EXHIBIT 10(KK)
FIRST OMNIBUS AMENDMENT
This First Omnibus Amendment, dated as of August 21, 2002, but effective as
of October 31,2001 as set forth below (this "Amendment") is among XXXXX RENTS,
INC., a Georgia corporation ("Xxxxx Rents" or "Lessee"), SUNTRUST BANKS, INC., a
Georgia corporation (the "Lessor"), SOUTHTRUST BANK, N.A., a national banking
association, as Iender (the "Lender"), and SUNTRUST BANK, a Georgia banking
corporation, as lease participant (the "Lease Participant") and as agent for the
Lenders (in such capacity, the "Agent").
BACKGROUND
1. Xxxxx Rents, the Lessor, the Lender and the Agent are parties to that
certain Amended and Restated Master Agreement, dated as of October 31, 2001 (the
"Master Agreement").
2. Xxxxx Rents and the Lessor are party to that certain Amended and
Restated Lease Agreement, dated as of October 31,2001 (the "Lease").
3. The parties hereto desire to amend the Master Agreement and the Lease in
certain respects as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Definitions. Capitalized terms used in this Amendment and not
otherwise defined herein shall have the meanings assigned thereto in the Master
Agreement.
SECTION 2. Separate Land and Building Allocations. The parties hereto
hereby agree that, notwithstanding anything to the contrary in any of the
Operative Documents, with respect to (and only with respect to) the Leased
Properties identified on Schedule I hereto (the "Subject Properties"), the
Recourse Deficiency Amount shall be separately calculated for the Land and the
related Buildings. The Loans and the Invested Amounts related to the Subject
Properties shall be allocated between the Land and the related Buildings on the
basis of the original cost thereof that was funded by the Funding Parties. In
the event that Lessee exercises the Remarketing Option in accordance with
Section 14.6 of the Lease, the proceeds of the resulting sale of the Subject
Properties shall be allocated between the related Land and the related Buildings
based upon the fair market value of each thereof, as such fair market value is
set forth in an appraisal by an independent appraiser chosen by the Lessor and
reasonably acceptable to Lessee. If the sum of the gross proceeds from such sale
allocated pursuant to the foregoing sentence to the Land or the related
Building, as the case may be, plus the Recourse Deficiency Amount paid by Lessee
on the Lease Termination Date pursuant to Section 14.6(i) of the Lease for such
Land or Buildings, as the case may be, minus any and all costs and expenses
(including broker fees, appraisal costs, Iegal fees and transfer taxes incurred
by the Agent or Lessor in connection with the marketing of such Land or Building
or the sale thereof (which cost shall be apportioned between the Land and the
related Building on the same basis as the proceeds pursuant to the foregoing
sentence) exceeds the portion of the related Leased Property Balance allocated
to such Land or Building, then the excess shall be paid to Lessee on the Lease
Termination Date.
SECTION 3. Fundings. Section 2.2 of the Master Agreement is hereby amended
by adding an additional paragraph thereto as follows:
(g) Funding by Agent. Unless the Agent shall have been notified by any
Funding Party prior to close of business one Business Day prior to the date
of a Funding that such Funding Party will not make available to the Agent
such Funding Party's share of such Funding, the Agent may assume that such
Funding Party has made such amount available to the Agent on such date, and
the Agent, in reliance on such assumption, may make available to the Lessee
or the Construction Agent, as the case may be, on such date a corresponding
amount. If such corresponding amount is not in fact made available to the
Agent by such Funding Party on the date of such Funding, the Agent shall be
entitled to recover such corresponding amount on demand from such Funding
Party, together with interest at the Federal Funds Rate for up to two days
and thereafter at the rate specified for such Funding pursuant to the
Operative Documents. To the extent that the Agent is not reimbursed for
such Funding by such Funding Party, the Agent shall be entitled to retain
the interest or Yield, as the case may be, on such amount that is paid by
Lessee.
SECTION 4. Investments. Section 5.17(j) of the Master Agreement is hereby
amended by deleting the number "$500,000" where it appears therein and
substituting therefor the number $2,500,000".
SECTION 5. Subleases. Article IX of the Lease is hereby amended by adding
the phrase "or to any franchisee of Lessee" immediately after the phrase "any
Subsidiary of the Guarantor" where it appears in the second sentence thereof.
SECTION 6. Effectiveness. It is the intention of the parties hereto that
the terms of this Amendment be effective as of October 31, 2001 and that the
provisions set forth above be deemed to have been incorporated into the Lease
and the Master Agreement, as the case may be, as of October 31,2001. The parties
hereto hereby acknowledge that the Remarketing Option under Section 14.6 of the
Lease has not been exercised, and that there have been no payments of any
Recourse Deficiency Amounts under the Lease.
SECTION 7. Representations and Warranties. Xxxxx Rents hereby represents
and warrants that, after giving effect to this Amendment (i) each representation
and warranty of the Lessee contained in the Operative Documents is true and
correct in all material respects on and as of the date hereof as though made on
and as of the date hereof, except to the extent such representations or
warranties relate solely to an earlier date, in which case such representations
and warranties were true and correct in all material respects on and as of such
earlier date, (ii) no Event of Default or Potential Event of Default has
occurred and is continuing, (iii) each Operative Document to which the Lessee is
a party is in full force and effect with respect to it and (iv) no event that
could reasonably be expected to have a Material Adverse Effect has occurred
since December 31, 2001.
SECTION 8. Reaffirmation of Guaranty. Xxxxx Rents hereby reaffirms and
acknowledges that, after giving effect to this Amendment, the Guaranty remains
in full force and effect.
SECTION 9. Miscellaneous. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of Georgia. This Amendment
may be executed by the parties hereto in separate counterparts (including by
facsimile) each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute one and the
same agreement. Each of the Operative Documents, as amended hereby, remains in
full force and effect. Any reference to each of the Operative Documents from and
after the date hereof shall be deemed to refer to such Operative Document as
amended hereby, unless otherwise expressly stated.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by their respective duly authorized officers as of the date first above written.
XXXXX RENTS, INC., as Lessee and as
Guarantor
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name Printed: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
SUNTRUST BANKS, INC., as Lessor
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name Printed: Xxxxxx X. Xxxxxxxx
Title: Director
SUNTRUST BANK, as Agent and as
Lease Participant
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name Printed: Xxxxxx X. Xxxxxxxx
Title: Director
SOUTHTRUST BANK, N.A., as Lender
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name Printed: Xxxxxx Xxxxxxxx
Title: Vice President
SCHEDULE I
SUBJECT PROPERTIES
Farmers Branch, Texas
Matthews, North Carolina
Xxxxxxx Xxxx, Xxxxxxx
Xxxxx, Xxxxxxx
Xxxxxxxxx, Xxxxxxx
