EXHIBIT 10.29
REFERRAL AGREEMENT
This Agreement ("Agreement") is made this 16th day of September, 2002,
by and between Western Financial Bank ("WFB"), WestFin Insurance Agency ("WFIA")
and WFS Financial Inc ("WFS"), (the "Parties" or, individually, "Party").
RECITALS
WHEREAS, WFB is the majority owner of WFS, having formed the company as
an operating subsidiary for the purpose of conducting consumer finance
activities primarily in markets not served by the Bank;
WHEREAS, WFIA is a wholly owned subsidiary of WFB;
WHEREAS, the Parties, in exchange for a fee, desire to refer customers
to one another on the terms and conditions described below; and
WHEREAS, the Parties desire to set forth the terms of their relationship
in order to ensure that, in accordance with Office of Thrift Supervision ("OTS")
regulations, each Party functions as and remains a corporate entity separate and
apart from the other.
NOW, THEREFORE, the parties hereto agree as follows:
This Agreement will become effective on the date stated above and will
continue in effect until terminated as provided herein.
1. Referrals.
1.1 From time to time, each Party ("Referring Party") may desire
to refer their customers ("Customers") to another Party ("Using Party"). Exhibit
"A", as amended from time to time, attached hereto and incorporated herein,
identifies the Referring Party and the Using Party, the type of and purpose for
the referral, and the fee therefor. The Using Party agrees that the customers of
Referring Party will be used solely for marketing and solicitation by the Using
Party. The Customers will not be referred to any other person or entity without
the prior express written consent of Referring Party.
2. Time and Method of Payment.
2.1 Fees for referred Customers who then become Customers of the
Using Party shall be payable by the Using Party. By the 20th day of the billing
period, the Accounting Department of the Referring Party shall make allocations
to the Using Party at the time and frequency shown on Exhibit "A" but in any
case not less than quarterly. The respective Accounting
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Departments of the Using Parties shall make all necessary entries to the
separate books and records of the Using Party to record the allocation and
reimbursement thereof.
3. Term.
3.1 This Agreement shall commence as of the date stated above
and shall continue until terminated by the Parties for items listed on Exhibit
"A".
3.2 This Agreement may be terminated by either Party without
cause upon five (5) days prior written notice, and may be terminated immediately
for breach of any covenant, obligation, or duty herein contained or for
violation of law, ordinance, statute, rule or regulation (collectively referred
to as "law") governing the conduct of either Party hereto.
3.3 Termination shall not affect the obligations of the Parties
with respect to any event occurring before termination. Each Party shall be
bound by and responsible for any transaction or expense properly agreed to or
incurred by it in connection with services acquired hereunder but not settled,
paid or reimbursed prior to the date of any such termination.
4. Representations and Warranties of Each Party. Each Party hereto
represents and warrants to and for the benefit of the other as follows:
4.1 Corporate Existence and Qualifications. Each is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction in which incorporated or chartered, with full corporate
power to own its properties and to carry on its business as now owned and
operated by each.
4.2 Licenses; Compliance with Laws. Each has all licenses,
franchises, permits and authorizations necessary for the lawful conduct by it of
its business. Neither has violated, and is not in violation of, any such
licenses, franchises, permits or authorizations or any applicable statutes,
laws, ordinances, rules or regulations of any federal, state, or local
governmental bodies, agencies or subdivisions having, asserting or claiming
jurisdiction over it or over any part of its operations.
4.3 Enforceability. Each, by its execution hereof, represents
and warrants that this Management Agreement is valid and binding upon it,
enforceable against it on its terms, and agrees to be liable for its obligations
hereunder.
5. Covenants Regarding Corporate Existence.
5.1 Preservation of Corporate Existence and Qualifications. Each
Party will keep in full effect its existence, rights and franchises as a
corporation under the laws of the jurisdiction under which organized and will
obtain and preserve its qualifications to carry on business as a foreign
corporation in each jurisdiction in which such qualification is or shall be
necessary.
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5.2 Observation of Corporate Formalities. Each Party shall at
all times observe the applicable legal requirements for the recognition of the
other as a corporate entity separate and apart from the other, including without
limitation the following:
(i) Each shall maintain corporate records and books of
account separate from those of any other;
(ii) Each shall not at any time commingle its funds with
those of any other;
(iii) Each shall hold meetings of its Board of Directors
as appropriate to authorize its corporate actions;
(iv) Each shall hold meetings of its shareholder(s) as
appropriate and as required by the laws and regulations of the jurisdiction
under whose laws the Parties were formed;
(v) Each shall file all reports required by the
administrators or regulators of the jurisdiction in which each Party conducts
business, including without limitation, annual Statements in a timely manner;
and
(vi) Each shall ensure that its yearly franchise taxes
are paid in a timely manner so as to maintain its corporate existence
uninterrupted.
5.3 Advertising. Each Party will at all times hold itself out to
the public as an entity separate from the other and its advertising and
marketing shall reflect such separate corporate existence.
5.4 OTS Regulations. Both Parties shall comply with all
applicable OTS regulations.
6. Liability; Consultation with Counsel. Neither Party shall assume
responsibility or liability with respect to the business or affairs of the
other, other than to provide the management and administrative services and
facilities required hereunder. Each shall indemnify, defend and hold harmless
the other against and in respect of any and all claims, demands, losses, costs,
expenses, obligations, liabilities, damages, recoveries and deficiencies
(collectively the "Claims"), including without limitation interest penalties and
attorney's fees, that either shall incur or suffer, which arise, result from or
relate to (i) conduct by the other of its business and operations and (ii)
breach by the other of its obligations pursuant to this Agreement.
Notwithstanding anything contained herein to the contrary, Parties' obligations
pursuant to this section shall not be applicable to Claims arising directly from
the other's bad faith, gross negligence or willful misconduct. This Agreement
shall create no right, benefit or privilege in favor of any person not a Party
hereto, and no person not a Party hereto shall have any recourse against any
Party hereto for any advice, service or facility provided or omitted by a Party
pursuant to this Agreement. A
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Party may consult with legal counsel (who may also be counsel to another Party)
concerning any questions that may arise with respect to its duties and
obligations hereunder, and it shall be fully protected in respect of any action
taken or omitted by it hereunder in good faith reliance on any opinion of such
counsel with respect to any such duty or obligation.
7. General.
7.1 This Agreement may be modified, amended or superseded in
whole or in part, at any time, by a writing executed by the Parties hereto.
7.2 This Agreement shall be governed by the laws of California,
except to the extent any such laws are superseded by federal law or regulation.
7.3 This Agreement may be executed in counterparts, all of
which, taken together shall constitute one agreement.
7.4 Neither Party shall assign this Agreement without the prior
written consent of the other Party, which consent shall not unreasonably be
withheld.
Wherefore, the undersigned have executed this Agreement as of the date
first set forth above.
WESTERN FINANCIAL BANK
By: Date: September __, 2002
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Xxxxxx X. Xxxxx, President
WFS FINANCIAL INC
By: Date: September __, 2002
-----------------------------------
Xxxx Xxxxx
Senior Vice President & Controller
WESTFIN INSURANCE AGENCY
By: Date: September __, 2002
-----------------------------------
Xxx X. Xxxxxxxx
Vice President & Chief Financial Officer
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EXHIBIT A
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REFERRING PARTY USING PARTY PURPOSE REFERRAL FEE PAYABLE
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WFS WFB Checking Account $25 Monthly
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WFS WFB Money Market Account $25 Monthly
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WFB WFS Origination of $250 per funded Monthly
Consumer Auto Loans loan
(applicable to
National Business
Centers Only)
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WFS WFB Credit Card Fees WFB 51.94% Quarterly
related to First USA WFS 48.06%
Agent Banks
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WFS WFIA Origination by dealer $60 Monthly
of Consumer Auto
Loans marketed by WFS
which sold GAP
coverage.
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