EXHIBIT 10.26.1
FIRST AMENDMENT TO THE
CUSTOMER LIST AGREEMENT
This FIRST AMENDMENT to the Customer List Agreement dated May 15, 1998
("Agreement"), is made as of September 26, 2002, by and between WFS Financial
Inc, a California corporation ("WFS"), Western Financial Bank, a federally
chartered savings bank (the "Bank") and WestFin Insurance Agency, Inc., a
California corporation ("WFIA"). All capitalized terms not herein defined shall
have the same meaning as set forth in the Agreement.
RECITALS
WHEREAS, this Agreement is being amended to (i) include Western Consumer
Products, a California corporation, or its assignee ("WCP"), as a Party to the
Agreement (ii) amend the usage provisions of the Customer List and (iii) make
other such changes as the Parties deem desirable and as set forth herein.
AGREEMENT
Now therefore, in consideration of the mutual promises set forth herein,
and in reliance upon the recital set forth above, the Parties agree to as
follows:
A. That WCP is hereby added as a Party to the Agreement.
B. That the following sections are amended and restated in their entirety:
1. Customer Lists.
1.1 From time to time, each Party ("Using Party") may desire to
rent/purchase customer lists ("Customer Lists") owned and developed by another
Party ("Owning Party"). Exhibit "A", as amended from time to time, attached
hereto and incorporated herein, identifies the Owning Party, the Using Party,
the type of and purpose for the Customer List and the fee therefor.
1.2 The Using Party agrees to the following: (i) Customer Lists of
Owning Party will be used solely for marketing and solicitation by the Using
Party; (ii) Using Party will not sell to any customer on any such Customer List
products that compete with those offered by Owning Party; (iii) the information
contained in the Customer List will not be disclosed or disseminated to any
other person or entity without the prior written consent of Owning Party; (iv)
No Customer List shall be resold by Using Party, in whole or in part.
2. Authorization to Provide Names Under Third Party Agreements. From
time to time, a Party may enter into an agreement with a non-affiliated entity
("Third Party") to provide Customer Lists to the Third Party. Except as
otherwise stated in Exhibit B, no Party
to this Agreement shall sell, rent or distribute a Using Party Customer List to
a Third Party without the prior written consent of the Owning Party. Only Owning
Party's may sell, rent or distribute their Customer Lists
WHEREFORE, the undersigned have executed this First Amendment to the
Agreement as of the date first set forth above.
WESTERN FINANCIAL BANK
By: Date:
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MARGUERITE DREW
WFS FINANCIAL INC
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LEE A. WHATCOTT
WESTFIN INSURANCE AGENCY
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MARK OLSON
WESTERN CONSUMER PRODUCTS
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MARK MARTY
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EXHIBIT "A"
CUSTOMER LIST AGREEMENT
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OWNING USING DETERMINATION
PARTY PARTY REMARKS OF FEE PAYABLE
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WFS WFIA Insurance agency solicits customer $6.50/K/ quarter+ When
base of WFS (Retail/Lease Consumer) Supplied
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Bank WFS WFS solicits customer base of Bank $65.00/K/ quarter When
Supplied
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WFS Bank Retail Division solicits customer $65.00/K/ quarter When
base of WFS (Retail/Lease Consumer)** Supplied
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WFIA Bank Bank solicits customer base of $65.00/K/ quarter When
Insurance Agency Supplied
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WFIA WFS WFS solicits customer base of WFIA $65.00/K/ quarter When
Supplied
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WFS WCP WCP solicits customer base of WFS $65.00/K/ quarter When
(Retail/Lease Consumer) Supplied
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+ Fee is only applicable to new customer names on entire list. For efficiency
and cost purposes, the entire list of customers is sent each quarter. The market
fee comparison ($65/K/quarter) used is for new customer accounts only. In any
given quarter, approximately 10% of the names sent represent new customers.
Therefore, the fee will be calculated as follows:
$65.00 x 10% equals $6.50.
Thus, the fee to be paid will equal $6.50/K/quarter on the entire list. This
adjusted figure approximates a market fee for the new accounts.
**excludes Bank Card Agreement dated June 17, 1998 by and between First USA
Bank, a Delaware banking corporation and Western Financial Bank, a federal
savings bank.
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EXHIBIT "B"
CUSTOMER LIST AGREEMENT
1. Bank Card Agreement dated June 17, 1998 by and between First USA
Bank, a Delaware banking corporation and Western Financial Bank,
a federal savings bank.
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