EXHIBIT 10.13
AMENDED AND RESTATED
FRANCHISEE FINANCING AGREEMENT
This Amended and Restated Franchisee Financing Agreement ("Agreement")
is made and entered into by and among Textron Financial Corporation, a Delaware
corporation ("TFC"), ColorTyme, Inc., a Texas corporation ("ColorTyme"), and
Rent-A-Center, Inc., a Delaware corporation formerly known as Renters Choice,
Inc. ("RAC").
RECITALS
A. ColorTyme is a franchisor of "rent-to-own" stores (each, a "Store")
operated by franchisees licensed by ColorTyme (each, a "Franchisee"), offering
various home entertainment equipment, household equipment, and consumer products
and parts, accessories, and other goods used in connection therewith
(collectively, "Inventory").
B. TFC, as the assignee of STI Credit Corporation, ColorTyme and RAC
are parties to a Franchisee Financing Agreement dated September 23, 1996, which
was subsequently amended by an Amendment to Franchisee Financing Agreement dated
October, 1997, a Second Amendment to Franchisee Financing Agreement dated June
30, 1998, a Third Amendment to Franchisee Financing Agreement dated January,
1999, a Fourth Amendment to Franchisee Financing Agreement dated September 28,
1999, and a Fifth Amendment to Franchisee Financing Agreement (as previously
amended, the "Original Agreement").
C. TFC, ColorTyme and RAC have entered into this Agreement to amend and
restate the Original Agreement.
AGREEMENT
In consideration of the premises and other valuable consideration, the
receipt and adequacy of which are hereby acknowledged, and intending to be
legally bound hereby, TFC, ColorTyme and RAC agree as follows:
ARTICLE I
CREDIT FACILITY
1.1 Credit Facility. TFC 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, fifty million dollars ($50,000,000.00).
1.2 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 1.6,
ColorTyme shall provide the Franchisee with a credit application and
other credit documentation, to be
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developed by TFC 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 TFC, 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 TFC at its office in Reno,
Nevada.
(c) If, following completion of its review of such credit
application and other credit documents and its credit investigation,
TFC determines that it will provide the financing requested, it shall
so notify the Franchisee and ColorTyme and, upon receipt of such
additional closing documents as TFC reasonably determines to be
necessary for the approval of the credit, TFC shall either (i)
establish a revolving line of credit for the Franchisee in accordance
with the terms of this Agreement (each such line of credit is referred
to herein as a "Line of Credit"), or (ii) provided TFC has previously
or contemporaneously established a Line of Credit for the Franchisee,
make a term loan to the Franchisee in accordance with the terms of this
Agreement (each such term loan is referred to herein as a "Term Loan").
For purposes of this Agreement, the obligations of a Franchisee to TFC
under a Line of Credit and/or a Term Loan are collectively referred to
as a "Receivable."
1.3 Interest Rates. Unless otherwise agreed by TFC 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 Prime plus 3.75%;
(ii) for each Line of Credit with a Credit Limit of more than $1,000,000, the
rate will be Prime 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 section, "Prime" shall mean the "prime
rate" of interest as published in the "Money Rates" section of the Wall Street
Journal, as such rate may change from time to time. The applicable interest rate
will be a floating rate; changes in such interest rate will be established
monthly, effective as of the last business day of the preceding month. Interest
will be calculated on the basis of a 360-day year.
1.4 Credit Limits. When a Line of Credit is established for a
Franchisee pursuant to this Agreement, TFC shall fix a credit limit for the
Franchisee of (i) two hundred fifty thousand dollars ($250,000) if such
Franchisee is not designated by ColorTyme as having prior "rent-to-own"
experience; (ii) three hundred thousand dollars ($300,000) if such Franchisee is
designated by ColorTyme as having prior "rent-to-own" experience; or (iii) such
other amount as may be agreed upon from time to time by TFC and ColorTyme (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 agreement by TFC and ColorTyme. When a Term Loan is made to a
Franchisee pursuant to this Agreement, the principal amount of the Term Loan and
the interest thereon shall not be included in or subject to the Credit Limit.
1.5 Advance Limits. The amount of credit available under each
Receivable (notwithstanding the amount of a Franchisee's Credit Limit, in the
case of a Line of Credit) shall be limited to the product of the Franchisee's
Average Monthly Revenue multiplied by
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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 of the Franchisee
(exclusive of sales tax) from the sale, lease or rental of Inventory and other
customary fees, calculated in accordance with generally accepted accounting
principles applied on a consistent basis, for the three calendar months
preceding the most recent periodic 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 TFC 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.
1.6 Use of Proceeds. TFC will advance funds pursuant to a Franchisee's
Line of Credit or Term Loan only for the following purposes: (i) the
Franchisee's acquisition of Inventory; (ii) the Franchisee's acquisition or
conversion of a Store; and/or (iii) the Franchisee's working capital.
(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.
(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 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 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 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 TFC under a
Receivable.
(c) Working Capital. Advances for working capital will be
limited to the lesser of (i) the amount by which ColorTyme's minimum
working capital requirement exceeds the Franchisee's working capital
available from other sources; (ii) sixty thousand dollars ($60,000.00);
(iii) except in the case of advances pursuant to a Term Loan, the
amount of the Franchisee's Credit Limit; or (iv) the amount of
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the Franchisee's Advance Limit. Financing for working capital will be
made available only to Franchisees designated by ColorTyme as having
prior "rent-to-own" experience and approved by ColorTyme for such
financing, and only in connection with the initial opening of a Store.
For purposes of this section, TFC 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 RAC under this Agreement.
1.7 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 equal to 1/21st of the initial principal amount
of each advance made by TFC under such Line of Credit. Payment of both
interest and principal shall generally be payable on the 26th day of
each month.
(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
amount of the monthly installments calculated by dividing the original
principal amount of the Term Loan by the number of months in the term
thereof. Payment of both interest and principal shall generally be
payable on the 26th day of each month. The term of any Term Loan shall
not exceed sixty (60) months.
1.8 Suspension of Advances. Advances may, at TFC's option, be suspended
or limited under any Line of Credit 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 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 ratio of expenses to
revenue reflected in the proforma cash flow projections for that Store; (iv)
payments (principal and/or interest) under any Receivable of the Franchisee are
more than fifteen (15) days past due; (v) the idle inventory percentage (the
quotient of the idle inventory divided by the total inventory, calculated on a
three (3) month rolling average and based on the idle inventory and total
inventory figures reflected on the Franchisee's monthly royalty reports) exceeds
twenty-five percent (25%); or (vi) in TFC's determination, the Receivable is
otherwise in default.
1.9 Financing Terms and Credit Standards. The specific terms of any
financing provided by TFC to Franchisees under this Agreement shall be
determined from time to time by TFC in accordance with its ordinary and
customary business practices. The credit standards for approval of any financing
provided by TFC to Franchisees under this
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Agreement shall be determined from time to time by TFC and ColorTyme; provided
however, the application of such credit standards to particular transactions
shall be at TFC's sole discretion.
1.10 Credit Approval. Nothing herein shall obligate TFC to accept or
approve any application for financing submitted by or on behalf of any
Franchisee. TFC may, in its discretion, reject or decline any application for
financing submitted by or on behalf of any Franchisee; provided, if TFC rejects
or declines any such application, it shall inform ColorTyme and the Franchisee
of the reasons therefor.
1.11 Leased Stores. In connection with financing for Stores that are
leased by Franchisees, TFC may, at its option, approve any such Franchisee's
application for financing without any requirement that the Franchisee provide
(i) a copy of the ground or building lease; (ii) the landlord's consent to the
collateral assignment of such lease, (iii) a disclaimer of the landlord's
interest in the fixtures, equipment, inventory or other goods in which TFC may
obtain a security interest; or (iv) any other consent, waiver or other matter
related to such lease. Any approval by TFC of a Franchisee's application for
financing that does not require any such items related to the lease shall not in
any way affect the obligations of ColorTyme or RAC under the Agreement.
1.12 Collection Procedures. TFC shall use its ordinary and customary
practices and procedures to collect outstanding Receivables, subject to the
provisions of this Agreement.
1.13 Modification of Receivables. Notwithstanding anything in this
Agreement to the contrary, TFC 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
1.4. TFC may at any time, at its sole 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 RAC under this Agreement.
1.14 Periodic Review of Receivables. TFC may periodically review
Receivable, at such times or intervals and taking into consideration such
matters (including without limitation the Average Monthly Revenue of the
Franchisee named in such Receivable) as may be agreed upon from time to time by
TFC and ColorTyme. TFC shall prepare a written report of each such periodic
review, and promptly provide ColorTyme with a copy of such report.
1.15 Payments to ColorTyme. TFC shall pay to ColorTyme, from the
interest portion of each payment received by TFC on account of each Receivable
(whether a Line of Credit or a Term 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.
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ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
2.1 Representations and Warranties of ColorTyme and RAC. ColorTyme and
RAC, jointly and severally, represent and warrant to TFC 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. 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) RAC. RAC is a corporation duly organized, validly existing
and in good standing under and pursuant to the laws of the State of
Delaware. RAC 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. RAC has all requisite corporate
power and authority to enter into this Agreement and to consummate the
transactions herein contemplated. RAC 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 RAC and is a legal, valid and
binding obligation of ColorTyme and RAC, fully enforceable in
accordance with its terms.
(d) The Receivables. The credit applications and other credit
documents provided to TFC by ColorTyme pursuant to Section 1.2. 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 RAC in connection with such application; to
the best of ColorTyme's and RAC's knowledge, each such document will
have been duly executed by the persons whose signatures purport to
appear thereon; to the best of ColorTyme's and RAC'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 TFC and, if the application for financing is
approved by TFC, at the time the resulting Receivable is funded by TFC,
neither ColorTyme nor RAC will have any knowledge of any fact or
circumstance that would materially adversely affect the enforceability
or collectability of the Receivable or TFC's rights thereunder or in
the collateral securing such Receivable.
(e) Accurate Information. Neither ColorTyme nor RAC has made
any misstatement of material fact to TFC or provided TFC with any false
or misleading information relevant to this Agreement or withheld from
TFC any information known to ColorTyme or RAC which would be material
to TFC's decision to enter into this Agreement.
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2.2 Covenants of ColorTyme and RAC. At all times during which any of
the Receivables are outstanding or during which ColorTyme and/or RAC have any
obligations, including contingent obligations, to TFC under this Agreement,
unless TFC shall otherwise consent in writing:
(a) Consolidated Leverage Ratio. ColorTyme and RAC shall not
permit the Consolidated Leverage Ratio (as that term is defined in
the Amended and Restated Credit Agreement among RAC, as borrower, the
several lenders from time to time parties thereto, Comerica Bank, as
documentation agent, Bank of America, N.A., as syndication agent, and
The Chase Manhattan Bank, as administrative agent, dated as of August
5, 1998, as amended and restated as of June 29, 2000 (as the same has
been or may be amended, restated or modified from time to time, the
"Senior Credit Agreement"), as of the last day of any period of four
(4) consecutive fiscal quarters of RAC ending with any fiscal quarter
during any period set forth below, to exceed the ratio set forth below
opposite such period:
Consolidated
Period Leverage Ratio
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Fiscal year 2002 3.75 to 1.00
Fiscal year 2003 and thereafter 3.00 to 1.00.
(b) Consolidated Fixed Charge Coverage Ratio. ColorTyme and
RAC shall not permit the Consolidated Fixed Charge Coverage Ratio (as
that term is defined in the Senior Credit Agreement), for any period of
four (4) consecutive fiscal quarters of RAC, to be less than the ratio
of 1.30 to 1.00.
(c) Receipt of Funds. If ColorTyme or RAC receive any money or
property as payment on any of the Receivables, they shall receive and
hold such money or property in trust for TFC and immediately deliver
such money or property to TFC with any necessary endorsements.
(d) The Receivables. Neither ColorTyme nor RAC shall take any
action, or fail to take any action, which could adversely affect TFC's
rights with respect to any of the Receivables. Neither ColorTyme nor
RAC will make any misstatement of material fact to TFC or provide TFC
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 TFC with any information
known to ColorTyme or RAC which would be material to TFC's decision
regarding any such credit application or Receivable.
(e) Confidentiality; Proprietary Rights. During the term of
this Agreement, TFC 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 RAC acknowledge and agree that all such information and
materials are proprietary to TFC and constitute private business
information intended for TFC's exclusive benefit. Neither ColorTyme nor
RAC shall use, and shall not permit their employees or agents to use,
any such
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materials or information for any purpose other than as expressly
contemplated by this Agreement. ColorTyme and RAC shall maintain 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.
(f) Indemnity. ColorTyme and RAC, jointly and severally, shall
indemnify TFC and its successors, assigns and participants, and their
respective 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 ( INCLUDING
LOSSES, LIABILITIES, CLAIMS, DAMAGES, COSTS AND EXPENSES WHICH ARISE IN
WHOLE OR IN PART OUT OF THE NEGLIGENCE OF TFC) which directly or
indirectly arise from or relate to (i) this Agreement or any of the
transactions contemplated hereby, (ii) the sale of franchises by
ColorTyme or any dealings between ColorTyme and Franchisees; (iii) the
enforcement by TFC of its rights hereunder, or (iv) any investigation,
litigation or other proceeding, including, without limitation, any
threatened investigation, litigation or other proceeding, relating to
any of the foregoing, excluding, however, (x) any losses, liabilities,
claims, damages, costs and expenses which arise exclusively from the
willful misconduct or gross negligence of TFC, and (y) expenses
incurred by TFC pursuant to section 3.2. The obligations of ColorTyme
and RAC under this section shall survive the termination of this
Agreement.
(g) Financial Statements and Reports. RAC shall provide to TFC
a copy of each Form 10-K, Form 10-Q and Form 8-K filed with the U.S.
Securities and Exchange Commission, within two business (2) days after
the filing thereof. ColorTyme shall provide to TFC (i) a copy of its
audited individual and consolidated year-end financial statements
within ninety (90) days following the end of each fiscal year; (ii) a
copy of its monthly financial statements within thirty (30) days
following the end of each month; (iii) a copy of its Uniform Franchise
Offering Circular and all amendments thereto, within one hundred twenty
(120) days following the end of each fiscal year; (iv) royalty reports
and financial statements for each Franchisee, promptly upon request by
TFC; and (v) a monthly compliance certificate in the form of Exhibit A
attached hereto within fifteen (15) days following the end of each
month.
(h) Further Assurances. ColorTyme and RAC shall, upon request
of TFC, execute and deliver such additional documents and instruments
as may be reasonably required by TFC for carrying out the purposes of
this Agreement.
ARTICLE III
RECEIVABLE DEFAULTS
3.1 Notice of Default. In the event any payments due under any of the
Receivables are delinquent by more than ninety (90) days or TFC otherwise
declares a default under any of the Receivables, TFC shall give notice thereof
to ColorTyme.
3.2 Foreclosure. Following notice of a default under a Receivable
pursuant to section 3.1, in the exercise of its sole and absolute discretion,
TFC shall attempt to collect the
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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. The costs incurred by TFC in connection with such actions shall
be shared by TFC and ColorTyme in accordance with sub-part (z) of section 3.4
and sub-part (a) of section 6.1 (i.e., the first one thousand dollars
($1,000.00) is to be paid by ColorTyme, and all costs in excess of that amount
are to be paid by TFC).
3.3 Letter of Credit. Within five (5) business days following notice of
a default under a Receivable pursuant to section 3.1, RAC shall cause a standby
letter of credit to be issued to TFC in an amount equal to one hundred fifteen
percent (115%) of the outstanding balance of the defaulted Receivable. Such
letter of credit shall secure the obligations of ColorTyme under section 3.4,
and upon payment by ColorTyme of the recourse Amount (as that term is
hereinafter defined), such letter of credit shall be promptly returned to RAC
for cancellation. The letter of credit shall provide for a term of one (1) year;
shall be payable upon presentation to the issuing bank of a certificate of TFC
stating that ColorTyme has failed to pay all amounts due under section 3.1 with
respect to the Receivable for which the letter of credit was issued; shall be
issued by a bank located in the United States that is included in the bank group
of RAC's senior lenders (or such other bank as may be approved by TFC in its
discretion), but excluding any bank that has a participation interest in any of
the Receivables or this Agreement, which bank must have a senior unsecured
issuer rating of Aa or above as determined by Xxxxx'x Investors Service or a
short-term issue credit rating of A1 or above as determined by Standard & Poors;
and shall otherwise be acceptable to TFC in all respects.
3.4 Assignment to ColorTyme. TFC shall assign its interest in the
defaulted Receivable and the collateral securing such defaulted Receivable,
WITHOUT RECOURSE OR WARRANTY OF ANY KIND WHATSOEVER, (a) following repossession
and/or foreclosure of the collateral securing the defaulted Receivable, (b) the
entry by a court of competent jurisdiction of an order staying or barring such
actions or adjudicating the rights of TFC with respect to such collateral, or
(iii) in any event, after eleven (11) months following the issuance of the
letter of credit with respect to the defaulted Receivable pursuant to section
3.3. Contemporaneously with and as a condition precedent to such assignment,
ColorTyme shall pay to TFC an amount (the "Recourse Amount") equal to the sum of
(x) the outstanding principal balance of such Receivable, (y) all accrued and
unpaid interest thereon and (z) all reasonable expenses incurred by TFC,
including the fees and expenses of its legal counsel, in connection with the
enforcement of such Receivable, up to a maximum of one thousand dollars
($1,000.00) per Receivable.
IV. DEFAULT UNDER THIS AGREEMENT
4.1 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 RAC shall fail to pay any amount due under
the terms of this Agreement within ten (10) business days following
demand therefor.
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(b) ColorTyme or RAC 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 RAC in
this Agreement or any of the documents delivered to TFC pursuant to
this Agreement shall prove to be untrue, misleading or inaccurate in
any material respect.
(d) ColorTyme, RAC or any of their affiliates shall default in
their respective obligations to TFC under any other agreement to which
they, or any of them, are parties.
(e) ColorTyme, RAC or any of their affiliates shall default in
their respective obligations under agreements with their primary
lenders or any other agreement involving indebtedness in excess of
fifty thousand dollars ($50,000.00).
(f) ColorTyme, RAC 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 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
thirty (30) 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 thirty (30) days.
(g) ColorTyme or RAC shall cease doing business as a going
concern.
(h) This Agreement or any other documents delivered to TFC
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 TFC.
4.2 Remedies Upon Default. If an Event of Default shall occur and be
continuing, TFC at its option may, without notice (i) terminate this Agreement,
(ii) elect to have ColorTyme repurchase all Receivables then held by TFC
(without recourse or warranty by TFC), 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 RAC, any and all deposits or other sums at any time
credited or held by TFC or owing from TFC to ColorTyme, RAC or any of their
affiliates, whether or
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not said obligations are then due, and (v) without further notice of default or
demand, pursue and enforce any of TFC's rights and remedies under this Agreement
and any of the other documents delivered to TFC pursuant to this Agreement or
otherwise provided under or pursuant to any applicable law or any other
agreement.
V. GUARANTY
5.1 Guaranty. RAC hereby guaranties the full and prompt payment and
performance of all debts, liabilities and obligations of ColorTyme to TFC
arising out of or in any way related to this Agreement (collectively, the
"Obligations"). RAC represents and warrants to TFC that it will receive a
substantial economic benefit from the financing provided by TFC pursuant to this
Agreement, and acknowledges that TFC would not provide such financing if it did
not receive this guaranty. RAC hereby waives promptness, diligence, notice of
acceptance and any other notice with respect to the Obligations or this
guaranty, and any requirement that TFC protect, 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 RAC 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. RAC hereby consents to any and all extensions
or other indulgences granted by TFC to ColorTyme and consents to the release or
substitution of any or all collateral securing the Obligations. RAC 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 it to the rights of TFC) to assert any claim or seek contribution,
indemnification or any other form of reimbursement from ColorTyme for any
payment made by RAC 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 TFC upon the insolvency, bankruptcy or reorganization of ColorTyme
or otherwise, all as though such payment had not been made.
ARTICLE VI
MISCELLANEOUS
6.1 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 RAC shall reimburse TFC
(and any participant in this Agreement or any of the Receivables) 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 enforcement and
collection of Receivables that default, up to a maximum of one thousand dollars
($1,000.00) for each such default; and (b) the enforcement or preservation of
TFC's rights under this Agreement following an Event of Default. All such
expenses shall be paid promptly upon request by TFC.
6.2 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. TFC has no fiduciary or other special relationship
with ColorTyme, the guarantor or any of their affiliates.
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6.3 Compliance with Laws. Throughout the term of this Agreement,
ColorTyme, RAC and TFC shall each comply with all laws, regulations, rules and
orders applicable to them.
6.4 No Waiver; Cumulative Remedies. No failure to exercise, and no
delay in exercising, on the part of TFC, 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.
6.5 Notices. 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.
6.6 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.
6.7 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.
6.8 Survival. All agreements, representations and warranties contained
herein or made in writing by or on behalf of the ColorTyme or RAC in connection
with the transactions contemplated hereby shall survive the execution and
delivery of this Agreement, and any investigation at any time made by TFC, and
the delivery of any documents to TFC pursuant to this Agreement and payment of
the obligations of ColorTyme hereunder and any sale or assignment or other
disposition by TFC of this Agreement, the Receivables or any other documents
delivered to TFC pursuant to this Agreement. All statements contained in any
certificate or other instrument delivered by or on behalf of the ColorTyme or
RAC pursuant hereto or in connection with the transactions contemplated hereby
shall be deemed representations and warranties by such parties hereunder.
6.9 Binding Effect; No Third Party Beneficiaries. 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. This Agreement is
solely for the benefit of the parties hereto (and their successors and permitted
assigns); nothing herein shall be construed to give any other person any right
or claim with respect to this Agreement.
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6.10 Assignment; Participations. Neither ColorTyme nor RAC may assign
any of their rights or obligations under this Agreement without the prior
written consent of TFC. TFC may at any time assign this Agreement, or any rights
hereunder or interest herein, without the consent of ColorTyme or RAC. TFC may
at any time sell to one or more persons participating interests in any
Receivables and this Agreement with the prior consent of ColorTyme.
6.11 Audit. TFC shall have the right to inspect the books and records
of ColorTyme relating to franchisees that are obligated to TFC under
Receivables, including the obligations of such Franchisees to ColorTyme. TFC
shall keep the information obtained from such books and records confidential;
nothing herein, however, shall limit (a) TFC's rights to use such information in
administering the Receivables or in enforcing its rights under the Receivables
or under this Agreement, or (b) TFC's rights to use such information in
connection with any prospective sale or assignment of any or all of the
Receivables or this Agreement, or any interest therein or herein, provided the
prospective purchaser, assignee or participant enters into a written agreement
to maintain the confidentiality of such information.
6.12 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 twenty (120) days prior written notice.
Notwithstanding the termination of this Agreement, all rights of TFC and all
duties and obligations of ColorTyme and RAC under this Agreement with respect to
outstanding Receivables shall continue until all such Receivables are fully paid
in accordance with their terms.
6.13 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.
6.14 Amendment and Restatement. This Agreement amends and restates in
its entirety the Original Agreement. The terms and provisions of the Original
Agreement are hereby superseded by this Agreement. This Agreement is given in
substitution for the Original Agreement. Each reference to the Original
Agreement in any other document, instrument or agreement executed and/or
delivered in connection therewith shall mean and be a reference to this
Agreement. This Agreement amends, restates and supersedes only the Original
Agreement. This Agreement is not a novation. Nothing contained herein, unless
expressly herein to the contrary, is intended to amend, modify or otherwise
affect any other instrument, document or agreement executed and/or delivered in
connection with the Original Agreement. This Agreement shall govern the rights
and obligations of the parties hereto with respect to all existing Receivables
arising out of the Original Agreement, as well as all future Receivables. All
obligations of ColorTyme under the Original Agreement and all obligations of RAC
under the Original Agreement shall hereafter be deemed obligations of such
parties under this Agreement.
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6.15 GOVERNING LAW. THIS AGREEMENT WILL BE ACCEPTED AND MADE IN, AND
WILL BE A CONTRACT UNDER THE LAWS OF, THE STATE OF NEVADA AND SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEVADA (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW).
IN WITNESS WHEREOF, the parties have executed this Agreement on this
27th day of March, 2002.
COLORTYME, INC.
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxx, Xxxxx 00000
By: /s/ XXXXXXXX X. XXXXX
---------------------------------
Title: Vice President
------------------------------
RENT-A-CENTER, INC.
0000 Xxxxxxxx Xxxxxxx, 0xx Xxxxx
Xxxxx, Xxxxx 00000
By: /s/ XXXXXXXX X. XXXXX
---------------------------------
Title: President
------------------------------
TEXTRON FINANCIAL CORPORATION
0000 Xxxxx XxXxxxxx Xxxx., X-00
Xxxx, Xxxxxx 00000
By: /s/ XXXXX XXXXXXXX
---------------------------------
Title: Division President
------------------------------
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EXHIBIT A
COMPLIANCE CERTIFICATE
This Compliance Certificate is executed and delivered to Textron Financial
Corporation ("TFC") by Rent-A-Center, Inc. ("RAC") and ColorTyme, Inc.
("ColorTyme") this ____ day of ____________, 20__, pursuant to section _____ of
that certain Amended and Restated
Franchisee Financing Agreement (the
"
Franchisee Financing Agreement") dated March 27, 2002 among TFC, ColorTyme and
RAC. All capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Franchisee Financing Agreement. The undersigned
hereby certify to TFC as follows:
1. The undersigned are the duly elected, qualified and acting
________________ of ColorTyme and ________________ of RAC, and as such
officers, are authorized to make and deliver this Compliance
Certificate.
2. The undersigned have reviewed the provisions of the Franchisee
Financing Agreement and confirm that, as of the date hereof:
a. The representations and warranties contained in the Franchisee
Financing Agreement are true and correct in all material
respects on and as of the date hereof with the same force and
effect as though made on the date hereof;
b. ColorTyme and RAC have complied with all the terms, covenants
and conditions set forth in the Franchisee Financing
Agreement;
c. No Event of Default, and no event that with notice or the
passage of time or both will constitute an Event of Default,
has occurred and is continuing; and
d. Attached hereto as Schedule A is a report prepared by the
undersigned setting forth information and calculations that
demonstrate compliance (or noncompliance) with each of the
covenants set forth in section 2.2 of the Franchisee Financing
Agreement.
The foregoing certificate is given in our respective capacities as officers of
ColorTyme and RAC, and not in our individual capacities.
COLORTYME, INC. RENT-A-CENTER, INC.
By: By:
---------------------- ----------------------
Name: Name:
--------------------- --------------------
Its: Its:
--------------------- ---------------------
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SCHEDULE A
TO
COMPLIANCE CERTIFICATE
Consolidated Leverage Ratio
ColorTyme and RAC shall not permit the Consolidated Leverage Ratio, as
of the last day of any period of four (4) consecutive fiscal quarters
of RAC ending with any fiscal quarter during any period set forth
below, to exceed the ratio set forth below opposite such period:
Consolidated
Period Leverage Ratio
------ --------------
Fiscal year 2002 3.75 to 1.00
Fiscal year 2003 and thereafter 3.00 to 1.00.
Covenant Satisfied:
------------
Covenant Not Satisfied:
------------
Consolidated Fixed Charge Coverage Ratio
ColorTyme and RAC shall not permit the Consolidated Fixed Charge
Coverage Ratio, for any period of four (4) consecutive fiscal quarters
of RAC, to be less than the ratio of 1.30 to 1.00.
Covenant Satisfied:
------------
Covenant Not Satisfied:
------------
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