EXHIBIT 10.49
RETAINER AGREEMENT
THIS RETAINER AGREEMENT (this "Agreement") is effective as of March 31,
2003 and is entered into by and between WESTFIN INSURANCE AGENCY, a California
corporation, ("WFIA") and WFS FINANCIAL INC, a California corporation ("WFS"),
with reference to the following:
PREAMBLE
WHEREAS, Western Financial Bank (the "Bank") 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 the Bank, formed for the
purpose of transacting the business of an insurance agency, and is duly licensed
under applicable insurance laws and regulations.
WHEREAS, WFS desires to retain WFIA to provide certain insurance services
(referred to hereinafter as the "Services") for a Retainer Fee (as defined in
the Agreement below);
WHEREAS, WFIA has agreed to be retained by WFS and to provide for such
Services for a Retainer Fee; and
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained herein, and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto hereby covenant and agree as follows:
TERMS
1. DEFINITIONS
1.1 "Business Day" shall mean any day that is not a Saturday, Sunday or
other day on which banking institutions in Orange County, California are
authorized or obligated by law, executive order or government decree to remain
closed.
1.2 "Products" shall mean the direct and indirect guaranteed auto
protection (GAP) policies.
1.3 "Retainer Fee" shall mean 10% of the gross monthly proceeds received
for the Product sales reported.
2. WFIA's OBLIGATION.
2.1 WFIA shall provide the Services in professional workmanlike conduct
and in accordance with industry standards in order for WFS to promote, market,
and endorse the various Products.
3. WFS's OBLIGATION.
3.1 WFS shall provide WFIA access to monthly detailed statements stating
the types of Products sold, the quantity of each Product sold, and any other
information reasonably requested upon by WFIA.
3.2 WFS shall pay WFIA a Retainer Fee for the Services rendered by it in
accordance with the terms of this Agreement. The Retainer Fee shall be paid to
WFIA on a monthly basis.
3.3 WFS shall make each payment hereunder at the office of WFIA set forth
in, or designated by WFIA pursuant to, Section 5 hereof, on the day when due, in
freely transferable funds representing "same day" funds. Whenever any payment to
be made hereunder or under any instrument delivered hereunder shall be stated to
be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in each such case
be excluded in the computation and payment of interest.
4. TERMINATION.
This Agreement may be terminated: (i) by either party giving five (5) days
written notice of termination to the other party or (ii) immediately by either
party in the event of a material breach by the other party. Termination of the
Agreement under this Section shall not affect the parties' rights and
obligations with respect to those Services rendered or the payment of any
Retainer Fee incurred prior to any applicable notice of termination provision.
If the non-breaching party terminates this Agreement pursuant to a breach by the
other party, such termination shall not be the sole and exclusive remedy of the
non-breaching party.
5. NOTICES.
All notices, requests, demands and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been duly given if telecopied or if delivered by messenger or courier delivery,
or sent by first class mail, postage prepaid, certified or registered, return
receipt requested, as set forth below or at such other address as may be
furnished in writing:
If to WFIA:
Xxxxx Xxxxxx
23 Pasteur
Xxxxxx, Xxxxxxxxxx 00000
With a copy to:
Guy Du Bose, Esq.
00 Xxxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Fax No.: 000-000-0000
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If to WFS:
Xxxx Xxxxx
00 Xxxxxxx
Xxxxxx Xxxxxxxxxx 00000
Any notice given by messenger or courier delivery as provided in this Section 5
shall be deemed given when delivered if during normal business hours on a
Business Day (or if not, the next Business Day after delivery); any notice given
by telecopier as provided herein shall be deemed given when sent if during
normal business hours on a Business Day (or, if not, the next Business Day after
it is sent), provided that at the time such telecopy is sent, the sending party
receives written confirmation of receipt and forwards a copy of the notice by
mail, messenger or courier delivery as provided herein; any notice given by
first class mail, postage prepaid, certified or registered, return receipt
requested shall be deemed given two (2) Business Days after the date of mailing.
Any party may by notice to the other change the address at which notices and
demands may be given to it.
6. REGULATORY COMPLIANCE.
6.1 WFIA and WFS acknowledge that they are subsidiaries of the Bank and
that each is not an affiliate of the Bank as that term is used in OTS
regulations pertaining to transactions with affiliates, 12 CFR Section 563.41.
The Board of Directors of WFS and WFIA has considered this Agreement and the
transactions described in this Agreement, including the amounts to be paid over
the life of this Agreement by WFS and the benefits to be received by WFIA and
the Bank as its parent, upon consolidation, and have duly authorized the
execution of this Agreement by the officers of WFS and WFIA.
7. MISCELLANEOUS.
7.1 NO WAIVER. No failure or delay on the part of WFIA in notifying WFS of
its obligation to pay the Retainer Fee shall operate as a waiver of that
obligation.
7.2 INDEPENDENT CONTRACTORS. The parties to this Agreement are independent
contractors and no agency, partnership, joint venture or employee-employer
relationship is intended or created by this Agreement.
7.3 GOVERNING LAW, SUCCESSORS AND ASSIGNS. This Agreement shall be subject
to, construed and governed by, the laws of the State of California without
giving effect to such state's conflicts of law provisions. This Agreement shall
inure to the benefit of WFS and WFIA, and shall be binding upon the successors
and assigns of the parties hereto.
7.4 HEADINGS. Section headings are included for the sake of convenience
only and shall not affect the interpretation of any provision of this Agreement.
7.5 COUNTERPARTS. This Agreement maybe executed in one or more
counterparts, each of which shall constitute an original Agreement, but all of
which together shall constitute one and the same instrument.
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7.6 ENTIRE AGREEMENT. This Agreement sets forth the entire agreement and
understanding of the parties concerning the subject matter of this Agreement and
supersedes all prior agreements, arrangements, and understandings regarding such
subject matter between the parties hereto, which agreements, arrangements and
understandings are merged herein.
7.7 SEVERABILITY. Any provision of this Agreement which is invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability
without invalidating the remaining provisions hereof or thereof, and any such
invalidity, illegality or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
7.8 AMENDMENTS. No modification or waiver of any provision of this
Agreement shall in any event be effective unless the same shall be in writing
and signed by WFS and WFIA and then such waiver or consent shall be effective
only in the specific instance and for the purpose for which given.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first set forth above.
WESTFIN INSURANCE AGENCY
By:
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Its:
WFS FINANCIAL INC
By:
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Its:
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