FIRST AMENDMENT TO
FOURTH AMENDED AND RESTATED LOAN AGREEMENT
THIS FIRST AMENDMENT TO FOURTH AMENDED AND RESTATED LOAN AGREEMENT
(this "Amendment") is made and entered into as of the 27th day of June, 2000 by
and among WELLS FARGO BANK TEXAS, NATIONAL ASSOCICATION, a national banking
association formerly known as Wells Fargo Bank (Texas), National Association
(the "Bank"), FOSSIL PARTNERS, L.P. (the "Borrower"), FOSSIL, INC. (the
"Company"), FOSSIL INTERMEDIATE, INC. ("Fossil Intermediate"), FOSSIL TRUST
("Fossil Trust"), FOSSIL STORES I, INC. ("Fossil I") and FOSSIL STORES II, INC.
("Fossil II") (the Company, Fossil Intermediate, Fossil Trust, Fossil I and
Fossil II are sometimes referred to herein individually as a "Guarantor" and
collectively as the "Guarantors").
RECITALS
WHEREAS, the Bank, the Borrower and the Guarantors are parties to that
certain Fourth Amended and Restated Loan Agreement, dated as of June 28, 1999 (
the "Agreement");
WHEREAS, the Bank, the Borrower and the Guarantors desire to amend the
Agreement and the other Loan Documents as herein set forth.
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties, intending to be legally bound, agree as
follows:
ARTICLE I
Definitions
1.01 Capitalized terms used in this Amendment are defined in the
Agreement, as amended hereby, unless otherwise stated.
ARTICLE II
Amendments
2.01 Amendment to Section 1. Effective as of the date hereof, the
second sentence of Section 1 of the Agreement is hereby amended by deleting the
words "Tenth Amended and Restated Master Revolving Credit Note" and substituting
in lieu thereof the words "Eleventh Amended and Restated Master Revolving Credit
Note".
2.02 Amendment to Section 16. Effective as of the date hereof, Section
16 of the Agreement is hereby amended by deleting the notice addresses for the
Bank, the Borrower and the Guarantors in their entirety and substituting the
following in lieu thereof:
"if to the Bank: Wells Fargo Bank Texas,
National Association
4975 Preston Park Boulevard
Suite 280
Plano, Texas 75093
Attention: Juan J. Sanchez
with a copy to: Patton Boggs LLP
2001 Ross Avenue
Suite 3000
Dallas, Texas 75201
Attention: Robert Jeffery Cole
if to the Borrower: Fossil Partners, L.P.
2280 N. Greenville Avenue
Richardson, Texas 75082-4412
Attention: Mike Kovar
if to Guarantors: Fossil, Inc.
2280 N. Greenville Avenue
Richardson, Texas 75082-4412
Attention: Mike Kovar
Fossil Intermediate, Inc.
1105 N. Market Street
Suite 1300
P. O. Box 8985
Wilmington, Delaware 19899
Attention: Corporate Trust
Administration
with a copy to: Fossil Intermediate, Inc.
c/o Fossil, Inc.
2280 N. Greenville Avenue
Richardson, Texas 75082-4412
Attention: Mike Kovar
Fossil Trust
1100 N. Market Street
Rodney Square North
Wilmington, Delaware 19890
Attention: Corporate Trust
Administration
with a copy to: Fossil Trust
c/o Fossil, Inc.
2280 N. Greenville Avenue
Richardson, Texas 75082-4412
Attention: Mike Kovar
Fossil Stores I, Inc.
2280 N. Greenville Avenue
Richardson, Texas 75082-4412
Attention: Mike Kovar
with a copy to: Fossil Stores I, Inc.
c/o Fossil, Inc.
2280 N. Greenville Avenue
Richardson, Texas 75082-4412
Attention: Mike Kovar
Fossil Stores II, Inc.
2280 N. Greenville Avenue
Richardson, Texas 75082-4412
Attention: Mike Kovar
with a copy to: Fossil Stores II, Inc.
c/o Fossil, Inc.
2280 N. Greenville Avenue
Richardson, Texas 75082-4412
Attention: Mike Kovar"
ARTICLE III
Conditions Precedent
3.01 Conditions to Effectiveness. The effectiveness of this Amendment
is subject to the satisfaction of the following conditions precedent, unless
specifically waived in writing by the Bank:
(a) The Bank shall have received the following documents, each in
form and substance satisfactory to the Bank and its counsel:
(i) This Amendment, duly executed by the Borrower and
the Guarantors; and
(ii) An Eleventh Amended and Restated Master Revolving
Credit Note in the form of Exhibit A to this Amendment
(hereinafter, the "Revolving Note"), duly executed by the
Borrower.
(b) There shall have been no material adverse change in the
financial condition of the Borrower or any Guarantor;
(c) There shall be no material adverse litigation, either pending
or threatened, against the Borrower or any Guarantor that could
reasonably be expected to have a material adverse effect on the
Borrower or such Guarantor;
(d) The representations and warranties contained herein and in
the Agreement and the other Loan Documents, as each is amended hereby,
shall be true and correct as of the date hereof, as if made on the
date hereof;
(e) No default or Event of Default shall have occurred and be
continuing, unless such default or Event of Default has been
specifically waived in writing by the Bank;
(f) All corporate proceedings taken in connection with the
transactions contemplated by this Amendment and all documents,
instruments and other legal matters incident thereto shall be
satisfactory to the Bank and its legal counsel; and
(g) The Bank shall have received from the Company or the
Borrower, as appropriate, all fees and expenses (if any) required to
be paid to the Bank pursuant to the Agreement, as amended hereby;
ARTICLE IV
No Waiver
4.01 Nothing contained herein shall be construed as a waiver by the
Bank of any covenant or provision of the Agreement, the other Loan Documents,
this Amendment, or of any other contract or instrument between the Borrower
and/or the Guarantors and the Bank, and the failure of the Bank at any time or
times hereafter to require strict performance by the Borrower and/or any
Guarantor of any provision thereof shall not waive, affect or diminish any right
of the Bank to thereafter demand strict compliance therewith. The Bank hereby
reserves all rights granted under the Agreement, the other Loan Documents, this
Amendment and any other contract or instrument between the Borrower and/or the
Guarantors and the Bank.
ARTICLE V
Ratifications, Representations and Warranties
5.01 General Ratifications. The terms and provisions set forth in this
Amendment shall modify and supersede all inconsistent terms and provisions set
forth in the Agreement and the other Loan Documents, and, except as expressly
modified and superseded by this Amendment, the terms and provisions of the
Agreement and the other Loan Documents are ratified and confirmed and shall
continue in full force and effect. The parties hereto agree that the Agreement
and the other Loan Documents, as amended hereby, shall continue to be legal,
valid, binding and enforceable in accordance with their respective terms.
5.02 Ratification of Guaranties. Each of the Guarantors hereby
acknowledges and consents to all of the terms and conditions of this Amendment
and the Revolving Note and hereby ratifies and confirms the Guaranty Agreement
to which it is a party to or for the benefit of the Bank. Each of the Guarantors
hereby represents and acknowledges that it has no claims, counterclaims,
offsets, credits or defenses to the Loan Documents or the performance of its
obligations thereunder. Furthermore, each Guarantor agrees that nothing
contained in this Amendment or the Revolving Note shall adversely affect any
right or remedy of the Bank under the Guaranty Agreement to which such Guarantor
is a party. Each Guarantor hereby agrees that with respect to the Guaranty
Agreement to which it is a party, all references in such Guaranty Agreement to
the "Guaranteed Obligations" shall include, without limitation, the obligations
of Borrower to Bank under the Amendment, amended hereby, and under the Revolving
Note. Each Guarantor hereby also agrees that with respect to the Guaranty
Agreement to which it is a party, all references in such Guaranty Agreement to
(i) "First Interstate Bank of Texas, N.A." shall be deemed references "Wells
Fargo Bank Texas, National Association" and (ii) the Bank's notice address shall
be amended to read "Wells Fargo Bank Texas, National Association, 4975 Preston
Park Boulevard, Suite 280, Plano, Texas 75093". Finally, each of the Guarantors
hereby represents and acknowledges that the execution and delivery of this
Amendment and the other Loan Documents executed in connection herewith shall in
no way change or modify its obligations as a guarantor, debtor, pledgor,
assignor, obligor and/or grantor under its respective Guaranty Agreement except
as specifically provided in this Section 5.02 and shall not constitute a waiver
by the Bank of any of the Bank's rights against such Guarantor.
5.03 Ratification of Security Interests. The Company hereby agrees that
the Stock Pledge Agreement is hereby expressly amended such that the definition
of "Secured Obligations" contained therein includes, without limitation, all
indebtedness and other obligations of Borrower now or hereafter existing
hereunder the Agreement, as amended hereby, the Revolving Note and the other
Loan Documents, as amended hereby. Furthermore, the Company hereby ratifies and
reaffirms its obligations under the Stock Pledge Agreement, as the same is
amended hereby, and represents and acknowledges that the Stock Pledge Agreement
is not subject to any claims, counterclaims, defenses or offsets. The Company
hereby also agrees that all references in the Stock Pledge Agreement to "First
Interstate Bank of Texas, N.A." shall be deemed references "Wells Fargo Bank
Texas, National Association". Finally, the Company hereby represents and
acknowledges that the execution and delivery of this Amendment and the other
Loan Documents executed in connection herewith shall in no way change or modify
its obligations as a debtor, pledgor, assignor, obligor and/or grantor under the
Stock Pledge Agreement except as specifically provided this Section 5.03 and
shall not constitute a waiver by the Bank of any of the Bank's rights against
the Company.
5.04 Representations and Warranties. The Borrower and each of the
Guarantors hereby jointly and severally represent and warrant to the Bank that
(a) the execution, delivery and performance of this Amendment and any and all
other Loan Documents executed and/or delivered in connection herewith have been
duly authorized by all requisite corporate, partnership or trust proceedings, as
appropriate, and will not contravene, or constitute a default under, any
provision of applicable law or regulation or of the Agreement of Limited
Partnership, Articles of Incorporation, By-Laws or Trust Agreement, as
applicable, of the Borrower or any Guarantor, or of any mortgage, indenture,
contract, agreement or other instrument, or any judgment, order or decree,
binding upon the Borrower or any Guarantor; (b) the representations and
warranties contained in the Agreement, as amended hereby, and the other Loan
Documents are true and correct on and as of the date hereof and on and as of the
date of execution hereof as though made on and as of each such date; (c) no
default or Event of Default under the Agreement, as amended hereby, has occurred
and is continuing, unless such default or Event of Default has been specifically
waived in writing by the Bank; and (d) the Borrower and the Guarantors are in
full compliance with all covenants and agreements contained in the Agreement and
the other Loan Documents, as amended hereby.
ARTICLE VI
Miscellaneous Provisions
6.01 Survival of Representations and Warranties. All representations
and warranties made in the Agreement or any other Loan Documents, including,
without limitation, any document furnished in connection with this Amendment,
shall survive the execution and delivery of this Amendment and the other Loan
Documents, and no investigation by the Bank or any closing shall affect the
representations and warranties or the right of the Bank to rely upon them.
6.02 Reference to Agreement. Each of the Agreement and the other Loan
Documents, and any and all other agreements, documents or instruments now or
hereafter executed and delivered pursuant to the terms hereof or pursuant to the
terms of the Agreement, as amended hereby, are hereby amended so that any
reference in the Agreement and such other Loan Documents to the Agreement shall
mean a reference to the Agreement as amended hereby.
6.03 Expenses of the Bank. As provided in the Agreement, the Borrower
agrees to pay on demand all reasonable costs and expenses incurred by the Bank
in connection with the preparation, negotiation, and execution of this Amendment
and the other Loan Documents executed pursuant hereto and any and all
amendments, modifications, and supplements thereto, including, without
limitation, the costs and fees of the Bank's legal counsel, and all costs and
expenses incurred by the Bank in connection with the enforcement or preservation
of any rights under the Agreement, as amended hereby, or any other Loan
Documents, including, without, limitation, the costs and fees of the Bank's
legal counsel.
6.04 Severability. Any provision of this Amendment held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
6.05 Successors and Assigns. This Amendment is binding upon and shall
inure to the benefit of the Borrower, the Guarantors and the Bank and their
respective successors and assigns.
6.06 Counterparts. This Amendment may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original,
but all of which when taken together shall constitute one and the same
instrument.
6.07 Effect of Waiver. No consent or waiver, express or implied, by the
Bank to or for any breach of or deviation from any covenant or condition by the
Borrower or any Guarantor shall be deemed a consent to or waiver of any other
breach of the same or any other covenant, condition or duty.
6.08 Headings. The headings, captions, and arrangements used in
this Amendment are for convenience -------- only and shall not affect the
interpretation of this Amendment.
6.09 Applicable Law. THIS AMENDMENT AND ALL OTHER AGREEMENTS EXECUTED
PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE PERFORMABLE IN AND
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS.
6.10 Final Agreement. THE AGREEMENT AND THE OTHER LOAN DOCUMENTS, EACH
AS AMENDED HEREBY, REPRESENT THE ENTIRE EXPRESSION OF THE PARTIES WITH RESPECT
TO THE SUBJECT MATTER HEREOF ON THE DATE THIS AMENDMENT IS EXECUTED. THE
AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS AMENDED HEREBY, MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. NO
MODIFICATION, RESCISSION, WAIVER, RELEASE OR AMENDMENT OF ANY PROVISION OF THIS
AMENDMENT SHALL BE MADE, EXCEPT BY A WRITTEN AGREEMENT SIGNED BY THE BORROWER,
THE GUARANTORS AND THE BANK.
6.11 AGREEMENT FOR BINDING ARBITRATION. The parties agree to be bound
by the terms and provisions of the Bank's current Arbitration Program which is
incorporated by reference herein and is acknowledged as received by the parties
pursuant to which any and all disputes shall be resolved by mandatory binding
arbitration upon the request of any party.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, this Amendment has been executed and is effective
as of the date first above-written.
"BANK"
WELLS FARGO BANK TEXAS,
NATIONAL ASSSOCIATION
By: /s/ Juan J. Sanchez
-------------------------------------
Juan J. Sanchez,
Assistant Vice President
"BORROWER"
FOSSIL PARTNERS, L.P.
By: Fossil, Inc., its general partner
By: /s/ Randy S. Kercho
-------------------------------
Randy S. Kercho
Executive Vice President and
Chief Financial Officer
"GUARANTORS"
FOSSIL, INC.
By: /s/ Randy S. Kercho
-------------------------------------
Randy S. Kercho
Executive Vice President and
Chief Financial Officer
FOSSIL INTERMEDIATE, INC.
By: /s/ Randy S. Kercho
----------------------------------
Randy S. Kercho, Treasurer
FOSSIL TRUST
By: /s/ Randy S. Kercho
----------------------------------
Randy S. Kercho, Treasurer
FOSSIL STORES I, INC.
By: /s/ Randy S. Kercho
----------------------------------
Randy S. Kercho, Treasurer
FOSSIL STORES II, INC.
By: /s/ Randy S. Kercho
----------------------------------
Randy S. Kercho, Treasurer
Exhibit:
- -------
A - Revolving Note
Exhibit A
FORM OF REVOLVING NOTE
(See Attached)