Exhibit 10.2
AMENDMENT AND SUPPLEMENT NUMBER ONE
TO CERTAIN WARRANTECH AND XXXXXX AGREEMENTS
AMENDMENT AND SUPPLEMENT NUMBER ONE TO CERTAIN WARRANTECH AND XXXXXX
AGREEMENTS, made as of January 16, 2004 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"),
Warrantech Corporation, as agent ("Agent") on behalf of and for the ratable
benefit of the Warrantech Entities, Xxxxxx Financial Solutions, LLC ("Xxxxxx"),
and Reliance Warranty Company ("RWC Corp.").
WITNESSETH:
WHEREAS, Xxxxxx and the applicable Warrantech Entities have existing
business relationships; and
WHEREAS, due to the Reliance bankruptcy, Xxxxxx and Warrantech
negotiated an Agreement dated as of November 21, 2001 (as amended, restated,
supplemented or modified from time to time, the "Omnibus 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 pursuant to which each
Warrantech Entity agreed to sell, transfer and assign and sold, transferred and
assigned certain debts, liabilities and obligations to Xxxxxx, Xxxxxx agreed to
acquire and assume and acquired and assumed all such debts, liabilities and
obligations in consideration for certain financial benefits in addition to the
benefits to which Xxxxxx was entitled, and the parties made certain other
agreements; and
WHEREAS, as contemplated by the Omnibus Agreement, Xxxxxx has executed
separate Secured Promissory Notes in favor of each Warrantech Entity to evidence
Xxxxxx'x obligation to repay any Xxxxxx Loans (as defined in the Omnibus
Agreement) any Warrantech Entity makes to Xxxxxx (all such promissory notes, as
amended, restated, supplemented or modified from time to time, the "Notes"); and
WHEREAS, in order to secure all existing and future obligations of
Xxxxxx to the Warrantech Entities and/or the Agent, pursuant to a Security
Agreement dated as of June 21, 2002 (as amended, restated, supplemented or
modified from time to time, the "Xxxxxx Security Agreement"), Xxxxxx granted to
the Agent a first priority perfected security interest in substantially all of
its existing and future assets and properties; and
WHEREAS, Xxxxxx has entered into a Stock Purchase Agreement (as amended,
restated, supplemented or modified from time to time, the "SPA") with Reliance
Insurance Company (In Liquidation) (the "Reliance Seller") pursuant to which
Xxxxxx is purchasing all issued and outstanding stock of Reliance Warranty
Company ("RWC Corp") for certain consideration and agreements, as set forth in
the SPA; and
WHEREAS, to assist Xxxxxx in consummating the stock purchase
contemplated by the SPA, Warrantech Corp. has guaranteed to the Reliance Seller
certain of Xxxxxx'x obligations under the SPA to the Reliance Seller pursuant to
a Guarantee Agreement (as amended, restated, supplemented or modified from time
to time, the "Warrantech Guarantee Agreement") on the condition that Xxxxxx and
RWC Corp. execute this Agreement and certain other documents contemplated by
this Agreement;
NOW THEREFORE, the parties hereto agree as follows:
1. Capitalized terms and phrases used in this Agreement without
definition shall have the respective meanings set forth on Schedule 1.
2. At the Closing for the stock purchase contemplated by the SPA
(the "Closing"), Xxxxxx shall cause RWC Corp. to pay the Warrantech Entities
approximately $14,000,000 to be applied to obligations of RWC Corp. and Xxxxxx
to the Warrantech Entities.
3. At the Closing, as required by the Xxxxxx Security Agreement,
Xxxxxx shall cause all of the Shares (as defined in the SPA), constituting all
of the issued and outstanding shares of stock of RWC Corp., together with stock
powers and assignments satisfactory to Agent, to be delivered to the Agent as
additional security for all existing and future obligations of Xxxxxx and/or RWC
Corp. to each of the Warrantech Entities and/or the Agent. In furtherance of the
foregoing, at the Closing, Xxxxxx shall execute a stock pledge agreement in
favor of Agent in substantially the form attached hereto as Exhibit A (the
"Stock Pledge Agreement").
4. At the Closing, RWC Corp. shall guarantee all existing and
future obligations of Xxxxxx to the Warrantech Entities and/or the Agent
pursuant to a guarantee in substantially the form attached hereto as Exhibit B.
5. At the Closing, RWC Corp. shall grant the Agent a security
interest in all of its existing and future assets as security for all existing
and future obligations of Xxxxxx and/or RWC Corp. to each of the Warrantech
Entities and/or the Agent. In furtherance of the foregoing, at the Closing, RWC
Corp. shall execute the Security Agreement in favor of Agent in substantially
the form attached hereto as Exhibit C (the "RWC Corp. Security Agreement").
6. At the Closing, RWC Corp. shall provide the Agent with control
agreements over all of its deposit accounts and securities accounts pursuant to
the forms of control agreements in substantially the form attached hereto as
Exhibit D.
7. At the Closing, Xxxxxx and the Agent shall continue, amend and
restate the Xxxxxx Security Agreement and, in connection therewith, enter into a
continued, amended and restated security agreement amending and restating the
Xxxxxx Security Agreement in substantially the form attached hereto as Exhibit E
(the "Xxxxxx Amended and Restated Security Agreement"; together with the Stock
Pledge Agreement and the RWC Corp. Security Agreement, as amended, restated,
supplemented or modified from time to time, the "Security Agreements").
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8. At the Closing, Xxxxxx shall agree to reimburse Warrantech Corp.
for all payments made by Warrantech under the Warrantech Guarantee Agreement and
Xxxxxx shall make certain other agreements for Warrantech's Corp.'s benefit
pursuant to a Reimbursement Agreement in substantially the form attached hereto
as Exhibit F.
9. At the Closing, Xxxxxx shall provide the Agent with a
certificate in form and substance satisfactory to the Agent regarding the truth
of all representations and warranties in all Relevant Documents, resolutions of
the member of Xxxxxx authorizing the execution, delivery and performance of the
Agreement and all documents contemplated by this Agreement.
10. At the Closing, RWC Corp. shall provide the Agent with a
certificate in form and substance satisfactory to the Agent regarding the truth
of all representations and warranties in all Relevant Documents, resolutions of
the sole stockholder and directors of RWC Corp. authorizing the execution,
delivery and performance of the Agreement and all documents contemplated by this
Agreement.
11. Xxxxxx hereby irrevocably and forever agrees in favor of the
Warrantech Entities that all obligations in respect of the Notes, the Omnibus
Agreement, the Reimbursement Agreement and the other Relevant Documents are and
at all times shall continue to be absolute and unconditional in all respects and
shall at all times be, enforceable. To the extent permitted by applicable law,
Xxxxxx hereby absolutely, unconditionally and irrevocably forever waives any and
all right to assert any set-off, offset, counterclaim, crossclaim or claim of
any nature whatsoever with respect to such obligations arising out of events,
acts, omissions or circumstances occurring or existing on or prior to this date.
12. RWC Corp. hereby irrevocably and forever agrees in favor of the
Warrantech Entities that all obligations in respect of the Notes, the Omnibus
Agreement, the Reimbursement Agreement and the other Relevant Documents are and
at all times shall continue to be absolute and unconditional in all respects and
shall at all times be, enforceable. To the extent permitted by applicable law,
RWC Corp. hereby absolutely, unconditionally and irrevocably forever waives any
and all right to assert any set-off, offset, counterclaim, crossclaim or claim
of any nature whatsoever with respect to such obligations arising out of events,
acts, omissions or circumstances occurring or existing on or prior to this date.
13. Xxxxxx and RWC hereto hereby (a) ratify the Omnibus Agreement,
as amended hereby, the Notes, as amended hereby, the Xxxxxx Security Agreement,
as amended by the Xxxxxx Amended and Restated Security Agreement and all other
documents in connection with any of the foregoing, and (b) agree that each of
the foregoing documents is in full force and effect and each binds Xxxxxx and
RWC, as applicable, in accordance with its terms.
14. The Omnibus Agreement is hereby amended and modified as follows:
(a) The third sentence of Section 3 of the Omnibus Agreement
is hereby amended and modified to read in its entirety as follows:
"As security for, inter alia, all obligations under the Notes
(as hereinafter defined), the Reimbursement Agreement (as
hereinafter defined) and the Relevant Documents, until all of
Xxxxxx'x existing or future obligations of any kind to any
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Warrantech Entity under the Notes (as hereinafter defined), the
Reimbursement Agreement (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 or the
Warrantech Guarantee Agreement is in effect, absent Warrantech's
prior written consent, Xxxxxx hereby agrees that all Additional
Fees shall be paid exclusively into either bank account included
within the definition of the "Account"."
(b) The fourth sentence of Section 3 of the Omnibus
Agreement is hereby amended and modified to read in its entirety as follows:
"As security for, inter alia, all obligations under the Notes
(as hereinafter defined), the Reimbursement Agreement (as
hereinafter defined) and the Relevant Documents, until all of
Xxxxxx'x existing or future obligations of any kind to any
Warrantech Entity under the Notes, the Reimbursement Agreement
(as hereinafter defined), this Agreement and the Relevant
Documents, 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 or the Warrantech Guarantee Agreement is in effect,
absent Warrantech's prior written consent, Xxxxxx hereby agrees
not to change or attempt to change said payment flow."
(c) Section 4 of the Omnibus Agreement is hereby amended and
modified by adding the following language at the end of Section 4:
"Warrantech Corp. has executed a Guarantee Agreement in favor of
Reliance Insurance Company (In Liquidation) ("Reliance Seller")
relating to certain of Xxxxxx'x obligations under a Stock
Purchase Agreement with the Reliance Seller, and Xxxxxx is
agreeing to reimburse Warrantech Corp. for all payments of any
kind made under the above referenced Guarantee Agreement
pursuant to a Reimbursement Agreement between Warrantech Corp.
and Xxxxxx (as amended, restated, supplemented or modified from
time to time, the "Reimbursement Agreement")."
(d) All references to the Relevant Documents or Relevant
Agreements in the Omnibus Agreement and the Notes are hereby modified to
include, without limitation, this Agreement and all documents identified in
paragraphs 2 through 10 of this Agreement, as amended, restated, supplemented or
modified from time to time, and all references to the Security Agreement shall
include, without limitation, the Security Agreements, as defined in this
Agreement, and as amended, restated, supplemented or modified from time to time.
(e) Xxxxxx hereby represents and warrants that it has
complied with all covenants and agreements contained in the Omnibus Agreement
and that all representations and warranties contained in the Omnibus Agreement
are true and correct and are hereby restated on this date.
15. Each of the Notes is hereby amended and modified as follows:
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(a) all references to the Security Agreement shall include,
without limitation, the Security Agreements, as defined in this Agreement, as
amended, restated, supplemented or otherwise modified from time to time;
(b) all references to the Omnibus Agreement shall include,
without limitation, this Agreement, as amended, restated, supplemented or
otherwise modified from time to time;
(c) all references to the Relevant Documents shall include,
without limitation, all documents identified in paragraphs 2 through 10 of this
Agreement, as amended, restated, supplemented or modified from time to time;
(d) in the entire Event of Default section of each Note, the
words "or RWC Corp." shall be added in each instance after the word "Maker".
16. This Amendment Number One may be executed in any number of
counterparts and all of such counterparts shall for all purposes constitute one
instrument binding on the parties hereto, notwithstanding that all the parties
are not signatory to the same counterpart.
17. Except as specifically amended by this Amendment Number One, all
of the terms, covenants, provisions and conditions of the Omnibus Agreement
shall continue to remain in full force and effect.
18. 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.
19. Each of the parties shall pay all of its own legal and
accounting fees and other expenses incurred in the preparation of this
Agreement.
20. The parties to this Agreement are not partners or joint
venturers and this Agreement does not constitute a partnership or a joint
venture.
21. 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.
22. 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, 0000 Xxxxxxx
000, Xxxxx 000, Xxxxxxx, XX 00000, Attn: Xxxx San Antonio, Telecopier No.: (817)
785-1368; if to Xxxxxx or RWC Corp., to Xxxxxx Financial Solutions, LLC or RWC
Corp., 0000 Xxxxxxxxx Xxxx. XX, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000, Attn:
Xxxxx Xxxxxx, Secretary/Treasurer, Telecopier No.: (000) 000-0000; 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.
23. This Agreement (including the Exhibits 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 written among the parties relating to the
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specific subject matter that this Agreement covers. This Agreement may not be
modified or changed, in whole or in part, except by a document signed by each of
the parties.
24. 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, but this Agreement shall
not be assignable by Xxxxxx or RWC Corp. 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. Without limiting Agent's or any
Warrantech Entity's rights or remedies or Xxxxxx'x or RWC Corp.'s obligations,
Agent will use reasonable efforts to notify Xxxxxx of any assignment by Agent or
any Warrantech Entity under this Section 24. 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, any rights or remedies
under or by reason of this Agreement.
25. 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.
26. 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.
27. 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".
28. 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.
29. 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.
30. 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, 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, 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.
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31. 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.
32. 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.
33. 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.
34. 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.
35. 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.
36. 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.
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IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
WARRANTECH CORPORATION
By:
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Name:
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Title:
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WCPS OF FLORIDA, INC
By:
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Name:
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Title:
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WARRANTECH CONSUMER PRODUCT SERVICES, INC.
By:
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Name:
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Title:
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WARRANTECH HELP DESK, INC.
By:
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Name:
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Title:
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WARRANTECH HOME ASSURANCE COMPANY, INC.
By:
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Name:
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Title:
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WARRANTECH HOME SERVICE COMPANY
By:
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Name:
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Title:
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WARRANTECH AUTOMOTIVE OF FLORIDA, INC.
By:
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Name:
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Title:
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WARRANTECH AUTOMOTIVE, INC.
By:
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Name:
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Title:
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VEMECO, INC.
By:
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Name:
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Title:
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WARRANTECH CORPORATION, as agent
By:
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Name:
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Title:
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XXXXXX FINANCIAL SOLUTIONS, LLC
By:
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Name: Xxxxxx Xxxxxx
Title: President
RELIANCE WARRANTY COMPANY
By:
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Name:
Title:
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SCHEDULE 1
Definitions
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"Closing" shall mean the closing for the sale of stock contemplated by the SPA.
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EXHIBIT A
Form of Stock Pledge Agreement
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See attached.
12
EXHIBIT B
Form of RWC Corp. Guarantee
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See attached.
13
EXHIBIT C
Form of RWC Corp. Security Agreement
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See attached.
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EXHIBIT D
Form of Control Agreements
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See attached.
15
EXHIBIT E
Form of Xxxxxx Amended and Restated Security Agreement
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See attached.
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EXHIBIT F
Form of Reimbursement Agreement
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See attached.
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