EXHIBIT 2.6
[RAC Letterhead]
February 10, 2003
VIA FACSIMILE (814) 461-5401
Rent-Way, Inc.
Rent-Way of Michigan, Inc.
Rent-Way of TTIG, L.P.
Attn: Chief Executive Officer
One Rent Way Place
Erie, Pennsylvania 16505
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 2109 East 23rd Street, Chattanooga, TN (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 Marlow 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 4141 Branch Avenue, Marlow Heights, MD (the "MARLOW 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 Marlow Heights Store as of
the date hereof as if the Assets related to the Marlow 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 Marlow 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 Marlow 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 Marlow 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.
(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
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incorporated herein by reference and are deemed made as of the
date hereof with respect to matters related to the Marlow
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 Marlow 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 Marlow 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 Marlow
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 Marlow Heights Store as if the
Marlow 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.
<Table>
<Caption>
STORE # ADDRESS CITY ST
- ------- --------------------------------- --------------- --
00146 245 South George Street York PA
00182 2801 Lancaster Avenue Wilmington DE
</Table>
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<Table>
<Caption>
00231 6451 West Colfax Avenue Lakewood CO
01004 1105 South Josey Lane Carrollton TX
01007 800 North Highway 77 Waxahachie TX
01073 4449 NW 50th Street Oklahoma City OK
01145 2301 East Lake Mead Road North Las Vegas NV
01146 2350 Miracle Mile Bullhead City AZ
01248 1967 North Decatur Boulevard Las Vegas NV
01424 2514 South Federal Hwy. Fort Pierce FL
01448 1815 S WW White Road San Antonio TX
01452 1376 Sullivan Lane Sparks NV
01455 4003 East Sprague Spokane WA
01510 6990 East 22nd Street Tucson AZ
01745 1115 Charles G. Seviers Boulevard Clinton TN
01879 4082 Lankford Highway Exmore VA
</Table>
(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.
(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
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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:
<Table>
<Caption>
STORE # ADDRESS CITY ST
- ------- --------------------------------- --------------- --
00196 8636 Richmond Highway Alexandria VA
00224 5330 West Washington Indianapolis IN
00280 421 Smithville Road Orrville OH
00552 1740 South Cliff Avenue Sioux Falls SD
01230 110 West McGaffey Roswell NM
01259 400 Northline Mall Houston TX
01272 1920 11th Avenue North Texas City TX
01317 92 15th Street Tuscaloosa AL
01403 1509 E. Main Street Russellville AR
</Table>
(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"):
<Table>
<Caption>
STORE # ADDRESS CITY ST
- ------- --------------------------------- --------------- --
00246 2116 North Mitchell Street Cadillac MI
00488 5402 Charlotte Avenue Nashville TN
01005 222 Camp Wisdom Road Duncanville TX
01051 9751 Webb Chapel Dallas TX
01505 114 N. Vine Street Urbana IL
01549 1709 North Walnut Hartford City IN
01813 1834 North Main Street Longmont CO
01817 1341 24th Street Port Huron MI
</Table>
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: /s/ Mark E. Speese
----------------------------------------
Name: Mark E. Speese
---------------------------------
Title: Chairman of the Board and
---------------------------------
Chief Executive Officer
---------------------------------
RENT-A-CENTER WEST, INC.
By: /s/ Mark E. Speese
---------------------------------------
Name: Mark E. Speese
--------------------------------
Title: President
--------------------------------
RENT-A-CENTER TEXAS, L.P.
By: Rent-A-Center East, Inc.,
its general partner
By: /s/ Mark E. Speese
-----------------------------------
Name: Mark E. Speese
----------------------------
Title: Chairman of the Board and
----------------------------
Chief Executive Officer
----------------------------
AGREED AND ACCEPTED:
RENT-WAY, INC.
By: /s/ William A. McDonnell
-------------------------------
Name: William A. McDonnell
------------------------
Title: Vice President
------------------------
RENT-WAY OF MICHIGAN, INC.
By: /s/ William A. McDonnell
-------------------------------
Name: William A. McDonnell
------------------------
Title: Vice President
------------------------
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RENT-WAY OF TTIG, L.P.
By: Rent-Way Development, Inc.,
its general partner
By: /s/ William A. McDonnell
--------------------------------
Name: William A. McDonnell
-------------------------
Title: Vice President
-------------------------
cc: Hodgson Russ, LLP
One M&T Plaza, Suite 2000
Buffalo, New York 14203-2391
Attention: John J. Zak, Esq.
Telecopy: 716-849-0349
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