EXHIBIT 99.1
SECOND AMENDED AND RESTATED
REVOLVING CREDIT LOAN AGREEMENT
THIS SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT is made and
delivered as of this 1st day of October, 2003, by and among the Borrower (as
defined below) and COMERICA BANK.
WITNESSETH:
WHEREAS, the Borrower and Comerica Bank-Texas, a Texas banking
association, have previously entered into (i) that certain Revolving Credit and
Term Loan Agreement dated June 30, 1992 ("ORIGINAL LOAN AGREEMENT"), (ii) that
certain First Amended and Restated Revolving Credit Loan Agreement dated as of
August 19, 1993, (iii) that certain First Amendment to First Amended and
Restated Revolving Credit Loan Agreement dated as of March 15, 1995, (iv) that
certain Second Amendment to First Amended and Restated Revolving Credit Loan
Agreement dated as of April 12, 1996, (v) that certain Letter Agreement
Regarding Loan Agreement Extension dated as of August 18, 1997, (vi) that
certain Third Amendment to First Amended and Restated Revolving Credit Loan
Agreement dated as of November 18, 1997, (vii) that certain Fourth Amendment to
First Amended and Restated Revolving Credit Loan Agreement dated as of November
30, 1999, (viii) that certain Fifth Amendment to First Amended and Restated
Revolving Credit Loan Agreement dated as of December 28, 1999, (ix) that certain
Sixth Amendment to First Amended and Restated Revolving Credit Loan Agreement
dated as of November 1, 2000, (x) that certain Seventh Amendment to First
Amended and Restated Revolving Credit Loan Agreement dated as of June 14, 2001,
(xi) that certain Eighth Amendment to First Amended and Restated Revolving
Credit Loan Agreement dated as of December 1, 2002, (xii) that certain Ninth
Amendment to First Amended and Restated Revolving Credit Loan Agreement dated as
of March 25, 2002, and (xiii) that certain Tenth Amendment to First Amended and
Restated Revolving Credit Loan Agreement dated as of October 31, 2002 (the
Original Loan Agreement and the First Amended and Restated Revolving Credit Loan
Agreement, as amended, shall be hereinafter collectively referred to herein as
the "PRIOR AGREEMENT"); and
WHEREAS, the Borrower and the Bank desire to amend, replace and
supercede the Prior Agreement with the terms of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, the Borrower and the Bank agree as follows:
SECTION 1. DEFINITIONS
1.1. Defined Terms. As used herein, the following terms shall have
the following respective meanings:
"ACCOUNTS," "CHATTEL PAPER," "DOCUMENTS," "GENERAL
INTANGIBLES," "GOODS," "INSTRUMENTS" shall have the meanings assigned
to them in the UCC on the date of this Agreement.
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"AGREEMENT" shall mean this Second Amended and Restated
Revolving Credit Agreement.
"BANK" shall mean Comerica Bank, successor by merger to
Comerica Bank - Texas.
"BANKRUPTCY CODE" shall mean Title 11 of the United States
Code, as amended, or any successor act or code.
"BESTWAY" shall mean Bestway, Inc., a Delaware corporation.
"BORROWER" shall mean, collectively, Bestway, Inc., a Delaware
corporation and Bestway Rental, Inc., a Tennessee corporation, each of
which shall be jointly and severally liable under all documents
executed by them for the benefit of the Bank.
"BORROWING BASE" shall mean at any time the lesser of (i) the
product of four, multiplied by the one-month average of total collected
cash receipts of the Borrower for the three complete months which
immediately precede the date on which the Borrowing Base computation is
made or (ii) fifty percent (50%) of the Borrower's total Eligible
Rental Contract Accounts.
"BORROWING BASE CERTIFICATE" shall mean a certificate in a
form acceptable to the Bank, executed by a senior financial officer of
the Borrower and setting forth the Borrower's computation of the
Borrowing Base as of the date of such certificate.
"BRI" shall mean Bestway Rental, Inc., a Tennessee
corporation.
"BUSINESS DAY" shall mean a day on which the Bank is open to
carry on its normal commercial lending business.
"COLLATERAL" shall mean all property, assets and rights in
which a lien or other encumbrance in favor of or for the benefit of
Bank is or has been granted or arises or has arisen, or may hereafter
be granted or arise, under or in connection with any document
evidencing pertaining to the Indebtedness, or otherwise, to secure the
payment or performance of any portion of the Indebtedness, including,
without limitation, any property of the Borrower in the possession of
the Bank, any amount in any deposit account of the Borrower with the
Bank and all of Borrower's Accounts, Chattel Paper, Documents, General
Intangibles, Goods, Instruments, Inventory and Rental Contracts,
wherever located and whether now owned or hereafter acquired, together
with all replacements thereof, substitutions therefor and all proceeds
and products thereof.
"CONTRACT RATE" shall mean, as of any date of determination,
the interest rate determined in accordance with Section 2.2.4, if the
Maximum Legal Rate limitation does not apply.
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"DEBT" shall mean all obligations which are classified as
liabilities in accordance with GAAP.
"DEFAULT" shall mean a condition or event which, with the
giving of notice or the passage of time, or both, would become an Event
of Default.
"DISBURSEMENT DATE" shall mean each date upon which the Bank
makes a loan to the Borrower under Section 2.1 of this Agreement.
"EFFECTIVE TANGIBLE NET WORTH" shall mean (as determined in
accordance with GAAP) shareholder's equity plus all subordinated
indebtedness, minus goodwill or other intangible assets.
"ELIGIBLE RENTAL CONTRACT ACCOUNTS" shall mean those Accounts
of the Borrower which arise from the leasing of Equipment owned by the
Borrower and for which those representations and warranties set forth
in Section 5.17 of this Agreement shall be true (as of any applicable
date of determination), and which have been designated by the Borrower
to be an "Eligible Rental Contract Account" on a Borrowing Base
Certificate.
"ENVIRONMENTAL LAWS" shall mean any and all federal, state,
and local laws, regulations, and requirements pertaining to the
environment, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act, as amended, 42
U.S.C. 9601 et seq., the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. 6901 et seq., the Occupational Safety and Health
Act, as amended, 29 U.S.C. 651 et seq., the Clean Air Act, 42 U.S.C.
7401 et seq., the Clean Water Act as amended, 33 U.S.C. 1251 et seq.,
the Toxic Substances Control Act, as amended, 15 U.S.C. 2601 et seq.,
and all similar laws, regulations, and requirements of any governmental
authority or agency having jurisdiction over Borrower or any of its
properties or assets, as such laws, regulations, and requirements may
be amended or supplemented from time to time.
"EQUIPMENT" shall have the meaning assigned to such term in
the UCC on the date of this Agreement together with all of the
following to the extent, if any, the same are not included within such
definition: all of the Borrower's now owned and hereafter acquired
machinery, equipment, furniture, furnishings, fixtures, and other
tangible personal property (except Inventory), including, without
limitation, data processing hardware and software, motor vehicles,
aircraft, dies, tools, jigs, and office equipment; together with all
present and future additions and accessions thereto, replacements
therefor, component and auxiliary parts and supplies used or to be used
in connection therewith, and all substitutes for any of the foregoing,
and all manuals, drawings, instructions, warranties and rights with
respect thereto wherever any of the foregoing is located.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended, or any successor act or code.
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"EVENT OF DEFAULT" shall mean any of those conditions or
events listed in Section 8.1 of this Agreement.
"FINANCIAL STATEMENTS" shall mean all those balance sheets,
earnings statements and other financial data (whether of the Borrower,
any Subsidiary, any guarantor or otherwise) which have been furnished
to the Bank for the purpose of, or in connection with, this Agreement
and the transactions contemplated hereby.
"GAAP" shall mean, as of any applicable date of determination,
generally accepted accounting principles consistently applied.
"HAZARDOUS SUBSTANCE" shall mean any substance, product,
waste, pollutant, material, chemical, contaminant, constituent, or
other material which is or becomes listed, regulated, or addressed
under any Environmental Law, including, without limitation, asbestos,
petroleum, and polychlorinated biphenyls.
"INDEBTEDNESS" shall mean all obligations and liabilities of
Borrower to Bank under this Agreement or any other agreement
evidencing, securing or pertaining to the Loan, together with all other
indebtedness, obligations and liabilities whatsoever of Borrower to
Bank, whether matured or unmatured, liquidated or unliquidated, direct
or indirect, absolute or contingent, joint or several, due or to become
due, now existing or hereafter arising, voluntary or involuntary, known
or unknown, or originally payable to Bank or to a third party and
subsequently acquired by Bank including, without limitation, any: late
charges; loan fees or charges; overdraft indebtedness; costs incurred
by Bank in establishing, determining, continuing or defending the
validity or priority of any lien in favor of the Bank or in pursuing
any of its rights or remedies under this Agreement or under any other
document evidencing, securing or pertaining to the Loan or in
connection with any proceeding involving Bank as a result of any
financial accommodation to Borrower; debts, obligations and liabilities
for which Borrower would otherwise be liable to the Bank were it not
for the invalidity or enforceability of them by reason of any
bankruptcy, insolvency or other law or for any other reason; and
reasonable costs and expenses of attorneys and paralegals, whether any
suit or other action is instituted, and to court costs if suit or
action is instituted, and whether any such fees, costs or expenses are
incurred at the trial court level or on appeal, in bankruptcy, in
administrative proceedings, in probate proceedings or otherwise.
"INTEREST COVERAGE RATIO" shall mean as of any time of
determination the ratio of (a) the Borrower's pre-tax income for the
previous twelve-month period, plus the Borrower's interest expense,
plus the Borrower's non-cost of goods sold depreciation expense, plus
the Borrower's amortization expense, in each case for the same
twelve-month period and as computed in accordance with GAAP to (b) the
Borrower's interest expense for the same twelve-month period, computed
in accordance with GAAP.
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"INVENTORY" means all of the Borrower's now owned and
hereafter acquired inventory, goods, merchandise, and other personal
property, wherever located, to be furnished under any contract of
service or held for sale or lease, all raw materials, work-in-process,
finished goods, returned and repossessed goods, and materials and
supplies of any kind, nature or description which are or might be used
or consumed in the Borrower's business or used in connection with the
manufacture, packing, shipping, advertising, selling or finishing of
such inventory goods, merchandise and such other personal property, and
all documents of title or other documents representing them, and all
proceeds thereof (including, but not limited to, all proceeds of
insurance with respect thereto, including the proceeds of any casualty
insurance); and any lists, information and records prepared or kept in
relation to the foregoing.
"LOAN" shall mean any or all advances made under Section 2.2
of this Agreement on a Disbursement Date. Collectively, all advances
are referred to as "LOANS".
"MAXIMUM LEGAL RATE" shall have the meaning set forth in
Section 2 of this Agreement.
"MAXIMUM REVOLVING CREDIT LOAN" shall mean $11,500,000.00.
"NET INCOME" shall mean, for any period, the aggregate net
income of the Borrower determined in accordance with GAAP.
"NOTE" shall mean the Revolving Credit Note.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or
any person succeeding to the present powers and functions of the
Pension Benefit Guaranty Corporation.
"PERMITTED LIENS" shall mean:
(a) Liens and encumbrances in favor of the Bank;
(b) Liens for taxes, assessments or other governmental
charges incurred in the ordinary course of business and not
yet past due or being contested in good faith by appropriate
proceedings and, if requested by the Bank, bonded in a manner
satisfactory to the Bank;
(c) Liens not delinquent created by statute in
connection with worker's compensation, unemployment
insurance, social security and similar statutory obligations;
(d) Liens of mechanics, materialmen, carriers,
warehousemen or other like statutory or common law liens
securing obligations incurred in good faith in the
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ordinary course of business that are not yet due and payable;
(e) Encumbrances consisting of zoning restrictions,
rights-of-way, easements or other restrictions on the use of
real property, none of which materially impairs the use of
such property by the Borrower or any Subsidiary (as defined
below) in the operation of the business for which it is used
and none of which is violated in any material respect by any
existing or proposed structure or land use;
(f) Existing liens described in Schedule 5.6 attached
hereto;
(g) Purchase money liens and encumbrances related to
obligations in an aggregate amount not to exceed $50,000.00
at any time; and
(h) Statutory and contractual liens of landlords for
amounts not yet due or which are being contested in good
faith by appropriate proceedings.
"PERSON" shall mean any individual, corporation, partnership,
joint venture, association, trust, unincorporated association, joint
stock company, government, municipality, political subdivision or
agency or other entity.
"PRIME RATE" shall mean that annual rate of interest
designated by the Bank as its prime rate and which is changed by the
Bank from time to time. The Prime Rate may not necessarily be the
lowest rate charged by the Bank.
"PRIOR AGREEMENT" shall have the meaning given such term in
the recitals to this Agreement.
"RENTAL CONTRACT" shall mean any agreement or other writing,
and any oral agreement, providing for the rental or leasing of any
property.
"REVOLVING CREDIT NOTE" shall mean that certain promissory
note in the form of Exhibit A attached to this Agreement dated of even
date herewith in the original principal amount of $11,500,000.00,
executed by the Borrower and payable to the order of the Bank, as
renewed, extended, increased and/or modified from time to time.
"SUBSIDIARIES" shall mean any corporation of which more than
fifty percent (50%) of the outstanding voting securities shall, as of
any applicable date of determination, be owned directly, or indirectly
through one or more intermediaries, by the Borrower.
"TERMINATION DATE" shall mean May 31, 2005.
"UCC" shall mean the Uniform Commercial Code as in effect in
the State of Texas and as amended from time to time.
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1.2. Accounting Terms. All accounting terms not specifically
defined in this Agreement shall be construed in accordance with GAAP.
1.3. Singular and Plural. Where the context herein requires, the
singular number shall be deemed to include the plural, and vice versa.
SECTION 2. COMMITMENT, INTEREST AND FEES.
2.1. Commitment. Subject to the terms and conditions of this
Agreement, the Bank agrees to make loans to the Borrower on a revolving basis of
such amount as the Borrower shall request pursuant to Section 2.2 of this
Agreement at any time from the date of this Agreement until the Termination
Date, up to an aggregate principal amount outstanding at any time not to exceed
the lesser of (i) the Borrowing Base or (ii) $11,500,000.00. Each Disbursement
Date under this Agreement must be a Business Day, and the principal amount of
each Loan made under this Agreement shall be in the aggregate amount of
$10,000.00 or an integral multiple thereof.
2.2. Loans.
2.2.1. Notice. The Borrower shall give the Bank written notice
of the Borrower's desire for a Loan. Such notice shall be signed by an
authorized officer of the Borrower and delivered to the Bank by
mechanically confirmed facsimile transmission (or by telephone from an
officer of Borrower who has been given clearance for use of a security
code as instructed by the Borrower to the Bank) and shall specify the
proposed Disbursement Date and the principal amount of the proposed
advance for such Loan.
2.2.2. Bank Obligations. The Bank agrees to make the Loan on
the Disbursement Date as set forth in a notice to the Bank from the
Borrower conforming to the requirements of Section 2.2.1 by crediting
the Borrower's general deposit account with the Bank in the amount of
such Loan, provided, however, that the Bank shall not be so obligated
if:
(a) Any of the conditions precedent set forth in
Section 4 of this Agreement shall not have been satisfied
or waived by the Bank in accordance with Section 9.3 of
this Agreement;
(b) Such proposed Loan would cause the aggregate
unpaid principal amount of the Loans outstanding under
this Agreement to exceed the Maximum Revolving Credit Loan
on the Disbursement Date; or
(c) Such proposed Loan would cause the sum of
the aggregate unpaid principal amount of the Loans to
exceed the Borrowing Base on the Disbursement Date.
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2.2.3. Revolving Credit Note. The Loans shall be evidenced by
the Revolving Credit Note, executed by the Borrower, dated the date of
this Agreement, payable to the Bank on the Termination Date (unless
sooner accelerated pursuant to the terms of this Agreement), and in the
principal amount of $11,500,000.00. Until the Termination Date, the
Borrower may repay Loans and reborrow pursuant to Section 2.2.2 hereof.
The date and amount of each Loan made by the Bank and of each repayment
of principal thereon received by the Bank shall be recorded by the Bank
in its records or, at the option of the Bank, on the schedule attached
to the Revolving Credit Note. The aggregate unpaid principal amount so
recorded by the Bank shall constitute the best evidence of the
principal amount owing and unpaid on the Revolving Credit Note,
provided, however, that the failure by the Bank so to record any such
amount or any error in so recording any such amount (whether on the
schedule attached to the Revolving Credit Note or otherwise) shall not
limit or otherwise affect the obligations of the Borrower under this
Agreement or the Revolving Credit Note to repay the principal amount of
all the Loans, together with all interest accrued or accruing thereon.
2.2.4. Interest. Subject to the provisions of Section 2.5
below, the Revolving Credit Note shall bear interest on the outstanding
principal balance from time to time outstanding under the Revolving
Credit Note at a rate equal to the lesser of (a) one and twenty-five
one hundredths percent (1.25%) per annum plus the Prime Rate of the
Bank until maturity, whether by acceleration or otherwise (and after
maturity at a rate equal to four percent (4%) per annum plus the rate
otherwise prevailing hereunder), or (b) the Maximum Legal Rate, as
defined below. Interest shall be payable to the extent then accrued on
the first day of each calendar month, beginning November 1, 2003, until
maturity (whether by acceleration or otherwise) and from and after such
maturity, on demand. The rate of interest applicable to the Note shall
change as and when the Bank's Prime Rate changes.
2.3. Renewals and Extensions. Renewals and extensions, if any, of
any Loan shall be at the Bank's discretion and shall be evidenced by such
documents and instruments as the Bank may require in its sole discretion. The
Bank shall not be obligated to accommodate any renewals and extensions.
2.4. Maximum Rate. The following provisions shall control this
Agreement and the Note:
(a) No agreements, conditions, provision or stipulations
contained in this Agreement or in any other agreement between the
Borrower and the Bank, or the occurrence of an Event of Default, or the
exercise by the Bank of the right to accelerate the payment of the
maturity of principal and interest, or to exercise any option
whatsoever contained in this Agreement or any other agreement between
the Borrower and the Bank, or the arising of any contingency
whatsoever, shall entitle the Bank to collect, in any event, interest
exceeding the maximum rate of nonusurious interest allowed from time to
time by applicable state or federal laws as now or as may hereinafter
be in effect, including Chapter 1 D of Title 79 of Vernon's Texas Civil
Statutes (and as the same may be incorporated by reference in other
Texas statutes), but
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otherwise without limitation, that rate based upon the "weekly ceiling
rate" (as defined in Section 303 of the Texas Finance Code ("MAXIMUM
LEGAL RATE") and in no event shall the Borrower be obligated to pay
interest exceeding such Maximum Legal Rate, and all agreements,
conditions or stipulations; if any, which may in any event or
contingency whatsoever operate to bind, obligate or compel the Borrower
to pay a rate of interest exceeding the Maximum Legal Rate shall be
without binding force or effect, at law or in equity, to the extent
only of the excess of interest over such Maximum Legal Rate. In the
event any interest is charged in excess of the Maximum Legal Rate (the
"EXCESS"), the Borrower acknowledges and stipulates that any such
charge shall be the result of an accidental and bona fide error, and
such Excess shall be, first, applied to reduce the principal of any
obligations due, and, second, returned to the Borrower, it being the
intention of the parties hereto not to enter at any time into an
usurious or otherwise illegal relationship. The parties hereto
recognize that with fluctuations in the prime commercial interest rate
from time to time announced by the Bank such an unintentional result
could inadvertently occur. By the execution of this Agreement, the
Borrower covenants that (a) the credit or return of any Excess shall
constitute the acceptance by the Borrower of such Excess, and (b) the
Borrower shall not seek or pursue any other remedy, legal or equitable,
against the Bank based, in whole or in part, upon the charging or
receiving of any interest in excess of the Maximum Legal Rate. For the
purpose of determining whether or not any Excess has been contracted
for, charged or received by the Bank, all interest at any time
contracted for, charged or received by the Bank in connection with the
Borrower's obligations shall be amortized, prorated, allocated and
spread in equal parts during the entire term of this Agreement. If at
any time the rate of interest payable hereunder shall be computed on
the basis of the Maximum Legal Rate, any subsequent reduction in the
Contract Rate shall not reduce such interest thereafter payable
hereunder below the amount computed on the basis of the Maximum Legal
Rate until the aggregate amount of such interest accrued and payable
under this Agreement equals the total amount of interest which would
have accrued if such interest had been at all times computed solely on
the basis of the Contract Rate.
(b) The provisions of this Section shall be deemed to be
incorporated into every document or communication relating to the
Indebtedness which sets forth or prescribes any account, right or
claims or alleged account, right or claim of the Bank with respect to
the Borrower (or any other obligor in respect of the Indebtedness),
whether or not any provisions of this Section is referred to therein.
All such documents and communications and all figures set forth therein
shall, for the sole purpose of computing the extent of the obligations
asserted by the Bank thereunder, be automatically recomputed by the
Borrower or any other obligor, and by any court considering the same,
to give effect to the adjustments or credits required by this Section.
(c) If the applicable state or federal law is amended in the
future to allow a greater rate of interest to be charged under this
Agreement than is presently allowed by applicable state or federal law,
then the limitation of interest hereunder shall be increased to the
maximum rate of interest allowed by applicable state or federal law, as
amended, which increase shall be effective hereunder on the effective
date of such amendment, and all interest charges owing to the Bank by
reason thereof shall be payable upon demand.
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(d) The provisions of Chapter 346 of the Texas Finance Code
are specifically declared by the parties not to be applicable to this
Agreement or any of the other agreements executed in connection
herewith or therewith or to the transactions contemplated hereby or
thereby.
2.5. Fees.
2.5.1. Facility Fee. The Borrower has paid to the Bank a
facility fee of $15,000.00 in connection with the execution of the
Prior Agreement.
2.5.2. Preparation Fees. Simultaneously with the execution of
this Agreement, the Borrower shall pay to the Bank the amount of the
Bank's expenses (including reasonable attorney's fees and
disbursements) incurred by the Bank in connection with the preparation
of this Agreement and related instruments.
2.6. Basis of Computation. The amount of all interest and fees
hereunder shall be computed for the actual number of days elapsed on the basis
of a year consisting of three hundred sixty (360) days.
2.7. Basis of Payments. All sums payable by the Borrower to the
Bank under this agreement shall be paid directly to the Bank at its principal
office in immediately available funds, without setoff, deduction or
counterclaim.
SECTION 3. SECURITY.
To secure full and timely performance of the Borrower's covenants set
out in this Agreement and to secure the repayment of the Note and all other
Indebtedness whatsoever of the Borrower to the Bank, the Borrower has previously
granted and assigned liens upon and security interests in the Collateral
pursuant to certain security agreements, financing statements, and other
instruments and agreements, and all such liens and security interests are hereby
ratified and affirmed.
SECTION 4. CONDITIONS PRECEDENT TO OBLIGATIONS OF BANK.
4.1. Conditions to First Disbursement. The obligations of the Bank
under this Agreement are subject to the occurrence, prior to or on the
Disbursement Date first occurring, of each of the following conditions, any or
all of which may be waived in whole or in part by the Bank in writing:
4.1.1. Documents Executed and Filed. The Borrower shall have
executed (or caused to be executed) and delivered to the Bank and, as
appropriate, there shall have been filed with such filing offices as
the Bank shall deem appropriate, the following:
(a) The Note;
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(b) A ratification of subordination in a form
acceptable to the Bank by X'Xxxxxxx & Xxxxx, X.X.;
(c) The filing of a Tennessee UCC-1 financing
statement covering the Collateral located in Tennessee; and
(d) The delivery to the Bank of landlord waivers
satisfactory to the Bank.
4.1.2. Certified Resolutions. The Borrower shall have
furnished to the Bank a copy of resolutions of the Board of Directors
of the Borrower authorizing the execution, delivery and performance of
this Agreement, the borrowing hereunder, the Note and any other
documents contemplated by this Agreement, which shall have been
certified by the Secretary or Assistant Secretary of the Borrower as of
the Disbursement Date first occurring.
4.1.3. Certified Articles. The Borrower shall have furnished
to the Bank a copy of the Articles of Incorporation, including all
amendments thereto, and all other charter documents of the Borrower,
all of which shall have been certified by the state agency issuing the
same as of a date reasonably near the Disbursement Date first
occurring.
4.1.4. Certified Bylaws. The Borrower shall have furnished to
the Bank a copy of the Bylaws of the Borrower, which shall have been
certified by the Secretary or Assistant Secretary of the Borrower as of
the Disbursement Date first occurring.
4.1.5. Certificate of Good Standing. The Borrower shall have
furnished to the Bank a certificate of good standing with respect to
the Borrower, which shall have been certified by the state agency
issuing the same as of a date reasonably near the Disbursement Date
first occurring.
4.1.6. Certificate of Incumbency. The Borrower shall have
furnished to the Bank a certificate of the Secretary or Assistant
Secretary of the Borrower, certified as of the Disbursement Date first
occurring, as to the incumbency and signatures of the officers of the
Borrower signing this Agreement, the Note and any documents
contemplated or delivered under this Agreement.
4.1.7. Opinion of Borrower's Counsel. The Borrower shall have
furnished to the Bank the favorable written opinion of legal counsel to
the Borrower, dated as of the Disbursement Date first occurring and in
a form acceptable to the Bank.
4.1.8. UCC Lien Search. The Bank shall have received UCC
record and copy searches, evidencing the appropriate filing and
recording of the financing statements and disclosing no notice of any
liens or encumbrances filed against any of the Collateral in any
relevant jurisdiction other than the financing statements previously
filed and other than as relate to Permitted Liens except for such liens
and encumbrances which shall be released upon the initial advances
hereunder.
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4.1.9. Hazard Insurance. The Borrower shall have furnished to
the Bank, in form and amounts and with companies satisfactory to the
Bank, evidence of hazard insurance policies naming the Bank as
"mortgagee", and relating to the assets and properties (including, but
not limited to, the Collateral) of the Borrower.
4.1.10. Approval of Bank Counsel. All actions, proceedings,
instruments and documents required to carry out the transactions
contemplated by this Agreement or incidental thereto and all other
related legal matters shall have been satisfactory to and approved by
legal counsel for the Bank, and said counsel shall have been furnished
with such certified copies of actions and proceedings and such other
instruments and documents as they shall have reasonably requested.
4.1.11. Other Information and Documentation. The Bank shall
have received such other information, certificates and executed
documents as they shall have reasonably requested.
4.2. Conditions to All Disbursements. The obligation of the Bank to
make any Loan on any Disbursement Date, including, but not limited to, the
Disbursement Date first occurring, are subject to the occurrence, prior to or on
the Disbursement Date related to such Loan, of each of the following conditions,
any or all of which may be waived in whole or in part by the Bank in writing:
4.2.1. Certificate. The Bank shall have received a
certificate, executed by the chief executive or controller of the
Borrower, certified as of such Disbursement Date, and confirming that,
as of such Disbursement Date:
(a) No Default or Event of Default has occurred and
is continuing; and
(b) The warranties and representations set forth in
Section 5 of this Agreement are true and correct in all
material respects on and as of such Disbursement Date.
4.2.2. Bank Satisfaction. The Bank shall not know or have any
reasonable reason to believe that, as of such Disbursement Date:
(a) Any Default or Event of Default has occurred and
is continuing;
(b) Any warranty or representation set forth in
Section 5 of this Agreement shall not be true and correct
in all material respects; or
(c) Any provision of law, any order of any court or
other agency of government or any regulation, rule or
interpretation thereof shall have had any material adverse
effect on the validity or enforceability of this
Agreement, the Note, any existing security agreements or
financing statements, or the Subordination Agreement.
12
SECTION 5. WARRANTIES AND REPRESENTATIONS.
The Borrower represents and warrants to the Bank that:
5.1. Corporate Existence and Power. (a) Each entity comprising the
Borrower is a corporation duly organized, validly existing and in good standing
under the laws of the state of its incorporation, (b) each of the Subsidiaries
is a corporation duly organized, validly existing and in good standing under the
law of its state of incorporation, (c) the Borrower and each of the Subsidiaries
have the corporate power and authority to own their respective properties and
assets and to carry out their respective business as now being conducted and are
qualified to do business and in good standing in every jurisdiction wherein such
qualification is necessary except where the failure to so qualify would not have
a material adverse effect on Borrower and (d) the Borrower has the corporate
power and authority to execute and perform this Agreement, to borrow money in
accordance with its terms, to execute and deliver the Note and other documents
contemplated hereby, to grant to the Bank liens and security interest in the
Collateral as hereby contemplated and to do any and all other things required of
it hereunder.
5.2. Authorization and Approvals. The execution, delivery and
performance of this Agreement, the borrowing hereunder and the execution and
delivery of the Note, any security agreements, the financing statements, and
other documents contemplated hereby (a) have been duly authorized by all
requisite corporate action, (b) do not require registration with or consent or
approval of, or other action by, any federal, state or other governmental
authority or regulatory body, or, if such registration, consent or approval is
required, the same has been obtained and disclosed in writing to the Bank, (c)
will not violate any provision of law, any order of any court or other agency of
government, the Articles of Incorporation or Bylaws of the Borrower, any
provision of any indenture, agreement or other instrument to which the Borrower
is a party, or by which it or any of its properties or assets are bound, (d)
will not be in conflict with, result in a breach of or constitute (with or
without notice or passage of time) a default under any such indenture, agreement
or other instrument, and (e) will not result in the creation or imposition of
any lien, charge or encumbrance of any nature whatsoever upon any of the
properties or assets of the Borrower other than in favor of the Bank and as
contemplated hereby.
5.3. Valid and Binding Agreement. This Agreement is, and the Note
and all other documents contemplated hereby will be, when delivered, valid and
binding obligations of the Borrower in each case enforceable in accordance with
their respective terms except as such enforcement may be limited by bankruptcy,
reorganization, insolvency and similar laws and equitable principles affecting
the enforcement of creditors' rights generally.
5.4. Actions, Suits or Proceedings. There are no actions, suits or
proceedings, at law or in equity, and no proceedings before any arbitrator or by
or before any governmental commission, board, bureau or other administrative
agency, pending, or, to the best knowledge of the Borrower, threatened against
or affecting the Borrower or any of the Subsidiaries or any properties or rights
of the Borrower or any of the Subsidiaries, which, if adversely determined,
could materially impair the right of the Borrower or any of the Subsidiaries to
carry on business substantially as now conducted or could have a material
adverse effect upon the financial condition of the Borrower or any of the
Subsidiaries.
13
5.5. Subsidiaries. The Borrower directly or indirectly wholly owns
the Subsidiaries set forth on Schedule 5.5.
5.6. No Liens, Pledges, Mortgages or Security Interests. Except for
Permitted Liens, none of the Borrower's or the Subsidiaries' assets and
properties, including the Collateral, is subject to any mortgage, pledge, lien,
security interest or other encumbrance of any kind or character.
5.7. Accounting Principles. The Financial Statements have been
prepared in accordance with GAAP and fairly present the financial condition of
the Borrower and the Subsidiaries as of the dates, and the results of their
operations for the periods, for which the same are furnished to the Bank. To the
best of Borrower's knowledge and belief, the Borrower has no material contingent
obligations, liabilities for taxes, long-term leases or unusual forward or
long-term commitments not disclosed by, or reserved against in, the Financial
Statements.
5.8. No Adverse Changes. There has been no material adverse change
in the business, properties or condition (financial or otherwise) of the
Borrower, or any of the Subsidiaries since the date of the latest of the
Financial Statements.
5.9. Conditions Precedent. As of each Disbursement Date, all
appropriate conditions precedent referred to in Section 4 hereof shall have been
satisfied (or waived in writing by the Bank).
5.10. Taxes. The Borrower and the Subsidiaries have filed by the due
date therefor all federal, state and local tax returns and other reports they
are required by law to file and which are material to the conduct of their
respective businesses, and except for taxes, assessments and other governmental
charges being contested in good faith by appropriate proceedings and for which
adequate reserves exist on the balance sheet, have paid or caused to be paid all
taxes, assessments and other governmental charges that are shown to be due and
payable under such returns, and have made adequate provision for the payment of
such taxes, assessments or other governmental charges which have accrued but are
not yet payable. The Borrower has no knowledge of any deficiency or assessment
in a material amount in connection with any taxes, assessments or other
governmental charges not adequately disclosed in the Financial Statements.
5.11. Compliance with Laws. The Borrower, and the Subsidiaries have
complied with all applicable laws, to the extent that failure to comply would
materially interfere with the conduct of the business of the Borrower or any of
the Subsidiaries.
5.12. Indebtedness. Except as disclosed on Schedule 5.12 or as
permitted by Section 7.5 hereof, the Borrower and the Subsidiaries have no
indebtedness for money borrowed and no direct or indirect obligations under any
capitalized leases (whether or not required to be capitalized under GAAP) or any
agreements of guarantee or surety except for the endorsement of negotiable
instruments by the Borrower and the Subsidiaries in the ordinary course of
business for deposit or collection.
14
5.13. Material Agreements. Except as disclosed on Schedule 5.13 (as
updated from time to time by written notice to the Bank), the Borrower and the
Subsidiaries have no material leases, contracts or commitments of any kind
(including, without limitation, employment agreements, collective bargaining
agreements, powers of attorney, distribution contracts, patent or trademark
licenses, contracts for future purchase or delivery of goods or rendering of
services, bonus, pension and retirement plans, or accrued vacation pay,
insurance and welfare agreements); to the best knowledge of Borrower, all
parties to such agreements (including the Borrower and the Subsidiaries) have
complied with the provisions of such leases, contracts or commitments; and to
the best knowledge of Borrower, no party to such agreements (including the
Borrower and the Subsidiaries) is in default thereunder, nor has there occurred
any event which with notice or the passage of time, or both, would constitute
such a default.
5.14. Margin Stock. Neither the Borrower nor any of the Subsidiaries
is engaged principally, or as one of its important activities, in the business
of extending credit for the purpose of purchasing or carrying any "MARGIN STOCK"
within the meaning of Regulation U of the Board of Governors of the Federal
Reserve System, and no part of the proceeds of any loan hereunder will be used,
directly or indirectly, to purchase or carry any margin stock or to extend
credit to others for the purpose of purchasing or carrying any margin stock or
for any other purpose which might violate the provisions of Regulation G, T, U
or X of the said Board of Governors. The Borrower does not own any margin stock.
5.15. Pension Funding. The Borrower has not incurred any material
accumulated funding deficiency within the meaning of ERISA and has not incurred
any material liability to the PBGC in connection with any employee benefit plan
established or maintained by the Borrower or any of the Subsidiaries and no
reportable event or prohibited transaction, as defined in ERISA, has occurred
with respect to such plans.
5.16. Misrepresentation. No warranty or representation by the
Borrower contained herein or in any certificate furnished by the Borrower
pursuant hereto contains any untrue statement of material fact or omits to state
a material fact necessary to make such warranty or representation not misleading
in light of the circumstances under which it was made.
5.17. Eligible Rental Contract Accounts. Any reference to Borrower
in the following provisions of this Section 5.17 shall mean the particular
entity which comprises the Borrower, and which is then submitting the Account as
an Eligible Rental Contract Account for purposes of that particular Borrowing
Base Certificate. As to each Account represented by Borrower to be an "Eligible
Account" on a Borrowing Base Certificate, as of the date of each such Borrowing
Base Certificate:
(a) Such Account arose in the ordinary course of the
business of Borrower out of a bona fide Rental Contract,
accepted by, the appropriate account debtor.
(b) Such Account (i) represents a legally valid and
enforceable claim which is due and owing to the Borrower by
such account debtor, for such amount and such rental term as
is represented by the Borrower to the Bank on such Borrowing
Base Certificate, (ii) such Account provides for payments no
less
15
frequently than monthly and no portion thereof has been due
for more than ninety (90) days (from the date due).
(c) The unpaid balance of such Account as represented
by the Borrower to the Bank on such Borrowing Base Certificate
is not subject to any defense, counterclaim, set-off, credit,
contra-account, allowance or adjustment by the account debtor
because of returned, inferior or damaged Inventory or
services, or for any other reason known to Borrower, except
for customary discounts allowed by Borrower in the ordinary
course of business for prompt payment, and there is no
agreement between Borrower, the related account debtor and any
other person for any rebate, discount, concession or release
of liability, in whole or in part. It is understood that one
hundred (100%) of any Account which does not meet the standard
of this Section 5.17(c) will be excluded from Eligible Rental
Contract Accounts; provided, however, that the Borrower shall
have the right to request the Bank to reconsider the
eligibility of such Account and the Bank, in its sole
discretion, may declare any such Account to be ineligible only
to the extent of the allowance or adjustment in question.
(d) The transactions leading to the creation of such
Account comply with all applicable state and federal laws and
regulations.
(e) The Borrower has granted to the Bank a perfected
security interest in such Account and in the Rental Contract
(as an item of the Collateral) prior in right to all other
persons (other than Permitted Liens), and such Account has not
been sold, transferred or otherwise assigned by the Borrower
to any person, other than the Bank.
(f) Such Account is not represented by any note,
trade acceptance, draft or other negotiable instrument or by
any chattel paper, except any such as have been endorsed and
delivered by the Borrower to the Bank on or prior to such
Account's inclusion on such Borrowing Base Certificate.
(g) The Borrower has not received, with respect to
such Account, any actual notice of the death of the related
account debtor or any partner thereof, nor of the dissolution,
liquidation, termination of existence, insolvency, business
failure, appointment of a receiver for any part of the
property of, assignment for the benefit of creditors by, or
the filing of a petition in bankruptcy or the commencement of
any proceeding under any bankruptcy or insolvency laws by or
against, such account debtor.
(h) The account debtor on such Account is not:
(1) an affiliate of the Borrower (except
that employee accounts will not be
considered to be "affiliate" accounts),
(2) the United States of America or any
department, agency or
16
instrumentality thereof,
(3) to the best of Borrower's knowledge, a
resident of any jurisdiction other than
one of the United States, or
(4) an account debtor whom the Bank has, in
the exercise of such Bank's sole
discretion, determined to be (based on
such factors as the Bank deems
appropriate) an ineligible account
debtor and as to which the Bank has
notified the Borrower, provided,
however, that any such notice shall not
apply as to any Account of such account
debtor which has been included on a
Borrowing Base Certificate by the
Borrower prior to the giving of such
notice by the Bank and which meets each
and every other requirement under this
Agreement for the denomination of such
Account as an "Eligible Rental Contract
Account."
(i) No portion of the Account represents a deposit of
the account debtor or any other party.
SECTION 6. AFFIRMATIVE COVENANTS.
From the date hereof until the principal of and interest on the Note
and other Indebtedness is paid in full, the Borrower covenants and agrees that
it will:
6.1 Financial and Other Information.
6.1.1. Annual Financial Reports. Furnish to the Bank in form
satisfactory to the Bank not later than ninety (90) days after the
close of each fiscal year of the Borrower, beginning with the
Borrower's fiscal year ending July 31, 2003, on a consolidated and
consolidating basis, a balance sheet as at the close of each such
fiscal year, statements of income and statements of cash flows for each
such fiscal year, and such other comments and financial details as are
usually included in similar reports. Such reports shall be prepared in
accordance with GAAP by independent certified public accountants of
recognized standing selected by the Borrower and acceptable to the Bank
and shall contain unqualified opinions as to the statements therein
contained.
6.1.2 Quarterly Financial Reports. Furnish to the Bank in form
satisfactory to the Bank not later than forty-five (45) days after the
close of each fiscal quarter of the Borrower, beginning with the
Borrower's fiscal quarter ending October 31, 2003, on a consolidated
and consolidating basis, a balance sheet as at the close of each such
fiscal quarter, statements of income and statements of cash flows for
each such fiscal quarter, and such other comments and financial details
as are usually included in similar reports. Such reports shall be
prepared in accordance with GAAP by independent certified public
accountants of recognized standing selected by the Borrower and
acceptable to the Bank and shall contain unqualified opinions as to the
statements therein contained.
17
6.1.3. Monthly Financial Statements. Furnish to the Bank not
later than thirty (30) days after the close of each month of each
fiscal year of the Borrower, beginning with October 31, 2003, financial
statements containing the consolidated and consolidating balance sheet
of the Borrower and the Subsidiaries as of the end of each such period,
consolidated and consolidating statements of income and statements of
cash flows of the Borrower and the Subsidiaries up to the end of such
period. These statements shall be prepared on substantially the same
accounting basis as the statements required in Section 6.1.1 of this
Agreement and shall be in such detail as the Bank may require, and the
accuracy of the statements shall be certified by the chief executive
officer or controller of the Borrower.
6.1.4. No Default Certificate. Together with each delivery of
the financial statements required by Section 6.1.1 and Section 6.1.2 of
this Agreement, furnish to the Bank a certificate of its chief
executive or financial officer stating that no Event of Default or
Default has occurred, or if any such Event of Default or Default
exists, stating the nature thereof, the period of existence thereof and
what action the Borrower proposes to take with respect thereto.
6.1.5. Inventory and Borrowing Base Certificate. Furnish to
the Bank monthly by the thirtieth (30th) of each month (i) an Inventory
report as of the end of the preceding month in a form satisfactory to
the Bank and (ii) a Borrowing Base Certificate confirming that the
aggregate unpaid principal amount of all Loans does not exceed the
Borrowing Base as then in effect (or, if such is not the case,
accompanied by a prepayment of the Revolving Credit Note sufficient in
amount to reduce the aggregate unpaid principal amount of all Loans to
or below the amount of the Borrowing Base) and confirming that the
aggregate unpaid principal balance of the Loans does not exceed the
Maximum Revolving Credit Loan. As used in this section, references to
Borrower shall mean the particular entity which comprises the Borrower
and which is then submitting the materials required by this section.
6.1.6. Adverse Events. Promptly inform the Bank of the
occurrence of any Event of Default or Default, or of any occurrence
which has or could reasonably be expected to have a materially adverse
effect upon the Borrower's business, properties, financial condition or
ability to comply with its obligations hereunder.
6.1.7. Shareholder Reports. Promptly furnish to the Bank upon
becoming available a copy of all financial statements, reports,
notices, proxy statements and other communications sent by Borrower to
its stockholders, and all regular and periodic reports filed by the
Borrower with any securities exchange, the Securities and Exchange
Commission or any other state or federal agency.
6.1.8. Management Letters. Furnish to the Bank, promptly upon
receipt thereof, copies of all management letters and other reports of
substance submitted to the Borrower by independent certified public
accountants in connection with any annual or interim audit of the books
of the Borrower.
18
6.1.9. Other Information as Requested. Promptly furnish to the
Bank such other information regarding the operations, business affairs
and financial condition of the Borrower and the Subsidiaries as the
Bank may reasonably request from time to time and permit the Bank, its
employees, attorneys and agents, to inspect all of the books, records
and properties of the Borrower and the Subsidiaries at any reasonable
time.
6.2. Insurance. Keep its insurable properties (including, but not
limited to, the Collateral) and the insurable properties of the Subsidiaries
adequately insured and maintain (a) insurance against fire and other risks
customarily insured against by companies engaged in the same or a similar
business to that of the Borrower or the Subsidiaries, (b) necessary worker's
compensation insurance, (c) public liability and product liability insurance,
and (d) such other insurance as may be required by law or as may be reasonably
required in writing by the Bank, all of which insurance shall be in such
amounts, containing such terms, in such form, for such purposes and written by
such companies as may be satisfactory to the Bank. All such policies shall
contain a provision whereby they may not be canceled except upon thirty (30)
days' prior written notice to the Bank. The Borrower will deliver to the Bank,
at the Bank's request, evidence satisfactory to the Bank that such insurance has
been so procured and, with respect to casualty insurance, names the Bank as
"mortgagee" and provides for payment to the Bank even if the Borrower would not
be entitled to receive payment of any proceeds. If the Borrower fails to
maintain satisfactory insurance as herein provided, the Bank shall have the
option to do so, and the Borrower agrees to repay the Bank, with interest at
three percent (3%) per annum plus the Prime Rate, all amounts so expended by the
Bank. The Borrower hereby appoints the Bank as Borrower's attorney-in-fact,
which appointment is coupled with an interest and irrevocable (empowered to act
whenever a Default has occurred and is continuing), to endorse any check or
draft payable to the Borrower in connection with returned or unearned premiums
on said insurance or the proceeds of said insurance, and any amount so collected
may be applied toward satisfaction of the Indebtedness, provided, however, that
the Bank shall not be required hereunder so to act and, provided, further, the
Bank agrees that with respect to any insurance proceeds payable for any single
claim under $100,000.00 involving loss or damage to any portion of the
Collateral, the Bank will instruct the insurance carrier to pay insurance
proceeds for such claim directly to the Borrower if the Borrower shall have
prior thereto agreed in writing to replace the Collateral.
6.3. Taxes. Pay promptly and within the time that they can be paid
without interest or penalty all taxes, assessments and similar imposts and
charges of every kind and nature lawfully levied, assessed or imposed upon the
Borrower, the Subsidiaries and their respective property, except to the extent
being contested in good faith and, if requested by the Bank, bonded in a manner
satisfactory to the Bank. If the Borrower shall fail to pay such taxes and
assessments by their due date, the Bank shall have the option to do so, and the
Borrower agrees to repay the Bank, with interest at three percent (3%) per annum
plus the Prime Rate, all amounts so expended by the Bank.
6.4. Maintain Corporation and Business. Do or cause to be done all
things necessary to preserve and keep in full force and effect the Borrower's
and the Subsidiaries' corporate existence, rights and franchises and comply with
all applicable laws; continue to conduct and
19
operate their respective businesses substantially as conducted and operated
during the present and preceding calendar year; at all times maintain, preserve
and protect all franchises and trade names and preserve all the remainder of
their respective property used or useful in the conduct of their respective
business and keep the same in good repair, working order and condition; and from
time to time make, or cause to be made, all needed and proper repairs, renewals,
replacements, betterments and improvements thereto so that the business carried
on in connection therewith may be properly and advantageously conducted at all
times.
6.5. ERISA. (a) At all times meet and cause each of the
Subsidiaries to meet the minimum funding requirements of ERISA with respect to
the Borrower's and the Subsidiaries' employee benefit plans subject to ERISA;
(b) promptly after the Borrower knows or has reason to know (i) of the
occurrence of any event, which would constitute a reportable event or prohibited
transaction under ERISA, or (ii) that the PBGC or the Borrower (or any
Subsidiary) has instituted or will institute proceedings to terminate an
employee pension plan, deliver to the Bank a certificate of the chief financial
officer of the Borrower setting forth details as to such event or proceedings
and the action which the Borrower (or such Subsidiary) proposes to take with
respect thereto, together with a copy of any notice of such event which may be
required to be filed with the PBGC; and (c) furnish to the Bank (or cause the
plan administrator to furnish the Bank) a copy of the annual return (including
all schedules and attachments) for each plan covered by ERISA, and filed with
the Internal Revenue Service by the Borrower (or any Subsidiary), not later than
ten (10) days after such report has been so filed.
6.6. Use of Loan Proceeds. Use the proceeds of the Loan hereunder
for working capital needs and for general corporate purposes of the Borrower.
6.7. Maintain Effective Tangible Net Worth. Maintain a minimum
Effective Tangible Net Worth equal to (i) $8,750,000.00 plus (ii) fifty percent
(50%) of Borrower's Net Income for the Quarter-End then ending. For purposes of
this Section 6.7, "Quarter-End" means each successive October 31, January 31,
April 30, and July 31.
6.8. Maintain Debt Ratio. On a consolidated statement basis,
maintain at all times the ratio of (i) total liabilities, less subordinated debt
(all as computed in accordance with GAAP) of the Borrower to (i.e., divided by)
(ii) the Effective Tangible Net Worth of Borrower of not more than 1.50 to 1.00.
6.9. Intentionally Deleted.
6.10. Rental Contracts. Deliver immediately to the Bank, upon the
request of the Bank, any or all (as the Bank may request) Rental Contracts,
endorsed to the Bank in a manner satisfactory to the Bank.
6.11. Interest Coverage. Maintain as of the end of each calendar
month, an Interest Coverage Ratio of not less than 2:00 to 1:00.
6.12. Profitability.
20
a) As of the last day of each month (commencing May 31, 2003
and continuing through July 31, 2003) maintain on a
cumulative, fiscal year-to-date basis, Net Income greater
than or equal to zero dollars ($0.00); and
b) Thereafter, as of the last day of each Quarter-End (having
the same meaning given such term in Section 6.7 preceding)
for the three-month period then ending, commencing with
the Quarter-End October 31, 2003, maintain Net Income
greater than or equal to zero dollars ($0.00).
SECTION 7. NEGATIVE COVENANTS.
From the date hereof until the principal of and interest on the Note
and other Indebtedness is paid in full, the Borrower covenants and agrees that
it will not, and will not permit any Subsidiary to:
7.1. Dividends. Declare or pay any dividend (other than dividends
payable solely in shares of its capital stock) on, or make any other
distribution with respect to (whether by reduction of capital or otherwise), any
shares of its capital stock, except that dividends from any Subsidiary to the
Borrower and from the Borrower to BRI are permitted.
7.2. Stock Issuance. Issue any additional shares of its capital
stock, or any warrant, right or option relating thereto or any security
convertible into any of the foregoing.
7.3. Stock Acquisition. Purchase, redeem, retire or otherwise
acquire any of the shares of its capital stock, or make any commitment to do so.
7.4. Liens and Encumbrances. Create, incur, assume or suffer to
exist any mortgage, pledge, encumbrance, security interest, lien or charge of
any kind (including any charge upon property purchased or acquired under a
conditional sales or other title-retaining agreement or lease required to be
capitalized under GAAP) upon any of its property or assets, whether now owned or
hereafter acquired, other than Permitted Liens.
7.5. Indebtedness. Incur, create, assume or permit to exist any
indebtedness or liability on account of deposits or advances or any indebtedness
or liability for borrowed money, or any other indebtedness or liability
evidenced by Note, bonds, debentures or similar obligations, or any other
indebtedness whatsoever, except for (a) the Indebtedness, (b) indebtedness
subordinated to the prior payment in full of the Indebtedness upon terms and
conditions approved in writing by the Bank, (c) existing indebtedness to the
extent set forth on Schedule 5.12, (d) trade indebtedness incurred and paid in
the ordinary course of business, (e) contingent indebtedness to the extent
permitted by Section 7.7 of this Agreement, (f) indebtedness secured by
Permitted Liens, (g) purchase money indebtedness in an amount not to exceed
$100,000.00 in the aggregate at any time, and (h) to the extent it may be
related to leases for new store locations.
7.6. Extension of Credit. Make loans, advances or extensions of
credit to any person, except for sales on open account and otherwise in the
ordinary course of business, which in the
21
aggregate exceed $100,000.00 at any time.
7.7. Guarantee Obligations. Guarantee or otherwise, directly or
indirectly, in any way be or become responsible for obligations of any other
person, whether by agreement to purchase the indebtedness of any other person,
agreement for the furnishing of funds to any other person through the furnishing
of goods, supplies or services, by way of stock purchase, capital contribution,
advance or loan, for the purpose of paying or discharging (or causing the
payment or discharge of) the indebtedness of any other person, or otherwise,
except for the endorsement of negotiable instruments by the Borrower or the
Subsidiaries in the ordinary course of business for deposit or collection.
7.8. Subordinate Indebtedness. Subordinate any indebtedness due to
it from a person to indebtedness of other creditors of such person.
7.9. Property Transfer, Merger or Lease-Back. (a) Sell, lease,
transfer or otherwise dispose of all or, except as to the sale or lease of
Inventory in the ordinary course of business, any material part of its
properties and assets (whether in one transaction or in a series of
transactions), (b) change its name, consolidate with or merge into any other
corporation, permit another corporation to merge into it, acquire all or
substantially all the properties or assets of any other person, enter into any
reorganization or recapitalization or reclassify its capital stock, or (c) enter
into any sale-leaseback transaction; provided, however, that a Subsidiary wholly
owned by the Borrower may be merged into, or consolidated with, the Borrower or
another Subsidiary wholly owned by the Borrower, and such Subsidiary may sell,
lease or transfer all or a substantial part of its assets to the Borrower or
another Subsidiary wholly owned by the Borrower, and the Borrower or such
Subsidiary may acquire all or substantially all of the properties and assets of
the Subsidiary so to be merged into, or consolidated with, it or so to be sold,
leased or transferred to it.
7.10. Acquire Securities. Purchase or hold beneficially any stock or
other securities of, or make any investment or acquire any interest whatsoever
in, any other person except for the common stock of the Subsidiaries owned by
the Borrower on the date of this Agreement and except for certificates of
deposit with maturities of one (1) year or less of United States commercial
banks with capital, surplus and undivided profits in excess of $100,000,000.00
and direct obligations of the United States Government maturing within one (1)
year from the date of acquisition thereof.
7.11. Pension Plans. (a) Allow any fact, condition or event to occur
or exist with respect to an employee pension or profit sharing plan which might
constitute grounds for termination of any such plan or for the appointment by a
United States District Court of a trustee to administer any such plan, or (b)
permit any such plan to be the subject of termination proceedings (whether
voluntary or involuntary) from which termination proceedings there may result a
liability of the Borrower or any of the Subsidiaries to the PBGC which in the
opinion of the Bank, will have a materially adverse effect upon the operations,
business, property, assets, financial condition or credit of the Borrower.
7.12. Misrepresentation. Furnish the Bank with any certificate that
contains any untrue
22
statement of a material fact or omits to state a material fact necessary to make
such certificate not misleading in light of the circumstances under which it was
furnished.
7.13. Margin Stock. Apply any of the proceeds of the Note to the
purchase or carrying of any "MARGIN STOCK" within the meaning of Regulation U of
the Board of Governors of the Federal Reserve System, or any regulations,
interpretations or rulings thereunder.
7.14. Compliance with Environmental Laws. If the result of the
failure of the Borrower to comply with any of the following covenants contained
in this Section 7.14 would be that of a material adverse effect upon the
Borrower's business or financial condition, then the Borrower will not, and will
not allow any Subsidiary to, (i) use (or permit any tenant to use) any of its
respective properties or assets for the handling, processing, storage,
transportation, or disposal of any Hazardous Substance except in all respects in
compliance with Environmental Laws, (ii) generate any Hazardous Substance except
in all respects in compliance with Environmental Laws, (iii) conduct any
activity which is likely to cause a release of any Hazardous Substance, or (iv)
otherwise conduct any activity or use any of its respective properties or assets
in any manner that is likely to violate any Environmental Law.
7.15. No Distributions to Certain Affiliates. Make any distribution
of any nature to any Person unless such Person is also an entity which comprises
the Borrower at the time of such distribution. Without limitation, Borrower will
not make any distributions of any nature to K.C. Resource Service Corporation, a
Missouri corporation, or to U.S. Credit-Service Corporation, a Missouri
corporation.
7.16. Assignment of Rental Contracts. Except as done for the
exclusive benefit of the Bank, assign, pledge, surrender possession of, or
otherwise xxxxx x xxxx or security interest in, any of the Rental Contracts.
SECTION 8. EVENTS OF DEFAULT - ENFORCEMENT - APPLICATION OF PROCEEDS.
8.1. Events of Default. The occurrence of any of the following
events shall constitute an Event of Default hereunder:
8.1.1. Failure to Pay Monies Due. If any principal of or
interest on the Note, any fees under Section 2.5 of this Agreement or
any other Indebtedness to the Bank shall not be paid when due.
8.1.2. Misrepresentation. If any warranty or representation
of the Borrower in connection with or contained in this Agreement, or
if any financial data or other information hereafter furnished to the
Bank by or on behalf of the Borrower pursuant to Section 6.1.1, Section
6.1.2, Section 6.1.3 or Section 6.1.4, shall prove to be false or
misleading in any material respect.
8.1.3. Noncompliance with Bank Agreement. If the Borrower
shall fail to perform any of its obligations and covenants under, or
shall fail to comply with any of the provisions of, this Agreement or
any other agreement with the Bank to which it may be a
23
party.
8.1.4. Other Defaults. If the Borrower or any Subsidiary
shall default in the due payment of any of its indebtedness other than
(i) indebtedness that is subordinated to the Bank pursuant to the
Subordination Agreement and (ii) the Indebtedness or in the observance
or performance of any term, covenant or condition in any agreement or
instrument evidencing, securing or relating to such indebtedness and
such default shall result in acceleration of the indebtedness.
8.1.5. Judgments. If there shall be rendered against the
Borrower or any Subsidiary, one or more judgments or decrees involving
an aggregate liability of $50,000.00 or more, which has or have become
nonappealable and shall remain undischarged, unsatisfied by insurance
and unstayed for more than twenty (20) days, whether or not
consecutive; or of a writ of attachment or garnishment against the
property of the Borrower or any of the Subsidiaries shall be issued and
levied in an action claiming $50,000.00 or more and not released or
appealed and bonded in a manner satisfactory to the Bank.
8.1.6. Business Suspension, Bankruptcy, Etc. If the Borrower
or any Subsidiary shall voluntarily suspend transaction of its
business; or if the Borrower or any Subsidiary shall not pay its debts
as they mature or shall make a general assignment for the benefit of
creditors; or proceedings in bankruptcy, or for reorganization or
liquidation of the Borrower or any Subsidiary, under the Bankruptcy
Code or under any other state or federal law for the relief of debtors
shall be commenced by the Borrower or any Subsidiary or shall be
commenced against the Borrower or any Subsidiary and shall not be
discharged within thirty (30) days of commencement; or a receiver,
trustee or custodian shall be appointed for the Borrower or any
Subsidiary or for any substantial portion of its respective properties
or assets.
8.1.7. Change of Control or Management. If X'Xxxxxxx &
Masur, L.P. cease to own at least twenty-five percent (25%) of the
issued and outstanding voting common stock of Bestway, whether by
reason of merger, consolidation, sale or purchase of assets or stock or
otherwise; or if Bestway ceases to own directly or indirectly at least
eighty percent (80%) of the capital voting stock of any subsidiary; and
if any such change of control adversely impacts, in the sole judgment
of the Bank, upon the ability of the Borrower to carry on its business
as theretofore conducted.
8.1.8. Inadequate Funding or Termination of Employee/Benefit
Plan(s). If the Borrower (or any Subsidiary) shall fail to meet its
minimum funding requirements under ERISA with respect to any employee
benefit plan established or maintained by the Borrower (or any
Subsidiary), or if' any such plan shall be the subject of termination
proceedings (whether voluntary or involuntary) and there shall result
from such termination proceedings a liability of Borrower (or any
subsidiary) to the PBGC which in the opinion of the Bank will have a
materially adverse effect upon the operations, business, property,
assets, financial condition or credit of the Borrower.
24
8.1.9. Occurrence of Certain Reportable Events. If there
shall occur, with respect to any pension plan maintained by the
Borrower or any Subsidiary, any reportable event (within the meaning of
Section 4043(b) of ERISA) which the Bank shall determine in good faith
constitutes a ground for the termination of any such plan, and if such
event continues for thirty (30) days after the Bank gives written
notice to the Borrower, provided that termination of such plan or
appointment of such trustee would, in the opinion of the Bank, have a
materially adverse effect upon the operations, business, property,
assets, financial condition or credit of the Borrower.
8.2. Acceleration of Indebtedness. Upon the occurrence of any of
the Events of Default described in Section 8.1.3 hereunder which is not cured by
the Borrower or waived by the Bank within thirty (30) days after the earlier of
the date of notice to the Borrower by the Bank of such Default or the date the
Bank is notified, or should have been notified, pursuant to Borrower's
obligation under Section 6.1.5 of this Agreement, of such Default, or upon the
occurrence of any of the Events of Default described in Section 8.1.1 (unless
otherwise waived by the Bank in writing or unless cured within a time period
acceptable to the Bank), Section 8.1.2 or Sections 8.1.4 through Section 8.1.9,
all Indebtedness shall be due and payable in full forthwith at the option of the
Bank without presentation, demand, protest, notice of dishonor or other notice
of any kind, all of which are hereby expressly waived. Unless all of the
Indebtedness is then fully paid, the Bank shall have and may exercise any one or
more of the rights and remedies for which provision is made for a secured party
under UCC, under any security agreements, or under any other document
contemplated hereby, including, without limitation, the right to take possession
and sell, lease or otherwise dispose of any or all of the Collateral and to
setoff against the Indebtedness any amount owing by the Bank to the Borrower.
The Borrower agrees, upon request of the Bank, to assemble the Collateral and
make it available to the Bank at any place designated by the Bank which is
reasonably convenient to the Bank and the Borrower.
8.3. Application of Proceeds. The proceeds of any sale or other
disposition of the Collateral authorized by this Agreement shall be applied by
the Bank, first upon all expenses authorized by the Uniform Commercial Code and
all reasonable attorneys' fees and legal expenses incurred by the Bank; the
balance of the proceeds of such sale or other disposition shall be applied in
the payment of the Indebtedness, first to interest, then to principal; and the
surplus, if any, shall be paid over to the Borrower or to such other person or
persons as may be entitled thereto under applicable law. The Borrower shall
remain liable for any deficiency, which the Borrower shall pay to the Bank
immediately upon demand.
8.4. Cumulative Remedies. The remedies provided for herein are
cumulative to the remedies for collection of the Indebtedness as provided by law
or by any security agreement or other document contemplated hereby. Nothing
herein contained is intended, nor should it be construed, to preclude the Bank
from pursuing any other remedy for the recovery of any other sum to which the
Bank may be or become entitled for the breach of this Agreement by the Borrower.
SECTION 9. MISCELLANEOUS.
9.1. Independent Rights. No single or partial exercise of any
right, power or privilege
25
hereunder, or any delay in the exercise thereof, shall preclude other or further
exercise of the rights of the parties to this Agreement.
9.2 Covenant Independence. Each covenant in this Agreement shall
be deemed to be independent of any other covenant, and an exception in one
covenant shall not create an exception in another covenant.
9.3. Waivers and Amendments. No forbearance on the part of the Bank
in enforcing any of its rights under this Agreement, nor any renewal, extension
or rearrangement of any payment or covenant to be made or performed by the
Borrower hereunder, shall constitute a waiver of any of the terms of this
Agreement or of any such right. No Default or Event of Default shall be waived
by the Bank except in writing signed and delivered by an officer of the Bank,
and no waiver of any Default or Event of Default shall operate as a waiver of
any other Default or Event of Default or of the same Default or Event of Default
on a future occasion. No other amendment, modification or waiver of, or consent
with respect to, any provision of this Agreement or the Note or other documents
contemplated hereby shall be effective unless the same shall be in writing and
signed and delivered by an officer of the Bank.
9.4. GOVERNING LAW. THIS AGREEMENT, AND EACH AND EVERY TERM AND
PROVISION HEREOF, SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAW OF THE
STATE OF TEXAS, AND SHALL BE PERFORMABLE IN DALLAS, DALLAS COUNTY, TEXAS. IF ANY
PROVISIONS OF THIS AGREEMENT SHALL FOR ANY REASON BE HELD INVALID OR
UNENFORCEABLE, SUCH INVALIDITY OR UNENFORCEABILITY SHALL NOT AFFECT ANY OTHER
PROVISION HEREOF, BUT THIS AGREEMENT SHALL BE CONSTRUED AS IF SUCH INVALID OR
UNENFORCEABLE PROVISION HAD NEVER BEEN CONTAINED HEREIN.
9.5. Survival of Representations and Warranties, Etc. All of the
Borrower's covenants, agreements, representations and warranties made in
connection with this Agreement and any document contemplated hereby shall
survive the borrowing and the delivery of the Note hereunder and shall be deemed
to have been relied upon by the Bank, notwithstanding any investigation
heretofore or hereafter made by the Bank. All statements contained in any
certificate delivered to the Bank at any time by or on behalf of the Borrower
pursuant hereto or in connection with the transactions contemplated hereby shall
constitute representations and warranties by the Borrower in connection with
this Agreement.
9.6. Attorneys' Fees. The Borrower agrees that it will pay all
reasonable costs and expenses of the Bank in connection with the enforcement of
the Bank's rights and remedies under this Agreement and in connection with the
preparation or making of any amendments, modifications, waivers or consents with
respect to this Agreement.
9.7. Payments on Saturdays, Etc. Whenever any payment to be made
hereunder or under the Note shall be stated to be due on a Saturday, Sunday or
any other day which is not a Business Day, such payment may be made on the next
succeeding Business Day, and such extension, if any, shall be included in
computing interest in connection with such payment.
26
9.8. Binding Effect. This Agreement shall inure to the benefit of
and shall be binding upon the parties hereto and their respective successors and
assigns; provided, however, the Borrower may not assign or transfer its rights
or obligations hereunder without the prior written consent of the Bank.
9.9. Maintenance of Records. The Borrower will keep all of its
records concerning the Collateral at its principal place of business. The
Borrower will give the Bank prompt written notice of any change in its principal
place of business, or in the location of said records.
9.10. Notices. All notices and communications provided for herein,
or in any document contemplated hereby, or required by law to be given, shall be
effective when received or, in the case of notices from the Bank to the
Borrower, upon sending by first class mail, postage prepaid, addressed as
follows: (a) If to the Borrower, to: 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx,
Xxxxx 00000, Attn: Xxxxx Xxxxxxx and (b) If to the Bank to: Comerica Bank, 0000
Xxxxxxxx Xxxxx, Xxxxxx, Xxxxx 00000, Attn: Xxx X. Xxxxxxx, or to such other
address as a party shall have designated to the other in writing. The giving of
at least five (5) days' notice before the Bank shall take any action described
in any notice shall conclusively be deemed reasonable for all purposes.
9.11. Counterparts. This Agreement may be signed in any number of
counterparts with the same effect as if the signatures were upon the same
instrument.
9.12. Headings. Article and Section headings in this Agreement are
included for the convenience of reference only and shall not constitute a part
of this Agreement for any purpose.
9.13. Capital Adequacy. If as a result of any regulatory change
directly or indirectly affecting the Bank or any of the Bank's affiliates there
shall be imposed, modified or deemed applicable any tax, reserve, special
deposit, minimum capital, capital ratio, or similar requirement against or with
respect to or measured by reference to loans made or to be made hereunder or
participations therein, and the result shall be to increase the cost to the Bank
or any of the Bank's affiliates of making or maintaining any loan hereunder or
to any other party maintaining any participation therein, or reduce any amount
receivable in respect of any such loan (which increase in cost, or reduction in
amount receivable, shall be the result of the Bank's or the Bank's affiliated
company's reasonable allocation among all affected customers of the aggregate of
such increases or reductions resulting from such event), then, within ten (10)
days after receipt by the Borrower of a certificate from the Bank containing the
information described in this Section below which shall be delivered to the
Borrower, the Borrower agrees from time to time to pay the Bank such additional
amounts as shall be sufficient to compensate the Bank or any of the Bank's
affiliates (for as long as such increased costs or reductions in amount
receivable exist) for such increased costs or reductions in amount receivable
which the Bank determines in the Bank's sole discretion are material. The
certificate requesting compensation under this Section shall identify the
regulatory change which has occurred, the requirements which have been imposed,
modified or deemed applicable, the amount of such additional cost or reduction
in amount receivable and the way in which such amount has been calculated.
27
9.14. INDEMNIFICATION BY THE BORROWER. THE BORROWER HEREBY COVENANTS
AND AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE BANK AND ITS OFFICERS,
DIRECTORS, EMPLOYEES AND AGENTS FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES,
LIABILITIES, COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, THE REASONABLE
FEES AND OUT-OF-POCKET EXPENSES OF COUNSEL) WHICH MAY BE INCURRED BY OR ASSERTED
AGAINST THE BANK OR ANY SUCH OTHER INDIVIDUAL OR ENTITY IN CONNECTION WITH:
(a) ANY INVESTIGATION, ACTION OR PROCEEDING ARISING OUT
OF OR IN ANY WAY RELATING TO THIS AGREEMENT, THE NOTE, OR ANY OTHER
DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS OR ANY COLLATERAL, OR ANY
ACT OR OMISSION RELATING TO ANY OF THE FOREGOING;
(b) ANY TAXES (OTHER THAN FEDERAL OR STATE INCOME TAXES),
LIABILITIES, CLAIMS OR DAMAGES RELATING TO THE COLLATERAL OR THE BANK'S
LIENS THEREON; OR
(c) THE CORRECTNESS, VALIDITY OR GENUINENESS OF ANY
INSTRUMENTS OR DOCUMENTS THAT MAY BE RELEASED OR ENDORSED TO BORROWER
BY THE BANK (WHICH SHALL AUTOMATICALLY BE DEEMED TO BE WITHOUT RECOURSE
TO THE BANK IN ANY EVENT), OR THE EXISTENCE, CHARACTER, QUANTITY,
QUALITY, CONDITION, VALUE OR DELIVERY OF ANY GOODS PURPORTING TO BE
REPRESENTED BY ANY SUCH DOCUMENTS PROVIDED THAT BANK SHALL NOT HAVE THE
RIGHT TO BE INDEMNIFIED HEREUNDER FOR ITS OWN GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT.
9.15. NO ORAL AGREEMENTS. THIS AGREEMENT AND THE OTHER "LOAN
AGREEMENTS" (AS DEFINED IN SECTION 26.02(A)(1) OF THE TEXAS BUSINESS & COMMERCE
CODE, AS AMENDED), REPRESENT THE FINAL AGREEMENT BETWEEN THE BANK AND THE
BORROWER AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE BANK AND THE BORROWER.
9.16. Gender. Throughout this Agreement, the masculine shall include
the feminine and vice versa and the singular shall include the plural and vice
versa, unless the context of this Agreement indicates otherwise.
9.17. Joint Borrowers. If more than one party executes this
Agreement as Borrower, then for the purpose of this Agreement the term Borrower
shall mean each such party and each such party shall be jointly and severally
liable as Borrower for the Obligations as defined herein without regard to which
party receives the proceeds of any of the Loans. Each such party hereby
28
acknowledges that it expects to derive economic advantage from each of the
Loans. As among the parties constituting Borrower, each such party acknowledges
and agrees that each other such party has a right of contribution against each
party that is a Borrower with respect to any and all amounts paid to Bank
hereunder.
9.18 Cross Default; Cross Collateral. The Borrower hereby agrees
that (a) all other agreements between Borrower and the Bank is hereby amended so
that a default under this Agreement is a default under all other agreements and
a default under any one of the other agreements is a default under this
Agreement, and (b) the Collateral under this Agreement secures the obligations
now or hereafter outstanding under all other agreements between Borrower and the
Bank and the collateral pledged under any other agreement with the Bank secures
the obligations under this Agreement.
9.19. Severability of Provisions. Any provision of this Agreement,
the Note or any other documents relating thereto that is prohibited, held
invalid 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 of this Agreement, such Note or such other
documents or affecting the validity or enforceability of such provision in any
other jurisdiction.
9.20. Assignment. The Bank shall have the absolute and unrestricted
right to sell, assign, transfer, or grant participation in, all or any portion
of the Loans and any Collateral, guaranties or other security relating thereto
without the consent of Borrower; provided, however, no such action on the part
of the Bank shall have the effect of changing any of the Borrower's obligations
hereunder without the written consent of the Borrower.
9.21. Waiver of Jury Trial. BANK AND BORROWER EACH ACKNOWLEDGE THAT
THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED.
EACH OF THEM, AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT, WITH
COUNSEL OF THEIR CHOICE, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY
RIGHT EITHER OF THEM MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION BASED UPON OR
ARISING OUT OF ANY LOAN DOCUMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THE
LOAN DOCUMENTS OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS (WHETHER ORAL OR
WRITTEN), OR ACTION OF EITHER OF THEM. THESE PROVISIONS SHALL NOT BE DEEMED TO
HAVE BEEN MODIFIED IN ANY RESPECT OR RELINQUISHED BY BANK OR BORROWER, EXCEPT BY
A WRITTEN INSTRUMENT EXECUTED BY EACH OF THEM.
9.22. Prior Agreement. This Agreement supersedes the Prior Agreement
in all respects, but shall not affect the priority of any liens or security
interests previously granted by the Borrower in favor of the Bank pursuant to
the Prior Agreement.
29
IN WITNESS WHEREOF, the Borrower and the Bank have caused this
Agreement to be executed by their duly authorized officers as of the day and
year first written above.
BESTWAY, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
Chief Financial Officer
BESTWAY RENTAL, INC.,
a Tennessee corporation
By: /s/ Xxxx X. Xxxxxxx
Chief Financial Officer
COMERICA BANK
By: /s/ Xxx X. Xxxxxxx
Corporate Banking Officer - Texas Division
30
EXHIBIT A
Dallas, Texas
$11,500,000.00 October 1, 2003
FOR VALUE RECEIVED, BESTWAY, INC., a Delaware corporation, and BESTWAY
RENTAL, INC., a Tennessee corporation, (each individually a "MAKER" and jointly
and severally, the "MAKERS"), jointly and severally promise to pay to the order
of COMERICA BANK (the "BANK") at 0000 Xxx Xxxxxx, Xxxxxx, Xxxxx 00000, on May
31, 2005 (unless sooner due under the terms of the Loan Agreement, as that term
is defined below) the principal sum of Eleven Million Five Hundred Thousand and
No/100 Dollars ($11,500,000.00) or, if less, the aggregate unpaid principal sum
shown on the schedule(s) which, at the sole option of the Bank, may be attached
hereto and made a part hereof.
The unpaid principal amount of this Note shall bear interest and be
payable as provided in that certain Second Amended and Restated Revolving Credit
Agreement, dated October 1, 2003, between the Makers and the Bank (as the same
has been and may be amended, restated, renewed, extended or modified from time
to time, the "LOAN AGREEMENT"), and this Note is the Revolving Credit Note
referred to in the Loan Agreement. Interest shall be payable to the extent
accrued on the first day of each calendar month, beginning November 1, 2003,
until maturity (whether by acceleration or otherwise) and, from and after such
maturity, on demand.
This Note is secured by the Collateral described in the Loan Agreement,
which Loan Agreement, as it may be amended from time to time, is by this
reference incorporated herein and made a part hereof. Reference is hereby made
to the Loan Agreement for a statement of its terms and conditions, including
those conditions under which this Note may be paid prior to its due date or its
due date accelerated. Unless otherwise defined herein, capitalized terms herein
shall have the meanings given such terms in the Loan Agreement.
If an Event of Default occurs and is not cured within the time, if any,
provided for by the Loan Agreement and is continuing, the Bank may exercise any
one or more of the rights (including the right to accelerate this Note and any
other Indebtedness under the Loan Agreement), and remedies granted by the Loan
Agreement, or given to a secured party under applicable law.
The Bank is hereby granted a security interest in all property of each
Maker at any time in the possession of the Bank and in all balances of deposit
accounts of each Maker from time to time with the Bank. If an Event of Default
occurs and is not cured within the time, if any, provided for by the Loan
Agreement, then the Bank, upon the occurrence and continuance of any such Event
of Default, or after the expiration of any time provided for cure, may at its
option and without prior notice to the Makers declare the principal of and
interest on this Note to be immediately due and payable and may set off against
the principal of and interest on this Note (i) any amount owing by the Bank to
either Maker, (ii) any property of either Maker in the possession of the Bank,
and (iii) any amount in any deposit account of either Maker with the Bank.
31
No agreements, conditions, provisions or stipulations contained in this
Note or in any other agreement between the Maker and the Bank, or the occurrence
of an Event of Default, or the exercise by the Bank of the right to accelerate
the payment of the maturity of principal and interest, or to exercise any option
whatsoever contained in this Note or any other agreement between the Maker and
the Bank, or the arising of any contingency whatsoever, shall entitle the Bank
to collect, in any event, interest exceeding the maximum rate of nonusurious
interest allowed from time to time by applicable state or federal laws as now or
as may hereinafter be in effect (the "MAXIMUM LEGAL RATE") and in no event shall
the Maker be obligated to pay interest exceeding such Maximum Legal Rate, and
all agreements, conditions or stipulations, if any, which may in any event or
contingency whatsoever operate to bind, obligate or compel the Maker to pay a
rate of interest exceeding the Maximum Legal Rate shall be without binding force
or effect, at law or in equity, to the extent only of the excess of interest
over such Maximum Legal Rate. In the event any interest is charged in excess of
the Maximum Legal Rate (the "EXCESS"), the Maker acknowledges and stipulates
that any such charge shall be the result of an accidental and bona fide error,
and such Excess shall be, first, applied to reduce the principal of any
obligations due, and, second, returned to the Maker, it being the intention of
the parties hereto not to enter at any time into an usurious or otherwise
illegal relationship. The parties hereto recognize that with fluctuations in the
prime commercial interest rate from time to time announced by the Bank such an
unintentional result could inadvertently occur. By the execution of this Note,
the Maker covenants that (a) the credit or return of any Excess shall constitute
the acceptance by the Maker of such Excess, and (b) the Maker shall not seek or
pursue any other remedy, legal or equitable, against the Bank based, in whole or
in part, upon the charging or receiving of any interest in excess of the Maximum
Legal Rate. For the purpose of determining whether or not any Excess has been
contracted for, charged or received by the Bank, all interest at any time
contracted for, charged or received by the Bank in connection with the Maker's
obligations shall be amortized, prorated, allocated and spread in equal parts
during the entire term of this Note. If at any time the rate of interest payable
hereunder shall be computed on the basis of the Maximum Legal Rate, any
subsequent reduction in the Contract Rate shall not reduce such interest
thereafter payable hereunder below the amount computed on the basis of the
Maximum Legal Rate until the aggregate amount of such interest accrued and
payable under this Note equals the total amount of interest which would have
accrued if such interest had been at all times computed solely on the basis of
the Contract Rate.
Unless preempted by federal law, the rate of interest from time to time
in effect hereunder shall not exceed the applicable weekly ceiling from time to
time in effect under Chapter 303 of the Texas Finance Code, as amended.
The provisions of this Note governing interest shall be deemed to be
incorporated into every document or communication relating to the obligations
which sets forth or prescribes any account, right or claims or alleged account,
right or claim of the Bank with respect to the Makers (or any other obligor in
respect of the obligations), whether or not any provisions of this Note is
referred to therein. All such documents and communications and all figures set
forth therein shall, for the sole purpose of computing the extent of the
obligations asserted by the Bank thereunder, be automatically recomputed by the
Makers or any other obligor, and by any court considering the same, to give
effect to the adjustments or credits required by this Note.
32
If the applicable state or federal law is amended in the future to
allow a greater rate of interest to be charged under this Note than is presently
allowed by applicable state or federal law, then the limitation of interest
hereunder shall be increased to the maximum rate of interest allowed by
applicable state or federal law, as amended, which increase shall be effective
hereunder on the effective date of such amendment, and all interest charges
owing to the Bank by reason thereof shall be payable upon demand.
The provisions of Chapter 346 of the Texas Finance Code, as amended,
are specifically declared by the parties hereto not to be applicable to this
Note or any of the other agreements executed in connection herewith or therewith
or to the transactions contemplated hereby or thereby.
The Makers and all guarantors and endorsers (i) waive presentment,
demand, protest and notice of dishonor, (ii) agree that no extension or
indulgence to the Makers or release or nonenforcement of any security, whether
with or without notice, shall affect the obligations of any guarantor or
endorser, and (iii) agree to reimburse the holder of this Note for any and all
costs and expenses (including, but not limited to, reasonable attorney fees)
incurred in collecting or attempting to collect any and all principal of and
interest on this Note.
This Note is given in renewal and extension (but not as a novation) of
that certain Ninth Amended and Restated Revolving Credit Note dated on or about
October 31, 2002, in the original principal amount of $11,500,000.00, executed
by Makers and payable to the order of the Bank, and this Note is entitled to all
benefits of all Collateral securing such prior note.
THE UNDERSIGNED AND THE BANK ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A
CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH PARTY, AFTER CONSULTING (OR
HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR CHOICE, KNOWINGLY
AND VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT, WAIVES ANY RIGHT TO TRIAL BY JURY
IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR ENFORCEMENT OF, OR IN
ANY WAY RELATED TO, THIS NOTE OR THE INDEBTEDNESS.
THIS WRITTEN LOAN AGREEMENT (AS DEFINED BY SECTION 26.02 OF THE TEXAS BUSINESS
AND COMMERCE CODE) REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
(SIGNATURE PAGE IMMEDIATELY FOLLOWS)
33
IN WITNESS WHEREOF, the Makers have executed this Note the 1st day of
October, 2003.
BESTWAY, INC.
By: /s/ XXXX X. XXXXXXX
__________________________
Xxxx X. Xxxxxxx
Chief Financial Officer
BESTWAY RENTAL, INC.
By: /s/ XXXX X. XXXXXXX
__________________________
Xxxx X. Xxxxxxx
Chief Financial Officer
34
The undersigned hereby (i) consents and agrees to this Agreement and
(ii) giving effect to the provisions of this Agreement, confirms and agrees that
any subordination agreement previously executed respectively by the undersigned
for the benefit of Bank is in full force and effect, is extended until otherwise
agreed in writing by Bank, and is the legal, valid and binding obligation of the
undersigned and is, enforceable in accordance with its terms.
SUBORDINATING PARTY:
X'XXXXXXX & MASUR, L.P.,
By: X'Xxxxxxx & Xxxxx, a general partnership
By: ______________________________________
Name: ________________________________
Title: _______________________________
35
SCHEDULE 5.5
SUBSIDIARIES
BESTWAY RENTAL, INC., A TENNESSEE CORPORATION
U. S. CREDIT-SERVICE CORPORATION, A MISSOURI CORPORATION
WESTDALE DATASERVICE, INC., A TEXAS CORPORATION
36
SCHEDULE 5.6
EXISTING LIENS
LIEN SECURING THAT CERTAIN PROMISSORY NOTE IN THE ORIGINAL PRINCIPAL AMOUNT OF
$155,006.00 DATED APRIL 11, 1994, WITH A MATURITY DATE OF APRIL 15, 2006,
PAYABLE TO TRUSTMARK NATIONAL BANK, WITH BESTWAY RENTAL, INC., AS MAKER,
COVERING THAT CERTAIN REAL PROPERTY LOCATED AT 000 XXXXXXX XXXXXX, XXXXXXX,
XXXXXXXXXXX 00000.
37
SCHEDULE 5.12
EXISTING INDEBTEDNESS
1. SENIOR SUBORDINATED PROMISSORY NOTE OF BESTWAY, INC., DATED JULY 19,
1993, LAST AMENDED DECEMBER 13, 2002, PAYABLE TO X'XXXXXXX & XXXXX, X.X. IN THE
ORIGINAL PRINCIPAL AMOUNT OF $3,000,000.00.
2. PROMISSORY NOTE IN THE ORIGINAL PRINCIPAL AMOUNT OF $155,006.00 DATED
APRIL 11, 1994, WITH A MATURITY DATE OF APRIL 15, 2006, PAYABLE TO TRUSTMARK
NATIONAL BANK, WITH BESTWAY RENTAL, INC., AS MAKER, COVERING THAT CERTAIN REAL
PROPERTY LOCATED AT 000 XXXXXXX XXXXXX, XX XXXXXXX, XXXXXXXXXXX 00000.
38
SCHEDULE 5.13
MATERIAL AGREEMENTS
1. BESTWAY RENTAL, INC. GROUP MEDICAL PLAN.
2. EMPLOYMENT AGREEMENT BY AND BETWEEN XXXXX X. XXXXXXX AND BESTWAY, INC.,
DATED JULY 8, 2002.
3. LEASE AGREEMENT BY AND BETWEEN CITICAPITAL FLEET, A UNIT OF CITICAPITAL
COMMERCIAL LEASING CORPORATION, AN INDIANA CORPORATION, AND BESTWAY, INC., A
DELAWARE CORPORATION.
4. MATERIAL LEASES: SEE ATTACHED RENT ROLL.
39
001 Xxxxxxx Xxxxxxxx BASE RENT: $2,300.00 SLRM: $ 0.00 CAM ACCR: $ 34.00
00000 Xxxxx Xx. XXX: $ 0.00 SLRY: $ 0.00
Xxxxx Xxxx XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 07/31/2004 TOTAL: $2,300.00
004 Xxxxxxx Xxxxxxxx BASE RENT: $1,900.00 SLRM: $ 1,835.71 CAM ACCR: $ 0.00
X.X. Xxx 0000 XXX: $ 0.00 SLRY: $ 22,028.57
Xxxxxxxxx, XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 02/28/2005 TOTAL: $1,900.00
005 Bean, Rhoton, and Assoc. BASE RENT: $2,000.00 SLRM: $ 2,096.00 CAM ACCR: $ 0.00
ATTN: Xxxxxxxx CTI: $ 0.00 SLRY: $ 25,152.00
XX Xxx 000 EXCEPTION: $ 0.00
Xxxxxxxxxx, XX 00000-0000
LEASE EXP: 02/28/2008 TOTAL: $2,000.00
006 Xxxxx Xxxxxx BASE RENT: $2,400.00 SLRM: $ 0.00 CAM ACCR: $ 50.00
0000 Xxxxxxxx Xxxxxx XX XXX: $ 0.00 SLRY: $ 0.00
Xxxxxxx XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 12/31/2008 TOTAL: $2,400.00
007 Xxxxx Properties BASE RENT: $2,404.00 SLRM: $ 0.00 CAM ACCR: $ 0.00
X.X. Xxx 00000 XXX: $ 0.00 SLRY: $ 0.00
Xxxxxxxxx XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 08/31/2005 TOTAL: $2,404.00
40
000 Xxxxxxxx Xxxxx Xxxxxxxx Xxxxxx BASE RENT: $3,375.00 SLRM: $ 3,450.00 CAM ACCR: $ 50.00
c/o Reliance Property Management CTI: $ 600.49 SLRY: $ 41,400.00
X.X. Xxx 000000 XXXXXXXXX: $ 0.00
Xxxxxx, XX 00000
LEASE EXP: 05/31/2008 TOTAL: $3,975.49
010 Financial Consultants of TN BASE RENT: $2,400.00 SLRM: $ 0.00 CAM ACCR: $ 25.00
000x Xxxxxx Xxxxxx XXX: $ 480.00 SLRY: $ 0.00
Xxxxxxxx XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 07/31/2006 TOTAL: $2,880.00
011 Christopher, Durham, Pepper & Xxxxxxxxx, BASE RENT: $3,220.00 SLRM: $ 3,085.83 CAM ACCR: $100.00
P.C.
X.X. Xxx 000 XXX: $ 268.32 SLRY: $ 34,029.96
Xxxxxx, XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 11/30/2006 TOTAL: $3,488.32
000 Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx BASE RENT: $2,250.00 SLRM: $ 0.00 CAM ACCR: $ 0.00
c/x Xxxxx & Avant Financing II. CTI: $ 262.50 SLRY: $ 0.00
X.X. Xxx 000 EXCEPTION: $ 0.00
Xxxxxxxx XX 00000
LEASE EXP: 08/31/2004 TOTAL: $2,512.50
014 Payless Shoe Source BASE RENT: $3,100.30 SLRM: $ 3,043.91 CAM ACCR: $ 50.00
Attn: Lease Admin Property #53 CTI: $ 121.00 SLRY: $ 36,526.92
X.X. Xxx 0000 EXCEPTION: $ 0.00
Xxxxxx XX 00000-0000
LEASE EXP: 12/31/2005 TOTAL: $3,221.30
41
015 Village Properties, Inc. BASE RENT: $1,553.75 SLRM: $ 1,664.13 CAM ACCR: $ 50.00
X.X. Xxx 000 XXX: $ 242.55 SLRY: $ 19,969.50
Xxxxxxx, XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 07/31/2010 TOTAL: $1,796.30
016 X.X. Xxxxx & Sons BASE RENT: $3,000.00 SLRM: $ 0.00 CAM ACCR: $ 15.00
000 Xxxxx Xxxx Xxxxxx XXX: $ 0.00 SLRY: $ 0.00
Xxxxxxxxxxx XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 03/31/2006 TOTAL: $3,000.00
017 Xxxxxx Xxxxx Jr. BASE RENT: $1,900.00 SLRM: $ 1,975.00 CAM ACCR: $ 70.00
Xxx 000000 XXX: $ 0.00 SLRY: $ 23,700.00
Xxxxxxxxx, XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 12/31/2005 TOTAL: $1,900.00
018 Xxxxx Xxxxxxxxxx Family Trust BASE RENT: $1,800.00 SLRM: $ 0.00 CAM ACCR: $ 0.00
Xxxxxxx Xxxxxxxxxx, Trustee CTI: $ 0.00 SLRY: $ 0.00
X.X. Xxx 0000 EXCEPTION: $ 0.00
Xxxxxxxxx, XX 00000
LEASE EXP: 12/03/2003 TOTAL: $1,800.00
000 Xxxxx X. Xxxx BASE RENT: $1,750.00 SLRM: $ 0.00 CAM ACCR: $ 0.00
000 Xxxxxx Xxxx. XXX: $ 0.00 SLRY: $ 0.00
Xxxxxx, XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 12/31/2004 TOTAL: $1,750.00
42
021 New Plan Excel Realty Trust, Inc. BASE RENT: $3,850.00 SLRM: $ 3,886.67 CAM ACCR: $ 75.00
X.X. Xxx 000000 XXX: $ 308.87 SLRY: $ 46,640.04
Xxxxxxx, XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 07/31/2008 TOTAL: $4,158.87
023 Three Mac Investment, Inc. BASE RENT: $2,187.50 SLRM: $ 2,080.36 CAM ACCR: $125.00
Xxxx XxXxxxxx CTI: $ 407.50 SLRY: $ 24,964.29
X.X. Xxx 000 EXCEPTION: $ 0.00
Xxxxxxxxx XX 00000
LEASE EXP: 10/31/2004 TOTAL: $2,595.00
024 Talladega Developers BASE RENT: $2,666.67 SLRM: $ 0.00 CAM ACCR: $ 50.00
c/o Barstein & Associates CTI: $ 433.00 SLRY: $ 0.00
X.X. Xxx 00000 EXCEPTION: $ 0.00
Xxxxxxxxxx, XX 00000-0000
LEASE EXP: 12/31/2003 TOTAL: $3,099.67
000 Xxxxxxxxx Xxxxxxxx Xxxxxx BASE RENT: $2,083.33 SLRM: $ 0.00 CAM ACCR: $ 80.00
x/x Xxxxxxx Xxxxxxxxxx XXX: $ 366.67 SLRY: $ 0.00
X.X. Xxx 000 EXCEPTION: $ 0.00
Xxxxxxx, XX 00000
LEASE EXP: 02/28/2005 TOTAL: $2,450.00
026 Sylacauga Shopping Center BASE RENT: $1,108.33 SLRM: $ 1,029.76 CAM ACCR: $100.00
c/o Xxxxx Xxxx & Company CTI: $ 75.00 SLRY: $ 12,357.12
0000 Xxxxxx Xxxx EXCEPTION: $ 0.00
Xxxxxxxxxx, XX 00000
LEASE EXP: 11/30/2003 TOTAL: $1,183.33
43
027 Trust National Bank BASE RENT: $1,765.76 SLRM: $ 0.00 CAM ACCR: $ 0.00
Jackson Mall Branch CTI: $ 0.00 SLRY: $ 0.00
X.X. Xxx 000 EXCEPTION: $ 0.00
Xxxxxxx XX 00000-0000
LEASE EXP: 04/15/2006 TOTAL: $1,765.76
028 Xxxxxxxx Enterprises, LLLP BASE RENT: $3,315.00 SLRM: $ 3,506.86 CAM ACCR: $ 50.00
00000 Xxxxxxxx Xxxxx Xxxx XXX: $ 532.50 SLRY: $ 42,082.33
Xxxxx 000 EXCEPTION: $ 0.00
Xxxxxx Xxxx XX 00000
LEASE EXP: 12/31/2007 TOTAL: $3,847.50
029 PPG Venture I Limited Partnership BASE RENT: $2,683.33 SLRM: $ 0.00 CAM ACCR: $ 50.00
000 X. XxXxxxx Xxxxxx, Xxxx. 0000 XXX: $ 790.43 SLRY: $ 0.00
Xxxxxxx, XX 00000-0000 EXCEPTION: $ 0.00
LEASE EXP: 10/31/2007 TOTAL: $3,473.76
000 XxXxxxxx Xxxx BASE RENT: $2,000.00 SLRM: $ 0.00 CAM ACCR: $ 50.00
X.X. Xxx 000 XXX: $ 0.00 SLRY: $ 0.00
Xxxxxxx XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 05/31/2006 TOTAL: $2,000.00
031 Xxxxx Realty Company, Inc. BASE RENT: $3,875.00 SLRM: $ 3,850.00 CAM ACCR: $150.00
X.X. Xxx 000 XXX: $ 515.00 SLRY: $ 46,200.00
Xxxxxxxxxx, XX 00000-0000 EXCEPTION: $ 0.00
LEASE EXP: 01/31/2006 TOTAL: $4,390.00
44
000 Xxxxxxxxx Xxxxxxxxxx Company BASE RENT: $1,925.00 SLRM: $ 0.00 CAM ACCR: $ 0.00
X.X. Xxx 0000 XXX: $ 192.50 SLRY: $ 0.00
Xxxxxxxxx, XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 03/31/2004 TOTAL: $2,117.50
036 Xxxxxxx Xxxxxxx BASE RENT: $2,800.00 SLRM: $ 0.00 CAM ACCR: $ 0.00
X.X. Xxx 0000 XXX: $ 0.00 SLRY: $ 0.00
Xxxxxxxxxx, XX 00000-0000 EXCEPTION: $ 0.00
LEASE EXP: 01/31/2006 TOTAL: $2,800.00
000 Xxxx Xxxx Xxxxxxxx Xxxxxx BASE RENT: $2,250.00 SLRM: $ 0.00 CAM ACCR: $200.00
X.X. Xxx 0000 XXX: $ 0.00 SLRY: $ 0.00
000 0xx Xxxxxx X.X. EXCEPTION: $ 0.00
Xxxxxxx XX 00000
LEASE EXP: 12/31/2006 TOTAL: $2,250.00
039 Xxx X. Xxxxxxx Realtors BASE RENT: $2,150.00 SLRM: $ 2,224.13 CAM ACCR: $ 0.00
000 00xx Xxxxxx XXX: $ 0.00 SLRY: $26,689.56
Xxxxxx XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 07/31/2007 TOTAL: $2,150.00
041 Xx. Xxxxx Xxxxxxxx BASE RENT: $1,900.00 SLRM: $1,915.97 CAM ACCR: $ 50.00
X.X. Xxx 000 XXX: $ 66.63 SLRY: $22,991.64
Xxxxxxxxxxxx, XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 02/28/2008 TOTAL: $1,966.63
45
048 CBL & Associates Properties, Inc. BASE RENT: $2,100.00 SLRM: $ 0.00 CAM ACCR: $ 50.00
0000 X. Xxxxxx Xxxxxx XXX: $ 366.34 SLRY: $ 0.00
Xxxxxx, XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 10/31/2007 TOTAL: $2,466.34
052 Xxxxxx Xxxx Xxxx T/A Freedom Plaza BASE RENT: $2,695.00 SLRM: $ 2,484.17 CAM ACCR: $ 75.00
x/x Xxxxxx XxXxx & Xx. XXX: $ 400.00 SLRY: $29,809.99
000 Xxxxxx Xxxxxx XXXXXXXXX: $ 0.00
Xxxxx 000
Xxxxxxxxxx XX 00000
LEASE EXP: 02/28/2004 TOTAL: $3,095.00
053 X.X. Hope BASE RENT: $1,350.00 SLRM: $ 1,235.71 CAM ACCR: $100.00
000 Xxxx Xxxxxx XXX: $ 0.00 SLRY: $14,828.57
Xxxxxxxxxxx, XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 07/31/2005 TOTAL: $1,350.00
055 Xxxx & Xxxxxxx Property Management BASE RENT: $2,562.50 SLRM: $ 2,403.91 CAM ACCR: $ 75.00
X.X. Xxx 000 XXX: $ 0.00 SLRY: $28,846.92
Xxxxxxx XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 02/28/2004 TOTAL: $2,562.50
056 Xxxxx Associates BASE RENT: $2,000.00 SLRM: $ 2,235.67 CAM ACCR: $ 50.00
c/x Xxxxxx & Associates, LLC CTI: $ 284.47 SLRY: $26,828.05
000 X. Xxxxx Xxxxxx, Xxxxx 0000 EXCEPTION: $ 0.00
Xxxxxxxxx XX 00000
LEASE EXP: 12/31/2006 TOTAL: $2,284.47
46
057 Xxxxxxx Xxxxxxxxx BASE RENT: $1,900.00 SLRM: $ 1,803.09 CAM ACCR: $ 0.00
000 Xxxxx XXX: $ 0.00 SLRY: $21,637.11
Xxxxxx XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 07/31/2006 TOTAL: $1,900.00
061 Xxxxx Investment Company BASE RENT: $2,500.00 SLRM: $ 2,350.00 CAM ACCR: $200.00
X.X.Xxx 0000 XXX: $ 0.00 SLRY: $28,200.00
Xxxxxxxxxx, XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 07/31/2006 TOTAL: $2,500.00
062 Xxx & Xxx Xxxxxx BASE RENT: $2,200.00 SLRM: $ 2,206.45 CAM ACCR: $ 0.00
1413 Xxxxxx CTI: $ 0.00 SLRY: $26,477.42
Xxxxxx XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 07/31/2010 TOTAL: $2,200.00
063 Hayco Realty, Ltd. BASE RENT: $2,800.00 SLRM: $ 0.00 CAM ACCR: $ 50.00
0000 Xxxxx Xxxxxxxxxx Xxxxx XXX: $ 524.03 SLRY: $ 0.00
Suite 1015 EXCEPTION: $ 0.00
Xxxx Xxxxx, XX 00000
LEASE EXP: 06/30/2006 TOTAL: $3,324.03
064 Hayco Realty, Ltd. BASE RENT: $4,666.68 SLRM: $ 0.00 CAM ACCR: $100.00
0000 Xxxxx Xxxxxxxxxx Xxxxx XXX: $ 946.00 SLRY: $ 0.00
Suite 1015 EXCEPTION: $ 0.00
Xxxx Xxxxx, XX 00000
LEASE EXP: 10/31/2008 TOTAL: $5,612.68
47
065 New Plan Excel Realty Trust, Inc. BASE RENT: $3,066.67 SLRM: $ 3,066.67 CAM ACCR: $ 50.00
X.X. Xxx 000000 XXX: $ 298.42 SLRY: $36,800.04
Xxxxxxx, XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 02/28/2008 TOTAL: $3,365.09
067 Bayer Properties Incorporated BASE RENT: $1,350.00 SLRM: $ 1,221.43 CAM ACCR: $100.00
0000 Xxxxxxxxx Xxxxxx XXX: $ 143.26 SLRY: $14,657.14
Xxxxxxxxxx, XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 09/30/2004 TOTAL: $1,493.26
069 Xx. Xxxxx X. Xxxx, Xx. BASE RENT: $2,600.00 SLRM: $ 2,640.00 CAM ACCR: $ 0.00
000 Xxx. Xxxxxx Xxxx XXX: $ 0.00 SLRY: $31,680.00
Xxxxxxx, XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 05/31/2008 TOTAL: $2,600.00
071 Discount Drapery, Inc. BASE RENT: $2,800.00 SLRM: $ 0.00 CAM ACCR: $ 50.00
c/o Xx. Xxxxx Xxxxxxx CTI: $ 0.00 SLRY: $ 0.00
000 Xxx 00 X.X. EXCEPTION: $ 0.00
Xxxxxxx, XX 00000
LEASE EXP: 06/30/2008 TOTAL: $2,800.00
072 Xxxx X. Xxxxx BASE RENT: $2,450.00 SLRM: $ 2,330.00 CAM ACCR: $ 50.00
X.X. Xxx 000 XXX: $ 448.00 SLRY: $27,960.00
Xxxxx Xxxxxx XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 09/30/2005 TOTAL: $2,898.00
48
073 Canton Textile Xxxxx BASE RENT: $2,800.00 SLRM: $ 2,672.73 CAM ACCR: $150.00
c/o Xxxxxxxx Xxxxxx Company CTI: $ 739.67 SLRY: $32,072.73
000 Xxxxxx Xxxxxx, Xxxxx 000 EXCEPTION: $ 0.00
Xxxxxxxxxxx XX 00000
LEASE EXP: 02/28/2006 TOTAL: $3,539.67
074 R&R Rentals BASE RENT: $2,000.00 SLRM: $ 2,120.00 CAM ACCR: $ 50.00
Xxx Xxxxxxxx CTI: $ 0.00 SLRY: $25,440.00
X.X. Xxx 0000 EXCEPTION: $ 0.00
Xxxx Xxxx XX 00000
LEASE EXP: 11/30/2008 TOTAL: $2,000.00
076 Xxxxx X. Xxxxxxxxx BASE RENT: $2,720.00 SLRM: $ 2,640.00 CAM ACCR: $ 50.00
X.X. Xxx 000 XXX: $ 280.00 SLRY: $31,680.00
Xxxxxxxxxx XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 07/31/2007 TOTAL: $3,000.00
000 Xxxxxxx X. Xxxxxxx, III BASE RENT: $3,000.00 SLRM: $ 3,000.00 CAM ACCR: $ 50.00
XX XXX 0000 XXX: $ 430.00 SLRY: $36,000.00
Xxxxxxxxxx XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 01/31/2004 TOTAL: $3,430.00
079 Xxxxx Xxx, Guy Properties BASE RENT: $3,000.00 SLRM: $ 0.00 CAM ACCR: $300.00
Century 21 Bldg. CTI: $ 0.00 SLRY: $ 0.00
0000 Xxxx Xxxxxxxxxxxx Xxxx. EXCEPTION: $ 0.00
Xxxxx 000
Xxxxxxxxx, XX 00000
LEASE EXP: 02/28/2009 TOTAL: $3,000.00
49
080 Xxxxx Xxx, Guy Properties BASE RENT: $ 5,000.00 SLRM: $ 0.00 CAM ACCR: $600.00
Century 21 Bldg. CTI: $ 0.00 SLRY: $ 0.00
0000 Xxxx Xxxxxxxxxxxx Xxxx. Xxxxx 0 EXCEPTION: $ 0.00
Xxxxxxxxxx XX 00000
LEASE EXP: 02/28/2009 TOTAL: $ 5,000.00
081 Xxxxx Investment Company BASE RENT: $ 2,031.25 SLRM: $ 1,961.21 CAM ACCR: $150.00
X.X. Xxx 00000 XXX: $ 81.25 SLRY: $ 23,534.52
Xxxxxxxxx XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 08/31/2006 TOTAL: $ 2,112.50
082 New Starmount Interest, LLC BASE RENT: $ 3,520.83 SLRM: $ 0.00 CAM ACCR: $ 50.00
X.X. Xxx 00000 XXX: $ 312.50 SLRY: $ 0.00
Xxxxxxxxx XX 00000-0000 EXCEPTION: $ 0.00
LEASE EXP: 07/31/2010 TOTAL: $ 3,833.33
083 New Four Seasons Interest, LLC BASE RENT: $ 3,520.83 SLRM: $ 0.00 CAM ACCR: $ 50.00
X.X. Xxx 00000 XXX: $ 312.50 SLRY: $ 0.00
Xxxxxxxxx XX 00000-0000 EXCEPTION: $ 0.00
LEASE EXP: 07/31/2010 TOTAL: $ 3,833.33
084 PAG Company BASE RENT: $ 4,000.00 SLRM: $ 0.00 CAM ACCR: $100.00
X.X. Xxx 0000 XXX: $ 0.00 SLRY: $ 0.00
Xxxxxxxx, XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 06/30/2009 TOTAL: $ 4,000.00
50
085 CBL & Associates Management BASE RENT: $ 1,947.92 SLRM: $ 1,874.13 CAM ACCR: $ 50.00
CBL Center CTI: $ 437.50 SLRY: $ 22,489.54
0000 Xxxxxxxx Xxxxx Xxxxxxxxx XXXXXXXXX: $ 0.00
Xxxxx 000
Xxxxxxxxxxx XX 00000-0000
LEASE EXP: 09/30/2006 TOTAL: $ 2,385.42
086 XxXxxxxx Associates BASE RENT: $ 2,950.00 SLRM: $ 0.00 CAM ACCR: $ 50.00
0000 Xxxxxx Xxxxx XXX: $ 0.00 SLRY: $ 0.00
Xxxxxxxxxxxx, XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 08/31/2006 TOTAL: $ 2,950.00
088 Fairfield Partners c/o Aronov Realty Mgnt. BASE RENT: $ 3,168.92 SLRM: $ 3,024.88 CAM ACCR: $ 50.00
X.X. Xxx 000000 XXX: $ 840.00 SLRY: $ 36,298.56
Xxxxxxxxxx XX 00000-0000 EXCEPTION: $ 0.00
LEASE EXP: 10/31/2004 TOTAL: $ 4,008.92
090 GJ Realty BASE RENT: $ 2,552.08 SLRM: $ 2,447.91 CAM ACCR: $ 50.00
00 Xxxx 00xx Xxxxxx XXX: $ 201.25 SLRY: $ 29,374.92
Xxx Xxxx XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 10/31/2006 TOTAL: $ 2,753.33
091 Prattville Partners, Limited Partnership BASE RENT: $ 2,500.00 SLRM: $ 0.00 CAM ACCR: $ 50.00
Xxxxxx Realty Management, Inc. CTI: $ 550.00 SLRY: $ 0.00
X.X. Xxx 000000 XXXXXXXXX: $ 0.00
Xxxxxxxxxx, XX 00000-0000
LEASE EXP: 02/28/2005 TOTAL: $ 3,050.00
51
092 Xxxxxxx X. Xxxxx BASE RENT: $ 1,700.00 SLRM: $ 1,616.28 CAM ACCR: $ 50.00
000 Xxxxx Xxxxxxx Xxxxx Xxxxx XXX: $ 0.00 SLRY: $ 19,395.35
Xxxxxxxxx, XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 12/31/2006 TOTAL: $ 1,700.00
093 Hayco Realty, Ltd. BASE RENT: $ 3,200.00 SLRM: $ 3,337.14 CAM ACCR: $ 50.00
0000 X. Xxxxxxxxxx Xxxxx, Xxxxx 0000 XXX: $ 416.08 SLRY: $ 40,045.71
Ft. Xxxxx XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 05/31/2007 TOTAL: $ 3,616.08
094 First Presbyterian Church of High Point, Inc. BASE RENT: $ 2,200.00 SLRM: $ 2,092.86 CAM ACCR: $ 50.00
000 Xxxxx Xxxx Xxxxxx XXX: $ 0.00 SLRY: $ 25,114.29
Xxxx Xxxxx XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 03/14/2007 TOTAL: $ 2,200.00
095 Shell Realty BASE RENT: $ 3,500.00 SLRM: $ 3,675.00 CAM ACCR: $ 0.00
X.X. Xxx 000 XXX: $ 500.00 SLRY: $ 44,100.00
Xxxxxx XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 06/30/2010 TOTAL: $ 4,000.00
097 MACO Management Company BASE RENT: $ 3,226.83 SLRM: $ 0.00 CAM ACCR: $ 75.00
000 Xxxxx Xxxx Xxxxxx XXX: $ 425.57 SLRY: $ 0.00
Xxxxxxxx XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 07/31/2010 TOTAL: $ 3,652.40
52
098 Xxxxxx Realty Management, Inc. BASE RENT: $ 2,000.00 SLRM: $ 1,959.68 CAM ACCR: $ 50.00
X.X. Xxx 000000 XXX: $ 360.00 SLRY: $ 23,516.16
Xxxxxxxxxx, XX 00000-0000 EXCEPTION: $ 0.00
LEASE EXP: 07/31/2008 TOTAL: $ 2,360.00
000 Xx. X. Xxxxxx Xxxxxxx BASE RENT: $ 1,500.00 SLRM: $ 1,617.24 CAM ACCR: $ 0.00
000 Xxxx 0xx Xxxxxx XXX: $ 0.00 SLRY: $ 19,406.88
Xxxxxxxxxxxx XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 12/31/2007 TOTAL: $ 1,500.00
100 CKDM Properties LLC BASE RENT: $ 2,500.00 SLRM: $ 2,732.56 CAM ACCR: $ 0.00
0000 Xxxxxxxxxx Xxxxx XXX: $ 0.00 SLRY: $ 32,790.70
Xxxxxxxxx XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 12/31/2007 TOTAL: $ 2,500.00
101 CJCWM Family Limited Partnership BASE RENT: $ 1,900.00 SLRM: $ 0.00 CAM ACCR: $ 50.00
MTMM Family Limited Partnership CTI: $ 0.00 SLRY: $ 0.00
X.X. Xxx 0000 EXCEPTION: $ 0.00
Xxx Xxxxxxx, XX 00000
LEASE EXP: 12/31/2005 TOTAL: $ 1,900.00
5&8 Xxxxxx Xxxxxxxx BASE RENT: $ 400.00 SLRM: $ 0.00 CAM ACCR: $ 0.00
0000 Xxxxxxxxx Xxxx XX XXX: $ 0.00 SLRY: $ 0.00
Xxxxxxx XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 11/30/2003 TOTAL: $ 400.00
53
990 CMD Realty Investors, Inc. BASE RENT: $12,470.54 SLRM: $ 12,470.54 CAM ACCR: $ 0.00
c/o Bank One CTI: $ 70.21 SLRY: $149,646.48
X.X.Xxx 00000 EXCEPTION: $ 0.00
Xxxxxxx XX 00000-0000
LEASE EXP: 11/30/2005 TOTAL: $12,540.75
D11 Driver Properties, LLC BASE RENT: $ 350.00 SLRM: $ 0.00 CAM ACCR: $ 0.00
000 X Xxxx Xxx. Xxxxx 000 XXX: $ 0.00 SLRY: $ 0.00
Xxxxxxxxx XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 07/18/2004 TOTAL: $ 350.00
D14 Xxxxxx Properties, LLC BASE RENT: $ 302.40 SLRM: $ 0.00 CAM ACCR: $ 0.00
0000 Xxxxxxx Xx XXX: $ 0.00 SLRY: $ 0.00
Xxxxxxxxxx XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 06/18/2004 TOTAL: $ 302.40
D4 Xxxxxx Xxxxxxx Grand Center, LLC BASE RENT: $ 400.00 SLRM: $ 0.00 CAM ACCR: $ 0.00
000 Xxxx Xxxx Xxxxxx XXX: $ 0.00 SLRY: $ 0.00
Hot Xxxxxxx XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 09/30/2004 TOTAL: $ 400.00
REG/VP Xxx X. Xxxxxxx BASE RENT: $ 680.00 SLRM: $ 0.00 CAM ACCR: $ 0.00
0000 0xx Xxxxxx X.X. XXX: $ 0.00 SLRY: $ 0.00
Xxxxxxx XX 00000 EXCEPTION: $ 0.00
LEASE EXP: 10/31/2003 TOTAL: $ 680.00
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