SWINGLINE NOTE
$10,000,000.00 January 27, 1998
FOR VALUE RECEIVED, the undersigned, O'REILLY AUTOMOTIVE, INC., a Delaware
corporation (the "Borrower"), hereby promises to pay to the order of
NATIONSBANK, N.A. (the "Lender"), at the Principal Office of the Administrative
Agent, in lawful money of the United States of America and in immediately
available funds, the principal amount of TEN MILLION AND NO/100 DOLLARS
($10,000,000.00) or such lesser amount as shall equal the aggregate unpaid
principal amount of the Loans constituting Swingline Advances made by the Lender
to the Borrower under the Credit Agreement referred to below, on the dates and
in the principal amounts provided in the Credit Agreement, and to pay interest
on the unpaid principal amount of each such Loan, at such office, in like money
and funds, for the period commencing on the date of each such Loan until each
such Loan shall be paid in full, at the rates per annum and on the dates
provided in the Credit Agreement.
The Borrower hereby authorizes the Lender to record in its records the
amount of each Loan constituting a Swingline Advance and Type of Accounts
established under each such Loan and all Continuations, Conversions and payments
of principal in respect thereof, which records shall, in the absence of manifest
error, constitute prima facie evidence of the accuracy thereof; provided,
however, that the failure to make such notation with respect to any such Loan or
payment shall not limit or otherwise affect the obligations of the Borrower
under the Credit Agreement or this Note.
This Swingline Note is one of the Notes referred to in the Credit Agreement
dated as of January 27, 1998, among the Borrower, the Lender, the other lenders
party thereto (collectively with the Lender, the "Lenders"), NationsBank, N.A.,
as administrative agent for itself and the other Lenders ("Administrative
Agent") and NationsBanc Xxxxxxxxxx Securities, LLC as syndication agent (such
Credit Agreement, as the same may be amended or otherwise modified from time to
time, being referred to herein as the "Credit Agreement"), and evidences Loans
constituting Swingline Advances made by the Lender thereunder. The Credit
Agreement, among other things, contains provisions for acceleration of the
maturity of this Note upon the happening of certain stated events and for
prepayments of the Loans constituting Swingline Advances prior to the maturity
of this Note upon the terms and conditions specified in the Credit Agreement.
Capitalized terms used in this Note have the respective meanings assigned to
them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF TEXAS AND THE APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
Except for any notices expressly required by the Loan Documents, the
Borrower and each surety, guarantor, endorser and other party ever liable for
payment of any sums of money payable on this Note jointly and severally waive
notice, presentment, demand for payment, protest, notice of protest and
non-payment or dishonor, notice of acceleration, notice of intent to accelerate,
notice of intent to demand, diligence in collecting, grace and all other
formalities of any kind, and consent to all extensions without notice for any
period or periods of time and partial payments, before or after maturity, and
any impairment of any collateral securing this Note, all without prejudice to
the holder. The holder shall similarly have the right to deal in any way, at any
time, with one or more of the foregoing parties without notice to any other
party, and to grant any such party any extensions of time for payment of any of
said indebtedness, or to release any such party or to release or substitute part
or all of the collateral securing this Note, or to grant any other indulgences
or forbearances whatsoever, without notice to any other party and without in any
way affecting the personal liability of any party hereunder.
X'XXXXXX AUTOMOTIVE, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: CFO and Treasurer
