FOURTH AMENDMENT TO LOAN FACILITY AGREEMENT AND GUARANTY
EXHIBIT 10(nn)
FOURTH AMENDMENT TO
LOAN FACILITY AGREEMENT AND GUARANTY
LOAN FACILITY AGREEMENT AND GUARANTY
THIS FOURTH AMENDMENT TO LOAN FACILITY AGREEMENT AND GUARANTY (this “Amendment”), is made and
entered into as of February 27, 2006, by and among XXXXX RENTS, INC., a Georgia corporation
(“Sponsor”), SUNTRUST BANK (“SunTrust”) and each of the other lending institutions listed on the
signature pages hereto (SunTrust and such lenders, the “Participants”) and SUNTRUST BANK, a banking
corporation organized and existing under the laws of Georgia having its principal office in
Atlanta, Georgia, as Servicer (in such capacity, the “Servicer”).
W I T N E S S E T H:
WHEREAS, the Sponsor, the Participants and the Servicer are parties to a certain Loan Facility
Agreement and Guaranty, dated as of May 28, 2004, as amended by that certain First Amendment to
Loan Facility Agreement and Guaranty, dated as of September 27, 2004, as amended by that Second
Amendment to Loan Facility Agreement and Guaranty, dated as of May 27, 2005, as amended by that
certain Third Amendment to Loan Facility Agreement, dated as of July 27, 2005 (as so amended and as
may be further amended, restated, supplemented or otherwise modified from time to time, the “Loan
Facility Agreement”; capitalized terms used herein and not otherwise defined shall have the
meanings assigned to such terms in the Loan Facility Agreement), pursuant to which the Participants
have made certain financial accommodations available to the Sponsor;
WHEREAS, the Sponsor has requested that the Participants and the Servicer amend certain
provisions of the Loan Facility Agreement, and subject to the terms and conditions hereof, the
Participants are willing to do so;
NOW, THEREFORE, for good and valuable consideration, the sufficiency and receipt of all of
which are acknowledged, the Sponsor, the Participants and the Servicer agree as follows:
1. Amendments.
(A) Section 1.1 of the Loan Facility Agreement is hereby amended by replacing the definition
of “Maximum Commitment Amount” with the following definition:
Maximum Commitment Amount” shall mean $115,000,000, as such amount may be reduced pursuant to
Section 2.7, Section 2.8 or Section 15.2.
(B) Section 2.1 of the Loan Facility Agreement is hereby amended by replacing subsections (a)
and (b) of such Section in its entirety with the following:
(a) Startup Franchisee Commitment. Subject to and upon the terms and
conditions set forth in this Agreement and the other Operative
Documents, and in reliance upon the guaranty and other obligations of the
Sponsor set forth herein, the Servicer hereby establishes a commitment to the
Sponsor to establish Startup Franchisee Loan Commitments and to make Advances
thereunder to such Startup Franchisee Borrowers as may be designated by the Sponsor
in its Funding Approval Notices during a period commencing on the date hereof and
ending on February 27, 2007 (as such period may be extended for one or more
subsequent 364-day periods pursuant to Section 2.8, the “Commitment Termination
Date”) in an aggregate committed amount at any one time outstanding not to exceed
ONE HUNDRED AND FIFTEEN MILLION AND NO/100 DOLLARS ($115,000,000) (the “Startup
Franchisee Commitment”); provided that, notwithstanding any
provision of this Agreement to the contrary, at no time shall the sum of aggregate
committed amounts of all Loan Commitments outstanding pursuant to the Commitments,
or, following the termination of any such Loan Commitment, Advances outstanding
thereunder, exceed the Maximum Commitment Amount.
(b) Established Franchisee Commitment. Subject to and upon the terms
and conditions set forth in this Agreement and the other Operative Documents, and in
reliance upon the guaranty and other obligations of the Sponsor set forth herein,
the Servicer hereby establishes a commitment to the Sponsor to establish Established
Franchisee Loan Commitments and to make Advances thereunder to such Established
Franchisees as may be designated by the Sponsor in its Funding Approval Notices
during a period commencing on the date hereof and ending on the Commitment
Termination Date in an aggregate committed amount at any one time outstanding not to
exceed ONE HUNDRED AND FIFTEEN MILLION AND NO/100 DOLLARS ($115,000,000) (the
“Established Franchisee Commitment”); provided that, notwithstanding
any provision of this Agreement to the contrary, at no time shall the sum of
aggregate committed amounts of all Loan Commitments outstanding pursuant to the
Commitments, or, following the termination of any such Loan Commitment, Advances
outstanding thereunder, exceed the Maximum Commitment Amount.
(C) Schedule 1.1(b) of the Loan Facility Agreement is hereby amended by deleting such Schedule
in its entirety and replacing it with Schedule 1.1(b) attached to this Amendment and by this
reference incorporated herein and in the Loan Facility Agreement.
2. Conditions to Effectiveness of this Amendment. Notwithstanding any other provision
of this Amendment and without affecting in any manner the rights of the Participants hereunder, it
is understood and agreed that this Amendment shall not become effective, and the Sponsor shall have
no rights under this Amendment, until the Servicer shall have received (i) reimbursement or payment
of its costs and expenses incurred in connection with this Amendment (including reasonable fees,
charges and disbursements of King & Spalding LLP, counsel to the Servicer), (ii) executed
counterparts to this Amendment from the Sponsor, each of the Guarantors and the Required
Participants and (iii) the Servicer shall have issued to each Participant, a new Participation
Certificate in an amount equal to the relevant Participant’s Participating Commitment Amount.
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3. Representations and Warranties. To induce the Participants and the Servicer to
enter into this Amendment, each Credit Party hereby represents and warrants to the Participants and
the Servicer that:
(a) The execution, delivery and performance by such Credit Party of this Amendment (i) are
within such Credit Party’s power and authority; (ii) have been duly authorized by all necessary
corporate and shareholder action; (iii) are not in contravention of any provision of such Credit
Party’s certificate of incorporation or bylaws or other organizational documents; (iv) do not
violate any law or regulation, or any order or decree of any Governmental Authority; (v) do not
conflict with or result in the breach or termination of, constitute a default under or accelerate
any performance required by, any indenture, mortgage, deed of trust, lease, agreement or other
instrument to which such Credit Party or any of its Subsidiaries is a party or by which such Credit
Party or any such Subsidiary or any of their respective property is bound; (vi) do not result in
the creation or imposition of any Lien upon any of the property of such Credit Party or any of its
Subsidiaries; and (vii) do not require the consent or approval of any Governmental Authority or any
other person;
(b) This Amendment has been duly executed and delivered for the benefit of or on behalf of
each Credit Party and constitutes a legal, valid and binding obligation of each Credit Party,
enforceable against such Credit Party in accordance with its terms except as the enforceability
hereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws
affecting creditors’ rights and remedies in general; and
(c) After giving effect to this Amendment, the representations and warranties contained in the
Loan Facility Agreement and the other Loan Documents are true and correct in all material respects,
and no Default or Event of Default has occurred and is continuing as of the date hereof.
4. Reaffirmation of Guaranty. Each Guarantor consents to the execution and delivery
by the Sponsor of this Amendment and jointly and severally ratify and confirm the terms of the
Guaranty Agreement with respect to the indebtedness now or hereafter outstanding under the Loan
Facility Agreement as amended hereby and all promissory notes issued thereunder. Each Guarantor
acknowledges that, notwithstanding anything to the contrary contained herein or in any other
document evidencing any indebtedness of the Sponsor to the Participants or any other obligation of
the Sponsor, or any actions now or hereafter taken by the Participants with respect to any
obligation of the Sponsor, the Guaranty Agreement (and in the case of Sponsor, the guaranty as set
forth in Article X of the Loan Facility Agreement) (i) is and shall continue to be a primary,
absolute and unconditional obligation of such Guarantor, except as may be specifically set forth in
the Guaranty Agreement (or in the case of Sponsor, the guaranty provisions set forth in Article X
of the Loan Facility Agreement), and (ii) is and shall continue to be in full force and effect in
accordance with its terms. Nothing contained herein to the contrary shall release, discharge,
modify, change or affect the original liability of the Guarantors under the Guaranty Agreement (or
in the case of Sponsor, the guaranty provisions set forth in Article X of the Loan Facility
Agreement).
5. Effect of Amendment. Except as set forth expressly herein, all terms of the Loan
Facility Agreement, as amended hereby, and the other Loan Documents shall be and remain in
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full force and effect and shall constitute the legal, valid, binding and enforceable
obligations of the Sponsor to the Participants and the Servicer. The execution, delivery and
effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver
of any right, power or remedy of the Participants under the Loan Facility Agreement, nor constitute
a waiver of any provision of the Loan Facility Agreement. This Amendment shall constitute a Loan
Document for all purposes of the Loan Facility Agreement.
6. Governing Law. This Amendment shall be governed by, and construed in accordance
with, the internal laws of the State of Georgia and all applicable federal laws of the United
States of America.
7. No Novation. This Amendment is not intended by the parties to be, and shall not be
construed to be, a novation of the Loan Facility Agreement or an accord and satisfaction in regard
thereto.
8. Costs and Expenses. The Sponsor agrees to pay on demand all costs and expenses of
the Servicer in connection with the preparation, execution and delivery of this Amendment,
including, without limitation, the reasonable fees and out-of-pocket expenses of outside counsel
for the Servicer with respect thereto.
9. Counterparts. This Amendment may be executed by one or more of the parties hereto
in any number of separate counterparts, each of which shall be deemed an original and all of which,
taken together, shall be deemed to constitute one and the same instrument. Delivery of an executed
counterpart of this Amendment by facsimile transmission or by electronic mail in pdf form shall be
as effective as delivery of a manually executed counterpart hereof.
10. Binding Nature. This Amendment shall be binding upon and inure to the benefit of
the parties hereto, their respective successors, successors-in-titles, and assigns.
11. Entire Understanding. This Amendment sets forth the entire understanding of the
parties with respect to the matters set forth herein, and shall supersede any prior negotiations or
agreements, whether written or oral, with respect thereto.
[Signature Pages To Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed, under
seal in the case of the Sponsor and the Guarantors, by their respective authorized officers as of
the day and year first above written.
| SPONSOR: | ||||||
| XXXXX RENTS, INC. | ||||||
| By: | /S/ Xxxxxxx X. Xxxxxxxxx | |||||
| Xxxxxxx X. Xxxxxxxxx | ||||||
| Executive Vice President, | ||||||
| Chief Financial Officer | ||||||
| [Corporate Seal] | ||||||
| GUARANTORS: | ||||||
| XXXXX INVESTMENT COMPANY, as | ||||||
| Guarantor | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||||
| Name: Xxxxxxx X. Xxxxxxxxx | ||||||
| Title: Vice President and Treasurer | ||||||
| XXXXX RENTS, INC. PUERTO RICO, as | ||||||
| Guarantor | ||||||
| By: | /s/ Xxxxxx X. Xxxxxxxx, Xx. | |||||
| Name: Xxxxxx X. Xxxxxxxx, Xx. | ||||||
| Title: Treasurer | ||||||
| PARTICIPANTS: | ||||||
| SUNTRUST BANK | ||||||
| By: | /s/ Xxxxx Xxxxxx | |||||
| Name: Xxxxx Xxxxxx | ||||||
| Title: Vice President | ||||||
| WACHOVIA BANK, NATIONAL | ||||||
| ASSOCIATION | ||||||
| By: | /s/ Xxx Xxxxxx | |||||
| Name: Xxx Xxxxxx Title: Managing Director |
||||||
| REGIONS BANK | ||||||
| By: | /s/ Xxxxxxx X. Xxx | |||||
| Name: Xxxxxxx X. Xxx | ||||||
| Title: Senior Vice President | ||||||
| BRANCH BANKING & TRUST CO. | ||||||
| By: | /s/ Xxxx X. XxXxxxxxxx | |||||
| Name: Xxxx X. XxXxxxxxxx | ||||||
| Title: Senior Vice President | ||||||
