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Exhibit 10.26
FORBEARANCE AGREEMENT
This FORBEARANCE AGREEMENT (together with all agreements,
documents and instruments attached hereto or referred to herein as any or all of
the same may be amended, replaced or supplemented from time to time, the
"FORBEARANCE AGREEMENT") is dated as of the 18th day of December, 2000, by and
among the Borrowers (as defined in the Credit Agreement, as hereinafter
defined), including, without limitation, RENT-WAY, INC., a Pennsylvania
corporation (for itself and successor by merger to Rentavision, Inc.), as the
Borrower, and RENT-WAY OF TTIG, L.P., an Indiana limited partnership, as 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
BANK OF MONTREAL and XXXXXX TRUST AND SAVINGS BANK, in their capacity as
syndication agents.
R E C I T A L S:
1. Reference is made to:
A. 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, Amendment No. 4 thereto dated as of June 28, 2000,
and Amendment No. 5 thereto dated as of November 16, 2000, as also modified by a
Waiver 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. In accordance with the terms of the Credit
Agreement, the revolving credit loans were limited under the Waiver in an amount
not in excess of $82,124,375 during the period from December 1, 2000, through
December 31, 2000; and
B. That certain Guaranty and Suretyship Agreement executed by
Action Rent-to-Own Holdings of South Carolina, Rent-Way of Tomorrow, Inc.,
Rent-Way of Michigan, Inc., and Rent-Way Developments, Inc. (the "Guarantors")
dated as of September 23, 1999, in favor of the Administrative Agent and the
Lenders (the "Guaranty Agreement") pursuant to which the Guarantors guaranteed,
among other obligations, the Revolving Credit Loans, the Term Loans A and the
Term Loans B; and
C. Various Events of Default, as defined in the Credit
Agreement, have occurred and are continuing which, among others include, but are
not limited to, the Events of Default occurring by reason of:
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(a) the independent certified public accountants of
the Loan Parties having reported that the adjustment
required to be made to the unaudited consolidated
financial statements of the Borrower for the fiscal
year ended September 30, 2000, shall result in a
negative impact to such consolidated financial
statements of the Borrower in excess of $35,000,000
on a pre-tax basis;
(b) as a result of the adjustment described in item
(a) above, the Loan Parties have failed to comply
with the following provisions of the Credit Agreement
as measured at the end of one or more fiscal quarters
during the fiscal year ended September 30, 2000:
Section 8.2.16 [Maximum Leverage Ratio], Section
8.2.18 [Minimum Interest Coverage Ratio], Section
8.2.19 [Minimum Net Worth], Section 8.2.20 [Fixed
Charge Coverage Ratio] and Section 8.2.21 [Rental
Merchandise Usage] (with respect to both utilization
covenants for personal computers and other Rental
Merchandise);
(c) The existence of other Events of Default set
forth in Section 2 of the Waiver dated as of November
16, 2000, among the Loan Parties, the Administrative
Agent and the Lenders; and
(d) A default under Section 8.1.13 of the Credit
Agreement by reason of the failure of the Loan
Parties to have in place Interest Rate Protection
Agreements providing interest rate protection in a
notional principal amount of at least $200,000,000.
(hereinafter, the foregoing identified Events of Default shall sometimes be
referred as the "EXISTING DEFAULTS").
D. The Borrower, the Co-Borrower and the Guarantors
acknowledge that Existing Defaults have occurred and are continuing.
E. The Borrower, the Co-Borrower and the Guarantors have
requested that the Administrative Agent and the Lenders enter into this
Forbearance Agreement, and the Administrative Agent and the Lenders are willing
to enter into this Forbearance Agreement, but only upon the terms and conditions
hereinafter set forth.
NOW THEREFORE in consideration of the above recitals and for
other good and valuable consideration, the receipt and adequacy of which are
hereby mutually acknowledged and intending to be legally bound hereby, the
parties hereto agree as follows:
2. Definitions. All capitalized terms used but not
defined in this Forbearance Agreement shall have the
meanings ascribed thereto in the Credit Agreement.
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3. Affirmation of Recitals. The recitals set forth above
are true and correct and incorporated herein by
reference.
4. Acknowledgment of Indebtedness and Default. The
Borrower, the Co-Borrower and the Guarantors
acknowledge that the Existing Defaults, which are
material, have occurred under the Loan Documents. The
Borrower, the Co-Borrower and the Guarantors
acknowledge that all obligations of the Borrower and
the Co-Borrower to the Lenders arising under the
Notes, the Loan Documents or under any other
agreement, document or instrument are presently
outstanding and are immediately due and payable,
without defense, counterclaim or set-off, and that
the Lenders have no obligation to continue making
loans or advances to the Borrowers under the Loan
Documents. The Obligations (the "OBLIGATIONS") of the
Borrower, the Co-Borrower and the Guarantors to the
Lenders include without limitation all obligations
arising hereunder, under any Loan Document or under
any other agreement, document or instrument or
otherwise relating to or arising in connection with
or under the transactions contemplated hereby or by
any of the Loan Documents and including, without
limitation, as of December 14, 2000, (i)
$63,000,000.00 in principal and $121,167.08 in
accrued interest on the Revolving Credit Loans, (ii)
$138,763,888.89 in principal and $2,904,675.11 in
accrued interest on the Term Loans A, and (iii)
$176,343,750.00 in principal and $4,123,504.68 in
accrued interest on the Term Loans B, together with
continuing interest on all such Loans, as well as
Reimbursement Obligations relating to Letters of
Credit in the principal amount of $6,124,375, and the
Administrative Agent's and Lenders' expenses,
including, without limitation in accordance with
Sections 10.5 and 11.3 of the Credit Agreement,
attorneys' fees and expenses and all other
obligations and liabilities arising hereafter or
incurred due to the Administrative Agent or Lender by
the Borrower, the Co-Borrower or the Guarantors
hereunder or under any Loan Document. The Borrower,
the Co-Borrower and the Guarantors acknowledge that
the Obligations are joint and several obligations and
liabilities of the Borrower, the Co-Borrower and the
Guarantors.
5. The Agent's and Lenders' Forbearance; Revolving
Credit Loan Funding. Provided that no Event of
Termination (as defined herein) occurs under this
Forbearance Agreement and that no Potential Default
or Event of Default, as defined under any Loan
Document, occurs under any of the Loan Documents, the
Administrative Agent and the Lenders agree, subject
to the terms and conditions set forth in this
Forbearance Agreement, including without limitation,
the provisions of Section 9 hereof and in the Loan
Documents, not to exercise any of their remedies
under the Loan
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Documents, or remedies otherwise available to the
Administrative Agent or the Lenders to collect the
Obligations hereunder or under the Loan Documents or
applicable law for the period (the "FORBEARANCE
PERIOD") from the date hereof through and including
January 16, 2001 (the "FORBEARANCE DATE"). Provided
that no Event of Funding Termination (as defined
herein) occurs under this Forbearance Agreement, the
Lenders with Revolving Credit Commitments agree
during the Forbearance Period, subject to the terms
and conditions set forth in this Forbearance
Agreement, including without limitation, the
provisions of Section 9 hereof, and in the Loan
Documents, (a) to make advances under the Revolving
Credit Loans to the Borrowers as provided in the
Credit Agreement, provided however, that the
Administrative Agent and the Lenders shall not be
obligated to fund Revolving Credit Loans which would
result in the sum of the aggregate outstanding
Revolving Credit Loans and Letters of Credit
Outstanding to exceed (i) during the period from the
date hereof through January 1, 2001, $91,124,375, and
(ii) during the period from January 2, 2001 through
the Forbearance Date $95,666,042, and (b) to extend
the maturity date for existing Letters of Credit set
forth on Exhibit A to the Waiver which would
otherwise terminate during the Forbearance Period and
to participate in such Letters of Credit in
accordance with Section 2.9 of the Credit Agreement.
To the extent that the existence of Events of Default
or Potential Defaults other than an Event of Funding
Termination would otherwise relieve the Lenders with
Revolving Credit Commitment from extending credit
under Section 7.2 of the Credit Agreement, such
Section 7.2 is hereby amended consistent with this
Section 5 and the other terms of this Forbearance
Agreement. In the event that the cash flow forecasts
to be provided by the Loan Parties pursuant to
Section 9(a) below indicate that the advances of the
Revolving Credit Loans required by the Borrower and
the Co-Borrower during the Forbearance period are
less than the sum of $95,666,042 at any one time
outstanding (including Letters of Credit
Outstanding), then such maximum amount available
hereunder shall be automatically reduced in an amount
which is consistent with such cash flow forecast.
6. Swing Loans. During the Forbearance Period, the
Borrower and the Co-Borrower shall not request any
Swing Loans, and National City Bank of Pennsylvania
shall not be required to make any Swing Loans.
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7. Interest Rates. During the Forbearance Period, the
Applicable Margin shall remain at the rates
established under the Waiver, which are as follows:
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REVOLVING CREDIT AND REVOLVING CREDIT TERM LOAN B TERM LOAN B
TERM LOAN A AND TERM LOAN A EURO-RATE BASE RATES
EURO-RATE SPREAD AND BASE RATE SPREAD SPREAD SPREAD RATE
LETTER OF CREDIT FEE
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3.75% 2.25% 4.50% 3.00%
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8. Interest Periods. During the Forbearance Period, the
Borrower and the Co-Borrower shall not request any
new Revolving Credit Loans to bear interest at the
Euro-Rate Option, and the Lenders shall not be
required to make new Revolving Credit Loans under the
Euro-Rate Option. During the Forbearance Period, the
Borrower and the Co-Borrower shall not request any
Loans which currently bear interest under the
Euro-Rate Option to continue at the Euro-Rate Option
at the end of the existing Interest Period relating
thereto, and the Lenders shall not be required to
continue to offer the Euro-Rate Option with respect
to such Loans at the end of the existing Interest
Period relating thereto.
9. The Borrower's, the Co-Borrower's and the Guarantors'
Agreements and Obligations.
(a) In addition to the financial and other reporting
requirements provided for under Section 8.3 of the
Credit Agreement, during the Forbearance Period the
Loan Parties shall on the first Business Day of each
week continue to provide to the Lenders a forecast
which details the Loan Parties' anticipated cash
flows, including without limitation, anticipated
receipts, expenditures and borrowings of Revolving
Credit Loans. Each such forecast shall be accompanied
by a summary report of the Loan Parties of the actual
receipts, expenditures and borrowings of Revolving
Credit Loans for the previous week and a comparison
of such results to the forecast previously delivered
for such week. Each cash flow forecast shall provide
a forecast for the next succeeding four weeks.
(b) The Borrower, the Co-Borrower and the Guarantors
shall fully cooperate with the professionals engaged
by Administrative Agent, counsel for the
Administrative Agent and the Lenders in connection
with the review by such professionals of the
financial statements and operations of the Loan
Parties. Such cooperation shall extend to, without
limitation,
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Newmarket Partners, LLC and Ernst & Young LLP. The
Borrower and the Co-Borrower, jointly and severally,
unconditionally agree to pay or reimburse and hold
the Administrative Agent harmless against claims of
Newmarket Partners, LLC and Ernst & Young, LLP for
payment of fees and expenses of such professional
advisors, which fees and expenses shall be
reimbursable expenses in accordance with Section 10.5
of the Credit Agreement.
(c) The Administrative Agent shall have dominion over
the cash collateral of the Loan Parties to the extent
required by the Administrative Agent. The dominion to
be established shall include, without limitation, the
deposit of cash and cash equivalents in a deposit
account or deposit accounts under the sole control of
the Administrative Agent and the application of such
funds each Business Day to the outstanding balance of
the Revolving Credit Loans. The Borrower, the
Co-Borrower and the Guarantors shall fully cooperate
with the Administrative Agent in connection with the
establishment of dominion over cash collateral by the
Administrative Agent for the benefit of the Lenders.
The implementation of such dominion over cash
collateral by the Administrative Agent shall be in
addition to and not in lieu of any other rights and
remedies provided to the Administrative Agent and the
Lenders with respect to the Collateral under the Loan
Documents.
(d) During the Forbearance Period and as soon as is
reasonably practicable, the Borrower and the
Co-Borrower shall commence a search for a
professional or professionals to be retained by the
Borrower and acceptable to the Administrative Agent.
Such professional(s) shall serve as a interim
operating manager to address the financial
performance and operations of the Loan Parties in
light of the adjustments which the independent
certified public accounts of the Borrower have
indicated need to be made to the consolidated
financial statements of the Borrower for the fiscal
year ended September 30, 2000.
(e) In the event that during the Forbearance Period,
the Loan Parties make any disposition or dispositions
of assets which individually or in the aggregate have
a market value in an amount greater than $250,000,
then in such event the Loan Parties shall make a
mandatory prepayment to the Administrative Agent in
an amount equal to the net proceeds of all such
dispositions in excess of $250,000, which mandatory
prepayment shall be applied to the Term Loans A and
the Term Loans B in accordance with the provisions of
Section 5.5.1 of the Credit Agreement.
(f) The Borrowers, the Co-Borrower and the Guarantors
acknowledge and agree that this Forbearance Agreement
is a Loan Document.
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10. Events of Termination. An Event of Termination shall
mean the occurrence of any one or more of the
following (each an "EVENT OF TERMINATION"):
(a) any Potential Default or Event of Default, as
defined in any Loan Document, occurs under any of the
Loan Documents other than the Existing Defaults;
(b) the failure of the Borrower, the Co-Borrower or
the Guarantors to make any payment to the
Administrative Agent or any Lender when and as
required by the Credit Agreement, the Notes, this
Forbearance Agreement or any other Loan Document;
(c) the untruth of any representation or warranty
contained in this Forbearance Agreement, or the
existence of a misrepresentation of fact or fraud
contained in any certificate, document or information
heretofore or hereafter submitted or communicated
(with the exception of the Existing Defaults and
other Events of Default or Potential Defaults
previously disclosed by the Loan Parties to the
Lenders) to the Administrative Agent or the Lenders
pursuant to or in support of this Forbearance
Agreement;
(d) breach or violation of any term, covenant,
agreement, obligation or condition contained in this
Forbearance Agreement;
(e) the independent certified public accountants of
the Loan Parties, or either of the professionals
engaged or co-engaged by counsel to the
Administrative Agent, report either orally or in
writing, or otherwise determine that either (i) the
adjustment required to be made to the unaudited
consolidated financial statements of the Borrower for
the fiscal year ended September 30, 2000, results in
a negative impact to such consolidated financial
statements of the Borrower in excess of $75,000,000
on a pre-tax basis, or (ii) any material adjustment
is required to be made in any audited consolidated
financial statements of the Borrower for the fiscal
year ended September 30, 1999, or any fiscal year
prior thereto (the occurrence of an event described
in this item (e) or the occurrence of an event
described in any of items (b), (c) or (d) above shall
constitute an "EVENT OF FUNDING TERMINATION" for
purposes of Section 5 of this Forbearance Agreement);
(f) the Borrower, the Co-Borrower or any Guarantor
shall agree to a negative pledge, i.e. any agreement
not to grant or consent to the entry of any security
interest or other Lien; and
(g) any other creditor or holder of any Indebtedness
of the Borrower, the Co-Borrower or any Guarantor
confesses judgment or institutes or commences any
action against it to collect any Indebtedness or
obligation
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or takes any action to realize upon any collateral
securing such Indebtedness or obligation.
11. Release; No Discharge. As additional consideration
for the Administrative Agent's and the Lenders'
entering into this Forbearance Agreement, the
Borrower, the Co-Borrower and the Guarantors each
hereby fully and unconditionally release and forever
discharge the Administrative Agent and the Lenders,
their agents, employers, 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 or any
of the Guarantors may now have or claim to have
against the Administrative Agent or 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, on
account of or in any way affecting, concerning or
arising out of or founded upon this Forbearance
Agreement or the Loan Documents, including but not
limited to all such loss or damage of any kind
heretofore sustained or that may arise as a
consequence of the dealings between the parties up to
and including the date hereof, including but not
limited to, the administration or enforcement of the
Loans, the Notes, the Obligations or any of the Loan
Documents. The obligations of the Borrower, the
Co-Borrowers and the Guarantors under the Loan
Documents and this Forbearance Agreement shall be
absolute and unconditional and shall remain in full
force and effect without regard to, and shall not be
released, discharged or in any way affected by:
(a) any exercise or nonexercise of any right,
remedy, power or privilege under or in
respect of this Forbearance Agreement, any
Loan Document, any document relating to or
evidencing any of the Administrative Agent's
or Lenders' Liens or applicable Law,
including, without limitation, any waiver,
consent, extension, indulgence or other
action or inaction in respect thereof; or
(b) any other act or thing or omission or delay
to do any other act or thing which could
operate to or as a discharge of the
Borrower, the Co-Borrower or any Guarantor
as a matter of law, other than payment in
full of all Obligations, including but not
limited to all obligations under the Loan
Documents and this Forbearance Agreement.
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12. Termination. On the Termination Date, which means the
date which is the earlier of the Forbearance Date or
the date any Event of Termination occurs under this
Forbearance Agreement, the Administrative Agent and
the Lenders may in their sole and absolute discretion
(i) end their forbearance without notice or demand of
any kind or nature whatsoever or (ii) pursue any
remedy available to them. On the Funding Termination
Date, which means the date which is the earlier of
the Forbearance Date or the date any Event of Funding
Termination occurs under this Forbearance Agreement,
the Administrative Agent and the Lenders with
Revolving Credit Loans Commitments shall have no
obligation to make any advances, loans or extensions
of credit on their Revolving Credit Commitments to
the Borrower or the Co-Borrower.
13. Construction. This Forbearance Agreement shall not be
construed more strictly against the Administrative
Agent or any Lender merely by virtue of the fact that
this Forbearance Agreement may have been or has been
prepared by the Administrative Agent, the Lenders or
their counsel, it being recognized that the Borrower,
the Co-Borrower and the Guarantors have contributed
substantially and materially to the preparation of
this Forbearance Agreement. The Borrower, the
Co-Borrower and the Guarantors acknowledge and waive
any claim contesting the existence and the adequacy
of the consideration given by any of the other
parties hereto for entering into this Forbearance
Agreement. All of the Collateral shall remain in all
respects subject to the Lien of the applicable
Security Agreement, Pledge Agreement, Patent,
Trademark and Copyright Security Agreement,
Collateral Assignment and/or Mortgage, and nothing
herein contained and nothing done pursuant hereto
shall affect the Lien of any such Loan Documents or
the priority thereof. Nothing in this Forbearance
Agreement shall be intended or construed to hold the
Administrative Agent or any Lender liable or
responsible for any expenses, disbursements,
liability or obligation of any kind or nature
whatsoever of the Borrower, the Co-Borrower and the
Guarantors.
14. Entire Agreement. The Borrower, the Co-Borrower and
the Guarantors each acknowledge that there are no
other agreements, representations, either or oral or
written, expressed or implied, not embodied in this
Forbearance Agreement and the Loan Documents, which,
together, represent a complete integration of all
prior and contemporaneous agreements and
understandings of the Borrower, the Co-Borrower, the
Guarantors, the Administrative Agent and the Lenders.
The Borrower, the Co-Borrower and the Guarantors
hereby acknowledge and agree that the Loan Documents
are in full force and effect and the provisions of
the Loan Documents are hereby ratified and confirmed.
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15. The Borrower, the Co-Borrower and Guarantor Remain in
Control. The Borrower, the Co-Borrower and the
Guarantors each acknowledge that they remain in
control of their respective business and affairs and
that they determine the respective business plans
for, and employment, management and operating
directions and decisions for their respective
business and affairs.
16. Time is of the Essence. Time shall be of the
strictest essence in the performance of each and
every one of the Borrower's, the Co-Borrower's and
the Guarantors' obligations hereunder and under the
Loan Documents, including without limitation, the
obligations to make payments to the Administrative
Agent, to furnish information to the Administrative
Agent and the Lenders and to comply with all
reporting requirements.
17. No Waiver of Rights Under Loan Documents. Any
negotiation heretofore or hereafter and any action
undertaken pursuant to this Forbearance Agreement or
any Loan Document or during the Forbearance Period
shall not constitute a waiver of the Administrative
Agent's or any Lender's rights or remedies under the
Loan Documents or this Forbearance Agreement or
prejudice the Administrative Agent's or any Lender's
rights under the Loan Documents or this Forbearance
Agreement except to the extent specifically set forth
herein. No party shall be bound by any oral
agreement, and no rights or liabilities, either
expressed or implied, shall arise on the part of any
party, or any third party, until and unless the
agreement on any given issue has been reduced to a
written agreement executed in accordance with the
provisions of Section 11.1 of the Credit Agreement.
Furthermore, the parties agree that this Forbearance
Agreement may be amended, replaced or supplemented
only by a written agreement executed in accordance
with the provisions of Section 11.1 of the Credit
Agreement.
18. Joint and Several Liability; Voluntary Agreement;
Indemnity.
(a) The Borrower, the Co-Borrower and the
Guarantors acknowledge and agree that they
are jointly and severally liable under this
Forbearance Agreement. The Borrower, the
Co-Borrower and the Guarantors represent and
warrant that each of them is represented by
legal counsel of their choice and that their
counsel has had the opportunity to review
this Forbearance Agreement, that each of
them is fully aware of the terms contained
herein and that each of them has voluntarily
and without coercion or duress of any kind
or nature whatsoever entered into this
Forbearance Agreement. The
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provisions of this Forbearance Agreement
shall survive the execution and delivery of
this Forbearance Agreement.
(b) The Borrower, the Co-Borrower and the
Guarantors agree, jointly and severally, to
indemnify the Administrative Agent and the
Lenders and hold each of the Administrative
Agent and Lenders harmless in respect of any
and all claims, liabilities, damages and
expenses (including, without limitation
attorneys' fees and expenses) asserted by
any person whatsoever or incurred by the
Administrative Agent or any Lender arising
in connection with the Loan Documents or
this Forbearance Agreement. This indemnity
agreement shall survive the termination of
this Forbearance Agreement, the Loan
Documents and the consummation of the
transactions contemplated hereby.
19. Counterparts. This Forbearance Agreement may be
executed in one or more counterparts and by
facsimile, each of which shall constitute an original
and all of which taken together shall constitute one
agreement. Each party executing this Forbearance
Agreement represents that such party has the full
authority and legal power to do so.
20. Certifications. The Borrower, the Co-Borrower and the
Guarantors shall each furnish to the Administrative
Agent, within 10 days of their execution and delivery
of this Forbearance Agreement, a certified copy of
the resolutions adopted by its board of directors or
governing body authorizing the Borrower, the
Co-Borrower and the Guarantors, as the case may be,
to execute, deliver and perform their respective
obligations under this Forbearance Agreement and the
incumbency of the officers authorized to execute and
deliver the Forbearance Agreement on behalf of the
Borrower, the Co-Borrower and the Guarantors,
together with the true signature of such officers.
21. No Waiver of Remedies. The Administrative Agent and
each Lender expressly reserves any and all rights and
remedies available to it under this Forbearance
Agreement, the Loan Documents, any other agreement or
at law or in equity or otherwise. No failure to
exercise, or delay by the Administrative Agent or any
Lender in exercising, any right, power or privilege
hereunder or under any Loan Document shall preclude
any other or further exercise thereof, or the
exercise of any other right, power or privilege. The
rights and remedies provided in this Forbearance
Agreement and the Loan Documents are cumulative and
not exhaustive of each other or of any right or
remedy provided by law or equity or otherwise. No
notice to or demand upon the Borrower, the
Co-Borrower
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and the Guarantors, in any instance shall, in itself,
entitle the Borrower, the Co-Borrower and the
Guarantors to any other or further notice or demand
in similar or other circumstances or constitute a
waiver of the right of the Administrative Agent or
any Lender to any other or further action in any
circumstance without notice or demand.
22. No Commitment. Except as expressly provided herein,
this Forbearance Agreement is not intended as a
commitment by the Administrative Agent or the Lenders
to modify the Loan Documents in any respect or
otherwise and the Administrative Agent and the
Lenders hereby specifically confirm that they make no
such commitment and specifically advises that no
action should be taken by the Borrower, the
Co-Borrower and the Guarantors based upon any
understanding that such a commitment exists or on any
expectation that any such commitment will be made in
the future.
23. No Third Party Beneficiaries. By execution of this
Forbearance, the Administrative Agent and the Lenders
do not intend to assume and are not hereby assuming
any obligation to any third party. No third party
shall be or shall be deemed a beneficiary of this
Forbearance Agreement.
24. Governing Law and Binding Effect. This Forbearance
Agreement shall be deemed to be a contract under the
Laws of the Commonwealth of Pennsylvania for all
purposes shall be governed by and construed and
enforced in accordance with the Laws of the
Commonwealth of Pennsylvania, without regard to its
conflict of laws principles. This Forbearance
Agreement shall be binding upon and shall inure to
the benefit of the Borrower, the Co-Borrower, the
Guarantors the Administrative Agent, the Lenders and
their respective successors and assigns; provided,
however, that none of the Borrower, the Co-Borrower
or any Guarantor may assign any of its rights or
duties hereunder without the prior written consent of
the Administrative Agent and the Lenders.
25. LIMITATION ON DAMAGES. NEITHER THE ADMINISTRATIVE
AGENT NOR ANY LENDER NOR ANY AGENT OR ATTORNEY FOR OR
OF THE ADMINISTRATIVE AGENT OR ANY LENDER SHALL BE
LIABLE TO THE BORROWER, THE CO-BORROWER OR THE
GUARANTORS FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL
OR PUNITIVE DAMAGES ARISING FROM ANY BREACH OF
CONTRACT, TORT OR OTHER WRONG RELATING TO THE
ESTABLISHMENT, ADMINISTRATION OR COLLECTION OF THE
OBLIGATIONS, AS DEFINED IN THIS FORBEARANCE
AGREEMENT, OR THIS FORBEARANCE AGREEMENT OR ANY
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LOAN DOCUMENT OR THE ACTION OR INACTION OF THE
ADMINISTRATIVE AGENT, ANY LENDER, THE BORROWER, THE
CO-BORROWER OR ANY GUARANTOR UNDER THIS FORBEARANCE
AGREEMENT OR ANY LOAN DOCUMENT OR OTHERWISE.
26. WAIVER OF RIGHT TO TRIAL BY JURY. THE BORROWER, THE
CO-BORROWER AND THE GUARANTORS EACH HEREBY EXPRESSLY
WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION BASED UPON, RELATING TO OR ARISING UNDER THIS
FORBEARANCE AGREEMENT, ANY LOAN DOCUMENT OR ANY OTHER
AGREEMENT, DOCUMENT OR INSTRUMENT DELIVERED IN
CONNECTION HEREWITH OR THEREWITH, OR ANY TRANSACTION
RELATED HERETO OR THERETO OR THE SUBJECT MATTER
HEREOF OR THEREOF, IN EACH CASE WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE; AND THE BORROWER, THE
CO-BORROWER AND THE GUARANTORS EACH HEREBY AGREE AND
CONSENT THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE
OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A
JURY, AND THAT ANY PARTY TO THIS FORBEARANCE
AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY
OF THIS SECTION WITH ANY COURT OR OFFICIAL BODY AS
WRITTEN EVIDENCE OF THE CONSENT OF THE BORROWER, THE
CO-BORROWER AND THE GUARANTORS TO THE WAIVER OF ITS
RIGHT TO TRIAL BY JURY.
THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND
VOLUNTARILY MADE BY THE BORROWER, THE CO-BORROWER AND
THE GUARANTORS, AND EACH OF THEM ACKNOWLEDGES THAT
NONE OF THE ADMINISTRATIVE AGENT, THE LENDERS NOR ANY
PERSON ACTING ON BEHALF OF ANY OF THEM HAS OR HAVE
MADE ANY REPRESENTATIONS OF FACT, LAW OR OTHERWISE TO
INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO
MODIFY OR NULLIFY ITS EFFECT. THE BORROWER, THE
CO-BORROWER AND THE GUARANTORS EACH FURTHER
ACKNOWLEDGE THAT IT HAS BEEN REPRESENTED IN THE
SIGNING OF THIS FORBEARANCE AGREEMENT AND IN THE
MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL,
SELECTED BY ITS OWN FREE WILL, AND THAT EACH OF THEM
HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH
COUNSEL. THE BORROWER, THE CO-BORROWER AND THE
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GUARANTORS EACH FURTHER ACKNOWLEDGE THAT IT HAS READ
AND UNDERSTANDS THE MEANING OF THIS WAIVER PROVISION.
27. CONSENT TO JURISDICTION. THE BORROWER, THE
CO-BORROWER AND THE GUARANTORS EACH HEREBY
IRREVOCABLY CONSENTS TO THE NONEXCLUSIVE JURISDICTION
OF THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY,
COMMONWEALTH OF PENNSYLVANIA, OR ANY SUCCESSOR TO
SAID COURT, AND TO THE NONEXCLUSIVE JURISDICTION OF
THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF PENNSYLVANIA, OR ANY SUCCESSOR TO SAID
COURT AND WAIVES PERSONAL SERVICE OF ANY AND ALL
PROCESS UPON IT AND AGREES THAT ALL SUCH SERVICE OF
PROCESS BE MADE BY CERTIFIED OR REGISTERED MAIL
DIRECTED TO SUCH PARTY AT THE ADDRESSES PROVIDED FOR
IN SECTION 11.6 OF THE CREDIT AGREEMENT AND SERVICE
SO MADE SHALL BE DEEMED TO BE COMPLETED UPON ACTUAL
RECEIPT THEREOF. THE BORROWER, THE CO-BORROWER AND
THE GUARANTORS EACH WAIVE ANY OBJECTION TO
JURISDICTION AND VENUE OF ANY ACTION INSTITUTED
AGAINST IT AS PROVIDED HEREIN AND AGREES NOT TO
ASSERT ANY DEFENSE BASED ON LACK OF JURISDICTION OR
VENUE.
28. Expenses. The Borrower, the Co-Borrower and the
Guarantors, jointly and severally, agree to reimburse
the Administrative Agent and the Lenders for all
costs and expenses (including, without limitation,
all fees and expenses of counsel or accountants with
whom the Administrative Agent or any Lender may
consult and all expenses and costs of litigation or
preparation therefor) in connection with:
(a) this Forbearance Agreement, any amendments,
supplements, waivers, replacements,
modifications or consents to this
Forbearance Agreement, any Loan Document, or
any document relating to or evidencing any
of Liens of the Administrative Agent or the
Lenders; and
(b) the enforcement, protection or preservation
of Administrative Agent's or Lenders' rights
or remedies under any of this Forbearance
Agreement, any Loan Document, or under any
agreement, document or instrument relating
to or evidencing any
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15
of the Liens of any Agent or Lender or under
any Lien securing any Obligation.
As set forth in Section 11.3 of the Credit Agreement,
the Lenders will consider the usage of one law firm
to represent the interests of the Lenders and the
Administrative Agent, but the determination regarding
usage of counsel will be in the sole and absolute
discretion of the Lenders, and the legal expenses of
all such counsel shall be subject to the
reimbursement provisions set forth herein. The
Borrower, the Co-Borrower and the Guarantors each
directs and authorizes the Administrative Agent and
Lenders to debit automatically from any account of
the Borrower, the Co-Borrower or any Guarantor
maintained at the Administrative Agent or any Lender
the amount of all such costs and expenses.
29. Further Assurances. The Borrower, the Co-Borrower and
the Guarantors will from time to time, make, do
exercise and acknowledge, as requested by the
Administrative Agent from time to time, such further
agreements, certificates, documents, instruments,
acts, deeds, conveyances, mortgages, security
agreements, financing statements, continuation
statements and other assurances as may be required or
requested for the purpose of effectuating the intent
hereof and of the Loan Documents.
30. Consent, Agreement and Acknowledgment of Guarantor.
The Guarantors each consent and agree to each and
every term and provision of this Forbearance
Agreement, as well as to all actions and transactions
contemplated under this Forbearance Agreement and the
execution and delivery of this Forbearance Agreement
and agrees and acknowledges that all of the
Obligations are Guaranteed Indebtedness, as defined
in the Guaranty Agreement. Each of the Guarantors
further consents and agrees that neither this
Forbearance Agreement nor any actions or transactions
contemplated hereunder shall provide any Guarantor
with any defense to the Obligations of the Guarantor
under the Guaranty Agreement.
31. Reservation of Rights as to Other Obligations. Each
of the Borrower, the Co-Borrower and the Guarantors
acknowledges and agrees that each may have other
loans from and/or obligations to the Administrative
Agent and the Lenders other than the Obligations
which are the subject of this Forbearance Agreement
(hereinafter, the "OTHER OBLIGATIONS") which Other
Obligations are in no way affected by this
Forbearance Agreement and remain fully due, payable
and enforceable in accordance with their own terms
and provisions. Each of the Borrower, the Co-Borrower
and the Guarantors hereby agrees that the
Administrative Agent and the Lenders, by entering
into this Forbearance Agreement in no way waives,
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16
discharges, releases, or compromises any claims,
causes of action, and rights as to such Other
Obligations, and each of the Borrower, the
Co-Borrower and the Guarantors agrees and
acknowledges that it or he continue to be liable for
payment and performance of such Other Obligations
notwithstanding the entry into this Forbearance
Agreement by the Administrative Agent and the
Lenders.
32. Authority. As a material inducement to the
Administrative Agent and the Lenders to enter into
this Forbearance Agreement, the Borrower, the
Co-Borrower and the Guarantors each hereby represent
and warrant to the Administrative Agent and the
Lenders that:
(a) the Borrower, the Co-Borrower and the Guarantors
are duly organized, validly existing and in good
standing under the laws of the jurisdiction under
which each is organized;
(b) the Borrower, the Co-Borrower and the Guarantors
have all the power and authority to execute, deliver
and perform this Forbearance Agreement;
(c) with the exception of class action lawsuits by
the shareholders of the Borrower resulting from the
inaccurate financial accounting of the Loan Parties
reported to the financial press on October 30, 2000
and December 12, 2000, and the lawsuits set forth on
the exhibit annexed to the opinion letter to be
provided pursuant to Section 33 of this Forbearance
Agreement, there are no actions, suits, or
proceedings pending, or to the best of the
Borrower's, the Co-Borrower's or any Guarantor's
knowledge threatened against or affecting any of the
Borrower, the Co-Borrower or any Guarantor, or the
Collateral in any court or before or by any
governmental instrumentality, whether federal, state,
county or municipality; and
(d) the consummation of the transactions herein
contemplated and the performance or observance of the
Borrower's, the Co-Borrower's and the Guarantors'
obligations under the Loan Documents, this
Forbearance Agreement and the transactions required
or contemplated herein to which the Borrower, the
Co-Borrower or any Guarantor is a party:
(i) have been duly authorized by
all necessary action on the part of the
Borrower, the Co-Borrower and the
Guarantors;
(ii) will not conflict with or
result in a breach of or default under any
injunction, or decree of any court or
governmental instrumentality, or any
forbearance agreement or
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17
instrument to which any of the Borrower, the
Co-Borrower and the Guarantors is now a
party or is subject; and
(iii) will not (except to the
extent provided in this Forbearance
Agreement) result in the creation or
imposition of any Lien of any nature
whatsoever upon any of the property or
assets of the Borrower, the Co-Borrower and
the Guarantors pursuant to the terms of any
such forbearance agreement or instrument.
(e) To the extent any consent, approval, order, or
authorization or registration, declaration, or filing
with any governmental authority or other person or
legal entity is required in connection with the valid
execution and delivery of this Forbearance Agreement
or the carrying out or performance of any of the
transactions required or contemplated by this
Forbearance Agreement, all such consents, approvals,
orders or authorizations shall have been obtained or
all such registrations, declarations, or filings
shall have been accomplished prior to the entry of
this Forbearance Agreement.
33. Opinion of Counsel. The Borrower, the Co-Borrower and
the Guarantor shall furnish to the Administrative
Agent, within 10 days of their execution and delivery
of this Forbearance Agreement, the written opinion of
counsel to the Borrower, the Co-Borrower and the
Guarantors upon which the Administrative Agent and
the Lenders may rely and which shall be in form and
substance satisfactory to the Administrative Agent
and contain the following opinions:
(a) the Borrower, the Co-Borrower and the Guarantors
are duly organized and validly existing under the
Laws of the jurisdictions under which they are
organized and are in good standing under such Laws;
(b) the Borrower, the Co-Borrower and the Guarantors
and their officers have all the power and authority
to execute, deliver and perform this Forbearance
Agreement, and the Loan Documents and have taken all
necessary action to authorize the execution, delivery
and performance of this Forbearance Agreement;
(c) this Forbearance Agreement has been duly executed
and delivered on behalf of the Borrower, the
Co-Borrower and the Guarantors and constitutes valid,
enforceable and binding obligations of the Borrower,
the Co-Borrower and the Guarantors in accordance with
their respective terms and do not violate any Law;
and
(d) with the exception of class action lawsuits by
the shareholders of the Borrower resulting from the
inaccurate financial accounting
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18
of the Loan Parties reported to the financial press
on October 30, 2000 and December 12, 2000, to the
knowledge of such counsel there is no action, suit,
or proceeding pending, or threatened against the
Borrower, the Co-Borrower or the Guarantors or the
Collateral, in any court or before or by any
governmental instrumentality, whether federal, state,
county or municipal, except as set forth on an
exhibit annexed to the opinion letter.
34. Miscellaneous. This Forbearance Agreement is made for
the sole benefit and protection of the Administrative
Agent, the Lenders, the Borrower, the Co-Borrower and
the Guarantors and their respective successors and
assigns. No other persons shall have any rights
whatsoever hereunder. Notices to parties hereunder
may be given to them at the addresses and in the
manner provided in the Section 11.6 of the Credit
Agreement. If any provision of this Forbearance
Agreement is held to be invalid or unenforceable, the
remaining provisions shall remain in effect without
impairment. All representations and warranties of the
Borrower, the Co-Borrower and the Guarantors
contained herein or made in connection herewith or in
connection with any Loan Document shall survive the
making of and shall not be waived by the execution
and delivery of this Forbearance Agreement, any
investigation by the Administrative Agent or Lenders
or any other event or condition whatsoever. All
obligations of the Borrower, the Co-Borrower and the
Guarantors to make payments to the Administrative
Agent or the Lenders shall survive the termination of
all obligations of the Borrower, the Co-Borrower and
the Guarantors hereunder and under the Loan
Documents, and shall not be affected by reason of an
invalidity, illegality or irregularity of this
Forbearance Agreement or any Loan Document. The
covenants and agreements contained in or given
pursuant to this Forbearance Agreement or under any
Loan Document shall continue in force until the
payment in full and the discharge of all Obligations
of the Borrower, the Co-Borrower and the Guarantors.
Unless the context of this Forbearance Agreement
otherwise clearly requires, references to the plural
include the singular, the singular the plural and the
part the whole and "or" has the inclusive meaning
represented by the phrase "and/or". The words
"hereof, "herein", "hereunder", and similar terms in
this Forbearance Agreement refer to this Forbearance
Agreement as a whole and not to any particular
provision of this Forbearance Agreement. The section
and other headings contained in this Forbearance
Agreement are for reference purposes only and shall
not control or affect the construction of this
Forbearance Agreement or the interpretation thereof
in any respect. Section and subsection references are
to this Forbearance Agreement unless otherwise
specified.
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19
35. Execution and Return of Forbearance Agreement. If
this Forbearance Agreement has not been signed by the
Borrower, the Co-Borrower and the Guarantors and
returned to the Administrative Agent by December 15,
2000, the Administrative Agent and the Lenders shall
have no obligations hereunder and this Forbearance
Agreement, automatically, without notice or demand of
any kind whatsoever, shall be void and of no force
and effect whatsoever. Subject to the other
requirements set forth herein, this Forbearance
Agreement shall become effective and enforceable upon
the receipt by the Administrative Agent of the
signatures of the Loan Parties as required herein and
the signatures of the Required Lenders. Time is of
the strictest essence.
[SIGNATURE PAGES TO FOLLOW]
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20
FIRST AMENDMENT TO FORBEARANCE AGREEMENT
This FIRST AMENDMENT TO FORBEARANCE AGREEMENT (together with all
agreements, documents and instruments attached hereto or referred to herein as
any or all of the same may be amended, replaced or supplemented from time to
time, the "Amendment to Forbearance Agreement") is dated as of the 11th day of
January, 2001, by and among Borrowers (as defined in the Credit Agreement, as
hereinafter defined), including, without limitation, RENT-WAY, INC., a
Pennsylvania corporation (for itself and successor by merger to Rentavision,
Inc.), as the Borrower, and RENT-WAY OF TTIG, L.P., an Indiana limited
partnership, as 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 BANK OF MONTREAL and XXXXXX TRUST AND SAVINGS BANK,
in their capacity as syndication agents.
R E C I T A L S:
A. Reference is made to that certain Forbearance Agreement
dated as of the 18th day of December, 2000, among Rent-Way, Inc., Rent-Way of
TTIG, L.P., the Guarantors, the Lenders, the Administrative Agent and the
additional agents for the Lenders (the "Forbearance Agreement"). Reference is
also made 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, Amendment No. 4 thereto dated as of June 28, 2000, and
Amendment No. 5 thereto dated as of November 16, 2000, as also modified by a
Waiver dated as of November 16, 2000, and by the Forbearance Agreement
(collectively, the "Credit Agreement"),
B. Each of the Existing Defaults listed in Section 1.C.(a)
through (d) of the Forbearance Agreement is continuing. In addition thereto, an
additional Event of Default has occurred under the Credit Agreement by reason of
the failure of the Loan Parties to deliver the Borrower's consolidated financial
statements as of the end of each month for the months of October 31 and November
30, 2000 as required in accordance with Section 8.3.1 of the Credit Agreement.
C. The Borrower, the Co-Borrower and the Guarantors have
requested that the Administrative Agent and the Lenders enter into this
Amendment to Forbearance Agreement, and the Administrative Agent and the Lenders
are willing to enter into this Amendment to Forbearance Agreement, but only upon
the terms and conditions hereinafter set forth.
21
NOW THEREFORE in consideration of the above recitals and for other good
and valuable consideration, the receipt and adequacy of which are hereby
mutually acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
1) Definitions. All capitalized terms used but not defined in this
Amendment to Forbearance Agreement shall have the meanings ascribed thereto in
the Forbearance Agreement.
2) Affirmation of Recitals. The Recitals set forth above are true and
correct and are incorporated herein by reference.
3) Acknowledgments Regarding Existing Defaults. The Borrower, the
Co-Borrower and the Guarantors acknowledge that each of the Existing Defaults is
continuing and makes and reconfirms as of the date hereof each of the other
acknowledgments in Section 4 of the Forbearance Agreement. The parties to this
Amendment to Forbearance Agreement acknowledge and agree that the failure of the
Loan Parties to deliver (i) the consolidated financial statements of the
Borrower in accordance with Section 8.3.1 of the Credit Agreement for the months
ended October 31 and November 30, 2000, and (ii) the Form 10-K of the Borrower
in accordance with Section 8.3.3 of the Credit Agreement for the fiscal year
ended September 30, 2000, shall from and after the date hereof constitute
additional Existing Defaults.
4) Amendments to Forbearance Agreement.
(a) Section 5 of the Forbearance Agreement is hereby amended
by deleting the reference to "January 16, 2001" and replacing it with "February
28, 2001". It is understood that the effect of such amendment is to extend the
Forbearance Period under the Forbearance Agreement to February 28, 2001 and to
change the "Forbearance Date" to be February 28, 2001.
(b) Section 5 of the Forbearance Agreement is hereby further
amended by deleting the phrase "(ii) during the period from January 2, 2001
through the Forbearance Date, $95,666,042", and in lieu thereof, inserting the
phrase "(ii) during the period from January 2, 2001 through January 16, 2001,
$95,666,042, and (iii) during the period from January 17, 2001 through the
Forbearance Date, $91,127,778". It is understood that the effect of such
amendment is to reduce the maximum amount of aggregate outstanding Revolving
Credit Loans and Letters of Credit Outstanding during the extension of the
Forbearance Period by the amount of $4,538,264.
5) Release; No Discharge. As additional consideration for the
Administrative Agent and the Lenders entering into this Amendment to Forbearance
Agreement, 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, employers, 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
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Guarantors may now have or claim to have on account of or in any way affecting,
concerning or arising out of or founded upon the Forbearance Agreement, as
amended hereby, 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 Forbearance Agreement,
the Loans, the Notes, the Obligations, or any of the Loan Documents. The
obligations of the Borrower, the Co-Borrower and the Guarantors under the Loan
Documents and the Forbearance Agreement, as amended hereby, shall be absolute
and unconditional and shall remain in full force and effect without regard to,
and shall not be released, discharged or in any way affected, except as
otherwise expressly provided by the Forbearance Agreement, as amended hereby,
by:
(a) any exercise or nonexercise by the Administrative Agent or
any Lender of any right, remedy, power or privilege under or in respect of the
Forbearance Agreement, as amended hereby, any Loan Document, any document
relating to or evidencing any of the Administrative Agent's or the Lenders'
Liens or applicable Law, including, without limitation, any waiver, consent,
extension, indulgence or other action or inaction in respect thereof; or
(b) any other act or thing or omission or delay to do any
other act or thing which could operate to or as a discharge of the Borrower, the
Co-Borrower or the Guarantors as a matter of law, other than payment in full of
all Obligations including but not limited to all obligations under the Loan
Documents and the Forbearance Agreement, as amended hereby.
6) No Defenses. Each of the Borrower, the Co-Borrower and the
Guarantors acknowledge and agrees that the Forbearance Agreement, as amended
hereby, and the other Loan Documents are valid and enforceable and that none of
them has any offsets or defenses to the enforcement of the terms and provisions
contained in any thereof.
7) Reservation of Rights and Remedies. The Administrative Agent and the
Lenders expressly reserve any and all rights and remedies available to them or
any of them under the Forbearance Agreement, as amended hereby, the Credit
Agreement and the other Loan Documents, and any other agreement or at law or in
equity or otherwise.
8) Miscellaneous. This Amendment to Forbearance Agreement is made for
the sole benefit and protection of the Administrative Agent, the Lenders, the
Borrower, the Co-Borrower, the Guarantors, and their respective successors and
permitted assigns. No other persons shall have any rights whatsoever hereunder.
Notices to parties hereunder may be given to them at the addresses and in the
manner provided in the Section 11.6 of the Credit Agreement. If any provision of
this Amendment to Forbearance Agreement is held to be invalid or unenforceable,
the remaining provisions shall remain in effect without impairment. All
representations and warranties of the Borrower, the Co-Borrower and the
Guarantors contained herein or made in connection herewith or in connection with
any Loan Document shall survive
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the making of and shall not be waived by the execution and delivery of this
Amendment to Forbearance Agreement, any investigation by the Administrative
Agent or any Lender or any other event or condition whatsoever. None of the
obligations of the Borrower, the Co-Borrower and the Guarantors shall be
affected by reason of invalidity, illegality or irregularity of this Amendment
to Forbearance Agreement or any Loan Document, and except to the extent
expressly provided otherwise herein, and all obligations to make payments to the
Administrative Agent and the Lenders shall survive the termination of all
obligations of the Borrower, the Co-Borrower and the Guarantors under the
Forbearance Agreement, as amended hereby, and under the Loan Documents. Except
to the extent expressly provided otherwise, the covenants and agreements
contained in or given pursuant to the Forbearance Agreement, as amended hereby,
or under any Loan Document shall continue in force until the payment in full and
the discharge of all Obligations of the Borrower, the Co-Borrowers and the
Guarantors. Unless the context of this Amendment to Forbearance Agreement
otherwise clearly requires, references to the plural include the singular, the
singular the plural and the part the whole and "or" has the inclusive meaning
represented by the phrase "and/or". The words "hereof", "herein", "hereunder",
and similar terms in this Amendment to Forbearance Agreement refer to the
Forbearance Agreement as a whole and not to any particular provision of this
Amendment to Forbearance Agreement. The section and other headings contained in
this Amendment to Forbearance Agreement are for reference purposes only and
shall not control or affect the construction of this Amendment to Forbearance
Agreement or the interpretation thereof in any respect. Section and subsection
references are to this Amendment to Forbearance Agreement unless otherwise
specified.
9) Construction. This Amendment to Forbearance Agreement shall not be
construed more strictly against the Administrative Agent or any Lender merely by
virtue of the fact that this Amendment to Forbearance Agreement may have been or
has been prepared by the Administrative Agent, any Lender or its counsel, it
being recognized that the Borrower, the Co-Borrower and the Guarantors have
contributed substantially and materially to the preparation of this Amendment to
Forbearance Agreement. The Borrower, the Co-Borrower and the Guarantors
acknowledge and waive any claim contesting the existence and the adequacy of the
consideration given by any of the other parties hereto for entering into this
Amendment to Forbearance Agreement. All of the Collateral shall remain in all
respects subject to the Lien of the applicable Loan Document, and nothing herein
contained and nothing done pursuant hereto shall affect the Lien of any such
Loan Document or the priority thereof, except to the extent expressly provided
otherwise under the Forbearance Agreement, as amended hereby. Nothing in this
Amendment to Forbearance Agreement shall be intended or construed to hold the
Administrative Agent or any Lender liable or responsible for any expenses,
disbursements, liability or obligation of any kind or nature whatsoever of the
Borrower, the Co-Borrower and the Guarantors.
10) Execution and Return of Amendment to Forbearance Agreement. If this
Amendment to Forbearance Agreement has not been signed by the Borrower, the
Co-Borrower and the Guarantors and returned to the Administrative Agent by 5:00
p.m. Pittsburgh time on January 11, 2001, the Administrative Agent and the
Lenders shall have no obligations hereunder, and this Amendment to Forbearance
Agreement shall be of no force and effect. This
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Amendment to the Forbearance Agreement shall be effective when it has been
signed by the Borrower, the Co-Borrower, the Guarantors and the Required Lenders
and delivered to the Administrative Agent. Time is of the strictest essence.
11) Full Force and Effect of Forbearance Agreement. Except as expressly
amended by this Amendment to Forbearance Agreement, the terms and provisions of
the Forbearance Agreement shall remain unmodified, and the terms and provisions
of the Forbearance Agreement, as amended hereby, shall remain in full force and
effect.
12) Execution in Counterparts. This Amendment to the Forbearance
Agreement may be executed in one or more counterparts and by facsimile, each of
which shall constitute one agreement. Each party executing this Amendment to the
Forbearance Agreement represents that such party has the full authority and
legal power to do so.
[SIGNATURE PAGES TO FOLLOW]
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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SECOND AMENDMENT TO FORBEARANCE AGREEMENT
This SECOND AMENDMENT TO FORBEARANCE AGREEMENT (together with all
agreements, documents and instruments attached hereto or referred to herein as
any or all of the same may be amended, replaced or supplemented from time to
time, the "Amendment to Forbearance Agreement") is dated as of the 28th day of
February, 2001, by and among Borrowers (as defined in the Credit Agreement, as
hereinafter defined), including, without limitation, RENT-WAY, INC., a
Pennsylvania corporation (for itself and successor by merger to Rentavision,
Inc.), as the Borrower, and RENT-WAY OF TTIG, L.P., an Indiana limited
partnership, as 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 BANK OF MONTREAL and XXXXXX TRUST AND SAVINGS BANK,
in their capacity as syndication agents.
R E C I T A L S:
A. Reference is made to that certain Forbearance Agreement
dated as of the 18th day of December, 2000, as amended by a First Amendment
thereto dated as of January 11, 2001, among Rent-Way, Inc., Rent-Way of TTIG,
L.P., the Guarantors, the Lenders, the Administrative Agent and the additional
agents for the Lenders (the "Forbearance Agreement"). Reference is also made 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, Amendment No. 4 thereto dated as of June 28, 2000, and Amendment No. 5
thereto dated as of November 16, 2000, as also modified by a Waiver dated as of
November 16, 2000, and by the Forbearance Agreement (collectively, the "Credit
Agreement"),
B. Each of the Existing Defaults listed in Section 1.C.(a)
through (d) of the Forbearance Agreement and Section 3) of the First Amendment
thereto is continuing. In addition thereto, an additional Event of Default has
occurred under the Credit Agreement by reason of the failure of the Loan Parties
to deliver the Borrower's consolidated financial statements as of the end of
each month for the month of December 31, 2000, as required in accordance with
Section 8.3.1 of the Credit Agreement.
C. The Borrower, the Co-Borrower and the Guarantors have
requested that the Administrative Agent and the Lenders enter into this
Amendment to Forbearance Agreement, and the Administrative Agent and the Lenders
are willing to enter into this Amendment to Forbearance Agreement, but only upon
the terms and conditions hereinafter set forth.
26
NOW THEREFORE in consideration of the above recitals and for other good
and valuable consideration, the receipt and adequacy of which are hereby
mutually acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
1) Definitions. All capitalized terms used but not defined in this
Amendment to Forbearance Agreement shall have the meanings ascribed thereto in
the Forbearance Agreement.
2) Affirmation of Recitals. The Recitals set forth above are true and
correct and are incorporated herein by reference.
3) Acknowledgments Regarding Existing Defaults. The Borrower, the
Co-Borrower and the Guarantors acknowledge that each of the Existing Defaults is
continuing and makes and reconfirms as of the date hereof each of the other
acknowledgments in Section 4 of the Forbearance Agreement and in Section 3) of
the First Amendment thereto. The parties to this Amendment to Forbearance
Agreement acknowledge and agree that the failure of the Loan Parties to deliver
the consolidated financial statements of the Borrower in accordance with Section
8.3.1 of the Credit Agreement for the month ended December 31, 2000, shall from
and after the date hereof constitute an additional Existing Default.
4) Amendments to Forbearance Agreement.
(a) Section 5 of the Forbearance Agreement is hereby amended
by deleting the reference to "February 28, 2001" and replacing it with "April 2,
2001". It is understood that the effect of such amendment is to extend the
Forbearance Period under the Forbearance Agreement to April 2, 2001 and to
change the "Forbearance Date" to be April 2, 2001.
(b) Section 5 of the Forbearance Agreement is hereby further
amended by deleting the phrase "(iii) during the period from January 17, 2001
through the Forbearance Date, $91,127,778", and in lieu thereof, inserting the
phrase "(iii) during the period from January 17, 2001 through February 28, 2001,
$91,127,778, and during the period from February 29 through the Forbearance
Date, $76,127,778". It is understood that the effect of such amendment is to
reduce the maximum amount of aggregate outstanding Revolving Credit Loans and
Letters of Credit Outstanding during the extension of the Forbearance Period by
the amount of $15,000,000.
5) Release; No Discharge. As additional consideration for the
Administrative Agent and the Lenders entering into this Amendment to Forbearance
Agreement, 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, employers, 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
2
27
arising out of or founded upon the Forbearance Agreement, as amended hereby, 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 Forbearance Agreement, the Loans, the
Notes, the Obligations, or any of the Loan Documents. The obligations of the
Borrower, the Co-Borrower and the Guarantors under the Loan Documents and the
Forbearance Agreement, as amended hereby, shall be absolute and unconditional
and shall remain in full force and effect without regard to, and shall not be
released, discharged or in any way affected, except as otherwise expressly
provided by the Forbearance Agreement, as amended hereby, by:
(a) any exercise or nonexercise by the Administrative Agent or
any Lender of any right, remedy, power or privilege under or in respect of the
Forbearance Agreement, as amended hereby, any Loan Document, any document
relating to or evidencing any of the Administrative Agent's or the Lenders'
Liens or applicable Law, including, without limitation, any waiver, consent,
extension, indulgence or other action or inaction in respect thereof; or
(b) any other act or thing or omission or delay to do any
other act or thing which could operate to or as a discharge of the Borrower, the
Co-Borrower or the Guarantors as a matter of law, other than payment in full of
all Obligations including but not limited to all obligations under the Loan
Documents and the Forbearance Agreement, as amended hereby.
6) No Defenses. Each of the Borrower, the Co-Borrower and the
Guarantors acknowledge and agrees that the Forbearance Agreement, as amended
hereby, and the other Loan Documents are valid and enforceable and that none of
them has any offsets or defenses to the enforcement of the terms and provisions
contained in any thereof.
7) Reservation of Rights and Remedies. The Administrative Agent and the
Lenders expressly reserve any and all rights and remedies available to them or
any of them under the Forbearance Agreement, as amended hereby, the Credit
Agreement and the other Loan Documents, and any other agreement or at law or in
equity or otherwise.
8) Miscellaneous. This Amendment to Forbearance Agreement is made for
the sole benefit and protection of the Administrative Agent, the Lenders, the
Borrower, the Co-Borrower, the Guarantors, and their respective successors and
permitted assigns. No other persons shall have any rights whatsoever hereunder.
Notices to parties hereunder may be given to them at the addresses and in the
manner provided in the Section 11.6 of the Credit Agreement. If any provision of
this Amendment to Forbearance Agreement is held to be invalid or unenforceable,
the remaining provisions shall remain in effect without impairment. All
representations and warranties of the Borrower, the Co-Borrower and the
Guarantors contained herein or made in connection herewith or in connection with
any Loan Document shall survive the making of and shall not be waived by the
execution and delivery of this Amendment to
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28
Forbearance Agreement, any investigation by the Administrative Agent or any
Lender or any other event or condition whatsoever. None of the obligations of
the Borrower, the Co-Borrower and the Guarantors shall be affected by reason of
invalidity, illegality or irregularity of this Amendment to Forbearance
Agreement or any Loan Document, and except to the extent expressly provided
otherwise herein, and all obligations to make payments to the Administrative
Agent and the Lenders shall survive the termination of all obligations of the
Borrower, the Co-Borrower and the Guarantors under the Forbearance Agreement, as
amended hereby, and under the Loan Documents. Except to the extent expressly
provided otherwise, the covenants and agreements contained in or given pursuant
to the Forbearance Agreement, as amended hereby, or under any Loan Document
shall continue in force until the payment in full and the discharge of all
Obligations of the Borrower, the Co-Borrowers and the Guarantors. Unless the
context of this Amendment to Forbearance Agreement otherwise clearly requires,
references to the plural include the singular, the singular the plural and the
part the whole and "or" has the inclusive meaning represented by the phrase
"and/or". The words "hereof", "herein", "hereunder", and similar terms in this
Amendment to Forbearance Agreement refer to the Forbearance Agreement as a whole
and not to any particular provision of this Amendment to Forbearance Agreement.
The section and other headings contained in this Amendment to Forbearance
Agreement are for reference purposes only and shall not control or affect the
construction of this Amendment to Forbearance Agreement or the interpretation
thereof in any respect. Section and subsection references are to this Amendment
to Forbearance Agreement unless otherwise specified.
9) Construction. This Amendment to Forbearance Agreement shall not be
construed more strictly against the Administrative Agent or any Lender merely by
virtue of the fact that this Amendment to Forbearance Agreement may have been or
has been prepared by the Administrative Agent, any Lender or its counsel, it
being recognized that the Borrower, the Co-Borrower and the Guarantors have
contributed substantially and materially to the preparation of this Amendment to
Forbearance Agreement. The Borrower, the Co-Borrower and the Guarantors
acknowledge and waive any claim contesting the existence and the adequacy of the
consideration given by any of the other parties hereto for entering into this
Amendment to Forbearance Agreement. All of the Collateral shall remain in all
respects subject to the Lien of the applicable Loan Document, and nothing herein
contained and nothing done pursuant hereto shall affect the Lien of any such
Loan Document or the priority thereof, except to the extent expressly provided
otherwise under the Forbearance Agreement, as amended hereby. Nothing in this
Amendment to Forbearance Agreement shall be intended or construed to hold the
Administrative Agent or any Lender liable or responsible for any expenses,
disbursements, liability or obligation of any kind or nature whatsoever of the
Borrower, the Co-Borrower and the Guarantors.
10) Execution and Return of Amendment to Forbearance Agreement. If this
Amendment to Forbearance Agreement has not been signed by the Borrower, the
Co-Borrower and the Guarantors and returned to the Administrative Agent by 12:00
noon Pittsburgh time on February 27, 2001, the Administrative Agent and the
Lenders shall have no obligations hereunder, and this Amendment to Forbearance
Agreement shall be of no force and effect. This Amendment to the Forbearance
Agreement shall be effective when it has been signed by the
4
29
Borrower, the Co-Borrower, the Guarantors and the Required Lenders and delivered
to the Administrative Agent. Time is of the strictest essence.
11) Full Force and Effect of Forbearance Agreement. Except as expressly
amended by this Amendment to Forbearance Agreement, the terms and provisions of
the Forbearance Agreement shall remain unmodified, and the terms and provisions
of the Forbearance Agreement, as amended hereby, shall remain in full force and
effect.
12) Execution in Counterparts. This Amendment to the Forbearance
Agreement may be executed in one or more counterparts and by facsimile, each of
which shall constitute one agreement. Each party executing this Amendment to the
Forbearance Agreement represents that such party has the full authority and
legal power to do so.
[SIGNATURE PAGES TO FOLLOW]
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
5
30
THIRD AMENDMENT TO FORBEARANCE AGREEMENT
This THIRD AMENDMENT TO FORBEARANCE AGREEMENT (together with all
agreements, documents and instruments attached hereto or referred to herein as
any or all of the same may be amended, replaced or supplemented from time to
time, the "Amendment to Forbearance Agreement") is dated as of the 2nd day of
April, 2001, by and among Borrowers (as defined in the Credit Agreement, as
hereinafter defined), including, without limitation, RENT-WAY, INC., a
Pennsylvania corporation (for itself and successor by merger to Rentavision,
Inc.), as the Borrower, and RENT-WAY OF TTIG, L.P., an Indiana limited
partnership, as 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 BANK OF MONTREAL and XXXXXX TRUST AND SAVINGS BANK,
in their capacity as syndication agents.
R E C I T A L S:
A. Reference is made to that certain Forbearance Agreement
dated as of the 18th day of December, 2000, as amended by a First Amendment
thereto dated as of January 11, 2001, and a Second Amendment thereto dated as of
February 29, 2001, among Rent-Way, Inc., Rent-Way of TTIG, L.P., the Guarantors,
the Lenders, the Administrative Agent and the additional agents for the Lenders
(the "Forbearance Agreement"). Reference is also made 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, Amendment No. 4
thereto dated as of June 28, 2000, and Amendment No. 5 thereto dated as of
November 16, 2000, as also modified by a Waiver dated as of November 16, 2000,
and by the Forbearance Agreement (collectively, the "Credit Agreement"),
B. Each of the Existing Defaults listed in Section 1.C.(a)
through (d) of the Forbearance Agreement and Section 3) of both the First
Amendment and Second Amendment thereto is continuing. In addition thereto, an
additional Event of Default has occurred under the Credit Agreement by reason of
the failure of the Loan Parties to deliver the Borrower's consolidated financial
statements as of the end of each month for the month of January 31, 2001 and
February 28, 2001, as required in accordance with Section 8.3.1 of the Credit
Agreement.
C. The Borrower, the Co-Borrower and the Guarantors have
requested that the Administrative Agent and the Lenders enter into this
Amendment to Forbearance Agreement, and the Administrative Agent and the Lenders
are willing to enter into this Amendment to Forbearance Agreement, but only upon
the terms and conditions hereinafter set forth.
31
NOW THEREFORE in consideration of the above recitals and for other good
and valuable consideration, the receipt and adequacy of which are hereby
mutually acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
1) Definitions. All capitalized terms used but not defined in this
Amendment to Forbearance Agreement shall have the meanings ascribed thereto in
the Forbearance Agreement.
2) Affirmation of Recitals. The Recitals set forth above are true and
correct and are incorporated herein by reference.
3) Acknowledgments Regarding Existing Defaults. The Borrower, the
Co-Borrower and the Guarantors acknowledge that each of the Existing Defaults is
continuing and makes and reconfirms as of the date hereof each of the other
acknowledgments in Section 4 of the Forbearance Agreement and in Section 3) of
both the First Amendment and the Second Amendment thereto. The parties to this
Amendment to Forbearance Agreement acknowledge and agree that the failure of the
Loan Parties to deliver the consolidated financial statements of the Borrower in
accordance with Section 8.3.1 of the Credit Agreement for the months ended
January 31, 2001, and February 28, 2001, shall from and after the date hereof
constitute an additional Existing Default.
4) Amendments to Forbearance Agreement. Section 5 of the Forbearance
Agreement is hereby amended by deleting the reference to "April 2, 2001" and
replacing it with "June 7, 2001". It is understood that the effect of such
amendment is to extend the Forbearance Period under the Forbearance Agreement to
June 7, 2001, and to change the "Forbearance Date" to be June 7, 2001.
5) Extension and Forbearance Fee. On April 3, 2001, the Borrowers shall
pay to the Agent an extension and forbearance fee in an amount equal to the
product obtained by multiplying .0015 by the sum of the Revolving Credit
Commitments of, and the principal balance outstanding on the Term Loans A and
Term Loans B as of March 23, 2001, owed to those Lenders which execute and
deliver to the Agent this Amendment to Forbearance Agreement prior to 5:00 p.m.
Pittsburgh time on March 30, 2001 (which may be sent by facsimile copy). After
receipt of such extension and forbearance fee from the Borrowers, the Agent
shall pay to those Lenders which execute and deliver to the Agent this Amendment
to Forbearance Agreement prior to 5:00 p.m. Pittsburgh time on March 30, 2001
(which may be sent by facsimile copy), an amount equal to fifteen (15) basis
points of each such Lender's Revolving Credit Commitments, Term Loan A and Term
Loan B as of March 23, 2001.
6) Release; No Discharge. As additional consideration for the
Administrative Agent and the Lenders entering into this Amendment to Forbearance
Agreement, 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, employers, 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,
2
32
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 the Forbearance
Agreement, as amended hereby, 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 Forbearance Agreement, the Loans, the Notes, the Obligations, or any of the
Loan Documents. The obligations of the Borrower, the Co-Borrower and the
Guarantors under the Loan Documents and the Forbearance Agreement, as amended
hereby, shall be absolute and unconditional and shall remain in full force and
effect without regard to, and shall not be released, discharged or in any way
affected, except as otherwise expressly provided by the Forbearance Agreement,
as amended hereby, by:
(a) any exercise or nonexercise by the Administrative Agent or
any Lender of any right, remedy, power or privilege under or in respect of the
Forbearance Agreement, as amended hereby, any Loan Document, any document
relating to or evidencing any of the Administrative Agent's or the Lenders'
Liens or applicable Law, including, without limitation, any waiver, consent,
extension, indulgence or other action or inaction in respect thereof; or
(b) any other act or thing or omission or delay to do any
other act or thing which could operate to or as a discharge of the Borrower, the
Co-Borrower or the Guarantors as a matter of law, other than payment in full of
all Obligations including but not limited to all obligations under the Loan
Documents and the Forbearance Agreement, as amended hereby.
7) No Defenses. Each of the Borrower, the Co-Borrower and the
Guarantors acknowledge and agrees that the Forbearance Agreement, as amended
hereby, and the other Loan Documents are valid and enforceable and that none of
them has any offsets or defenses to the enforcement of the terms and provisions
contained in any thereof.
8) Reservation of Rights and Remedies. The Administrative Agent and the
Lenders expressly reserve any and all rights and remedies available to them or
any of them under the Forbearance Agreement, as amended hereby, the Credit
Agreement and the other Loan Documents, and any other agreement or at law or in
equity or otherwise.
9) Miscellaneous. This Amendment to Forbearance Agreement is made for
the sole benefit and protection of the Administrative Agent, the Lenders, the
Borrower, the Co-Borrower, the Guarantors, and their respective successors and
permitted assigns. No other persons shall have any rights whatsoever hereunder.
Notices to parties hereunder may be given to them at the addresses and in the
manner provided in Section 11.6 of the Credit Agreement. If any provision of
this Amendment to Forbearance Agreement is held to be invalid or unenforceable,
the remaining provisions shall remain in effect without impairment. All
representations and warranties of the Borrower, the Co-Borrower and the
Guarantors contained
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33
herein or made in connection herewith or in connection with any Loan Document
shall survive the making of and shall not be waived by the execution and
delivery of this Amendment to Forbearance Agreement, any investigation by the
Administrative Agent or any Lender or any other event or condition whatsoever.
None of the obligations of the Borrower, the Co-Borrower and the Guarantors
shall be affected by reason of invalidity, illegality or irregularity of this
Amendment to Forbearance Agreement or any Loan Document, and except to the
extent expressly provided otherwise herein, and all obligations to make payments
to the Administrative Agent and the Lenders shall survive the termination of all
obligations of the Borrower, the Co-Borrower and the Guarantors under the
Forbearance Agreement, as amended hereby, and under the Loan Documents. Except
to the extent expressly provided otherwise, the covenants and agreements
contained in or given pursuant to the Forbearance Agreement, as amended hereby,
or under any Loan Document shall continue in force until the payment in full
and the discharge of all Obligations of the Borrower, the Co-Borrowers and the
Guarantors. Unless the context of this Amendment to Forbearance Agreement
otherwise clearly requires, references to the plural include the singular, the
singular the plural and the part the whole and "or" has the inclusive meaning
represented by the phrase "and/or". The words "hereof", "herein", "hereunder",
and similar terms in this Amendment to Forbearance Agreement refer to the
Forbearance Agreement as a whole and not to any particular provision of this
Amendment to Forbearance Agreement. The section and other headings contained in
this Amendment to Forbearance Agreement are for reference purposes only and
shall not control or affect the construction of this Amendment to Forbearance
Agreement or the interpretation thereof in any respect. Section and subsection
references are to this Amendment to Forbearance Agreement unless otherwise
specified.
9) Construction. This Amendment to Forbearance Agreement shall not be
construed more strictly against the Administrative Agent or any Lender merely by
virtue of the fact that this Amendment to Forbearance Agreement may have been or
has been prepared by the Administrative Agent, any Lender or its counsel, it
being recognized that the Borrower, the Co-Borrower and the Guarantors have
contributed substantially and materially to the preparation of this Amendment to
Forbearance Agreement. The Borrower, the Co-Borrower and the Guarantors
acknowledge and waive any claim contesting the existence and the adequacy of the
consideration given by any of the other parties hereto for entering into this
Amendment to Forbearance Agreement. All of the Collateral shall remain in all
respects subject to the Lien of the applicable Loan Document, and nothing herein
contained and nothing done pursuant hereto shall affect the Lien of any such
Loan Document or the priority thereof, except to the extent expressly provided
otherwise under the Forbearance Agreement, as amended hereby. Nothing in this
Amendment to Forbearance Agreement shall be intended or construed to hold the
Administrative Agent or any Lender liable or responsible for any expenses,
disbursements, liability or obligation of any kind or nature whatsoever of the
Borrower, the Co-Borrower and the Guarantors.
10) Execution and Return of Amendment to Forbearance Agreement. If this
Amendment to Forbearance Agreement has not been signed by the Borrower, the
Co-Borrower and the Guarantors and returned to the Administrative Agent by 12:00
noon Pittsburgh time on March 30, 2001, the Administrative Agent and the Lenders
shall have no obligations hereunder,
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34
and this Amendment to Forbearance Agreement shall be of no force and effect.
This Amendment to the Forbearance Agreement shall be effective when it has been
signed by the Borrower, the Co-Borrower, the Guarantors and the Required Lenders
and delivered to the Administrative Agent. Time is of the strictest essence.
11) Full Force and Effect of Forbearance Agreement. Except as expressly
amended by this Amendment to Forbearance Agreement, the terms and provisions of
the Forbearance Agreement shall remain unmodified, and the terms and provisions
of the Forbearance Agreement, as amended hereby, shall remain in full force and
effect.
12) Execution in Counterparts. This Amendment to the Forbearance
Agreement may be executed in one or more counterparts and by facsimile, each of
which shall constitute one agreement. Each party executing this Amendment to the
Forbearance Agreement represents that such party has the full authority and
legal power to do so.
[SIGNATURE PAGES TO FOLLOW]
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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35
FOURTH AMENDMENT TO FORBEARANCE AGREEMENT
This FOURTH AMENDMENT TO FORBEARANCE AGREEMENT (together with all
agreements, documents and instruments attached hereto or referred to herein as
any or all of the same may be amended, replaced or supplemented from time to
time, the "Amendment to Forbearance Agreement") is dated as of the 25th day of
May, 2001, by and among Borrowers (as defined in the Credit Agreement, as
hereinafter defined), including, without limitation, RENT-WAY, INC., a
Pennsylvania corporation (for itself and successor by merger to Rentavision,
Inc.), as the Borrower, and RENT-WAY OF TTIG, L.P., an Indiana limited
partnership, as 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 BANK OF MONTREAL and XXXXXX TRUST AND SAVINGS BANK,
in their capacity as syndication agents.
R E C I T A L S:
A. Reference is made to that certain Forbearance Agreement
dated as of the 18th day of December, 2000, as amended by a First Amendment
thereto dated as of January 11, 2001, a Second Amendment thereto dated as of
February 29, 2001, and a Third Amendment thereto dated as of April 2, 2001,
among Rent-Way, Inc., Rent-Way of TTIG, L.P., the Guarantors, the Lenders, the
Administrative Agent and the additional agents for the Lenders (the "Forbearance
Agreement"). Reference is also made 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, Amendment No. 4 thereto dated as of June
28, 2000, and Amendment No. 5 thereto dated as of November 16, 2000, as also
modified by a Waiver dated as of November 16, 2000, and by the Forbearance
Agreement (collectively, the "Credit Agreement"),
B. Pursuant to Section 10(e) of the Forbearance Agreement, a
"Termination Event" and an "Event of Funding Termination", as such terms are
defined in the Forbearance Agreement, shall occur if the independent certified
public accountants of the Loan Parties report that either: (i) the adjustment
required to be made to the unaudited consolidated financial statements of the
Borrower for the fiscal year ended September 30, 2000, results in a negative
impact to such consolidated financial statements of the Borrower in excess of
$75,000,000 on a pre-tax basis, or (ii) any material adjustment is required to
be made in any audited consolidated financial statements of the Borrower for the
fiscal year ended September 30, 1999, or any fiscal year prior thereto. Based
upon information provided by the Loan Parties to the Lenders, the independent
certified public accountants of the Loan Parties have determined that both of
the events in items (i) and (ii) above exist.
C. Without giving effect to the Termination Event described in
the preceding recital, the agreement of the Lenders to forbear in accordance
with the terms of the
36
Forbearance Agreement, as set forth in the Third Amendment thereto dated as of
April 2, 2001, was otherwise scheduled to expire on June 7, 2001.
D. The Borrower, the Co-Borrower and the Guarantors have
requested that the Administrative Agent and the Lenders enter into this
Amendment to Forbearance Agreement to address the above described Termination
Event and Event of Funding Termination, and the Administrative Agent and the
Lenders are willing to enter into this Amendment to Forbearance Agreement, but
only upon the terms and conditions hereinafter set forth.
NOW THEREFORE in consideration of the above recitals and for other good
and valuable consideration, the receipt and adequacy of which are hereby
mutually acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
1) Definitions. All capitalized terms used but not defined in this
Amendment to Forbearance Agreement shall have the meanings ascribed thereto in
the Forbearance Agreement.
2) Affirmation of Recitals. The Recitals set forth above are true and
correct and are incorporated herein by reference.
3) Temporary Waiver of Certain Provisions of the Forbearance Agreement.
The Lenders hereby waive for the period commencing as of the occurrence of the
following Event of Termination and Event of Funding Termination through June 7,
2001 (the "Waiver Period") the following provisions:
(a) the independent certified public accountants of the Loan
Parties, or either of the professionals engaged or co-engaged by counsel to the
Administrative Agent, report either orally or in writing, or otherwise determine
that the adjustment required to be made to the unaudited consolidated financial
statements of the Borrower for the fiscal year ended September 30, 2000, results
in a negative impact to such consolidated financial statements of the Borrower
in excess of $75,000,000 on a pre-tax basis; and
(b) the independent certified public accountants of the Loan
Parties, or either of the professionals engaged or co-engaged by counsel to the
Administrative Agent, report either orally or in writing, or otherwise determine
that any material adjustment is required to be made in any audited consolidated
financial statements of the Borrower for the fiscal year ended September 30,
1999, or any fiscal year prior thereto.
The above waivers are expressly limited in scope and duration and no
other waiver of any other direct or indirect Termination Event or Event of
Funding Termination is implied or granted.
4) Extension and Waiver Fee. On May 29, 2001, the Borrowers shall pay
to the Agent an extension and waiver fee in an amount equal to the product
obtained by multiplying .00075 by the sum of the Revolving Credit Commitments
of, and the principal balance
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37
outstanding on the Term Loans A and Term Loans B as of May 25, 2001, owed to
those Lenders which execute and deliver to the Agent this Amendment to
Forbearance Agreement prior to 5:00 p.m. Pittsburgh time on May 25, 2001 (which
may be sent by facsimile copy). After receipt of such extension and waiver fee
from the Borrowers, the Agent shall pay to those Lenders which execute and
deliver to the Agent this Amendment to Forbearance Agreement prior to 5:00 p.m.
Pittsburgh time on May 25, 2001 (which may be sent by facsimile copy), an amount
equal to seven and one-half (7-1/2) basis points of each such Lender's Revolving
Credit Commitments, Term Loan A and Term Loan B as of May 25, 2001.
5) Release; No Discharge. As additional consideration for the
Administrative Agent and the Lenders entering into this Amendment to Forbearance
Agreement, 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, employers, 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 the Forbearance
Agreement, as amended hereby, 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 Forbearance Agreement, the Loans, the Notes, the Obligations, or any of the
Loan Documents. The obligations of the Borrower, the Co-Borrower and the
Guarantors under the Loan Documents and the Forbearance Agreement, as amended
hereby, shall be absolute and unconditional and shall remain in full force and
effect without regard to, and shall not be released, discharged or in any way
affected, except as otherwise expressly provided by the Forbearance Agreement,
as amended hereby, by:
(a) any exercise or nonexercise by the Administrative Agent or
any Lender of any right, remedy, power or privilege under or in respect of the
Forbearance Agreement, as amended hereby, any Loan Document, any document
relating to or evidencing any of the Administrative Agent's or the Lenders'
Liens or applicable Law, including, without limitation, any waiver, consent,
extension, indulgence or other action or inaction in respect thereof; or
(b) any other act or thing or omission or delay to do any
other act or thing which could operate to or as a discharge of the Borrower, the
Co-Borrower or the Guarantors as a matter of law, other than payment in full of
all Obligations including but not limited to all obligations under the Loan
Documents and the Forbearance Agreement, as amended hereby.
6) No Defenses. Each of the Borrower, the Co-Borrower and the
Guarantors acknowledge and agrees that the Forbearance Agreement, as amended
hereby, and the other Loan
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Documents are valid and enforceable and that none of them has any offsets or
defenses to the enforcement of the terms and provisions contained in any
thereof.
7) Reservation of Rights and Remedies. The Administrative Agent and the
Lenders expressly reserve any and all rights and remedies available to them or
any of them under the Forbearance Agreement, as amended hereby, the Credit
Agreement and the other Loan Documents, and any other agreement or at law or in
equity or otherwise.
8) Miscellaneous. This Amendment to Forbearance Agreement is made for
the sole benefit and protection of the Administrative Agent, the Lenders, the
Borrower, the Co-Borrower, the Guarantors, and their respective successors and
permitted assigns. No other persons shall have any rights whatsoever hereunder.
Notices to parties hereunder may be given to them at the addresses and in the
manner provided in Section 11.6 of the Credit Agreement. If any provision of
this Amendment to Forbearance Agreement is held to be invalid or unenforceable,
the remaining provisions shall remain in effect without impairment. All
representations and warranties of the Borrower, the Co-Borrower and the
Guarantors contained herein or made in connection herewith or in connection with
any Loan Document shall survive the making of and shall not be waived by the
execution and delivery of this Amendment to Forbearance Agreement, any
investigation by the Administrative Agent or any Lender or any other event or
condition whatsoever. None of the obligations of the Borrower, the Co-Borrower
and the Guarantors shall be affected by reason of invalidity, illegality or
irregularity of this Amendment to Forbearance Agreement or any Loan Document,
and except to the extent expressly provided otherwise herein, and all
obligations to make payments to the Administrative Agent and the Lenders shall
survive the termination of all obligations of the Borrower, the Co-Borrower and
the Guarantors under the Forbearance Agreement, as amended hereby, and under the
Loan Documents. Except to the extent expressly provided otherwise, the covenants
and agreements contained in or given pursuant to the Forbearance Agreement, as
amended hereby, or under any Loan Document shall continue in force until the
payment in full and the discharge of all Obligations of the Borrower, the
Co-Borrowers and the Guarantors. Unless the context of this Amendment to
Forbearance Agreement otherwise clearly requires, references to the plural
include the singular, the singular the plural and the part the whole and "or"
has the inclusive meaning represented by the phrase "and/or". The words
"hereof", "herein", "hereunder", and similar terms in this Amendment to
Forbearance Agreement refer to the Forbearance Agreement as a whole and not to
any particular provision of this Amendment to Forbearance Agreement. The section
and other headings contained in this Amendment to Forbearance Agreement are for
reference purposes only and shall not control or affect the construction of this
Amendment to Forbearance Agreement or the interpretation thereof in any respect.
Section and subsection references are to this Amendment to Forbearance Agreement
unless otherwise specified.
9) Construction. This Amendment to Forbearance Agreement shall not be
construed more strictly against the Administrative Agent or any Lender merely by
virtue of the fact that this Amendment to Forbearance Agreement may have been or
has been prepared by the Administrative Agent, any Lender or its counsel, it
being recognized that the Borrower, the Co-Borrower and the Guarantors have
contributed substantially and materially to the preparation of
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this Amendment to Forbearance Agreement. The Borrower, the Co-Borrower and the
Guarantors acknowledge and waive any claim contesting the existence and the
adequacy of the consideration given by any of the other parties hereto for
entering into this Amendment to Forbearance Agreement. All of the Collateral
shall remain in all respects subject to the Lien of the applicable Loan
Document, and nothing herein contained and nothing done pursuant hereto shall
affect the Lien of any such Loan Document or the priority thereof, except to the
extent expressly provided otherwise under the Forbearance Agreement, as amended
hereby. Nothing in this Amendment to Forbearance Agreement shall be intended or
construed to hold the Administrative Agent or any Lender liable or responsible
for any expenses, disbursements, liability or obligation of any kind or nature
whatsoever of the Borrower, the Co-Borrower and the Guarantors.
10) Execution and Return of Amendment to Forbearance Agreement. If this
Amendment to Forbearance Agreement has not been signed by the Borrower, the
Co-Borrower and the Guarantors and returned to the Administrative Agent by 5:00
p.m. Pittsburgh time on May 25, 2001, the Administrative Agent and the Lenders
shall have no obligations hereunder, and this Amendment to Forbearance Agreement
shall be of no force and effect. This Amendment to the Forbearance Agreement
shall be effective when it has been signed by the Borrower, the Co-Borrower, the
Guarantors and the Required Lenders and delivered to the Administrative Agent.
Time is of the strictest essence.
11) Full Force and Effect of Forbearance Agreement. Except as expressly
amended by this Amendment to Forbearance Agreement, the terms and provisions of
the Forbearance Agreement shall remain unmodified, and the terms and provisions
of the Forbearance Agreement, as amended hereby, shall remain in full force and
effect.
12) Execution in Counterparts. This Amendment to the Forbearance
Agreement may be executed in one or more counterparts and by facsimile, each of
which shall constitute one agreement. Each party executing this Amendment to the
Forbearance Agreement represents that such party has the full authority and
legal power to do so.
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FIFTH AMENDMENT TO FORBEARANCE AGREEMENT
This FIFTH AMENDMENT TO FORBEARANCE AGREEMENT (together with all
agreements, documents and instruments attached hereto or referred to herein as
any or all of the same may be amended, replaced or supplemented from time to
time, the "Amendment to Forbearance Agreement") is dated as of the 7th day of
June, 2001, by and among Borrowers (as defined in the Credit Agreement, as
hereinafter defined), including, without limitation, RENT-WAY, INC., a
Pennsylvania corporation (for itself and successor by merger to Rentavision,
Inc.), as the Borrower, and RENT-WAY OF TTIG, L.P., an Indiana limited
partnership, as 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 BANK OF MONTREAL and XXXXXX TRUST AND SAVINGS BANK,
in their capacity as syndication agents.
R E C I T A L S:
A. Reference is made to that certain Forbearance Agreement dated as of
the 18th day of December, 2000, as amended by a First Amendment thereto dated as
of January 11, 2001, a Second Amendment thereto dated as of February 29, 2001, a
Third Amendment thereto dated as of April 2, 2001, and a Fourth Amendment
thereto dated as of May 25, 2001, among Rent-Way, Inc., Rent-Way of TTIG, L.P.,
the Guarantors, the Lenders, the Administrative Agent and the additional agents
for the Lenders (the "Forbearance Agreement"). Reference is also made 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,
Amendment No. 4 thereto dated as of June 28, 2000, and Amendment No. 5 thereto
dated as of November 16, 2000, as also modified by a Waiver dated as of November
16, 2000, and by the Forbearance Agreement (collectively, the "Credit
Agreement"),
B. Each of the Existing Defaults listed in Section 1.C.(a) through (d)
of the Forbearance Agreement and Section 3) of the First, Second and Third
Amendments and the Termination Event set forth in Recital B of the Fourth
Amendment are continuing. In addition thereto, an additional Event of Default
has occurred under the Credit Agreement by reason of the failure of the Loan
Parties to deliver the Borrower's consolidated financial statements as of the
end of each month for the months of March 31, 2001 and April 30, 2001, as
required in accordance with Section 8.3.1 of the Credit Agreement, and as of the
end of the fiscal quarter ended March 31, 2001, as required in accordance with
Section 8.3.2 of the Credit Agreement.
C. The Borrower, the Co-Borrower and the Guarantors have requested that
the Administrative Agent and the Lenders enter into this Amendment to
Forbearance Agreement, and the Administrative Agent and the Lenders are willing
to enter into this
41
Amendment to Forbearance Agreement, but only upon the terms and conditions
hereinafter set forth.
NOW THEREFORE in consideration of the above recitals and for
other good and valuable consideration, the receipt and adequacy of which are
hereby mutually acknowledged, and intending to be legally bound hereby, the
parties hereto agree as follows:
1) Definitions. All capitalized terms used but not defined in
this Amendment to Forbearance Agreement shall have the meanings ascribed thereto
in the Forbearance Agreement.
2) Affirmation of Recitals. The Recitals set forth above are
true and correct and are incorporated herein by reference.
3) Acknowledgments Regarding Existing Defaults. The Borrower,
the Co-Borrower and the Guarantors acknowledge that each of the Existing
Defaults is continuing and makes and reconfirms as of the date hereof each of
the other acknowledgments in Section 4 of the Forbearance Agreement and in
Section 3) of both the First Amendment, the Second Amendment and the Third
Amendment thereto, as well as the Termination Event set forth in Recital B of
the Fourth Amendment thereto. The parties to this Amendment to Forbearance
Agreement acknowledge and agree that the Existing Defaults and the Termination
Event described above, as well as the failure of the Loan Parties to deliver the
consolidated financial statements of the Borrower in accordance with Section
8.3.1 and 8.3.2 of the Credit Agreement for the months ended March 31, 2001, and
April 30, 2001, and the fiscal quarter ended March 31, 2001, shall from and
after the date hereof constitute additional Existing Defaults.
4) Amendment to Forbearance Agreement. Section 5 of the
Forbearance Agreement is hereby amended by deleting the reference to "June 7,
2001" and replacing it with "July 31, 2001". It is understood that the effect of
such amendment is to extend the Forbearance Period under the Forbearance
Agreement to July 31, 2001, and to change the "Forbearance Date" to be July 31,
2001.
5) Extension and Forbearance Fee. On June 8, 2001, the
Borrowers shall pay to the Agent an extension and forbearance fee in an amount
equal to the product obtained by multiplying .0015 by the sum of the Revolving
Credit Commitments of, and the principal balance outstanding on the Term Loans A
and Term Loans B as of June 7, 2001, owed to those Lenders which execute and
deliver to the Agent this Amendment to Forbearance Agreement prior to 12:00 noon
Pittsburgh time on June 7, 2001 (which may be sent by facsimile copy). After
receipt of such extension and forbearance fee from the Borrowers, the Agent
shall pay to those Lenders which execute and deliver to the Agent this Amendment
to Forbearance Agreement prior to 12:00 noon Pittsburgh time on June 7, 2001
(which may be sent by facsimile copy), an amount equal to fifteen (15) basis
points of each such Lender's Revolving Credit Commitments, Term Loan A and Term
Loan B as of June 7, 2001.
6) Release; No Discharge. As additional consideration for the
Administrative Agent and the Lenders entering into this Amendment to Forbearance
Agreement,
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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, employers, 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 the Forbearance
Agreement, as amended hereby, 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 Forbearance Agreement, the Loans, the Notes, the Obligations, or any of the
Loan Documents. The obligations of the Borrower, the Co-Borrower and the
Guarantors under the Loan Documents and the Forbearance Agreement, as amended
hereby, shall be absolute and unconditional and shall remain in full force and
effect without regard to, and shall not be released, discharged or in any way
affected, except as otherwise expressly provided by the Forbearance Agreement,
as amended hereby, by:
(a) any exercise or nonexercise by the Administrative
Agent or any Lender of any right, remedy, power or privilege under or in respect
of the Forbearance Agreement, as amended hereby, any Loan Document, any document
relating to or evidencing any of the Administrative Agent's or the Lenders'
Liens or applicable Law, including, without limitation, any waiver, consent,
extension, indulgence or other action or inaction in respect thereof; or
(b) any other act or thing or omission or delay to
do any other act or thing which could operate to or as a discharge of the
Borrower, the Co-Borrower or the Guarantors as a matter of law, other than
payment in full of all Obligations including but not limited to all obligations
under the Loan Documents and the Forbearance Agreement, as amended hereby.
7) No Defenses. Each of the Borrower, the Co-Borrower and the
Guarantors acknowledge and agrees that the Forbearance Agreement, as amended
hereby, and the other Loan Documents are valid and enforceable and that none of
them has any offsets or defenses to the enforcement of the terms and provisions
contained in any thereof.
8) Reservation of Rights and Remedies. The Administrative
Agent and the Lenders expressly reserve any and all rights and remedies
available to them or any of them under the Forbearance Agreement, as amended
hereby, the Credit Agreement and the other Loan Documents, and any other
agreement or at law or in equity or otherwise.
9) Miscellaneous. This Amendment to Forbearance Agreement is
made for the sole benefit and protection of the Administrative Agent, the
Lenders, the Borrower, the Co-Borrower, the Guarantors, and their respective
successors and permitted assigns. No other
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persons shall have any rights whatsoever hereunder. Notices to parties hereunder
may be given to them at the addresses and in the manner provided in Section 11.6
of the Credit Agreement. If any provision of this Amendment to Forbearance
Agreement is held to be invalid or unenforceable, the remaining provisions shall
remain in effect without impairment. All representations and warranties of the
Borrower, the Co-Borrower and the Guarantors contained herein or made in
connection herewith or in connection with any Loan Document shall survive the
making of and shall not be waived by the execution and delivery of this
Amendment to Forbearance Agreement, any investigation by the Administrative
Agent or any Lender or any other event or condition whatsoever. None of the
obligations of the Borrower, the Co-Borrower and the Guarantors shall be
affected by reason of invalidity, illegality or irregularity of this Amendment
to Forbearance Agreement or any Loan Document, and except to the extent
expressly provided otherwise herein, and all obligations to make payments to the
Administrative Agent and the Lenders shall survive the termination of all
obligations of the Borrower, the Co-Borrower and the Guarantors under the
Forbearance Agreement, as amended hereby, and under the Loan Documents. Except
to the extent expressly provided otherwise, the covenants and agreements
contained in or given pursuant to the Forbearance Agreement, as amended hereby,
or under any Loan Document shall continue in force until the payment in full and
the discharge of all Obligations of the Borrower, the Co-Borrowers and the
Guarantors. Unless the context of this Amendment to Forbearance Agreement
otherwise clearly requires, references to the plural include the singular, the
singular the plural and the part the whole and "or" has the inclusive meaning
represented by the phrase "and/or". The words "hereof", "herein", "hereunder",
and similar terms in this Amendment to Forbearance Agreement refer to the
Forbearance Agreement as a whole and not to any particular provision of this
Amendment to Forbearance Agreement. The section and other headings contained in
this Amendment to Forbearance Agreement are for reference purposes only and
shall not control or affect the construction of this Amendment to Forbearance
Agreement or the interpretation thereof in any respect. Section and subsection
references are to this Amendment to Forbearance Agreement unless otherwise
specified.
10) Construction. This Amendment to Forbearance Agreement
shall not be construed more strictly against the Administrative Agent or any
Lender merely by virtue of the fact that this Amendment to Forbearance Agreement
may have been or has been prepared by the Administrative Agent, any Lender or
its counsel, it being recognized that the Borrower, the Co-Borrower and the
Guarantors have contributed substantially and materially to the preparation of
this Amendment to Forbearance Agreement. The Borrower, the Co-Borrower and the
Guarantors acknowledge and waive any claim contesting the existence and the
adequacy of the consideration given by any of the other parties hereto for
entering into this Amendment to Forbearance Agreement. All of the Collateral
shall remain in all respects subject to the Lien of the applicable Loan
Document, and nothing herein contained and nothing done pursuant hereto shall
affect the Lien of any such Loan Document or the priority thereof, except to the
extent expressly provided otherwise under the Forbearance Agreement, as amended
hereby. Nothing in this Amendment to Forbearance Agreement shall be intended or
construed to hold the Administrative Agent or any Lender liable or responsible
for any expenses, disbursements, liability or obligation of any kind or nature
whatsoever of the Borrower, the Co-Borrower and the Guarantors.
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11) Execution and Return of Amendment to Forbearance
Agreement. If this Amendment to Forbearance Agreement has not been signed by the
Borrower, the Co-Borrower and the Guarantors and returned to the Administrative
Agent by 12:00 noon Pittsburgh time on June 7, 2001, the Administrative Agent
and the Lenders shall have no obligations hereunder, and this Amendment to
Forbearance Agreement shall be of no force and effect. This Amendment to the
Forbearance Agreement shall be effective when it has been signed by the
Borrower, the Co-Borrower, the Guarantors and the Required Lenders and delivered
to the Administrative Agent. Time is of the strictest essence.
12) Full Force and Effect of Forbearance Agreement. Except as
expressly amended by this Amendment to Forbearance Agreement, the terms and
provisions of the Forbearance Agreement shall remain unmodified, and the terms
and provisions of the Forbearance Agreement, as amended hereby, shall remain in
full force and effect.
13) Execution in Counterparts. This Amendment to the
Forbearance Agreement may be executed in one or more counterparts and by
facsimile, each of which shall constitute one agreement. Each party executing
this Amendment to the Forbearance Agreement represents that such party has the
full authority and legal power to do so.
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