Exhibit 10.19.1
AMENDMENT #1 TO DEALER AGREEMENT
ASSIGNMENTS, CONFIDENTIALITY, T&Cs
THIS AMENDMENT #1 (herein "Amendment") to the Dealer Agreement
("Agreement") is made this ___ day of July, 2005 with an effective date of July
1, 2005 ("Effective Date") by and among Conn Appliances, a Texas corporation
("Conn"), CAI, L.P., a Texas limited partnership ("CAILP"), Conn and CAI having
their principal places of business at 3295 College Street, Beaumont, Texas 77701
(except where otherwise noted, Conn and CAI collectively herein referred to as
"Dealer"), Federal Warranty Service Corporation, an Illinois corporation having
its principal place of business at 260 Interstate North Circle, SE, Atlanta, GA
30339 ("Federal"), and Voyager Service Programs, Inc., a Florida corporation
having its principal place of business at 11222 Quail Roost Drive, Miami,
Florida 33157 ("Voyager").
WHEREAS, Dealer and Voyager entered into a "Dealer Agreement" stated as
effective January 1, 1998 (the "Agreement") concerning the sale by Dealer of
Service Contracts covering certain specified merchandise sold by Dealer, under
which Service Contracts Voyager was the obligor, and which Service Contracts
were administered by Dealer; and
WHEREAS, The parties desire for Federal to assume the rights and duties of
Voyager under the Agreement, and to provide for the replacement of the
contractual liability insurance policy by a different insurer affiliate of
Federal; and
WHEREAS, The parties desire for CAILP to assume the rights and duties of Conn
under the Agreement.
NOW THEREFORE, in consideration of the mutual covenants and promises set forth
herein and in the Agreement, the parties do hereby agree as follows:
1. Voyager hereby assigns, and Federal hereby assumes, all of the rights,
duties and obligations of Voyager under the Agreement.
2. Conn hereby assigns, and CAILP hereby assumes, all of the rights, duties
and obligations of Dealer under the Agreement.
3. Exhibit A of the Agreement is hereby replaced by the attached Amendment #1
Exhibit A. Dealer shall implement the new Service Contract forms set forth
in Exhibit A, and shall cease printing, offering, selling or issuing any
other Service Contract forms, no later than the date selected by Federal,
which shall not be sooner than ninety (90) days after the effective date of
this Amendment #2, and shall reasonably reflect the time needed by Dealer
to complete such implementation. Dealer shall provide Federal at least
thirty (30) days' notice prior to the actual implementation date selected
by Dealer. Dealer shall destroy all Service Contract forms which do not
comply with the attached Exhibit A not later than thirty (30) days
following the actual implementation date herein referenced.
4. All references within the Agreement to "Voyager," excluding references to
"Voyager Property & Casualty Insurance Company" but including references
within other terms such as "Voyager Fee" which incorporate the name
"Voyager," are hereby changed to "Federal."
5. Paragraph 13 Notices of the Agreement, is hereby amended to indicate
Federal's and Dealer's addresses for notices as:
If to Federal: Federal Warranty Service Corporation
260 Interstate North Circle, SE,
Atlanta, Georgia 30339-2110
Attn: President
With copy to:
American Bankers Insurance Company of Florida
11222 Quail Roost Drive
Miami, Florida 33157-6596
Attn: PPP Channel Attorney
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If to Dealer: CAI, L.P.
3295 College Street
Beaumont, Texas 77701
Attn: Mr. Thomas Franks
6. All references within the Agreement to "Voyager Property & Casualty
Insurance Company" and "VP&C" are hereby changed to "American Bankers
Insurance Company" and "ABIC" respectively.
7. Not later than the implementation date referenced in Paragraph 2 of this
Amendment #1, Federal shall obtain a replacement contractual liability
insurance policy from American Bankers Insurance Company of Florida. Upon
issuance of the new American Bankers policy, Dealer agrees that the
previous policy issued by Voyager Property & Casualty Insurance Company
shall be cancelled, however the previous policy will continue to provide
coverage for Voyager-obligor Service Contracts issued prior to such
cancellation.
8. The "Confidentiality and Non-Disclosure Agreement" attached hereto as
Amendment #1 Exhibit B, shall be executed by the parties and attached to
and made part of the Agreement as Exhibit E.
IN WITNESS HEREOF, the parties have signed this Amendment effective as of the
date first above written.
Voyager Service Programs, Inc. Conn Appliances, Inc.
By: /s/ Joe Erderman By: /s/ David Atnip 7/21/05
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Title: Vice President Title: Treasurer
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Federal Warranty Service Corporation CAI, L.P.
By: /s/ Joe Erderman By: /s/ David Atnip 7/21/05
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Title: Vice President Title: Treasurer
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AMENDMENT #1 EXHIBIT A (Agreement Exhibit A)
SAMPLE SERVICE CONTRACT FORM
SERVICE AGREEMENT
In consideration of the amount paid on the invoice for this Service
Agreement ("Agreement"), and except as hereinafter provided, Federal Warranty
Service Corporation will make all necessary repairs and replacement of parts for
the appliance or product identified on this invoice at the owner's address as
identified on the invoice. Pre-existing conditions are included in this
Agreement. This Agreement is not a contract of Insurance.
TERMS AND CONDITIONS
(1) Service shall be rendered during normal working hours and within the
territory normally serviced by Federal Warranty Service Corporation
retained and qualified service administrators.
(2) This Agreement excludes (a) damages caused by spillage of liquids,
failure to maintain proper operating fluid levels, insect infestations
or by other improper or negligent use of the products; (b) damages
caused by corrosion or rust; (c) theft or damage caused by flood,
fire, hurricane, tornado, or all other acts of God; (d) consumable
items such as knobs, cabinetry, trim, antennas, software, disks,
needles, cartridges, glass, bulbs, belts, blades, tires, oil, filters,
spark plugs, batteries, etc.; (e) commercial use of the product; (f)
routine cleaning and maintenance of products, as detailed in owners
manual, such as air conditioners and lawn and garden products; (g)
Special, consequential or indirect damages, whether by contract, tort,
or negligence; (h) repair or replacement covered by the manufacturer's
warranty; (i) verified food loss damages in excess of $ 150 on
refrigerators and $ 250 on freezers; (j) damages/repairs covered by
owner's other insurance coverages; or (k) use of the product in a
manner which would void the manufacturer's warranty before or after
the warranty period.
(3) Owner has the right at any time to request in writing to Federal
Warranty Service Corporation or its designated service administrator
the cancellation of this Agreement. Owner may return this Agreement
within twenty (20) days of the date this Agreement was provided to
them, or within ten (10) days if the Agreement was delivered at the
time of sale. If no claim was made, the Agreement is void and the full
purchase price will be refunded. A penalty fee of ten (10) percent of
the amount outstanding per month on a refund that is not made within
forty-five (45) days will be paid. These provisions apply only to the
original purchaser of the Agreement and will not be extended to any
additional owners for the product. In the event the seller cancels the
Agreement, a written notice will be mailed to the last known address
at least five (5) days prior to cancellation, which shall state the
effective date of cancellation and the reason for cancellation.
However, prior notice is not required if the reason for cancellation
is nonpayment of the provider fee, a material misrepresentation
relating to the covered property or its use, or a substantial breach
of duties relating to the covered product or its use. Seller may
cancel this Agreement at any time and a refund of 100% of the amount
paid will be made to the owner. Any refunds made by Seller will be
less the amounts paid on the owner's behalf for repairs.
(4) Our obligations under this Agreement are guaranteed by an insurance
policy issued by American Bankers Insurance Company of Florida. If a
covered claim is not paid within sixty (60) days after proof of loss
has been filed, you may file a claim directly with the Insurance
Company. Please call 1-800-842-2244.
(5) This Agreement is subject to review by seller before being considered
for renewal.
(6) Federal Warranty Service Corp's limit of liability is the replacement
value of the product.
a. Should Federal Warranty Service Corporation be unable to repair a
product due to part unavailability, or other circumstances,
Federal Warranty Service Corporation may choose, at its option,
to either replace it with a product of like value, a refurbished
product, or credit monies towards the purchase of a new product.
b. If a product is replaced under the terms of this Agreement, the
customer may purchase a new Agreement at new product pricing.
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(7) This Agreement is transferable upon Federal Warranty Service
Corporation or its service administrator receiving a written request
from the original owner.
This instrument sets forth the entire agreement between the
parties and no representation, promise or condition not contained
herein shall modify its terms. If services are required that are not
included in this Service Agreement, they will by provided at regular
repair rates.
Federal Warranty Service Corporation has retained CAI, LP
("Conn's"), as its service administrator. Conn's provides customer
assistance at these locations and telephone numbers:
Area Service Center Address Telephone
Dallas
Corpus Christi
Orange-Port Arthur-Bridge City 2686 Laurel, Beaumont ,TX 409 735 7166
Beaumont 2686 Laurel, Beaumont ,TX 409 832 9938
Lake Charles 2678 Laurel, Beaumont, TX 800 634 7118
Houston Area 635 Blue Bell, Houston, TX 281 591 6611
San Antonio 1974 S. Alamo, San Antonio, TX 210 354 1000
Lafayette 2910 JohnstonSt, Lafayette, LA 318 233 8427
ARBITRATION PROVISION
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READ THE FOLLOWING ARBITRATION PROVISION ("PROVISION") CAREFULLY. IT LIMITS
CERTAIN OF YOUR RIGHTS, INCLUDING YOUR RIGHT TO OBTAIN RELIEF OR DAMAGES
THROUGH COURT ACTION.
As used in this Provision, "You" and "Your" mean the person or persons
named in this [Service Agreement], and all of his/her heirs, survivors,
assigns and representatives. And, "We" and "Us" shall mean the Obligor
identified above and shall be deemed to include all of its agents,
affiliates, successors and assigns, and any retailer or distributor of its
products, and all of the dealers, licensees, and employees of any of the
foregoing entities
Any and all claims, disputes, or controversies of any nature whatsoever
(whether in contract, tort or otherwise, including statutory, common law,
fraud (whether by misrepresentation or by omission) or other intentional
tort, property, or equitable claims) arising out of, relating to, or in
connection with (1) this [Service Agreement] or any prior [Service
Agreement], and the purchase thereof; and (2) the validity, scope,
interpretation, or enforceability of this Provision or of the entire
Agreement ("Claim"), shall be resolved by binding arbitration before a
single arbitrator. All arbitrations shall be administered by the American
Arbitration Association ("AAA") in accordance with its Expedited Procedures
of the Commercial Arbitration Rules of the AAA in effect at the time the
Claim is filed. The terms of this Provision shall control any inconsistency
between the AAA's Rules and this Provision. You may obtain a copy of the
AAA's Rules by calling (800) 778-7879. Upon written request We will advance
to You either all or part of the fees of the AAA and of the arbitrator. The
arbitrator will decide whether You or We will be responsible for these
fees. The arbitrator shall apply relevant substantive law and applicable
statute of limitations and shall provide written, reasoned findings of fact
and conclusions of law. This Provision is part of a transaction involving
interstate commerce and shall be governed by the Federal Arbitration Act, 9
U.S.C. ss. 1 et seq. If any portion of this Arbitration Provision is deemed
invalid or unenforceable, it shall not invalidate the remaining portions of
the Arbitration Provision. This Arbitration Provision shall inure to the
benefit of and be binding on You and Us and its Provision shall continue in
full force and effect subsequent to and notwithstanding the expiration of
termination of this [Service Agreement].
You agree that any arbitration proceeding will only consider Your Claims.
Claims by, or on behalf of, other individuals will not be arbitrated in any
proceeding that is considering Your Claims.
You and We Understand and agree that because of this arbitration PROVISION
neither you nor us will have the right to go to court except as provided
above or to have a jury trial or to participate as any member of a class of
claimants pertaining to any claim.
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THIS CONTRACT PROVIDES LIMITED SERVICE FOR REASONABLE REPAIR OR REPLACEMENT
TO SPECIFICALLY DESCRIBED ITEMS.
THIS SERVICE CONTRACT IS INCLUSIVE OF THE MANUFACTURER'S WARRANTY; IT DOES
NOT REPLACE THE MANUFACTURER'S WARRANTY, BUT DOES PROVIDE CERTAIN
ADDITIONAL BENEFITS DURING THE TERM OF THE MANUFACTURER'S WARRANTY.
Notice for Texas residents: If YOU have complaints or questions regarding
this AGREEMENT, YOU may contact the Texas Department of Licensing and
Regulation at the following address and telephone number: Texas Department
of Licensing and Regulation, Post Office Box 12157, Austin, Texas 78711;
512-463-6599 or 800-803-9202.
To learn more about how Federal Warranty Service Corporation, an
Assurant Solutions company, uses your information, please visit our website
at www.assurantsolutions.com
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AMENDMENT #1 EXHIBIT B (Agreement Exhibit E)
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
THIS CONFIDENTIALITY AND NON-DISCLOSURE [AND JOINT MARKETING] AGREEMENT
("Agreement") is effective ______, 200__ between Conn Appliances and CAI, L.P.
(Conn and CAI collectively the "Producer"), having a principal place of business
at 3295 College Street, Beaumont, Texas 77701, and Federal Warranty Service
Corporation ("FWSC"), having a principal place of business at 260 Interstate
North Circle, Atlanta, Georgia 30339.
A. FWSC and Producer engage in a business relationship that has been
memorialized in certain contract(s) (the "Contract") executed by both
parties. The Contract may involve the exchange of confidential and/or
proprietary information.
B. The Gramm-Leach-Bliley Act of 1999 (Public Law 106-102, 113 Stat.
1138), as it may be amended from time to time (the "GLB Act") and the
regulations promulgated thereunder impose certain obligations on
financial institutions with respect to the confidentiality and
security of the customer data of such financial institutions.
C. Without admitting any applicability of the GLB Act to the business
conducted by and between the parties, the parties wish to enter into
this Agreement to supplement the obligations of the parties set forth
in the Contract in order to comply with the GLB Act and the
regulations promulgated thereunder.
NOW, THEREFORE, in consideration of the covenants and promises contained
herein, Producer and FWSC agree as follows:
1. Confidential Information. "Confidential Information" of a party shall mean
and include information about hardware, software, screens, specifications,
designs, plans, drawings, data, prototypes, discoveries, research,
developments, methods, processes, procedures, improvements, `Know-how',
compilations, market research, marketing techniques and plans, business
plans and strategies, customer names and all other information related to
customers, including without limitation any "nonpublic personal
information" as defined under the GLB Act and regulations promulgated
thereunder, price lists, pricing policies and financial information or
other business and/or technical information and materials, in oral,
demonstrative, written, graphic or machine-readable form, which is
unpublished, not available to the general public or trade, and which is
maintained as confidential and proprietary information by the disclosing
party for regulatory, customer relations, and/or competitive reasons.
Confidential Information shall also include such confidential and
proprietary information or material belonging to a disclosing party of or
to which the other party may obtain knowledge or access through or as a
result of the performance of its obligations under the Contract.
Confidential Information also includes any information described above
which the disclosing party has obtained in confidence from another party
who treats it as proprietary or designates it as Confidential Information,
whether or not owned or developed by the disclosing party. Notwithstanding
the foregoing, Confidential Information does not include aggregate claims
experience data and other actuarial calculations resulting from Producer's
service contract program, provided such data and calculations do not
include and cannot in any manner be matched to individual customer-specific
data including but not limited to names, addresses, telephone numbers,
contract numbers, individual claim records, or individual complaint
records.
2. Exceptions.
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(a) Notwithstanding anything to the contrary herein, neither party shall
have any obligation with respect to any Confidential Information of
other party, or any portion thereof, which the receiving party can
establish by competent proof (including, but not limited to, ideas,
concepts, `Know-how' techniques, and methodologies); (i) is or becomes
generally known to companies engaged in the same or similar businesses
as the parties hereto on a non-confidential basis, through no wrongful
act of the receiving party; (ii) is lawfully obtained by the receiving
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party from a third party which has no obligation to maintain the
information as confidential and which provides it to the receiving
party without any obligation to maintain the information as
proprietary or confidential; (iii) was known prior to its disclosure
to the receiving party without any obligation to keep it confidential
as evidence by tangible records kept by the receiving party in the
ordinary course of its business; (iv) is independently developed by
the receiving party without reference to the disclosing party's
Confidential Information; or (v) is the subject of written agreement
whereby the disclosing party consents to the use or disclosure of such
Confidential Information.
(b) If a receiving party or any of its representative shall be under a
legal obligation in any administrative or judicial circumstance to
disclose any Confidential Information, the receiving party shall give
the disclosing party prompt notice thereof so that the disclosing
party may seek a protective order and/or waiver, if the receiving
party or any such representative shall, in the opinion of its counsel,
stand liable for contempt or suffer other censure or penalty for
failure to disclose, disclosure pursuant to the order of such tribunal
may be made by the receiving party or its representative without
liability hereunder.
3. Disclosure and Protection of Confidential Information.
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(a) Each party warrants the disclosure of Confidential Information to the
other party is in accordance with applicable state and federal law and
the party's own stated privacy policies. Each party agrees not to use
Confidential Information of the other party for any purpose other than
the fulfillment of such party's obligations to the other party under
the Contract. All Confidential Information relating to a party shall
be held in confidence by the other party to the same extent and in at
least the same manner such party protects its own confidential or
proprietary information. Neither party shall disclose, publish,
release, transfer or otherwise make available Confidential Information
of the other party in any form to, or for the use or benefit of, any
person or entity without the other party's consent. Each party shall,
however, be permitted to disclose relevant aspects of the party's
Confidential Information to its officers, agents, subcontractors, and
employees to the extent that such disclosure is reasonably necessary
for the performance of its duties and obligations under the Contract
and this Agreement provided such disclosure is not prohibited by the
"GLB Act," the regulations promulgated thereunder or other applicable
law; provided, however, that such party shall take all reasonable
measure to ensure that Confidential Information of the other party is
not disclosed or duplicated in contravention of the provisions of the
Contract and this Agreement by such officers, agents, subcontractors
and employees. Each party further agrees promptly to advise the other
party in writing of any misappropriation, or unauthorized disclosure
or use by any person of Confidential Information which may come to its
attention and to take all steps reasonably requested by the other
party to limit, stop or otherwise remedy such misappropriation, or
unauthorized disclosure or use. If the GLB Act, the regulations
promulgated thereunder or other applicable law now or hereafter in
effect imposes a higher standard of confidentiality to the
Confidential Information, such standard shall prevail over the
provisions of this Section 3.
(b) Neither party will make any more copies of the other party's written
or graphic materials containing Confidential Information than is
necessary for its use under the terms of the Contract, and each such
copy shall be marked with the same proprietary notices as appear on
the originals.
(c) Each party shall, at a minimum, protect the Confidential Information
of the other party in the same manner as it protects its own
Confidential Information.
(d) Each party shall develop, implement and maintain a comprehensive
written information security program to protect Confidential
Information ("Security Program") that includes administrative,
technical and physical safeguards appropriate to its size and
complexity and nature and scope of its activities in compliance with
the GLB Act, Section 501(b) and regulations promulgated thereunder.
The objective of each such Security Program shall be to insure the
security and confidentiality of Confidential Information, protect
against any anticipated threats or hazards to the security or
integrity of Confidential Information and protect against the
unauthorized access to or use of Confidential Information that could
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result in substantial harm or inconvenience to any customer.
Each party will ensure that any third party to whom it transfers
Confidential Information enters into an agreement to protect the
confidentiality and security of Confidential Information in the same
manner as required by this Agreement and in compliance with the GLB
Act and regulations promulgated thereunder.
Upon written request, a party shall provide to the other party
information, such as audits or summaries of test results,
demonstrating the effectiveness of its Security Program.
4. Term; Return of Materials. The term of this Agreement shall commence on the
effective date first written above. For as long as a party continues to
possess or control the Confidential Information furnished by the other
party, and for so long as the Confidential Information remains unpublished,
confidential and legally protectable as the intellectual property of the
disclosing party, except as otherwise specified herein, the receiving party
shall make no use of such Confidential Information whatsoever,
notwithstanding the expiration of the Agreement. The parties acknowledge
their understanding that the expiration of this Agreement shall not be
deemed to give either party a right or license to use or disclose the
Confidential Information of the other party. Any materials or documents,
including copies thereof, which contain Confidential Information of a party
shall be promptly returned to such party upon the request of such party
except that copies may be retained, if required, for legal or financial
compliance purposes. Upon termination or expiration of the Contract, all
materials or documents, including copies thereof, which contain
Confidential Information of a party shall be promptly returned to such
party or destroyed except that copies may be retained, if required, for
legal or financial compliance purposes.
5. Injunctive Relief. It is agreed that the unauthorized disclosure or use of
any Confidential Information may cause immediate or irreparable injury to
the party providing the Confidential Information, and that such party may
not be adequately compensated for such injury in monetary damages. Each
party therefore acknowledges and agrees that, in such event, the other
party shall be entitled to seek any temporary or permanent injunctive
relief necessary to prevent such unauthorized disclosure or use, or threat
of disclosure or use, and consents to the jurisdiction of any federal or
state court of competent jurisdiction sitting in Atlanta, Georgia for
purposes of any suit hereunder and to service of process therein by
certified or registered mail, return receipt requested.
6. Amendments. This Agreement shall not be amended, modified, released,
discharged, abandoned or otherwise terminated prior to the expiration, in
whole or in part, except by written agreement signed by the parties hereto.
7. Severability. In the event that any provisions, or any portion thereof, of
this Agreement is determined by competent judicial, legislative or
administrative authority to be prohibited by law, then such provisions or
part thereof shall be ineffective only to the extent of such prohibition,
without invalidating the remaining provisions of the Agreement.
8. Full Force and Effect. This Agreement is only intended to supplement any
existing obligation of the parties as set forth in the Contract with
respect to Confidential Information. To the extent that the provisions of
the Contract impose a higher standard of confidentiality with respect to
the Confidential Information, such standard shall prevail over the
provisions of this Agreement. Except as supplemented herein, the Contract
remains in full force and effect.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Agreement, and intend it to
be effective as of the Effective Date, if set forth herein, or upon execution by
both parties.
Agreed: Agreed:
Federal Warranty Service Corp Conn Appliances, Inc.
/s/ Joe Erdeman
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By: By: /s/ David R. Atnip 7/21/2005
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(Signature) (Date) (Signature) (Date)
Name: /s/ Joe Erdeman Name: David R. Atnip (Print) (Print)
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Title: President Title: Treasurer
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CAI, L.P.
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By: /s/ David R. Atnip 7/21/2005
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(Signature) (Date)
Name: David R. Atnip (Print)
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Title: Treasurer
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