SUBSIDIARY GUARANTEE AGREEMENT
Exhibit 10.2
THIS SUBSIDIARY GUARANTEE AGREEMENT (the “Agreement”), dated as of May 23, 2008, by
and among XXXXX RENTS, INC., a Georgia corporation (the “Borrower”), each of the
subsidiaries of the Borrower listed on Schedule I hereto (each such subsidiary
individually, a “Guarantor” and collectively, the “Guarantors”) and SUNTRUST BANK,
a Georgia banking corporation, as administrative agent (the “Administrative Agent”) for the
several banks and other financial institutions (the “Lenders”) from time to time party to
the Revolving Credit Agreement, dated as of the date hereof, by and among the Borrower, the
Lenders, the Administrative Agent, and SunTrust Bank, as Issuing Bank and as Swingline Lender (as
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”; capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement).
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to establish a revolving
credit facility in favor of the Borrower;
WHEREAS, each of the Guarantors is a direct or indirect Subsidiary of the Borrower and will
derive substantial benefit from the making of Loans by the Lenders and the issuance of Letters of
Credit by the Issuing Bank; and
WHEREAS, it is a condition precedent to the obligations of the Administrative Agent, the
Issuing Bank, the Swingline Lender, and the Lenders under the Credit Agreement that each Guarantor
execute and deliver to the Administrative Agent a Subsidiary Guarantee Agreement in the form
hereof, and each Guarantor wishes to fulfill said condition precedent;
NOW, THEREFORE, in order to induce Lenders to extend the Loans and the Issuing Bank to issue
Letters of Credit and to make the financial accommodations as provided for in the Credit Agreement
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. Guarantee.
Each Guarantor unconditionally guarantees, jointly with the other Guarantors and severally, as
a primary obligor and not merely as a surety, (i) the due and punctual payment of all Obligations,
including without limitation, (A) the principal of and premium, if any, and interest (including
interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, when and
as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or
otherwise, (B) each payment required to be made by the Borrower under the Credit Agreement in
B- 1
respect of any Letter of Credit, when and as due, including payments in respect of
reimbursement or disbursements, interest thereon and obligations to provide cash collateral, and
(C) all other monetary obligations, including fees, costs, expenses and indemnities, whether
primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred
during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding), of the Loan Parties to the
Administrative Agent and the Lenders under the Credit Agreement and the other Loan Documents,
(ii) the due and punctual performance of all covenants, agreements, obligations and liabilities of
the Loan Parties under or pursuant to the Credit Agreement and the other Loan Documents; (iii) the
due and punctual payment and performance of all Hedging Obligations between any Loan Party and any
Lender or Affiliate of any Lender, and (iv) all Treasury Management Obligations between any Loan
Party and any Lender or Affiliate of any Lender, together with all renewals, extensions,
modifications or refinancings of any of the foregoing (all the monetary and other obligations
referred to in the preceding clauses (i) through (iv) being collectively called the “Guaranteed
Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended
or renewed, in whole or in part, without notice to or further assent from such Guarantor, and that
such Guarantor will remain bound upon its guarantee notwithstanding any extension or renewal of any
Guaranteed Obligations.
Section 2. Obligations Not Waived.
To the fullest extent permitted by applicable law, each Guarantor waives presentment or
protest to, demand of or payment from the other Loan Parties of any of the Guaranteed Obligations,
and also waives notice of acceptance of its guarantee and notice of protest for nonpayment. To the
fullest extent permitted by applicable law, the obligations of each Guarantor hereunder shall not
be affected by (i) the failure of the Administrative Agent or any Lender to assert any claim or
demand or to enforce or exercise any right or remedy against the Borrower or any other Guarantor
under the provisions of the Credit Agreement, any other Loan Document or otherwise, (ii) any
rescission, waiver, amendment or modification of, or any release from any of the terms or
provisions of, this Agreement, any other Loan Document, any guarantee or any other agreement,
including with respect to any other Guarantor under this Agreement, or (iii) the failure to perfect
any security interest in, or the release of, any of the security held by or on behalf of the
Administrative Agent or any Lender.
Section 3. Guarantee of Payment.
Each Guarantor further agrees that its guarantee constitutes a guarantee of payment when due
and not of collection, and waives any right to require that any resort be had by the Administrative
Agent or any Lender to any of the security held for payment of the Guaranteed Obligations or to any
balance of any deposit account or credit on the books of the Administrative Agent or any Lender in
favor of the Borrower or any other Person.
Section 4. No Discharge or Diminishment of Guarantee.
The obligations of each Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than the indefeasible payment in full in cash of
the Guaranteed Obligations), including any claim of waiver, release, surrender, alteration or
compromise of any of the Guaranteed Obligations, and shall not be subject to any defense or setoff,
counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of
the foregoing, the obligations of each Guarantor hereunder shall not be discharged or impaired or
otherwise affected by the failure of the Administrative Agent or any Lender to assert any claim or
demand or to enforce any remedy under the Credit Agreement, any other Loan Document or any other
agreement, by any waiver or modification of any provision of any thereof, by any default, failure
or delay, willful or otherwise, in the performance of the Guaranteed Obligations, or by any other
act or omission that may or might in any manner or to the extent vary the risk of any Guarantor or
that would otherwise operate as a discharge of each Guarantor as a matter of law or equity (other
than the indefeasible payment in full in cash of all the Guaranteed Obligations).
Section 5. Defenses of Borrower Waived.
To the fullest extent permitted by applicable law, each Guarantor waives any defense based on
or arising out of any defense of any Loan Party or the unenforceability of the Guaranteed
Obligations or any part thereof from any cause, or the cessation from any cause of the liability of
any Loan Party, other than the final and indefeasible payment in full in cash of the Guaranteed
Obligations. The Administrative Agent and the Lenders may, at their election, foreclose on any
security held by one or more of them by one or more judicial or nonjudicial sales, accept an
assignment of any such security in lieu of foreclosure, compromise or adjust any part of the
Guaranteed Obligations, make any other accommodation with any other Loan Party or any other
guarantor, without affecting or impairing in any way the liability of any Guarantor hereunder
except to the extent the Guaranteed Obligations have been fully, finally and indefeasibly paid in
cash. Pursuant to applicable law, each Guarantor waives any defense arising out of any such
election even though such election operates, pursuant to applicable law, to impair or to extinguish
any right of reimbursement or subrogation or other right or remedy of such Guarantor against the
Borrower or any other Guarantor or guarantor, as the case may be, or any security.
Section 6. Agreement to Pay; Subordination.
In furtherance of the foregoing and not in limitation of any other right that the
Administrative Agent or any Lender has at law or in equity against any Guarantor by virtue hereof,
upon the failure of the Borrower or any other Loan Party to pay any Guaranteed Obligation when and
as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or
otherwise, each Guarantor hereby promises to and will forthwith pay, or cause to be paid, to the
Administrative Agent for the benefit of the Lenders in cash the amount of such unpaid Guaranteed
Obligation. Upon payment by
any Guarantor of any sums to the Administrative Agent, all rights of such Guarantor against
any Loan Party arising as a result thereof by way of right of subrogation, contribution,
reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of
payment to the prior indefeasible payment in full in cash of all the Guaranteed Obligations. In
addition, any indebtedness of any Loan Party now or hereafter held by any Guarantor is hereby
subordinated in right of payment to the prior payment in full in cash of the Guaranteed
Obligations. If any amount shall erroneously be paid to any Guarantor on account of (i) such
subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness
of any Loan Party, such amount shall be held in trust for the benefit of the Administrative Agent
and the Lenders and shall forthwith be paid to the Administrative Agent to be credited against the
payment of the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms
of the Loan Documents.
Section 7. Information.
Each Guarantor assumes all responsibility for being and keeping itself informed of other Loan
Parties’ financial condition and assets, and of all other circumstances bearing upon the risk of
nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that such
Guarantor assumes and incurs hereunder, and agrees that none of the Administrative Agent or the
Lenders will have any duty to advise any of the Guarantors of information known to it or any of
them regarding such circumstances or risks.
Section 8. Indemnity and Subrogation.
In addition to all such rights of indemnity and subrogation as the Guarantors may have under
applicable law (but subject to Section 6), the Borrower agrees that in the event a payment
shall be made by any Guarantor under this Agreement, the Borrower shall indemnify such Guarantor
for the full amount of such payment and such Guarantor shall be subrogated to the rights of the
person to whom such payment shall have been made to the extent of such payment.
Section 9. Contribution and Subrogation.
Each Guarantor (a “Contributing Guarantor”) agrees (subject to Section 6)
that, in the event a payment shall be made by any other Guarantor under this Agreement and such
other Guarantor (the “Claiming Guarantor”) shall not have been fully indemnified by the
Borrower as provided in Section 8, the Contributing Guarantor shall indemnify the Claiming
Guarantor in an amount equal to the amount of such payment multiplied by a fraction of which the
numerator shall be the net worth of the Contributing Guarantor on the date hereof and the
denominator shall be the aggregate net worth of all the Guarantors on the date hereof (or, in the
case of any Guarantor becoming a party hereto pursuant to Section 21, the date of the
Supplement hereto executed and delivered by such Guarantor). Any Contributing Guarantor making any
payment to a Claiming Guarantor pursuant to this Section 9 shall be subrogated to the
rights of such Claiming Guarantor under Section 8 to the extent of such payment.
Section 10. Subordination.
Notwithstanding any provision of this Agreement to the contrary, all rights of the Guarantors
under Section 8 and Section 9 and all other rights of indemnity, contribution or
subrogation under applicable law or otherwise shall be fully subordinated to the indefeasible
payment in full in cash of the Guaranteed Obligations. No failure on the part of the Borrower or
any Guarantor to make the payments required under applicable law or otherwise shall in any respect
limit the obligations and liabilities of any Guarantor with respect to its obligations hereunder,
and each Guarantor shall remain liable for the full amount of the obligations of such Guarantor
hereunder.
Section 11. Representations and Warranties.
Each Guarantor represents and warrants as to itself that all representations and warranties
relating to it (as a Subsidiary of the Borrower) contained in the Credit Agreement are true and
correct.
Section 12. Termination.
The guarantees made hereunder (i) shall terminate when all the Guaranteed Obligations (other
than those Guaranteed Obligations relating to the Hedging Obligations) have been paid in full in
cash and the Lenders have no further commitment to lend under the Credit Agreement, the LC Exposure
has been reduced to zero and the Issuing Bank has no further obligation to issue Letters of Credit
under the Credit Agreement and (ii) shall continue to be effective or be reinstated, as the case
may be, if at any time payment, or any part thereof, of any Guaranteed Obligation is rescinded or
must otherwise be restored by any Lender or any Guarantor upon the bankruptcy or reorganization of
the Borrower, any Guarantor or otherwise. In connection with the foregoing, the Administrative
Agent shall execute and deliver to such Guarantor or Guarantor’s designee, at such Guarantor’s
expense, any documents or instruments, in form reasonably satisfactory to the Administrative Agent,
which such Guarantor shall reasonably request from time to time to evidence such termination and
release.
Section 13. Binding Effect; Several Agreement; Assignments.
Whenever in this Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants, promises and
agreements by or on behalf of the Guarantors that are contained in this Agreement shall bind and
inure to the benefit of each party hereto and their respective successors and assigns. This
Agreement shall become effective as to any Guarantor when a counterpart hereof executed on behalf
of such Guarantor shall have been delivered to the Administrative Agent, and a counterpart hereof
shall have been executed on behalf of the Administrative Agent, and thereafter shall be binding
upon such Guarantor and the Administrative Agent and their respective successors and assigns, and
shall inure to the benefit of such Guarantor, the Administrative Agent and the Lenders, and their
respective successors and assigns, except that no Guarantor shall have the right to assign its
rights or obligations hereunder or any interest herein (and any such
attempted assignment shall be void). If all of the capital stock of a Guarantor is sold,
transferred or otherwise disposed of pursuant to a transaction permitted by the Credit Agreement,
such Guarantor shall be released from its obligations under this Agreement without further action.
This Agreement shall be construed as a separate agreement with respect to each Guarantor and may be
amended, modified, supplemented, waived or released with respect to any Guarantor without the
approval of any other Guarantor and without affecting the obligations of any other Guarantor
hereunder.
Section 14. Waivers; Amendment.
(a) No failure or delay of the Administrative Agent of any kind in exercising any power, right
or remedy hereunder and no course of dealing between any Guarantor on the one hand the and
Administrative Agent or any holder of any Note on the other hand shall operate as a waiver thereof,
nor shall any single or partial exercise of any such power, right or remedy hereunder, under any
other Loan Document or under any Hedging Document, or any abandonment or discontinuance of steps to
enforce such a power, right or remedy, preclude any other or further exercise thereof or the
exercise of any other power, right or remedy. The rights and of the Administrative Agent hereunder
and of the Lenders under the other Loan Documents and the Hedging Documents, as applicable, are
cumulative and are not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of this Agreement or consent to any departure by any Guarantor therefrom
shall in any event be effective unless the same shall be permitted by subsection (b) below, and
then such waiver and consent shall be effective only in the specific instance and for the purpose
for which given. No notice or demand on any Guarantor in any case shall entitle such Guarantor to
any other or further notice in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to a written agreement entered into between the Guarantors with respect to which such
waiver, amendment or modification relates and the Administrative Agent, with the prior written
consent of the Required Lenders (except as otherwise provided in the Credit Agreement).
Section 15. Notices.
All communications and notices hereunder shall be in writing and given as provided in Section
10.1 of the Credit Agreement. All communications and notices hereunder to each Guarantor shall be
given to it at its address set forth on Schedule I attached hereto.
Section 16. Severability.
Any provision of this Agreement held to be illegal, invalid or unenforceable in any
jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of such illegality,
invalidity or unenforceability without affecting the legality, validity or enforceability of the
remaining provisions hereof or thereof; and the illegality, invalidity
or unenforceability of a particular provision in a particular jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction
Section 17. Counterparts; Integration.
This Agreement may be executed in counterparts, each of which shall constitute an original,
but all of which when taken together shall constitute a single contract (subject to
Section 13), and shall become effective as provided in Section 13. Delivery of an
executed signature page to this Agreement by facsimile transmission shall be as effective as
delivery of a manually executed counterpart of this Agreement. This Agreement constitutes the
entire agreement among the parties hereto regarding the subject matters hereof and supersedes all
prior agreements and understandings, oral or written, regarding such subject matter.
Section 18. Rules of Interpretation.
The rules of interpretation specified in Section 1.4 of the Credit Agreement shall be
applicable to this Agreement.
Section 19. Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be construed in accordance with and be governed by the law (without
giving effect to the conflict of law principles thereof) of the State of Georgia.
(b) Each Guarantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any Georgia State court or Federal court of the
United States of America sitting in Xxxxxx County, Georgia, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this Agreement or any other Loan
Document any Hedging Document or the transactions contemplated hereby or thereby, or for
recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or proceeding may be heard and
determined in such Georgia state court or, to the extent permitted by applicable law, such Federal
court. Each Guarantor agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement shall affect any right that the Administrative
Agent, the Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating
to this Agreement or the other Loan Documents against any Guarantor or its properties in the courts
of any jurisdiction.
(c) Each Guarantor irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to the laying of
venue of any such suit, action or proceeding described in paragraph (b) of this Section and brought
in any court referred to in paragraph (b) of this Section. Each party hereto irrevocably waives,
to the fullest extent permitted by applicable law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) Each Guarantor irrevocably consents to the service of process in the manner provided for
notices in Section 10.1 of the Credit Agreement. Nothing in this Agreement will affect the right
of any party to this Agreement to serve process in any other manner permitted by law.
Section 20. Waiver of Jury Trial.
EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY HEDGING DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO
(i) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER, AND (ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND THE HEDGING DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 21. Additional Guarantors.
Pursuant to Section 5.10 of the Credit Agreement, each Subsidiary Loan Party that was not in
existence on the date of the Credit Agreement is required to enter into this Agreement as a
Guarantor upon becoming a Subsidiary Loan Party. Upon execution and delivery after the date hereof
by the Administrative Agent and such Subsidiary of an instrument in the form of Annex 1,
such Subsidiary shall become a Guarantor hereunder with the same force and effect as if originally
named as a Guarantor herein. The execution and delivery of any instrument adding an additional
Guarantor as a party to this Agreement shall not require the consent of any other Guarantor
hereunder. The rights and obligations of each Guarantor hereunder shall remain in full force and
effect notwithstanding the addition of any new Guarantor as a party to this Agreement.
Section 22. Right of Setoff.
If an Event of Default shall have occurred and be continuing, each Lender and the Issuing Bank
are hereby authorized at any time and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand, provisional or final)
at any time held and other Indebtedness at any time owing by such Lender or the Issuing Bank to or
for the credit or the account of any Guarantor against any or all the obligations of such Guarantor
now or hereafter existing under this Agreement, the other Loan Documents and the Hedging Documents
held by such Lender or the Issuing Bank, irrespective of whether or not such Person shall have made
any demand under this Agreement, any other Loan Document or any Hedging
Document and although such obligations may be unmatured. The rights of each Lender and the
Issuing Bank under this Section 22 are in addition to other rights and remedies (including
other rights of setoff) that such Lender or the Issuing Bank, as the case may be, may have.
Section 23. Savings Clause.
(a) It is the intent of each Guarantor and the Administrative Agent that each Guarantor’s
maximum obligations hereunder shall be, but not in excess of:
(i) in a case or proceeding commenced by or against any Guarantor under the provisions
of Title 11 of the United States Code, 11 U.S.C. §§101 et seq. (the “Bankruptcy
Code”) on or within two years from the date on which any of the Guaranteed Obligations
are incurred, the maximum amount which would not otherwise cause the Guaranteed Obligations
(or any other obligations of such Guarantor owed to the Administrative Agent or the
Lenders) to be avoidable or unenforceable against such Guarantor under (i) Section 548 of
the Bankruptcy Code or (ii) any state fraudulent transfer or fraudulent conveyance act or
statute applied in such case or proceeding by virtue of Section 544 of the Bankruptcy Code;
or
(ii) in a case or proceeding commenced by or against any Guarantor under the
Bankruptcy Code subsequent to two years from the date on which any of the Guaranteed
Obligations are incurred, the maximum amount which would not otherwise cause the Guaranteed
Obligations (or any other obligations of such Guarantor to the Administrative Agent or the
Lenders) to be avoidable or unenforceable against such Guarantor under any state fraudulent
transfer or fraudulent conveyance act or statute applied in any such case or proceeding by
virtue of Section 544 of the Bankruptcy Code; or
(iii) in a case or proceeding commenced by or against any Guarantor under any law,
statute or regulation other than the Bankruptcy Code (including, without limitation, any
other bankruptcy, reorganization, arrangement, moratorium, readjustment of debt,
dissolution, liquidation or similar debtor relief laws), the maximum amount which would not
otherwise cause the Guaranteed Obligations (or any other obligations of such Guarantor to
the Administrative Agent or the Lenders) to be avoidable or unenforceable against such
Guarantor under such law, statute or regulation including, without limitation, any state
fraudulent transfer or fraudulent conveyance act or statute applied in any such case or
proceeding.
(b) The substantive laws under which the possible avoidance or unenforceability of the
Guaranteed Obligations (or any other obligations of such Guarantor to the Administrative Agent or
the Lenders) as may be determined in any case or proceeding shall hereinafter be referred to as the
“Avoidance Provisions”. To the extent set forth in Section 23(a)(i), (ii),
and (iii), but only to the extent that the Guaranteed Obligations would otherwise be
subject to avoidance or found unenforceable
under the Avoidance Provisions, if any Guarantor is not deemed to have received valuable
consideration, fair value or reasonably equivalent value for the Guaranteed Obligations, or if the
Guaranteed Obligations would render such Guarantor insolvent, or leave such Guarantor with an
unreasonably small capital to conduct its business, or cause such Guarantor to have incurred debts
(or to have intended to have incurred debts) beyond its ability to pay such debts as they mature,
in each case as of the time any of the Guaranteed Obligations are deemed to have been incurred
under the Avoidance Provisions and after giving effect to the contribution by such Guarantor, the
maximum Guaranteed Obligations for which such Guarantor shall be liable hereunder shall be reduced
to that amount which, after giving effect thereto, would not cause the Guaranteed Obligations (or
any other obligations of such Guarantor to the Administrative Agent or the Lenders), as so reduced,
to be subject to avoidance or unenforceability under the Avoidance Provisions.
This Section 23 is intended solely to preserve the rights of the Administrative Agent
and the Lenders hereunder to the maximum extent that would not cause the Guaranteed Obligations of
such Guarantor to be subject to avoidance or unenforceability under the Avoidance Provisions, and
neither the Guarantors nor any other Person shall have any right or claim under this
Section 23 as against the Administrative Agent or Lenders that would not otherwise be
available to such Person under the Avoidance Provisions.
(signatures follow)
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and
year first above written.
| XXXXX INVESTMENT COMPANY, as Guarantor |
||||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||||
| Name: Xxxxxxx X. Xxxxxxxxx | ||||||
| Title: Vice President and Treasurer | ||||||
| XXXXX RENTS, INC., as Borrower |
||||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||||
| Name: Xxxxxxx X. Xxxxxxxxx | ||||||
| Title: Executive Vice President and Chief | ||||||
| Financial Officer | ||||||
[SIGNATURE
PAGE TO SUBSIDIARY GUARANTEE AGREEMENT]
SUNTRUST BANK, as |
||
Administrative Agent |
||
By |
/s/ Xxxxx Xxxxxx | |
Title: Vice President |
||
[SIGNATURE
PAGE TO SUBSIDIARY GUARANTEE AGREEMENT]
SCHEDULE I TO THE
SUBSIDIARY GUARANTEE AGREEMENT
SUBSIDIARY GUARANTEE AGREEMENT
| Guarantor(s) | Address | |
Xxxxx Investment Company
|
1100 Xxxxx Building | |
| 000 Xxxx Xxxxx Xxxxx Xxxx, XX | ||
| Xxxxxxx, XX 00000-0000 | ||
| Attn: Xxx Xxxxxxxxx |
ANNEX 1
to
to
SUPPLEMENT NO. dated as of
, to the Subsidiary Guarantee Agreement, dated as
of May 23, 2008 (the “Guarantee Agreement”), among XXXXX RENTS, INC., a Georgia corporation
(the “Borrower”), each of the subsidiaries of the Borrower listed on Schedule I
thereto (each such subsidiary individually, a “Guarantor” and collectively, the
“Guarantors”) and SUNTRUST BANK, a Georgia banking corporation, as administrative agent
(the “Administrative Agent”) for the Lenders (as defined in the Credit Agreement referred
to below).
Reference is made to the Revolving Credit Agreement, dated as of May 23, 2008 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among the
Borrower, the lenders from time to time party thereto (the “Lenders”) and SunTrust Bank, as
Administrative Agent and issuing bank (in such capacity, the “Issuing Bank”).
Capitalized terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Guarantee Agreement and the Credit Agreement.
The Guarantors have entered into the Guarantee Agreement in order to induce the Lenders to
make Loans and the Issuing Bank to issue Letters of Credit. Pursuant to Section 5.10 of the Credit
Agreement, each Subsidiary Loan Party that was not in existence or not a Guarantor on the date of
the Credit Agreement is required to enter into the Guarantee Agreement as a Guarantor upon becoming
a Subsidiary Loan Party. Section 21 of the Guarantee Agreement provides that additional
Subsidiaries of the Borrower may become Guarantors under the Guarantee Agreement by execution and
delivery of an instrument in the form of this Supplement. The undersigned Subsidiary of the
Borrower (the “New Guarantor”) is executing this Supplement in accordance with the
requirements of the Credit Agreement to become a Guarantor under the Guarantee Agreement in order
to induce the Lenders to make additional Loans and the Issuing Bank to issue additional Letters of
Credit and as consideration for Loans previously made and Letters of Credit previously issued.
Accordingly, the Administrative Agent and the New Guarantor agree as follows:
Section 1. Joinder.
In accordance with Section 21 of the Guarantee Agreement, the New Guarantor by its
signature below becomes a Guarantor under the Guarantee Agreement with the same force and effect as
if originally named therein as a Guarantor and the New Guarantor hereby (i) agrees to all the terms
and provisions of the Guarantee Agreement applicable to it as Guarantor thereunder and
(ii) represents and warrants that the representations and warranties made by it as a Guarantor
thereunder are true and correct
on and as of the date hereof. Each reference to a Guarantor in the Guarantee Agreement shall
be deemed to include the New Guarantor. The Guarantee Agreement is hereby incorporated herein by
reference.
Section 2. Representations and Warranties.
The New Guarantor represents and warrants to the Administrative Agent and the Lenders that
this Supplement has been duly authorized, executed and delivered by it and that each of this
Supplement and the Guaranty Agreement constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms.
Section 3. Binding Effect.
This Supplement shall become effective when it shall have been executed by the New Guarantor
and thereafter shall be binding upon the New Guarantor and shall inure to the benefit of the
Administrative Agent and the Lenders. Upon the effectiveness of this Supplement, this Supplement
shall be deemed to be a part of and shall be subject to all the terms and conditions of the
Guarantee Agreement. The New Guarantor shall not have the right to assign its rights hereunder or
any interest herein without the prior written consent of the Lenders.
Section 4. Governing Law.
THIS SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF) OF THE STATE OF GEORGIA
Section 5. Execution in Counterparts.
This Supplement may be executed in any number of counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall constitute one and the same
agreement.
Section 6. Notices to New Guarantor.
All communications and notices hereunder shall be in writing and given as provided in
Section 15 of the Guarantee Agreement. All communications and notices hereunder to the New
Guarantor shall be given to it at the address set forth under its signature below, with a copy to
the Borrower.
(signatures follow)
IN WITNESS WHEREOF, the New Guarantor and the Administrative Agent have duly executed this
Supplement to the Guarantee Agreement as of the day and year first above written.
| [NAME OF NEW GUARANTOR] | ||||||
| By | ||||||
| Name: | ||||||
| Title: | ||||||
| Address: | ||||||
| SUNTRUST BANK, as | ||||||
| Administrative Agent | ||||||
| By | ||||||
| Name: | ||||||
| Title: | ||||||
