SEVENTH AMENDMENT TO SECOND AMENDED AND RESTATED LOAN FACILITY AGREEMENT AND GUARANTY
EXHIBIT 10.1
Execution Version
SEVENTH AMENDMENT TO
SECOND AMENDED AND RESTATED LOAN FACILITY AGREEMENT AND GUARANTY
THIS SEVENTH AMENDMENT TO SECOND AMENDED AND RESTATED LOAN FACILITY AGREEMENT AND GUARANTY (this “Amendment”), is made and entered into as of December 12, 2013, by and among AARON’S, INC., a Georgia corporation (“Sponsor”), each of the lending institutions listed on the signature pages hereto (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 Second Amended and Restated Loan Facility Agreement and Guaranty, dated as of June 18, 2010, as amended by that certain First Amendment to Second Amended and Restated Loan Facility Agreement and Guaranty dated as of March 31, 2011, by that certain Second Amendment to Second Amended and Restated Loan Facility Agreement and Guaranty dated as of May 18, 2011, by that certain Third Amendment to Second Amended and Restated Loan Facility Agreement and Guaranty dated as of July 1, 2011, by that certain Fourth Amendment to Second Amended and Restated Loan Facility Agreement and Guaranty dated as of May 16, 2012, by that certain Fifth Amendment to Second Amended and Restated Loan Facility Agreement and Guaranty dated as of December 13, 2012 and by that certain Sixth Amendment to Second Amended and Restated Loan Facility Agreement and Guaranty dated as of October 8, 2013 (as 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 amended by replacing the reference to “December 12, 2013” in subsection (a) of such Section with “December 11, 2014”.
(b) Exhibit B of the Loan Facility Agreement is amended by replacing Section 2.3(i) of such Exhibit in its entirety with the following:
(i) Upon Borrower’s execution of this Agreement and a Line of Credit Note and compliance with the terms of this Agreement ,and subject to Bank’s confirmation if requested by Xxxxx that Bank has a first priority security interest in the Collateral, Bank shall notify Borrower that Borrower may request Advances pursuant to the Line of Credit Commitment. Bank shall make such Advances into the FCTA for the sole purpose of honoring requests from Borrower, made through Xxxxx by fax, email or other electronic form of notification
to Xxxxx by 12:00 noon (Atlanta, Georgia time) on the last Business Day immediately prior to the 10th or the 25th day of each month, for SWIFT transfers to suppliers of Merchandise in payment of Approved Invoices, including any freight charges to the extent Xxxxx consents thereto, with Aaron’s consent, to Borrower’s own account for the payment of sales use taxes or, to the extent permitted by Xxxxx, for any other purpose. Borrower shall not use the FCTA for any purpose other than as contemplated by this Agreement. The maximum principal amount of Advances under the Line of Credit Commitment at any time outstanding shall not exceed the committed amount of the Line of Credit Commitment. Each Advance shall be in the amount of not less than $500.
(c) Exhibit B of the Loan Facility Agreement is amended by replacing Section 2.5(i) of such Exhibit in its entirety with the following:
(i) Upon Borrower’s execution of this Agreement and a Revolving Note and compliance with the terms of this Agreement and subject to Bank’s confirmation if requested by Xxxxx that Bank has a first priority security interest in the Collateral, Bank shall notify Borrower that Borrower may request Advances pursuant to the Revolving Commitment. Bank shall make such Advances into the FCTA for the sole purpose of honoring requests from Borrower, made through Xxxxx by fax, email or other electronic form of notification to Xxxxx by 12:00 noon (Atlanta, Georgia time) on the Business Day immediately preceding the 10th or the 25th day of each month, to purchase inventory or, to the extent permitted, by Xxxxx, for any other purpose. Borrower shall not use the FCTA for any purpose other than as contemplated by this Agreement. The maximum principal amount of Advances under the Revolving Commitment at any time outstanding shall not exceed the lesser of (A) the committed amount of the Revolving Commitment and (B) (1) the Borrowing Base, as most recently reported by Xxxxx to Bank pursuant to Section 2.5(iv) hereof minus (2) the outstanding principal amount of the Term Loan (such lesser amount herein referred to as the “Revolver Availability”). Each Advance shall be in the amount of not less than $500.
(d) Exhibit B of the Loan Facility Agreement is amended by adding the following Section 8.6 at the end of Section 8 of such Exhibit:
8.6 Debt. Create, incur, assume or permit to exist any Debt except:
(i) Loan Indebtedness;
(ii) other Debt of the Borrower in an aggregate principal amount not to exceed $25,000 at any time outstanding; and
(ii) Debt incurred to finance the acquisition of motor vehicles used in the normal course of business.
(e) Exhibit C of the Loan Facility Agreement is amended by replacing Section 2.3(i) of such Exhibit in its entirety with the following:
(i) Upon Borrower’s execution of this Agreement and a Line of Credit Note and compliance with the terms of this Agreement ,and subject to Bank’s confirmation if requested by Xxxxx that Bank has a first priority security interest in the Collateral, Bank
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shall notify Borrower that Borrower may request Advances pursuant to the Line of Credit Commitment. Bank shall make such Advances into the DDA Account for the sole purposes of honoring requests from Borrower, made through the Aaron’s Proprietary System, for ACH transfers to suppliers of Merchandise in payment of Approved Invoices, including any freight charges to the extent Xxxxx consents thereto or, with Aaron’s consent, for any other purpose. Borrower shall not use the DDA Account for any purpose other than as contemplated by this Agreement. The maximum principal amount of Advances under the Line of Credit Commitment at any time outstanding shall not exceed the committed amount of the Line of Credit Commitment. Each Advance shall be in the amount of not less than $500.
(f) Exhibit C of the Loan Facility Agreement is amended by replacing Section 2.5(i) of such Exhibit in its entirety with the following:
Upon Borrower’s execution of this Agreement and a Revolving Note and compliance with the terms of this Agreement and subject to Bank’s confirmation if requested by Xxxxx that Bank has a first priority security interest in the Collateral, Bank shall notify Borrower that Borrower may request Advances pursuant to the Revolving Commitment. Bank shall make such Advances into the DDA Account for the sole purposes of honoring requests from Borrower, made through the Aaron’s Proprietary System, for ACH transfers to suppliers of Merchandise in payment of Approved Invoices, including any freight charges to the extent Xxxxx consents thereto, with Aaron’s consent, to Borrower’s own account for the payment of sales use taxes or, with Aaron’s consent, for any other purpose. Borrower shall not use the DDA Account for any other purpose. The maximum principal amount of Advances under the Revolving Commitment at any time outstanding shall not exceed the lesser of (A) the committed amount of the Revolving Commitment and (B) the sum of the Borrowing Base minus the outstanding principal amount of the Term Loan, as most recently reported by Xxxxx to Bank pursuant to Section 2.5(iv) hereof (such lesser amount herein referred to as the “Revolver Availability”). Each Advance shall be in the amount of not less than $500.
(g) Exhibit C of the Loan Facility Agreement is amended by adding the following Section 8.6 at the end of Section 8 of such Exhibit:
8.6 Debt. Create, incur, assume or permit to exist any Debt except:
(i) Loan Indebtedness;
(ii) other Debt of the Borrower in an aggregate principal amount not to exceed $25,000 at any time outstanding; and
(ii) Debt incurred to finance the acquisition of motor vehicles used in the normal course of business.
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:
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(i) | executed counterparts to this Amendment from the Sponsor, the Servicer, all Guarantors and all Participants; |
(ii) | an executed amended and restated Fee Letter between the Sponsor and the Servicer, in form and substance satisfactory to the Servicer; |
(iii) | an executed amended and restated Servicing Agreement between the Sponsor and the Servicer in the form of Exhibit A hereto; |
(iv) | a certificate of the Secretary or Assistant Secretary of the Sponsor and each Guarantor, (A) attaching certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation of the Sponsor and the Guarantors, (B) certifying the name, title and true signature of each officer of the Sponsor or the Guarantor, as the case may be, executing the Amendment and (C) certifying that there have been no changes to the articles of incorporation or bylaws of the Sponsor or any Guarantor since the Effective Date; and |
(v) | reimbursement or payment of its reasonable costs and expenses incurred in connection with this Amendment (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Servicer). |
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;
(c) After giving effect to this Amendment, the representations and warranties contained in the Loan Facility Agreement and the other Operative Documents are true and correct in all material respects, and no Credit Event or Unmatured Credit Event has occurred and is continuing as of the date hereof; and
(d) After giving effect to this Amendment, all Participation Certificates previously issued remain in full force and effect.
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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 Operative 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 an Operative 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 reasonable 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:
AARON’S, INC.
By: /s/Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: 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
AARON’S PRODUCTION COMPANY, as
Guarantor
By: /s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
99 LTO, LLC, as Guarantor
By: AARON’S, INC., its Sole Manager
By: /s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President, Chief Financial Officer
[SIGNATURE PAGE TO SEVENTH AMENDMENT TO
SECOND AMENDED AND RESTATED LOAN FACILITY AGREEEMENT]
SERVICER:
SUNTRUST BANK
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Director
[SIGNATURE PAGE TO SEVENTH AMENDMENT TO
SECOND AMENDED AND RESTATED LOAN FACILITY AGREEEMENT]
PARTICIPANTS:
SUNTRUST BANK
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Director
[SIGNATURE PAGE TO SEVENTH AMENDMENT TO
SECOND AMENDED AND RESTATED LOAN FACILITY AGREEEMENT]
XXXXX FARGO BANK, N.A.
By: /s/Xxx Xxxxx
Name: Xxx Xxxxx
Title: Managing Director
[SIGNATURE PAGE TO SEVENTH AMENDMENT TO
SECOND AMENDED AND RESTATED LOAN FACILITY AGREEMENT]
REGIONS BANK
By: /s/Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
[SIGNATURE PAGE TO SEVENTH AMENDMENT TO
SECOND AMENDED AND RESTATED LOAN FACILITY AGREEMENT]
BRANCH BANKING AND TRUST COMPANY
By: /s/Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Assistant Vice President
[SIGNATURE PAGE TO SEVENTH AMENDMENT TO
SECOND AMENDED AND RESTATED LOAN FACILITY AGREEMENT]
BANK OF AMERICA, N.A.
By: /s/Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Vice President
[SIGNATURE PAGE TO SEVENTH AMENDMENT TO
SECOND AMENDED AND RESTATED LOAN FACILITY AGREEMENT]
EXHIBIT A
[To be filed with Annual Report on Form 10-K for year ended December 31, 2013].
