1
EXHIBIT 10.21
EXECUTION COPY
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
REVOLVING
CREDIT AGREEMENT
BETWEEN
TANDY BRANDS ACCESSORIES, INC.
as Borrower
AND
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
as Bank
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
2
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINITIONS AND ACCOUNTING TERMS ............................. 1
1.1 Definitions .................................................... 1
1.2 Accounting Terms ............................................... 6
SECTION 2. THE LOANS . .................................................. 6
2.1 Note and Terms of Commitment ................................... 6
2.2 Reduction or Termination of Commitment ......................... 6
2.3 Commitment Fee ................................................. 6
SECTION 3. LETTERS OF CREDIT . .......................................... 6
3.1 Letters of Credit .............................................. 6
3.2 Applications ................................................... 7
3.3 Procedure for Issuing Letters of Credit ........................ 7
3.4 Reimbursement; Payments ........................................ 7
3.5 Letter of Credit Commissions ................................... 7
SECTION 4. TERMS FOR ACCEPTANCES . ...................................... 7
4.1 The Acceptances ................................................ 7
4.2 Creating Acceptances ........................................... 8
4.3 Supply of Drafts ............................................... 8
4.4 Acceptance Commission .......................................... 8
4.5 Discount ....................................................... 8
4.6 Termination of the Acceptance Commitment ....................... 8
4.7 Acceptance Obligation .......................................... 9
4.8 Mandatory Prepayment ........................................... 9
4.9 Interest on Overdue Payments ................................... 9
SECTION 5. CAPITAL ADEQUACY ............................................. 9
SECTION 6. CONDITIONS PRECEDENT ......................................... 10
6.1 All Advances ................................................... 10
6.2 First Loan, Letter of Credit and/or Acceptance ................. 10
SECTION 7. REPRESENTATIONS AND WARRANTIES . ............................. 10
7.1 Existence ..................................................... 10
7.2 Good Standing ................................................. 10
7.3 Power and Authority ........................................... 10
7.4 Loan Documents ................................................ 10
7.5 No Subsidiaries ............................................... 10
7.6 Consents ...................................................... 10
7.7 No Material Litigation ........................................ 10
7.8 No Default .................................................... 11
7.9 Taxes ......................................................... 11
7.10 ERISA ......................................................... 11
7.11 No Change...................................................... 11
7.12 Regulations G, T, U and X ..................................... 11
7.13 Accuracy and Completeness of Information ...................... 11
7.14 Environmental.................................................. 11
-i-
3
TABLE OF CONTENTS (CONTINUED)
Page
----
7.15 Eligible Acceptance ........................................... 11
7.16 Drafts ........................................................ 11
7.17 Existing Indebtedness ......................................... 12
SECTION 8. AFFIRMATIVE COVENANTS ......................................... 12
8.1 Taxes .......................................................... 12
8.2 Licenses, Permits .............................................. 12
8.3 Existence....................................................... 12
8.4 Legal Requirements.............................................. 12
8.5 Property Maintenance............................................ 12
8.6 Insurance....................................................... 12
8.7 Financial Statements............................................ 12
8.8 Access.......................................................... 12
8.9 Notices......................................................... 12
8.10 Change of Name ................................................. 13
8.11 Further Assurances ............................................. 13
SECTION 9. NEGATIVE COVENANTS............................................. 13
9.1 Use of Proceeds.................................................. 13
9.2 Sale of Assets................................................... 13
9.3 Mergers and Consolidation........................................ 13
9.4 Liens ........................................................... 13
9.5 No Inconsistent Actions ......................................... 14
9.6 Transactions with Affiliates..................................... 14
9.7 ERISA ........................................................... 14
9.8 Funded Indebtedness to EBITDA Ratio.............................. 14
9.9 Fixed Charge Ratio............................................... 14
9.10 Inventory Turnover Ratio......................................... 15
SECTION 10. EVENTS OF DEFAULT............................................. 15
10.1 Nonpayment ...................................................... 15
10.2 Misrepresentations .............................................. 15
10.3 Loan Documents .................................................. 15
10.4 Nonperformance .................................................. 15
10.5 Other Indebtedness .............................................. 15
10.6 Change of Control ............................................... 15
10.7 Judgments ....................................................... 15
10.8 Bankruptcy ...................................................... 15
10.9 Reportable Event ................................................ 15
SECTION 11. REMEDIES ..................................................... 16
11.1 Additional Remedies ............................................. 16
11.2 Remedies Cumulative ............................................. 16
-ii-
4
Table of Contents (continued)
Page
----
SECTION 12. MISCELLANEOUS . .............................................. 16
12.1 No Waiver....................................................... 16
12.2 Notices......................................................... 16
12.3 Set-Off......................................................... 16
12.4 Governing and Venue............................................. 16
12.5 Survival of Warranties.......................................... 17
12.6 Usury........................................................... 17
12.7 Expenses........................................................ 17
12.8 Indemnification................................................. 17
12.9 Severability.................................................... 17
12.10 Entire Agreement ............................................... 18
12.11 Loan Sales and Assignments ..................................... 18
12.12 No Assignment .................................................. 18
12.13 Conflict between Loan Documents ................................ 18
EXHIBITS:
EXHIBIT A...(Not attached to Credit Agreement is the Revolving Promissory
Note for Alternate Base Rate, CD Rate, Negotiated Rate or
Eurodollar Loans dated June 30, 1994 in the amount of
$15,000,000.00 executed by Borrower and delivered to Bank)
EXHIBIT B .......................................................... 20
EXHIBIT C .......................................................... 21
EXHIBIT D .......................................................... 22
EXHIBIT E .......................................................... 23
SCHEDULES:
SCHEDULE I ........................................................... 24
SCHEDULE II ....................................................... 26
5
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this "Agreement" as
the same may be amended, supplemented or restated from time to time) is by and
between TANDY BRANDS ACCESSORIES, INC., A Delaware corporation ("Borrower")
whose address for service of process is listed on the signature page hereof and
TEXAS COMMERCE BANK NATIONAL ASSOCIATION, a national banking association ("the
Bank") whose principal banking office is located in Houston, Harris County,
Texas and whose address for notice purposes is listed on the signature page
hereof.
WHEREAS, the Borrower and Texas Commerce Bank - Fort Worth, National
Association ("TCB-Ft. Worth") entered into that certain Revolving Credit
Agreement dated January 2, 1991 which was amended by that certain First
Amendment to Revolving Credit Agreement dated as of April 30, 1992, by that
certain Second Amendment to Revolving Credit Agreement dated as of June 18,
1992, by that certain Third Amendment to Revolving Credit Agreement dated as of
April 30, 1993 and by that certain Fourth Amendment to Revolving Credit
Agreement dated as of April 30, 1994 (the "Credit Agreement"). TCB - Ft. Worth
was merged into Texas Commerce Bank, National Association which was the
predecessor in interest by merger into Texas Commerce Bank National
Association. The Borrower has requested that the Bank amend, restate and
replace the Credit Agreement and the Bank is willing to do so provided that
Borrower execute and deliver this Agreement on the terms and subject to the
conditions stated herein. This Agreement governs an unsecured revolving credit
facility which may be used for issuance of letters of credit and creation of
bankers' acceptances as well as money borrowings for the purpose of financing
and supporting the general corporate purposes, including, without limitation,
the working capital, the letters of credit and bankers' acceptance needs of
Borrower and TB Acquisitions, Inc. and acquisition financing and treasury stock
purchase requirements of the Borrower; and
WHEREAS, the Bank is willing, upon and subject to the terms and conditions
hereof, to make such credit facility available as long as terms and conditions
set forth herein are met;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, the Borrower and the Bank hereby agree as
follows:
SECTION 1. DEFINITIONS AND ACCOUNTING TERMS.
1. 1 Definitions. As used in this Agreement, the capitalized words below
and terms shall have the following respective meaning:
"Acceptance" shall mean any bankers' acceptance drawn by the Borrower on
and created by the Bank pursuant to Section 4 hereof.
"Acceptance Commitment" shall have the meaning specified in Section 4
hereof.
"Acceptance Obligation" has the meaning specified in Section 4 herein.
"Acquisition Capital Expenditures" shall mean, for any period, the
aggregate expenditures, costs, financings (which shall include Capitalized
Lease financings or transactions including such leases), cash expended, stock
transactions or other methods of purchasing a tangible fixed asset or capital
asset, i.e., the total "purchase price" of such acquisition which shall be
supported by appraisals, accounting practices, sales contracts or other
evidence generally utilized in reflecting the purchase price of acquisitions
and which purchase price will be reflected in the Borrower's financial
statements.
"Advances" shall mean collectively, the Loans, Letter of Credits and
Acceptances.
"Affiliate" of any Person shall mean any other Person directly or
indirectly, controlling, controlled by, or under common control with, such
Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlled by" and "under common control
with"), as used with respect to any Person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the
Page 1 of 19 Pages
6
Amended and Restated Revolving Credit Agreement
TANDY BRANDS ACCESSORIES, INC.
June 30, 1994
management and policies of such person, whether through the ownership of
Voting Shares or by contract or otherwise.
"Application" shall mean the standard commercial and/or standby letter of
credit application of the Bank in form and substance satisfactory to the Bank
and its counsel.
"Authorized Person" shall mean the Chief Executive Officer, President, any
Vice President, Chief Financial Officer, Treasurer or Controller of the
Borrower and such other individuals as are authorized in writing to the Bank to
act on behalf of the Borrower, ADG (as defined hereinafter) or TBAC (as defined
hereinafter), as the case may be.
"Board" shall mean the Board of Governors of the Federal Reserve System
of the United States.
"Business Day" means a day when the main office of the Bank is open for
the conduct of commercial lending business.
"Capital Expenditures" shall mean, for any period, the aggregate of all
expenditures and costs of the Borrower (whether paid in cash or accrued as
liabilities during that period and including that portion of Capitalized Leases
of the Borrower) during such period that, in conformity with GAAP, are required
to be included in or classified as property, plant or equipment or another
similar fixed asset account reflected on the balance sheet of the Borrower.
"Capitalized Lease' shall mean any lease which, in accordance with GAAP,
would be treated as a capital item in the financial statements of Borrower.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Commitment" shall mean $15,000,000.00.
"Change in Control" shall mean that an event has occurred which requires a
Person, who reports beneficial ownership of more than 25 % of the then
outstanding Voting Stock of the Borrower, to file a Schedule 13D with the SEC
according to the Securities Act except for Tandy Brands Accessories, Inc.
Employees Investment Plan.
"Consolidated Inventory" shall mean (without duplication), as of any date,
(i) the inventory which would be reflected on a consolidated balance sheet of
Borrower prepared as of such date in accordance with GAAP, and (ii) the assets
of Borrower held for sale or lease or furnished or to be furnished under
contracts of service, raw materials, work-in-progress and materials used or
consumed by Borrower.
"Controlled Group" shall mean all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower, are treated as a single
employer under Section 414(b) or 414(c) of the Code.
"Cost of Goods Sold" shall mean the amount of cost of goods sold from the
consolidated financial statements of Borrower determined cumulatively for the
immediately, preceding four (4) fiscal quarters prepared as of such date in
accordance with GAAP,
"Current Liabilities" shall mean, as of any date, the current liabilities
which would be reflected on a consolidated balance sheet of Borrower prepared
as of such date in accordance with GAAP.
"Debtor Laws" shall mean all applicable liquidation, conservatorship,
bankruptcy, moratorium, arrangement, receivership, insolvency, reorganization
or similar laws from time to time in effect affecting the rights of creditors
generally.
Page 2 of 19 Pages
7
Amended and Restated Revolving Credit Agreement
TANDY BRANDS ACCESSORIES, INC.
June 30, 1994
"Default" shall mean any of the events specified in Section 10, or under
the Loan Documents, provided that there shall have been satisfied any
requirement in connection with such event for the giving of notice or lapse of
time or both, or the happening of any further condition, event or act.
"Discount Rate" means, with respect to any Acceptance at any time, the bid
rate in effect at such time for discount by the Bank of commercial drafts or
bills eligible for discount by the Federal Reserve Banks in the same face
amount, with the same maturity, and of the same type, as such Acceptance.
"Dollars" and "$" shall mean lawful currency of the United States of
America.
"Draft" shall mean the document as specified in Section 4 and in the form
of Exhibit D hereto.
"EBITDA" shall mean pretax income plus Interest Expense plus amortization
and depreciation.
"Effective Date" with respect of this Agreement, shall mean, June 30,
1994.
"Eligible Acceptance" shall mean an Acceptance (a) which complies with the
requirements for eligibility set forth in Section 13 of the Federal Reserve Act
and with applicable regulations of the Board governing bankers' acceptances,
(b) against the liability for which a bank is not required to maintain reserves
under Regulation D of the Board in effect from time to time, or under any law
or regulation, and (c) which is eligible for discount by Federal Reserve Banks.
"Eligibility Certificate" shall mean the document described in Section 4
hereof and shall be in the form of Exhibit C.
"ERISA" shall mean the Employment Retirement Income Security Act of 1974,
as amended.
"FDIC" shall mean the Federal Deposit Insurance Corporation or any
successor thereto.
"Fixed Charges" shall mean, as of any date, on a consolidated basis, the
sum of Borrower's (i) cash Interest Expense, (ii) scheduled principal payments,
(iii) Capital Expenditures excluding Acquisition Capital Expenditures, (iv)
cash dividends, (v) treasury stock repurchased and (vi) cash tax expenses.
"Funded Indebtedness" shall mean, as of any date, the sum of the following
(without duplication): (i) all Indebtedness of Borrower as of such date, other
than consolidated Current Liabilities, (ii) all Indebtedness which would be
classified as "funded indebtedness' or "long-term indebtedness" on a
consolidated balance sheet of Borrower prepared as of such date in accordance
with GAAP, (iii) all Indebtedness, whether secured or unsecured, of Borrower
having a final maturity (or which is renewable or extendable at the option of
the obligor for a period ending more than one year after the date of creation
thereof), notwithstanding the fact that payments in respect thereof (whether
installment, serial maturity or sinking fund payments, or otherwise) are
required to be made by the obligor less than one year after the date of the
creation thereof and notwithstanding the fact that any amount thereof is at the
time included also in consolidated Current Liabilities of such obligor, (iv)
all Indebtedness of Borrower outstanding under a revolving credit or similar
agreement providing for borrowings (and renewals and extensions thereof) over a
period of more than one year, notwithstanding the fact that any such
Indebtedness is created within one year of the expiration of such agreement,
and (v) all obligations under guaranties of Borrower maturing more than one
year from the date of calculation of the covenants in Section 9 hereof.
"GAAP" shall mean generally accepted accounting principles in the United
States of America, applied on a basis consistent with those used in the
preparation of the financial statements required in Section 9.
"Governmental Authority" shall mean any Federal, state, municipal or other
governmental department, commission, board, bureau, agency, court or
instrumentality, domestic or foreign.
"Highest Lawful Rate" shall have the meaning ascribed thereto in the Note.
Page 3 of 19 Pages
8
Amended And Restated Revolving Credit Agreement
TANDY BRANDS ACCESSORIES, INC.
June 30, 1994
"Indebtedness" shall mean, with respect to the Borrower, all indebtedness,
obligations and liabilities of such Borrower, including without limitation: (i)
all liabilities which would be reflected on a balance sheet of Borrower,
prepared in accordance with GAAP, (ii) all obligations of Borrower in respect
of any guaranty, (iii) all obligations of Borrower in respect of any
Capitalized Lease, and (iv) all obligations, indebtedness and liabilities
secured by any Encumbrance on any property or assets of Borrower.
"Interest Expense" shall mean for any period, the interest charges paid or
accrued during such period (including imputed interest on Capitalized Lease
obligations, but excluding amortization of debt discount and expense) on the
Indebtedness of Borrower.
"Legal Requirement" shall mean any law, statute, ordinance, decree,
requirement, order, judgment, rule, regulation (or interpretation of any of the
foregoing) of, and the terms of any license or permit issued by, any
Governmental Authority.
"Letters of Credit" shall have the meaning specified in Section 3.1
hereof.
"Lien" shall mean any claim, encumbrance, mortgage, lien, charge, pledge,
security interest, priority payment, conditional sales agreement, right, or
other title retention agreement right of any kind whatsoever, including but not
limited to, any right under a Capitalized Lease of the type listed in Section
1. 1 hereof, in, upon or against any asset of the Borrower.
"Loan" or "Loans" shall mean any loan by the Bank made to the Borrower
pursuant to Section 2 hereof and includes an Alternate Base Loan, a CD Rate
Loan and a Eurodollar Loan (each of which shall be a "type" of Loan as further
described in the Note).
"Note" shall mean the Revolving Promissory Note defined in Section 2
hereof and include any renewal, extension, modification, rearrangement,
supplement, increase or replacement thereof.
"Notice of Acceptance" shall mean the document specified in Section 4 and
Exhibit D attached hereto.
"Notice of Borrowing" shall mean the document specified in Exhibit B or
any other such document mutually agreed upon by Borrower and Bank.
"Loan Documents" shall mean (a) this Agreement and its Exhibits and
Schedules, (b) the Note, (c) Applications, (d) Letters of Credit, (e)
Acceptances, (f) Drafts and (g) any and all other agreements, documents or
instruments now or hereafter executed in connection with any of the foregoing
or the transactions evidenced thereby; as the same may be modified, amended,
restated, supplemented, renewed, extended or replaced from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" shall mean, an individual, partnership, joint venture, group,
corporation, bank, trust, unincorporated organization and/or a government or
any department or agency thereof.
"Plan" shall mean an employee pension benefit plan which is covered by
Title IV of ERISA or subject to the minimum funding standards under Section 412
of the Code and is either (a) maintained by the Borrower or any member of the
Controlled Group for employees of the Borrower or any member of the Controlled
Group or (b) maintained pursuant to a collective bargaining agreement or any
other arrangement under which more than one employer makes contributions and to
which the Borrower or any member of the Controlled Group is then making or
accruing an obligation to make contributions or has within the preceding five
Plan years made contributions.
Page 4 of 19 Pages
9
Amended and Restated Revolving Credit Agreement
TANDY BRANDS ACCESSORIES, INC.
June 30, 1994
"Proper Form" shall mean in form and substance satisfactory to the Bank.
"Regulation D" shall mean Regulation D of the Board, as the same is from
time to time in effect, and all official rulings and interpretations thereunder
or thereof
"Regulation G" shall mean Regulation G of the Board, as the same is from
time to time in effect, and all official rulings and interpretations thereunder
or thereof
"Regulation T" shall mean Regulation T of the Board, as the same is from
time to time in effect, and all official rulings and interpretations thereunder
or thereof.
"Regulation U" shall mean Regulation U of the Board, as the same is from
time to time in effect, and all official rulings and interpretations thereunder
or thereof.
"Regulation X" shall mean Regulation X of the Board, as the same is from
time to time in effect, and all official rulings and interpretations thereunder
or thereof
"Regulatory Change" shall mean any change on or after the date of this
Agreement in United States Federal, state or foreign laws or regulations
(including Regulation D) or the adoption or making on or after such date of any
interpretations, directives or requests applying to a class of banks including
the banks of or under any United States federal or state, or any foreign laws
or regulations (whether or not having the force of law) by any court or
governmental or monetary authority charged with the interpretation or
administration thereof.
"Reportable Event" shall mean that event as defined in Section 7.1 hereof.
"Schedules I and II" shall mean those schedules attached hereto listing
Borrower's Subsidiaries and existing Indebtedness.
"SEC" shall mean the Securities Exchange Commission and any successor
commission.
"Securities Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Subsidiary" shall mean any corporation of which fifty percent (50 %) or
more of the Voting Shares is owned, directly or indirectly, by Borrower.
"Termination Date" shall mean the earlier to occur of: (i) April 30, 1996
or (ii) that date as specified by the Bank pursuant to Section 10 hereof or
(iii) April 30, 1997 if such date is requested by Borrower in writing prior to
April 30, 1995 and if such date is approved by Bank in its sole discretion.
"Trust Company" shall mean Texas Commerce Trust Company, located at 80
Broad Street, New York, New York 10004.
"Unfunded Vested Liabilities" shall mean, with respect to any Plan at any
time, the amount (if any) by which (a) the present value of all vested
nonforfeitable benefits under such Plan exceeds (b) the fair market value of
all Plan assets allocable to such benefits, all determined as of the then most
recent valuation date for such Plan using the interest rates and other factors
for Plan termination as announced by the PBGC and in effect at such time, but
only to the extent that such excess represents a potential liability to
Borrower or any member of the Controlled Group to the PBGC under Title IV of
ERISA.
"Voting Shares" of Borrower shall mean shares of any class or classes
(however designated) having ordinary voting power for the election of at least
a majority of the members of the board of directors (or other governing bodies)
of Borrower, other than shares having such power only by reason of the
happening of a contingency.
Page 5 of 19 Pages
10
Amended and Restated Revolving Credit Agreement
TANDY BRANDS ACCESSORIES, INC.
June 30, 1994
1.2 Accounting Terms. Unless otherwise specified herein, all accounting
terms used herein shall be interpreted, all accounting determinations hereunder
shall be made and all financial statements required to be delivered hereunder
shall be prepared in accordance with GAAP as in effect from time to time,
applied on a basis consistent with those followed in the preparation of the
most recent financial statements delivered pursuant to Section 8.7 hereof.
SECTION 2. THE LOANS.
2.1 Note and Terms of Commitment. Subject to the terms and conditions
hereof, the Bank agrees to make advances or loans to Borrower from time to time
before the Termination Date, not to exceed at any one time outstanding the
amount of the Commitment. Advances shall take the form of Loans under the Note,
issuances of Letters of Credit by Bank or Acceptances. The Loans shall be
evidenced by, and shall bear interest and be payable as provided in the Note
executed by Borrower dated as of the Effective Date and delivered to Bank which
is given in renewal, extension, modification of and increase in the amount of
that certain promissory note dated April 30, 1994 in the principal amount of
$5,000,000.00 (including all prior notes of which said note represents a
renewal, extension, modification, increase, substitution, rearrangement or
replacement thereof, the "Renewed Note"). Each Loan shall be in an amount not
less than that amount provided for in the Note. Borrower shall have the right
to borrow, repay and reborrow under the Note provided that at no time shall the
sum of the aggregate amount outstanding of: (i) Loans, (ii) L/C Obligations (as
defined in Section 3) and (iii) Acceptances exceed the amount of the
Commitment.
2.2 Reduction or Termination of Commitment. The Borrower may at any time
or from time to time irrevocably reduce the amount of the Commitment or
irrevocably terminate in whole the Commitment by giving not less than two full
Business Days' prior written notice to such effect to the Bank, provided that
(a) any partial reduction of the Commitment shall be in an aggregate amount of
not less than $250,000.00 or whole number multiples thereof and (b) in no event
shall the Borrower be entitled to terminate or reduce the Commitment if, after
giving effect thereto and to any concurrent prepayments made hereunder, the
Commitment shall be less than the sum of the aggregate amount of all
outstanding Advances. After each such reduction, the commitment fee owing
pursuant to Section 2.3 hereof shall be calculated upon the amount of
Commitment as so reduced. Upon any termination or reduction pursuant to this
Section 2.2, the Borrower shall pay to the Bank the commitment fee on the
amount of the Commitment so terminated or reduced accrued through the date of
such termination or reduction.
2.3 Commitment Fee. The Borrower agrees to pay to the Bank a commitment
fee at the rate of 1/4 of 1% per annum on the average daily unused portion of
the Commitment computed on the basis of a 365/366 day year consisting of twelve
months having the respective number of days actually contained in each calendar
month. Such commitment fee shall be payable on each June 30, September 30,
December 31 and March 31 during the term of this Agreement, commencing
September 30, 1994.
SECTION 3. LETTERS OF CREDIT.
3.1 Letters of Credit. Subject to this Agreement, the Letters of Credit may
be issued from time to time on and after the Effective Date, but, not
including, the Termination Date for the account of the Borrower or for the
account of TBA Acquisition, Inc. dba Accessories Design Group, Inc., a Delaware
corporation ("ADG") or TBAC - Prince Gardner, Inc., a wholly-owned Subsidiary of
Borrower ("TBAC") and in favor of such Person or Persons as may be designated
by Borrower, ADG or TBAC. Each Letter of Credit shall expire on a date not
later than 365 days from the date of issuance thereof for commercial letters of
credit ("Commercial L/Cs") and expire not later than 12 months from date of
issuance thereof for standby letters of credit ("Standby L/Cs") (except for
letters of credit containing evergreen clauses) and, in any event, no later
than the Termination Date and (d) be denominated in Dollars (or other
currencies that are acceptable to the Bank). The Commitment shall be reduced by
an amount equal to the sum of: (a) the face amount of all outstanding Letters
of Credit; and (b) the amount of any unreimbursed drawings or other amounts
owing to the Bank under or in respect of any Letter of Credit or Application
(items (a) and (b) are hereinafter collectively referred to as the "L/C
Obligations") such that, on any
Page 6 of 19 Pages
11
Amended and Restated Revolving Credit Agreement
TANDY BRANDS ACCESSORIES, INC.
June 30, 1994
date, the sum of (x) all Loans outstanding on such date and (y) all L/C
Obligations on such date does not exceed the Commitment. The total aggregate
amount of L/C Obligations shall never exceed $10,000,000.00.
3.2 Applications. As a condition precedent to the
issuance of any Letter of Credit for the account of Borrower and/or ADG, the
Bank shall have received an Application, duly completed and executed by ADG and
by the Borrower in Proper Form, not less than three (3) Business Days prior to
the date on which the Letter of Credit is to be issued and in the event that
any Application is delivered to Bank for the account of ADG without the
signature of Borrower, the Borrower agrees that for all purposes that any
Application executed by ADG and delivered to Bank without Borrower's signature
shall be as if the Borrower's signature did actually appear thereon and
Borrower shall be deemed to be liable in the same capacity as ADG as a
"co-applicant" thereon. In the event that any provision of a Letter of Credit
Application shall be inconsistent with any provision of this Agreement, the
provisions of this Agreement shall govern.
3.3 Procedure for Issuing Letters of Credit. The
issuance of each Letter of Credit shall be subject to the following conditions
precedent: (a) no Default shall have occurred and be continuing; (b) each
request by Borrower for the issuance of a Letter of Credit shall be deemed to
be a representation to that effect and to the further effect that the
representations and warranties contained in Section 6 of the Agreement are true
and correct as of the date of such request as if made on and as of such date;
and (c) Bank receives an Application in Proper Form and any and all other such
agreements and documents reasonably required by the Bank in connection with
such Letter of Credit.
3.4 Reimbursement; Payments. In the event the Bank makes
any payment under a Standby L/C, such action shall be deemed for all purposes
of this Agreement and the other Loan Documents to constitute the making of Loan
to the Borrower and, in connection therewith, the Borrower hereby
unconditionally and irrevocably authorizes, empowers and directs the Bank to
record and otherwise treat payments under such Standby L/C as Loans made to the
Borrower hereunder. Any determination by the Bank of the outstanding amount of
Loans made under this Section 3.4 shall be conclusive in the absence of
manifest error.
3.5 Letter of Credit Commissions. In consideration for
the issuance of each Letter of Credit, the Borrower agrees to pay to the Bank a
letter of credit issuance fee ("Fee") in respect of such Letter of Credit in an
amount equal to: (1) in the case of Commercial L/C's, one eighth of one percent
(1/8%) per annum per quarter or fraction thereof on the face amount of such
Letter of Credit; and (2) in the case of Standby L/C's, three-quarters of one
percent (3/4%) per annum on the face amount of such Letter of Credit. The Fee
shall be paid to the Bank at its main offices to the attention of the Manager,
Documentary Services Division in advance of issuance of the Letter of Credit.
SECTION 4. TERMS FOR ACCEPTANCES.
4.1 The Acceptances. Subject to the terms and conditions
of this Agreement, the Bank agrees to create Acceptances by accepting a Draft,
in Proper Form, as long as such Draft shall: (a) be drawn by the Borrower on
the Bank in accordance with the terms hereof; (b) be dated the date of
acceptance of such Draft by the Bank; (c) mature on a Business Day not less
than thirty (30) days nor more than one hundred eighty (180) days after the
date of such Draft, and in no event mature (i) earlier than 30 days or (ii)
later than the Termination Date; (d) have a face amount of not less than
$200,000.00 payable in Dollars; (e) be accompanied by an executed Eligibility
Certificate and (f) be an Eligible Acceptance.
Page 7 of 19 Pages
12
Amended and Restated Revolving Credit Agreement
TANDY BRANDS ACCESSORIES, INC.
June 30, 1994
4.2 Creating Acceptances.
(a) The creation of each Acceptance hereunder after
notice given not later than 10:00 a.m. (Houston time) on the Business
Day on which such Acceptance is requested by the Borrower from the
Bank shall occur after all requirements in Section 4.1 and Section 6
are met by Borrower. Each such notice shall be by telephone, telecopy,
telex or cable in substantially the form of Exhibit D (the "Notice of
Acceptance"), from the Borrower to the Bank, specifying the
information necessary to complete each such Notice of Acceptance.
(b) Not later than 11:00 a.m. (Houston time) on the date
of any such request for the creation on Acceptance by Borrower and
upon fulfillment of the applicable conditions set forth in Section 6,
the Bank or the Trust Company creating the Acceptance will, in
accordance with such Notice of Acceptance, (i) fill in the date,
amount and maturity of a Draft, (ii) stamp and complete the
Eligibility Certificate on such Draft, and (iii) accept such Draft
upon satisfactory determination of the applicable conditions
precedent.
4.3 Supply of Drafts. To enable the Banks to create
Acceptances in the manner specified in Section 4.2, the Borrower shall supply
the Bank, upon the Borrower's execution of this Agreement and thereafter
forthwith upon request by the Bank, with a sufficient number of blank Drafts as
the Bank may reasonably request, duly executed by the Borrower. The Trust
Company shall hold such Drafts in safekeeping to be filled in and completed as
Acceptances in accordance with Section 4.2(b). In case any authorized signatory
of the Borrower whose signature shall appear on any Draft shall cease to have
such authority before the creation of an Acceptance with respect to such Draft,
such signature shall nevertheless be valid and sufficient for all purposes as
if such authority had remained in force at the time of such creation.
4.4 Acceptance Commission. The Borrower agrees to pay to
the Bank an acceptance commission, with respect to each Acceptance created by
such Bank hereunder, on the face amount of such Acceptance, for the period from
the date of such Acceptance to the date of its maturity, of 3/4 of 1%, as a
percentage per annum, payable in full on the date such Acceptance is created.
Payment of such acceptance commission with respect to each Acceptance shall be
made for account of the Borrower by the Bank deducting the amount of such
acceptance commission from the proceeds of the discount of such Acceptance
pursuant to Section 4.5.
4.5 Discount. The Bank agrees, subject to the terms and
conditions of this Agreement, that on the date of the creation by Bank of each
Acceptance hereunder, the Bank will (a) discount such Acceptance at the
Discount Rate for such Acceptance in effect at the time of creation of such
Acceptance and (b) make available to the Borrower in same day funds at the
address referred to on the signature page hereof for Bank, an amount equal to
the proceeds of such discount less the acceptance commission payable to the
Bank with respect to such Acceptance under Section 4.4. The Bank may at any
time or from time to time, sell, rediscount or otherwise dispose of such
Acceptance.
4.6 Termination of the Acceptance Commitment.
Notwithstanding anything to the contrary herein, if any of the following events
shall occur:
(a) There is a reasonable determination made in good
faith by Bank or by any regulatory body (including, without
limitation, the staff of any Federal Reserve Bank or the officers of
the Office of the Comptroller of the Currency), or there is a change
in, or change in interpretation of, any applicable rule or regulation,
to the effect that any Acceptance created hereunder is not, or would
not be, an Eligible Acceptance; or
(b) Any restriction is imposed on the Bank by any
regulatory body (including, without limitation, any change in
acceptance limits imposed on the Bank) which would prevent the Bank
from creating Acceptances or performing Bank commitment with respect
of creation of Acceptances for Borrower; or
Page 8 of 19 Pages
13
Amended and Restated Revolving Credit Agreement
TANDY BRANDS ACCESSORIES, INC.
June 30, 1994
(c) Any Default as defined in Section 10 hereof shall occur
and remain uncured;
then the Bank may, by notice to the Borrower in writing or by telephone
(confirmed in writing), terminate the Bank's obligation to create Acceptances
for Borrower under the Commitment, effective on the date on which such Bank
gives such notice; provided that, in the case of the occurrence of any event
described in this Section 4.6(a) and (b), such notice shall describe in
reasonable detail the nature of such event. Upon such termination of the
Revolving Credit Commitment or any obligation with respect of creation of
Acceptances hereunder, as the case may be, the Bank shall have no further
obligation to the Borrower to create Acceptances or otherwise perform under
this Section 4.
4.7 Acceptance Obligation. The Borrower is obligated, and
hereby unconditionally agrees, to pay in immediately available funds, to the
Bank, the face amount of each Acceptance created by the Bank hereunder not
later than 3:00 p.m. (Houston time) on the maturity date of such Acceptance
(the obligation of tile Borrower under this Section 4.7 with respect to any
Acceptance being the 'Acceptance Obligation' with respect to such Acceptance).
4.8 Mandatory Prepayment. The Borrower shall, at any time
after a Default has occurred and is continuing as defined in Section 10 hereof,
or on the Termination Date with respect to Acceptances then outstanding, or
upon receipt of a termination notice as contemplated by Section 4.6, prepay the
Acceptance Obligation with respect to each such Acceptance then outstanding, by
paying to the Bank, promptly after the demand for payment by Bank, the face
amount of such Acceptance less (except as otherwise provided below) the
Prepayment Discount for such Acceptance in effect for such prepayment.
"Prepayment Discount" means, for any prepayment on any date of the Acceptance
Obligation with respect to any Acceptance, an amount equal to (i) the product
of the sum of (A) the face amount of such Acceptance and (B) the Discount Rate
with respect to such Acceptance in effect at the time of such prepayment minus
one-eighth of one percent (0.125%) per annum, multiplied by (ii) a fraction,
the numerator of which is the number of days from such date to the maturity
date of such Acceptance and the denominator of which is 360. In the event of a
prepayment of an Acceptance as a result of a demand pursuant to Sections 4.6,
the Borrower shall be required to prepay such Acceptance by paying the Banks
the face amount of such Acceptance, without deducting any Prepayment Discount.
4.9 Interest on Overdue Payments. The Borrower agrees to
pay interest on any amount of an Acceptance Obligation not paid when due
(whether by scheduled maturity, mandatory prepayment, acceleration or
otherwise), on demand, from the date such amount becomes due until such amount
is paid in full, at the Default Rate (as defined in the Note).
SECTION 5. CAPITAL ADEQUACY
If Bank determines after the date of this Agreement that any
change in applicable laws, rules or regulations regarding capital adequacy, or
any change in the interpretation or administration thereof by any appropriate
governmental agency, or compliance with any request or directive to Bank
regarding capital adequacy (whether or not having the force of law) of any such
agency, increases the capital required to be maintained with respect to the
Loans, Letters of Credit or Note and therefor reduces the rate of return on
Bank's capital below the level Bank could have achieved but for such change or
compliance (taking into consideration Bank's policies with respect to capital
adequacy), then Borrower will pay to Bank from time to time, within 15 days of
Bank's request, any additional amount required to compensate Bank for such
reduction. Bank will request any additional amount by delivering to Borrower a
certificate of Bank setting forth the amount necessary to compensate Bank. The
certificate will be conclusive and binding, absent manifest error. Bank may
make any assumptions, and may use any allocations of costs and expenses and any
averaging and attribution methods, which Bank in good faith finds reasonable.
Page 9 of 19 Pages
14
Amended and Restated Revolving Credit Agreement
TANDY BRANDS ACCESSORIES, INC.
June 30, 1994
SECTION 6. CONDITIONS PRECEDENT.
6.1 All Advances. The obligation of the Bank to make any
Loan, issue any Letter of Credit, create any Acceptance or renew the Renewed
Note is subject to satisfaction of the following conditions precedent: (a) the
Bank shall have received the following, all of which shall be duly executed and
in Proper Form: (1) for any Loan, a Notice of Borrowing, substantially in the
form of Exhibit B, as provided for in the Note; (2) for the issuance of any
Letter of Credit, a duly executed Application in Proper Form by Borrower or ADG
within the time set forth in Section 3.2; (3) in the case of an Acceptance, the
receipt of notice and Drafts by the Bank as required in Section 4.2 in Proper
Form and the receipt by the Bank of all Acceptance fees and commissions due the
Bank; and (b) no Default shall have occurred and be continuing; and (c) the
making of or issuance of any Advance shall not be prohibited by, or subject the
Bank to any penalty or onerous condition under, any Legal Requirement.
6.2 First Loan, Letter of Credit and/or Acceptance. In
addition to the matters described in the preceding section, the obligation, if
any, of the Bank to renew the Renewed Note, to make the first Loan, issue the
first Letter of Credit or create the first Acceptance or to renew and extend
any of the Letters of Credit or Acceptance is subject to the receipt by the
Bank of all of the Loan Documents, all of which shall be in Proper Form.
SECTION 7. REPRESENTATIONS AND WARRANTIES.
In order to induce the Bank to enter into this Agreement and
to make the Advances, the Borrower represents and warrants to the Bank that:
7.1 Existence. Borrower is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or formation.
7.2 Good Standing. To the best of Borrower's knowledge,
Borrower is duly qualified and in good standing in every jurisdiction in which
it presently engages in business and in which such qualification is required.
7.3 Power and Authority. Borrower has the power,
authority and legal right to own or lease and enjoy undisturbed, the assets of
its business and engage in business as now conducted.
7.4 Loan Documents. Borrower has the power, authority and
legal right to execute, deliver and perform under this Agreement, the Note, and
the other Loan Documents and when executed and delivered, the Loan Documents
will constitute a legal, valid and binding obligation enforceable in accordance
with their terms, except as may be limited by bankruptcy, insolvency and other
similar laws affecting creditors' rights generally and by general equitable
principles.
7.5 No Subsidiaries. Borrower has no subsidiaries except
those listed on Schedule I attached hereto.
7.6 Consents. To the best of Borrower's knowledge, no
consent of any Person, and no consent, license, permit, approval or
authorization of, exemption by, or registration, filing or declaration with any
Government Authority is required in connection with the execution, delivery,
performance, validity or enforceability by or against Borrower of the Loan
Documents to which it is or will be a party.
7.7 No Material Litigation. No litigation, investigation
or administrative proceeding of or before any court, arbitrator or Governmental
Authority is presently pending or, to the knowledge of Borrower, threatened
against it or any of its properties or assets (a) with respect to any Loan
Document or any of the transactions contemplated hereby or thereby or (b)
which, if adversely determined, could reasonably be expected to materially and
adversely affect the business, operations, properties, assets or financial or
other condition of the Borrower.
Page 10 of 19 Pages
15
Amended and Restated Revolving Credit Agreement
TANDY BRANDS ACCESSORIES, INC.
June 30, 1994
7.8 No Default. Borrower is not in default, and the
execution, delivery and performance of the Loan Documents will not result in a
default, in the payment or performance of any of the Borrower's obligations or
in the performance of any mortgage, indenture, lease, contract or other
agreement or undertaking to which it is a party or by which it or any of its
properties or assets may be bound, and no Default hereunder has occurred and is
continuing. The Borrower is not in default under any order, award or decree of
any court, arbitrator or Governmental Authority binding upon or materially
affecting it or by which any of its properties or assets is bound or materially
affected, and no such order, award or decree has or will materially affect the
ability of the Borrower to perform its obligations under the Loan Documents or
the ability of the Borrower to carry on its businesses.
7.9 Taxes. Borrower, to the best of its knowledge, has
filed or caused to be filed all tax returns material for the continuation of
its business which are required to be filed, and have paid all taxes shown to
be due and payable on said returns or on any assessments made against it or any
of its properties and all other taxes, fees or other charges imposed on the
Borrower or any of its properties by any Governmental Authority and no tax
liens have been filed and, to the knowledge of the Borrower, no material claims
are being asserted with respect to any such taxes, fees or other charges.
7.10 ERISA. Borrower, to the best of its knowledge, is in
compliance in all material respects with ERISA and the rules and regulations
thereunder. There exists no Unfunded Vested Liabilities under any Plan to which
the Borrower is a party. No "Reportable Event", as such term is defined in
Section 4043(b) of Title IV of ERISA, has occurred and is continuing with
respect to any Plan.
7.11 No Change. Since the date of the most recent balance
sheet delivered to the Bank pursuant to Section 8.7 hereof, there has been no
material adverse change in the business, operations, property or financial or
other condition of the Borrower.
7.12 Regulations G, T, U and X. Borrower is not engaged
nor will it engage, principally or as one of its important activities, in the
business of extending credit for the purpose of "purchasing" or "carrying"
any "margin stock" within the respective meanings of each of the quoted terms
under Regulation U of the Board. No part of the proceeds of the Commitment
hereunder will be used for any purpose which violates the provisions of
Regulations G, T, U or X of said Board.
7.13 Accuracy and Completeness of Information. All
information, exhibits, reports, other papers and data with respect to the
Borrower prepared and furnished to the Bank by or on behalf of the Borrower in
connection with the Loan Documents were at the time the same were so furnished
complete, accurate and correct in all material respects. No document furnished
or statement made to the Bank by the Borrower in connection with the
negotiation, preparation or execution of this Agreement contains any untrue
statement of a fact material to the creditworthiness of the Borrower or omits
to state any such material fact necessary in order to make the statements
contained therein not misleading, in either case which has not been corrected,
supplemented or remedied by subsequent documents furnished or statements made
in writing to the Bank.
7.14 Environmental. Borrower has complied and continues to
comply with all environmental laws materially applicable to the operation of
its property and business, and has not received any summons, complaint, order
or other notice that it is not in compliance with, or any governmental
authority is investigating its compliance with, any environmental laws.
7.15 Eligible Acceptance. Each Acceptance when created
hereunder is an Eligible Acceptance.
7.16 Drafts. At the time of presentation to the Banks,
each Draft shall represent one or more transactions involving the sale,
transportation or storage of goods in existence at such time; and Borrower's
Eligibility Certificate shall identify the goods, the countries from and to
which they are shipped, the approximate date of each shipment and any other
relevant information that the Banks may request with respect of each
transaction.
Page 11 of 19 Pages
16
Amended and Restated Revolving Credit Agreement
TANDY BRANDS ACCESSORIES, INC.
June 30, 1994
7.17 Existing Indebtedness. Borrower has no other existing
Indebtedness as of the Effective Date except that Indebtedness listed on
Schedule II attached hereto.
SECTION 8. AFFIRMATIVE COVENANTS.
The Borrower covenants and agrees with the Bank that prior to
the termination of this Agreement Borrower will do, and if necessary cause to
be done each and all of the following:
8.1 Taxes. Pay all taxes and establish reserves deemed
adequate therefore, unless and only to the extent that the same shall be
contested in good faith and by appropriate proceedings;
8.2 Licenses, Permits. Renew and keep in full force and
effect all material licenses, permits, patents, trademarks, tradenames, and
franchises required to conduct Borrower's business;
8.3 Existence. Do all things to preserve its existence,
qualifications, rights and franchises in all jurisdictions where such
qualification is necessary;
8.4 Legal Requirements. Comply with all material legal
requirements in respect of the ownership of its property and the conduct of its
business;
8.5 Property Maintenance. Preserve, repair, and maintain
all of it property necessary to conduct its business in an efficient and proper
manner;
8.6 Insurance. Maintain adequate insurance with such
insurers, on such of its property, in such amounts and against such risks as is
customary with companies conducting similar businesses, and furnish the Bank
satisfactory evidence thereof promptly upon request;
8.7 Financial Statements. Furnish to the Bank the
following:
(a) Not later than 90 days after the end of its fiscal
year, its balance sheet and income statement and cash flow statement
("Financial Statements"), prepared in accordance with GAAP
consistently applied and certified in a manner satisfactory to the
Bank by independent, certified public accountants acceptable to the
Bank and also furnish along with such Financial Statements, unaudited
consolidating Financial Statements, if any;
(b) Not later than 45 days after the end of each fiscal
quarter, its balance sheet, statements of income and cash flow
certified in a manner satisfactory to the Bank by the chief financial
officer of Borrower;
(c) With each set of financial statements described in
(a) and (b) above, the certificate of the chief financial officer of
Borrower certifying that no event exists which alone or with notice,
the passage of time, or both, would constitute a Default and setting
forth the calculations and information necessary to demonstrate the
compliance or noncompliance with the financial covenants of Section 9
hereof; and
(d) Upon the request of the Bank, all such additional
information, financial or otherwise, of Borrower as the Bank may
reasonably request from time to time;
8.8 Access. Upon written request and the Bank's agreement
to maintain the confidentiality of same, the Bank's representatives and agents
shall be permitted access to any or all of Borrower's property and financial
records, to abstract from such records and to discuss the finances, business
and affairs of Borrower with its officers and accountants, all at such times
and intervals and to such extent as the Bank may reasonably require;
8.9 Notices. Give prompt written notice to the Bank of,
Page 12 of 19 Pages
17
Amended and Restated Revolving Credit Agreement
TANDY BRANDS ACCESSORIES, INC.
June 30, 1994
(a) The details of any Reportable Event which has
occurred;
(b) The occurrence of any event which alone or with
notice, the passage of time or both, would constitute a Default
hereunder;
(c) The commencement of any proceeding or litigation
which, if adversely determined, would have a material adverse affect
upon its financial condition or ability to conduct business as
currently conducted;
(d) The occurrence of any material adverse change in its
property, assets, financial condition, business or affairs; or
(e) The formation of any Subsidiary after the date of
this Agreement.
8.10 Change of Name. Notify the Bank in writing at least
30 Business Days prior to the date Borrower changes its name or location of its
principal place of business; and
8.11 Further Assurances. Promptly execute and deliver any
and all other agreements, documents, instruments and certificates which may be
reasonably requested by the Bank to cure any defect in the execution and
delivery of any of the Loan Documents.
SECTION 9. NEGATIVE COVENANTS.
The Borrower covenants and agrees with the Bank that prior to
the termination of this Agreement Borrower will NOT do each and all of the
following:
9.1 Use of Proceeds. Use, directly or indirectly, the
proceeds of any Advance for any purpose other than for working capital purposes
or for the financing of acquisitions or purchase of treasury stock.
Specifically, such proceeds will not be used for the purpose, whether
immediate, incidental or ultimate, of purchasing or carrying any "margin
stock", within the meaning of Regulation U of the Board. The Borrower will not
engage principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying margin stock within
the meaning of such Regulation U nor will the Borrower otherwise act so as to
cause the Bank to be in contention of Regulations T and U;
9.2 Sale of Assets. Sell, assign, lease or otherwise
dispose of any of its assets or property without prior written consent of the
Bank and such consent will not be unreasonably withheld, except that no consent
is required for sales in the ordinary course of business and sales in an
aggregate amount of $500,000.00 or less of the Borrower's Tangible Assets
during any twelve (12) month period.
9.3 Mergers and Consolidations. Merge or consolidate with
any other Person, except that so long as no Default has occurred and is
continuing or would result as a consequence thereof, the Borrower may merge or
consolidate with any other Person, provided the continuing or surviving Person
is Tandy Brands Accessories, Inc.
9.4 Liens. Create, assume, incur or permit to exist or
allow to be created, assumed or incurred or permitted to exist any Lien upon
any of its properties, now owned or hereafter acquired, nor acquire nor agree
to acquire any kind of property subject to a Lien provided, however, that the
foregoing restrictions shall not prevent the Borrower from:
(a) having Liens on Indebtedness existing prior to the
Effective Date hereof and as listed on Schedule II;
Page 13 of 19 Pages
18
Amended and Restated Revolving Credit Agreement
TANDY BRANDS ACCESSORIES, INC.
June 30, 1994
(b) making pledges or deposits to secure the Borrower's
obligations under workmen's compensation laws or similar legislation;
(c) in the ordinary course of business, making good faith
deposits in connection with bids, tenders, contracts or leases to
which the Borrower is a party, or making deposits to secure public or
statutory obligations;
(d) incurring mechanics', carriers', workmen's,
repairmen's or other like Liens in the ordinary course of business in
respect of obligations which are not overdue or being contested in
good faith, or making deposits to obtain the release of such Liens;
(e) making deposits to secure replevin, surety,
attachment or appeal bonds relating to legal proceedings to which the
Borrower is a party;
(f) incurring Liens arising out of judgments or awards
against the Borrower with respect to which it is currently engaged in
proceedings for review or appeal and with respect to which it shall
have secured a stay of execution pending such proceedings for review
or appeal;
(g) in the ordinary course of business, granting leases
or subleases to others or acquiring property subject to leases;
(h) permitting Liens consisting of zoning restrictions,
easements, restrictions on the use of real property or minor
irregularities in titles thereto which do not, in the opinion of the
Borrower's management, impair the use of such property by the Borrower
in the operation of its business; and
(i) incurring Liens when acquiring assets or properties
as contemplated in this Agreement.
9.5 No Inconsistent Actions. Undertake any course of
action inconsistent with the provisions of the Loan Documents. The Borrower
will promptly do all acts and things and take all such measures as may be
appropriate to comply as soon as practicable with the representations,
warranties, terms, conditions and provisions of this Agreement.
9.6 Transactions with Affiliates. Enter into any material
transaction (including, without limitation, the purchase, sale or exchange of
any property or the rendering of any service) with any Affiliate except in the
ordinary course of and pursuant to the reasonable requirements of the
Borrower's business and upon fair and reasonable terms no less favorable to the
Borrower than it would obtain in any other arms' length business transaction.
9.7 ERISA. (i) voluntarily terminate any Plan if such
termination is likely to result in any material liability of the Borrower to
the PBGC or any Person or (ii) enter into any 'prohibited transaction' (as
defined in the Code or in ERISA) involving any Plan which might result in any
material liability of Borrower to the PBGC or any Person, (iii) permit the
occurrence of any Reportable Event which might result in any material liability
of the Borrower to the PBGC or any other Person or (iv) permit to exist any
other event or condition which might result in any material liability of the
Borrower to the PBGC or any other Person.
9.8 Funded Indebtedness to EBITDA Ratio. Permit the ratio
of Borrower's Funded Indebtedness to EBITDA for the trailing four (4) quarters
to be greater than 2.50 to 1.00 at any time during the term of this Agreement,
but tested as of the end of each fiscal quarter, beginning June 30, 1994.
9.9 Fixed Charge Ratio. Permit the ratio of EBITDA to
Fixed Charges for the trailing four (4) quarters to be less than 1.50 to 1.00
at any time during the term of this Agreement, but tested as of the end of each
fiscal quarter, beginning June 30, 1994.
Page 14 of 19 Pages
19
Amended and Restated Revolving Credit Agreement
TANDY BRANDS ACCESSORIES, INC.
June 30, 1994
9.10 Inventory Turnover Ratio. Permit the ratio of Costs
of Goods Sold to the amount of the average inventory (the sum of: (i) amount of
Inventory for the most recent quarter's end plus (ii) the amount of the
Inventory as of the end of each of the prior three quarters divided by 4) for
the trailing four (4) quarters to be less than 1.50 to 1.00 at any time during
the term of this Agreement, but tested as of the end of each fiscal quarter,
beginning June 30, 1994.
SECTION 10. EVENTS OF DEFAULT.
In the event any of the following events shall occur and be
continuing (a 'Default"):
10.1 Nonpayment. Nonpayment of any principal and interest
or any other amount such as commissions, fees and legal expenses as and when
due in accordance with the terms of the Loan Documents and the same shall not
have been cured within 3 days of the occurrence of the Default;
10.2 Misrepresentations. Any representation or warranty
made in or in connection with the Loan Documents or in any other agreement,
instrument or certificate furnished in connection with any of the foregoing
shall prove false or misleading in any material respect when made or deemed
made;
10.3 Loan Documents. Subject to Section 10.04 below, the
occurrence of any event of default as such is defined in any of the Loan
Documents other than the Note and this Agreement;
10.4 Nonperformance. Borrower shall default in the due
observance or performance of any term, covenant or agreement contained in this
Agreement or in any of the other Loan Documents except that any Default under
Sections 8 and 9 shall not be cured within 30 days of the occurrence of said
Default;
10.5 Other Indebtedness. Borrower shall (x) fail to make
one or more payments when due on aggregate Indebtedness for borrowed money
exceeding $500,000 and such failure results in the acceleration of any
Indebtedness, (y) default in the performance of its material obligations under
any promissory note, credit agreement, loan agreement or collateral documents
relating to or securing any aggregate Indebtedness for borrowed money exceeding
$500,000 and such default results in the acceleration of any Indebtedness, or
(z) fail to pay when due any other Indebtedness in an aggregate amount in
excess of $500,000 beyond any applicable grace period, unless the payment
thereof is being contested in good faith and Borrower has adequate reserves set
aside for such payment;
10.6 Change of Control. There is an occurrence of a Change
in Control of Borrower;
10.7 Judgements. Any final, nonappealable judgment or
judgments in excess of $500,000.00 in the aggregate against Borrower or any
attachment or other levy against the property of Borrower with respect to a
claim remains unpaid, unstayed on appeal, undischarged, not bonded or not
dismissed for 60 days;
10.8 Bankruptcy. Except, in the event of an involuntary
bankruptcy, which has not been dismissed within 60 days, Borrower makes an
assignment for the benefit of creditors, files a petition in bankruptcy, is
adjudicated insolvent or bankrupt, petitions or applies to any tribunal for any
receiver or any trustee of any substantial part of its property, commences any
action relating to Borrower under any reorganization, arrangement, readjustment
of debt, dissolution or liquidation law or statute of any jurisdiction, whether
or not hereafter in effect, or if there is commenced against Borrower any such
action, or Borrower by any act indicates its consent to or approval of any
trustee for Borrower or any substantial part of its property, or suffers any
such receivership or trustee to continue undischarged;
10.9 Reportable Event. A Reportable Event shall have
occurred with respect to any Plan as defined in ERISA and (i) the Bank has
notified the Borrower in writing that it has determined that such Reportable
Event constitutes reasonable grounds for termination of such Plan by the PBGC
or the appointment of a trustee, to administer the Plan, by an appropriate U.S.
District Court or (ii) such termination proceedings are commenced or such
appointment occurs;
Page 15 of 19 Pages
20
Amended and Restated Revolving Credit Agreement
TANDY BRANDS ACCESSORIES, INC.
June 30, 1994
THEN, the Bank's obligation to make any Loan, issue any Letter of Credit or
create any Acceptance is canceled without the need for notice to Borrower of
any kind and the Note and all Loans and any other amounts owing under the other
Loan Documents shall be immediately due and payable in full, without
presentment, demand, protest or notice of any kind, notice of intent to
accelerate and notice of acceleration all of which are hereby expressly waived
and Borrower shall deposit with the Bank cash equal to or cash equivalent
securities equal to the sum of the aggregate outstanding L/C Obligations and
Acceptances as security for Borrower's obligations under this Agreement.
SECTION 11. REMEDIES.
11.1 Additional Remedies. If any of the above events ("Events
of Default") shall occur, then, in addition to the remedies provided for above
in Section 6.1, the Bank may do any or all of the following: (1) declare the
Note to be, and thereupon such Note shall forthwith become, immediately due and
payable, together with all accrued and unpaid interest thereon and all other
obligations and indebtedness of the Borrower under the Loan Documents, without
notice of acceleration or of intention to accelerate, presentment and demand or
protest, all of which are hereby expressly waived; (2) without notice to
Borrower, terminate the Commitment and accelerate the Termination Date,
provided that should an event occur and not be cured within the applicable
grace period provided for above, Bank will not be obligated to make any Loan,
issue any Letter of Credit or create any Acceptance until such Event of Default
is cured; and (3) exercise any and all other rights pursuant to the Loan
Documents, at law, in equity or otherwise.
11.2 Remedies Cumulative. No remedy, right or power of the
Bank is intended to be exclusive of any other remedy, right or power, and each
and every remedy, right and power shall be cumulative and in addition to every
other remedy, right and power given under this Agreement or now or hereafter
existing at law or in equity or by statute or otherwise.
SECTION 12. MISCELLANEOUS.
12.1 No Waiver. No failure to exercise or delay in
exercising any right or power under any of the Loan Documents shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right or
power preclude any further or other exercise thereof or the exercise of any
other right or power. No amendment, modification or waiver of any of the Loan
Documents shall be effective unless the same is in writing and signed by the
Person against whom such amendment is sought to be enforced.
12.2 Notices. All notices under the Loan Documents, except
a Notice of Borrowing or notices of payment or prepayment, which can be made by
telephone provided the same is promptly confirmed in writing shall be in
writing and either (i) delivered against receipt therefore, (ii) mailed by
registered or certified mail, return receipt requested, or (iii) sent by
telecopy, telex or telegram, in each case addressed to the names and addresses
as set forth on the execution page of this Agreement or to such other name or
address as a party may designate. Notices shall be deemed to have been given
when delivered (or, if mailed, on the third Business Day from date of posting).
12.3 Set-Off. If one or more Events of Default shall occur
and be continuing, the Bank shall have the right, in addition to all other
rights and remedies available to Bank, to set-off against the unpaid balance of
the Indebtedness owing to Bank on account of any Advance of Borrower,
including, without limitation, any funds in any deposit account whatsoever
maintained by the Borrower with the Bank, and nothing in this Agreement or any
of the other Loan Documents shall be deemed a waiver or prohibition of the
Bank's right of banker's lien or set-off. Bank shall immediately give Borrower
notice of any such set-off.
12.4. Governing and Venue. UNLESS OTHERWISE SPECIFIED
HEREIN, OR OTHERWISE REQUIRED BY ANY APPLICABLE LAW, EACH OF THE LOAN DOCUMENTS
(INCLUDING THIS AGREEMENT AND THE NOTE) SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND THE UNITED STATES OF
Page 16 of 19 Pages
21
Amended and Restated Revolving Credit Agreement
TANDY BRANDS ACCESSORIES, INC.
June 30, 1994
AMERICA. THE NOTE HAS BEEN ENTERED INTO IN THE COUNTY OF THE BANK'S PRINCIPAL
OFFICE IN TEXAS, SHALL BE PERFORMABLE FOR ALL PURPOSES IN SUCH COUNTY AND THE
BORROWER AND THE BANK AGREE THAT THE COUNTY IN WHICH BANK'S PRINCIPAL OFFICE IS
LOCATED IN TEXAS IS PROPER VENUE FOR ANY ACTION OR PROCEEDING BROUGHT BY THE
BORROWER OR THE BANK, WHETHER IN CONTRACT, TORT, OR OTHERWISE. ANY ACTION OR
PROCEEDING AGAINST THE BORROWER MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT IN
SUCH COUNTY. THE BORROWER HEREBY IRREVOCABLY (A) SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF SUCH COURTS, AND (B) WAIVES ANY OBJECTION IT MAY NOW OR
HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT OR THAT ANY SUCH COURT IS AN INCONVENIENT FORUM. THE BORROWER AGREES
THAT SERVICE OF PROCESS UPON IT MAY BE MADE BY CERTIFIED OR REGISTERED MAIL,
RETURN RECEIPT REQUESTED, AT ITS ADDRESS SPECIFIED BELOW. NOTHING HEREIN OR IN
ANY OF THE OTHER LOAN DOCUMENTS SHALL AFFECT THE RIGHT OF THE BANK TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE
BANK TO BRING ANY ACTION OR PROCEEDING AGAINST THE BORROWER OR WITH RESPECT TO
ANY OF ITS PROPERTY IN COURTS IN OTHER JURISDICTIONS OR VENUES.
12.5 Survival of Warranties All representations and warranties
made by or on behalf of Borrower in connection with this Agreement shall
survive the execution and delivery of the Loan Documents and shall bind
Borrower and its administrators, successors, trustees, receivers and assigns
and inure to the benefit of the successors and assigns of the Bank. The term of
this Agreement shall be until the Termination Date and final maturity of the
Note and the payment of all amounts due under the Loan Documents.
12.6 Usury. Borrower and Bank intend to conform strictly to
applicable usury laws. Therefore, the total amount of interest (as defined
under applicable law) contracted for, charged or collected under this Agreement
or any other Loan Document will never exceed the Highest Lawful Rate (as
defined in the Note). If Bank contracts for, charges or receives any excess
interest, it will be deemed a mistake. Bank will automatically reform the Loan
Document or charge to conform to applicable law, and if excess interest has
been received, Bank will either refund the excess to Borrower or credit the
excess on any unpaid principal amount of the Note or any other Loan Document.
All amounts constituting interest will be spread throughout the full term of
the Loan Document or applicable Note in determining whether interest exceeds
lawful amounts.
12.7 Expenses. Any provision to the contrary notwithstanding, and
whether or not the transactions contemplated by this Agreement shall be
consummated, the Borrower shall pay, on demand costs and administrative
expenses including, without limitation, the expenses of counsel for the Bank in
connection with the preparation, execution, filing, and recording of this
Agreement and Borrower shall pay on demand, all reasonable out-of-pocket
expenses in connection with the refiling, re-recording, modification,
supplementing and waiver of the Loan Documents and the making, servicing and
collection of any Advances.
12.8 Indemnification. THE BORROWER AGREES TO INDEMNIFY, DEFEND
AND HOLD THE BANK, ITS DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS (THE "BANK"
FOR THIS PARAGRAPH ONLY) HARMLESS FROM AND AGAINST ANY AND ALL LOSS, LIABILITY,
OBLIGATION, DAMAGE, PENALTY, JUDGMENT, CLAIM, DEFICIENCY AND EXPENSE (INCLUDING
INTEREST, PENALTIES, ATTORNEYS' FEES AND AMOUNTS PAID IN SETTLEMENT) EXCEPT FOR
THE GROSS NEGLIGENCE AND WILLFUL MISCONDUCT OF THE BANK TO WHICH THE BANK MAY
BECOME SUBJECT TO OR ARISING OUT OF, OR BASED UPON THE LOAN DOCUMENTS OR ANY
ADVANCES.
12.9 Severability. If any provision of any of the Loan Documents
shall be invalid, illegal or unenforceable in any respect under any applicable
law, the validity, legality and enforceability of the remaining provisions
shall not be affected or impaired thereby.
Page 17 of 19 Pages
22
Amended and Restated Revolving Credit Agreement
TANDY BRANDS ACCESSORIES, INC.
June 30, 1994
12.10 Entire Agreement. The Loan Documents embody the entire
agreement and understanding between the Borrower and the Bank, relating to the
subject matter hereof and thereof and supersedes all prior proposals,
negotiations, agreements, oral and written communications and understandings
relating to such subject matter. The Borrower and the Bank certify that each is
relying on no other representation, warranty, covenant or agreement except for
those set forth in the Loan Documents. NO COURSE OF DEALING BY BORROWER WITH
BANK, NO COURSE OF PERFORMANCE AND NO TRADE PRACTICES OR OTHER EXTRINSIC
EVIDENCE OF ANY NATURE MAY BE USED TO CONTRADICT, VARY, SUPPLEMENT OR MODIFY
ANY TERM OF THIS AGREEMENT.
12.11 Loan Sales and Assignments. The Bank reserves the right,
in its sole discretion, without notice to the Borrower to sell participations
or assign its interest, or both, in all or any part of the Advances or other
Loan Documents.
12.12 No Assignment. The Borrower may not assign at any time
during the existence of the Advances its interests, rights, powers, obligations
or liabilities under any of the Loan Documents without the express written
consent of the Bank.
12.13 Conflict between Loan Documents. In the event any provision
herein shall be inconsistent with any provision of any of the other Loan
Documents, this Agreement shall control.
Page 18 of 19 Pages
23
Amended and Restated Revolving Credit Agreement
TANDY BRANDS ACCESSORIES, INC.
June 30, 1994
THIS WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS CONSTITUTE A
"LOAN AGREEMENT" AS DEFINED IN SECTION 26.02(a) OF THE TEXAS BUSINESS &
COMMERCE CODE, AND REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMEPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly authorized, as of
the date first above written.
TANDY BRANDS ACCESSORIES, INC.
By: /s/ STANLEY T. NINEMIRE
------------------------------
Name: Stanley T. Ninemire
Title: Vice-President and Chief Financial Officer
Address for mail delivery:
Tandy Brands Accessories, Inc.
690 East Lamar, Suite 200
Arlington, Texas 76011
Attention: Stan Ninemire
Telecopy No: (817) 548-1144
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
By: /s/ LOREN K. JENSEN
------------------------------
Name: Loren K. Jensen
Title: Senior Vice President
Address for mail delivery:
201 Main Street
Fort Worth, Texas 76102
Attention: Loren Jensen, S.V.P.
Telecopy No: (817) 878-7591
Page 19 of 19 Pages
24
EXHIBIT B
Date
Texas Commerce Bank National Association
201 Main Street
Fort Worth, Texas 76102
Attention: Loren Jensen or Susan Sheffield
Re: Notice of Borrowing under Amended and Restated Credit Agreement
Ladies and Gentlemen:
Pursuant to that certain Amended and Restated Revolving Credit
Agreement dated as of June 30, 1994 (the "Credit Agreement" or "Agreement"; the
defined terms herein being used herein as therein defined) between Tandy Brands
Accessories, Inc., a Delaware corporation (the "Borrower") and the Bank, the
Borrower hereby:
1. Gives you notice pursuant to Section 2 of the Agreement
and the Note that the Borrower hereby requests a Loan under the Note which is
subject to the Agreement, and in that connection sets forth below the
information relating to such Loan ("the Proposed Loan") as required by the
Note:
(i) The Borrowing Date of the Proposed Loan is _________, 19__;
(ii) The type of the Proposed Loan is (check one):
______________ Alternate Base Rate Loan
______________ CD Rate Loan
______________ Eurodollar Loan
______________ Negotiated Rate Loan
(iii) The Interest Period of the Proposed Loan is ____________;
(iv) The principal amount of the Proposed Loan is $__________,
and such amount, together with the sum of (i) the aggregate principal
amount of all outstanding Loans, (ii) the aggregate outstanding L/C
Obligations; and (iii) Acceptances (as defined in the Credit Agreement)
does not exceed the amount of the Commitment (as defined in the Credit
Agreement);
(v) The account of the Borrower into which the proceeds of the
Proposed Loan should be deposited is:_________________________.
2. Certifies that (a) no Default has occurred and is continuing
or will result from the making of such Proposed Loan, and (b) all
representations and warranties of the Borrower contained in Section 5 of
the Agreement are true and correct as of the date hereof (other than
those of such representations and warranties which speak to a date on or
before the date hereof) to the best of our knowledge, with the same
effect as if made on such date.
Very truly yours,
TANDY BRANDS ACCESSORIES, INC.
By:
---------------------------
Name:
---------------------------
Title:
---------------------------
EXHIBIT B Page 1 of 1
25
EXHIBIT C
ELIGIBILITY CERTIFICATE
______________, 19__
Texas Commerce Bank National Association
201 Main Street
Fort Worth, Texas 76102
Re: Draft to be discounted to create an Acceptance subject to the Amended
and Restated Revolving Credit Agreement dated June 30, 1994 by and
between Tandy Brands Accessories, Inc. and Texas Commerce Bank National
Association
Ladies and Gentlemen:
The Drafts (Numbers:_____________) relevant to the attached
Notice of Acceptance shall (check or "X" the applicable box below):
[ ] Grow out of transactions involving the importation or exportation
of goods, to wit:
Bill of Lading No.
Goods Destination and/or Origin and/or Date
----- ------------------------- -----------
[ ] Grow out of transactions involving the domestic shipment of
goods, to wit:
Bill of Lading No.
Goods Destination and/or Origin and/or Date
----- ------------------------- -----------
[ ] Are presently secured (and will remain secured at least until the
time your Acceptance is created) by a warehouse receipt or other
such documents of title, conveying or securing title, covering
readily marketable staples, to wit:
Warehouse receipt No.
Staples Security and/or Date
------- -------- --------------------
[ ] Will mature at least 30 days and less than 181 days from date of
Draft; and
[ ] Are considered "Eligible Acceptances" as defined in the Amended
and Restated Revolving Credit Agreement dated June 30, 1994 by
and between the Borrower and Bank.
Borrower agrees to maintain records available for the Bank's
inspection to justify the foregoing and to show that the value of the relevant
transaction is at least equal to the amount of the applicable Drafts. Borrower
certifies to Bank that there is no other financing supporting this transaction.
TANDY BRANDS ACCESSORIES, INC.
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
EXHIBIT C Page 1 of 1
26
EXHIBIT D
NOTICE OF ACCEPTANCE
Texas Commerce Bank National Association
201 Main Street
Fort Worth, Texas 76102
Attention: Loren Jensen or Susan Sheffield
Re: Amended and Restated Revolving Credit Agreement by and between Tandy
Brands Accessories, Inc. ("Borrower") and Texas Commerce Bank National
Association (the "Bank")
Ladies and Gentlemen:
Pursuant to the Amended and Restated revolving Credit Agreement
dated June 30, 1994 (the "Agreement", the capitalized terms herein shall have
the same meanings as the capitalized terms in the Agreement) by and between the
Borrower and the Bank, the Borrower hereby:
1. Gives Bank confirmation of Borrower's notice pursuant to
Section 4.2 of the Agreement and in connection therewith sets forth below the
information relating to such Acceptance as required in Section 4 of the
Agreement:
(i) The date of the Acceptance will be: ______________________;
(ii) The amount of the Acceptance will be: $___________ and such
amount, together with the sum of (a) the aggregate amount of Loans
outstanding, (b) the amount of L/C Obligations outstanding and (c) the
amount of Acceptances outstanding does not exceed the amount of the
Commitment;
(iii) The maturity of the proposed Acceptance will be:
__________________________;
(iv) The account of the Borrower into which the "proceeds" (the
amount of the proceeds shall be net of the amount of the commission fee
charged Borrower by Bank with respect of the creation of the Acceptance
as set forth in Section 4.5 of the Agreement) of the Acceptance should
be deposited in:
___________________________________;
2. Borrower certifies, warrants and represents that (a) no
Default has occurred and is continuing or will result from the creation of such
Acceptance and (b) all representations and warranties of the Borrower contained
in Section 7 of the Credit Agreement are true and correct to the best of
Borrower's knowledge as of the date hereof.
3. Accompanying this Notice of Acceptance is an Eligibility
Certificate which will be attached to the Acceptance.
Sincerely yours,
TANDY BRANDS ACCESSORIES, INC.
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
EXHIBIT D Page 1 of 1
27
EXHIBIT E
HOLD HARMLESS ADDENDUM
Texas Commerce Bank National Association
201 Main Street
Fort Worth, Texas 76102
Re: Tandy Brands Accessories, Inc. (the "Borrower")
$15,000,000 Commitment
Dear Sir:
Please hold as custodian, blank pre-signed and pre-endorsed Drafts drawn
by us and payable by you under the terms herein set forth. The blank pre-signed
Drafts shall be received, completed, and accepted from time to time by the Bank
for Borrower's account, pursuant to the Amended and Restated Revolving Credit
Agreement (the "Agreement") dated June 30, 1994. The Bank will exercise the
same care with respect to the safekeeping of such drafts as it exercises with
respect to its own affairs.
The Bank and its Trust Company will hold such drafts and complete them
with such amounts, dates and other data as the Borrower shall instruct in
accordance with the terms of this Hold Harmless Addendum (the "Addendum") which
is an integral part of the Agreement to which this Addendum is attached, and of
which this Addendum is expressly made a part. The Bank shall accept and be
entitled to rely upon all instructions given on Borrower's behalf, including
instructions given by telephone or in writing. All instructions given by
telephone shall be promptly confirmed in writing. Each of the following
individuals is singly authorized, relevant to the Agreement and this Addendum,
to give you instructions on Borrower's behalf:
- ------------------------------- ------------------------------
- ------------------------------- ------------------------------
- ------------------------------- ------------------------------
The Bank's and Borrower's duties and responsibilities for these Drafts
shall be set forth in the Agreement. The Borrower further agrees to defend,
indemnify and hold the Bank and its liabilities, claims, damages, causes of
action, costs, expenses, and attorneys' fees, in connection with the Bank's
agents' handling of the herein described Drafts; provided that nothing
contained herein shall render the Bank liable to Borrower for any exemplary or
consequential damages.
Receipt of funds for each Draft shall be deposited in Borrower's account
with the Bank, numbered _________________ or other of Borrower's accounts with
the Bank as may be directed by any one of the above mentioned individuals.
We have herewith delivered blank pre-signed and pre-endorsed Drafts
numbered _______________ through _______________ to the Bank. The Bank, by its
signature below, acknowledges receipt thereof.
TANDY BRANDS ACCESSORIES, INC.
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
ATTEST:
------------------------------
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
ATTEST:
------------------------------
28
SCHEDULE I
SUBSIDIARIES
Name and Address Percentage
of Subsidiaries Borrower? State of Organization Ownership
- --------------- -------- --------------------- ---------
TBA Acquisition, Inc. Yes Delaware ______ %
TBAC -
Prince Gardner, Inc. Yes
TBAC-AIS
SCHEDULE I Page 1 of 1
29
SCHEDULE II
List of Indebtedness Existing Before Effective Date
Encumbered Indebtedness
Unencumbered Indebtedness
SCHEDULE II Page 1 of 1
30
FIRST AMENDMENT TO CREDIT AGREEMENT -ENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (THIS "AMENDMENT") dated effective as
of April 30, 1995 (the "Effective Date"), is by and between TANDY BRANDS
ACCESSORIES, INC., a Delaware corporation, ("Borrower"), and TEXAS COMMERCE
BANK NATIONAL ASSOCIATION, a national banking association whose principal
office is located in Houston, Texas (the "Bank").
PRELIMINARY STATEMENT
The Bank and the Borrower have entered into an Amended and Restated Revolving
Credit Agreement dated as of June 30, 1994 (the "Credit Agreement"). The
"Agreement", as used in the Credit Agreement, shall also refer to the Credit
Agreement as amended by this Amendment. All capitalized terms defined in the
Credit Agreement and not otherwise defined herein shall have the same meanings
herein as in the Credit Agreement. The Bank and the Borrower have agreed to
amend the Credit Agreement to the extent set forth herein, and in order to,
among other things, renew, modify, extend and increase the Commitment to
Borrower for the issuance of letters of credit and money borrowings for the
purpose of financing and supporting the general corporate purposes, including,
without limitation, the working capital, the letters of credit needs and
acquisition financing and treasury stock purchase requirements of the Borrower.
NOW THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
the parties hereto, the Bank and the Borrower hereby agree as follows:
Section 1. Section 1.1 Definitions of the Credit Agreement is amended by
deleting therefrom the definitions of "Acceptance", "Acceptance Commitment",
"Acceptance Obligation", "Eligible Acceptance", "Eligibility Certificate",
"Draft" and "Notice of Acceptance" in their entirety.
Section 2. Section 1.1 Definitions of the Credit Agreement is amended by
substituting the following for the definition of Commitment:
""Commitment" shall mean $20,000,000.00."
Section 3. Section 1.1 Definitions of the Credit Agreement is amended by
substituting the following for the definition of EBITDA:
""EBITDA" shall mean pretax income from continuing operations plus
Interest Expense plus amortization and depreciation."
Section 4. Section 1.1 Definitions of the Credit Agreement is amended by
substituting the following for the definition of Loan or Loans:
""Loan" or "Loans" shall mean any loan by the Bank made to the Borrower
pursuant to Section 2 hereof and includes an Alternate Base Rate Loan, a
CD Rate Loan, a Negotiated Rate Loan or a Eurodollar Loan (each of which
shall be a "type" of loan as further described in the Note)."
Section 5. Section 1.1 Definitions of the Credit Agreement is amended by
substituting the following for the definition of Termination Date:
""Termination Date" shall mean the earlier to occur of: (i) April 30,
1997; or (ii) that date as specified by the Bank pursuant to Section 10
hereof."
Page 1 of 5 Pages
31
First Amendment to Credit Agreement
TANDY BRANDS ACCESSORIES, INC.
April 30, 1995
Section 6. Section 1.1 Definitions of the Credit Agreement is amended by
substituting the following for the definition of Advances:
""Advances" shall mean collectively the Loans and Letters of Credit."
Section 7. Section 2.1 of the Credit Agreement is amended by substituting the
following for Section 2.1 of the Credit Agreement:
"2.1 Note and Terms of Commitment. Subject to the terms and
conditions hereof, the Bank agrees to make advances or loans to
Borrower from time to time before the Termination Date, not to exceed
at any one time outstanding the amount of the Commitment. Advances
shall take the form of Loans under the Note or issuances of Letters of
Credit by Bank. The Loans shall be evidenced by, and shall bear
interest and be payable as provided in the Note executed by Borrower
dated as of the Effective Date and delivered to Bank which is given in
renewal, extension, modification of and increase in the amount of that
certain promissory note dated April 30, 1994 in the principal amount
of $15,000,000.00 (including all prior notes of which said note
represents a renewal, extension, modification, increase, substitution,
rearrangement or replacement thereof, the "Renewed Note"). Each Loan
shall be in an amount not less than that amount provided for in the
Note. Borrower shall have the right to borrow, repay and reborrow
under the Note provided that at no time shall the sum of the aggregate
amount outstanding of: (i) Loans, and (ii) L/C Obligations (as defined
in Section 3) exceed the amount of the Commitment."
Section 8. Section 3.1 of the Credit Agreement is amended by substituting the
following for Section 3.1 of the Credit Agreement:
"3.1 Letters of Credit. Subject to this Agreement, the Letters of
Credit may be issued from time to time on and after the Effective
Date, but, not including, the Termination Date for the account of the
Borrower or each of its subsidiaries and in favor of such Person or
Persons as may be designated by the Borrower and each of its
subsidiaries. Each Letter of Credit shall (a) expire on a date not
later than 365 days from the date of issuance thereof for commercial
letters of credit ("Commercial L/Cs") and expire not later than 12
months from date of issuance thereof for standby letters of credit
("Standby L/Cs") (except for letters of credit containing evergreen
clauses) and, in any event, no Letter of Credit shall have an
expiration date later than the Termination Date and (b) be denominated
in Dollars (or other currencies that are acceptable to the Bank). The
Commitment shall be reduced by an amount equal to the sum of: (a) the
face amount of all outstanding Letters of Credit; and (b) the amount
of any unreimbursed drawings or other amounts owing to the Bank under
or in respect of any Letter of Credit or Application (items (a) and
(b) are hereinafter collectively referred to as the "L/C Obligations")
such that, on any date, the sum of (x) all Loans outstanding on such
date and (y) all L/C Obligations on such date does not exceed the
Commitment. The total aggregate amount of L/C Obligations shall never
exceed $10,000,000.00."
Section 9. Section 3.2 of the Credit Agreement is amended by substituting the
following for Section 3.2 of the Credit Agreement:
"3.2 Applications. As a condition precedent to the issuance of any
Letter of Credit for the account of Borrower and for each of its
subsidiaries, the Bank shall have received an Application, duly
completed and executed by the Borrower and for each of its
subsidiaries in Proper Form, not less than three (3) Business Days
prior to the date on which the Letter of Credit is to be issued. In
the event that any provision of a Letter of Credit Application shall
be inconsistent with any provision of this Agreement, the provisions
of this Agreement shall govern."
Page 2 of 5 Pages
32
First Amendment to Credit Agreement
TANDY BRANDS ACCESSORIES, INC.
April 30, 1995
Section 10. Section 3.5 of the Credit Agreement is amended by substituting the
following for Section 3.5 of the Credit Agreement:
"3.5 Letter of Credit Commissions. In consideration for the issuance
of each Letter of Credit, the Borrower agrees to pay to the Bank a
letter of credit issuance fee ("Fee") in respect of such Letter of
Credit in an amount equal to: (1) in the case of Commercial L/C's: (a)
one eighth of one percent (1/8%) per annum per quarter or fraction
thereof on the face amount of such Letter of Credit or (b) the minimum
fee for such Letter of Credit extended by the Bank and in effect as of
the date on which such Letter of Credit is to be issued; and (2) in
the case of Standby L/C's: (a) three-quarters of one percent (3/4%)
per annum on the face amount of such Letter of Credit or (b) the
minimum fee for such Letter of Credit extended by the Bank and in
effect as of the date on which such Letter of Credit is to be issued.
The Fee shall be paid to the Bank at its main offices to the attention
of the Manager, Documentary Services Division in advance of issuance
of the Letter of Credit."
Section 11. The Credit Agreement is amended by deleting therefrom Section 4 in
its entirety.
Section 12. Section 6 of the Credit Agreement is amended by substituting the
following for Section 6 of the Credit Agreement:
"6.1 All Advances. The obligation of the Bank to make any Loan, issue
any Letter of Credit or renew the Renewed Note is subject to
satisfaction of the following conditions precedent: (a) the Bank shall
have received the following, all of which shall be duly executed and
in Proper Form: (1) for any Loan, a Notice of Borrowing, substantially
in the form of Exhibit B, as provided for in the Note; (2) for the
issuance of any Letter of Credit, a duly executed Application in
Proper Form by Borrower within the time set forth in Section 3.2; and
(b) no Default shall have occurred and be continuing; and (c) the
making of or issuance of any Advance shall not be prohibited by, or
subject the Bank to any penalty or onerous condition under, any Legal
Requirement.
6.2 First Loan and/or Letter of Credit. In addition to the matters
described in the preceding section, the obligation, if any, of the
Bank to renew the Renewed Note, to make the first Loan, issue the
first Letter of Credit or to renew and extend any of the Letters of
Credit is subject to the receipt by the Bank of all of the Loan
Documents, all of which shall be in Proper Form."
Section 13. Sections 7.15 and 7.16 of the Credit Agreement is amended by
deleting Sections 7.15 and 7.16 therefrom in their entirety.
Section 14. The last paragraph of Section 10 of the Credit Agreement is amended
by substituting the following for the last paragraph of Section 10:
"THEN, the Bank's obligation to make any Loan or issue any Letter of
Credit is canceled without the need for notice to Borrower of any kind
and the Note and all Loans and any other amounts owing under the other
Loan Documents shall be immediately due and payable in full, without
presentment, demand, protest or notice of any kind, notice of intent
to accelerate and notice of acceleration all of which are hereby
expressly waived and Borrower shall deposit with the Bank cash equal
to or cash equivalent securities equal to the sum of the aggregate
outstanding L/C Obligations as security for Borrower's obligations
under this Agreement."
Page 3 of 5 Pages
33
First Amendment to Credit Agreement
TANDY BRANDS ACCESSORIES, INC.
April 30, 1995
Section 15. Section 11.1 of the Credit Agreement is amended by substituting the
following for Section 11.1 of the Credit Agreement:
"11.1 Additional Remedies. If any of the above events ("Events of
Default") shall occur, then, in addition to the remedies provided for
above in Section 6.1, the Bank may do any or all of the following: (1)
declare the Note to be, and thereupon such Note shall forthwith
become, immediately due and payable, together with all accrued and
unpaid interest thereon and all other obligations and indebtedness of
the Borrower under the Loan Documents, without notice of acceleration
or of intention to accelerate, presentment and demand or protest, all
of which are hereby expressly waived; (2) without notice to Borrower,
terminate the Commitment and accelerate the Termination Date, provided
that should an event occur and not be cured within the applicable
grace period provided for above, Bank will not be obligated to make
any Loan or issue any Letter of Credit until such Event of Default is
cured; and (3) exercise any and all other rights pursuant to the Loan
Documents, at law, in equity or otherwise."
Section 16. Exhibit B of the Credit Agreement is hereby amended by replacing
prior Exhibit B with the Exhibit B attached hereto and hereby incorporated into
this Amendment and the Credit Agreement for all purposes.
Section 17. Schedule I of the Credit Agreement is hereby amended by replacing
prior Schedule I with the Schedule I attached hereto and hereby incorporated
into this Amendment and the Credit Agreement for all purposes.
Section 18. The Credit Agreement is hereby amended by deleting therefrom
Exhibits C, D and E in their entirety.
Section 19. The Borrower hereby represents and warrants to the Bank that after
giving effect to the execution and delivery of this Amendment: (a) the
representations and warranties set forth in the Credit Agreement are true and
correct on the date hereof as though made on and as of such date; and (b) no
Event of Default, or event which with passage of time, the giving of notice or
both would become an Event of Default, has occurred and is continuing as of the
date hereof.
Section 20. This Amendment shall become effective as of the Effective Date upon
its execution and delivery by each of the parties named in the signature lines
below, and the "Agreement" as used in the Credit Agreement shall also refer to
the Credit Agreement as amended by this Amendment.
Section 21. The Borrower further acknowledges that each of the other Loan
Documents is in all other respects ratified and confirmed, and all of the
rights, powers and privileges created thereby or thereunder are ratified,
extended, carried forward and remain in full force and effect except as the
Credit Agreement is amended by this Amendment.
Section 22. This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed an original and all of which taken together shall
constitute but one and the same agreement.
Section 23. This Amendment shall be included within the definition of "Loan
Documents" as used in the Agreement.
Section 24. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF TEXAS AND THE UNITED STATES OF AMERICA. THE
BORROWER AND THE BANK AGREE THAT THE COUNTY IN WHICH BANK'S PRINCIPAL OFFICE IS
LOCATED IN TEXAS IS PROPER VENUE FOR ANY ACTION OR PROCEEDING BROUGHT BY THE
BORROWER OR THE BANK, WHETHER IN CONTRACT, TORT, OR OTHERWISE. ANY ACTION OR
PROCEEDING AGAINST THE BORROWER MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT IN
SUCH COUNTY. THE BORROWER HEREBY IRREVOCABLY (A) SUBMITS TO
Page 4 of 5 Pages
34
First Amendment to Credit Agreement
TANDY BRANDS ACCESSORIES, INC.
April 30, 1995
THE NONEXCLUSIVE JURISDICTION OF SUCH COURTS, AND (B) WAIVES ANY OBJECTION IT
MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT OR THAT ANY SUCH COURT IS AN INCONVENIENT FORUM. THE
BORROWER AGREES THAT SERVICE OF PROCESS UPON IT MAY BE MADE BY CERTIFIED OR
REGISTERED MAIL, RETURN RECEIPT REQUESTED, AT ITS ADDRESS SPECIFIED BELOW.
NOTHING HEREIN OR IN ANY OF THE OTHER LOAN DOCUMENTS SHALL AFFECT THE RIGHT OF
THE BANK TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT
THE RIGHT OF THE BANK TO BRING ANY ACTION OR PROCEEDING AGAINST THE BORROWER OR
WITH RESPECT TO ANY OF ITS PROPERTY IN COURTS IN OTHER JURISDICTIONS OR VENUES.
THIS WRITTEN AMENDMENT AND THE OTHER LOAN DOCUMENTS CONSTITUTE A "LOAN
AGREEMENT" AS DEFINED IN SECTION 26.02(a) OF THE TEXAS BUSINESS & COMMERCE
CODE, AND REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND 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.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed effective as of the Effective Date.
BORROWER: TANDY BRANDS ACCESSORIES, INC.
By: /s/ BRUCE COLE
-----------------------------------------------------------
Name: Bruce Cole
-----------------------------------------------------------
Title: Chief Financial Officer & Vice President
-----------------------------------------------------------
Address for mail delivery:
Tandy Brands Accessories, Inc.
690 East Lamar, Suite 200
Arlington, Texas 76011
Attention: Bruce Cole
Telecopy No: (817) 548-1144
BANK: TEXAS COMMERCE BANK NATIONAL ASSOCIATION
By: /s/ B.B. WUTHRICH
-----------------------------------------------------------
Name: B. B. Wuthrich
-----------------------------------------------------------
Title: Vice President
-----------------------------------------------------------
Address for mail delivery:
201 Main Street
Fort Worth, Texas 76102
Attention: Buddy Wuthrich, S.V.P.
Telecopy No: (817) 878-7591
Page 5 of 5 Pages
35
EXHIBIT B
Date
Texas Commerce Bank National Association
201 Main Street
Fort Worth, Texas 76102
Attention: Buddy Wuthrich
Re: Notice of Borrowing under Amended and Restated Credit Agreement
Ladies and Gentlemen:
Pursuant to that certain Amended and Restated Revolving Credit
Agreement dated as of June 30, 1994, as amended from time to time, (the "Credit
Agreement" or "Agreement"; the defined terms herein being used herein as
therein defined) by and between Tandy Brands Accessories, Inc., a Delaware
corporation (the "Borrower") and the Bank, the Borrower hereby:
1. Gives you notice pursuant to Section 2 of the Agreement and
pursuant to the Note that the Borrower hereby requests a Loan under the Note
which is subject to the Agreement, and in that connection sets forth below the
information relating to such Loan ("the Proposed Loan") as required by the
Note:
(i) The Borrowing Date of the Proposed Loan is __________
19_;
(ii) The type of the Proposed Loan is (check one):
_______ Alternate Base Rate Loan
_______ CD Rate Loan
_______ Eurodollar Loan
_______ Negotiated Rate Loan
(iii) The Interest Period of the Proposed Loan is ________;
(iv) The principal amount of the Proposed Loan is $_______
and such amount, together with the sum of (i) the aggregate principal
amount of all outstanding Loans, and (ii) the aggregate outstanding
L/C Obligations, does not exceed the amount of the Commitment;
(v) The account of the Borrower into which the proceeds
of the Proposed Loan should be deposited is: _________________________.
2. Certifies that (a) no Default has occurred and is continuing
or will result from the making of such Proposed Loan, and (b) all
representations and warranties of the Borrower contained in Section 5 of the
Agreement are true and correct as of the date hereof (other than those of such
representations and warranties which speak to a date on or before the date
hereof) to the best of our knowledge, with the same effect as if made on such
date.
Very truly yours,
TANDY BRANDS ACCESSORIES, INC.
By: /s/ BRUCE COLE
--------------------------------
Name: Bruce Cole
--------------------------------
Title: Chief Financial Officer &
Vice President
--------------------------------
EXHIBIT B Page 1 of 1
36
SCHEDULE I
SUBSIDIARIES
Name and Address Percentage
of Subsidiaries State of Organization Ownership
- ---------------- --------------------- ---------
TBA Acquisition, Inc. Delaware _________%
- -----------------------
- -----------------------
TBAC - _________%
Prince Gardner, Inc. -------------
- -----------------------
- -----------------------
TBAC-AIS _________%
- ----------------------- -------------
- -----------------------
SCHEDULE I Page 1 of 1
37
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment") dated effective as
of April 30, 1996 (the "Effective Date"), is by and between TANDY BRANDS
ACCESSORIES, INC., a Delaware corporation, ("Borrower"), and TEXAS COMMERCE
BANK NATIONAL ASSOCIATION, a national banking association whose principal
office is located in Houston, Texas (the "Bank").
PRELIMINARY STATEMENT
The Bank and the Borrower have entered into an Amended and Restated Revolving
Credit Agreement dated as of June 30,1994 amended pursuant to a First Amendment
to Credit Agreement dated effective as of April 30, 1995 (the "Credit
Agreement"). The "Agreement", as used in the Credit Agreement shall also refer
to the Credit Agreement as amended by this Amendment. All capitalized terms
defined in the Credit Agreement and not otherwise defined herein shall have the
same meanings herein as in the Credit Agreement. The Bank and the Borrower have
agreed to amend the Credit Agreement to the extent set forth herein, and in
order to, to, among other things, renew, modify and extend the Commitment to
Borrower for the issuance of letters of credit and money borrowings for the
purpose of financing and supporting the general corporate purposes, including,
without limitation, the working capital, the letters of credit needs and
acquisition financing and treasury stock purchase requirements of the Borrower.
NOW THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
the parties hereto, the Bank and the Borrower hereby agree as follows:
Section 1. Section 1.1 of the Credit Agreement entitled, "Definitions" is
amended by substituting the following for the definition of Termination Date:
"Termination Date" shall mean the earlier to occur of: (i) April 30,
1998; or (ii) &at date as specified by the Bank pursuant to Section 10
hereof."
Section 2, Section 2.1 of the Credit Agreement entitled, "Note and Terms of
Commitment" is amended by substituting the following for Section 2.1 of the
Credit Agreement:
"2.1 Note and Terms of Commitment. Subject to the terms and conditions
hereof, the Bank agrees to make advances or loans to Borrower from
time to time before the Termination Date, not to exceed at. any one
time outstanding the amount of the Commitment. Advances shall take the
form of Loans under the Note or issuances of Letters of Credit by
Bank. The Loan shall be evidenced by, and shall bear interest and be
payable as provided in the Note executed by Borrower dated as of April
30, 1996 and delivered to Bank which is given in renewal, extension
and modification of that certain promissory note dated April 30, 1995
in the principal amount of $20,000,000.00 (including all prior notes
of which said note represents a renewal, extension, modification,
increase, substitution, rearrangement or replacement thereof, the
"Renewed Note"). Each Loan shall be in an amount not less than that
amount provided for in the Note. Borrower shall have the right to
borrow, repay and reborrow under the Note provided that at no time
shall the sum of the aggregate amount outstanding of (i) Loans, and
(ii) L/C Obligations (as defined in Section 3) exceed the amount of
the Commitment"
Section 3. Section 9.8 of t the Credit Agreement entitled, "Funded Indebtedness
to EBITDA Ratio" is amended by substituting the following for Section 9.8 of
the Credit Agreement
"Permit the ratio of Borrower's Funded Indebtedness to EBITDA for the
trailing four (4) quarters to be greater than 2.75 to 1.0 at any time
during the term of this Agreement, but tested as of the end of each
fiscal quarter beginning June 30, 1996."
Section 4. The Borrower hereby represents and warrants to the Bank that after
giving effect to the execution and delivery of this Amendment: (a) the
representations and warranties set forth in the Credit Agreement are true and
correct on the date hereof as though made on and as of such date; and (b) no
Event of Default, or event which with passage of time, the giving of notice or
both would become an Event of Default, has occurred and is continuing as of the
date hereof.
1
38
Second Amendment to credit Agreement
TANDY BRANDS ACCESSORIES, INC.
April 30, 1996
Section 5. This Amendment shall become effective as of the Effective Date upon
its execution and delivery by each of the parties named in the signature lines
below, and the "Agreement" as used in the Credit Agreement shall also refer to
the Credit Agreement as amended by this Amendment.
Section 6. The Borrower further acknowledges that each of the other Loan
Documents is in all other respects ratified and confirmed, and all of the
rights, powers and privileges created thereby or thereunder are ratified,
extended, carried forward and remain in full force and effect except as the
Credit Agreement as amended by this Amendment.
Section 7. This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed an original and all of which taken together shall
constitute but one and the same agreement.
Section 8. This Amendment shall be included within the definition of "Loan
Documents" as used in the Agreement.
Section 9. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF TEXAS AND THE UNITED STATES OF AMERICA. THE BORROWER
AND THE BANK AGREE THAT THE COUNTY IN WHICH BANK'S PRINCIPAL OFFICE IS LOCATED
IN TEXAS IS PROPER VENUE FOR ANY ACTION OR PROCEEDING BROUGHT BY THE BORROWER
OR THE BANK, WHETHER IN CONTRACT, TORT, OR OTHERWISE. ANY ACTION OR PROCEEDING
AGAINST THE BORROWER MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT IN SUCH
COUNTY. THE BORROWER HEREBY IRREVOCABLY (A) SUBMITS TO THE NON EXCLUSIVE
JURISDICTION OF SUCH COURTS, AND (B) WAIVES ANY OBJECTION IT MAY NOW OR
HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT OR THAT ANY SUCH COURT IS AN INCONVENIENT FORUM. THE BORROWER AGREES
THAT SERVICE OF PROCESS UPON IT MAY BE MADE BY CERTIFIED OR REGISTERED MAIL,
RETURN RECEIPT REQUESTED, AT ITS ADDRESS SPECIFIED BELOW. NOTHING HEREIN OR IN
ANY OF THE OTHER LOAN DOCUMENTS SHALL AFFECT THE RIGHT OF THE BANK TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE
BANK TO BRING ANY ACTION OR PROCEEDING AGAINST THE BORROWER OR WITH RESPECT TO
ANY OF ITS PROPERTY IN COURTS IN OTHER JURISDICTIONS OR VENUES.
THIS WRITTEN AMENDMENT AND THE OTHER LOAN DOCUMENTS CONSTITUTE A "LOAN
AGREEMENT" AS DEFINED IN SECTION 26.02(a) OF THE TEXAS BUSINESS & COMMERCE
CODE, AND REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND 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.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed effective as of the Effective Date.
BORROWER: TANDY BRANDS ACCESSORIES, INC.
By: /s/ BRUCE COLE
-------------------------------------------------------------------
Name: Bruce Cole
-------------------------------------------------------------------
Title: Chief Financial Officer & Vice President
-------------------------------------------------------------------
2
39
Second Amendment to credit Agreement
TANDY BRANDS ACCESSORIES, INC.
April 30, 1996
Address for mail delivery:
Tandy Brands Accessories, Inc.
690 East Lamar, Suite 200
Arlington, Texas 76011
Attention: Bruce Cole
Telecopy No: (817) 548-1144
BANK: TEXAS BANK NATIONAL ASSOCIATION
By: /s/ B. B. WUTHRICH
-------------------------------------------------------------------
Title: Vice President
-------------------------------------------------------------------
Name: B. B. Wuthrich
-------------------------------------------------------------------
Address for mail delivery:
201 Main Street
Fort Worth, Texas 76102
Attention: Buddy Wuthrich, S.V.P.
Telecopy No: (817) 878-7591
3
40
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment") dated effective as
of April 30, 1997 (the "Effective Date"), is by and between TANDY BRANDS
ACCESSORIES, INC., a Delaware corporation, ("Borrower"), and TEXAS COMMERCE
BANK NATIONAL ASSOCIATION, a national banking association whose principal
office is located in Houston, Texas (the "Bank").
PRELIMINARY STATEMENT
The Bank and the Borrower have entered into an Amended and Restated Revolving
Credit Agreement dated as of June 30, 1994 which has been amended by a First
Amendment dated as of April 30, 1995 and a Second Amendment dated as of April
30, 1996 (the "Credit Agreement"). The "Agreement", as used in the Credit
Agreement, shall also refer to the Credit Agreement as amended by this
Amendment. All capitalized terms defined in the Credit Agreement and not
otherwise defined herein shall have the same meanings herein as in the Credit
Agreement. The Bank and the Borrower have agreed to amend the Credit Agreement
to the extent set forth herein, and in order to, among other things, renew,
modify and extend the Commitment to Borrower for the issuance of letters of
credit and money borrowings for the purpose of financing and supporting the
general corporate purposes, including, without limitation, the working capital,
the letters of credit needs and acquisition financing and treasury stock
purchase requirements of the Borrower.
NOW THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
the parties hereto, the Bank and the Borrower hereby agree as follows:
Section 1. Section 1.1 of the Credit Agreement entitled, "Definitions" is
amended by substituting the following for the definition of Termination Date:
"Termination Date" shall mean the earlier to occur of: (i) April 30,
1999; or (ii) that date as specified by the Bank pursuant to Section
10 hereof."
Section 2. Section 2.1 of the Credit Agreement entitled, "Note and Terms of
Commitment" is amended by substituting the following for Section 2.1 of the
Credit Agreement:
"2.1 Note and Terms of Commitment Subject to the terms and conditions
hereof, the Bank agrees to make advances or loans to Borrower from
time to time before the Termination Date, not to exceed at any one
time outstanding the amount of the Commitment. Advances shall take the
form of Loans under the Note or issuances of Letters of Credit by
Bank. The Loans shall be evidenced by, and shall bear interest and be
payable as provided in the Note executed by Borrower dated as of April
30, 1997 and delivered to Bank, which is given in renewal, extension
and modification of that certain promissory note dated April 30, 1996
in the principal amount of $20,000,000.00 (including all prior notes
of which said note represents a renewal, extension, modification,
increase, substitution, rearrangement or replacement thereof, the
"Renewed Note"). Each Loan shall be in an amount not less than that
amount provided for in the Note. Borrower shall have the right to
borrow, repay and reborrow under the Note provided that at no time
shall the sum of the aggregate amount outstanding of: (i) Loans, and
(ii) L/C Obligations (as defined in Section 3) exceed the amount of
the Commitment."
Section 3. Section 9.8 of the Credit Agreement entitled, "Funded Indebtedness
to EBITDA Ratio" is amended by substituting the following for Section 9.8 of
the Credit Agreement:
"Permit the ratio of Borrower's Funded Indebtedness to EBITDA for the
trailing four (4) quarters to be greater than 3.0 to 1.0 at any time
during the term of this Agreement, but tested as of the end of each
fiscal quarter beginning June 30, 1997."
Section 4. Exhibit B of the Credit Agreement is replaced by Exhibit B attached
to this Amendment.
Page 1 of 3 Pages
41
Third Amendment to credit Agreement
TANDY BRANDS ACCESSORIES, INC.
April 30, 1997
Section 5. The Borrower hereby represents and warrants to the Bank that after
giving effect to the execution and delivery of this Amendment: (a) the
representations and warranties set forth in the Credit Agreement are true and
correct on the date hereof as though made on and as of such date; and (b) no
Event of Default, or event which with passage of time, the giving of notice or
both would become an Event of Default, has occurred and is continuing as of the
date hereof.
Section 6. This Amendment shall become effective as of the Effective Date upon
its execution and delivery by each of the parties named in the signature lines
below, and the "Agreement" as used in the Credit Agreement shall also refer to
the Credit Agreement as amended by this Amendment.
Section 7. The Borrower further acknowledges that each of the other Loan
Documents is in all other respects ratified and confirmed, and all of the
rights, powers and privileges created thereby or thereunder are ratified,
extended, carried forward and remain in full force and effect except as the
Credit Agreement is amended by this Amendment.
Section 8. This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed an original and all of which taken together shall
constitute but one and the same agreement.
Section 9. This Amendment shall be included within the definition of "Loan
Documents" as used in the Agreement.
Section 10. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF TEXAS AND THE UNITED STATES OF AMERICA. THE
BORROWER AND THE BANK AGREE THAT THE COUNTY IN WHICH BANK'S PRINCIPAL OFFICE IS
LOCATED IN TEXAS IS PROPER VENUE FOR ANY ACTION OR PROCEEDING BROUGHT BY THE
BORROWER OR THE BANK, WHETHER IN CONTRACT, TORT, OR OTHERWISE. ANY ACTION OR
PROCEEDING AGAINST THE BORROWER MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT IN
SUCH COUNTY. THE BORROWER HEREBY IRREVOCABLY (A) SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF SUCH COURTS, AND (B) WAIVES ANY OBJECTION IT MAY NOW OR
HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT OR THAT ANY SUCH COURT IS AN INCONVENIENT FORUM. THE BORROWER AGREES
THAT SERVICE OF PROCESS UPON IT MAY BE MADE BY CERTIFIED OR REGISTERED MAIL,
RETURN RECEIPT REQUESTED, AT ITS ADDRESS SPECIFIED BELOW. NOTHING HEREIN OR IN
ANY OF THE OTHER LOAN DOCUMENTS SHALL AFFECT THE RIGHT OF THE BANK TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE
BANK TO BRING ANY ACTION OR PROCEEDING AGAINST THE BORROWER OR WITH RESPECT TO
ANY OF ITS PROPERTY IN COURTS IN OTHER JURISDICTIONS OR VENUES.
THIS WRITTEN AMENDMENT AND THE OTHER LOAN DOCUMENTS CONSTITUTE A "LOAN
AGREEMENT" AS DEFINED IN SECTION 26.02(a) OF THE TEXAS BUSINESS & COMMERCE
CODE, AND REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND 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.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed effective as of the Effective Date.
Page 2 of 3 Pages
42
Third Amendment to credit Agreement
TANDY BRANDS ACCESSORIES, INC.
April 30, 1997
BORROWER: TANDY BRANDS ACCESSORIES, INC.
By: /s/ J. S. B. JENKINS
---------------------------------------------------------------------
Name:
---------------------------------------------------------------------
Title:
---------------------------------------------------------------------
Address for mail delivery:
Tandy Brands Accessories, Inc.
690 East Lamar, Suite 200
Arlington, Texas 76011
Attention: Stan Ninemire
Telecopy No: (817) 548-1144
BANK: TEXAS COMMERCE BANK NATIONAL ASSOCIATION
By: /s/ JERRY S. PETREY
---------------------------------------------------------------------
Name: Jerry Petrey
Title: Vice President
Address for mail delivery:
500 East Border Street
Arlington, Texas 76010
Attention: Jerry Petrey
Telecopy No: (817) 856-3183
Page 3 of 3 Pages
43
EXHIBIT B
Date
Texas Commerce Bank National Association
500 East Border Street
P.O. Box 250
Arlington, Texas 76010
Attention: Jerry Petrey
Re: Notice of Borrowing under Amended and Restated Credit Agreement
Gentlemen:
Pursuant to that certain Amended and Restated Revolving Credit
Agreement dated as of June 30, 1994, as amended from time to time, (the
"Agreement", capitalized terms used in this notice shall have the meanings
assigned to them in the Agreement) by and between Tandy Brands Accessories,
Inc., a Delaware corporation (the "Borrower") and the Bank, the Borrower
hereby:
1. Gives you notice pursuant to the Agreement and the Note that
the Borrower hereby requests a Loan; and in that connection sets forth below
the information relating to such Loan ("the Proposed Loan"):
(i) The Borrowing Date of the Proposed Loan is _________,
19__;
(ii) The type of the Proposed Loan is (check one):
_____ Alternate Base Rate Loan
_____ Libor Loan
_____ Negotiated Rate Loan
(iii) The Interest Period of the Proposed Loan is _________.
(iv) The principal amount of the Proposed Loan is $______,
and such amount, together with the sum of (i) the aggregate principal
amount of all outstanding Loans, and (ii) the aggregate outstanding L/C
Obligations, does not exceed the amount of the Commitment;
(v) The account of the Borrower into which the proceeds of
the Proposed Loan should be deposited is: ___________________________.
2. Certifies that (a) no Default has occurred and is continuing
or will result from the making of such Proposed Loan, and (b) all
representations and warranties of the Borrower contained in Section 7 of the
Agreement are true and correct as of the date hereof (other than those of such
representations and warranties which speak to a date on or before the date
hereof) to the best of our knowledge, with the same effect as if made on such
date.
Very truly yours,
TANDY BRANDS ACCESSORIES, INC.
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
EXHIBIT B Page 1 of 1
44
PROMISSORY NOTE
FOR LOANS
(this "Note")
U.S. $20,000,000.00 April 30, 1997
FOR VALUE RECEIVED, TANDY BRANDS ACCESSORIES, INC. (the "Maker"), a
Delaware corporation, promises to pay to the order of TEXAS COMMERCE BANK
NATIONAL ASSOCIATION (the "Bank") on or before April 30, 1999, (the
"Termination Date"), at its banking house at 712 Main Street Houston, Texas
77002 or at such other location as the Bank may designate, in lawful money of
the United States of America, the lesser of: (i) the principal sum of TWENTY
MILLION AND NO/100THS (U.S. $20,000,000.00) (the "Commitment"); or (ii) the
aggregate unpaid principal amount of all loans made by the Bank hereunder (each
such loan being a "Loan"), which may be outstanding on the Termination Date.
Each Loan shall be due and payable on the maturity date agreed to by the Bank
and the Maker with respect to such Loan (the "Maturity Date"). In no event
shall any Maturity Date fall on a date after the Termination Date. SUBJECT TO
THE LIMITATIONS SET FORTH HEREIN, MAKER MAY BORROW, REPAY AND REBORROW
HEREUNDER AND THERE IS NO LIMITATION ON THE NUMBER OF LOANS MADE HEREUNDER SO
LONG AS THE TOTAL UNPAID PRINCIPAL AMOUNT AT ANYTIME OUTSTANDING DOES NOT
EXCEED THE COMMITMENT.
The Loans may be either Negotiated Rate Loans, Alternate Base Rate
Loans or Libor Loans.
The Maker shall pay interest on each Alternate Base Rate Loan for the
Interest Period with respect thereto at a rate per annum equal to the lesser
of: (i) the Alternate Base Rate in effect from time to time (the "Effective
Alternate Base Rate"); or (ii) the Highest Lawful Rate, which interest shall be
due and payable on the last day of each calendar quarter and on the last day of
each Interest Period.
The Maker shall pay interest on each Negotiated Rate Loan for the
Interest Period with respect thereto on the unpaid principal amount thereof at
a rate per annum equal to the Negotiated Rate for such Interest Period, which
interest shall be due and payable on the last day of each such Interest Period,
and if such Interest Period has a duration exceeding ninety days, on each
ninetieth day during such Interest Period.
The Maker shall pay interest on each Libor Loan for the Interest
Period with respect thereto on the unpaid principal amount thereof at a rate
per annum equal to the lesser of: (i) the Adjusted Libor Rate plus three-
quarters of one percent (3/4%) (the "Effective Libor Rate"); or (ii) the
Highest Lawful Rate, which interest shall be due and payable on the last day of
each such Interest Period, and if such Interest Period has a duration exceeding
three months, on the day that is three months after the commencement of such
Interest Period.
Any amount not paid when due with respect to principal (whether at
Maturity Date, by acceleration or otherwise), costs, expenses, and to the
extent permitted by applicable law, interest, shall bear interest at a rate per
annum equal to the lesser of: (i) the Alternate Base Rate in effect from time
to time plus three percent (3%); or (ii) the Highest Lawful Rate, which
interest shall be due and payable on demand. The principal of any Loan shall
be deemed past due if not paid on or before the Maturity Date or any earlier
maturity date resulting from acceleration in accordance with the terms of this
Note or as provided by law or otherwise. Interest accrued and unpaid with
respect to any Loan shall be deemed past due if not paid on or before the
applicable interest payment due date as provided for herein.
Notwithstanding the foregoing, if at any time the effective rate of
interest which would otherwise be payable on any Loan evidenced by this Note
exceeds the Highest Lawful Rate, the rate of interest to accrue on the unpaid
principal balance of such Loan during all such times shall be limited to the
Highest Lawful Rate, but any subsequent reductions in such interest rate shall
not become effective to reduce such interest rate below the Highest Lawful Rate
until the total amount of interest accrued on the unpaid principal balance of
such Loan equals the total amount of interest which would have accrued if the
Effective Alternate Base Rate, Negotiated Rate, or Effective Libor Rate
whichever is applicable, had at all times been in effect.
Each Alternate Base Rate Loan, Negotiated Rate Loan or Libor Loan
shall be in an amount not less than $250,000.00 and an integral multiple of
$100,000.00. Interest with respect to Alternate Base Rate Loans shall be
calculated on the basis of a 365 day year or 366 day year, as the case may be,
for the actual number of days elapsed. Interest with respect to Negotiated
Rate Loans and Libor Loans shall be calculated on the basis of a 360 day year
for the actual days elapsed, unless such calculation would result in a usurious
interest rate, in which case such interest shall be calculated on the basis of
a 365 day or 366 day year, as the case may be.
The following terms shall have the respective meanings indicated:
"Adjusted Libor Rate" means a per annum interest rate determined by
Bank by dividing: (i) the Libor Rate by (ii) Statutory Reserves provided that
Statutory Reserves is greater than zero, otherwise Adjusted Libor Rate means a
per annum interest rate equal to the Libor Rate. "Libor Rate" means with
respect to any Libor Loan for any Interest Period the interest rate determined
by Bank by reference to the British Bankers' Association Interest Settlement
Rates (as set forth by any service selected by Bank which has been nominated by
the British Bankers' Association as an authorized information vender for the
purpose of displaying such rates including but not limited to Bloomberg,
Reuters or Telerate) to be the rate at approximately 11:00 a.m. London time,
two Business Days prior to the commencement of such Interest Period for dollar
deposits in an amount comparable to such Libor Loan with a maturity comparable
to such Interest Period.
"Alternate Base Rate" shall mean for any day, a rate per annum
(rounded upwards, if necessary, to the next higher 1/16 of 1%) equal to the
greatest of: (a) the Prime Rate in effect on such day; (b) the Base CD Rate in
effect on
Page 1 of 6 Pages
Signed for Identification
By: /s/ JSP
---------------------
45
Promissory Note
Tandy Brands Accessories, Inc.
April 30, 1997
such day plus 1%; and (c) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1%. For purposes hereof, "Prime Rate" shall mean the rate of
interest per annum determined from time to time by the Bank as its prime rate
in effect at its principal office in Houston, Texas; each change in the Prime
Rate shall be effective on the date such change is determined; without special
notice to the Maker or any other person or entity. THE PRIME RATE IS A
REFERENCE RATE AND DOES NOT NECESSARILY REPRESENT THE LOWEST OR BEST RATE
ACTUALLY CHARGED TO ANY CUSTOMER AND ANY STATEMENT, REPRESENTATION OR WARRANTY
IN THAT REGARD OR TO THAT EFFECT IS EXPRESSLY DISCLAIMED BY BANK. BANK MAY
MAKE LOANS AT RATES OF INTEREST AT, ABOVE OR BELOW THE PRIME RATE. "Base CD
Rate" shall mean an interest rate per annum determined by the Bank to be the
sum of: (a) the rate per annum obtained by dividing: (i)the Three-Month
Secondary CD Rate by (ii) Statutory Reserves; plus (b) the Assessment Rate.
"Three-Month Secondary CD Rate" shall mean, for any day, the secondary market
rate for three-month certificates of deposit reported as being in effect on
such day (or, if such day shall not be a Business Day, the next preceding
Business Day) by the Board through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current practices
of the Board, be published in Federal Reserve Statistical Release H.15(519)
during the week following such day), or, if such rate shall not be so reported
on such day or such next preceding Business Day, the average of the Secondary
market quotations for three-month certificates of deposit of major money center
banks in New York City received at approximately 10:00 a.m., New York City
time, on such day (or, if such day shall not be a Business Day, on the next
preceding Business Day) by the Bank from three New York City negotiable
certificate of deposit dealers of recognized standing selected by Bank.
"Federal Funds Effective Rate" shall mean, for any day, the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of
the quotations for the day of such transactions received by the Bank from three
Federal funds brokers of recognized standing selected by Bank. If for any
reason the Bank shall have determined (which determination shall be conclusive
absent manifest error) that it is unable to ascertain the Base CD Rate or the
Federal Funds Effective Rate, or both, for any reason, including the inability
or failure of the Bank to obtain sufficient quotations in accordance with the
terms thereof, the Alternate Base Rate shall be determined without regard to
clause (b) or (c), or both, of the first sentence of this definition, as
appropriate, until the circumstances giving rise to such inability no longer
exist. Any change in the Alternate Base Rate due to a change in the Prime
Rate, the Three-Month Secondary CD Rate or the Federal Funds Effective Rate
shall be effective on the effective date of such change in the Prime Rate, the
Three-Month Secondary CD Rate or the Federal Funds Effective Rate,
respectively.
"Alternate Base Rate Loan" means a Loan which bears interest at a
rate determined by reference to the Alternate Base Rate.
"Assessment Rate" means, for any date, the annual rate (rounded
upwards, if not already a whole multiple of 1/16 of 1%, to the next higher 1/16
of 1%) most recently estimated by the Bank as the then current net annual
assessment rate that will be employed in determining amounts payable by the
Bank to the Federal Deposit Insurance Corporation for insurance by the
Corporation of time deposits made in dollars at its domestic offices.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States.
"Borrowing Date" means any Business Day on which the Bank shall make
a Loan hereunder.
"Business Day" means a day: (i) on which the Bank and commercial
banks in New York City are generally open for business; and (ii) with respect
to Libor Loans, on which dealings in United States Dollar deposits are carried
out in the London interbank market.
"Credit Agreement" shall mean that certain Amended and Restated
Credit Agreement dated June 30, 1994 by and between Maker and Bank as amended
by a First Amendment dated April 30, 1995, a Second Amendment dated April 30,
1996, a Third Amendment dated April 30, 1997 and as it may be amended, restated
or supplemented from time to time.
"Highest Lawful Rate" as used herein shall mean the maximum
nonusurious interest rate permitted from time to time to be contracted for,
taken, reserved, charged or received on any Loan under applicable federal or
Texas laws, whichever permits the higher lawful rate; provided, however, that
in the event: (i) such maximum nonusurious interest rate shall, at any time or
times during the term of a Loan evidenced hereby, be reduced to a rate less
than the maximum nonusurious rate in effect on the date of such Loan; and (ii)
applicable law permits contracting for, taking, reserving, charging, and
receiving on such Loan throughout the duration thereof the maximum nonusurious
rate in effect on the date such Loan was made, then and at all such times the
Highest Lawful Rate shall be the maximum nonusurious rate permitted to be
contracted for, taken, reserved, charged or received on such Loan under
applicable law in effect on the date of such Loan. At all such times, if any,
as Texas law shall establish the Highest Lawful Rate, the Highest Lawful Rate
shall be the "indicated rate ceiling" (as defined in Tex. Rev. Civ. Stat. art.
5069-1.04) from time to time in effect.
"Interest Period" means, with respect to any Loan, the period
commencing on the Borrowing Date and ending on the Maturity Date, consistent
with the following provisions. The duration of each Interest Period shall be:
(a) in the case of an Alternate Base Rate Loan, a period of up to 90
days; and
Page 2 of 6 Pages
Signed for Identification
By: /s/ JSP
---------------------
46
Promissory Note
Tandy Brands Accessories, Inc.
April 30, 1997
(b) in the case of a Negotiated Rate Loan, a period of less
than 90 days; and
(c) in the case of a Libor Loan, 1, 2, 3 or 6 months;
in each case as selected by the Maker and agreed to by the Bank.
The Maker's choice of Interest Period is also subject to the
following limitations:
(i) No Interest Period shall end on a date after the
Termination Date; and
(ii) If the last day of an Interest Period would be a
day other than a Business Day, the Interest Period
shall end on the next succeeding Business Day
(unless the Interest Period relates to a Libor Loan
and the next succeeding Business Day is in a
different calendar month than the day on which the
Interest Period would otherwise end, in which case
the Interest Period shall end on the next preceding
Business Day).
"Libor Loan" means a Loan which bears interest at a rate determined
by reference to the Adjusted Libor Rate.
"Negotiated Rate" means, with respect to each Negotiated Rate Loan
hereunder, the rate of interest per annum quoted by the Bank to the Maker at
the time of the borrowing request with respect to such Negotiated Rate Loan as
the rate such Negotiated Rate Loan shall bear for the requested Interest
Period.
"Negotiated Rate Loan" means a Loan which bears interest at a rate
determined by reference to the Negotiated Rate.
"Statutory Reserves" shall mean the difference (expressed as a
decimal) of the number one minus the aggregate of the maximum reserve
percentages (including, without limitation, any marginal, special, emergency,
or supplemental reserves) expressed as a decimal established by the Board and
any other banking authority to which the Bank is subject for Eurocurrency
Liabilities (as defined in Regulation D of the Board). Such reserve
percentages shall include, without limitation, those imposed under such
Regulation D. Libor Loans shall be deemed to constitute Eurocurrency
Liabilities and as such shall be deemed to be subject to such reserve
requirements without benefit of or credit for proration, exceptions or offsets
which may be available from time to time to any Bank under such Regulation D.
Statutory Reserves shall be adjusted automatically on and as of the effective
date of any change in any reserve percentage.
The unpaid principal balance of this Note at any time shall
be the total of all Loans made by the Bank to or for the benefit of the Maker,
less the amount of all payments of principal made hereon by or for the account
of the Maker. The Bank's records shall serve as presumptive evidence of any
and all amounts outstanding hereunder.
Any Loan which the Bank agrees to make hereunder shall be
made on the Maker's irrevocable notice, given not later than 10:00 A.M.
(Houston time) on, in the case of Libor Loans, the third Business Day prior to
the proposed Borrowing Date, or in the case of Alternate Base Rate Loans or
Negotiated Rate Loans, the first Business Day prior to the proposed Borrowing
Date, from the Maker to the Bank. Each such notice of a requested borrowing (a
"Notice of Requested Borrowing") under this paragraph may be oral or written,
and shall specify: (i) the requested amount of such Loan; (ii) the proposed
Borrowing Date; (iii) whether the requested Loan is to be an Alternate Base
Rate Loan, Negotiated Rate Loan, or Libor Loan; and (iv) the Interest Period
for such Loan. If any Notice of Requested Borrowing shall be oral, the Maker
shall deliver to the Bank prior to the Borrowing Date a confirmatory written
Notice of Requested Borrowing, substantially in the form of Exhibit B attached
to the Credit Agreement.
If at any time the Bank determines in good faith (which determination
shall be conclusive) that any change in any applicable law, rule or regulation
or in the interpretation, application or administration thereof makes it
unlawful, or any central bank or other governmental authority asserts that it
is unlawful, for the Bank or its foreign branch or branches to maintain or fund
any Loan by means of dollar deposits obtained in the London interbank market
(any of the above being described as a "Libor Event"), then, at the option of
the Bank, the aggregate principal amount of the Banks Libor Loans then
outstanding, which Loans are directly affected by such Eurodollar Event shall
be prepaid by the Maker. Upon the occurrence of any Libor Event, and at any
time thereafter so long as such Eurodollar Event shall continue, the Bank may
exercise its aforesaid option by giving written notice thereof to the Maker.
Any prepayment of any Libor Loan which is required under the
preceding paragraph shall be made, together with accrued and unpaid interest
and all other amounts payable to the Bank under this Note with respect to such
prepaid Libor Loan on the date stated in the notice to the Maker referred to
above, which date ("required prepayment date") shall be not less than 15 days
from the date of such notice. If any Libor Loan is required to be prepaid
under the preceding paragraph, the Bank shall make on the required prepayment
date an Alternate Base Rate Loan in the same principal amount and with an
Interest Period ending on the same day as the Libor Loan so prepaid.
If any domestic or foreign law, treaty, rule or regulation (whether
now in effect or hereinafter enacted or promulgated, including Regulation D of
the Board of Governors of the Federal Reserve System) or any interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof (whether or not having the force of
law):
Page 3 of 6 Pages
Signed for Identification
By: /s/ JSP
---------------------
47
Promissory Note
Tandy Brands Accessories, Inc.
April 30, 1997
(a) changes, imposes, modifies, applies or deems applicable
any reserve, special deposit or similar requirements in
respect of any such Loan or against assets of, deposits
with or for the account of, or credit extended or
committed by, the Bank; or
(b) imposes on the Bank or the interbank eurocurrency deposit
and transfer market or the market for domestic bank
certificates or deposit any other condition affecting any
such Loan;
and the result of any of the foregoing is to impose a cost to the Bank of
agreeing to make, funding or maintaining any such Loan or to reduce the amount
of any sum receivable by the Bank in respect of any such Loan, then the Bank
may notify the Maker in writing of the happening of such event and Maker shall
upon demand pay to the Bank such additional amounts as will compensate the Bank
for such costs. Without prejudice to the survival of any other agreement of
the Maker under this Note, the obligations of the Maker under this paragraph
shall survive the termination of this Note.
The Maker may on any Business Day prepay the outstanding principal
amount of any Alternate Base Rate Loan, in whole or in part, together with
accrued interest to the date of such prepayment on the principal amount
prepaid. Partial prepayments shall be in an aggregate principal amount of
$50,000.00 or a greater integral multiple of $100,000.00. Except as specified
in this paragraph, the Maker shall have no right to prepay any Loan.
The Maker will indemnify the Bank against, and reimburse the Bank on
demand for, any loss, cost or expense incurred or sustained by the Bank
(including without limitation any loss, cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by the Bank
to fund or maintain Loans bearing interest at the Negotiated Rate or the
Adjusted Libor Rate) as a result of: (a) any payment or prepayment (whether
permitted by the Bank or required hereunder or otherwise) of all or a portion
of any Negotiated Rate Loan or Libor Loan on a day other than Maturity Date of
such Loan; (b) any payment or prepayment, whether required hereunder or
otherwise, of any Negotiated Rate Loan or Libor Loan made after the delivery of
a Notice of Requested Borrowing but before the applicable Borrowing Date if
such payment or prepayment prevents the proposed Loan from becoming fully
effective; or (c) the failure of any Negotiated Rate Loan or Libor Loan to be
made by the Bank due to any action or inaction of the Maker. For purposes of
this paragraph, funding losses arising by reason of liquidation or reemployment
of deposits or other funds acquired by the Bank to fund or maintain Loans
bearing interest at the Negotiated Rate or Adjusted Libor Rate shall be
calculated as the remainder obtained by subtracting: (i) the yield (reflecting
both stated interest rate and discount, if any) to maturity of obligations of
the United States Treasury in an amount equal or comparable to such Loan for
the period of time commencing on the date of the payment, prepayment or change
of rate as provided above and ending on the last day of the subject Interest
Period; from (ii) the interest payable at the Negotiated Rate or Adjusted Libor
Rate for the period commencing on the date of such payment, prepayment or
change of rate and ending on the last day of such Interest Period. Such
funding losses and other costs and expenses shall be calculated and billed by
the Bank and such bill shall, as to the costs incurred, be conclusive absent
manifest error.
If after the date of this Note, the Bank shall have determined that
the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by the Bank with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on the Bank's capital as a consequence of making any Loans hereunder to a level
below that which the Bank could have achieved but for such adoption, change or
compliance (taking into consideration the Bank's policies with respect to
capital adequacy) by an amount deemed by the Bank in good faith to be material,
then from time to time, the Maker shall pay to the Bank such additional amount
or amounts as will compensate the Bank for such reduction.
A certificate of the Bank setting forth such amount or amounts as
shall be necessary to compensate the Bank as specified in the immediately
preceding paragraphs above shall be delivered as soon as practicable to the
Maker and shall be conclusive and binding, absent manifest error. The Maker
shall pay the Bank the amount shown as due on any such certificate within 15
days after Bank delivers such certificate. In preparing such certificate, the
Bank may employ such assumptions and allocations of costs and expenses as it
shall in good faith deem reasonable and may use any reasonable averaging and
attribution method.
If any payment of interest or principal herein provided for is not
paid when due, or any other Default shall occur and be in existence under the
Credit Agreement, then the owner or holder of this Note may at its option, as
provided for in the Credit Agreement or any other Loan Document (i) declare the
unpaid principal balance of all Loans, all accrued and unpaid interest thereon
and all other amounts payable under this Note to be forthwith due and payable,
whereupon the Loans, all such interest and all such amounts shall become and be
forthwith due and payable in full, without presentment, demand, protest, notice
of intent to accelerate, notice of actual acceleration or further notice of any
kind, all of which are hereby expressly waived by the Maker; (ii) terminate
the Commitment; and (iii) exercise any and all other rights, powers and
remedies granted pursuant to any provision of any of the Loan Documents or
under any applicable law.
If default is made in the payment of this Note and it is placed in
the hands of an attorney for collection, or collected through probate or
bankruptcy proceedings, or if suit is brought on the same, the Maker agrees to
pay attorneys' fees and all costs and expenses.
Page 4 of 6 Pages
Signed for Identification
By: /s/ JSP
---------------------
48
Promissory Note
Tandy Brands Accessories, Inc.
April 30, 1997
This Note is issued by the Maker to evidence Loans outstanding from
time to time not to exceed in the aggregate the Commitment under a
$20,000,000.00 revolving line of credit extended by the Bank to the Maker
extended pursuant to the terms of the Credit Agreement. Capitalized terms used
in this Note but not defined in this Note shall have the meanings assigned to
them in the Credit Agreement. This Note is given in renewal, extension and
modification of the promissory note dated April 30, 1996, executed by Maker and
payable to the order of the Bank in the principal amount of $20,000,000.00.
The Maker warrants and represents to the Bank, and to all other
owners and/or holders of any indebtedness evidenced hereby, that all Loans
evidenced by this Note are for business, commercial, investment or other
similar purpose and not primarily for personal, family, household or
agricultural use, as such terms are used in Chapter One of the Texas Credit
Code, Tex. Rev. Civ. Stat. arts. 5069-1.01 et. seq.
The Maker warrants and represents to the Bank and to all other owners
or holders of this Note that no Loans shall be used for the purchase or
carrying of any "margin stock" within the meaning of Regulation "U" of the
Board of Governors of the Federal Reserve System, 12 C.F.R. Part 221, as in
effect on the date hereof.
Except as otherwise specified in this Note, the Maker and any and all
co-makers, endorsers, guarantors and sureties hereby severally waive grace,
presentment, demand, notice of default, notice of intent to accelerate, notice
of acceleration, and all other demands and notices of any nature or type
whatsoever, in connection with the delivery, acceptance, performance, default,
dishonor or enforcement of, or entry of judgment in connection with this Note,
and further waive the filing of suit hereon for the purpose of fixing
liability.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF TEXAS AND THE APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA. THE MAKER AND THE BANK AGREE THAT THE COUNTY IN WHICH BANK'S
PRINCIPAL OFFICE IS LOCATED IN TEXAS IS PROPER VENUE FOR ANY ACTION OR
PROCEEDING BROUGHT BY THE MAKER OR THE BANK, WHETHER IN CONTRACT, TORT, OR
OTHERWISE. ANY ACTION OR PROCEEDING AGAINST THE MAKER MAY BE BROUGHT IN ANY
STATE OR FEDERAL COURT IN SUCH COUNTY. THE MAKER HEREBY IRREVOCABLY (A)
SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURTS, AND (B) WAIVES ANY
OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT OR THAT ANY SUCH COURT IS AN INCONVENIENT
FORUM. THE MAKER AGREES THAT SERVICE OF PROCESS UPON IT MAY BE MADE BY
CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, AT ITS ADDRESS
SPECIFIED BELOW. NOTHING HEREIN OR IN ANY OF THE OTHER LOAN DOCUMENTS SHALL
AFFECT THE RIGHT OF THE BANK TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR SHALL LIMIT THE RIGHT OF THE BANK TO BRING ANY ACTION OR PROCEEDING
AGAINST THE MAKER OR WITH RESPECT TO ANY OF ITS PROPERTY IN COURTS IN OTHER
JURISDICTIONS OR VENUES.
The Maker and the Bank expressly agree, pursuant to Article 15.10(b)
of Chapter 15 ("Chapter 15") of the Texas Credit Code, that Chapter 15 shall
not apply to this Note or to any Loan and that this Note and all such Loans
shall not be governed by or subject to the provisions of Chapter 15 in any
manner whatsoever.
It is the intention of Maker and Bank to comply with usury laws in
force in the State of Texas and in the United States of America as applicable.
Anything in this Note to the contrary notwithstanding, the Maker shall never be
required to pay unearned interest on this Note and shall never be required to
pay interest on this Note at a rate in excess of the Highest Lawful Rate, and
if the effective rate of interest which would otherwise be payable under this
Note would exceed the Highest Lawful Rate, or if the holder of the Note shall
receive any unearned interest or shall receive monies that are deemed to
constitute interest which would increase the effective rate of interest payable
under this Note to a rate in excess of the Highest Lawful Rate, then: (i) the
amount of interest which would otherwise be payable under this Note shall be
reduced to the amount allowed under applicable law; and (ii) any unearned
interest paid by the Maker or any interest paid by the Maker in excess of the
Highest Lawful Rate shall, at the option of the holder of this Note, be either
refunded to the Maker or credited on the principal of this Note. It is further
agreed that, without limitation of the foregoing, all calculations of the rate
of interest contracted for, charged or received by the Bank or any holder of
this Note that are made for the purpose of determining whether such rate
exceeds the Highest Lawful Rate shall be made, to the extent permitted by usury
laws applicable to the Bank (now or hereafter enacted), by amortizing,
prorating and spreading in equal parts during the period of the full stated
term of the Loans evidenced by this Note all interest at any time contracted
for, charged or received by the Bank in connection therewith.
The Bank reserves the right in its sole discretion without notice to
Maker, to sell participations or assign its interest, or both in all or part of
the Loans, the Note, or the Commitment.
THIS NOTE AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND 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.
Page 5 of 6 Pages
Signed for Identification
By: /s/ JSP
---------------------
49
Promissory Note
Tandy Brands Accessories, Inc.
April 30, 1997
IN WITNESS WHEREOF, the Maker has executed this Note effective the day,
month and year first aforesaid.
MAKER: TANDY BRANDS ACCESSORIES, INC.
BY: /s/ J. S. B. JENKINS
---------------------------------------
Name: J. S. B. Jenkins
-------------------------------------
Title:
-------------------------------------
Acknowledged for purposes
of notice pursuant to the above
cited statute by:
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
By: /s/ JERRY S. PETREY
-----------------------------------
Name: Jerry Petrey
Title: Vice President
Page 6 of 6 Pages
Signed for Identification
By:
---------------------
50
PROMISSORY NOTE
FOR DISCRETIONARY LOANS
(this "Note")
U.S. $5,000,000.00 April 30,1997
FOR VALUE RECEIVED, TANDY BRANDS ACCESSORIES, INC. (the "Maker"), a
Delaware corporation, promises to pay to the order of TEXAS COMMERCE BANK
NATIONAL ASSOCIATION (the "Bank") on or before April 30, 1998, (the
"Termination Date"), at its banking house at 712 Main Street, Houston, Texas
77002 or at such other location as the Bank may designate, in lawful money of
the United States of America, the lesser of: (i) the principal sum of FIVE
MILLION AND NO/100THS (U.S. $5,000,000.00 ) (the "Maximum Loan Total"); or
(ii) the aggregate unpaid principal amount of all loans made by the Bank at its
sole and absolute discretion hereunder (each such loan being a "Loan"), which
may be outstanding on the Termination Date. Each Loan shall be due and payable
on the maturity date agreed to by the Bank and the Maker with respect to such
Loan (the "Maturity Date"). In no event shall any Maturity Date fall on a date
after the Termination Date. SUBJECT TO THE LIMITATIONS SET FORTH HEREIN, MAKER
MAY BORROW, REPAY AND REBORROW HEREUNDER AT BANK'S SOLE DISCRETION AND THERE IS
NO LIMITATION ON THE NUMBER OF LOANS MADE HEREUNDER AT BANK'S SOLE DISCRETION
SO LONG AS THE TOTAL UNPAID PRINCIPAL AMOUNT AT ANYTIME OUTSTANDING DOES NOT
EXCEED THE MAXIMUM LOAN TOTAL.
The Loans may be either Libor Loans, Negotiated Rate Loans or
Alternate Base Rate Loans.
The Maker shall pay interest on each Alternate Base Rate Loan for the
Interest Period with respect thereto at a rate per annum equal to the lesser
of: (i) the Alternate Base Rate in effect from time to time (the "Effective
Alternate Base Rate"); or (ii) the Highest Lawful Rate, which interest shall
be due and payable on the last day of each calendar quarter and on the last day
of each Interest Period.
The Maker shall pay interest on each Negotiated Rate Loan for the
Interest Period with respect thereto on the unpaid principal amount thereof at
a rate per annum equal to the Negotiated Rate for such Interest Period, which
interest shall be due and payable on the last day of each such Interest Period.
The Maker shall pay interest on each Libor Loan for the Interest
Period with respect thereto at a rate per annum equal to the lesser of: (i) the
Adjusted Libor Rate for such Interest Period plus three-quarters of one percent
(3/4%) (the "Effective Libor Rate"); or (ii) the Highest Lawful Rate, which
interest shall be due and payable on the last day of each such Interest Period,
and if such Interest Period has a duration exceeding three months, on the day
that is three months after the commencement of such Interest Period.
Any amount not paid when due with respect to principal (whether at
Maturity Date, by acceleration or otherwise), costs, expenses, and to the
extent permitted by applicable law, interest, shall bear interest at a rate per
annum equal to the lesser of: (i) the Alternate Base Rate in effect from time
to time plus three percent (3%); or (ii) the Highest Lawful Rate, which
interest shall be due and payable on demand. The principal of any Loan shall
be deemed past due if not paid on or before the Maturity Date or any earlier
maturity date resulting from acceleration in accordance with the terms of this
Note or as provided by law or otherwise. Interest accrued and unpaid with
respect to any Loan shall be deemed past due if not paid on or before the
applicable interest payment due date as provided for herein.
Notwithstanding the foregoing, if at any time the effective rate of
interest which would otherwise be payable on any Loan evidenced by this Note
exceeds the Highest Lawful Rate, the rate of interest to accrue on the unpaid
principal balance of such Loan during all such times shall be limited to the
Highest Lawful Rate, but any subsequent reductions in such interest rate shall
not become effective to reduce such interest rate below the Highest Lawful Rate
until the total amount of interest accrued on the unpaid principal balance of
such Loan equals the total amount of interest which would have accrued if the
Effective Alternate Base Rate, Negotiated Rate or Effective Libor Rate
whichever is applicable, had at all times been in effect.
Each Loan shall be in an amount not less than $100,000.00 and an
integral multiple of $25,000.00. Interest with respect to Alternate Base Rate
Loans shall be calculated on the basis of a 365 day year or 366 day year, as
the case may be, for the actual number of days elapsed. Interest with respect
to Negotiated Rate Loans or Libor Rate Loans shall be calculated on the basis
of a 360 day year for the actual days elapsed, unless such calculation would
result in a usurious interest rate, in which case such interest shall be
calculated on the basis of a 365 day or 366 day year, as the case may be.
The following terms shall have the respective meanings indicated:
"Adjusted Libor Rate" means a per annum interest rate determined by
Bank by dividing: (i) the Libor Rate by (ii) Statutory Reserves provided that
Statutory Reserves is greater than zero, otherwise Adjusted Libor Rate means a
per annum interest rate equal to the Libor Rate. "Libor Rate" means with
respect to any Libor Loan for any Interest Period the interest rate determined
by Bank by reference to the British Bankers' Association Interest Settlement
Rates (as set forth by any service selected by Bank which has been nominated by
the British Bankers' Association as an authorized information vender for the
purpose of displaying such rates including but not limited to Bloomberg,
Reuters or Telerate) to be the rate at approximately 11:00 a.m. London time, two
Business Days prior to the commencement of such Interest Period for dollar
deposits in an amount comparable to such Libor Loan with a maturity comparable
to such Interest Period.
"Alternate Base Rate" shall mean for any day, a rate per annum
(rounded upwards, if necessary, to the next higher 1/6 of 1%) equal to the
greatest of: (a) the Prime Rate in effect on such day; and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. For purposes
hereof, "Prime Rate" shall mean the rate of interest per annum determined from
time to time by the Bank as its prime rate in effect at its principal office in
Houston, Texas; each
Page 1 of 5 Pages
Signed for Identification
By: /s/ JSP
-------------------------
51
Promissory Note for Discretionary Loans
Tandy Brands Accessories, Inc.
April 30, 1997
change in the Prime Rate shall be effective on the date such change is
determined; without special notice to the Maker or any other person or entity.
THE PRIME RATE IS A REFERENCE RATE AND DOES NOT NECESSARILY REPRESENT THE
LOWEST OR BEST RATE ACTUALLY CHARGED TO ANY CUSTOMER AND ANY STATEMENT,
REPRESENTATION OR WARRANTY IN THAT REGARD OR TO THAT EFFECT IS EXPRESSLY
DISCLAIMED BY BANK. BANK MAY MAKE LOANS AT RATES OF INTEREST AT, ABOVE OR
BELOW THE PRIME RATE. "Federal Funds Effective Rate" shall mean, for any day,
the weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day which is a Business
Day, the average of the quotations for the day of such transactions received by
the Bank from three Federal funds brokers of recognized standing selected by
Bank. If for any reason the Bank shall have determined (which determination
shall be conclusive absent manifest error) that it is unable to ascertain the
Federal Funds Effective Rate, for any reason, including the inability or
failure of the Bank to obtain sufficient quotations in accordance with the
terms thereof, the Alternate Base Rate shall be determined without regard to
clause (b) of the first sentence of this definition, as appropriate, until the
circumstances giving rise to such inability no longer exist. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective on the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Alternate Base Rate Loan" means a Loan which bears interest at a
rate determined by reference to the Alternate Base Rate.
"Assessment Rate" means, for any date, the annual rate (rounded
upwards, if not already a whole multiple of 1/16 of 1%, to the next higher 1/16
of 1%) most recently estimated by the Bank as the then current net annual
assessment rate that will be employed in determining amounts payable by the
Bank to the Federal Deposit Insurance Corporation for insurance by the
Corporation of time deposits made in dollars at its domestic offices.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States.
"Borrowing Date" means any Business Day on which the Bank shall make
a Loan hereunder.
"Business Day" means a day: (i) on which the Bank and commercial
banks in New York City are generally open for business; and (ii) with respect
to Libor Loans, on which dealings in United States Dollar deposits are carried
out in the London interbank market.
"Credit Agreement" shall mean that certain Amended and Restated
Credit Agreement dated June 30, 1994 by and between Maker and Bank as amended
by a First Amendment dated April 30, 1995, a Second Amendment dated April 30,
1996, a Third Amendment dated April 30, 1997 and as, may be amended, restated
or supplemented from time to time.
"Highest Lawful Rate" as used herein shall mean the maximum
nonusurious interest rate permitted from time to time to be contracted for,
taken, reserved, charged or received on any Loan under applicable federal or
Texas laws, whichever permits the higher lawful rate; provided, however, that
in the event: (i) such maximum nonusurious interest rate shall, at any time or
times during the term of a Loan evidenced hereby, be reduced to a rate less
than the maximum nonusurious rate in effect on the date of such Loan; and (ii)
applicable law permits contracting for, taking, reserving, charging, and
receiving on such Loan throughout the duration thereof the maximum nonusurious
rate in effect on the date such Loan was made, then and at all such times the
Highest Lawful Rate shall be the maximum nonusurious rate permitted to be
contracted for, taken, reserved, charged or received on such Loan under
applicable law in effect on the date of such Loan. At all such times, if any,
as Texas law shall establish the Highest Lawful Rate, the Highest Lawful Rate
shall be the "indicated rate ceiling" (as defined in Tex. Rev. Civ. Stat. art.
5069-1.04) from time to time in effect.
"Interest Period" means, with respect to any Loan, the period
commencing on the Borrowing Date and ending on the Maturity Date, consistent
with the following provisions. The duration of each Interest Period shall be:
(a) in the case of an Alternate Base Rate Loan, a period of up to
90 days;
(b) in the case of a Negotiated Rate Loan, a period of not longer
than 30 days; and
(c) in the case of a Libor Loan, 1, 2, 3, or 6 months.
in each case as selected by the Maker and agreed to by the Bank at Bank's sole
discretion. The Maker's choice of Interest Period is also subject to the
following limitations:
(i) No Interest Period shall end on a date after the Termination
Date; and
(ii) If the last day of an Interest Period would be a day other than
a Business Day, the Interest Period shall end on the next succeeding Business
Day.
"Libor Loan" means a Loan which bears interest by reference to the
Adjusted Libor Rate.
"Negotiated Rate" means, with respect to each Negotiated Rate Loan
hereunder, the rate of interest per annum quoted by the Bank to the Maker at
the time of the borrowing request with respect to such Negotiated Rate Loan as
the rate such Negotiated Rate Loan shall bear for the requested Interest
Period.
Page 2 of 5 Pages
Signed for Identification
By: /s/ JSP
---------------------
52
Promissory Note for Discretionary Loans
Tandy Brands Accessories, Inc.
April 30, 1997
"Negotiated Rate Loan" means a Loan which bears interest at a rate
determined by reference to the Negotiated Rate.
"Statutory Reserves" shall mean the difference (expressed as a
decimal) of the number one minus the aggregate of the maximum reserve
percentages (including, without limitation, any marginal, special, emergency,
or supplemental reserves) expressed as a decimal established by the Board and
any other banking authority to which the Bank is subject for Eurocurrency
Liabilities (as defined in Regulation D of the Board). Such reserve
percentages shall include, without limitation, those imposed under such
Regulation D. Libor Loans shall be deemed to constitute Eurocurrency
Liabilities and as such shall be deemed to be subject to such reserve
requirements without benefit of or credit for proration, exceptions or offsets
which may be available from time to time to any Bank under such Regulation D.
Statutory Reserves shall be adjusted automatically on and as of the effective
date of any change in any reserve percentage.
The unpaid principal balance of this Note at any time shall be the
total of all Loans made by the Bank to or for the benefit of the Maker, less
the amount of all payments of principal made hereon by or for the account of
the Maker. The Bank's records shall serve as presumptive evidence of any and
all amounts outstanding hereunder.
Any Loan which the Bank agrees in its sole discretion to make
hereunder shall be made on the Maker's irrevocable notice, given not later than
10:00 A.M. (Houston time) on, in the case of Libor Loans, the third Business
Day prior to the proposed Borrowing Date, or in the case of Alternate Base Rate
Loans or Negotiated Rate Loans, the first Business Day prior to the proposed
Borrowing Date, from the Maker to the Bank. Each such notice of a requested
borrowing (a "Notice of Requested Borrowing") under this paragraph may be oral
or written, and shall specify: (i) the requested amount of such Loan; (ii) the
proposed Borrowing Date; (iii) whether the requested Loan is to be an Alternate
Base Rate Loan, Libor Rate Loan or Negotiated Rate Loan; and (iv) the Interest
Period for such Loan. If any Notice of Requested Borrowing shall be oral, the
Maker shall deliver to the Bank prior to the Borrowing Date a confirmatory
written Notice of Requested Borrowing.
If any domestic or foreign law, treaty, rule or regulation (whether
now in effect or hereinafter enacted or promulgated, including Regulation D of
the Board of Governors of the Federal Reserve System) or any interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof (whether or not having the force of
law):
(a) changes, imposes, modifies, applies or deems applicable
any reserve, special deposit or similar requirements in
respect of any such Loan or against assets of, deposits
with or for the account of, or credit extended or
committed by, the Bank; or
(b) imposes on the Bank or the interbank eurocurrency deposit
and transfer market or the market for domestic bank
certificates or deposit any other condition affecting any
such Loan;
and the result of any of the foregoing is to impose a cost to the Bank of
agreeing to make, funding or maintaining any such Loan or to reduce the amount
of any sum receivable by the Bank in respect of any such Loan, then the Bank
may notify the Maker in writing of the happening of such event and Maker shall
upon demand pay to the Bank such additional amounts as will compensate the Bank
for such costs. Without prejudice to the survival of any other agreement of
the Maker under this Note, the obligations of the Maker under this paragraph
shall survive the termination of this Note.
The Maker may on any Business Day prepay the outstanding principal
amount of any Alternate Base Rate Loan, in whole or in part, together with
accrued interest to the date of such prepayment on the principal amount
prepaid. Partial prepayments shall be in an aggregate principal amount of
$100,000.00 or a greater integral multiple of $25,000.00. Except as specified
in this paragraph, the Maker shall have no right to prepay any Loan.
The Maker will indemnify the Bank against, and reimburse the Bank on
demand for, any loss, cost or expense incurred or sustained by the Bank
(including without limitation any loss, cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by the Bank
to fund or maintain Loans bearing interest at the Negotiated Rate or the Libor
Rate) as a result of: (a) any payment or prepayment (whether permitted by the
Bank or required hereunder or otherwise) of all or a portion of any Negotiated
Rate Loan or Libor Loan on a day other than Maturity Date of such Loan; (b) any
payment or prepayment, whether required hereunder or otherwise, of any
Negotiated Rate Loan or Libor Loan made after the delivery of a Notice of
Requested Borrowing but before the applicable Borrowing Date if such payment or
prepayment prevents the proposed Loan from becoming fully effective; or (c) the
failure of any Negotiated Rate Loan or Libor Loan to be made by the Bank due to
any action or inaction of the Maker. For purposes of this paragraph, funding
losses arising by reason of liquidation or reemployment of deposits or other
funds acquired by the Bank to fund or maintain Loans bearing interest at the
Negotiated Rate or the Adjusted Libor Rate shall be calculated as the remainder
obtained by subtracting: (i) the yield (reflecting both stated interest rate
and discount, if any) to maturity of obligations of the United States Treasury
in an amount equal or comparable to such Loan for the period of time commencing
on the date of the payment, prepayment or change of rate as provided above and
ending on the last day of the subject Interest Period; from (ii) the interest
payable at the Negotiated Rate or the Adjusted Libor Rate for the period
commencing on the date of such payment, prepayment or change of rate and ending
on the last day of such Interest Period. Such funding losses and other costs
and expenses shall be calculated and billed by the Bank and such bill shall, as
to the costs incurred, be conclusive absent manifest error.
If after the date of this Note, the Bank shall have determined that
the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
Page 3 of 5 Pages
Signed for Identification
By: /s/ JSP
---------------------
53
Promissory Note for Discretionary Loans
Tandy Brands Accessories, Inc.
April 30, 1997
compliance by the Bank with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on the Bank's capital as a consequence of making any Loans hereunder to a level
below that which the Bank could have achieved but for such adoption, change or
compliance (taking into consideration the Bank's policies with respect to
capital adequacy) by an amount deemed by the Bank in good faith to be material,
then from time to time, the Maker shall pay to the Bank such additional amount
or amounts as will compensate the Bank for such reduction.
A certificate of the Bank setting forth such amount or amounts as
shall be necessary to compensate the Bank as specified in the immediately
preceding paragraphs above shall be delivered as soon as practicable to the
Maker and shall be conclusive and binding, absent manifest error. The Maker
shall pay the Bank the amount shown as due on any such certificate within 15
days after Bank delivers such certificate. In preparing such certificate, the
Bank may employ such assumptions and allocations of costs and expenses as it
shall in good faith deem reasonable and may use any reasonable averaging and
attribution method.
If any payment of interest or principal herein provided for is not
paid when due, or if there shall exist a Default under that certain Amended and
Restated Revolving Credit Agreement dated as of June 30, 1994 by and between
Maker and Bank, as amended from time to time, or if the Maker shall default
under or with respect to any other debts, obligations or liabilities of the
Maker due to the Bank, (whether such debts, obligations or liabilities be
direct or indirect, primary or secondary, joint or several, fixed or contingent
and whether such debt, obligations or liabilities are evidenced by note, open
account, overdraft endorsement application for letter of credit guaranty or
otherwise), then the owner or holder of this Note may at its option, by notice
to the Maker, (i) declare the unpaid principal balance of all Loans, all
accrued and unpaid interest thereon and all other amounts payable under this
Note to be forthwith due and payable, whereupon the Loans, all such interest
and all such amounts shall become and be forthwith due and payable in full,
without presentment, demand, protest, notice of intent to accelerate, notice of
actual acceleration or further notice of any kind, all of which are hereby
expressly waived by the Maker, (ii) terminate the Line of Credit (as
hereinafter defined), and (ii) exercise any and all other rights, powers and
remedies granted pursuant to any provision of any of the Loan Documents or
under any applicable law.
If default is made in the payment of this Note and it is placed in
the hands of an attorney for collection, or collected through probate or
bankruptcy proceedings, or if suit is brought on the same, the Maker agrees to
pay attorneys' fees and all costs and expenses.
This Note is issued by the Maker to evidence Loans outstanding from
time to time not to exceed the Maximum Loan Total in the aggregate, pursuant to
a $5,000,000.00 uncommitted discretionary line of credit (the "Line of Credit")
extended by the Bank to the Maker. THE BANK IS NOT OBLIGATED IN ANY WAY TO
MAKE ANY LOANS HEREUNDER, AND ALL ADVANCES HEREUNDER AND ANY LOANS SHALL BE AT
THE BANK'S SOLE AND ABSOLUTE DISCRETION. This Note is given in renewal and
extension and modification of that certain promissory note dated April 30,
1996, executed by Maker and payable to the order of the Bank in the principal
amount of $5,000,000.00. THE BANK IS NOT OBLIGATED IN ANY WAY TO MAKE ANY
LOANS HEREUNDER AND NOTHING HEREIN OR IN ANY OTHER AGREEMENTS OR OTHER WRITINGS
EXECUTED OR DELIVERED IN CONNECTION WITH THE LINE OF CREDIT OR THIS NOTE IS
INTENDED OR TO BE CONSTRUED AS A COMMITMENT ON THE PART OF THE BANK OR ANY
SUBSEQUENT OWNER OR HOLDER OF THIS NOTE TO MAKE ANY LOAN HEREUNDER OR UNDER THE
LINE OF CREDIT. ALL LOANS HEREUNDER OR UNDER THE LINE OF CREDIT SHALL BE AT
THE SOLE AND ABSOLUTE DISCRETION OF THE BANK OR ANY SUBSEQUENT OWNER OR HOLDER
OF THIS NOTE AND THE BANK OR ANY SUBSEQUENT OWNER OR HOLDER OF THIS NOTE MAY,
FOR ANY REASON OR NO REASON AT ALL, REFUSE TO MAKE ANY LOAN TO THE MAKER
HEREUNDER OR UNDER THE LINE OF CREDIT.
The Maker warrants and represents to the Bank, and to all other
owners and/or holders of any indebtedness evidenced hereby, that all Loans
evidenced by this Note are for business, commercial, investment or other
similar purpose and not primarily for personal, family, household or
agricultural use, as such terms are used in Chapter One of the Texas Credit
Code, Tex. Rev. Civ. Stat. arts. 5069-1.01 et. seq.
The Maker warrants and represents to the Bank and to all other owners
or holders of this Note that no Loans shall be used for the purchase or
carrying of any "margin stock" within the meaning of Regulation "U" of the
Board of Governors of the Federal Reserve System, 12 C.F.R. Part 221, as in
effect on the date hereof.
Except as otherwise specified in this Note, the Maker and any and all
co-makers, endorsers, guarantors and sureties hereby severally waive grace,
presentment demand, notice of default, notice of intent to accelerate, notice
of acceleration, and all other demands and notices of any nature or type
whatsoever, in connection with the delivery, acceptance, performance, default,
dishonor or enforcement of, or entry of judgment in connection with this Note,
and further waive the filing of suit hereon for the purpose of fixing
liability.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF TEXAS AND THE APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA. THE MAKER AND THE BANK AGREE THAT THE COUNTY IN WHICH BANK'S
PRINCIPAL OFFICE IS LOCATED IN TEXAS IS PROPER VENUE FOR ANY ACTION OR
PROCEEDING BROUGHT BY THE MAKER OR THE BANK WHETHER IN CONTRACT, TORT, OR
OTHERWISE. ANY ACTION OR PROCEEDING AGAINST THE MAKER MAY BE BROUGHT IN ANY
STATE OR FEDERAL COURT IN SUCH COUNTY. THE MAKER
Page 4 of 5 Pages
Signed for Identification
By: /s/ JSP
---------------------
54
Promissory Note for Discretionary Loans
Tandy Brands Accessories, Inc.
April 30, 1997
HEREBY IRREVOCABLY (A) SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURTS,
AND (B) WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF
ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT OR THAT ANY SUCH COURT
IS AN INCONVENIENT FORUM. THE MAKER AGREES THAT SERVICE OF PROCESS UPON IT MAY
BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, AT ITS
ADDRESS SPECIFIED BELOW. NOTHING HEREIN OR IN ANY OF THE OTHER LOAN DOCUMENTS
SHALL AFFECT THE RIGHT OF THE BANK TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE BANK TO BRING ANY ACTION OR
PROCEEDING AGAINST THE MAKER OR WITH RESPECT TO ANY OF ITS PROPERTY IN COURTS
IN OTHER JURISDICTIONS OR VENUES.
The Maker and the Bank expressly agree, pursuant to Article 15.10(b)
of Chapter 15 ("Chapter 15") of the Texas Credit Code, that Chapter 15 shall
not apply to this Note or to any Loan and that this Note and all such Loans
shall not be governed by or subject to the provisions of Chapter 15 in any
manner whatsoever.
It is the intention of Maker and Bank to comply with usury laws in
force in the State of Texas and in the United States of America as applicable.
Anything in this Note to the contrary notwithstanding, the Maker shall never be
required to pay unearned interest on this Note and shall never be required to
pay interest on this Note at a rate in excess of the Highest Lawful Rate, and
if the effective rate of interest which would otherwise be payable under this
Note would exceed the Highest Lawful Rate, or if the holder of the Note shall
receive any unearned interest or shall receive monies that are deemed to
constitute interest which would increase the effective rate of interest payable
under this Note to a rate in excess of the Highest Lawful Rate, then: (i) the
amount of interest which would otherwise be payable under this Note shall be
reduced to the amount allowed under applicable law; and (ii) any unearned
interest paid by the Maker or any interest paid by the Maker in excess of the
Highest Lawful Rate shall, at the option of the holder of this Note, be either
refunded to the Maker or credited on the principal of this Note. It is
further agreed that, without limitation of the foregoing, all calculations of
the rate of interest contracted for, charged or received by the Bank or any
holder of this Note that are made for the purpose of determining whether such
rate exceeds the Highest Lawful Rate shall be made, to the extent permitted by
usury laws applicable to the Bank (now or hereafter enacted), by amortizing,
prorating and spreading in equal parts during the period of the full stated
term of the Loans evidenced by this Note all interest at any time contracted
for, charged or received by the Bank in connection therewith.
The Bank reserves the right in its sole discretion without notice to
Maker, to sell participations or assign its interest, or both in all or part of
the Loans, the Note, or the Line of Credit.
THIS NOTE AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND 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.
IN WITNESS WHEREOF, the Maker has executed this Note effective the
day, month and year first aforesaid.
MAKER: TANDY BRANDS ACCESSORIES, INC.
By: /s/ J.S.B. JENKINS
--------------------------------
Name: J.S.B. Jenkins
-----------------------------
Title:
-----------------------------
Acknowledged for purposes of
notice pursuant to the above
cited statute by:
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
By: /s/ JERRY S. PETREY
------------------------------------
Name: JERRY PETREY
Title: Vice President
Page 5 of 5 Pages
Signed for Identification
By:
---------------------