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EXHIBIT 10.1
FIRST AMENDMENT TO FIRST AMENDED
AND RESTATED REVOLVING CREDIT LOAN AGREEMENT
THIS FIRST AMENDMENT TO FIRST AMENDED AND RESTATED REVOLVING CREDIT
LOAN AGREEMENT (the "AMENDMENT"), dated as of March 15, 1995, is among the
Borrower (as defined below) and COMERICA BANK-TEXAS, a Texas banking
association ("LENDER").
RECITALS:
Borrower and Lender have entered into that certain First Amended and
Restated Revolving Credit Loan Agreement dated as of August 19, 1993 (such
agreement as previously amended and/or extended and as may be hereafter amended
or otherwise modified from time to time, the "AGREEMENT").
Borrower and Lender desire to amend the Agreement as herein provided.
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
Definitions
Section 1.1 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 the term
"BORROWER" shall mean, collectively, Bestway Rental, Inc., a Delaware
corporation, EZY 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 2.1. 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:
(a) The following definitions are hereby substituted for existing
definitions of the same identity, and such existing definitions are deleted in
their entirety:
FIRST AMENDMENT TO FIRST AMENDED AND
RESTATED REVOLVING CREDIT LOAN AGREEMENT - Page 1
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"MAXIMUM REVOLVING CREDIT LOAN" shall mean $4,000,000.00.
"REVOLVING CREDIT NOTE" shall mean the First Modification
Revolving Credit Note dated March 15, 1995, in the original principal
amount of $4,000,000, 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 August 18, 1996.
Section 2.2 Amendment to Section 2 Generally. Effective as of the
date hereof, the reference in Section 2.1. of the Agreement to "$3,000,000" is
deleted and replaced with "$4,000,000". Additionally, any other reference in
Section 2, generally, to a $3,000,000 limit for the face amount of the
Revolving Credit Note shall be deleted and $4,000,000 shall be substituted
therefor.
Section 2.3 Amendment to Section 2.2.4. Effective as of the date
hereof, all references in Section 2.2.4 of the Agreement to "two percent (2%)"
shall be deleted and substituted therefor shall be "one and one-half percent
(1.50%)."
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 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 agreements from O'Donnell & Masur, L.P., Jack E. Meyer and Euless
Aero Components, Inc.
ARTICLE IV
Ratifications and Other Agreements
Section 4.1 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.
FIRST AMENDMENT TO FIRST AMENDED AND
RESTATED REVOLVING CREDIT LOAN AGREEMENT - Page 2
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Section 4.2 Representations and Warrantes. 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 5.1 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 5.2 Reference to Agreement. The Agreement, and any and
all other agreements, documents, or instruments now or hereafter executed and
delivered pursuant to the terms hereof or pursuant to the terms of the
Agreement as amended hereby, are hereby amended so that any reference in such
documents to the Agreement shall mean a reference to the Agreement as amended
hereby.
Section 5.3 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 5.4 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.
FIRST AMENDMENT TO FIRST AMENDED AND
RESTATED REVOLVING CREDIT LOAN AGREEMENT - Page 3
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Section 5.5 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 5.6 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 5.7 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 5.8 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 5.9 Headings. The headings, captions, and arrangements
used in this Amendment are for convenience only and shall not affect the
interpretation of this Amendment.
Section 5.10 Non-Application of Chapter 15 of Texas Credit Code.
The provisions of Chapter 15 of the Texas Credit Code (Vernon's Annotated Texas
Statutes, Article 5069-15) 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 5.11 ENTIRE AGREEMENT. THE AGREEMENT, THIS AND ALL OTHER
INSTRUMENTS, DOCUMENTS AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION WITH
THE AGREEMENT OR THIS AMENDMENT EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE
PARTIES HERETO AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THIS
AMENDMENT, AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES
HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO.
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RESTATED REVOLVING CREDIT LOAN AGREEMENT - Page 4
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Executed as of the date first written above.
BORROWER:
BESTWAY RENTAL, INC.,
By: /s/ BETH A. DURRETT
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Beth A. Durrett
Vice President
EZY RENTAL, INC.
By: /s/ BETH A. DURRETT
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Beth A. Durrett
Vice President
K. C. RESOURCE SERVICE
CORPORATION
By: /s/ BETH A. DURRETT
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Beth A. Durrett
Vice President
U.S. CREDIT-SERVICE
CORPORATION
By: /s/ BETH A. DURRETT
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Beth A. Durrett
Vice President
LENDER:
COMERICA BANK-TEXAS
By:
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G. Christopher Jones
Vice President
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RESTATED REVOLVING CREDIT LOAN AGREEMENT - Page 5
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Each of the undersigned hereby severally, but not jointly, (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 PARTIES:
O'DONNELL & MASUR, L.P.
By: O'Donnell & Masur, a general partnership
By: /s/ JAMES A. O'DONNELL
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Its: General Partner
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/s/ JACK E. MEYER
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Jack E. Meyer
EULESS AERO COMPONENTS, INC.
By: /s/ DAVID S. TEMIN
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Its: Vice President
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FIRST AMENDMENT TO FIRST AMENDED AND
RESTATED REVOLVING CREDIT LOAN AGREEMENT - Page 6
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SECOND AMENDED AND RESTATED
REVOLVING CREDIT NOTE
Dallas, Texas
$4,000,000.00 March 15, 1995
FOR VALUE RECEIVED, BESTWAY RENTAL, INC., a Delaware corporation which
is successor-by-merger to EZY Acquisition, Inc., EZY RENTAL, INC., a Tennessee
corporation, K. C. RESOURCE SERVICE CORPORATION, a Missouri corporation, and
U.S. CREDIT - SERVICE CORPORATION, a Missouri corporation, (collectively, the
"MAKER"), jointly and severally promise to pay to the order of COMERICA
BANK-TEXAS (the "BANK") at 1909 Woodall Rodgers Freeway, Dallas, Texas 75201,
on August 18, 1996, (unless sooner due under the terms of the Loan Agreement,
as that term is defined below) the principal sum of Four Million and No/100
Dollars ($4,000,000.00) 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 Maker and the Bank (as amended
from time to time, including without limitation of even date herewith, 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 April 1, 1995, 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 (as defined in the Loan Agreement) 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, as defined in 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 the
Maker at any time in the possession of the Bank and in all balances of deposit
accounts of the Maker from time to time with the Bank. If an Event of Default
occurs and is not cured within the time, if any,
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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 Maker
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 the Maker (ii) any property of the Maker in the
possession of the Bank and (iii) any amount in any deposit account of the Maker
with the Bank.
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 "INDICATED RATE CEILING" from
time to time in effect under Chapter
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1 of the Texas Credit Code (Vernon's Texas Civil Statutes), Section (a)(1),
Article 5069-1.04, 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 Maker (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
Maker 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 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 Maker and all guarantors and endorsers (i) waive presentment,
demand, protest and notice of dishonor, (ii) agree that no extension or
indulgence to the Maker 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.
Should this Note be signed by more than one party, all of the
obligations herein contained shall be the joint and several obligations of each
signatory hereto.
This Note is given in renewal and extension (but not as a novation) of
that certain First Amended and Restated Revolving Credit Note dated August 19,
1993, in the original principal amount of $3,000,000.00 executed by Maker and
payable to the order of the Bank.
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IN WITNESS WHEREOF, the Maker has executed this Note as of the 15th
day of March, 1995.
BESTWAY RENTAL, INC.
By: /s/ BETH A. DURRETT
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Beth A. Durrett
Vice President
EZY RENTAL, INC.
By: /s/ BETH A. DURRETT
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Beth A. Durrett
Vice President
K.C. RESOURCE SERVICE
CORPORATION
By: /s/ BETH A. DURRETT
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Beth A. Durrett
Vice President
U.S. CREDIT - SERVICE
CORPORATION
By: /s/ BETH A. DURRETT
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Beth A. Durrett
Vice President
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