FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT
10
Execution
Copy
FIRST
AMENDMENT TO SECOND AMENDED AND RESTATED
This
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this
“Amendment”), made and entered into as of August 15, 2007, is among
Cabela’s Incorporated, a Delaware corporation, Cabela’s Retail, Inc., a Nebraska
corporation, Xxx Xxxx Supply Company, Inc., a South Dakota corporation, Cabela’s
Ventures, Inc., a Nebraska corporation, Cabela’s Outdoor Adventures, Inc., a
Nebraska corporation, Cabela’s Catalog, Inc., a Nebraska corporation, Cabela’s
Wholesale, Inc., a Nebraska corporation, Cabela’s Marketing and Brand
Management, Inc., a Nebraska corporation, Xxxxxxx.xxx, Inc., a Nebraska
corporation, Wild Wings, LLC, a Minnesota limited liability company, Cabela’s
Lodging, LLC, a Nebraska limited liability company, Cabela’s Retail LA, LLC, a
Nebraska limited liability company, Cabela’s Trophy Properties, LLC, a Nebraska
limited liability company, Original Creations, LLC, a Minnesota limited
liability company, Cabela’s Retail TX, L.P., a Nebraska limited partnership,
Cabela’s Retail GP, LLC, a Nebraska limited liability company, CRLP, LLC, a
Nebraska limited liability company, Legacy Trading Company, a South Dakota
corporation, Cabela’s Retail MO, LLC, a Nebraska limited liability company and
Cabela’s Retail IL, Inc., an Illinois corporation (individually, a
“Borrower” and, collectively, the “Borrowers”), the banks which
are signatories to the Credit Agreement (as defined below) (individually, a
“Bank” and, collectively, the “Banks”), and U.S. Bank National
Association, one of the Banks, as agent for the Banks (in such capacity, the
“Agent”).
RECITALS
1. The
Borrowers, the Banks and the Agent entered into a Second Amended and Restated
Credit Agreement dated as of July 15, 2005 (the “Credit Agreement”);
and
2. The
Borrower desires to amend certain provisions of the Credit Agreement, and the
Banks have agreed to make such amendments, subject to the terms and conditions
set forth in this Amendment.
AGREEMENT
NOW,
THEREFORE, for good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto hereby covenant and agree
to
be bound as follows:
CAPITALIZED
TERMS. CAPITALIZED TERMS USED HEREIN AND NOT OTHERWISE DEFINED
HEREIN SHALL HAVE THE MEANINGS ASSIGNED TO THEM IN THE CREDIT AGREEMENT, UNLESS
THE CONTEXT SHALL OTHERWISE REQUIRE.
AMENDMENTS. THE
CREDIT AGREEMENT IS HEREBY AMENDED AS FOLLOWS:
Definitions. The
definitions of “Eurodollar Rate”, “Revolving Commitment Ending
Date” and “Total Letter of Credit Commitment Amount” contained in
Section 1.1 of the Credit Agreement are amended to read in their entireties
as
follows:
“Eurodollar
Rate”: With respect to each Interest Period applicable to a
Eurodollar Rate Advance, the average offered rate for deposits in United States
dollars (rounded upward, if necessary, to the nearest 1/16 of 1%) for delivery
of such deposits on the first day of such Interest Period, for the number of
days in such Interest Period, which appears on Reuters Screen LIBOR01 or any
successor thereto as of 11:00 AM, London time (or such other time as of which
such rate appears) two Eurodollar Business Days prior to the first day of such
Interest Period, or the rate for such deposits determined by the Administrative
Agent at such time based on such other published service of general application
as shall be selected by the Administrative Agent for such purpose; provided,
that in lieu of determining the rate in the foregoing manner, the Administrative
Agent may determine the rate based on rates at which United States dollar
deposits are offered to the Administrative Agent in the interbank Eurodollar
market at such time for delivery in Immediately Available Funds on the first
day
of such Interest Period in an amount approximately equal to the Advance by
the
Administrative Agent to which such Interest Period is to apply (rounded upward,
if necessary, to the nearest 1/16 of 1%).
“Revolving
Commitment Ending Date”: June 30, 2012.
“Total
Letter of Credit Commitment Amount”: Two Hundred Million and
No/100 Dollars ($200,000,000) in the aggregate, inclusive of any Unpaid
Drawings.
Terms
of Letters of Credit. Section 2.11 of the Credit Agreement is
amended by amending the second sentence thereof to read in its entirety as
follows:
All
Letters of Credit must expire not later than one year from the date of issuance
(subject to renewal), provided that at any time, the Borrowers may have
outstanding Letters of Credit expiring not later than 30 days prior to the
Revolving Commitment Ending Date with the aggregate maximum amount available
to
be drawn on such Letters of Credit not exceeding $25,000,000.
Financial
Statements. Section 5.1(b) of the Credit Agreement is amended to
read in its entirety as follows:
(b) As
soon as available and in any event within 45 days after the end of the first
three quarters of each fiscal year, unaudited consolidated statements of income
and cash flow for the Borrowers for such quarter and for the period from the
beginning of such fiscal year to the end of such quarter, and a consolidated
balance sheet of the Borrowers as at the end of such quarter, setting forth
in
comparative form figures for the corresponding period for the preceding fiscal
year, accompanied by a certificate signed by the chief financial officer of
the
Borrowers’ Agent stating that such financial statements present fairly the
financial condition of the Borrowers and that the same have been prepared in
accordance with GAAP (except for the absence of footnotes and subject to
year-end audit adjustments as to the interim statements).
Disposition
of Assets. Section 6.2(e) of the Credit Agreement is amended to
read in its entirety as follows:
(e) other
dispositions of property during the term of this Agreement whose net book value
in the aggregate does not exceed 10% of the Borrowers’ total assets as shown on
its balance sheet for immediately prior fiscal year;
Subsidiaries. Section
6.5 of the Credit Agreement is amended to read in its entirety as
follows:
Section
6.5 Subsidiaries. Except
as permitted in Sections 6.1 and 6.2, no Borrower will, nor will permit any
Subsidiary to, do any of the following: (a) form or enter into any
partnership or joint venture where such Borrower or such Subsidiary shall have
unlimited liability for the liabilities of the partnership or joint venture;
(b)
take any action, or permit any Subsidiary to take any action, which would result
in a decrease in any Borrower’s or any Subsidiary’s ownership interest in any
Subsidiary; or (c) form or acquire any Person that would thereby become a
Subsidiary unless, immediately upon the closing of such formation or
acquisition, such Person shall enter into documents requested by the
Administrative Agent to provide that such Person shall be obligated to repay
the
Loans and other amounts payable under the Loan Documents and otherwise be bound
by the terms and conditions of the Loan Documents; provided, however, that
any
such Person shall not be required to comply with Section 6.5(c) if at the
closing of such formation or acquisition the assets of such Person, together
with the assets of each other Subsidiary (excluding WFB) that is not a Borrower,
have a value of less than five percent (5%) of the consolidated total assets
of
the Borrowers as shown on the most recent balance sheet provided pursuant to
Section 5.1(a). If at any time after the Closing Date the value of
the assets of any Subsidiary (excluding WFB) that is not a Borrower, together
with the value of the assets of each other Subsidiary that is not a Borrower,
equals or exceeds five percent (5%) of the consolidated total assets of the
Borrowers as shown on the most recent balance sheet provided pursuant to Section
5.1(a), such Subsidiary shall promptly enter into documents requested by the
Administrative Agent to provide that such Subsidiary is obligated to repay
the
Loans and other amounts payable under the Loan Documents and otherwise be bound
by the terms and conditions of the Loan Documents.
Negative
Pledges. Section 6.6 of the Credit Agreement is amended by
deleting the last sentence thereof it is entirety.
Liens. Section
6.13 of the Credit Agreement is amended by amending subsection (k) thereof
to
read in its entirety as follows:
(k) Liens
securing floor plan financing for boats and all terrain vehicles in an aggregate
amount not to exceed $50,000,000 at any time.
Sale
and Leaseback Transactions. Section 6.19 of the Credit Agreement
is amended to read in its entirety as follows:
Section
6.19 Sale and Leaseback
Transactions. No Borrower will, nor permit any Subsidiary to,
enter into any arrangement, directly or indirectly, whereby it shall sell or
transfer any property, real or personal, and thereafter lease such property
for
the same or a substantially similar purpose or purposes as the property sold
or
transferred, except during any fiscal year of the Borrowers with respect to
property having an aggregate value not in excess of ten percent (10%) of the
consolidated total assets of the Borrowers as shown on the most recent balance
sheet provided pursuant to Section 5.1(a).
Intercreditor
Agreement. Section 6.20 of the Credit Agreement is amended to
read in its entirety as follows:
Section
6.20 Intercreditor
Agreement. The Borrowers shall not fail to maintain the
Intercreditor Agreement in full force and effect, provided, that the Banks
agree
to terminate the Intercreditor Agreement simultaneously with the termination
of
the Intercreditor Agreement by all other parties to the Intercreditor
Agreement.
EFFECTIVENESS
OF AMENDMENTS. THE AMENDMENTS CONTAINED IN THIS AMENDMENT SHALL
BECOME EFFECTIVE UPON DELIVERY BY THE BORROWERS OF, AND COMPLIANCE BY THE
BORROWERS WITH, THE FOLLOWING:
This
Amendment, duly executed by the Borrowers.
A
certificate executed by an officer or designated representative of a partner
of
each Borrower (i) certifying that there has been no amendment to the
Articles of Incorporation and Bylaws or Operating Agreement, as applicable,
of
such Borrower since true and accurate copies of the same were delivered to
the
Banks with a certificate of a properly designated representative of such
Borrower dated July 15, 2005, February 22, 2006 or June 15, 2007, as applicable,
(ii) certifying that the resolutions previously delivered to the Banks with
a
certificate of a properly designated representative of such Borrower dated
July
15, 2005, February 22, 2006 or June 15, 2007, as applicable, are still
effective, and (iii) certifying that the individual signing the certificate
is
authorized to execute this Amendment and any other instrument or agreement
executed by such Borrower in connection with this
Amendment (collectively, the “Amendment Documents”), all in a
form as set forth on Exhibit A hereto.
Certified
copies of all documents evidencing any necessary corporate action, consent
or
governmental or regulatory approval (if any) with respect to this
Amendment.
The
Borrowers shall have satisfied such other conditions as specified by the Agent,
including payment of all unpaid legal fees and expenses incurred by the Agent
through the date of this Amendment in connection with the Credit Agreement
and
the Amendment Documents.
REPRESENTATIONS,
WARRANTIES, AUTHORITY, NO ADVERSE CLAIM.
Reassertion
of Representations and Warranties, No Default. Each Borrower
hereby represents that on and as of the date hereof and after giving effect
to
this Amendment (a) all of the representations and warranties contained in
the Credit Agreement are true, correct and complete in all respects as of the
date hereof as though made on and as of such date, except for changes permitted
by the terms of the Credit Agreement, and (b) there will exist no Default or
Event of Default under the Credit Agreement as amended by this Amendment on
such
date which has not been waived by the Banks.
Authority,
No Conflict, No Consent Required. Each Borrower represents and
warrants that such Borrower has the power and legal right and authority to
enter
into the Amendment Documents and has duly authorized as appropriate the
execution and delivery of the Amendment Documents and other agreements and
documents executed and delivered by such Borrower in connection herewith or
therewith by proper corporate action, and none of the Amendment Documents nor
the agreements contained herein or therein contravenes or constitutes a default
under any agreement, instrument or indenture to which such Borrower is a party
or a signatory or a provision of the Borrower’s Articles of Incorporation,
Bylaws, Operating Agreement, or any other agreement or requirement of law,
or
result in the imposition of any Lien on any of its property under any agreement
binding on or applicable to such Borrower or any of its property except, if
any,
in favor of the Banks. Each Borrower represents and warrants that no
consent, approval or authorization of or registration or declaration with any
Person, including but not limited to any governmental authority, is required
in
connection with the execution and delivery by such Borrower of the Amendment
Documents or other agreements and documents executed and delivered by such
Borrower in connection therewith or the performance of obligations of such
Borrower therein described, except for those which such Borrower has obtained
or
provided and as to which such Borrower has delivered certified copies of
documents evidencing each such action to the Banks.
No
Adverse Claim. Each Borrower warrants, acknowledges and agrees
that no events have taken place and no circumstances exist at the date hereof
which would give such Borrower a basis to assert a defense, offset or
counterclaim to any claim of the Banks with respect to the
Obligations.
AFFIRMATION
OF CREDIT AGREEMENT, FURTHER REFERENCES. EACH BANK AND EACH
BORROWER EACH ACKNOWLEDGE AND AFFIRM THAT THE CREDIT AGREEMENT, AS HEREBY
AMENDED, IS HEREBY RATIFIED AND CONFIRMED IN ALL RESPECTS AND ALL TERMS,
CONDITIONS AND PROVISIONS OF THE CREDIT AGREEMENT, EXCEPT AS AMENDED BY THIS
AMENDMENT, SHALL REMAIN UNMODIFIED AND IN FULL FORCE AND EFFECT. ALL
REFERENCES IN ANY DOCUMENT OR INSTRUMENT TO THE CREDIT AGREEMENT ARE HEREBY
AMENDED AND SHALL REFER TO THE CREDIT AGREEMENT AS AMENDED BY THIS
AMENDMENT.
MERGER
AND INTEGRATION, SUPERSEDING EFFECT. THIS AMENDMENT, FROM AND
AFTER THE DATE HEREOF, EMBODIES THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN
THE PARTIES HERETO AND SUPERSEDES AND HAS MERGED INTO THIS AMENDMENT ALL PRIOR
ORAL AND WRITTEN AGREEMENTS ON THE SAME SUBJECTS BY AND BETWEEN THE PARTIES
HERETO WITH THE EFFECT THAT THIS AMENDMENT SHALL CONTROL WITH RESPECT TO THE
SPECIFIC SUBJECTS HEREOF AND THEREOF.
SEVERABILITY. WHENEVER
POSSIBLE, EACH PROVISION OF THIS AMENDMENT AND THE OTHER AMENDMENT DOCUMENTS
AND
ANY OTHER STATEMENT, INSTRUMENT OR TRANSACTION CONTEMPLATED HEREBY OR THEREBY
OR
RELATING HERETO OR THERETO SHALL BE INTERPRETED IN SUCH MANNER AS TO BE
EFFECTIVE, VALID AND ENFORCEABLE UNDER THE APPLICABLE LAW OF ANY JURISDICTION,
BUT, IF ANY PROVISION OF THIS AMENDMENT, THE OTHER AMENDMENT DOCUMENTS OR ANY
OTHER STATEMENT, INSTRUMENT OR TRANSACTION CONTEMPLATED HEREBY OR THEREBY OR
RELATING HERETO OR THERETO SHALL BE HELD TO BE PROHIBITED, INVALID OR
UNENFORCEABLE UNDER THE APPLICABLE LAW, SUCH PROVISION SHALL BE INEFFECTIVE
IN
SUCH JURISDICTION ONLY TO THE EXTENT OF SUCH PROHIBITION, INVALIDITY OR
UNENFORCEABILITY, WITHOUT INVALIDATING OR RENDERING UNENFORCEABLE THE REMAINDER
OF SUCH PROVISION OR THE REMAINING PROVISIONS OF THIS AMENDMENT, THE OTHER
AMENDMENT DOCUMENTS OR ANY OTHER STATEMENT, INSTRUMENT OR TRANSACTION
CONTEMPLATED HEREBY OR THEREBY OR RELATING HERETO OR THERETO IN SUCH
JURISDICTION, OR AFFECTING THE EFFECTIVENESS, VALIDITY OR ENFORCEABILITY OF
SUCH
PROVISION IN ANY OTHER JURISDICTION.
SUCCESSORS. THE
AMENDMENT DOCUMENTS SHALL BE BINDING UPON THE BORROWERS AND THE BANKS AND THEIR
RESPECTIVE SUCCESSORS AND ASSIGNS, AND SHALL INURE TO THE BENEFIT OF THE
BORROWERS AND THE BANKS AND THE SUCCESSORS AND ASSIGNS OF THE
BANKS.
LEGAL
EXPENSES. AS PROVIDED IN SECTION 9.2 OF THE CREDIT AGREEMENT, THE
BORROWERS AGREE TO PAY OR REIMBURSE THE AGENT, UPON EXECUTION OF THIS AMENDMENT,
FOR ALL REASONABLE OUT-OF-POCKET EXPENSES PAID OR INCURRED BY THE AGENT,
INCLUDING FILING AND RECORDING COSTS AND FEES, CHARGES AND DISBURSEMENTS OF
OUTSIDE COUNSEL TO THE AGENT (DETERMINED ON THE BASIS OF SUCH COUNSEL’S
GENERALLY APPLICABLE RATES, WHICH MAY BE HIGHER THAN THE RATES SUCH COUNSEL
CHARGES THE AGENT IN CERTAIN MATTERS) AND/OR THE ALLOCATED COSTS OF IN-HOUSE
COUNSEL INCURRED FROM TIME TO TIME, IN CONNECTION WITH THE CREDIT AGREEMENT,
INCLUDING IN CONNECTION WITH THE NEGOTIATION, PREPARATION, EXECUTION, COLLECTION
AND ENFORCEMENT OF THE AMENDMENT DOCUMENTS AND ALL OTHER DOCUMENTS NEGOTIATED,
PREPARED AND EXECUTED IN CONNECTION WITH THE AMENDMENT DOCUMENTS, AND IN
ENFORCING THE OBLIGATIONS OF THE BORROWERS UNDER THE AMENDMENT DOCUMENTS, AND
TO
PAY AND SAVE THE BANKS HARMLESS FROM ALL LIABILITY FOR, ANY STAMP OR OTHER
TAXES
WHICH MAY BE PAYABLE WITH RESPECT TO THE EXECUTION OR DELIVERY OF THE AMENDMENT
DOCUMENTS, WHICH OBLIGATIONS OF THE BORROWERS SHALL SURVIVE ANY TERMINATION
OF
THE CREDIT AGREEMENT.
HEADINGS. THE
HEADINGS OF VARIOUS SECTIONS OF THIS AMENDMENT HAVE BEEN INSERTED FOR REFERENCE
ONLY AND SHALL NOT BE DEEMED TO BE A PART OF THIS AMENDMENT.
COUNTERPARTS. THE
AMENDMENT DOCUMENTS MAY BE EXECUTED IN SEVERAL COUNTERPARTS AS DEEMED NECESSARY
OR CONVENIENT, EACH OF WHICH, WHEN SO EXECUTED, SHALL BE DEEMED AN ORIGINAL,
PROVIDED THAT ALL SUCH COUNTERPARTS SHALL BE REGARDED AS ONE AND THE SAME
DOCUMENT, AND EITHER PARTY TO THE AMENDMENT DOCUMENTS MAY EXECUTE ANY SUCH
AGREEMENT BY EXECUTING A COUNTERPART OF SUCH AGREEMENT.
GOVERNING
LAW. THE AMENDMENT DOCUMENTS SHALL BE GOVERNED BY THE INTERNAL
LAWS OF THE STATE OF NEBRASKA, WITHOUT GIVING EFFECT TO CONFLICT OF LAW
PRINCIPLES THEREOF, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS, THEIR HOLDING COMPANIES AND THEIR AFFILIATES.
[The
remainder of this page intentionally left blank; signature pages
follow.]
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
as
of the date and year first above written.
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CABELA’S
INCORPORATED
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CABELA’S
CATALOG, INC.
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CABELA’S
RETAIL, INC.
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CABELA’S
OUTDOOR ADVENTURES, INC.
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XXXXXXX.XXX,
INC.
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CABELA’S
WHOLESALE, INC.
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CABELA’S
VENTURES, INC.
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WILD
WINGS, LLC
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CABELA’S
LODGING, LLC
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LEGACY
TRADING COMPANY
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CABELA’S
TROPHY PROPERTIES, LLC
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CABELA’S
MARKETING AND BRAND
MANAGEMENT,
INC.
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CABELA’S
RETAIL LA, LLC
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ORIGINAL
CREATIONS, LLC
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CABELA’S
RETAIL GP, LLC
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CRLP,
LLC
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CABELA’S
RETAIL MO, LLC
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By:
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/s/
Xxxxx X. Xxxxxxx
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Name:
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Xxxxx
X. Xxxxxxx
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Title:
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Vice
President, CFO
Secretary
or Treasurer
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XXX
XXXX SUPPLY COMPANY, INC.
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By:
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/s/
Xxxx Xxxx
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Name:
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Xxxx
Xxxx
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Title:
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Secretary
and Treasurer
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CABELA’S
RETAIL TX, L.P.
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By:
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Cabela’s
Retail GP, LLC
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Its:
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General
Partner
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By:
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/s/
Xxxxx X. Xxxxxxx
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Name:
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Xxxxx
X. Xxxxxxx
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Title:
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Secretary
and Treasurer
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CABELA’S
RETAIL IL, INC.
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By:
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/s/
Xxxxx X. Xxxxxxx
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Name:
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Xxxxx
X. Xxxxxxx
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Title:
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Secretary
and Treasurer
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[Signature
Page 1 to First Amendment to
Second
Amended and Restated Credit Agreement]
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U.S.
BANK NATIONAL ASSOCIATION,
in
its individual corporate capacity and as
Administrative
Agent
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By:
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/s/
Xxxxx X. Xxxxxxxx
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Name:
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Xxxxx
X. Xxxxxxxx
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Title:
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Vice
President
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[Signature
Page 2 to First Amendment to
Second
Amended and Restated Credit Agreement]
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LASALLE
BANK NATIONAL ASSOCIATION
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By:
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/s/
Xxxxxx X. Xxxxxx
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Name:
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Xxxxxx
X. Xxxxxx
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Title:
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Senior
Vice President
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[Signature
Page 3 to First Amendment to
Second
Amended and Restated Credit Agreement]
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WACHOVIA
BANK, NATIONAL ASSOCIATION
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By:
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/s/
Xxxx X. Xxxxxx
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Name:
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Xxxx
X. Xxxxxx
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Title:
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Vice
President
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[Signature
Page 4 to First Amendment to
Second
Amended and Restated Credit Agreement]
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COMERICA
BANK
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By:
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/s/
Xxxxxxx X’Xxxxxx
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Name:
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Xxxxxxx
X’Xxxxxx
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Title:
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Vice
President
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[Signature
Page 5 to First Amendment to
Second
Amended and Restated Credit Agreement]
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XXXXX
FARGO BANK, NATIONAL ASSOCIATION
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By:
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/s/
Xxxx Xxxxx
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Name:
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Xxxx
Xxxxx
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Title:
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Vice
President
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[Signature
Page 6 to First Amendment to
Second
Amended and Restated Credit Agreement]
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JPMORGAN
CHASE BANK, N.A.
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By:
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/s/
Xxxxxxxxx Xxxxxxx
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Name:
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Xxxxxxxxx
Xxxxxxx
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Title:
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Vice
President
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[Signature
Page 7 to First Amendment to
Second
Amended and Restated Credit Agreement]
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SOVEREIGN
BANK
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By:
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/s/
Xxxxxxx X. Xxxxxxxx
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Name:
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Xxxxxxx
X. Xxxxxxxx
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Title:
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Vice
President
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[Signature
Page 8 to First Amendment to
Second
Amended and Restated Credit Agreement]
