EXHIBIT 10(MM)
SECOND AMENDMENT TO LOAN FACILITY AGREEMENT AND GUARANTY
THIS SECOND AMENDMENT TO LOAN FACILITY AGREEMENT AND GUARANTY (this
"AMENDMENT"), is made and entered into as of May 27, 2005, 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").
WITNESSETH:
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 (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 2.1 of the Loan Facility Agreement is hereby amended by
replacing subsection (a) 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 May 26, 2006 (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 FORTY
MILLION AND NO/100 DOLLARS ($140,000,000) (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) 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), and (ii) executed counterparts to this Amendment from the
Sponsor, each of the Guarantors and the Participants;
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. REAFFIRMATIONS AND ACKNOWLEDGMENTS.
(a) 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 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]
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
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/ Xxx Xxxxxxx
------------------------------------
Name: Xxx Xxxxxxx
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxx X Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: 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
Schedule 1.1(b)
PARTICIPANT COMMITMENTS
Participant Commitment Amount
----------- -----------------
SunTrust Bank $29,117,647.55
Wachovia Bank, National Association $41,764,705.86
Regions Bank $34,705,882.36
Branch Banking & Trust Co. $34,411,764.23
