AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
between
Westar Auto Finance, L.L.C.,
as Borrower
and
Bank One, NA,
as Lender
July 22, 1997
TABLE OF CONTENTS
Page
RECITALS 1
ARTICLE 1. AGREEMENT OF THE PARTIES 3
1.1 Restatement of Obligations 3
1.2 Balance of Revolving Credit Loans 3
1.3 Compliance with Loan Documents 3
1.4 Continuation of Loan Documents 4
ARTICLE 2. REVOLVING CREDIT LOANS 4
2.1 Increased Revolving Credit Commitment 4
2.2 Revolving Credit Note 4
2.3 Cancellation and Reduction of Increased Revolving Credit
Commitment 6
2.4 Use of Funds. 6
ARTICLE 3. FEES, PAYMENTS, SETOFFS, SECURITY 7
3.1 Fees. 7
3.2 Payments. 7
3.3 Setoffs 7
3.4 Security. 7
ARTICLE 4. CONDITIONS OF BORROWING 8
4.1 Conditions Precedent to the Initial Revolving Credit Loan 8
4.2 Conditions Precedent to Each of the Revolving Credit Loans 9
ARTICLE 5. REPRESENTATIONS AND WARRANTIES 9
5.1 Organization and Authority 9
5.2 Qualification 9
5.3 Investments; Guarantees; Liabilities 10
5.4 Tax Returns and Payments 10
5.5 Title to Properties; Liens 10
5.6 Litigation 10
5.7 Compliance with Law and Other Instruments 10
5.8 Financial Statements 10
5.9 Patents; Trademarks 11
5.10 No Margin Activity 11
5.11 ERISA 11
5.12 Adverse Contracts; Defaults 11
5.13 Environmental Laws 12
5.14 Disclosure 12
5.15 Insurance 12
5.16 Events of Default 12
5.17 Characteristics of Leases and Leased Vehicles 12
ARTICLE 6. AFFIRMATIVE COVENANTS 13
6.1 Bank Deposits 13
6.2 Financial Statements and Reports of the Company 13
6.3 Audited Financial Statements 14
6.4 Inspection 14
6.5 Insurance 14
6.6 Payment of Taxes and Claims 15
6.7 Compliance with Laws 15
6.8 ERISA 15
6.9 Preservation of Limited Liability Company Existence 16
6.10 Maintenance of Tangible Assets 16
6.11 Notices of Certain Events 16
6.12 Records and Books of Account 17
6.13 Performance of Contracts 17
6.14 Notice of Material Litigation 17
6.15 Use of Proceeds 17
6.16 Eligible Lease Originations 17
ARTICLE 7. NEGATIVE COVENANTS 17
7.1 Indebtedness 17
7.2 Liens and Other Encumbrances 18
7.3 Guaranties and Other Contingent Liabilities 18
7.4 Fundamental Changes 18
7.5 Creation of Subsidiaries 18
7.6 Loans or Advances 18
7.7 Investments 19
7.8 Sale and Leaseback 19
7.9 Sale of Accounts 19
7.10 Capital Expenditures 19
7.11 Dividends and Purchases 19
7.12 Tangible Net Worth 19
7.13 Ratio of Consolidated Indebtedness to Consolidated Tangible
Net Worth 20
7.14 Transactions with Affiliates 20
7.15 Organization of Company and WestAH 20
ARTICLE 8. EVENTS OF DEFAULT 21
8.1 Event of Default 21
8.2 Consequences of Event of Default 23
ARTICLE 9. MISCELLANEOUS 23
9.1 Notices 23
9.2 Term of Agreement; Termination; Successors and Assigns 24
9.3 No Implied Rights or Waivers 24
9.4 Applicable Law 24
9.5 Modifications, Amendments or Waivers 24
9.6 Counterparts 25
9.7 Headings 25
9.8 Expenses 25
9.9 Accounting Terms 25
9.10 Severability 25
9.11 Entire Agreement 25
9.12 Certificates, Etc 25
ARTICLE 10. DEFINITIONS 26
ARTICLE 11. EXCULPATION 32
SIGNATURES 32
Exhibit A Amended and Restated Revolving Credit Note
Exhibit B Amended and Restated Company Security Agreement
Exhibit C Amended and Restated Dispute Resolution Agreement
Exhibit D Opinion of Company's and Westar's Counsel
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THIS AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this
"Agreement"), amending and restating the Original Revolving Credit
Agreement (defined below), is made and entered into as of June
___, 1997 by and among WESTAR AUTO FINANCE, L.L.C., a Washington
limited liability company, as borrower (the "Company"), and BANK
ONE, NA, a national banking association formerly known as Bank
One, Columbus, N.A., as lender (the "Lender").
RECITALS
The following recitals are representations with respect to
certain factual matters that form the basis of this Agreement and
are an integral part of this Agreement.
A. The Lender agreed to loan to the Company the maximum sum
of $12,000,000.00 (the "Original Revolving Credit Commitment")
pursuant to the terms and conditions of a certain Revolving
Credit Agreement dated as of July 12, 1995 by and among the
Company, Republic Leasing Incorporated, a Delaware corporation
("Republic"), and the Lender (the "Original Revolving Credit
Agreement");
B. To evidence the Company's borrowings from time to time
under the Original Revolving Credit Commitment (collectively, the
"Prior Revolving Credit Loans"), the Company executed a certain
Revolving Credit Note dated July 12, 1995 (the "Original
Revolving Credit 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 Original Revolving Credit Agreement;
C. To secure the Original Revolving Credit Agreement and
the Original Revolving Credit Note, the Lender and the Company
entered into a certain Company Security Agreement dated as of
July 12, 1995 (the "Original Company Security Agreement");
D. In consideration of the Lender entering into the
Original Revolving Credit Agreement, Republic and Westar Auto
Holding Co., a Washington corporation and the manager of the
Company ("WestAH"), jointly and severally, guaranteed, by a
Guaranty dated as of July 12, 1995, the full and prompt payment
to the Lender of all amounts owing to the Lender under the
Original Revolving Credit Agreement at any time (the "Guaranty");
E. To secure the Guaranty, the Lender and Republic entered
into a certain Guarantor Security Agreement dated as of July 12,
1995 (the "Guarantor Security Agreement");
F. To secure further the Guaranty, the Lender and Republic
entered into a certain Pledge of Stock dated July 12, 1995,
whereby Republic granted to the Lender a security interest in all
of the outstanding shares of stock of WestAH and of Westar Lease
Services, Inc., a Washington corporation ("Westar Lease Services,
Inc."), respectively, and pledged and assigned all of the stock
certificates evidencing such shares to the Lender (the "Stock
Pledge Agreement");
G. To secure further the Guaranty, the Lender and Republic
entered into a certain Pledge of and Assignment of Membership
Interests dated July 12, 1995, whereby Republic assigned,
transferred and set over unto the Lender all of Republic's right,
title and interest in and to 99% of the membership interests of
the Company and all proceeds therefrom and granted and created in
favor of the Lender a perfected security interest therein (the
"Membership Interests Pledge Agreement");
H. In further consideration of the Lender entering into the
Original Revolving Credit Agreement, Xxxxxx X. Xxxxxxxxxxx, Xx.,
an individual, and Xxxxx X. Xxxxxx, an individual, jointly and
severally, agreed, by a certain Validity Agreement dated as of
July 12, 1995, to indemnify the Lender as set forth therein (the
"Original Validity Agreement");
I. In further consideration of the Lender entering into the
Original Revolving Credit Agreement, the Lender, the Company and
Republic entered into a certain Agreement with Respect to
Prevention and Resolution of Disputes dated as of July 12, 1995
(the "Original Dispute Resolution Agreement");
J. The Company, Westar Financial Services Incorporated, a
Washington corporation and successor to Republic, which owns 99%
of the membership interests in the Company ("Westar"), WestAH and
the Lender entered into a certain Amendment to July, 12 1995
Credit Agreement dated as of August 8, 1995 (the "First
Amendment"), whereby (i) the parties to the First Amendment
terminated the Guaranty and the Lender released Westar and WestAH
from all liability thereunder, (ii) the parties terminated the
Guarantor Security Agreement, Stock Pledge Agreement and
Membership Interests Pledge Agreement and the Lender released its
liens on and security interests in the collateral securing the
Guaranty, and (iii) the parties amended the Original Revolving
Credit Agreement so as to delete all references to Westar and
WestAH, as guarantors;
K. The Lender is still the holder and beneficiary of the
Original Revolving Credit Agreement, as amended by the First
Amendment, Original Revolving Credit Note, Original Company
Security Agreement, Original Validity Agreement and Original
Dispute Resolution Agreement (such documents, together with all
other documents related thereto executed by the Company, or by
Republic, Westar, WestAH and/or any of their respective
Affiliates in their representative capacities, are hereinafter
collectively referred to as the "Loan Documents"; provided,
however, that the term "Loan Documents" shall not include the
Guaranty, Guarantor Security Agreement, Stock Pledge Agreement
and Membership Interests Pledge Agreement, it being acknowledged
and agreed that such documents have been terminated pursuant to
the provisions of the First Amendment);
L. The Company and the Lender desire to amend and restate
the Original Revolving Credit Agreement, the Original Revolving
Credit Note and the other Loan Documents to (i) increase the
maximum amount of the Original Revolving Credit Comm
.itment from
$12,000,000 to $25,000,000, (ii) modify various provisions
thereof, and (iii) make certain other changes thereto to reflect
the agreement of the parties set forth in this Agreement;
M. To evidence the agreement of the parties and to reflect
the terms and conditions of this Agreement, the parties shall
execute and deliver this Agreement and the agreements, documents
and instruments contemplated hereby; and
N. Certain capitalized terms used herein are defined in
Article 10 hereof.
AGREEMENT:
NOW, THEREFORE, in consideration of the agreement and
undertakings of the parties hereto set forth herein, and for
other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
ARTICLE 1. AGREEMENT OF THE PARTIES
1.1 Restatement of Obligations. The parties hereto
acknowledge and agree that this Agreement (i) amends and restates
the Company's existing obligations under the Original Revolving
Credit Agreement, as amended by the First Amendment, (ii) is a
continuation of the borrowings evidenced by the Original
Revolving Credit Agreement, as amended and restated hereby, and
(iii) is in substitution of and supersedes the Original Revolving
Credit Agreement, as amended by the First Amendment. The Company
covenants that the Company will perform and observe all
covenants, agreements, stipulations and conditions on the
Company's part to be performed under the Loan Documents, as
amended, restated and modified hereby, and the Exhibits hereto.
1.2 Balance of Revolving Credit Loans. The parties hereby
acknowledge and agree that the outstanding principal balance of
the Original Revolving Credit Note as of ___________, 1997 is
$_____________ and that all accrued interest on the outstanding
principal balance thereof has been paid through ___________,
199__.
1.3 Compliance with Loan Documents. The Company
hereby represents and warrants that the Company 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.
1.4 Continuation of Loan Documents. Except as specifically
modified herein and in the Exhibits hereto, the Loan Documents,
as amended, restated and modified hereby, shall remain in full
force and effect in all respects according to their terms,
covenants and conditions as security for the unpaid balance of
the indebtedness and interest thereon evidenced by this Agreement
and the Restated Note, as if the unpaid balance of the principal,
with the interest accrued thereon, had originally been payable as
provided for herein. Except as specifically set forth herein and
in the Exhibits hereto, nothing in this Agreement shall affect or
impair any rights and powers which the Lender may have thereunder.
ARTICLE 2. REVOLVING CREDIT LOANS
2.1 Increased Revolving Credit Commitment. The Lender
hereby agrees on the terms and conditions of this Agreement to
lend to the Company the maximum sum of Twenty-Five Million
Dollars ($25,000,000) (the "Increased Revolving Credit
Commitment"); provided, however, that so long as there remains
outstanding all or any portion of the $750,000 loan made by the
Lender to Westar pursuant to the terms of a loan agreement dated
January 21, 1997 (the "750,000 Loan"), the Increased Revolving
Credit Commitment available to the Company hereunder shall be
reduced by the outstanding principal amount of the $750,000 Loan.
The Increased Revolving Credit Commitment shall be available to
the Company, subject to the limitations set forth herein, in
whole or part and from time to time until July 12, 1998, and any
amounts borrowed may be repaid in whole or in part and reborrowed
until such date. Each borrowing under the Increased Revolving
Credit Commitment shall be made in accordance with the provisions
of this Section 2.1 and shall be subject to the conditions of
Article 4 (each such borrowing and each Prior Revolving Credit
Loan is hereinafter referred to as a "Revolving Credit Loan").
Each Revolving Credit Loan made hereunder shall be made
pursuant to the request of the Company to the Lender on an
advance request form furnished by the Lender to the Borrower
which request for a Revolving Credit Loan shall specify (i) the
total amount of the Revolving Credit Loan; (ii) the borrowing
date (the "Borrowing Date"), which shall be a Business Day; (iii)
the Eligible Lease Amount of the Leases being financed with the
proceeds of the Revolving Credit Loan; and (iv) a calculation
which demonstrates that after giving effect to the Revolving
Credit Loan, the aggregate principal amount of the Revolving
Credit Loans then outstanding will not exceed the Borrowing Base.
Requests for Revolving Credit Loans may be made on the
applicable Borrowing Date. Revolving Credit Loans requested on a
Business Day on or before 12:00 p.m. (Columbus, Ohio time) shall
be made by the Lender by 3:00 p.m. (Columbus, Ohio time) on the
next succeeding Business Day.
2.2 Revolving Credit Note. The Revolving Credit Loans and
the Company's obligation to repay the same shall be evidenced by
a master promissory note of the Company in the form of Exhibit A
attached hereto (the "Restated Note"). The Restated Note shall
be in substitution for the Original Revolving Credit Note and
shall be executed and delivered by a duly authorized officer of
the Company simultaneously with the execution and delivery of
this Agreement. The Restated Note shall include the following
terms:
(a) Term. The Restated Note shall be dated as of the
date hereof and shall be due and payable in full on or
before July 12, 1998.
(b) Interest Rate on Revolving Credit Loans. Each
Revolving Credit Loan whether outstanding on the date hereof or
made on or after the date hereof shall bear interest as set forth
in the Original Revolving Credit Agreement. From its date, each
Revolving Credit Loan made on or after the date hereof shall bear
interest (computed on the basis of the actual number of days
elapsed over a Business Year) on the unpaid principal balance at
a fluctuating rate per annum equal to three percent (3.0%) above
the LIBOR Rate.
The initial LIBOR Rate for loans made hereunder shall be
the LIBOR Rate in effect as of the initial Borrowing Date
and thereafter shall be the LIBOR Rate in effect as of the
first Business Day of each month (the "Interest
Determination Date") and such LIBOR Rate shall be effective
for all outstanding Revolving Credit Loans until the next
succeeding Interest Determination Date. Any change in the
LIBOR Rate shall be effective immediately upon and after the
related Interest Determination Date. Interest on the
Revolving Credit Loans shall be payable quarterly in arrears
on the last day of each March, June, September and December
(the "Interest Payment Date"), commencing March 31, 1997.
(c) Mandatory Repayments. (i) At no time shall (a) the
amount of any individual Revolving Credit Loan outstanding
exceed the related individual Borrowing Base, or (b) the
amount of the aggregate Revolving Credit Loans outstanding
exceed the aggregate Borrowing Base. The Company shall make
such repayments of an individual Revolving Credit Loan or of
the aggregate Revolving Credit Loans as are necessary to
reduce the principal amount of such individual Revolving
Credit Loan or the aggregate Revolving Credit Loans, as
applicable, to an amount which does not exceed the related
individual Borrowing Base or the aggregate Borrowing Base,
as applicable.
(ii) The Company shall use the proceeds from the sale of
Pooled Interest Certificates to repay all or a portion of
the principal amount of, and accrued interest on, related
outstanding Revolving Credit Loans. The Company shall be
required to repay the entire principal amount of each
outstanding Revolving Credit Loan within six months
following the date on which the related Asset-Specific Trust
Interests were purchased with the proceeds of such Revolving
Credit Loan; provided, however, that the Company may elect
at the time Eligible Leases related to such Asset-Specific
Trust Interests are being reallocated to the Pooled Interest
Portfolio evidenced by such Pooled Interest Certificates to
reallocate Eligible Leases having an aggregate Eligible
Lease Amount of up to $1,000,000 to new Asset-Specific Trust
Interests in which event the principal amount of the then
outstanding Revolving Credit Loans may be reduced to an
amount which does not exceed the Borrowing Base of such
reallocated Eligible Leases. In no event may an Eligible
Lease be reallocated to a new Asset-Specific Trust Interest
more than once. The Lender understands that in order for
the Trust to create a Pooled Interest Portfolio evidenced by
such Pooled Interest Certificates, it will be necessary for
the Lender to release its security interest in those Asset-
Specific Trust Interests related to Trust Assets being
reallocated to such Pooled Interest Portfolio. Except
during the occurrence and continuation of an Event of
Default, the Lender's consent to the release of such
security interest shall not be unreasonably withheld.
(d) Default Rate. Overdue principal and, to the
extent permitted by law, overdue interest in respect of any
Revolving Credit Loan shall bear interest at a rate equal to
the sum of the rate otherwise applicable to such Revolving
Credit Loan pursuant to Section 2.2(b) plus 3% per annum.
The application of this Section 2.2(d) shall not constitute
a waiver of any Event of Default or an agreement by the
Lender to permit any later payments whatsoever.
2.3 Cancellation and Reduction of Increased Revolving Credit
Commitment. The Company shall be entitled to permanently reduce
or cancel the Increased Revolving Credit Commitment from time to
time with the written consent of the Lender and upon such terms
as shall be agreed upon by the Company and the Lender. In the
event of cancellation of the Increased Revolving Credit
Commitment, the principal amount of the Restated Note shall be
paid in full, together with all accrued interest thereon, any
unpaid Unused Commitment Fee accrued to the date of cancellation,
and all other amounts owing to the Lender by the Company
hereunder. There shall be no prepayment penalty or fee of any
kind. In the event of the permanent reduction of the Increased
Revolving Credit Commitment to a level which is less than the
then outstanding principal amount of the Restated Note, the
Restated Note shall be prepaid at the time of such reduction in
an amount equal to the then excess of the Restated Note over the
Increased Revolving Credit Commitment as so reduced. Accrued
interest on the principal amount of the Restated Note repaid
shall be included in the interest due and payable on the next
Interest Payment Date.
2.4 Use of Funds. The proceeds of the Loan shall be used
to fund the purchase by the Company of Asset-Specific Trust
Interests from the Trust, and the Trust, in turn, shall use the
proceeds from the purchase of the Asset-Specific Trust Interests
to originate Eligible Leases, it being the intent of the parties
that the Loan be a "Financing" satisfying the conditions set
forth in Section 5.1(a)(i) of the Trust Agreement.
ARTICLE 3. FEES, PAYMENTS, SETOFFS, SECURITY
3.1 Fees. The Company shall pay to the Lender a fee (the
"Unused Commitment Fee") based on the daily average amount of the
Increased Revolving Credit Commitment not drawn down in Revolving
Credit Loans (the "Unused Commitment") for the period beginning
with the date hereof and ending July 12, 1998 or on the sooner
cancellation in full of the Increased Revolving Credit
Commitment. The Unused Commitment Fee shall be payable quarterly
in arrears and when the Increased Revolving Credit Commitment is
fully terminated, on the date of such cancellation. The amount
of the Unused Commitment Fee shall be equal to one-eighth of one
percent (1/8%) per annum of the Unused Commitment (computed on
the basis of the actual number of days elapsed over a Business
Year).
In addition to the Unused Commitment Fee and the payments
required to be made by the Company to the Lender under Section
9.8 hereof, the Company shall pay to the Lender a one-time fee
(the "Commitment Fee") of $12,188.00, to be paid prior to or at
closing irrespective of the total amount advanced hereunder,
which sum is to compensate the Lender for processing the
Company's request to amend and restate the Original Revolving
Credit Agreement.
3.2 Payments. All payments and prepayments by the Company
to be made in respect of the Unused Commitment Fee or of
principal or interest on the Restated Note shall become due at
1:30 p.m., Columbus, Ohio time on the day when due, and shall be
made to the Lender in federal funds or other immediately
available lawful money of the United States of America. Whenever
any payment to be made hereunder shall be due other than on a
Business Day, such payment shall be made on the next succeeding
Business Day and such extension of time shall in such case be
included in the computation of interest or fees hereunder.
3.3 Setoffs. Upon the occurrence of any Event of Default,
the Lender shall have the right to set off against all
obligations of the Company to the Lender under this Agreement and
the Restated Note, whether matured or unmatured, all amounts
owing to the Company by the Lender, whether or not then due and
payable, and all funds or property of the Company on deposit with
or otherwise held or in the custody of the Lender for the
beneficial account of the Company. Such funds shall be charged
against accrued interest on and/or principal of the Restated
Note, as the Lender may determine in its discretion.
3.4 Security. As security for the payment of the Restated
Note and for the performance of, and compliance with all of the
terms, covenants, conditions, stipulations and agreements
contained in this Agreement and in the Restated Note, the
Company, by the security agreement in the form attached hereto as
Exhibit B and incorporated herein by this reference (the
"Restated Company Security Agreement") and by other instruments,
shall, as provided in the Restated Company Security Agreement,
assign and grant to the Lender a perfected security interest in
all the collateral described in the Restated Company Security
Agreement. The Restated Company Security Agreement amends and
restates the Original Company Security Agreement.
ARTICLE 4. CONDITIONS OF BORROWING
The obligation of the Lender to make the Revolving Credit
Loans to the Company provided for hereunder shall be subject to
the following conditions:
4.1 Conditions Precedent to the Initial Revolving Credit
Loan. Prior to the disbursement of the initial Revolving Credit
Loan made on or after the date hereof, the Company shall furnish
to the Lender the following, each dated the date of the
disbursement of such initial Revolving Credit Loan, in form and
substance satisfactory to the Lender and counsel for the Lender:
(a) The duly executed Restated Note in the form of the
attached Exhibit A;
(b) Certified copies of the resolutions of the Company
authorizing the execution, delivery and performance of the
Company's obligations under this Agreement, the Restated
Note and the Restated Company Security Agreement;
(c) Certificate of the Secretary or of Assistant
Secretary of WestAH, which shall certify the respective
names of the officers of WestAH authorized to sign, on
behalf of WestAH as manager of the Company, this Agreement,
the Restated Note, the Restated Company Security Agreement
and any other documents or certificates to be delivered
pursuant to this Agreement by the Company or any of its
officers, together with the true signatures of such
officers. The Lender may conclusively rely upon such
certificate until it shall receive a further certificate of
the Secretary or an Assistant Secretary of WestAH canceling
or amending the prior certificate and submitting the
signatures of the officers named in such further certificate;
(d) The duly executed Restated Company Security
Agreement;
(e) The duly executed Amended and Restated Agreement
with Respect to Prevention and Resolution of Disputes in the
form of the attached Exhibit C (the "Restated Dispute
Resolution Agreement");
(f) Opinion of counsel to the Company addressed to the
Lender opining as to the matters set forth in Exhibit D
hereto and as to such other matters as the Lender may
request and containing only such qualifications as are
acceptable to the Lender and its counsel;
(g) The duly executed Amended and Restated Validity
Agreement in the Form of the Attached Exhibit E (the
"Restated Validity Agreement");
(h) The Company shall have paid to the Lender the
Commitment Fee in the amount of $12,188.00 and shall have
reimbursed the Lender for its closing costs, including,
without limitations, fees and disbursements of its counsel,
in an amount not to exceed $10,000.00; and
(i) Such other opinions, certificates, affidavits,
documents and filings as the Lender may deem reasonably
necessary or appropriate.
4.2 Conditions Precedent to Each of the Revolving Credit
Loans. At the time of each Revolving Credit Loan after the
initial Revolving Credit Loan, all mandatory repayments required
by Section 2.2(c) shall have been made; the Company shall be in
compliance with all of the other provisions, warranties and
covenants contained in this Agreement with which it is to comply;
and there shall exist no Event of Default or Default.
ARTICLE 5. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Lender, which
representations and warranties shall survive the execution and
delivery of this Agreement and the Restated Note, as follows.
5.1 Organization and Authority. The Company is a limited
liability company, and Westar is a corporation, each duly
organized, validly existing and in good standing under the laws
of the jurisdictions of their respective formation, and having
all requisite power and authority to own and operate their
properties and to carry on their businesses as now conducted.
The execution, delivery and performance of this Agreement, the
Restated Company Security Agreement and the Restated Note have
been duly authorized by the Company by all necessary limited
liability company actions; there is no prohibition, either in
law, in their respective articles of incorporation, certificate
of incorporation, certificate of formation, limited liability
company agreement, code of regulations, bylaws, or directors'
bylaws, if any, or in any order, writ, injunction or decree of
any court or arbitrator presently in effect having applicability
to the Company or Westar which in any way prohibits or would be
violated by the execution and performance of this Agreement, the
Restated Company Security Agreement and the Restated Note in any
respect; and this Agreement, the Restated Company Security
Agreement and the Restated Note are and will be valid, binding
and enforceable obligations of the Company, except as enforcement
thereof may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors rights generally and
except to the extent enforcement thereof may be limited by the
application of general principles of equity.
5.2 Qualification. The Company and Westar are each duly
qualified or licensed and in good standing as a foreign
corporation or limited liability company, as applicable, duly
authorized to do business in each jurisdiction in which the
character of the properties owned or leased or the nature of the
activities conducted by them makes such qualification or
licensing necessary and in which the failure to be so qualified
would have a materially adverse effect on the conduct of the
business of the Company or Westar.
5.3 Investments; Guarantees; Liabilities. The Company and
Westar have made no investments in, advances to or guarantees of
the obligations of any Person. Neither the Company nor Westar
has any material Liabilities, direct or contingent, in excess of
$100,000.
5.4 Tax Returns and Payments. The Company and Westar have
filed all tax returns required by law to be filed and have paid
all taxes, assessments and other governmental charges of any
material nature, either in amount or effect, levied upon any of
their respective properties, assets, income or franchises, other
than those not yet delinquent. The charges, accruals and
reserves on the books of the Company and Westar in respect to
income taxes for all respective fiscal periods are adequate in
the opinion of the Company and Westar, and neither the Company
nor Westar knows of any unpaid assessment for additional income
taxes for any fiscal period or of any basis therefor.
5.5 Title to Properties; Liens. The Company and Westar have
good and marketable title to all of their respective property and
assets, in each case including, but not limited to, the property
and assets reflected as being owned by Westar on the Balance
Sheet except such as have been disposed of in the ordinary course
of business since the date of the Balance Sheet and all such
property and assets are free and clear of mortgages, pledges,
liens, charges or other encumbrances except such as are not
prohibited by Section 7.2 hereof. The Company and Westar enjoy
peaceful and undisturbed possession under all leases under which
they are lessee which are material to the conduct of the
businesses of the Company or Westar and all of such leases are
valid, subsisting and in full force and effect in accordance with
their terms. None of such leases contains any provision
restricting incurrence of Indebtedness by the Company or Westar
or any provision which materially adversely affects or in the
future might materially adversely affect the business of the
Company or Westar.
5.6 Litigation. There is no court action, other proceeding
or investigation pending or threatened which questions the
validity of this Agreement, the Restated Company Security
Agreement or the Restated Note or any action taken or to be taken
pursuant thereto or which might result, either separately or in
the aggregate, in any materially adverse change in the business,
operations, affairs or condition of the Company or Westar.
5.7 Compliance with Law and Other Instruments. The Company
is not in violation of, and the execution, delivery and
performance of this Agreement, the Restated Company Security
Agreement and the Restated Note do not and will not result in a
violation of nor a conflict with or default under any agreement,
instrument, judgment, decree, order, statute or governmental rule
or regulation applicable to the Company or Westar or by which
either are bound, which now or in the future may materially
adversely affect either of their respective businesses,
operations, affairs or condition.
5.8 Financial Statements. Westar has furnished to the
Lender consolidated financial statements of Westar including (i)
an audited balance sheet, statement of income, statement of
shareholders' equity and an audited statement of cash flow as at
and for the fiscal year ended March 31, 1996, and (ii) an
unaudited balance sheet (the "Balance Sheet") and income
statement at and for the twelve-month period ending March 31,
1997. Such financial statements are complete and correct in all
material respects and fairly reflect the financial condition of
Westar as at such dates and the results of operations of Westar
as at such dates and for the period ended on such dates. Since
the date of such statements no materially adverse change has
occurred in the business, operations, affairs or condition
(financial or otherwise) of Westar.
5.9 Patents; Trademarks. The Company and Westar possess and
have made all filings with the United States Patent and Trademark
Office and appropriate state agencies to evidence in each of
them, respectively, full and complete title to all the patents,
trademarks, service marks, trade names, copyrights and licenses
and rights in respect of the foregoing which are essential to the
conduct of their businesses, without any known conflict with the
rights of others.
5.10 No Margin Activity. Neither the Company nor Westar is
engaged in the business of extending or obtaining credit for the
purpose of purchasing or carrying margin stock (within the
meaning of Regulation U of the Board of Governors of the Federal
Reserve System, as is now and may from time to time hereafter be
in effect) and no part of the proceeds of any Revolving Credit
Loans shall be used to purchase or carry any such margin stock or
to extend credit to others for the purpose of purchasing or
carrying any such margin stock or to reduce or retire any
indebtedness incurred for any such purpose. No part of the
proceeds of the Loan will be used for any purpose which violates,
or which is inconsistent with, the provisions of Regulations G,
T, U or X of the Board of Governors.
5.11 ERISA. Each Plan maintained by the Company or Westar
and by each ERISA Affiliate complies with all material applicable
requirements of ERISA and of the Code and with all material
applicable rulings and regulations issued under the provisions of
ERISA and the Code setting forth those requirements. Neither the
Company nor Westar nor any ERISA Affiliate has engaged in any
prohibited transaction (as defined in Section 406 of ERISA or
Section 4975 of the Code) (i) which has not been corrected within
the correction period applicable to it under Section 502(i) of
ERISA or Section 4963(e) of the Code or (ii) for which an
exemption has not been obtained under Section 408 of ERISA or
Section 4975 of the Code. Neither the Company nor Westar nor any
ERISA Affiliate is a participant in (i) any Multiemployer Plan,
(ii) any other Plan which is subject to Title IV of ERISA, or
(iii) any money purchase pension plan.
5.12 Adverse Contracts; Defaults. Neither the Company nor
Westar is a party to any agreement or instrument or subject to
any charter or other corporate or limited liability company
restriction materially adversely affecting their respective
businesses, properties or assets, operations or condition
(financial or otherwise). Neither the Company nor Westar is in
default in any material respect in the performance, observance or
fulfillment of any of the obligations, covenants or conditions
contained in any agreement or instrument to which it is a party.
5.13 Environmental Laws. No release, emission, or discharge
into the environment of hazardous substances, as defined under
the Comprehensive Environmental Response, Compensation and
Liability Act, as amended, or hazardous waste as defined under
the Solid Waste Disposal Act, as amended, or air pollutants as
defined under the Clean Air Act, or toxic pollutants as defined
under the Clear Air Act, or the Toxic Substances Control Act, has
occurred or is presently occurring in excess of federally
permitted releases or reportable quantities, or other
concentrations, standards or limitations under, and which would
constitute a material violation of, the foregoing laws or under
any other federal, state or local laws or regulations, in
connection with any aspect of the business of Westar, the Company
or any other the Subsidiary. Except as previously disclosed in
writing to the Lender, the Company and Westar have no knowledge
of any past or existing violations of any environmental laws,
ordinances or regulations issued by any federal, state or local
governmental authority.
5.14 Disclosure. No information, exhibit or report furnished
by the Company or Westar to the Lender in connection with the
negotiation of this Agreement contained any material misstatement
of fact or omitted to state a material fact or any fact necessary
to make the statements contained therein not misleading. There
is no fact known to the Company or Westar which materially
adversely affects or in the future may (so far as the Company or
Westar can now foresee) materially adversely affect the business,
operations, affairs or condition of the Company or Westar or any
of their respective properties or assets which has not been set
forth in this Agreement or in the Exhibits hereto.
5.15 Insurance. All of the properties and operations of the
Company and Westar of a character usually insured by Persons of
established reputation engaged in the same or similar businesses
similarly situated are adequately insured, by financially sound
and reputable insurance companies, against loss or damage of the
kinds and in amounts customarily insured against by such Persons
and the Company and Westar carry, with such insurers in customary
amounts, such other insurance, including public and product
liability, as is usually carried by Persons of established
reputation engaged in the same or similar businesses similarly
situated.
5.16 Events of Default. There does not exist any Event of
Default or Default hereunder.
5.17 Characteristics of Leases and Leased Vehicles. Each
Lease and, to the extent applicable, each Leased Vehicle will be:
(a) written with respect to a Leased Vehicle that was at the time
of the origination of the related Lease a new vehicle, a limited
mileage dealer demonstrator or used vehicle or a manufacturer's
program vehicle; (b) originated by a dealer located in the states
of Idaho, Montana, Oregon, Utah or Washington (or such other
states as shall be mutually agreed to by the parties) in the
ordinary course of its business and in compliance with Westar's
normal lease contract underwriting policies and practices; (c)
owned by the Trustee on behalf of the Trust free of all liens
except for liens permitted by the Trust Agreement or the Lease
Purchase Agreement; (d) originated in compliance with, and
complies with, all material applicable legal requirements; (e)
evidenced by a certificate of title registered in the name of the
Trustee; (f) a closed-end lease that (i) requires equal monthly
payments to be made within 60 months of the date of origination
of such contract and (ii) requires such payments to be made by
the lessee thereof within 30 days after the date invoices for
payments are distributed; (f) a Lease which fully amortizes to an
amount equal to the residual value of the related Leased Vehicle
based on a fixed annual percentage rate calculated on a constant
yield basis; (g) fully assignable and will not require the
consent of the lessee thereof as a condition to any transfer,
sale or assignment of the rights of the originator; (h) a Lease
which has never been extended; (i) a Lease as to which the lessee
thereunder is not bankrupt or currently the subject of a
bankruptcy proceeding; (j) not more than 60 days past due; (k) a
Leased Vehicle which has not been repossessed; and (l) a Lease
which satisfies the written underwriting criteria separately
delivered by the Lender to the Company which underwriting
criteria may be amended from time to time by agreement of the
parties.
ARTICLE 6. AFFIRMATIVE COVENANTS
Until payment in full of the Restated Note and performance of
all other obligations of the Company hereunder:
6.1 Bank Deposits. The Company covenants that the Lender
shall be the principal bank of account and primary depository for
the Company and Westar; provided, however, that Lender hereby
consents to the Company's maintenance of its existing depository
and disbursement account with First Community Bank.
6.2 Financial Statements and Reports of the Company. (a)
Not later than thirty (30) days following the end of each fiscal
quarter, the Company shall cause Westar to furnish to the Lender
the following items in form and substance satisfactory to the
Lender:
(i) An unaudited income statement of Westar for the
fiscal quarter and fiscal year to date and copies of the
statements for the same periods of the previous year;
(ii) An unaudited balance sheet of Westar as of the end
of such fiscal quarter and copies of such statements for the
same period of the previous year;
(iii) A certificate from the chief financial officer of
Westar stating that (i) the financial statements are
complete and correct in all material respects and fairly
represent the financial position of Westar as of their
respective dates and the results of Westar's operations for
the periods then ended; (ii) the Company and Westar have
complied with and is then in compliance with all terms and
covenants of this Agreement; and (iii) there exists no
Default or Event of Default; and
(iv) An aging report of all Leases in form and substance
satisfactory to the Lender.
(b) Not later than three (3) Business Days following the
end of each week, the Company shall furnish the Lender a
Borrowing Base certificate containing (i) a calculation of
the Borrowing Base for each week on a consolidated basis in
detail satisfactory to the Lender, (ii) so long as any
Revolving Credit Loans remain outstanding, an affirmative
certification from the Company's chief executive officer or
chief financial officer that the Borrowing Base is equal to
or greater than the amount of Revolving Credit Loans
outstanding, and (iii) in the event that any individual
Borrowing Base is less than the related individual Revolving
Credit Loan or the aggregate Borrowing Base is less than the
aggregate Revolving Credit Loans, a calculation of the
amount of the repayment of the related Revolving Credit Loan
or Revolving Credit Loans required pursuant to Section
2.2(c) hereof.
6.3 Audited Financial Statements.
(a) Not later than ninety (90) days following the end of
each fiscal year of Westar, beginning with the fiscal year
ended March 31, 1997, the Company shall cause Westar to
furnish to the Lender, in form and substance satisfactory to
the Lender, complete consolidated financial statements for
Westar for such fiscal year certified by an independent
certified public accountant acceptable to the Lender, with
an opinion not significantly qualified.
(b) Each of the financial statements delivered under
this Section 5.3 shall be accompanied by a certificate of
the chief financial officer of Westar stating that except as
disclosed in the certificate such officer has no knowledge
of a Default or an Event of Default hereunder and setting
Lender the financial status of Westar (at the end of, or, in
the case of incurrence tests, during such accounting period)
in respect of the restrictions contained in Sections 7.12
and 7.13 and, if applicable, the requirements contained in
Section 6.16 hereof.
6.4 Inspection. The Lender shall have the right to review
the books and records of the Company and Westar regarding their
business affairs and financial condition and to copy the same and
make excerpts therefrom, and to inspect the assets of the Company
which are subject to the Restated Company Security Agreement, at
all times during regular business hours; so long as such
inspections do not unreasonably interfere with or impede the
operations of Westar or the Company.
6.5 Insurance. The Company shall, and shall cause Westar to,
insure and maintain insurance upon all of their assets and
business properties and product liability insurance with
responsible and reputable insurers of such character and in such
amounts as are usually maintained by companies engaged in like
business. All insurance policies shall be written for the
benefit of Westar, the Company and the Lender as their interests
may appear and shall contain a provision requiring the insurance
company to provide the Lender not less than ten days' written
notice prior to cancellation of any such policy. All insurance
policies or certificates evidencing the same shall be furnished
to the Lender.
6.6 Payment of Taxes and Claims. The Company shall pay, and
shall cause Westar to pay, all taxes, assessments and other
governmental charges imposed upon their respective properties or
assets or in respect of any of their franchises, business, income
or profits before any penalty or interest accrues thereon, and
all claims (including, without limitation, claims for labor,
services, materials and supplies) for sums which have become due
and payable and which by law have or might become due and payable
and which by law have or might become a lien or charge upon any
of their properties or assets, provided that (unless any material
item of property would be lost, forfeited or materially damaged
as a result thereof) no such charge or claim need be paid if the
amount, applicability or validity thereof is currently being
contested in good faith and if such reserve or other appropriate
provision, if any, as shall be required by GAAP shall have been
made therefor.
6.7 Compliance with Laws. The Company shall comply, and
shall cause Westar to comply, in all substantial respects with
all applicable statutes, laws, ordinances and governmental rules,
regulations and orders to which they are subject or which are
applicable to their businesses, properties and assets if
noncompliance therewith would materially adversely affect such
businesses, including, but not limited to, all applicable
Federal, state, regional, county or local laws, statutes, rules,
regulations or ordinances concerning public health, safety or the
environment; provided that, unless such contest or noncompliance
would materially adversely affect such business, Westar or the
Company need not so comply if any such statute, law, ordinance,
or governmental rule, regulation or order is currently being
contested in good faith.
6.8 ERISA. The Company shall furnish, and cause Westar to
furnish, to Lender: (a) promptly and in any event within 10 days
after Westar or the Company knows or has reason to know of the
occurrence of a Reportable Event with respect to a Plan with
regard to which notice must be provided to the PBGC, a copy of
such materials required to be filed with the PBGC with respect to
such Reportable Event and in each such case a statement of the
chief financial officer of Westar or the Company, as relevant,
setting forth details as to such Reportable Event and the action
which Westar or the Company, as applicable, proposes to take with
respect thereto; (b) promptly and in any event within 10 days
after Westar or the Company knows or has reason to know of any
condition existing with respect to a Plan which presents a
material risk of termination of the Plan, imposition of an excise
tax, requirement to provide security to the Plan or incurrence of
other liability by Westar or the Company or any ERISA Affiliate a
statement of the chief financial officer of the Company or such
Subsidiary describing such condition; (c) at least 10 days prior
to the filing by any plan administrator of a Plan of a notice of
intent to terminate such Plan, a copy of such notice;
(d) promptly and in no event more than 10 days after the filing
thereof with the Secretary of the Treasury, a copy of any
application by Westar or the Company or an ERISA Affiliate for a
waiver of the minimum funding standard under section 412 of the
Code; (e) promptly and in no event more than 10 days after the
filing thereof with the Internal Revenue Service, copies of each
annual report which is filed on Form 5500 together with certified
financial statements for the Plan (if any) as of the end of such
year and actuarial statements on Schedule B to such form 5500;
(f) promptly and in any event within 10 days after it knows or
has reason to know of any event or condition which might
constitute grounds under section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer,
any Plan, a statement of the chief financial officer of the
Company or such Subsidiary describing such event or condition;
(g) promptly and in no event more than 10 days after receipt
thereof by Westar or the Company or any ERISA Affiliate, a copy
of each notice received by Westar or the Company or an ERISA
Affiliate concerning the imposition of any withdrawal liability
under section 4202 of ERISA; and (h) promptly after receipt
thereof a copy of any notice Westar or the Company or any ERISA
Affiliate may receive from the PBGC or the Internal Revenue
Service with respect to any Plan or Multiemployer Plan; provided,
however, that this subsection (h) shall not apply to notices of
general application promulgated by the PBGC or the Internal
Revenue Service.
6.9 Preservation of Corporate Existence. The Company shall
preserve and maintain, and shall cause Westar to preserve and
maintain, its corporate or limited liability company existence,
as applicable, rights, franchises and privileges in the
jurisdiction of their incorporation or formation or in any other
jurisdiction they shall select, and qualify and remain qualified
as a foreign corporation or limited liability company, as
applicable, in each jurisdiction in which such qualification is
necessary or desirable in view of their business and operations
or the ownership of their properties.
6.10 Maintenance of Tangible Assets. The Company shall, and
shall cause Westar to, maintain its tangible assets in good
condition and repair and shall not permit any action or omission
which might materially impair the value thereof, normal wear and
tear excepted.
6.11 Notices of Certain Events. The Company shall, and shall
cause Westar to, within five Business Days of the occurrence
thereof give notice to the Lender of:
(a) Any Default or Event of Default;
(b) Any default or event of default under any
contractual obligation of Westar or the Company that would
have a materially adverse effect on Westar or the Company;
or
(c) A materially adverse change in the business,
operations, affairs or condition (financial or otherwise) of
Westar or the Company which threatens the ability of the
Company to satisfy any of its obligations to make payments
of the principal of, or interest on, the Loan pursuant to
the terms of this Agreement and the Restated Note.
Each notice pursuant to this Section 6.11 shall be accompanied by
a statement of the chief executive officer or chief financial
officer of Westar or the Company, as applicable, setting forth
details of the occurrence referred to therein and stating what
action Westar or the Company, as applicable, proposes to take
with respect thereto.
6.12 Records and Books of Account. The Company shall, and
shall cause Westar to, keep adequate records and books of account
in which complete entries will be made in accordance with GAAP,
reflecting all financial transactions required by GAAP to be so
reflected.
6.13 Performance of Contracts. The Company shall, and shall
cause Westar to, perform and comply with, in accordance with
their terms, all material provisions of each and every contract,
agreement or instrument now or hereafter binding upon them,
except to the extent that they shall contest the provisions
thereof in good faith and by proper proceedings.
6.14 Notice of Material Litigation. The Company shall, and
shall cause Westar to, promptly notify the Lender in writing of
any litigation, arbitration proceeding or administrative
investigation, inquiry or other proceeding to which Westar or the
Company may hereafter become a party which may involve any risk of
any judgment or liability not fully covered by insurance or which
may otherwise result in any materially adverse change of the
business, operations, affairs or condition (financial or
otherwise) of Westar or the Company or which may impair the
ability of Westar or the Company to perform their respective
obligations under this Agreement, the Restated Company Security
Agreement, the Restated Note or any other agreement or instrument
contemplated hereby or thereby.
6.15 Use of Proceeds. The Company shall use all proceeds of
the Revolving Credit Loans for legal and proper purposes, and
such uses shall be consistent with all applicable laws.
6.16 Eligible Lease Originations. In the event that the
aggregate Indebtedness of the Company and Westar to the Lender
exceeds $12,000,000 at any time, the cumulative number of
Eligible Leases funded by the Company and included as a part of
the Trust Assets after the date hereof through and including the
last day of each calendar month occurring thereafter must be
equal to or greater than the product of 120 multiplied by the
number of full calendar months elapsed subsequent to the date
hereof.
ARTICLE 7. NEGATIVE COVENANTS
Until payment in full of the Restated Note and the
performance of all other obligations of the Company hereunder,
without the prior written consent of the Lender:
7.1 Indebtedness. The Company shall not create, incur,
assume or suffer to exist any Indebtedness, except for (a)
Indebtedness to the Lender and (b) trade payables incurred in the
ordinary course of business.
7.2 Liens and Other Encumbrances. The Company shall not,
and shall not permit Westar or any other Subsidiary to, create,
incur, assume or suffer to exist any security interest, mortgage,
pledge, lien or other encumbrance of any nature whatsoever on any
of its property or assets whether now owned or hereafter
acquired, except (i) liens securing the payment of taxes, either
not yet due or the validity of which is being contested in good
faith by appropriate proceedings (so long as no material item of
property would be lost, forfeited or materially damaged as a
result thereof), and as to which Westar or the Company or such
other Subsidiary, as the case may be, shall, as appropriate under
GAAP, have set aside on its books and records adequate reserves;
(ii) deposits under workers' compensation, unemployment
insurance, social security and other similar laws or to secure
the performance of bids, tenders or contracts (other than for the
repayment of purchase price Indebtedness or borrowed money) or to
secure statutory obligations or surety or appeal bonds, or to
secure indemnity, performance or other similar bonds, all in the
ordinary course of business; or (iii) liens and security
interests in favor of the Lender.
7.3 Guaranties and Other Contingent Liabilities. The
Company shall not, and shall not permit Westar or any other
Subsidiary to, become an indemnitor, guarantor or surety or
otherwise become liable for any of the obligations or liabilities
of any Person.
7.4 Fundamental Changes. The Company shall not, and shall
not permit Westar or any other Subsidiary to, (i) enter into any
transaction of merger or consolidation or amalgamation, or (ii)
liquidate, wind-up or dissolve itself (or suffer any liquidation
or dissolution), or (iii) convey, sell, lease, transfer or
otherwise dispose of, in one transaction or a series of
transactions, all or any substantial part of its business or
assets, whether now owned or hereafter acquired, or (iv) acquire
by purchase or otherwise all or substantially all the business or
assets of, or stock or other evidence of beneficial ownership of,
any Person, or (v) make any material change in the nature of its
business or in the methods by which it conducts business, or (vi)
amend its articles of incorporation, certificate of
incorporation, certificate of formation or limited liability
company agreement, as applicable, to create or authorize the
creation of any class or series of stock or membership interests,
as applicable, other than the class or series of stock or
membership interests now authorized in its articles of
incorporation, certificate of incorporation, certificate of
formation or limited liability company agreement, as applicable,
heretofore delivered to the Lender; provided, however, that after
Company may be merged with or into or consolidated with Westar,
so long as Westar is the surviving entity.
7.5 Creation of Subsidiaries. The Company shall not, and
shall not permit Westar or any other Subsidiary to, create or
acquire any additional Subsidiaries, and the Company represents
and warrants that Westar Auto Holding Co., a Washington
corporation and the manager of the Company ("WestAH") is the only
Subsidiary of Westar.
7.6 Loans or Advances. The Company shall not, and shall not
permit Westar or any other Subsidiary to, make loans or advances
to any Person.
7.7 Investments. The Company shall not, and shall not
permit Westar or any other Subsidiary to, acquire or purchase the
securities of any Person.
7.8 Sale and Leaseback. The Company shall not, and shall
not permit Westar or any other Subsidiary to, enter into any
agreement with any lender or investor providing for the leasing
of (i) real or personal property which has been or is to be sold
or transferred by Westar, the Company or any other Subsidiary to
such lender or investor or (ii) other real or personal property
intended to be used for substantially the same purpose as the
property sold or transferred by Westar, the Company or any other
Subsidiary.
7.9 Sale of Accounts. The Company shall not, and shall not
permit Westar or any other Subsidiary to, sell, assign or
exchange any of its Accounts or notes receivable with or without
recourse.
7.10 Capital Expenditures. Westar shall not purchase, on a
consolidated basis, fixed or capital assets in any fiscal year in
an amount in excess of $250,000.
7.11 Dividends and Purchases. The Company shall not, and
shall not permit Westar or any other Subsidiary to, declare or
pay on, or make any distribution to the holders of any shares of
capital stock of Westar of any class or any membership interest
of the Company, and the Company shall not, and shall not permit
Westar or any other Subsidiary to, purchase, redeem or otherwise
acquire for consideration any shares of capital stock of Westar
of any class or any membership interests of the Company except as
hereinafter provided. Subject to the provisions of Sections 7.12
and 7.13 hereof and provided no Event of Default or Default shall
have occurred and be continuing, or would result therefrom,
Westar may (a) declare or pay on, or make a distribution to the
holders of (i) any shares of preferred stock now outstanding at a
dividend rate not to exceed 10% per annum, and (ii) any shares of
common stock, if after giving effect to any such payment the
Tangible Net Worth of Westar would not be less than $2,200,000
and (b) purchase, redeem or otherwise acquire for consideration
any shares of capital stock of Westar if after giving effect to
such payment, the Tangible Net Worth of Westar would not be less
than $2,200,000.
7.12 Tangible Net Worth. The Company shall not permit
Westar's consolidated Tangible Net Worth to be less than the
amount listed in column (b) of this section at any time during
the period listed opposite such amount in column (a) of this
section:
(a) (b)
For the period from Amount
The date hereof through March 31, 1997 $1,000,000
April 1, 1997 and thereafter $2,000,000
In addition, the Company shall not permit Westar's consolidated
Tangible Net Worth to be less than $7,000,000 at the end of any
fiscal quarter during which the aggregate principal amount of
outstanding Revolving Credit Loans exceeded $12,000,000 at any
time.
7.13 Ratio of Consolidated Indebtedness to Consolidated
Tangible Net Worth. The Company shall not permit the ratio of
consolidated total Indebtedness to consolidated Tangible Net
Worth of Westar to exceed the ratio listed in column (b) of this
section at any time during the period listed opposite such ratio
in column (a) of this section:
(a) (b)
For the period Ratio
From the date hereof through March 31, 1996 5:1
From April 1, 1997 and thereafter 4:1
7.14 Transactions with Affiliates. The Company shall not,
and shall not permit Westar or any other Subsidiary to: (i) enter
into any transaction, including without limitation, the purchase,
sale or exchange of property or the rendering of any services,
with any Affiliate or any officer or director thereof, enter
into, assume or suffer to exist any employment or consulting
contract with any Affiliate or any officer or director thereof or
any former or current officer or director of Westar or the
Company, except any transaction or contract which is in the
ordinary course of Westar's or the Company's business and which
is upon fair and reasonable terms no less favorable to Westar or
the Company than it would obtain in a comparable arms-length
transaction with a Person not an Affiliate; or (ii) pay any fees
or expenses to, or reimburse or assume any obligation for the
reimbursement of any expenses incurred by, any Affiliate or any
officer or director thereof except as may be permitted in
accordance with the preceding clauses of this Section.
7.15 Organization of the Company and WestAH. The Company
shall not amend its limited liability company agreement in any
manner which would (1) relax the limitations on the Company's
business set forth therein, (2) increase the number of members of
the Company or (3) change the identity of the manager. The
Company shall not permit WestAH to amend its articles of
incorporation in any manner which would (a) relax the limitations
on WestAH's business set forth therein, (b) relax the
requirements that WestAH maintain at least one independent
director, (c) alter the duties, powers, rights and
responsibilities of such director or (d) otherwise relax the
provisions contained therein which (i) limit the indebtedness
incurred by WestAH, (ii) restrict WestAH from initiating
bankruptcy proceedings or (iii) require WestAH to maintain its
existence as a corporation separate and apart from its affiliates.
ARTICLE 8. EVENTS OF DEFAULT
8.1 Event of Default. Event of Default shall mean the
occurrence of one or more of the following described events:
(a) The Company defaults in the payment of any
principal of the Restated Note when the same shall become
due, either by the terms thereof or otherwise as herein
provided and such default continues for a period of five (5)
Business Days;
(b) The Company defaults in payment of any Unused
Commitment Fee, Commitment Fee or any interest on the
Restated Note or of any other payment due the Lender under
this Agreement when the same shall become due, either by the
terms thereof or otherwise as herein provided and such
default continues for a period of five (5) Business Days;
(c) The Company defaults in the payment of any amount
due to Lender pursuant to the terms of any promissory note
or other instrument and such default continues for five (5)
Business Days;
(d) The Company defaults in the performance or
observance of any covenant, condition or agreement contained
in the Restated Company Security Agreement or there is a
breach of any of the terms of the Restated Validity
Agreement or the Restated Dispute Resolution Agreement;
(e) Westar or the Company shall default in the payment
of any material Indebtedness, other than any Indebtedness
due Lender, beyond any period of grace provided with respect
thereto, or the Company defaults in the performance of any
agreement under which such Indebtedness payment obligation
is created if the effect of such default is to cause or
permit the holder or holders of such obligation (or a
representative of such holder or holders) to cause, such
payment obligation to become due prior to its date of
maturity and such default continues for five (5) Business
Days;
(f) Any representation or warranty made by the Company
herein or in the Restated Company Security Agreement in any
report, certificate or writing furnished in connection with
or pursuant to this Agreement shall be false or incorrect
in any material respect on the date as of which made;
(g) The Company shall default in the performance or
observation of any covenant, condition or agreement in
Articles 6 or 7 hereof;
(h) The Company shall default in the performance or
observation of any covenant, condition or agreement made or
required to be observed or performed by the Company or
Westar under this Agreement other than any covenant,
condition or agreement described in Articles 6 or 7 hereof
and such default shall continue without cure for thirty (30)
days after written notice thereof shall have been given to
the Company by the Lender;
(i) Westar or the Company make an assignment for the
benefit of creditors;
(j) Westar or the Company petitions or applies to any
tribunal for the appointment of a trustee or receiver of
Westar or the Company or of any substantial part of the
assets of the Company, or commences any proceeding relating
to Westar or the Company under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of
debt, dissolution or liquidation law of any jurisdiction
whether now or hereafter in effect;
(k) Any petition or application is filed, or any
proceedings are commenced against Westar or the Company and
Westar or the Company by any act indicates its approval
thereof, consent thereto, or acquiescence therein, or any
order is entered appointing a trustee or receiver, or
adjudicating Westar or the Company bankrupt or insolvent, or
approving the petition in any such proceedings and such
order remains unstayed or undischarged for more than sixty
(60) days; provided, however, that the Lender shall be under
no obligation to make Revolving Credit Loans hereunder
during the period that such order is unstayed or
undischarged;
(l) Any order is entered in any proceedings against
Westar or the Company decreeing the dissolution of Westar or
the Company and such order remains unstayed or undischarged
for more than sixty (60) days;
(m) A final judgment or judgments for the payment of
money in excess of an aggregate of $100,000 shall be
rendered against Westar or the Company and such judgment or
judgments shall remain undischarged for a period of sixty
(60) consecutive days during which the execution shall not
be effectively stayed;
(n) The Company defaults in the performance or
observance of any of its covenants or agreements contained
in the Trust Agreement which has a material adverse affect
on its business, properties or assets, operations or
condition (financial or otherwise); or
(o) (i) Any Reportable Event or a Prohibited Transaction
shall occur with respect to any Plan; (ii) a notice of
intent to terminate a Plan under section 4041 of ERISA shall
be filed; (iii) a notice shall be received by the plan
administrator of a Plan that the PBGC has instituted
proceedings to terminate a Plan or appoint a trustee to
administer a Plan; (iv) any other event or condition shall
exist which might, in the opinion of the Lender, constitute
grounds under section 4042 of ERISA for the termination of,
or the appointment of a trustee to administer, any Plan; (v)
Westar, the Company or any ERISA Affiliate shall withdraw
from a Multiemployer Plan under circumstances which the
Lender determines could have a material adverse effect on
the financial condition of Westar or the Company; and in
case of the occurrence of any event or condition described
in clauses (i) through (v) above, such event or condition
may result in the aggregate amount of Westar's or the
Company's liability to a Plan or a Multiemployer Plan or to
the PBGC under section 4062, 4063, 4064, 4201 or 4202 of
ERISA as determined in good faith by the Lender to be in
excess of 10% of Tangible Net Worth, and such liability of
the Westar or the Company shall not be covered in full, for
the benefit of Westar or the Company, by insurance.
8.2 Consequences of Event of Default. (a) If any Event of
Default specified under Section 8.1, other than subsections (a)
and (b) and (i) through (l) thereof, shall occur and be
continuing the Lender shall be under no further obligation to
make Revolving Credit Loans hereunder and the Lender may, by
written notice to the Company, declare the unpaid balance of all
Unused Commitment Fees and the principal and interest accrued on
the Restated Note and all other obligations of the Company
hereunder to be forthwith due and payable, and the same shall
thereupon become immediately due and payable, without any other
or further presentment, demand, protest, notice of default,
notice of intent to accelerate or other notice of any kind, all
of which are hereby expressly waived.
(b) If an Event of Default specified under subsections (a)
and (b) and (i) through (l) inclusive, of Section 8.1 shall
occur, the Lender shall be under no further obligation to make
Revolving Credit Loans hereunder and the unpaid balance of all
Unused Commitment Fees and the principal and interest accrued on
the Restated Note and all other obligations of the Company
hereunder shall be immediately due and payable automatically
without presentment, demand, protest, notice of default, notice
of intent to accelerate, notice of acceleration or other notice
of any kind, all of which are hereby expressly waived.
ARTICLE 9. MISCELLANEOUS
9.1 Notices. All notices, requests and demands to or upon
the parties hereto to be effective shall be in writing or by
telecopy or telex and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when
delivered by hand, or when deposited in the mail, postage
prepaid, or, in the case of telegraphic notice, when delivered to
the telegraph company, or in the case of telex notice, when sent,
answerback received, addressed as follows in the case of the
Company and the Lender or to such address or other address as may
be hereafter notified by the parties hereto and any future
holders of the Restated Note:
The Company: Westar Auto Finance, L.L.C.
The Republic Building
000 Xxxx Xxxxx Xxxxxx, Xxxxx 000-X
X.X. Xxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxxx,Xx., President
The Lender: Bank One, NA
Alternative Funding and Servicing
000 Xxxx Xxxxx Xxxxxx
X.X. Xxx 000000
Xxxxxxxx, Xxxx 00000-0000
Attention: Xxxxxx X. Xxxx, Xx., Vice President
9.2 Term of Agreement; Termination; Successors and Assigns.
This Agreement and all covenants, agreements, representations
and warranties made herein and in the reports, certificates and
other writings delivered pursuant hereto shall survive the
execution and delivery of this Agreement, the making by the
Lender of each Revolving Credit Loan and the execution and
delivery to the Lender of the Restated Note and shall continue in
full force and effect until terminated. The representations of
the Company herein are made as of the date of this Agreement.
This Agreement shall terminate at such time as the Increased
Revolving Credit Commitment is terminated in full and the Lender
has received payment in full of all amounts owing to the Lender
hereunder and under the Restated Note. Whenever in this
Agreement any of the parties hereto is referred to, such
reference shall be deemed to include the successors and assigns
of such parties; and all terms and provisions of this Agreement
shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns,
whether so expressed or not; provided, however, that the Company
may not assign or transfer its rights or duties under this
Agreement to any Person without the prior written consent of the
Lender.
9.3 No Implied Rights or Waivers. No notice to or demand on
the Company in any case shall entitle the Company to any other or
further notice or demand in the same, similar and other
circumstances. Neither any failure nor any delay on the part of
the Lender in exercising any right, power or privilege hereunder
or under the Restated Note shall operate as a waiver thereof, nor
shall a single or partial exercise thereof preclude any other or
further exercise of the same or the exercise of any other right,
power or privilege.
9.4 Applicable Law. This Agreement and the Restated Note
shall be deemed to be contracts made under and shall be construed
in accordance with and governed by the laws of the State of Ohio.
9.5 Modifications, Amendments or Waivers. (a) The Lender and
the Company may from time to time enter into written agreements
amending or changing any provision of this Agreement or the
rights of the Lender or the Company hereunder or give waivers or
consents to a departure from the due performance of the
obligations of the Company hereunder or under the Restated Note.
(b) In the case of any such waiver or consent relating to any
provision hereof, the parties shall be restored to their former
positions and rights thereunder, and any Default or Event of
Default so waived or consented to shall be deemed to be cured and
not continuing; but no such waiver or consent shall extend to any
subsequent or other Default or Event of Default or impair any
right consequent thereon.
9.6 Counterparts. This Agreement may be signed in any number
of counterparts with the same effect as if the signatures thereto
were upon the same instrument.
9.7 Headings. The headings of the articles and sections of
this Agreement are inserted for convenience only and shall not be
deemed to constitute a part hereof.
9.8 Expenses. The Company shall pay or cause to be paid and
save the Lender harmless against liability for the payment of all
reasonable out-of-pocket expenses, including counsel fees and
disbursements, incurred or paid by the Lender in connection with
(i) the negotiation, development, preparation, execution and
performance of this Agreement, the Restated Company Security
Agreement and the Restated Note and the related transactions up
to an amount not to exceed $10,000; (ii) any requested
amendments, waivers or consents pursuant to the provisions hereof
and thereof; and (iii) the enforcement of this Agreement, the
Restated Company Security Agreement and the Restated Note
including such expenses as may be incurred by the Lender in
collection of the Restated Note and all obligations of the
Company hereunder.
9.9 Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP.
9.10 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof or effecting the validity or enforceability of such
provisions in any other jurisdiction.
9.11 Entire Agreement. This Agreement and the Exhibits
hereto reflect the entire understanding of the parties with
respect to the subject matter thereof and supersede all prior
agreements or understandings with respect thereto in their
entirety.
9.12 Certificates, Etc. All certificates, reports and other
writings submitted by the Company to the Lender hereunder shall
constitute the representations and warranties of Westar or the
Company, as the case may be, to the Lender as to the truth and
accuracy of all facts, calculations and other information set
forth therein, as though fully set forth and repeated in this
Agreement.
ARTICLE 10. DEFINITIONS
As used in this Agreement, the following terms shall have
the meanings set forth below (such meanings to be equally
applicable to both the singular and plural forms of the terms
defined):
"1996-A Supplement" shall mean that certain Supplement 1996-A
to Second Amended and Restated Westar Lease Origination Trust
Agreement dated as of August 9, 1996 among the Company (as
Grantor and Beneficiary), Westar Lease Services, Inc. (as
Trustee), the Bank of New York (as Certificate Trustee), the
Lender (as Warehouse Lender and Backup Servicer) and Westar (as
Marketer and Servicer), as the same has and may hereafter be
amended, modified, supplemented or restated.
"1996-B Supplement" shall mean that certain Supplement 1996-B
to Second Amended and Restated Westar Lease Origination Trust
Agreement dated as of December 12, 1996 among the Company (as
Grantor and Beneficiary), Westar Lease Services, Inc. (as
Trustee), the Bank of New York (as Certificate Trustee), the
Lender (as Warehouse Lender and Backup Servicer) and Westar (as
Marketer and Servicer), as the same has and may hereafter be
amended, modified, supplemented or restated.
"Accounts" shall have the meaning provided in the Uniform
Commercial Code.
"Accumulated Funding Deficiency" shall mean a funding
deficiency described in Section 302 of ERISA.
"Affiliate" of a Person shall mean any other Person directly
or indirectly controlling, under common control with, or
controlled by such Person. An Affiliate of Westar shall include
any officer, manager, or record or beneficial owner of 5% or more
of the outstanding capital stock of any class of Westar. For
purposes of the definition of Affiliate, "control" when used with
respect to any specific Person, means the power to direct the
management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have
meanings relative to the foregoing.
"Agreement" is defined in the preamble.
"Asset-Specific Trust Interest" shall have the meaning set
forth in the Trust Agreement.
"Asset-Specific Trust Interest Certificate" shall have the
meaning set forth in the Trust Agreement.
"Balance Sheet" is defined in Section 5.8.
"Borrowing Base" shall mean 90% of the Eligible Lease Amount.
"Borrowing Date" is defined in Section 2.1.
"Business Day" shall mean any day other than Saturdays,
Sundays and other legal holidays or days on which the principal
office of the Lender is closed.
"Business Year" shall mean a year of 360 days.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Collateral" is defined in Article 11.
"Company" is defined in the preamble.
"Default" shall mean the occurrence of an event which with
the giving of notice, passage of time, or both would become an
Event of Default.
"Eligible Lease" shall mean a Lease which as of any date
satisfies the criteria set forth in Section 5.18.
"Eligible Lease Amount" shall mean, as of the date of
origination, the (i) the greater of 105% of the manufacturer's
suggested retail price or 120% of invoice for new vehicles, or
(ii) 105% of Xxxxx Blue Book for used vehicles, plus (i)
mechanical breakdown insurance acceptable to the Lender offered
by an insurance company acceptable to the Lender for a premium
not to exceed $1,200, (ii) credit life insurance acceptable to
the lender offered by an insurance company acceptable to the
Lender for a premium not to exceed $1,000, (iii) and any
applicable luxury tax, and (iv) Westar's administrative fee. The
Eligible Lease Amount shall be recalculated on a monthly basis
which shall fully amortize the Eligible Lease Amount as of the
date of origination to an amount equal to the residual value of
the related Leased Vehicle over the term of the related Lease
based on the implicit annual percentage rate at which the related
Lease was originated calculated on a constant yield basis. The
Eligible Lease Amount shall be so recalculated whether or not the
related lease payment is received. Any Lease which has ceased to
be an Eligible Lease shall be excluded from the calculation of
the Eligible Lease Amount.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended from time to time.
"ERISA Affiliate" shall mean each trade or business,
including Westar and the Company, whether or not incorporated,
which together with Westar and the Company would be treated as a
single employer under Section 4001 of ERISA.
"Event of Default" is defined in Section 8.1.
"First Amendment" is defined in the Recitals to this
Agreements.
"GAAP" means generally accepted accounting principles
consistently applied.
"Guarantor Security Agreement" is defined in the Recitals to
this Agreement.
"Guaranty" is defined in the Recitals to this Agreement.
"Indebtedness" as applied to any Person, shall mean all
obligations of that Person which are included in clauses (i),
(ii), (iii) and (iv) of the definition of Liabilities below,
irrespective of whether or not any such obligations also would be
included within any other clause of such definition, but
including, however, obligations properly treated as capital lease
obligations or their equivalent under GAAP, and also including
any obligation of such Person or an ERISA Affiliate to a
Multiemployer Plan.
"Interest Determination Date" is defined in Section 2.2(c)
"Interest Payment Date" is defined in Section 2.2(b).
"Lease" shall mean fixed rate retail closed-end lease
contract for an automobile or light-duty truck which shall from
time to time be originated or purchased by the Trust.
"Leased Vehicle" shall mean any new or up to two model year-
old used automobile or light-duty truck which is subject to a
Lease.
"Liabilities" as applied to any Person shall mean: (i) all
obligations of that Person to repay or pay money borrowed from
another Person or the deferred portion of the purchase price of
services or property (other than inventory purchased in the
ordinary course of business unless evidenced by a note payable);
(ii) all obligations of that Person under bankers acceptances;
(iii) all obligations of that Person under letters of credit;
(iv) obligations of others which that Person has directly or
indirectly guaranteed, endorsed (otherwise than for collection or
deposit in the ordinary course of business), discounted or sold
with recourse or agreed (contingently or otherwise) to purchase
or repurchase or otherwise acquire, or in respect of which that
Person has agreed to supply or advance funds (whether by way of
loan, stock purchase, capital contribution or otherwise) or
otherwise to become directly or indirectly liable; (v) all
obligations evidenced or secured by any mortgage, pledge, lien or
conditional sale or other title retention agreement to which any
property or asset owned or held by that Person is subject,
whether or not the obligation evidenced or secured thereby shall
have been assumed; and (vi) all other items (except items of
capital stock, capital surplus, general contingency reserves,
deferred income taxes, retained earnings and amounts attributable
to minority interest, if any) which in accordance with GAAP would
be included in determining total liabilities as shown on the
liability side of a balance sheet of that Person as of the date
Liabilities is to be determined; excluding, however, from the
foregoing, obligations of that Person properly treated as capital
lease obligations or their equivalent under GAAP.
"LIBOR Rate" shall mean the interest rate at which deposits
in immediately available funds in U.S. dollars are offered by
prime banks in the interbank market for a thirty (30) day period
as published in the Wall Street Journal.
"Loan Documents" is defined in the Recitals to this
Agreement.
"Membership Interests Pledge Agreement" is defined in the
Recitals to this Agreement.
"Multiemployer Plan" shall mean a Plan described in Section
4001(a)(3) of ERISA to which the Company or the Subsidiaries or
any ERISA Affiliate is required to contribute on behalf of any of
its employees.
"Net Income" shall mean the net income (deficit) after income
taxes of the Company and the Subsidiaries as determined in
accordance with GAAP.
"Net Worth" of a Person shall, as of any date, mean the total
assets of that Person less the total liabilities of that Person
as determined in accordance with GAAP for purposes of balance
sheet presentation.
"Obligor" shall mean the lessee under a Lease.
"Original Company Security Agreement" is defined in the
Recitals to this Agreement.
"Original Dispute Resolution Agreement" is defined in the
Recitals to this Agreement.
"Original Revolving Credit Agreement" is defined in the
Recitals to this Agreement.
"Original Revolving Credit Commitment" is defined in the
Recitals to this Agreement.
"Original Revolving Credit Note" is defined in the Recitals
to this Agreement.
"Original Validity Agreement" is defined in the Recitals to
this Agreement.
"PBGC" shall mean the Pension Benefit Guarantee Corporation
established pursuant to Subtitle A of Title IV of ERISA.
"Person" shall mean a corporation, a limited liability
company, an association, a partnership, an organization, a
business, an individual, or trust, a government or political
subdivision thereof or a governmental agency.
"Plan" shall mean any plan (other than a Multiemployer Plan)
subject to Title IV of ERISA maintained for employees of the
Company, the Subsidiaries or any ERISA Affiliate, and any such
plan no longer maintained by the Company, the Subsidiaries or any
of their ERISA Affiliates to which the Company, the Subsidiaries
or any of their ERISA Affiliates has made or was required to make
any contributions within any of the preceding five years.
"Pooled Interest Portfolio" shall have the meaning set forth
in the Trust Agreement.
"Pooled Interest Certificate" or "Pooled Interest
Certificates" shall have the meaning set forth in the Trust
Agreement.
"Prior Revolving Credit Loans" is defined in the Recitals to
this Agreement.
"Reportable Event" shall mean any of the events set forth in
Section 4043(b) of ERISA or the regulations thereunder, a
withdrawal from a Plan described in Section 4063 of ERISA, a
cessation of operations described in Section 4068(f) of ERISA, an
amendment to a Plan necessitating the posting of security under
Section 401(a)(29) of the Code, or a failure to make a payment
required by Section 412(m) of the Code and Section 302(e) of
ERISA when due.
"Republic" is defined in the Recitals to this Agreement.
"Restated Company Security Agreement" is defined in Section
3.4.
"Restated Dispute Resolution Agreement" is defined in Section
4.1.
"Restated Note" is defined in Section 2.2.
"Restated Validity Agreement" is defined in Section 4.1.
"Revolving Credit Loan" is defined in Section 2.1.
"Single Employer Plan" shall mean any Plan which is not a
Multiemployer Plan.
"State" shall mean the State of Ohio.
"Stock Pledge Agreement" is defined in the Recitals to this
Agreement.
"Subsidiaries" shall mean any corporation or limited
liability company of which more than 50% of the outstanding stock
or membership interests having ordinary voting power to elect a
majority of the board of directors or managers of such
corporation or limited liability company is directly or
indirectly owned by Westar.
"Tangible Net Worth" shall mean the total of capital, general
contingency reserves, subordinated Indebtedness and retained
earnings (deficit) of Westar on a consolidated basis, determined
in accordance with GAAP, minus the following items (without
duplication of deductions, if any, appearing on the consolidated
balance sheet of Westar):
(i) The book amount of all assets which would be treated
as intangibles under GAAP, including, without limitation,
goodwill, non-compete agreements with the Subsidiaries'
former owners, long-term customer contracts, plant
engineering design and set-up, trademarks, trade names,
copyrights, patents and licenses and rights with respect to
the foregoing;
(ii) The amount by which aggregate inventories or
aggregate securities appearing on the asset side of such
balance sheet exceeds the lower of cost or market value (at
the date of such balance sheet) thereof; and
(iii) Any write-up in the book amount of any asset
resulting from a revaluation thereof from the book amount
entered upon acquisition of such asset.
"Trust" shall mean the Westar Lease Origination Trust formed
pursuant to the Trust Agreement.
"Trust Agreement" shall mean the Second Amended and Restated
Westar Lease Origination Trust Agreement dated as of August 9,
1996, among the Company (as Grantor and Beneficiary), Westar
Lease Services, Inc. (as Trustee), The Bank of New York (as
Certificate Trustee), the Lender (as Warehouse Lender and Backup
Servicer), and Westar (as Marketer and Servicer), as the same has
and may hereafter be amended, modified, supplemented and/or
restated.
"Trust Assets" shall mean the Leases, the Leased Vehicles,
each certificate of title or other evidence of ownership of a
Leased Vehicle and all other defined as "Trust Assets" in the
Trust Agreement.
"Trustee" shall mean Westar Lease Services, Inc., as trustee
under the Trust Agreement.
"Unused Commitment Fee" is defined in Section 3.1.
"Uniform Commercial Code" shall mean the Uniform Commercial
Code as adopted in the State, as amended from time to time.
"Unused Commitment" is defined in Section 3.1.
"WestAH" is defined in Section 2.2.
"Westar" is defined in the Recitals to this Agreement.
"Westar Lease Services, Inc." is defined in the Recitals to
this Agreement.
ARTICLE 11. EXCULPATION
Lender will look solely to its security interests in the
collateral described in the Restated Company Security Agreement
(the "Collateral") for payment of all amounts due or coming due
under the Loan Documents and for the performance of all
covenants, agreements and obligations and for the breach of
representations and warranties of the Company hereunder or under
any other Loan Document, undertaking, certificate or other
document executed and delivered by the Company as contemplated by
the Loan Documents (whether or not expressed as general
obligations of the Company). Therefore, notwithstanding anything
contained herein or in any of the Loan Documents, no judgment or
recourse (except against the Collateral) shall be sought or
enforced for the payment or performance of the Company's
obligations under the Loan Documents or any such other agreement,
undertaking, certificate or document: against (i) the Company in
its individual or personal capacity, other than in connection
with the enforcement of remedies against the Collateral; (ii)
against any assets or property of the Company other than the
Collateral; or (iii) against any past, present or future member or
manager of the Company, or any stockholder, officer or director
of, the Company's manager, or any parent company or
other affiliate of any of the foregoing, or any of their
respective assets or properties.
IN WITNESS WHEREOF, the Company and the Lender have caused
this Agreement to be duly executed by their duly authorized
officers, all as of the day and year first above written.
BANK ONE, NA WESTAR AUTO FINANCE, L.L.C.,
("Lender") a Washington limited liability
company ("Company")
By WESTAR AUTO HOLDING CO.,
a Washington Corporation,
Manager
By:---------------------
Xxxxxx X. Xxxx, Xx.
Vice President
By:-------------------
Xxxxxx X. Xxxxxxxxxxx, Xx.
President
EXHIBIT A
AMENDED AND RESTATED REVOLVING CREDIT NOTE
Columbus, Ohio
$25,000,000 June ----, 1997
On or before July 12, 1998, for value received, the
undersigned, Westar Auto Finance, L.L.C., a Washington limited
liability company (the "Company"), hereby promises to pay to the
order of Bank One, NA (the "Lender") or its assigns, as further
provided herein, the principal amount of Twenty-Five Million
Dollars ($25,000,000) or, if such principal is less, the
aggregate unpaid principal amount of all Revolving Credit Loans
made by the Lender to the Company pursuant to the Agreement (as
referred to and defined in Section 1 hereof), together with
interest on the unpaid principal balance of all Revolving Credit
Loans made hereunder until paid in full at a fluctuating rate of
interest and payable on the dates as determined in accordance
with Article 2 of the Agreement. Both principal and interest are
payable in federal funds or other immediately available money of
the United States of America at Bank One, NA, 000 Xxxx Xxxxx
Xxxxxx, X.X. Xxx 000000, Xxxxxxxx, Xxxx 00000-0000.
Section 1. Loan Agreement. This Amended and Restated
Revolving Credit Note (the "Restated Note") is the Restated Note
referred to in the Amended and Restated Revolving Credit
Agreement dated as of the date hereof (the "Agreement"), by and
between the Company and the Lender, as the same may be amended,
modified, restated and supplemented from time to time, which
Agreement, as amended, modified, restated or supplemented, is
incorporated by reference herein. All capitalized terms used
herein shall have the same meanings as are assigned to such terms
in the Agreement. This Restated Note is entitled to the benefits
of and is subject to the terms, conditions and provisions of the
Agreement. The Agreement, among other things, contains
provisions for acceleration of the maturity hereof upon the
happening of certain stated events, and also for repayments and
reborrowings on account of the principal hereof prior to maturity
upon the terms, conditions and provisions specified therein.
Section 2. Endorsements. All Revolving Credit Loans made by
the Lender to the Company pursuant to the Agreement and all
payments made on account of principal hereof shall be recorded by
the Lender and, prior to any transfer hereof, endorsed on the
schedule attached hereto which is a part of this Restated Note;
provided, however, that the failure of the Lender or any holder
to make such notation shall not limit or otherwise affect the
obligations of the Company hereunder or under the Agreement.
Prior to any such transfer, all Revolving Credit Loans made by
the Lender to the Company and all payments made on account of
principal hereof may be recorded in the regularly maintained data
processing records of the Lender.
Section 3. Setoff. Any and all moneys now or at any time
hereafter owing to the Company from the holder hereof, are
hereby pledged for the security of this and all other
Indebtedness from the Company to the holder hereof, and may, upon
the occurrence of any Event of Default, be paid and applied
thereon whether such Indebtedness be then due or is to become due.
WESTAR AUTO FINANCE, L.L.C.
By WESTAR AUTO HOLDING CO., a
Washington corporation, Manager
By:----------------------------------
Xxxxxx X. Xxxxxxxxxxx, Xx., President
AMENDED AND RESTATED REVOLVING CREDIT NOTE
OF WESTAR AUTO FINANCE, L.L.C.
Schedule of Loans and Payments of Principal
Date
Amount of Loan
Interest Rate Amount of Principal Payments
Unpaid Principal Balance
Notation Made by
EXHIBIT B
AMENDED AND RESTATED COMPANY SECURITY AGREEMENT
THIS AMENDED AND RESTATED COMPANY SECURITY AGREEMENT (the
"Security Agreement") is made and entered into as of June ___,
1997 by and between WESTAR AUTO FINANCE, L.L.C., a Washington
limited liability company (the "Company"), and BANK ONE, NA a
national banking association formerly known as Bank One,
Columbus, N.A. (the "Lender").
Background
A. Revolving Credit Agreement. The Lender and the Company
have entered into a certain Amended and Restated Revolving Credit
Agreement concurrently with the execution of this Security
Agreement (the "Revolving Credit Agreement"), pursuant to which
the Lender has agreed to lend the maximum sum of $25,000,000 to
the Company (the "Revolving Credit Commitment"). The Revolving
Credit Agreement restates and amends a certain Revolving Credit
Agreement dated July 12, 1995 among the Company, Republic Leasing
Incorporated, a Delaware corporation, and the Lender (the
"Original Security Agreement"). This Security Agreement likewise
amends and restates a certain Company Security Agreement dated as
of July 12, 1995 between the Company and the Lender. The
Revolving Credit Commitment is evidenced by a master promissory
note of the Company of even date herewith (the "Note"). Terms
used herein which are defined in the Revolving Credit Agreement
shall have the meanings set forth in the Revolving Credit
Agreement, unless otherwise defined herein or the context hereof
otherwise clearly requires.
B. Security Interest. The Lender is willing to make the
Revolving Credit Loans to the Company upon the condition that the
Company pledge and assign all of its right, title and interest
in, to and under, and grant to and create in favor of the Lender
security interests in, certain property of the Company as
security for (i) the payment of the Note, (ii) the payment of all
amounts owing pursuant to this Security Agreement and the
Revolving Credit Agreement, and (iii) the performance by the
Company of, and compliance with, all of the terms, covenants,
conditions, stipulations and agreements contained in this
Security Agreement, the Revolving Credit Agreement and the Note
(collectively, the "Secured Obligations").
Statement of Agreement
For and in consideration of the Loan made by the Lender to
the Company, and intending to be legally bound hereby, the
parties hereto covenant and agree as follows:
Section 1. Creation of Security Interests. As security
for the Secured Obligations, the Company agrees that there now
are or shall be duly executed and filed or recorded in all
appropriate state and local offices all documents necessary to
grant and create in favor of the Lender a perfected security
interest under the Uniform Commercial Code in and to the
following, whether now owned or hereafter acquired by the
Company, and the Company hereby assigns, conveys, transfers,
delivers and sets over unto the Lender a security interest in and
to all of the Company's right, title and interest in, to and
under:
(i) the Asset Specific Trust Interest Certificates
issued to the Company from time to time pursuant to the
terms of the Trust Agreement and the Asset-Specific Trust
Interest in all Trust Assets represented by the Asset
Specific Trust Interest Certificates;
(ii) the proceeds from the sale of any Pooled Interest
Certificates issued to the Company from time to time
pursuant to the terms of the Trust Agreement and sold to
investors;
(iii) distributions with respect to the Asset Specific
Trust Interest Certificates pursuant to the terms of the
Trust Agreement; and
(iv) all cash and non-cash Proceeds of the foregoing.
The Company acknowledges and agrees that the Secured
Obligations are future advances covered by the Original Security
Agreement pursuant to Section 9-204(3) of the Uniform Commercial
Code. As used in this Security Agreement and unless the context
requires a different meaning, capitalized terms used herein and
not otherwise defined shall have the meanings assigned to such
terms in the Revolving Credit Agreement. For purposes of this
Security Agreement, the term "Proceeds" shall have the meaning
provided in the Uniform Commercial Code. The property described
in this Section 1 is hereinafter collectively referred to as the
"Collateral."
Section 2. Lender Has Rights and Remedies of a Secured
Party. In addition to all rights and remedies given to the
Lender by this Security Agreement, the Lender shall have all the
rights and remedies of a secured party under the Uniform
Commercial Code.
Section 3. Provisions Applicable to the Collateral. The
parties agree that the following provisions shall be applicable
to the Collateral during the term of this Security Agreement:
(a) Chief Executive Offices; Books and Records.
(i) The Company shall keep accurate and complete
books and records concerning the Collateral.
(ii) The Company represents and warrants that its
chief executive office is located at the address set
forth in Section 10.1 hereof. The Company shall not
move its chief executive office except to such new
location as it may establish in accordance with
paragraph (iv) below.
(iii) The only original books of account and
records of the Company relating to all Collateral of
the Company are, and shall continue to be, kept at its
chief executive office. The location where such books
of account and records are kept shall not be changed
except in accordance with paragraph (iv) below.
(iv) The Company shall not establish any new
location for its chief executive office or for the place
where such books of account and records are kept until
(A) it shall have given to the Lender written notice of
its intention so to do, clearly describing each such new
location and providing such other information in
connection therewith as the Lender may reasonably
request and (B), with respect to each such new location,
it shall have taken such action, satisfactory to the
Lender (including without limitation all action required
by Section 4 hereof) as may be necessary to maintain the
security interest of the Lender in the Collateral
granted hereunder at all times fully perfected and in
full force and effect.
(b) Inspection. The Lender shall have the right to
review the books and records of the Company concerning the
Collateral and to copy the same and make excerpts therefrom,
and to inspect the Collateral, at all times during regular
business hours; so long as such inspections do not
unreasonably interfere with or impede the operations of the
Company.
(c) Distributions with Respect to Asset-Specific Trust
Interests. As further security for the Secured Obligations
and pursuant to the terms of the Trust Agreement, prior to
the occurrence of an Event of Default (as such term is
defined in the Revolving Credit Agreement), the Lender shall
be entitled to directly receive from the Trustee that
portion of distributions with respect to Asset-Specific
Trust Interests as is specified in the Trust Agreement.
Upon the occurrence and during the continuation of an Event
of Default (as such term is defined in the Revolving Credit
Agreement), the Lender shall be entitled to receive from the
Trustee 100% of the distributions with respect to all Asset-
Specific Trust Interests.
Section 4. Preservation and Protection of Security
Interests. The Company shall faithfully preserve and protect the
Lender's security interest in its Collateral and shall, at its
own cost and expense, cause such security interest to be
perfected and continued perfected so long as the Secured
Obligations or any portion thereof is outstanding and unpaid, and
for such purpose the Company shall from time to time at the
request of the Lender file or record, or cause to be filed or
recorded, such instruments, documents and notices, including
without limitation, financing statements and continuation
statements, as the Lender may deem necessary or advisable from
time to time in order to perfect and continue perfected said
security interests. The Company shall do all such other acts and
things and shall execute and deliver all such other instruments
and documents, including without limitation further security
agreements, pledges, endorsements, assignments and notices, as
the Lender may deem necessary or advisable from time to time in
order to perfect and preserve the priority of said security
interest as a perfected first lien security interest in the
Collateral prior to the rights of any other secured party or lien
creditor except as otherwise permitted herein. The Lender, and
its officers, employees and authorized agents, or any of them,
are hereby irrevocably appointed the attorneys-in-fact of the
Company to do all acts and things which the Lender may deem
necessary or advisable to preserve, perfect and continue
perfected the Lender's security interest in the Collateral upon
the occurrence of an Event of Default or upon Company's refusal
to do any such act or thing, including without limitation the
signing of financing, continuation or other similar statements
and notices on behalf of the Company and to exercise of any of
the rights, remedies, powers, privileges and claims of the
Company under the assigned contracts.
Section 5. Application of Moneys. Except as otherwise
provided herein, if any Event of Default (as that term is defined
in the Revolving Credit Agreement) shall occur or be continuing
or exist, all moneys which the Lender shall receive upon
realization of the security or otherwise may be applied by or at
the direction of the Lender in the following manner:
(a) First, to the payment or reimbursement of all
reasonable advances, expenses and disbursements of the
Lender (including, without limitation, the reasonable fees
and disbursements of its counsel and agents) incurred in
connection with the administration and enforcement of, or
the preservation of any rights under, this Security
Agreement or the Revolving Credit Agreement or in the
collection of the obligations of the Company under the Note;
and
(b) Second, to be applied in any manner desired by the
Lender to the satisfaction of the Secured Obligations.
Section 6. Certain Representations and Covenants. The
Company agrees from and after the date of this Security Agreement
and until payment in full of the Secured Obligations, as follows:
(a) Title and Liens. It has and will have good and
marketable title to the Collateral from time to time owned
or acquired by it, free and clear of all liens,
encumbrances, pledges and security interests, except such as
have been granted to the Lender and such as have not been
prohibited pursuant to Section 7.2 of the Revolving Credit
Agreement; and the security interests of the Lender in the
Collateral are perfected lien security interests, prior to
the rights of any other secured party or lien creditor. The
Company shall defend its title to the Collateral against the
claims and demands of all persons whomsoever.
(b) Negative Pledge. It shall not, without the prior
written consent of the Lender, (i) sell, assign or transfer
any Collateral, or, except pursuant to the terms of the
assigned contracts, any Leases or Leased Vehicles (ii) grant
or create or permit to exist any lien, encumbrance, pledge
or security interest on, or in any of the Collateral or any
other personal property, real property or fixtures of the
Company except such as have not been prohibited pursuant to
Section 7.2 of the Revolving Credit Agreement, (iii) permit
any levy or attachment to be made against any of the
Collateral, or (iv) file any financing statement with
respect to any of the Collateral, except financing
statements in favor of the Lender and except such as have
not been prohibited pursuant to Section 7.2 of the Revolving
Credit Agreement.
(c) Risk of Loss; Insurance. Risk of loss of, damage
to, or destruction of, the Collateral is on the Company to
the extent that the Company now or hereafter owns or
acquires such Collateral. If the Company fails to effect
and keep in full force and effect insurance covering the
Collateral, or fails to pay the premiums thereon when due,
the Lender may do so for the account of the Company and add
the cost thereof to the Secured Obligations. The Company
hereby assigns and sets over unto the Lender all moneys
which may become payable on account of such insurance,
including without limitation any return or unearned premiums
which may be due upon cancellation of any such insurance,
and directs the insurers to pay the Lender any amount so
due. The Lender, its officers, employees and authorized
agents are hereby irrevocably appointed the attorneys-in-
fact of the Company to endorse any draft or check which may
be payable to the Company in order to collect the proceeds
of such insurance or any return or unearned premiums. Any
balance of insurance proceeds remaining in the possession of
the Lender after payment in full of the Secured Obligations
shall be paid to the Company, or its order.
Section 7. Events of Default. If any Event of Default
(as that term is defined in the Revolving Credit Agreement) shall
occur and be continuing or shall exist, then in any such event,
the Lender shall have the irrevocable right under the Trust
Agreement to order the Trustee to distribute any Trust Assets
associated with any Asset-Specific Trust Interest which is then
part of the Collateral to the Lender and such rights and remedies
in respect of the Collateral or any part thereof as are provided
by the Uniform Commercial Code and such other rights and remedies
in respect thereof which it may have at law or in equity or under
this Security Agreement, including without limitation the right
to enter any premises where any Collateral is located and take
possession of the same without demand or notice and without prior
judicial hearing or legal proceedings, which the Company hereby
expressly waives, and to sell all or any portion of the
Collateral at public or private sale without prior notice to the
Company except as otherwise required by law (and if notice is
required by law, after ten days' prior written notice) at such
place or places and at such time or times and in such manner and
upon such terms, whether for cash or on credit, as the Lender in
its sole discretion may determine. Upon any such sale of any of
the Collateral, the Lender may purchase all or any of the
Collateral being sold, free from any equity or right of
redemption. The Lender shall apply the proceeds of any such sale
to the obligations of the Company as provided in Section 5
hereof. If such proceeds are insufficient to pay the amounts
required by law, the Company shall be liable for any deficiency
in the amount so realized from the Collateral to the extent
provided herein.
In addition, in any such event, the Company shall promptly
upon demand by the Lender assemble the Collateral and make it
available to the Lender at a place to be designated by the Lender
which shall be reasonably convenient to the Lender. The right of
the Lender under this Section to have the Collateral assembled
and made available to it is of the essence of this Security
Agreement and the Lender may, at its election, enforce such right
by a xxxx in equity for specific performance.
The Company, to the extent that it has any right, title or
interest in any of the Collateral, waives and releases any right
to require the Lender to collect any of the Secured Obligations
from any other of the Collateral under any theory of marshalling
of assets, or otherwise, and specifically authorizes the Lender
to apply any of the Collateral against any of the Secured
Obligations in any manner that the Lender may determine.
Section 8. Amendments, Waivers. The provisions of this
Security Agreement may from time to time be waived, modified or
amended only by a writing signed by each of the parties hereto.
Section 9. Defeasance; Partial Releases of Collateral. Upon
payment in full of the Secured Obligations, this Security
Agreement shall terminate and be of no further force and effect;
and in such event, the Lender shall, at the expense of the
Company, redeliver and reassign the Collateral to the Company and
take all action necessary to terminate the security interests of
the Lender in the Collateral. Until such time, however, this
Security Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns.
Upon mandatory repayment of outstanding Revolving Credit Loans
pursuant to Section 2.2(c)(ii) of the Revolving Credit Agreement,
the Lender shall, at the expense of the Company, redeliver and
reassign each related Asset-Specific Trust Interest Certificate
to the Company representing Trust Assets the origination of which
was funded with the proceeds of the Revolving Credit Loans being
repaid and take all action necessary to terminate the security
interest of the Lender in, and only in, such Asset-Specific Trust
Interest Certificates and the Asset-Specific Trust Interests
evidenced thereby.
Section 10. Miscellaneous.
10.1 Notices. All notices, requests and demands to or upon
the parties hereto to be effective shall be in writing and,
unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or three
business days after deposit in the U.S. mail, postage prepaid,
addressed as follows, or to such address as may be hereafter
notified by the parties hereto:
The Company: Westar Auto Finance, L.L.C.
The Republic Building
000 Xxxx Xxxxx Xxxxxx, Xxxxx 000-X
X.X. Xxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxxx, Xx.,President
The Lender: Bank One, NA
Alternative Funding and Servicing
000 Xxxx Xxxxx Xxxxxx
X.X. Xxx 000000
Xxxxxxxx, Xxxx 00000-0000
Attention: Xxxxxx X. Xxxx, Xx.,Vice President
10.2 No Implied Rights or Waivers. No notice to or demand on
the Company in any case shall entitle the Company to any other or
further notice or demand in the same, similar and other
circumstances. Neither any failure nor any delay on the part of
the Lender in exercising any right, power or privilege hereunder
or under the Revolving Credit Agreement or the Note shall operate
as a waiver thereof, nor shall a single or partial exercise
thereof preclude any other or further exercise of the same or the
exercise of any other right, power or privilege.
10.3 Applicable Law. This Security Agreement, the Revolving
Credit Agreement and the Note shall be deemed to be contracts
made under and shall be construed in accordance with and governed
by the laws of the State of Ohio.
10.4 Counterparts. This Security Agreement may be signed in
any number of counterparts with the same effect as if the
signatures thereto were upon the same instrument.
10.5 Headings. The headings of this Security Agreement are
inserted for convenience only and shall not be deemed to
constitute a part hereof.
10.6 Severability. Any provision of this Security Agreement
which is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions hereof or effecting the validity or
enforceability of such provisions in any other jurisdiction.
10.7 Entire Agreement. This Security Agreement reflects the
entire understanding of the parties with respect to the subject
matter hereof and supersede all prior agreements or
understandings with respect thereto in their entirety.
Section 11. Exculpation. The liability of the Company
with respect to the payment of principal and interest under the
Restated Note shall be "non-recourse" and, accordingly, the
Lender's source of satisfaction of said indebtedness and the
Company's other obligations under the Revolving Credit Agreement
and under the other Loan Documents shall be limited to the
collateral described in this Security Agreement and the Lender
shall not seek to procure payment out of any other assets of the
Company or any person or entity comprising the Company, or to
seek any judgment for any sums which are or may be payable under
the Restated Note, the Revolving Credit Agreement or any of the
other Loan Documents, as well as any claim or judgment for any
deficiency remaining after realization of the security.
Notwithstanding the above, nothing herein contained shall be
deemed to be a release or impairment of the Restated Note or the
security therefor intended by this Security Agreement and the
other Loan Documents, or be deemed to preclude the Lender from
exercising its rights under this Security Agreement or to enforce
any of its other rights or remedies under the Loan Documents.
IN WITNESS WHEREOF, the Company has caused this Security
Agreement to be duly executed on the date first above written.
BANK ONE, NA WESTAR AUTO FINANCE, L.L.C.
a Washington limited liability company
By: By WESTAR AUTO HOLDING CO.,
------------------------
Xxxxxx X. Xxxx, Xx. a Washington Corporation, Manager
Vice President
By:
------------------------------------
Xxxxxx X. Xxxxxxxxxxx, Xx. President
EXHIBIT C
AMENDED AND RESTATED DISPUTE RESOLUTION AGREEMENT
[The pre-printed form used by Lender will be inserted]
EXHIBIT D
[Opinion of Xxxxx Xxxxxx Xxxxxx as Counsel to the Company]
June __, 1997
Bank One, NA
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000-0000
Ladies and Gentlemen:
We have acted as special counsel to Westar Auto Finance,
L.L.C. (the "Company") in connection with the execution and
delivery of that certain Amended and Restated Revolving Credit
Agreement dated the date hereof (the "Revolving Credit
Agreement") between the Company and Bank One, NA (the "Lender"),
that certain Amended and Restated Promissory Note of the Company
dated the date hereof in the amount of $25,000,000, that certain
Amended and Restated Company Security Agreement dated the date
hereof between the Company and the Lender (the "Security
Agreement"), and all documents and instruments contemplated by,
or executed in connection with, the Revolving Credit Agreement
(hereinafter collectively referred to as the "Loan Documents").
In connection with this opinion, we have reviewed the Loan
Documents. We have investigated such questions of law, and have
examined and relied upon originals, or copies certified or
otherwise identified to our satisfaction, of such corporate
documents and records of the Company and public records as in our
judgment are necessary or appropriate to enable us to render the
opinions expressed below. As to matters of fact (except facts
constituting legal conclusions), we have relied on certificates
and other statements of public officials and corporate officers
or representatives of Westar and the Company, none of which has
been independently verified by us, but none of which do we have
reason to believe is inaccurate, or with respect to which our
reliance would be unreasonable.
In rendering this opinion, we have assumed the authenticity
of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified
or photostatic copies, the legal capacity of all persons signing
such documents other than those signing on behalf of the Company,
the genuineness of the signatures of persons signing all
documents examined by us other than those signed on behalf of the
Company and that all parties to the Loan Documents, other than
the Company, are in compliance with all of their obligations and
undertakings arising under the Loan Documents.
Where we render an opinion "to the best of our knowledge" or
otherwise refer to our knowledge, our opinion is based solely
upon (i) an inquiry of attorneys within this firm who perform
legal services for the Company or Westar, and/or (ii) such
certification of officers or representatives of the Company and
Westar as we have deemed appropriate.
[Qualifications]
Based on the foregoing, we are of the opinion that:
(i) Westar is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and
holds a valid certificate of authority to transact business in
the State of Washington. WestAH is a corporation and the Company
is a limited liability company duly organized, validly existing
and in good standing under the laws of the State of Washington.
The Westar, WestAH and the Company have all requisite power and
authority to own and operate their properties and to carry on
their businesses as now conducted, and the Company has all
requisite power and authority to execute and deliver and to
perform all of its obligations under the Loan Documents.
(ii) Westar, WestAH and the Company are each duly qualified
or licensed to do business and in good standing as a foreign
corporation or limited liability company in each jurisdiction in
which the character of the properties owned or leased or the
nature of the activities conducted makes such qualification or
licensing necessary and in which the failure to be so qualified
or licensed would have a materially adverse effect on the conduct
of the businesses of Westar, WestAH or the Company, taken as a
whole.
(iii) The execution, delivery and performance by the
Company of the Loan Documents have been duly authorized by all
necessary limited liability company actions.
(iv) The execution, delivery and performance by the Company
of the Loan Documents do not and will not result in any violation
of or be in conflict with or constitute a default under the
certificate of formation or limited liability company agreement
of the Company or, to the best of our knowledge, of any agreement
or instrument to which any of Westar, WestAH or the Company are a
party or by which any of them is bound, or any order, writ,
injunction, judgment, decree, statute, or governmental rule or
regulation applicable to any of them or by which any of them is
bound.
(v) [Except as referred to elsewhere in this opinion,] no
authorization, consent, approval, license or exemption by, or
filing or registration with, any domestic court or governmental
department, commission, board, bureau, agency or instrumentality,
is or will be necessary to the valid execution, delivery or
performance by the Company of the Loan Documents.
(vi) The Loan Documents have been duly executed and delivered
by the Company and are the valid and binding obligations of the
Company, enforceable against the Company in accordance with their
respective terms and applicable law, except to the extent that
enforceability may be limited by bankruptcy, insolvency,
reorganization, rehabilitation, moratorium, or other similar laws
affecting the enforcement of creditors' rights generally and
general principles of equity, and except that the availability of
equitable remedies, including specific performance, is subject to
the discretion of the court before which any proceedings therefor
may be brought.
(vii) To the best of our knowledge, there is no court
action, or other governmental proceedings or investigations
pending or threatened, involving Westar, WestAH or the Company
which question the validity of the Loan Documents or any action
taken or to be taken, pursuant thereto, which would have a
materially adverse effect on the businesses or operations of
Westar, WestAH or the Company taken as a whole.
(viii) The Security Agreement is in appropriate form to
create the liens it purports to create in the personal property
described therein. Filing or recording financing statements with
the Washington State Department of Licensing is the only filing
or recording necessary to perfect, for purposes of the Uniform
Commercial Code as adopted in the State of Washington (the
"UCC"), the security interests created by the Security Agreement
in that part of the personal property in which a security
interest may be perfected by filing. We advise you that action
other than filing of a financing statement is necessary to
perfect a security interest in certain personal property. In
that regard, possession by the secured party is sufficient to
perfect the security interest in any certificated securities in
which a security interest is granted. We also advise that such
filing will become ineffective after the lapse of five years, and
that additional filings may be required if the Company changes
its name, identity or corporate structure, moves collateral to
another jurisdiction or changes its location to another
jurisdiction.
(ix) The Trust Agreement (as defined in the Revolving Credit
Agreement) has been duly executed and delivered by the Company
and Westar Lease Services, Inc., as trustee, and is the valid and
binding obligation of each of them enforceable against each of
them, respectively, in accordance with its terms and applicable
law, except to the extent that enforceability may be limited by
bankruptcy, insolvency, reorganization, rehabilitation,
moratorium, or other similar laws affecting the enforcement of
creditors' rights generally and general principles of equity, and
except that the availability of equitable remedies, including
specific performance, is subject to the discretion of the court
before which any proceedings therefor may be brought.
We express no opinion as to the laws of any jurisdiction
other than the State of Washington, the General Corporation Law
of the State of Delaware and the United States of America. This
opinion is furnished as of the date hereof and we undertake no
obligation to advise you of any event occurring after the date
hereof which would change any of the opinions set fort herein.
This opinion is furnished by us solely for your benefit and no
other person shall be entitled to rely upon the opinions herein
expressed. Except with our prior written consent, this opinion
is not to be used, circulated, quoted or otherwise referred to in
connection with any transaction other than those contemplated by
the Loan Documents or by or to any person.
Respectfully submitted,
