and the consummation of the transactions
contemplated by this Agreement or any Relevant Agreement have been duly
authorized by the sole member of ▇▇▇▇▇▇ and no other limited liability company
or other proceeding on the part of ▇▇▇▇▇▇ is necessary to authorize the
execution and
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delivery of this Agreement or any Relevant Agreement or the performance of any
of the transactions contemplated by this Agreement or any Relevant Agreement.
Each of this Agreement and each Relevant Agreement has been duly executed and
delivered on behalf of ▇▇▇▇▇▇ and is the legal, valid and binding obligation of
▇▇▇▇▇▇ enforceable against ▇▇▇▇▇▇ in accordance with its terms.
7.3 Neither the execution, delivery or performance of this Agreement
nor any Relevant Agreement, nor consummation of any of the transactions provided
for in this Agreement or any Relevant Agreement, (a) violates or conflicts with
or will violate or conflict with the certificate of formation or any resolutions
or any document of or relating to ▇▇▇▇▇▇, (b) results or will result in any
breach of or default or violation under any provision of any contract,
agreement, instrument, document or arrangement of any kind to which ▇▇▇▇▇▇ is a
party or by which ▇▇▇▇▇▇ is bound or to which any property or asset of ▇▇▇▇▇▇ is
subject, (c) is prohibited by or requires ▇▇▇▇▇▇ to obtain or make any consent,
authorization, approval, registration or filing under any contract, agreement,
instrument, document or arrangement or under any statute, law, ordinance,
regulation, rule, judgment, decree or order of any court or governmental agency,
board, bureau, body, department or authority, or of any other person or entity,
(d) causes or will cause or gives or will give any creditor the power to cause
any acceleration or maturity or requires or will require prepayment of any note,
instrument or other obligation to which ▇▇▇▇▇▇ is a party or by which ▇▇▇▇▇▇ is
bound or with respect to which ▇▇▇▇▇▇ is an obligor or guarantor or (e) results
or will result in the creation or imposition of any lien, claim, charge,
restriction, equity or encumbrance of any kind whatsoever upon or give to any
other person or entity any interest or right (including any right of termination
or cancellation) in or with respect to any of the properties, assets, business,
agreements or contracts of ▇▇▇▇▇▇.
7.4 ▇▇▇▇▇▇ is not obligated with respect to any indebtedness, lease
financing, guarantee or any obligation similar to any of the foregoing except in
favor of the Warrantech Entities, as contemplated by this Agreement, or
unsecured trade debt payable in the ordinary course of business.
7.5 ▇▇▇▇▇▇'▇ assets and properties, including, without limitation,
all those used in its businesses, are subject to no mortgage, pledge,
conditional sales contract, lien, security interest, right of possession in
favor of any third party, claim or other encumbrance (any of the foregoing, a
"Lien"), except any Lien for current taxes not yet due and payable and the Lien
being created by the Security Agreement in favor of Warrantech Corporation, as
agent for the ratable benefit of the Warrantech Entities.
7.6 Except as set forth in Schedule 7.6, there are no actions,
suits, proceedings or investigations, either at law or in equity, or before any
commission or other administrative authority in any United States or foreign
jurisdiction, or any arbitration, of any kind now pending or threatened or
proposed in any manner, or any circumstances which should or could reasonably
form the basis of any such action, suit or proceeding or investigation,
involving or relating to ▇▇▇▇▇▇ or any of the properties or assets of ▇▇▇▇▇▇.
7.7 Warrantech Corporation, as agent for the ratable benefit of the
Warrantech Entities, has a first priority perfected security interest in each
bank account constituting the Account, and all existing and future accounts (as
defined in Article 9 of the New York Uniform
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Commercial Code), general intangibles (as defined in Article 9 of the New York
Uniform Commercial Code) and all other existing and future assets and properties
of any and every kind (except the Excluded Investment), subject to no Liens of
any kind.
8. Representations and Warranties by Warrantech. Each Warrantech Entity
hereby represents and warrants to ▇▇▇▇▇▇ as follows:
8.1 Each Warrantech Entity is a corporation duly organized, validly
existing and in good standing under the laws of its state of incorporation.
8.2 Each Warrantech Entity has duly authorized the execution and
delivery of this Agreement and each Relevant Agreement and the consummation of
the transactions contemplated hereby and thereby. Neither the execution,
delivery or performance of this Agreement or any Relevant Agreement by any
Warrantech Entity nor the consummation of any of the transactions provided for
in this Agreement or any Relevant Agreement will violate or conflict with any
provision of the Certificate of Incorporation or By-Laws of any Warrantech
Entity.
9. Covenants of ▇▇▇▇▇▇. ▇▇▇▇▇▇ covenants and agrees with Warrantech, until
all of ▇▇▇▇▇▇'▇ obligations under this Agreement and all Relevant Documents and
all Assumed Liabilities have been indefeasibly satisfied in full, and, even
after said satisfaction, at all times that there are any dollar amounts in the
Account, as follows:
9.1 Warrantech Corporation, as agent for the ratable benefit of the
Warrantech Entities, has and shall at all times have a first priority perfected
security interest in each bank account constituting the Account and all assets
in each bank account constituting the Account and all existing and future
accounts (as defined in Article 9 of the New York Uniform Commercial Code),
general intangibles (as defined in Article 9 of the New York Uniform Commercial
Code) and all other existing and future assets and properties of any and every
kind (except the Excluded Investment), and there is and shall at all times be no
other Lien of any kind or nature whatsoever on either bank account constituting
the Account or any assets in either bank account constituting the Account or any
existing or future accounts (as defined in Article 9 of the New York Uniform
Commercial Code), general intangibles (as defined in Article 9 of the New York
Uniform Commercial Code) or any other existing or future assets or properties of
▇▇▇▇▇▇ of any kind.
9.2 ▇▇▇▇▇▇ shall not, without the prior written consent of
Warrantech, (a) sell, transfer, dispose of or disburse any of its existing or
future interest in either bank account constituting the Account or any existing
or future assets in either bank account constituting the Account or any of its
other existing or future assets, (b) consolidate, merge or amalgamate with any
other person or entity, liquidate, wind-up or dissolve itself (or suffer any
liquidation or dissolution), or enter into any transaction outside the ordinary
course of business, or (c) incur any or become obligated with respect to any
indebtedness, lease financing, guarantee or any obligation similar to any of the
foregoing, except in favor of Warrantech or unsecured trade debt incurred in the
ordinary course of business.
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9.3 ▇▇▇▇▇▇ shall deliver to Warrantech all financial statements and
other financial information relating to its business as shall be reasonably
requested by any Warrantech Entity from time to time.
10. Effect of Termination of Loan and Fee Obligation. Any Warrantech
Entity's ceasing, terminating or failing to make ▇▇▇▇▇▇ Loans under Section 4 or
Schedule 4, as indicated by a notice in writing from Warrantech to ▇▇▇▇▇▇,
and/or any failure of any Subject Agent or Great American to pay any Additional
Fee, or any cessation in payment of or any delay in payment of or any change,
reduction, nonpayment or termination of any Additional Fee, shall not impair or
affect in any manner ▇▇▇▇▇▇'▇ obligations under this Agreement and all Relevant
Documents which shall survive any such termination and shall continue to be and
shall at all times be absolute and unconditional in all respects and, to the
maximum extent permitted by applicable law, all such obligations shall not be
subject to any defense, set-off, offset, counterclaim, crossclaim or claim of
any nature, all of which are hereby absolutely, unconditionally and irrevocably
forever waived.
11. Miscellaneous.
11.1 From time to time, each party shall execute all documentation
reasonably required by the others to more fully reflect the transactions
described in this Agreement.
11.2 Each of the parties shall pay all of its own legal and
accounting fees and other expenses incurred in the preparation of this
Agreement.
11.3 The parties to this Agreement are not partners or joint
venturers and this Agreement does not constitute a partnership or a joint
venture.
11.4 The parties hereto may only by a writing signed by the party to
be charged extend the time for or waive the performance of any of the
obligations of the parties to this Agreement.
11.5 Except as otherwise specified in this Agreement, all notices,
requests or other communications hereunder shall be in writing and shall be
deemed to have been duly given if delivered or within one business day of
dispatch if sent by reputable overnight courier or telecopier addressed as
follows: if to any Warrantech Entity, to Warrantech Corporation, ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇ San ▇▇▇▇▇▇▇, Telecopier No.: (817)
785-1368; if to ▇▇▇▇▇▇, to ▇▇▇▇▇▇ Financial Solutions, LLC, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇ ▇▇▇▇▇▇,
Secretary/Treasurer, Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇; or to such other address as
may have been furnished in writing to the party giving the notice by the party
to whom notice is to be given.
11.6 This Agreement (including the Schedules to this Agreement,
which constitute a part of this Agreement), together with the Relevant
Agreements, embodies the entire agreement among the parties relating to the
subject matter of this Agreement and there have been and there are no
agreements, representations or warranties, oral or
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written among the parties relating to the subject matter of this Agreement other
than those set forth or provided for in this Agreement or the other Relevant
Agreements. This Agreement supersedes all prior oral or written agreements or
discussions among the parties relating to the subject matter of this Agreement,
but not the Obligor Agreement effective as of April 1, 2000 among ▇▇▇▇▇▇, WCPS
Consumer, Service and Automotive which remains in full force and effect. This
Agreement may not be modified or changed, in whole or in part, except by a
document signed by each of the parties.
11.7 This Agreement shall bind the parties hereto and their
respective successors and assigns and inure to the benefit of the parties hereto
and their respective successors and permitted assigns and, with respect to
Section 2 and 3, it shall inure to the benefit of the Exculpated Persons, but
this Agreement shall not be assignable by ▇▇▇▇▇▇ without the prior written
consent of the other parties. Any Warrantech Entity may assign this Agreement
and/or its rights or obligations under this Agreement in connection with a sale
of all or substantially all of its assets or any transaction outside the
ordinary course of its business or any assignment of any Note. Nothing contained
in this Agreement is intended to confer upon any person, other than the parties
to this Agreement and their respective successors and permitted assigns and the
other applicable persons and entities identified above, any rights or remedies
under or by reason of this Agreement.
11.8 This Agreement shall be governed by and construed in accordance
with the laws of the State of New York without giving effect to its conflict of
law principles, including, but not limited to, Section 202 of the New York Civil
Practice Law and Rules, but giving full effect to Section 5-1401 of the New York
General Obligations Law.
11.9 The headings of the Sections, paragraphs and subparagraphs of
this Agreement are solely for convenience and reference and shall not limit or
otherwise affect the meaning of any of the terms or provisions of this
Agreement. The references herein to Sections, Exhibits and Schedules, unless
otherwise indicated, are references to sections of and exhibits and schedules to
this Agreement.
11.10 Wherever from the context it appears appropriate, each term
stated in either the singular or plural shall include the singular and plural,
and pronouns stated in either the masculine, the feminine and the neuter. The
word "will", as used in this Agreement, shall be mandatory and have the same
meaning as the word "shall".
11.11 The failure of any party to seek redress for violation, or to
insist on strict performance, of any covenant or condition of this Agreement
shall not prevent a subsequent act which would have constituted a violation from
having the effect of an original violation.
11.12 The waiver of any breach of any provision of this Agreement by
any party at any time shall not be effective unless in writing, and no such
waiver shall constitute the waiver of the same or another breach on a subsequent
occasion.
11.13 Each of the parties hereto hereby consents to the exclusive
jurisdiction of any state or federal court located within the State of New York,
Texas, Connecticut, Delaware, California and/or Florida, as selected by
Warrantech. Each of the parties hereto waives any objection that it may have to
the conduct of any action or proceeding in any such court based on improper
venue or forum non conveniens, waives personal service of any and all process
upon it,
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and consents that all service of process may be made by mail or courier service
directed to it at the notice address set forth in this Agreement and that
service so made shall be deemed to be completed upon the earlier of actual
receipt or ten (10) days after the same shall have been posted. Nothing
contained in this Section shall affect the right of any party hereto to enforce
any judgment obtained in any court in any other court or serve legal process in
any other manner permitted by law.
11.14 EACH OF THE PARTIES HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AGREEMENT AND ANY SUCH TRIAL SHALL BE CONDUCTED SOLELY BY A JUDGE.
EACH OF THE PARTIES CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE OTHERS WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS.
11.15 EACH PARTY AGREES AND ACKNOWLEDGES THAT IT HAS BEEN
REPRESENTED BY INDEPENDENT COUNSEL IN CONNECTION WITH THIS AGREEMENT OR BEEN
ADVISED THAT IT SHOULD BE REPRESENTED BY INDEPENDENT COUNSEL IN CONNECTION WITH
THIS AGREEMENT. IF ANY PARTY DECIDED NOT TO BE REPRESENTED BY INDEPENDENT
COUNSEL IN CONNECTION WITH THIS AGREEMENT, IT IRREVOCABLY WAIVES ANY AND ALL
DEFENSES OR RIGHTS ARISING OUT OF OR RELATED TO SAID DECISION. ▇▇▇▇▇▇ HEREBY
AGREES THAT IT FULLY UNDERSTANDS THE ASSUMED LIABILITIES THE ADDITIONAL FEES,
THE ▇▇▇▇▇▇ LOANS AND THE CIRCUMSTANCES UNDER WHICH THE ADDITIONAL FEES AND/OR
▇▇▇▇▇▇ LOANS MAY OR MAY NOT BE PAID OR LOANED AND ITS OBLIGATIONS UNDER THIS
AGREEMENT AND THE RELEVANT DOCUMENTS.
11.16 Each provision of this Agreement shall be considered separable
and if for any reason any provision or provisions of this Agreement, or the
application of such provision to any party or circumstance, shall be held
invalid or unenforceable in any jurisdiction, such provision or provisions
shall, as to such jurisdiction, be ineffective to the extent of such invalidity
or unenforceability without invalidating the remaining provisions hereof, or the
application of the affected provision to parties or circumstances other than
those to which it was held invalid or unenforceable, and any such invalidity or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11.17 This Agreement and each of the Relevant Documents shall be
construed without regard to the principal that a contract should be construed
against the draftsperson, and all parties to this Agreement or the Relevant
Documents, as applicable, shall be deemed equal draftspersons of this Agreement
or the Relevant Documents, as applicable.
11.18 This Agreement may be executed in any number of counterparts,
each of which shall be an original, but which together constitute one and the
same instrument.
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11.19 No party to this Agreement has assumed or shall be deemed to
have assumed any of the Dealer Obligor Liabilities as a result of this Agreement
or using amounts in the Account to pay the Dealer Obligor Liabilities. No
Warrantech Entity has assumed or shall be deemed to have assumed any ▇▇▇▇▇▇
Obligor Liabilities as a result of this Agreement or using amounts in the
Account to pay ▇▇▇▇▇▇ Obligor Liabilities. Notwithstanding any of the foregoing,
(a) as between the parties to this Agreement, amounts in the Account shall be
used to pay any, certain or all of the Assumed Liabilities, Dealer Obligor
Liabilities and/or ▇▇▇▇▇▇ Obligor Liabilities in the order in which the related
claims are approved by the relevant administrator in connection with the
processing of such claims, (b) as between the parties to this Agreement only,
▇▇▇▇▇▇ hereby agrees that Warrantech may and hereby authorizes Warrantech,
without further consideration, to utilize monies in the Account to pay the
Assumed Liabilities, Dealer Obligor Liabilities and/or ▇▇▇▇▇▇ Obligor
Liabilities as contemplated by 11.19(a) above, and (c) ▇▇▇▇▇▇ hereby waives all
defenses with respect thereto and agrees not to challenge the use of any such
monies in the Account in any such manner. The exculpatory language contained in
the first or second sentence of this Section 11.19 shall not be affected or
modified by any payment of the Dealer Obligor Liabilities and/or ▇▇▇▇▇▇ Obligor
Liabilities from the Account or any dealing, any course or pattern of conduct or
any other events or circumstances except a written amendment to this Agreement
which specifically amends the relevant portions of this Section 11.19.
11.20 All representations and warranties and covenants and
agreements in this Agreement and each Relevant Document can be relied upon and
enforced without regard to the knowledge of or any investigation made by the
parties' receiving or benefiting from such representations, warranties,
covenants and agreements.
11.21 ▇▇▇▇▇▇ may not terminate this Agreement or any Relevant
Documents at any time or under any circumstances. Warrantech may terminate this
Agreement and any Relevant Documents at any time upon ninety (90) days' prior
written notice to ▇▇▇▇▇▇.
(Signature pages follow.)
9
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first above written.
WARRANTECH CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President/ Chief Financial Officer
WCPS OF FLORIDA, INC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President/ Chief Financial Officer
WARRANTECH CONSUMER PRODUCT SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President/ Chief Financial Officer
WARRANTECH HELP DESK, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President/ Chief Financial Officer
10
WARRANTECH HOME ASSURANCE COMPANY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President/ Chief Financial Officer
WARRANTECH HOME SERVICE COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President/ Chief Financial Officer
WARRANTECH AUTOMOTIVE OF FLORIDA, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President/ Chief Financial Officer
WARRANTECH AUTOMOTIVE, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President/ Chief Financial Officer
VEMECO, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President/ Chief Financial Officer
11
▇▇▇▇▇▇ FINANCIAL SOLUTIONS, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
12
EXHIBIT A
Form of Note
See attached.
13
SCHEDULE 1
Definitions
"Account" shall mean Bank One account # 1596023521 in the name of ▇▇▇▇▇▇
Financial Solutions, LLC ITF Warrantech Automotive Inc. and Bank One account #
1596060218 in the name of ▇▇▇▇▇▇ Financial Solutions, LLC ITF Warrantech
Consumer Products Services, Inc. and any successor bank account(s) as required
by Warrantech.
"Account Surplus" shall mean the difference between the assets in the Account
and what Warrantech believes, in its sole and absolute discretion, is enough to
pay the Assumed Liabilities in the reasonably foreseeable future.
"ADP Dealers With Only Great American Business" shall mean dealers who
participate in the profit participation program with Great American and have
only sold service contracts insured by Great American.
"Affiliate(s)" shall have the meaning specified in Rule 405 as presently in
effect and as promulgated under the Securities Act of 1933, as amended through
this date.
"Associate(s)" shall have the meaning specified in Rule 405 as presently in
effect and as promulgated under the Securities Act of 1933, as amended through
this date.
"Bankruptcy Event" shall be deemed to have occurred with respect to any
applicable person or entity if (a) such person or entity (i) shall be dissolved,
(ii) shall apply for or consent to the appointment of, or the taking of
possession by, a receiver, custodian, trustee or liquidator of itself or himself
of all or a substantial part of its or his property, (iii) shall admit in
writing its or his inability, or be generally unable, to pay its or his debts as
such debts become due, (iv) shall make a general assignment for the benefit of
its or his creditors, (v) shall commence a voluntary case under Title 11 of the
United States Bankruptcy Code or any successor thereto (the "Bankruptcy Code"),
any state bankruptcy law or any law similar to any of the foregoing, (vi) shall
file a petition seeking to take advantage of any law relating to bankruptcy,
insolvency, reorganization, winding up, or composition or readjustment of debts,
(vii) shall fail to controvert in a timely and appropriate manner, or acquiesce
in writing to, any petition filed against any such person or entity in an
involuntary case under the Bankruptcy Code, any state bankruptcy law or any law
with a purpose or otherwise similar to any of the foregoing, or (viii) shall
take any action for the purpose of effecting any of the foregoing; or (b) if a
proceeding or case shall be commenced in any court of competent jurisdiction,
seeking the liquidation, reorganization, dissolution, winding-up, or the
composition or readjustment of debts of any such person or entity, or the
appointment of a trustee, receiver, custodian, liquidator or the like for any
such person or entity under any law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts, or a warrant
of attachment, execution or similar process shall be issued against property of
any such person or entity and such proceeding, case, warrant or process shall
continue undismissed, or any order, judgment or decree approving or ordering any
of the foregoing shall be entered and continue unstayed and in effect, for a
period of thirty (30) days or more days, or any order for relief against any
such person or entity shall be entered in an involuntary case under
14
the Bankruptcy Code, any state bankruptcy law or any law similar to any of the
foregoing. For clarification purposes, with respect to any applicable person or
entity, a Bankruptcy Event be deemed to have occurred if any of the events,
occurrences or circumstances in (a) or (b) above shall have occurred.
"▇▇▇▇▇▇ Bankruptcy Event" shall be deemed to have occurred if any event,
occurrence or circumstance which constitutes a Bankruptcy Event has occurred and
is applicable to ▇▇▇▇▇▇.
"▇▇▇▇▇▇ Obligor Liabilities" shall mean all debts, obligations and liabilities
of any kind, whether fixed, contingent, joint, several, combined or otherwise,
now or hereafter existing, regarding Contracts Sold as of November 21, 2001
(involving ▇▇▇▇▇▇ as the Obligor where any Warrantech Entity receives or
received administrative fees but no Warrantech Entity is an Obligor of such
Contract Sold) only if Reliance provided or had or has an obligation to provide
some insurance coverage in connection with any such debts, obligations or
liabilities. ▇▇▇▇▇▇ Obligor Liabilities include, without limitation, all
previous or existing unpaid claims and all future claims by customers under such
Contracts Sold.
"Contract(s) Sold" shall mean any vehicle or consumer product service contract
purchased by a consumer and administered by any Warrantech Entity or Entities.
"Core Business" shall mean Contracts Sold under any of the program types
identified on Schedule 1A.
"Dealer Obligor Liabilities" shall mean all debts, obligations and liabilities
of any kind, whether fixed, contingent, joint, several, combined or otherwise,
now or hereafter existing, regarding Contracts Sold as of November 21, 2001
(involving a Valued Dealer where any Warrantech Entity receives or received
administrative fees but no Warrantech Entity or ▇▇▇▇▇▇ is an Obligor of such
Contract Sold) only if Reliance provided or had or has an obligation to provide
some insurance coverage in connection with any such debts, obligations or
liabilities. Dealer Obligor Liabilities include, without limitation, all
previous or existing unpaid claims and all future claims by customers under such
Contracts Sold.
"Fee Default" shall have occurred if there is any failure to pay any Additional
Fee when due or if the Additional Fees are no longer payable or are reduced or
redirected.
"Great American" shall mean, as applicable, Great American Insurance Company,
GAI Warranty Company and GAI Warranty Company of Florida and their designated
Affiliates and subsidiaries.
"Great American Fund" shall mean the fund(s) or accounts maintained by Great
American into which the Additional Fees are to be initially deposited.
"Great American Termination Event" shall have occurred if Great American ceases
providing any financial accommodations to any Warrantech Entity, accelerates any
obligations from any Warrantech Entity to Great American or asserts any
Warrantech Entity is in breach to Great American under any document.
15
"Non Core Business" shall mean Contracts Sold under any of the program types
identified on Schedule 1B.
"Obligor" shall mean the entity which is the seller of the applicable vehicle or
consumer product service contract.
"Reliance" shall mean Reliance Insurance Company, Reliance Warranty Company, any
of their affiliates or subsidiaries or any representatives, estates, trustees,
successors or assigns of any of the foregoing in this definition.
"Subject Agent(s)" shall mean the agents who receive commissions on Contracts
Sold which are more specifically identified on Schedule 3 of this Agreement.
"Valued Dealer" shall mean the Obligor of any Contract Sold in effect on
November 21, 2001 (except any Warrantech Entity or ▇▇▇▇▇▇) only if Reliance
provided or had or has an obligation to provide some insurance coverage in
connection therewith and if any Warrantech Entity was actively doing business
with such Obligor on November 21, 2001. If there is an ambiguity as to whether
an Obligor is a Valued Dealer, Warrantech's judgment shall prevail in resolving
any such ambiguity.
"Warrantech Bankruptcy Event" shall be deemed to have occurred if any event,
occurrence or circumstance which constitutes a Bankruptcy Event has occurred and
is applicable to any Warrantech Entity.
16
SCHEDULE 1A
Core Business Program Types
RepairMaster Car
RepairMaster Truck
RepairMaster Combo/Complete
FL RM Car
FL RM Truck
FL RM Combo/Complete
Guam/Saipan RM Car
Guam/Saipan RM Truck
Guam/Saipan Combo/Complete
17
SCHEDULE 1B
Non-Core Business Program Types
▇▇▇▇▇ ▇▇▇▇▇ Re Car/Van
▇▇▇▇▇ ▇▇▇▇▇ Re Truck
FL Indian MC
FL Real Value RV
FL Real Value TT/PU
FL RepairGuard 30 Day
FL RM ADP Car
FL RM ADP Truck
MCare30 Day 2000
MCareNet 30 Day 2000
Rep Guard ADP 30 Day
Repair Guard 30 Day
RM ADP Complete
RM Car-Canada Spec
RM Mobility
RM Truck Canadian Sp
VPP 2000
VPP 2000 30 Day
FG GM/OLDS EXT Prog
First Guard 00 TelCr
First Guard 00 TelTr
First Guard 2000 Car
First Guard 2000 Tr
First Guard ADP Car
First Guard ADP Tr
Peak 00 30 ADP TelCr
Peak 00 30 ADP TelTr
Peak ▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇ TelTru
Peak 2000 Car
Peak 2000 Truck
WSS 2000
Indian Motorcycles
Qu Care 00 30 Day Te
Qu Prot 00 30 Dau In
Viking Warranty Tel
18
SCHEDULE 2
Assumed Liabilities
All debts, obligations and liabilities of any kind of any Warrantech
Entity, whether fixed, contingent, joint, several, combined or otherwise, now or
hereafter existing, regarding Contracts Sold (where such Warrantech Entity is an
Obligor of such Contract Sold) only if Reliance provided or had or has an
obligation to provide some insurance coverage in connection with any such debts,
obligations or liabilities. Assumed Liabilities include, without limitation, all
previous or existing unpaid claims and all future claims by customers under any
such Contracts Sold.
19
SCHEDULE 3
Fees
(a) For the period of time specified in Section (b) of this Schedule 3, the
applicable Subject Agents (i.e., solely the Subject Agents with fee
payment obligations to Great American regarding the relevant Contract Sold
but without duplication among such Subject Agents) have agreed to
severally pay Great American into the Great American Fund an additional
administrative fee (the "Additional Fee") of $30 on Contracts Sold insured
by Great American for both Non-Core Business and Core Business with the
exception of ADP Dealers With Only Great American Business. Great American
has agreed that the Additional Fee shall be paid over by Great American to
▇▇▇▇▇▇.
(b) The Additional Fee can be changed, not paid, terminated, reduced or
redirected at any time.
20
SCHEDULE 4
▇▇▇▇▇▇ Loans
(a) As of this date, Warrantech Corp. has made a $1,000,000 loan to ▇▇▇▇▇▇.
Any Warrantech Entity may, in its sole and absolute discretion, although
it is not required to, for the period of time specified in and otherwise
subject to section (b) of this Schedule 4, make loans to ▇▇▇▇▇▇ in amounts
to be determined by such Warrantech Entity in its sole and absolute
discretion. If ▇▇▇▇▇▇ wants a Warrantech Entity to make loans to it, it
shall make such request in writing specifying the date and amount of the
requested loan and other information required by Warrantech. For
clarification purposes, without such request, Warrantech may, in its sole
and absolute discretion, make loans to ▇▇▇▇▇▇ in amounts to be determined
by such Warrantech Entity if such loans are for the purpose of satisfying
the Assumed Liabilities, Dealer Obligor Liabilities and/or ▇▇▇▇▇▇ Obligor
Liabilities. The proceeds of any loans made by any Warrantech Entity in
its sole and absolute discretion shall be disbursed only into one of the
bank accounts which constitutes an Account (as specified by Warrantech) no
later than three (3) business days after, if applicable, any such request,
or otherwise at such time as shall be determined by Warrantech. Warrantech
shall maintain a record of all loans made by it to ▇▇▇▇▇▇ and its records
shall be conclusive and binding as to the date and amount of such loans;
provided, however, the failure to maintain such records shall not impair
or otherwise affect ▇▇▇▇▇▇'▇ obligations regarding such loans.
(b) Without limiting the discretion of the Warrantech Entities under (a) above
or implying or creating any obligation of any Warrantech Entity to make
any loan, the Warrantech Entities, unless they determine otherwise, shall
not make any loans under (a) on or after the earliest to occur of any of
the following:
(x) ▇▇▇▇▇▇'▇ breach of any representation, warranty, covenant,
indemnification or any other provision of this Agreement or any
Relevant Agreement;
(y) any ▇▇▇▇▇▇ Bankruptcy Event or Warrantech Bankruptcy Event;
(z) the date which is 30 days after Warrantech provides ▇▇▇▇▇▇ with
written notice of Warrantech's termination of any loans under
Section 4 of this Agreement and this Schedule 4; or
(xx) any Great American Termination Event; or
(yy) any Fee Default.
21
SCHEDULE 5
Description of Account; Use of Proceeds; Administration of Account
Unless otherwise consented to in writing by Warrantech, the proceeds of
all ▇▇▇▇▇▇ Loans and Additional Fees shall be deposited into a bank account
constituting the Account (as specified by Warrantech), and no monies shall be
disbursed from the Account except in accordance with the written instructions of
Warrantech or one of its duly authorized officers. All monies in the Account
shall be invested only as determined by Warrantech and shall only be utilized to
pay the Assumed Liabilities, and all of ▇▇▇▇▇▇'▇ obligations under this
Agreement and all Relevant Documents and, to the extent approved by the relevant
administrator in connection with the processing of the related claims, Dealer
Obligor Liabilities and ▇▇▇▇▇▇ Obligor Liabilities. The Account will be closed
only with Warrantech's prior written consent. Amounts in the Account shall be
used to pay any, certain or all of the Assumed Liabilities, Dealer Obligor
Liabilities and/or ▇▇▇▇▇▇ Obligor Liabilities in the order in which the related
claims are approved in connection with the administration of such claims, and
▇▇▇▇▇▇ hereby agrees that Warrantech may and hereby authorizes Warrantech,
without further consideration, to utilize monies in the Account to pay the
Assumed Liabilities, Dealer Obligor Liabilities and/or ▇▇▇▇▇▇ Obligor
Liabilities in such manner and ▇▇▇▇▇▇ hereby waives all defenses with respect
thereto and agrees not to challenge the use of any such monies in the Account in
any such manner.
22
SCHEDULE 7.6
None
23