SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X]QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934.
For the quarterly period ended March 31, 1999
OR
[ ]TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934.
For the transition period from ______________ to ________________
Commission File Number 1-7258
TANDYCRAFTS, INC.
(Exact name of registrant as specified in its charter)
Delaware 75-1475224
(State of incorporation) (I.R.S. Employer Identification Number)
1400 Everman Parkway, Fort Worth, Texas 76140
(Address of principal executive offices) (Zip Code)
(817) 551-9600
(Registrant's telephone number, including area code)
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the Registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No___.
-----
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
Class Shares outstanding as of April 30, 1999
- ----------------------------- ---------------------------------------
Common Stock, $1.00 par value 12,012,112
TANDYCRAFTS, INC.
Form 10-Q
Quarter Ended March 31, 1999
TABLE OF CONTENTS
PART 1 - FINANCIAL INFORMATION
Item Page No.
- ---- --------
1. Condensed Consolidated Financial Statements 3-9
2. Management's Discussion and Analysis of
Financial Condition and Results of Operations 10-17
PART II - OTHER INFORMATION
6. Exhibits and Reports on Form 8-K 18
Signatures 19
PART I
------
Item 1. Financial Statements
--------------------
TANDYCRAFTS, INC.
Condensed Consolidated Statements of Income
(In thousands, except per share amounts)
(Unaudited)
<TABLE><S><C>
Three Months Ended Nine Months Ended
March 31, March 31,
--------------------------- ---------------------------
1999 1998 1999 1998
---------- ----------- ----------- -----------
Net sales $ 50,253 $ 53,100 $ 154,171 $ 181,696
---------- ----------- ----------- -----------
Operating costs and expenses:
Cost of products sold 36,061 35,766 110,328 120,302
Selling, general and administrative 15,094 14,935 48,525 48,532
Restructuring charges - - 8,145 -
Depreciation and amortization 1,117 1,254 3,284 3,783
---------- ----------- ----------- ----------
Total operating costs and expenses 52,272 51,955 170,282 172,617
---------- ----------- ----------- ----------
Operating income (loss) (2,019) 1,145 (16,111) 9,079
Interest expense, net 517 841 1,600 2,614
---------- ----------- ----------- -----------
Income (loss) before provision
for income taxes (2,536) 304 (17,711) 6,465
Provision (benefit) for income taxes (663) 106 (4,623) 2,262
---------- ----------- ----------- -----------
Net income (loss) $ (1,873) $ 198 $ (13,088) $ 4,203
========== =========== =========== ===========
Net income (loss) per share
- basic and diluted $ (0.16) $ 0.02 $ (1.07) $ 0.33
========== =========== ========== ===========
Weighted average common shares:
Basic 12,052 12,649 12,236 12,657
Diluted 12,052 12,649 12,239 12,657
</TABLE>
TANDYCRAFTS, INC.
Condensed Consolidated Balance Sheets
(Dollars in thousands)
(Unaudited)
<TABLE><S><C>
March 31, June 30,
1999 1998
-------------- -------------
ASSETS
- ------
Current assets:
Cash, including short-term investments $ 1,365 $ 1,216
Trade accounts receivable, net of allowance for
doubtful accounts of $2,947 and $2,755, respectively 22,861 28,086
Inventories 37,144 45,990
Other current assets 6,396 7,785
-------------- -------------
Total current assets 67,766 83,077
-------------- -------------
Property and equipment, at cost 55,056 46,327
Less-accumulated depreciation (29,086) (23,441)
-------------- -------------
Property and equipment, net 25,970 22,886
-------------- -------------
Other assets 3,466 6,929
Goodwill 33,926 37,799
-------------- -------------
$ 131,128 $ 150,691
============== =============
LIABILITIES AND STOCKHOLDERS' EQUITY
- ------------------------------------
Current liabilities:
Notes payable and current portion
of long-term debt $ 600 $ 0
Accounts payable 9,001 12,155
Accrued liabilities and other 17,446 12,520
-------------- -------------
Total current liabilities 27,047 24,675
-------------- -------------
Long-term debt 27,500 34,230
Deferred income taxes 2,822 2,822
Stockholders' equity:
Common stock, $1 par value, 50,000,000
shares authorized, 18,527,988 shares issued 18,528 18,528
Additional paid-in capital 20,555 20,545
Retained earnings 58,986 72,074
Cost of stock in treasury, 6,487,413 shares
and 5,917,419 shares, respectively (24,310) (22,183)
-------------- -------------
Total stockholders' equity 73,759 88,964
-------------- -------------
$ 131,128 $ 150,691
============== =============
</TABLE>
TANDYCRAFTS, INC.
Condensed Consolidated Statements of Cash Flows
(In thousands)
(Unaudited)
<TABLE><S><C>
Nine Months Ended
--------------------------------
March 31, March 31,
1999 1998
------------ -------------
Net cash flows from operating activities $ 7,162 $ 3,031
------------ -------------
Cash flows from investing activities:
Additions to property and equipment, net (6,478) (2,720)
Collection of note receivable 8,312 -
------------ -------------
Net cash used for investing activities 1,834 (2,720)
------------ -------------
Cash flows from financing activities:
Sales of treasury stock to employee benefit programs, net 36 13
Purchases of treasury stock (2,153) -
Repayments of credit facility, net (6,730) (470)
------------ -------------
Net cash used for financing activities (8,847) (457)
------------ -------------
Increase (decrease) in cash, including short-term
investments 149 (146)
Balance, beginning of period 1,216 1,005
------------ -------------
Balance, end of period $ 1,365 $ 859
============ =============
Supplemental data:
Acquisition of business
Fair value of assets acquired $ 3,856 $ -
Liabilities assumed $ 3,856 $ -
</TABLE>
TANDYCRAFTS, INC.
Condensed Consolidated Statement of Stockholders' Equity
(Dollars in thousands)
(Unaudited)
<TABLE><S><C>
Additional
Common paid-in Retained Treasury
stock capital earnings stock Total
-------- -------- -------- -------- -------
Balance, June 30, 1998 $ 18,528 $ 20,545 $ 72,074 $(22,183) $ 88,964
Sale of 9,686 shares of treasury stock
to employee benefit programs - - - 36 36
Purchase of 579,680 shares of treasury
stock - 10 - (2,163) (2,153)
Net loss for nine months ended
March 31, 1999 - - (13,088) - (13,088)
-------- -------- -------- -------- --------
Balance, March 31, 1999 $ 18,528 $ 20,555 $ 58,986 $(24,310) $ 73,759
======== ======== ======== ======== ========
</TABLE>
TANDYCRAFTS, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1 - BASIS OF FINANCIAL STATEMENTS
The accompanying unaudited condensed consolidated financial statements have been
prepared in accordance with the instructions to Form 10-Q and do not include all
of the information and footnotes required by generally accepted accounting
principles for complete financial statements. In the opinion of management, the
accompanying condensed consolidated financial statements contain all adjustments
(consisting of normal recurring accruals) necessary for a fair statement of the
Company's financial position as of March 31, 1999 and June 30, 1998, and the
results of operations and cash flows for the nine-month periods ended March 31,
1999 and March 31, 1998. The results of operations for the three and nine-month
periods ended March 31, 1999 and 1998 are not necessarily indicative of the
results to be expected for the full fiscal year. The consolidated financial
statements should be read in conjunction with the financial statement
disclosures contained in the Company's 1998 Form 10-K and Annual Report to
Stockholders.
NOTE 2 - INVENTORIES
The components of inventories at March 31, 1999 consisted of the following (in
thousands):
Merchandise held for sale $ 26,739
Raw materials and work-in-process 10,405
-----------
$ 37,144
===========
NOTE 3 - EARNINGS PER SHARE
Basic earnings per share is computed by dividing income available to common
shareholders by the weighted-average common shares outstanding.' Diluted
earnings per share is computed by dividing the income available to shareholders
by the weighted-average common shares and potentially dilutive common shares
outstanding during the period. For the three and nine-month periods ending
March 31, 1999 and 1998, the number of weighted average shares and potentially
dilutive common shares is as follows (in thousands):
<TABLE><S><C>
Three Months Ended Nine Months Ended
March 31, March 31,
-------------------- --------------------
1999 1998 1999 1998
--------- --------- --------- ---------
Weighted average shares - basic 12,052 12,649 12,236 12,657
Potentially dilutive shares - - 3 -
--------- --------- --------- ---------
Total weighted average common and
potentially dilutive shares - diluted 12,052 12,649 12,239 12,657
========= ========= ========= =========
</TABLE>
NOTE 4 - SHARE REPURCHASE PROGRAM
In September 1998, the Company's Board of Directors authorized a common share
repurchase program that provides for the Company to purchase, in the open market
and through negotiated transactions, up to $2 million of the Company's
outstanding common stock. As of March 31, 1999, the Company had repurchased
approximately 519,000 shares for an aggregate purchase price of $1,937,000.
NOTE 5 - ACCOUNTS RECEIVABLE SECURITIZATION
The Company utilizes a revolving trade accounts receivable securitization
program to sell without recourse, through a wholly-owned subsidiary, certain
trade accounts receivable. Under the program, the maximum amount allowed to be
sold at any given time through March 31, 1999, was $12,000,000.
The maximum amount of receivables that can be sold is seasonally adjusted. At
March 31, 1999, the amount of trade accounts receivable outstanding which had
been sold approximated $5,772,000. The proceeds from the sales were used to
reduce borrowings under the Company's revolving credit facility. Costs of the
program, which primarily consist of the purchaser's financing cost of issuing
commercial paper backed by the receivables, totaled $86,000 and $270,000 for the
three and nine-month periods ended March 31, 1999, respectively. The Company,
as agent for the purchaser of the receivables, retains collection and
administrative responsibilities for the purchased receivables.
NOTE 6 - DIVESTITURE
In the quarter ended December 31, 1998, the Board of Directors of the Company
approved a plan to close the Company's 121 leather and crafts retail stores and
related manufacturing operations to allow the Company to continue to narrow its
focus to its more profitable business segments. The divestiture plan calls for
all retail stores and related manufacturing operations to be closed by June 30,
1999.
As a result of this plan, the Company recorded charges totaling $11,106,000
during the quarter ended December 31, 1998. Approximately $2,961,000 of these
charges related to the write-down of inventory to its liquidation value and is
included in cost of sales on the Condensed Consolidated Statements of
Operations. Approximately $8,145,000 of the charges related to the write-down
of assets and anticipated future cash outlays and is classified as restructuring
charge on the Condensed Consolidated Statements of Operations.
Approximately $5,441,000 of the restructuring charge related to non-cash write-
downs of assets to their estimated net realizable value, including $3,923,000
related to the write-down of goodwill, $1,313,000 related to the write-down of
fixed assets (primarily comprised of store fixtures and leasehold improvements
and manufacturing equipment all of which will be abandoned or sold), and
$205,000 related to the write-down of various other assets. The remaining
restructuring charge of $2,704,000 represents an accrual for anticipated future
cash outlays for lease obligations and other exit costs
As of March 31, 1999, sixty-one retail stores were closed and the lease
agreements for forty-seven of these stores had been terminated through
settlement, sub-let or assignment. Subsequent to March 31, 1999, thirty-six more
stores and substantially all of the manufacturing operations have been closed,
leaving only twenty-four stores remaining open as of the date of this filing.
The following table sets forth the activity in the restructuring reserve, which
is included in current accrued liabilities in the March 31, 1999 balance sheet
(in thousands):
December 31, Cash March 31,
1998 Payments 1999
------------ ---------- ------------
Lease obligations $ 2,346 $ 186 $ 2,160
Other 358 82 276
------------ ---------- -----------
$ 2,704 $ 268 $ 2,436
============ ========== ===========
The above provisions are estimates based on the Company's judgment at this time.
Adjustments to the restructuring provisions may be necessary in the future based
on further development of restructuring related costs.
Revenues and operating losses (before restructuring charges, but including the
inventory write-down charge of $2,961,000) for the operations to be divested are
set forth below (in thousands):
Three months ended Nine months ended
March 31, March 31,
----------------------- -----------------------
1999 1998 1999 1998
---------- ---------- ---------- ----------
Sales $ 10,788 $ 11,508 $ 30,971 $ 36,484
Operating income (loss) (3,095) 63 (8,570) 569
NOTE 7 - CARGO FURNITURE AND ACCENTS
In October 1998, the Company was informed that Cargo Furniture and Accents
("Cargo"), a former subsidiary of the Company, had obtained a financial advisor
for the purpose of actively pursuing additional capital to expedite the chain's
conversion of their mall-based furniture stores to their new, higher performing
Cargo Collection Store concept. To date, Cargo has opened eight of the Cargo
Collection Stores and seen promising results. However, due to Cargo's limited
capital resources and the poor performance of their mall-based stores, Cargo
determined that it required additional capital to complete the conversion
process.
In December, 1998, Cargo informed the Company that it was unable to obtain
additional investment capital. In addition, it was probable that Cargo would be
in default of certain covenants contained in their term note agreement, and
Cargo would not be able to cure the events of default. The Company had
guaranteed Cargo's term note, and had additional amounts receivable from Cargo.
On January 11, 1999, the Company was informed by Cargo's lender that Cargo had
defaulted on its term note and that Cargo's lender required the Company to
perform pursuant to its guaranty of the note. On February 1, 1999, the Company
complied with the lender's request. As a result of this payment, the Company
has the option to obtain a majority of Cargo's common stock, thereby obtaining
voting control of Cargo. Accordingly, the Company began to consolidate the
results of operations of Cargo effective February 1, 1999. Due to Cargo's poor
financial condition, the Company determined that recovery of the $2,481,000 note
balance and the receivables from Cargo was unlikely. Loss provisions of
$3,465,000 were included in selling, general and administrative expenses in the
December 31, 1998 financial statements. The Company is currently in negotiations
with Cargo to effect a foreclosure of its assets.
Item 2. Management's Discussion and Analysis of Financial Condition and
---------------------------------------------------------------
Results of Operations
---------------------
GENERAL
Tandycrafts, Inc. ("Tandycrafts" or the "Company") is a ''leading maker and
marketer of consumer products for the home and office, including frames and wall
decor, office supplies, leather and crafts, and novelties and gift products.
The Company's products are sold nationwide through wholesale distribution
channels, including mass merchandisers and specialty retailers, and direct-to-
consumer channels through the Company's retail stores, mail order and the
Internet. During the quarter ended December 31, 1998, the Company adopted a
plan of closing its leather and crafts retail stores and related manufacturing
operations. These divested operations comprise substantially all of the
operations within the Company's Leather and Crafts operating division.
Certain statements in this discussion, other filings with the Securities and
Exchange Commission and other Company statements are not historical facts but
are forward-looking statements. The words "believes," "expects," "estimates,"
"projects," "plans," "could," "may," "anticipates," or the negative thereof or
other variations or similar terminology, or discussions of strategies or plans
identify forward-looking statements. These forward-looking statements reflect
the Company's reasonable judgments with respect to future events and are subject
to risks and uncertainties that could cause actual results to differ materially
from such forward-looking statements. These risks and uncertainties include,
but are not limited to, the Company's ability to reduce costs through the
consolidation of certain operations, customers' willingness, need, demand and
financial ability to purchase the Company's products, new business
opportunities, the successful development and introduction of new products and
the successful development of new retail stores, the successful implementation
of new information systems, the development of direct import programs and
foreign manufacturing facilities, relationships with key customers,
relationships with professional sports leagues and other licensors, the
possibility of players' strikes in professional sports leagues, price
fluctuations for commodities such as lumber, paper, leather and other raw
materials, seasonality of the Company's operations, effectiveness of promotional
activities, changing business strategies and intense competition in retail
operations. Additional factors include economic conditions such as interest
rate fluctuations, consumer debt levels, changing consumer demand and tastes,
competitive products and pricing, availability of products, inventory risks due
to shifts in market demand, regulatory and trade environment, effects of Year
2000 issues and other factors or risks.
The following table presents selected financial data for each of the Company's
three continuing product divisions and divested operations for the three and
nine-month periods ended March 31, 1999 and 1998 (in thousands):
<TABLE><S><C>
Three Months Ended March 31,
-----------------------------------------
1999 1998 % Increase (Decrease)
------------------- -------------------- ---------------------
Operating Operating Operating
Income Income Income
Sales (loss) Sales (loss) Sales (loss)
-------- ------- --------- --------- -------- ---------
Frames and Wall Decor $ 22,772 $ 2,634 $ 21,318 $ 2,612 6.8% 0.8%
Office Supplies 10,388 618 9,971 645 4.2 (4.2)
Novelties and Promotional 3,785 (305) 3,915 (1,018) (3.3) 70.0
Cargo 2,520 (101) - - 100.0 (100.0)
-------- ------- --------- --------- ------- --------
39,465 2,846 35,204 2,239 12.1 27.1
Divested operations 10,788 (3,173) 17,896 (480) (39.7) (561.0)
-------- ------- --------- --------- ------- --------
Total operations, excluding
corporate $ 50,253 $ (327) $ 53,100 $ 1,759 (5.4)% (118.6)%
======== ======= ========= ========= ======= ========
Nine Months Ended March 31,
------------------------------------------
1999 1998 % Increase (Decrease)
------------------- -------------------- ---------------------
Operating Operating Operating
Income Income Income
Sales (loss) Sales (loss) Sales (loss)
-------- ------- --------- --------- -------- ----------
Frames and Wall Decor $ 77,306 $ 9,979 $ 74,484 $ 9,495 3.8% 5.1%
Office Supplies 31,232 1,548 30,238 1,557 3.3 (0.6)
Novelties and Promotional 12,142 (525) 16,016 (294) (24.2) (78.6)
Cargo 2,520 (101) - - 100.0 (100.0)
-------- ------- --------- --------- ------- --------
123,200 10,901 120,738 10,758 2.0 1.3
Divested operations 30,971 (8,777) 60,958 871 (49.2) (1107.7)
Restructuring charge - (8,145) - - - (100.0)
-------- ------- --------- --------- ------- --------
Total operations,
excluding corporate $154,171 $(6,021) $ 181,696 $ 11,629 (15.1)% (151.8)%
======== ======= ========= ========= ======== ========
</TABLE>
RESULTS OF OPERATIONS
Consolidated net sales decreased $2,847,000, or 5.4%, and $27,525,000, or 15.1%,
respectively, for the three and nine-month periods ended March 31, 1999, as
compared to the same periods of the prior year. Excluding divested operations,
consolidated net sales increased $4,261,000, or 12.1%, and $2,462,000, or 2.0%,
respectively, for the three and nine-month periods ended March 31, 1999 compared
to last year.
The Company experienced operating losses before corporate expenses of $327,000
and $6,021,000, respectively, for the three and nine-month periods ended March
31, 1999, compared to operating income of $1,759,000 and $11,629,000,
respectively, for the same periods last year. Excluding divested operations and
restructuring charges, operating income before corporate expenses increased
$607,000, or 27.1%, and $143,000, or 1.3%, respectively, for the three and nine-
month periods ended March 31, 1999, compared to the same periods of the previous
year. Discussions relative to each of the Company's product divisions are set
forth below.
Frames and Wall Decor
Net sales at the Frames and Wall Decor division increased $1,454,000, or 6.8%,
and $2,822,000, or 3.8%, for the three and nine months ended March 31, 1999
compared to the same periods last year. The increase in sales during the
current quarter compared to the prior year quarter is largely due to an increase
in sales of plastic picture frames to existing customers, primarily in the mass
merchandise channel. The sales increase for the nine-month period reflects an
increase in the sales of the plastic picture frames combined with a year-to-date
increase in sales of framed art to existing customers.
Operating income for the Frames and Wall Decor division was flat for the quarter
ended March 31, 1999, but increased $484,000, or 5.1%, for the nine-month
period, compared to same periods last year. For the nine-month period, gross
margin as a percent of sales increased two percentage points due to improved
operating efficiencies and decreases in raw materials prices from the prior
year. Selling, General and Administrative ("SG&A") expenses increased
$1,796,000, or 21.6%, over the nine months primarily due to increased marketing
and product development costs related to the framed art program, as well as the
increased costs associated with the Company's investment in a new frame
manufacturing facility in Mexico. SG&A expenses as a percent of sales increased
to 13.1% for the nine month period ended March 31, 1999 compared to 11.7% for
the same period last year.
Several significant events occurred during the current quarter that have not yet
impacted sales but should positively effect future sales growth and
profitability of this division. During the quarter, the division became the
exclusive supplier of framed art to a national retailer and secured the majority
of all the framed art business at another large retailer. The Company continues
to be committed to making strategic investments in the Frames & Wall Decor
division, including increased sales and marketing efforts and increased
production capacity. During the fourth quarter of fiscal 1999, further
manufacturing capacity will be added for plastic frame manufacturing and the new
manufacturing facility in Mexico will begin production of frames and framed art.
Office Supplies
Sav-On Office Supplies' net sales increased $417,000, or 4.2%, and $994,000, or
3.3%, respectively, for the three and nine-month periods ended March 31, 1999,
compared to the same periods last year. Same store sales for the two periods of
fiscal 1999 increased 4.1% and 1.2%, respectively. The same-store sales
increase of the quarter was achieved despite larger competitors entering eleven
Sav-On markets during the past twelve months, including four markets during the
current quarter. Sales comparisons were positively impacted by four new stores
that were opened during the first six months of fiscal 1998.
Sav-On's operating income decreased $27,000, or 4.2%, and $9,000, or 0.6%, for
the three and nine-month periods ended March 31, 1999, compared to the same
periods last year. Gross margin as a percent of sales decreased 0.5 points and
1.2 points, respectively, for the three and nine-month periods primarily due to
increased competition and a change in sales mix, with lower-margin office
equipment and promotional merchandise comprising a larger percentage of total
sales. SG&A expenses increased $140,000, or 5.0%, and $70,000, or 1.1%, for
the three and nine-month periods compared to the same periods of the prior year.
SG&A expenses as a percent of sales decreased to 29.3% from 30.0% in the prior
year nine month period.
Novelties and Promotional
Net sales for the Novelties and Promotional division decreased $130,000, or
3.3%, and $3,874,000, or 24.2%, respectively for the three and nine-month
periods ended March 31, 1999, compared to the same periods last year. The year-
to-date decrease in net sales primarily reflects a weaker market for sports-
licensed novelty products, ""as well as a conscious effort to reposition this
division's business to focus on larger customers.
The Novelties and Promotional division had operating losses of $305,000 and
$525,000, respectively, for the three and nine month periods ended March 31,
1999 compared to losses of $1,018,000 and $294,000, respectively, for the same
periods last year. Gross margin as a percent of sales for this division
increased 9.7 percentage points for the three month period ended March 31, 1999,
but this percentage was relatively flat for the year-to-date period then ended.
SG&A expenses decreased $386,000 and $906,000, respectively, for the three and
nine-month periods primarily due to a reduction in labor and administrative
costs. Steps are being taken in the fourth quarter of fiscal 1999 to
consolidate certain functions within this division to further reduce fixed
costs.
Divested Operations
Divested operations at March 31, 1999 consist primarily of the leather and
crafts retail stores and related manufacturing operations for which a plan of
closure was approved in the second quarter of fiscal 1999. The sales and
operating income for divested operations for the two periods ending March 31,
1998 also includes Joshua's Christian Stores which the Company sold effective
May 31, 1998.
For the three and nine month periods ended March 31, 1999, net sales of the
leather and crafts operations decreased $721,000, or 6.3%, and $5,513,000, or
15.1%, respectively. The leather and crafts operations had operating losses of
$3,095,000 and $8,570,000, respectively, for the three and nine-month periods
ended March 31, 1999 compared to operating income of $63,000 and $569,000,
respectively, for the same periods of the prior year. Both periods of fiscal
1999 include a charge of $2,961,000 to write-down inventory of the leather
operations to its estimated liquidation value.
Restructuring Charges
In the quarter ended December 31, 1998, the Board of Directors of the Company
approved a plan to close the Company's 121 leather and crafts retail stores and
related manufacturing operations to allow the Company to continue to narrow its
focus to its more profitable operating business segments. The divestiture plan
calls for all retail stores and related manufacturing operations to be closed by
June 30, 1999.
As a result of this plan, the Company recorded charges totaling $11,106,000
during the quarter ended December 31, 1998. Approximately $2,961,000 of these
charges related to the write-down of inventory to its liquidation value and is
included in cost of sales on the Condensed Consolidated Statements of
Operations. Approximately $8,145,000 of the charges related to the write-down
of assets and anticipated future cash outlays and is classified as restructuring
charge on the Condensed Consolidated Statements of Operations.
Approximately $5,441,000 of the restructuring charge related to non-cash write-
downs of assets to their estimated net realizable value, including $3,923,000
related to the write-down of goodwill, $1,313,000 related to the write-down of
fixed assets (primarily comprised of store fixtures and leasehold improvements
and manufacturing equipment all of which will be abandoned or sold), and
$205,000 related to the write-down of various other assets. The remaining
restructuring charge of $2,704,000 represents an accrual for anticipated future
cash outlays for lease obligations and other exit costs.
As of March 31, 1999, sixty-one retail stores were closed and the lease
agreements for forty-seven of these stores had been terminated through
settlement, sub-let or assignment. Subsequent to March 31, 1999, thirty-six
more stores and substantially all of the manufacturing operations have been
closed, leaving only twenty-four stores remaining open as of the date of this
filing.
The following table sets forth the activity in the restructuring reserve, which
is included in current accrued liabilities in the March 31, 1999 balance sheet
(in thousands):
December 31, Cash March 31,
1998 Payments 1999
------------- ---------- ------------
Lease obligations $ 2,346 $ 186 $ 2,160
Other 358 82 276
------------- ---------- ------------
$ 2,704 $ 268 $ 2,436
============= ========== ============
The above provisions are estimates based on the Company's judgment at this time.
Adjustments to the restructuring provisions may be necessary in the future based
on further development of restructuring related costs. Although no additional
restructuring plans are currently under consideration, the Company continues to
evaluate possible actions which will improve the profitability and competitive
position of the Company.
Revenues and operating losses (before restructuring charges, but including the
inventory write-down charge of $2,961,000) for the operations to be divested are
set forth below (in thousands):
Three months ended Nine months ended
March 31, March 31,
---------------------- ----------------------
1999 1998 1999 1998
---------- ---------- ---------- ----------
Sales $ 10,788 $ 11,508 $ 30,971 $ 36,484
Operating income (loss) (3,095) 63 (8,570) 569
Cargo Furniture and Accents
In October 1998, the Company was informed that Cargo Furniture and Accents
("Cargo"), a former subsidiary of the Company, had obtained a financial advisor
for the purpose of actively pursuing additional capital to expedite the chain's
conversion of their mall-based furniture stores to their new, higher performing
Cargo Collection Store concept. To date, Cargo has opened eight of the Cargo
Collection Stores and seen promising results. However, due to Cargo's limited
capital resources and the poor performance of their mall-based stores, Cargo
determined that it required additional capital to complete the conversion
process.
In December, 1998, Cargo informed the Company that it was unable to obtain
additional investment capital. In addition, it was probable that Cargo would be
in default of certain covenants contained in their term note agreement, and
Cargo would not be able to cure the events of default. The Company had
guaranteed Cargo's term note, and had additional amounts receivable from Cargo.
On January 11, 1999, the Company was informed by Cargo's lender that had Cargo
defaulted on its term note and that Cargo's lender required the Company to
perform pursuant to its guaranty of the note. On February 1, 1999, the Company
complied with the lender's request. As a result of this payment, the Company
has the option to obtain a majority of Cargo's common stock, thereby obtaining
voting control of Cargo. Accordingly, the Company began to consolidate the
results of operations of Cargo effective February 1, 1999. Due to Cargo's poor
financial condition, the Company determined that recovery of the $2,481,000 note
balance and the receivables from Cargo was unlikely. Loss provisions of
$3,465,000 were included in selling, general and administrative expenses during
the quarter ended December 31, 1998. The Company is currently in negotiations
with Cargo to effect a foreclosure of its assets. Once completed, the Company
plans to execute Cargo's conversion plan for select stores to the Cargo
Collection Store concept.
Selling, general and administrative expenses
Consolidated selling, general and administrative (SG&A) expenses were 30.0% and
31.5%, as a percent of sales, for the three and nine-month periods ended March
31, 1999, respectively, compared to 28.1% and 26.7% for the corresponding
periods last year as a result of the decrease in consolidated sales. In total
dollars, SG&A expenses increased $159,000, or 1.1%, for the three months ended
March 31, 1999, but was essentially flat for the nine-month period ended March
31, 1999 compared to the corresponding periods last year.
Interest expense, net
Net interest expense decreased $324,000, or 38.5%, for the three-month period
ended March 31, 1999, and $1,014,000, or 38.8%, for the nine-month period ended
March 31, 1999 compared to the corresponding periods of the prior year. The
decreases in interest expense are due primarily to lower average borrowings, as
a result of the Company's efforts to reduce long-term debt, as well as $70,000
and $410,000 of interest income recognized during the three and nine-month
periods ended March 31, 1999, respectively.
Depreciation and amortization
Consolidated depreciation and amortization decreased $137,000, or 10.9%, and
$499,000, or 13.2%, for the three and nine-month periods ended March 31, 1999,
respectively, compared to the corresponding periods last year. The decrease is
primarily due to the divestiture of Joshua's during fiscal 1998.
LIQUIDITY AND CAPITAL RESOURCES
The Company's primary source of liquidity has been cash flows from operations
and collection of a note receivable related to the sale of Joshua's Christian
Stores. These funds have been used primarily for capital expenditures, to
repurchase the Company's common stock and to reduce borrowings under the
Company's revolving credit facility.
During the nine-months ended March 31, 1999, cash increased $149,000. Cash
provided by operating activities of $7,162,000 primarily resulted from improved
working capital management and profitability (net of non-cash write-downs).
'Cash provided by investing activities of $1,834,000 resulted primarily from the
collection of a note receivable from the sale of Joshua's Christian Stores,
partially offset by capital expenditures for property and equipment of
$6,478,000 related primarily to additional capacity at Pinnacle Art & Frame and
investments in information systems. Cash of approximately $8,847,000 was used
by financing activities for repayments of borrowings under the Company's
revolving credit facility and for repurchases of the Company's common stock.
Effective March 31, 1999, the Company entered into a new revolving credit
facility with a group of banks. The new facility is a $45 million two-year
revolving line of credit which is renewable annually. The terms of the new
facility are essentially the same as the $50 million facility the Company had
been operating under previously.
Effective November 3, 1997, the Company entered into an Interest Rate Swap
Agreement with its primary bank in which a $20,000,000 notional amount of
floating rate debt at LIBOR was swapped for a fixed rate of 6.01%. The Swap
Agreement has a three-year term and is being accounted for as a hedge by the
Company. The transaction was executed to hedge interest rate risk on the
Company's interest obligation associated with a portion of its revolving credit
facility, and to change the nature of the liability from a variable to a fixed
interest obligation. At March 31, 1999, the Company would have had to pay
approximately $261,500 to terminate the interest rate swap. This amount was
obtained from the counterparties and represents the fair market value of the
Swap Agreement.
The Company utilizes a revolving trade accounts receivable securitization
program to sell without recourse, through a wholly-owned subsidiary, certain
trade accounts receivable. Under the program, the maximum amount allowed to be
sold at any given time through March 31, 1999, was $12,000,000.
The maximum amount of receivables that can be sold is seasonally adjusted. At
March 31, 1999, the amount of trade accounts receivable outstanding which had
been sold approximated $5,772,000. The proceeds from the sales were used to
reduce borrowings under the Company's revolving credit facility. Costs of the
program, which primarily consist of the purchaser's financing cost of issuing
commercial paper backed by the receivables, totaled $86,000 and $270,000 for the
three and nine-month periods ended March 31, 1999, respectively. The Company,
as agent for the purchaser of the receivables, retains collection and
administrative responsibilities for the purchased receivables.
In September 1998, the Company's Board of Directors authorized a common share
repurchase program that provides for the Company to purchase, in the open market
and through negotiated transactions, up to $2 million of the Company's
outstanding common stock. As of March 31, 1999, the Company had repurchased
approximately 519,000 shares for an aggregate purchase price of $1,937,000.
Cash of approximately $6,478,000 was used for capital expenditures during the
nine-months ended March 31, 1999. Planned capital expenditures for the
remainder of fiscal 1999 approximate $2,775,000 and are primarily targeted for
investments in Pinnacle Art & Frame and investments in information systems.
Management believes that the Company's current cash position, its cash flows
from operations and available borrowing capacity will be sufficient to fund its
current operations, capital expenditures and current growth plans. Actual
results may differ from this forward-looking projection. Please refer to the
discussion of risk factors contained herein.
THE YEAR 2000
The Company has initiated a comprehensive project ("Year 2000 project") designed
to minimize or eliminate business disruption caused by potential processing
problems associated with the "Year 2000" issue. The Year 2000 project, which
addresses both the Company's information technology ("IT") systems and non-IT
systems, consists of three phases: identification and analysis, planning, and
implementation and testing. The Company's Year 2000 project has used both
internal and external resources.
The first phase of the Company's Year 2000 project involves identifying and
analyzing the IT and non-IT systems that are susceptible to failures or
processing errors as a result of Year 2000 issues. This phase consisted of the
Company and its operating units identifying the systems that may require
remediation or replacement. Through its systems requirements study, the Company
believed that, with respect to IT systems, five should be remediated through
replacement and three remediated through upgrades. With respect to non-IT
systems, the Company believed that there was an insubstantial susceptibility to
the Year 2000 issue. This phase has been completed.
The second phase of the Year 2000 project involves analyzing proposed
remediations and planning how to implement such remediations. The Company then
established priorities for remediation. This phase has been completed for IT
systems.
The third phase of the Year 2000 project involves implementing and testing the
proposed remediations. With regard to IT systems, as of May 1, 1999 four of the
five replacements have been completed and the remaining one is in process. One
upgrade has been completed, while the other two are in process. The Company's
objective is to substantially complete the implementation and testing phase by
June 30, 1999, although it is possible that further remediation efforts may be
required thereafter to address Year 2000 issues discovered during testing.
Additionally, as part of its Year 2000 project, the Company has identified
certain service providers, vendors, suppliers, and customers ("Key Partners")
that it believes are critical to business operations after January 1, 2000. The
Company initiated communications with such Key Partners in an attempt to
reasonably ascertain their stage of Year 2000 readiness. The Company has
received responses to approximately 75% of these questionnaires. The majority
of such responses indicated that Key Partners had Year 2000 remediation programs
and expected to be compliant by at least year end 1999. The Company has sent
follow-up inquiries to the Key Partners who have not responded to the Company's
questionnaire. The Company plans to continue assessment of Key Partners, which
may include further communications, interviews and face-to-face meetings, as
deemed appropriate. Despite the Company's efforts, there can be no guaranty
that the systems of other companies which the Company relies upon to conduct its
operations and business will be compliant.
In addition to the above measures, the Company is currently developing
contingency plans intended to mitigate the possible disruption in business
operations from the Year 2000 issue. The Company intends to continue to
evaluate and modify contingency planning as additional information becomes
available.
The Company estimates that the costs of the Year 2000 project will range from
$2.2 million to $2.5 million. As of March 31, 1999, the Company had spent
approximately $2.2 million. The cost estimates do not include any costs
associated with the implementation of contingency plans and any potential costs
related to any customer or other claims relating to the Year 2000 issue.
Because of the number of systems used by the Company, the significant number of
service providers, vendors, suppliers and customers, and the interdependent
nature of systems, there can be no guaranty that the Company will not experience
some disruption in its business due to the Year 2000 issue. Although it is not
currently possible to quantify the most reasonably likely worst case scenario,
the possible consequences of the Company or Key Partners not being fully ready
in a timely manner include without limitation temporary plant closings, delays
in the delivery of products, delays in the receipt of supplies, invoice and
collection errors and inventory and supply obsolescence. Consequently, the
business and operations of the Company could be materially adversely affected by
a temporary inability of the Company to conduct its business in the ordinary
course for periods of time due to the Year 2000 issue. However, the Company
believes that its Year 2000 project and related contingency planning should
reduce the adverse effect any such disruptions may have.
The Year 2000 project is an ongoing process and the risk assessments, estimates
of costs, projected completion dates and other factors are forward looking
statements and are subject to change. Factors that may cause such changes
include without limitation, the continued availability of qualified personnel
and other information technology resources; the ability to identify and
remediate all date sensitive lines of computer code and embedded chips; the
timely receipt and installation of Year 2000 ready replacement systems and
upgrades; the actions of governmental agencies, utilities and other third
parties with respect to the Year 2000 issue; the ability to implement
contingency plans; the occurrence of broad-based or systemic economic failures.
CONTINGENCIES
A former subsidiary of the Company, which was spun-off in 1978, filed for
Chapter 11 protection under the federal bankruptcy code in January 1996. As
part of the bankruptcy proceedings, the former subsidiary has rejected certain
store leases which were originated prior to the spin-off and for which the
Company was allegedly a guarantor. An accrual for claims associated with the
alleged guarantees on leases rejected as of March 31, 1999 has been established.
Based on the information presently available, management believes the amount of
the accrual at March 31, 1999 is adequate to cover the liability the Company may
incur under the alleged guarantees.
TANDYCRAFTS, INC.
PART II - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
--------------------------------
(a) Exhibits:
Exhibit 10.22 Revolving Credit Agreement dated
March 31, 1999
Exhibit 27 Financial Data Schedule
(b) Reports on Form 8-K:
The Company filed a Current Report on Form 8-K, dated March 8, 1999,
which included the contents of a press leases announcing that the
Company had sold Nocona Belt Company to M&F Western Products, Inc.
The Company filed a Current Report on Form 8-K, dated April 23, 1999,
which included the contents of a press release announcing the
unaudited results of operations for the three and nine-month periods
ended March 31, 1999.
The Company filed a Current Report on Form 8-K, dated May 4, 1999,
which included the contents of a press leases announcing that the
Company had 'elevated James D. Allen to the position of executive vice
president and chief operating officer. Tandycrafts also named Michael
J. Murray as treasurer and Troy A. Huseman as controller.
TANDYCRAFTS, INC.
SIGNATURES
----------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
TANDYCRAFTS, INC.
(Registrant)
Date: May 14, 1999 By:/s/Michael J. Walsh
--------------------------
Michael J. Walsh
Chief Executive Officer,
President and Director
Date: May 14, 1999 By:/s/James D. Allen
--------------------------
James D. Allen
Executive Vice President and Chief
Operating Officer
(Chief Financial Officer)
Date: May 14, 1999 By:/s/Troy A. Huseman
--------------------------
Troy A. Huseman
Assistant Vice President and
Controller
(Chief Accounting Officer)
REVOLVING CREDIT AGREEMENT
AMONG
TANDYCRAFTS, INC.
("COMPANY")
THE DEVELOPMENT ASSOCIATION, INC.
SAV-ON, INC.
DAVID JAMES MANUFACTURING, INC.
PLC LEATHER COMPANY
TANDYARTS, INC.
LICENSED LIFESTYLES, INC.
("GUARANTORS")
AND
WELLS FARGO BANK (TEXAS), NATIONAL ASSOCIATION
BANK ONE, TEXAS, NATIONAL ASSOCIATION
("BANKS")
AND
WELLS FARGO BANK (TEXAS), NATIONAL ASSOCIATION
("AGENT")
$45,000,000.00 REVOLVING LINE
$5,000,000.00 SWING LINE
MARCH 31, 1999
TABLE OF CONTENTS
ARTICLE I - DEFINITION OF TERMS.................................1
1.02. Other Definitional Provisions 11
ARTICLE II - REVOLVING CREDIT LOAN; SWING LINE LOAN; LETTER OF CREDIT FACILITY
..........................................................11
2.01. Revolving Credit Commitment 11
2.02. Manner of Borrowing 12
2.03. Interest Rate 14
2.04. Letters of Credit 14
ARTICLE III - NOTES AND INTEREST RATE PAYMENTS.................16
3.01. Promissory Notes 16
3.02. Principal Payments on Revolving Credit Loans and
Swing Line Loans 16
3.03. Prepayments 16
3.04. Payment of Interest on the Notes 16
3.05. Calculation of Interest Rates 17
3.06. Manner and Application of Payments 17
3.07. Pro Rata Treatment 17
3.08. Lending Office 17
3.09. Taxes 18
3.10. Sharing of Payments 18
ARTICLE IV - SPECIAL PROVISIONS FOR LIBOR LOANS ...............19
4.01. Inadequacy of LIBOR Loan Pricing 19
4.02. Unavailability of LIBOR; Illegality 19
4.03. Increased Costs for LIBOR Loans 20
4.04. Effect on Interest Options 20
4.05. Payments Not at End of Interest Period 20
ARTICLE V - CONDITIONS PRECEDENT...............................21
5.01. Initial Advances 21
5.02. All Advances 22
5.03. Letters of Credit 23
ARTICLE VI - REPRESENTATIONS AND WARRANTIES....................23
6.01. Organization and Good Standing of Company 23
6.02. Organization and Good Standing of Guarantors 24
6.03. Authorization and Power 24
6.04. No Conflicts or Consents 24
6.05. Enforceable Obligations 24
6.06. No Liens 24
6.07. Financial Condition 24
6.08. Full Disclosure 24
6.09. No Default 25
6.10. No Litigation 25
6.11. Regulatory Defects 25
6.12. Use of Proceeds; Margin Stock 25
6.13. No Financing of Corporate Takeovers 25
6.14. Taxes 25
6.15. Principal Office, Etc. 25
6.16. ERISA 25
6.17. Compliance with Law 25
6.18. Government Regulation 26
6.19. Insider 26
6.20. Subsidiaries 26
6.21. Solvency 26
6.22. Environmental Matters 26
6.23. Representations and Warranties 27
6.24. No Subordination 27
6.25. Permits, Franchises 27
6.26. Survival of Representations, Etc. 27
ARTICLE VII - AFFIRMATIVE COVENANTS............................27
7.01. Financial Statements 27
7.02. Payment of Obligations; Maintain Books
and Reserves 29
7.03. Inspection of Property 29
7.04. Compliance with Laws, Etc. 29
7.05. Maintenance of Existence and Qualifications 29
7.06. Maintenance of Properties; Insurance 29
7.07. Yield Maintenance 30
7.08. Transactions With Affiliates 30
7.09. Compliance with Loan Documents 30
7.10. Compliance with Material Agreements 30
7.11. Operations and Properties 30
7.12. Books and Records; Access 30
7.13. Security For Letters of Credit 30
7.14. Additional Information 31
7.15. Guaranty of Additional Subsidiary Corporations 31
7.16. Principal Depositary 31
7.17. Application of Proceeds of Sale and
Equity Securities 31
7.18. Further Assurances 31
7.19. Year 2000 Compliance 31
7.20. Taxes and Other Liabilities 31
7.21. Litigation 31
ARTICLE VIII - NEGATIVE COVENANTS..............................32
8.01. Leverage Ratio 32
8.02. Fixed Charge Coverage Ratio 32
8.03. Current Ratio 32
8.04. Minimum Consolidated Tangible Net Worth 32
8.05. Limitation on Dividends, Acquisition of Stock
and Restricted Payments 32
8.06. Acquisitions 32
8.07. Disposition of Assets 32
8.08. Sale of Accounts Receivable 33
8.09. Negative Pledge 33
8.10. No Grant of Negative Pledge 33
8.11. Limitation on Additional Indebtedness 33
8.12. Guaranty 33
8.13. Merger; Consolidation 33
8.14. Capital Expenditures 33
8.15. Sale and Leaseback 33
8.16. Prepayment of Indebtedness 33
ARTICLE IX - EVENTS OF DEFAULT; REMEDIES UPON EVENT OF DEFAULT.34
9.01. Events of Default 34
9.02. Remedies Upon Event of Default 34
9.03. Performance by Banks 35
9.04. Remedies Cumulative 35
ARTICLE X - ARBITRATION PROGRAM................................35
10.01. Binding Arbitration 35
10.02. Governing Rules 35
10.03. No Waiver; Provisional Remedies; Self-Help
and Foreclosure 36
10.04. Arbitrator Qualifications and Powers; Awards 36
10.05. Judicial Review 36
10.06. Miscellaneous 36
ARTICLE XI - THE AGENT.........................................37
11.01. Appointment and Authorization 37
11.02. Note Holders 37
11.03. Consultation with Counsel 37
11.04. Documents 37
11.05. Resignation or Removal of Agent 37
11.06. Responsibility of Agent 37
11.07. Notices of Event of Default 38
11.08. Independent Investigation 38
11.09. Indemnification 38
11.10. Benefit of Article XI 38
11.11. Not a Loan to Agent; No Duty to Repurchase 38
11.12. Amendments, Waivers, etc. 38
11.13. Bank's Representations 39
ARTICLE XII - MISCELLANEOUS....................................39
12.01. Waiver 39
12.02. Notices 39
12.03. Payment of Expenses 39
12.04. Savings Clause 39
12.05. Amendments 40
12.06. Governing Law 40
12.07. Invalid Provisions 40
12.08. Headings 40
12.09. Participation Agreements and Assignments 40
12.10. Successors. 43
12.11. Right of Setoff; Deposit Accounts. 43
12.12. Survival. 43
12.13. No Third Party Beneficiary. 43
12.14. Counterpart Execution 43
12.15. Prior Agreement 43
12.16. Final Agreement 44
LIST OF EXHIBITS
Exhibit "A" - Total Commitment
Exhibit "B" - Promissory Note ($22,500,000.00 per Bank)
Exhibit "C" - Promissory Note (Swing Line)
Exhibit "D" - Request for Borrowing - Base Rate Borrowing
Exhibit "E" - Request for Borrowing - Libor Borrowing
Exhibit "F" - Confirmation of Request for Borrowing - Base Rate Borrowing
Exhibit "G" - Confirmation of Request for Borrowing - Libor Borrowing
Exhibit "H" - Unlimited Guaranty
Exhibit "I" - Continuing Letter of Credit Agreement
Exhibit "J" - Assignment and Acceptance
Exhibit "K" - Litigation
Exhibit "L" - Compliance with Law
Exhibit "M" - Environmental Matters
REVOLVING CREDIT AGREEMENT
This Revolving Credit Agreement is made by and among TANDYCRAFTS, INC., a
Delaware corporation ("Company "), THE DEVELOPMENT ASSOCIATION, INC., a Texas
corporation, SAV-ON, INC., a Texas corporation, DAVID JAMES MANUFACTURING, INC.,
a Texas corporation, PLC LEATHER COMPANY, a Nevada corporation, TANDYARTS, INC.,
a Nevada corporation, and LICENSED LIFESTYLES, INC., a Nevada corporation
(collectively the "Guarantors"), and WELLS FARGO BANK (TEXAS), NATIONAL
ASSOCIATION and BANK ONE, TEXAS, NATIONAL ASSOCIATION(collectively, the "Banks")
and WELLS FARGO BANK (TEXAS), NATIONAL ASSOCIATION, as agent for the Banks
("Agent").
W I T N E S S E T H:
-------------------
WHEREAS, Company has requested Banks to provide it with a primary
revolving credit facility and a secondary revolving credit facility for working
capital and for general corporate purposes and a letter of credit facility to
issue commercial and standby letters of credit; and
WHEREAS, Company has requested that Banks provide it with such facilities,
and Banks are willing to provide such facilities to Company, upon the terms and
subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises herein contained
and for other valuable consideration, the parties hereto do hereby agree as
follows:
ARTICLE I
---------
DEFINITION OF TERMS
-------------------
For the purposes of this Revolving Credit Agreement, unless the context
requires otherwise, the following terms shall have the respective meanings
assigned to them in this Article I below:
"Advance" has the meaning assigned to such term in Section 2.01(a).
"Affiliate" of any designated Person means any Person that has a
relationship with the designated Person whereby either of such Persons directly
or indirectly controls or is controlled by or is under common control with the
other, or holds or beneficially owns five percent (5%) or more of any class of
voting securities of the other. For this purpose, "control" means the power,
direct or indirect, of one Person to direct or cause direction of the management
and policies of another, whether by contract, through voting securities or
otherwise. Notwithstanding the foregoing, no Person shall be deemed to be an
Affiliate of another solely by reason of such Person's being a participant in a
joint operating group or joint undivided ownership group.
"Applicable Margin" means the percentage set forth below determined by
reference to the Leverage Ratio in effect from time to time:
Commitment Base
Leverage Ratio Libor Fee Rate
- -------------- ----- ---------- ----
Equal to or less than 2.00 to 1.00 .65% .225% 0
Greater than 2.00 to 1.00 but equal .75% .225% 0
to or less than 2.50 to 1.00
Greater than 2.50 to 1.00 but equal 1.00% .25% 0
to or less than 3.00 to 1.00
Greater than 3.00 to 1.00 but equal 1.25% .375% 0
to or less than 3.25 to 1.00
Greater than 3.25 to 1.00 but equal 1.50% .45% 0
to or less than 3.50 to 1.00
Greater than 3.50 to 1.00 1.75% .50% 0
"Arbitration Program" has the meaning assigned to such term in Article X.
"Banks" means Wells Fargo Bank (Texas), National Association and Bank One,
Texas, National Association and all other banks which are parties to this Loan
Agreement or any amendment thereto.
"Base LIBOR" means the rate per annum for United States dollar deposits
quoted by Agent as the Inter-Bank Market Offered Rate, with the understanding
that such rate is quoted by Agent for the purpose of calculating effective rates
of interest for loans making reference thereto, on the first day of an Interest
Period for delivery of funds on said date for a period of time approximately
equal to the number of days in such Interest Period and in an amount
approximately equal to the principal amount to which such Interest Period
applies. Company understands and agrees that Agent may base its quotation of
the Inter-Bank Market Offered Rate upon such offers or other market indicators
of the Inter-Bank Market as Agent in its discretion deems appropriate including,
but not limited to, the rate offered for U.S. dollar deposits on the London
Inter-Bank Market by reference to the Dow Jones Telerate page 3750.
"Base Rate" means, at any time, the rate of interest per annum most
recently announced within Wells Fargo Bank (Texas), National Association at its
principal office as its Prime Rate, with the understanding that the Prime Rate
is one of Bank's base rates and serves as the basis upon which effective rates
of interest are calculated for those loans making reference thereto, and is
evidenced by the recording thereof in such internal publication or publications
as Wells Fargo Bank (Texas), National Association may designate. Each change in
the rate of interest shall become effective on the date each Prime Rate change
is announced within said Bank.
''Base Rate Advance" means any principal amount under a Note with respect
to which the interest rate is calculated by reference to the Base Rate.
"Base Rate Borrowing" means any Borrowing composed of Base Rate Advances
and, if the context so indicates, a Swing Line Loan.
"Borrowing" has the meaning assigned to such term in Section 2.01(a).
"Business Day" means a day upon which business is transacted by national
banks in Fort Worth, Texas, New York, New York and San Francisco, California.
"Capital Lease" means, as of any date, any lease of property, real or
personal, which would be capitalized on a balance sheet of the lessee prepared
as of such date, in accordance with GAAP.
"Capital Lease Obligation" means any rental obligation which, under GAAP,
is or will be required to be capitalized on the books of the Company or any
Subsidiary, taken at the amount thereof accounted for as indebtedness (net of
interest expense) in accordance with such principles.
"Capital Expenditures" means any expenditure by a Person for an asset which
will be used in a year or years subsequent to the year in which the expenditure
is made and which asset is properly classified in the relevant financial
statements of such Person as property, equipment, improvements, fixed assets or
a similar type of capitalized assets in accordance with GAAP.
"Change in Law" has the meaning assigned to such term in Section 4.02.
"Closing Date" means March 31, 1999.
"Commitment" has the meaning assigned to such term in Section 2.01(a).
"Commitment Fee" has the meaning assigned to such term in Section 2.01(c).
"Consequential Loss" has the meaning assigned to such term in Section 4.05.
"Consolidated" means the consolidation of any Person, in accordance with
GAAP, with its properly consolidated subsidiaries. References herein to a
Person's Consolidated financial statements, financial position, financial
condition, liabilities, etc., refer to the consolidated financial statements,
financial position, financial condition, liabilities, etc. of such Person and
its properly consolidated subsidiaries.
"Consolidated Net Income" means, with respect to any period, consolidated
net earnings (after income taxes) of Company and its Subsidiaries for such
period, determined in accordance with GAAP, but excluding (i) any gain or loss
arising from the sale of capital assets; (ii) any gain arising from any write-up
of assets; (iii) earnings of any other Person, substantially all of the assets
of which have been acquired by Company or any of its Subsidiaries in any manner,
to the extent that such earnings were realized by such other Person prior to the
date of such acquisition; (iv) net earnings of any Person in which Company or
any of its Subsidiaries has an ownership interest, unless such earnings have
actually been received by Company or any of its Subsidiaries in the form of cash
distributions; (v) the earnings of any Person to which assets of the Company or
any of its Subsidiaries shall have been sold, transferred or disposed of, or
into which Company or any of its Subsidiaries shall have merged, to the extent
that such earnings arise prior to the date of such transaction; and (vi) any
gain arising from the acquisition of any securities of Company or any of its
Subsidiaries.
"Consolidated Indebtedness" means all Indebtedness of Company and its
Subsidiaries on a Consolidated basis.
"Consolidated Net Worth" means, as of any date, the sum of the capital,
surplus and retained earnings less any amount thereof attributable to treasury
stock as would be reflected on a balance sheet of the Company and its
Subsidiaries on a Consolidated basis in accordance with GAAP.
"Consolidated Tangible Net Worth" means Consolidated Net Worth less
Intangible Assets.
"Controlled Group" means (i) the controlled group of corporations as
defined in section 1563 of the United States Internal Revenue Code of 1986, as
amended, or (ii) the group of trades or business under common control as defined
in section 414(c) of the United States Internal Revenue Code of 1986, as
amended, of which Company is part or may become a part.
"Conversion Date" means the LIBOR Business Day that a Base Rate Borrowing
is converted to a LIBOR Borrowing.
"Current Assets" means, on a Consolidated basis, all cash, accounts
receivable, inventory, marketable securities, and all other assets of Company
and Subsidiaries as may properly be classified as current assets in accordance
with GAAP.
"Current Liabilities" means, on a Consolidated basis, all liabilities of
Company and Subsidiaries maturing on demand or within one year from the date on
which Current Liabilities are to be determined, and all other liabilities as may
be properly classified as current liabilities in accordance with GAAP. The
Revolving Credit Loans on the date in question shall be a Current Liability.
"Current Maturities of Long Term Debt" means that portion of the long term
debt of Company and Subsidiaries, on a consolidated basis, and that portion of
the Capital Lease Obligations of Company and Subsidiaries, on a consolidated
basis, which will be due in the twelve (12) months immediately following any
date of computation of Current Maturities of Long Term Debt in accordance with
GAAP, but excluding balloon payments of long term debt due at maturity, unless
such balloon payment is reasonably expected to be paid at maturity.
"Dividends," in respect of any corporation, means:
(i) Cash distributions or any other distributions on, or in respect of,
any class of capital stock of such corporation, except for
distributions made solely in shares of stock of the same class; and
(ii) Any and all funds, cash or other payments made in respect of the
redemption, repurchase or acquisition of such stock, unless such stock
shall be redeemed or acquired through the exchange of such stock with
stock of the same class.
"Dollars" and the sign $ means lawful currency of the United States of
America.
"EBITDA" means for any period, the sum of Consolidated Net Income
(excluding extraordinary gains and losses) plus income taxes, Non-Cash Charges,
Tandy Leather Restructuring Charges (which shall not exceed $26,056,000.00 for
Company's fiscal year ending June 30, 1999) and interest expense deducted in
calculating such Consolidated Net Income during such period.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, together with all regulations issued pursuant thereto.
"Environmental Claim" means any written notice by any Person alleging
potential liability or responsibility for (i) any removal or remedial action,
including, without limitation, any clean-up, removal or treatment of any
Hazardous Material or any action to prevent or minimize the release or movement
of any Hazardous Materials through or in the air, soil, surface water, ground
water or other property, (ii) damage to the environment, or costs with respect
thereto, or (iii) personal injury (including sickness, disease or death),
resulting from or based upon (A) the presence, release or movement (including
sudden or nonsudden, accidental or nonaccidental, leaks or spills) of any
Hazardous Material at, in or from the environment or any property, whether or
not owned by the Company, or (B) circumstances forming the basis of any
violation, or alleged violation, of any Environmental Law or any permit issued
to Company or any of its Subsidiaries pursuant to any Environmental Law.
"Environmental Laws" means the Comprehensive Environmental Response,
compensation, and Liability Act (42 U.S.C. Section 9601 et seq.), the Hazardous
Material Transportation Act (49 U.S.C. Section 1801 et seq.), the Recourse
Conservation and Recovery Act (42 U.S.C. Section 6901 et seq. ), the Federal
Water Pollution Control Act (33 U.S.C. Section 1251 et seq.), the Clean Air Act
(42 U.S.C. Section 7401 et seq.), the Toxic Substances Control Act (15 U.S.C.
Section 2601 et seq.), and the Occupational Safety and Health Act (29 U.S.C.
Section 651 et seq.), as such laws have been or hereafter may be amended or
supplemented, and any and all analogous future federal, or present and future
state or local laws, and similar laws of jurisdictions other than the United
States, to which Company or any of its Subsidiaries or any of its or their
properties are subject.
"Event of Default" has the meaning assigned to such term in Article IX.
"Excess Interest Amount" has the meaning assigned to such term in Section
3.04(b).
"FDIC" means the Federal Deposit Insurance Corporation (or any successor
thereby).
"Federal Funds Rate" has the meaning assigned to such term in Section
2.02(b).
"Fixed Charge Coverage Ratio" means, on the date in question, for the
trailing four (4) quarters, the relationship of Company's and its Subsidiaries'
aggregate rent expense (excluding Joshua Christian Bookstore's rent expense for
such period and excluding Tandy Leather's rent expense for such period if during
such period the applicable lease was terminated with no further obligation of
Tandy Leather to pay rent) plus EBITDA to Company's and its Subsidiaries'
aggregate interest expense plus rent expense (excluding Joshua Christian
Bookstore's rent expense for such period and excluding Tandy Leather's rent
expense for such period if during such period the applicable lease was
terminated with no further obligation of Tandy Leather to pay rent), plus
Current Maturities of Long Term Debt.
"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles, applied on a consistent basis, as set forth in
the Opinions of the Accounting Principles Board of the American Institute of
Certified Public Accountants and/or in statements of the Financial Accounting
Standards Board and/or in such other statements by such other entity as the
Agent may approve, which are applicable as of the date in question. The
requisite that such principles be applied on a consistent basis shall mean that
the accounting principles observed in a current period are comparable in all
material respects to those applied in a preceding period. Unless otherwise
indicated herein, all accounting terms shall be defined according to GAAP.
"Guarantors" means The Development Association, Inc., a Texas corporation,
Sav-On, Inc., a Texas corporation, David James Manufacturing, Inc., a Texas
corporation, PLC Leather Company, a Nevada corporation, Tandyarts, Inc., a
Nevada corporation, and Licensed Lifestyles, Inc., a Nevada corporation, and any
other corporation which executes a Guaranty Agreement after the date of this
Loan Agreement.
"Guaranty" of any Person means any contract, agreement or understanding of
such Person pursuant to which such Person guarantees or in effect guarantees,
any Indebtedness of any other Person (the "Primary Obligor") in any manner,
whether directly or indirectly, including without limitation agreements:
(i) to purchase such Indebtedness or any property constituting security
therefor;
(ii) to advance or supply funds (A) for the purchase or payment of such
Indebtedness, or (B) to maintain working capital or other balance
sheet conditions, or otherwise to advance or make available funds for
the purchase or payment of such Indebtedness;
(iii) to purchase property, securities or services primarily for the
purpose of assuring the holder of such Indebtedness of the ability of
the Primary Obligor to make payment of the Indebtedness; or
(iv) otherwise to assure the holder of the Indebtedness of the Primary
Obligor against loss in respect thereof; except that "Guaranty" shall
not include the endorsement by Company or a Subsidiary in the ordinary
course of business of negotiable instruments or documents for deposit
or collection.
"Guaranty Agreement" means the Guaranty Agreement executed by Guarantors,
in the form of Exhibit "H" hereto, as the same may be amended or supplemented
from time to time.
"Guarantor" means any of the Guarantors.
"Hazardous Materials" means those substances which are regulated by or form
the basis of liability under any Environmental Laws.
"Indebtedness" means, with respect to any Person, all indebtedness,
obligations and liabilities of such Person, including without limitation:
(i) all "liabilities" which would be reflected on a balance sheet of such
Person, prepared in accordance with GAAP;
(ii) all obligations of such Person in respect of any Capital Lease; and
(iii) all obligations of such Person in respect of any Guaranty.
"Intangible Assets" means, on a consolidated basis, those assets of Company
and its Subsidiaries which, in accordance with GAAP, are (i) patents,
copyrights, trademarks, tradenames, franchises, goodwill, experimental expenses
and other similar assets which would be classified as intangible assets on a
balance sheet of Company and its Subsidiaries, and (ii) unamortized debt
discount.
"Interest Period" means, with respect to a LIBOR Advance, a period
commencing:
(i) on the borrowing date of such LIBOR Advance made pursuant to Section
2.02; or
(ii) on the Conversion Date pertaining to such LIBOR Advance, if such LIBOR
Advance is made pursuant to a conversion as described in Section
2.02(c); or
(iii) on the date of borrowing specified in the Request for Borrowing in
the case of a rollover to a successive Interest Period,
and ending one (1), two (2), three (3) or six (6) months thereafter (in the case
of a LIBOR Advance), as Company shall elect in accordance with Section 2.02(c);
provided, that:
(A) any Interest Period which would otherwise end on a day which
is not a LIBOR Business Day shall be extended to the next
succeeding LIBOR Business Day unless such LIBOR Business Day
falls in another calendar month in which case such Interest
Period shall end on the next preceding LIBOR Business Day;
(B) any Interest Period which begins on the last LIBOR Business
Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month or at
the end of such Interest Period) shall, subject to clause
(A) above, end on the last LIBOR Business Day of a calendar
month; and
(C) if the Interest Period for any LIBOR Advance would otherwise
end after the Termination Date, such Interest Period shall
end on the Termination Date, as the case may be.
"L/C Agreement" has the meaning assigned to such term in Section 5.03(d).
"Law" means all statutes, laws, ordinances, rules, regulations, orders,
writs, injunctions or decrees of any Tribunal.
"Letter of Credit" means any commercial letter of credit or standby letter
of credit issued pursuant to the terms of this Loan Agreement.
"Letter of Credit Fee" has the meaning assigned to such term in Section
2.04(c).
"Letter of Credit Liability'' means the aggregate undrawn face amount of
all outstanding Letters of Credit.
"Leverage Ratio" means, on the date in question, the relationship of Senior
Funded Debt to EBITDA for the trailing four (4) quarters.
"LIBOR" means the rate per annum (rounded upward, if necessary, to the
nearest whole 1/8 of 1%) and determined pursuant to the following formula:
LIBOR = Base LIBOR
-------------------------------
100% - LIBOR Reserve Percentage
"LIBOR Advance" means any principal amount under a Note with respect to
which the interest rate is calculated by reference to the Inter-Bank Market
Offered Rate for a particular Interest Period.
"LIBOR Borrowing" means any Borrowing composed of LIBOR Advances.
"LIBOR Business Day" means a Business Day on which dealings in Dollars are
carried out in the London Inter-Bank market.
"LIBOR Reserve Percentage" means the reserve percentage prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
"Eurocurrency Liabilities" (as defined in Regulation D of the Federal Reserve
Board, as amended), adjusted by Agent for expected changes in such reserve
percentage during the applicable Interest Period.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind , including without limitation, any agreement to give any of
the foregoing, any conditional sale or other title retention agreement, any
lease in the nature thereof, and the filing of or agreement to give any
financing statement or other similar form of public notice under the Laws of any
jurisdiction.
"Loan Agreement" means this Revolving Credit Agreement as such may be
amended, renewed, extended and superseded from time to time.
"Loan Documents" means this Loan Agreement, the Notes (including any
renewals, extensions and refinancing thereof), the Guaranty Agreement, and any
agreements or documents (and with respect to this Loan Agreement, and such other
agreements and documents, any amendments or supplements thereto or modifications
thereof) executed or delivered pursuant to the terms of this Loan Agreement.
"Loans" means the Revolving Credit Loans and the Swing Line Loans.
"Majority Banks" means, at any time, Banks holding Notes representing at
least sixty-seven percent (67.0%) of the aggregate unpaid principal amount of
the aggregate Revolving Credit Loans, whichever is applicable at that time, or
if no Revolving Credit Loans are at the time outstanding, Banks having at least
sixty-seven percent (67.0%) of the Total Commitment.
"Material Adverse Effect" means any act, circumstance, or event that in
Bank's reasonable judgment could have any adverse effect whatsoever upon the
validity or enforceability of the Loan Documents, (ii) causes or reasonably
could be expected to cause an Event of Default under this Loan Agreement, (iii)
is or might be material and adverse to the financial condition or business
operations of the Company and its Subsidiaries on a consolidated basis, or (iv)
could impair the ability of Company to perform its obligations under the Loan
Documents in any material respect.
"Maximum Rate" means, on any day, the highest nonusurious rate of interest
(if any) permitted by applicable law on such day. Banks hereby notify Company
that, and disclose to Company that, for purposes of the Texas Finance Code and
Texas Credit Title, as such may from time to time be amended, the "applicable
ceiling" shall be the "weekly ceiling" from time to time in effect ; provided,
however, that to the extent permitted by applicable law, Banks reserve the right
to change the "weekly ceiling" from time to time by further notice and
disclosure to Company; and, provided further, that the "highest nonusurious rate
of interest permitted by applicable law" for purposes of this Loan Agreement and
the Notes shall not be limited to the applicable rate ceiling under the Texas
Finance Code and Texas Credit Title federal laws or other state laws now or
hereafter in effect and applicable to this Loan Agreement and the Notes (and the
interest contracted for, charged and collected hereunder or thereunder) shall
permit a higher rate of interest.
"Net Income" means the net income of the applicable Person excluding equity
in earnings of nonconsolidated entities as defined in accordance with GAAP.
"Non-Cash Charges" means the sum of depreciation and amortization
(including amortization of good will) plus the net increase in deferred tax
liability, if any, less the net decrease in deferred tax liability, if any, plus
contributions of common stock of Company by Company to the Tandycrafts, Inc.
Retirement Savings Plan during such period, all as reflected in the Consolidated
financial statements of Company and its Subsidiaries in accordance with GAAP in
an amount not to exceed the aggregate amount deducted by Company for such period
for federal income tax purposes with respect to Company's contribution to the
Tandycrafts, Inc. Employee Stock Ownership Plan.
"Notes" means the promissory notes executed by Company and delivered
pursuant to the terms of this Loan Agreement, together with any renewals,
extensions or modifications thereof. Depending on the context, the term "Notes"
may include the Swing Line Note. "Note" means any of the Notes.
"Notice of Swing Line Borrowing" has the meaning assigned to such term in
Section 2.02(d).
"Obligation" means all present and future indebtedness, obligations, and
liabilities of Company to Banks or any of them, and all renewals and extensions
thereof, or any part thereof, arising pursuant to this Loan Agreement or
represented by the Notes, and all interest accruing thereon, and reasonable
attorneys' fees incurred in the enforcement or collection thereof, regardless of
whether such indebtedness, obligations and liabilities are direct, indirect,
fixed, contingent, joint, several or joint and several; together with all
indebtedness, obligations and liabilities of Company evidenced or arising
pursuant to any of the other Loan Documents, and all renewals and extensions
thereof, or part thereof.
"Officer's Certificate" means a certificate signed in the name of Company
by its Chief Executive Officer, President, one of its Executive Vice Presidents,
its Chief Financial Officer, one of its Vice Presidents, or its Controller.
"Operating Lease Expense" means all rental expenses of Company and its
Subsidiaries relating to real estate, but specifically excluding any rental
expense of Company and its Subsidiaries relating to equipment.
"Other Taxes" has the meaning assigned to such term in Section 3.09(b).
"Past Due Rate" means the lesser of (a) the Base Rate in effect from
day-to-day, plus five percent (5.0%), or (b) the Maximum Rate.
"PBGC" means the Pension Benefit Guaranty Corporation, and any successor to
all or any of the Pension Benefit Guaranty Corporation's functions under ERISA.
"Permitted Liens" means: (i) purchase money liens relating to or securing
obligations in an aggregate amount not to exceed five hundred thousand dollars
($500,000.00); (ii) pledges or deposits made to secure payment of Worker's
Compensation (or to participate in any fund in connection with Worker's
Compensation), unemployment insurance, pensions or social security programs;
(iii) Liens imposed by mandatory provisions of law such as for materialmen's,
mechanics, warehousemen's and other like Liens arising in the ordinary course of
business, securing Indebtedness whose payment is not yet due unless the same are
being contested in good faith and for which adequate reserves have been
provided; (iv) Liens for taxes, assessments and governmental charges or levies
imposed upon a Person or upon such Person's income or profits or property, if
the same are not yet due and payable or if the same are being contested in good
faith and as to which adequate reserves have been provided; (v) good faith
deposits in connection with tenders, leases, real estate bids or contracts
(other than contracts involving the borrowing of money), pledges or deposits to
secure public or statutory obligations, deposits to secure (or in lieu of)
surety, stay, appeal or customs bonds and deposits to secure the payment of
taxes, assessments, customs duties or other similar charges;(vi) encumbrances
consisting of zoning restrictions, easements, or other restrictions on the use
of real property, provided that such do not impair the use of such property for
the uses intended, and none of which is violated by Company or any of its
Subsidiaries in connection with existing or proposed structures or land use; and
(vii) contractual liens and security interests applicable to inventory,
equipment, and fixtures created by real property leases in which the lessee is
SAV-ON, Inc., Casual Concepts, Inc., Joshua's Christian Bookstores, or Tandy
Leather.
"Percentage" means, with respect to any Bank, such Bank's proportionate
share of the Total Commitment, as set forth in Exhibit "A" opposite its name
under the heading "Commitment Percentage."
"Person" means and include an individual, partnership, joint venture,
corporation, trust, Tribunal, unincorporated organization or government or any
department, agency or political subdivision thereof.
"Plan" means an employee benefit plan or other plan maintained by Company
for employees of Company and any of its Subsidiaries and/or covered by Title IV
of ERISA, or subject to the minimum funding standards under Section 412 of the
Internal Revenue Code of 1986, as amended.
"Regulation U" means Regulation U promulgated by the Board of Governors of
the Federal Reserve System, 12 C.F.R. Part 221, or any other regulation
hereafter promulgated by said Board to replace the prior Regulation U and having
substantially the same function.
"Regulation X" means Regulation X promulgated by the Board of Governors of
the Federal Reserve System, 12 C.F.R. Part 224, or any other regulation
hereafter promulgated by said Board to replace the prior Regulation X and having
substantially the same function.
"Regulatory Defect" means (i) any failure of Company or any Guarantor to
comply with any of the rules, regulations and other requirements as contemplated
in Section 7.04 hereof which would have a Material Adverse Effect, and/or (ii)
any unfavorable examination report shall be received by Company or any Guarantor
from any regulatory or similar Tribunal regarding any of the businesses or
activities in which the Company and Guarantors are engaged, if such report would
have a Material Adverse Effect.
"Request for Borrowing" has the meaning assigned to such term in Section
2.02(a).
"Restricted Payments" has the meaning assigned to such term in Section
8.05.
"Revolving Credit Loans" has the meaning assigned to such term in Section
2.01(a).
"Revolving Credit Period" has the meaning assigned to such term in Section
2.01(a).
"Senior Funded Debt" means the sum of (a) all Indebtedness to Banks, (b)
all Indebtedness to financial institutions other than Banks, (c) obligations
under Capital Leases, and (d) all contingent obligations of Company and its
Subsidiaries (but excluding the guaranties of real property leases addressed in
Section 8.12).
"Subsidiary" means, as to any particular parent corporation, any
corporation of which more than fifty percent (by number of votes) of the Voting
Stock shall be owned by such parent corporation and/or one or more corporations
which themselves have more than fifty percent (by number of votes) of their
Voting Stock owned by such parent corporation. As used herein, the term
"Subsidiary" means any "Subsidiary" of the Company.
"Swing Line Bank" means Wells Fargo Bank (Texas), National Association.
"Swing Line Borrowing" means a borrowing consisting of a Swing Line Loan.
"Swing Line Facility" means the revolving line of credit described in
Section 2.01(d) as such may be amended from time to time.
"Swing Line Loan" has the meaning assigned to such term in Section 2.01(d).
"Swing Line Note" means the Swing Line Note of Company payable to the order
of Swing Line Bank, in substantially the form of Exhibit "C" hereto, and any and
all replacements, amendments, renewals and modifications thereof.
"Tandy Leather" means the Leather and Crafts reporting division of
Company.
"Tandy Leather Restructuring Charges" means the restructuring charges
incurred by Tandy Leather resulting from the closing and liquidation of Tandy
Leather.
"Taxes" means all taxes, levies, assessments, fees, withholdings or other
charges at any time imposed by any Laws or Tribunal.
"Termination Date" means March 31, 2001.
"Total Commitment" has the meaning assigned to such term in Section
2.01(a).
"Tribunal" means any municipal, state, commonwealth federal, foreign,
territorial or other court, governmental body, subdivision, agency, department,
commission, board or bureau or instrumentality.
"Voting Stock" means, with respect to any Subsidiary, any shares of any
class of stock of such Subsidiary having general voting power under ordinary
circumstances to elect a majority of the Board of Directors of such Subsidiary
irrespective of whether at the time stock of any other class or classes shall
have or might have voting power by reason of the happening of any contingency.
1.02. Other Definitional Provisions.
(a) All terms defined in this Loan Agreement shall have the
above-defined meanings when used in the Notes or any Loan Documents,
certificate, report or other document made or delivered pursuant to this
Loan Agreement, unless the context therein shall otherwise require.
(b) Defined terms used herein in the singular shall import the plural
and vice versa.
(c) The words "hereof," "herein," "hereunder" and similar terms when
used in this Loan Agreement shall refer to this Loan Agreement as a whole
and not to any particular provision of this Loan Agreement.
(d) All financial and other accounting terms not otherwise defined
herein shall be defined and calculated in accordance with GAAP consistently
applied.
ARTICLE II
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REVOLVING CREDIT LOAN; SWING LINE LOAN; LETTER OF CREDIT FACILITY
-----------------------------------------------------------------
2.01. Revolving Credit Commitment.
(a) Revolving Loan Commitments. Subject to the terms and conditions
of this Loan Agreement, each Bank severally agrees to extend to Company,
from the date hereof through the Termination Date (the "Revolving Credit
Period"), a revolving line of credit which shall not exceed at any one time
outstanding the amount set forth opposite its name on Exhibit "A" (for each
Bank, such amount is hereinafter referred to as its "Commitment"). No Bank
shall be obligated to make any Advance hereunder if, immediately after
giving effect thereto, the aggregate amount of all indebtedness and
obligation of Company to such Bank hereunder exceeds such Bank's
Commitment. If at any time the aggregate amount of all indebtedness and
obligations of Company to any Bank hereunder exceeds such Bank's
Commitment, Company shall promptly pay to Agent for application to the
unpaid principal balance of such Bank's Note in an amount such that the
aggregate amount of all indebtedness and obligations of Company to such
Bank (after giving effect to such payment and reduction in the unpaid
principal balance of such Bank's Note) shall not exceed such Bank's
Commitment.
Banks shall not be obligated to make any Advance hereunder, if
immediately after giving effect thereto, the sum of (i) the aggregate
unpaid principal balance of the Notes, including the Swing Line Note and
(ii) the Letter of Credit Liability would exceed at such time the Total
Commitment. Within the limits of this Section 2.01, prior to the
Termination Date, Company may borrow, prepay pursuant to Section 4.04
hereof and reborrow under this Section 2.01. Each borrowing pursuant to
this Section 2.01 and Section 2.02 shall be funded ratably by Banks in
proportion to their respective Percentages. Each advance made by a Bank
under Section 2.01(a), Section 2.02, and Section 2.04 is herein called an
"Advance"; all Advances made by a Bank hereunder are herein collectively
called a "Revolving Credit Loan"; the aggregate unpaid principal balance of
all Advances made by Banks hereunder are herein collectively called the
"Revolving Credit Loans"; and the combined Advances made by Banks on any
given day are herein collectively called a "Borrowing." The "Total
Commitment" shall be that amount set forth opposite the term "Total
Commitment" on Exhibit "A." A Swing Line Loan is not a Revolving Credit
Loan or a Borrowing.
(b) Optional and Mandatory Reduction of Commitment . Company shall
have the right, upon three (3) Business Days' prior written notice to
Agent, to terminate or to permanently reduce the unborrowed portion of the
Total Commitment, in whole or in part (provided any partial reduction shall
be in the minimum amount of $1,000,000.00 or any integral multiple
thereof), effective on the first day of any calendar quarter hereafter.
Effective March 31, 2000, the Total Commitment automatically shall reduce
to an amount not to exceed $40,000,000.00. In addition, the application of
net proceeds generated by the Company's sale of Sav-On, Inc. (as described
in Section 7.17[c]) shall permanently reduce the Total Commitment by the
amount of such net sales proceeds. Each partial reduction of the Total
Commitment shall ratably reduce each Bank's Commitment.
(c) Commitment Fee In addition to the payments provided for in
Article III, Company shall pay to Agent, for the account of each Bank, on
the first day of each fiscal quarter of Company, a Revolving Credit Loan
commitment fee ("Commitment Fee"). The Commitment Fee shall be calculated
by applying the Applicable Margin, determined as of the beginning of such
fiscal quarter of Company (calculated on the basis of a year consisting of
360 days) to the average daily amount of such Bank's Commitment which was
unused during the immediately preceding fiscal quarter of Company. Swing
Line Loans shall not be considered use of the Commitment when calculating
the Commitment Fee.
(d) Swing Line Loans. Company may request Swing Line Bank to make,
and Swing Line Bank, in its sole discretion, may make, on the terms and
conditions hereinafter set forth, loans ("Swing Line Loans") to Company
from time to time on any Business Day during the period from the Closing
Date until the Termination Date in an aggregate amount not to exceed five
million dollars ($5,000,000.00) at any one time outstanding. Swing Line
Bank shall not make any Swing Line Loan, if immediately after giving effect
thereto, the sum of (i) the aggregate unpaid principal balance of the
Notes, including the Swing Line Note, and (ii) the Letter of Credit
Liability would exceed at such time the Total Commitment. Each Swing Line
Borrowing shall be in an amount not less than ten thousand dollars
($10,000.00). Within the limits of the Swing Line Facility, so long as
Swing Line Bank, in its sole discretion, elects to make Swing Line Loans,
Company may borrow under this Section 2.01(d), repay pursuant to Section
3.06 and reborrow under this Section 2.01(d); provided, however, no Swing
Line Loan shall be outstanding for more than ten (10) consecutive Business
Days.
2.02. Manner of Borrowing.
(a) Request for Borrowing. Each request by Company to Agent for a
Borrowing under Section 2.01 (a "Request for Borrowing") shall be in
writing or by telephonic notice and specify the aggregate amount of such
requested Borrowing, the requested date of such Borrowing, and, when the
Request for Borrowing specifies a LIBOR Borrowing, the Interest Period
which shall be applicable thereto; provided, however, that the aggregate
number of unpaid LIBOR Borrowings shall not exceed eight (8) at any time.
Company shall furnish to Agent the Request for Borrowing as set forth in
Section 2.02(c). Any written Request for Borrowing shall: (i) in the case
of a Base Rate Borrowing, be in the form attached hereto a Exhibit "D ,"
and (ii) in the case of a LIBOR Borrowing, be in the form attached hereto
as Exhibit "E." If such Request for Borrowing is by telephonic notice,
said telephonic notice shall be confirmed in writing promptly after such
telephonic notice pursuant to a Confirmation of Request for Borrowing (i)
substantially in the form attached hereto as Exhibit "F" in the case of a
Base Rate Borrowing and (ii) substantially in the form attached hereto as
Exhibit "G" in the case of a LIBOR Borrowing. A Request for Borrowing and
a Confirmation of Request for Borrowing may be provided by facsimile
transmission; however, Bank must be in receipt of one or the other prior to
funding the Advance. Each Base Rate Borrowing shall be in an aggregate
principal amount of one hundred thousand dollars ($100,000.00) or any
integral multiple of one hundred thousand dollars ($100,000.00). Each
LIBOR Borrowing shall be in an amount of one million dollars
($1,000,000.00) or any higher integral multiple of $1,000,000.00.
Each Request for Borrowing shall be irrevocable and binding on Company
and, in respect of the Borrowing specified in such Request for Borrowing,
Company shall indemnify each Bank against any cost, loss or expense
incurred by such Bank as a result of any failure to fulfill, on or before
the date specified for such Borrowing, the conditions to such Advance set
forth herein, including without limitation, any cost, loss or expense
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by Bank to fund the Advance to be made by Bank as part of
such Borrowing when such Advance, as a result of such failure, is not made
on such date.
After receiving a Request for Borrowing in the manner provided herein,
Agent shall promptly notify each Bank by telephone (confirmed immediately
by telex or cable), telex or cable of the amount of the Borrowing and such
Bank's pro rata share of such Borrowing, the date on which the Borrowing is
to be made, the interest option selected and, if applicable, the Interest
Period selected.
(b) Funding. Each Bank shall, before 1:00 P.M. (Fort Worth time) on
the date of such Borrowing specified in the notice received from Agent
pursuant to Section 2.02(a), deposit with Agent such Bank's ratable portion
of such Borrowing in immediately available funds to Agent's account. Upon
fulfillment of all applicable conditions set forth herein and after receipt
by Agent of such funds, Agent shall pay or deliver such proceeds to or upon
the order of Company at the principal office of Agent in immediately
available funds. The failure of any Bank to make any Advance required to
be made by it hereunder shall not relieve any other Bank of its obligation
to make its Advance hereunder. If any Bank shall fail to provide its
ratable portion of such funds and if all conditions to such Borrowing shall
have been satisfied, Agent will make available such funds as shall have
been received by it from the other Banks, in accordance with this Section
2.02(b). Neither Agent nor any Bank shall be responsible for the
performance by any other Bank of its obligations hereunder. In the event of
any failure by a Bank to make an Advance required hereunder, the other
Banks may (but shall not be required to) purchase (on a pro rata basis,
according to their respective Percentages) such Bank's Note. Upon the
failure of a Bank to make an Advance required to be made by it hereunder,
Agent shall use good faith efforts to obtain one or more banks, acceptable
to Company and Agent, to replace such Bank, but neither the Agent nor any
other Bank shall have any liability or obligation whatsoever as a result of
the failure to obtain a replacement for such Bank.
Unless Agent shall have received notice from a Bank prior to the date
of any Borrowing that such Bank will not make available to Agent such
Bank's ratable portion of such Borrowing, Agent may assume that such Bank
has made such portion available to Agent on the date of such Borrowing in
accordance with this Section 2.02(b) and Agent may, in reliance upon such
assumption, make available to or on behalf of Company on such date a
corresponding amount. If and to the extent such Bank shall not have so made
such ratable portion available to Agent, such Bank severally agrees to
repay to Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available
to or on behalf of Company until the date such amount is repaid to Agent,
(i) in the case of Borrower, at the rate per annum equal to the rate
applicable to the Borrowing in question, and (ii) in the case of a Bank,
the Federal Funds Rate. If such Bank shall repay to the Agent such
corresponding amount, such amount so repaid shall constitute such Bank's
Advance as part of such Borrowing for purposes of this Agreement. As used
herein, the phrase "Federal Funds Rate" shall mean, for any period, a
fluctuating interest rate per annum equal for each day during such period
to 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 for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank of
Dallas, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by Agent.
(c) Selection of Interest Option. Upon making a Request for
Borrowing under Section 2.02(a) hereof, Company shall advise Agent as to
whether the Borrowing shall be (i) a LIBOR Borrowing, in which case Company
shall specify the applicable Interest Period therefor, or (ii) a Base Rate
Borrowing. At any time any portion of a Revolving Credit Loan bears
interest determined in relation to LIBOR, it may be continued by Company at
the end of the Interest Period applicable thereto so that all or a portion
thereof bears interest determined in relation to the Base Rate or to LIBOR
for a new Interest Period designated by Company. At any time any portion
of a Revolving Credit Loan bears interest determined in relation to the
Base Rate, Company may convert all or a portion thereof so that it bears
interest determined in relation to LIBOR for an Interest Period designated
by Company. At such time as Company requests an Advance or wishes to
select a LIBOR option for all or a portion of the outstanding principal
balance of the Revolving Credit Loans, and at the end of each Interest
Period, Company shall give Agent notice specifying: (i) the interest rate
option selected by Company; (ii) the principal amount subject thereto; and
(iii) for each LIBOR selection, the length of the applicable Interest
Period. Any such notice may be given by telephone so long as, with respect
to each LIBOR selection, Agent receives written confirmation from Company
not later than 11:00 a.m., Fort Worth time, on the earlier of the day of
the Advance or the first day of the Interest Period. For each LIBOR option
requested hereunder, Agent will quote the applicable LIBOR interest rate to
Company at approximately 10:00 a.m., Fort Worth time, on the first day of
the Interest Period. If Company does not immediately accept the rate
quoted by Agent, any subsequent acceptance by Company shall be subject to a
redetermination by Agent of the applicable LIBOR interest rate; provided
however, if Company fails to accept any such rate by 11:00 a.m., Fort Worth
time, on the Business Day such quotation is given, then the quoted rate
shall expire and Agent shall have no obligation to permit a LIBOR option to
be selected on such day. If no specific designation of interest is made at
the time any Advance is requested hereunder or at the end of any Interest
Period, Company shall be deemed to have made a Base Rate interest selection
for such Advance or for the principal amount to which such Interest Period
applied.
Notwithstanding anything to the contrary contained herein, Company
shall have no right to request a LIBOR Borrowing if the interest rate
applicable thereto under Section 2.03 hereof would exceed the Maximum Rate
in effect on the first day of the Interest Period applicable to such LIBOR
Borrowing.
(d) Swing Line Funding. Each Swing Line Loan shall be made on
notice, given not later than 1:00 p.m. (Fort Worth time) on the date of the
proposed Swing Line Loan, by Company to Swing Line Bank. Each such notice
of a Swing Line Loan (a "Notice of Swing Line Loan") shall be by telephone,
telex or telecopier, specifying therein the requested (i) date of such
Swing Line Loan and (ii) amount of such Swing Line Loan. If all applicable
conditions set forth in Section 5.02 are fulfilled, Swing Line Bank will
make the amount thereof available to Company by depositing such funds
received in the general deposit account of Company with Agent. Upon demand
by Swing Line Bank or in any event upon the making of the request or the
granting of the consent specified by Section 9.02 to authorize Agent to
declare the Notes due and payable pursuant to the provisions of Section
9.02, each Bank shall make, by 12:00 noon (Fort Worth time) on the first
Business Day following receipt by such Bank of notice from Swing Line Bank,
an advance in an amount equal to such Bank's Pro Rata share of such Swing
Line Loan and the proceeds of such advance will be applied by Agent to
repay the outstanding Swing Line Loans.
2.03. Interest Rate. The unpaid principal of each Base Rate Advance
shall bear interest from the date of Advance until paid at a rate per annum
which shall from day to day be equal to the lesser of (a) the Base Rate in
effect from day to day, or (b) the Maximum Rate. The unpaid principal of each
LIBOR Advance shall bear interest from the date of advance until paid at a rate
per annum which shall be equal to the lesser of (a) the sum of LIBOR for the
applicable Interest Period, plus the Applicable Margin determined as of the
Business Day Agent received the most recent Officer's Certificate described in
Section 7.01, or (b) the Maximum Rate. All past due principal of, and to the
extent permitted by applicable law, interest on the Notes (including the Swing
Line Note) shall bear interest at the Past Due Rate. Notwithstanding the
foregoing, the unpaid principal balance of the Notes shall bear interest as
provided in Section 3.04(b), upon the occurrence of the circumstances described
in such section. The unpaid principal balance of the Swing Line Note shall
bear interest at the lesser of (a) the Base Rate in effect from day to day or
(b) the Maximum Rate.
2.04. Letters of Credit.
(a) From time to time from the Closing Date until the Business Day
prior to the Termination Date, Company may request Agent to issue standby
and commercial Letters of Credit for the account of Company. Each request
shall be accompanied by a duly executed and completed Application and
Agreement For Letter of Credit ("L/C Agreement") in form and substance
reasonably satisfactory to Agent and such other documents as Agent may
reasonably require. Each Letter of Credit shall have an expiration date
which shall be the sooner of one year or the Termination Date. Agent shall
not be obligated to issue any Letter of Credit for the account of Company,
if, immediately after giving effect thereto, the sum of (a) the unpaid
principal balance of the Notes, and (b) the Letter of Credit Liability
would exceed at such time the Total Commitment; and provided further that
the aggregate undrawn amount of all outstanding standby Letters of Credit
shall not at any time exceed Five Million and no/100 Dollars
($5,000,000.00). The undrawn amount of all Letters of Credit shall be
reserved under the Commitment and shall not be available for borrowings
thereunder. Each draft paid by Agent under a Letter of Credit shall be
deemed an Advance under the Total Commitment and shall be repaid by Company
in accordance with the terms and conditions of this Loan Agreement
applicable to such Advances; provided however, that if Advances are not
available, for any reason, at the time any draft is paid by Agent then
Company shall immediately pay to Agent the full amount of such draft,
together with interest thereon from the date such amount is paid by Agent
to the date such amount is fully repaid by Company. In such event Company
agrees that Agent, in its sole discretion, may debit any demand deposit
account maintained by Company with Agent for the amount of any such draft.
Any draw or payment by Agent under a Letter of Credit for the account of
Company shall be treated as a Base Rate Advance under each of the Notes in
an amount determined by multiplying the amount of the draw or payment under
the Letter of Credit by the Percentage of each such Bank, which amount
shall be promptly remitted to Agent by each Bank on the same day as
requested by Agent.
(b) Upon the issuance of a Letter of Credit, each Bank shall be
deemed to have purchased from Agent a pro rata participation in such Letter
of Credit (including funding obligations, reimbursement rights and other
rights and obligations of Agent thereunder and other applicable provisions
of this Loan Agreement) according to such purchasing Bank's Percentage. As
a result of such purchase, the amount of such purchasing Bank's Commitment
available for the Revolving Credit Loan and Letters of Credit shall be
reduced by the amount of such participation. If or to the extent that Agent
has not been reimbursed by Company for any payment made by Agent under any
Letter of Credit, each Bank shall, pro rata according to its participation
in such Letter of Credit, reimburse Agent promptly upon demand for the
amount of such payment. The obligation of each Bank to so reimburse Agent
shall not be affected by the occurrence of an Event of Default. Any such
reimbursement by any such Bank shall not relieve or otherwise impair the
obligation of Company to reimburse Agent for the amount of any payment made
by Agent under any Letter of Credit, together with interest and other
payments as hereinafter provided. Agent shall administer each Letter of
Credit which it issues in accordance with the L/C Agreement and its
customary practices and procedures.
(c) Fees Applicable to Letters of Credit. At the time of issuance of
each Letter of Credit, Company shall pay to Agent, for the pro rata account
of each Bank, a fee in an amount equal to the Applicable Margin (under the
heading "LIBOR"), on the undrawn amount of each Letter of Credit. At the
time of issuance of each Letter of Credit, Company shall pay to Agent, as
issuing Bank, a fee of .125% per annum (calculated on the basis of a 360-
day year, actual days elapsed), on the face amount of such Letter of
Credit. The "Letter of Credit Fee" is not prorated among the Banks. In
addition, Company shall be liable to Agent, as issuing Bank, for additional
Letter of Credit fees, as such may be incurred from time to time,
including, but not limited to, fees for amendment, transfer and
negotiation, determined in accordance with Bank's standard fees and charges
then in effect for such activity.
ARTICLE III
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NOTES AND INTEREST RATE PAYMENTS
--------------------------------
3.01. Promissory Notes. The Advances under Section 2.02(a), Section
2.02(b), and Section 2.04 by a Bank shall be evidenced by a promissory note
(each a "Note" and collectively, the "Notes") of Company, which Notes shall (a)
be dated the date hereof, (b) be in the amount of such Bank's Commitment, (c)
be payable to the order of such Bank at the office of Agent, (d) bear interest
in accordance with Section 2.03, and (e) be in the form of Exhibit "B" attached
hereto with blanks appropriately completed in conformity herewith. Swing Line
Loans shall be evidenced by a promissory note (the "Swing Line Note") of Company
which Note shall (a) be dated the date hereof, (b) be in the amount of five
million dollars ($5,000,000.00), (c) be payable to the order of Agent at the
office of Agent, (d) bear interest in accordance with Section 2.03, and (e) be
in the form of Exhibit "C" attached hereto with blanks appropriately completed
in conformity herewith. Notwithstanding the principal amount of any Bank's
Note or the Swing Line Note as stated on the face thereof, the amount of
principal actually owing on such Note at any given time shall be in the
aggregate of all Advances or Swing Line Loans, as the case may be, theretofore
made to Company hereunder, less all payments of principal theretofore actually
received hereunder by a Bank or Swing Line Bank.
3.02. Principal Payments on Revolving Credit Loans and Swing Line
Loans. The unpaid principal amount of each Note (including the Swing Line
Note), and all accrued-but-unpaid interest thereon, shall be due and payable on
the Termination Date.
3.03. Prepayments.
(a) Optional Prepayments. Company may, without premium or penalty,
prepay the principal of the Notes then outstanding, in whole or in part, at
any time or from time to time; provided, however, that (i) each prepayment
of less than the full outstanding principal balance of the Notes shall be
in an amount equal to one hundred thousand dollars ($100,000.00) or an
integral multiple thereof in the case of the Notes other than the Swing
Line Note and shall be in an amount equal to ten thousand dollars
($10,000.00) or an integral multiple thereof in the case of the Swing Line
Note, and (ii) if Company shall prepay the principal of any LIBOR Advance
on any date other than the last day of the Interest Period applicable
thereto, Company shall make the payments required by Section 4.05 hereof.
(b) General Prepayment Provisions. Any prepayment of a Note
hereunder shall be applied to interest and principal in such order as Agent
shall determine in its sole discretion.
(c) Mandatory Prepayment. Section 7.17 contains mandatory prepayment
provisions.
3.04. Payment of Interest on the Notes.
(a) Revolving Credit Period. Prior to the Termination Date, the
interest on the unpaid principal amount of each Base Rate Advance and Swing
Line Loan shall be payable quarterly as it accrues on the first Business
Day of each January, April, July and October hereafter, commencing January
4, 1999, and on the Termination Date. Interest on the unpaid principal
amount of each LIBOR Advance shall be payable on the last day of such
Interest Period except in the case of a six (6) month Interest Period, when
interest shall be payable at the end of the third month as well as the end
of the Interest Period. Should any installment of interest become due and
payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day.
(b) Recapture Rate. If, on any interest payment date, Agent does not
receive interest (for the account of any Bank) on such Bank's Note computed
(as if no Maximum Rate limitations were applicable) at the applicable
contract rate described herein, because the applicable contract rate
exceeds or has exceeded the Maximum Rate, then Company shall, upon the
written demand of Agent or such Bank, pay to such Bank, in addition to
interest otherwise required hereunder, on each interest payment date
thereafter, the Excess Interest Amount calculated as of such later interest
payment date; provided, however, that in no event shall Company be required
to pay, for any appropriate computation period, interest at a rate
exceeding the Maximum Rate effective during such period. The term "Excess
Interest Amount" shall mean, on any date, with respect to the Note of any
Bank, the amount by which (i) the amount of all interest which would have
accrued prior to such date on the principal of such Note (had the
applicable contract rate(s) described herein at all times been in effect,
without limitation by the Maximum Rate) exceeds (ii) the aggregate amount
of interest actually paid to such Bank on such Note on or prior to such
date.
3.05. Calculation of Interest Rates. Interest on the unpaid principal
of each LIBOR Advance and each Base Rate Advance shall be calculated on the
basis of the actual days elapsed in a year consisting of 360 days.
3.06. Manner and Application of Payments. All regularly scheduled
payments of principal of, and interest on, any Note shall be made by Company to
Agent before 2:00 p.m. (Fort Worth time), in federal or other immediately
available funds at Agent's principal banking office in Fort Worth. Should the
principal of, or any installment of the principal or interest on, any Note,
become due and payable on a day other than a Business Day or a LIBOR Business
Day, as the case may be, the maturity thereof shall be extended to the next
succeeding Business Day or LIBOR Business Day, as the case may be. Each payment
received by Agent hereunder for the account of a Bank shall be promptly
distributed by Agent to such Bank. All payments made on any Note shall be
credited, to the extent of the amount thereof and subject to Section 3.03(b), in
the following manner: (a) first, against the amount of interest accrued and
unpaid on the Note as of the date of such payment; (b) second, against all
principal (if any) due and owing on the Note; (c) third, as a prepayment of
outstanding Base Rate Advances or Swing Line Loans under the Note; and (d)
fourth, as a prepayment of outstanding LIBOR Advances under the Note. Subject
to the foregoing, payments and prepayments of principal of the Notes shall be
applied to such outstanding Base Rate Advances, Swing Line Loans, and LIBOR
Advances under the Notes as Company shall select; provided, however, that
Company shall select Base Rate Advances, Swing Line Loans and LIBOR Advances to
be repaid in a manner designated to minimize the Consequential Loss, if any,
resulting from such payments; and provided further that, if Company shall fail
to select the Base Rate Advances, Swing Line Loans and LIBOR Advances to which
such payments are to be applied, or if an Event of Default has occurred and is
continuing at the time of such payment, then Agent shall apply the payment first
to Base Rate Advances and Swing Line Loans and then to LIBOR Advances.
3.07. Pro Rata Treatment. Each payment received by Agent hereunder for
or on account of Banks or any of them on the Notes shall be distributed to each
Bank entitled to share in such payment, pro rata in proportion to the then
unpaid principal balance of the Note of each Bank. Unless Agent shall have
received notice from Company prior to the date on which any payment is due to
Banks hereunder that Company will not make such payment in full, Agent may
assume that Company has made such payment in full to Agent on such date and
Agent may, in reliance upon such assumption, cause to be distributed to each
Bank on such due date an amount equal to the amount then due such Bank. If and
to the extent Company shall not have so made such payment in full to Agent, each
Bank shall repay to Agent on demand such amount distributed to such Bank
together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to Agent,
at the rate applicable to such portion of the Revolving Credit Loan on its due
date.
3.08. Lending Office. Each Bank may (a) designate its principal office
or a foreign branch, subsidiary or affiliate of such Bank as its lending office
(and the office to whose accounts payments are to be credited) for any LIBOR
Advance, (b) designate its principal office or a domestic branch, subsidiary or
affiliate as its lending office (and the office to whose accounts payments are
to be credited) for any Base Rate Advance and (c) change its lending offices
from time to time by notice to Agent and Company; provided, however, no Bank
shall designate a foreign branch without the consent of Company if such
designation would subject interest payments hereunder to withholding for Taxes.
In such event, such Bank shall continue to hold the Note evidencing its loans
for the benefit and account of such foreign branch, subsidiary or affiliate.
Each Bank shall be entitled to fund all or any portion of its Revolving Credit
Loan in any manner that it deems appropriate, but for the purposes of this Loan
Agreement such Bank shall, regardless of such Bank's actual means of funding, be
deemed to have funded its Loan in accordance with the interest option from time
to time selected by Company for such Borrowing.
3.09. Taxes.
(a) Any and all payments by Company hereunder or under the Notes
shall be made, in accordance with Section 3.06, free and clear of and
without deduction for any and all present or future Taxes, excluding, in
the case of each Bank and Agent, taxes imposed on its income, and franchise
taxes imposed on it, by the jurisdiction under the laws of which such Bank
or Agent (as the case may be) is organized or is or should be qualified to
do business or any political subdivision thereof and, in the case of each
Bank Taxes imposed on its income and franchise taxes imposed on it by the
jurisdiction of such Bank's lending office or any political subdivision
thereof. If Company shall be required by law to deduct any Taxes (i.e.,
Taxes for which Company is responsible under the preceding sentence) from
or in respect of any sum payable hereunder or under any Note to any Bank or
Agent, (i) the sum payable shall be increased as may be necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 3.09) such Bank or Agent
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) Company shall make such deductions and (iii)
Company shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, Company agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or under the Loan
Documents from the execution, delivery, or registration of, or otherwise
with respect to, this Agreement or the other Loan Documents (hereinafter
referred to as "Other Taxes").
(c) Company will indemnify each Bank and Agent for the full amount of
Taxes or Other Taxes (including, without limitation, any Taxes or Other
Taxes imposed by any jurisdiction on amounts payable under this Section
3.09) paid by such Bank or Agent (as the case may be) or any liability
(including penalties and interest) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or legally
asserted. This indemnification shall be made within thirty (30) days from
the date such Bank or Agent makes written demand therefor.
(d) Within thirty (30) days after the date of any payment of Taxes,
Company will furnish to Agent, at its address referred to in Section 12.02,
the original or a certified copy of a receipt evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement of
Company hereunder, the agreements and obligations of Company contained in
this Section 3.09 shall survive the payment in full of the obligation.
(f) Each Bank agrees to use good faith efforts to carry out its
obligations under this Loan Agreement in such a way as to reduce the amount
of Taxes attributable to the Revolving Credit Loans, including the use of a
different lending office, as long as in the good faith opinion of such Bank
such actions would not have a material adverse effect upon it.
3.10. Sharing of Payments. If any Bank shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of set-off,
or otherwise) on account of the Advances made by it in excess of its ratable
share of payments on account of the Advances obtained by all Banks, such Bank
shall forthwith purchase from the other Banks such participations in the
Advances made by them as shall be necessary to cause such purchasing Bank to
share the excess payment ratably with each of them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from such
purchasing Bank, such purchase from each Bank shall be rescinded and such Bank
shall repay to the purchasing Bank the purchase price to the extent of such
recovery together with an amount equal to such Bank's ratable share (according
to the proportion of (a) the amount of such Bank's required repayment, to (b)
the total amount so recovered from the purchasing Bank) of any interest or other
amount paid or payable by the purchasing Bank in respect of the total amount
recovered. Company agrees that any Bank so purchasing a participation from
another Bank pursuant to this Section 3.10 may, to the fullest extent permitted
by law exercise all of its rights of payment (including the right of set-off)
with respect to such participation as fully as if such Bank were the direct
creditor of Company in the amount of such participation.
ARTICLE IV
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SPECIAL PROVISIONS FOR LIBOR LOANS
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4.01. Inadequacy of LIBOR Loan Pricing. If with respect to an Interest
Period for any LIBOR Borrowing:
(i) Agent determines that, by reason of circumstances affecting the
Interbank LIBOR market generally, deposits in Dollars (in the
applicable amounts) are not being offered to Banks in the
Interbank LIBOR market for such Interest Period, or
(ii) Majority Banks advise Agent that the Interbank Offered Rate as
determined by Agent will not adequately and fairly reflect the
cost to such Banks of maintaining or funding the LIBOR Borrowing
for such Interest Period,
then Agent shall forthwith give notice thereof to Company, whereupon, until
Agent notifies Company that the circumstances giving rise to such suspension no
longer exist, (a) the obligation of Banks to make LIBOR Advances shall be
suspended and (b) Company shall either (i) repay in full the then outstanding
principal amount of the LIBOR Advances, together with accrued interest thereon
on the last day of the then current Interest Period applicable to such LIBOR
Advances, or (ii) convert such LIBOR Advances to Base Rate Advances in
accordance with Section 2.02(c) of this Loan Agreement on the last day of the
then current Interest Period applicable to each such LIBOR Advance.
4.02. Unavailability of LIBOR; Illegality.
(a) If Agent at any time shall determine that for any reason adequate
and reasonable means do not exist for ascertaining LIBOR, then Agent shall
promptly give notice thereof to Company. If such notice is given and until
such notice has been withdrawn by Agent, then (i) no new LIBOR option may
be selected by Company, and (ii) any portion of the outstanding principal
balance hereof which bears interest determined in relation to LIBOR,
subsequent to the end of the Interest Period applicable thereto, shall bear
interest determined in relation to the Base Rate.
(b) If any law, treaty, rule, regulation or determination of a court
or governmental authority or any change therein or in the interpretation or
application thereof (each, a "Change in Law") shall make it unlawful for
any Bank (A) to make LIBOR options available hereunder, or (B) to maintain
interest rates based on LIBOR, then in the former event, any obligation of
any Bank to make available such unlawful LIBOR options shall immediately be
canceled, and in the latter event, any such unlawful LIBOR-based interest
rates then outstanding shall be converted, at any Bank's option, so that
interest on the portion of the outstanding principal balance subject
thereto is determined in relation to the Base Rate; provided, however, that
if any such Change in Law shall permit any LIBOR-based interest rates to
remain in effect until the expiration of the Interest Period applicable
thereto, then such permitted LIBOR-based interest rates shall continue in
effect until the expiration of such Interest Period. Upon the occurrence
of any of the foregoing events, Company shall pay to Banks immediately upon
demand such amounts as may be necessary to compensate Banks for any fines,
fees, charges, penalties or other costs incurred or payable to Banks as a
result thereof and which are attributable to any LIBOR options made
available to Company hereunder, and any reasonable allocation made by Banks
among their operations shall be conclusive and binding upon Company.
4.03. Increased Costs for LIBOR Loans. If any Change in Law or
compliance by any Bank with any request or directive (whether or not having the
force of law) from any central bank or other governmental authority shall:
(a) subject any Bank to any tax, duty or other charge with respect to
any LIBOR options, or change the basis of taxation of payments to any Bank
of principal, interest, fees or any other amount payable hereunder (except
for changes in the rate of tax on the overall net income of such Bank); or
(b) impose, modify or hold applicable any reserve, special deposit,
compulsory loan or similar requirement against assets held by, deposits or
other liabilities in or for the account of, advances or loans by, or any
other acquisition of funds by any office of any Bank; or
(c) impose on any Bank any other condition;
and the result of any of the foregoing is to increase the costs to any Bank of
making, renewing or maintaining any LIBOR options hereunder and/or to reduce any
amount receivable by such Bank in connection therewith, then in any such case,
Company shall pay to such Bank immediately upon demand such amounts as may be
necessary to compensate such Bank for any additional costs incurred by such Bank
and/or reductions in amounts received by such bank which are attributable to
such LIBOR options. In determining which costs incurred by any Bank and/or
reductions in amounts received by any Bank are attributable to any LIBOR options
made available to Company hereunder, any reasonable allocation made by such Bank
among its operations shall be conclusive and binding upon Company.
4.04. Effect on Interest Options. If notice has been given pursuant to
Section 4.02 or Section 4.03 requiring the LIBOR Advances of any Bank to be
repaid or converted, then unless and until such Bank notifies Company that the
circumstances giving rise to such repayment no longer apply, all Advances shall
be Base Rate Advances. If such Bank notifies Company that the circumstances
giving rise to such repayment no longer apply, Company may thereafter select
Advances to be LIBOR Advances in accordance with Section 2.02(c) of this Loan
Agreement.
4.05. Payments Not at End of Interest Period. Company may prepay
principal on any portion of a Revolving Credit Loan which bears interest
determined in relation to LIBOR at any time and in the minimum amount of One
Hundred Thousand and No/100 Dollars ($100,000.00), or in integral multiple
thereof; provided, however, that if the outstanding principal balance of such
portion of said Revolving Credit Loan is less than said amount, the minimum
prepayment amount shall be the entire outstanding principal balance thereof. In
consideration of Banks providing this prepayment option to Company, or if any
such portion of said Revolving Credit Loan shall become due and payable at any
time prior to the last day of the Interest Period applicable thereto, Company
shall pay to Banks immediately upon demand a fee (the "Consequential Loss")
which is the sum of the discounted monthly differences for each month from the
month of prepayment through the month in which such Interest Period matures,
calculated as follows for each such month;
(a) Determine the amount of interest which would have accrued each
month on the amount prepaid at the interest rate applicable to such amount
had it remained outstanding until the last day of the Interest Period
applicable thereto.
(b) Subtract from the amount determined in (a) above the amount of
interest which would have accrued for the same month on the amount prepaid
for the remaining term of such Interest Period at LIBOR in effect on the
date of prepayment for new Advances made for such term and in a principal
amount equal to the amount prepaid.
(c) If the result obtained in (b) for any month is greater than zero,
discount that difference by LIBOR used in (b) above.
Company acknowledges that prepayment of such amount may result in Banks
incurring additional costs, expenses and/or liabilities, and that it is
difficult to ascertain the full extent of such costs, expenses and/or
liabilities. Company, therefore, agrees to pay the above-described
Consequential Loss and agrees that said amount represents a reasonable estimate
of the prepayment costs, expenses and/or liabilities of Banks.
ARTICLE V
---------
CONDITIONS PRECEDENT
--------------------
5.01. Initial Advances. The obligation of each Bank to make the Loans
herein provided for and the initial Advance (including a Swing line Loan)
thereunder is subject to the condition precedent that, on or before the date of
such Advance, Agent shall have received for each Bank the following, each dated
the date of such Advance, in form and substance satisfactory to Agent and such
Bank:
(a) Promissory Note. A duly executed promissory note, drawn to the
order of such Bank, in the form of Exhibit "B" attached hereto with
appropriate insertions.
(b) Swing Line Note. A duly executed promissory note drawn to the
order of Agent, in the form of Exhibit "C" attached hereto with appropriate
insertions.
(c) Guaranty Agreement. The Guaranty Agreement executed by each
Guarantor.
(d) Articles of Incorporation of Company. A copy of the Articles of
Incorporation of Company and all amendments thereto.
(e) Bylaws of Company. A certified copy of the bylaws of Company.
(f) Resolutions of Company. Resolutions of Company authorizing the
execution of the Loan Documents duly adopted by the Board of Directors of
Company and accompanied by a certificate of the Secretary of Company
stating that such resolutions are true and correct, have not been altered
or repealed and are in full force and effect.
(g) Incumbency Certificate of Company. An incumbency certificate
with respect to Company executed by the appropriate officers of Company.
(h) Certificates of Existence and Account Status For Company. A
current certificate of existence and good standing from the State of
Delaware and a current certificate of account status from the Comptroller
of Public Accounts of the State of Texas.
(i) Authority to Transact Business. Certificate evidencing the
authority of Company to conduct or transact business in the State of Texas.
(j) Articles of Incorporation of Guarantors. A copy of the Articles
of Incorporation of each Guarantor and all amendments thereto.
(k) Bylaws of Guarantors. A certified copy of the Bylaws of each
Guarantor.
(l) Resolutions of Guarantors. Resolutions of each Guarantor
approving the execution of the Guaranty Agreement duly adopted by the Board
of Directors of each of such Guarantor and accompanied by a certificate of
the Secretary of each of such Guarantor stating that such resolutions are
true and correct, have not been altered or repealed and are in full force
and effect.
(m) Incumbency Certificates of Guarantors. An incumbency certificate
with respect to each Guarantor executed by the appropriate officers of each
such Guarantor.
(n) Certificates of Existence and Account Status For Each Guarantor.
A current certificate of existence from the state of incorporation of each
Guarantor and a certificate of account status from the Comptroller of
Public Accounts of the State of Texas for each Guarantor.
(o) Opinion of Counsel. An executed opinion (in form and substance
satisfactory to Agent)of counsel to Company and each Guarantor.
(p) Loan Origination Fee. The loan origination fee in an amount equal
to one-tenth of one percent (.1%) of the Total Commitment.
(q) Financial Projections. Company's two (2) year financial
projections which are satisfactory in form and substance to Agent.
(r) Additional Information. Such other and additional documents,
reports and information which Agent may reasonably request of Company and
Guarantors.
5.02. All Advances. The obligations of each Bank to make any Advance
(including Swing Line Loans) under this Loan Agreement (including the initial
Advance) shall be subject to the following conditions precedent:
(a) No Defaults. As of the date of the making of such Advance, there
exists no Event of Default or event which with notice or lapse of time or
both could constitute an Event of Default.
(b) Compliance with Loan Agreement. Company shall have performed and
complied in all material respects with all agreements and conditions
contained herein and in the Loan Documents which are required to be
performed or complied with by Company before or at the date of such Advance
or conversion.
(c) Request for Borrowing. In the case of any Borrowing, Agent shall
have received from Company a Request for Borrowing in the form of either
Exhibit "D" or Exhibit "E" attached hereto, dated as of the date of such
Advance and signed by an authorized officer of Company, all of the
statements of which shall be true and correct, certifying that, as of the
date thereof, (i) all of the representations and warranties of Company
contained in this Loan Agreement and each of the Loan Documents executed by
Company are true and correct, (ii) no event has occurred and is continuing,
or would result from the Advance, which constitutes an Event of Default or
which, with the lapse of time or giving of notice or both, would constitute
an Event of Default, and (iii) such other facts as Agent may reasonably
request. If any Advance was by telephonic notice, said telephonic notice
must be confirmed in writing prior to Agent funding the Advance pursuant to
a Confirmation of Request for Advance (A) substantially in the form
attached as Exhibit "F" in the case of a Base Rate Advance and (B)
substantially in the form attached as Exhibit "G" in the case of a LIBOR
Advance.
(d) No Material Adverse Change. As of the date of making such
Advance, no change has occurred in the business or financial condition of
the Company and its Subsidiaries on a Consolidated basis which causes or
could cause a Material Adverse Effect.
(e) Representations and Warranties. The representations and
warranties contained in Article VI (other than the representations and
warranties contained in Section 6.07) hereof shall be true in all material
respects on the date of making of such Advance, with the same force and
effect as though made on and as of that date.
(f) Bankruptcy Proceedings. No proceeding or case under the United
States Bankruptcy Code shall have been commenced by or against Company or
any Guarantor.
5.03. Letters of Credit. The obligations of Bank to issue any Letter of
Credit under this Agreement (including the initial Letter of Credit issued
hereunder) shall be subject to the following conditions precedent:
(a) No Defaults. As of the date of the issuance of such Letter of
Credit, there exists no Event of Default or event which with notice or
lapse of time or both could constitute an Event of Default.
(b) Compliance with Loan Agreement. Company shall have performed and
complied in all material respects with all agreements and conditions
contained herein and in the Loan Documents which are required to be
performed or complied with by Company before or at the date of issuance of
such Letter of Credit.
(c) Continuing Letter of Credit Agreement. In the case of a request
for the issuance of a Letter of Credit, Agent shall have received from
Company a Continuing Letter of Credit Agreement in the form of Exhibit "I"
attached hereto.
(d) L/C Agreement. In the case of each request for the issuance of a
Letter of Credit, Agent shall have received from Company an Application and
Agreement For Letter of Credit ("L/C Agreement").
(e) No Material Adverse Change. As of the date of issuance of such
Letter of Credit or the creation of any Banker's Acceptance, no change has
occurred in the business or financial condition of the Company and its
Subsidiaries on a Consolidated basis which causes or could cause a Material
Adverse Effect.
(f) Representations and Warranties. The representations and
warranties contained in Article VI (other than the representations and
warranties contained in Section 6.07) hereof shall be true in all material
respects on the date of issuance of the Letter of Credit, with the same
force and effect as though made on and as of that date.
(g) Bankruptcy Proceedings. No proceeding or case under the United
States Bankruptcy Code shall have been commenced by or against Company or
any Subsidiary, except Brand Name Apparel, Inc.
ARTICLE VI
----------
REPRESENTATIONS AND WARRANTIES
------------------------------
To induce Banks to make the Loans, Company represents and warrants to Banks
that:
6.01. Organization and Good Standing of Company. Company is a
corporation duly organized and existing in good standing under the laws of the
state of its incorporation, is duly qualified as a foreign corporation and in
good standing in all states in which the failure to so qualify would have a
Material Adverse Effect and has the corporate power and authority to own its
properties and assets and to transact the business in which it is engaged and is
or will be qualified in those states wherein it will transact business in the
future and where the failure to so qualify would have a Material Adverse Effect.
6.02. Organization and Good Standing of Guarantors. Each Guarantor is
a corporation duly organized and existing in good standing under the laws of the
state of Its incorporation, is duly qualified as a foreign corporation and in
good standing in all states in which the failure to so qualify would have a
Material Adverse Effect and has the corporate power and authority to own its
properties and assets and to transact the business in which it is engaged and is
or will be qualified in those states wherein it will transact business in the
future and where the failure to so qualify would have a Material Adverse Effect.
6.03. Authorization and Power. Company has the corporate power and
requisite authority to execute, deliver and perform this Loan Agreement and the
other Loan Documents to be executed by Company; Company is duly authorized to,
and has taken all corporate action necessary to authorize Company to, execute,
deliver and perform this Loan Agreement, the Notes and the other Loan Documents
and is and will continue to be duly authorized to perform this Loan Agreement,
the Notes and the other Loan Documents. Each Guarantor has the corporate power
and requisite authority to execute, deliver and perform the Guaranty Agreement.
6.04. No Conflicts or Consents. Neither the execution and delivery of
this Loan Agreement, the Notes, the Guaranty Agreement or the other Loan
Documents, nor the consummation of any of the transactions herein or therein
contemplated, nor compliance with the terms and provisions hereof or with the
terms and provisions thereof, will contravene or materially conflict with any
provision of law, statute or regulation to which Company or any Guarantor is
subject or any judgment, license, order or permit applicable to Company or any
Guarantor, or any indenture, loan agreement, mortgage, deed of trust, or other
agreement or instrument to which Company or any Guarantor is a party or by which
Company or any Guarantor may be bound, or to which Company or any Guarantor may
be subject, or violate any provision of the Articles of Incorporation or Bylaws
of Company or any Guarantor. No consent, approval, authorization or order of any
court or governmental authority or third party is required in connection with
the execution and delivery by Company or any Guarantor of the Loan Documents or
to consummate the transactions contemplated hereby or thereby.
6.05. Enforceable Obligations. This Loan Agreement, the Notes, the
Guaranty Agreement and the other Loan Documents are the legal and binding
obligations of the person executing such Loan Documents, enforceable in
accordance with their respective terms, except as limited by bankruptcy,
insolvency or other laws of general application relating to the enforcement of
creditors' rights.
6.06. No Liens. Except for Permitted Liens, all of the properties and
assets of Company and its Subsidiaries are free and clear of all Liens and other
adverse claims of any nature, and such corporation has and will have good and
marketable title to such properties and assets.
6.07. Financial Condition. Company has delivered to Agent copies of the
balance sheet of Company as of December 31, 1998, and the related consolidated
statements of income, stockholders' equity and changes in financial position for
the period ended such date; such financial statements are true and correct in
all material respects, fairly present the financial condition of Company as of
such date and have been prepared in accordance with GAAP applied on a basis
consistent with that of prior periods except for the exclusion of footnotes and
normal adjustments; as of the date hereof, there are no obligations, liabilities
or indebtedness (including contingent and indirect liabilities and obligations
or unusual forward or long-term commitments) of Company and its Subsidiaries
which are (separately or in the aggregate) material and are not reflected in
such financial statements or disclosed in writing to Agent; no changes having a
Material Adverse Effect have occurred in the financial condition or business of
Company since December 31, 1998.
6.08. Full Disclosure. There is no material fact that Company has not
disclosed to Bank which could have a Material Adverse Effect on the properties
business, prospects or condition (financial or otherwise) of Company or any
Guarantor. Neither the financial statements referred to in Section 6.07 hereof,
nor any certificate or statement delivered herewith or heretofore. by Company to
Bank in connection with negotiation of this Loan Agreement, contains any untrue
statement of a material fact or omits to state any material fact necessary to
keep the statements contained herein or therein from being misleading in any
material respect.
6.09. No Default. No event has occurred and is continuing which
constitutes an Event of Default or which, with the lapse of time or giving of
notice or both, would constitute an Event of Default.
6.10. No Litigation. Except as described in Exhibit "K" attached
hereto, there are no actions, suits or legal, equitable, arbitration or
administrative proceedings pending, or to the knowledge of Company threatened,
against Company or any Guarantor that would, if adversely determined, have a
Material Adverse Effect.
6.11. Regulatory Defects. As of the date hereof, Company has advised
Banks, in writing, of all Regulatory Defects of which Company has been advised
or has knowledge.
6.12. Use of Proceeds; Margin Stock. The proceeds of the Loans will be
used by the Company solely for the purposes specified in the preamble. None of
such proceeds will be used for the purpose of purchasing or carrying any "margin
stock" as defined in Regulation U or G of the Board of Governors of the Federal
Reserve System (12 C.F.R. Part 221 and 207), or for the purpose of reducing or
retiring any indebtedness which was originally incurred to purchase or carry a
margin stock or for any other purpose which might constitute this transaction a
"purpose credit" within the meaning of such Regulation U or G. Company is not
engaged in the business of extending credit for the purpose of purchasing or
carrying margin stocks. Neither Company nor any Person acting on behalf of
Company has taken or will take any action which might cause the Notes or any of
the other Loan Documents, including this Loan Agreement, to violate Regulations
U or G or any other regulations of the Board of Governors of the Federal Reserve
System or to violate Section 7 of the Securities Exchange Act of 1934 or any
rule or regulation thereunder, in each case as now in effect or as the same may
hereinafter be in effect. Company does not own any "margin stock" except for
that described in the financial statements referred to in Section 6.07 hereof
and, as of the date hereof, the aggregate value of all "margin stock" owned by
Company and its Subsidiaries does not exceed 25% of the aggregate value of all
of the assets of Company and its Subsidiaries.
6.13. No Financing of Corporate Takeovers. No proceeds of the Loans
will be used to acquire any security in any transaction which is subject to
Section 13 or 14 of the Securities Exchange Act of 1934, including particularly
(but without limitation) Sections 13(d) and 14(d) thereof.
6.14. Taxes. Except as previously disclosed to Bank, all tax returns
required to be filed by the Company and its Subsidiaries in any jurisdiction
have been filed or will be filed prior to the date on which the tax payable with
respect to such return will become delinquent and all taxes (including mortgage
recording taxes), assessments, fees and other governmental charges upon Company
or any Subsidiary or upon any of its or their properties, income or franchises
have been paid prior to the time that such taxes could give rise to a lien
thereon. To the best of Company's knowledge, there is no proposed tax assessment
for delinquent taxes against Company and there is no basis for such assessment.
6.15. Principal Office, Etc. The principal office, chief executive
office and principal place of business of Company is at 1400 Everman Parkway,
Fort Worth, Tarrant County, Texas 76140, and Company maintains its principal
records and books at such address.
6.16. ERISA. (a) No Reportable Event has occurred and is continuing
with respect to any Plan; (b) PBGC has not instituted proceedings to terminate
any Plan;(c) neither the Company, any member of the Controlled Group, nor any
duly appointed administrator of a Plan (i) has incurred any liability to PBGC
with respect to any Plan other than for premiums not yet due or payable or (ii)
has instituted or intends to institute proceedings to terminate any Plan under
Section 4041 or 4041A of ERISA or withdraw from any Multi-Employer Pension Plan
(as that term is defined in Section 3(37) of ERISA); and (d) each Plan of
Company has been maintained and funded in all material respects in accordance
with its terms and with all provisions of ERISA applicable thereto.
6.17. Compliance with Law. Except as described on Exhibit "L," Company
and each of the Guarantors are in compliance in all material respects with all
laws, rules, regulations, ordinances, orders and decrees which are applicable to
Company, the Guarantors or any of their respective properties or business, the
failure to comply with which could have a Material Adverse Effect, including all
Environmental Laws. Neither Company nor any Subsidiary has been notified by any
Governmental Authority that Company or any Subsidiary has failed to comply with
any such laws, rules, regulations, orders or decrees, the failure to comply with
which would result in a Material Adverse Effect, nor has Company or any
Subsidiary been notified of any Environmental Claim except as described in
Exhibit "M."
6.18. Government Regulation. Neither Company nor any of the Guarantors
are subject to regulation under the Public Utility Holding Company Act of 1935,
the Federal Power Act, the Investment Company Act of 1940, the Interstate
Commerce Act (as any of the preceding acts have been amended), or any other law
(other than Regulation X) which regulates the incurring by Company or any of its
Consolidated Subsidiaries of indebtedness, including but not limited to laws
relating to common contract carriers or the sale of electricity, gas, steam,
water, or other public utility services.
6.19. Insider. Company is not, and no Person having "control" (as that
term is defined in 12 U.S.C. Section375(b)(5) or in regulations promulgated
pursuant thereto) of Company is, an "executive officer", "director", or "person
who directly or indirectly or in concert with one or more persons owns,
controls, or has the power to vote more than 10% of any class of voting
securities" (as those terms are defined in 12 U.S.C. Section 375(b) or in
regulations promulgated pursuant thereto) of any Bank, of a bank holding company
of which any Bank is a subsidiary, or of any subsidiary of a bank holding
company of which Bank is a subsidiary, or of any bank at which Bank maintains a
correspondent account, or of any bank which maintains a correspondent account
with any Bank.
6.20. Subsidiaries. Company directly owns all of the capital stock of
The Development Association, Inc., a Texas corporation, Sav-On, Inc., a Texas
corporation, David James Manufacturing, Inc., a Texas corporation, PLC Leather
Company, a Nevada corporation, Tandyarts, Inc., a Nevada corporation, and
Licensed Lifestyles, Inc., a Nevada corporation, in each case free and clear
from all liens, security interests, charges and encumbrances.
6.21. Solvency. Except as disclosed to Agent in writing, Company and
each of its Subsidiaries now have capital sufficient to carry on their
businesses and transactions and all business and transactions in which they are
about to engage, and for which they have projected, and are now solvent and able
to pay their debts as they mature and each of Company and its Subsidiaries now
owns property having a value, both at fair valuation and at present fair
saleable value greater than the amount required to pay its respective debts.
Without giving effect to the Guaranty Agreement, no Guarantor is "insolvent" on
the date hereof (that is, the sum of such Guarantor's absolute and contingent
liabilities does not exceed the fair market value of such Guarantor's assets).
After giving effect to the Guaranty Agreement, no Guarantor is insolvent on the
date hereof (that is, the sum of such Guarantor's absolute and contingent
liabilities including under the Guaranty Agreement, does not exceed the fair
market value of such Guarantor's assets). Each Guarantor has received or will
receive good and fair consideration for its liability and obligations incurred
in connection with the Guaranty Agreement, and the incurrence of its liability
under the Guaranty Agreement in return for such consideration may reasonably be
expected to benefit each Guarantor, directly or indirectly.
6.22. Environmental Matters. Except as described in Exhibit "M"
attached hereto, none of the properties of Company or its Subsidiaries has been
used at any time during their ownership to generate, manufacture, refine,
transport, treat, store, handle, dispose, transfer, produce, process, or in any
manner deal with Hazardous Materials. Except as described in Exhibit "M"
attached hereto, there are no past, pending or, to the best of Company's
knowledge, threatened or potential Environmental Claims against Company or any
of its Subsidiaries or with respect to any properties owned or controlled by
Company or any of its Subsidiaries. Except as described in Exhibit "M" attached
hereto, there are no underground storage tanks located on any of the properties
owned or controlled by Company or any of its Subsidiaries and, to Company's best
knowledge, there never have been any underground storage tanks located on any of
the properties owned or controlled by Company or any of its Subsidiaries, and
the Company has received no actual (as contrasted with constructive)
notification of any Environmental Claims relating to any property contiguous to
any property owned or controlled by Company or any of its Subsidiaries.
6.23. Representations and Warranties. Each Request for Borrowing shall
constitute, without the necessity of specifically containing a written
statement, a representation and warranty by Company that no Event of Default
exists and that all representations and warranties contained in this Article VI
(other than in Section 6.07) or in any other Loan Document are true and correct
at and as of the date the Advance is to be made.
6.24. No Subordination. There is no agreement, indenture, contract or
instrument to which Company is a party or by which Company may be bound that
requires the subordination in right of payment of any of Company's obligations
subject to this Agreement to any other obligation of Company.
6.25. Permits, Franchises. To the best of Company's knowledge, Company
possesses, and will hereafter possess, all permits, consents, approvals,
franchises and licenses required and rights to all trademarks, trade names,
patents, and fictitious names, if any, necessary to enable it to conduct the
business in which it is now engaged in compliance with applicable law.
6.26. Survival of Representations, Etc. All representations and
warranties made herein are true and correct when made by Company and shall
survive delivery of the Notes and the Guaranty Agreement and the making of the
Loans and any investigation at any time made by or on behalf of Agent or any
Bank shall not diminish Agent or such Bank's right to rely thereon.
ARTICLE VII
-----------
AFFIRMATIVE COVENANTS
---------------------
So long as Banks have any commitment to make Advances hereunder and until
payment in full of the Notes and the Obligation, Company agrees and covenants
that Company will (unless Majority Banks shall otherwise consent in writing):
7.01. Financial Statements. Deliver to each Bank in duplicate:
(a) Quarterly Statements: as soon as practicable and in any event
within forty-five (45) days after the end of each quarterly period (other
than the last quarterly period) in each fiscal year, a Consolidated and
consolidating statement of operations of Company and its, Subsidiaries, a
Consolidated and consolidating statement of changes in financial position
of the Company and its Subsidiaries, and a Consolidated and consolidating
balance sheet of the Company and its Subsidiaries as at the end of such
quarterly period, setting forth in each case in comparative form figures
for the corresponding period in the preceding fiscal year, all in
reasonable detail and prepared by an authorized financial officer of the
Company, and certified as being true and correct by a senior financial
officer of Company.
(b) Annual Statements: as soon as practicable and in any event within
ninety (90) days after the end of each fiscal year, a Consolidated
statement of operations of Company and its Subsidiaries, and a Consolidated
statement of changes in financial position of the Company and its
Subsidiaries for such year, and a Consolidated balance sheet of the Company
and its Subsidiaries as at the end of such year, setting forth in each case
in comparative form corresponding Consolidated figures from the preceding
year, all in reasonable detail and satisfactory in scope to Agent and
certified as being true and correct by a senior financial officer of
Company, together with an opinion by independent public accountants of
recognized standing selected by the Company and satisfactory to Agent,
whose opinion shall state that such financial statements have been prepared
in accordance with GAAP and fairly present the Consolidated financial
position of the Company and its Subsidiaries as of the date thereof and the
Consolidated results of their operations for the period thereof;
(c) Financial Projections: (i) as soon as practicable and in any
event within forty-five (45) days after the end of each of Company's fiscal
years, Consolidated projections of the Company's and its Subsidiaries'
operations, financial position and balance sheet for the succeeding fiscal
year, all in reasonable detail and satisfactory in scope to Agent; and (ii)
as soon as practicable and in any event within ninety (90) days after the
end of each of Company's fiscal years, Consolidated projections of the
Company's and its Subsidiaries' operations, financial position and balance
sheet for the second succeeding fiscal year, all in reasonable detail and
satisfactory in scope to Agent.
(d) SEC and Other Reports: promptly upon transmission thereof, copies
of all such financial statements, proxy statements, notices and reports as
Company shall send to its public security holders and copies of all
registration statements (without exhibits) and all reports which it files
with the Securities and Exchange Commission (or any governmental body or
agency succeeding to the functions of the Securities and Exchange
Commission) including, but not limited to, each Form 10-K and Form 10-Q;
(e) Audit Reports: promptly upon receipt thereof, a copy of each
other report submitted to the Company or any Subsidiary by independent
accountants in connection with any annual, interim or special audit made by
them of the books of the Company or any Subsidiary;
(f) Other Notices: promptly upon the occurrence thereof, notice of
any of the following: (i) the occurrence of any condition or event which
constitutes an Event of Default, specifying the nature and period of
existence thereof, (ii) that any Person has given any notice to the Company
with respect to a claimed Event of Default, or (iii) that any Person has
given any notice to the Company or any Subsidiary or taken any other action
with respect to a claimed default or event of default with respect to any
other indebtedness which in the aggregate exceeds the sum of two hundred
fifty thousand dollars ($250,000.00) and, with respect to any of such
events specified in subdivisions (i), (ii) or (iii) above of this Section
7.01(f), what action the Company or such Subsidiary has taken, is taking or
proposes to take;
(g) ERISA Events: promptly upon any officer of the Company obtaining
knowledge of the occurrence thereof, notice of the occurrence of any (i)
"reportable event," as such term is defined in section 4043 of ERISA, or
(ii) "prohibited transaction," as such term is defined in section 4975 of
the Code, in connection with any Plan or any trust created thereunder,
specifying the nature thereof, what action the Company or its Subsidiary
has taken, is taking or proposes to take with respect thereto, and, when
known, any action taken or threatened by the Internal Revenue Service or
the Pension Benefit Guaranty Corporation with respect thereto; provided
that with respect to the occurrence of any "reportable event" as to which
the Pension Benefit Guaranty Corporation has waived the 30-day reporting
requirement, such written notice need be given only at such time as notice
is given to the Pension Benefit Guaranty Corporation;
(h) Requested Information: with reasonable promptness, such other
financial data or other data or information related to the business or
operations of Company or its Subsidiaries as Banks may reasonably request.
Banks agree that Banks will not intentionally disclose any information
given to Banks by the Company or any of its Subsidiaries which is either
proprietary or confidential and which is prominently marked as such;
provided, however, that this restriction shall not apply to information
which has at the time in question entered the public domain, nor will this
restriction prohibit any Bank from disclosing such information (i) as is
required to be disclosed by Law or by any order, rule or regulation
(whether valid or invalid) of any Tribunal, (ii) to Bank's auditors,
attorneys, or agents, or (iii) to purchasers or prospective purchasers or
assignees of interests in the Loan Agreement or the Obligation.
Together with each delivery of financial statements required by Section 7.01(a)
above, Company will deliver to Agent an Officer's Certificate demonstrating
(with computations in reasonable detail) compliance by the Company and its
Subsidiaries with the provisions of Sections 8.01, 8.02 and 8.03 and stating
that there exists no Event of Default with respect to such covenants or
otherwise under this Loan Agreement or, if any Event of Default exists with
respect to such covenants or under this Loan Agreement, specifying the nature
and period of existence thereof and what action the Company proposes to take
with respect thereto. Together with each delivery of financial statements
required by Section 7.01(b) above, the Company will deliver to Agent an
Officer's Certificate of the Treasurer or Chief Financial Officer of Company
demonstrating (with computations in reasonable detail) compliance by the Company
and its Subsidiaries with the provisions of Sections 8.01, 8.02 and 8.03 and
stating that there exists no Event of Default with respect thereto or otherwise
under this Loan Agreement or, if any Event of Default exists with respect
thereto or under this Loan Agreement, specifying the nature and period of
existence thereof and what action the Company proposes to take with respect
thereto. By delivery of such Officer's Certificate, the officer executing such
certificate represents and warrants that the statements made therein are based
upon the level of investigation normally and customarily taken by Treasurers or
Chief Financial Officers of similarly situated corporations of established
reputation in performing their regular duties.
7.02. Payment of Obligations; Maintain Books and Reserves. Duly and
punctually pay the Obligation in accordance with the terms of this Loan
Agreement. Company will, and will cause each of its Subsidiaries to, keep proper
books of record and account and set aside appropriate reserves, all in
accordance with GAAP.
7.03. Inspection of Property. Permit any Person designated by Agent, at
Banks' expense and with reasonable notice to the Company, to visit and inspect
any of the properties of the Company and its Subsidiaries, to examine the
corporate books and financial records of the Company and its Subsidiaries and
make copies thereof or extracts therefrom and to discuss the affairs, finances
and accounts of any such corporations with officers and employees of the Company
and its independent public accountants, all at such reasonable times and as
often as Agent or Banks may reasonably request. Banks agree that Banks will keep
confidential any proprietary or confidential information given to Banks by the
Company or its Subsidiaries upon the same terms and conditions as agreed to with
respect to information Banks have obtained pursuant to Section 7.01(h) hereof.
7.04. Compliance with Laws, Etc. Comply and cause each of its
Subsidiaries to comply, in all material respects with all applicable laws,
rules, regulations and orders applicable to its business, such compliance to
include, without limitation, paying before the same become delinquent all taxes,
assessments, and governmental charges imposed upon it or upon its property,
except to the extent contested in good faith by appropriate proceedings and for
which adequate reserves have been established in accordance with GAAP, and
provided the Company or its Subsidiary, as the case may be, retains good and
marketable title to and the right to use and enjoyment of its properties or
other assets which may be affected by any such contest. Company will timely pay
and will cause its Subsidiaries to timely pay, all payments due for labor,
services and materials rendered or furnished in the ordinary course of business
which are secured by inchoate statutory Liens, except to the extent contested in
good faith by appropriate proceedings, and provided that the Company or its
Subsidiary, as the case may be, retains good and marketable title to and the
right to the use and enjoyment of its properties or other assets which may be
affected by any such contest. Company will promptly notify Agent if the Company
or any Subsidiary receives any notice, claim or demand from any governmental
agency which alleges that the Company or any Subsidiary is in violation of any
Laws or has failed to comply with any order issued pursuant to any federal,
state or local statute regulating its operation and business, the result of
which may have a Material Adverse Effect.
7.05. Maintenance of Existence and Qualifications. Maintain and
preserve and cause each of its Subsidiaries to maintain and preserve its
corporate existence and its rights and franchises in full force and effect and
obtain and maintain and cause its Subsidiaries to obtain and maintain all
permits and licenses necessary to the proper conduct of its business, including
without limitation qualifying to do business as a foreign corporation in all
states or jurisdictions where required by applicable Law.
7.06. Maintenance of Properties; Insurance. Maintain, preserve protect,
and keep and cause each of its Subsidiaries to maintain, preserve, protect and
keep, all property used or useful in the conduct of its business in good
condition and in compliance with all applicable Laws, and will from time to time
make all repairs, renewals and replacements needed to enable the business and
operations carried on in connection therewith to be promptly and advantageously
conducted at all times. Company will, and will cause each of its Subsidiaries,
to carry and maintain in full force and effect at all times with financially
sound and reputable insurers (or, in an insurance fund or by self-insurance
authorized by the jurisdiction in which its operations are carried on) insurance
in such amounts (and with co-insurance and deductibles) as such insurance is
usually carried by corporations of established reputation engaged in the same or
similar businesses and similarly situated, and the Company and its Subsidiaries
shall maintain self-insurance only to the extent that a prudent corporation of
established reputation engaged in the same or similar businesses and similarly
situated would rely upon self-insurance.
7.07. Yield Maintenance. If at any time after the date hereof, and from
time to time, any Bank determines that the adoption or modification of any
applicable law, rule or regulation regarding taxation, such Bank's required
levels of reserves, deposits, insurance or capital (including any allocation of
capital requirements or conditions), or similar requirements, or any
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation, administration or
compliance of such Bank with any of such requirements, has or would have the
effect of (a) materially increasing such Bank's costs relating to the obligation
hereunder, or (b) reducing the yield or rate of return of such Bank on the
Obligation hereunder to a level below that which Bank could have achieved but
for the adoption or modification of any such requirements, Company shall, within
fifteen (15) days of any request by any such Bank, pay to Bank such additional
amounts as (in the Bank's sole judgment, after good faith and reasonable
computation) will compensate Bank. No failure by a Bank to immediately demand
payment of any additional amounts payable hereunder shall constitute a waiver of
Bank's right to demand payment of such amounts at any subsequent time. Nothing
herein contained shall be construed or so operate as to require Company to pay
any interest, fees, costs or charges greater than is permitted by applicable
law.
7.08. Transactions With Affiliates. Conduct and cause each Subsidiary
to conduct all of their respective transactions with any Affiliate on an arm's
length basis and pursuant to the reasonable requirements of Company's and/or
such Subsidiary's business.
7.09. Compliance with Loan Documents. Company will promptly comply in
all material respects with any and all covenants and provisions of this Loan
Agreement, the Notes and all other of the Loan Documents.
7.10. Compliance with Material Agreements. Company will all comply with
all material agreements, indentures, mortgages or documents binding on it or
affecting its properties or business where the failure to so comply would have a
Material Adverse Effect.
7.11. Operations and Properties. Company will act prudently and in
accordance with customary industry standards in managing or operating its
assets, properties, business and investments; Company will keep in good working
order and condition, ordinary wear and tear excepted, all of its assets and
properties which are necessary to the conduct of its business.
7.12. Books and Records; Access. Upon prior written notice, Company
will give any representative of Agent and Banks access during all business hours
to, and permit such representatives to examine, copy or make excerpts from, any
and all books, records and documents in the possession of Company and relating
to its affairs, and to inspect any of the properties of Company. Company will
maintain complete and accurate books and records of its transactions in
accordance with good accounting practices.
7.13. Security For Letters of Credit. At the sole option and request of
Agent upon the occurrence of an Event of Default, Company shall pledge to Agent
certificates of deposit or marketable securities satisfactory to Agent in an
amount or having a value (a) at least equal to the aggregate undrawn face amount
of the Letters of Credit which are issued and outstanding at the time of
occurrence of such Event of Default in order to secure the obligations of
Company under such Letters of Credit, and (b) which satisfy Agent's margin
requirements established by Agent in its absolute discretion.
7.14. Additional Information. Company shall promptly furnish to Agent,
at Agent's request, such additional financial or other information concerning
assets, liabilities, operations and transactions of Company or any Subsidiary as
Agent may from time to time reasonably request.
7.15. Guaranty of Additional Subsidiary Corporations. Company shall
cause each of its Subsidiaries having gross assets in excess of $250,000.00 in
the aggregate formed after the date of this Loan Agreement to execute a guaranty
of payment of the Notes in form satisfactory to Agent within ten (10) days after
the date of formation of such Subsidiary.
7.16. Principal Depositary. Company and its Subsidiaries shall use
Agent as its principal depository and shall maintain all of their primary
operating accounts with Agent.
7.17. Application of Proceeds of Sale and Equity Securities. Company
and its Subsidiaries shall apply (a) all of the net proceeds generated by the
sale of their respective assets (except proceeds generated by the sale of Wal-
Mart, Inc. accounts receivable) during any fiscal year; provided, however, net
proceeds generated by the closure of Tandy Leather retail stores shall be
remitted to Agent for application to the Revolving Credit Loans within a
reasonable period of time, and (b) seventy-five percent (75%) of the net cash
proceeds generated by the issuance by Company or any of its Subsidiaries of
equity securities to the payment of the Revolving Credit Loans and (c) all of
the net proceeds generated by Company's sale of Sav-On, Inc.
7.18. Further Assurances. Upon request of Agent, promptly cure any
defects in the creation, issuance, execution and delivery of this Loan Agreement
or in the Loan Documents. Company, at its expense, will further promptly execute
and deliver to Agent upon request all such other and further documents,
agreements and instruments in compliance with or accomplishment of the covenants
and agreements of Company hereunder, or to further evidence and more fully
describe the obligations of Company hereunder, or to correct any omissions
herein, or to more fully state the obligations set out herein.
7.19. Year 2000 Compliance. Company shall perform all acts reasonably
necessary to ensure that (a) Company and any business in which Company holds a
substantial interest, and (b) all customers, suppliers and vendors that are
material to Company's business, become Year 2000 Complaint in a timely manner.
Such acts shall include, without limitation, performing a comprehensive review
and assessment of all of Company's systems and adopting a detailed plan, with
itemized budget, for the remediation, monitoring and testing of such systems.
As used herein, "Year 2000 Compliant" shall mean, in regard to any entity, that
all software, hardware, firmware, equipment, goods or systems utilized by or
material to the business operations or financial condition of such entity, will
properly perform date sensitive functions before, during and after the year
2000. Company shall, immediately upon request, provide to Bank such
certifications or other evidence of Company's compliance with the terms hereof
as Agent may from time to time require.
7.20. Taxes and Other Liabilities. Company shall pay and discharge
when due any and all indebtedness, obligations, assessments and taxes, both real
or personal, including without limitation federal and state income taxes and
state and local property taxes and assessments, except such (a) as Company may
in good faith contest or as to which a bona fide dispute may arise, and (b) for
which Company has made provision, to Agent's satisfaction, for eventual payment
thereof in the event Company is obligated to make such payment.
7.21. Litigation. Company shall promptly give notice in writing to
Agent of any litigation pending or threatened against Company with a claim in
excess of $2,500,000.00.
ARTICLE VIII
------------
NEGATIVE COVENANTS
------------------
So long as Banks have any commitment to make Loans hereunder, and until
full payment of the Notes and the performance of the Obligation, Company
covenants and agrees that neither Company nor any of its Subsidiaries will,
unless Majority Banks otherwise consent in writing:
8.01. Leverage Ratio. Permit the Leverage Ratio, on the last day of
each fiscal quarter to be greater than: 3.85 to 1.00 on March 31, 1999, on June
30, 1999, and on September 30, 1999, and 3.00 to 1.00 on December 31, 1999 and
on each test date thereafter.
8.02. Fixed Charge Coverage Ratio. Permit the Fixed Charge Coverage
Ratio to be less than (a) 1.75 to 1.00 on the last day of each fiscal quarter
through June 30, 1999 and (b) 2.00 to 1.00 on each test date thereafter.
8.03. Current Ratio. Calculated as of the end of each fiscal quarter
and fiscal year end, permit the ratio of Current Assets to Current Liabilities
to be less than 1.10 to 1.00.
8.04. Minimum Consolidated Tangible Net Worth. Permit Company's
Consolidated Tangible Net Worth on the last day of each fiscal quarter to be
less than an amount equal to the sum of thirty-six million dollars
($36,000,000.00) plus (a) 50% of the aggregate Consolidated Net Income for the
period commencing December 31, 1998 (without deduction for any net loss in any
fiscal quarter ending after December 31, 1998) and terminating at the end of the
last fiscal quarter preceding the date of any determination of Consolidate
Tangible Net Worth, plus (b) the full amount of proceeds generated by all equity
issues after December 31, 1998.
8.05. Limitation on Dividends, Acquisition of Stock and Restricted
Payments. Pay or declare any dividend on any class of its stock (other than
stock dividends) or make any other distribution on account of any class of its
stock (other than dividends or distributions payable solely in shares of its
stock) or redeem, purchase or otherwise acquire, directly or indirectly, any
shares of its stock (all of the foregoing being herein called "Restricted
Payments"); provided, however, Company may redeem its stock and pay dividends as
long as the aggregate purchase price and/or payment amount does not exceed two
million fifty thousand dollars ($2,050,000.00) during fiscal year 1999 and
during each fiscal year thereafter the lesser of (a) up to fifty percent (50%)
of Borrower's Consolidated Net Income on a year-to-date fiscal quarter basis, or
(b) one million five hundred thousand dollars ($1,500,000.00). A dividend
distribution and/or treasury stock repurchase under the preceding sentence, if
accomplished immediately subsequent to a fiscal quarter in which Borrower's
Consolidated Net Income was positive, shall not constitute an Event of Default
even if Borrower's aggregate Consolidated Net Income for the applicable fiscal
year is $0.00 or a negative amount. Notwithstanding the foregoing, no
Restricted Payments shall be made if, after giving effect thereto, an Event of
Default shall have occurred and be continuing. There shall not be included in
the limitation on Restricted Payments any dividends paid by any Subsidiary of
Company (y) to its corporate parent which is also a Subsidiary of Company, or
(z) to Company.
8.06. Acquisitions. Acquire the assets or stock of any Person not
engaged in a line of business similar in nature to the lines of business engaged
in by Company or any of its Subsidiaries; provided, however, Company and its
Subsidiaries may expend, in the aggregate, up to two million five hundred
thousand dollars ($2,500,000.00) per fiscal year for the acquisition of the
stock or assets of Persons which are engaged in lines of business similar to the
line of business engaged by Company and its Subsidiaries.
8.07. Disposition of Assets. Sell or otherwise dispose of more than
four million dollars ($4,000,000.00) in assets other than in the ordinary course
of business during any fiscal year except for (a) the sale of accounts
receivable from Wal-Mart, Inc., and (b) the sale of assets in connection with
the closure and liquidation of Tandy Leather retail stores; provided, however,
the maximum face amount of sold accounts receivable of Wal-Mart, Inc. which may
be outstanding at any time is twelve million dollars ($12,000,000.00).
8.08. Sale of Accounts Receivable. Except as permitted in Section 8.07,
sell any of its accounts receivable, with or without recourse, except accounts
receivable which are in default and uncollectible ("Delinquent Accounts");
provided, however, no more than $500,000.00 in Delinquent Accounts may be sold
during any twelve (12) month period.
8.09. Negative Pledge. Create or suffer to exist any mortgage, pledge,
security interest, conditional sale or other title retention agreement, charge,
encumbrance or other Lien (whether such interest is based on common law,
statute, other law or contract) upon any of its property or assets, now owned or
hereafter acquired, except for Permitted Liens.
8.10. No Grant of Negative Pledge. Agree with any Person not to create
or suffer to exist any mortgage, pledge, security interest or encumbrance or
Lien upon any of its property or assets now owned or hereafter acquired; or
8.11. Limitation on Additional Indebtedness. Incur or assume any
Indebtedness for borrowed money, except for (a) the indebtedness evidenced by
the Notes; (b) Consolidated Indebtedness (excluding the indebtedness evidenced
by the Notes) not to exceed three million dollars ($3,000,000.00) in the
aggregate at any one time; and (c) trade debt incurred in the ordinary course of
business.
8.12. Guaranty. Create, assume or suffer to exist any Guaranty except
(a) any Guaranty relating to this Loan Agreement and the Loan Documents, and (b)
any Guaranty in existence on the Closing Date, and (c) guaranties of real
property leases under which SAV-ON, Inc. or Casual Concepts, Inc. is the lessee.
8.13. Merger; Consolidation. Merge into or consolidate with any other
Person unless Company is the surviving entity; make any substantial change in
the nature of Company's business as conducted as of the date hereof; or make any
substantial change in Company's capitalization; acquire all or substantially all
of the assets of any other Person.
8.14. Capital Expenditures. Make any investment in Capital Expenditures
(including Capital Lease Obligations) during any fiscal year in excess of
thirteen million five hundred thousand dollars ($13,500,000.00) during fiscal
years 1999 and 2000 in the aggregate, and six million dollars ($6,000,000.00) in
the aggregate during any fiscal year thereafter.
8.15. Sale and Leaseback. Directly or indirectly enter into any
contract or arrangement whereby Company or any Subsidiary shall sell or transfer
all or any substantial part of its fixed assets then owned by it and shall
thereafter upon or within one year thereafter rent or lease the assets so sold
or transferred; provided, however, Company may enter into a sale and leaseback
arrangement with Banker's Assurance involving software and computer equipment,
but such arrangement shall be subject to the limitation on additional
indebtedness set forth in Section 8.11.
8.16. Prepayment of Indebtedness. Will make or cause to be made,
directly or indirectly, in whole or in part, any prepayment of principal or
interest on any Indebtedness except (a) the Obligation and (b) accounts payable
in the ordinary course of business.
If any action or failure to act by Company or any Subsidiary violates any
covenant or obligations of Company contained herein, then such violation shall
not be excused by the fact that such action or failure to act would otherwise be
required or permitted by any covenant (or exception to any covenant) other than
the covenant violated.
ARTICLE IX
----------
EVENTS OF DEFAULT; REMEDIES UPON EVENT OF DEFAULT
-------------------------------------------------
9.01. Events of Default. An "Event of Default" shall exist if any one
or more of the following events (herein collectively called "Events of Default")
shall occur and be continuing:
(a) Company shall fail to pay when due any principal of, or interest
on any Note, or any other fee or payment due hereunder or under any of the
Loan Documents; or
(b) Company shall fail or refuse to observe, keep and perform any of
the covenants, agreements and obligations hereunder or any of the Loan
Documents and the continuance of such failure or refusal for a period of
twenty (20) days after receipt of written notice from Agent to Company
specifying such failure; or
(c) Any financial statement or certificate furnished to Banks in
connection with, or any representation or warranty made by Company or any
Subsidiary under this Loan Agreement or any other Loan Document shall prove
to be incorrect, false or misleading in any material respect when furnished
or made; or
(d) Company or any of its Subsidiaries shall (i) apply for or consent
to the appointment of a receiver, custodian, trustee, intervenor or
liquidator of all or a substantial part of its assets, (ii) voluntarily
become the subject of a bankruptcy, reorganization or insolvency proceeding
or be insolvent or admit in writing that it is unable to pay its debts as
they become due, (iii) make a general assignment for the benefit of
creditors, (iv) file a petition or answer seeking reorganization or an
arrangement with creditors or to take advantage of any bankruptcy or
insolvency laws, (v) file an answer admitting the material allegations of,
or consent to, or default in answering, a petition filed against it in any
bankruptcy, reorganization or insolvency proceeding, (vi) become the
subject of an order for relief under any bankruptcy, reorganization or
insolvency proceeding, or (vii) fail to pay any money judgment against it
in excess of twenty-five thousand dollars ($25,000.00) before the
expiration of thirty (30) days after such judgment becomes final and no
longer subject to appeal; or
(e) An order, judgment or decree shall be entered by any court of
competent jurisdiction or other competent authority approving a petition
appointing a receiver, custodian, trustee, intervenor or liquidator of
Company or any of its Subsidiaries or of all or substantially all of -its
assets, and such order, judgment or decree shall continue unstayed and in
effect for a period of sixty (60) days; or a complaint or petition shall be
filed against Company or any of its Subsidiaries seeking or instituting a
bankruptcy, insolvency, reorganization, rehabilitation or receivership
proceeding of Company or any of its Subsidiaries, and such petition or
complaint shall not have been dismissed within sixty (60) days; or
(f) Company shall default in the payment of any material Indebtedness
of Company to any of Banks other than the Notes and the obligations
hereunder; or
(g) Company shall default in the payment of any Indebtedness of
Company to Persons other than Banks then having a principal balance in
excess of two hundred fifty thousand dollars ($250,000.00); or
(h) There shall occur any change in the condition (financial or
otherwise) of Company or any Subsidiary which has a Material Adverse
Effect.
9.02. Remedies Upon Event of Default. If an Event of Default shall have
occurred and be continuing, then Agent shall, at the request of Majority Banks,
exercise any one or more of the following rights and remedies, and any other
remedies in any of the Loan Documents, as Majority Banks in their sole
discretion, may deem necessary or appropriate: (a) declare the principal of, and
all interest then accrued on, the Notes and any other liabilities hereunder to
be forthwith due and payable, whereupon the same shall forthwith become due and
payable without presentment, demand, protest, notice of default, notice of
acceleration or notice of intention to accelerate or other notice of any kind,
all of which Company hereby expressly waives, anything contained herein or in
the Notes to the contrary notwithstanding, (b) refuse to make any additional
Advances under the Notes, (c) refuse to issue any additional Letter of Credit,
(d) reduce any claim to judgment, and/or (e) without notice of default or
demand, pursue and enforce any of Banks' rights and remedies under the Loan
Documents or otherwise provided under or pursuant to any applicable law or
agreement.
9.03. Performance by Banks. Should Company fail to perform in any
material respect any covenant, duty or agreement contained herein or in any of
the Loan Documents, Agent or Banks may, at their option, perform or attempt to
perform such covenant, duty or agreement on behalf of the Company following
written notice to Company of such intention to perform. In such event, Company
shall, at the request of Agent or Banks, promptly pay any amount reasonably
expended by Agent or Banks in performance or attempted performance to Agent at
its principal office in Fort Worth, Texas, together with interest thereon at the
Past Due Rate from the date of such expenditure until paid. Notwithstanding the
foregoing, it is expressly understood that neither Banks nor Agent assume any
liability or responsibility (except liability attributable to their gross
negligence or willful misconduct) for the performance of any duties of Company
hereunder or under any of the Loan Documents or other control over the
management and affairs of the Company.
9.04. Remedies Cumulative. All covenants, conditions, provisions,
warranties, indemnities and other undertakings of Company contained in this
Agreement, or in any document referred to herein or in any agreement
supplementary hereto or in any of the Loan Documents shall be deemed cumulative
to and not in derogation or substitution of any of the terms, covenants,
conditions or agreements of Company contained herein. The failure or delay of
Agent or Banks to exercise or enforce any rights, liens, powers or remedies
hereunder or under any of the aforesaid agreements or other documents against
any security shall not operate as a waiver of such liens, rights, powers and
remedies, but all such rights, powers and remedies shall continue in full force
and effect until the loans evidenced by the Notes and the entire Obligation of
Company to Banks shall have been fully satisfied, and all rights, liens, powers
and remedies herein provided for are cumulative and none are exclusive.
ARTICLE X
---------
ARBITRATION PROGRAM
-------------------
10.01. Binding Arbitration. Upon the demand of any party, any Dispute
shall be resolved by binding arbitration (except as set forth in Section 10.05
below) in accordance with the terms of this Loan Agreement. A "Dispute" shall
mean any action, dispute, claim or controversy of any kind, whether in contract
or tort, statutory or common law, legal or equitable, now existing or hereafter
arising under or in connection with, or in any way pertaining to, any of the
Loan Documents, or any past, present or future extensions of credit and other
activities, transactions or obligations of any kind related directly or
indirectly to any of the Loan Documents, including without limitation, any of
the foregoing arising in connection with the exercise or any self-help,
ancillary or other remedies pursuant to any of the Loan Documents. Any party
may by summary proceedings bring an action in court to compel arbitration of a
Dispute. Any party who fails or refuses to submit to arbitration following a
lawful demand by any other party shall bear all costs and expenses incurred by
such other party in compelling arbitration of any Dispute.
10.02. Governing Rules. Arbitration proceedings shall be administered
by the American Arbitration Association ("AAA") or such other administrator as
the parties shall mutually agree upon in accordance with the AAA Commercial
Arbitration Rules. All Disputes submitted to arbitration shall be resolved in
accordance with the Federal Arbitration Act (title 9 of the United States Code,
notwithstanding any conflicting choice of law provisions in any of the Loan
Documents. The arbitration shall be conducted at a location in Fort Worth,
Texas selected by the AAA or other administrator. If there is any inconsistency
between the terms hereof and any such rules, the terms and procedures set forth
herein shall control. All statutes of limitation applicable to any Dispute
shall apply to any arbitration proceeding. All discovery activities shall be
expressly limited to matters directly relevant to the Dispute being arbitrated.
Judgment upon any award rendered in an arbitration may be entered in any court
having jurisdiction; provided however, that nothing contained herein shall be
deemed to be a waiver by any party that is a bank of the protections afforded to
it under 12 U.S.C. Section 91 or any similar applicable state law.
10.03. No Waiver; Provisional Remedies; Self-Help and Foreclosure. No
provision hereof shall limit the right of any party to exercise self-help
remedies such as setoff, foreclosure against or sale of any real or personal
property collateral or security, or to obtain provisional or ancillary remedies,
including without limitation injunctive relief, sequestration, attachment,
garnishment or the appointment of a receiver, from a court of competent
jurisdiction before, after or during the pendency of any arbitration or other
proceeding. The exercise of any such remedy shall not waive the right of any
party to compel arbitration hereunder.
10.04. Arbitrator Qualifications and Powers; Awards. Arbitrators must
be active members of the Texas State Bar with expertise in the substantive laws
applicable to the subject matter of the Dispute. Arbitrators are empowered to
resolve Disputes by summary rulings in response to motions filed prior to the
final arbitration hearing. Arbitrators (a) shall resolve all Disputes in
accordance with the substantive law of the state of Texas, (b) may grant any
remedy or relief that a court of the state of Texas could order or grant within
the scope hereof and such ancillary relief as is necessary to make effective any
award, and (c) shall have the power to award recovery of all costs and fees, to
impose sanctions and to take such other actions as they deem necessary to the
same extent a judge could pursuant to the Federal Rules of Civil Procedure, the
Texas Rules of Civil Procedure or other applicable law. Any Dispute the amount
in controversy is $5,000,000.00 or less shall be decided by a single arbitrator
who shall not render an award of greater than $5,000,000.00 (including damages,
costs, fees and expenses). By submission to a single arbitrator, each party
expressly waives any right or claim to recover more than $5,000,000.00. Any
Dispute in which the amount in controversy exceeds $5,000,000.00 shall be
decided by a majority vote of a panel of three arbitrators; provided however,
that all three arbitrators must actively participate in all hearings and
deliberations.
10.05. Judicial Review. Notwithstanding anything herein to the
contrary, in any arbitration in which the amount in controversy exceeds
$25,000.00.00, the arbitrators shall be required to make specific, written
findings of fact and conclusions of law. In such arbitrations (a) the
arbitrators shall not have the power to make any award which is not supported by
substantial evidence or which is based on legal error, (b) an award shall not be
binding upon the parties unless the findings of fact are supported by
substantial evidence and the conclusions of law are not erroneous under the
substantive law of the state of Texas, and (c) the parties shall have in
addition to the grounds referred to in the Federal Arbitration Act for vacating,
modifying or correcting an award the right to judicial review of (i) whether the
findings of fact rendered by the arbitrators are supported by substantial
evidence, and (ii) whether the conclusions of law are erroneous under the
substantive law of the state of Texas. Judgment confirming an award in such a
proceeding may be entered only if a court determines the award is supported by
substantial evidence and not based on legal error under the substantive law of
the state of Texas.
10.06. Miscellaneous. To the maximum extent practicable, the AAA, the
arbitrators and the parties shall take all action required to conclude any
arbitration proceeding within 180 days of the filing of the Dispute with the
AAA. No arbitrator or other party to an arbitration proceeding may disclose the
existence, content or results thereof, except for disclosures of information by
a party required in the ordinary course of its business, by applicable law or
regulation, or to the extent necessary to exercise any judicial review rights
set forth herein. If more than one agreement for arbitration by or between the
parties potentially applies to a Dispute, the arbitration provision most
directly related to the Loan Documents or the subject matter of the Dispute
shall control. This arbitration provision shall survive termination, amendment
or expiration of any of the Loan Documents or any relationship between the
parties.
ARTICLE XI
----------
THE AGENT
---------
11.01. Appointment and Authorization. Each Bank hereby irrevocably
appoints and authorizes Agent to take such action on its behalf and to exercise
such powers under the Loan Papers as are delegated to Agent by the terms
thereof, together with such powers as are reasonably incidental thereto. With
respect to its Commitment, the Advances made by it and the Notes issued to it,
Agent shall have the same rights and powers under this Agreement as any other
Bank and may exercise the same as though it were not Agent; and the term "Bank"
or "Banks" shall, unless otherwise expressly indicated, include the Agent in its
capacity as a Bank. The Agent and its affiliates may accept deposits from, lend
money to, act as trustee under indentures of, and generally engage in any kind
of business with, Company, and any Person which may do business with Company,
all as if Agent were not Agent hereunder and without any duty to account
therefor to Banks.
11.02. Note Holders. Agent may treat the payee of any Note as the holder
thereof until written notice of transfer shall have been filed with it signed by
such payee and in form satisfactory to Agent.
11.03. Consultation with Counsel. Banks agree that Agent may consult
with legal counsel selected by it and shall not be liable for any action taken
or suffered in good faith by them in accordance with the advice of such counsel.
11.04. Documents. Agent shall not be under a duty to examine or pass
upon the validity, effectiveness, enforceability, genuineness or value of any of
the Loan Documents or any other instrument or document furnished pursuant
thereto or in connection therewith, and Agent shall be entitled to assume that
the same are valid, effective, enforceable and genuine and what they purport to
be.
11.05. Resignation or Removal of Agent. Subject to the appointment and
acceptance of a successor Agent as provided below, Agent may resign at any time
by giving written notice thereof to Banks and Company and Agent may be removed
at any time with or without cause by Majority Banks. Upon any such resignation
or removal, Majority Banks shall have the right to appoint a successor Agent. If
no successor Agent shall have been so appointed by Majority Banks and shall have
accepted such appointment within 30 days after the retiring Agent's giving of
notice of resignation or Majority Banks' removal of the retiring Agent, then the
retiring Agent may, on behalf of the Banks, appoint a successor Agent. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Agent's resignation or removal hereunder as Agent, the provisions of
this Article XI shall continue in effect for its benefit in respect to any
actions taken or omitted to be taken by it while it was acting as Agent.
11.06. Responsibility of Agent It is expressly understood and agreed
that the obligations of Agent under the Loan Documents are only those expressly
set forth in the Loan Documents and that Agent shall be entitled to assume that
no Event of Default or event which, with the giving of notice or lapse of time,
or both, would constitute an Event of Default has occurred and is continuing,
unless Agent has actual knowledge of such fact or has received notice from a
Bank that such Bank considers that an Event of Default or such event has
occurred and is continuing and specifying the nature thereof. Banks recognize
and agree, that for purposes of Section 2.02(b) hereof, Agent shall not be
required to determine independently whether the conditions described in Sections
5.02(a), (b), (c), (d), (e) and (f) have been satisfied and, in disbursing funds
to Company, may rely fully upon statements contained in the relevant Request for
Borrowing. Neither Agent nor any of its directors, officers or employees shall
be liable for any action taken or omitted to be taken by it under or in
connection with the Loan Documents, except for its own gross negligence or
willful misconduct. Agent shall incur no liability under or in respect of any of
the Loan Documents by acting upon any notice, consent, certificate, warranty or
other paper or instrument believed by it to be genuine or authentic or to be
signed by the proper party or parties, or with respect to anything which it may
do or refrain from doing in the reasonable exercise of its judgment, or which
may seem to it to be necessary or desirable in the premises.
The relationship between Agent and each of the Banks is only that of agent
and principal and has no fiduciary aspects, and Agent's duties hereunder are
acknowledged to be only ministerial and not involving the exercise of discretion
on its part. Nothing in this Loan Agreement or elsewhere contained shall be
construed to impose on Agent any duties or responsibilities other than those for
which express provision is herein made. In performing its duties and functions
hereunder, Agent does not assume and shall not be deemed to have assumed, and
hereby expressly disclaims, any obligation or responsibility toward or any
relationship of agency or trust with or for, Company. As to any matters not
expressly provided for by this Loan Agreement (including, without limitation,
enforcement or collection of the Notes). Agent shall not be required to exercise
any discretion or take any action, but shall be required to act or to refrain
from acting (and shall be fully protected in so acting or refraining from
acting) upon the instructions of Majority Banks and such instructions shall be
binding upon all Banks and all holders of Notes; provided, however, that Agent
shall not be required to take any action which exposes Agent to personal
liability or which is contrary to this Loan Agreement or applicable law.
11.07. Notices of Event of Default. In the event that Agent shall have
acquired actual knowledge of any Event of Default or of an event which, with the
giving of notice or the lapse of time, or both, would constitute an Event of
Default, Agent shall promptly give notice thereof to the other Banks.
11.08. Independent Investigation. Each of the Banks severally
represents and warrants to Agent that it has made-its own independent
investigation and assessment of the financial condition and affairs of the
Company in connection with the making and continuation of its participation in
the Loans hereunder and has not relied exclusively on any information provided
to such Bank by Agent in connection herewith, and each Bank represents, warrants
and undertakes to Agent that it shall continue to make its own independent
appraisal of the creditworthiness of the Company while the Loans are outstanding
or its commitment hereunder is in force.
11.09. Indemnification. Banks agree to indemnify Agent (to the extent
not reimbursed by Company), ratably according to the proportion that the
respective principal amounts of the Note held by each of them bears to the sum
of the aggregate principal amount of the Notes, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses, or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against Agent in any way relating to or
arising out of the Loan Documents or any action taken or omitted by Agent under
the Loan Documents, provided that no Bank shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from Agent's gross negligence
or willful misconduct.
11.10. Benefit of Article XI. The agreements contained in this Article
XI are solely for the benefit of Agent and the Banks, and are not for the
benefit of, or to be relied upon by, the Company, or any third party.
11.11. Not a Loan to Agent; No Duty to Repurchase. No amount paid by
any Bank hereunder shall be considered a loan by Agent. Agent shall have no
obligation to repurchase any interest from any Bank.
11.12. Amendments, Waivers, etc. Agent may enter into any amendment or
modification of, or may waive compliance with the terms of, any of the Loan
Documents with the written direction of the Majority Banks; provided that the
consent of all Banks shall be required before Agent may take or omit to take any
action under any of the Loan Documents directly affecting (a) the extension of
the maturity of or the postponement of the payment of any portion of the
principal of or interest on a Revolving Credit Loan or any fees relating
thereto, (b) a reduction of or increase in the principal amount of or rate of
interest payable on Revolving Credit Loans or any fees related thereto, or (c)
the release of Company. Nor shall any of the following occur without the
consent of all Banks: (a) any amendment to the definition of Majority Banks, (b)
any amendment to this Section 11.12 or (c) any waiver of compliance with Section
7.19 of this Loan Agreement. The Commitment of a Bank shall not be increased
without the consent of such Bank. If any Bank is unwilling to consent to any
amendment or modification of, or waiver of compliance with, the Loan Agreement
(where the consent of such Bank is required), the consenting Majority Banks
shall have the right, but not the obligation, to repurchase such Bank's
Percentage of the Obligation at such time for a purchase price equal to Bank's
Percentage of any and all unpaid Advances made by Agent to the Company under the
Loan Agreement, any and all unpaid interest thereon and unpaid accrued fees or
other amounts owing to such Bank.
11.13. Bank's Representations. Each Bank represents and warrants to
Agent and the other Banks that: (a) it is engaged in the business of entering
into commercial lending transactions (including transactions of the nature
contemplated herein) and can bear the economic risk related to the same; and (b)
it does not consider the obligations hereunder to constitute the "purchase" or
"sale" of a "security" within the meaning of any federal or state securities
statute or law, or any rule or regulation under any of the foregoing.
ARTICLE XII
-----------
MISCELLANEOUS
-------------
12.01. Waiver. No failure to exercise, and no delay in exercising, on
the part of any Bank, any right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise thereof preclude any other further exercise
thereof or the exercise of any other right. The rights of Banks hereunder and
under the Loan Documents shall be in addition to all other rights provided by
law. No notice or demand given in any case shall constitute a waiver of the
right to take other action in the same, similar or other instances without such
notice or demand.
12.02. Notices. Any notices or other communications required or
permitted to be given by this Agreement or any other documents relating to the
loans evidenced by the Notes (the "Loan Documents") must be given in writing and
personally delivered, sent by telecopy or telex (answerback received) or mailed
by prepaid certified or registered mail, return receipt requested, to the party
to whom such notice or communication is directed at the address of such party as
set forth on the signature pages of this Loan Agreement.
Any such notice or other communication shall be deemed to have been given on the
date it is personally delivered or sent by telecopy or telex as aforesaid or, if
mailed, on the second day after it is mailed as aforesaid (whether actually
received or not). Any party may change its address for purposes of this Loan
Agreement by giving notice of such change to all other parties pursuant to this
Section 12.02.
12.03. Payment of Expenses. Company agrees to pay all costs and expenses
of Banks (including, without limitation, the reasonable attorneys' fees of
Banks' outside legal counsel) incurred by Banks in connection with the
preservation and enforcement of Banks' rights under this Loan Agreement, the
Notes, and/or the other Loan Documents, and all reasonable costs and expenses of
Banks (including without limitation the reasonable fees and expenses of Banks'
outside legal counsel) in connection with the negotiation, preparation,
execution and delivery of this Loan Agreement, the Notes, and the other Loan
Documents and any and all amendments, modifications and supplements thereof or
thereto.
12.04. Savings Clause. It is the intention of the parties to comply
strictly with applicable usury laws. Accordingly, notwithstanding any provision
to the contrary in the Loan Documents, in no event shall any Loan Documents
require the payment or permit the payment, taking, reserving, receiving,
collection or charging of any sums constituting interest under applicable laws
that exceed the maximum amount permitted by such laws, as the same may be
amended or modified from time to time. If any such excess interest is called
for, contracted for, charged, taken, reserved or received in connection with any
Loan Documents, or in any communication by or any other person to Company or any
other person, or in the event that all or part of the principal or interest
hereof or thereof shall be prepaid or accelerated, so that under any of such
circumstances or under any other circumstances whatsoever the amount of interest
contracted for, charged, taken, reserved or received on the amount of principal
actually outstanding from time to time under the Loan Documents shall exceed the
Maximum Rate, then in such event it is agreed that: (a) the provisions of this
paragraph shall govern and control; (b) neither Company nor any other person or
entity now or hereafter liable for the payment of any Loan Documents shall be
obligated to pay the amount of such interest to the extent it is in excess of
the Maximum Rate; (c) any such excess interest which is or has been received by
Bank, notwithstanding this paragraph, shall be credited against the then unpaid
principal balance hereof or thereof, or if any of the Loan Documents has been or
would be paid in full by such credit, refunded to Company; and (d) the
provisions of each of the Loan Documents, and any other communications to
Company, shall immediately be deemed reformed and such excess interest reduced,
without the necessity of executing any other document, to the Maximum Rate. The
right to accelerate the maturity of the Loan Documents does not include the
right to accelerate, collect or charge unearned interest, but only such interest
that has otherwise accrued as of the date of acceleration. Without limiting the
foregoing, all calculations of the rate of interest contracted for, charged,
taken, reserved or received in connection with any of the Loan Documents which
are made for the purpose of determining whether such rate exceeds the Maximum
Rate shall be made to the extent permitted by applicable laws by amortizing,
prorating, allocating and spreading during the period of the full term of such
Loan Documents, including all prior and subsequent renewals and extensions
hereof or thereof, all interest at any time contracted for, charged, taken,
reserved or received by Bank. The terms of this paragraph shall be deemed to be
incorporated into each of the other Loan Documents. In no event shall Chapter
346 of the Texas Finance Code apply to this Loan Agreement or any other Loan
Document.
12.05. Amendments. This Loan Agreement and the other Loan Documents may
be amended only by an instrument in writing executed by the party, or an
authorized officer of the party, against whom such amendment is sought to be
enforced.
12.06. Governing Law. This Loan Agreement has been prepared, is being
executed and delivered, and is intended to be performed in the State of Texas,
and the substantive laws of such state and the applicable federal laws of the
United States of America shall govern the validity, construction, enforcement
and interpretation of this Loan Agreement and all of the other Loan Documents.
12.07. Invalid Provisions. If any provision of any Loan Document is held
to be illegal, invalid or unenforceable under present or future laws during the
term of this Loan Agreement, such provision shall be fully severable; such Loan
Document shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part of such Loan Document; and
the remaining provisions of such Loan Document shall remain in full force and
effect and shall not be affected by the illegal, invalid or unenforceable
provision or by its severance from such Loan Document. Furthermore, in lieu of
each such illegal, invalid or unenforceable provision shall be added as part of
such Loan Document a provision mutually agreeable to Company, Agent and Majority
Banks as similar in terms to such illegal, invalid or unenforceable provision as
may be possible and be legal, valid and enforceable. In the event Company, Agent
and Majority Banks are unable to agree upon a provision to be added to the Loan
Document within a period of ten (10) Business Days after a provision of the Loan
Document is held to be illegal, invalid or unenforceable, then a provision
reasonably acceptable to Agent and Majority Banks as similar in terms to the
illegal, invalid or unenforceable provision as is possible and be legal, valid
and enforceable shall be added automatically to such Loan Document. In either
case, the effective date of the added provision shall be the date upon which the
prior provision was held to be illegal, invalid or unenforceable.
12.08. Headings. Section headings are for convenience of reference only
and shall in no way affect the interpretation of this Loan Agreement.
12.09. Participation Agreements and Assignments. (a)(i) Subject to
Section 12.09(a)(ii), each Bank may assign to one or more Eligible Assignees all
or a portion of its rights and obligations under this Loan Agreement (including,
without limitation, all or a portion of its Commitment, the Loan owing to it and
the Note held by it) and the other Loan Documents; provided however , that (A)
no such assignment shall be made unless such assignment and assignee have been
approved by Agent and, so long as no Event of Default exists, such approvals not
to be unreasonably withheld, (B) each such assignment shall be of a constant,
and not a varying, percentage of all rights and obligations of the assignor
under this Loan Agreement and the other Loan Documents, and no assignment shall
be made unless it covers a pro rata share of all rights and obligations of such
assignor under this Loan Agreement and the other Loan Documents, (C) the amount
of the Commitment of the assigning Bank being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance
substantially in the form of Exhibit "J" (hereinafter referred to as the
"Assignment and Acceptance") with respect to such assignment) shall, unless
otherwise agreed to by the Agent, in no event be less than $5,000,000.00 or, if
less, the entirety of its Commitment and shall be an integral multiple of
$1,000,000.00, (D) each such assignment shall be to an Eligible Assignee
(defined below), (E) the parties to each such assignment shall execute and
deliver to the Agent, for its acceptance and recording in the Register (defined
below), an Assignment and Acceptance, together with any Note subject to such
assignment, and (F) Agent receives a fee from the assignor in the amount of
$2,500.00. Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in each Assignment and Acceptance, (1) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations under the Loan Documents have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Bank under the
Loan Documents, (2) the assigning Bank thereunder shall, to the extent that
rights and obligations under the Loan Documents have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Loan Documents (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Bank's rights and obligations under this Loan Agreement, such Bank shall cease
to be a party hereto), and (3) Exhibit "A" shall be deemed to have been
automatically amended to reflect the revised Commitments. As used herein,
"Eligible Assignee" shall mean (a) any Bank or any Affiliate of any Bank; (b) a
commercial bank organized under the laws of the United States, or any state
thereof, and having total assets in excess of $1,000,000,000.00 and having
deposits rated in either of the two highest generic letter rating categories
(without regard to subcategories) from either Standard & Poor's Corporation or
Moody's Investors Service, Inc.; (c) a commercial bank organized under the laws
of any other country which is a member of the Organization for Economic
Cooperation and Development ("OECD")., or a political subdivision of any such
country, and having total assets in excess of $1,000,000,000.00, provided that
such bank is acting through a branch or agency located in the country in which
it is organized or another country which is also a member of the OECD; (d) the
central bank of any country which is a member of the OECD; (d) the central bank
of any country which is a member of the OECD; and (e) any other financial
institution approved by the Agent. (ii) In the event any Bank desires to
transfer all or any portion of its rights and obligations under the Loan
Documents, it shall give Company and Agent prior written notice of the identity
of such transferee and the terms and conditions of such transfer (a "Transfer
Notice"). So long as no Event of Default has occurred and is continuing,
Company may, no later than ten (10) days following receipt of such Transfer
Notice, designate an alternative transferee and such Bank shall thereupon be
obligated to sell the interests specified in such Transfer Notice to such
alternative transferee, subject to the following: (A) such transfer shall be
made on the same terms and conditions outlined in such Transfer Notice; (B) such
transfer shall otherwise comply with the terms and conditions of the Loan
Documents (including Section 12.09(a)(i), and (C) such alternative transferee
must be an Eligible Assignee approved by Agent. If Company shall fail to
designate an alternative transferee within such ten (10) day period, such Bank
shall, subject to compliance with the other terms and provisions hereof, be free
to consummate the transfer described in such Transfer Notice.
(b) By executing and delivering an Assignment and Acceptance
substantially in the form of Exhibit "J", the assigning Bank thereunder and the
assignee thereunder confirm to and agree with each other and the other parties
hereto as follows: (i) other than as provided in such Assignment and Acceptance,
such assigning Bank makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Loan Documents or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Loan
Agreement or any other instrument or document furnished pursuant hereto, (ii)
such assigning Bank makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Company or the
performance or observance by the Company of any of its obligations under this
Loan Agreement or any other instrument or document furnished pursuant hereto;
(iii) such assignee confirms that it has received a copy of this Loan Agreement
and the other Loan Documents, together with copies of the financial statements
referred to in Section 6.07 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and acceptance; (iv) such assignee will, independently and
without reliance upon any of the Banks (including such assigning Bank) and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Loan Agreement; (v) such assignee confirms that it is an Eligible Assignee;
(vi) such assignee appoints and authorizes the Agent to take such action on its
behalf and to exercise such powers under this Loan Agreement, and the other Loan
Documents as are delegated to such Person by the terms thereof, together with
such powers as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations which
by the terms of this Loan Agreement and the other Loan Documents are required to
be performed by it as a Bank.
(c) Agent shall maintain a copy of each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of the names
and addresses of the Banks and the Commitment of, and principal amount of the
Notes owing to, each Bank from time to time (the "Register"). The entries in
the Register shall be conclusive and binding for all purposes, absent manifest
error, and the Company and each of the Banks may treat each Person whose name is
recorded in the Register as a Bank hereunder for all purposes of this Loan
Agreement. The Register shall be available for inspection by the Company of any
of the Banks at any reasonable time and from time to time upon reasonable prior
notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Bank and an assignee representing that it is an Eligible Assignee,
together with any Note subject to such assignment, the Agent shall, if such
Assignment and Acceptance has been completed and is insubstantially the form of
Exhibit "J" hereto and satisfies all other requirements set forth in this
Section 12.09, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Company and the other Banks. Within five (5) Business Days after
its receipt of such notice, the Company, at its own expense, shall execute and
deliver to the Agent, in exchange for the surrendered Note, a new Note to the
order of such Eligible Assignee in an amount corresponding to the Commitment
assumed by such Eligible Assignee pursuant to such Assignment and Acceptance
and, if the assigning Bank has retained a Commitment hereunder, a new Note to
the order of the assigning Bank in an amount corresponding to the Commitment
retained by it hereunder. Such new Notes shall be in an aggregate principal
amount equal to the aggregate principal amount of such surrendered Notes, shall
be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form prescribed by Exhibit "J" hereto.
(e) Each Bank may sell participations to one or more banks or other
entities in or to all or a portion of its rights and obligations under this Loan
Agreement and the other Loan Documents (including, without limitation, all or a
portion of its Commitment and the Notes owing to it); provided, however, that
(i) such Bank's obligations under this Loan Agreement (including, without
limitation, its Commitment to the Company here under) and the other Loan
Documents shall remain unchanged, (ii) such Bank shall remain solely responsible
to the other parties hereto for the performance of such obligations, and the
participating banks or other entities shall not be considered a "Bank" for
purposes of the Loan Documents, (iii) the participating banks or other entities
shall be entitled to the cost protection provision contained in Section 4.03, in
each case to the same extent that the Bank from which such participating bank or
other entity acquired its participations would be entitled to the benefit of
such cost protection provisions and (iv) the Company and the other Banks shall
continue to deal solely and directly with such Bank in connections with such
Bank's rights and obligations under this Loan Agreement and the other Loan
Documents, and such Bank shall retain the sole right to enforce the obligations
of the Company relating to the Loans and to approve any amendment, modification
or waiver of any provision of this Loan Agreement (other than amendments or
waives with respect to the amounts of any fees payable hereunder or the amount
of principal of or the rate at which interest is payable on the Notes, or the
dates fixed for payments of principal or interest on the Notes).
(f) Any Bank may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 12.09, disclose to
the assignee or participant or proposed assignee or participant, any information
relating to the Company furnished to such Bank by or on behalf of the Company;
provided that prior to any such disclosure, each such assignee or participant or
proposed assignee or participant shall agree (subject to customary exceptions)
to preserve the confidentiality of any confidential information relating to the
Company received from such Bank.
(g) The obligations of the Banks in this Loan Agreement, the Notes and any
other Loan Documents shall not be assignable or transferable by Company and any
purported assignment or transfer shall, as to Agent and Banks, be of no force
and effect.
12.10. Successors. This Loan Agreement shall be binding upon and inure
to the benefit of the successors and assigns of the parties; provided however,
Company may not assign or transfer its interest hereunder without Bank's prior
written consent.
12.11. Right of Setoff; Deposit Accounts. Upon and after the occurrence
of an Event of Default, (a) Company hereby authorizes Banks, at any time and
from time to time, without notice, which is hereby expressly waived by Company,
and whether or not Banks shall have declared the Obligation to be due and
payable in accordance with the terms hereof, to set off against, and to
appropriate and apply to the payment of, Company's obligations and liabilities
under the Loan Documents (whether matured or unmatured, fixed or contingent,
liquidated or unliquidated), any and all amounts owing by Banks to Company
(whether payable in U.S. dollars or any other currency, whether matured or
unmatured, and in the case of deposits, whether general or special (except trust
and escrow accounts), time or demand and however evidenced), and (b) pending any
such action, to the extent necessary, to hold such amounts as collateral to
secure such obligations and liabilities and to return as unpaid for insufficient
funds any and all checks and other items drawn against any deposits so held as
Banks, in their sole discretion, may elect. Company hereby grants to Banks a
security interest in all deposits and accounts maintained with Banks and with
any other financial institution to secure the payment of all obligations and
liabilities of Company to Banks under the Loan Documents.
12.12. Survival. All representations and warranties made by Company
herein shall survive delivery of the Notes and the making of the Loans.
12.13. No Third Party Beneficiary. The parties do not intend the
benefits of this Agreement to inure to any third party, nor shall this Loan
Agreement be construed to make or render Banks liable to any materialman,
supplier, contractor, subcontractor, purchaser or lessee of any property owned
by Company, or for debts or claims accruing to any such persons against Company.
Notwithstanding anything contained herein or in the Notes, or in any other Loan
Document, or any conduct or course of conduct by any or all of the parties
hereto, before or after signing this Loan Agreement or any of the other Loan
Documents, neither this Loan Agreement nor any other Loan Document shall be
construed as creating any right, claim or cause of action against Banks, or any
of its officers, directors, agents or employees, in favor of any materialman,
supplier, contractor, subcontractor, purchaser or lessee of any property owned
by Company, nor to any other person or entity other than Company.
12.14. Counterpart Execution. This Loan Agreement may be executed in
multiple counterparts, all of which taken together shall constitute one and the
same instrument.
12.15. Prior Agreement. This Loan Agreement supersedes and replaces in
its entirety the "Revolving Credit and Term Loan Agreement" dated September 29,
1993, between Agent and Company, and all amendments, renewals, and extensions
thereto.
12.16. Final Agreement. THIS WRITTEN 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.
EXECUTED to be effective as of the 31st day of March, 1999.
COMPANY: TANDYCRAFTS, INC., a Delaware corporation
By: /s/James D. Allen
--------------------------
Name: James D. Allen
--------------------------
Title: Chief Financial Officer
Address for mail delivery and notices:
1400 Everman Parkway
Fort Worth, Texas 76140
Attn: Chief Financial Officer
Telephone No.: (817) 551-9602
Telecopy No.: (817) 551-9795
GUARANTORS: THE DEVELOPMENT ASSOCIATION, INC., a Texas
corporation
By: /s/Russell L. Price
--------------------------
Name: Russell L. Price
--------------------------
Title: Secretary
Address for mail delivery and notices:
1400 Everman Parkway
Fort Worth, Texas 76140
Attn: Chief Financial Officer
Telephone No. (817) 551-9609
Telecopy No.: (817) 551-9795
SAV-ON, INC., a Texas corporation
By: /s/Russell L. Price
--------------------------
Name: Russell L. Price
--------------------------
Title: Secretary
Address for mail delivery and notices:
1400 Everman Parkway
Fort Worth, Texas 76140
Attn: Chief Financial Officer
Telephone No. (817) 551-9609
Telecopy No.: (817) 551-9795
DAVID JAMES MANUFACTURING, INC., a Texas
corporation
By: /s/Russell L. Price
--------------------------
Name: Russell L. Price
--------------------------
Title: Secretary
Address for mail delivery and notices:
1400 Everman Parkway
Fort Worth, Texas 76140
Attn: Chief Financial Officer
Telephone No. (817) 551-9609
Telecopy No.: (817) 551-9795
PLC LEATHER COMPANY, a Nevada corporation
By: /s/Russell L. Price
--------------------------
Name: Russell L. Price
--------------------------
Title: Secretary
Address for mail delivery and notices:
1400 Everman Parkway
Fort Worth, Texas 76140
Attn: Chief Financial Officer
Telephone No. (817) 551-9609
Telecopy No.: (817) 551-9795
TANDYARTS, INC., a Nevada corporation
By: /s/Russell L. Price
--------------------------
Name: Russell L. Price
--------------------------
Title: Secretary
Address for mail delivery and notices:
1400 Everman Parkway
Fort Worth, Texas 76140
Attn: Chief Financial Officer
Telephone No. (817) 551-9609
Telecopy No.: (817) 551-9795
LICENSED LIFESTYLES, INC., a Nevada
corporation
By: /s/Russell L. Price
--------------------------
Name: Russell L. Price
--------------------------
Title: Secretary
Address for mail delivery and notices:
1400 Everman Parkway
Fort Worth, Texas 76140
Attn: Chief Financial Officer
Telephone No. (817) 551-9609
Telecopy No.: (817) 551-9795
BANKS: WELLS FARGO BANK (TEXAS), NATIONAL
ASSOCIATION
By:/s/Susan B. Sheffield
---------------------------
Name: Susan B. Sheffield
---------------------------
Title: Vice President
Address for mail delivery and notices:
505 Main Street, Suite 300
Fort Worth, Texas 76102
Attn: Susan B. Sheffield
Telephone No.: (817) 347-0022
Telecopy No.: (817) 347-0056
BANK ONE, TEXAS, NATIONAL ASSOCIATION
By: /s/J. Michael Wilson
--------------------------
Name: J. Michael Wilson
--------------------------
Title: Senior Vice President
Address for mail delivery and notices:
500 Throckmorton Street
Fort Worth, Texas 76102
Attn: Mike Wilson
Telephone No.: (817) 884-4283
Telecopy No.: (817) 884-5697
AGENT: WELLS FARGO BANK (TEXAS), NATIONAL
ASSOCIATION
By: /s/Susan B. Sheffield
---------------------------
Name: Susan B. Sheffield
---------------------------
Title: Vice President
Address for mail delivery and notices:
505 Main Street, Suite 300
Fort Worth, Texas 76102
Attn: Susan B. Sheffield
Telephone No.: (817) 347-0022
Telecopy No.: (817) 347-0056
EXHIBIT "A"
TO
REVOLVING CREDIT AGREEMENT
DATED MARCH 31, 1999
Commitment
Banks Commitment Percentage
- ----- -------------- ----------
Wells Fargo Bank (Texas), $22,500,000.00 50%
National Association
Bank One, Texas, National $22,500,000.00 50%
Association
Total Commitment $45,000,000.00 100%
EXHIBIT "B"
TO
REVOLVING CREDIT AGREEMENT
DATED MARCH 31, 1999
PROMISSORY NOTE
$22,500,000.00 March 31, 1999
FOR VALUE RECEIVED, the undersigned TANDYCRAFTS, INC., a Delaware
corporation ("Company"), hereby unconditionally promises to pay to the order of
______________________ ("Bank"), the principal sum of TWENTY-TWO MILLION FIVE
HUNDRED THOUSAND DOLLARS ($22,500,000.00), or such lesser aggregate amount of
Advances as may be made pursuant to Bank's Commitment, which principal shall be
payable as provided in Sections 2.01, 2.02, 2.03 and 2.04 of the Loan
Agreement, together with the interest on the unpaid principal balance of each
Advance from the date made until maturity, which interest shall be determined at
the varying rates per annum, and shall be payable as provided in Sections 2.02,
2.03, 3.03, 3.04, 3.05, 3.06, 3.07 and 3.08 of the Loan Agreement. Payments of
both principal and interest herein shall be made to Agent's account at 505 Main
Street, Suite 300, Fort Worth, Texas, in lawful money of the United States of
America and in immediately available funds.
This Note has been executed and delivered pursuant to the terms of that
certain Revolving Credit Agreement (the "Loan Agreement") by and among Company,
the Guarantors (as defined in the Loan Agreement) and Wells Fargo Bank (Texas),
National Association , as Agent, and the Banks (as defined in the Loan
Agreement) dated as of March 31, 1999, and is a "Note" referred to therein.
Reference is hereby made to the Loan Agreement for a statement of the repayment
rights and obligations of Company and for a statement of the events upon which
the maturity of this Note may be accelerated.
Each defined term used herein shall have the same meaning assigned to it in
the Loan Agreement, unless the context hereof otherwise requires or provides.
Company agrees to pay all costs and expenses of Bank incurred in the
collection of this Note, including but not limited to court costs and reasonable
attorneys' fees and all other costs and expenses described in Section 12.03 of
the Loan Agreement.
Company and each surety, endorser, guarantor and any other party now or
hereafter liable for payment of any sums of money payable on this Note, except
as otherwise provided in the Loan Agreement, jointly and severally waive
presentment and demand for payment, protest, notice of protest and nonpayment,
notice of intent to accelerate, notice of acceleration and all other notices,
filing of suit and diligence in collecting this Note or enforcing any security
with respect to same, and agree that their liability under this Note shall not
be affected by any renewal or extension in the time of payment hereof, or in any
indulgences, or by any release, substitution or change in any security for the
payment of this Note, and hereby consent to any and all renewals, extensions,
indulgences, releases or changes, regardless of the number of such renewals,
extensions, indulgences, releases or changes.
Regardless of any provision contained in this Note, the Loan Agreement or
any other document executed or delivered in connection therewith, neither Bank
nor any holder hereof shall be deemed to have contracted for or be entitled to
receive, collect or apply as interest (including any fee, charge or amount which
is not denominated as "interest" but is legally deemed to be interest under
applicable law) on this Note, the Loan Agreement, the Loan Documents or
otherwise, any amount in excess of the Maximum Rate, and, in the event that Bank
or any holder hereof ever receives, collects or applies as interest any such
excess, such amount which would be excessive interest shall be applied to the
reduction of the unpaid principal balance of this Note, and, if the principal
balance of this Note is paid in full, any remaining excess shall forthwith be
paid to Company. In determining whether or not the interest paid or payable
under any specific contingency exceeds the Maximum Rate, Company, Bank and any
other holder hereof shall, to the maximum extent permitted under applicable law,
(i) characterize any non-principal payment (other than payments which are
expressly designated as interest payments hereunder) as an expense or fee rather
than as interest, (ii) exclude voluntary prepayments and the effect thereof, and
(iii) amortize, prorate, allocate and spread the total amount of interest
throughout the entire contemplated term of this Note so that the interest rate
is uniform throughout the entire term; provided that, if this Note is finally
paid and performed in full prior to the end of the full contemplated term
hereof, and if the interest received for the actual period of existence thereof
exceeds the Maximum Rate, Bank or any holder hereof shall refund to Company the
amount of such excess, or credit the amount of such excess against the principal
amount of this Note and, in such event, neither Bank nor any other holder shall
be subject to any penalties provided by any laws for contracting for, charging,
taking, reserving or receiving interest in excess of the Maximum Rate.
This Note is being executed and delivered, and is intended to be performed
in the State of Texas. Except to the extent that the laws of the United States
may apply to the terms hereof, the substantive laws of the State of Texas shall
govern the validity, construction, enforcement and interpretation of this Note.
This Note may not be changed or terminated orally, but only by an agreement
in writing signed by Bank and Company.
This Note is given in modification, renewal, and extension (but not in
novation) of the amount left owing under the Promissory Note in the original
principal amount of $____________ executed by Company and payable to the order
of Bank.
TANDYCRAFTS, INC.
By:
Name:
Title:
EXHIBIT "C"
TO
REVOLVING CREDIT AGREEMENT
DATED MARCH 31, 1999
PROMISSORY NOTE
$5,000,000.00 March 31, 1999
FOR VALUE RECEIVED, the undersigned, TANDYCRAFTS, INC., a Delaware
corporation (the "Company"), hereby unconditionally promises to pay to the order
of WELLS FARGO BANK (TEXAS), NATIONAL ASSOCIATION ("Bank"), the principal sum
of five million dollars ($5,000,000.00), or such lesser aggregate amount of
Swing Line Loans as may be made pursuant to Section 2.01(d) of the Loan
Agreement, which principal shall be payable as provided in Sections 3.01, 3.02
and 3.03 of the Loan Agreement, together with the interest on the unpaid
principal balance of each Swing Line Loan from the date made until maturity,
which interest shall be determined at the varying rates per annum, and shall be
payable as provided in Sections 2.03, 3.04, 3.05 and 4.06 of the Loan
Agreement. Payments of both principal and interest herein shall be made to
Agent's account at 309 W. Seventh Street, Fort Worth, Texas, in lawful money of
the United States of America and in immediately available funds.
This Note has been executed and delivered pursuant to the terms of that
certain Revolving Credit Agreement (the "Loan Agreement") by and among Company,
Guarantors (as defined in the Loan Agreement) and Wells Fargo Bank (Texas),
National Association, as Agent, and Banks (as defined in the Loan Agreement)
dated as of March 31, 1999, as amended, and is the "Swing Line Note" referred to
therein. Reference is hereby made to the Loan Agreement for a statement of the
repayment rights and obligations of Company and for a statement of the events
upon which the maturity of this Note may be accelerated.
Each capitalized term used herein shall have the same meaning assigned to
it in the Loan Agreement, unless the context hereof otherwise requires or
provides.
Company agrees to pay all costs and expenses of Bank incurred in the
collection of this Note, including but not limited to court costs and reasonable
attorneys' fees and all other costs and expenses described in Section 12.03 of
the Loan Agreement.
Except as otherwise provided in the Loan Agreement, Company and each
surety, endorser, guarantor and any other party now or hereafter liable for
payment of any sums of money payable on this Note, jointly and severally waive
presentment and demand for payment, protest, notice of protest and nonpayment,
notice of intent to accelerate, notice of acceleration and all other notices,
filing of suit and diligence in collecting this Note or enforcing any security
with respect to same, and agree that their liability under this Note shall not
be affected by any renewal or extension in the time of payment hereof, or in any
indulgences, or by any release, substitution or change in any security for the
payment of this Note, and hereby consent to any and all renewals, extensions,
indulgences, releases or changes, regardless of the number of such renewals,
extensions, indulgences, releases or changes.
Regardless of any provision contained in this Note, the Loan Agreement or
any other document executed or delivered in connection therewith, neither Bank
nor any holder hereof shall be deemed to have contracted for or be entitled to
receive, collect or apply as interest (including any fee, charge or amount which
is not denominated as "interest" but is legally deemed to be interest under
applicable law) on this Note, the Loan Agreement, the Loan Documents or
otherwise, any amount in excess of the Maximum Rate, and, in the event that Bank
or any holder hereof ever receives, collects or applies as interest any such
excess, such amount which would be excessive interest shall be applied to the
reduction of the unpaid principal balance of this Note, and, if the principal
balance of this Note is paid in full, any remaining excess shall forthwith be
paid to Company. In determining whether or not the interest paid or payable
under any specific contingency exceeds the Maximum Rate, Company, Bank and any
other holder hereof shall, to the maximum extent permitted under applicable law,
(i) characterize any non-principal payment (other than payments which are
expressly designated as interest payments hereunder) as an expense or fee rather
than as interest, (ii) exclude voluntary prepayments and the effect thereof, and
(iii) amortize, prorate, allocate and spread the total amount of interest
throughout the entire contemplated term of this Note so that the interest rate
is uniform throughout the entire term; provided that, if this Note is finally
paid and performed in full prior to the end of the full contemplated term
hereof, and if the interest received for the actual period of existence thereof
exceeds the Maximum Rate, Bank or any holder hereof shall refund to Company the
amount of such excess, or credit the amount of such excess against the principal
amount of this Note and, in such event, neither Bank nor any other holder shall
be subject to any penalties provided by any laws for contracting for, charging,
taking, reserving or receiving interest in excess of the Maximum Rate.
This Note may not be changed or terminated orally, but only by an agreement
in writing signed by Bank and Company.
TANDYCRAFTS, INC.
By:
Name:
Title:
EXHIBIT "D"
TO
REVOLVING CREDIT AGREEMENT
DATED MARCH 31, 1999
REQUEST FOR BORROWING - BASE RATE BORROWING
Date: ___________________
Wells Fargo Bank (Texas), National Association
505 Main Street
Suite 300
Fort Worth, Texas 76102
Attn: Susan B. Sheffield
Re: Request For Base Rate Borrowing
This Request for Borrowing has been prepared and is being delivered to
Agent pursuant to Section 2.02(a) of that certain Revolving Credit Agreement
("Loan Agreement") dated as of March 31, 1999 by and among Tandycrafts, Inc., a
Delaware corporation ("Company"), the Guarantors, and Wells Fargo Bank (Texas),
National Association, as "Agent," and "Banks." Capitalized terms in this
document shall have the meanings assigned to them in the Loan Agreement unless
otherwise provided herein or the context hereof otherwise requires.
On this date Company hereby requests that Banks make an Advance for a Base
Rate Borrowing (i) in the aggregate principal amount of $___________ (such
amount shall be in an integral multiple of $100,000.00 unless such Base Rate
Borrowing would exhaust the Total Commitment in which case, such amount may be
in an amount of the unused portion of the Total Commitment) (ii) on
_______________, 199___.
The undersigned (in his representative capacity and not in his individual
capacity) hereby represents and warrants to Agent and Banks that all of the
representations and warranties contained in Article VI of the Loan Agreement
(except Section 6.07) are true and correct in all material respects as of the
date hereof, with the same force and effect as if made on the date hereof, and
that no Event of Default or condition, event or act which with the giving of
notice or lapse of time, or both, would constitute an Event of Default exists
and is continuing on this date, unless noted below (if such a condition, event
or act is so noted, there shall also be noted below the nature, period of
existence thereof and the action which the Company is taking or proposes to take
with respect thereto):
TANDYCRAFTS, INC.
By:
Name:
Title:
EXHIBIT "E"
TO
REVOLVING CREDIT AGREEMENT
DATED MARCH 31, 1999
REQUEST FOR BORROWING - LIBOR BORROWING
Date: __________________
Wells Fargo Bank (Texas), National Association
505 Main Street
Suite 300
Fort Worth, Texas 76102
Attn: Susan B. Sheffield
Re: Request For LIBOR Borrowing
This Request for Borrowing has been prepared and is being delivered to
Agent pursuant to Section 2.02(a) of that certain Revolving Credit Agreement
dated as of March 31, 1999, by and among Tandycrafts, Inc., a Delaware
corporation, the Guarantors, Wells Fargo Bank (Texas), National Association, as
Agent, and Banks. Capitalized terms in this document shall have the meanings
assigned to them in the Loan Agreement unless otherwise provided herein or the
context hereof otherwise requires. (Check applicable box below.)
. [For New Advances] On this date Company hereby requests that Banks make
Advances for a LIBOR Borrowing (i) in the aggregate principal amount of
$_________ (such amount shall be in an integral multiple of $1,000,000.00), (ii)
for the following Interest Period ____________ (one [1], two [2], three [3] or
six [6] months), (iii) on ______________, 199___ (which date shall be at
least three (3) LIBOR Business Days after the date on which this Request for
Borrowing shall be submitted to Agent). After taking into account the Borrowing
requested hereby, the total number of unpaid LIBOR Borrowings does not exceed
eight (8).
. [For Rollover Notices] On this date the undersigned does hereby request a
LIBOR Borrowing (i) in the aggregate principal amount of $__________ (such
amount shall be in an integral multiple of $1,000,000.00), (ii) for the
following, Interest Period ___________ (one [1], two [2] or three [3] months),
(iii) on ___________, 199___ (which date shall be at least three (3) LIBOR
Business Days after the date on which this Request for Borrowing shall be
submitted to Agent). After taking into account the Borrowing requested hereby,
the total number of unpaid LIBOR Borrowings does not exceed eight (8). This
Request for Borrowing shall serve as a notification under Section 2.02(c) of the
Agreement, with respect to the LIBOR Borrowing made on _____________, 199___
("Prior Borrowing"). This Request for Borrowing is being submitted at least
three (3) LIBOR Business Days (if the Prior Borrowing was a LIBOR Borrowing)
prior to the termination of the Interest Period for the Prior Advance.
The undersigned (in his representative capacity and not in his individual
capacity) hereby represents and warrants to Agent and Banks that all of the
representations and warranties contained in Article VI of the Agreement (except
Section 6.07) are true and correct in all material respects as of the date
hereof, with the same force and effect as if made on the date hereof, and that
no Event of Default or condition, event or act which with the giving of notice
or lapse of time, or both, would constitute an Event of Default, exists and is
continuing on this date, unless noted below (if such a condition, event or act
is so noted, there shall also be noted below the nature, period of existence
thereof and the action which the Company is taking, or proposes to take with
respect thereto):
TANDYCRAFTS, INC.
By:
Name:
Title:
EXHIBIT "F"
TO
REVOLVING CREDIT AGREEMENT
DATED MARCH 31, 1999
CONFIRMATION OF
REQUEST FOR BORROWING - BASE RATE BORROWING
Date: ____________________
Wells Fargo Bank (Texas), National Association
505 Main Street
Suite 300
Fort Worth, Texas 76102
Attn: Susan B. Sheffield
Re: Request For Base Rate Borrowing
This Confirmation of Request for Borrowing has been prepared and is being
delivered to Agent pursuant to Section 2.02(a) of that certain Revolving Credit
Agreement ("Agreement") dated as of March 31, 1999 by and among Tandycrafts,
Inc., a Delaware corporation ("Company"), the Guarantors, Wells Fargo Bank
(Texas), National Association, as "Agent," and the "Banks" as defined therein.
Capitalized terms shall have the meanings assigned to them in the Agreement
unless otherwise provided herein or the context hereof otherwise requires.
On ___________________ the undersigned requested that Banks make a Base
Rate Advance in the aggregate principal amount of $_____________ on
__________________, 199___.
The undersigned (in his representative capacity and not in his individual
capacity) hereby represents and warrants to Agent and Banks that all of' the
representations and warranties contained in Article VI of the Agreement (except
Section 6.07) are true and correct in all material respects as of the date
hereof, with the same force and effect as if made on the date hereof, and that
no Event of Default or condition, event or act which with the giving of notice
or lapse of time, or both, would constitute an Event of Default exists and is
continuing on this date, unless noted below (if such a condition, event or act
is so noted, there shall also be noted below the nature, period of existence
thereof and the action which the Company is taking or proposes to take with
respect thereto):
TANDYCRAFTS, INC.
By:
Name:
Title:
EXHIBIT "G"
TO
REVOLVING CREDIT AGREEMENT
DATED MARCH 31, 1999
CONFIRMATION OF
REQUEST FOR BORROWING - LIBOR BORROWING
Date: _____________________
Wells Fargo Bank (Texas), National Association
505 Main Street
Suite 300
Fort Worth, Texas 76102
Attn: Susan B. Sheffield
Re: Request For LIBOR Borrowing
This Confirmation of Request for Borrowing has been prepared and is being
delivered to Agent pursuant to Section 2.02(a) of that certain Revolving Credit
Agreement ("Agreement") dated as of March 31, 1999, by and among Tandycrafts,
Inc., a Delaware corporation ("Company"), the Guarantors, Wells Fargo Bank
(Texas), National Association, as "Agent," and the "Banks" as defined therein.
Capitalized terms shall have the meanings assigned to them in the Agreement
unless otherwise provided herein or the context hereof otherwise requires.
On _____________ the undersigned requested that Banks make a LIBOR Advance
(i) in the aggregate principal amount of $_________________ (ii) for the
following Interest Period ________________ (one [1], two [2], three [3] or six
[6] months), (iii) on __________________, 199___. After taking into account
such Borrowing, the total number of unpaid LIBOR Borrowings does not exceed
eight (8).
The undersigned (in his representative capacity and not in his individual
capacity) hereby represents and warrants to Agent and Banks that all of the
representations and warranties contained in Article VI of the Agreement (except
Section 6.07) are true and correct in all material respects as of the date
hereof, with the same force and effect as if made on the date hereof, and that
no Event of Default or condition, event or act which with the giving of notice
or lapse of time, or both, would constitute an Event of Default, exists and is
continuing on this date, unless noted below (if such a condition, event or act
is so noted, there shall also be noted below the nature, period of existence
thereof and the action which the Company is taking, or proposes to take with
respect thereto):
TANDYCRAFTS, INC.
By:
Name:
Title:
EXHIBIT "J"
TO
REVOLVING CREDIT AGREEMENT
DATED MARCH 31, 1999
ASSIGNMENT AND ACCEPTANCE
Dated: _______________, 19___
Reference is made to the Revolving Credit Agreement dated as of March 31,
1999 (as amended from time to time, the "Loan Agreement") among TANDYCRAFTS,
INC. (the "Borrower"), the Guarantors named therein, the Banks named therein,
and Wells Fargo Bank (Texas), National Association , as Agent. Terms as defined
in the Loan Agreement and not otherwise defined herein are used herein with the
meanings specified in the Loan Agreement.
_____________________, acting as one of the Banks referred to in the Loan
Agreement (the "Assignor"), and ____________________(the "Assignee") agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, that interest in and to
a portion of the Assignor's rights and obligations as of the date hereof under
the Loan Agreement and the other Loan Documents sufficient to give the Assignee
the percentage interest specified in Section 1 of Schedule I hereto of all
outstanding rights and obligations under the Loan Agreement and the other Loan
Documents. Such sale and assignment shall [include] [exclude] a proportionate
share of the loan origination fee previously paid to Assignor pursuant to
Section 2.04 of the Loan Agreement, the amounts of such proportionate shares
being specified in Section 2 of Schedule 1 hereto. After giving effect to such
sale and assignment, the respective Commitments of and amounts of the Loans
owing to the Assignor and the Assignee will be as set forth in Section 3 of
Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it (a) is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim and (b) to its knowledge (1)
there exists no Event of Default, or event which with the giving of notice or
the passage of time or both, would constitute and Event of Default and (2) it
has not waived any material provision of any Loan Document; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made by another Person in or in
connection with the Loan Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Loan Documents or any
other instrument or document furnished pursuant thereto; (iii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or any other Person or the performance or
observance by the Borrower or any other Person of any of its obligations under
the Loan Documents or any other instrument or document furnished pursuant
thereto; and (iv) will deliver the Note issued to it pursuant to the Credit
Agreement to the Agent concurrently with the presentation hereof to the Agent
for acceptance and requests that, upon receipt of such Note, the Agent shall
exchange such Note for a new Note [new Notes] payable to the order of the
Assignee in an amount equal to the Commitment assumed by the Assignee pursuant
hereto and the Assignor in an amount equal to the Commitment retained by the
Assignor under the Loan Agreement, respectively, as specified in Section 4 of
Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of the Loan
Agreement and the other Loan Documents, together with copies of the financial
statements referred to in Section 7.07 thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon the Assignor or any other of the Banks
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Loan Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes the Agent to take such action on its behalf and to
exercise such powers under the Loan Agreement and the other Loan Documents as
are delegated to such Person by the terms thereof, together with such powers as
are reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Loan Agreement
and the other Loan Documents are required to be performed by it as a Bank; and
(vi) specifies as its domestic lending office (and address for notices) and
LIBOR lending office the offices set forth in Section 5 of Schedule 1 hereto;
and (vii) represents that it is either (y) a corporation organized under the
laws of the United States, a state thereof or the Distinct of Columbia or (z)
presently entitled to complete exemption from United States withholding tax
imposed on or with respect to any payments, including fees, to be made to it
pursuant to the Loan Agreement (A) under an applicable provision of a tax
convention or treaty to which the United States is a party or (B) because it is
acting through a branch, agency or office in the United States and any payment
to be received by it under the Loan Agreement is effectively connected with a
trade or business in the United States.
4. Following the execution of this Assignment and Acceptance by the
Assignor and the Assignee, it will be delivered to the Agent for the approval of
the Borrower and the Agent and acceptance by the Agent, and the effective date
of this Assignment and Acceptance (the "Effective Date") shall be the date on
which such approval and acceptance has occurred.
5. Upon the Effective Date, (i) the Assignee shall be a party to the Loan
Agreement and, to the extent provided in this Assignment and Acceptance, have
the rights and obligations of a Bank thereunder and (ii) the Assignor shall, to
the extent provided in this Assignment and Acceptance, relinquish its rights and
be released from its obligations under the Loan Agreement.
6. From and after the Effective Date, the Agent shall make all payments
under the Loan Agreement and the other Loan Documents in respect of the interest
assigned hereby (including, without limitation, all payments of principal,
interest and commitment fees with respect thereto) to the Assignee. The Assignor
and Assignee shall make all appropriate adjustments in payments and fundings
under the Loan Agreement and the other Loan Documents for periods prior to the
Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of the State of Texas (without giving effect to the
conflict of law principles thereof) and applicable federal law. This Assignment
and Acceptance may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed to be an original and all of which taken together
shall constitute but one and the same instrument. This Assignment and Acceptance
shall be binding upon and inure to the benefit of the Assignor and the Assignee
and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed by their respective officers thereunto duly authorized
effective as of the date first above written.
Attachments: ASSIGNOR:
Schedule 1
By:
Name:
Title:
ASSIGNEE:
By:
Name:
Title:
Approved this _____ day of __________________, 199___.
TANDYCRAFTS, INC.
By:
Name:
Title:
WELLS FARGO BANK (TEXAS), NATIONAL
ASSOCIATION, as Agent
By:
Name:
Title:
SCHEDULE I
TO ASSIGNMENT AND ACCEPTANCE
DATED _____________, 199___
Section 1.
Percentage Interest acquired by Assignee
relative to all Banks
----------------
Section 2.
1. Assignee's proportionate share of loan
origination fee previously paid to Assignor
pursuant to Subsection 5.01(p) the Loan Agreement:
$
----------------
Section 3.
1. Assignee's Acquired Interest.
Assignee's Commitment: $
----------------
Aggregate outstanding principal
amount of Loans owing to the Assignee: $
----------------
2. Assignor's Retained Interest.
Assignor's Commitment: $
----------------
Aggregate outstanding principal
amount of Loans owing to the Assignor: $
----------------
Section 4.
1. A Note payable to the order of the Assignee in the principal amount of
$
--------------.
2. A Note payable to the order of the Assignor in the principal amount of
$_____________.
Section 5.
Domestic Lending Office LIBOR Lending Office
EXHIBIT "K"
TO
REVOLVING CREDIT AGREEMENT
DATED MARCH 31, 1999
LITIGATION
Tandy Corporation vs. Tandycrafts, Inc., No. 348-174610-98, District Court of
Tarrant County, Texas
EXHIBIT "L"
TO
REVOLVING CREDIT AGREEMENT
DATED MARCH 31, 1999
COMPLIANCE WITH LAW
None
EXHIBIT "M"
TO
REVOLVING CREDIT AGREEMENT
DATED MARCH 31, 1999
ENVIRONMENTAL MATTERS
None
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from Tandycrafts,
Inc. March 31, 1999 Form 10-Q and is qualified in its entirety by
reference to such Form 10-Q filing.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> JUN-30-1999
<PERIOD-END> MAR-31-1999
<CASH> 1,365
<SECURITIES> 0
<RECEIVABLES> 25,808
<ALLOWANCES> 2,947
<INVENTORY> 37,144
<CURRENT-ASSETS> 67,766
<PP&E> 55,056
<DEPRECIATION> 29,086
<TOTAL-ASSETS> 131,128
<CURRENT-LIABILITIES> 27,047
<BONDS> 0
0
0
<COMMON> 18,528
<OTHER-SE> 55,231
<TOTAL-LIABILITY-AND-EQUITY> 131,128
<SALES> 154,171
<TOTAL-REVENUES> 154,171
<CGS> 110,328
<TOTAL-COSTS> 162,137
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 8,145
<INTEREST-EXPENSE> 1,600
<INCOME-PRETAX> (17,711)
<INCOME-TAX> (4,623)
<INCOME-CONTINUING> (13,088)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (13,088)
<EPS-PRIMARY> (1.07)
<EPS-DILUTED> (1.07)
</TABLE>
