SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT
EXHIBIT 10(oo)
SECOND AMENDMENT TO
REVOLVING CREDIT AGREEMENT
REVOLVING CREDIT AGREEMENT
THIS SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT (this “Amendment”), is made and entered
into as of February 27, 2006, by and among XXXXX RENTS, INC., a Georgia corporation (the
“Borrower”), XXXXX RENTS, INC. PUERTO RICO, a Puerto Rico corporation (the “Co-Borrower” and
together with the Borrower, the “Borrowers”), the several banks and other financial institutions
from time to time party hereto (collectively, the “Lenders”) and SUNTRUST BANK, in its capacity as
Administrative Agent for the Lenders (the “Administrative Agent”).
W I T N E S S E T H:
WHEREAS, the Borrowers, the Lenders and the Administrative Agent are parties to that certain
Revolving Credit Agreement, dated as of May 28, 2004, as amended by that certain First Amendment to
Revolving Credit 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 “Credit Agreement”; capitalized
terms used herein and not otherwise defined shall have the meanings assigned to such terms in the
Credit Agreement), pursuant to which the Lenders have made certain financial accommodations
available to the Borrowers;
WHEREAS, the Borrowers have requested that the Lenders and the Administrative Agent amend
certain provisions of the Credit Agreement, and subject to the terms and conditions hereof, the
Lenders are willing to do so;
NOW, THEREFORE, for good and valuable consideration, the sufficiency and receipt of all of
which are acknowledged, the Borrowers, the Lenders and the Administrative Agent agree as follows:
1. Amendments
| (a) | Section 1.1 of the Credit Agreement is hereby amended by replacing the definitions of “LC Commitment”, “Revolving Commitment Termination Date”, and “Swingline Commitment” with the following definitions: |
“LC Commitment” shall mean that portion of the Aggregate Revolving Commitments that may be
used by the Borrower for the issuance of Letters of Credit in an aggregate face amount not to
exceed $10,000,000.
“Revolving Commitment Termination Date” shall mean the earliest of (i) May 28, 2008, (ii) the
date on which the Revolving Commitments are terminated pursuant to Section 2.8(b) or
Section 8.1 and (iii) the date on which all amounts outstanding under this Agreement have
been declared or have automatically become due and payable (whether by acceleration or otherwise).
“Swingline Commitment” shall mean the commitment of the Swingline Lender to make Swingline
Loans in an aggregate principal amount at any time outstanding not to exceed $15,000,000.
(b) Schedule 1.1(b) of the Credit 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 Credit Agreement.
(c) Section 2.25(a) of the Credit Agreement is hereby amended by replacing such section with
the following subsection (a):
(a) So long as no Event of Default has occurred and is continuing, Borrower may,
at any time by written notice to the Administrative Agent, who shall promptly notify
the Lenders, request that the Aggregate Revolving Commitment be increased up to an
amount not to exceed $170,000,000 (the “Requested Commitment Amount”). No Lender (or
any successor thereto) shall have any obligation to increase its Revolving Commitment
or its other obligations under this Agreement and the other Loan Documents, and any
decision by a Lender to increase its Revolving Commitment shall be made in its sole
discretion independently from any other Lender.
2. Conditions to Effectiveness of this Amendment. Notwithstanding any other provision
of this Amendment and without affecting in any manner the rights of the Loan Parties hereunder, it
is understood and agreed that this Amendment shall not become effective, and the Borrowers shall
have no rights under this Amendment, until (a) the Administrative Agent shall have received (i)
reimbursement or payment of its costs and expenses incurred in connection with this Amendment or
otherwise outstanding (including reasonable fees, charges and disbursements of King & Spalding LLP,
counsel to the Administrative Agent), (ii) a favorable written opinion of Xxxxxxxxxx Xxxxxxxx, LLP,
counsel to the Loan Parties, addressed to the Administrative Agent and each of the Lenders, and
covering such matters relating to the Loan Parties, this Amendment and the transactions
contemplated herein as the Administrative Agent or the Required Lenders shall reasonably request,
each in form and substance reasonably satisfactory to the Administrative Agent, (iii) a certificate
of the Secretary or Assistant Secretary of each Loan Party, certifying copies of its bylaws and of
the resolutions of its boards of directors, authorizing the execution, delivery and performance of
this Amendment and certifying the name, title and true signature of each officer of such Loan Party
executing this Amendment, (iv) executed counterparts to this Amendment from the Borrower, each of
the Guarantors and the Required Lenders and (v) duly executed Revolving Credit Notes executed by
the Borrower payable to such Lender; and duly executed Notes executed by the Co-Borrower payable to
such Lender and (b) the Borrowers shall have prepaid the Loans in their entirety and, to the extent
the Borrowers elect to do so and subject to the conditions specified in Article II, the Borrowers
shall reborrow Loans from the Lenders in proportion to their respective Revolving Commitments after
giving effect to this Amendment, until such time as all outstanding Loans are held by the Lenders
in proportion to their respective Commitments after giving effect to this Amendment, and effective
upon the effectiveness of this Amendment, the amount of the participations held by each Lender in
each Letter of Credit then outstanding shall
be adjusted automatically such that, after giving effect to such adjustments, the Lenders
shall hold participations in each such Letter of Credit in proportion to their respective Revolving
Commitments. The Administrative Agent, the Lenders and the Borrowers hereby agree that the
prepayment referred to in clause (b) of the previous sentence shall be without premium or penalty
to the Borrowers and no compensation under Section 2.18 of the Credit Agreement shall be required
to be paid by Borrowers to any of the Lenders or Administrative Agent in connection with such
prepayment.
3. Representations and Warranties. To induce the Lenders and the Administrative Agent
to enter into this Amendment, the Borrowers hereby represent and warrant to the Lenders and the
Administrative Agent that:
(a) The execution, delivery and performance by the Borrowers of this Amendment (i) are within
the Borrowers’ power and authority; (ii) have been duly authorized by all necessary corporate and
shareholder action; (iii) are not in contravention of any provision of the Borrowers’ certificates
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
the Borrowers or any of their Subsidiaries is a party or by which the Borrowers 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 the Borrowers or any of their 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 the
Borrowers and constitutes a legal, valid and binding obligation of each Borrower, enforceable
against each Borrowers 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
Credit 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. The Guarantor consents to the execution and delivery by
the Borrowers of this Amendment and ratifies and confirms the terms of the Subsidiary Guaranty
Agreement with respect to the indebtedness now or hereafter outstanding under the Credit Agreement
as amended hereby and all promissory notes issued thereunder. The Guarantor acknowledges that,
notwithstanding anything to the contrary contained herein or in any other document evidencing any
indebtedness of the Borrowers to the Lenders or any other obligation of the Borrowers, or any
actions now or hereafter taken by the Lenders with respect to any obligation of the Borrowers, the
Subsidiary Guaranty Agreement (i) is and shall continue to be a primary obligation of the
Guarantor, (ii) is and shall continue to be an absolute, unconditional, continuing and irrevocable
guaranty of payment, and (iii) 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 Guarantor
under the Subsidiary Guaranty Agreement.
5. Effect of Amendment. Except as set forth expressly herein, all terms of the Credit
Agreement, as amended hereby, and the other Loan Documents shall be and remain in full force and
effect and shall constitute the legal, valid, binding and enforceable obligations of the Borrowers
to the Lenders and the Administrative Agent. 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 Lenders under the Credit Agreement, nor constitute a waiver of any provision of
the Credit Agreement. This Amendment shall constitute a Loan Document for all purposes of the
Credit 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 Credit Agreement or an accord and satisfaction in regard
thereto.
8. Costs and Expenses. The Borrowers agree to pay on demand all costs and expenses of
the Administrative Agent 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 Administrative Agent 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]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed, under
seal in the case of the Borrowers and the Guarantor, by their respective authorized officers as of
the day and year first above written.
| BORROWERS: | ||||||
| XXXXX RENTS, INC | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||||
| Name: Xxxxxxx X. Xxxxxxxxx | ||||||
| Title: Executive Vice President, | ||||||
| Chief Financial Officer | ||||||
| XXXXX RENTS, INC. PUERTO RICO | ||||||
| By: | /s/ Xxxxxx X. Xxxxxxxx, Xx. | |||||
| Name: Xxxxxx X. Xxxxxxxx, Xx. | ||||||
| Title: Treasurer | ||||||
| GUARANTOR: | ||||||
| XXXXX INVESTMENT COMPANY, as | ||||||
| Guarantor | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||||
| Name: Xxxxxxx X. Xxxxxxxxx | ||||||
| Title: Vice President and Treasurer | ||||||
| SUNTRUST BANK, as Administrative Agent, as Issuing Bank, as Swingline Lender and as a Lender |
||||
| 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 | |||
