EXHIBIT 4.3
PROMISSORY NOTE
$300,000,000 May 3, 2002
FOR VALUE RECEIVED, the undersigned, WFS FINANCIAL INC, a
California corporation (the "Maker"), promises to pay to the order of WESTERN
FINANCIAL BANK, F.S.B., a federal Bank (the "Bank"), the principal sum of THREE
HUNDRED MILLION DOLLARS ($300,000,000) (the "Principal") on or before May 15,
2012.
1. Interest on Principal. The Principal shall bear interest at a fixed
rate per annum of ten and one fourth percent (10.25%) (the "Rate of Interest").
Such interest shall be payable semi-annually in arrears, on November 15 and May
15 of each year commencing on November 15, 2002; provided, however, that in the
event any such payment date is not a business day, then on the next business day
thereafter (and such extension of time shall be excluded in the computation of
interest). All interest payable pursuant to this Section 2 and Section 8 hereof
(i) is hereinafter collectively referred to as "Interest", and (ii) shall be
calculated on the basis of 30 day months on the basis of a year of 360 days.
2. No Pre-Payment Penalty. There will be no prepayment penalty on this
Note.
3. Payments. The Principal, Interest and "Costs" (as defined herein) are
collectively referred to herein as the "Obligations". All payments of the
Obligations shall be payable in lawful money of the United States of America at:
15750 Alton Parkway
Irvine, California 92618
or wherever otherwise designated in writing from time to time by the holder of
this Note. All payments made under this Note shall be credited first to Costs
(to the extent such Costs have not been paid in accordance with Section 5
hereof), then to Interest to the extent accrued and unpaid, and then to
Principal. All payments by the Maker under this Note (i) shall be made without
setoff or counterclaim, and (ii) shall be made under all circumstances,
irrespective of any restrictions then existing in any jurisdiction and without
requiring the fulfillment of any formality.
4. Costs. The Maker shall pay and reimburse the Bank all Costs incurred
by the Bank as and when so incurred. "Costs" shall mean all costs, fees and
out-of-pocket expenses incurred by or on behalf of the Bank including, without
limitation, all reasonable attorneys' fees, expenses incurred by or payable by
the Bank with respect to its obligations under the Note, and any other expenses
incurred in connection with the collection and enforcement of this Note.
5. Acceleration.
5.1 As used herein, the term "Event of Default" shall mean the
occurrence of any of the following events:
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(i) A default in the payment when due and in the manner
prescribed herein of any installment of Principal or Interest
and such default shall not be cured within seven (7) business
days after the Bank has given written notice to the Maker of
such default.
(ii) The failure, refusal or neglect of the Maker to
observe or perform for any reason any of the covenants,
conditions, agreements or provisions contained in this Note
(other than the payment of any Obligation of which the failure
to pay constitutes an Event of Default described in clause (i)
immediately above) and such failure, refusal or neglect shall
not be cured within forty-five (45) days after the Bank has
given written notice to the Maker of such failure, refusal or
neglect.
(iii) Any representation or warranty made by the Maker
in this Note shall prove to have been false or misleading in any
material respect.
(iv) The Maker shall be dissolved or shall sustain the
loss, cancellation or forfeiture of its legal status or good
standing by reason of any judicial, extra-judicial or
administrative proceedings, or shall (a) apply for or consent to
the appointment of a receiver, trustee or liquidator of the
Maker or of all or a substantial part of the Maker's assets; (b)
be unable to, or admit in writing its inability to, pay its
debts as they mature; (c) make a general assignment for the
benefit of creditors; (d) be adjudicated a bankrupt or
insolvent; (e) file a voluntary petition in bankruptcy or a
petition or an answer seeking reorganization or an arrangement
for the benefit of creditors or take advantage of any insolvency
law in its capacity as a debtor; (f) interpose an answer
admitting the material allegations of the petition filed against
the Maker in any bankruptcy, reorganization or insolvency
proceedings; (g) take any action which would have the effect of
dissolving the Maker; or (h) take any action for the purpose of
effecting any of the foregoing.
(v) Any (a) involuntary petition is filed against the
Maker seeking to subject it to any bankruptcy, insolvency or
similar laws and such petition shall remain unstayed or not be
withdrawn for a period of forty-five (45) days; or (ii) order,
judgment or decree shall be entered against the Maker by any
court of competent jurisdiction approving a petition seeking its
reorganization or appointment of a receiver, trustee or
liquidator of the Maker or of all or a substantial part of its
assets and such order, judgment or decree shall continue and
stay in effect for a period of forty-five (45) days.
5.2 Upon the occurrence of an Event of Default, the Bank may
declare all of the Obligations to be forthwith due and payable,
whereupon all such Obligations shall become immediately due and payable
without presentment, demand or notice of any kind to the Maker;
provided, however, that such acceleration shall be automatic upon the
occurrence of an Event of Default specified in clauses (iv) or (v) of
Section 5.1 hereof, and no declaration or other act of the Bank shall be
necessary to effect such acceleration.
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6. Waiver of Notice. The Maker hereby waives diligence, demand, protest,
presentment for payment and notice of protest, dishonor and non-payment of and
formalities of any kind relative to this Note and agrees that the time of
payment hereunder may be extended by the Bank or this Note renewed by the Bank,
without notice and without releasing the Maker. The right to plead any and all
statutes of limitations as a defense to this Note is hereby waived to the
fullest extent permitted by law.
7. Overdue Obligations. All Obligations not paid on or before the
applicable due date shall bear interest until paid at the Rate of Interest.
8. Maximum Rate. No provision of this Note shall be deemed to establish
or require the payment of interest at a rate in excess of the maximum rate
permitted by applicable law. In the event that the interest required to be paid
under this Note exceeds the maximum rate permitted by applicable law, the
interest required to be paid hereunder shall be automatically reduced to the
maximum rate permitted by applicable law. In the event any interest paid exceeds
the then applicable legal rate, the excess of such interest over the maximum
amount of interest permitted to be charged shall automatically be deemed to be
applied to reduce unpaid Costs, if any; then to reduce accrued and unpaid
interest, if any; and then to reduce Principal; the balance of any excess
interest remaining after application of the foregoing, if any, shall be refunded
to the Maker.
9. Governing Law. This Note (i) shall be subject to, construed and
governed by, the laws of the State of California without giving effect to such
state's conflict of law provisions, (ii) shall be binding upon the successors
and assigns of the Maker, and (iii) shall inure to the benefit of the Bank and
its successors and assigns. Notwithstanding the foregoing, the Maker may not
assign its obligations under this Note without the prior written consent of the
Bank.
10. Severability of Provisions. Any provision of this Note 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, and any
such invalidity, illegality or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provisions in any other jurisdiction.
11. Enforceability. By its execution hereof, the Maker represents and
warrants to the Bank that this Note is its valid and binding obligation,
enforceable according to its terms, and agrees to be liable for all Obligations
hereunder.
12. No Waiver. No waiver on the part of the Bank in exercising, or
partial exercise of, any right, power or privilege under this Note shall operate
as a waiver of any privilege or right hereunder of the Bank or preclude any
other further exercise of any right, power or privilege.
13. Senior Indebtedness. Maker hereby covenants that until this Note is
paid in full, the Maker will not incur any indebtedness which is senior to the
obligations evidenced by this Note, other than (i) indebtedness under that
certain Promissory Note dated as of August 1, 1997, and as subsequently amended
in the amount of $150,000,000, between the Maker and the Bank; (ii) any
indebtedness collateralized or secured under that certain Revolving Line of
Credit
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Agreement dated as of June 15, 1999, as subsequently amended, between the Maker
and the Bank; and (iii) other indebtedness for similar types of warehouse
credit.
IN WITNESS WHEREOF, the Maker has caused this Note to be executed and
delivered by its duly authorized signatory as of the date and year first above
written.
WFS FINANCIAL INC
By:
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Its:
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