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Exhibit 10.25
AMENDMENT NO. 5 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 5 TO CREDIT AGREEMENT (the "Amendment") is dated as
of November 16, 2000, and is made by and among RENT-WAY, INC., a Pennsylvania
corporation, for itself and as successor by merger to RENTAVISION, INC., a New
York corporation (the "Borrower"), RENT-WAY OF TTIG, L.P., an Indiana limited
partnership (the "Co-Borrower"), each of the GUARANTORS, each of the LENDERS (as
defined in the Credit Agreement defined below), NATIONAL CITY BANK OF
PENNSYLVANIA in its capacity as administrative agent for the Lenders under the
Credit Agreement (hereinafter referred to in such capacity as the
"Administrative Agent"), BANK OF AMERICA, N.A., in its capacity as documentation
agent for the Lenders, and BANK OF MONTREAL and ▇▇▇▇▇▇ 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, Amendment No. 3 thereto dated as of December 7, 1999 and Amendment No. 4
dated as of June 28, 2000 (collectively, the "Credit Agreement"), pursuant to
which the Lenders provided to the Borrower and the Co-Borrower a revolving
credit facility in the maximum principal amount of $114,444,444.46, Term Loans A
in the principal amount of $143,055,555.54 and Term Loans B in the principal
amount of $177,500,000.00;
WHEREAS, ▇▇▇▇▇▇▇▇ Ingersoll, P.C., as counsel to the
Administrative Agent, and ▇▇▇▇ & ▇▇▇▇▇▇▇, as counsel to the Audit Committee, and
to those members of the Board of Directors who are not employees ("Outside
Directors"), of the Borrower and Co-Borrower (both firms collectively referred
to as, "Counsel"), have jointly retained Ernst & Young, LLP ("E&Y") to conduct a
review of (1) certain financial projections the Borrower and Co-Borrower submit
to the Administrative Agent and Lenders in connection with the request of the
Loan Parties for waivers of compliance of certain provisions of the Credit
Agreement and (2) the books and records of the Loan Parties (such review to be
collectively referred to as the "E&Y Reviews");
WHEREAS, certain information that is nonpublic and
confidential or proprietary in nature that pertains to, or is prepared in
connection with, the E&Y Reviews will be provided to the Lenders for the purpose
of assisting the Lenders in determining whether to provide to the Borrowers and
Co-Borrower waivers of compliance of certain provisions in the Credit Agreement
and continued financing under the Credit Agreement.
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:
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1. Definitions. Defined terms used herein unless otherwise defined
herein shall have the meanings ascribed to them in the Credit Agreement.
2. Confidentiality.
(a) Section 11.12 of the Credit Agreement is hereby amended and
restated in its entirety as follows:
"The Administrative Agent and the Lenders each agree to keep
confidential all information obtained from any Loan Party or its Subsidiaries
which is nonpublic and confidential or proprietary in nature (including any
information the Borrower and the Co-Borrower specifically designates as
confidential), except as provided below, and to use such information only in
connection with their respective capacities under this Agreement and for the
purposes contemplated hereby. The Administrative Agent and the Lenders shall be
permitted to disclose such information (i) to outside legal counsel, Affiliates,
accountants and other professional advisors who need to know such information in
connection with the administration and enforcement of this Agreement, subject to
agreement of such Persons to maintain the confidentiality; (ii) in connection
with the exercise, preservation or protection of any right or remedy under the
Credit Agreement, applicable law or in equity, including without limitation in
connection with any litigation or any proof of claim, adequate protection,
relief from stay or other proceeding in any bankruptcy case; (iii) in connection
with the defense of any claim, counterclaim, crossclaim or cause of action
commenced or threatened to be commenced against the Administrative Agent or any
Lender, or its or their counsel, including without limitation any litigation,
arbitration or administrative proceeding; (iv) to potential assignees and
participants as contemplated by Section 11.11; (v) to the extent requested by
any bank regulatory authority or, with notice to the Borrower and the
Co-Borrower (to the extent permitted by applicable Law), as otherwise required
by applicable Law or by any subpoena or similar legal process, or in connection
with any investigation or proceeding arising out of the transactions
contemplated by this Agreement; (vi) if it becomes publicly available other than
as a result of a breach of this Agreement or becomes available from a source not
known to be subject to confidentiality restrictions; or (vii) if the Borrower or
the Co-Borrower shall have consented to such disclosure."
(b) Pursuant to Section 11.12 of the Credit Agreement, the Borrower and
the Co-Borrower hereby designate as confidential information all information
pertaining to E&Y Reviews as confidential and to treat and use all such
information as confidential information in accordance with the provisions of
Section 11.12 thereof. Without limiting the generality of the foregoing, the
parties hereto agree that confidential information includes all oral and written
communications concerning the E&Y Reviews between or among any of the parties
hereto, any member of the Audit Committee, any members of the Board of Directors
who are not employees of the Borrower or Co-Borrower (the "Outside Directors"),
E&Y or any of their respective counsel (collectively, the "Financial
Confidential Information").
(c) Upon receipt by any of the parties hereto, the Audit Committee, the
Outside Directors or any of their respective counsel of any request by any third
party or service of legal process (including subpoena) upon any such person or
entity to divulge any Financial Confidential Information (collectively, a
"Demand"), the person or entity upon whom such
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Demand is made, will promptly inform counsel set forth in item (e) below, the
Audit Committee and the Outside Directors, and where applicable provide a copy
of any such Demand to counsel at the addresses listed below and to the Borrower
and Co-Borrower in the manner provided in Section 11.6 of the Credit Agreement,
so that the Audit Committee and the Outside Directors and their counsel, the
Borrower or Co-Borrower may, at no cost to the Administrative Agent or any
Lender, take all steps deemed necessary to prevent the disclosure of the
requested Financial Confidential Information.
(d) Solely with respect to Financial Confidential Information, the
Audit Committee and the Outside Directors shall be a beneficiary of the rights
and protections of the provisions of this Amendment No. 5 and Section 11.12 of
the Credit Agreement.
(e) Copies of the Demands are to be forwarded to counsel via facsimile,
as follows:
(1) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Professional Corporation
One Oxford Centre, 20th Floor
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (Fax)
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
(2) To: Counsel to the Audit Committee and Outside Directors
▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (Fax)
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
3. Retention of Other Financial Advisors. The Borrower, the Co-Borrower
and the Audit Committee hereby acknowledge and agree that the retention of E&Y
by counsel for the Administrative Agent may be terminated at any time in the
sole discretion of such counsel. The Borrower and the Co-Borrower further agree
that the Administrative Agent or counsel for the Administrative Agent shall
engage a different or an additional independent accounting firm or other
financial advisor (the "Other Advisors") (in addition to E&Y) and the fees and
expenses of such Other Advisors shall be paid and reimbursed by the Borrower and
the Co-Borrower. The Borrower and the Co-Borrower, jointly and severally,
unconditionally agree to pay or reimburse and hold the Administrative Agent
harmless against claims of the Other Advisors for payment of fees and expenses.
The engagement of the Other Advisors shall be within the sole and absolute
discretion of the Administrative Agent or its counsel and the reimbursement and
indemnification provisions of Section 10.5 of the Credit Agreement shall be
applicable to all such engagements.
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4. Force and Effect. Except as expressly modified by this Amendment,
the Credit Agreement and other Loan Documents are hereby ratified and confirmed
and shall remain in full force and effect after the date hereof.
5. Effective Date. This Amendment No. 5 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 satisfaction of all conditions precedent to effectiveness set forth
in this Agreement.
[SIGNATURE PAGES TO FOLLOW]
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