FOURTH AMENDMENT TO SECOND
AMENDED AND RESTATED LOAN AGREEMENT
THIS FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AGREEMENT (this
"Amendment") is made and entered into this 2nd day of April, 1997, by and among
XXXXX FARGO BANK (TEXAS), NATIONAL ASSOCIATION, a national banking association
formerly known as First Interstate Bank of Texas, N.A. (the "Bank"), Fossil
Partners, L.P. (the "Borrower"), Fossil, Inc. (the "Company"), Fossil
Intermediate, Inc. ("Fossil Intermediate"), Fossil Trust ("Fossil Trust"),
Fossil New York, Inc. ("Fossil New York"), Fossil Stores I, Inc. ("Fossil I")
and Fossil Stores II, Inc. ("Fossil II").
RECITALS
A. The Bank, the Borrower, the Company, Fossil Intermediate, Fossil Trust,
Fossil New York and Fossil I are parties to that certain Second Amended and
Restated Loan Agreement, dated effective April 30, 1995, as amended by (i) that
certain First Amendment to Second Amended and Restated Loan Agreement, dated
effective March 27, 1996, by and among the Bank, the Borrower, the Company,
Fossil Intermediate, Fossil Trust, Fossil New York and Fossil I, (ii) that
certain Second Amendment to Second Amended and Restated Loan Agreement, dated
effective May 3, 1996, by and among the Bank, the Borrower, the Company, Fossil
Intermediate, Fossil Trust, Fossil New York, Fossil I and Fossil II, and (iii)
that certain Third Amendment to Second Amended and Restated Loan Agreement,
dated effective September 11, 1996, by and among the Bank, the Borrower, the
Company, Fossil Intermediate, Fossil Trust, Fossil New York, Fossil I and Fossil
II (as amended, the "Loan Agreement");
B. The Bank and the Borrower desire to amend the Loan Agreement as
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises herein contained and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, agree as follows:
ARTICLE I
Definitions
1.01 Capitalized terms used in this Amendment are defined in the Loan
Agreement, as amended hereby, unless otherwise stated.
ARTICLE II
Amendment
2.01 Amendment to Section 1. Effective as of the date hereof, the second
sentence of Section 1 of the Loan Agreement is hereby deleted in its entirety
and the following substituted in lieu thereof:
"All loans under the Line of Credit shall be evidenced by the
Borrower's Seventh Amended and Restated Master Revolving Credit Note
(the 'Revolving Note'), substantially in form and substance
satisfactory to the Bank, payable to the order of the Bank, and bearing
interest upon the terms provided therein (but in no event to exceed the
maximum non-usurious interest rate permitted by law)."
ARTICLE III
Conditions Precedent
3.01 Conditions to Effectiveness. The effectiveness of this Amendment is
subject to the satisfaction of the following conditions precedent, unless
specifically waived in writing by the Bank:
(a) The Bank shall have received the following documents, each
in form and substance satisfactory to the Bank and its counsel:
(i) This Amendment, duly executed by the Borrower, the Company,
Fossil Intermediate, Fossil Trust, Fossil New York, Fossil I and
Fossil II;
(ii) A Revolving Note in the form of Exhibit A to this Amendment,
duly executed by Borrower; and
(iii) A company general certificate (hereinafter referred to as
the "Company General Certificate") for the Company, certified by
its Secretary or Assistant Secretary, acknowledging (A) that its
Board of Directors has met and has adopted, approved, consented
to and ratified resolutions which authorize the execution,
delivery and performance of this Amendment, the Revolving Note
and all other Loan Documents to which it is or is to be a party,
and (B) the names of the officers authorized to sign this
Amendment, the Revolving Note and each of the other Loan
Documents to which it is or is to be a party (including the
certificates contemplated herein) together with specimen
signatures of such officers. The Company General Certificate
shall conform to the Company General Certificate which is
attached hereto as Exhibit B and incorporated herein for all
purposes;
(b) There shall have been no Fmaterial adverse change
in the financial condition of the Borrower or any Guarantor;
(c) There shall be no material adverse litigation, either
pending or threatened, against the Borrower or any Guarantor that
could reasonably be expected to have a material adverse effect on
the Borrower or such Guarantor;
(d) The representations and warranties contained herein and in
the Loan Agreement and the other Loan Documents, as each is
amended hereby, shall be true and correct as of the date hereof,
as if made on the date hereof;
(e) No default or Event of Default shall have occurred and be
continuing, unless such default or Event of Default has been
specifically waived in writing by the Bank;
(f) All corporate proceedings taken in connection with the
transactions contemplated by this Amendment and all documents,
instruments and other legal matters incident thereto shall be
satisfactory to the Bank and its legal counsel; and
ARTICLE IV
No Waiver
4.01 Nothing contained herein shall be construed as a waiver by the Bank of
any covenant or provision of the Loan Agreement, the other Loan Documents, this
Amendment, or of any other contract or instrument between the Borrower or the
Guarantors and the Bank, and the failure of the Bank at any time or times
hereafter to require strict performance by the Borrower or any Guarantor of any
provision thereof shall not waive, affect or diminish any right of the Bank to
thereafter demand strict compliance therewith. The Bank hereby reserves all
rights granted under the Loan Agreement, the other Loan Documents, this
Amendment and any other contract or instrument between the Borrower, the
Guarantors and the Bank.
ARTICLE V
Ratifications, Representations and Warranties
5.01 Ratifications. The terms and provisions set forth in this Amendment
shall modify and supersede all inconsistent terms and provisions set forth in
the Loan Agreement and the other Loan Documents, and, except as expressly
modified and superseded by this Amendment, the terms and provisions of the Loan
Agreement and the other Loan Documents are ratified and confirmed and shall
continue in full force and effect. The parties hereto agree that the Loan
Agreement and the other Loan Documents, as amended hereby, shall continue to be
legal, valid, binding and enforceable in accordance with their respective terms.
5.02 Representations and Warranties. The Borrower, the Company, Fossil
Intermediate, Fossil Trust, Fossil New York, Fossil I and Fossil II hereby
represent and warrant to the Bank that (a) the execution, delivery and
performance of this Amendment and any and all other Loan Documents executed
and/or delivered in connection herewith have been duly authorized by all
requisite corporate, partnership or trust proceedings, as appropriate, and will
not contravene, or constitute a default under, any provision of applicable law
or regulation or of the Agreement of Limited Partnership, Articles of
Incorporation, By-Laws or Trust Agreement, as applicable, of the Borrower or any
Guarantor, or of any mortgage, indenture, contract, agreement or other
instrument, or any judgment, order or decree, binding upon the Borrower or any
Guarantor; (b) the representations and warranties contained in the Loan
Agreement, as amended hereby, and the other Loan Documents are true and correct
on and as of the date hereof and on and as of the date of execution hereof as
though made on and as of each such date; (c) no default or Event of Default
under the Loan Agreement, as amended hereby, has occurred and is continuing,
unless such default or Event of Default has been specifically waived in writing
by the Bank; and (d) the Borrower and the Guarantors are in full compliance with
all covenants and agreements contained in the Loan Agreement and the other Loan
Documents, as amended hereby.
ARTICLE VI
Miscellaneous Provisions
6.01 Survival of Representations and Warranties. All representations and
warranties made in the Loan Agreement or any other Loan Documents, including,
without limitation, any document furnished in connection with this Amendment,
shall survive the execution and delivery of this Amendment and the other Loan
Documents, and no investigation by the Bank or any closing shall affect the
representations and warranties or the right of the Bank to rely upon them.
6.02 Reference to Loan Agreement. Each of the Loan Agreement and the other
Loan Documents, and any and all other agreements, documents or instruments now
or hereafter executed and delivered pursuant to the terms hereof or pursuant to
the terms of the Loan Agreement, as amended hereby, are hereby amended so that
any reference in the Loan Agreement and such other Loan Documents to the Loan
Agreement shall mean a reference to the Loan Agreement, as amended hereby.
6.03 Expenses of the Bank. As provided in the Loan Agreement, the Borrower
agrees to pay on demand all reasonable costs and expenses incurred by the Bank
in connection with the preparation, negotiation, and execution of this Amendment
and the other Loan Documents executed pursuant hereto and any and all
amendments, modifications, and supplements thereto, including, without
limitation, the costs and fees of the Bank's legal counsel, and all costs and
expenses incurred by the Bank in connection with the enforcement or preservation
of any rights under the Loan Agreement, as amended hereby, or any other Loan
Documents, including, without, limitation, the costs and fees of the Bank's
legal counsel.
6.04 Severability. Any provision of this Amendment held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
6.05 Successors and Assigns. This Amendment is binding upon and shall inure
to the benefit of the Borrower, the Guarantors and the Bank and their respective
successors and assigns.
6.06 Counterparts. This Amendment may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original,
but all of which when taken together shall constitute one and the same
instrument.
6.07 Effect of Waiver. No consent or waiver, express or implied, by the
Bank to or for any breach of or deviation from any covenant or condition by the
Borrower or any Guarantor shall be deemed a consent to or waiver of any other
breach of the same or any other covenant, condition or duty.
6.08 Headings. The headings, captions, and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
6.09 APPLICABLE LAW. THIS AMENDMENT AND ALL OTHER AGREEMENTS EXECUTED
PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE PERFORMABLE IN AND
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS.
6.10 FINAL AGREEMENT. THE LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS, EACH
AS AMENDED HEREBY, REPRESENT THE ENTIRE EXPRESSION OF THE PARTIES WITH RESPECT
TO THE SUBJECT MATTER HEREOF ON THE DATE THIS AMENDMENT IS EXECUTED. THE LOAN
AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS AMENDED HEREBY, MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. NO
MODIFICATION, RESCISSION, WAIVER, RELEASE OR AMENDMENT OF ANY PROVISION OF THIS
AMENDMENT SHALL BE MADE, EXCEPT BY A WRITTEN AGREEMENT SIGNED BY THE BORROWER,
THE GUARANTORS AND THE BANK.
6.11 RELEASE. THE BORROWER HEREBY ACKNOWLEDGES THAT IT HAS NO DEFENSE,
COUNTERCLAIM, OFFSET, CROSS-COMPLAINT, CLAIM OR DEMAND OF ANY KIND OR NATURE
WHATSOEVER THAT CAN BE ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF ITS
LIABILITY TO REPAY THE "INDEBTEDNESS" OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES
OF ANY KIND OR NATURE FROM THE BANK. THE BORROWER AND THE GUARANTORS HEREBY
VOLUNTARILY AND KNOWINGLY RELEASE AND FOREVER DISCHARGE THE BANK, ITS
PREDECESSORS, OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS,
FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS,
EXPENSES, AND LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR
UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT, OR CONDITIONAL, AT
LAW OR IN EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR BEFORE THE DATE THIS
AMENDMENT IS EXECUTED, WHICH THE BORROWER OR THE GUARANTORS MAY NOW OR HEREAFTER
HAVE AGAINST THE BANK, ITS PREDECESSORS, OFFICERS, DIRECTORS, AGENTS, EMPLOYEES,
SUCCESSORS AND ASSIGNS, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS
ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR OTHERWISE, AND
ARISING FROM ANY LOANS OR EXTENSIONS OF CREDIT FROM THE BANK TO THE BORROWER
UNDER THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS, INCLUDING, WITHOUT
LIMITATION, ANY CONTRACTING FOR, CHARGING, TAKING, RESERVING, COLLECTING OR
RECEIVING INTEREST IN EXCESS OF THE HIGHEST LAWFUL RATE APPLICABLE, THE EXERCISE
OF ANY RIGHTS AND REMEDIES UNDER THE LOAN AGREEMENT OR OTHER LOAN DOCUMENTS, AND
NEGOTIATION FOR AND EXECUTION OF THIS AMENDMENT.
6.12 Agreement for Binding Arbitration. Each party to this Amendment hereby
acknowledges that it has agreed to be bound by the terms and provisions of the
Bank's current Arbitration Program, which is incorporated by reference herein
and is acknowledged as received by the parties pursuant to which any and all
disputes shall be resolved by mandatory binding arbitration upon the request of
any party.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, this Amendment has been executed and is effective as of
the date first above-written.
"BANK"
XXXXX FARGO BANK (TEXAS), NATIONAL
ASSOCIATION,
By:/s/ Xxxxxxx X. X. Xxxx
----------------------------------------
Xxxxxxx X.X. Xxxx, Vice President
"BORROWER"
FOSSIL PARTNERS, L.P.
By: Fossil, Inc., its general partner
By:/s/ Xxxxx X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx,Executive Vice President
and Chief Financial Officer
"GUARANTORS"
FOSSIL, INC.
By:/s/ Xxxxx X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx, Executive Vice President
and Chief Financial Officer
FOSSIL INTERMEDIATE, INC.
By:/s/ Xxxxx X. Xxxxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxxxx, President
FOSSIL TRUST
By:/s/ Xxxxx X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx, Trustee
FOSSIL NEW YORK, INC.
By:/s/ Xxxxx X. Xxxxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxxxx, Chief Executive
Officer
FOSSIL STORES I, INC.
By:/s/ Xxxxx X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx, Treasurer
FOSSIL STORES II, INC.
By:/s/ Xxxxx X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx, Treasurer
