EXHIBIT 10.3
Execution Copy
CONSENT AND MODIFICATION AGREEMENT
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THIS CONSENT AND MODIFICATION AGREEMENT is made and entered into effective
as of September 26, 2001 by and between TUESDAY MORNING CORPORATION, a Delaware
corporation ("Borrower"), and COMPASS BANK, a state banking association formerly
known as Compass Bank - Dallas ("Lender").
RECITALS:
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A. Borrower and Lender entered into a Loan Agreement on June 20, 1995, as
amended by that certain Consent and Modification Agreement dated December 29,
1997 (the "Loan Agreement"), pursuant to which Lender made a loan in the amount
of $7,146,293 to Borrower (the "Loan").
B. The Loan is evidenced by a Promissory Note in the original principal
amount of $7,146,293 dated June 20, 1995 executed by Borrower payable to the
order of Lender (the "Note").
C. The Note is secured, inter alia, by (i) a Deed of Trust and Security
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Agreement of even date therewith from Tuesday Morning, Inc., a Texas
corporation, to Xxxxxx X. Xxxxxx, Trustee (the "TMI Deed of Trust"), covering
certain real property in Dallas and Xxxxxx Counties, Texas more particularly
described therein and (ii) a Deed of Trust and Security Agreement from Friday
Morning, Inc., a Texas corporation, to Xxxxxx X. Xxxxxx, Trustee (the "FMI Deed
of Trust"), covering certain real property in Dallas County, Texas more
particularly described therein. The TMI Deed of Trust has been recorded in the
Real Property Records of Dallas County, Texas and the Real Property Records of
Xxxxxx County, Texas, and the FMI Deed of Trust has been recorded in the Real
Property Records of Xxxxxx County, Texas.
D. Borrower, Xxxxxxx Xxxxx & Co., Xxxxxxx Xxxxx Xxxxxx Xxxxxx & Xxxxx
Incorporated ("Merrill"), Fleet National Bank ("Fleet"), the Guarantors party
thereto and certain lenders (collectively "New Lenders") executed a Credit
Agreement dated as of December 29, 1997, and amended and restated as of July 7,
2000 (the "Credit Agreement"), pursuant to which New Lenders have agreed to make
certain loans in the aggregate amount of $260,000,000 to Borrower.
E. Borrower, Merrill, Fleet, the Guarantors party thereto and the New
Lenders have executed or are about to execute an Amendment No. 1 to the Credit
Agreement dated on or about September 25, 2001 (the "Amendment"), pursuant to
which the parties are amending the Credit Agreement (i) to allow Borrower to
repurchase, redeem or otherwise acquire from time to time its outstanding Senior
Subordinated Notes, (ii) to allow Borrower to purchase and renovate an
approximately 23.984 acre
tract of real property and the improvements thereon located at 00000 Xxxxxx
Xxxx, in the City of Farmers Branch, Texas (the "Property"), for a total cost
not to exceed $22,000,000 and (iii) to amend certain financial covenants of the
Credit Agreement as described therein.
F. Borrower has requested that (i) Lender consent to the foregoing
transactions and the related amendments to the Credit Agreement and (ii) the
Loan Agreement be modified in certain respects; and, upon the terms and
conditions set forth herein, Lender has granted such request.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Lender and Borrower
hereby agree as follows:
1. Defined Terms. All terms used in this Agreement with their initial
letters capitalized which are not otherwise defined herein but are defined in
the Loan Agreement shall have the meanings ascribed to such terms in the Loan
Agreement. All terms used in this Agreement with their initial letters
capitalized and not otherwise defined herein or in the Loan Agreement shall have
the meanings ascribed to such terms in the Credit Agreement. Notwithstanding
the foregoing, all defined terms used in Section 7 of the Loan Agreement (as
modified hereby) shall have the meanings set forth in the Credit Agreement.
2. Consent. Lender hereby (a) consents to (i) Borrower's execution and
delivery of the Amendment, (ii) Borrower's repurchase, redemption and
acquisition from time to time of its Senior Subordinated Notes in the manner
permitted under the Credit Agreement, as modified by the Amendment, (iii)
Borrower's purchase and renovation of the Property in the manner permitted under
the Credit Agreement, as modified by the Amendment and (iv) the modification of
those certain financial covenants in the Credit Agreement effected by the
Amendment, which modified covenants shall apply to Section 7 of the Loan
Agreement, as amended hereby, and (b) agrees that neither the repurchase of
Borrower's Senior Subordinated Notes nor the purchase of the Property shall
constitute an Event of Default so long as Borrower, is at all times in
compliance with the provisions of Section 7 of the Loan Agreement, as amended
hereby.
3. Amendments to Loan Agreement. The Loan Agreement is hereby amended in
the following respects:
(a) Section 1 of the Loan Agreement is hereby amended by deleting the
definitions of "Adjusted Net Earnings from Operations," "Adjusted Tangible
Assets," "Adjusted Tangible Net Worth," "Capital Expenditures," "Capital
Leases," and "Restricted Investment" in their entirety.
(b) Section 7 of the Loan Agreement is hereby amended to read in its
entirety as follows:
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"7. Financial Covenants. Parent covenants and agrees with
Lender, so long as this Agreement shall remain in effect and the
principal of or interest on the Note or any other Obligation, shall be
unpaid, as follows:
(a) Maximum Leverage Ratio. Parent shall not permit the Leverage
Ratio of any date to exceed the applicable ratio for such date as set
forth in Section 9.11(a) of the Credit Agreement (as such ratios in
the Credit Agreement may be modified from time to time with the
consent of Lender).
(b) Minimum Interest Coverage Ratio. Parent shall not permit the
Interest Coverage Ratio for any Measurement Period ending at any date
to exceed the applicable ratio for such date as set forth in Section
9.11(b) of the Credit Agreement (as such ratios in the Credit
Agreement may be modified from time to time with the consent of
Lender).
(c) Minimum Fixed Charge Coverage Ratio. Parent shall not permit
the ratio of (x) Consolidated EBITDA plus Consolidated Rental Payments
less Capital Expenditures for any Measurement Period on or after the
Closing Date to (y) Fixed Charges for such Measurement Period on or
after the Closing Date at any date to be less than the applicable
ratio for such date as set forth in Section 9.11(c) of the Credit
Agreement (as such ratios in the Credit Agreement may be modified from
time to time with the consent of Lender).
4. Further Assurances. Subsequent to the date hereof, Borrower shall
execute and deliver to Lender such documents as Lender may reasonably request to
confirm, evidence or accomplish the modifications intended hereby.
5. Costs. Borrower agrees to pay all costs incurred by the execution and
consummation of this Agreement, including, without limitation, all attorneys'
fees, and other out-of-pocket expenses.
6. Loan Documents Effective. All terms and conditions of the Loan
Documents, except as modified, renewed and extended herein, shall remain in full
force and effect and the parties hereto hereby ratify and affirm all such terms
and conditions. Notwithstanding anything to the contrary contained in the Loan
Documents, the language and provisions set out herein shall control in the event
of any conflict. Except as otherwise specifically provided in this Agreement,
nothing herein shall constitute release or waiver of (a) any obligations or
indebtedness of Borrower under any of the Loan Documents, or (b) any Event of
Default under the Loan Documents, or any of Lender's rights or remedies with
respect thereto, that may exist.
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7. ENTIRE AGREEMENT. THIS AGREEMENT TOGETHER WITH THE LOAN DOCUMENTS
HERETOFORE EXECUTED (AS SAME ARE AMENDED BY THIS AGREEMENT) 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.
8. Binding Effect. This Agreement shall bind the parties hereto and their
respective successors and assigns.
9. Counterpart Execution. This Agreement may be executed in multiple
counterparts, all of which, taken together, shall constitute one and the same
instrument.
LENDER:
COMPASS BANK
By: /R. Xxxxx Xxxx/
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Name: R. Xxxxx Xxxx
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Its: Vice President
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BORROWER:
TUESDAY MORNING CORPORATION
By: /Xxxx X. Xxxxxx/
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Name: Xxxx X. Xxxxxx
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Its: Executive Vice President
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