Exhibit 10.19
FIRST AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT ("Amendment") is made and entered into effective as of June 25,
1998 in Columbus, Ohio, by and among WESTAR AUTO FINANCE, L.L.C., a
Washington limited liability company, as borrower (the "Company"), BANK ONE,
NA, a national banking association, as lender (the "Lender"), and XXXXXX X.
XXXXXXXXXXX, XX., an individual, as indemnitor (the "Indemnitor").
RECITALS
THE FOLLOWING RECITALS ARE REPRESENTATIONS WITH RESPECT TO CERTAIN
FACTUAL MATTERS THAT FORM THE BASIS OF THIS AMENDMENT AND ARE AN INTEGRAL
PART OF THIS AMENDMENT.
A. The Lender agreed to loan to the Company the maximum sum of
$25,000,000.00 (the "Revolving Credit Commitment") pursuant to the terms and
conditions of a certain Amended and Restated Revolving Credit Agreement dated
as of July 22, 1997 by and between the Company and the Lender (the "Restated
Revolving Credit Agreement"). Certain capitalized terms which are not
otherwise defined herein shall have the meanings ascribed to them in the
Restated Revolving Credit Agreement;
B. To evidence the Company's borrowings from time to time under the
Revolving Credit Commitment (collectively, the "Revolving Credit Loans"), the
Company executed a certain Amended and Restated Revolving Credit Note dated
July 22, 1997 (the "Restated Note"), whereby the Company promised to pay to
the order of the Lender, on or before July 12, 1998, the Revolving Credit
Loans, together with interest as set forth in the Restated Revolving Credit
Agreement;
C. To secure the Restated Revolving Credit Agreement and the
Restated Note, the Lender and the Company entered into a certain Amended and
Restated Company Security Agreement dated as of July 22, 1997 (the "Restated
Security Agreement");
D. In further consideration of the Lender entering into the
Restated Revolving Credit Agreement, the Indemnitor agreed, by a certain
Amended and Restated Validity Agreement dated as of July 22, 1997, to
indemnify the Lender as set forth therein (the "Restated Validity Agreement");
E. In further consideration of the Lender entering into the
Restated Revolving Credit Agreement, the Lender and the Company entered into
a certain Amended and Restated Agreement with Respect to Prevention and
Resolution of Disputes dated as of July 22, 1997 (the "Restated Dispute
Resolution Agreement");
F. The Lender is still the holder and beneficiary of the Restated
Revolving Credit Agreement, Restated Note, Restated Security Agreement,
Restated Validity Agreement and Restated Dispute Resolution Agreement (such
documents, together with all other documents related thereto, are hereinafter
collectively referred to as the "Loan Documents"); and
G. The Company, the Lender and the Indemnitor desire to amend the
Restated Revolving Credit Agreement, the Restated Note and the other Loan
Documents to increase the maximum amount of the Revolving Credit Commitment
from $25,000,000 to $26,000,000.
AGREEMENT
NOW, THEREFORE, in consideration of the agreement and undertakings
of Borrowers and Lender to amend the Loan Documents, and for other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties agree as follows:
1. All terms and conditions of the Restated Revolving Credit
Agreement shall remain in full force and effect without change except as
follows:
(a) Paragraph L of the Recitals on page 3 of the Restated
Revolving Credit Agreement is hereby amended by replacing"$25,000,000"
with "$26,000,000"; and
(b) Section 2.1 of the Restated Revolving Credit Agreement is
hereby amended by replacing "Twenty-Five Million Dollars ($25,000,000)"
with ""Twenty-Six Million Dollars ($26,000,000)".
2. All terms and conditions of the Restated Note shall remain in
full force and effect without change except as follows:
(a) The heading of the Restated Note is hereby amended by
replacing"$25,000,000" with "$26,000,000"; and
(b) The first paragraph of the Restated Note is hereby amended
by replacing "Twenty-Five Million Dollars ($25,000,000)" with
""Twenty-Six Million Dollars ($26,000,000)".
3. All terms and conditions of the Restated Security Agreement and
the Restated Validity Agreement shall remain in full force and effect without
change except that paragraph A of the recitals to each such agreement is
hereby amended by replacing"$25,000,000" with "$26,000,000".
4. The Company hereby represents and warrants that it is in full
compliance with all terms, conditions, covenants, agreements, stipulations,
representations and warranties under the Loan Documents and the Company
hereby reaffirms the same as of the date hereof.
5. The Company and the Indemnitor each covenant to perform and
observe all covenants, agreements, stipulations and conditions on it or his
respective part to be performed under the Loan Documents.
6. Except as specifically modified herein, the Loan Documents shall
remain in full force and effect in all respects according to their original
terms, covenants and conditions as security for the unpaid balance of the
indebtedness and interest thereon evidenced by the Restated Revolving Credit
Agreement and the Restated Note, and nothing in this Amendment shall affect
or impair any rights and powers which Lender may have thereunder.
7. The Company shall pay or cause to be paid and save Lender
harmless against liability for the payment of all reasonable out-of-pocket
expenses, including counsel fees and disbursements, incurred or paid by
Lender in connection with the negotiation, development, preparation,
execution and performance of this Amendment.
8. This Amendment may be simultaneously executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
9. This Amendment is binding upon, and shall inure to the benefit
of, the parties hereto and their respective heirs, successors and assigns;
provided, however, that neither the Company nor the Indemnitor may assign or
transfer their respective rights or duties under this Amendment or the Loan
Documents without the prior written consent of Lender.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
as of the date first above written.
LENDER: INDEMNITOR:
BANK ONE, N.A.
By:
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Xxxxxx X. Xxxx, Xx. XXXXXX X. XXXXXXXXXXX, XX.,
individually
COMPANY:
WESTAR AUTO FINANCE, L.L.C.,
a Washington limited liability company
By WESTAR AUTO HOLDING CO.,
a Washington Corporation, Manager
By:
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Xxxxxx X. Xxxxxxxxxxx, Xx.
President
