EXHIBIT 10(gg)
SECOND AMENDMENT TO NOTE PURCHASE
AGREEMENT
This SECOND AMENDMENT TO NOTE
PURCHASE AGREEMENT (this “Agreement” ), is
made as of July 27, 2005, 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, collectively, 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
amended by that certain First Amendment and Waiver Agreement, dated
as of May 28, 2004 and 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
Noteholders. 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 issued and sold fifty million
dollars ($50,000,000) in aggregate principal amount of its 6.88%
Senior Notes due August 15, 2009 (the
“Notes” ) to the Noteholders.
B.
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.
C.
The Noteholders are the holders of
all outstanding Notes, as of the date hereof, in the aggregate
principal amounts indicated on Annex 1 hereto.
AGREEMENT:
NOW THEREFORE,
for valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Obligors and the Noteholders agree as follows:
1.
AMENDMENTS.
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 A hereto (such amendments herein referred to as the
“Amendments” ).
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 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 conflict with, result in any breach
in any of the provisions of, constitute a default under, violate or
result in the creation of any Lien upon any property of such
Obligor under the provisions of:
(a)
any charter
document, constitutive document, agreement with shareholders or
members, bylaws or any other organizational or governing agreement
of such Obligor;
(b)
any agreement,
instrument or conveyance by which such Obligor or any of its
Subsidiaries or any of their respective properties may be bound or
affected; or
(c)
any statute,
rule or regulation or any order, judgment or award of any
court, tribunal or arbitrator by which such Obligor or any of its
Subsidiaries or any of their respective properties may be bound or
affected.
2.4.
Governmental Consent.
The execution and delivery by the
Obligors of this Agreement and the performance by the Obligors of
their respective obligations hereunder and under the Note Purchase
Agreement
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and the Notes do not require any consents,
approvals or authorizations of, or filings, registrations or
qualifications with, any Governmental Authority on the part of any
Obligor.
2.5.
Existence of Defaults.
Since December 31, 2004, no
event has occurred and no condition has existed that would
constitute a Default or an Event of Default under the Note Purchase
Agreement.
3.
CONDITIONS TO EFFECTIVENESS OF
AMENDMENTS.
The Amendments shall become
effective as of the date first written above (the
“Effective Date” ), provided that
(a) each of the Obligors shall have executed and delivered to
each of the Noteholders an original counterpart of this Agreement
and (b) all of the Noteholders shall have indicated their
agreement and written acceptance by executing and delivering the
applicable counterparts of this Agreement.
4.
MISCELLANEOUS.
4.1.
Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES
SHALL BE GOVERNED BY, THE INTERNAL LAWS OF THE STATE OF NEW YORK,
EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT
WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER
THAN SUCH STATE.
4.2.
Duplicate Originals.
Two or more duplicate originals of
this Agreement may be signed by the parties, each of which shall be
an original but all of which together shall constitute one and the
same instrument. This Agreement may be executed in one or
more counterparts and shall be effective when at least one
counterpart shall have been executed by each party hereto, and each
set of counterparts that, collectively, show execution by each
party hereto shall constitute one duplicate original.
Delivery of a facsimile of an executed signature page shall be
effective as delivery of an original.
4.3.
Waiver and Amendments.
Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated orally, or
by any action or inaction, but only by an instrument in writing
signed by each of the parties signatory hereto.
4.4.
Costs and Expenses.
Whether or not the Amendments become
effective, each of the Obligors confirms its obligation under
Paragraph 11B of the Note Purchase Agreement and agrees that, on
the Effective Date (or if an invoice is delivered subsequent to the
Effective Date or if the Amendments do not become effective,
promptly after receiving any statement or invoice
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therefor), it will pay all costs and expenses of
the Noteholders relating to this Agreement, including, but not
limited to, the statement for reasonable fees and disbursements of
the Noteholders’ special counsel presented to the Company on
the Effective Date. The Obligors will also promptly pay, upon
receipt thereof, each additional statement for reasonable fees and
disbursements of the Noteholders’ special counsel rendered
after the Effective Date in connection with this
Agreement.
4.5.
Successors and Assigns.
This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each
of the parties hereto. The provisions hereof are intended to
be for the benefit of the Noteholders and shall be enforceable by
any successor or assign of any such Noteholder, whether or not an
express assignment of rights hereunder shall have been made by such
Noteholder or its successors and assigns.
4.6.
Survival.
All warranties, representations,
certifications and covenants made by the Obligors in this Agreement
shall be considered to have been relied upon by the Noteholders and
shall survive the execution and delivery of this Agreement,
regardless of any investigation made by or on behalf of the
Noteholders.
4.7.
Part of Existing Note Purchase
Agreement; Future References, etc.
This Agreement shall be construed in
connection with and as a part of the Existing Note Purchase
Agreement and the Notes and, except as expressly amended by this
Agreement, all terms, conditions and covenants contained in the
Existing Note Purchase Agreement and the Notes are hereby ratified
and shall be and remain in full force and effect. Any and all
notices, requests, certificates and other instruments executed and
delivered after the execution and delivery of this Agreement may
refer to the Existing Note Purchase Agreement and the Notes without
making specific reference to this Agreement, but nevertheless all
such references shall include this Agreement unless the context
otherwise requires.
4.8.
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, po
