Exhibit 10(u)
OBLIGOR AGREEMENT
This OBLIGOR AGREEMENT (the "Agreement"), effective as of the 1st day of
April, 2000, is entered into by and among Xxxxxx Financial Solutions, LLC, a
Delaware limited liability corporation, with its principal offices located at
0000 Xxxxxxxxx Xxxxxxxxx, XX, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 ("Xxxxxx")
and Warrantech Automotive, Inc., a Connecticut corporation ("WAI"), Warrantech
Consumer Product Services, Inc., a Connecticut corporation ("WCPS"), and
Warrantech Home Service Company, a Connecticut corporation ("WHSC"), each of
which has its principal office located at 0000 X. Xxxxxxx Xxxxxxx, Xxxxxx, Xxxxx
00000 (WAI, WCPS and WHSC are hereinafter referred to, collectively, as
"Warrantech").
WITNESSETH:
WHEREAS, Warrantech is in the business of developing, marketing and
administering service contract programs that are sold through and/or on behalf
of its clients throughout the United States;
WHEREAS, certain governmental jurisdictions permit an independent third
party (i.e. an entity having no direct relationship with Warrantech, the
manufacturer or retailer of the item covered by the service contract, the
insurer underwriting the service contract and/or the owner of the service
contract) to act as the obligor under such service contracts;
WHEREAS, Warrantech desires to enter into a contractual arrangement with
such a third party pursuant to which said third party would act as obligor under
all service contracts sold in jurisdictions in which Warrantech determines that
it is permissible and desirable to do so; and
WHEREAS, Warrantech desires to enter into such an arrangement with Xxxxxx
and Xxxxxx desires to enter into such an arrangement with Warrantech, all on the
terms and conditions hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, and in consideration of the foregoing representations and
warranties and the terms and conditions set forth below, the parties hereto
covenant and agree as follows:
1. APPOINTMENT
Warrantech hereby appoints Xxxxxx to act as obligor under those designated
service contracts, extended warranties and similar service plans ("Service
Contracts"), sold by or on behalf of Warrantech's clients pursuant to a Service
Contract program (a "Program"), in those jurisdictions in which Warrantech has
determined that Xxxxxx may act as a third party obligor thereunder. Attached
hereto as Exhibit A is a list of all jurisdictions in which Xxxxxx is permitted
to act as a third party obligor as of the date of this Agreement. Exhibit
A shall be amended by Warrantech, in writing, as often as may be necessary to
maintain the accuracy of said exhibit. Xxxxxx shall incur no liability to
Warrantech for acting upon incorrect information contained in said exhibit if
Warrantech has not previously provided Xxxxxx with a corrected version of
Exhibit A.
2. XXXXXX AGREES
(a) That it shall have no authority to make, alter, modify, waive or
discharge any terms or conditions of any Service Contract or any performance
thereunder, nor to incur any liability on behalf of Warrantech nor make any
representations about any Program or the coverage provided by any Service
Contract not contained in materials provided by Warrantech or the Service
Contracts.
(b) To be in material compliance with all applicable laws, rules and
regulations and to possess all licenses required of a third party obligor in
those jurisdictions set forth from time to time in Exhibit A hereto; provided,
however, that Xxxxxx shall not be so obligated in those jurisdictions in which
compliance would be onerous or would subject Xxxxxx to substantially greater
economic risk than it is exposed to in other jurisdictions.
(c) To execute and deliver all such agreements, applications, certificates
and other documents as may be reasonably necessary to enable Xxxxxx to fulfill
its obligations as obligor under the Service Contracts and in accordance with
the terms and conditions of this Agreement.
3. WARRANTECH AGREES
(a) That all obligations of Xxxxxx under the Service Contracts shall be
insured pursuant to an insurance policy obtained by Warrantech and issued by an
insurance company rated not less than "Excellent" by A.M. Best. Warrantech shall
provide Xxxxxx with a copy of said insurance policy and all endorsement thereto.
(b) To provide Xxxxxx with certified copies of all (i) agreements,
including all amendments and other modifications thereto, pursuant to which
Service Contracts are being sold, and (ii) Service Contract forms that identify
Xxxxxx as the obligor.
(c) To be in material compliance with all applicable laws, rules and
regulations and to possess all licenses required of a service contract
administrator in those jurisdictions set forth from time to time in Exhibit A
hereto.
4. COMPENSATION
Warrantech agrees to pay Xxxxxx a fee (the "Obligor Fee") for each Service
Contract sold in which Xxxxxx is the named obligor. Xxxxxx and the applicable
Warrantech entity shall negotiate in good faith to develop an Obligor Fee
structure for each Program prior to the implementation thereof. The agreed upon
Obligor Fee structure for each Program shall be set forth in, and made a part
of, Exhibit B to this Agreement. Exhibit B shall be amended only with the mutual
agreement of Xxxxxx and the applicable Warrantech entity. On or before the 30th
day of each calendar month, Warrantech shall pay to Xxxxxx an
amount equal to the aggregate of all Obligor Fees earned by Xxxxxx for Service
Contracts sold during the immediately preceding month for which Warrantech has
received payment; provided, however, that Warrantech shall first be entitled to
offset against such payment the pro rata portion of any Obligor Fee previously
received by Xxxxxx for a Service Contract that has subsequently been canceled.
Receipt by Xxxxxx of the appropriate Obligor Fee shall constitute full and
complete consideration for Xxxxxx'x agreement to act as obligor under a given
Service Contract and shall obligate Xxxxxx to serve as obligor under said
Service Contract throughout the term thereof.
5. REPORTS
On or before the 25th day following the end of each calendar quarter,
Warrantech shall provide Xxxxxx with (i) a report setting forth, on a
Program-by-Program basis, a summary of all Service Contracts sold and canceled
during such quarter including, but not limited to, the pro rata portion of all
Obligor Fees that were offset against payments to Xxxxxx as a result of any such
cancellations, and (ii) such other records and/or reports as shall be mutually
agreed to by the parties. The form of such reports and the specific information
contained therein shall be reasonably agreed to by Xxxxxx and Warrantech.
6. INDEMNIFICATION
(a) Warrantech hereby agrees to indemnify and hold Xxxxxx and its
officers, agents, directors and employees (collectively referred to as the
"Indemnified Party") harmless from and against any and all claims, causes of
action, costs, expenses, losses, liabilities, damages, penalties and demands
whatsoever (collectively "Claims") together with reasonable counsel fees and
expenses, arising out of or related to (i) any act of negligence or willful
misconduct on the part of Warrantech, its agents, or employees, (ii) any Service
Contract (including, but not limited to, the failure of Warrantech to provide
insurance for Xxxxxx'x obligations as required hereunder) unless such Claim
relates primarily to Xxxxxx'x failure to perform its obligations under or in
connection with this Agreement, or (iii) any other failure on the part of
Warrantech, its agents, or employees, to perform its obligations under or in
connection with this Agreement. If any action or proceeding in connection with
any such matters is brought against the Indemnified Party, it shall promptly
notify Warrantech and furnish Warrantech with a copy of any papers served.
Warrantech shall defend any such action or proceeding, employing competent
counsel, selected by Warrantech with the approval of the Indemnified Party, but
the Indemnified Party shall have the right at any time, if it has reasonable
grounds to believe its interests are not being protected, at Warrantech 's
expense, to defend or join the defense of any such action or proceedings through
attorneys selected by the Indemnified Party and approved by Warrantech, which
approval shall not be unreasonably withheld. The provisions of this Section
shall survive the termination of this Agreement.
(b) Xxxxxx hereby agrees to indemnify and hold Warrantech and its
subsidiaries and affiliates and their officers, agents, contractors,
sub-contractors, directors and employees (collectively referred to as the
"Indemnified Party") harmless from and against any and all Claims, together with
reasonable counsel fees and expenses, arising out of (i) any act of negligence
or willful misconduct on the part of Xxxxxx, its agents, or employees, or (ii)
any failure on the part of Xxxxxx, its agents, or employees, to perform its
obligations under or in connection with this Agreement including, but not
limited to, those obligations
specifically set forth in Section 2 above. If any action or proceeding in
connection with any such matters is brought against the Indemnified Party, it
shall promptly notify Xxxxxx and furnish Xxxxxx with a copy of any papers
served. Xxxxxx shall defend any such action or proceeding, employing competent
counsel, selected by Xxxxxx with the approval of the Indemnified Party, but the
Indemnified Party shall have the right at any time, if it has reasonable grounds
to believe its interests are not being protected, at Xxxxxx'x expense, to defend
or join the defense of any such action or proceedings through attorneys selected
by the Indemnified Party and approved by Xxxxxx, which approval shall not be
unreasonably withheld. The provisions of this Section shall survive the
termination of this Agreement.
7. TERM AND TERMINATION
(a) The initial term of this Agreement shall be five (5) years (the
"Initial Term"). Unless canceled or terminated pursuant to the terms of this
Agreement, this Agreement shall be of a continuing nature and shall
automatically renew for one-year periods after the Initial Term.
(b) Either party may cancel this Agreement, without cause, by giving the
other party not less than one hundred twenty (120) days written notice of
cancellation prior to the effective date of termination.
(c) In the event that either party hereto discovers an act of fraud or
breach of the Agreement (including material incorporated by reference into this
Agreement) by the other party, its agents or employees, the non-breaching party
shall send written notice to demand that such fraud or breach be cured within
thirty (30) days of the receipt of such notice. If such fraud or breach is not
cured within thirty (30) days after receipt of such notice, the non-breaching
party may terminate this Agreement immediately upon delivery of written notice
to such effect to the other party.
(d) This Agreement shall terminate immediately in the event that there is
no insurance policy in place to underwrite the obligations of Xxxxxx under the
Service Contracts as required under Section 3(a) of this Agreement.
(e) If at any time during the term of this Agreement either party files,
or there is filed against it, a petition in bankruptcy, either party makes an
assignment for the benefit of its creditors or takes advantage of any insolvency
law, or a receiver or trustee is appointed for it or any of its property or it
shall be enjoined from carrying on any part of its business, the other party at
any time thereafter shall have the right, in addition to any other rights and
remedies available to it, to terminate this Agreement on ten (10) days written
notice to the recipient party or, if it so elects, to deem and treat this
Agreement as terminated effective upon the happening of any of the foregoing
events by written notice to such party to such effect. In the event of any
termination under this paragraph, neither the recipient party nor any person
claiming through or under such party or by virtue of any statute or of an order
of any court shall be entitled to any rights under this Agreement.
(f) Upon termination by either party, all obligations hereunder shall
cease; provided, however, that Xxxxxx shall continue to serve as obligor for all
Service Contracts issued prior to the date of termination and for which Xxxxxx
received the appropriate Obligor Fee.
8. MAINTENANCE AND INSPECTION OF RECORDS:
(a) Each party shall keep at all times just and true books, records and
accounts of its business herein. All books, records and accounts shall be
maintained by both parties in accordance with generally accepted accounting
principles. All such books, records and accounts pertaining to the Service
Contracts, the Programs and this Agreement must be kept in such a manner that
such books, records and accounts, upon the auditing party's request, shall be
segregated from all other business for review and audit.
(b) All such books, records and accounts shall be maintained by both
parties for a period of one (1) year after the expiration of all Service
Contracts sold pursuant to this Agreement. During the term of this Agreement and
until expiration of the aforementioned period, either party shall have the
right, on ten (10) business days notice and at its own expense, to audit such
books, records and accounts with respect to the business contemplated hereunder
and, upon reasonable notice and at reasonable times, enter onto the premises of
the other to make such audit.
9. NOTICES
All notices and other communications required or permitted by the terms of
this Agreement shall be in writing and shall be deemed to have been given as of
the date of service if served personally on the party to whom notice is to be
given, or on the date of receipt if sent via facsimile transmission (with
receipt confirmed), or on the date of receipt if mailed to the party to whom
notice is to be given, by registered or certified mail, return receipt
requested, addressed as follows:
Warrantech Automotive, Inc./Warrantech Consumer Product Services, Inc./
Warrantech Home Service Company
0000 X. Xxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attn: President
Xxxxxx Financial Solutions, LLC
0000 Xxxxxxxxx Xxxxxxxxx, XX
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
A party's address may be changed by sending written notice to the other
party.
10. GOVERNING LAW
This Agreement shall be construed under and according to the laws of the
State of Texas which would be applicable to an Agreement made and to be
performed wholly within such jurisdiction. Any actions or proceedings relating
to dispute arising out of or
related to this Agreement shall be subject to the jurisdiction of, and shall
have their venue in, the federal or state courts located in Texas.
11. PARTIAL INVALIDITY
If any term, covenant, condition or provision of this Agreement, or the
application thereof to any person or circumstances, shall to any extent be held
by a court of competent jurisdiction to be invalid, void, or unenforceable, the
remainder of the terms, covenants, conditions or provisions of this Agreement,
or the application thereof to any person or circumstance, shall remain in full
force and effect and shall in no way be affected, impaired or invalidated. The
parties agree to replace any such offending term, covenant, condition or
provision with one which shall be legally sanctioned and shall reflect the
intent of the parties as closely as practical and possible. The parties wish to
afford this Agreement maximum applicability to their relationship and,
therefore, agree to uphold its terms in any state where same may be legally
enforced.
12. ENTIRE AGREEMENT
This Agreement, with all exhibits attached hereto, constitutes the entire
Agreement between the parties and any prior Agreement, whether oral or written,
shall be of no further force or effect. The terms of this Agreement may be
changed, modified or amended only by written instrument executed by all parties.
13. PROHIBITION AGAINST ASSIGNMENT
No party may assign any rights or delegate any duties under this Agreement
without the prior written consent of the other.
14. DUPLICATE COUNTERPARTS
This Agreement may be executed in several counterparts and all such
executed counterparts shall constitute one Agreement, binding on all of the
parties hereto, notwithstanding that all of the parties hereto are not
signatories to the original or to the same counterpart.
15. NON-WAIVER
No forbearance or failure on the part of any party to this Agreement to
enforce or to insist upon compliance with any of the terms or provisions of this
Agreement shall be construed as or constitute a waiver of said terms or
provisions, nor shall it be construed as or constitute a waiver or any other
terms or provision.
16. RELATIONSHIP
Nothing in this Agreement is intended to, nor does it, create a
partnership, joint venture, principal/agent, or employee/employer relationship.
IN WITNESS THEREOF, the parties, through their duly authorized
representatives, have executed this Agreement as of the 1st day of April, 2000.
XXXXXX FINANCIAL SOLUTIONS, LLC
By: /s/ X.X. Xxxxx
--------------
Name: X.X. Xxxxx
Title: President
WARRANTECH AUTOMOTIVE, INC.
By: /s/ Xxxxxxx Xxxx
----------------
Name: Xxxxxxx Xxxx
------------
Title: Senior Vice President
WARRANTECH CONSUMER PRODUCT SERVICES, INC.
By: /s/ Xxxxxxx Xxxx
----------------
Name: Xxxxxxx Xxxx
Title: Senior Vice President
WARRANTECH HOME SERVICE COMPANY
By: /s/ Xxxxxxx Xxxx
----------------
Name: Xxxxxxx Xxxx
Title: Senior Vice President
Jurisdictions
WAI WCPS
(Motor Vehicles) (Xxxxx/White Goods)
---------------- -------------------
ALABAMA ALABAMA
ARIZONA ALASKA
ARKANSAS ARIZONA
CALFORNIA ARKANSAS
COLORADO CALIFORNIA
DELAWARE COLORADO
D.C. CONNECTICUT
GEORGIA DELAWARE
HAWAII D.C.
IDAHO FLORIDA
ILLINOIS GEORGIA
INDIANA HAWAII
IOWA IDAHO
KANSAS ILLINOIS
KENTUCKY INDIANA
LOUISIANA IOWA
MAINE KANSAS
MARYLAND KENTUCKY
MASSACHUSETTS LOUISIANA
MICHIGAN MAINE
MINNESOTA MARYLAND
MISSISSIPPI MASSACHUSETTS
MISSOURI MICHIGAN
NEBRASKA MINNESOTA
NEVADA MISSISSIPPI
NEW HAMSHIRE MISSOURI
NEW MEXICO MONTANA
NEW YORK NEBRASKA
NORTH CAROLINA NEVADA
OHIO NEW HAMPSHIRE
OKLAHOMA NEW JERSEY
OREGON NEW MEXICO
PENNSYLVANIA NEW YORK
RHODE ISLAND NORTH CAROLINA
SOUTH CAROLINA NORTH DAKOTA
TENNESSEE OHIO
TEXAS OKLAHOMA
UTAH OREGON
VERMONT PENNSYLVANIA
VIRGINIA RHODE ISLAND
WASHINGTON SOUTH CAROLINA
WEST VIRGINIA SOUTH DAKOTA
WISCONSIN TENNESSEE
WYOMING TEXAS
UTAH
VERMONT
XXXXXXXX
XXXXXXXXXX
WEST VIRGINIA
WISCONSIN
WYOMING
EXHIBIT B OBLIGOR FEE STRUCTURE
PROGRAM OBLIGOR FEE PER
SERVICE CONTRACT
RepairMaster Vehicle Service Contract 1.00
RepairMaster Recreational Vehicle Service Contract 1.00
Magnolia Hi Fi 0.50
Palm Computing 0.50
RepairMaster ConsumerElectronic,Appliance and Computer 0.50
Ultimate Electronics 0.50
Staples 0.25 if Warrantech dealer
cost is <$10.00
OR
0.50 if Warrantech dealer
Cost is> $10.00
