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EXHIBIT 28.1
THIRD AMENDMENT TO FIRST AMENDED
AND RESTATED REVOLVING CREDIT LOAN AGREEMENT
THIS THIRD AMENDMENT TO FIRST AMENDED AND RESTATED REVOLVING CREDIT LOAN
AGREEMENT (the "AMENDMENT"), dated as of November 18, 1997, is between the
Borrower (as defined below) and COMERICA BANK-TEXAS, a Texas banking
association ("LENDER").
RECITALS:
Borrower and Lender have entered into that certain First Amended and
Restated Revolving Credit Loan Agreement dated as of August 19, 1993, as
amended by (i) the First Amendment to First Amended and Restated Revolving
Credit Loan Agreement dated as of Xxxxx 00, 0000, (xx) the Second Amendment to
First Amended and Restated Revolving Credit Loan Agreement dated as of April
12, 1996 and (iii) the Letter Agreement Regarding Loan Agreement Extension
dated as of August 18, 1997 (such agreement as previously amended and/or
extended and as may be hereafter amended or otherwise modified from time to
time, the "AGREEMENT").
Borrower and Lender desire to amend the Agreement as herein provided.
NOW, THEREFORE, in consideration of the premises herein contained and other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
Definitions
Section 1 Definitions. Capitalized terms used in this Amendment, to
the extent not otherwise defined herein, shall have the same meanings as in the
Agreement, as amended hereby. As used herein and in the Agreement, effective as
of the date hereof, the term "BORROWER" shall mean, collectively, Bestway,
Inc., a Delaware corporation, Bestway Rental, Inc., a Tennessee corporation,
K.C. Resource Service Corporation, a Missouri corporation, and U.S.
Credit-Service Corporation, a Missouri corporation, each of which are jointly
and severally liable under all documents executed by them for the benefit of
Lender.
ARTICLE II
Amendments
Section 1 Amendment to Section 1.1. Effective as of the date hereof,
certain definitions contained in Section 1.1 of the Agreement are hereby
amended as follows:
THIRD AMENDMENT TO FIRST AMENDED AND
RESTATED REVOLVING CREDIT LOAN AGREEMENT - Page 1
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(a) The following definitions are hereby substituted for existing
definitions of the same identity, and such existing definitions are deleted in
their entirety:
"MAXIMUM REVOLVING CREDIT LOAN" shall mean $8,500,000.00.
"REVOLVING CREDIT NOTE" shall mean the Fourth Amended and Restated
Revolving Credit Note dated November 18, 1997, in the original principal
amount of $8,500,000, executed by the Borrower and payable to the order of
the Bank, as renewed, extended, increased and/or modified from time to
time.
"TERMINATION DATE" shall mean November 30, 1999.
Section 2 Amendment to Section 2 Generally. Effective as of the date
hereof, the reference in Section 2.1. of the Agreement to "$7,500,000" is
deleted and replaced with "$8,500,000". Additionally, any other reference in
Section 2 of the Agreement, generally, to a $7,500,000 limit for the face
amount of the Revolving Credit Note shall be deleted and $8,500,000 shall be
substituted therefor.
Section 3 Amendment to Section 6.7. Effective as of the date hereof,
Section 6.7 of the Agreement is amended by deleting all listed time periods and
dollar amounts, and by substituting therefor the following:
(a) November 18, 1997 through July 31, 1998: $7,500,000
(b) August 1, 1998 through December 31, 1998: $8,000,000
(c) January 1, 1999 through and at all times thereafter: $8,500,000
ARTICLE III
Conditions Precedent
The effectiveness of this Amendment is subject to the condition that Lender
shall have received as of the date hereof, in form and substance satisfactory
to Lender, (a) the modified Revolving Credit Note, (b) resolutions of the Board
of Directors of the Borrower certified by its Secretary or an Assistant
Secretary which authorize the execution, delivery, and performance by the
Borrower of this Amendment, and (c) written ratification of all existing
subordination agreement from X'Xxxxxxx & Xxxxx, X.X.
THIRD AMENDMENT TO FIRST AMENDED AND
RESTATED REVOLVING CREDIT LOAN AGREEMENT - Page 2
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ARTICLE IV
Ratifications and Other Agreements
Section 1 Ratifications. The terms and provisions set forth in this
Amendment shall modify and supersede all inconsistent terms and provisions set
forth in the Agreement and except as expressly modified and superseded by this
Amendment, the terms and provisions of the Agreement, the Note, and all other
loan and collateral documents executed in connection with the Agreement are
hereby ratified and confirmed and shall continue in full force and effect.
Borrower and Lender agree that the Agreement as amended hereby and all other
documents executed in connection with the Agreement or this Amendment to which
Borrower is a party shall continue to be legal, valid, binding and enforceable
in accordance with their respective terms.
Section 2 Representations and Warranties. Borrower hereby represents
and warrants to Lender that (a) the execution, delivery and performance of this
Amendment and any and all other documents executed and/or delivered in
connection herewith have been authorized by all requisite corporate action on
the part of Borrower and will not violate the articles of incorporation or
bylaws of Borrower or any agreement to which Borrower or any of its properties
is bound, (b) the representations and warranties contained in the Agreement, as
amended hereby, and any other documents executed in connection therewith or
herewith are true and correct on and as of the date hereof as though made on
and as of the date hereof, (c) no Event of Default has occurred and is
continuing and no event or condition has occurred that with the giving of
notice or lapse of time or both would be an Event of Default, and (d) Borrower
is in full compliance with all covenants and agreements contained in the
Agreement as amended hereby. Since the date of the Agreement, there have been
no amendments to any of the respective articles of incorporation or bylaws of
the entities which collectively comprise the Borrower.
ARTICLE V
Miscellaneous
Section 1 Survival of Representations and Warranties. All
representations and warranties made in this Amendment or any other document
executed in connection herewith shall survive the execution and delivery of
this Amendment, and no investigation by Lender or any closing shall affect the
representations and warranties or the right of Lender to rely upon them.
Section 2 Reference to Agreement. The Agreement, and any and all other
agreements, documents or instruments now or hereafter executed and delivered
pursuant to the terms hereof or pursuant to the terms of the Agreement as
amended hereby, are hereby amended so that any reference in such documents to
the Agreement shall mean a reference to the Agreement as amended hereby.
THIRD AMENDMENT TO FIRST AMENDED AND
RESTATED REVOLVING CREDIT LOAN AGREEMENT - Page 3
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Section 3 Expenses of Lender. As provided in the Agreement, Borrower
agrees to pay on demand all reasonable costs and expenses incurred by Lender in
connection with the preparation, negotiation, and execution of this Amendment
and any other documents executed pursuant hereto and any and all amendments,
modifications, and supplements thereto, including without limitation the costs
and reasonable fees of Lender's legal counsel, and all costs and expenses
incurred by Lender in connection with the enforcement or preservation of any
rights under the Agreement, as amended hereby, or any other document executed
in connection therewith, including without limitation the costs and reasonable
fees of Lender's legal counsel.
Section 4 Severability. Any provision of this Amendment held by a
court of competent jurisdiction to be invalid or unenforceable shall not impair
or invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
Section 5 Applicable Law. This Amendment and all other documents
executed pursuant hereto shall be deemed to have been made and to be
performable in Dallas, Dallas County, Texas and shall be governed by and
construed in accordance with the laws of the State of Texas.
Section 6 Successors and Assigns. This Amendment is binding upon and
shall inure to the benefit of Lender, Borrower, and their respective successors
and assigns, except Borrower may not assign or transfer any of its rights or
obligations hereunder without the prior written consent of Lender.
Section 7 Counterparts. This Amendment may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original,
but all of which when taken together shall constitute one and the same
instrument.
Section 8 Effect of Waiver. No consent or waiver, express or
implied, by Lender to or for any breach of or deviation from any covenant,
condition or duty by Borrower or any obligated party shall be deemed a consent
or waiver to or of any other breach of the same or any other covenant,
condition or duty.
Section 9 Headings. The headings, captions, and arrangements used in
this Amendment are for convenience only and shall not affect the interpretation
of this Amendment.
Section 10 Non-Application of Chapter 346 of Texas Finance Code. The
provisions of Chapter 346 of the Texas Finance Code (formerly Chapter 15 of the
Texas Credit Code (Vernon's Annotated Texas Statutes), Article 5069-15), as
amended are specifically declared by the parties not to be applicable to this
Amendment or any of the Loan Documents or the transactions contemplated hereby.
Section 11 ENTIRE AGREEMENT. THE AGREEMENT, THIS AMENDMENT AND ALL
OTHER INSTRUMENTS, DOCUMENTS AND AGREEMENTS EXECUTED AND
THIRD AMENDMENT TO FIRST AMENDED AND
RESTATED REVOLVING CREDIT LOAN AGREEMENT - Page 4
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DELIVERED IN CONNECTION WITH THE AGREEMENT OR THIS AMENDMENT REPRESENT THE
FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO ORAL AGREEMENTS AMONG THE PARTIES.
Executed as of the date first written above.
BORROWER:
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
K. C. RESOURCE SERVICE CORPORATION
By: /s/ XXXX X. XXXXXXX
------------------------------------
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
THIRD AMENDMENT TO FIRST AMENDED AND
RESTATED REVOLVING CREDIT LOAN AGREEMENT - Page 5
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LENDER:
COMERICA BANK-TEXAS
By: /s/ XXXX X. XXXXXXX
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Name: Xxxx X. Xxxxxxx
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Title: Vice President
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The undersigned hereby (i) consents and agrees to this Amendment and (ii)
confirms and agrees that any subordination agreement previously executed
respectively by the undersigned for the benefit of Lender is in full force and
effect and is the legal, valid and binding obligation of the undersigned and
is, enforceable in accordance with its terms.
SUBORDINATING PARTY:
X'XXXXXXX & XXXXX, X.X.
By: X'Xxxxxxx & Masur, a general
partnership
By: /s/ XXXXX X. X'XXXXXXX
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Name: Xxxxx X. X'Xxxxxxx
----------------------------
Title: General Partner
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THIRD AMENDMENT TO FIRST AMENDED AND
RESTATED REVOLVING CREDIT LOAN AGREEMENT - Page 6
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FOURTH AMENDED AND RESTATED
REVOLVING CREDIT NOTE
Dallas, Texas
$8,500,000.00 November 18, 1997
FOR VALUE RECEIVED, BESTWAY, INC., a Delaware corporation and 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 November
30, 1999 (unless sooner due under the terms of the Loan Agreement, as that term
is defined below) the principal sum of Eight Million Five Hundred Thousand
No/100 Dollars ($8,500,000.00) 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 amended
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 December 1,
1997, 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
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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 rate ceiling" from time to
time in effect under the Texas Credit Code (Vernon's Texas Civil Statutes),
Article 5069-1B.001 et seq, 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
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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.
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 (formerly Chapter
15 of the Texas Credit Code (Vernon's Texas Civil Statutes), Article 5069-15),
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 Third Amended and Restated Revolving Credit Note
dated April 12, 1996, in the original principal amount of $7,500,000, 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 18th day of
November, 1997.
BESTWAY, INC.
By: /s/ XXXX X. XXXXXXX
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Xxxx X. Xxxxxxx
Senior Vice President - Finance
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BESTWAY RENTAL, INC.
By: /s/ XXXX X. XXXXXXX
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Xxxx X. Xxxxxxx
Senior Vice President - Finance
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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