EXHIBIT 10.26
AMENDMENT NO. 6 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 6 TO CREDIT AGREEMENT (the "Amendment") is dated as
of October 5, 2001, and is made by and among RENT-WAY, INC., a Pennsylvania
corporation, for itself and as successor by merger to Rentavision, Inc., a New
York corporation (the "Borrower"), RENT-WAY OF TTIG, L.P., an Indiana limited
partnership (the "Co-Borrower"), each of the GUARANTORS, each of the LENDERS (as
defined in the Credit Agreement defined below), NATIONAL CITY BANK OF
PENNSYLVANIA in its capacity as administrative agent for the Lenders under the
Credit Agreement (hereinafter referred to in such capacity as the
"Administrative Agent"), BANK OF AMERICA, N.A., in its capacity as documentation
agent for the Lenders, and XXXXXX TRUST AND SAVINGS BANK, in its capacity as
syndication agent.
W I T N E S S E T H:
WHEREAS, the parties hereto are parties to that certain Credit
Agreement dated as of September 23, 1999, as amended by Amendment No. 1 thereto
dated as of November 17, 1999, Amendment No. 2 thereto dated as of December 6,
1999, Amendment No. 3 thereto dated as of December 7, 1999 and Amendment No. 4
dated as of June 28, 2000, and Amendment No. 5 dated as of November 16, 2000
(collectively, the "Credit Agreement"), pursuant to which the Lenders provided
to the Borrower and the Co-Borrower a revolving credit facility in the maximum
principal amount of $114,444,444.46, Term Loans A in the principal amount of
$143,055,555.54 and Term Loans B in the principal amount of $177,500,000.00;
WHEREAS, the Borrower, the Co-Borrower, the Banks and the
Administrative Agent desire to amend and restate the Credit Agreement as
hereinafter provided.
NOW, THEREFORE, the parties hereto, in consideration of their
mutual covenants and agreements hereinafter set forth and intending to be
legally bound hereby, covenant and agree as follows:
1. Definitions.
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Defined terms used herein unless otherwise defined herein
shall have the meanings ascribed to them in the Credit Agreement as amended by
this Amendment.
2. Amendment and Restatement of Credit Agreement
and Related Matters.
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(a) Articles I through XI. The parties hereto do hereby
consent to the amendment and restatement of the recitals and Articles I through
XI to the Credit Agreement as set forth on Exhibit 1 hereto and the Schedules to
the Credit Agreement are hereby replaced by the Schedules set forth in Exhibit
1.
(b) Exhibits. Each of the exhibits listed below is hereby
amended and restated to read as set forth on the exhibit attached
hereto:
EXHIBIT 1.1(S)(1) SECURITY AGREEMENT
EXHIBIT 8.3.4 QUARTERLY COMPLIANCE CERTIFICATE
The following new Exhibit is hereby added to the Credit Agreement in the form
attached hereto as exhibits hereto bearing the name and numerical reference set
forth below:
EXHIBIT 8.1.14 WARRANT AGREEMENT
3. Conditions of Effectiveness of Amendment
and Restatement of Credit Agreement and Related Matters.
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The effectiveness of the Amendment and Restatement of the
Credit Agreement and the effectiveness of the other matters set forth in Section
2 hereof are expressly conditioned upon satisfaction of each of the following
conditions precedent:
(a) Representations and Warranties; No Defaults. The
representations and warranties of the Loan Parties contained in Article VI of
the Credit Agreement shall be true and accurate on the date hereof with the same
effect as though such representations and warranties had been made on and as of
such date (except representations and warranties which relate solely to an
earlier date or time, which representations and warranties shall be true and
correct on and as of the specific dates or times referred to therein), and the
Loan Parties shall have performed and complied with all covenants and conditions
under the Loan Documents and hereof; no Event of Default or Potential Default
under the Credit Agreement and the other Loan Documents shall have occurred and
be continuing or shall exist other than those specific Events of Default and
Potential Defaults which were waived by the Lenders in accordance with the terms
of Section 7.1.16 of the Credit Agreement, as set forth in this Amendment; and
an Authorized Officer shall have delivered to the Administrative Agent for the
benefit of each Lender a duly executed certificate dated the date hereof
certifying as to the items in this Section 3(a).
(b) Organization, Authorization and Incumbency. There shall
be delivered to the Administrative Agent for the benefit of each Lender a
certificate, dated as of the date hereof and signed by the Secretary or an
Assistant Secretary of the Borrower, the Co-Borrower and each Guarantor,
certifying as appropriate as to:
(i) all action taken by such party in connection with
this Amendment and the other Loan Documents;
(ii) the names of the officer or officers authorized to
sign this Amendment and the other documents executed and delivered in connection
herewith and described in this Section 3 and the true signatures of such officer
or officers and, specifying the Authorized Officers permitted to act on behalf
of the applicable Loan Parties for purposes of the Loan Documents and the true
signatures of such officers, on which the Administrative Agent and each Lender
may conclusively rely; and
(iii) copies of its organizational documents, including
its certificate of incorporation and bylaws if it is a corporation, its
certificate of partnership and partnership agreement if it is a partnership, and
its certificate of organization and limited liability company operating
agreement if it is a limited liability company, in each case as in effect on the
date hereof, certified by the appropriate state official where such documents
are filed in a state office together with certificates from the appropriate
state officials as to the continued existence and good standing of the Borrower,
the Co-Borrower and each Guarantor in each state where organized.
(c) Opinions of Counsel. There shall be delivered to the
Administrative Agent for the benefit of each Lender a written opinion dated the
date hereof of Xxxxxxx Xxxx LLP and Xxxxxx X. XxXxxx, counsel and general
counsel, respectively of the Loan Parties, such opinions to be in form and
substance satisfactory to the Administrative Agent.
(d) Security Agreement. The Borrower, the Co-Borrower and
the Guarantors shall have executed and delivered to the Administrative Agent for
the benefit of the Lenders, the Security Agreement in form and substance
satisfactory to the Administrative Agent, together with all appropriate UCC-1
financing statements necessary to perfect and continue the perfection of the
Prior Security Interest of the Administrative Agent for the benefit of the
Lenders in the UCC Collateral pledged thereby.
(e) UCC Financing Statements. The Loan Parties shall have
delivered to the Administrative Agent appropriate UCC financing statements and
such other documents requested in connection with the due diligence of the
Administrative Agent and the Lenders and such schedules and other documents
required by the amended and restated Articles I through XI attached as Exhibit 1
to this Amendment.
(f) Insurance Certificates. The Loan Parties shall have
delivered to the Administrative Agent (i) an original certificate of insurance
signed by the Loan Parties' independent insurance broker describing and
certifying as to the existence of the insurance on the Collateral in accordance
with the requirements of the Credit Agreement and the other Loan Documents, all
in scope, form and substance acceptable to the Administrative Agent, including,
without limitation, an endorsement specifying the Administrative Agent and the
Lenders as an additional insured, and lender loss payee as their interests may
appear, and (ii) a summary schedule indicating all insurance then in force with
respect to the Loan Parties.
(g) Fees and Expenses. The Borrower and the Co-Borrower
shall pay or cause to be paid (i) to the Administrative Agent for the account of
each Lender which has executed and delivered to the Administrative Agent this
Amendment on or before 5:00 p.m. Pittsburgh time on October 4, 2001, a fee (the
"Amendment Fee") payable to each such Lender, in an amount equal to such
Lender's Commitment multiplied by .0050, and (ii) all other costs and expenses
accrued through the date hereof and the costs and expenses of the Administrative
Agent including, without limitation, reasonable fees of the Administrative
Agent's counsel in connection with this Amendment.
(h) Consents. All consents required to effectuate the
transactions contemplated hereby shall have been obtained and copies thereof
shall have been delivered to the Administrative Agent for the benefit of the
Lenders.
(i) No Material Adverse Change. On the date hereof there
shall have been no Material Adverse Change and since June 30, 2001, no Material
Adverse Change shall have occurred with respect to the operations or financial
condition of the Loan Parties.
(j) Litigation. Except as disclosed in the schedules to the
Credit Agreement, on the date hereof no action, proceeding, investigation,
regulation or legislation shall have been instituted, threatened or proposed
before any court, governmental agency or legislative body to enjoin, restrain or
prohibit, or to obtain damages in respect of, the Credit Agreement, or any Loan
Documents or the consummation of the transactions contemplated hereby or which,
in the Administrative Agent's reasonable discretion, could result in a Material
Adverse Change.
(k) Confirmation of Guaranty. Each of the Guarantors, by
its execution below of this Amendment, hereby confirms its continuing
obligations under the Guaranty Agreement and the other Loan Documents to which
it is a party or to which it joined pursuant to a Guarantor Joinder, and each of
the Guarantors hereby confirms its continuing obligations under the Guaranty by
execution and delivery of this Amendment. Each of the Guarantors represents and
warrants that it is a party to the Guaranty Agreement, either by execution of
the Guaranty Agreement or by joinder to the Guaranty Agreement in accordance
with the provisions of Section 11.18 of the Credit Agreement.
(l) Legal Details; Counterparts. All legal details and
proceedings in connection with the transactions contemplated by this Amendment
shall be in form and substance satisfactory to the Administrative Agent, the
Administrative Agent shall have received from the Loan Parties and the Required
Lenders an executed original of this Amendment and the Administrative Agent
shall have received all such other counterpart originals or certified or other
copies of such documents and proceedings in connection with such transactions,
in form and substance satisfactory to the Administrative Agent.
4. Release; No Discharge.
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As additional consideration for the Administrative Agent and
the Lenders entering into this Amendment, the Borrower, the Co-Borrower and the
Guarantors each hereby fully and unconditionally releases and forever discharges
the Administrative Agent and the Lenders, their agents, employees, directors,
officers, attorneys, branches, affiliates, subsidiaries, successors and assigns
and all persons, firms, corporations and organizations acting on any of their
behalves (the "Released Parties") of and from any and all claims, liabilities,
demands, obligations, damages, losses, actions and causes of action whatsoever
which the Borrower, the Co-Borrower and the Guarantors may now have or claim to
have on account of or in any way affecting, concerning or arising out of or
founded upon this Amendment, the Credit Agreement, the Forbearance Agreement
dated December 18, 2000, as amended, among the parties hereto (the "Forbearance
Agreement"), or any or all of the Loan Documents against the Administrative
Agent, any Lender or any other Released Parties as of the date hereof, whether
presently known or unknown and of any nature and extent whatsoever, including,
without limitation, all such loss or damage of any kind heretofore sustained or
that may arise as a consequence of the dealings, discussions or negotiations
between or among the parties up to and including the date hereof, including but
not limited to, the administration or enforcement of the Credit Agreement, the
Forbearance Agreement, the Loans, the Notes, the Obligations, or any of the Loan
Documents.
5. Force and Effect.
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Except as otherwise expressly modified by this Amendment and
the Loan Documents executed and delivered in connection herewith, the Credit
Agreement and the other Loan Documents are hereby ratified and confirmed and
shall remain in full force and effect after the date hereof.
6. Governing Law.
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This Amendment shall be deemed to be a contract under the laws
of the Commonwealth of Pennsylvania and for all purposes shall be governed by
and construed and enforced in accordance with the internal laws of the
Commonwealth of Pennsylvania without regard to its conflict of laws principles.
7. Effective Date; Certification of the Borrower.
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This Amendment shall be dated as of and shall be binding,
effective and enforceable upon the date of (i) satisfaction of all conditions
set forth in Section 3 hereof and (ii) receipt by the Administrative Agent of
duly executed original counterparts of this Amendment from the Loan Parties and
the Required Lenders, and from and after such date this Amendment shall be
binding upon the Borrower, the Co-Borrower, each Guarantor, each Lender and the
Administrative Agent, and their respective successors and assigns permitted by
the Credit Agreement.
8. No Novation.
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This Amendment amends and restates the Credit Agreement, but
is not intended to constitute, and does not constitute, a novation or
satisfaction of the Obligations of the Borrower, the Co-Borrower and the
Guarantors under the Credit Agreement.
[INTENTIONALLY BLANK]
[SIGNATURE PAGE 1 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
IN WITNESS WHEREOF, the parties hereto, intending to be
legally bound hereby, have caused this Amendment No. 6 to Credit Agreement to be
executed and delivered as of the day and year first above written.
RENT-WAY, INC., "Borrower"
By:
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Name: Xxxxxxx X. XxXxxxxxx
Title: Vice President
[Seal]
RENT-WAY OF TTIG, L.P., "Co-Borrower"
By: Rent-Way Developments, Inc.,
its General Partner
By:
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Name: Xxxxxxx X. XxXxxxxxx
Title: Vice President
[Seal]
ACTION RENT-TO-OWN HOLDINGS OF
SOUTH CAROLINA, INC., "Guarantor"
By:
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Name: Xxxxxxx X. XxXxxxxxx
Title: Vice President
[Seal]
[SIGNATURE PAGE 2 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
RENT-WAY OF TOMORROW, INC.
"Guarantor"
By:
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Name: Xxxxxxx X. XxXxxxxxx
Title : Vice President
[Seal]
RENT-WAY OF MICHIGAN, INC.
"Guarantor"
By:
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Name: Xxxxxxx X. XxXxxxxxx
Title: Vice President
[Seal]
RENT-WAY DEVELOPMENTS, INC.
"Guarantor"
By:
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Name: Xxxxxxx X. XxXxxxxxx
Title: Vice President
[Seal]
[SIGNATURE PAGE 3 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
NATIONAL CITY BANK OF PENNSYLVANIA,
as Administrative Agent and as a Lender
By:
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Title:
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[SIGNATURE PAGE 4 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
XXXXXX TRUST AND SAVINGS BANK,
as a Syndication Agent and as a Lender
By:
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Title:
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BANK OF MONTREAL
By:
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Title:
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[SIGNATURE PAGE 5 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
BANK OF AMERICA, N.A.,
as Documentation Agent and as a Lender
By:
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Title:
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[SIGNATURE PAGE 6 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
LASALLE BANK NATIONAL ASSOCIATION
By:
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Title:
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[SIGNATURE PAGE 7 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
SUNTRUST BANK
By:
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Title:
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[SIGNATURE PAGE 8 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
MANUFACTURERS AND TRADERS TRUST COMPANY
By:
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Title:
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[SIGNATURE PAGE 9 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
FIRSTAR BANK, NATIONAL ASSOCIATION
By:
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Title:
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[SIGNATURE PAGE 10 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
PNC BANK, NATIONAL ASSOCIATION
By:
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Title:
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[SIGNATURE PAGE 11 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
FLEET NATIONAL BANK,
successor by merger to Fleet Bank, N.A.
By:
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Title:
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[SIGNATURE PAGE 12 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
FIRST DOMINION FUNDING II
By:
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Title:
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[SIGNATURE PAGE 13 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
FRANKLIN FLOATING RATE TRUST
By:
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Title:
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[SIGNATURE PAGE 14 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
XXXXXX FINANCIAL
By:
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Title:
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[SIGNATURE PAGE 15 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
ARCHIMEDES FUNDING II, LTD.
By: ING Capital Advisors, LLC
as Collateral Manager
By:
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Title:
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[SIGNATURE PAGE 16 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
ARCHIMEDES FUNDING III, LTD.
By: ING Capital Advisors, LLC
as Collateral Manager
By:
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Title:
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[SIGNATURE PAGE 17 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
SEQUILS-ING I (HBDGM), LTD.
By: ING Capital Advisors, LLC
as Collateral Manager and Authorized
Signatory
By:
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Title:
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[SIGNATURE PAGE 18 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
AVALON CAPITAL LTD.
By: INVESCO Senior Secured
Management, Inc. as
Portfolio Advisor
By:
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Title:
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[SIGNATURE PAGE 19 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By:
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Title:
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SUFFIELD CLO, LIMITED
By: Xxxxx X. Xxxxxx & Company Inc.,
as Collateral Manager
By:
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Title:
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[SIGNATURE PAGE 20 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
SIMSBURY CLO, LIMITED
By: Mass Mutual Life Insurance Company
as Collateral Manager
By:
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Title:
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[SIGNATURE PAGE 21 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
MAPLEWOOD (CAYMAN) LTD.
By: Mass Mutual Life Insurance Company
as Collateral Manager
By:
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Title:
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[SIGNATURE PAGE 22 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
XXXXXXX XXXXX SENIOR FLOATING RATE FUND, INC.
By:
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Title:
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[SIGNATURE PAGE 23 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
MASTER SENIOR FLOATING RATE TRUST
By:
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Title:
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[SIGNATURE PAGE 24 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
PPM SPYGLASS FUNDING TRUST
By:
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Title:
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[SIGNATURE PAGE 25 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
OLYMPIC FUNDING TRUST SERIES 1999-1
By:
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Title:
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[SIGNATURE PAGE 26 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
KZH RIVERSIDE LLC
By:
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Title:
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[SIGNATURE PAGE 27 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
XXXXXX FLOATING RATE FUND
By:
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Title:
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[SIGNATURE PAGE 28 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
FIFTH THIRD BANK (NORTHEASTERN OHIO)
By:
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Title:
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[SIGNATURE PAGE 29 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
BANK ONE, N.A.
By:
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Title:
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[SIGNATURE PAGE 30 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
MUIRFIELD TRADING LLC
By:
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Title:
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[SIGNATURE PAGE 31 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
FIRST DOMINION FUNDING I
By:
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Title:
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[SIGNATURE PAGE 32 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
KATONAH I, LTD.
By:
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Title:
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[SIGNATURE PAGE 33 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
AMARA 2 FINANCE LTD
By: INVESCO Senior Secured
Management, Inc.
as Portfolio Advisor
By:
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Title:
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[SIGNATURE PAGE 34 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
AERIES FINANCE-II LTD.
By: INVESCO Senior Secured
Management, Inc.
as Sub-Managing Agent
By:
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Title:
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[SIGNATURE PAGE 35 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
AVALON CAPITAL LTD. 2
By: INVESCO Senior Secured Management, Inc.
as Portfolio Advisor
By:
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Title:
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[SIGNATURE PAGE 36 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
CERES II FINANCE LTD.
By: INVESCO Senior Secured Management, Inc.
as Sub-Managing Agent (Financial)
By:
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Title:
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[SIGNATURE PAGE 37 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
KZH ING-1 LLC
By:
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Title:
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[SIGNATURE PAGE 38 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
KZH ING-2 LLC
By:
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Title:
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[SIGNATURE PAGE 39 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
KZH ING-3 LLC
By:
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Title:
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[SIGNATURE PAGE 40 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
CENTURION CDO II, LTD.
By: American Express Asset
Management Group Inc.
By:
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Title:
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[SIGNATURE PAGE 41 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
WILBRAHAM CBO LTD.
By: Xxxxx X. Xxxxxx & Company Inc.,
as Investment Manager
By:
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Title:
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[SIGNATURE PAGE 42 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
FRANKLIN FLOATING RATE MASTER SERIES
By:
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Title:
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[SIGNATURE PAGE 43 OF 43 TO AMENDMENT NO. 6 TO CREDIT AGREEMENT]
KZH STERLING LLC
By:
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Title:
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