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Exhibit 10.24
AMENDMENT NO. 4 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 4 TO CREDIT AGREEMENT (the "Amendment") is dated as
of June 28, 2000, and is made by and among RENT-WAY, INC., a Pennsylvania
corporation (the "Borrower"), RENT-WAY OF TTIG, L.P., an Indiana limited
partnership, and RENTAVISION INC., a New York Corporation (Rent-Way of TTIG,
L.P. and Rentavision Inc. are referred to herein collectively as the
"Co-Borrowers" and each separately as a "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.
W I T N E S S E T H:
WHEREAS, the parties hereto are parties to that certain Credit
Agreement dated as of September 23, 1999, as amended by Amendment No. 1 thereto
dated as of November 17, 1999, Amendment No. 2 thereto dated as of December 6,
1999, and Amendment No. 3 thereto dated as of December 7, 1999 (collectively,
the "Credit Agreement"), pursuant to which the Lenders provided to the Borrower
and the Co-Borrowers a $100,000,000 revolving credit facility, $125,000,000 in
Term Loans A and $100,000,000 in Term Loans B;
WHEREAS, the Borrower and the Co-Borrowers have requested the
Lenders to amend the Credit Agreement to increase the amount of Revolving Credit
Loans, Term Loans A and Term Loans B available to the Borrower and the
Co-Borrowers, to modify the amortization of the Term Loans A and extend the
maturity dates with respect to the Revolving Credit Loans and Term Loans A, to
modify the financial covenants set forth in the Credit Agreement and to effect
certain other changes to the terms of the Credit Agreement. The foregoing
increases and modifications have been agreed to by the Lenders, subject to the
terms and conditions set forth in this Amendment.
NOW, THEREFORE, the parties hereto, in consideration of their
mutual covenants and agreements hereinafter set forth and intending to be
legally bound hereby, covenant and agree as follows:
1. Definitions. Defined terms used herein unless otherwise defined
herein shall have the meanings ascribed to them in the Credit Agreement.
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2. The following definitions set forth in Section 1.1 are hereby
amended and restated as follows:
"Expiration Date shall mean, with respect to the Revolving
Credit Commitments, JUNE 30, 2005.
Line of Business shall mean the rent-to-own business, the
rental purchase business, the rental business, related lines of business AND
OTHER COMPLEMENTARY OR COMPATIBLE BUSINESS ACTIVITIES INTENDED TO SERVICE THE
BORROWER'S AND CO-BORROWERS' MARKETING DEMOGRAPHICS.
Syndications Period shall mean the period between JUNE 28,
2000, and the date upon which the Syndication Agents and National City Bank
notify the Borrower and the Co-Borrowers in writing that the syndication of the
Loans is completed.
Term Loan A Maturity Date shall mean JUNE 30, 2005.
3. The following new definition is hereby added in Section 1.1 of the
Credit Agreement in alphabetical order:
"ADJUSTED Leverage Ratio shall mean the ratio of (i) the sum
of Consolidated Funded Debt plus three times the Occupancy Expense MINUS CASH
EQUIVALENTS, as measured at the end of each fiscal quarter of the Borrower for
the four quarters then ended, to (ii) Consolidated Cash Flow from Operations
plus Occupancy Expense, as measured at the end of each fiscal quarter of the
Borrower for the four quarters then ended.
Amendment No. 4 Closing Date shall mean June 28, 2000.
Cash Equivalents shall mean cash and all investments permitted
by the Loan Parties described in items (i) through (v) in the definition of
Permitted Investments."
4. Sections 3.1 through 3.4 of the Agreement are hereby amended and
restated as follows:
"3.1 Term Loan Commitments.
3.1.1 Term Loan A Commitments.
Subject to the terms and conditions hereof, and relying upon
the representations and warranties herein set forth, each Lender with a Term
Loan A Commitment severally agrees to make a term loan (the "Term Loan A") to
the Borrower and the Co-Borrowers on Amendment No. 4 Closing Date in an amount
equal to such Lender's Term Loan A Commitment. With respect to each Lender which
previously made a Term Loan A to the Borrower and the Co-Borrowers prior to
Amendment No. 4 Closing Date, such Lender shall fund an amount equal to the
difference between such Lender's Term Loan A Commitment and the principal
balance
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outstanding on the prior Term Loan A, with such prior outstanding balance to be
included as part of the Lender's Term Loan A Commitment. The prior Term Loan A
of a Lender (if any) and the Term Loan A funds advanced on Amendment No. 4
Closing Date, shall together constitute a Lender's Term Loan A.
3.1.2 Term Loan B Commitments.
Subject to the terms and conditions hereof, and relying upon
the representations and warranties herein set forth, each Lender with a Term
Loan B Commitment severally agrees to make a term loan (the "Term Loan B") to
the Borrower and the Co-Borrowers in an amount equal to such Lender's Term Loan
B Commitment. With respect to each Lender which has a Term Loan B outstanding to
the Borrower and the Co-Borrowers immediately prior to Amendment No. 4 Closing
Date and is not increasing the amount of its Term Loan B Commitment, such Term
Loans B shall continue outstanding after giving effect to the increases in the
Commitments effective on Amendment No. 4 Closing Date. With respect to each
Lender which is increasing the amount of its Term Loan B Commitment on Amendment
No. 4 Closing Date or which did not have a Term Loan B outstanding to the
Borrower and the Co-Borrowers immediately prior to Amendment No. 4 Closing Date,
such Lender shall fund an amount equal to the difference between such Lender's
new Term Loan B Commitment and the Term Loan B Commitment which existed prior to
Amendment No. 4 Closing Date The prior Term Loan B of a Lender (if any) and the
Term Loan B funds advanced on Amendment No. 4 Closing Date (if any), shall
together constitute a Lender's Term Loan B.
3.2 Nature of Lenders' Obligations with Respect to Term Loans.
The obligations of each Lender to make Term Loans A to the
Borrower and the Co-Borrowers shall be in the proportion that such Lender's Term
Loan A Commitment bears to the Term Loan A Commitments of all Lenders; the
obligations of each Lender to make Term Loans B to the Borrower and the
Co-Borrowers shall be in the proportion that such Lender's Term Loan B
Commitment bears to the Term Loan B Commitments of all Lenders. Each Lender's
Term Loans to the Borrower and the Co-Borrowers shall never exceed its Term Loan
Commitments. The failure of any Lender to make a Term Loan shall not relieve any
other Lender of its obligations to make a Term Loan nor shall it impose any
additional liability on any other Lender hereunder. The Lenders shall have no
obligation to make Term Loans hereunder after Amendment No. 4 Closing Date. The
Term Loan Commitments are not revolving credit commitments, and the Borrower and
the Co-Borrowers shall not have the right to borrow, repay and reborrow under
Section 3.1.
3.3 Term Loan Notes.
The Obligation of the Borrower and the Co-Borrowers to repay
the unpaid principal amount of the Term Loans made to the Borrower and the
Co-Borrowers by each Lender, together with interest thereon, shall be evidenced
by a Term Note dated either the Closing Date (in the case of a Lender with Term
Loan B which is not increasing its Term Loan B Commitment, or if such Lender was
not a party to this Agreement on the Closing Date, the date
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that such Lender joined in this Agreement) or Amendment No. 4 Closing
Date (or if such Lender is not a party to this Agreement on Amendment
No. 4 Closing Date, the date that such Lender joins in this Agreement),
payable to the order of each Lender in a face amount equal to the Term
Loan of such Lender. The principal amount of the Term Notes A shall be
payable in quarterly payments due on the last day of each September,
December, March and June, beginning with the quarter ending September
30, 2000, and as follows:
Quarters Ending on Following Date Percentage of Principal of Term Loan A
or In The Following Period Commitments Due on Each Payment Date
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9-30-00 through 6-30-01 three percent (3%)
9-30-01 through 6-30-02 four percent (4%)
9-30-02 through 6-30-03 five percent (5%)
9-30-03 through 6-30-04 six percent (6%)
9-30-04 through 6-30-05 seven percent (7%)
The principal amount of the Term Notes B shall be payable as
follows: (i) one payment due on June 30, 2000, in the amount of $250,000 to be
applied pro rata to the Term Loans B outstanding immediately prior to Amendment
No. 4 Closing Date, (ii) seventeen quarterly payments due on the last day of
each September, December, March and June, beginning with the quarter ending
September 30, 2000, and continuing through the quarter ending September 30,
2004, each such payment in an amount equal to one-fourth of one percent (1/4%)
of the Term Loan B Commitments, (iii) one payment on September 30, 2005 in an
amount equal to forty-seven and one-half percent (47-1/2%) of the Term Loan B
Commitments, and (iv) a final payment on September 30, 2006 of the remaining
principal balance of the Term Loans B."
5. The first paragraph of Section 4.2 of the Credit Agreement is hereby
amended and restated as follows:
"4.2 Interest Periods.
At any time when the Borrower and the Co-Borrowers shall
select, convert to or renew a Euro-Rate Option, the Borrower and the
Co-Borrowers shall notify the Administrative Agent thereof at least three (3)
Business Days prior to the effective date of such Euro-Rate Option by delivering
a Loan Request. The notice shall specify an interest period (the "Interest
Period") during which such Interest Rate Option shall apply, such Interest
Period to be (i) TWO WEEKS IF THE BORROWER AND THE CO-BORROWERS SELECT THE
EURO-RATE OPTION TO APPLY TO THE LOANS DURING THE SYNDICATIONS PERIOD, AND
(ii) AFTER THE SYNDICATIONS PERIOD HAS ENDED, ONE, TWO, THREE OR SIX MONTHS.
NOTWITHSTANDING THE PRECEDING SENTENCE, THE FOLLOWING PROVISIONS SHALL APPLY TO
ANY SELECTION OF, RENEWAL OF, OR CONVERSION TO A EURO-RATE OPTION:"
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6. The first paragraph of Section 5.4.1 of the Credit Agreement is
hereby amended and restated as follows:
5.4.1 Right to Prepay.
The Borrower and the Co-Borrowers shall have the right at
their option from time to time to pay the Loans in whole or part without premium
or penalty, except for such premiums, penalties and other payments provided for
in Section 5.4.3 below or in Section 5.6:
(i) at any time with respect to any Loan to which the Base
Rate Option or Euro-Rate Option applies;
(ii) on the date specified in a notice by any Lender pursuant
to Section 4.4 [Euro-Rate Unascertainable] with respect to any Loan to which a
Euro-Rate Option applies.
7. Section 5.5.1 of the Credit Agreement is hereby amended and restated
as follows:
"5.5.1 Excess Cash Flow.
Within five (5) Business Days of the delivery of the
Borrower's annual financial statements pursuant to Section 8.3.3 [Annual
Financial Statements] COMMENCING WITH THE FINANCIAL STATEMENTS FOR THE FISCAL
YEAR ENDED SEPTEMBER 30, 2001, BUT IN ANY EVENT NO LATER THAN JANUARY 5 OF EACH
YEAR COMMENCING JANUARY 5, 2002 (each, a "Mandatory Prepayment Date"), and in
the event that the Leverage Ratio for the fiscal year in question is greater
than 2.5 to 1.0, AS DETERMINED ON A PRO FORMA BASIS AFTER GIVING EFFECT TO ANY
PREPAYMENTS UNDER THIS SECTION 5.5.1, the Borrower and the Co-Borrowers shall
make a mandatory prepayment of principal on the Term Loans equal to 50% of
Excess Cash Flow for the immediately preceding fiscal year, subject to a credit
for voluntary prepayments made pursuant to Section 5.4 [Voluntary Prepayments]
during the immediately preceding fiscal year, together with accrued interest on
such principal amount (each, a "Mandatory Prepayment of Excess Cash Flow"). Each
Mandatory Prepayment of Excess Cash Flow shall be applied by the Administrative
Agent to the outstanding principal balance of the Term Loans A and Term Loans B
based upon the Ratable Share of such Term Loan to all the Term Loans, in each
case by application to the unpaid installments of principal in the inverse order
of scheduled maturities. Upon its receipt of the annual financial statements of
the Borrower and receipt of payment by the Borrower and the Co-Borrowers of the
Mandatory Prepayment of Excess Cash Flow, the Administrative Agent shall give
the Lenders with outstanding principal on the Term Loans B notice of the amount
of the Mandatory Prepayment of Excess Cash Flow. In the event that any one or
more Lender with Term Loans B outstanding elects not to receive its pro rata
share of such prepayment, such Lender shall provide written notice of the amount
it elects not to receive in prepayment of its Term Loan B, and such amount shall
be reallocated to payment of the Term Loans A based upon the Ratable Share of
the Lenders with Term Loans A, to be applied by the Lenders with Term Loans A in
the inverse order of scheduled maturities. To the extent that a Mandatory
Prepayment of Excess Cash Flow exceeds the outstanding principal amount of the
Term Loans, such prepayment shall be limited to the amount necessary to prepay
the Term Loans in full."
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8. Section 5.5.2 of the Credit Agreement is hereby amended and restated
as follows:
"5.5.2 Sale of Assets; Issuance of Stock.
Within five (5) Business Days of any sale of assets authorized by Section
8.2.7(v) which involves the sale of assets having a market value or book value
in an amount equal to or greater than $10,000,000 in the aggregate in any fiscal
year, the Borrower and the Co-Borrowers shall make a mandatory prepayment of
principal equal to the after-tax proceeds of such sale (as estimated in good
faith by the Borrower and the Co-Borrowers), together with accrued interest on
such principal amount. IN THE EVENT THAT THE ADJUSTED LEVERAGE RATIO AT THE TIME
OF ANY ISSUANCE OF EQUITY BY THE BORROWER AUTHORIZED BY SECTION 8.2.13(iv) IS
GREATER THAN 2.5 TO 1.0, AS DETERMINED ON A PRO FORMA BASIS AT SUCH TIME AND
AFTER GIVING EFFECT TO CASH RECEIVED BY THE BORROWER UPON ISSUANCE OF SUCH
EQUITY AND ANY PREPAYMENT REQUIRED UNDER THIS SECTION 5.5.2, THEN SIMULTANEOUSLY
WITH THE ISSUANCE OF SUCH CAPITAL STOCK BY THE BORROWER, THE BORROWER SHALL MAKE
A MANDATORY PREPAYMENT OF PRINCIPAL EQUAL TO THE NET PROCEEDS OF SUCH ISSUANCE
TO THE EXTENT THAT THE ADJUSTED LEVERAGE RATIO CONTINUES TO BE GREATER THAN 2.5
TO 1.0 AS A RESULT OF SUCH MANDATORY PREPAYMENT OF THE NET PROCEEDS OR A PORTION
THEREOF. In the event that the Required Lenders permit the incurrence of
Indebtedness other than as permitted under Section 8.2.1, the Borrower shall
make a mandatory prepayment of principal equal to the net proceeds of such
Indebtedness. In the event that the Administrative Agent does not disburse
insurance proceeds in excess of $250,000 to the Loan Parties pursuant to Section
8.1.3, such proceeds shall be applied as a mandatory prepayment of principal
equal to the amount of such insurance proceeds. All prepayments pursuant to this
Section 5.5.2 shall be applied in accordance with the provisions of Section
5.5.1, and upon payment in full of the Term Loans, then as a permanent reduction
to the Revolving Credit Commitments. In the event that any one or more Lenders
with Term Loans B outstanding elects not to receive its pro rata share of such
prepayments, such Lender shall provide written notice of the amount it elects
not to receive in prepayment of its Term Loan B, and such amount shall be
reallocated to payment of the Term Loans A based upon the Ratable Share of the
Lenders with Term Loans A, to be applied by the Lenders with Term Loans A in the
inverse order of scheduled maturities. Notwithstanding the foregoing and in the
case of asset sales authorized by Section 8.2.7(v), to the extent that the
after-tax proceeds of such sale are used by the applicable Loan Party prior to
the due date of the mandatory prepayment to acquire substitute assets in the
ordinary course of business of such Loan Party and such substitute assets are
subject to a Prior Security Interest in favor of the Administrative Agent for
the benefit of the Lenders, then the mandatory prepayment shall be
correspondingly reduced or terminated, as the case may be."
9. Section 8.1.13 of the Credit Agreement is hereby amended and
restated as follows:
"8.1.13 Interest Rate Protection.
Within ninety (90) days after AMENDMENT NO. 4 CLOSING DATE,
the Loan Parties shall enter into one or more interest rate protection
agreements with one or more of the Lenders and with the prior consent of the
Administrative Agent, which consent shall not be
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unreasonably withheld. Such interest rate protection agreements shall be in an
amount such that when aggregated with the interest rate protection agreements of
the Borrower in effect on AMENDMENT NO. 4 CLOSING DATE, provide for interest
rate protection in a notional principal amount of at least $200,000,000 (the
interest rate protection agreements in effect on AMENDMENT NO. 4 CLOSING DATE
and those entered into pursuant to this Section 8.1.13 are collectively referred
to as the "Interest Rate Protection Agreements"). Such Interest Rate Protection
Agreements shall contain such terms and conditions as shall be acceptable to the
Administrative Agent. Documentation for the Interest Rate Protection Agreement
shall be in a standard International Swap Dealer Association Agreement and shall
provide for the method of calculating the reimbursable amount of the provider's
credit exposure in a reasonable and customary manner. Such financial institution
(if other than a Lender) may be granted a security interest in the Collateral
pursuant to the Loan Documents and receive a Lien pari passu with the Lien of
the Administrative Agent upon terms acceptable to the Administrative Agent."
10. Section 8.2.1 of the Credit Agreement is hereby amended and
restated as follows:
"8.2.1 Indebtedness.
Each of the Loan Parties shall not, and shall not permit any
of its Subsidiaries to, at any time create, incur, assume or suffer to exist any
Indebtedness, except:
(i) Indebtedness under the Loan Documents;
(ii) Existing Indebtedness 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
unless otherwise specified on Schedule 8.2.1;
(iii) Capitalized and operating leases as and to the extent
permitted under Section 8.2.15;
(iv) Indebtedness secured by Purchase Money Security Interests
not exceeding $100,000;
(v) Indebtedness of a Loan Party to another Loan Party which
is subordinated in accordance with the provisions of Section 8.1.12;
(vi) Indebtedness incurred in connection with Permitted
Acquisitions provided that after giving effect thereto, no Potential Default or
Event of Default exists; and
(vii) OTHER UNSECURED INDEBTEDNESS NOT EXCEEDING $15,000,000
AT ANY ONE TIME OUTSTANDING."
11. Section 8.2.4 of the Credit Agreement is hereby amended and
restated as follows:
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"8.2.4 Loans and Investments.
Each of the Loan Parties shall not, and shall not permit any
of its Subsidiaries to, at any time make or suffer to remain outstanding any
loan or advance to, or purchase, acquire or own any stock, bonds, notes or
securities of, or any partnership interest (whether general or limited) or
limited liability company interest in, or any other investment or interest in,
or make any capital contribution to, any other Person, or agree, become or
remain liable to do any of the foregoing, except:
(i) trade credit extended on usual and customary terms in the
ordinary course of business;
(ii) advances to employees to meet expenses incurred by such
employees in the ordinary course of business;
(iii) Permitted Acquisitions;
(iv) Permitted Investments;
(v) loans, advances and investments in other Loan Parties,
provided however, that additional loans, advances and investments in Action
Rent-to-Own Holdings of South Carolina, Inc., a South Carolina corporation,
shall be limited to $500,000 in the aggregate; and (vi) an investment not in
excess of $7,500,000 for the purchase of a SEVENTY PERCENT (70%) ownership
interest in the limited liability company interests of dPi Teleconnect, L.L.C.,
a Delaware limited liability company ("dPi"), and loans and advances not in
excess of $3,500,000 to dPi at any one time outstanding, provided however, that
the Loan Parties' ownership interests in dPi and the note obligations of dPi to
the Loan Parties shall be pledged to the Administrative Agent for the benefit of
the Lenders. For purposes of this Credit Agreement, the financial results of dPi
shall be included in the consolidated financial statements of the Borrower, as
determined and consolidated in accordance with GAAP, but dPi shall not otherwise
constitute a Subsidiary subject to the terms and conditions of this Credit
Agreement and the Loan Documents which relate to the Subsidiaries of the Loan
Parties."
12. Section 8.2.6 of the Credit Agreement is hereby amended and
restated as follows:
"8.2.6 Liquidations, Mergers, Consolidations, Acquisitions.
Each of the Loan Parties shall not, and shall not permit any
of its Subsidiaries to, dissolve, liquidate or wind-up its affairs, or become a
party to any merger or consolidation, or acquire by purchase, lease or otherwise
all or substantially all of the assets or capital stock of any other Person,
provided that
(1) any Loan Party other than the Borrower and the Co-Borrower
may consolidate or merge into another Loan Party which is wholly-owned by one or
more of the other Loan Parties, and Rentavision may merge with and into the
Borrower so long as the Borrower is the surviving corporation, provided, that
Borrower and the Co-Borrowers shall deliver to the
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Administrative 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
Administrative Agent's request therefore) execute and deliver to the
Administrative Agent new UCC-1 financing statements or amendments to filed UCC-1
financing statements, as appropriate in the discretion of the Administrative
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
(2) any Loan Party may acquire, whether by purchase or by
merger, (A) all of the ownership interests of another Person or (B)
substantially all of assets of another Person or of a business or division of
another Person (each an "Permitted Acquisition"), provided that each of the
following requirements is met:
(i) such Person shall be a corporation, limited
liability company or other entity with respect to applicable state law providing
that the owners of all stock or other ownership interests in such entity shall
not be liable for any obligations of such entity or for the claims of any
creditors thereof,
(ii) if the Loan Parties are acquiring the ownership
interests in such Person, such Person shall execute a Guarantor Joinder and join
this Agreement as a Guarantor pursuant to Section 11.18 and such Person and its
owners shall grant Liens in the assets and stock or other ownership interests in
such Person and otherwise comply with Section 11.18 on or before the date of
such Permitted Acquisition,
(iii) the board of directors or other equivalent
governing body of such Person shall have approved such Permitted Acquisition and
the Loan Parties shall have delivered to the Lenders written evidence of such
approval prior to such Permitted Acquisition,
(iv) the business acquired, or the business conducted
by the Person whose ownership interests are being acquired, as applicable, shall
be substantially the same as the LINE OF BUSINESS and shall comply with Section
8.2.10,
(v) no Potential Default or Event of Default shall
exist immediately prior to and after giving effect to such Permitted
Acquisition,
(vi) the Borrower and the Co-Borrowers shall have
given the Administrative Agent written notice of the acquisition at least five
(5) days prior to its consummation, which notice shall include a quarterly
compliance certificate of the Borrower in the form of Exhibit 8.3.4 which
evidences that after giving effect to the Permitted Acquisition and any Loans to
be made in connection therewith, the Borrower is not in default with respect the
covenants set forth in Section 8.2.16,
(vii) any Consideration given by the Loan Parties in
the form of Indebtedness to be paid at a date after the closing date of the
Permitted Acquisition shall be
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subordinated to the Loans and other Obligations on terms and conditions
satisfactory to the Administrative Agent,
(viii) the Loan Parties shall have delivered to the
Lenders such opinions of counsel in form and substance satisfactory to the
Administrative Agent or such other evidence as shall be satisfactory to the
Administrative Agent in its sole discretion that the Loan Parties are in
compliance with all applicable Law in any additional states in which the Loan
Parties do business after the consummation of the Permitted Acquisition, and
(ix) if after giving effect to a Permitted
Acquisition the Leverage Ratio is greater than or equal to 2.0 to 1.0, the
Consideration given by the Loan Parties for such Permitted Acquisition shall not
exceed $20,000,000 in value, and after giving effect to such Permitted
Acquisition, the aggregate Consideration given by the Loan Parties for all
Permitted Acquisitions made during the then fiscal quarter of the Permitted
Acquisition and during the prior three fiscal quarters shall not exceed
$50,000,000."
13. Section 8.2.7 of the Credit Agreement is hereby amended and
restated as follows:
"8.2.7 Disposition of Assets or Subsidiaries.
Each of the Loan Parties shall not, and shall not permit any
of its Subsidiaries to, sell, convey, assign, lease, abandon or otherwise
transfer or dispose of, voluntarily or involuntarily, any of its properties or
assets, tangible or intangible (including sale, assignment, discount or other
disposition of accounts, contract rights, chattel paper, equipment or general
intangibles with or without recourse or of capital stock, shares of beneficial
interest, partnership interests or limited liability company interests of a
Subsidiary of such Loan Party), except:
(i) transactions involving the sale of inventory in
the ordinary course of business;
(ii) any sale, transfer, rental or lease of assets in
the ordinary course of business which are no longer necessary or required in the
conduct of such Loan Party's or such Subsidiary's business, including, without
limitation, (a) the Real Property located at 0000 Xxxx Xxxx Xxxx, Xxxx,
Xxxxxxxxxxxx, (b) ASSETS RELATING TO CLOSINGS OF RETAIL STORE SITES OF THE LOAN
PARTIES, PROVIDED HOWEVER, THAT THE MARKET VALUE OF THE ASSETS DISPOSED OF
PURSUANT TO THIS SUBSECTION (ii), WHEN AGGREGATED WITH PERMITTED DISPOSITIONS
DESCRIBED IN SUBSECTION (iv) BELOW, SHALL NOT EXCEED $5,000,000 IN ANY FISCAL
YEAR OF THE BORROWER;
(iii) any sale, transfer or lease of assets by any
wholly owned Subsidiary of such Loan Party to another Loan Party;
(iv) any sale, transfer or lease of assets in the
ordinary course of business which does not cause the aggregate market value or
the aggregate book value of all such sales, transfers and leases, WHEN
AGGREGATED WITH THE PERMITTED DISPOSITIONS IN SUBSECTION (ii) ABOVE, to exceed
$5,000,000 in any fiscal year of the Borrower and which are replaced by
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substitute assets acquired or leased within the parameters of Section 8.2.15,
provided such substitute assets are subject to the Lenders' Prior Security
Interest; or
(v) any sale, transfer or lease of assets, other than
those specifically excepted pursuant to clauses (i) through (iv) above, which is
approved by the Required Lenders so long as the after-tax proceeds (as
reasonably estimated by the Borrower and the Co-Borrowers) are applied as a
mandatory prepayment of the Term Loans in accordance with the provisions of
Section 5.5.2 above."
14. Section 8.2.13 of the Credit Agreement is hereby amended and
restated as follows:
"8.2.13 Issuance of Stock.
Each of the Loan Parties shall not, and shall not permit any
of its Subsidiaries to, issue any additional shares of its capital stock or any
options, warrants or other rights in respect thereof, except that the Borrower
may issue additional shares of capital stock (i) for Permitted Acquisitions in
accordance with the provisions of Section 8.2.6, (ii) for distribution to
employees as provided for under the stock option plans and 401(k) plans set
forth on Schedule 6.1.21 as in effect on the Closing Date, (iii) in connection
with the Mass Mutual Warrants, and (iv) TO THE EXTENT REQUIRED UNDER SECTION
5.5.2,if the net proceeds of the issuance are used by the Borrower to reduce (a)
the Loans outstanding under this Agreement, and (b) the Commitments of the
Lenders."
15. Section 8.2.16 of the Credit Agreement is hereby amended and
restated as follows:
"8.2.16 Maximum Leverage Ratio.
The Loan Parties shall not permit the Leverage Ratio of the
Borrower and its Subsidiaries to exceed the ratio set forth below for the four
fiscal quarters then ended.
Period Ratio
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6/30/00 3.25 to 1.00
9/30/00 through 12/31/00 3.50 to 1.00
3/31/01 3.25 to 1.00
6/30/01 3.00 to 1.00
9/30/01 through 6/30/02 2.75 to 1.00
9/30/02 and thereafter 2.50 to 1.00"
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16. Section 8.2.18 of the Credit Agreement is hereby amended and
restated as follows:
"8.2.18 Minimum Interest Coverage Ratio.
The Loan Parties shall not permit the Interest Coverage Ratio
to be less than the ratio set forth below for the four fiscal quarters then
ended, as calculated at the end of each fiscal quarter of the Borrower.
Period Ratio
------ -----
6/30/00 4.00 to 1.00
9/30/00 through 12/31/00 3.75 to 1.00
3/31/01 through 6/30/01 4.00 to 1.00
9/30/01 through 12/31/01 4.25 to 1.00
3/31/02 4.75 to 1.00
6/30/02 and thereafter 5.00 to 1.00"
17. Section 8.2.20 of the Credit Agreement is hereby amended and
restated as follows:
"8.2.20 Fixed Charge Coverage Ratio.
The Borrower shall not at any time permit the Fixed Charge
Coverage Ratio to be less that the amount set forth below for the four fiscal
quarters then ended, as calculated at the end of each fiscal quarter of the
Borrower.
Period Ratio
------ -----
6/30/00 through 9/30/00 1.10 to 1.00
12/31/00 1.15 to 1.00
3/31/01 and thereafter 1.20 to 1.00"
18. Section 8.2.21 of the Credit Agreement is hereby amended and
restated as follows:
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"8.2.21 Rental Merchandise Usage.
The Loan Parties shall not permit the value of the Rental
Merchandise other than personal computers held for rental under rental contracts
(but including in the calculations made pursuant to this sentence personal
computers held for rental under rental-purchase contracts) under lease pursuant
to Rental Contracts to be less than (i) 70% of the total value of Rental
Merchandise other than personal computers held for rental under rental contracts
(but including in the calculations made pursuant to this sentence personal
computers held for rental under rental-purchase contracts), as measured at the
fiscal quarter of the Borrower ending June 30, 2000, and (ii) 75% of the total
value of Rental Merchandise other than personal computers held for rental under
rental contracts (but including in the calculations made pursuant to this
sentence personal computers held for rental under rental-purchase contracts), as
measured at the end of each fiscal quarter of the Borrower commencing September
30, 2000 and thereafter. The Loan Parties shall not permit the value of the
Rental Merchandise comprised of personal computers held for rental under rental
contracts (but excluding from the calculations made pursuant to this sentence
personal computers held for rental under rental-purchase contracts) under lease
pursuant to Rental Contracts to be less than (i) 75% of the total value of
Rental Merchandise comprised of personal computers held for rental under rental
contracts (but excluding from the calculations made pursuant to this sentence
personal computers held for rental under rental-purchase contracts), as measured
at the fiscal quarter of the Borrower ending September 30, 2000, and (ii) 85% of
the total value of Rental Merchandise comprised of personal computers held for
rental under rental contracts (but excluding from the calculations made pursuant
to this sentence personal computers held for rental under rental-purchase
contracts), as measured at the end of each fiscal quarter of the Borrower
commencing December 31, 2000 and thereafter. For purposes of this Section
8.2.21, the value of the Rental Merchandise shall be as it is recorded on the
books and records of the Loan Parties, determined in accordance with GAAP and
the value of any jewelry shall be excluded from all calculations made. The Loan
Parties shall not permit the value of idle jewelry to exceed 7.5% of the total
value of Rental Merchandise, as measured at the end of each fiscal quarter of
the Borrower commencing June 30, 2000."
19. Section 11.1.1 of the Credit Agreement is hereby amended and
restated as follows:
"11.1.1 Increase of Commitment; Extension or Expiration Date.
WITH THE EXCEPTION OF THE COMMITMENTS PROVIDED BY THE LENDERS
ON AMENDMENT NO. 4 CLOSING DATE AND COMMITMENTS PROVIDED DURING THE SYNDICATIONS
PERIOD, increase the amount of the Revolving Credit Commitment, the Term Loan A
Commitment or the Term Loan B Commitment of any Lender hereunder, PROVIDED
HOWEVER, THAT NO COMMITMENT OF A LENDER MAY BE INCREASED WITHOUT SUCH LENDER'S
WRITTEN CONSENT, or extend the Expiration Date, the Term Loan A Maturity Date or
the Term Loan B Maturity Date. IN ADDITION TO INCREASES DURING THE SYNDICATIONS
PERIOD, THE ADMINISTRATIVE AGENT AND THE SYNDICATION AGENTS, WITH THE WRITTEN
CONSENT OF THE BORROWER AND THE CO-BORROWERS AND WRITTEN NOTICE TO THE OTHER
LENDERS, MAY REALLOCATE TERM LOANS B IN AN AMOUNT NOT TO EXCEED $50,500,000 TO
REVOLVING CREDIT LOANS AND TERM LOANS A; PROVIDED HOWEVER, THAT
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NO TERM LOAN B COMMITMENT OF A LENDER MAY BE REALLOCATED WITHOUT SUCH LENDER'S
WRITTEN CONSENT;
20. Section 11.1.2 of the Credit Agreement is hereby amended and
restated as follows:
"11.1.2 Extension of Payment; Reduction of Principal Interest
or Fees; Modification of Terms of Payment.
Whether or not any Loans are outstanding, extend the time for
ANY REGULARLY SCHEDULED PAYMENT (it is acknowledged that a mandatory prepayment
of a Loan, and any Commitment reduction in connection with such mandatory
prepayment, is not a "regularly scheduled payment" of such Loan) of principal or
interest of any Loan, the Commitment Fee or any other fee payable to any Lender,
or reduce the principal amount of or the rate of interest borne by any Loan or
reduce the Commitment Fee or any other fee payable to any Lender, or otherwise
affect the terms of ANY REGULARLY SCHEDULED payment of the principal of or
interest of any Loan, the Commitment Fee or any other fee payable to any
Lender;"
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21. New Lenders. Each Lender which was not previously a party to the
Credit Agreement hereby agrees that upon its execution of this Amendment it will
become a party to and be bound by the Credit Agreement as if it were an original
Lender thereunder and will have the rights and obligations of a Lender
thereunder and will perform in accordance with their terms all of the
obligations which by the terms of the Credit Agreement and the Loan Documents
are required to be performed by it as a Lender.
22. Solvency. As of the date hereof and after giving effect to the
Revolving Credit Loans, Term Loans A and Term Loans B advanced on the date
hereof: (i) the fair value of the assets of the Borrower, the Co-Borrowers and
each of their Subsidiaries will exceed the total amount of liabilities
(including contingent, subordinated, unmatured and unliquidated liabilities) of
the Borrower, the Co-Borrower and each of their Subsidiaries, (ii) the present
fair saleable value of the assets of the Borrower, the Co-Borrowers and each of
their Subsidiaries, on a going concern basis, will exceed the probable total
liabilities (including contingent, subordinated, unmatured and unliquidated
liabilities) of the Borrower, the Co-Borrowers and each of their Subsidiaries as
they become absolute and matured, (iii) the Borrower, the Co-Borrowers and each
of their Subsidiaries will be able to pay their respective debts, including
contingent liabilities, as they mature and become due, (iv) the Borrower, the
Co-Borrowers and each of their Subsidiaries is not, and will not be, engaged in
a business for which its capital is, or would be, unreasonably small, and (v)
the Borrower, the Co-Borrowers and each of their Subsidiaries has not incurred
(by way of assumption or otherwise) any obligation or liability (contingent or
otherwise) under the Credit Agreement, or any of the other Loan Documents to
which it is a party, nor has it made any conveyance pursuant to or in connection
therewith, with actual intent to hinder, delay or defraud either present or
future creditors of the Borrower, the Co-Borrowers or each of their
Subsidiaries.
23. Revised Schedule 1.1(A). Schedule 1.1(A) to the Credit Agreement is
hereby amended and restated as set forth on Schedule 1.1(A) attached to this
Amendment No. 4 and made a part hereof. From and after the date of this
Amendment No. 4 and subject to the terms of the Credit Agreement, the Loans,
Commitment Fees and Letter of Credit Fees shall bear interest or be determined,
as the case may be, as set forth on Schedule 1.1(A) attached to this Amendment
No. 4.
24. Revised Schedule 1.1(B). Schedule 1.1(B) to the Credit Agreement is
hereby amended and restated as set forth on Schedule 1.1(B) attached to this
Amendment No. 4 and made a part hereof
25. Revised Compliance Certificate. Exhibit 8.3.4 to the Credit
Agreement is hereby amended and restated as set forth on Exhibit 8.3.4 attached
to this Amendment No. 4 and made a part hereof.
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26. Conditions of Effectiveness of this Amendment and Restatement. The
effectiveness of this Amendment is expressly conditioned upon satisfaction of
each of the following conditions precedent:
(a) Representations and Warranties; No Defaults. The
representations and warranties of the Borrower and the Co-Borrowers contained in
Article 6 of the Credit Agreement shall be true and accurate on the date hereof
with the same effect as though such representations and warranties had been made
on and as of such date (except representations and warranties which relate
solely to an earlier date or time, which representations and warranties shall be
true and correct on and as of the specific dates or times referred to therein),
and the Borrower and the Co-Borrowers shall have performed and complied with all
covenants and conditions hereof; no Event of Default or Potential Default under
the Credit Agreement shall have occurred and be continuing or shall exist. The
execution by the Borrower and the Co-Borrowers of this Amendment shall be deemed
to be a certification of all such matters as of the date hereof.
(b) Legal Details; Counterparts. All legal details and
proceedings in connection with the transactions contemplated by this Amendment
shall be in form and substance satisfactory to the Administrative Agent. The
Administrative Agent shall have received counterparts of this Amendment duly
executed by the Borrower, the Co-Borrowers, the Guarantors and the Required
Lenders, and the Administrative Agent shall have received all such other
counterpart originals or certified or other copies of such documents and
proceedings in connection with such transactions, in form and substance
satisfactory to the Administrative Agent, including without limitation,
replacement Notes and a modification agreement to the Mortgage to evidence that
the increased Commitments are secured by the Real Property. The Administrative
Agent shall have received such officers' and secretaries' certificates of the
Loan Parties and opinions of counsel with respect to this Amendment and the Loan
Documents delivered pursuant hereto as shall be satisfactory to the
Administrative Agent. The Borrower shall pay or cause to have been paid to the
Administrative Agent and the Lenders to the extent not previously paid the fees
accrued through the date hereof and the cost and expenses of the Administrative
Agent and the Lenders which are reimbursable under the Agreement, the Loan
Documents or any related documents. This Amendment may be executed by the
parties hereto in any number of separate counterparts, each of which when taken
together and duly executed and delivered shall together constitute one and the
same instrument.
27. Force and Effect. Except as expressly modified by this Amendment,
the Credit Agreement and the other Loan Documents are hereby ratified and
confirmed and shall remain in full force and effect after the date hereof. By
their execution and delivery of this Amendment, the Guarantors acknowledge and
agree that their respective obligations and liabilities under the Guaranty
Agreement extend to all Obligations of the Borrower and the Co-Borrowers, or
either one of them. The Loan Parties acknowledge and agree that the Security
Agreements previously executed by the Loan Parties and all other Loan Documents,
including without limitation, all documents which grant liens and security
interests in favor of the Administrative Agent for the benefit of the Lenders,
remain in full force and effect and secure the joint and several Obligations
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of the Borrower and the Co-Borrowers, and to the extent set forth in such Loan
Documents, the other Loan Parties.
28. Governing Law. This Amendment shall be deemed to be a contract
under the laws of the Commonwealth of Pennsylvania and for all purposes shall be
governed by and construed and enforced in accordance with the internal laws of
the Commonwealth of Pennsylvania without regard to its conflict of laws
principles.
29. Effective Date. This Amendment shall be dated as of and shall be
effective as of the date and year first above written, which date shall be the
date of the satisfaction of all conditions precedent to effectiveness set forth
in this Amendment.
[SIGNATURE PAGES TO FOLLOW]
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SCHEDULE 1.1(A)
PRICING GRID
-----------------------------------------------------------------------------------------------------------------------------------
REVOLVING CREDIT REVOLVING CREDIT
LEVERAGE RATIO AND TERM LOAN A AND TERM LOAN A TERM LOAN B TERM LOAN B
Level EURO-RATE SPREAD BASE RATE SPREAD EURO-RATE BASE RATE COMMITMENT FEE*
----- AND LETTER OF SPREAD SPREAD RATE
CREDIT FEE
-----------------------------------------------------------------------------------------------------------------------------------
I Less than 2.0 to 1.0 1.750% 0.250% 3.500% 2.000% .375%
-----------------------------------------------------------------------------------------------------------------------------------
II Equal to or greater than 2.0 2.000% 0.500% 3.500% 2.000% .375%
to 1.0 but less than 2.5
to 1.0
-----------------------------------------------------------------------------------------------------------------------------------
III Equal to or greater than 2.5 2.375% 0.875% 3.500% 2.000% .375%
to 1.0 but less than 3.0
to 1.0
-----------------------------------------------------------------------------------------------------------------------------------
IV** Equal to or greater than 3.0 2.750% 1.250% 3.500% 2.000% .500%
to 1.0
-----------------------------------------------------------------------------------------------------------------------------------
The Applicable Margin, Applicable Commitment Fee Rate and Letter of
Credit Fee shall be adjusted, and any increase or decrease therein shall become
effective on the first day of each month following the due date for the delivery
of each Compliance Certificate in the form of Exhibit 8.3.4, based on the
Leverage Ratio as calculated in such Compliance Certificate.
* For each day in a period when the Revolving Facility Usage is less
than one half (1/2) of the aggregate amount of the Revolving Credit Commitments,
the Applicable Commitment Fee Rate used to calculate the Commitment Fees in
accordance with Section 2.3 shall be one and one-half times the amount set forth
in the Pricing Grid.
** The default rate in Section 4.3 may increase these interest rates.
