EXHIBIT 10(ff)
FIRST AMENDMENT AND WAIVER
AGREEMENT
This FIRST AMENDMENT AND WAIVER
AGREEMENT (this “Agreement” ), is made as of May
28, 2004, by and between AARON RENTS, INC. , a Georgia
corporation (together with its successors and assigns, the
“Company” ), AARON RENTS, INC. PUERTO
RICO , a Puerto Rico corporation (together with its successors
and assigns, “ARPR” ) and AARON INVESTMENT
COMPANY , a Delaware corporation (together with its successors
and assigns, “AIC” and, together with the
Company and ARPR, the “ Obligors ”) and each of
the Persons holding one or more Notes (defined below) on the
Effective Date (defined below) (collectively, the
“Noteholders” ), with respect to that certain
Note Purchase Agreement, dated as of August 15, 2002 (as in effect
immediately prior to giving effect to this Agreement, the
“Existing Note Purchase Agreement” and, as
amended pursuant to this Agreement and as may be further amended,
restated or otherwise modified from time to time, the
“Note Purchase Agreement” ), by and among the
Obligors and each of the Persons listed on Schedule A thereto
(collectively, the “Purchasers” ). Capitalized
terms used herein and not otherwise defined shall have the meanings
ascribed to them in the Existing Note Purchase
Agreement.
RECITALS:
A.
Pursuant to the Existing Note Purchase Agreement, the Obligors
authorized the issuance and sale of $50,000,000 aggregate principal
amount of their 6.88% Senior Notes, due August 15, 2009 (the
“Notes” ) to the Purchasers.
B.
Certain Events of Default have
occurred under the Existing Note Purchase Agreement as more fully
described herein.
C.
The Obligors have requested that the
Noteholders waive certain of their rights to take action against
the Obligors that have arisen as a result of the Existing Event of
Default (defined below), and the undersigned Noteholders are
agreeable, subject to the terms and conditions set forth below, to
waiving such rights.
D.
The Obligors have requested that the Noteholders amend certain
provisions of the Existing Note Purchase Agreement, and the
undersigned Noteholders are agreeable, subject to the terms and
conditions set forth below, to consenting to such
amendments.
E.
The Noteholders are the holders of all outstanding Notes as of the
date hereof.
AGREEMENT:
NOW THEREFORE,
for valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Obligors and the Noteholders agree as follows:
1.
WAIVER; AMENDMENTS.
1.1.
Waiver.
Subject to the satisfaction of the
conditions set forth in Section 3 hereof, each of the undersigned
Noteholders hereby waives its rights to take any action against the
Obligors based on any Event of Default (the “Existing
Event of Default” ) arising under paragraph 6I(b) of the
Note Purchase Agreement solely as a result of the failure of the
Company to be in compliance with such covenant for the 2003 fiscal
year due to the consummation by the Company of Acquisitions during
such fiscal year having total consideration in excess of the
limitations set forth in clause (e) of the definition of Permitted
Acquisitions. (such waiver herein referred to as the
“Waiver” ).
1.2.
Amendments to Existing Note Purchase
Agreement.
Subject to the satisfaction of the
conditions set forth in Section 3 hereof, the Existing Note
Purchase Agreement is hereby amended in the manner specified in
Exhibit 1.1 (such amendments herein referred to as the
“Amendments” ).
1.3.
Affirmation of Obligations under
Existing Note Purchase Agreement and Notes.
The Obligors hereby acknowledge and
affirm all of their respective obligations under the terms of the
Existing Note Purchase Agreement and the Notes. The
execution, delivery and effectiveness of this Agreement shall not
be deemed, except as expressly provided herein, (a) to operate as a
waiver of any right, power or remedy of any of the Noteholders
under the Existing Note Purchase Agreement or the Notes, nor
constitute a waiver of any provision thereunder, or (b) to
prejudice any rights which any Noteholder now has or may have in
the future under or in connection with the Note Purchase Agreement
or the Notes or under applicable law.
2.
WARRANTIES AND
REPRESENTATIONS.
To induce the Noteholders to enter
into this Agreement, each of the Obligors represents and warrants
to each of the Noteholders that as of the Effective Date (as
hereinafter defined):
2.1.
Corporate and Other Organization and
Authority.
(a)
Each Obligor
is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation, and
is duly qualified as a foreign corporation and is in good standing
in each jurisdiction in which such qualification is required by
law, other than those jurisdictions as to which the failure to be
so qualified or in good standing could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect; and
(b)
each of the
Obligors has the requisite corporate power and authority to execute
and deliver this Agreement and to perform its obligations
hereunder.
2.2.
Authorization, etc.
This Agreement has been duly
authorized by all necessary corporate action on the part of the
Obligors. Each of this Agreement, the Note Purchase Agreement
and the Notes constitutes a
2
legal, valid and binding obligation of the
Obligors, enforceable, in each case, against such Obligor in
accordance with its terms, except as such enforceability may be
limited by
(a)
applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors’ rights generally
and
(b)
general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
2.3.
No Conflicts, etc.
The execution and delivery by each
Obligor of this Agreement and the performance by such Obligor of
its obligations under each of this Agreement, the Note Purchase
Agreement and the Notes do not
