FIRST OMNIBUS AMENDMENT
TO
CREDIT AGREEMENT AND SECURITY AGREEMENT
This First Omnibus Amendment to Credit Agreement and Security Agreement
(herein, the "Amendment") is entered into as of July 2, 2003, among Rent-Way,
Inc., a Pennsylvania corporation (the "Company"), the direct and indirect
Subsidiaries of the Borrower (the "Subsidiaries"), the Lenders party hereto, and
Xxxxxx Trust and Savings Bank, as administrative agent for the Lenders (the
"Agent").
PRELIMINARY STATEMENTS
A. The Company, the Subsidiaries, the Lenders, and the Agent are
parties to that certain Credit Agreement dated as of June 2, 2003 (the "Credit
Agreement"). All capitalized terms used herein without definition shall have the
same meanings herein as such terms have in the Credit Agreement.
B. The Company, the Subsidiaries, and the Agent are parties to that
certain Security Agreement dated as of June 2, 2003 (the "Security Agreement").
C. The Company, the Subsidiaries and the Lenders have agreed to make
certain amendments to the Credit Agreement, in each case under the terms and
conditions set forth in this Amendment.
D. The Company, the Subsidiaries and the Agent have agreed to make
certain amendments to the Security Agreement, in each case under the terms and
conditions set forth in this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT.
Subject to the satisfaction of the conditions precedent set forth in
Section 3 hereof, the Credit Agreement shall be and hereby is amended as
follows:
1.1. The third sentence of Section 1.1 of the Credit Agreement shall be
amended by deleting the reference to "Section 1.4(a)" therein and replacing such
reference with the reference to "Section 1.5(a)" in lieu thereof.
1.2. The first sentence of Section 1.4 of the Credit Agreement shall be
amended and restated in its entirety to read as follows:
Each Borrowing of Base Rate Loans advanced under the
Revolving Credit shall be in an amount not less than
$1,000,000.
1.3. All references to "Preferred Shares" in (i) the definitions of
EBITDA and Indebtedness for Borrowed Money in Section 5 of the Credit Agreement,
(ii) Section 8.7(h) of the Credit Agreement and (iii) Exhibit E to the Credit
Agreement, shall be deleted and replaced with the reference to "Preferred Stock"
in lieu thereof.
1.4. The definition of L/C Issuer in Section 5 of the Credit Agreement
shall be amended and restated in its entirety to read as follows:
"L/C Issuer" means (i) with respect to each Letter of
Credit other than the Letters of Credit identified on Schedule
1.2 hereto, Xxxxxx Trust and Savings Bank and (ii) with
respect to each Letter of Credit identified on Schedule 1.2
hereto, National City Bank of Pennsylvania.
1.5. Subsection (g) of the definition of Permitted Acquisition in
Section 5 of the Credit Agreement shall be amended and restated in its entirety
to read as follows:
(g) after giving effect to the Acquisition, no
Default or Event of Default shall exist, including with
respect to the covenants contained in Sections 8.22, 8.23,
8.24, 8.25, 8.26 and 8.27 on a pro forma basis;
1.6. Subsection (b) of Section 8.7 of the Credit Agreement shall be
amended and restated in its entirety to read as follows:
(b) purchase money indebtedness and Capitalized Lease
Obligations of the Borrower and its Subsidiaries in an amount
not to exceed $20,000,000 in the aggregate at any one time
outstanding; provided, however, that purchase money
indebtedness secured by Rental Merchandise shall not at any
time exceed $1,000,000;
1.7. Subsection (f) of Section 8.9 of the Credit Agreement shall be
amended and restated in its entirety to read as follows:
(f) the Borrower's investments from time to time in
its Subsidiaries, and investments made from time to time by a
Subsidiary in one or more of its Subsidiaries in the ordinary
course of business;
1.8. Section 8.21(a) of the Credit Agreement shall be amended by
inserting a period at the end thereof.
1.9. All references to "Capitalized Leases" in (i) Section 8.23 of the
Credit Agreement and (ii) Exhibit E to the Credit Agreement, shall be deleted
and replaced with the reference to "Capital Leases" in lieu thereof.
1.10. The Credit Agreement shall be amended by inserting a new Section
8.29 in the appropriate numerical order to read as follows:
Section 8.29. First Lien Credit Facility Refinancing
or Replacement. Borrower shall not designate any refinancing
or replacement of the "Revolving Loan Facility" (as such term
is defined in the Senior Note Indenture) as a first lien
credit facility refinancing or replacement under such
definition unless the proceeds thereof prepay the Obligations
hereunder in full, the Commitments are terminated, the Hedging
Liabilities are fully paid and satisfied and the Funds
Transfer and Deposit Account Liabilities are fully paid and
satisfied.
1.11. Section 9.1(b) of the Credit Agreement shall be amended and
restated in its entirety to read as follows:
(b) default in the observance or performance of any
covenant set forth in Sections 8.1, 8.5, 8.7, 8.8, 8.9, 8.10,
8.11, 8.12, 8.17, 8.18, 8.21, 8.22, 8.23, 8.24, 8.25, 8.26,
8.27, 8.28, and 8.29 hereof or of any provision in any Loan
Document dealing with the use, disposition or remittance of
the proceeds of Collateral or requiring the maintenance of
insurance thereon;
1.12. Section 11.10 of the Credit Agreement shall be amended deleting the
reference to "Section 12.13" in clause (a) thereof and replacing such reference
with the reference to "Section 13.13" in lieu thereof.
1.13. The first sentence of Section13.12(a) of the Credit Agreement shall
be amended by inserting the following phrase "(which consent of the
Administrative Agent shall not be unreasonably withheld)" immediately after the
introductory phrase "Each Lender shall have the right at any time, with the
prior consent of the Administrative Agent".
1.14. The Credit Agreement shall be amended by (i) amending the title
page by inserting the phrase "GENERAL ELECTRIC CAPITAL CORPORATION, as
Documentation Agent," immediately after the phrase "NATIONAL CITY BANK OF
PENNSYLVANIA, as Syndication Agent," on such page, (ii) inserting a new
definition in Section 5 in the appropriate alphabetical order to read as
follows: "Documentation Agent" shall have the meaning set forth in the
introductory paragraph hereto.", (iii) amending Section 11.11 of the Credit
Agreement by inserting a new subparagraph (c) thereto in the appropriate
alphabetical order to read as follows:
(c) In acting under or by virtue of this Agreement,
the Documentation Agent shall be entitled to all the rights,
authority, privileges and immunities provided to
Administrative Agent in this Section 11, all of which such
provisions are incorporated by reference herein with the same
force and effect as if set forth herein. The Documentation
Agent hereby disclaims any representation or warranty to the
Lenders concerning the perfection of the security interest
granted hereunder or the value of the Collateral.
and (iv) amending and restating the introductory paragraph to read as follows:
This Credit Agreement is entered into as of June 2, 2003, by
and among RENT-WAY, INC., a Pennsylvania corporation (the
"Borrower"), the direct and indirect Subsidiaries of the
Borrower from time to time party to this Agreement, as
Guarantors, the several financial institutions from time to
time party to this Agreement, as Lenders, National City Bank
of Pennsylvania, as syndication agent (the "Syndication
Agent"), General Electric Capital Corporation, as
documentation agent (the "Documentation Agent"), and Xxxxxx
Trust and Savings Bank, as Administrative Agent as provided
herein and BMO Xxxxxxx Xxxxx as Lead Arranger as provided
herein (the "Lead Arranger"). All capitalized terms used
herein without definition shall have the same meanings herein
as such terms are defined in Section 5.1 hereof.
SECTION 2. AMENDMENTS TO THE SECURITY AGREEMENT.
Subject to the satisfaction of the conditions precedent set forth in
Section 3 hereof, the Security Agreement shall be and hereby is amended as
follows:
2.1. The third sentence of Section 8(j) of the Security Agreement shall
be amended and restated in its entirety to read as follows:
Except as provided in Section 4.1(i)(x) of the Credit
Agreement, with respect to any Deposit Account maintained by a
depository institution other than the Agent, and as a
condition to the establishment and maintenance of any such
Deposit Account, such Debtor, the depository institution, and
the Agent shall execute and deliver an account control
agreement in form and substance satisfactory to the Agent
which provides, among other things, for the depository
institution's agreement that it will comply with instructions
originated by the Agent directing the disposition of the funds
in the Deposit Account without further consent by such Debtor.
SECTION 3. CONDITIONS PRECEDENT.
The effectiveness of this Amendment is subject to the satisfaction of
all of the following conditions precedent:
3.1. The Company, the Subsidiaries, the Agent, and the Lenders
shall have executed and delivered this Amendment.
3.2. The Agent shall have received copies (executed or
certified, as may be appropriate) of all legal documents or proceedings
taken in connection with the execution and delivery of this Amendment
to the extent the Agent or its counsel may reasonably request.
3.3. Legal matters incident to the execution and delivery of
this Amendment shall be satisfactory to the Agent and its counsel.
3.4. The Subsidiaries shall have executed and delivered to the
Agent their consent to this Amendment in the form set forth below.
SECTION 4. REPRESENTATIONS.
In order to induce the Lenders to execute and deliver this Amendment,
the Company hereby represents to the Lenders that as of the date hereof, and
after giving effect to the amendments called for hereby, the representations and
warranties set forth in Section 6 of the Credit Agreement are and shall be and
remain true and correct (except that for purposes of this paragraph the
representations contained in Section 6.5 shall be deemed to refer to the most
recent financial statements of the Company delivered to the Lenders) and the
Company is in compliance with all of the terms and conditions of the Credit
Agreement and no Default or Event of Default exists under the Credit Agreement
or shall result after giving effect to this Amendment.
SECTION 5. MISCELLANEOUS.
5.1. The Company and the Subsidiaries heretofore executed and delivered
to the Agent and the Lenders the Collateral Documents to which it is a party.
The Company and the Subsidiaries hereby acknowledge and agree that the Liens
created and provided for by the Collateral Documents to which it is a party
continue to secure, among other things, the Obligations arising under the Credit
Agreement as amended hereby; and the Collateral Documents to which it is a party
and the rights and remedies of the Lenders thereunder, the obligations of the
Company and the Subsidiaries thereunder, and the Liens created and provided for
thereunder remain in full force and effect and shall not be affected, impaired
or discharged hereby. Nothing herein contained shall in any manner affect or
impair the priority of the liens and security interests created and provided for
by the Collateral Documents to which it is a party as to the indebtedness which
would be secured thereby prior to giving effect to this Amendment.
5.2. Except as specifically amended herein or waived hereby, the Credit
Agreement shall continue in full force and effect in accordance with its
original terms. Reference to this specific Amendment need not be made in the
Credit Agreement, the Notes, or any other instrument or document executed in
connection therewith, or in any certificate, letter or communication issued or
made pursuant to or with respect to the Credit Agreement, any reference in any
of such items to the Credit Agreement being sufficient to refer to the Credit
Agreement as amended hereby.
5.3. This Amendment may be executed in any number of counterparts, and
by the different parties on different counterpart signature pages, all of which
taken together shall constitute one and the same agreement. Any of the parties
hereto may execute this Amendment by signing any such counterpart and each of
such counterparts shall for all purposes be deemed to be an original. This
Amendment shall be governed by the internal laws of the State of Illinois.
5.4. The Company agrees to pay all reasonable out-of-pocket costs and
expenses incurred by the Agent in connection with the credit facilities and the
preparation, execution and delivery of this Amendment, and the documents and
transactions contemplated hereby, including the reasonable fees and expenses of
counsel for the Agent with respect to the foregoing.
This First Ominbus Amendment to Credit Agreement and Security Agreement
is entered into as of the date and year first above written.
RENT-WAY, INC.
By
Name__________________________________________________
Title_________________________________________________
RENT-WAY OF TOMORROW, INC.
By
Name__________________________________________________
Title_________________________________________________
RENT-WAY OF MICHIGAN, INC.
By
Name__________________________________________________
Title_________________________________________________
ACTION RENT-TO-OWNHOLDINGS OF SOUTH CAROLINA, INC.
By
Name__________________________________________________
Title_________________________________________________
RENT-WAY DEVELOPMENTS, INC.
By
Name__________________________________________________
Title_________________________________________________
RENT-WAY OF TTIG, L.P.
By
Name__________________________________________________
Title_________________________________________________
Accepted and agreed to as of the date and year last above written.
XXXXXX TRUST AND SAVINGS BANK, as Agent
By
Name__________________________________________________
Title_________________________________________________
BANK OF MONTREAL
By
Name__________________________________________________
Title_________________________________________________
NATIONAL CITY BANK OF PENNSYLVANIA
By
Name__________________________________________________
Title_________________________________________________
GUARANTORS' ACKNOWLEDGEMENT AND CONSENT
Each of the undersigned heretofore executed and delivered to the Agent
one or more Guaranties and Collateral Documents. Each of the undersigned hereby
consents to the Amendment as set forth above and agrees to the terms set forth
therein and confirms that the Loan Documents executed and delivered by it and
all of such undersigned's obligations thereunder remain in full force and
effect. Each of the undersigned further agrees that the consent of such
undersigned to any further amendments to the Credit Agreement or to the Security
Agreement shall not be required as a result of this consent having been
obtained. Each of the undersigned acknowledges that the Lenders are relying on
this acknowledgement and consents in entering into the Amendment set forth
above.
RENT-WAY OF TOMORROW, INC.
By
Name__________________________________________________
Title_________________________________________________
RENT-WAY OF MICHIGAN, INC.
By
Name__________________________________________________
Title_________________________________________________
ACTION RENT-TO-OWN HOLDINGS OF SOUTH CAROLINA, INC.
By
Name__________________________________________________
Title_________________________________________________
RENT-WAY DEVELOPMENTS, INC.
By
Name__________________________________________________
Title_________________________________________________
RENT-WAY OF TTIG, L.P.
By
Name__________________________________________________
Title_________________________________________________
