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Exhibit 10.16
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT is dated as of January 31,
1997 (the "Amendment") and is made by and among RENT-WAY, INC., a Pennsylvania
corporation (the "Borrower"), each of the Guarantors and each of the BANKS (as
defined in the Credit Agreement defined below), and NATIONAL CITY BANK OF
PENNSYLVANIA, in its capacity as agent for the Banks under the Credit Agreement
(hereinafter referred to in such capacity as the "Agent").
WITNESSETH:
WHEREAS, the Borrower, the Guarantors, the Banks and the Agent entered
in to that certain Credit Agreement, dated as of November 22, 1996 (as
hereafter amended, the "Credit Agreement");
WHEREAS, defined terms used herein shall have the meanings given to
them in the Credit Agreement as such Credit Agreement shall be amended hereby
on the First Amendment Effective Date;
WHEREAS, the Borrower has entered into the Xxxx Xxxxxxx Acquisition
Agreement, pursuant to which Borrower purchased on January 2, 1997 all of the
issued and outstanding shares of stock of Xxxx Xxxxxxx TV;
WHEREAS, the Borrower has entered into the Perry Electronics
Acquisition Agreement, pursuant to which Borrower proposes to purchase on the
closing date specified therein all of the issued and outstanding shares of the
stock of Perry Electronics;
WHEREAS, the parties hereto desire to amend the Credit Agreement to
acknowledge that the Xxxx Xxxxxxx TV Acquisition and the Perry Electronics are
Permitted Acquisitions, subject to the terms and conditions hereof and to make
certain other changes to the Credit Agreement as more fully provided herein.
NOW, THEREFORE, the parties hereto, in consideration of their mutual
covenants and agreements hereinafter set forth and intending to be legally
bound hereby, covenant and agree as follows:
1. Amendments to Credit Agreement. The Credit Agreement is amended as
set forth below effective on the dates set forth in Section 6 hereof:
(a) Amended and Restated Definitions (Section 1.1). Each of the
following definitions now contained in Section 1.1 of the Credit Agreement is
hereby amended and restated to read as set forth below:
"Consolidated Funded Debt shall mean as of any date of
determination, the sum of Indebtedness for borrowed money
(including capitalized leases, BUT EXCLUDING INDEBTEDNESS UNDER
THE NWB SUBORDINATED
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LOAN DOCUMENTS AND THE MMLIC Subordinated LOAN DOCUMENTS) and
Letters of Credit Outstanding, in each case of the Borrower and
its Subsidiaries determined and consolidated in accordance with
GAAP.
Consolidated Tangible Net Worth shall mean as of any date of
determination total stockholders' equity plus preferred stock to
the extent it is not already included in the stockholders' equity,
PLUS INDEBTEDNESS UNDER THE NWB SUBORDINATED LOAN DOCUMENTS, less
intangible assets of the Borrower and its Subsidiaries, IN EACH
CASE as of such date determined and consolidated in accordance
with GAAP.
Loan Documents shall mean this Agreement, the Agent's Letter,
the Collateral Assignment, the Guaranty Agreement, the Indemnity
Agreement, the Intercompany Subordination Agreement, the Mortgage,
the Notes, the Patent, Trademark and Copyright Assignment, the
Pledge Agreement, the Security Agreement, THE FIRST AMENDMENT and
any other instruments, certificates or documents delivered or
contemplated to be delivered hereunder, thereunder OR UNDER THE
FIRST AMENDMENT or in connection herewith or therewith, as the
same may be supplemented or amended from time to time in
accordance herewith or therewith, and Loan Document shall mean any
of the Loan Documents.
Subordinated Debt shall mean (i) Indebtedness of the Borrower
to MMLIC, the other Purchasers (as such term is defined in the
MMLIC Subordinated Loan Documents) and their successors and
assigns, evidenced by the MMLIC Subordinated Loan Documents and
subject to the subordination terms set forth in Section 8 thereof,
(II) INDEBTEDNESS OF THE BORROWER TO THE SECURITYHOLDERS (AS SUCH
TERM IS DEFINED IN THE NWB INDENTURE) AND THEIR SUCCESSORS AND
ASSIGNS, EVIDENCED BY THE NWB SUBORDINATED LOAN DOCUMENTS AND
SUBJECT TO THE SUBORDINATION TERMS SET FORTH IN SECTION 11
THEREOF, AND (iii) Indebtedness of the Loan Parties to Persons
which sell ownership interests or assets to the Loan Parties under
a Permitted Acquisition in accordance with Section 8.2.6.
Subordinated Loan Documents shall MEAN (i) THE MMLIC
SUBORDINATED LOAN DOCUMENTS, (ii) THE NWB SUBORDINATED LOAN
DOCUMENTS, AND (iii) all agreements evidencing the Subordinated
Debt owed to Persons which sell ownership interests or assets to
the Loan Parties under a Permitted Acquisition in accordance with
Section 8.2.6."
(b) New Definitions (Section 1.1). The following new definitions
are hereby added to Section 1.1 of the Credit Agreement in alphabetical order:
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"Xxxx Xxxxxxx TV shall mean Xxxx Xxxxxxx TV, Inc., a Michigan
corporation, the stock of which was acquired by the Borrower on
January 2, 1997 pursuant to the Xxxx Xxxxxxx TV Acquisition
Agreement.
Xxxx Xxxxxxx TV Acquisition shall mean the acquisition by
Borrower of the stock of Xxxx Xxxxxxx TV pursuant to the Xxxx
Xxxxxxx TV Acquisition Agreement and the other transactions
pursuant to or as contemplated by the Xxxx Xxxxxxx TV Acquisition
Agreement.
Xxxx Xxxxxxx TV Acquisition Agreement shall mean that certain
Stock Purchase Agreement, dated as of January 2, 1997, between
Borrower and Xxxx Xxxxxxx TV, as amended from time to time.
First Amendment shall mean the First Amendment to Credit
Agreement, dated as of January 31, 1997 as the same may be
supplemented or amended from time to time, including all schedules
and exhibits thereto.
First Amendment Effective Date shall have the meaning given to
such term in the First Amendment.
MMLIC Subordinated Loan Documents shall mean the Subordinated
Note Agreement dated as of July 15, 1995 between the Borrower,
MMLIC and the Purchasers (as such term is defined therein) and any
and all other documents evidencing or relating to the obligations
of the Borrower or any Loan Party to the Purchasers.
NWB shall mean National Westminster Bank, Plc., its successors
and assigns. NWB is the placement agent with respect to the
securities to be issued under the NWB Indenture.
NWB Debt Amendments Effective Date shall have the meaning
given to such term in the First Amendment.
NWB Indenture shall mean the Indenture dated as of the date of
the First Amendment by and between the Borrower and Manufacturers
and Traders Trust Company, as the trustee, with respect to up to
$23,000,000 of Subordinated Debentures due 2007 to be issued by
the Borrower. NWB is the Placement Agent under the NWB Indenture.
NWB Subordinated Loan Documents shall mean the NWB Indenture
and the Securities (as defined in the NWB Indenture) issued
pursuant thereto and any other documents evidencing or relating
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to the obligations of the Borrower or any Loan Party to the
Securityholders (as defined in the NWB Indenture).
Perry Electronics shall mean Perry Electronics, Inc., an Ohio
corporation, the stock of which is to be acquired by the Borrower
on the First Amendment Effective Date pursuant to the Perry
Electronics Acquisition Agreement.
Perry Electronics Acquisition shall mean the proposed
acquisition by Borrower of the stock of Perry Electronics to be
consummated on the First Amendment Effective Date pursuant to the
Perry Electronics Acquisition Agreement and the other transactions
pursuant to or as contemplated by the Perry Electronics
Acquisition Agreement.
Perry Electronics Acquisition Agreement shall mean that
certain Stock Purchase Agreement, dated as of January 24, 1997,
between the Borrower and Perry Electronics, as amended from time
to time."
Perry Electronics Amendments Effective Date shall have the
meaning given to such term in the First Amendment.
Restrictive PE Leases shall have meaning given to such term in
the First Amendment.
(c) Principal Office of Perry Electronics. A new Section 8.1.15 is
hereby added to the Credit Agreement to immediately follow Section 8.1.14. Such
Section 8.1.15 shall read as follows:
"8.1.15 Principal Office of Perry Electronics. Perry
Electronics (or the Borrower if Perry Electronics has merged into
the Borrower) shall execute and deliver to the Agent for the
benefit of each of the Banks the documents listed in (a) through
(d) below on or before the date which is ninety (90) days
following the Perry Electronics Closing Date (the "Office Move
Deadline") if Perry Electronics or the Borrower uses the office
located at 0000 Xxxxxxx Xxxxxxx Xxxx Xxxxxxxxx, Xxxx (the
"Massillon Office") as an office for any purposes on or after the
Office Move Deadline. Borrower shall be deemed to use the
Massillon Office as an office if Borrower or any of its officers,
managers or employees (other than a single manager who shall not
have general corporate responsibilities) do any of the following
(i) maintain or store records of the Perry Electronics or the
Borrower, (ii) conduct business of or manage Perry Electronics or
the Borrower or (iii) convene for matters relating to the business
of Borrower or Perry Electronics.
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(a) a leasehold mortgage on the lessee's leasehold interest
in the Massillon Office in a form acceptable to the Agent
(b) an Indemnity Agreement in the form attached as Exhibit
1.1(i)(1) relating to the Massillon Office;
(c) a mortgagee's title policy relating to the Massillon
Office in the form described in Section 7.1.14; and
(d) an environmental report in the form described in
Section 7.1.7 relating to the Massillon Office."
(d) Indebtedness. Clause (ii) of Section 8.2.1 of the Credit
Agreement is hereby amended and restated as set forth below:
"(ii) Indebtedness AS OF THE NWB DEBT AMENDMENTS EFFECTIVE
DATE as set forth on Schedule 8.2.1 (including any extensions or
renewals thereof, provided there is no increase in the amount
thereof or other significant change in the terms thereof FOLLOWING
THE NWB DEBT AMENDMENTS EFFECTIVE DATE unless otherwise specified
on Schedule 8.2.1;"
(e) Dividends and Related Distributions. Section 8.2.5 to the
Credit Agreement is hereby amended and restated to read as follows:
"8.2.5 Dividends and Related Distributions.
Each of the Loan Parties shall not, and shall not permit any
of its Subsidiaries to, make or pay, or agree to become or remain
liable to make or pay, any dividend or other distribution of any
nature (whether in cash, property, securities or otherwise) on
account of or in respect of its shares of capital stock,
partnership interests or limited liability company interests on
account of the purchase, redemption, retirement or acquisition of
its shares of capital stock (or warrants, options or rights
therefor), partnership interests or limited liability company
interests, except THAT (i) THE LOAN PARTIES MAY PAY dividends or
other distributions payable to another Loan Party, AND (ii) THE
BORROWER MAY PAY PRINCIPAL, INTEREST OR DIVIDENDS ON THE
SUBORDINATED DEBT, SUBJECT TO (i) THE RESTRICTIONS ON PREPAYMENTS
IN SECTION 8.2.23 AND (ii) THE RESTRICTIONS ON PAYMENTS CONTAINED
IN THE SUBORDINATION AND OTHER PROVISIONS CONTAINED IN THE MMLIC
SUBORDINATED LOAN DOCUMENTS AND THE NWB SUBORDINATED LOAN
DOCUMENTS."
(f) Liquidations, Mergers, Consolidations, Acquisitions. Section
8.2.6(1) to the Credit Agreement is hereby amended and restated to read as
follows:
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"(1) any Loan Party other than the Borrower
may consolidate or merge into another Loan Party which is
wholly-owned by one or more of the other Loan Parties,
PROVIDED, THAT BORROWER SHALL DELIVER TO THE AGENT COPIES OF
THE APPLICABLE MERGER OR CONSOLIDATION DOCUMENTATION WITHIN
FIVE (5) BUSINESS DAYS AFTER THE EFFECTIVE DATE OF SUCH
MERGER OR CONSOLIDATION AND THE APPROPRIATE LOAN PARTIES
SHALL PROMPTLY THEREAFTER (BUT IN NO EVENT IN LESS THAN FIVE
(5) BUSINESS DAYS AFTER THE AGENT'S REQUEST THEREFORE)
EXECUTE AND DELIVER TO THE AGENT NEW UCC-1 FINANCING
STATEMENTS OR AMENDMENTS TO FILED UCC-1 FINANCING STATEMENTS,
AS APPROPRIATE IN THE DISCRETION OF THE AGENT, AND TAKE SUCH
OTHER ACTION AS IS NECESSARY TO MAINTAIN FIRST PRIORITY LIENS
IN THE ASSETS OF THE PARTIES TO SUCH MERGER OR CONSOLIDATION;
AND"
(g) Subordinated Loan Document Covenants; Amendment. Section
8.2.20 is hereby amended and restated to read as set forth below:
"8.2.20 Subordinated Loan Document Covenants; Amendment.
The Loan Parties shall not be in default with respect to the
Fixed Charge Coverage Ratio as set forth in Section 4.6 of the
MMLIC Subordinated Loan Documents or be in default of the covenant
set forth in Section 4.5(c) of the such MMLIC Subordinated Loan
Documents. The Loan Parties shall not amend the terms of the MMLIC
Subordinated Loan Documents OR THE NWB SUBORDINATED LOAN DOCUMENTS
without the prior written consent of the Agent."
(h) Prepayment on Subordinated Debt. Section 8.2.23 is hereby
amended and restated to read as set forth below:
"8.2.23 Prepayments on Subordinated Debt.
The Loan Parties shall not make any voluntary prepayment,
redemption or repurchase on account of ANY OF the Subordinated
Debt."
(i) Consents of Landlords Under Leases of Perry Electronics
Stores. A new Section 8.2.25 is hereby added to the Credit Agreement to
immediately follow Section 8.2.25. Such Section 8.2.25 shall read as follows:
"8.2.25 Consents of Landlords Under Leases of Perry
Electronics Stores. Borrower or Perry Electronics shall use its
best efforts to not fail to obtain consents in a form acceptable
to the Agent consenting to the purchase and sale of the stock of
Perry Electronics to the Borrower from landlords and shall obtain
such consents under at
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least 50% of the Restrictive PE Leases within thirty (30) days
after the Perry Electronics Amendments Effective Date.
(j) Defaults in Other Agreements or Indebtedness. The words,
"(including the Subordinated Debt)" shall be inserted in the second line of
Section 9.1.5 (Defaults in Other Agreements or Indebtedness) immediately after
the words, "or the extension of credit or any other Indebtedness".
(k) Loan Document Unenforceable. The words, "or any provision
relating or affecting subordination contained in any Subordinated Loan
Documents" shall be inserted in the first line of Section 9.1.7 (Loan Document
Unenforceable) immediately after the words, "Any of the Loan Documents".
(l) Amendments to Exhibits to Credit Agreement. The following
Exhibits to the Credit Agreement are hereby amended and restated in their
entirety in the forms of such Exhibits attached hereto:
Exhibit 1.1(S) Security Agreement, including Schedule A - list
of office and asset locations
Exhibit 8.3.4 Quarterly Compliance Certificate
(m) Amendments to Schedules to Credit Agreement. The following
Schedules to the Credit Agreement are hereby amended and restated in their
entirety in the forms of such Schedules attached hereto:
Schedule 1.1(B) - Commitments of Banks and Addresses for
Notices
Schedule 1.1(P) - Permitted Liens
Schedule 6.1.1 - Qualifications to do Business
Schedule 6.1.2 - Capitalization
Schedule 6.1.3 - Subsidiaries
Schedule 6.1.7 - Litigation
Schedule 6.1.8 - Owned And Leased Real Property
Schedule 6.1.13 - Consents And Approvals
Schedule 6.1.15 - Patents, Trademarks, Copyrights,
Licenses
Schedule 6.1.18 - Partnership Agreements; LLC Agreements
Schedule 6.1.19 - Insurance Policies
Schedule 6.1.21 - Material Contracts
Schedule 6.1.23 - Employee Benefit Plan Disclosures
Schedule 6.1.25 - Environmental Disclosures
Schedule 8.2.1 - Permitted Indebtedness
Schedule 8.2.10 - Business of Loan Parties
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2. Waivers, Warranties and Covenants. The Loan Parties and the Banks
acknowledge and agree as set forth in this Section 2, effective on the dates
set forth in Section 6 hereof.
(a) Xxxx Xxxxxxx TV Acquisition.
(i) Delivery Due Dates. The Loan Parties waive the requirement
that the Loan Parties must satisfy the requirements contained in Subsections
8.2.6(2)(ii), (vi) and (xi) of the Credit Agreement in connection with the Xxxx
Xxxxxxx TV Acquisition on or before the due dates specified in such
Subsections, provided that the Loan Parties shall satisfy the conditions
contained in such Subsections on or before the First Amendment Effective Date.
(ii) Consideration. The total Consideration given by the Loan
Parties in connection with the Xxxx Xxxxxxx TV Acquisition was approximately
$6,700,000, all of which consisted of cash paid or Indebtedness assumed by the
Borrower.
(b) Perry Electronics Acquisition.
(i) Notice; Borrowing Base Certificate. The Loan Parties waive
the requirement that the Loan Parties deliver to the Agent written notice of
the Perry Electronics Acquisition under Subsection 8.2.6(2)(vi) (as more fully
described in such Subsection) at least fourteen (14) days before the
consummation of such acquisition, provided that the Loan Parties shall deliver
such notice and otherwise comply with such Subsection in connection with the
Perry Electronics Acquisition on or before the First Amendment Effective Date.
(ii) Consideration Limitations. The Loan Parties waive the
requirement in Subsection 8.2.6(2)(viii) in connection with the Perry
Electronics Acquisition that the Loan Parties shall not give Consideration in
cash, preferred stock and/or other Consideration other than common capital
stock of the Borrower in excess of $7,500,000 in connection with any individual
Permitted Acquisition (but do not waive the requirement in such Section that
the Consideration in connection with all Permitted Acquisitions may not exceed
in the aggregate $30,000,000 after the Closing Date), in each instance as more
fully provided in Subsection 8.2.6(2)(viii), provided that the Loan Parties
covenant and agree that the total Consideration given by the Loan Parties in
connection with the Perry Electronics Acquisition shall not exceed $23,000,000
all of which consists of either cash paid or Indebtedness assumed by the
Borrower.
(iii) Consents. There are no material consents required to
effectuate the purchase and sale of the stock of Perry Electronics and the
other transactions under the Perry Electronics Acquisition Documents, except
that the Borrower might be required to obtain the consent of landlords under
leases (the "Restrictive PE Leases") listed on Schedule 6.1.13 for the purchase
and sale of the stock of Perry Electronics to the Borrower. The Restrictive PE
Leases comprise no more than 50% of the leases of Perry Electronics for its
stores.
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(c) Both Acquisitions.
(i) Other Conditions in Section 8.2.6(2) Satisfied. The Loan
Parties represent, warrant and covenant to the Agent and each of the Banks that
after giving effect to the waivers in this Section 2 above and upon
satisfaction of the conditions set forth in Section 3 of this Amendment, each
of the conditions in Section 8.2.6(2) of the Credit Agreement shall be
satisfied with respect to each of the Xxxx Xxxxxxx TV Acquisition and the Perry
Electronics Acquisition and each such acquisition shall constitute a "Permitted
Acquisition" as such term is defined in Section 8.2.6(2).
(ii) Covenant to Obtain Landlord's Waivers. The Loan Parties
shall deliver to the Agent an executed Landlord's Waiver in substantially the
form of Exhibit 1.1(L) to the Credit Agreement from lessors of at least 50% of
the Collateral locations added pursuant to the Xxxx Xxxxxxx TV Acquisition and
the Perry Electronics Acquisition in accordance with Section 8.2.24 of the
Credit Agreement, except that the term "closing date" as used in Section 8.2.24
as it relates to the Xxxx Xxxxxxx Acquisition shall be deemed to mean the First
Amendment Effective Date.
(iii) Delivery of Documents. Borrower has delivered to the Agent
for the benefit of the Banks true and correct copies of the Xxxx Xxxxxxx
Acquisition Agreement, the Perry Electronics Acquisition Agreement and the NWB
Indenture.
3. Conditions Precedent. The provisions contained in Sections 1 and 2 of
this Amendment shall not become effective until each of the conditions set
forth in this Section 3 has been satisfied. The date on which such conditions
are satisfied shall be referred to as the "First Amendment Effective Date" The
provisions in all other Sections of this Amendment are effective on the date
hereof and are not subject to the conditions set forth in this Section 3.
(a) Satisfaction of Conditions in Section 6(a). Each of the
conditions set forth in Section 6(a) hereof (execution of this Amendment and
completion of Schedules and Exhibits hereto) shall have been satisfied.
(b) Events of Default; Potential Defaults, Compliance Certificate. No
Event of Default or Potential Default which might not be cured before it
results in an Event of Default shall have occurred and be continuing after
giving effect to the Perry Electronics Acquisition to be consummated
simultaneously with the First Amendment Effective Date. The Chief Executive
Officer, President or Chief Financial Officer of the Borrower shall have
executed and delivered to the Agent for the benefit of each Bank a certificate
in the form of Exhibit 3(b) hereto confirming the same, including a
confirmation that Borrower shall be in compliance with the covenants contained
in Sections 8.2.16, 8.2.17 and 8.2.19 after giving effect to the amendments
herein and to the Perry Electronics Acquisition.
(c) Other Loan Document Deliveries by Xxxx Xxxxxxx TV, Xxxxx
Electronics and the Borrower. Each of Xxxx Xxxxxxx TV, Perry Electronics and
the Borrower, as applicable, shall execute and deliver each of the following
documents:
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(i) Guaranty Agreement. Each of Xxxx Xxxxxxx TV and Perry
Electronics shall execute and deliver to the Agent for the benefit of each of
the Banks the Guaranty Agreement in the form of Exhibit 1.1(G)(2) of the Credit
Agreement.
(ii) Security Agreement. Each of Xxxx Xxxxxxx TV and Perry
Electronics shall (1) execute and deliver to the Agent for the benefit of each
of the Banks the Guaranty Agreement in the form of Exhibit 1.1(S) of the Credit
Agreement and (2) complete and deliver to the Agent the Schedule A (list of
office and asset locations) to such Security Agreement.
(iii) UCC-1 Financing Statements.
(A) Xxxx Xxxxxxx TV and Perry Electronics. Each of Xxxx
Xxxxxxx TV and Perry Electronics shall execute and deliver to the Agent for the
benefit of each of the Banks UCC-1 financing statements sufficient to perfect
Liens in its personal property in all jurisdictions where filing of such
statements is necessary or appropriate to perfect such Liens in the discretion
of the Agent.
(B) Borrower - UCC-1 Statements. Borrower shall execute
and deliver to the Agent for the benefit of each of the Banks UCC-1 financing
statements sufficient to perfect Liens in the personal property of Xxxx Xxxxxxx
TV and Perry Electronics in favor of the Agent, assuming that such property is
hereafter transferred to the Borrower, in all appropriate jurisdictions where
filing of such statements would be necessary or appropriate to maintain
perfection of such Liens following such transfer.
(C) Borrower - UCC-3 Statements. Borrower shall execute
and deliver to the Agent for the benefit of each of the Banks UCC-3 statements
amending prior UCC-1 filings against the Borrower in Pennsylvania as necessary
to reflect amendments to the Pennsylvania Uniform Commercial Code relating to
perfection of Liens in "Investment Property" (as such term is defined in such
Code).
(iv) Pledge Agreement and Related Documents. The Borrower
shall execute and deliver, as applicable, to the Agent for the benefit of each
of the Banks (1) the Pledge Agreement in the form of Exhibit 1.1(P)(2) of the
Credit Agreement, pledging its stock in Xxxx Xxxxxxx TV and Perry Electronics
(2) the schedule of pledged securities to be attached as thereto, (3) the
original stock certificates representing such stock, (4) stock powers
respecting such certificates, and (5) UCC-1 financing statements to be filed in
order perfect Liens in such stock to the extent such Liens can be perfected by
filing.
(v) Intercompany Subordination Agreement. The Borrower, Xxxx
Xxxxxxx TV and Perry Electronics each shall execute and deliver to the Agent
for the benefit of each of the Banks the Intercompany Subordination Agreement
in the form attached as Exhibit 1.1(I)(2) to the Credit Agreement.
(vi) Joinder to Credit Agreement. Each of Xxxx Xxxxxxx TV and
Perry Electronics shall execute and deliver to the Agent for the benefit of
each of the Banks a joinder
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agreement in a form acceptable to the Agent pursuant to which it shall
acknowledge that it has joined the Credit Agreement as a Loan Party. Such
joinder may be included in the Guaranty Agreement described in (i) above.
(vii) Collateral Assignment. The Borrower, Xxxx Xxxxxxx TV and
Perry Electronics shall execute and deliver to the Agent for the benefit of
each of the Banks the Collateral Assignment in the form attached as Exhibit
1.1(C) to the Credit Agreement pursuant to which they shall assignee their
interests in (1) the Rental Contracts of Xxxx Xxxxxxx TV and Perry Electronics,
(2) the leases of Xxxx Xxxxxxx TV and Perry Electronics and (3) the Xxxx
Xxxxxxx TV Acquisition Agreement and the Perry Electronics Acquisition
Agreement.
(viii) Patent, Trademark and Copyright Assignment. Perry
Electronics shall execute and deliver to the Agent for the benefit of each of
the Banks the Patent, Trademark and Copyright Assignment in the form of Exhibit
1.1(P)(1) of the Credit Agreement.
(d) Borrowing Base Certificate. The Borrower shall execute and
deliver, as applicable, to the Agent for the benefit of each of the Banks a
Borrowing Base Certificate which evidences that after giving effect to the Xxxx
Xxxxxxx TV Acquisition and the Perry Electronics Acquisition and the Loans to
be made in connection therewith, the Loans and Letters of Credit Outstanding
shall not exceed the Borrowing Base (excluding from the Borrowing Base all
Rental Contracts to be acquired pursuant to the Xxxx Xxxxxxx TV Acquisition and
the Perry Electronics Acquisition).
(e) Lien Search. The Borrower shall deliver to the Agent the results
of a Lien search satisfactory to the Agent evidencing that the Liens to be
granted in the assets of Xxxx Xxxxxxx TV and Perry Electronics will be first
priority Liens.
(f) Payoff Letters; Lien Releases. The Borrower shall have delivered
Payoff Letters and copies of Lien releases evidencing that the following
Indebtedness has been repaid and that the Liens securing the same have been
terminated of record:
(i) Indebtedness of Borrower to First Source under the Secured
Credit Agreement dated as of July 21, 1995 (Lien releases);
(ii) Indebtedness of Xxxx Xxxxxxx TV to FINOVA Capital
Corporation (payoff letter and Lien releases); and
(iii) Indebtedness of Perry Electronics to United National
Bank, Canton, Ohio (payoff letter and Lien releases).
(g) Secretary's Certificate. The Secretary or Assistant Secretary of
Xxxx Xxxxxxx TV and Perry Electronics shall execute and deliver to the Agent
for the benefit of each Bank a certificate dated as of the date hereof,
certifying as to
(i) all corporate or partnership action taken by it in
connection with the documents listed in clause (b) above;
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(ii) the names of the officer or officers authorized to sign
this Amendment and the related documents and the true signatures of such
officer or officers and specifying the Authorized Officers permitted to act on
behalf of them for purposes of this Amendment and the true signatures of such
officers, on which the Agent and each Bank may conclusively rely; and
(iii) copies of the organizational documents of, including the
certificate of incorporation, bylaws and corporate resolutions as in effect on
the First Amendment Effective Date, together with certificates from the
appropriate state officials as to the continued existence and good standing of
it in each state where it is organized or qualified to do business.
(h) Opinion of Counsel.
(i) Xxxxxxx Xxxx Xxxxxxx Xxxx & Goodyear, LLP, counsel for the
Borrower, Xxxx Xxxxxxx TV and Perry Electronics (who may rely on the opinions
of such other counsel as may be acceptable to the Agent), shall have delivered
to the Agent for the benefit of each Bank a written opinion dated as of the
date hereof and in form and substance satisfactory to the Agent and its counsel
as to the matters set forth in Exhibit 3(h) hereto.
(ii) In house counsel for the Borrower and for Xxxx Xxxxxxx TV
and Perry Electronics (following the acquisitions by the Borrower of the stock
of such corporations), shall have delivered to the Agent for the benefit of
each Bank a written opinion dated as of the date hereof and in form and
substance satisfactory to the Agent and its counsel as to the rent-to-own
regulatory matters set forth in Exhibit 3(h) hereto with respect to
jurisdictions in which the Loan Parties conduct business which such counsel did
not addressed in its prior opinion.
(iii) The opinion of counsel for the shareholders of Perry
Electronics to be delivered to the Borrower pursuant to the Perry Electronics
Acquisition shall provide that the Banks may rely thereon.
(i) Delivery of Documents; No Modifications; Consummation of
Transactions. Borrower shall have delivered true and correct copies of all of
NWB Subordinated Loan Documents and the documents executed or delivered in
connection with the Xxxx Xxxxxxx TV Acquisition and the Perry Electronics
Acquisition. There shall have been no amendments to the Xxxx Xxxxxxx TV
Acquisition Agreement, the Perry Electronics Acquisition Agreement or the NWB
Indenture between the date on which Borrower delivered such documents to the
Agent (which shall be on or before the date of this Amendment) and the First
Amendment Effective Date unless the Agent the Banks shall have consented to the
same in writing. The transactions under the Xxxx Xxxxxxx TV Acquisition
Agreement, the Perry Electronics Acquisition Agreement and the NWB Subordinated
Loan Documents shall have been consummated.
(j) Consents. All material consents required to effectuate the
transactions contemplated by the Xxxx Xxxxxxx TV Acquisition Documents, the
Perry Electronics Acquisition Documents (except for the consents of the
landlords under the Restrictive PE Leases which consents are addressed in
Section 8.2.25 of the Credit Agreement) and the NWB Subordinated Loan Documents
shall have been obtained.
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(k) Perry Electronics and Xxxx Xxxxxxx TV Leases. Borrower shall
deliver to the Agent either (i) copies of each of the leases of Perry
Electronics and Xxxx Xxxxxxx TV for their sales offices or (ii) summaries of
such leases prepared by Borrower or its counsel in a form acceptable to the
Agent, such summaries to include a (without limitation) description of the
principal terms of such lease, any restrictions on the transfer of the lease or
of the ownership of the Borrower and a confirmation that the lease does not by
its terms grant to the lessor any Liens in the assets of the lessee.
(l) Fees and Expenses. Borrower shall have paid all outstanding fees
and expenses due to the Agent or the Banks, including the fees of Agent's
counsel in connection with this Amendment.
(m) Legal Details. All legal details and proceedings in connection
with the transactions contemplated by this Amendment and the other Loan
Documents shall be in form and substance satisfactory to the Agent and counsel
for the Agent, and the Agent shall have received all such other counterpart
originals or certified or other copies of such documents and proceedings in
connection with such transactions, in form and substance satisfactory to the
Agent and said counsel, as the Agent or said counsel may reasonably request.
4. Full Force and Effect. The Credit Agreement and each of other Loan
Documents shall remain in full force and effect on and after the date of this
Amendment except as expressly amended hereby or pursuant hereto. On and after
the date hereof, each reference in the Credit Agreement to "this Agreement",
"hereunder" or words of like import shall mean and be a reference to the Credit
Agreement, as amended by this Amendment, and each reference in each other Loan
Document to the "Credit Agreement" shall mean and be a reference to the Credit
Agreement, as previously amended and as amended by this Amendment. The parties
hereto do not amend or waive any provisions of the Credit Agreement or the
other Loan Documents except as expressly set forth herein.
5. Counterparts. This Amendment may be executed by different parties
hereto on any number of separate counterparts, each of which, when so executed
and delivered, shall be an original, and all such counterparts shall together
constitute one and the same instrument.
6. Effective Date.
(a) First Amendment Effective Date. All provisions of this Amendment
shall be effective on the date on which the conditions listed in (i) and (ii)
below have been satisfied (the "First Amendment Effective Date"), except for
those provisions hereof referred to in Sections 6(b), (c) and (d) which shall
not become effective until the dates specified in such Sections.:
(i) Execution and Delivery. this Amendment has been executed,
in counterparts or otherwise, and delivered to the Agent for the benefit of the
Banks; and
(ii) Completion of Schedules and Exhibits. Each of the
Schedules and Exhibits hereto has been completed and attached hereto.
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(b) NWB Debt Amendments Effective Date. The provisions listed under
the heading "Provisions Which Shall Become Effective on the NWB Debt Amendments
Effective Date" below shall become effective on the date on which the
conditions listed under the heading "Conditions to Amendments and Waivers
Relating to NWB Debt Issuance" shall have been satisfied (such date shall be
referred to as the "NWB Debt Amendments Effective Date"). If such conditions
listed below are not satisfied and the Borrower has not issued its convertible
securities pursuant to the NWB Indenture on or before February 28, 1997, then
the provisions listed below shall not become effective.
PROVISIONS WHICH SHALL BECOME EFFECT
ON THE NWB DEBT AMENDMENTS EFFECTIVE DATE
------------ ------------------------------------------------------
Section Title
------------ ------------------------------------------------------
1(a) Definition of "Consolidated Funded Debt"
------------ ------------------------------------------------------
1(a) Definition of "Subordinated Debt"
------------ ------------------------------------------------------
1(a) Definition of "Subordinated Loan Documents"
------------ ------------------------------------------------------
1(d) Indebtedness
------------ ------------------------------------------------------
1(e) Dividends and Related Distributions
------------ ------------------------------------------------------
1(g) Subordinated Loan Document Covenants; Amendment
------------ ------------------------------------------------------
1(h) Prepayment and Subordinated Debt
------------ ------------------------------------------------------
CONDITIONS TO AMENDMENTS AND WAIVERS
RELATING TO NWB DEBT ISSUANCE
------------ ------------------------------------------------------
Section Title
------------ ------------------------------------------------------
3(a) Satisfaction of Conditions in Section 6(a)
------------ ------------------------------------------------------
3(i) Delivery of Documents; No Modifications; Consummation of
Transactions (condition relating only to NWB
Subordinated Loan Documents)
------------ ------------------------------------------------------
3(j) Consents (condition relating only to NWB Subordinated
Loan Documents)
------------ ------------------------------------------------------
3(m) Legal Details
------------ ------------------------------------------------------
(c) Perry Electronics Amendments Effective Date. The provisions
listed under the heading "Provisions Which Shall Become Effective on the Perry
Electronics Amendments Effective Date" below shall become effective on the
later of date on which each of the conditions listed under the heading
"Conditions to Amendments and Waivers Relating to Perry Electronics
Acquisition" shall have been satisfied (such date shall be referred to as the
"Perry Electronics Amendments Effective Date"). If the conditions listed below
are not satisfied on or before the date which is five (5) Business Days after
the Borrower issues its convertible securities under the NWB Indenture, then
the provisions listed below shall not become effective.
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PROVISIONS WHICH SHALL BECOME EFFECTIVE ON THE
PERRY ELECTRONICS AMENDMENTS EFFECTIVE DATE
------------ -------------------------------------------------------
Section Title
------------ -------------------------------------------------------
------------ -------------------------------------------------------
1(a) Definition of "Consolidated Tangible Net Worth"
------------ -------------------------------------------------------
1(c) Principal Office of Perry Electronics
------------ -------------------------------------------------------
1(i) Consents of Landlords under Leases of Perry
Electronics Stores
------------ -------------------------------------------------------
1(l) Amendments to Exhibits to Credit Agreement
------------ -------------------------------------------------------
1(m) Amendments to Schedules to Credit Agreement
------------ -------------------------------------------------------
2(b)(i) Perry Electronics Acquisition - Notice; Borrowing
Base Certificate
------------ -------------------------------------------------------
2(b)(ii) Consideration Limitations
------------ -------------------------------------------------------
2(b)(iii) Consents
------------ -------------------------------------------------------
CONDITIONS TO AMENDMENTS AND WAIVERS
RELATING TO PERRY ELECTRONICS ACQUISITION
--------------------------------------------------------------------
All conditions listed in Section 3
--------------------------------------------------------------------
(d) Covenant Relating to Xxxx Xxxxxxx Xxxx Xxxxxxx Acquisition. If
the Borrower does not consummate the Perry Electronics Acquisition within five
(5) Business Days after the date on which the Borrower issues its convertible
securities under the NWB Indenture, then:
(A) Borrower shall satisfy each of the conditions in Section 3
listed below, except that each document referred to in Section 3 shall only
include Xxxx Xxxxxxx TV as a party thereto and such conditions shall otherwise
be modified to reflect that the Borrower has consummated the Xxxx Xxxxxxx TV
Acquisition, but has not consummated the Perry Electronics Acquisition, and
(B) Borrower shall deliver updates to the Schedules described
in Sections 1(l) and (m) hereto which reflect that Borrower has consummated the
Xxxx Xxxxxxx TV Acquisition, but not consummated the Perry Electronics
Acquisition:
LIST OF CONDITIONS REFERRED TO IN PARAGRAPH (A) ABOVE
------------ -------------------------------------------------------
Section Title
------------ -------------------------------------------------------
3(a) Satisfaction of Conditions in Section 6
------------ -------------------------------------------------------
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------------ --------------------------------------------------------
3(b) Events of Default; Potential Defaults, Compliance
Certificate
------------ --------------------------------------------------------
3(c)(i) Guaranty Agreement
------------ --------------------------------------------------------
3(c)(ii) Security Agreement
------------ --------------------------------------------------------
3(c) UCC-1 Financing Statements - Xxxx Xxxxxxx TV and
(iii)(A) Perry Electronics
------------ --------------------------------------------------------
3(c) UCC-1 Financing Statements - Borrower - UCC-1 Statements
(iii)(B)
------------ --------------------------------------------------------
3(c) UCC-1 Financing Statements - Borrower - UCC-3 Statements
(iii)(C)
------------ --------------------------------------------------------
3(c)(iv) Pledge Agreement and Related Documents
------------ --------------------------------------------------------
3(c)(v) Intercompany Subordination Agreement
------------ --------------------------------------------------------
3(c)(vi) Joinder to Credit Agreement
------------ --------------------------------------------------------
3(c)(vii) Collateral Assignment
------------ --------------------------------------------------------
3(d) Borrowing Base Certificate
------------ --------------------------------------------------------
3(e) Lien Search
------------ --------------------------------------------------------
3(f) Payoff Letters; Lien Releases
------------ --------------------------------------------------------
3(g) Secretary's Certificate
------------ --------------------------------------------------------
3(h) Opinion of Counsel
------------ --------------------------------------------------------
3(j) Consents
------------ --------------------------------------------------------
3(k) Perry Electronics and Xxxx Xxxxxxx TV Leases
------------ --------------------------------------------------------
3(l) Fees and Expenses
------------ --------------------------------------------------------
3(m) Legal Details
------------ --------------------------------------------------------
[SIGNATURES APPEAR ON THE NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto, by their officers thereunto
duly authorized, have executed this Amendment as of the day and year first
above written.
RENT-WAY, INC., "Borrower"
By: _____________________________________
Title: __________________________________
NATIONAL CITY BANK OF
PENNSYLVANIA, individually and as Agent
By: _____________________________________
Title: __________________________________
LASALLE NATIONAL BANK
By: _____________________________________
Title: __________________________________
XXXXXX TRUST & SAVINGS BANK
By: _____________________________________
Title: __________________________________
XXXXXX FINANCIAL, INC.
By: _____________________________________
Title: __________________________________
18
LIST OF SCHEDULES AND EXHIBITS
Schedules
---------
Schedule 1.1(B) - Commitments of Banks and Addresses for Notices
Schedule 1.1(P) - Permitted Liens
Schedule 6.1.1 - Qualifications to do Business
Schedule 6.1.2 - Capitalization
Schedule 6.1.3 - Subsidiaries
Schedule 6.1.7 - Litigation
Schedule 6.1.8 - Owned and Leased Real Property
Schedule 6.1.13 - Consents and Approvals
Schedule 6.1.15 - Patents, Trademarks, Copyrights, Licenses
Schedule 6.1.18 - Partnership Agreements; LLC Agreements
Schedule 6.1.19 - Insurance Policies
Schedule 6.1.21 - Material Contracts
Schedule 6.1.23 - Employee Benefit Disclosures
Schedule 6.1.25 - Environmental Disclosures
Schedule 8.2.1 - Permitted Indebtedness
Schedule 8.2.10 - Business of Loan Parties
Exhibits
--------
Exhibit 1.1(S) - Security Agreement
Exhibit 3(b) - Perry Acquisition Compliance Certificate
Exhibit 3(h) - Opinion of Xxxxxxx, Xxxx, Xxxxxxx, Xxxx & Goodyear,
LLP
Exhibit 8.3.4 - Quarterly Compliance Certificate
