EXHIBIT 10.14
FRANCISEE FINANCING AGREEMENT
This Franchisee Financing Agreement ("Agreement") is made and entered
into by and between TEXAS CAPITAL BANK, NATIONAL ASSOCIATION ("Bank"),
ColorTyme, Inc., a Texas corporation ("ColorTyme"), and Rent-A-Center, Inc., a
Delaware corporation formerly known as Renters Choice, Inc. (the "Guarantor").
RECITALS
A. ColorTyme is a franchisor of "rent-to-own" stores (each such store
is referred to herein as a "Store") operated by franchisees licensed by
ColorTyme (each such franchisee is herein referred to individually as a
"Franchisee" and collectively as the "Franchisees"), offering various home
entertainment equipment, household equipment, and consumer products and parts,
accessories, and other goods used in connection therewith (all such goods are
referred to herein as "Inventory").
B. Bank is a national banking association that provides financing for
its customers.
C. ColorTyme desires a source of financing for its Franchisees to
enable them to acquire Inventory for sale, lease or rent in connection with the
operation of their Stores.
D. ColorTyme has previously executed that certain Amended and Restated
Franchisee Financing Agreement dated March 27, 2002 by and among ColorTyme,
Guarantor and Textron Financial Corporation ("Textron") (as same may be amended,
restated or modified from time to time, the "Existing Agreement"), pursuant to
which Textron shall provide a credit facility for Franchisees.
E. ColorTyme and Guarantor have requested and Bank has agreed to
refinance a portion of the indebtedness evidenced by the Existing Agreement in
an aggregate original principal amount of $10,000,000.
F. The Guarantor is the corporate parent of ColorTyme, owning all of
its outstanding capital stock.
G. The parties have entered into this Agreement to set forth the terms
and conditions upon which Bank will provide such refinancing and a source of
financing for Franchisees.
ARTICLE I
CREDIT FACILITY
1.1 Credit Facility. Bank shall provide a credit facility for
Franchisees on the terms and subject to the conditions set forth in this
Agreement. The amount of the credit facility shall be up to, but not in excess
of, Ten Million and No/Dollars ($10,000,000.00). Bank will not finance any
-1-
transaction which would cause the total amount financed by Bank pursuant to this
Agreement to exceed such amount. Each credit facility shall be secured by a
first priority security interest in (i) all of the Franchisee's inventory,
goods, chattel paper, accounts, contract rights, documents, instruments,
franchise rights, and general intangibles (specifically including leases and
rental contracts), (ii) 100% of the stock or equity interest in Franchisee, and
(iii) such additional collateral as Bank may require, and shall be fully
guaranteed by Franchisee's principal owners.
ARTICLE II
CREDIT PROCEDURES, TERMS AND ADMINISTRATION
2.1 Financing Procedures. The following procedures shall be employed in
determining the availability of financing for Franchisees under this Agreement:
(a) In the event a Franchisee shall indicate an interest in
obtaining financing for any of the purposes described in Section 2.5,
ColorTyme shall provide the Franchisee with a credit application and
other credit documentation, to be developed by Bank and approved by
ColorTyme, and shall assist the Franchisee in completing such credit
application and other credit documents.
(b) After the Franchisee has completed the credit application
and provided the other credit documents specified by Bank, if such
credit application and other credit documents are acceptable to
ColorTyme, ColorTyme shall promptly forward the executed credit
application and other credit documents to Bank at its office in Dallas,
Texas or any other such location Bank may designate in writing to
ColorTyme.
(c) If, following completion of its review of such credit
application and other credit documents and its credit investigation,
Bank determines that it will provide the financing requested, it shall
so notify the Franchisee and ColorTyme and, upon receipt of such
additional closing documents and satisfaction of such closing
conditions as Bank determines to be necessary for the approval and
documentation of the credit in its sole discretion, Bank shall
establish a revolving line of credit for the Franchisee in accordance
with the terms of this Agreement. (For purposes of this Agreement, the
resulting obligation of the Franchisee to Bank is referred to as a
"Receivable").
2.2 Interest Rates. Unless otherwise agreed in writing by Bank and
ColorTyme, the interest rate on each Receivable shall be in accordance with the
following schedule: (i) for each Line of Credit with a Credit Limit (as that
term is hereinafter defined) of $1,000,000 or less, the rate will be the Prime
Rate plus 3.75%; (ii) for each Line of Credit with a Credit Limit of more than
$1,000,000, the rate will be the Prime Rate plus 2.75%; and (iii) for each Term
Loan, the rate will be the same as the rate applicable to the Franchisee's Line
of Credit on the date of such Term Loan. For purposes of this subparagraph, the
term "Prime Rate" shall mean the "Wall Street Prime Rate"
-2-
as announced and published and so designated in the Money Rates Section of the
Wall Street Journal (Southwest Region), as such rates may change from time to
time, ColorTyme hereby acknowledging that the "Wall Street Prime Rate" may not
be the lowest rate offered by Bank to its customers. If such Prime Rate shall
cease to be published or is published infrequently or sporadically, then the
Prime Rate shall be determined by reference to another Prime Rate or similar
lending rate index, generally accepted on a national basis, as selected by Bank
in its sole and absolute discretion. Fluctuations in the Prime Rate shall become
effective on the last business day of the calendar month during which such
changes in the Prime Rate occur. Interest will be calculated on the basis of a
360-day year.
2.3 Credit Limits. Upon approval of an application for financing
submitted by or on behalf of a Franchisee pursuant to this Agreement, Bank shall
establish a credit limit for the Franchisee in an amount agreed upon from time
to time by Bank, ColorTyme and the Franchisee (the credit limit established for
each Franchisee is referred to herein as the "Credit Limit"). The amount of the
Credit Limit may be adjusted from time to time upon written agreement by Bank,
ColorTyme and the Franchisee.
2.4 Advance Limits. Notwithstanding the amount of the Franchisee's
Credit Limit, the amount of credit available under each Receivable shall be
limited to the product of the Franchisee's Average Monthly Revenue multiplied by
five (the advance limit established for each Franchisee is referred to herein as
the "Advance Limit"). For purposes of this Agreement, a Franchisee's "Average
Monthly Revenue" shall mean the average monthly total revenue (exclusive of
sales tax) of the Franchisee from the sale, lease or rental of Inventory and
other fees, calculated in accordance with generally accepted accounting
principles applied on a consistent basis, for the three (3) calendar months
preceding the most recent review of such Franchisee's Receivable(s).
Notwithstanding anything in this section to the contrary, if the Advance Limit
established pursuant to this section would otherwise be an amount that is less
than the then outstanding balance of such Receivable (each such Receivable is
referred to herein as an "Overline Receivable"), the Advance Limit for such
Overline Receivable will be set at the then outstanding balance thereof, and
such Overline Receivable will continue to be administered as provided herein,
unless Bank and ColorTyme agree otherwise. The provisions of this section shall
not apply to any Receivable until the Store for which the financing was provided
under the Receivable has been open for business for one (1) year.
2.5 Use of Proceeds. Bank will advance funds to or an behalf of
Franchisee pursuant to this Agreement only for: (i) the Franchisee's acquisition
of Inventory and/or (ii) the Franchisee's acquisition or conversion of a Store.
(a) Inventory. Advances for Inventory will be limited to the
lesser of (i) the cost of the Inventory acquired by the Franchisee;
(ii) the amount of the Franchisee's Credit Limit; or (iii) the amount
of the Franchisee's Advance Limit.
-3-
(b) Store Acquisitions and Conversions. Advances for Store
acquisitions and/or conversions (i.e., the acquisition of existing
ColorTyme Stores and/or the acquisition of other "rent-to-own" stores
for conversion to ColorTyme Stores) will be limited to the lesser of
(i) in the case of a Store that has been open for business (either as a
ColorTyme Store or as another "rent-to-own" store) for one (1) year or
more, the product of the Average Monthly Revenue, as defined in Section
2.4, of the individual Store multiplied by nine (9); (ii) the amount
that would cause the Debt-to-Revenue Ratio for the Franchisee to equal
or exceed 5:1; (iii) except in the case of advances pursuant to a Term
Loan, the amount of the Franchisee's Credit Limit; and (iv) the amount
of the Franchisee's Advance Limit. For purposes of this paragraph,
"Debt-to-Revenue Ratio" shall mean the ratio of (x) Funded Debt to (y)
the Average Monthly Revenue, as defined in Section 2.4 of the
Franchisee (calculated on an aggregate basis for all Stores owned
and/or operated by such Franchisee and any and all affiliates of such
Franchisee); and "Funded Debt" shall mean, as of any date, the total
amount of any liabilities (including the advance contemplated by this
paragraph) that would be reflected on the consolidated balance sheet of
Franchisee and its parent and any and all subsidiaries and affiliates,
if any, in accordance with generally accepted accounting principles
applied on a consistent basis. Financing for Store acquisitions and/or
conversions will be made available only to Franchisees that are, at the
time, already indebted to Bank under a Receivable.
For purposes of this section, Bank may rely fully on the representations and/or
agreements of the Franchisee with respect to the use of funds, with no
obligation to independently verify such information. The use of any such funds
by a Franchisee for any purpose not permitted by this section will not affect
the obligations of ColorTyme or Guarantor under this Agreement.
2.6 Payment Terms. Each Receivable will be repayable as follows:
(a) In the case of a Line of Credit, (i) accrued and unpaid
interest shall be payable monthly, and (ii) principal shall be payable
in monthly installments as determined in accordance with Addendum A
attached hereto and made a part hereof as such Addendum A may be
modified from time to time by the parties.
(b) In the case of a Term Loan, (i) accrued and unpaid
interest shall be payable monthly, and (ii) principal shall be payable
in equal monthly installments over the term of the Term Loan, with the
monthly principal installment to equal the amount of the Term Loan
divided by the number of months in the term thereof.
2.7 Suspension of Advances. Advances may, at Bank's option, be
suspended or limited under any Receivable drawn to an amount greater than the
product of the Franchisee's Average Monthly Revenue multiplied by four (4) where
(i) the ratio of cash expenses (total annual expenses, less depreciation
directly related to the operation of the Franchisee's Store(s), calculated in
-4-
accordance with generally accepted accounting principles applied on a consistent
basis) to total revenue (calculated in accordance with generally accepted
accounting principles applied on a consistent basis, excluding extraordinary
items, based on a three (3) month rolling average) exceeds 64%; (ii) the
Franchisee fails to maintain the number of rental contracts that are seven (7)
or more days past due (calculated on a three (3) month rolling average) at 8% or
less of its total outstanding rental contracts; (iii) expenses of a Store that
has been open for business for less than twelve (12) months exceed the proforma
cash flow projections as a percent of revenue for that Store; (iv) payments
(principal and/or interest) under any Receivable of the Franchisee are more than
fifteen (15) days past due; or (v) Franchisee fails to submit a copy of the
ColorTyme Royalty report to Bank within 15 days following the end of the month;
(vi) Franchisee fails to submit a copy of the current financial statement within
45 days following the end of each business month; or (vii) in Bank's
determination, the Receivable is otherwise in default.
2.8 Financing Terms and Credit Standards. The specific terms of any
financing provided by Bank to Franchisees under this Agreement shall be
determined from time to time by Bank in accordance with its ordinary and
customary business practices. The credit standards for approval of any financing
provided by Bank to Franchisees under this Agreement shall be determined from
time to time by Bank and ColorTyme; provided, however, the application of such
credit standards to particular transactions shall be at Bank's sole discretion.
2.9 Credit Approval. Nothing herein shall obligate Bank to accept or
approve any application for financing submitted by or on behalf of any
Franchisee. Bank may, in its discretion, reject or decline any application for
financing submitted by or on behalf of any Franchisee; provided, if Bank rejects
or declines any such application, it shall inform ColorTyme and the Franchisee
of the reasons therefor.
2.10 Collection Procedures. Bank shall use its ordinary and customary
practices and procedures to collect outstanding Receivables, subject to the
provisions of this Agreement.
2.11 Modification of Receivables. Notwithstanding anything in this
Agreement to the contrary, Bank reserves the right to make such modifications,
adjustments and/or revisions to any Receivables, including the Credit Limits,
payment terms and conditions for advances thereunder, as it deems necessary or
appropriate under the circumstances, provided it may not increase the Credit
Limits available under any Line of Credit above the amount specified in Section
2.3. Provided Bank shall not have previously given ColorTyme notice of default
with respect to a Receivable pursuant to Section 4.1, Bank may at any time, at
its discretion, amend payment schedules, defer payments or otherwise modify the
terms of any such Receivable, without in any way affecting the obligations of
ColorTyme or the Guarantor under this Agreement.
2.12 Payments to ColorTyme. Bank shall pay to ColorTyme, from the
interest portion of each payment received by Bank on account of each Receivable
(whether a Line of Credit or a Term
-5-
Loan), an amount calculated by multiplying the amount of each such interest
payment by a fraction, the denominator of which is the rate of interest
applicable to such Receivable and the numerator of which is determined on the
following scale: (i) 2.00% if the Franchisee's Credit Limit is $1,000,000 or
less; or (ii) 1.50% if the Franchisee's Credit Limit is greater than $1,000,000.
The amounts payable pursuant to this section shall be payable on a monthly
basis.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
3.1 Representations and Warranties of ColorTyme and the Guarantor.
ColorTyme and Guarantor, jointly and severally, represent and warrant to Bank
that:
(a) ColorTyme. ColorTyme is a corporation duly organized,
validly existing and in good standing under and pursuant to the laws of
the State of Texas. ColorTyme has duly qualified and is authorized to
conduct business and is in good standing as a foreign corporation in
all jurisdictions where such qualification is necessary, except to the
extent that the failure to so qualify would not have a material adverse
effect on ColorTyme. ColorTyme has all requisite corporate power and
authority to enter into this Agreement and to consummate the
transactions herein contemplated. ColorTyme has taken all corporate
action necessary to duly authorize the execution of this Agreement and
the consummation of all transactions herein contemplated.
(b) The Guarantor. The Guarantor is a corporation duly
organized, validly existing and in good standing under and pursuant to
the laws of the State of Delaware. The Guarantor has duly qualified and
is authorized to conduct business and is in good standing as a foreign
corporation in all jurisdictions where such qualification is necessary,
except to the extent that the failure to so qualify would not have a
material adverse effect on Guarantor. The Guarantor has all requisite
corporate power and authority to enter into this Agreement and to
consummate the transactions herein contemplated. The Guarantor has
taken all corporate action necessary to duly authorize the execution of
this Agreement and the consummation of all transactions herein
contemplated.
(c) Enforceable Agreement. This Agreement has been duly
executed and delivered by ColorTyme and the Guarantor and is a legal,
valid and binding obligation of ColorTyme and the Guarantor, fully
enforceable in accordance with its terms.
(d) The Receivables. The credit applications and other credit
documents provided to Bank by ColorTyme pursuant to Section 2.1 in
connection with each application by a Franchisee for financing pursuant
to this Agreement will in each case be all the documents received or
acquired by ColorTyme or the Guarantor in connection with such
application; to the best of ColorTyme's and the Guarantor's knowledge,
each such document will have been
-6-
duly executed by the persons whose signatures purport to appear
thereon; to the best of ColorTyme's and the Guarantor's knowledge, none
of such documents or any other materials submitted therewith will
contain any false or misleading statements or information; and at the
time such documents are provided to Bank and, if the application for
financing is approved by Bank, at the time the resulting Receivable is
funded by Bank, neither ColorTyme nor the Guarantor will have any
knowledge of any fact or circumstance that would materially adversely
affect the enforceability or collectibility of the Receivable or Bank's
rights thereunder or in the collateral securing such Receivable.
(e) Accurate Information. Neither ColorTyme nor the Guarantor
has made any misstatement of material fact to Bank or provided Bank
with any false or misleading information relevant to this Agreement or
withheld from Bank any information known to ColorTyme or the Guarantor
which would be material to Bank's decision to enter into this
Agreement.
3.2 Covenants of ColorTyme. At all times during which any of the
Receivables are outstanding or during which ColorTyme and/or the Guarantor have
any obligations, including contingent obligations, to Bank under this Agreement,
unless Bank shall otherwise consent in writing:
(a) Receipt of Funds. If ColorTyme or the Guarantor receive
any money or property as payment on any of the Receivables, they shall
receive and hold such money or property in trust for Bank and
immediately deliver such money or property to Bank with any necessary
endorsements.
(b) The Receivables. Neither ColorTyme nor the Guarantor shall
take any action, or fail to take any action, which could adversely
affect Bank's rights with respect to any of the Receivables. Neither
ColorTyme nor the Guarantor will make any misstatement of material fact
to Bank or provide Bank with any false or misleading information
relevant to any credit application or other credit documents submitted
pursuant to this Agreement or any Receivable or omit to provide Bank
with any information known to ColorTyme or the Guarantor which would be
material to Bank's decision regarding any such credit application or
Receivable.
(c) Confidentiality; Proprietary Rights. During the term of
this Agreement, Bank shall provide to ColorTyme various forms,
documents, procedures manuals and other information and materials for
use in connection with the financing contemplated by this Agreement.
ColorTyme and the Guarantor acknowledge and agree that all such
information and materials are proprietary to Bank and constitute
private business information intended for Bank's exclusive benefit.
Neither ColorTyme nor the Guarantor shall use, and shall not permit
their employees or agents to use, any such materials or information for
any purpose other than as expressly contemplated by this Agreement.
ColorTyme and the Guarantor shall maintain
-7-
the confidentiality of all such materials and information with the same
degree of diligence as they use to protect their own proprietary
information and trade secrets from disclosure to other parties.
(d) Indemnity. ColorTyme and the Guarantor, jointly and
severally, shall indemnify Bank and its officers, directors, employees,
attorneys and agents from, and shall hold each of them harmless
against, any and all losses, liabilities, claims, damages, costs and
expenses (including reasonable attorneys' fees) to which any of them
may become subject which directly or indirectly arise from or relate to
this Agreement or any of the transactions contemplated hereby or the
enforcement by Bank of its rights hereunder or from any investigation,
litigation or other proceeding, including, without limitation, any
threatened investigation, litigation or other proceeding, relating to
any of the foregoing, excluding, however, (i) any losses, liabilities,
claims, damages, costs and expenses which arise exclusively from the
willful misconduct or gross negligence of Bank, and (ii) expenses
incurred by Bank pursuant to Section 4.2. The obligations of ColorTyme
and the Guarantor under this section shall survive the termination of
this Agreement for one (1) year after such termination.
(e) Financial Statements. ColorTyme and the Guarantor shall
provide to Bank copies of their individual and consolidated year-end
financial statements and their Uniform Franchise Offering Circulars no
later than 120 days following the end of each fiscal year during the
term hereof and shall also provide to Bank copies of all their interim
financial statements promptly upon request by Bank.
(f) Further Assurances. ColorTyme and the Guarantor shall,
upon request of Bank, execute and deliver such additional documents and
instruments as may be reasonably required by Bank for carrying out the
purposes of this Agreement.
ARTICLE IV
RECEIVABLE DEFAULTS
4.1 Notice of Default. In the event any payments due under any of the
Receivables are delinquent by more than ninety (90) days or Bank otherwise
declares a default under any of the Receivables, Bank shall give notice thereof
to ColorTyme and the Guarantor.
4.2 Foreclosure. Following notice of a default under a Receivable
pursuant to Section 4.1, Bank shall, at its expense, attempt to collect the
outstanding obligations under the Receivable and, if necessary, commence
appropriate legal actions to recover the collateral securing such Receivable and
to foreclose the interest of the account debtor(s) and other persons, if any, in
such collateral.
-8-
4.3 Assignment. Following the Bank securing possession of the defaulted
Receivable or the entry by a court of competent jurisdiction of an order staying
or barring such actions or adjudicating the rights of Bank with respect to such
collateral, Bank may, at its option, sell its interest in such collateral and
the defaulted Receivable secured thereby to ColorTyme, without recourse or
warranty of any kind whatsoever, and ColorTyme shall within five (5) business
days, proceed to purchase Bank's interest in such collateral and the defaulted
Receivable. Contemporaneously with such assignment, ColorTyme shall pay to Bank
an amount ("Repayment Amount") equal to the outstanding principal balance of
plus accrued, unpaid interest on such Receivable.
ARTICLE V
DEFAULT UNDER THIS AGREEMENT
5.1 Events of Default. An "Event of Default" shall exist if any one or
more of the following events (herein collectively called "Events of Default")
shall occur and be continuing:
(a) ColorTyme or the Guarantor shall fail to pay any amount
due under the terms of this Agreement within ten (10) business days
following demand therefor.
(b) ColorTyme or the Guarantor shall fail to perform, observe
or comply with any of their covenants, agreements or obligations
contained in this Agreement, and such failure shall remain uncured
thirty (30) days following notice thereof.
(c) Any representation or warranty made by ColorTyme or the
Guarantor in this Agreement or any of the documents delivered to Bank
pursuant to this Agreement shall prove to be untrue, misleading or
inaccurate in any material respect.
(d) ColorTyme, the Guarantor or any of their affiliates shall
default in their respective obligations to Bank under any other
agreement to which they, or any of them, are parties.
(e) ColorTyme, the Guarantor or any of their affiliates shall
default in their respective obligations under their agreements with any
of their primary lenders.
(f) ColorTyme, the Guarantor or any of their affiliates shall
(i) apply for or consent to the appointment of a receiver, custodian,
trustee, liquidator, or similar official for themselves or all or a
substantial part of their property, (ii) admit in writing that they are
unable to pay their debts generally as they become due, (iii) make a
general assignment for the benefit of creditors, (iv) file a petition
or answer seeking liquidation, reorganization or an arrangement with
creditors or to take advantage of any bankruptcy, reorganization or
insolvency laws, (v) file an answer admitting the material allegations
of or consent to or default in answering a petition filed against them
in any bankruptcy, reorganization or
-9-
insolvency proceeding, (vi) become the subject of an order for relief
under any bankruptcy, reorganization or insolvency proceeding which
shall continue unstayed and in effect for sixty (60) days, or (vii) an
order, judgment or decree shall be entered by any court of competent
jurisdiction or other competent authority approving a petition
appointing a receiver, custodian, trustee, liquidator or similar
official for them or of all or a substantial part of their property and
such order, judgment or decree shall continue unstayed and in effect
for a period of sixty (60) days.
(g) ColorTyme or the Guarantor shall cease doing business as a
going concern.
(h) This Agreement or any other documents delivered to Bank
pursuant to this Agreement or in connection herewith shall for any
reason cease to be in full force and effect, or shall be declared null
or unenforceable in whole or in material part, or the validity or
enforceability thereof shall be challenged or denied by any party
thereto excluding Bank.
5.2 Remedies Upon Default. If an Event of Default shall occur and be
continuing, Bank at its option may, without notice (i) terminate this Agreement,
(ii) elect to have ColorTyme repurchase all Receivables then held by Bank
(without recourse or warranty by Bank), whereupon ColorTyme shall so repurchase
such Receivables for an amount equal to the outstanding principal balance
thereof plus all accrued and unpaid interest thereon, (iii) reduce any claim to
judgment, (iv) set off and apply against the obligation of ColorTyme, without
notice to ColorTyme or the Guarantor, any and all deposits or other sums at any
time credited or held by Bank or owing from Bank to ColorTyme, the Guarantor or
any of their affiliates, whether or not said obligations are then due, and (v)
without further notice of default or demand, pursue and enforce any of Bank's
rights and remedies under this Agreement and any of the other documents
delivered to Bank pursuant to this Agreement or otherwise provided under or
pursuant to any applicable law or any other agreement.
ARTICLE VI
GUARANTY
6.1 The Guarantor hereby guaranties the full and prompt payment and
performance of all debts, liabilities and obligations of ColorTyme to Bank
arising out of or in any way related to this Agreement (collectively, the
"Obligations").
The Guarantor represents and warrants to Bank that it will receive a
substantial economic benefit from the financing provided by Bank pursuant to
this Agreement. The Guarantor acknowledges that Bank would not provide such
financing if it did not receive this Guaranty.
The Guarantor hereby waives promptness, diligence, notice of acceptance
and any other notice with respect to the Obligations of this Guaranty, and any
requirement that Bank protect,
-10-
secure, perfect or insure any security interest or lien or any property subject
thereto, or exhaust any right or take any action against ColorTyme or any other
person or entity or any Collateral.
The liability of the Guarantor under this Guaranty shall be absolute,
unconditional, irrevocable and continuing, irrespective of any change in the
time, manner or place of payment of, or in any other term of, all or any of the
Obligations, or any other amendment or waiver of or any consent to departure
from the terms of the Obligations. The Guarantor hereby consents to any and all
extensions or other indulgences granted by Bank to any Franchisee or ColorTyme
and consents to the release or substitution of any or all collateral securing
the Obligations.
The Guarantor hereby irrevocably waives any and all rights it may now
or hereafter have under any agreement or at law or in equity (including, without
limitation, any law subrogating them to the rights of Bank) to assert any claim
or seek contribution, indemnification or any other form of reimbursement from
ColorTyme for any payment made by the Guarantor under or in connection with this
Guaranty.
This Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of any of the Obligations is rescinded
or must otherwise be returned by Bank upon the insolvency, bankruptcy or
reorganization of ColorTyme or otherwise, all as though such payment had not
been made.
ARTICLE VII
MISCELLANEOUS
7.1 Expenses. Each party hereto shall pay and be responsible for its
own expenses incurred in connection with this Agreement and the transactions
herein contemplated; provided, however, ColorTyme and the Guarantor shall
reimburse Bank for all of its reasonable out-of-pocket expenses, including the
reasonable fees and expenses of its legal counsel, incurred in connection with
(a) the negotiation and preparation of this Agreement and the transactions
contemplated by this Agreement, (b) the enforcement and collection of
Receivables that default, up to a maximum of One Thousand Dollars ($1,000) for
each such default, and (c) the enforcement or preservation of Bank's rights
under this Agreement following an Event of Default. All such expenses shall be
paid promptly upon request by Bank.
7.2 Relationship of the Parties. The parties are not engaged in a
partnership or joint venture, and nothing herein shall confer on any party
hereto the authority to act for or on behalf of the other party, except as
expressly provided herein. Bank has no fiduciary or other special relationship
with ColorTyme, the Guarantor or any of their affiliates.
7.3 Compliance with Laws. Throughout the term of this Agreement,
ColorTyme, the Guarantor and Bank shall each comply with all laws, regulations,
rules and orders applicable to them.
-11-
7.4 No Waiver; Cumulative Remedies. No failure to exercise, and no
delay in exercising, on the part of Bank, any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies provided for in
this Agreement and the other documents executed in connection herewith are
cumulative and not exclusive of any other rights or remedies provided by law.
7.5 Notice. All notices or other communications hereunder shall be
given in writing by either overnight courier service or pre-paid registered or
certified mail, to the respective addresses of the parties following their names
on the signature page of this Agreement. Such notice or other communication
shall be deemed to have been given upon actual delivery or one (1) business day
after depositing it with an overnight courier service or three (3) business days
after depositing it with the United States Postal Service.
7.6 Severability. If at any time any provision, or the application of
any provision, of this Agreement shall be held by any court of competent
jurisdiction to be illegal, void or unenforceable, such provision, or the
application thereof, shall be of no force or effect, but the illegality or
unenforceability of such provision, or the application thereof, shall have no
effect upon and shall not impair the enforceability of any other provision of
this Agreement.
7.7 Entire Agreement; Amendments. This Agreement embodies the entire
agreement among the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements, conditions and understandings, and may be
amended only by an instrument executed in writing by an authorized officer of
the party against whom such amendment is sought to be enforced.
7.8 Survival. All agreements, representations and warranties contained
herein or made in writing by or on behalf of ColorTyme or the Guarantor in
connection with the transactions contemplated hereby shall survive the execution
and delivery of this Agreement, and any investigation at any time made by Bank,
and the delivery of any documents to Bank pursuant to this Agreement and payment
of the obligations of ColorTyme hereunder and any sale or assignment or other
disposition by Bank of this Agreement, the Receivables or any other documents
delivered to Bank pursuant to this Agreement. All statements contained in any
certificate or other instrument delivered by or on behalf of ColorTyme or the
Guarantor pursuant hereto or in connection with the transactions contemplated
hereby shall be deemed representations and warranties by such parties hereunder.
7.9 Binding Effect. This Agreement shall inure to the benefit of, and
the obligations created hereby shall be binding upon, the parties and their
permitted successors and assigns.
7.10 Assignment. This Agreement may not be assigned by either Bank or
ColorTyme without the consent of the other party; provided, however, Bank may
assign this Agreement to an
-12-
affiliated entity controlled by or under common control with Bank.
Notwithstanding any assignment pursuant to this section, the assignor shall
remain liable for all of its obligations under this Agreement and shall not be
relieved of any such obligations by such assignment.
7.11 Audit. Bank shall have the right to inspect the books and records
of ColorTyme relating to Franchisees who are obligated to Bank under
Receivables, including the obligations of such Franchisees to ColorTyme. Bank
shall, and shall cause its successors and assigns and all persons holding any
participating interests in any Receivables and this Agreement to, keep the
information obtained from such books and records confidential; nothing herein,
however, shall limit Bank's rights to use such information in administering the
Receivables or in enforcing its rights under the Receivables or under this
Agreement.
7.12 Term; Termination. This Agreement shall be effective on and as of
the date of its execution, and shall continue in effect thereafter until
terminated. This Agreement may be terminated by either party hereto by giving
the other party at least one hundred and eighty (180) days prior written notice.
Notwithstanding the termination of this Agreement, all rights of Bank and all
duties and obligations of ColorTyme under this Agreement with respect to
outstanding Receivables shall continue until all such Receivables are fully paid
in accordance with their terms.
7.13 Construction. Each of the parties to this Agreement acknowledges
that they have had the benefit of legal counsel of their own choice and have
been afforded an opportunity to review this Agreement and all the other
documents and instruments executed in connection herewith with their respective
legal counsel and that this Agreement and all other documents and instruments
executed in connection herewith shall be construed as if jointly drafted by all
the parties hereto.
7.14 GOVERNING LAW. THIS AGREEMENT WILL BE ACCEPTED AND MADE IN, AND
WILL BE A CONTRACT UNDER THE LAWS OF, THE STATE OF TEXAS AND SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF TEXAS (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW).
IN WITNESS WHEREOF, the parties have executed this Agreement on this
30th day of April, 2002.
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
-13-
BANK:
Addresses: TEXAS CAPITAL BANK,
0000 XxXxxxxx Xxxxxx, Xxxxx 000 NATIONAL ASSOCIATION
Xxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxx By: /s/ X. Xxxx Xxxxxx
---------------------------------
Name: X. Xxxx Xxxxxx
Title: Executive Vice President
COLORTYME:
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000 XXXXXXXXX, XXX.,
Xxxxx, Xxxxx 00000 a Texas corporation
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and Chief Executive
Officer
GUARANTOR:
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000 RENT-A-CENTER, INC.,
Xxxxx, Xxxxx 00000 a Delaware corporation
By: /s/ Xxxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: President
-14-
ADDENDUM A
For purposes of Paragraph 2.6(a) of the Franchisee Financing Agreement
(the "Agreement"), dated April 30, 2002, by and between Texas Capital Bank,
National Association, ColorTyme, Inc., and Rent-A-Center, Inc., the amount of
the monthly principal installment for a Line of Credit shall be calculated based
upon the multiple of the Franchisee's Average Monthly Revenue to the principal
balance of the Line of Credit and any other indebtedness owed by Franchisee to
Bank as of the end of the prior calendar month and shall be payable as follows:
Total Debt as a Multiple of
Average Monthly Revenue Monthly Principal Payment
----------------------- -------------------------
3.99 x or less 6.0% of principal balance
4.00 x - 4.49 x 6.5% of principal balance
4.50 x - 4.99 x 7.0% of principal balance
5.00 x or more 8.0% of principal balance or such
greater amount as may be determined
by Bank in its reasonable sole discretion
Capitalized terms shall have the meanings set forth in the Agreement.
-15-
