EXHIBIT 10.2
Execution Copy
CONSENT AGREEMENT
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THIS CONSENT AGREEMENT is made and entered into effective as of September
26, 2001 by and between TUESDAY MORNING PARTNERS, LTD., a Texas limited
partnership ("Borrower"), TUESDAY MORNING CORPORATION, a Delaware corporation
("Parent"), and COMPASS BANK, a state banking association formerly known as
Compass Bank - Dallas ("Lender").
RECITALS:
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A. Parent, Borrower and Lender entered into a Loan Agreement on June 3,
1999 (the "Loan Agreement"), pursuant to which Lender made a loan in the amount
of $6,500,00 to Borrower (the "Loan").
B. The Loan is evidenced by a Promissory Note in the original principal
amount of $6,500,000 dated June 3, 1999 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 Borrower to Xxxxxx X. Xxxxxx, Trustee (the
"Deed of Trust"), covering certain real property in Dallas County, Texas more
particularly described therein. The Deed of Trust has been recorded in the Real
Property Records of Dallas County, Texas.
D. Parent, 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 Parent.
E. Parent, 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 Parent to
repurchase, redeem or otherwise acquire from time to time its outstanding Senior
Subordinated Notes, (ii) to allow Parent 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. The financial covenants set forth in Section 15 of the Loan Agreement
incorporate by reference certain of the financial covenants set forth in Section
9.11 of the Credit Agreement.
G. Borrower and Parent have requested that Lender consent to the
foregoing transactions and the related amendments to the Credit Agreement,
including the amendments to Sections 9.11(a), 9.11(b) and 9.11(c) of the Credit
Agreement set forth in the Amendment; 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, Parent 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.
2. Consent. Lender hereby (a) consents to (i) Parent's execution and
delivery of the Amendment, (ii) Parent'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) Parent'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 the financial
covenants set forth in Sections 9.11(a), 9.11(b) and 9.11(c) of the Credit
Agreement, as effected by the Amendment, which modified covenants shall
hereafter apply to Section 15 of the Loan Agreement, and (b) agrees that neither
the repurchase of Parent's Senior Subordinated Notes nor the purchase of the
Property shall constitute an Event of Default so long as Parent is at all times
in compliance with the provisions of Section 15 of the Loan Agreement, as
amended by the Amendment.
3. Further Assurances. Subsequent to the date hereof, Parent and Borrower
shall execute and deliver to Lender such documents as Lender may reasonably
request to confirm, evidence or accomplish the modifications intended hereby.
4. 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.
5. 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 or Parent 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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6. 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.
7. Binding Effect. This Agreement shall bind the parties hereto and their
respective successors and assigns.
8. 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 PARTNERS, LTD.
By: Days of the Week, Inc.,
a Delaware corporation, its
general partner
By: /Xxxxx X. Xxxxxxx/
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Name: Xxxxx X. Xxxxxxx
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Title: Vice President
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PARENT:
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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