SIXTH AMENDMENT TO LOAN AGREEMENT
SIXTH AMENDMENT TO LOAN
AGREEMENT
THIS
SIXTH AMENDMENT TO LOAN AGREEMENT (this “Amendment”) is made
and entered into and effective as of September 19, 2008 (the “Amendment Closing
Date”), by and among XXXXX FARGO BANK, NATIONAL
ASSOCIATION, a national banking association (the “Bank”), FOSSIL PARTNERS, L.P. (the
“Borrower”),
FOSSIL, INC. (the “Company”), FOSSIL INTERMEDIATE, INC.
(“Fossil
Intermediate”), FOSSIL
TRUST (“Fossil
Trust”), FOSSIL STORES
I, INC. (“Fossil I”), ARROW MERCHANDISING, INC.
(“Arrow
Merchandising”) and FOSSIL HOLDINGS, LLC (“Fossil Holdings”)
(the Company, Fossil Intermediate, Fossil Trust, Fossil I, Arrow Merchandising
and Fossil Holdings are sometimes referred to herein individually as a “Guarantor” and
collectively as the “Guarantors”).
RECITALS
WHEREAS,
the Bank, the Borrower and the Guarantors are parties to that certain Loan
Agreement, dated as of September 23, 2004 (as amended, modified or supplemented,
from time to time, the “Agreement”);
and
WHEREAS,
the Bank, the Borrower and the Guarantors desire to amend the Agreement and the
other Loan Documents as herein set forth, among other things to extend the
maturity date of the Revolving Note to November 19, 2008.
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
Section
1.01. Capitalized
terms used in this Amendment are defined in the Agreement, as amended hereby,
unless otherwise stated.
ARTICLE
II.
Amendments
Section
2.01. Deletion of Section
13(g). Effective as of the Amendment Closing Date, Section
13(g) of the Agreement entitled “Equity Purchases” is hereby amended and
restated to read in its entirety as follows (with the effect that such Section
13(g) is effectively deleted from the Agreement):
“(g) [Intentionally
Omitted];”
Section
2.02. Amendment to Section
16. Effective as of the Amendment Closing Date, (a) the
reference to “Xxxxx X. Xxxxxx” contained in Section 16 of the Agreement is
deleted in its entirety and replaced with “Xxxxxxxxxx X. Xxxxxxxxx” and (b) the
reference to "Xxxxxx Xxxxx LLP" and its address and other contact information
contained in Section 16 of the Agreement are deleted in their entirety and
replaced with the following:
“Hunton
& Xxxxxxxx LLP
0000
Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx,
Xxxxx 00000
Attention: Xxxxxx
X. Xxxxxxx, Esq.
Fax: (000)
000-0000”
Section
2.03. Certain
Definitions. A new Section 29 is hereby added to the
Agreement, which Section 29 shall read in its entirety as follows:
“29. Certain
Definitions Unless the context otherwise requires, capitalized
terms used in this Agreement but not defined herein shall have the meanings
therefor specified in the Revolving Note.”
ARTICLE
III.
Conditions
Precedent
Section
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 (i) this Amendment, duly executed by the Borrower and each
Guarantor, and (ii) an amended and restated Revolving Note in form and substance
satisfactory to the Bank which extends the maturity date of the Revolving Note
to November 19, 2008, duly executed by the Borrower;
(b) There
shall have been no material adverse change in the business or financial
condition of the Borrower, Company and the Guarantors, taken as a
whole;
(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 business or financial condition of the Borrower,
Company and the Guarantors, taken as a whole;
(d) The
representations and warranties contained herein and in the Agreement and the
other Loan Documents, as each is amended hereby, shall be true and correct in
all material respects as of the date hereof, as if made on the date hereof,
except to the extent such representations were made as of a specific
date;
(e) No
default or Event of Default under the Agreement, as amended hereby, shall have
occurred and be continuing, unless such default or Event of Default has been
specifically waived in writing by the Bank; and
(f) All
requisite corporate, partnership or trust proceedings, as appropriate, shall
have been taken the Borrower and each Guarantor to authorize the execution,
delivery and performance of this Amendment, and such proceedings and other legal
matters incident thereto shall be satisfactory to the Bank and its legal
counsel.
ARTICLE
IV.
Waiver
Section
4.01. No
Waiver. Except as provided in Section 4.02, nothing contained
herein shall be construed as a waiver by the Bank of any covenant or provision
of the Agreement, the other Loan Documents, this Amendment, or of any other
contract or instrument between the Borrower and/or the Guarantors and the Bank,
and the failure of the Bank at any time or times hereafter to require strict
performance by the Borrower and/or any Guarantor of any provision thereof shall
not waive, affect or diminish any right of the Bank to thereafter demand strict
compliance therewith. The Bank hereby reserves all rights granted
under the Agreement, the other Loan Documents, this Amendment and any other
contract or instrument between the Borrower and/or the Guarantors and the
Bank.
Section
4.02. Limited Waiver relating to
Section 13(d). The Bank hereby waives any previous breach or
breaches, prior to September 19, 2008, by the Borrower and the
Guarantors of their obligations under Section 13(d) of the Agreement to provide
the Bank with prior written notice of the formation of new subsidiaries of the
Borrower and/or the
Company. The foregoing waiver is expressly limited as follows: (a)
such waiver is limited strictly as written to the breach arising under Section
13(d) of the Agreement as a result of Borrower’s and the Guarantors’ failure to
provide the Bank with prior written notification of the formation of such
subsidiaries, (b) such waiver is not applicable to any provision of the
Agreement or any other Loan Document other than the specifically described
failure, and (c) such waiver is a limited, one-time waiver, and nothing
contained herein shall obligate the Bank to grant any additional or future
waiver of the Borrower’s or any Guarantor’s obligations under Section 13(d) of
the Agreement or grant any additional or future waiver of any other provision of
the Agreement or any other Loan Document.
Section
4.03. Limited Waiver relating to
Section 13(g). The Bank hereby waives any previous breach or
breaches, prior to September 19, 2008, by the Borrower and the Guarantor of
their obligations under Section 13(g) of the Agreement to not make (in the case
of Fossil, Inc.) or permit to be made (in the case of the Borrower and the
Guarantors other than Fossil, Inc.) any payment by Fossil, Inc. to any of its
equity holders (whether in cash or in property) with respect to the repurchase
of any equity interests of Fossil, Inc. The foregoing waiver is
expressly limited as follows: (a) such waiver is limited strictly as
written to the breach arising under Section 13(g) of the Agreement as a result
of the Borrower’s and the Guarantors’ failure to comply or cause compliance by
Fossil, Inc. with such Section 13(g) as it relates (and only as it relates) to
the repurchasers by Fossil, Inc. of its equity interests prior to September 19,
2008, (b) such waiver is not applicable to any provision of the Agreement or any
other Loan Document other than the specifically described failure, and (c) such
waiver is a limited, one-time waiver, and nothing contained herein shall
obligate the Bank to grant any additional or future waiver of the Borrower’s or
any Guarantor’s obligations under Section 13(g) of the Agreement or grant any
additional or future waiver of any other provision of the Agreement or any other
Loan Document.
ARTICLE
V.
Ratifications,
Representations and Warranties, Covenants
Section
5.01. General
Ratifications. The terms and provisions set forth in this
Amendment shall modify and supersede all inconsistent terms and provisions set
forth in the Agreement and the other Loan Documents, and, except as expressly
modified and superseded by this Amendment, the terms and provisions of the
Agreement and the other Loan Documents are ratified and confirmed and shall
continue in full force and effect. The parties hereto agree that the
Agreement and the other Loan Documents, as amended hereby, shall continue to be
legal, valid, binding and enforceable in accordance with their respective
terms.
Section
5.02. Ratification of
Guaranties. Each of the Guarantors hereby acknowledges and
consents to all of the terms and conditions of this Amendment and hereby
ratifies and confirms the Guaranty Agreement to which it is a party to or for
the benefit of the Bank. Each of the Guarantors hereby represents and
acknowledges that it has no claims, counterclaims, offsets, credits or defenses
to the Loan Documents or the performance of its obligations
thereunder. Furthermore, each Guarantor agrees that nothing contained
in this Amendment shall adversely affect any right or remedy of the Bank under
the Guaranty Agreement to which such Guarantor is a party. Each
Guarantor hereby agrees that with respect to the Guaranty Agreement to which it
is a party, all references in such Guaranty Agreement to the “Guaranteed
Obligations” shall include, without limitation, the obligations of the Borrower
to the Bank under the Agreement, as amended hereby. Finally, each of
the Guarantors hereby represents and acknowledges that the execution and
delivery of this Amendment and the other Loan Documents executed in connection
herewith shall in no way change or modify its obligations as a guarantor,
debtor, pledgor, assignor, obligor and/or grantor under its respective Guaranty
Agreement (except as specifically provided in this Section 5.02) and
shall not constitute a waiver by the Bank of any of the Bank’s rights against
such Guarantor.
Section
5.03. Ratification of Security
Interests. The Company hereby agrees that the Stock Pledge
Agreement is hereby expressly amended such that the definition of “Secured
Obligations” contained therein includes, without limitation, all indebtedness
and other obligations of the Borrower now or hereafter existing hereunder the
Agreement, as amended hereby. Furthermore, the Company hereby
ratifies and reaffirms its obligations under the Stock Pledge Agreement, as the
same is amended hereby, and represents and acknowledges that the Stock Pledge
Agreement is not subject to any claims, counterclaims, defenses or
offsets. Finally, the Company hereby represents and acknowledges that
the execution and delivery of this Amendment and the other Loan Documents
executed in connection herewith shall in no way change or modify its obligations
as a debtor, pledgor, assignor, obligor and/or grantor under the Stock Pledge
Agreement (except as specifically provided in this Section 5.03) and
shall not constitute a waiver by the Bank of any of the Bank’s rights against
the Company.
Section
5.04. Representations and
Warranties, etc. The Borrower and each of the Guarantors
hereby jointly and severally represent and warrant to the Bank that (a) the
execution, delivery and performance of this Amendment and any and all other Loan
Documents executed and/or delivered in connection herewith have been duly
authorized by all requisite corporate, partnership or trust proceedings, as
appropriate, and will not contravene, or constitute a default under, any
provision of applicable law or regulation or of the Agreement of Limited
Partnership, Articles of Incorporation, By-Laws or Trust Agreement, as
applicable, of the Borrower or any Guarantor, or of any mortgage, indenture,
material contract, material agreement or other material instrument, or any
judgment, order or decree, binding upon the Borrower or any Guarantor; (b) the
officer(s) of the Borrower and each Guarantor executing and delivering this
Amendment and any and all other Loan Documents executed and/or delivered in
connection herewith are duly elected and are authorized, by resolution of the
board of directors, board of managers or trustees (or other applicable governing
body) of the Borrower and each such Guarantor, to execute on behalf of each such
entity this Amendment and any and all other Loan Documents executed and/or
delivered in connection herewith; (c) the representations and warranties
contained in the Agreement and the other Loan Documents, as amended hereby, are
true and correct in all material respects 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, except to the extent such representations were made as of a specific date;
(d) no default or Event of Default under the Agreement, as amended hereby, or
any other Loan Document has occurred and is continuing, unless such default or
Event of Default has been specifically waived in writing by the Bank; and (e)
the Borrower and the Guarantors are in full compliance with all covenants and
agreements contained in the Agreement and the other Loan Documents, as amended
hereby.
ARTICLE
VI.
Miscellaneous
Provisions
Section
6.01. Survival of Representations
and Warranties. All representations and warranties made in the
Agreement or any other Loan Documents, including, without limitation, any
document furnished in connection with this Amendment, shall survive the
execution and delivery of this Amendment and the other Loan Documents to be
executed in connection herewith, 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. The Borrower and the
Guarantors hereby represent and warrant to the Bank that the resolutions of the
board of directors, managers and trustees (as applicable) of the Borrower and
the Guarantors dated September 22, 2005, which resolutions were certified to the
Bank in connection with the First Amendment to Loan Agreement dated as of
September 22, 2005, remain in full force and effect and have not been rescinded
or modified in any way.
Section
6.02. Reference to
Agreement. Each of the Agreement and the other Loan Documents,
and any and all other agreements, documents or instruments now or hereafter
executed and delivered pursuant to the terms hereof or pursuant to the terms of
the Agreement, as amended hereby, are hereby amended so that any reference in
the Agreement and such other Loan Documents to the Agreement, shall mean a
reference to the Agreement, as amended hereby.
Section
6.03. Expenses of the
Bank. As provided in the Agreement, the Borrower agrees to pay
on demand all reasonable costs and expenses incurred by the Bank in connection
with the preparation, negotiation, and execution of this Amendment and the other
Loan Documents executed pursuant hereto and any and all amendments,
modifications, and supplements hereto or thereto, including, without limitation,
the costs and fees of the Bank’s legal counsel, and all costs and expenses
incurred by the Bank in connection with the enforcement or preservation of any
rights under the Agreement or any other Loan Document, in each case as amended
hereby, including, without, limitation, the costs and fees of the Bank’s legal
counsel.
Section
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.
Section
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.
Section
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.
Section
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.
Section
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.
Section
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.
Section
6.10. Final
Agreement. THE AGREEMENT AND THE OTHER LOAN DOCUMENTS, EACH AS
AMENDED HEREBY, REPRESENT THE ENTIRE EXPRESSION OF THE PARTIES WITH RESPECT TO
THE SUBJECT MATTER HEREOF ON THE DATE THIS AMENDMENT IS EXECUTED. THE AGREEMENT
AND THE OTHER LOAN DOCUMENTS, AS AMENDED HEREBY, MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN OR AMONG 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.
Section
6.11. Agreement for Binding
Arbitration. The parties agree to be bound by the terms and
provisions of the Bank’s current Arbitration Program which is incorporated
herein by reference and is acknowledged as received by the parties pursuant to
which any and all disputes shall be resolved by mandatory binding arbitration
upon the request of any party.
[Remainder
of page intentionally left blank.]
IN
WITNESS WHEREOF, this Amendment has been executed and is effective as of the
date first above-written.
“BANK”
XXXXX
FARGO BANK,
NATIONAL
ASSOCIATION
By:
Name:
Title:
“BORROWER”
FOSSIL
PARTNERS, L.P.
By: Fossil,
Inc.
Title: General
Partner
By:
Name: Xxxxx
X. Xxxx
Title: Vice
President, General Counsel
and
Secretary
“GUARANTORS”
FOSSIL,
INC.
By:
Name: Xxxxx
X. Xxxx
Title: Vice
President, General Counsel
and Secretary
FOSSIL
INTERMEDIATE, INC.
By:
Name: Xxxx
X. Xxxxx
Title: Treasurer
FOSSIL TRUST
By:
Name: Xxxx
X. Xxxxx
Title: Treasurer
FOSSIL
STORES I, INC.
By:
Name: Xxxx
X. Xxxxx
Title: Treasurer
ARROW
MERCHANDISING, INC.
By:
Name: Xxxx
X. Xxxxx
Title: Treasurer
FOSSIL
HOLDINGS, LLC
By:
Name: Xxxx
X. Xxxxx
Title: Manager
