EXHIBIT 10(LL)
FIRST AMENDMENT TO LOAN FACILITY AGREEMENT AND GUARANTY
THIS FIRST AMENDMENT TO LOAN FACILITY AGREEMENT AND GUARANTY (this
"AMENDMENT"), is made and entered into as of September 27, 2004, 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, 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 1.1 of the Loan Facility Agreement is hereby amended by
replacing the definition of "MAXIMUM COMMITMENT AMOUNT" in its entirety with the
following definition:
"MAXIMUM COMMITMENT AMOUNT" shall mean $140,000,000.00, as such amount may
be reduced pursuant to Section 2.7, Section 2.8 or Section 15.2.
(b) 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
27, 2005 (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.
(c) Section 2.1 of the Loan Facility Agreement is hereby further amended by
replacing subsection (b) of such Section in its entirety with the following:
(b) Established 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
Established Franchisee Loan Commitments and to make Advances thereunder to such
Established Franchisees as may be designated by the Sponsor in its Funding
Approval Notices during a period commencing on the date hereof and ending on 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
($140,000,000.00) (the "ESTABLISHED 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.
(d) 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 First 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 or the Loan
Facility Agreement (including reasonable fees, charges and disbursements of King
& Spalding LLP, counsel to the Servicer), and (ii) each of the following
documents:
(a) executed counterparts to this Amendment from the Sponsor, each of the
Guarantors and the Participants;
(b) a favorable written opinion of Xxxxxxxxxx Xxxxxxxx, LLP, counsel for
Sponsor and Guarantors, in a form satisfactory to the Servicer and each
Participant and covering such matters relating to the transactions contemplated
hereby as the Servicer may reasonably request;
(c) a certificate of the Secretary or Assistant Secretary of each of
Sponsor and each Guarantor certifying (i) that the Articles of Incorporation and
Bylaws of Sponsor and each Guarantor, true and correct copies of which were
previously delivered in certified form to the
Servicer on May 28, 2004, pursuant to the Loan Facility Agreement, have not been
amended, restated, modified or revoked and remain in full force and effect as of
the date hereof, and (ii) the resolutions of the Board of Directors of each of
Sponsor and each Guarantor, respectively, approving this Amendment and the
transactions contemplated hereby;
(d) certificates from the Secretaries of State of such States of
incorporation certifying Sponsor's and each Guarantor's good standing as a
corporation in such State.
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/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Director
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Director
SOUTHTRUST BANK
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
REGIONS BANK
By: /s/ Xxxxxxx X. Xxx
------------------------------------
Name: Xxxxxxx X. Xxx
Title: Senior Vice President
BRANCH BANKING & TRUST CO.
By: /s/ Xxxx X. Xx Xxxxxxxx
------------------------------------
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 $32,941,176.46
SouthTrust Bank $28,823,529.40
Regions Bank $24,705,882.36
Branch Banking & Trust Co. $24,411,764.23
