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EXHIBIT 10(A)
FIFTH AMENDMENT TO SECOND AMENDED
AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT
THIS FIFTH AMENDMENT (the "Fifth Amendment") TO SECOND AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT, made as of this 19th day of December,
1997, among XXXXX RENTS, INC., a Georgia corporation (the "Company"), SUNTRUST
BANK, ATLANTA (formerly known as Trust Company Bank), a Georgia banking
corporation, FIRST UNION NATIONAL BANK (formerly known as First Union National
Bank of Georgia), a national banking association, THE FIRST NATIONAL BANK OF
CHICAGO, a national banking association, as assignee of NBD Bank, SOUTHTRUST
BANK, N.A. (formerly known as SouthTrust Bank of Georgia, N.A.), a national
banking association (collectively, the "Banks") and SUNTRUST BANK, ATLANTA, as
Agent for the Banks (the "Agent").
WITNESSETH:
WHEREAS, the Company, the Banks and the Agent are parties to that certain
Second Amended and Restated Revolving Credit and Term Loan Agreement dated as of
January 6, 1995, as heretofore amended (the "Loan Agreement"); and
WHEREAS, the Company has requested that certain terms of the Loan Agreement
be amended and the Agent and the Banks have agreed to the requested amendments
on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, the terms
and conditions contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree that
all capitalized terms used but not otherwise defined herein shall have the
meanings ascribed thereto in the Loan Agreement and further agree as follows:
1.
Section 2.03 of the Loan Agreement is hereby amended by replacing
subsection (a) thereof with the following:
(a) the aggregate Revolving Credit Commitments shall not exceed the
least of the following:
(i) an amount equal to 700% of the Company's Rental Income for the
most recent calendar month;
(ii) an amount equal to 70% of the Net Book Value of the Company's
Rental Equipment and Furniture Inventory as of the most recent calendar
month; or
(iii) $90,000,000.
2.
Section 8.11 of the Loan Agreement is hereby amended by replacing said
section with the following:
Section 8.11. Corporate Existence. Except as expressly permitted
under Section 9.05 hereof, the Company will maintain and will cause each
Subsidiary to maintain its corporate existence and good standing in the
jurisdiction of its incorporation, and the Company will qualify and will
cause each Subsidiary to qualify and remain qualified to do business as a
foreign corporation in each jurisdiction in
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which the nature of the business conducted by it or its ownership of
property makes such qualification necessary and where failure to qualify
would have a Materially Adverse Effect.
3.
Section 9.03 of the Loan Agreement is hereby amended by replacing
subsection (d) thereof with the following:
(d) own, purchase or acquire stock, obligations or securities of a
Subsidiary or of a corporation which immediately after such purchase or
acquisition will be a Subsidiary or will be merged into Borrower, provided,
however, written consent of the Banks, which any of them may withhold in
their sole discretion, is required for purchases and acquisitions with (A)
a cash purchase price greater than or equal to $10,000,000, or (B) a total
purchase price (including cash, stock of the Company and any of its
Subsidiaries and any other consideration) greater than or equal to
$15,000,000;
4.
Section 9.03 of the Loan Agreement is hereby further amended by replacing
subsection (i) thereof with the following:
(i) guarantee the indebtedness of obligations of certain franchise
operators, provided such guarantees are (A) given by the Company in
connection with (1) such franchise operators' purchase of merchandise
financed through a third-party lender or (2) loans made for other purposes
pursuant to the terms of that certain Loan Facility Agreement and Guaranty,
to be dated on or about December , 1997, by and among the Company,
SunTrust Bank, Atlanta, as Servicer, and the banks from time to time party
thereto (as thereafter amended or modified, the "Loan Facility Agreement
and Guaranty"), and (B) limited to $40,000,000 in aggregate outstanding
principal amount at any one time for all franchise operators; and
5.
Section 9.06 of the Loan Agreement is hereby amended by replacing said
Section with the following:
Section 9.06. Additional Negative Pledges. The Company shall not, and
shall not permit any of its Subsidiaries to, create or otherwise cause or
suffer to exist or become effective, directly or indirectly, any
prohibition or restriction on the creation or existence of any Lien upon
any assets of the Company or any of its Subsidiaries, other than pursuant
to (a) Section 9.01, (b) the terms of any agreement, instrument or other
document pursuant to which any debt permitted by Section 9.01(e) is
incurred by the Company or any of its Subsidiaries, so long as such
prohibition or restriction applies only to the property or asset being
financed by such debt, (c) any requirement of applicable law or any
regulatory authority having jurisdiction over the Company or any of its
Subsidiaries, (d) the terms of the Synthetic Lease Documents and (e) the
terms of the Loan Facility Agreement and Guaranty.
6.
The Revolving Credit Commitment of each Bank (other than SunTrust Bank,
Atlanta) is amended to be the Revolving Credit Commitment of such Bank listed on
its signature page to this Fifth Amendment.
7.
The Company represents and warrants that all representations and warranties
set forth in the Loan Agreement are true and correct in all material respects on
the date hereof and no Default or Event of Default exists under the Loan
Agreement as of the date hereof.
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8.
The effectiveness of this Fifth Amendment is conditioned upon the Agent's
receipt of:
(a) three Revolving Notes, each dated the date hereof, executed by the
Company, in favor of each Bank other than SunTrust Bank, Atlanta, in the
amount of such Bank's Revolving Credit Commitment as set forth on the
signature pages hereto;
(b) a Second Amendment and Ratification of Subsidiary Guaranty
Agreement, in form and substance satisfactory to the Banks, executed by the
Guarantors;
(c) certificates of the Secretary or Assistant Secretary of each of
the Credit Parties attaching and certifying copies of the resolutions of
the boards of directors of the Credit Parties, authorizing the execution,
delivery and performance of this Fifth Amendment and the other Loan
Documents described in this Section 7, as applicable (the "Amendment
Documents");
(d) certificates of the Secretary or an Assistant Secretary of each of
the Credit Parties certifying (i) the name, title and true signature of
each officer of each entity executing the Amendment Documents, (ii) the
certificate or articles of incorporation of such Credit Party, and (iii)
the bylaws or comparable governing documents of such Credit Party;
(f) certificates of existence or other good standing certificates for
each Credit Party issued by the Secretary of State of the jurisdiction of
such Credit Party's incorporation and of each state where the failure to be
in good standing would have a Materially Adverse Effect; and
(g) the favorable opinion of Xxxxxxxxxx Xxxxxxxx, general counsel to
the Credit Parties, addressed to the Agent and each of the Banks.
9.
Except for the amendments and agreements expressly set forth above, the
text of the Loan Agreement and all other Loan Documents shall remain unchanged
and in full force and effect. The Company acknowledges and expressly agrees that
the Agent and the Banks reserve the right to, and do, in fact, require strict
compliance with the terms and provisions of the Loan Agreement, as amended by
this Fifth Amendment.
10.
Each reference in the Loan Agreement to "this Agreement," "hereunder,"
"hereof," "herein," or words of like import, shall mean and be a reference to
the Loan Agreement as amended by this Fifth Amendment and each reference to the
Loan Agreement in any other document, instrument or agreement executed or
delivered in connection with the Loan Agreement shall mean and be a reference to
the Loan Agreement as amended by this Fifth Amendment.
11.
THIS FIFTH AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF GEORGIA.
12.
This Fifth 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 Fifth Amendment
by facsimile transmission shall be as effective as delivery of a manually
executed counterpart hereof.
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13.
This Fifth Amendment shall be binding on, and shall inure to the benefit
of, the parties hereto and their respective successors and assigns.
14.
This Fifth Amendment constitutes the entire understanding of the parties
with respect to the subject matter hereof, and any other prior or
contemporaneous agreements, whether written or oral, with respect thereto, are
expressly superseded hereby.
15.
The Company agrees to pay all reasonable, out-of-pocket costs and expenses
of the Agent in connection with the preparation, execution and delivery of, this
Fifth Amendment (including, without limitation, the reasonable fees actually
incurred and disbursements of counsel for the Agent).
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IN WITNESS WHEREOF, this Fifth Amendment has been duly executed as of the
date first above written.
COMPANY:
XXXXX RENTS, INC.
Address for Notices:
000 Xxxx Xxxxx Xxxxx Xxxx By:
Xxxxxxx, Xxxxxxx 00000 --------------------------------------------
Attention: Xxxxxxx X. Xxxxxxxxx Name:
Title:
[SIGNATURE PAGE FOR FIFTH AMENDMENT TO
SECOND AMENDED AND RESTATED REVOLVING CREDIT
AND TERM LOAN AGREEMENT]
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AGENT:
Address for Notices: SUNTRUST BANK, ATLANTA, as Agent for the
Banks
00 Xxxx Xxxxx, 00xx Xxxxx By:
Xxxxxxx, Xxxxxxx 00000 --------------------------------------------
Attention: Xxxxxx-Xxx X. Hattink or Name:
Xxxxxxx Xxxxxx Title:
Payment Office:
00 Xxxx Xxxxx By:
23rd Floor --------------------------------------------
Xxxxxxx, Xxxxxxx 00000 Name:
Title:
[SIGNATURE PAGE FOR FIFTH AMENDMENT TO
SECOND AMENDED AND RESTATED REVOLVING CREDIT
AND TERM LOAN AGREEMENT]
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BANKS:
Address for Notices: SUNTRUST BANK, ATLANTA
00 Xxxx Xxxxx, 00xx Xxxxx By:
Xxxxxxx, Xxxxxxx 00000 --------------------------------------------
Attention: Xxxxxx-Xxx X. Hattink or Name:
Xxxxxxx Xxxxxx Title:
Payment Office:
00 Xxxx Xxxxx By:
23rd Floor --------------------------------------------
Xxxxxxx, Xxxxxxx 00000 Name:
Title:
REVOLVING CREDIT COMMITMENT: $25,000,000.00
PRO RATA SHARE OF REVOLVING
LOAN COMMITMENTS: 27.7778%
FIFTH AMENDMENT TO
SECOND AMENDED AND RESTATED REVOLVING CREDIT
AND TERM LOAN AGREEMENT
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FIRST UNION NATIONAL BANK
Address for Notices:
000 Xxxxxxxxx Xxxxxx By:
12th Floor, Suite 640 --------------------------------------------
Xxxxxxx, Xxxxxxx 00000 Name:
Attention: Xxxxxxxx X. Xxxx Title:
Payment Office:
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx, Xxxxx 000
P.O. Box 740074
Xxxxxxx, Xxxxxxx 00000
REVOLVING CREDIT COMMITMENT: $30,000,000.00
PRO RATE SHARE OF REVOLVING LOAN 33.3333%
COMMITMENTS:
FIFTH AMENDMENT TO
SECOND AMENDED AND RESTATED REVOLVING CREDIT
AND TERM LOAN AGREEMENT
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THE FIRST NATIONAL BANK OF CHICAGO
Address for Notices:
Xxx Xxxxx Xxxxxxxx Xxxxx -- XX0000 By:
Xxxxxxx, Xxxxxxxx 00000-0000 --------------------------------------------
Attention: Xx. Xxxxxx St. Xxxxxxxx Name:
Title:
Payment Office:
Xxx Xxxxx Xxxxxxxx Xxxxx -- XX0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xx. Xxxxxx St. Xxxxxxxx
REVOLVING CREDIT COMMITMENT: $20,000,000.00
PRO RATA SHARE OF REVOLVING LOAN
COMMITMENTS: 22.2222%
FIFTH AMENDMENT TO
SECOND AMENDED AND RESTATED REVOLVING CREDIT
AND TERM LOAN AGREEMENT]
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SOUTHTRUST BANK, N.A.
Address for Notices:
One Georgia Center By:
000 Xxxx Xxxxxxxxx Xxxxxx --------------------------------------------
Xxxxxxx, Xxxxxxx 00000 Name:
Attention: Xxxx Xxxxxxxxx Title:
Payment Office:
One Georgia Center
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
REVOLVING CREDIT COMMITMENT: $15,000,000.00
PRO RATE SHARE OF REVOLVING LOAN 16.6667%
COMMITMENTS:
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