EXHIBIT 10(f)
SUPPORT AGREEMENT
This Agreement ("Agreement"), to be effective as of October 1,2002, is entered
into among Great American Insurance Company, Gai Warranty Company, Gai Warranty
Company of Florida (hereinafter collectively referred to as "Great American")
and Warrantech Corporation, Wcps of Florida, Inc., Warrantech Consumer Product
Services, Inc., Warrantech Home Assurance Company, Warrantech Home Service
Company, Warrantech Automotive of Florida, Inc., Vemeco, Inc., and Warrantech
Automotive, Inc. (hereinafter collectively referred to as "Warrantech").
WHEREAS, Great American and Warrantech have previously entered into two separate
Administrative Agreements, one dated February 11, 2000 (the "Consumer Products
Agreement"), as amended, and another dated July 26, 2000 (the "Vehicle Service
Contract Agreement" and, collectively, with the Consumer Products Agreement, the
"Service Agreements"), as amended, pursuant to which Great American provides
certain insurance products and services to Warrantech related to warranty
programs sold and managed by Warrantech for motor vehicles and other types of
consumer products;
WHEREAS, certain circumstances have arisen, including, but not limited to, the
Chapter 11 reorganization proceeding of Reliance Group Holdings, Inc. and the
liquidation of Reliance Insurance Company, causing Warrantech to have previously
unanticipated cash needs in order to fund claims payments for warranty claims
previously reimbursed by Reliance Insurance Company's subsidiary, Reliance
Warranty Company ("Reliance Warranty");
WHEREAS, Warrantech desires to make provisions to prevent future unanticipated
cash needs as a result of the possible liquidation of Reliance Warranty;
WHEREAS, in exchange for certain financial accommodations more fully set forth
herein, Great American has agreed to modify the existing Service Agreements in
order to alleviate the short-term cash needs of Warrantech.
NOW, THEREFORE, the parties do hereby agree as follows:
RECITALS.
The recitals set forth above are an integral part of this Agreement and are
hereby restated as if fully rewritten herein.
RISK FEE REMITTANCE.
Notwithstanding anything to the contrary in the Service Agreements, Warrantech
shall remit all payments from retailers and dealers to which Great American is
entitled (less Warrantech's administrative fees, agent commissions and any other
fees or monies due Warrantech) (the "Risk Fees") no later than the 25th day of
the SECOND month after which those Risk Fees were collected by Warrantech (e.g.,
Risk Fees collected in January shall be payable to Great American by no later
than the 25th of March). These terms represent a thirty (30) day extension (the
"Extension Period") compared to the terms of payment set forth in the Service
Agreements. Warrantech hereby agrees that during the Extension Period all Risk
Fees not paid to Great American by the 25th day after the first month after
which those Risk Fees were collected by Warrantech shall bear interest at the
rate of 3% per annum, calculated on a daily basis. Interest on the Risk Fees
during the Extension Period shall begin accruing commencing September 1, 2002.
LINE OF CREDIT.
In addition to the extended terms for remittance of Risk Fees under Paragraph 2
above, Great American may make available to Warrantech, in Great American's
reasonable commercial discretion, for Warrantech's short-term use (to mean a
repayment period of twelve (12) months or less), an amount not to exceed the
lesser of: (a) $3 million, or (b) 33% of the Risk Fees collected by Warrantech
during the prior rolling three (3) month period. Such sums shall be made
available to Warrantech through further extensions of the payment terms with
respect to Risk Fees. The availability of such funds shall be in the sole
reasonable commercial discretion of Great American and must be preapproved in
writing by Great American. Warrantech acknowledges that the availability under
this Paragraph 3 shall be for unexpected cash needs on a short-term basis only.
Any extended payment terms made pursuant to this Paragraph 3 shall accrue
interest computed daily on the average daily balance based on the per annum
prime rate as of the last business day of the prior month as reported in the
Wall Street Journal plus 2.0%. Notwithstanding the above, the per annum interest
rate for amount outstanding under this Paragraph 3 shall never be less than 7.0%
nor shall the interest rate exceed 11.0%. All advances under this Paragraph 3
shall be payable in full no later than the termination of
16
this Agreement pursuant to Paragraph 9. Great American may, at its discretion,
grant an extension of repayment upon reasonable request in writing from
Warrantech, for the payment of advances under this Paragraph 3.
RELIANCE WARRANTY COMPANY.
Great American is currently negotiating with Reliance Warranty Company to
acquire certain assets and liabilities associated with business written through
Warrantech (the "RWC Transaction"). Upon consummation of the RWC Transaction,
Warrantech shall indemnify Great American for any losses it incurs as a result
of the assumption of liabilities from Reliance Warranty relating to service
contracts and warranties sold by or on behalf of Warrantech or Xxxxxx Financial
Solutions LLC ("Xxxxxx") and administered by Warrantech; provided, however,
Warrantech and/or Xxxxxx has a legal obligation to pay or is otherwise liable
for such liabilities. Notwithstanding the foregoing, the indemnity provided for
hereunder shall only apply to (i) losses incurred by Great American after
application of the Reliance Net Proceeds received from Reliance Warranty and
interest/investment income thereon and (ii) shall not apply to losses incurred
as a result of Great American's bad faith, willful misconduct or gross
negligence. "Reliance Net Proceeds" shall mean all proceeds received from
Reliance Warranty pursuant to the RWC Transaction less (i) $50,000 and (ii) 10%
of such proceeds. Great American agrees that is shall use the Reliance Net
Proceeds solely to pay Reliance Warranty claims that Warrantech and/or Xxxxxx
have a legal obligation to pay (the "Warrantech Claims") or to reimburse
Warrantech for such claims.
Great American hereby agrees to pay to Warrantech as partial consideration for
entering into this Agreement, 5% of the proceeds Great American receives from
Reliance Warranty upon consummation of the RWC Transaction. In addition, upon
receipt of the proceeds from Reliance Warranty, Great American shall reimburse
Warrantech for all Warrantech Claims previously paid by Warrantech and for which
Reliance Warranty has not reimbursed Warrantech.
The Reliance Net Proceeds shall be accounted for by Great American using a
method that allows those proceeds to be segregated from other Great American
Accounts. The Reliance Net Proceeds shall bear minimum interest at the one year
treasury xxxx rate. Great American shall deliver to Warrantech, on a quarterly
basis, documentation in form and substance satisfactory to Warrantech with
respect to such account as well as an accounting showing the use of funds
therein.
RELIANCE RELIEF FUND.
After consummation of the RWC Transaction, in order to supplement the payment of
Warrantech Claims and to secure the indemnity agreement of Warrantech set forth
in Paragraph 4 above, Warrantech shall cause the creation of a segregated bank
account called the "Reliance Relief Fund," which shall be funded initially with
a contribution from Warrantech of $1,100,000. In addition, Warrantech shall make
certain payments to the Reliance Relief Fund in accordance with the terms of
Exhibit A hereto (the "Reliance Relief Fund Payments"). The Reliance Relief Fund
shall be in the name of Warrantech. Once the Reliance Net Proceeds and all
interest/investment income with respect to such proceeds have been exhausted as
a result of the reimbursement by Great American to Warrantech of Warrantech
Claims and/or direct payment of such claims to claimants, the remaining
Warrantech Claims shall be paid from the Reliance Relief Fund.
Warrantech shall cause the financial institution at which the Reliance Relief
Fund is maintained to allow Great American exclusive access to such account,
except as otherwise provided herein. Although the Reliance Relief Fund will be
an asset of Warrantech, Great American shall not be permitted to withdraw funds
from such account, except upon the occurrence of an Event of Default under the
Security Agreement, until such time as the Reliance Net Proceeds, including
interest/investment income thereon, has been fully exhausted. Any withdrawals
from the Reliance Relief Fund shall be used solely to pay Warrantech Claims
until such time as all Warrantech Claims have been paid in full. Warrantech may
not withdraw funds from the Reliance Relief Fund without the written consent of
Great American. Upon payment in full of all Warrantech Claims, determined in the
reasonable commercial discretion of both Great American and Warrantech,
Warrantech may withdraw the balance of the funds in the Reliance Relief Fund.
Until such time as the Reliance Relief Fund has been established in accordance
with the terms hereof and in form reasonably satisfactory to Great American, the
initial contribution made by Warrantech to the Reliance Relief Fund shall be
held in a segregated, interest bearing account, by Great American. Great
American shall not use such funds until the Reliance Net Proceeds and
interest/investment income thereon, has been exhausted to pay Warrantech Claims.
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AUDIT RIGHTS.
In addition to any rights granted to Great American under either the Vehicle
Service Contract Agreement or Consumer Products Agreement, Great American shall
have the right and Warrantech shall permit and authorize, any person, persons or
entities designated by Great American, at Great American's expense and as often
as Great American may reasonably request upon reasonable notice and during
normal business hours, the right to visit, inspect, examine, audit and verify at
any of Warrantech's offices or elsewhere, any of the properties, accounts,
books, records, financial statements or work papers belonging to or in the
possession of Warrantech pertaining to any financial matters related to the
operation of the company. Failure by Warrantech to allow Great American access
as described herein shall be deemed a material breach of this Agreement.
NO PAYMENT OF DIVIDENDS.
As long as there is any amount owed to Great American under the extended terms
of this Agreement set forth in Paragraphs 2 and 3 herein, Warrantech Corporation
shall not declare or pay any cash dividends without the prior written consent of
Great American, which consent shall not be unreasonably withheld.
SECURITY INTEREST TO GREAT AMERICAN.
In order to secure payment of all amounts due under Paragraphs 2, 3 or 5 of this
Agreement, Warrantech hereby grants to Great American a continuing security
interest in all of Warrantech's accounts receivable in accordance with the terms
of the Security Agreement attached hereto as Exhibit B (the "Security
Agreement"). Warrantech further agrees to deliver to Great American a landlord
waiver in form and substance satisfactory to Great American, executed by the
landlord of Warrantech's facility located at 000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxx
(the "Texas Facility"), granting Great American the right to enter the Texas
Facility and remain thereon for a specified period of time.
TERMINATION.
If Warrantech fails to observe or perform any material term of this Agreement or
the Service Agreements, or makes or provides any misleading material
representation, warranty or certificate to Great American or makes any
misleading material representation in any financial statement delivered to Great
American, then Great American shall have the right to immediately terminate this
Agreement and Warrantech shall be obligated to remit directly to Great American
any future money it receives as payment for service contracts. In addition,
Warrantech shall immediately pay to Great American any amounts due under
Paragraphs 2 and 3 of this Agreement, with interest.
In addition to the grounds for termination stated above, this Agreement will
automatically terminate on December 31, 2007, or when all obligations to Great
American under Paragraphs 2, 3 and 5 have been paid in full.
Notwithstanding Great American's right to terminate this Agreement as provided
herein, unless and until an Event of Default has occurred and is continuing
under the Security Agreement, Great American shall not be permitted to exercise
its rights thereunder.
STOCK OPTIONS.
Warrantech hereby grants to Great American an option to purchase up to 1,650,000
common shares of Warrantech Corporation at a strike price of $2 per share. The
option shall be exercisable no earlier than January 1, 2006, nor later than
December 31, 2006, and shall not contain antidilution provisions. In the event
that Warrantech stock does not trade above $2 per share for 10 consecutive
trading days prior to January 1, 2004, the strike price shall be automatically
reduced to $1 per share.
CONFLICT AMONG AGREEMENTS.
In the event of a conflict between the terms of this Agreement and the Service
Agreements, then the terms of this Agreement shall control. To the extent that
the terms and conditions of the Service Agreements are not affected by this
Agreement, those Agreements shall remain in full force and effect.
FINANCIAL RATING OF GREAT AMERICAN.
In the event that the financial rating of Great American as announced by either
A. M. Best or Standard & Poor's drops below A-, Great American hereby agrees
that it will, within five (5) business days after written request from
Warrantech, place 100% of all unearned Risk Fees into escrow with an independent
third party trustee for the sole purpose of paying claims under the Service
Agreements and will continue to deposit new premiums (net of loss payments) into
the trust described above for so long as either rating remains below A-.
In the event that Warrantech chooses to obtain a different insurance carrier as
a result of the rating drop of Great American as described above, Great American
hereby agrees that it will cede 100% of all unearned Risk Fees to any such new
carrier and/or insured warranty company chosen by Warrantech for a ceding fee
equal to 5% plus any premium tax previously paid. Great American will be
relieved of all further claim liabilities and obligations for any administrative
functions as of the effective date of the cession by both Warrantech and the new
carrier and/or insured warranty company.
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CONFIDENTIALITY.
The existence, terms and conditions of this Agreement are confidential, and may
not be disclosed by either party to any third party (other than each party's
accountants, attorneys or other professionals retained by such party) without
the prior consent of the nondisclosing party in writing, or by virtue of a court
order. To the extent that disclosure is required under applicable securities
laws or any financial regulations affected either party, the party required to
disclose shall consult with the nondisclosing party in order that the parties
can jointly agree on the terms and wording of any disclosure.
NO WAIVER.
The failure of Great American or Warrantech to insist on strict compliance with
this Agreement, or to exercise any right or remedy hereunder, shall not
constitute a waiver of any rights contained herein nor stop the parties from
thereafter demanding full and complete compliance therewith nor prevent the
parties from exercising such remedy in the future.
IN WITNESS WHEREOF, the parties have executed this Agreement consisting of this
execution page and five (5) prior pages to be effective as of the ___ day of
October, 2002.
GREAT AMERICAN INSURANCE COMPANY
GAI WARRANTY COMPANY
GAI WARRANTY COMPANY OF FLORIDA, INC.
By:/s/ Xxxx' Xxxxxxxxx Date: 10-9-02
-----------------------------
Its:V.P.
Printed Name: Xxxx' Xxxxxxxxx
WARRANTECH CORPORATION
WCPS OF FLORIDA, INC
WARRANTECH CONSUMER PRODUCT SERVICES, INC.
WARRANTECH HOME ASSURANCE COMPANY, INC.
WARRANTECH HOME SERVICE COMPANY
WARRANTECH AUTOMOTIVE OF FLORIDA INC.
WARRANTECH AUTOMOTIVE, INC.
VEMECO, INC.
By:/s/ Xxxx San Antonio Date: 10/11/02
-----------------------------
Its: Chairman
Printed Name: Xxxx San Xxxxxxx
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EXHIBIT A
RELIANCE RELIEF FUND PAYMENTS
Payment Date Required Minimum Deposit Maximum Deposit
------------ ------------------------ ---------------
From RWC Proceeds $1,100,000 $1,100,000
April 1, 2003 $ 300,000 $ 300,000
July 1, 2003 $ 300,000 $ 300,000
October 1, 2003 $ 300,000 $ 300,000
January 1, 2004 $ 250,000 $ 250,000
April 1, 2004 $ 250,000 $ 250,000
July 1, 2004 $ 250,000 $ 250,000
October 1, 2004 $ 250,000 $ 250,000
January 1, 2005 $ 306,250 $ 600,000
April 1, 2005 $ 306,250 $ 600,000
July 1, 2005 $ 306,250 $ 600,000
October 1, 2005 $ 306,250 $ 600,000
January 1, 2006 $ 306,250 $ 600,000
April 1, 2006 $ 306,250 $ 600,000
July 1, 2006 $ 306,250 $ 600,000
October 1, 2006 $ 306,250 $ 600,000
1. Minimum Deposit must be made by the Payment Date.
2. Great American will provide quarterly updates to Warrantech of the
difference between the projected cumulative losses (from the attached
spreadsheet) and the actual cumulative losses ("Shortfall").
3. No adjustment to payment until January 1, 2005 if actual cumulative losses
exceed projected cumulative losses ("Shortfall"). Thereafter, if the
Shortfall is greater than 10%, remaining payments will be adjusted
pro-rata for the Shortfall. If actual cumulative losses are less than
projected cumulative losses (excess), adjustment to payment schedule
beginning January 1, 2004.
4. Warrantech shall continue to make quarterly payments as provided by the
above schedule if any Shortfall exists after the October 1, 2006 payment.
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RWC RECOVERIES
SCHEDULE
AS OF JUNE 2002
Projections
($ in Millions) Auto Losses Auto Refunds CPS Losses Interest Total
@ 4.5%
Quarter Ending Qtr. Cum. Qtr. Cum. Qtr. Cum. Qtr. Cum. Quarter Cumulative
ITD thru June 2002 $3.54 $3.5 $0.42 $0.4 $1.02 $1.0 $0.00 $0.0 $4.98 $4.98
September 2002 $1.20 $4.7 $0.08 $0.5 $0.30 $1.3 $0.05 $0.0 $1.53 $6.51
December 2002 $1.30 $6.0 $0.07 $0.6 $0.30 $1.6 $0.12 $0.2 $1.55 $8.07
March 2003 $1.25 $7.3 $0.06 $0.6 $0.25 $1.9 $0.10 $0.3 $1.46 $9.52
June 2003 $1.25 $8.5 $0.05 $0.7 $0.25 $2.1 $0.09 $0.4 $1.46 $10.99
September 2003 $1.10 $9.6 $0.04 $0.7 $0.25 $2.4 $0.07 $0.4 $1.32 $12.31
December 2003 $1.10 $10.7 $0.03 $0.8 $0.25 $2.6 $0.05 $0.5 $1.33 $13.64
March 2004 $1.00 $11.7 $0.03 $0.8 $0.20 $2.8 $0.04 $0.5 $1.19 $14.83
June 2004 $0.90 $12.6 $0.03 $0.8 $0.20 $3.0 $0.03 $0.5 $1.10 $15.93
September 2004 $0.90 $13.5 $0.02 $0.8 $0.20 $3.2 $0.01 $0.6 $1.11 $17.04
December 2004 $0.80 $14.3 $0.02 $0.9 $0.20 $3.4 $0.6 $1.02 $18.06
March 2005 $0.70 $15.0 $0.01 $0.9 $0.15 $3.6 $0.6 $0.86 $18.92
June 2005 $0.60 $15.6 $0.01 $0.9 $0.15 $3.7 $0.6 $0.76 $19.68
September 2005 $0.50 $16.1 $0.01 $0.9 $0.15 $3.9 $0.6 $0.66 $20.34
December 2005 $0.40 $16.5 $0.01 $0.9 $0.15 $4.0 $0.6 $0.56 $20.90
March 2006 $0.35 $16.9 $0.00 $0.9 $0.10 $4.1 $0.6 $0.45 $21.35
June 2006 $0.25 $17.1 $0.00 $0.9 $0.10 $4.2 $0.6 $0.35 $21.70
September 2006 $0.25 $17.4 $0.00 $0.9 $0.10 $4.3 $0.6 $0.35 $22.05
December 2006 $0.25 $17.6 $0.00 $0.9 $0.10 $4.4 $0.6 $0.35 $22.40
March 2007 $0.10 $17.7 $0.00 $0.9 $0.00 $4.4 $0.6 $0.10 $22.50
June 2007 $0.10 $17.8 $0.00 $0.9 $0.00 $4.4 $0.6 $0.10 $22.60
September 2007 $0.05 $17.9 $0.00 $0.9 $0.00 $4.4 $0.6 $0.05 $22.65
December 2007 $0.05 $17.9 $0.00 $0.9 $0.00 $4.4 $0.6 $0.05 $22.70
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ACTUALS
($ in Millions) Auto Losses Auto Refunds CPS Losses Interest Total
Quarter Ending Qtr. Cum. Qtr. Cum. Qtr. Cum. Qtr. Cum. Qtr. Cum.
ITD thru June 2002 $3.54 $3.54 $0.42 $0.42 $1.02 $1.02 $0.00 $0.0 $4.98 $4.98
September 2002 $1.40 $4.9 $0.90 $1.3 $0.40 $1.4 $0.50 $0.5 $2.20 $7.18
December 2002 $0.00 $0.00
March 2003 $0.00 $0.00
June 2003 $0.00 $0.00
September 2003 $0.00 $0.00
December 2003 $0.00 $0.00
March 2004 $0.00 $0.00
June 2004 $0.00 $0.00
September 2004 $0.00 $0.00
December 2004 $0.00 $0.00
March 2005 $0.00 $0.00
June 2005 $0.00 $0.00
September 2005 $0.00 $0.00
December 2005 $0.00 $0.00
March 2006 $0.00 $0.00
June 2006 $0.00 $0.00
September 2006 $0.00 $0.00
December 2006 $0.00 $0.00
March 2007 $0.00 $0.00
June 2007 $0.00 $0.00
September 2007 $0.00 $0.00
December 2007 $0.00 $0.00
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Actuals vs. Projections
Scheduled
($ in Millions) Totals Cumulative Differences Scheduled Amount for Deposit Scheduled
Amount Interest Income With Interest Income Amount for Deposit
Quarter Ending Dollars ($) Percentage (%) Deposited Allocation Allocation Cumulative
ITD thru June 2002 $0.00 0.0% $1.10 $0.00 $1.10 $1.10
September 2002 $0.67 13.5% $0.00 $0.00 $0.00 $1.10
December 2002 -$8.07 $0.00 $0.00 $0.00 $1.10
March 2003 -$9.52 $0.30 $0.00 $0.30 $1.40
June 2003 -$10.99 $0.30 $0.00 $0.30 $1.70
September 2003 -$12.31 $0.30 $0.00 $0.30 $2.00
December 2003 -$13.64 $0.25 $0.00 $0.25 $2.25
March 2004 -$14.83 $0.25 $0.00 $0.25 $2.50
June 2004 -$15.93 $0.25 $0.00 $0.25 $2.75
September 2004 -$17.04 $0.25 $0.00 $0.25 $3.00
December 2004 -$18.06 $0.38 $0.07 $0.31 $3.38
March 2005 -$18.92 $0.38 $0.07 $0.31 $3.75
June 2005 -$19.68 $0.38 $0.07 $0.31 $4.13
September 2005 -$20.34 $0.38 $0.07 $0.31 $4.50
December 2005 -$20.90 $0.38 $0.07 $0.31 $4.88
March 2006 -$21.35 $0.38 $0.07 $0.31 $5.25
June 2006 -$21.70 $0.38 $0.07 $0.31 $5.63
September 2006 -$22.05 $0.38 $0.07 $0.31 $6.00
December 2006 -$22.40 $0.38 $0.07 $0.31
March 2007 -$22.50 $0.38 $0.07 $0.31
June 2007 -$22.60 $0.38 $0.07 $0.31
September 2007 -$22.65 $0.38 $0.07 $0.31
December 2007 -$22.70 $0.38 $0.07 $0.31
Adjusted Amount
for Deposit
($ in Millions) Maximum Amount on a Quarterly Basis
for Deposit (Based on Parameters
Quarter Ending on a Quarterly Basis Listed Below)
ITD thru June 2002 $1.10
September 2002 $0.00
December 2002 $0.00
March 2003 $0.30
June 2003 $0.30
September 2003 $0.30
December 2003 $0.25 0.25
March 2004 $0.25 0.25
June 2004 $0.25 0.25
September 2004 $0.25 0.25
December 2004 $0.60 0.30625
March 2005 $0.60 0.30625
June 2005 $0.60 0.30625
September 2005 $0.60 0.30625
December 2005 $0.60 0.30625
March 2006 $0.60 0.30625
June 2006 $0.60 0.30625
September 2006 $0.60 0.30625
December 2006 $0.60
March 2007 $0.60
June 2007 $0.60
September 2007 $0.60
December 2007 $0.60
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RWC Assumption Trust for Projected Shortfall
Scheduled
Scheduled Amount 4 Maximum Interest Income
Payment Date Amount With I.I. Allocation Amount Allocation
------------ ------ -------------------- ------ ----------
From RWC Proceeds $1,100,000 $1,100,000 $1,100,000
April 1, 2003 $300,000 $300,000 $300,000
July 1, 2003 $300,000 $300,000 $300,000
October 1, 2003 $300,000 $300,000 $300,000
January 1, 2004 $250,000 $250,000 $250,000
April 1, 2004 $250,000 $250,000 $250,000
July 1, 2004 $250,000 $250,000 $250,000
October 1, 2004 $250,000 $250,000 $250,000
January 1, 2005 $375,000 $306,250 $600,000 $68,750
April 1, 2005 $375,000 $306,250 $600,000 $68,750
July 1, 2005 $375,000 $306,250 $600,000 $68,750
October 1, 2005 $375,000 $306,250 $600,000 $68,750
January 1, 2006 $375,000 $306,250 $600,000 $68,750
April 1, 2006 $375,000 $306,250 $600,000 $68,750
July 1, 2006 $375,000 $306,250 $600,000 $68,750
October 1, 2006 $375,000 $306,250 $600,000 $68,750
Quarterly @ $375,000 to reach @ $306,250 to reach $600,000
Projected Need Projected Need
Total thru Oct 2006 $6,000,000 $5,450,000 $7,800,000 $550,000
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