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EXHIBIT 10.19
SHORT TERM INVESTMENT AGREEMENT
This SHORT TERM INVESTMENT AGREEMENT ("Agreement") is made as of the 1st
day of January, 1996, by and between WESTERN FINANCIAL SAVINGS BANK, F.S.B. (the
"Bank"), a federally chartered savings bank, and WFS FINANCIAL INC, a California
corporation ("WFS) and is based upon the following recitals.
RECITALS
A. WFS, a majority-owned operating subsidiary of the Bank, generates
from time to time excess cash which it would like to invest for short periods of
time.
B. WFS desires to obtain short term investment services from the Bank.
C. The Bank is willing to provide such short term investment services to
WFS on the terms and conditions described below.
D. The Bank and WFS desire to set forth the terms of their relationship
in order to ensure that, in accordance with Office of Thrift Supervision ("OTS")
regulations, WFS functions as and remains a corporate entity separate and apart
from the Bank.
AGREEMENT
In consideration of the mutual promises set forth herein, and in
reliance upon the recitals set forth above, the parties agree as follows:
1. WFS, upon a determination that it has excess cash to invest, shall submit to
the Bank an Investment and Borrowing Certificate ("Certificate") in the form
attached as Exhibit A hereto showing, as a minimum, the amount to be invested
and the investment date ("Investment Date").
2. WFS hereby authorizes the Bank to invest the cash and to reinvest all
interest earned upon it in Commercial Paper in the top two credit grades as
rated by Xxxxx'x Investors Services, Inc. and Standard & Poor's Ratings Group.
3. WFS acknowledges and agrees that the Bank may not actually invest the cash
and may use the cash for continuing operations. The Bank agrees to, and shall,
pay WFS interest on the principal amount as though the cash were invested.
Interest shall be paid at a rate equal to the monthly average of the Federal
Corporate 30-Day Commercial rate in effect at the time of investment and shall
accrue daily.
4. The Bank acknowledges and agrees that cash given by WFS to the Bank pursuant
to the terms of this Agreement for investment purposes is not a deposit to any
deposit account established by WFS at the Bank and will not be credited by the
Bank to any such account.
5. WFS, upon a determination that it desires to withdraw invested cash, shall
submit to the Bank a Certificate showing, as a minimum, the withdrawal date
("Withdrawal Date"), the amount to be withdrawn and the name of the payee. Upon
receipt of the Certificate requesting withdrawal, the Bank shall immediately
execute a withdrawal and pay the amount in accordance with the Certificate.
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6. The Bank agrees that mandatory withdrawals from the investment shall occur on
the day prior to a Grantor or Owner Trust Distribution Payment Date, as such
term is defined in the various Grantor and Owner Trusts.
7. Conditions Precedent to Investing and Withdrawing
7.1 In order for the Bank to complete an investment in a timely manner,
the Bank must receive the Certificate prior to 9:00 am Pacific Standard Time of
the day prior to the requested Investment Date. Certificates requesting
investment shall be approved by any one of the following officers of WFS: the
Chairman of the Board and CEO, the President, the Chief Financial Officer, or
the Treasurer; and such Certificate will be dated on the approval date.
7.2 The Bank must receive a Certificate requesting withdrawal prior to
9:00 am Pacific Standard Time of the day prior to the requested Withdrawal Date.
Certificates requesting withdrawal shall be approved by any one of the following
officers of WFS: the Chairman of the Board and CEO, the President, the Chief
Financial Officer, or the Treasurer, and such Certificate shall be dated on the
approval date.
8. Term.
8.1 This Agreement shall commence as of the date stated above and shall
continue until terminated by the parties.
8.2 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.
8.3 Termination shall not affect the obligations of the parties with
respect to any event occurring before termination. WFS shall be bound by and
responsible for any transaction or expense properly agreed to or incurred by the
Bank in connection with services performed hereunder but not settled, paid or
reimbursed prior to the date of any such termination. Upon termination of this
Agreement, the fee referred to above will be prorated, but the due date thereof
shall not be changed.
9. Representations and Warranties of WFS. WFS represents and warrants to and for
the benefit of the Bank as follows:
9.1 Corporate Existence and Qualifications. WFS is a corporation or
association duly organized, validly existing and in good standing under the laws
of the States of California with full corporate power to own its properties and
to carry on its business as now owned and operated by WFS.
9.2 Licenses; Compliance with Laws. WFS has all licenses, franchises,
permits and authorizations necessary for the lawful conduct by WFS of its
business. WFS has not 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.
10. Covenants Regarding Corporate Existence.
10.1 Preservation of Corporate Existence and Qualifications. WFS will
keep in full effect its existence, rights and franchises as a corporation or
association under the laws of the jurisdiction in 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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10.2 Observation of Corporate Formalities. WFS shall at all times
observe the applicable legal requirements for the recognition of WFS as a
corporate entity separate and apart from the Bank, including without limitation
the following:
(a) WFS shall maintain corporate records and books of account
separate from those of the Bank;
(b) WFS shall not at any time commingle its funds with those of
the Bank;
(c) WFS shall hold meetings of its Board of Directors as
appropriate to authorize its corporate actions;
(d) WFS shall hold meetings of its shareholder(s) as appropriate
and as required by the Corporations Code of the jurisdiction in which organized
to authorize its corporate actions;
(e) WFS shall file all reports required by the Secretary of State
in all jurisdictions in which WFS is licensed or qualified, including the annual
statement by whatever name denominated, in a timely manner; and
(f) WFS shall ensure that yearly franchise taxes are paid in a
timely manner so as to maintain its corporate existence uninterrupted.
10.3 Advertising. WFS will at all times hold itself out to the public as
an entity separate from the Bank and its advertising and marketing shall reflect
such separate corporate existence.
10.4 OTS Regulations. WFS shall comply with all applicable OTS
regulations. If required by 12 C.F.R. Section 563.37(b), any instrument
evidencing borrowing by WFS shall indicate that the Bank is in no way
responsible for any such debt.
11. Liability; Consultation with Counsel. the Bank shall assume no
responsibility or liability with respect to the business or affairs of WFS,
other than to provide the management and administrative services required
hereunder. WFS shall indemnify, defend and hold harmless the Bank 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 the
Bank shall incur or suffer, which arise, result from or relate to (i) conduct by
WFS of its business and operations and (ii) breach by WFS of its obligations
pursuant to this Agreement. Notwithstanding anything contained herein to the
contrary, WFS's obligations pursuant to this section shall not be applicable to
Claims arising directly from the Bank'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 the Bank for any advice, service or facility provided or
omitted by the Bank pursuant to this Agreement. The Bank may consult with legal
counsel (who may also be counsel to WFS) 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.
12. General.
12.1 This Agreement may be modified, amended or superseded in whole or
in part, at any time, by a writing executed by the parties hereto.
12.2 This Agreement shall be governed by the laws of California, except
to the extent any such laws are superseded by federal law or regulation.
12.3 This Agreement may be executed in counterparts, all of which, taken
together shall constitute one agreement.
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12.4 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 on the date set
forth below to be effective as of the date first set forth above.
WESTERN FINANCIAL SAVINGS BANK, F.S.B.
By: /s/ J. XXXXX XXXXXX Date: February 28, 1996
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J. Xxxxx Xxxxxx, Vice President & Treasurer
WFS FINANCIAL INC
By: /s/ XXX XXXXXXXX Date: February 28, 1996
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Xxx Xxxxxxxx, President
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