Exhibit 10.4
SECURITY AGREEMENT
Security Agreement, dated as of January 16, 2004, by Reliance Warranty
Company, a Delaware corporation (the "Debtor"), in favor of Warrantech
Corporation, a Delaware corporation, in its capacity as agent (in such capacity,
the "Agent" or the "Secured Party"), on behalf of and for the ratable benefit of
Warrantech Corporation, WCPS of Florida, Inc., Warrantech Consumer Product
Services, Inc., Warrantech Help Desk, Inc., Warrantech Home Assurance Company,
Warrantech Home Service Company, Warrantech Automotive of Florida, Inc., Vemeco,
Inc., Warrantech Automotive, Inc. and their respective successors and assigns
(hereinafter collectively referred to as the "Obligees").
W I T N E S S E T H:
WHEREAS, Debtor has executed an Absolute, Unconditional, Unlimited and
Continuing Guaranty of Payment and Performance, dated as of even date herewith
(as amended, restated, supplemented or otherwise modified from time to time, the
"Guaranty"), in favor of each of the Obligees and Agent;
WHEREAS, in order to induce the Obligees and Agent to accept the
Guaranty, Debtor has agreed to grant to Agent for the ratable benefit of the
Obligees a first priority perfected security interest in the Collateral (defined
below) as collateral security for, inter alia, the payment and performance of
all principal, interest, indebtedness, liabilities and obligations of any kind
at any time owing by Debtor or Xxxxxx Financial Solutions, LLC, a Delaware
limited liability company ("Xxxxxx"), to any of the Obligees or Agent; and
NOW, THEREFORE, in consideration of the premises, the mutual covenants
and agreements contained in this Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
in order to induce each of the Obligees and Agent to accept the Guaranty on or
about this date, the parties hereby agree as follows:
ARTICLE 1.
DEFINITIONS
1.1 Definitions. Capitalized terms and phrases used in this Agreement
without definition shall have the respective meanings given to them in or
otherwise referred to in the Security Agreement dated as of June 21, 2002,
executed by Xxxxxx in favor of Agent, as continued, amended and restated by the
First Continued, Amended and Restated Security Agreement dated as of even date
herewith, and as amended, restated, supplemented or otherwise modified from time
to time (the "Xxxxxx Security Agreement"); provided, however, any terms and
phrases (whether capitalized or not) that are not defined in this Agreement and
are defined in the Uniform Commercial Code as now in effect in the State of New
York (the "UCC" or the "Code") shall have the respective meanings set forth in
the UCC. The following terms shall have the following meanings:
(a) "Accounts" shall have the meaning set forth in Article 9
of the UCC.
(b) "Agreement" shall mean this Security Agreement, as the
same may be amended, supplemented, restated or otherwise modified from time to
time.
(c) "Chattel Paper" shall have the meaning set forth in
Article 9 of the UCC.
(d) "Collateral" shall have the meaning set forth in Section
2.1 of this Agreement.
(e) "Commercial Tort Claims" shall have the meaning set
forth in Article 9 of the UCC.
(f) "Contracts" shall mean all contracts and agreements,
including, without limitation, all stock purchase or similar agreements and all
insurance policies and all contracts and agreements relating to Insurance
Rights, as the same may be amended, supplemented or otherwise modified from time
to time, including, without limitation, (i) all rights of the Debtor to receive
moneys due and to become due to it thereunder or in connection therewith, (ii)
all rights of the Debtor to damages arising out of or for breach or default in
respect thereof and (iii) all rights of the Debtor to exercise all remedies
thereunder.
(g) "Control Agreement" shall mean each Control Agreement,
dated as of even date herewith, among Debtor, Agent and Bank One, as amended,
restated, supplemented or modified from time to time.
(h) "Debt" shall mean (i) indebtedness or liability for
borrowed money, for the purchase price of property or services (including trade
obligations) or evidenced by promissory notes or other instruments; (ii)
obligations as lessee under capital leases; (iii) obligations under letters of
credit issued for the account of any Person; (iv) obligations arising under
bankers' or trade acceptance facilities; (v) guarantees, endorsements (other
than for collection or deposit in the ordinary course of business), and other
contingent obligations, obligations to provide funds for payment and/or to
supply funds to invest in any Person, or otherwise to assure a creditor against
loss; (vi) obligations secured by any Lien on property owned by such Person,
whether or not the obligations have been assumed; (vii) obligations or
securities convertible or exchangeable into any of the items described in this
definition; and (viii) obligations under any agreement providing for a swap,
ceiling rates, ceiling and floor rates, contingent participation or other
hedging mechanisms with respect to interest payable on any of the items
described above in this definition.
(i) "Deposit Accounts" shall have the meaning set forth in
Article 9 of the UCC and shall include, without limitation, the Existing Deposit
Accounts.
(j) "Event of Default" shall mean an "event of default", as
defined in any of the Notes.
(k) "Existing Deposit Accounts" shall mean the deposit
accounts maintained at Bank One, as follows:
(i) Reliance Warranty Company concentration account
- 00000000;
(ii) Reliance Warranty Company automotive claims
account - 649434149; and
(iii) Reliance Warranty Company CPS claims account -
649434131.
(l) "Existing Securities Accounts" shall mean any existing
Securities Accounts of the Debtor.
(m) "Fee Rights" shall mean all rights to receive and
collect Additional Fees and all other fees and charges of any kind.
(n) "Fixtures" shall have the meaning set forth in Article 9
of the UCC.
(o) "General Intangibles" shall have the meaning set forth
in Article 9 of the UCC.
(p) "Governmental Authority" shall mean any nation or
government, any state or other political subdivision thereof, and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
(q) "Instruments" shall have the meaning set forth in
Article 9 of the UCC.
(r) "Insurance Rights" shall mean all rights, including,
without limitation, rights to payment, from any insurance companies or under
Contracts or insurance policies.
(s) "Intellectual Property" shall mean the collective
reference to all rights, priorities and privileges relating to intellectual
property of any kind, including, without limitation, any copyrights, if any,
copyright licenses, if any, the Patents, if any, the Patent Licenses, if any,
the Trademarks and the Trademark Licenses, if any, computer software and
licenses with respect thereto, and all rights to xxx at law or in equity for any
infringement or other impairment, of any of the foregoing, including the right
to receive all proceeds and damages therefrom.
(t) "Inventory" shall have the meaning set forth in Article
9 of the UCC.
(u) "Investment Property" shall have the meaning set forth
in Article 9 of the UCC.
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(v) "Laws" shall mean any treaty, federal, state or local
statute, law, rule, regulation, ordinance, order, code, policy, approvals,
permits, licenses, authorizations, or rule of common law, now or hereafter in
effect, and any judicial or administrative interpretation thereof by a
Governmental Authority or otherwise, including any judicial or administrative
order, consent decree or judgment.
(w) "Letter of Credit Rights" shall have the meaning set
forth in Article 9 of the UCC.
(x) "Letters of Credit" shall have the meaning set forth in
the UCC.
(y) "Lien" shall mean any mortgage, pledge, hypothecation,
security interest, control arrangement, adverse claim, collateral assignment,
lien (statutory or other), or other security interest or encumbrance or claim of
any kind or nature whatsoever including, without limitation, any conditional
sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, and the filing
of any financing statement under the UCC or Uniform Commercial Code of any
jurisdiction.
(z) "Obligations" shall mean the collective reference to the
unpaid principal of and interest on or under or in connection with each of the
Notes and all existing and future obligations of any kind under the Guaranty and
the other Relevant Documents and all other debts, obligations and liabilities of
the Debtor or Xxxxxx to any or all of the Obligees or Agent of any and every
kind (including, without limitation, interest accruing during or after any Event
of Default and interest accruing during or after any Event of Default based on
the filing any petition in bankruptcy or the commencement of any insolvency,
reorganization or like proceeding, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding), whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with any,
certain or all of the Guaranty, this Agreement, any of the Notes, the Omnibus
Agreement, the Reimbursement Agreement, any of the Relevant Documents or any
other documents or transactions, any replacements or refinancings of any of the
foregoing, in each case whether on account of principal, interest, reimbursement
or other obligations, fees, costs, expenses, damages, indemnities or otherwise
(including, without limitation, all fees and s disbursements of counsel to any
of the Agent or any of the Obligees that are required to be paid by the Debtor
or Xxxxxx pursuant to the terms of any Note, the Reimbursement Agreement, the
Guaranty, the Omnibus Agreement, this Agreement or any of the Relevant
Documents) and all amounts advanced or spent by Agent or any of the Obligees for
the maintenance or preservation of any collateral provided by Debtor or Xxxxxx
as security for the obligations and all other expenditures any of the Agent or
Obligees may make under the provisions of the Guaranty, this Agreement, any of
the Notes, the Reimbursement Agreement or any of the Relevant Documents for the
benefit of Debtor or Xxxxxx.
(aa) "Patent License" shall mean, if any, whether now or
hereafter owned or existing or acquired, all agreements, whether written or
oral, as the same may be amended, restated, supplemented or otherwise modified
from time to time, providing for the grant by or to the Debtor of any right to
use or sell any invention covered by a Patent.
(bb) "Patents" shall mean, if any, whether now or hereafter
owned or existing or acquired, (i) all letters patent of the United States or
any other country and all reissues and extensions thereof, and (ii) all
applications for letters patent of the United States or any other country and
all divisions, continuations and continuations-in-part thereof.
(cc) "Payment Intangibles" shall have the meaning set forth
in Article 9 of the UCC.
(dd) "Person" shall mean any natural person, corporation,
partnership, limited partnership, trust, limited liability company, association,
joint venture, organization or other entity or association of any kind.
(ee) "Proceeds" shall have the meaning set forth in Article 9
of the UCC.
(ff) "Products" shall have the meaning set forth in the UCC.
(gg) "Promissory Notes" shall have the meaning set forth in
Article 9 of the UCC.
(hh) "Receivables" shall mean any right to payment for goods
sold or leased or for services rendered, whether or not such right is evidenced
by an Instrument or Chattel Paper and whether or not it has been earned by
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performance, including, without limitation, any Account, accounts receivable,
contract rights, Chattel Paper, Instruments, all Payment Intangibles,
acceptances, drafts and other obligations of any kind, together with all ledger
sheets, files, records and documents relating to any of the foregoing, including
without limitation, all computer records, programs, storage media and computer
software used or useful in connection therewith, all of the foregoing whether
now or hereafter owned or existing or acquired.
(ii) "Reimbursement Agreement" shall mean the Reimbursement
Agreement dated as of even date herewith, between Warrantech Corporation and
Xxxxxx, as amended, restated, supplemented or modified from time to time.
(jj) "Securities Accounts" shall have the meaning set forth
in the UCC, and shall include, without limitation, the Existing Securities
Accounts.
(kk) "Supporting Obligations" shall have the meaning set
forth in Article 9 of the UCC.
(ll) "Trademark License" shall mean, if any, whether now or
hereafter owned or existing or acquired, any agreement, written or oral, as
amended, restated, supplemented or otherwise modified from time to time,
providing for the grant by or to the Debtor of any right to use any Trademark.
(mm) "Trademarks" shall mean, whether now or hereafter owned
or existing or acquired, (i) all trademarks, trade names, corporate names,
company names, domain names, limited liability company names, business names,
fictitious business names, trade styles, service marks, logos and other source
or business identifiers, and the goodwill associated therewith, now existing or
hereafter adopted or acquired, all registrations and recordings thereof, and all
applications in connection therewith, whether in the United States Patent and
Trademark Office or in any similar office or agency of the United States, any
State thereof or any other country or any political subdivision thereof, or
otherwise, and (ii) all renewals of any of the foregoing.
(nn) "Warrantech Guarantee Agreement" shall mean the
Guarantee Agreement, dated as of January 16, 2004, executed by Warrantech
Corporation in favor of Reliance Insurance Company (in liquidation), as amended,
restated, supplemented or modified from time to time.
1.2 Other Definitional Provisions. The words "hereof," "herein,"
"hereto" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Section, subsection and Schedule references are to this
Agreement unless otherwise specified. All definitions or defined terms which are
a subset of Collateral shall, in all contexts in this Agreement, include each
such item, whether now or hereafter owned or existing or acquired or created,
wherever located.
The meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
ARTICLE 2.
GRANT OF SECURITY INTEREST
2.1 Grant of Security Interest. As collateral security for the prompt
and complete payment and performance when due (whether at the stated maturity,
by acceleration or otherwise) of the Obligations, the Debtor hereby grants to
the Agent, for the ratable benefit of the Obligees, a security interest in and
to all of the Debtor's now or hereafter owned or existing or acquired or created
assets and properties of any and every kind and nature, wherever located,
including, without limitation, all of the Debtor's present and future right,
title and interest in and to all of the following, whether now or hereafter
owned or existing or acquired or created, wherever located (all of such
collateral, the "Collateral"):
(a) all Accounts;
(b) all Chattel Paper;
(c) all Deposit Accounts, including, without limitation, the
Existing Deposit Accounts;
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(d) all Documents;
(e) all Electronic Chattel Paper;
(f) all Equipment;
(g) all Fixtures;
(h) all Contracts, General Intangibles, Payment Intangibles
and Software;
(i) all Intellectual Property;
(j) all Instruments and Promissory Notes;
(k) all Insurance Rights and Fee Rights;
(l) all Inventory;
(m) all Investment Property, including without limitation,
all Existing Securities Accounts, all other Securities Accounts, all Securities,
all Securities Entitlements and all other Investment Property;
(n) all Letter of Credit Rights;
(o) all Letters of Credit;
(p) all Commercial Tort Claims;
(q) all Receivables;
(r) all Supporting Obligations;
(s) all books and records pertaining to the Collateral;
(t) all money and other property not otherwise described
above;
(u) all Debt and other obligations owing to Debtor and not
described above; and
(v) to the extent not otherwise included, all Proceeds and
Products of any and all of the foregoing and all collateral, security and
guarantees given by any Person with respect to any of the foregoing.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES
The Debtor hereby represents and warrants to Secured Party as follows:
3.1 Ownership and Liens. Except for the security interest granted to
Secured Party pursuant to this Agreement, the Debtor owns each item of the
Collateral free and clear of any and all Liens or claims of others. No financing
statement or other public notice with respect to all or any part of the
Collateral is on file or of record in any public office, except such as have
been filed in favor of the Agent pursuant to this Agreement. Debtor is and shall
at all times be the sole customer on all of the Deposit Accounts and Securities
Accounts. No other control arrangement (except the Control Agreement) is in
effect regarding any of the Securities Accounts or Deposit Accounts.
3.2 Perfected First Priority Liens. The security interests granted
pursuant to this Agreement constitute first priority perfected security
interests in the Collateral in favor of the Agent, as collateral security for
the Obligations.
3.3 Tangible Collateral. All of the tangible Collateral is kept at the
location specified in Schedule A.
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3.4 Chief Executive Office. The Debtor has only one place of business
and office, the location of which is specified in Schedule A.
3.5 Collateral Types. The Debtor owns no Instruments, Chattel Paper,
Investment Property, money or any other Collateral with respect to which
possession or control is a method of perfecting Agent's security interest,
except for the Existing Deposit Accounts. The Debtor has no Insurance Rights
except for those rights which shall be identified by Debtor upon Agent's request
and with respect to which Debtor shall fully cooperate with Agent in helping
Agent obtain a first priority perfected security interest in such Insurance
Rights.
3.6 Partnerships. The Debtor is not a partner in any partnership or a
member in any limited liability company.
3.7 Title. Debtor has rights in or the power to transfer the Collateral
and there are no restrictions on transfer or pledge except as set forth in this
Agreement.
3.8 Formation. Debtor was formed and validly exists under the laws of
the State of Delaware.
3.9 Subsidiaries. Debtor does own an equity or other interest of any
kind in any Person.
3.10 Not Instrument. None of the Deposit Accounts is evidenced by an
instrument under the UCC or any Uniform Commercial Code.
3.11 Formation. Debtor was formed and validly exists under the laws of
the State of Delaware.
ARTICLE 4.
COVENANTS
The Debtor covenants and agrees with the Agent that from and after the
date of this Agreement until the Obligations and the Assumed Liabilities shall
have been indefeasibly satisfied in full and, even after said satisfaction, at
all times that there are any dollar amounts in the Account (as defined in the
Omnibus Agreement) or the Warrantech Guarantee Agreement is in effect or any
Obligee(s) have not permanently ceased making loans or advances to Debtor and
Xxxxxx:
4.1 Delivery of Possession Collateral. If any of the Collateral is
evidenced by any Instruments, Investment Property or money, such Collateral
shall be immediately delivered to Agent duly indorsed in a manner satisfactory
to Agent, to be held as Collateral pursuant to this Agreement and/or, in Agent's
discretion, pursuant to separate pledge or security agreements satisfactory to
Agent. If any of the Collateral at any time constitutes Deposit Accounts or
Securities Accounts or other Collateral where perfection may be obtained by
control, upon Agent's request, Agent shall at all times have control of such
Collateral pursuant to methods and documentation satisfactory to Agent. If the
Debtor at any time directly or indirectly acquires an ownership interest in any
entity, it shall, as a condition to such acquisition, cause such entity upon
such acquisition, to guarantee all existing and future obligations of Debtor and
Xxxxxx to all of the Obligees and the Agent and provide Agent with a first
priority perfected security interest in all of such entity's existing and future
assets.
4.2 Maintenance of Perfected Security Interest; Further Documentation.
(a) The Debtor shall maintain the security interest created
by this Agreement as a first priority perfected security interest in the
Collateral and shall defend such security interest against the Liens, claims and
demands of all Persons whomsoever except Agent.
(b) The Debtor shall provide Agent, upon Agent's request,
with assignments and other documents satisfactory to or required by Agent and
otherwise fully cooperate with Agent to ensure that Agent has a first priority
perfected security interest in all Insurance Rights.
(c) At any time and from time to time, upon the written
request of the Agent, and at the sole expense of the Debtor, the Debtor shall
promptly and duly execute and deliver such further instruments and documents and
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take such further actions as the Agent may reasonably request for the purpose of
obtaining or preserving the full benefits of this Agreement and of the rights
and powers herein granted.
4.3 Changes in Locations, Name, etc.
(a) except upon 30 days' prior written notice to Agent where
Agent's security interest in the Collateral is not adversely affected, permit
any of the tangible Collateral to be kept at a location other than the location
listed on Schedule A or the location listed on Schedule B; or
(b) except upon 30 days' prior written notice to Agent where
Agent's security interest in the Collateral is not adversely affected, change
the location of its only office from that listed on Schedule A or open any
additional office except for the office identified on Schedule B; or
(c) change its name, identity or structure or its
jurisdiction of formation; or
(d) acquire any equity or other interest in any Person in
violation of any provision of this Agreement or without first complying with
Section 4.1 and 4.2 of this Agreement.
4.4 Notices. The Debtor shall advise the Agent promptly, in reasonable
detail, of:
(a) any Lien (other than security interests created hereby)
on any of the Collateral;
(b) of the occurrence of any other event which could
reasonably be expected to result in a material adverse change in the aggregate
value of the Collateral or on the security interests created hereby; and
(c) all Insurance Rights identifying all relevant insurance
policies and insurers that have any obligations in respect of such Insurance
Rights, together with contact persons at such insurers and all other information
relating to such Insurance Rights.
4.5 Further Identification of Collateral. At the Agent's request, the
Debtor shall furnish to the Agent from time to time statements and schedules
further identifying and describing the Collateral and such other reports in
connection with the Collateral as the Agent may reasonably request, all in
reasonable detail.
4.6 Prohibition of Fundamental Changes. The Debtor shall not enter into
any transaction of merger or consolidation, or change its form of organization
or business, or liquidate or dissolve (or suffer any liquidation or
dissolution), or purchase or otherwise acquire all or substantially all or a
material portion of the assets of any Person, or sell, assign, lease or
otherwise dispose of (whether in one transaction or in a series of transactions)
all or substantially all or a material portion of its assets (whether now owned
or hereafter acquired) to any Person or enter into any transaction outside the
ordinary course of its business.
4.7 Transactions with Affiliates. Without the Agent's prior written
consent, the Debtor shall not enter into any transaction with any Affiliate or
any other Person, including, without limitation, the purchase, sale or exchange
of property or the rendering of any service, except in the ordinary course of
and pursuant to the reasonable requirements of the Debtor's business and upon
fair and reasonable terms no less favorable to the Debtor than it would obtain
in a comparable arm's length transaction with a Person not an Affiliate.
4.8 Abandonment. The Debtor shall not abandon the operation of its
business or otherwise cease to diligently pursue the operation of its business.
4.9 Amendments. The Debtor shall not agree to any amendment or
modification of its Certificate or Articles of Incorporation without the prior
written consent of Secured Party.
4.10 Distributions. The Debtor shall not directly or indirectly, declare
or pay any distributions, or purchase, redeem, retire, or otherwise acquire for
value any of its securities or membership interests now or hereafter
outstanding, or make any distribution of assets to members or managers, as such,
whether in cash, assets, or in obligations or other property of the Debtor, or
allocate or otherwise set apart any sum for the payment of any distribution on,
or for the purchase, redemption, or retirement of any of its equity or
membership interests, or make any other distribution by reduction or return of
capital or otherwise in respect of any of its equity or membership interests.
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4.11 Liens. The Debtor shall not create or permit or suffer to exist any
Lien on any of its assets or properties except as created pursuant to this
Agreement
4.12 No Violation of Laws. Debtor shall comply with all Laws applicable
to it.
4.13 Possession. Where Collateral is in the possession of a third party,
Debtor will join with Agent in notifying the third party of Agent" security
interest and obtaining an acknowledgment from the third party that it is holding
the Collateral for the benefit of Agent.
4.14 Payment of Taxes and Claims. The Debtor shall pay and discharge, or
cause to be paid and discharged, all taxes, assessments and governmental charges
or levies imposed upon it or upon its income or profits or upon any of the
Collateral, and all claims or obligations that, if unpaid, could become a Lien,
upon any Collateral or any part thereof.
4.15 Control of Collateral. The Collateral shall at all times be subject
to the exclusive control of Agent. Debtor will cooperate with Agent in obtaining
control with respect to Collateral consisting of: (a) Deposit Accounts; (b)
Investment Property; (c) Letter of Credit Rights; and (d) Electronic Chattel
Paper .
4.16 Marking of Chattel Paper. Debtor will not create any Chattel Paper
without placing a legend on the Chattel Paper acceptable to Agent indicating
that Agent has a security interest in the Chattel Paper.
4.17 Inspection. The Agent may inspect any Collateral in the Debtor's
possession, at any time upon reasonable notice.
4.18 Preservation of Existence. Debtor shall preserve its corporate
existence, and not change its state of formation.
4.19 Agent's Collection Rights. Agent shall have the right at any time
to enforce Debtor's rights against Debtor's account debtors and obligors.
4.20 No Collection Obligation. Agent has no duty to collect any income
accruing on the Collateral or to preserve any rights relating to the Collateral.
4.21 No Disposition of Collateral. Agent does not authorize, and Debtor
agrees not to:
(a) make any sales or leases of any of the Collateral;
(b) license any of the Collateral; or
(c) grant any other security interest or Lien in or on any
of the Collateral.
4.22 Risk of Loss. Debtor has the risk of loss of the Collateral.
ARTICLE 5.
RECEIVABLES
Notwithstanding any other provision of this Agreement, the Debtor shall
remain liable under each of the Receivables to observe and perform all the
conditions and obligations to be observed and performed by it thereunder, all in
accordance with the terms of any agreement or arrangement giving rise to each
such Receivable. Neither Agent nor any of the Obligees shall have any obligation
or liability under any Receivable (or any agreement or arrangement giving rise
thereto) by reason of or arising out of this Agreement or the receipt by the
Agent for the ratable benefit of the Obligees or by any of the Obligees of any
payment relating to such Receivable pursuant hereto, nor shall the Agent or any
of the Obligees be obligated in any manner to perform any of the obligations of
the Debtor under or pursuant to any Receivable (or any agreement or arrangement
giving rise thereto), to make any payment, to make any inquiry as to the nature
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or the sufficiency of any payment received by it or as to the sufficiency of any
performance by any party under any Receivable (or any agreement or arrangement
giving rise thereto), to present or file any claim, to take any action to
enforce any performance or to collect the payment of any amounts which may have
been assigned to it or to which it may be entitled at any time or times.
ARTICLE 6.
CONTRACTS
6.1 Debtor Remains Liable under Contracts. Notwithstanding any other
provision of this Agreement, the Debtor shall remain liable under each of the
Contracts to observe and perform all the conditions and obligations to be
observed and performed by it thereunder, all in accordance with and pursuant to
the terms and provisions of such Contract. The Agent and the Obligees shall have
no obligation or liability under any Contract by reason of or arising out of
this Agreement or the receipt by the Agent or any of the Obligees of any payment
relating to such Contract pursuant hereto, nor shall the Agent or any of the
Obligees be obligated in any manner to perform any of the obligations of the
Debtor under or pursuant to any Contract, to make any payment, to make any
inquiry as to the nature or the sufficiency of any payment received by it or as
to the sufficiency of any performance by any party under any Contract, to
present or file any claim, to take any action to enforce any performance or to
collect the payment of any amounts which may have been assigned to it or to
which it may be entitled at any time or times.
6.2 Communication With Contracting Parties. The Agent in the name of the
Obligees or in the name of Debtor or others may at any time after the occurrence
and during the continuance of an Event of Default communicate with parties to
the Contracts to verify, to the Agent's satisfaction, the existence, amount and
terms of any Contracts.
ARTICLE 7.
OTHER PROVISIONS
7.1 Agent Appointed Attorney-in-Fact. The Debtor hereby irrevocably
appoints the Agent as the Debtor's attorney-in-fact, with full authority in the
place and stead of the Debtor and in the name of the Debtor, at any time, to
take any action and to execute any instrument which the Agent may deem necessary
or advisable to accomplish the purposes of this Agreement, including, without
limitation:
(a) to execute and/or file financing statements and
documents to be of public record covering the Collateral and notify third
parties of Agent's security interest and take any actions deemed necessary or
advisable by Agent to perfect or protect its security interest in the
Collateral;
(b) to pay and discharge taxes, Liens or other encumbrances
levied or placed on or threatened against the Collateral, and to ask, demand,
collect, xxx for, recover, settle, compromise, receive and give acquittance and
receipts for moneys due and to become due under or in respect of any of the
Collateral;
(c) after an Event of Default, to receive, endorse, assign,
and collect any and all checks, notes, drafts and other negotiable and
non-negotiable instruments, Documents and Chattel Paper, and the Debtor waives
notice of presentment, protest and non-payment of any Instrument, Document or
Chattel Paper so endorsed or assigned;
(d) to file any claims or take any action or institute any
proceedings which the Agent may deem necessary or desirable for the collection
of any of the Collateral or otherwise to enforce the rights of the Agent with
respect to any of the Collateral;
(e) after an Event of Default, to sell, transfer, assign or
otherwise deal in or with the Collateral or the proceeds or avails thereof, as a
secured party;
(f) to make any reasonable allowances and other reasonable
adjustments with respect to any of the Collateral and execute assignments or
security interest grants relating to Insurance Rights and other Collateral;
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(g) after an Event of Default, to sign the Debtor's name on
any document, on invoices relating to any Account, on drafts against customers,
on schedules of assignments of Accounts, on checks from investors, on notices of
assignment, on verifications of accounts, and on notices to customers;
(h) after an Event of Default, to notify the post office
authorities to change the address for delivery of the Debtor's mail to an
address designated by the Agent;
(i) after an Event of Default, to receive, open and dispose
of all mail addressed to the Debtor;
(j) to do all that Agent deems necessary to withdraw any and
all monies from any Deposit Accounts, Securities Accounts or other accounts;
(k) after an Event of Default, to send requests for
verification of accounts to the Debtor's customers;
(l) after an Event of Default, to deliver any notices which
Agent deems appropriate to the telephone company controlling Debtor's telephone
lines; and
(m) to take any and all actions with regard to the
Receivables.
The Debtor hereby ratifies and approves all acts of the Agent, as its
attorney in-fact, taken pursuant to and in accordance with this Section 5.1, and
the Agent, as its attorney-in-fact, will not be liable for any acts of
commission or omission, nor for any error of judgment or mistake of fact or law
other than acts constituting intentional or reckless misconduct. This power,
being coupled with an interest, is irrevocable so long as this Agreement remains
in effect.
The Debtor hereby agrees to take all actions and execute and file all
documents deemed necessary or desirable by Agent to create, perfect and/or
protect Agent's security interest in the Collateral and/or the priority thereof.
7.2 Remedies.
(a) Should an Event of Default occur, Debtor will pay Agent
all costs reasonably incurred by the Agent or the Obligees for the purpose of
enforcing its rights hereunder, under the Guaranty or under any of the Relevant
Documents, including, without limitation:
(i) costs of foreclosure;
(ii) costs of obtaining money damages; and
(iii) a reasonable fee for the services of attorneys
employed by Agent or the Obligees for any purpose related to this Agreement, the
Guaranty, the Relevant Documents or the Obligations, including, without
limitation, consultation, drafting documents, sending notices or instituting,
prosecuting or defending litigation or arbitration.
(b) If any Event of Default shall have occurred, the Agent
may exercise in respect of the Collateral, in addition to other rights and
remedies provided for herein or otherwise available to it at law or equity, all
rights and remedies of a secured party on default under any applicable Uniform
Commercial Code. Upon any Event of Default, Agent shall have the right to pursue
any of the following remedies separately, successively or simultaneously:
(i) File suit and obtain judgment and, in
conjunction with any action, Agent may seek any ancillary remedies provided by
law, including levy of attachment and garnishment.
(ii) Take possession of any Collateral if not already
in its possession without demand and without legal process. Upon Agent's demand,
Debtor will assemble and make the Collateral available to Agent as it directs.
10
Debtor grants to Agent the right, for this purpose, to enter into or on any
premises where Collateral may be located.
(iii) Without taking possession, sell, lease or
otherwise dispose of the Collateral at public or private sale in accordance with
any applicable Uniform Commercial Code.
(c) No delay or omission by Agent to exercise any right or
remedy by accruing upon any Event of Default shall: (i) impair any right or
remedy, (ii) waive any Event of Default or operate as an acquiescence to the
Event of Default, or (iii) affect any subsequent Event of Default of the same or
of a different nature.
(d) Agent shall give Debtor such notice of any private or
public sale as may be required by any applicable Uniform Commercial Code.
(e) Agent has no obligation to clean-up or otherwise prepare
the Collateral for sale.
(f) Agent has no obligation to attempt to satisfy the
Obligations by collecting them from any other Person liable for them and Agent
may release, modify or waive any collateral provided by any other Person to
secure any of the Obligations, all without affecting Agent's rights against
Debtor. Debtor waives any right it may have to require Secured Party to pursue
any third person for any of the Obligations.
(g) Agent may comply with any applicable state or federal
law requirements in connection with a disposition of the Collateral and
compliance will not be considered adversely to affect the commercial
reasonableness of any sale of the Collateral.
(h) Agent may sell the Collateral without giving any
warranties as to the Collateral. Agent may specifically disclaim any warranties
of title or the like. This procedure will not be considered adversely to affect
the commercial reasonableness of any sale of the Collateral.
(i) If Agent sells any of the Collateral upon credit, Debtor
will be credited only with payments actually made by the purchaser, received by
Agent and applied to the indebtedness of the purchaser. In the event the
purchaser fails to pay for the Collateral, Agent may resell the Collateral and
Debtor shall be credited with the proceeds of the sale.
(j) In the event Agent or any of the Obligees purchases any
of the Collateral being sold, Agent or the Obligees may pay for the Collateral
by crediting some or all of the Obligations of the Debtor.
(k) Agent has no obligation to marshal any assets in favor
of Debtor, or against or in payment of: (i) the Notes, (ii) any of the other
Obligations, or (iii) any other obligation owed to Agent or any of the Obligees
by Debtor or any other Person.
(l) In the event the Agent seeks to take possession of all
or any portion of the Collateral by judicial process, Debtor irrevocably waives
(i) the posting of any bond, surety or security with respect thereto which might
otherwise be required, (ii) any demand for possession prior to the commencement
of any suit or action to recover the Collateral, and (iii) any requirement that
the Agent retain possession and not dispose of any Collateral until after trial
or final judgment.
(m) The Agent shall have the right, in addition to any
rights and remedies provided hereunder, the Guaranty, the Notes, the Omnibus
Agreement, any Relevant Documents, and at law, without prior notice to the
Debtor, to set-off and appropriate and apply any and all deposits and any other
credits, indebtedness or claims, whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by the Agent or any
of the Obligees to or for the credit or the account of the Debtor or Xxxxxx or
any of their respective Affiliates. No right of set-off shall be deemed to have
been waived by any act or conduct on the part of the Agent or the Obligees, or
by any neglect to exercise such right of set-off, or by any delay in doing so.
Every right of set-off shall continue in full force and effect until
specifically waived or released by an instrument in writing executed by the
Agent.
(n) The Agent may withdraw funds from the Deposit Accounts
and apply such funds to the Obligations.
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(o) The enumeration of the foregoing rights and remedies is
not intended to be exclusive, and such rights and remedies are in addition to
and not by way of limitation of any other rights or remedies the Agent may have
under the Uniform Commercial Code or other applicable law or any of the Notes,
the Omnibus Agreement or any of the Relevant Documents. The Agent shall have the
right, in its sole discretion, to determine which rights and remedies, and in
which order any of the same, are to be exercised, and to determine which
Collateral is to be proceeded against and in which order and the exercise of any
right or remedy shall not preclude the exercise of any others, all of which
shall be cumulative.
ARTICLE 8.
MISCELLANEOUS PROVISIONS
8.1 Severability. Any provision of this Agreement which is prohibited or
void, invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
8.2 Amendments in Writing; No Waiver; Cumulative Remedies.
(a) Amendments in Writing. None of the terms or provisions
of this Agreement may be amended, supplemented or otherwise modified except by a
written instrument executed by the Debtor and the Agent.
(b) No Waiver by Course of Conduct. The Agent shall not by
any act, delay, indulgence, omission or otherwise be deemed to have waived any
right or remedy hereunder or to have acquiesced in any Event of Default. No
failure to exercise, nor any delay in exercising, on the part of the Agent, any
right, power or privilege hereunder shall operate as a waiver thereof. No single
or partial exercise of any right, power or privilege hereunder shall preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. A waiver by the Agent of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or remedy which the Agent
would otherwise have on any future occasion.
(c) Remedies Cumulative. The rights and remedies herein
provided are cumulative, may be exercised singly or concurrently and are not
exclusive of any other rights or remedies provided by law or any documents.
8.3 Further Assurances. To the extent that under existing law, it is
impossible for Secured Party to obtain a perfected security interest in any item
of Collateral, and the law is changed to make it possible for the Agent to
obtain a perfected security interest in such item of Collateral, the Debtor
agrees to execute such documentation and take all actions as are reasonably
requested by Agent to provide Agent with a perfected security interest in such
item of Collateral. Debtor also hereby agrees to provide Agent with all further
documents and to take all further acts so that Agent's security interest in the
Collateral and other rights under this Agreement are fully protected and
perfected.
8.4 Section Headings. The Section and subsection headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
8.5 Successors and Assigns. This Agreement shall be binding upon the
Debtor and the successors and assigns of the Debtor and all persons who become
bound as a debtor to this Agreement and shall inure to the benefit of the Agent
and the Obligees and their respective successors and assigns. Debtor may not
assign, delegate or transfer its obligations or rights under this Agreement.
Each of Agent and the Obligees may assign or transfer its rights and/or
obligations under this Agreement without notice to Debtor or Debtor's consent.
If an assignment is made, Debtor shall render performance under this Agreement
to the assignee. Debtor waives and will not assert against any assignee any
claims, defenses or set offs which Debtor could assert against Agent or any
Obligee except defenses which cannot be waived. Without limiting Agent's or any
Obligee's rights or remedies or Debtor's obligations, Agent will use reasonable
efforts to notify Debtor of any assignment by Agent or any Obligee under this
Section 8.5.
12
8.6 Governing Law. This Agreement shall be governed by, and construed
and interpreted in accordance with, the law of the State of New York without
giving effect to conflict of laws principles except to the extent the Uniform
Commercial Code mandates the application of the laws of Delaware or other
jurisdictions.
8.7 Addresses for Notices. 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 Agent or any Obligee, to Warrantech Corporation,
0000 Xxxxxxx 000, Xxxxx 000, Xxxxxxx, XX 00000, Attn.: Xxxx San Antonio,
Telecopier No. (000) 000-0000; if to Debtor, to c/x Xxxxxx Financial Solutions,
LLC, 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.
8.8 Continuing Security Interest. This Agreement shall create a
continuing security interest in the Collateral and shall remain in full force
and effect until the indefeasible payment in full of all Obligations, Assumed
Liabilities and Dealer Obligor Liabilities, and until the Obligees voluntarily
permanently ceasing to make loans under the Omnibus Agreement and thereafter for
as long as there are any amounts in the Account (as defined in the Omnibus
Agreement) or the Warrantech Guarantee Agreement is in effect or any Obligees
have not permanently ceased making loans or advances to Debtor.
8.9 No Limitation on Remedies. This Agreement is in addition to, and not
in limitation of, any other rights and remedies the Secured Party may have by
virtue of any other instrument securing the Obligations or any other documents
or by law or otherwise.
8.10 Agent. The Agent, in its capacity as agent, shall be presumed at
all times and in all instances to be acting on behalf of and for the ratable
benefit of the Obligees.
8.11 Appointment. Each Obligee hereby irrevocably designates and
appoints Warrantech Corporation as the agent of such Obligee under this
Agreement and the Control Agreement, and each such Obligee irrevocably
authorizes Agent as the Agent for such Obligee, to take such action on its
behalf under the provisions of this Agreement and the Control Agreement and to
exercise such powers and perform such duties as are expressly delegated to the
Agent by the terms of this Agreement or the Control Agreement, together with
such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement, the Agent shall not have
any duties or responsibilities except those expressly set forth herein, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other document or otherwise
exist against the Agent. The Agent, among other things, is hereby authorized by
the Obligees to act as the agent of the Obligees for purposes of perfecting the
security interest in the Collateral, controlling the Collateral, holding all
Collateral and exercising remedies in connection therewith.
8.12 Delegation of Duties. The Agent may execute any of its duties under
this Agreement by or through agents or attorneys-in-fact and shall be entitled
to advice of counsel concerning all matters pertaining to such duties. The Agent
shall not be responsible for the negligence or misconduct of any agents or
attorneys in-fact selected by it with reasonable care.
8.13 Exculpatory Provisions. To the maximum extent permitted by
applicable law, neither the Agent nor any of its officers, directors,
shareholders, partners, employees, agents or attorneys-in-fact shall be liable
for any action lawfully taken or lawfully omitted to be taken by it or such
Person under or in connection with this Agreement or any other document.
8.14 Reliance by Agent. The Agent shall be entitled to rely, and shall
be fully protected in relying, upon (a) any note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telex, fax or
teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and (b) advice and statements of legal counsel (including,
without limitation, counsel to the Debtor), independent accounts and other
experts selected by the Agent.
13
8.15 Agent in Its Individual Capacity. With respect to Obligations owing
to Agent, the Agent shall have the same rights and powers under this Agreement
and other documents as any Obligee and may exercise the same as though it were
not the Agent, and the terms "Obligee" and "Obligees" shall include Warrantech
Corporation or any other Agent in its individual capacity.
8.16 Successor Agent.
(a) The Agent may resign as Agent upon ten days' notice to
the Obligees. If the Agent shall resign as Agent under this Agreement, then the
Obligees, on whatever basis they agree to, shall appoint from among the Obligees
a successor Agent for the Obligees.
(b) Upon such appointment, (i) the successor agent shall
succeed to the rights, powers and duties of the Agent, (ii) the term "Agent"
shall mean such successor agent effective upon its appointment, and (iii) the
former Agent's rights, powers and duties as Agent shall be terminated, without
any other or further act or deed on the part of such former Agent or any of the
parties to this Agreement or any holders of the Obligations.
(c) After any retiring Agent's resignation as Agent, the
provisions of this Section shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent under this Agreement.
(d) The Debtor and the Obligees shall execute all documents
reasonably required by the Obligees to provide the new Agent for the ratable
benefit of the Obligees, with a first priority and only perfected security
interest in the Collateral and all collateral in which the Agent purportedly has
a security interest.
8.17 Waiver of Trial by Jury; Waiver and Other Agreements. 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, IT
BEING AGREED THAT ALL SUCH TRIALS SHALL BE CONDUCTED SOLELY BY A JUDGE. EACH OF
THE PARTIES CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF EITHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE OTHER WOULD NOT, IN THE EVENT
OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS. 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 HAS DECIDED NOT TO BE
REPRESENTED BY INDEPENDENT COUNSEL IN CONNECTION WITH THIS AGREEMENT, IT
IRREVOCABLY AND FOREVER WAIVES ANY AND ALL DEFENSES OR RIGHTS ARISING OUT OF OR
RELATED TO SAID DECISION.
8.18 Construction of Certain Words. 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".
8.19 Jurisdiction. 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, Florida, California or _________, as selected by
Agent. 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.
8.20 Drafting by All. This Agreement shall be construed without regard
to the principal that a contract should be construed against the draftsperson,
and the parties to this Agreement shall be deemed equal draftspersons of this
Agreement.
14
8.21 Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. Facsimile
signatures on the signature pages of this Agreement shall be effective and bind
the parties as if such signatures were original signatures.
8.22 Reinstatement. This Agreement shall continue to be effective or be
reinstated, as the case may be, if at any time any amount received by the
Secured Party or any Obligee hereunder or pursuant hereto or under any of the
Notes or any of the other Relevant Documents is rescinded or must otherwise be
restored or returned by the Secured Party or any Obligee upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of Debtor or any other
Person or upon the appointment of intervenor or conservator of, or trustee or
similar official for, Debtor or any other Person or any substantial part of its
or his assets, or upon the entry of an order by a bankruptcy court avoiding the
payment of such amount, all as though such payments had not been made, or for
any other reason.
8.23 Costs and Expenses. Debtor shall promptly pay (a) all filing fees
and taxes of any kind or nature and in connection with the filing of financing
statements in connection with any of this Agreement, the Control Agreement, the
Guaranty, the Notes, the Omnibus Agreement or any Relevant Document, and (b) all
costs and expenses of the Agent and Obligees, including without limitation,
reasonable attorneys' fees and disbursements, (i) resulting from Debtor's breach
of this Agreement, the Control Agreement, the Guaranty, the Notes, the Omnibus
Agreement or any Relevant Document, (ii) in connection with the enforcement of
rights and remedies and collection of amounts owing under this Agreement, the
Control Agreement, the Guaranty, the Notes, the Omnibus Agreement or any
Relevant Document, and/or (iii) relating to this Agreement, the Control
Agreement, the Guaranty, the Notes, the Omnibus Agreement or any Relevant
Document or the amendment or modification of any of the foregoing.
[End of page.]
15
IN WITNESS WHEREOF, the undersigned have caused this Security Agreement
to be duly executed and delivered as of the date first above written.
DEBTOR:
Reliance Warranty Company
By:
-------------------------
Name: Xxxxxx Xxxxxx
Title: President
Accepted and Agreed to:
SECURED PARTY:
Warrantech Corporation, as agent
By:
---------------------------
Name:
Title:
Accepted and Agreed as to Sections 6.10 through 6.16:
Warrantech Corporation
By:
---------------------------
Name:
Title:
WCPS of Florida, Inc.
By:
---------------------------
Name:
Title:
Warrantech Consumer Product Services, Inc.
By:
---------------------------
Name:
Title:
Warrantech Help Desk, Inc.
By:
---------------------------
Name:
Title:
16
Warrantech Home Assurance Company
By:
---------------------------
Name:
Title:
Warrantech Home Service Company
By:
---------------------------
Name:
Title:
Warrantech Automotive of Florida, Inc.
By:
---------------------------
Name:
Title:
Vemeco, Inc.
By:
---------------------------
Name:
Title:
Warrantech Automotive, Inc.
By:
---------------------------
Name:
Title:
17
SCHEDULE A
0000 Xxxxxxxxx Xxxx. XX
Xxxxx 000
Xxxx Xxxxx, XX 00000
18
SCHEDULE B
19
