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EXHIBIT 28.2
SIXTH AMENDED AND RESTATED
REVOLVING CREDIT NOTE
Dallas, Texas
$17,500,000.00 December 28, 1999
FOR VALUE RECEIVED, BESTWAY, INC., a Delaware corporation, BESTWAY RENTAL,
INC., a Tennessee corporation, K.C. RESOURCE SERVICE CORPORATION, a Missouri
corporation, and U.S. CREDIT-SERVICE CORPORATION, a Missouri corporation (each
individually a "MAKER" and jointly and severally, the "MAKERS"), jointly and
severally promise to pay to the order of COMERICA BANK-TEXAS (the "BANK") at
0000 Xxx Xxxxxx, Xxxxxx, Xxxxx 00000, on February 28, 2002 (unless sooner due
under the terms of the Loan Agreement, as that term is defined below) the
principal sum of Seventeen Million Five Hundred Thousand and No/100 Dollars
($17,500,000.00) 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 First Amended and Restated Revolving Credit
Agreement, dated August 19, 1993, 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 January 1, 2000,
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
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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.
No agreements, conditions, provisions or stipulations contained in this
Note or in any other agreement between the Makers 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
Makers 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 Makers 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
Makers 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 Makers
acknowledge and stipulate 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
Makers, 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 Makers covenant that (a) the credit or return of
any Excess shall constitute the acceptance by the Makers of such Excess, and (b)
the Makers 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 Makers' obligations shall be amortized, prorated,
allocated and spread in equal or unequal 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
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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.
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, extension, and increase (but not as a
novation) of that certain Sixth Amended and Restated Revolving Credit Note dated
on or about November 18, 1999, in the original principal amount of $9,000,000,
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.
IN WITNESS WHEREOF, the Makers have executed this Note the 28th day of
December, 1999.
BESTWAY, INC.
By: /s/ XXXX X. XXXXXXX
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Xxxx X. Xxxxxxx
Senior Vice President - Finance
BESTWAY RENTAL, INC.
By: /s/ XXXX X. XXXXXXX
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Xxxx X. Xxxxxxx
Senior Vice President - Finance
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K.C. RESOURCE SERVICE CORPORATION
By: /s/ XXXX X. XXXXXXX
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Xxxx X. Xxxxxxx
Senior Vice President - Finance
U.S. CREDIT-SERVICE CORPORATION
By: /s/ XXXX X. XXXXXXX
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Xxxx X. Xxxxxxx
Senior Vice President - Finance
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