Exhibit No. 10.6
[RAC Letterhead]
February 10, 2003
VIA FACSIMILE (000) 000-0000
Rent-Way, Inc.
Rent-Way of Michigan, Inc.
Rent-Way of TTIG, L.P.
Attn: Chief Executive Officer
Xxx Xxxx Xxx Xxxxx
Xxxx, Xxxxxxxxxxxx 00000
Dear Sir:
Reference is made to that certain Asset Purchase Agreement, dated as of
December 17, 2002, by and among Rent-A-Center East, Inc., a Delaware corporation
(formerly known as Rent-A-Center, Inc.) ("ACQUIROR"), and Rent-Way, Inc. (the
"COMPANY"), Rent-Way of Michigan, Inc. ("RENT-WAY MICHIGAN") and Rent-Way of
TTIG, L.P. ("TTIG" and, together with Rent-Way Michigan, the "OPERATING
SUBSIDIARIES"), as amended by that certain letter agreement dated December 31,
2002, that certain letter agreement dated January 7, 2003, and that certain
letter agreement dated February 7, 2003 (together, the "ASSET PURCHASE
AGREEMENT"). Capitalized terms not otherwise defined herein shall have the
meaning ascribed to such terms in the Asset Purchase Agreement.
WHEREAS, the Closing of the transactions contemplated under the Asset
Purchase Agreement occurred as of February 8, 2003; and
WHEREAS, the parties now desire to alter the original lists of Account
Stores, the real property leases of which shall be retained by the Company and
the Operating Subsidiaries, and Acquired Stores, the real property leases of
which shall be assumed by Acquiror, as set forth herein.
NOW, THEREFORE, this letter agreement, in accordance with Section 7.4 of
the Asset Purchase Agreement, memorializes the understanding of the parties to
the Asset Purchase Agreement regarding certain post-closing changes thereto and
hereby amends, modifies and supplements the Asset Purchase Agreement as follows:
1. Return of Chattanooga Store. Acquiror hereby sells, transfers, assigns,
conveys and delivers to TTIG any and all of those Assets related to the
Account Store located at 0000 Xxxx 00xx Xxxxxx, Xxxxxxxxxxx, XX (the
"CHATTANOOGA STORE") and acquired at by Acquiror at Closing, effective as
of the date hereof, free and clear of all Encumbrances (except for
those Encumbrances under Acquiror's senior credit facility, if any, which
may have attached on February 8, 2003 and which Acquiror covenants it will
obtain applicable releases if required). TTIG hereby assumes and agrees to
pay, perform, discharge, and satisfy any and all of those Assumed
Liabilities related to the Chattanooga Store previously assumed by Acquiror
at Closing, effective as of the date hereof. Acquiror shall be entitled to
all income earned in or from the ownership or operation of the Assets
related to the Chattanooga Store with respect to events occurring prior to
the date hereof, and TTIG will be entitled to all income earned in or from
the ownership or operation of the Assets related to the Chattanooga Store
with respect to events occurring on or after the date hereof. Without
limiting the generality of the foregoing, all cash receipts received at the
Chattanooga Store prior to the date hereof shall be the property of
Acquiror, and all cash receipts received at the Chattanooga Store on or
after the date hereof shall be the property of TTIG. The parties hereto
agree to cooperate with each other to ensure that any amounts received are
delivered to the party entitled to such amounts as provided herein.
2. Acquisition of Xxxxxx Heights Store.
(a) Each of the Company and the Operating Subsidiaries, as the case may
be, hereby sells, transfers, assigns, conveys and delivers to Acquiror
all of such entity's right, title and interest in and to those Assets
related to the store located at 0000 Xxxxxx Xxxxxx, Xxxxxx Xxxxxxx, XX
(the "XXXXXX HEIGHTS STORE"), in each case free and clear of any and
all Encumbrances, effective as of the date hereof. Acquiror hereby
acquires the Assets related to the Xxxxxx Heights Store as of the date
hereof as if the Assets related to the Xxxxxx Heights Store were
Assets originally acquired under the Asset Purchase Agreement as an
Acquired Store. The Company and the Operating Subsidiaries, as the
case may be, shall be entitled to all income earned in or from the
ownership or operation of the Assets related to the Xxxxxx Heights
Store with respect to events occurring prior to the date hereof, and
the Acquiror will be entitled to all income earned in or from the
ownership or operation of the Assets related to the Xxxxxx Heights
Store with respect to events occurring on or after the date hereof.
Without limiting the generality of the foregoing, all cash receipts
received at the Stores prior to the date hereof shall be the property
of the Company and the Operating Subsidiaries, as the case may be, and
all cash receipts received at the Stores on or after the date hereof
shall be the property of the Acquiror. The parties hereto agree to
cooperate with each other to ensure that any amounts received are
delivered to the party entitled to such amounts as provided herein.
All property taxes, rent, utilities and amounts under the real estate
lease related to the Xxxxxx Heights Store shall be apportioned on an
accrual basis as of the close of business on the date immediately
prior to the date hereof between Acquiror, the Company and the
Operating Subsidiaries such that Acquiror shall be responsible only
for property taxes, rent, utilities and amounts under the Store Leases
with respect to periods occurring on or after the date hereof.
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(b) The Representations and Warranties of the Company and the Operating
Subsidiaries set forth in Section 3.3, 3.4, 3.7, 3.8, 3.9, 3.10, 3.11,
3.12, 3.13, 3.14, 3.15, 3.17, 3.19, 3.21(b) and 3.31 of the Asset
Purchase Agreement are hereby incorporated herein by reference and are
deemed made as of the date hereof with respect to matters related to
the Xxxxxx Heights Store and the operations conducted therein by the
Company or the Operating Subsidiaries on or prior to the date hereof.
(c) As of the date hereof, Acquiror shall hereby assume only those
liabilities or obligations of a kind or nature, whether absolute,
contingent, accrued, known or unknown, that are attributable to the
periods, events or circumstances on or after the date hereof, and
which arise under, relate to or are in connection with the Assets
related to the Xxxxxx Heights Store on or after the date hereof.
Except as specifically set forth in the previous sentence, Acquiror
shall assume no other liabilities or obligations relating to the
Assets related to the Xxxxxx Heights Store, including, without
limitation, those specifically excluded liabilities set forth in
Section 1.5(b) of the Asset Purchase Agreement as applied to the
Xxxxxx Heights Store.
(d) Acquiror, the Company and the Operating Subsidiaries acknowledge and
agree that all of the Indemnification provisions set forth in Article
VIII of the Asset Purchase Agreement shall be deemed to apply with
equal force to any Indemnity Claims arising or resulting from and to
the extent they are attributable to the Xxxxxx Heights Store as if the
Xxxxxx Heights Store was originally an Acquired Store and acquired as
of the Closing Date under the Asset Purchase Agreement.
3. New Acquired Stores.
(a) Each of the Company and the Operating Subsidiaries, as the case may
be, hereby sells, transfers, assigns, conveys and delivers to Acquiror
and the Subsidiary Transferees, as the case may be, all of such
entity's right, title and interest in and to the real estate leases
(and fixtures related thereto) (the "ACCOUNT STORE LEASES") related to
the Stores set forth in this Section 3(a) below, such Stores having
been previously designated as Account Stores under the Asset Purchase
Agreement, in each case free and clear of any and all Encumbrances,
effective as of the date hereof. Acquiror and the Subsidiary
Transferees, as the case may be, will acquire the Account Store Leases
as of the date hereof under the same terms and subject to the same
exceptions (including those set forth in Section 1.5 of the Asset
Purchase Agreement) as if the Account Store Leases related to the New
Acquired Stores were Assets originally acquired under the Asset
Purchase Agreement, effective as of the date hereof.
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STORE # ADDRESS CITY ST
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00146 000 Xxxxx Xxxxxx Xxxxxx Xxxx XX
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00182 0000 Xxxxxxxxx Xxxxxx Wilmington DE
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00231 0000 Xxxx Xxxxxx Xxxxxx Xxxxxxxx XX
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01004 0000 Xxxxx Xxxxx Xxxx Xxxxxxxxxx XX
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01007 000 Xxxxx Xxxxxxx 00 Xxxxxxxxxx XX
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01073 0000 XX 00xx Xxxxxx Xxxxxxxx Xxxx XX
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01145 0000 Xxxx Xxxx Xxxx Xxxx Xxxxx Xxx Xxxxx XX
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01146 2350 Miracle Mile Bullhead City AZ
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01248 1967 North Decatur Boulevard Las Vegas NV
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01424 0000 Xxxxx Xxxxxxx Xxx. Fort Xxxxxx FL
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01448 0000 X XX Xxxxx Xxxx Xxx Xxxxxxx XX
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01452 0000 Xxxxxxxx Xxxx Xxxxxx XX
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01455 4003 East Xxxxxxx Spokane WA
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01510 0000 Xxxx 00xx Xxxxxx Xxxxxx XX
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01745 1115 Xxxxxxx X. Xxxxxxx Boulevard Clinton TN
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01879 4082 Xxxxxxxx Highway Exmore VA
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(b) The Representations and Warranties of the Company and the Operating
Subsidiaries set forth in Section 3.8 of the Asset Purchase Agreement
are hereby incorporated herein by reference and are deemed made by the
Company and the Operating Subsidiaries as of the date hereof with
respect to the matters related to the Account Store Leases on or prior
to the date hereof.
(c) As of the date hereof, Acquiror and the Subsidiary Transferees, as the
case may be, shall assume only those liabilities or obligations of a
kind or nature, whether absolute, contingent, accrued, known or
unknown, that are attributable to the periods, events or circumstances
on or after the date hereof, and which arise under, relate to or are
in connection with the Account Store Leases on or after the date
hereof. Except as specifically set forth in the previous sentence,
Acquiror shall assume no other liabilities or obligations relating to
the Account Store Leases.
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(d) Acquiror, the Company and the Operating Subsidiaries acknowledge and
agree that all of the Indemnification provisions set forth in Article
VIII of the Asset Purchase Agreement shall be deemed to apply with
equal force to any Indemnity Claims arising or resulting from and to
the extent they are attributable to Account Store Leases as if
originally contemplated by the Asset Purchase Agreement.
4. New Account Stores.
(a) Acquiror and the Subsidiary Transferees, as the case may be, hereby
sells, transfers, assigns, conveys and delivers to the Company and the
Operating Subsidiaries, as the case may be, without representation or
warranty and free and clear of all Encumbrances (except for those
Encumbrances under Acquiror's senior credit facility, if any, which
may have attached on February 8, 2003 and which Acquiror covenants it
will obtain applicable releases if required), all of such entity's
right, title and interest in and to all of the real estate leases,
fixtures, supplies, office furniture, computers (including
peripherals), equipment (other than filing cabinets, copiers and fax
machines), product displays and any deposits (the "RETURNED ASSETS")
related to the Stores set forth in this Section 4(a) below, such
Stores having been previously designated as Acquired Stores under the
Asset Purchase Agreement, effective as of the date hereof:
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STORE # ADDRESS CITY ST
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00196 0000 Xxxxxxxx Xxxxxxx Xxxxxxxxxx XX
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00224 5330 West Washington Indianapolis IN
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00280 000 Xxxxxxxxxx Xxxx Xxxxxxxx XX
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00552 0000 Xxxxx Xxxxx Xxxxxx Xxxxx Xxxxx SD
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01230 110 West XxXxxxxx Roswell NM
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01259 400 Northline Mall Houston TX
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01272 0000 00xx Xxxxxx Xxxxx Xxxxx Xxxx XX
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01317 00 00xx Xxxxxx Tuscaloosa AL
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01403 0000 X. Xxxx Xxxxxx Xxxxxxxxxxxx XX
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(b) The Company and the Operating Subsidiaries, as the case may be, hereby
assume and agree to pay, perform, discharge, and satisfy any and all
of those Assumed Liabilities related to the Returned Assets previously
assumed by Acquiror and the Subsidiary Transferees on the Closing
Date, effective as of the date hereof.
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5. Exercise of Account Store Acquisition Option.
(a) Acquiror hereby exercises its rights under Section 6.3 of the Asset
Purchase Agreement to assume from the Company and the Operating
Subsidiaries, as the case may be, the real estate lease (and the
fixtures related thereto) with respect to each of the following
Account Stores (the "ADDITIONAL LEASES"):
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STORE # ADDRESS CITY ST
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00246 0000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxx XX
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00488 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxx TN
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01005 000 Xxxx Xxxxxx Xxxx Xxxxxxxxxxx XX
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01051 9751 Xxxx Chapel Dallas TX
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01505 000 X. Xxxx Xxxxxx Xxxxxx XX
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01549 1709 North Walnut Hartford City IN
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01813 0000 Xxxxx Xxxx Xxxxxx Xxxxxxxx XX
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01817 0000 00xx Xxxxxx Xxxx Xxxxx XX
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The parties hereby acknowledge that this letter agreement shall
constitute the written notice required under Section 6.3 of the Asset
Purchase Agreement and that they will enter into the assignment and
assumption agreement, in the form attached as Exhibit "A" hereto, with
respect to such real estate leases in accordance with Section 6.3 of
the Asset Purchase Agreement. As consideration for Acquiror exercising
its rights under Section 6.3 of the Asset Purchase Agreement with
respect to the Account Stores set forth above, the Company and the
Operating Subsidiaries shall pay to Acquiror on the date hereof the
amount of Two Hundred Thousand Dollars ($200,000) by wire transfer of
immediately available funds.
(b) The Representations and Warranties of the Company and the Operating
Subsidiaries set forth in Section 3.8 of the Asset Purchase Agreement
are hereby incorporated herein by reference and are deemed made by the
Company and the Operating Subsidiaries as of the date hereof with
respect to the matters related to the Additional Leases on or prior to
the date hereof.
(c) As of the date hereof, Acquiror shall assume only those liabilities or
obligations of a kind or nature, whether absolute, contingent,
accrued, known or unknown, that are attributable to the periods,
events or circumstances on or after the date hereof, and which arise
under, relate to or are in connection with the Additional
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Leases on or after the date hereof. Except as specifically set forth
in the previous sentence, Acquiror shall assume no other liabilities
or obligations relating to the Additional Leases.
(d) Acquiror, the Company and the Operating Subsidiaries acknowledge and
agree that all of the Indemnification provisions set forth in Article
VIII of the Asset Purchase Agreement shall be deemed to apply with
equal force to any Indemnity Claims arising or resulting from and to
the extent they are attributable to the Additional Leases as if
originally contemplated by the Asset Purchase Agreement.
(e) Pursuant to Section 4.10 of the Asset Purchase Agreement, Acquiror
hereby designates that (i) the Additional Leases related to the above
referenced Store Nos. 01005 and 01051 shall be acquired as of the date
hereof by Rent-A-Center Texas, L.P., (ii) the Additional Lease related
to the above referenced Store No. 01813 shall be acquired as of the
date hereof by Rent-A-Center West, Inc., and (iii) the Additional
Leases related to the above referenced Store Nos. 00246, 00488, 01505,
01549 and 01817 shall be acquired as of the date hereof by
Rent-A-Center East, Inc.
6. Entire Agreement. Notwithstanding the provisions of Section 9.5 of the
Asset Purchase Agreement and consistent with Section 7.4 of the Asset
Purchase Agreement, this letter agreement, together with the Asset Purchase
Agreement and all other documents and instruments referred to therein,
including, but not limited to, the letter agreement from Acquiror to the
Company and the Operating Subsidiaries, dated December 31, 2002, relating
to the extension of the Due Diligence Period, the letter agreement from
Acquiror to the Company and the Operating Subsidiaries, dated January 7,
2003, relating to the Acquiror's internal reorganization, and the letter
agreement from Acquiror to the Company and the Operating Subsidiaries,
dated February 7, 2003, relating to various transitional and other matters,
constitutes the entire agreement and supersedes all other prior agreements
and undertakings, both written and oral, among the parties with respect to
the transactions contemplated by the Asset Purchase Agreement.
7. No Further Amendments. Other than as specifically provided for herein, all
other terms and conditions of the Asset Purchase Agreement shall remain in
full force and effect in accordance with its terms.
8. Governing Law. The provisions of Section 9.9 of the Asset Purchase
Agreement shall apply to this letter agreement.
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RENT-A-CENTER EAST, INC.,
formerly known as Rent-A-Center, Inc.
By:
--------------------------------
Name:
--------------------------
Title:
-------------------------
RENT-A-CENTER WEST, INC.,
By:
--------------------------------
Name:
--------------------------
Title:
-------------------------
RENT-A-CENTER TEXAS, L.P.
By: Rent-A-Center East, Inc.,
its general partner
By:
--------------------------------
Name:
--------------------------
Title:
-------------------------
AGREED AND ACCEPTED:
RENT-WAY, INC.
By: /s/ XXXXXXX X. XXXXXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
---------------------------------
Title: Vice President and CFO
---------------------------------
RENT-WAY OF MICHIGAN, INC.
By: /s/ XXXXXXX X. XXXXXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
---------------------------------
Title: Vice President and CFO
---------------------------------
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RENT-WAY OF TTIG, L.P.
By: Rent-Way Development, Inc.,
its general partner
By: /s/ XXXXXXX X. XXXXXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
---------------------------------
Title: Vice President and CFO
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cc: Xxxxxxx Xxxx, LLP
Xxx X&X Xxxxx, Xxxxx 0000
Xxxxxxx, Xxx Xxxx 00000-2391
Attention: Xxxx X. Xxx, Esq.
Telecopy: 000-000-0000
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EXHIBIT "A"
ASSIGNMENT AND ASSUMPTION AGREEMENT