EXHIBIT 10.33
SECURED DEPOSIT ACCOUNT AGREEMENT
This Secured Deposit Account Agreement ("Agreement") is made as of this 17th day
of October, 2002, by and between Western Financial Bank ("WFB"), a federally
chartered savings institution and WFS Receivables Corporation 2 ("WFSRC2"), a
Nevada corporation, and is based upon the following recitals. The aforementioned
parties shall hereinafter be collectively referred to as "Companies."
RECITALS
A. Whereas, Westcorp is the holding company of WFB and WFSRC2;
B. Whereas, WFSRC2 and Deutche Bank AG, New York Branch ("Deutche") have
entered into a Cash Collateral Agreement dated as of March 28, 2002 (the
"CCA Agreement") requiring WFSRC2 to pay $7 million dollars (the
"Funds") into a cash collateral account ("CCA");
C. Whereas, WFB, in order to borrow at a more favorable interest rate than
it would otherwise be able to receive and in order to induce WFSRC2 to
invest the Funds into a general liability account with WFB, desires to
pay WFSRC2 interest at a rate equal to one (1) month LIBOR, and shall
accrue daily;
D. Whereas, WFB shall use mortgage backed securities valued equal to or
above $7million dollars to collateralize the CCA on behalf of WFSRC2 and
pursuant to the CCA Agreement, if WFSRC2 invests the Funds into a WFB
account; and
E. Whereas, WFSRC2 desires to invests the Funds into a WFB account in order
to obtain a higher rate of return on the Funds.
NOW THEREFORE, in consideration of the above recitals, the Companies
hereto agree as follows:
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. The above recitals are hereby incorporated into this Agreement by
reference and made a part hereto.
2. WFSRC2 Obligations. WFSRC2 shall invest the Funds into a general
liability account with WFB.
3. WFB Obligations.
3.1 WFB shall pay WFSRC2 interest at a rate of 1-month LIBOR on the
Funds, and shall accrue daily. The LIBOR rate used shall be the
LIBOR rate in effect on the last day of the prior month by WFB.
3.2 Upon receipt of the Funds and pursuant to the CCA Agreement, WFB
shall collateralize the CCA with mortgage backed securities
valued equal to or above $7million dollars.
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4. Further Assurances. The Companies agree that they will modify, amend, or
restate any provision of this Agreement as necessary in order to insure
that this Agreement complies with all applicable federal laws and OTS
regulations with respect to transacting business between the parties.
5. Term.
5.1 This Agreement shall commence as of the date stated above and
shall continue until terminated by the parties.
5.2 This Agreement may be terminated immediately for breach of any
covenant, obligation, or duty therein contained or for violation
of law, ordinance, statute, rule or regulation (collectively
referred to as "law") governing the conduct of any party hereto.
5.3 Termination shall not effect the obligations of the Companies
with respect to any event occurring before termination. Each
Company shall be bound by and responsible for any transaction or
expense properly agreed to or incurred by the other Company 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.
6. Representations and Warranties of Each Company. Each Company on its
behalf alone represents and warrants to and for the benefit of the other
Company as follows:
6.1 Corporate Existence and Qualifications. Each Company is either a
corporation or association duly organized, validly existing and
in good standing under the laws of the United States or of the
State of California, as applicable, with full corporate power to
own its properties and to carry on its business as now owned and
operated by Company.
6.2 Licenses: Compliance with Laws. Each Company has all licenses,
franchises, permits and authorizations necessary ("Licenses"),
or is otherwise exempt from having to obtain such Licenses, for
the lawful conduct by the respective Company of its business.
Neither Company has violated, nor is in violation of, any such
licenses, franchises, permits or authorizations or any
applicable statues, 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.
7. Covenants Regarding Corporate Existence.
7.1 Preservation of Corporate Existence and Qualifications. Each
Company shall keep in full effect its existence, rights and
franchises as a corporation or association under the laws of the
jurisdiction in which each is 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.
7.2 Observation of Corporate Formalities. Each Company shall at all
times observe the applicable legal requirements for the
recognition of Company as a corporate entity
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separate and apart from any other Company, including without
limitation the following:
(a) Each Company shall maintain corporate records and books
of account separate from those of every other Company;
(b) Each Company shall hold meetings of its Board of
Directors as appropriate to authorize its corporate
actions;
(c) Each Company shall hold meetings of its shareholder(s)
as appropriate and as required by applicable law in the
jurisdiction in which organized to authorize its
corporate actions;
(d) Each Company shall file all reports required by the
Secretary of State in any and all jurisdictions in which
that Company is licensed or qualified, including the
annual statement by whatever name denominated, in a
timely manner; and
(e) Each Company shall ensure that any applicable yearly
franchise taxes are paid in a timely manner so as to
maintain its corporate existence uninterrupted.
7.3 OTS Regulations. Each Company shall comply with all applicable
OTS regulations, including, but not limited to, 12 C.F.R.
Sections 563.41 and 563.42.
8. Liability: Consultation with Counsel. With respect to the obligations
hereunder, no Company shall assume responsibility or liability with
respect to the business or affairs of any other Company except to the
extent provided for in this Agreement. Each benefiting Company under
this Agreement ("Indemnitor") shall indemnify, defend and hold harmless
the performing Company 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 such
performing Company shall incur or suffer, which arise, result from or
relate to (i) conduct by Indemnitor of its business and operations and
(ii) breach by Indemnitor of its obligations pursuant to this Agreement.
Notwithstanding anything contained herein to the contrary, Indemnitor's
obligations pursuant to this section shall not be applicable to Claims
arising directly from the performing Company'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 performing
Company for any advice, service or facility provided or omitted by
performing Company pursuant to this Agreement. The performing Company
may consult with legal counsel (who may also be counsel to Indemnitor)
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.
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9. General.
9.1 This Agreement may be modified, amended or superseded in whole
or in part, at any time, by a writing executed by the parties
hereto.
9.2 The laws of California shall govern this Agreement, except to
the extent federal law or regulation supersedes any such laws.
9.3 This Agreement may be executed in counterparts, all of which,
taken together shall constitute one agreement.
9.4 No Company shall assign this Agreement without the prior written
consent of each of the other Companies, 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:
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Its
WFS RECEIVABLES CORPORATION 2
BY:
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Its
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