EXHIBIT 10.14
INTELLECTUAL PROPERTY LICENSING AGREEMENT
This Intellectual Property Licensing Agreement ("Agreement"), which
amends and restates in its entirety the Logo License Agreement and incorporates
all previous amendments, is effective as of January 1, 2004 and is by and
between Western Financial Bank (the "Bank") and all of the following entities:
Westcorp WFS Funding, Inc.
WFS Financial Inc WFS Investments, Inc.
Western Consumer Products Westran Services Corporation
WFS Receivables Corporation WestFin Insurance Agency, Inc.
WFS Receivables Corporation 2 Western Auto Investments, Inc.
WFS Receivables Corporation 3 Western Consumer Services, Inc.
WFS Financial Auto Loans, Inc. Westhrift Life Insurance Company, Inc.
Western Financial Auto Loans 2, Inc. Western Reconveyance Company Inc.
The Hammond Company, The Mortgage Bankers WFS Web Investments, Inc.
WFS Receivables Corporation 4 Western Financial Associate Solutions
Individually referred to as the ("Entity")
WHEREAS, the Bank is the owner of the certain intellectual property
tradenames, trademarks, logos, servicemarks, and the like (hereinafter called
the "Marks") and registrations as set forth in Exhibit A to this Agreement.
WHEREAS, each Entity is desirous of using certain Marks in order to
promote brand name recognition and customer loyalty.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises hereinafter set forth, the parties agree as follows:
1. Grant of License. The Bank grants to each Entity a nonexclusive,
nontransferable, royalty-free license to use the Marks in connection with each
Entity's marketing of its products including, but not limited to, the use of
Marks on letterhead, business cards, and other forms of advertising. Each Entity
accepts the license subject to the following terms and conditions.
2. Ownership of Marks. Each Entity acknowledges the ownership of the
Marks as those belonging to the Bank and agrees that it will do nothing
inconsistent with such ownership and that all use of the Marks by the Entity
shall inure to the benefit of and be on behalf of the Bank. Each Entity agrees
that nothing in this Agreement shall give it any right, title or interest in the
Marks other than the right to use the Marks in accordance with this Agreement
and the Entity agrees that it will not attack the title of the Bank to the Marks
or attack the validity of this Agreement.
3. Quality Standards; Form of Use. Each Entity agrees that the
nature and quality of all goods sold by it under the Marks shall be of a high
quality consistent with each Entity's current product line. The Entity agrees
that all related advertising, promotional and other uses of the Marks by it
including appropriate legends, and shall conform to any of the Bank guidelines.
4. Quality Maintenance. Each Entity agrees to cooperate with the
Bank in facilitating the Bank's verification of such nature and quality, to
permit reasonable inspection of its operation, and to supply the Bank with
specimens of all uses of the Marks upon request. Each Entity shall comply with
all applicable laws and regulations and obtain all appropriate government
approvals pertaining to the sale, distribution, export, import and advertising
of goods and services covered by this Agreement.
5. Infringement Proceedings; No Warranty. Each Entity agrees to
notify the Bank of any unauthorized use of the Marks by others promptly as it
comes to its attention. The Bank shall have the sole right and discretion to
bring or not bring infringement or unfair competition proceedings involving the
Marks. The Bank makes no representations or warranties regarding the Marks, its
rights therein, or the validity thereof.
6. Observation of Corporate Formalities. Each Entity shall at all
times observe the applicable legal requirements for the recognition of Entity as
a corporate entity separate and apart from any other Entity, including without
limitation the following:
a. Each Entity shall maintain corporate records and books
of account separate from those of the other Entity;
b. Each Entity shall hold meetings of its Board of
Directors as appropriate to authorize its corporate
actions;
c. Each Entity 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 Entity shall file all reports required by the
Secretary of State in any and all jurisdictions in which
Entity is licensed or qualified, including the annual
statement by whatever name denominated, in a timely
manner; and
e. Each Entity shall ensure that any applicable yearly
franchise taxes are paid in a timely manner so as to
maintain its corporate existence uninterrupted.
6.1 Advertising. Each Entity will at all times hold itself out to
the public as an entity separate from the other Entity and its advertising and
marketing shall reflect such separate corporate existence.
6.2 OTS Regulations. Each Entity shall comply with all applicable
OTS regulations.
7. Liability; Consultation with Counsel. With respect to the
obligations hereunder, no Entity shall assume responsibility or liability with
respect to the business or affairs of the other Entity except to the extent
provided for in this Agreement. Each benefiting Entity under this Agreement
("Indemnitor") shall indemnify, defend and hold harmless the performing Entity
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 Entity 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 performing Entity'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 performing Entity for any advice, service or
facility provided or omitted by performing Entity pursuant to this Agreement.
Performing Entity 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.
8. Term. This Agreement shall continue in force and effect without
terminations, subject to the Bank's right to revoke this license at any time and
for any reason without being liable for any costs associated with the
cancellation of the license.
9. Effect of Termination. Within thirty (30) days of the termination
of this Agreement each Entity agrees to discontinue all use of the Marks and any
term confusingly similar thereto, and to delete the same from its corporate or
business name, to cooperate with the Bank or its appointed agent to apply to the
appropriate authorities to destroy all printed materials bearing any of the
Marks, and that all rights in the Marks and the goodwill connected therewith
shall remain the property of the Bank.
10. Miscellaneous. It is agreed that this Agreement may be
interpreted according to the internal laws of the State of California, United
States of America excluding the body of law relating to the conflict of law.
Venue for all disputes arising out of or related to this Agreement shall be the
state and federal courts located in Orange County, California. This Agreement
constitutes the entire agreement of the parties with respect to the subject
matter hereof and may not be modified, nor any provision waived, except by a
writing signed by both parties. Any breach of the provisions of this Agreement
could cause the Bank irreparable damage, and in case of any breach the Bank
shall be entitled to obtain appropriate equitable relief. No Entity may assign,
transfer or sublicense this Agreement nor any of the rights granted hereunder,
except upon obtaining the Bank's prior written consent. Any such purported
assignment, transfer or sublicense without such consent is void and shall be of
no affect. This agreement may be executed in counterparts.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the day and year first above written.
WESTERN FINANCIAL BANK WESTCORP
By: ________________________________ By: ____________________________
Marguerite Drew Thomas A. Wolfe
Title: Senior Vice President & Director Title: President
Date: ______________________ Date: ______________________
WFS FINANCIAL INC WESTERN CONSUMER PRODUCTS
By: ________________________________ By: ______________________________
Lee A. Whatcott Mark Marty
Title: Senior Executive Vice President, Title: President
Chief Financial Officer &
Chief Operating Officer Date: ______________________________
Date: ______________________
WFS RECEIVABLES CORPORATION WFS RECEIVABLES CORPORATION 2
By: ________________________________ By: ______________________________
Keith Ford John Coluccio
Title: Assistant Vice President & Title: President
Secretary
Date: ______________________________
Date: ______________________
WFS RECEIVABLES CORPORATION 3 WFS RECEIVABLES CORPORATION 4
By: ________________________________ By: ______________________________
Keith Ford John Coluccio
Title: Assistant Vice President & Title: President
Secretary
Date: ______________________ Date: ______________________________
WFS FINANCIAL AUTO LOANS, INC WFS FINANCIAL AUTO LOANS 2, INC.
By: ________________________________ By: ______________________________
John Coluccio Keith Ford
Title: President Title: Assistant Vice President &
Secretary
Date: ______________________
Date: ______________________________
WFS INVESTMENTS, INC. WFS FUNDING, INC.
By: ________________________________ By: ______________________________
J. Keith Palmer Keith Ford
Title: Vice President & Treasurer Title: Assistant Vice President &
Secretary
Date: ______________________ Date: ______________________________
WESTFIN INSURANCE AGENCY, INC. WESTERN AUTO INVESTMENTS, INC.
By: ________________________________ By: _______________________________
Thomas A. Wolfe John Coluccio
Title: President Title: President
Date: ________________________________ Date: _______________________________
WESTERN CONSUMER SERVICES, INC. WESTHRIFT LIFE INSURANCE COMPANY, INC.
By: ________________________________ By: _______________________________
Shelley M. Chase Lee A. Whatcott
Title: Vice President Title: President, Chief Financial
Officer & Chief Operating
Officer
Date: ________________________________ Date: _______________________________
WESTERN RECONVEYANCE COMPANY, INC. WESTRAN SERVICES CORPORATION
By: ________________________________ By: _______________________________
Mark Olson Shelley M. Chase
Title: Vice President & Controller Title: President
Date: ________________________________ Date: _______________________________
WFS WEB INVESTMENTS, INC. THE HAMMOND COMPANY, THE MORTGAGE
BANKERS, INC.
By: ________________________________ By: _______________________________
Thomas A. Wolfe Lee A. Whatcott
Title: President Title: Chief Financial Officer
Date: ________________________________ Date: _______________________________
WESTERN FINANCIAL ASSOCIATE SOLUTIONS
By: ________________________________
Karen Marchak
Title: President
Date: ________________________________
EXHIBIT A
[WESTERN FINANCIAL]