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EXHIBIT 28.1
SEVENTH AMENDMENT TO FIRST AMENDED
AND RESTATED REVOLVING CREDIT LOAN AGREEMENT
THIS SEVENTH AMENDMENT TO FIRST AMENDED AND RESTATED REVOLVING CREDIT LOAN
AGREEMENT (the "AMENDMENT"), dated as of June 14, 20001, is between the Borrower
(as defined below) and COMERICA BANK-TEXAS, a Texas banking association
("LENDER").
RECITALS:
Borrower and Lender have entered into that certain First Amended and
Restated Revolving Credit Loan Agreement dated as of August 19, 1993 (such
agreement as previously amended and/or extended and as may be hereafter amended
or otherwise modified from time to time, the "AGREEMENT").
Borrower and Lender desire to amend the Agreement as herein provided.
NOW, THEREFORE, in consideration of the premises herein contained and other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
Definitions
Section 1 Definitions. Capitalized terms used in this Amendment, to the
extent not otherwise defined herein, shall have the same meanings as in the
Agreement, as amended hereby. As used herein and in the Agreement, effective as
of the date hereof, the term "BORROWER" shall mean, collectively, Bestway, Inc.,
a Delaware corporation, Bestway Rental, Inc., a Tennessee corporation, K.C.
Resource Service Corporation, a Missouri corporation, and U.S. Credit-Service
Corporation, a Missouri corporation, each of which are jointly and severally
liable under all documents executed by them for the benefit of Lender.
ARTICLE II
Amendments
Section 1 Amendment to Section 1.1. The following language is added as a
new sentence to the definition of "Borrowing Base" to become the last sentence
therein:
Commencing on May 31, 2001 and continuing through September 30, 2001,
the number "four and three fourths (4.75)" in part "(i)" of the preceding
formula shall change to "four and one quarter (4.25)." Commencing on
October 1, 2001, and continuing at all times thereafter, the number in part
"(i)" of such preceding formula shall change to "four (4.00)".
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RESTATED REVOLVING CREDIT LOAN AGREEMENT - Page 1
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Section 2 Amendment to Section 6.7. Effective as of the date hereof,
Section 6.7 is amended by restating such section in its entirety to read as
follows:
6.7 Maintain Effective Tangible Net Worth. Attain, as of each of the
following respective periods an Effective Tangible Net Worth of not less
than the following respective amounts:
Period Required Minimum TNW
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From April 30, 2001 through July 31, 2001 $ 9,700,000
From August 31, 2001 through October 31, 2001 $10,000,000
From November 30, 2001 through January 31, 2001 $10,400,000
As of and at all times after February 28, 2002 $10,600,000
ARTICLE III
Conditions Precedent
The effectiveness of this Amendment is subject to the condition that Lender
shall have received as of the date hereof, in form and substance satisfactory to
Lender, resolutions of the Board of Directors of the Borrower certified by its
Secretary or an Assistant Secretary which authorize the execution, delivery, and
performance by the Borrower of this Amendment.
ARTICLE IV
Ratifications and Other Agreements
Section 1 Ratifications. The terms and provisions set forth in this
Amendment shall modify and supersede all inconsistent terms and provisions set
forth in the Agreement and except as expressly modified and superseded by this
Amendment, the terms and provisions of the Agreement, the Note, and all other
loan and collateral documents executed in connection with the Agreement are
hereby ratified and confirmed and shall continue in full force and effect.
Borrower and Lender agree that the Agreement as amended hereby and all other
documents executed in connection with the Agreement or this Amendment to which
Borrower is a party shall continue to be legal, valid, binding and enforceable
in accordance with their respective terms.
Section 2 Representations and Warranties. Borrower hereby represents and
warrants to Lender that (a) the execution, delivery and performance of this
Amendment and any and all other documents executed and/or delivered in
connection herewith have been authorized by all requisite corporate action on
the part of Borrower and will not violate the articles of incorporation or
bylaws of Borrower or any agreement to which Borrower or any of its properties
is bound, (b) the representations and warranties contained in the Agreement, as
amended hereby, and any other documents executed in connection therewith or
herewith are true and correct on and as of the date hereof as though made on and
as of the date hereof, (c) no Event of Default has occurred and is continuing
and no event or condition has occurred that with the giving of notice or lapse
of time or both would be an Event of Default, and (d) Borrower is in
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RESTATED REVOLVING CREDIT LOAN AGREEMENT - Page 2
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full compliance with all covenants and agreements contained in the Agreement as
amended hereby. Since the date of the Agreement, there have been no amendments
to any of the respective articles of incorporation or bylaws of the entities
which collectively comprise the Borrower.
ARTICLE V
Miscellaneous
Section 1 Survival of Representations and Warranties. All representations
and warranties made in this Amendment or any other document executed in
connection herewith shall survive the execution and delivery of this Amendment,
and no investigation by Lender or any closing shall affect the representations
and warranties or the right of Lender to rely upon them.
Section 2 Reference to Agreement. The Agreement, and any and all other
agreements, documents, or instruments now or hereafter executed and delivered
pursuant to the terms hereof or pursuant to the terms of the Agreement as
amended hereby, are hereby amended so that any reference in such documents to
the Agreement shall mean a reference to the Agreement as amended hereby.
Section 3 Expenses of Lender. As provided in the Agreement, Borrower agrees
to pay on demand all reasonable costs and expenses incurred by Lender in
connection with the preparation, negotiation, and execution of this Amendment
and any other documents executed pursuant hereto and any and all amendments,
modifications, and supplements thereto, including without limitation the costs
and reasonable fees of Lender's legal counsel, and all costs and expenses
incurred by Lender in connection with the enforcement or preservation of any
rights under the Agreement, as amended hereby, or any other document executed in
connection therewith, including without limitation the costs and reasonable fees
of Lender's legal counsel.
Section 4 Severability. Any provision of this Amendment held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
Section 5 Applicable Law. This Amendment and all other documents executed
pursuant hereto shall be deemed to have been made and to be performable in
Dallas, Dallas County, Texas and shall be governed by and construed in
accordance with the laws of the State of Texas.
Section 6 Successors and Assigns. This Amendment is binding upon and shall
inure to the benefit of Lender, Borrower, and their respective successors and
assigns, except Borrower may not assign or transfer any of its rights or
obligations hereunder without the prior written consent of Lender.
Section 7 Counterparts. This Amendment may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original,
but all of which when taken together shall constitute one and the same
instrument.
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Section 8 Effect of Waiver. No consent or waiver, express or implied, by
Lender to or for any breach of or deviation from any covenant, condition or duty
by Borrower or any obligated party shall be deemed a consent or waiver to or of
any other breach of the same or any other covenant, condition or duty.
Section 9 Headings. The headings, captions, and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
Section 10 Non-Application of Chapter 346 of Texas Finance Code. The
provisions of Chapter 346 of the Texas Finance Code, as amended are specifically
declared by the parties not to be applicable to this Amendment or any of the
other loan and collateral documents executed in connection with the Agreement or
the transactions contemplated hereby.
Section 11 ENTIRE AGREEMENT. THE AGREEMENT, THIS AMENDMENT AND ALL OTHER
INSTRUMENTS, DOCUMENTS AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION WITH
THE AGREEMENT OR THIS AMENDMENT REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES.
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RESTATED REVOLVING CREDIT LOAN AGREEMENT - Page 4
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Executed as of the date first written above.
BORROWER:
BESTWAY, INC.
By:
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Xxxx X. Xxxxxxx
Senior Vice President - Finance
BESTWAY RENTAL, INC.
By:
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Xxxx X. Xxxxxxx
Senior Vice President - Finance
K. C. RESOURCE SERVICE CORPORATION
By:
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Xxxx X. Xxxxxxx
Senior Vice President - Finance
U.S. CREDIT-SERVICE CORPORATION
By:
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Xxxx X. Xxxxxxx
Senior Vice President - Finance
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RESTATED REVOLVING CREDIT LOAN AGREEMENT - Page 5
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LENDER:
COMERICA BANK-TEXAS
By:
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Name:
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Title:
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The undersigned hereby (i) consents and agrees to this Amendment and (ii)
confirms and agrees that any subordination agreement previously executed
respectively by the undersigned for the benefit of Lender is in full force and
effect and is the legal, valid and binding obligation of the undersigned and is,
enforceable in accordance with its terms.
SUBORDINATING PARTY:
X'XXXXXXX & XXXXX, X.X.
By: X'Xxxxxxx & Masur, a general partnership
By:
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Name:
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Title:
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SEVENTH AMENDMENT TO FIRST AMENDED AND
RESTATED REVOLVING CREDIT LOAN AGREEMENT - Page 6
