SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Execution
Copy
SECOND
AMENDED AND RESTATED CREDIT AGREEMENT
THIS
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of July 15, 2005 (the
“Credit
Agreement”),
is by
and between CABELA’S
INCORPORATED,
a
Delaware corporation
(“Cabela’s”),
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, and CRLP, LLC, a
Nebraska limited liability company (each, a “Borrower”
and
collectively, the “Borrowers”),
the
banks
which are signatories hereto (individually, a “Bank”
and,
collectively, the “Banks”),
LASALLE BANK NATIONAL ASSOCIATION, a national banking association, one of the
Banks, as Co-Syndication Agent, WACHOVIA BANK, NATIONAL ASSOCIATION, a national
banking association, one of the Banks and a LC Bank, as Co-Syndication Agent,
COMERICA BANK, one of the Banks, XXXXX FARGO BANK, NATIONAL ASSOCIATION, a
national banking association, one of the Banks, as Co-Syndication Agent,
JPMORGAN CHASE BANK, N.A., a national banking association, one of the Banks,
SOVEREIGN BANK, a federal savings bank, one of the Banks, and U.S. BANK NATIONAL
ASSOCIATION, a national banking association (“USBNA”),
one
of the Banks and a LC Bank, as administrative agent for the Banks (in such
capacity, the “Administrative
Agent”).
RECITALS
A. The
Borrowers and the Banks are parties to an Amended and Restated Credit Agreement
dated as of May 6, 2004 (the “Existing
Credit Agreement”).
B. This
Agreement amends and
restates the Existing Credit Agreement in its entirety.
NOW
THEREFORE, in consideration of the foregoing Recitals and other good and
valuable consideration, the receipt and adequacy of which is hereby mutually
acknowledged, the parties hereto do hereby mutually agree as
follows:
ARTICLE
I
DEFINITIONS
AND ACCOUNTING TERMS
Section
1.1 Defined
Terms.
As used
in this Agreement the following terms shall have the following respective
meanings (and such meanings shall be equally applicable to both the singular
and
plural form of the terms defined, as the context may require):
“Adjusted
Eurodollar Rate”:
With
respect to each Interest Period applicable to a Eurodollar Rate Advance, the
rate (rounded upward, if necessary, to the next 1/16th of 1%) determined by
dividing the Eurodollar Rate for such Interest Period by 1.00 minus the
Eurodollar Reserve Percentage.
“Adjusted
Coverage Indebtedness”:
As of
any Measurement Date, the aggregate amount of (a) Coverage Indebtedness of
Cabela’s on a consolidated basis excluding (i) liabilities of WFB, (ii) long
term deferred compensation, (iii) long term deferred taxes, (iv) any Current
Liabilities (other than Coverage Indebtedness), and (v) Deferred Grant Income
on
such Measurement Date and on each of the three preceding Measurement Dates,
divided by (b) 4, in each case determined on a consolidated basis in accordance
with GAAP.
“Administrative
Agent”:
U.S.
Bank National Association, a national banking association, acting in its
capacity as administrative agent for the Banks under this Credit Agreement,
or
its successor appointed pursuant to the terms of this Credit
Agreement.
“Advance”:
Each
Swing Line Loan by the Swing Line Bank or any portion of the outstanding
Revolving Loans by a Bank as to which one of the available interest rate options
and, if pertinent, an Interest Period, is applicable. An Advance may be a
Eurodollar Rate Advance, Prime Rate Advance or an Alternate
Advance.
“Affiliate”:
When
used with reference to any Person, (a) each Person that, directly or indirectly,
controls, is controlled by or is under common control with, the Person referred
to, (b) each Person which beneficially owns or holds, directly or indirectly,
five percent or more of any class of voting stock of the Person referred to
(or
if the Person referred to is not a corporation, five percent or more of the
equity interest), (c) each Person, five percent or more of the voting stock
(or
if such Person is not a corporation, five percent or more of the equity
interest) of which is beneficially owned or held, directly or indirectly, by
the
Person referred to, and (d) each of such Person’s officers, directors, joint
venturers and partners. The term control (including the terms “controlled by”
and “under common control with”) means the possession, directly, of the power to
direct or cause the direction of the management and policies of the Person
in
question.
“Agency
Fee”:
As
defined in Section 2.16 hereof.
“Aggregate
Revolving Commitment Amounts”:
As of
any date, the sum of the Revolving Commitment Amounts of all the
Banks.
“Alternate
Advance”:
An
Advance with respect to which the interest rate is determined by reference
to a
rate quoted from time to time by the Swing Line Bank and agreed to by the
Borrowers’ Agent.
-
2
-
“Applicable
Fee Percentage”:
The
Applicable Fee Percentage set forth in the table below as in effect from time
to
time determined based on the Cash Flow Leverage Ratio calculated as of the
end
of the most recent fiscal quarter of the Borrowers for which the Borrowers
have
furnished the financial statements and reports required under Section 5.1(a)
or
5.1(c) or under Section 5.1(a) or 5.1(c) of the Existing Credit Agreement,
as
applicable, for the previous four fiscal quarters (adjustments to the Applicable
Fee Percentage to become effective as of the first day of the month following
receipt of the financial statements required under Section 5.1(a) or 5.1(c),
as
applicable):
|
Cash
Flow Leverage Ratio
|
Applicable
Fee Percentage
|
|
Less
than 0.50 to 1.00
|
0.100%
|
|
Equal
or greater than 0.50 to 1.00
but
less than 1.00 to 1.00
|
0.125%
|
|
Equal
or greater than 1.00 to 1.00
but
less than 1.50 to 1.00
|
0.150%
|
|
Equal
to or greater than 1.50 to 1.00
but
less than 2.00 to 1.00
|
0.175%
|
|
Equal
to or greater than 2.00 to 1.00
but
less than 2.50 to 1.00
|
0.200%
|
|
Equal
to or greater than 2.50 to 1.00
|
0.250%
|
Notwithstanding
the foregoing, if the Borrowers have not furnished the financial statements
and
reports required under Section 5.1(a) or 5.1(c), as applicable, for any fiscal
quarter by the required date, the Applicable Fee Percentage shall be calculated
as if the Cash Flow Leverage Ratio as of the end of such fiscal quarter was
equal to or greater than 2.50 to 1.00 for the period from the first day of
the
fiscal quarter first occurring after such required date until the first day
of
the month following the month in which such financial statements and reports
are
delivered.
“Applicable
LC Fee Percentage”:
The
Applicable LC Fee Percentage set forth in the table below as in effect from
time
to time determined based on the Cash Flow Leverage Ratio calculated as of the
end of the most recent fiscal quarter of the Borrowers for which the Borrowers
have furnished the financial statements and reports required under Section
5.1(a) or 5.1(c) or under Section 5.1(a) or 5.1(c) of the Existing Credit
Agreement, as applicable, for the previous four fiscal quarters (adjustments
to
the Applicable LC Fee Percentage to become effective as of the first day of
the
month following receipt of the financial statements required under Section
5.1(a) or 5.1(c), as applicable):
-
3
-
|
Cash
Flow Leverage Ratio
|
Applicable
Fee Percentage
|
|
Less
than 0.50 to 1.00
|
0.650%
|
|
Equal
to or greater than 0.50 to 1.00
but
less than 1.00 to 1.00
|
0.750%
|
|
Equal
to or greater than 1.00 to 1.00
but
less than 1.50 to 1.00
|
0.875%
|
|
Equal
to or greater than 1.50 to 1.00
but
less than 2.00 to 1.00
|
1.00%
|
|
Equal
to or greater than 2.00 to 1.00
but
less than 2.50 to 1.00
|
1.150%
|
|
Equal
to or greater than 2.50 to 1.00
|
1.350%
|
Notwithstanding
the foregoing, if the Borrowers have not furnished the financial statements
and
reports required under Section 5.1(a) or 5.1(c), as applicable, for any fiscal
quarter by the required date, the Applicable LC Fee Percentage shall be
calculated as if the Cash Flow Leverage Ratio as of the end of such fiscal
quarter was equal to or greater than 2.50 to 1.00 for the period from the first
day of the fiscal quarter first occurring after such required date until the
first day of the month following the month in which such financial statements
and reports are delivered.
“Applicable
Lending Office”:
For
each Bank and for each type of Advance, the office of such Bank identified
as
such Bank’s Applicable Lending Office on the signature pages hereof or such
other domestic or foreign office of such Bank (or of an Affiliate of such Bank)
as such Bank may specify from time to time, by notice given pursuant to
Section
9.4,
to the
Administrative Agent and the Borrowers as the office by which its Advances
of
such type are to be made and maintained.
“Applicable
Margin”:
The
Applicable Margin set forth in the table below as in effect from time to time
determined based on the Cash Flow Leverage Ratio calculated as of the end of
the
most recent fiscal quarter of the Borrowers for which the Borrowers have
furnished the financial statements and reports required under Section 5.1(a)
or
5.1(c) or under Section 5.1(a) or 5.1(c) of the Existing Credit Agreement,
as
applicable, for the previous four fiscal quarters (adjustments to the Applicable
Margin to become effective as of the first day of the month following receipt
of
the financial statements required under Section 5.1(a) or 5.1(c), as
applicable):
-
4
-
|
Cash
Flow Leverage Ratio
|
Prime
Rate
Advances
|
Eurodollar
Advances
|
|
Less
than to 0.50 to 1.00
|
0%
|
0.650%
|
|
Equal
to or greater than 0.50 to 1.00
but
less than 1.00 to 1.00
|
0%
|
0.750%
|
|
Equal
to or greater than 1.00 to 1.00
but
less than 1.50 to 1.00
|
0%
|
0.875%
|
|
Equal
to or greater than 1.50 to 1.00
but
less than 2.00 to 1.00
|
0%
|
1.000%
|
|
Equal
to or greater than 2.00 to 1.00
but
less than 2.50 to 1.00
|
0%
|
1.150%
|
|
Equal
to or greater than 2.50 to 1.00
|
0%
|
1.350%
|
In
the
event the calculation of the Cash Flow Leverage Ratio as set forth above results
in a change in the Applicable Margin, such change shall be applied only to
existing Prime Rate Advances and Eurodollar Rate Advances made on or after
the
date of such change. Notwithstanding the foregoing, if the Borrowers have not
furnished the financial statements and reports required under Section 5.1(a)
or
5.1(c), as applicable, for any fiscal quarter by the required date, the
Applicable Margin shall be calculated as if the Cash Flow Leverage Ratio as
of
the end of such fiscal quarter was equal to or greater than 2.50 to 1.00 for
the
period from the first day of the fiscal quarter first occurring after such
required date until the first day of the month following the month in which
such
financial statements and reports are delivered.
“Assignee”:
As
defined in Section 9.6(c).
“Assignment
Agreement”:
As
defined in Section 9.6(c).
“Bank”:
As
defined in the opening paragraph hereof and any successor and assign
thereto.
“Board”:
The
Board of Governors of the Federal Reserve System or any successor
thereto.
“Borrowers”:
As
defined in the opening paragraph hereof.
“Borrowers’
Agent”:
Cabela’s Incorporated, a Delaware corporation.
“Business
Day”:
Any
day (other than a Saturday, Sunday or legal holiday in the State of Minnesota)
on which banks are permitted to be open in Minneapolis,
Minnesota.
-
5
-
“Call
Reports”:
Consolidated
Reports of Condition and Income for a Bank with Domestic Offices Only - FFIEC
041, as filed with the Federal Deposit Insurance Corporation or such other
reports as may be required to be filed by WFB.
“Capitalized
Lease”:
A
lease of (or other agreement conveying the right to use) real or personal
property with respect to which at least a portion of the rent or other amounts
thereon constitute Capitalized Lease Obligations.
“Capitalized
Lease Obligations”:
As to
any Person, the obligations of such Person to pay rent or other amounts under
a
lease of (or other agreement conveying the right to use) real or personal
property which obligations are required to be classified and accounted for
as a
capital lease on a balance sheet of such Person under GAAP (including Statement
of Financial Accounting Standards No. 13 of the Financial Accounting Standards
Board), and, for purposes of this Agreement, the amount of such obligations
shall be the capitalized amount thereof, determined in accordance with GAAP
(including such Statement No. 13).
“Cash
Flow Leverage Ratio”:
For
any period of determination ending on a Measurement Date, the ratio
of
(a) Adjusted
Coverage
Indebtedness,
to
(b) EBITDA
for the twelve (12) month period ending on such Measurement Date.
“Change
in Control”:
The
occurrence, after the Closing Date, of any of the following circumstances:
(a)
Cabela’s shall cease to own, directly or indirectly, 100% of the shares of each
class of the voting stock or other equity interest of each other Borrower that
has or has had total assets in excess of $10,000,000; (b) the acquisition of
ownership, directly or indirectly, beneficially or of record, by any Person
or
group (within the meaning of the Securities Exchange Act of 1934 and the rules
of the Securities and Exchange Commission thereunder as in effect on the date
hereof), of equity interests representing more than 25% of the aggregate
ordinary voting power represented by the issued and outstanding equity interests
of Cabela’s (other than by Xxxxxxx X. Xxxxxx or Xxxxx X. Xxxxxx or a group
controlled by Xxxxxxx X. Xxxxxx or Xxxxx X. Xxxxxx); or (c) occupation of a
majority of the seats (other than vacant seats) on the board of directors of
Cabela’s by Persons who were neither (i) nominated by the board of directors of
Cabela’s nor (ii) appointed by directors so nominated.
“Charges”:
As
defined in Section 9.19.
“Closing
Date”:
June
30, 2005.
“Code”:
The
Internal Revenue Code of 1986, as amended.
-
6
-
“Commercial
Letter of Credit”:
An
import or commercial letter of credit issued by the LC
Bank
pursuant
to this Agreement for the account of the Borrowers.
“Contingent
Obligation”:
With
respect to any Person at the time of any determination, without duplication,
any
obligation, contingent or otherwise, of such Person guaranteeing or having
the
economic effect of guaranteeing any Indebtedness of any other Person (the
“primary
obligor”)
in any
manner, whether directly or otherwise: (a) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or to purchase
(or to advance or supply funds for the purchase of) any direct or indirect
security therefor, (b) to purchase property, securities or services for the
purpose of assuring the owner of such Indebtedness of the payment of such
Indebtedness, (c) to maintain working capital, equity capital or other financial
statement condition of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or otherwise to protect the owner thereof against
loss
in respect thereof, or (d) to assure in any manner the owner of such
Indebtedness of the payment of such Indebtedness or to protect the owner against
loss in respect thereof; provided,
that
the term “Contingent Obligation” shall not include endorsements for collection
or deposit, in each case in the ordinary course of business. Without limiting
the generality of the foregoing, the term “Contingent Obligation” shall also
include any contingent repayment obligations of any Person with respect to
Deferred Grant Income and other forms of governmental assistance, including
grants, bonds and notes.
“Coverage
Indebtedness”:
With
respect to any Person at the time of any determination, without duplication,
all
obligations of such Person which in accordance with GAAP should be classified
upon the balance sheet of such Person as debt, but in any event including:
(a)
all obligations of such Person for borrowed money (including non-recourse
obligations), (b) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments, (c) all obligations of such Person upon
which interest charges are customarily paid or accrued, (d) all obligations
of
such Person under conditional sale or other title retention agreements relating
to property purchased by such Person, (e) all obligations of such Person issued
or assumed as the deferred purchase price of property or services with an
original maturity of greater than one year, (f) all obligations of others
secured by any Lien on property owned or acquired by such Person, whether or
not
the obligations secured thereby have
been
assumed, and (g) all Capitalized Lease Obligations of such Person.
“Default”:
Any
event which, with the giving of notice (whether such notice is required under
Section 7.1, or under some other provision of this Agreement, or otherwise)
or
lapse of time, or both, would constitute an Event of Default.
“Defaulting
Bank”:
At any
time, any Bank that, at such time (a) has failed to make a Revolving Loan or
any
Advances thereunder required pursuant to the terms of this Agreement, including
the funding of any participation in accordance with the terms of this Agreement,
(b) has failed to pay to the Administrative Agent or any Bank an amount owed
by
such Bank pursuant to the terms of this Agreement, or (c) has been deemed
insolvent or has become subject to a bankruptcy, receivership or insolvency
proceeding, or to a receiver, trustee or similar official.
-
7
-
“Deferred
Grant Income”:
As of
any Measurement Date, the amount reflected on the consolidated balance sheet
of
Cabela’s which represents grant amounts received from a governmental entity that
are subject to forfeiture based on achieving certain prescribed employment
levels or other performance conditions for a prescribed period of
time.
“EBITDA”:
For
any period of determination, the net income of the Borrowers and the
Subsidiaries before deductions for income taxes, Interest Expense, depreciation
and amortization, all as determined on a consolidated basis in accordance with
GAAP.
“EBITR”:
For
any period of determination, the net income of the Borrowers and the
Subsidiaries before deductions for income taxes, Interest Expense and Operating
Lease Obligations, all as determined on a consolidated basis in accordance
with
GAAP.
“ERISA”:
The
Employee Retirement Income Security Act of 1974, as amended.
“ERISA
Affiliate”:
Any
trade or business (whether or not incorporated) that is a member of a group
of
which the Borrowers is a member and which is treated as a single employer under
Section 414 of the Code.
“Eurodollar
Business Day”:
A
Business Day which is also a day for trading by and between banks in United
States dollar deposits in the London interbank Eurodollar market and a day
on
which banks are open for business in New York City.
“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 Telerate page 3750 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%). “Telerate page 3750” means the display designated as such on the
Telerate reporting system operated by Telerate System Incorporated (or such
other page as may replace page 3750 for the purpose of displaying London
interbank offered rates of major banks for United States dollar
deposits).
“Eurodollar
Rate Advance”:
An
Advance with respect to which the interest rate is determined by reference
to
the Adjusted Eurodollar Rate.
-
8
-
“Eurodollar
Reserve Percentage”:
As of
any day, that percentage (expressed as a decimal) which is in effect on such
day, as prescribed by the Board for determining the maximum reserve requirement
(including any basic, supplemental or emergency reserves) for a member bank
of
the Federal Reserve System, with deposits comparable in amount to those held
by
the Administrative
Agent,
in
respect of “Eurocurrency Liabilities” as such term is defined in Regulation D of
the Board. The rate of interest applicable to any outstanding Eurodollar Rate
Advances shall be adjusted automatically on and as of the effective date of
any
change in the Eurodollar Reserve Percentage.
“Event
of Default”:
Any
event described in Section
7.1.
“Existing
Credit Agreement”:
As
defined in the Recitals.
“Federal
Funds Rate”:
For
any day, the rate per annum (rounded upwards to the nearest 1/100 of 1%) equal
to the weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds brokers
on
such day, as published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day; provided
that (a)
if such day is not a Business Day, the Federal Funds Rate for such day shall
be
such rate on such transactions on the first preceding Business Day as so
published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for
such
day shall be the average rate charged to the Administrative Agent on such day
on
such transactions as determined by the Administrative Agent.
“Fixed
Charge Coverage Ratio”:
For
any period of determination ending on a Measurement Date, the ratio of
|
(a)
|
EBITR
minus the sum of (i) any cash dividends, (ii) tax expenses of the
Borrowers and the Subsidiaries paid in cash, in each case for the
twelve
month period ending on such Measurement Date, and (iii) to the extent
not
included, or previously included, in the calculation of EBITR, any
cash
payments with respect to Contingent Obligations of the
Borrowers,
|
to
|
(b)
|
the
sum of (i) Interest Expense, (ii) all required principal payments
with
respect to Coverage Indebtedness of the Borrowers and the Subsidiaries
except WFB (including but not limited to all payments with respect
to
Capitalized Lease Obligations but excluding payments in respect of
Revolving Loans), and (iii) Operating Lease Obligations of the Borrowers
and the Subsidiaries except WFB, in each case for the twelve month
period
ending on such Measurement Date,
|
in
each
case determined for said period in accordance with GAAP.
-
9
-
“GAAP”:
Generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute
of
Certified Public Accountants
and statements and pronouncements of the Financial Accounting Standards Board
or
in such other statements by such other entity as may be approved by a
significant segment of the accounting profession, which are applicable to the
circumstances as of any date of determination.
“Holding
Account”:
A
deposit account belonging to the Administrative Agent for the benefit of the
Banks into which the Borrowers may be required to make deposits pursuant to
the
provisions of this Agreement, such account to be under the sole dominion and
control of the Administrative
Agent
and not
subject to withdrawal by the Borrowers, with any amounts therein to be held
for
application toward payment of any outstanding Letters of Credit when drawn
upon.
The Holding Account shall be a money market savings account or substantial
equivalent (or other appropriate investment medium as the Borrowers may from
time to time request and to which the Administrative
Agent
in its
reasonable discretion shall have consented) and shall bear interest in
accordance with the terms of similar accounts held by the Administrative
Agent
for its
customers.
“Immediately
Available Funds”:
Funds
with good value on the day and in the city in which payment is
received.
“Indebtedness”:
With
respect to any Person at the time of any determination, without duplication,
all
obligations, contingent or otherwise, of such Person which in accordance with
GAAP should be classified upon the balance sheet of such Person as liabilities,
but in any event including: (a) all obligations of such Person for borrowed
money (including non-recourse obligations), (b) all obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments, (c) all
obligations of such Person upon which interest charges are customarily paid
or
accrued, (d) all obligations of such Person under conditional sale or other
title retention agreements relating to property purchased by such Person, (e)
all obligations of such Person issued or assumed as the deferred purchase price
of property or services, (f) all obligations of others secured by any Lien
on
property owned or acquired by such Person, whether or not the obligations
secured thereby have
been
assumed, (g) all Capitalized Lease Obligations of such Person, (h) all
obligations of such Person in respect of interest rate swap agreements, cap
or
collar agreements, interest rate future or option contracts, currency swap
agreements, currency future or option agreements and other similar contracts,
(i) all obligations of such Person, actual or contingent, as an account party
in
respect of letters of credit or bankers’ acceptances, (j) all obligations of any
partnership or joint venture as to which such Person is or may become personally
liable, (k) all trade payables ninety (90) days overdue (except to the extent
such trade payables are being contested in good faith by such Person), (l)
all
obligations of such Person under any equity security issued by such Person
which
ceases to be considered an equity interest in such Person, and (m) all
Contingent Obligations of such Person.
-
10
-
“Interest
Expense”:
For
any period of determination, the aggregate amount, without duplication, of
interest paid, accrued or scheduled to be paid in respect of any Indebtedness
of
the Borrowers or any Subsidiary except WFB, including (a) all but the principal
component of payments in respect of conditional sale contracts, Capitalized
Leases and other title retention agreements, (b) commissions, discounts and
other fees and charges with respect to letters of credit and bankers’ acceptance
financings and (c) net costs under interest rate protection agreements, in
each
case determined in accordance with GAAP.
“Interest
Period”:
With
respect to each Eurodollar Rate Advance, the period commencing on the date
of
such Advance or on the last day of the immediately preceding Interest Period,
if
any, applicable to an outstanding Advance and ending one, two, three or six
months thereafter, as the Borrowers may elect in the applicable notice of
borrowing, continuation or conversion; provided
that:
(a) Any
Interest Period that
would otherwise end on a day which is not a Eurodollar Business Day shall be
extended to the next succeeding Eurodollar Business Day unless such Eurodollar
Business Day falls in another calendar month, in which case such Interest Period
shall end on the first preceding Eurodollar Business Day;
(b) Any
Interest Period that begins on the last Eurodollar Business Day of a calendar
month (or a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the last
Eurodollar Business Day of a calendar month;
and
(c) Any
Interest Period
applicable to an Advance on a Revolving Loan that would otherwise end after
the
Revolving Commitment Ending Date shall end on the Revolving Commitment Ending
Date.
(d) For
purposes of determining an Interest Period, a month means a period starting
on
one day in a calendar month and ending on the numerically corresponding day
in
the next calendar month; provided, however, that if there is no numerically
corresponding day in the month in which such an Interest Period is to end or
if
such an Interest Period begins on the last Business Day of a calendar month,
then such Interest Period shall end on the last Business Day of the calendar
month in which such Interest Period is to end.
“Intercreditor
Agreement”:
The
Amended and Restated Intercreditor Agreement, in the form attached hereto as
Exhibit
D,
as the
same may be amended, restated, supplemented or otherwise modified from time
to
time.
“Investment”:
The
acquisition, purchase, making or holding of any stock or other security, any
loan, advance, contribution to capital, extension of credit (except for trade
and customer accounts receivable for inventory sold or services rendered in
the
ordinary course of business and payable in accordance with customary trade
terms), any acquisitions of real or personal property (other than real and
personal property acquired in the ordinary course of
-
11
-
business)
and any purchase or commitment or option to purchase stock or other debt or
equity securities of or any interest in another Person or any integral part
of
any business or the assets comprising such business or part thereof. The amount
of any Investment shall be the original cost of such Investment plus the cost
of
all additions thereto, without any adjustments for increases or decreases in
value, or write-ups, write-downs or write-offs with respect to such
Investment.
“LC
Bank”:
USBNA
with respect to Standby Letters of Credit, in its capacity as such issuer,
or
Wachovia Bank National Association with respect to Commercial Letters of Credit,
in its capacity as such issuer, or from time to time, such successor Bank
approved by the Borrowers and the Administrative Agent that issues a Standby
Letter of Credit or Commercial Letter of Credit, as applicable, in its capacity
as such issuer.
“Letter
of Credit”:
A
Standby Letter of Credit or a Commercial Letter of Credit.
“Letter
of Credit Fee”:
As
defined in Section 2.16(c).
“Lien”:
With
respect to any Person, any security interest, mortgage, pledge, lien, charge,
encumbrance, title retention agreement or analogous instrument or device
(including the interest of each lessor under any Capitalized Lease), in, of
or
on any assets or properties of such Person, now owned or hereafter acquired,
whether arising by agreement or operation of law.
“Loan”:
A
Revolving Loan or a Swing Line Loan.
“Loan
Documents”:
This
Agreement and the Notes.
“Majority
Banks”:
At any
time, Banks other than Defaulting Banks holding at least 51%
of the
aggregate unpaid principal amount of the Notes, excluding Notes held by
Defaulting Banks or, if no Loans are at the time outstanding hereunder, Banks
other than Defaulting Banks whose Total Percentages aggregate at least 51%
(with
Total Percentages being computed without reference to the Revolving Commitment
Amounts of Defaulting Banks).
“Material
Adverse Occurrence”:
Any
occurrence of whatsoever nature (including, without limitation, any adverse
determination in any litigation, arbitration, or governmental investigation
or
proceeding) which could reasonably be expected to materially and adversely
affect (a) the financial condition or operations of the Borrowers and the
Subsidiaries on a consolidated basis, (b) the ability of the Borrowers and
the
Subsidiaries on a consolidated basis to perform their obligations under any
Loan
Document, or any writing executed pursuant thereto, (c) the validity or
enforceability of the material obligations of any Borrower under any Loan
Document, (d) the rights and remedies of the Banks or the Administrative Agent
against any Borrower, (e) the timely payment of the principal of and interest
on
the Loans or other amounts payable by the Borrowers hereunder, or (f) the
validity of the joint and several nature of the obligations of the Borrowers
with respect to all of the Obligations.
“Material
Contracts”:
Any
contract entered into by any Borrower or any Subsidiary where loss of such
contract would constitute a Material Adverse Occurrence.
-
12
-
“Maximum
Rate”:
As
defined in Section 9.19.
“Measurement
Date”:
The
last day of each fiscal quarter of the Borrowers.
“Multiemployer
Plan”:
A
multiemployer plan, as such term is defined in Section 4001 (a) (3) of ERISA,
which is maintained (on the Closing Date, within the five years preceding the
Closing Date, or at any time after the Closing Date) for employees of the
Borrowers or any ERISA Affiliate.
“Net
Cash Proceeds”:
The
gross cash proceeds received by any Borrower or any Subsidiary except WFB with
respect to (a) any offering of capital stock or issuance of Indebtedness by
the
Borrower or Subsidiary or (b) any sale or other disposition by such Borrower
or
such Subsidiary of Investments, less all legal, underwriting and other fees
and
expenses incurred by such Borrower or such Subsidiary in connection
therewith.
“Note”:
A
Revolving Note or the Swing Line Note.
“Obligations”:
The
Borrowers’ obligations in respect of the due and punctual payment of principal
and interest on the Notes and Unpaid Drawings when and as due, whether by
acceleration or otherwise and all fees (including Revolving Commitment Fees),
expenses, indemnities, reimbursements and other obligations of the Borrowers
under this Agreement or any other Loan Document, and all obligations to any
Rate
Protection Provider under any Rate Protection Agreement, in all cases whether
now existing or hereafter arising or incurred.
“Operating
Lease”:
A
lease of (or other agreement conveying the right to use) real or personal
property that is not a Capitalized Lease.
“Operating
Lease Obligations”:
As to
any Person, the obligations of such Person to pay rent or other amounts under
an
Operating Lease.
“Other
Taxes”:
As
defined in Section 2.26(b).
“PBGC”:
The
Pension Benefit Guaranty Corporation, established pursuant to Subtitle A of
Title IV of ERISA, and any successor thereto or to the functions
thereof.
“Person”:
Any
natural person, corporation, partnership, limited partnership, limited liability
company, joint venture, firm, association, trust, unincorporated organization,
government or governmental agency or political subdivision or any other entity,
whether acting in an individual, fiduciary or other capacity.
“Plan”:
Each
employee benefit plan (whether in existence on the Closing Date or thereafter
instituted), as such term is defined in Section 3 of ERISA, maintained for
the
benefit of employees, officers or directors of the Borrowers or of any ERISA
Affiliate.
-
13
-
“Prime
Rate”:
For
any day, a fluctuating rate per annum equal to the higher of (a) the Federal
Funds Rate in effect for such day plus ½ of 1% or (b) the rate of interest in
effect for such day as publicly announced from time to time by the
Administrative Agent as its “prime rate.” The Administrative
Agent
may lend
to its customers at rates that are at, above or below the Prime Rate. For
purposes of determining any interest rate hereunder or under any other Loan
Document which is based on the Prime Rate, such interest rate shall change
as
and when the Prime Rate shall change.
“Prime
Rate Advance”:
An
Advance with respect to which the interest rate is determined by reference
to
the Prime Rate.
“Prohibited
Transaction”:
The
respective meanings assigned to such term in Section 4975 of the Code and
Section 406 of ERISA.
“Rate
Protection Agreement”:
Any
interest rate swap, cap or option agreement, or any other agreement pursuant
to
which any Borrower xxxxxx interest rate risk with respect to a portion of the
Obligations, entered into by any Borrower with a Rate Protection
Provider.
“Rate
Protection Obligations”:
The
liabilities, indebtedness and obligations of any Borrower, if any, to any Rate
Protection Provider under a Rate Protection Agreement.
“Rate
Protection Provider”:
Any
Bank, or any Affiliate of any Bank, that is any Borrower’s counterparty under
any Rate Protection Agreement.
“Regulatory
Change”:
Any
change after the Closing Date in federal, state or foreign laws or regulations
or the adoption or making after such date of any interpretations, directives
or
requests applying to a class of banks including any Bank under any federal,
state or foreign laws or regulations (whether or not having the force of law)
by
any court or governmental or monetary authority charged with the interpretation
or administration thereof.
“Reportable
Event”:
A
reportable event as defined in Section 4043 of ERISA and the regulations issued
under such Section, with respect to a Plan, excluding, however, such events
as
to which the PBGC by regulation has waived the requirement of Section 4043(a)
of
ERISA that it be notified within 30 days of the occurrence of such event,
provided
that a
failure to meet the minimum funding standard of Section 412 of the Code and
of
Section 302 of ERISA shall be a Reportable Event regardless of the issuance
of
any waiver in accordance with Section 412(d) of the Code.
“Restricted
Payments”:
With
respect to any Borrower and its Subsidiaries, collectively, all dividends or
other distributions of any nature (cash, securities other than common stock
of
the Borrowers, assets or otherwise), and all payments on any class of equity
securities (including warrants, options or rights therefor) issued by the
Borrowers, whether such securities are authorized or outstanding on the Closing
Date or at any time thereafter and any redemption or purchase of, or
distribution in respect of, any of the foregoing, whether directly or
indirectly, but excluding repurchases of stock from employees acquiring shares
pursuant to stock options.
-
14
-
“Revolving
Commitment”:
With
respect to a Bank, the agreement of such Bank to make Revolving Loans to the
Borrowers in an aggregate principal amount outstanding at any time not to exceed
such Bank’s Revolving Commitment Amount upon the terms and subject to the
conditions and limitations of this Agreement.
“Revolving
Commitment Amount”:
With
respect to a Bank, initially the amount set opposite such Bank’s name on the
signature page hereof as its Revolving Commitment Amount, but as the same may
be
reduced or increased from time to time pursuant to Section
2.14.
“Revolving
Commitment Ending Date”:
June
30, 2010.
“Revolving
Commitment Fees”:
As
defined in Section
2.16.
“Revolving
Loan”:
As
defined in Section 2.1.
“Revolving
Loan Date”:
The
date of the making of any Revolving Loans hereunder.
“Revolving
Note”:
A
promissory note of the Borrowers in the form of Exhibit
A-1.
“Revolving
Outstandings”:
As to
any Bank at any date, an amount equal to the sum of (a) the aggregate principal
amount of all Revolving Loans made by such Bank then outstanding, (b) such
Bank’s pro rata
share of
outstanding Swing Line Loans, (c) such Bank’s participation in the aggregate
maximum amount available to be drawn under Letters of Credit outstanding on
such
date, and (d) such Bank’s participation in the aggregate amount of Unpaid
Drawings on such date.
“Revolving
Percentage”:
With
respect to any Bank, the percentage equivalent of a fraction, the numerator
of
which is the Revolving Commitment Amount of such Bank and the denominator of
which is the Aggregate Revolving Commitment Amounts.
“Standby
Letter of Credit”:
An
irrevocable standby letter of credit issued by the LC
Bank
pursuant
to this Agreement for the account of the Borrowers.
“Subordinated
Debt”:
Any
Indebtedness of the Borrowers, now existing or hereafter created, incurred
or
arising, which is subordinated in right of payment to the payment of the
Obligations in a manner and to an extent (a) that Majority Banks have approved
in writing prior to the creation of such Indebtedness, or (b) as to any
Indebtedness of the Borrowers existing on the date of this Agreement, that
Majority Banks have approved as Subordinated Debt in a writing delivered by
Majority Banks to the Borrowers’ Agent on or prior to the Closing
Date.
“Subsidiary”:
Any
corporation or other entity of which securities or other ownership interests
having ordinary voting power for the election of a majority of the board of
directors or other Persons performing similar functions are owned by any
Borrower either directly or through one or more Subsidiaries.
-
15
-
“Swing
Line Bank”:
USBNA,
or any other Bank to whom the Swing Line Commitment is assigned pursuant to
the
terms of Section 9.6.
“Swing
Line Commitment”:
The
sum of Twenty Million and No/100 Dollars ($20,000,000), as such amount may
be
reduced pursuant to Section 2.3(e).
“Swing
Line Conversion Date”:
As
defined in Section 2.3(c).
“Swing
Line Default Payment Date”:
As
defined in Section 2.3(f).
“Swing
Line Loans”:
As
defined in Section 2.3(a).
“Swing
Line Note”:
A
promissory note of the Borrowers in the form of Exhibit
A-2.
“Tangible
Net Worth”:
As of
any date of determination, the sum of the amounts set forth on the balance
sheet
of the Borrowers and all Subsidiaries as the sum of the common stock, preferred
stock, additional paid-in capital and retained earnings of the Borrowers and
all
Subsidiaries (excluding treasury stock), less the book value of all intangible
assets of the Borrowers and all Subsidiaries, including all such items as
goodwill, trademarks, trade names, service marks, copyrights, patents, licenses,
unamortized debt discount and expenses and the excess of the purchase price
of
the assets of any business acquired by the Borrowers and all Subsidiaries (but
in any case excluding all assets of the Borrowers and all Subsidiaries that
are
amortized for less than one year) over the book value of such
assets.
“Taxes”:
As
defined in Section 2.26(a).
“Termination
Date”:
The
earliest of (a) the Revolving Commitment Ending Date, (b) the date on which
the
Revolving Commitments are terminated pursuant to Section 7.2 hereof or (c)
the
date on which the Revolving Commitment Amounts are reduced to zero pursuant
to
Section
2.14
hereof.
“Total
Letter of Credit Commitment Amount”:
One
Hundred Fifty Million and No/100 Dollars ($150,000,000) in the aggregate,
inclusive of any Unpaid Drawings.
“Total
Percentage”:
With
respect to any Bank, the percentage equivalent of a fraction, the numerator
of
which is the sum of the Revolving Commitment Amount of such Bank and the
denominator of which is the sum of the Revolving Commitment Amounts of all
the
Banks.
“Total
Revolving Outstandings”:
At any
time, the aggregate amount of the Banks’ Revolving Outstandings.
“U.S.
Taxes”:
As
defined in Section 2.26(f).
“Unpaid
Drawing”:
As
defined in Section
2.12.
-
16
-
“Unused
Revolving Commitment”:
With
respect to any Bank as of any date of determination, the amount by which such
Bank’s Revolving Commitment Amount exceeds such Bank’s Revolving Percentage of
the Total Revolving Outstandings on such date.
“USBNA”:
U.S.
Bank National Association in its capacity as one of the Banks
hereunder.
“WFB”:
World’s Foremost Bank, a state chartered bank, and a Subsidiary of
Cabela’s.
Section
1.2 Accounting
Terms and Calculations.
Except
as may be expressly provided to the contrary herein, all accounting terms used
herein shall be interpreted and all accounting determinations hereunder shall
be
made in accordance with GAAP. To the extent any change in GAAP affects any
computation or determination required to be made pursuant to this Agreement,
such computation or determination shall be made as if such change in GAAP had
not occurred unless the Borrowers and Majority Banks agree in writing on an
adjustment to such computation or determination to account for such change
in
GAAP.
Section
1.3 Computation
of Time Periods.
In this
Agreement, in the computation of a period of time from a specified date to
a
later specified date, unless otherwise stated the word “from” means “from and
including” and the word “to” or “until” each means “to but excluding”. Unless
otherwise specified, the word “month” shall refer to a calendar month and the
word “quarter” shall refer to a calendar quarter.
Section
1.4 Other
Definitional
Terms.
The
words “hereof,”“herein” and “hereunder” and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. References to Sections, Exhibits,
schedules and like references are to this Agreement unless otherwise expressly
provided. The words “include,”“includes” and “including” shall be deemed to be
followed by the phrase “without limitation.” Unless the context in which used
herein otherwise clearly requires, “or” has the inclusive meaning represented by
the phrase “and/or.” All incorporation by reference of covenants, terms,
definitions or other provisions from other agreements are incorporated into
this
Agreement as if such provisions were fully set forth herein, include all
necessary definitions and related provisions from such other agreements but
including only amendments thereto agreed to by the Majority Banks, and shall
survive any termination of such other agreements until the obligations of the
Borrowers under this Agreement and the Notes are irrevocably paid in full,
all
Letters of Credit have expired without renewal or been returned to the
Administrative Agent, and the commitments of any Bank to advance funds to any
Borrower are terminated.
ARTICLE
II
TERMS
OF THE CREDIT FACILITIES
Part
A
-- Terms of Lending
Section
2.1 Revolving
Credit.
On the
terms and subject to the conditions hereof, each Bank severally agrees to make
a
revolving credit facility available as loans (each, a “Revolving
Loan”
and,
collectively, the “Revolving
Loans”)
to the
Borrowers, jointly and severally, on a
-
17
-
revolving
basis at any time and from time to time from the Closing Date to the Termination
Date, during which period the Borrowers may borrow, repay and reborrow in
accordance with the provisions hereof, provided, that no Revolving Loan will
be
made in any amount which, after giving effect thereto, would cause the Total
Revolving Outstandings to exceed the Aggregate Revolving Commitment Amounts.
Revolving Loans hereunder shall be made by the several Banks ratably in the
proportion of their respective Revolving Commitments Amounts. Revolving Loans
may be obtained and maintained, at the election of the Borrowers’ Agent but
subject to the limitations hereof, as Prime Rate Advances or Eurodollar Rate
Advances; provided, however, that no more than ten (10) Eurodollar Rate Advances
in respect of the Revolving Loans may be outstanding at any one time.
Section
2.2 Procedure
for
Revolving Loans.
Any
request by the Borrowers’ Agent for Revolving Loans hereunder shall be in
writing or by telephone and must be given so as to be received by the
Administrative Agent not later than 11:00 a.m. (Minneapolis
time)
two Eurodollar Business Days prior to the requested Revolving Loan Date if
the
Revolving Loans (or any portion thereof) are requested as Eurodollar Rate
Advances and not later than 11:00 a.m. (Minneapolis
time) on
the requested Revolving Loan Date if the Revolving Loans are requested as Prime
Rate Advances. Each request for Revolving Loans hereunder shall be irrevocable
and shall be deemed a representation by the Borrowers that on the requested
Revolving Loan Date and after giving effect to the requested Revolving Loans
the
applicable conditions specified in Article III have been and will be satisfied.
Each request for Revolving Loans hereunder shall specify (i) the requested
Revolving Loan Date, (ii) the aggregate amount of Revolving Loans to be made
on
such date which shall be in a minimum amount of $1,000,000 and integral
multiples of $500,000 for amounts greater than such minimum (or an aggregate
principal amount equal to the remaining balance of the available Commitments
or
the outstanding principal balance of the Swing Line Loans being repaid from
a
Borrowing on a Swing Line Conversion Date) or, if more, an integral multiple
thereof, (iii) whether such Revolving Loans are to be funded as Prime Rate
Advances or Eurodollar Rate Advances (and, if such Revolving Loans are to be
made with more than one applicable interest rate choice, specifying the amount
to which each interest rate choice is applicable), and (iv) in the case of
Eurodollar Rate Advances, the duration of the initial Interest Period applicable
thereto. The Administrative Agent may rely on any telephone request by the
Borrowers’ Agent for Revolving Loans hereunder which it believes in good faith
to be genuine; and the Borrowers hereby waive the right to dispute the
Administrative Agent’s record of the terms of such telephone request. The
Administrative Agent shall promptly notify each other Bank of the receipt of
such request, the matters specified therein, and of such Bank’s ratable share of
the requested Revolving Loans. On the date of the requested Revolving Loans,
each Bank shall provide its share of the requested Revolving Loans to the
Administrative Agent in Immediately Available Funds not later than 1:00 p.m.
Minneapolis
time.
Unless the Administrative Agent determines that any applicable condition
specified in Article III has not been satisfied, the Administrative Agent will
make available to the Borrowers at the Administrative Agent’s principal office
in Minneapolis,
Minnesota
in
Immediately Available Funds not later than 4:00 p.m. (Minneapolis
time) on
the requested Revolving Loan Date the amount of the requested Revolving Loans.
If the Administrative Agent has made a Revolving Loan to the Borrowers on behalf
of a Bank but has not received the amount of such Revolving Loan from such
Bank
by the time herein required, such Bank shall pay interest to the
-
18
-
Administrative
Agent on the amount so advanced at the overnight Federal Funds rate from the
date of such Revolving Loan to the date funds are received by the Administrative
Agent from such Bank, such interest to be payable with such remittance from
such
Bank of the principal amount of such Revolving Loan (provided, however, that
the
Administrative Agent shall not make any Revolving Loan on behalf of a Bank
if
the Administrative Agent has received prior notice from such Bank that it will
not make such Revolving Loan). If the Administrative Agent does not receive
payment from such Bank by the next Business Day after the date of any Revolving
Loan, the Administrative Agent shall be entitled to recover such Revolving
Loan,
with interest thereon at the rate (or rates) then applicable to the such
Revolving Loan, on demand, from the Borrowers, without prejudice to the
Administrative Agent’s and the Borrowers’s rights against such Bank. If such
Bank pays the Administrative Agent the amount herein required with interest
at
the overnight Federal Funds rate before the Administrative Agent has recovered
from the Borrowers, such Bank shall be entitled to the interest payable by
the
Borrowers with respect to the Revolving Loan in question accruing from the
date
the Administrative Agent made such Revolving Loan.
Section
2.3 Swing
Line
Loans.
(a)
On the
terms and subject to the conditions hereof, the Swing Line Bank agrees to lend
to the Borrowers from time to time during the period from the Closing Date
to
but not including the Termination Date, such sums (the “Swing
Line Loans”)
as the
Borrowers’ Agent may request in the aggregate up to the amount of the Swing Line
Commitment, provided,
that
(i) at
no time shall the sum
of (A) the Total Revolving Outstandings plus
(B) the
outstanding principal amount of the Swing Line Loans exceed the Aggregate
Revolving Commitment Amounts,
(ii) the
aggregate outstanding
Swing Line Loans shall at no time exceed the Swing Line Commitment,
and
(iii) Swing
Line Loans may be
obtained and maintained, at the election of the Borrowers’ Agent but subject to
the limitations hereof, as Prime Rate Advances or Alternate
Advances.
(b) Any
request by the
Borrowers’ Agent for a Swing Line Loan hereunder shall be in writing or by
telephone and must be given so as to be received by the Swing Line Bank not
later than 11:00 a.m. (Minneapolis
time) on
the Business Day such Swing Line Loan is to be made, specifying in each case
(1)
the amount to be borrowed, which shall be in a minimum amount of $100,000 and
integral multiples of $50,000 for amounts greater than such minimum, (2) the
requested borrowing date, and (3) whether such Swing Line Loan is to be funded
as a Prime Rate Advance or an Alternate Advance. Each request for a Swing Line
Loan hereunder shall be irrevocable and shall be deemed a representation by
the
Borrowers that on the requested borrowing date and after giving effect to the
requested Swing Line Loan the applicable conditions specified in Article III
have been and will be satisfied. The Swing Line Bank may rely on any telephone
request for Swing Line Loans by the Borrowers’ Agent hereunder which it believes
in good faith to be genuine; and the Borrowers hereby waive the right to dispute
the Swing Line
-
19
-
Bank’s
record of the terms of such telephone request. Unless the Swing Line Bank
determines that any applicable condition specified in Article III has not been
satisfied, the Swing Line Bank will make available to the Borrowers at the
Swing
Line Bank’s principal office in Minneapolis,
Minnesota
in
Immediately Available Funds not later than 3:00 p.m. (Minneapolis
time) on
the requested borrowing date the amount of the requested Swing Line
Loan.
(c) Swing
Line Loans may be repaid, prepaid and reborrowed hereunder from the Closing
Date
to the Termination Date. The Borrowers’ Agent shall, prior to 11:00 a.m.
(Minneapolis time), on each date on which it intends to repay a Swing Line
Loan
(each, a “Swing
Line Conversion Date”)
give
notice to the Administrative Agent requesting a Prime Rate Advance in an
aggregate amount equal to the principal amount of all outstanding Swing Line
Loans outstanding as of the end of the immediately preceding day (other than
Swing Line Loans that are to be prepaid on such Swing Line Conversion Date
with
funds of the Borrowers or from the proceeds of a Eurodollar Rate Advance for
which notice was given to the Administrative Agent no later than 11:00 a.m.
(Minneapolis time) at least two Eurodollar Business Days prior to such Swing
Line Conversion Date but including any Swing Line Loans funded as Alternate
Advances) and, subject to satisfaction or waiver of the conditions specified
in
Article III, the Banks shall, on the Swing Line Conversion Date, make a Prime
Rate Advance (and/or Eurodollar Rate Advance, as the case may be) in an
aggregate amount equal to the principal amount of all outstanding Swing Line
Loans as of the end of the immediately preceding day, the proceeds of which
shall be applied directly by the Administrative Agent to repay the Swing Line
Bank for Swing Line Loans outstanding (less the amount of any Swing Line Loans
that are to be repaid on such Swing Line Conversion Date from funds of the
Borrowers); provided,
however,
that if
for any reason the proceeds of any such Advance(s) or such other funds of the
Borrowers are not received by the Swing Line Bank on a Swing Line Conversion
Date in an aggregate amount equal to the principal amount of all outstanding
Swing Line Loans as of the end of the immediately preceding day, the Borrowers
shall reimburse the Swing Line Bank on the Business Day immediately following
such Swing Line Conversion Date, in Immediately Available Funds, in an amount
equal to the excess of the principal amount of all Swing Line Loans outstanding
on the day immediately preceding such Swing Line Conversion Date over the
aggregate amount of such Advance(s), if any, received.
(d) In
the
event that the Swing Line Loans outstanding as of the end of the day immediately
preceding the Termination Date are not repaid on the Termination Date, each
Bank
shall be deemed to have purchased participating interests in the Swing Line
Loans existing as of the Termination Date in an amount equal to the amount
of
such Swing Line Loans multiplied by such Bank’s Revolving Percentage. The
Administrative Agent shall promptly notify each Bank of the unpaid amount of
the
Swing Line Loans and of such Bank’s respective participation therein. Each Bank
shall make available to the Administrative Agent for payment to the Swing Line
Bank an amount equal to its respective participation therein (including without
limitation its pro rata share of accrued but unpaid interest thereon), in same
day funds, at the office of the Administrative Agent
-
20
-
specified
in such notice, not later than 11:00 a.m. (Minneapolis time), on the
Business Day after the date the Administrative Agent so notifies each Bank.
In
the event that any Bank fails to make available to the Administrative Agent
the
amount of such Bank’s participation in such unpaid amount as provided herein,
the Swing Line Bank shall be entitled to recover such amount on demand from
such
Bank together with interest thereon at a rate per annum equal to the Federal
Funds Rate for each day during the period between the Termination Date and
the
date on which such Bank makes available its participation in such unpaid amount.
The failure of any Bank to make available to the Administrative Agent its pro
rata share of any such unpaid amount shall not relieve any other Bank of its
obligations hereunder to make available to the Administrative Agent its pro
rata
share of such unpaid amount on the Termination Date. The Administrative Agent
shall distribute to each Bank which has paid all amounts payable by it under
this Section 2.3(d) with respect to the unpaid amount of any Swing Line Loan,
such Bank’s pro rata share of all payments received by the Administrative Agent
from the Borrower in repayment of such Swing Line Loan when such payments are
received. Notwithstanding anything to the contrary herein, each Bank which
has
paid all amounts payable by it under this Section 2.3(d) shall have a direct
right to repayment of such amounts from the Borrowers subject to the procedures
for repaying Banks set forth in this Section 2.3.
(e) In
the
event the Revolving Commitments are terminated in accordance with Section 2.14,
the Swing Line Commitment shall terminate automatically. In the event the
Borrowers reduce the Aggregate Revolving Commitment Amounts to less than the
Swing Line Commitment, the Swing Line Commitment shall immediately be reduced
to
an amount equal to the Aggregate Revolving Commitment Amounts. In the event
the
Borrowers reduces the Aggregate Revolving Commitment Amounts to less than the
outstanding Swing Line Loans, the Borrowers shall immediately repay the amount
by which the outstanding Swing Line Loans exceed the Swing Line Commitment
as so
reduced.
(f) Upon
the occurrence of
any Event of Default, each Swing Line Loan then outstanding shall automatically
be converted to a Revolving Loan (which shall be a Prime Rate Advance)
in
an
aggregate amount equal to the principal amount of all outstanding Swing Line
Loans outstanding as of the end of the immediately preceding day. Each Bank
shall be deemed to have purchased participating interests in such Revolving
Loan
in an amount equal to the amount of such Revolving Loan multiplied by such
Bank’s Revolving Percentage. The Administrative Agent shall promptly notify each
Bank of the unpaid amount of the Swing Line Loans and of such Bank’s respective
participation in the Revolving Loan. Each Bank shall make available to the
Administrative Agent for payment to the Swing Line Bank an amount equal to
its
respective participation therein (including without limitation its pro rata
share of accrued but unpaid interest thereon), in same day funds, at the office
of the Administrative Agent specified in such notice, not later than
11:00 a.m. (Minneapolis time), on the Business Day after the date the
Administrative Agent so notifies each Bank. In the event that any Bank fails
to
make available to the Administrative Agent the amount of such Bank’s
participation in such unpaid amount on such date (the “Swing
Line Default Payment
-
21
-
Date”)
as
provided herein, the Swing Line Bank shall be entitled to recover such amount
on
demand from such Bank together with interest thereon at a rate per annum equal
to the Federal Funds Rate for each day during the period between the Swing
Line
Default Payment Date and the date on which such Bank makes available its
participation in such unpaid amount. The failure of any Bank to make available
to the Administrative Agent its pro rata share of any such unpaid amount shall
not relieve any other Bank of its obligations hereunder to make available to
the
Administrative Agent its pro rata share of such unpaid amount on the Swing
Line
Default Payment Date. The Administrative Agent shall distribute to each Bank
which has paid all amounts payable by it under this Section 2.3(f) with respect
to the unpaid amount of any converted Swing Line Loan, such Bank’s pro rata
share of all payments received by the Administrative Agent from the Borrower
in
repayment of such converted Swing Line Loan when such payments are received.
Notwithstanding anything to the contrary herein, each Bank which has paid all
amounts payable by it under this Section 2.3(f) shall have a direct right to
repayment of such amounts from the Borrowers subject to the procedures for
repaying Banks set forth in this Section 2.3.
(g) Each
Bank’s obligation to
purchase participating interests pursuant to Section 2.3(d) and Section 2.3(f)
in the amount required under such section shall be absolute and unconditional
and shall not be affected by any circumstance including, without limitation,
(i)
any set-off, counterclaim, recoupment, defense or other right which such Bank
may have against any other Bank or the Borrowers, or the Borrowers may have
against any Bank or any other Person, as the case may be, for any reason
whatsoever; (ii) the occurrence or continuance of a Default or Event of Default;
(iii) any adverse change in the condition (financial or otherwise) of the
Borrowers; (iv) any breach of this Agreement by any party hereto; (v) the
failure to satisfy any condition to the making of any Loan hereunder; or (vi)
any other circumstance, happening or event whatsoever, whether or not similar
to
any of the foregoing.
Section
2.4 Notes.
The
Revolving Loans of each Bank shall be evidenced by a single Revolving Note
payable to the order of such Bank in a principal amount equal to such Bank’s
Revolving Commitment Amount originally in effect. The Swing Line Loans shall
be
evidenced by a single Swing Line Note payable to the order of the Swing Line
Bank in the principal amount of the Swing Line Commitment originally in effect.
Upon receipt of each Bank’s Notes from the Borrowers, the Administrative Agent
shall mail such Notes to such Bank. Each Bank shall enter in its ledgers and
records the amount of each Revolving Loan, the various Advances made, converted
or continued and the payments made thereon, and each Bank is authorized by
the
Borrowers to enter on a schedule attached to its Revolving Note, as appropriate,
a record of such Revolving Loans, Advances and payments; provided, however
that
the failure by any Bank to make any such entry or any error in making such
entry
shall not limit or otherwise affect the obligation of the Borrowers hereunder
and on the Notes, and, in all events, the principal amounts owing by the
Borrowers in respect of the Revolving Notes shall be the aggregate amount of
all
Revolving Loans made by the Banks less all payments of principal thereof made
by
the Borrowers.
-
22
-
Section
2.5 Conversions
and Continuations.
On the
terms and subject to the limitations hereof, the Borrowers shall have the option
at any time and from time to time to convert all or any portion of the Advances
into Prime Rate Advances or Eurodollar Rate Advances, or to continue a
Eurodollar Rate Advance as such; provided, however that a Eurodollar Rate
Advance may be converted or continued only on the last day of the Interest
Period applicable thereto and no Advance may be converted to or continued as
a
Eurodollar Rate Advance if a Default or Event of Default has occurred and is
continuing on the proposed date of continuation or conversion. Advances may
be
converted to, or continued as, Eurodollar Rate Advances only in integral
multiples, as to the aggregate amount of the Advances of all Banks so converted
or continued, of $500,000. The Borrowers’ Agent shall give the Administrative
Agent written notice of any continuation or conversion of any Advances and
such
notice must be given so as to be received by the Administrative Agent not later
than 11:00 a.m. (Minneapolis
time)
two Eurodollar Business Days prior to requested date of conversion or
continuation in the case of the continuation of, or conversion to, Eurodollar
Rate Advances and on the date of the requested conversion to Prime Rate
Advances. Each such notice shall specify (a) the amount to be continued or
converted, (b) the date for the continuation or conversion (which must be (i)
the last day of the preceding Interest Period for any continuation or conversion
of Eurodollar Rate Advances, and (ii) a Eurodollar Business Day in the case
of
continuations as or conversions to Eurodollar Rate Advances and a Business
Day
in the case of conversions to Prime Rate Advances), and (c) in the case of
conversions to or continuations as Eurodollar Rate Advances, the Interest Period
applicable thereto. Any notice given by the Borrowers’ Agent under this Section
shall be irrevocable. If the Borrowers’ Agent shall fail to notify the
Administrative Agent of the continuation of any Eurodollar Rate Advances within
the time required by this Section, at the option of the Administrative Agent,
such Advances shall, on the last day of the Interest Period applicable thereto,
(y) automatically be continued as Eurodollar Rate Advances with the same
Interest Period or (z) automatically be converted into Prime Rate Advances.
All
conversions and continuation of Advances must be made uniformly and ratably
among the Banks.
Section
2.6 Interest
Rates,
Interest Payments and Default Interest.
(a) The
Revolving Loans.
Interest shall accrue and be payable on the Revolving Loans as
follows:
(i) Subject
to paragraph
(iii) below, each Eurodollar Rate Advance shall bear interest on the unpaid
principal amount thereof during the Interest Period applicable thereto at a
rate
per annum equal to the sum of (A) the Adjusted Eurodollar Rate for such Interest
Period, plus
(B) the
Applicable Margin.
(ii) Subject
to paragraph (iii) below, each Prime Rate Advance shall bear interest on the
unpaid principal amount thereof at a varying rate per annum equal to the sum
of
(A) the Prime Rate, plus
(B) the
Applicable Margin.
-
23
-
(iii) Upon
the
occurrence of any Event of Default, each Advance shall, at the option of the
Majority Banks, bear interest until paid in full at a rate per annum equal
to
the higher of (A) the rate applicable to such Advance but for the provisions
of
this clause (iii) plus
2.0% and
(B) the Prime Rate plus
2.0%.
(iv) Interest
shall be payable (A) with respect to each Eurodollar Rate Advance having an
Interest Period of three months or less, on the last day of the Interest Period
applicable thereto; (B) with respect to any Eurodollar Rate Advance having
an
Interest Period greater than three months, on the last day of the Interest
Period applicable thereto and on each day that would have been the last day
of
the Interest Period for such Advance had successive Interest Periods of three
months duration been applicable to such Advance; (C) with respect to any Prime
Rate Advance, on the last day of each month; (D) upon any permitted prepayment
of a Eurodollar Rate Advance (on the amount prepaid); (E) with respect to all
Advances, on the Termination Date; provided that interest under paragraph
(a)(iii) of this Section shall be payable on demand.
(b) Swing
Line
Loans.
Interest shall accrue and be payable on the Swing Line Loans as
follows:
(i) Each
Prime Rate Advance
shall bear interest on the unpaid principal amount thereof at a varying rate
per
annum equal to the sum of (A) the Prime Rate, plus
(B) the
Applicable Margin.
(ii) Each
Alternate Advance shall bear interest on the unpaid principal amount thereof
at
a rate per annum quoted from time to time by the Swing Line Bank and agreed
to
by the Borrowers’ Agent.
(iii) Interest
shall be payable
with respect to any Swing Line Loan (A) on the last day of each month; (B)
upon
any permitted prepayment of an Alternate Advance (on the amount prepaid); and
(C) on the Termination Date; provided that interest under paragraph (b)(iii)
of
this Section shall be payable on demand.
Section
2.7 Repayment
and
Mandatory Prepayment.
(a) Repayment
Terms.
The
unpaid principal balance of all Revolving Notes, together with all accrued
and
unpaid interest thereon, shall be due and payable on the Termination Date.
(b) Other
Mandatory Prepayments.
(i) If
at any
time Total Revolving Outstandings exceed the Aggregate Revolving Commitment
Amounts, the Borrowers shall immediately repay to the Administrative Agent
for
the account of the Banks the amount of such excess. Any such payments shall
be
applied first against Prime Rate Advances, then to
-
24
-
Alternate
Advances and then to Eurodollar Rate Advances in order starting with the
Eurodollar Rate Advances having the shortest time to the end of the applicable
Interest Period. If, after payment of all outstanding Advances, the Total
Revolving Outstandings still exceed the Aggregate Revolving Commitment Amounts,
the remaining amount paid by the Borrowers shall be placed in the Holding
Account.
(ii) The
Borrowers shall make
mandatory principal prepayments of the Revolving Loans in the manner set forth
in Section 8.10 in amounts equal to one hundred percent (100%) of the aggregate
Net Cash Proceeds from any offering of capital stock or other equity interest
greater than $10,000,000 by any Borrower or any Subsidiary on the third
(3rd)
Business Day following receipt by any Borrower or any Subsidiary of such Net
Cash Proceeds. This provision shall not be deemed to permit any Investment
by
any Borrower or any Subsidiary not otherwise permitted hereunder.
Section
2.8 Optional
Prepayments.
The
Borrowers may prepay Prime Rate Advances and Alternate Advances, in whole or
in
part, at any time, without premium or penalty. The Borrowers may prepay
Eurodollar Rate Advances, in whole or in part, at any time; provided
that,
upon such prepayment, the Borrowers shall pay to the Banks the amounts, if
any,
required pursuant to Section 2.25. Any prepayment shall be accompanied by
accrued and unpaid interest on the amount prepaid and be made by the Borrowers
not later than 11:00 a.m. (Minneapolis time) on the date the Borrowers wish
such
prepayment to become effective. Each partial prepayment shall be in an aggregate
minimum amount for all the Banks of $1,000,000
and
integral multiples of $500,000 for amounts greater than such minimum. Except
upon an acceleration following an Event of Default or upon termination of the
Revolving Commitments in whole, the Borrowers may pay Eurodollar Rate Advances
only on the last day of the Interest Period applicable thereto. Amounts paid
(unless following an acceleration or upon termination of the Revolving
Commitments in whole) or prepaid on Advances on the Revolving Loans under this
Section may be reborrowed upon the terms and subject to the conditions and
limitations of this Agreement. Amounts paid or prepaid on the Revolving Loans
under this Section shall be for the account of each Bank in proportion to its
share of outstanding Revolving Loans.
Part
B
-- Terms of the Letter of Credit Facility
Section
2.9 Letters
of Credit.
Upon
the terms and subject to the conditions of this Agreement, the LC Bank agrees
to
issue Letters of Credit for the account of the Borrowers from time to time
between the Closing Date and the Termination Date in such amounts as the
Borrowers’ Agent shall request up to an aggregate amount at any time outstanding
not exceeding the Total Letter of Credit Commitment Amount; provided that no
Letter of Credit will be issued in any amount which, after giving effect to
such
issuance, would cause Total Revolving Outstandings to exceed the Aggregate
Revolving Commitment Amounts. Notwithstanding any provision herein to the
contrary, each letter of credit issued pursuant to the Existing Credit Agreement
that is currently outstanding and identified on Schedule 2.9 hereto shall
constitute a Letter of Credit hereunder.
-
25
-
Section
2.10 Procedures
for Letters
of Credit.
Each
request for a Letter of Credit shall be made by the Borrowers’ Agent in writing,
by telex, facsimile transmission or electronic conveyance received by the
LC
Bank
and the
Administrative Agent by 11:00 a.m. (Minneapolis
time) on
a Business Day which is not less than one Business Day preceding the requested
date of issuance (which shall also be a Business Day). Each request for a Letter
of Credit shall be deemed a representation by the Borrowers that on the date
of
issuance of such Letter of Credit and after giving effect thereto the conditions
specified in Article III have been and will be satisfied. The LC
Bank
may
require that such request be made on such letter of credit application and
reimbursement agreement form as the LC
Bank
may from
time to time specify, along with satisfactory evidence of the authority and
incumbency of the officials of the Borrowers’ Agent making such request. The LC
Bank shall promptly notify the Administrative Agent and other Banks of the
receipt of the request and the matters specified therein. On the date of each
issuance of a Letter of Credit the LC Bank shall send notice to the other Banks
of such issuance, accompanied by a copy of the Letter or Letters of Credit
so
issued.
Section
2.11 Terms
of Letters of Credit.
Letters
of Credit shall be issued in support of obligations of the Borrowers. All
Letters of Credit must expire not later than 364 days from the date of issuance
(subject to renewal). As to each Letter of Credit that will be outstanding
as of
the Revolving Commitment Ending Date or as of the termination of the Commitments
pursuant to Section 2.14, no further renewal of any such Letter of Credit shall
occur, and the Borrower shall provide prior to the issuance of such Letter
of
Credit, (i) cash collateral in an amount reasonably satisfactory to the LC
Bank,
or (ii) one or more irrevocable letters of credit in form and substance, and
issued by a bank, reasonably satisfactory to the LC Bank pursuant to which
the
LC Bank is entitled to recover the maximum amount at any time payable under
such
Letter of Credit, plus all costs and fees then or thereafter payable with
respect to such Letter of Credit under the terms of this Agreement.
Section
2.12 Agreement
to Repay
Letter of Credit Drawings.
If the
LC
Bank
has
received documents purporting to draw under a Letter of Credit that the
LC
Bank
believes
conform to the requirements of the Letter of Credit, or if the LC
Bank
has
decided that it will comply with the Borrowers’ Agent’s written or oral request
or authorization to pay a drawing on any Letter of Credit that the LC
Bank
does not
believe conforms to the requirements of the Letter of Credit, it will notify
the
Borrowers’ Agent of that fact. The Borrowers shall reimburse the LC
Bank
by 9:30
a.m. (Minneapolis
time) on
the day on which such drawing is to be paid in Immediately Available Funds
in an
amount equal to the amount of such drawing. Any amount by which the Borrowers
have failed to reimburse the LC
Bank
for the
full amount of such drawing by 10:00 a.m. on the date on which the LC
Bank
in its
notice indicated that it would pay such drawing, until reimbursed from the
proceeds of Loans pursuant to Section
2.15
or out
of funds available in the Holding Account, is an “Unpaid
Drawing.”
Section
2.13 Obligations
Absolute.
The
obligation of the Borrowers under Section
2.12
to repay
the LC
Bank
for any
amount drawn on any Letter of Credit and to repay the Banks
for any
Revolving Loans made under Section
2.15
to cover
Unpaid Drawings shall be absolute, unconditional and irrevocable, shall continue
for so long as any Letter of Credit is outstanding notwithstanding any
termination of this Agreement, and shall be paid strictly in accordance with
the
terms of this Agreement, under all circumstances whatsoever, including without
limitation the following circumstances:
-
26
-
(a) Any
lack of validity or
enforceability of any Letter of Credit;
(b) The
existence of any
claim, setoff, defense or other right which the Borrowers may have or claim
at
any time against any beneficiary, transferee or holder of any Letter of Credit
(or any Person for whom any such beneficiary, transferee or holder may be
acting), the LC Bank or any Bank or any other Person, whether in connection
with
a Letter of Credit, this Agreement, the transactions contemplated hereby, or
any
unrelated transaction; or
(c) Any
statement or any other
document presented under any Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being untrue
or
inaccurate in any respect whatsoever.
Neither
the LC Bank nor any Bank nor officers, directors or employees of any thereof
shall be liable or responsible for, and the obligations of the Borrowers to
the
LC Bank and the Banks shall not be impaired by:
(i) The
use
which may be made of any Letter of Credit or for any acts or omissions of any
beneficiary, transferee or holder thereof in connection therewith;
(ii) The
validity, sufficiency or genuineness of documents, or of any endorsements
thereon, even if such documents or endorsements should, in fact, prove to be
in
any or all respects invalid, insufficient, fraudulent or forged;
(iii) The
acceptance by the
LC
Bank
of
documents that appear on their face to be in order, without responsibility
for
further investigation, regardless of any notice or information to the contrary;
or
(iv) Any
other action of the
LC
Bank
in
making or failing to make payment under any Letter of Credit if in good faith
and in conformity with U.S. or foreign laws, regulations or customs applicable
thereto.
Notwithstanding
the foregoing, the Borrowers shall have a claim against the LC
Bank,
and the
LC
Bank
shall be
liable to the Borrowers, to the extent, but only to the extent, of any direct,
as opposed to consequential, damages suffered by the Borrowers which the
Borrowers prove were caused by the LC Bank’s willful misconduct or gross
negligence in determining whether documents presented under any Letter of Credit
comply with the terms thereof.
-
27
-
Part
C
-- General
Section
2.14 Changes
to Revolving
Commitment Amounts.
(a) Optional
Reduction or Termination.
The
Borrowers may, at any time, upon not less than three (3) Business Days prior
written notice to the Administrative Agent from the Borrowers’ Agent, reduce the
Revolving Commitment Amounts, ratably, with any such reduction in a minimum
aggregate amount for all the Banks of $5,000,000, or, if more, in an integral
multiple of $1,000,000; provided,
however,
that
the Borrowers may not at any time reduce the Aggregate Revolving Commitment
Amounts below the Total Revolving Outstandings. The Borrowers may, at any time
when there are no Letters of Credit outstanding, upon not less than three (3)
Business Days prior written notice to the Administrative Agent from the
Borrowers’ Agent, terminate the Revolving Commitments in their entirety. Upon
termination of the Revolving Commitments pursuant to this Section, the Swing
Line Commitment shall terminate automatically and the Borrowers shall pay to
the
Administrative Agent for the account of the Banks the full amount of all
outstanding Advances for Revolving Loans and Swing Line Loans, all accrued
and
unpaid interest thereon, all unpaid Revolving Commitment Fees accrued to the
date of such termination, any indemnities payable with respect to Advances
pursuant to Section
2.24
and all
other unpaid Obligations of the Borrowers to the Administrative Agent and the
Banks hereunder.
(b) Increase
of Revolving Commitment Amount.
(i) Provided
there exists no Default or Event of Default, the Borrowers may from time to
time
upon written notice to the Administrative Agent from the Borrowers’ Agent,
request an increase in the Aggregate Revolving Commitment Amounts by an
aggregate amount not exceeding $125,000,000; provided,
however,
that
(i) any such request for an increase shall be in a minimum amount of $10,000,000
or any integral multiple of $5,000,000 in excess thereof, (ii) the Borrowers
may
make a maximum of two such requests, and (iii) after giving effect to such
request, neither the Total Revolving Outstandings nor the Aggregate Revolving
Commitment Amounts shall exceed $450,000,000. At the time of sending such
written notice, the Borrowers’ Agent (in consultation with the Administrative
Agent) shall specify the time period within which each Bank is requested to
respond (which shall in no event be less than ten Business Days from the date
of
delivery of such notice to the Banks).
(ii) Each
Bank
shall notify the Administrative Agent within such time period whether or not
it
agrees to increase its Revolving Commitment and, if so, whether by an amount
equal to, greater than, or less than its Revolving Percentage of such requested
increase. Any Bank not responding within such time period shall be deemed to
have declined to increase its Revolving Commitment. No Bank shall have any
obligation, express or implied, to increase its Revolving
Commitment.
-
28
-
(iii) The
Administrative Agent shall notify the Borrowers’ Agent and each Bank of the
Banks’ responses to each request made hereunder. To achieve the full amount of a
requested increase and subject to the approval of the Administrative Agent
and
the XX Xxxxx (which approvals shall not be unreasonably withheld), the
Borrowers’ Agent may also invite additional eligible assignees to become Banks
pursuant to a joinder agreement in form and substance satisfactory to the
Administrative Agent and its counsel.
(iv) If
the
Aggregate Revolving Commitment Amounts are increased in accordance with this
Section 2.14(b), the Administrative Agent and the Borrowers’ Agent shall
determine the effective date (the “Increase
Effective Date”)
and
the final allocation of such increase. The Administrative Agent shall promptly
notify the Borrowers’ Agent and the Banks of the final allocation of such
increase and the Increase Effective Date.
(v) In
the
event of an increase in the Aggregate Revolving Commitment Amounts pursuant
to
this Section 2.14(b), the Banks (new or existing) shall accept an assignment
from the existing Banks and the existing Banks shall make an assignment to
the
new or existing Banks accepting a new or increased Revolving Commitment Amount,
of an interest in each then outstanding Revolving Loan and Swing Line Loan
such
that, after giving effect thereto, all Revolving Loans and Swing Line Loans
are
held ratably by the Banks in proportion to their respective Revolving Commitment
Amount. Assignments pursuant to the preceding sentence shall be made in exchange
for the principal amount assigned plus accrued and unpaid interest and shall
not
be subject to the assignment fee set forth in Section 9.6.
(vi) As
a
condition precedent to such increase, the Borrowers’ Agent shall (i) deliver to
the Administrative Agent a certificate dated as of the Increase Effective Date
(in sufficient copies for each Bank), signed by a senior officer of the
Borrowers’ Agent, (A) certifying and attaching the resolutions adopted by the
Borrowers approving or consenting to such increase, and (B) certifying that,
before and after giving effect to such increase, (1) the representations and
warranties contained in Article
IV
and the
other Loan Documents are true and correct on and as of the Increase Effective
Date, except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they are true and correct as of such
earlier date, and (2) no Default or Event of Default exists.
Section
2.15 Loans
to Cover Unpaid Drawings.
Whenever any Unpaid Drawing exists for which there are not then funds in the
Holding Account to cover the same, the Administrative Agent shall give the
other
Banks notice to that effect, specifying the amount thereof, in which event
each
Bank is authorized (and the Borrowers do here so authorize each Bank) to, and
shall, make a Revolving Loan (as a Prime Rate Advance) to the Borrowers in
an
amount equal to such Bank’s Revolving Percentage of the amount of the Unpaid
Drawing. The Administrative Agent
shall notify each Bank by 11:00 a.m. (Minneapolis
time) on
the date such Unpaid Drawing occurs of the amount of the Revolving Loan to
be
made by such Bank. Notices received after such time shall be deemed to have
been
received on the next Business Day. Each Bank shall then make such Revolving
Loans (regardless of noncompliance with the applicable conditions precedent
specified in Article III hereof and regardless of whether an Event of Default
then exists) and each Bank shall provide the Administrative Agent with the
proceeds of such Revolving Loan in Immediately Available Funds, at the office
of
the Administrative Agent, not later than 2:00 p.m. (Minneapolis
time) on
the day on which such Bank received such notice (or, in the case of notices
received after 11:00 a.m., Minneapolis
time, is
deemed to have received such notice). The Administrative Agent shall apply
the
proceeds of such Revolving Loans directly to reimburse the LC Bank for such
Unpaid Drawing. If any portion of any such amount paid to the Administrative
Agent should be recovered by or on behalf of the Borrowers from the LC Bank
in
bankruptcy, by assignment for the benefit of creditors or otherwise, the loss
of
the amount so recovered shall be ratably shared between and among the Banks
in
the manner contemplated by Section
8.10
hereof.
If at the time the Banks make funds available to the Administrative Agent
pursuant to the provisions of this Section, the applicable conditions precedent
specified in Article III shall not have been satisfied, the Borrowers shall
pay
to the Administrative Agent for the account of the Banks interest on the funds
so advanced at a floating rate per annum equal to the sum of the Prime Rate
plus
the Applicable Margin for Prime Rate Advances plus two percent (2.00%). If
for
any reason any Bank is unable to make a Revolving Loan to the Borrowers to
reimburse the LC Bank for an Unpaid Drawing, then such Bank shall immediately
purchase from the LC Bank a risk participation in such Unpaid Drawing, at par,
in an amount equal to such Bank’s Revolving Percentage of the Unpaid
Drawing.
-
29
-
Section
2.16 Fees.
(a) Revolving
Commitment
Fee.
The
Borrowers shall pay to the Administrative Agent for the account of each Bank
fees (the “Revolving
Commitment Fees”)
in an
amount equal to the product of (i) the Applicable Fee Percentage times
(ii) the
average daily Unused Revolving Commitment (but excluding the Swing Line
Commitment, Commercial Letters of Credit and Standby Letters of Credit) of
such
Bank as of the last day of each quarter. Such Revolving Commitment Fees are
payable in arrears quarterly on the last day of each quarter and on the
Termination Date.
(b) Agency
Fee.
The
Borrowers shall pay to the Administrative Agent the fees set forth in the
separate letter agreement dated as of the date hereof between the Administrative
Agent and the Borrowers’ Agent. Such fees shall be paid on the Closing Date and
at such other times as may be required pursuant to the terms of such letter
agreement.
(c) Standby
Letter of
Credit Fees.
For
each Standby Letter of Credit issued, the Borrowers shall pay to the
Administrative Agent for the account of the Banks a fee (the “Letter
of Credit Fee”)
in an
amount equal to the product of (i) the Applicable LC Fee Percentage multiplied
by (ii) the amount available to be drawn under such Standby Letter of Credit
from time to time for the period from the date of issuance of such
-
30
-
Standby
Letter of Credit to the expiration of such Standby Letter of Credit.
Such fee
shall be payable in arrears quarterly on the last day of each quarter,
commencing with the first such date after the issuance of such Standby Letter
of
Credit, and on the expiration date of such Standby Letter of Credit. In addition
to the Letter of Credit Fee, the Borrowers shall pay to the LC
Bank,
on
demand, all issuance, amendment, drawing and other fees regularly charged by
the
LC
Bank
to its
letter of credit customers and all out-of-pocket expenses incurred by the
LC
Bank
in
connection with the issuance, amendment, administration or payment of any Letter
of Credit.
(d) Commercial
Letter of Credit Fees.
For
each Commercial Letter of Credit issued, the Borrowers shall pay to the LC
Bank
an amount agreed upon by the LC Bank and the Borrowers.
Section
2.17 Computation.
Computation of interest on Prime Rate Advances shall be calculated on the basis
of a year of 365 or 366 days, as the case may be, and the actual number of
days
elapsed. Computation of all other types of interest and all fees shall be
calculated on the basis of actual days elapsed and a year of 360
days.
Section
2.18 Payments.
Payments and prepayments of principal of, and interest on, the Notes and all
fees, expenses and other obligations under this Agreement payable to the
Administrative Agent or the Banks shall be made without setoff or counterclaim
in Immediately Available Funds not later than 9:30 a.m. (Minneapolis
time) on
the dates called for under this Agreement and the Notes to the Administrative
Agent
at its
main office in Minneapolis,
Minnesota.
Funds
received after such time shall be deemed to have been received on the next
Business Day. The Administrative Agent will promptly distribute in like funds
to
each Bank its ratable share of each such payment of principal, interest and
fees
received by the Administrative Agent for the account of the Banks. Whenever
any
payment to be made hereunder or on the Notes shall be stated to be due on a
day
which is not a Business Day, such payment shall be made on the next succeeding
Business Day and such extension of time, in the case of a payment of principal,
shall be included in the computation of any interest on such principal payment;
provided, however, that if such extension would cause payment of interest on
or
principal of a Eurodollar Rate Advance to be made in the next following calendar
month, such payment shall be made on the first preceding Business
Day.
Section
2.19 Use
of Loan
Proceeds.
The
proceeds of the Revolving Loans shall be used for the Borrowers’ general
business purposes, including working capital support, in a manner not in
conflict with any of the Borrowers’ covenants in this Agreement, and to (i)
refinance Swing Line Loans as provided in subsection 2.3(c) and (ii) pay off
Unpaid Drawings as provided in subsection 2.15.
Section
2.20 Interest
Rate Not Ascertainable, Etc.
If, on
or prior to the date for determining the Adjusted Eurodollar Rate in respect
of
the Interest Period for any Eurodollar Rate Advance, any Bank determines (which
determination shall be conclusive and binding, absent error) that:
-
31
-
(a) deposits
in dollars (in
the applicable amount) are not being made available to such Bank in the relevant
market for such Interest Period, or
(b) the
Adjusted Eurodollar Rate will not adequately and fairly reflect the cost to
such
Bank of funding or maintaining Eurodollar Rate Advances for such Interest
Period,
such
Bank
shall forthwith give notice to the Borrowers’ Agent and the other Banks of such
determination, whereupon the obligation of such Bank to make or continue, or
to
convert any Advances to, Eurodollar Rate Advances shall be suspended until
such
Bank notifies the Borrowers’ Agent and the Administrative Agent that the
circumstances giving rise to such suspension no longer exist. While any such
suspension continues, all further Advances by such Bank shall be made as Prime
Rate Advances. No such suspension shall affect the interest rate then in effect
during the applicable Interest Period for any Eurodollar Rate Advance
outstanding at the time such suspension is imposed.
Section
2.21 Increased
Cost.
If any
Regulatory Change:
(a) shall
subject any Bank
(or its Applicable Lending Office) to any tax, duty or other charge with respect
to its Eurodollar Rate Advances, its Notes or its obligation to make Eurodollar
Rate Advances or shall change the basis of taxation of payment to any Bank
(or
its Applicable Lending Office) of the principal of or interest on its Eurodollar
Rate Advances or any other amounts due under this Agreement in respect of its
Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances
(except for changes in the rate of tax on the overall net income of such Bank
or
its Applicable Lending Office imposed by the jurisdiction in which such Bank’s
principal office or Applicable Lending Office is located); or
(b) shall
impose, modify or
deem applicable any reserve, special deposit or similar requirement (including,
without limitation, any such requirement imposed by the Board, but excluding
with respect to any Eurodollar Rate Advance any such requirement to the extent
included in calculating the applicable Adjusted Eurodollar Rate) against assets
of, deposits with or for the account of, or credit extended by, any Bank’s
Applicable Lending Office or against Letters of Credit issued by the
Administrative Agent or shall impose on any Bank (or its Applicable Lending
Office) or the interbank Eurodollar market any other condition affecting its
Eurodollar Rate Advances, its Notes or its obligation to make Eurodollar Rate
Advances or affecting any Letter of Credit;
and
the
result of any of the foregoing is to increase the cost to such Bank (or its
Applicable Lending Office) of making or maintaining any Eurodollar Rate Advance
or issuing or maintaining any Letter of Credit, or to reduce the amount of
any
sum received or receivable by such Bank (or its Applicable Lending Office)
under
this Agreement or under its Notes, then, within 30 days after demand by such
Bank (with a copy to the Administrative Agent), the Borrowers shall pay to
such
Bank such additional amount or amounts as will compensate such Bank for such
increased cost or reduction. Each Bank will promptly notify the Borrowers’ Agent
and the Administrative Agent of any event of which it has knowledge, occurring
after the
-
32
-
date
hereof, which will entitle such Bank to compensation pursuant to this Section
and will designate a different Applicable Lending Office if such designation
will avoid the need for, or reduce the amount of, such compensation and will
not, in the judgment of such Bank, be otherwise disadvantageous to such Bank.
If
any Bank fails to give such notice within 45 days after it obtains knowledge
of
such an event, such Bank shall, with respect to compensation payable pursuant
to
this Section, only be entitled to payment under this Section for costs incurred
from and after the date 45 days prior to the date that such Bank does give
such
notice; provided, however, that to the extent such additional amounts accrue
during such period due to the retroactive effect of the applicable Regulatory
Change promulgated during the period prior to the Borrowers’ Agent’s receipt of
such notice, the limitation set forth in this sentence shall not apply. A
certificate of any Bank claiming compensation under this Section, setting forth
the additional amount or amounts to be paid to it hereunder and stating in
reasonable detail the basis for the charge and the method of computation, shall
be conclusive in the absence of error. In determining such amount, any Bank
may
use any reasonable averaging and attribution methods. Failure on the part of
any
Bank to demand compensation for any increased costs or reduction in amounts
received or receivable with respect to any Interest Period shall not constitute
a waiver of such Bank’s rights to demand compensation for any increased costs or
reduction in amounts received or receivable in any subsequent Interest
Period.
Section
2.22 Illegality.
If any
Regulatory Change shall make it unlawful or impossible for any Bank to make,
maintain or fund any Eurodollar Rate Advances, such Bank shall notify the
Borrowers’ Agent and the Administrative Agent, whereupon the obligation of such
Bank to make or continue, or to convert any Advances to, Eurodollar Rate
Advances shall be suspended until such Bank notifies the Borrowers’ Agent and
the Administrative Agent that the circumstances giving rise to such suspension
no longer exist. Before giving any such notice, such Bank shall designate a
different Applicable Lending Office if such designation will avoid the need
for
giving such notice and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. If such Bank determines that it may not lawfully
continue to maintain any Eurodollar Rate Advances to the end of the applicable
Interest Periods, all of the affected Advances shall be automatically converted
to Prime Rate Advances as of the date of such Bank’s notice, and upon such
conversion the Borrowers shall indemnify such Bank in accordance with
Section
2.24.
Section
2.23 Capital
Adequacy.
In the
event that any Regulatory Change reduces or shall have the effect of reducing
the rate of return on any Bank’s capital or the capital of its parent
corporation (by an amount such Bank deems material) as a consequence of its
Commitments and/or its Loans and/or any Letters of Credit or any Bank’s
obligations to make Advances to cover Letters of Credit to a level below that
which such Bank or its parent corporation could have achieved but for such
Regulatory Change (taking into account such Bank’s policies and the policies of
its parent corporation with respect to capital adequacy), then the Borrowers
shall, within 30 days after written notice and demand from such Bank to the
Borrowers’ Agent (with a copy to the Administrative Agent), pay to such Bank
additional amounts sufficient to compensate such Bank or its parent corporation
for such reduction. If any Bank fails to give such notice within 45 days after
it obtains knowledge of such an event, such Bank shall, with respect to
compensation payable pursuant to this Section, only be entitled to
-
33
-
payment
under this Section for diminished returns as a result of such reduction for
the
period from and after the date 45 days prior to the date that such Bank does
give such notice; provided, however, that to the extent such additional amounts
accrue during such period due to the retroactive effect of the applicable
Regulatory Change promulgated during the period prior to the Borrowers’ Agent’s
receipt of such notice, the limitation set forth in this sentence shall not
apply. Any determination by such Bank under this Section and any certificate
as
to the amount of such reduction given to the Borrowers by such Bank shall be
final, conclusive and binding for all purposes, absent error.
Section
2.24 Funding
Losses;
Eurodollar Rate Advances.
The
Borrowers shall compensate each Bank, upon its written request to the Borrowers’
Agent, for all losses, expenses and liabilities (including any interest paid
by
such Bank to lenders of funds borrowed by it to make or carry Eurodollar Rate
Advances to the extent not recovered by such Bank in connection with the
re-employment of such funds and including loss of anticipated profits) which
such Bank may sustain: (i) if for any reason, other than a default by such
Bank,
a funding of a Eurodollar Rate Advance does not occur on the date specified
therefor in the Borrowers’ Agent’s request or notice as to such Advance under
Section 2.2 or 2.4, or (ii) if, for whatever reason (including, but not limited
to, acceleration of the maturity of Advances following an Event of Default),
any
repayment of a Eurodollar Rate Advance, or a conversion pursuant to Section
2.22,
occurs
on any day other than the last day of the Interest Period applicable thereto.
A
Bank’s request for compensation shall set forth the basis for the amount
requested and shall be final, conclusive and binding, absent manifest
error.
Section
2.25 Discretion
of Banks
as to
Manner of Funding.
Each
Bank shall be entitled to fund and maintain its funding of Eurodollar Rate
Advances in any manner it may elect, it being understood, however, that for
the
purposes of this Agreement all determinations hereunder (including, but not
limited to, determinations under Section
2.24)
shall
be made as if such Bank had actually funded and maintained each Eurodollar
Rate
Advance during the Interest Period for such Advance through the purchase of
deposits having a maturity corresponding to the last day of the Interest Period
and bearing an interest rate equal to the Eurodollar Rate for such Interest
Period.
Section
2.26 Taxes.
(a) Any
and
all payments by the Borrowers hereunder or under the Notes shall be made free
and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges of withholdings, and all liabilities with
respect thereto, excluding,
in the
case of each Bank and the Administrative Agent, taxes imposed on its overall
net
income, and franchise taxes imposed on it in lieu of net income taxes (all
such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities in respect of payments hereunder or under the Notes being
hereinafter referred to as “Taxes”).
(b) The
Borrowers agree to
pay any present or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies that arise from any payment made
hereunder or under the Notes or from the execution, delivery or registration
of,
performing under, or otherwise with respect to, this Agreement or the Notes
(hereinafter referred to as “Other
Taxes”).
-
34
-
(c) The
Borrowers shall
indemnify each Bank and the Administrative Agent for the full amount of Taxes
or
Other Taxes imposed on or paid by such Bank or the Administrative Agent and
any
penalties, interest and expenses with respect thereto. Payments on this
indemnification shall be made within 30 days from the date such Bank or the
Administrative Agent makes written demand therefor.
(d) Within
thirty (30) days
after the date of any payment of Taxes, the Borrowers shall furnish to the
Administrative Agent, at its address referred to on the signature page hereof
a
certified copy of a receipt evidencing payment thereof. In the case of any
payment hereunder or under the Notes by or on behalf of the Borrowers through
an
account or branch outside the United States or by or on behalf of the Borrowers
by a payor that is not a United States person, if the Borrowers determine that
no Taxes are payable in respect thereof, the Borrowers shall furnish or shall
cause such payor to furnish, to the Administrative Agent, at such address,
an
opinion of counsel acceptable to the Administrative Agent stating that such
payment is exempt from Taxes. For purposes of this subsection (d) and subsection
(e), the terms “United States” and “United States person” shall have the
meanings specified in Section 7701 of the Code.
(e) Each
Bank, as of the date
it becomes a party hereto, represents to the Borrowers and the Administrative
Agent that it is either (i) organized under the laws of the United States or
any
State thereof or (ii) is entitled to complete exemption from United States
withholding tax imposed on or with respect to any payments, including fees,
to
be made pursuant to this Agreement (x) under an applicable provision of a tax
convention to which the United States is a party or (y) because it is acting
through a branch, agency or office in the United States and any payment to
be
received by it hereunder is effectively connected with a trade or business
in
the United States. Each Bank that is not a United States person (as such term
is
defined in Section 7701(a)(30) of the Code) shall submit to the Borrowers’ Agent
and the Administrative Agent, on or before the day on which such Bank becomes
a
party hereto, duly completed and signed copies of either Form W-8BEN or Form
W-8ECI of the United States Internal Revenue Service, or appropriate successor
forms. Form W-8BEN shall include such Bank’s United States taxpayer
identification number if required under then current regulations to claim
exemption from withholding pursuant to a tax convention. Thereafter and from
time to time, each such Bank shall submit to the Borrowers’ Agent and the
Administrative Agent such additional duly completed and signed copies of one
or
the other of such Forms (or such successor Forms as shall be adopted from time
to time by the relevant United States taxing authorities) as may be (i)
reasonably requested by the Borrowers’ Agent or the Administrative Agent and
(ii) required and permitted under then-current United States law or regulations
to avoid United States withholding taxes on payments in respect of all payments
to be received by such Bank hereunder. Upon the request of the Borrowers’ Agent
or the Administrative Agent, each Bank that is a United States person (as such
term is defined in Section 7701(a)(30) of the Code) shall submit to the
Borrowers’ Agent and the Administrative Agent a certificate on Internal Revenue
Service Form W-9 or such substitute form as is reasonably satisfactory to the
Borrowers’ Agent and the Administrative Agent to the effect that it is such a
United States person.
-
35
-
(f) If
the
Borrowers shall be required by law or regulation to make any deduction,
withholding or backup withholding of any taxes, levies, imposts, duties, fees,
liabilities or similar charges of the United States of America, any possession
or territory of the United States of America (including the Commonwealth of
Puerto Rico) or any area subject to the jurisdiction of the United States of
America (“U.S.
Taxes”)
from
any payments to a Bank pursuant to any Loan Document in respect of the
Obligations payable to such Bank then or thereafter outstanding, the Borrowers
shall make such withholdings or deductions and pay the full amount withheld
or
deducted to the relevant taxation authority or other authority in accordance
with applicable law.
ARTICLE
III
CONDITIONS
PRECEDENT
Section
3.1 Conditions
of Initial
Transaction.
The
making of the initial Revolving Loans, the initial Swing Line Loan, and the
issuance of the initial Letter of Credit shall be subject to the prior or
simultaneous fulfillment of the following conditions:
(a) Documents.
The
Administrative Agent shall have received the following in sufficient
counterparts (except for the Notes) for each Bank:
(i) A
Revolving Note drawn to
the order of each Bank and, for the account of the Swing Line Lender, the
Swing
Line Note, executed by a duly authorized officer (or officers) of the Borrowers
and dated the Closing Date.
(ii) A
certificate of the
Secretary or Assistant Secretary of each Borrower dated as of the Closing
Date
and certifying as to the following:
(A) A
true and correct copy
of the corporate, company or limited partnership resolutions, as applicable,
of
such Borrower authorizing the execution, delivery and performance of the
Loan
Documents to which such Borrower is a party contemplated hereby and
thereby;
(B) The
incumbency, names,
titles and signatures of the officers of such Borrower authorized to execute
the
Loan Documents to which such Borrower is a party and to request
Advances;
(C) A
true and correct copy
of the Articles of Incorporation, Certificate of Formation or Certificate
of
Limited Partnership, as applicable, of such Borrower, with all amendments
thereto, certified by the appropriate governmental official of the jurisdiction
of its formation as of a date not more than 30 days prior to the Closing
Date;
and
-
36
-
(D) A
true and correct copy
of the bylaws, operating or formation agreement or limited partnership
agreement, as applicable, for such Borrower.
(iii) A
certificate of good standing for each Borrower in the jurisdiction of its
formation and in each State in which the character of the properties owned
or
leased by such Borrower or the business conducted by such Borrower makes
such
qualification necessary, certified by the appropriate governmental officials
as
of a date not more than 30 days prior to the Closing Date.
(iv) A
certificate dated the
Closing Date of the president, any vice president or the director of accounting
and finance of each Borrower certifying as to the matters set forth in Sections
3.2 (a) and (b) below.
(v) A
notice of authorized
borrowers, in form and substance satisfactory to the Administrative Agent,
executed by a duly authorized officer of the Borrowers and dated the Closing
Date.
(b) Opinion.
The
Borrowers shall have requested Xxxxx Xxxxxx, P.C., a limited liability
organization, counsel for the Borrowers, to prepare a written opinion, addressed
to the Banks
and
dated the Closing Date, in form and substance satisfactory to the Banks,
and
such opinion shall have been delivered to the Administrative Agent in sufficient
counterparts for each Bank.
(c) Compliance.
Each
Borrower shall have performed and complied with all agreements, terms and
conditions contained in this Agreement required to be performed or complied
with
by such Borrower prior to or simultaneously with the Closing Date.
(d) Other
Matters.
All
corporate and legal proceedings relating to the Borrowers and all instruments
and agreements in connection with the transactions contemplated by this
Agreement shall be satisfactory in scope, form and substance to the
Administrative Agent, the Banks and the Administrative Agent’s special counsel,
and the Administrative
Agent
shall
have received all information and copies of all documents, including records
of
corporate proceedings, as any Bank or such special counsel may reasonably
have
requested in connection therewith, such documents where appropriate to be
certified by proper corporate or governmental authorities.
(e) Fees
and Expenses.
The
Administrative Agent shall have received for itself and for the account of
the
Banks all fees and other amounts due and payable by the Borrowers on or prior
to
the Closing Date, including the reasonable fees and expenses of counsel to
the
Administrative
Agent
payable
pursuant to Section
9.2.
-
37
-
(f) Unsatisfied
Conditions.
Any one
or more of the conditions set forth above which have not been satisfied by
the
Borrowers on or prior to the date of disbursement of the initial Loan under
this
Agreement shall not be deemed permanently waived by the Administrative Agent
or
any Bank unless the Administrative Agent or such Bank, as the case may be,
shall
waive the same in a writing that expressly states that the waiver is permanent,
and in all cases in which the waiver is not stated to be permanent the
Administrative Agent or any Bank may at any time subsequent thereto insist
upon
compliance and satisfaction of any such condition as a condition to any
subsequent Loan or Letter of Credit hereunder and failure by the Borrowers
to
comply with any such condition within five (5) Business Day’s written notice
from the Administrative Agent or any Bank to the Borrowers’ Agent shall
constitute an Event of Default under this Agreement.
Section
3.2 Conditions
Precedent
to all Loans and Letters of Credit.
The
obligation of the Banks to make any Revolving Loans hereunder, the agreement
of
the Swing Line Bank to make a Swing Line Loan, and of the LC Bank to issue
each
Letter of Credit (including the initial Letter of Credit) shall be subject
to
the fulfillment of the following conditions:
(a) Representations
and Warranties.
The
representations and warranties contained in Article IV shall be true and
correct
on and as of the Closing Date and on the date of each Revolving Loan or Swing
Line Loan or the date of issuance of each Letter of Credit, with the same
force
and effect as if made on such date.
(b) No
Default.
No
Default or Event of Default shall have occurred and be continuing on the
Closing
Date and on the date of each Revolving Loan or Swing Line Loan or the date
of
issuance of each Letter of Credit or will exist after giving effect to the
Loans
made on such date or the Letter of Credit so issued.
(c) Notices
and Requests.
The
Administrative Agent shall have received the Borrowers’ Agent’s request for such
Loans as required under Section 2.2 or the Borrowers’ application for such
Letters of Credit specified under Section
2.10.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
To
induce
the Banks to enter into this Agreement and to make Loans
hereunder and to induce the LC Bank to issue Letters of Credit, the Borrowers
represent and warrant to the Banks:
Section
4.1 Organization,
Standing, Etc.
Each
Borrower is a corporation, limited liability company or limited partnership
duly
incorporated or formed and validly existing and in good standing under the
laws
of the jurisdiction of its incorporation or formation and has all requisite
corporate power and authority to carry on its business as now conducted,
to
enter into this Agreement and to issue the Notes and to perform its obligations
under the Loan Documents. WFB is a state chartered bank duly formed and validly
existing and in good standing under the laws of the jurisdiction of its
formation and has all requisite association power and authority
to
-
38
-
carry
on
its business as now conducted. Each Borrower and WFB (a) holds all certificates
of authority, licenses and permits necessary to carry on its business as
presently conducted in each jurisdiction in which it is carrying on such
business, except where the failure to hold such certificates, licenses or
permits would not constitute a Material Adverse Occurrence, and (b) is duly
qualified and in good standing as a foreign corporation (or other organization)
in each jurisdiction in which the character of the properties owned, leased
or
operated by it or the business conducted by it makes such qualification
necessary and the failure so to qualify would permanently preclude such Borrower
from enforcing its rights with respect to any assets or expose such Borrower
to
any Material Adverse Occurrence.
Section
4.2 Authorization
and Validity.
The
execution, delivery and performance by each Borrower of the Loan Documents
have
been duly authorized by all necessary corporate action by such Borrower,
and
this Agreement constitutes, and the Notes and other Loan Documents when executed
will constitute, the legal, valid and binding obligations of such Borrower,
enforceable against such Borrower in accordance with their respective terms,
subject to limitations as to enforceability which might result from bankruptcy,
insolvency, moratorium and other similar laws affecting creditors’ rights
generally and subject to limitations on the availability of equitable
remedies.
Section
4.3 No
Conflict; No
Default.
The
execution, delivery and performance by each Borrower of the Loan Documents
will
not (a) violate any provision of any law, statute, rule or regulation or
any
order, writ, judgment, injunction, decree, determination or award of any
court,
governmental agency or arbitrator presently in effect having applicability
to
such Borrower, (b) violate or contravene any provision of the Articles of
Incorporation or bylaws of such Borrower, or (c) result in a breach of or
constitute a default under any indenture, loan or credit agreement or any
other
agreement, lease or instrument to which such Borrower is a party or by which
it
or any of its properties may be bound or result in the creation of any Lien
thereunder. No Borrower nor any Subsidiary is in default under or in violation
of any such law, statute, rule or regulation, order, writ, judgment, injunction,
decree, determination or award or any such indenture, loan or credit agreement
or other agreement, lease or instrument in any case in which the consequences
of
such default or violation could constitute a Material Adverse
Occurrence.
Section
4.4 Government
Consent.
No
order, consent, approval, license, authorization or validation of, or filing,
recording or registration with, or exemption by, any governmental or public
body
or authority is required on the part of the Borrowers to authorize, or is
required in connection with the execution, delivery and performance of, or
the
legality, validity, binding effect or enforceability of, the Loan
Documents.
Section
4.5 Financial
Statements and Condition.
The
Borrowers’ audited financial statements as at January 1, 2005, as heretofore
furnished to the Banks,
have
been prepared in accordance with GAAP on a consistent basis and fairly present
the financial condition of the Borrowers and their Subsidiaries as at such
dates
and the results of its operations and changes in financial position for the
respective periods then ended. As of the dates of such financial statement,
no
Borrower nor any Subsidiary had any material obligation, contingent liability,
liability for taxes or long-term lease obligation which is not reflected
in such
financial statements or in the notes thereto. Since January 1, 2005, there
has
been no Material Adverse Occurrence.
-
39
-
Section
4.6 Litigation.
Except
as disclosed on Schedule 4.6, there are no actions, suits or proceedings
pending
or, to the knowledge of any Borrower, threatened against or affecting any
Borrower or any Subsidiary or any of its properties before any court or
arbitrator, or any governmental department, board, agency or other
instrumentality which, if determined adversely to such Borrower or Subsidiary,
would constitute a Material Adverse Occurrence, and there are no unsatisfied
judgments against any Borrower or Subsidiary, the satisfaction or payment
of
which would constitute a Material Adverse Occurrence.
Section
4.7 Environmental,
Health and Safety Laws.
There
does not exist any violation by any Borrower or Subsidiary of any applicable
federal, state or local law, rule or regulation or order of any government,
governmental department, board, agency or other instrumentality relating
to
environmental, pollution, health or safety matters which has, will or threatens
to impose a material liability on such Borrower or Subsidiary or which has
required or would require a material expenditure by such Borrower or Subsidiary
to cure. No Borrower nor any Subsidiary has received any notice to the effect
that any part of its operations or properties is not in material compliance
with
any such law, rule, regulation or order or notice that it or its property
is the
subject of any governmental investigation evaluating whether any remedial
action
is needed to respond to any release of any toxic or hazardous waste or substance
into the environment, which non-compliance or remedial action could reasonably
be expected to constitute a Material Adverse Occurrence. Except as set out
on
Schedule 4.7 attached hereto, no Borrower nor any Subsidiary has knowledge
that
it or its property will become subject to environmental laws or regulations
during the term of this Agreement, compliance with which could reasonably
be
expected to require capital expenditures which would constitute a Material
Adverse Occurrence.
Section
4.8 ERISA.
Each
Plan is in substantial compliance with all applicable requirements of ERISA
and
the Code and with all material applicable rulings and regulations issued
under
the provisions of ERISA and the Code setting forth those requirements. No
Reportable Event has occurred and is continuing with respect to any Plan.
All of
the minimum funding standards applicable to such Plans have been satisfied
and
there exists no event or condition which would reasonably be expected to
result
in the institution of proceedings to terminate any Plan under Section 4042
of
ERISA. With respect to each Plan subject to Title IV of ERISA, as of the
most
recent valuation date for such Plan, the present value (determined on the
basis
of reasonable assumptions employed by the independent actuary for such Plan
and
previously furnished in writing to the Banks)
of such
Plan’s projected benefit obligations did not exceed the fair market value of
such Plan’s assets.
Section
4.9 Federal
Reserve Regulations.
No
Borrower nor any Subsidiary is engaged principally or as one of its important
activities in the business of extending credit for the purpose of purchasing
or
carrying margin stock (as defined in Regulations T, U and X of the Board).
The
value of all margin stock owned by any Borrower does not constitute more
than
25% of the value of the assets of such Borrower.
-
40
-
Section
4.10 Title
to Property;
Leases; Liens; Subordination.
Each
Borrower and each Subsidiary has (a) good and marketable title to its real
properties and (b) good and sufficient title to, or valid, subsisting and
enforceable leasehold interest in, its other material properties, including
all
real properties, other properties and assets, referred to as owned by such
Borrower or such Subsidiary in the most recent financial statement referred
to
in Section 5.1 (other than property disposed of since the date of such financial
statements in the ordinary course of business). None of such properties is
subject to a Lien, except as allowed under 6.13. No Borrower has subordinated
any of its rights under any obligation owing to it to the rights of any other
person.
Section
4.11 Taxes.
Each
Borrower and each Subsidiary has filed all federal, state and local tax returns
required to be filed and has paid or made provision for the payment of all
taxes
due and payable pursuant to such returns and pursuant to any assessments
made
against it or any of its property and all other taxes, fees and other charges
imposed on it or any of its property by any governmental authority (other
than
taxes, fees or charges the amount or validity of which is currently being
contested in good faith by appropriate proceedings and with respect to which
reserves in accordance with GAAP have been provided on the books of such
Borrower or such Subsidiary) and other than where any such failure will not
result in a Material Adverse Occurrence. No tax Liens have been filed and
no
material claims are being asserted with respect to any such taxes, fees or
charges. The charges, accruals and reserves on the books of each Borrower
and
each Subsidiary in respect of taxes and other governmental charges are adequate
and such Borrower or such Subsidiary knows of no proposed material tax
assessment against it or any basis therefor.
Section
4.12 Trademarks,
Patents.
Each
Borrower and each Subsidiary possesses or has the right to use all of the
patents, trademarks, trade names, service marks and copyrights, and applications
therefor, and all technology, know-how, processes, methods and designs used
in
or necessary for the conduct of its business, without known conflict with
the
rights of others.
Section
4.13 Burdensome
Restrictions.
No
Borrower nor any Subsidiary is a party to or otherwise bound by any indenture,
loan or credit agreement or any lease or other agreement or instrument or
subject to any charter, corporate or partnership restriction which would
foreseeably constitute a Material Adverse Occurrence.
Section
4.14 Force
Majeure.
Since
the date of the most recent financial statement referred to in Section 5.1,
the
business, properties and other assets of the Borrowers and the Subsidiaries
have
not been materially and adversely affected in any way as the result of any
fire
or other casualty, strike, lockout, or other labor trouble, embargo, sabotage,
confiscation, condemnation, riot, civil disturbance, activity of armed forces
or
act of God.
Section
4.15 Investment
Company Act.
No
Borrower nor any Subsidiary is an “investment company” or a company “controlled”
by an investment company within the meaning of the Investment Company Act
of
1940, as amended.
-
41
-
Section
4.16 Public
Utility Holding Company Act.
No
Borrower nor any Subsidiary is a “holding company” or a “subsidiary company” of
a holding company or an “affiliate” of a holding company or of a subsidiary
company of a holding company within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
Section
4.17 Retirement
Benefits.
Except
as required under Section 4980B of the Code, Section 601 of ERISA or applicable
state law, no Borrower nor any Subsidiary is obligated to provide
post-retirement medical or insurance benefits with respect to employees or
former employees.
Section
4.18 Full
Disclosure.
Subject
to the following sentence, neither the financial statements referred to in
Section 5.1 nor any other certificate, written statement, exhibit or report
furnished by or on behalf of the Borrowers in connection with or pursuant
to
this Agreement contains any untrue statement of a material fact or omits
to
state any material fact necessary in order to make the statements contained
therein not misleading. Certificates or statements furnished by or on behalf
of
the Borrowers to the Banks
consisting of projections or forecasts of future results or events have been
prepared in good faith and based on good faith estimates and assumptions
of the
management of the Borrowers, and the Borrowers have no reason to believe
that
such projections or forecasts are not reasonable.
Section
4.19 Subsidiaries.
Except
as set forth on Schedule 4.19, no Borrower has any Subsidiaries.
Section
4.20 Labor
Matters.
There
are no pending or threatened strikes, lockouts or slowdowns against any Borrower
or any Subsidiary. No Borrower nor any Subsidiary has been or is in violation
in
any material respect of the Fair Labor Standards Act or any other applicable
Federal, state, local or foreign law dealing with such matters. All payments
due
from any Borrower or any Subsidiary on account of wages and employee health
and
welfare insurance and other benefits (in each case, except for de minimus
amounts), have been paid or accrued as a liability on the books of such Borrower
or such Subsidiary. The consummation of the transactions contemplated under
the
Loan Documents will not give rise to any right of termination or right of
renegotiation on the part of any union under any collective bargaining agreement
to which any Borrower or any Subsidiary is bound.
Section
4.21 Solvency.
After
the making of any Loan and after giving effect thereto: (a) the fair value
of
the assets of each Borrower, at a fair valuation, will exceed its debts and
liabilities, subordinated, contingent or otherwise; (b) the present fair
saleable value of the property of each Borrower will be greater than the
amount
that will be required to pay the probable liability of its debts and other
liabilities, subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (c) each Borrower will be able to
pay
its debts and liabilities, subordinated, contingent or otherwise, as such
debts
and liabilities become absolute and matured; and (d) no Borrower will not
have
unreasonably small capital with which to conduct the business in which it
is
engaged as such business is now conducted and is proposed to be conducted
following the Closing Date.
-
42
-
Section
4.22 Material
Contracts.
Schedule 4.22 sets forth a complete and accurate list of all Material Contracts
of the Borrowers and the Subsidiaries in effect as of the Closing Date and
not
listed on any other Schedule hereto. Other than as set forth on Schedule
4.22,
each such Material Contract is, and after giving effect to the consummation
of
the transactions contemplated by the Credit Agreement will be, in full force
and
effect in accordance with the terms thereof. Neither the Borrowers nor any
Subsidiary (nor, to the knowledge of the Borrowers, any other party thereto)
is
in breach or in default under any Material Contract in any material
respect.
Section
4.23 Anti-Terrorism
Law Compliance.
None of
the Borrowers is subject to or in violation of any law, regulation or list
of
any government agency including, without limitation, the U.S. Office of Foreign
Asset Control list, Executive Order 13224 or the USA Patriot Act) that prohibits
or limits the conduct of business with or receiving of funds, goods or services
to or for the benefit of certain Persons specified therein or that prohibits
or
limits any Bank from making any Advance or extension of credit to any Borrower
or from otherwise conducting business with any Borrower.
ARTICLE
V
AFFIRMATIVE
COVENANTS
Until
all
obligations of the Banks hereunder to make Revolving Loans and of the LC
Bank to
issue Letters of Credit shall have expired or been terminated and the Notes
and
all of the other Obligations have been paid in full and all outstanding Letters
of Credit shall have expired or the liability of the LC Bank thereon shall
have
otherwise been discharged:
Section
5.1 Financial
Statements
and Reports.
The
Borrowers’ Agent will furnish to the Banks:
(a) As
soon
as available and in any event within 90 days after the end of each fiscal
year
of the Borrowers, the consolidated financial statements of the Borrowers
consisting of at least statements of income, cash flow and changes in
stockholders’ equity, and a balance sheet as at the end of such year, setting
forth in comparative form corresponding figures from the previous annual
audit,
certified without qualification by Deloitte
and Touche
or other
independent certified public accountants of recognized national standing
selected by the Borrowers and acceptable to the Administrative Agent, together
with any management letters, management reports or other supplementary comments
or reports to the Borrowers or its board of directors furnished by such
accountants.
(b) As
soon
as available and in any event within 45
days
after the end of each quarter, 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).
-
43
-
(c) As
soon
as practicable and in any event within 45
days
after the end of the first three quarters of each fiscal year and 90 days
after
the end of each fiscal year, a Compliance Certificate in the form attached
hereto as Exhibit
B
signed
by the chief financial officer of the Borrowers’ Agent demonstrating in
reasonable detail compliance (or noncompliance, as the case may be) with
Section
6.15, Section 6.16 and Section 6.17 as at the end of such quarter or year
and
stating that as at the end of such quarter or year (except where such Sections
require compliance at other times) there did not exist any Default or Event
of
Default or, if such Default or Event of Default existed, specifying the nature
and period of existence thereof and what action the Borrowers propose to
take
with respect thereto.
(d) Immediately
upon any officer of any Borrower becoming aware of any Default or Event of
Default, a notice from the Borrowers’ Agent describing the nature thereof and
what action such Borrower proposes to take with respect thereto.
(e) Immediately
upon any officer of any Borrower becoming aware of the occurrence, with respect
to any Plan, of any Reportable Event or any Prohibited Transaction, a notice
from the Borrowers’ Agent specifying the nature thereof and what action such
Borrower proposes to take with respect thereto, and, when received, copies
of
any notice from PBGC of intention to terminate or have a trustee appointed
for
any Plan.
(f) Immediately
upon any officer of any Borrower becoming aware of any matter that has resulted
or is reasonably likely to result in a Material Adverse Occurrence, a notice
from the Borrowers’ Agent describing the nature thereof and what action the
Borrowers prepare to take with respect thereto.
(g) Promptly
upon the mailing
or filing thereof, copies of all financial statements, reports and proxy
statements mailed to shareholders of any Borrower, and copies of all
registration statements, periodic reports and other documents filed with
the
Securities and Exchange Commission (or any successor thereto) or any national
securities exchange.
(h) From
time
to time, such other information regarding the business, operation and financial
condition of the Borrowers and the Subsidiaries as any Bank may reasonably
request.
Section
5.2 Corporate
Existence.
Each
Borrower will maintain, and will cause each Subsidiary to maintain, its
corporate existence in good standing under the laws of its jurisdiction of
incorporation and its qualification to transact business in each jurisdiction
where failure so to qualify would permanently preclude such Borrower from
enforcing its rights with respect to any material asset or would expose such
Borrower to any material liability.
Section
5.3 Insurance.
Each
Borrower shall maintain, and shall cause each Subsidiary to maintain, with
financially sound and reputable insurance companies such insurance as may
be
required by law and such other insurance in such amounts and against such
hazards as is customary in the case of reputable firms engaged in the same
or
similar business and similarly situated.
Section
5.4 Payment
of Taxes and
Claims.
Each
Borrower shall file, and shall cause each Subsidiary to file, all tax returns
and reports which are required by law to be filed by it and will pay before
they
become delinquent all taxes, assessments and governmental charges and levies
imposed upon it or its property and all claims or demands of any kind (including
but not limited to those of suppliers, mechanics, carriers, warehouses,
landlords and other like Persons) which, if unpaid, might result in the creation
of a Lien upon its property; provided that the foregoing items need not be
paid
if they are being contested in good faith by appropriate proceedings, and
as
long as such Borrower’s or such Subsidiary’s title to its property is not
materially adversely affected, its use of such property in the ordinary course
of its business is not materially interfered with and adequate reserves with
respect thereto have been set aside on such Borrower’s or such Subsidiary’s
books in accordance with GAAP.
-
44
-
Section
5.5 Inspection.
Each
Borrower shall permit any Person designated by the Administrative Agent or
the
Majority Banks to visit and inspect any of the properties, corporate books
and
financial records of such Borrower and its Subsidiaries, to examine and to
make
copies of the books of accounts and other financial records of such Borrower
and
its Subsidiaries, and to discuss the affairs, finances and accounts of such
Borrower and its Subsidiaries with, and to be advised as to the same by,
its
officers at such reasonable times and intervals as the Administrative Agent
or
the Majority Banks may designate. So long as no Event of Default exists,
the
expenses of the Administrative Agent or the Banks for such visits, inspections
and examinations shall be at the expense of the Administrative Agent and
the
Banks, but any such visits, inspections and examinations made while any Event
of
Default is continuing shall be at the expense of such Borrower.
Section
5.6 Maintenance
of
Properties.
Each
Borrower will maintain, and will cause each Subsidiary to maintain, its
properties used or useful in the conduct of its business in good condition,
repair and working order, and supplied with all necessary equipment, and
make
all necessary repairs, renewals, replacements, betterments and improvements
thereto, all as may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all
times.
Section
5.7 Books
and Records.
Each
Borrower will keep, and will cause each Subsidiary to keep, adequate and
proper
records and books of account in which full and correct entries will be made
of
its dealings, business and affairs.
Section
5.8 Compliance.
Each
Borrower will comply, and will cause each Subsidiary to comply, in all material
respects with all laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it may be subject; provided, however,
that failure so to comply shall not be a breach of this covenant if such
failure
does not have, or is not reasonably expected to have, a materially adverse
effect on the properties, business, prospects or condition (financial or
otherwise) of such Borrower or such Subsidiary and such Borrower or such
Subsidiary is acting in good faith and with reasonable dispatch to cure such
noncompliance. Without limiting the foregoing sentence, each Borrower will
ensure that no person who owns a controlling interest in or otherwise controls
such Borrower is or shall be (i) listed on the Specially Designated Nationals
and Blocked Person List maintained by the Office of Foreign
-
45
-
Assets
Control (“OFAC”),
Department of the Treasury, and/or any other similar lists maintained by
OFAC
pursuant to any authorizing statute, Executive Order or regulation or (ii)
a
person designated under Section 1(b), (c) or (d) of Executive Order No. 13224
(September 23, 2001), any related enabling legislation or any other similar
Executive Orders, and without limiting the foregoing, each Borrower shall
comply
with all applicable Bank Secrecy Act (“BSA”)
and
anti-money laundering laws and regulations.
Section
5.9 Notice
of Litigation.
The
Borrowers’ Agent will give prompt written notice to the Administrative
Agent
of (a)
the commencement of any action, suit or proceeding before any court or
arbitrator or any governmental department, board, agency or other
instrumentality affecting any Borrower or any Subsidiary or any property
of any
Borrower or any Subsidiary or to which any Borrower or any Subsidiary is
a party
in which an adverse determination or result could constitute a Material Adverse
Occurrence, stating the nature and status of such action, suit or proceeding,
(b) any material arbitration or governmental investigation or proceeding
not
previously disclosed by the Borrowers’ Agent to the Administrative Agent which
has been instituted or, to the knowledge of the Borrowers’ Agent is threatened
against the Borrower or any Subsidiary or to which its respective property
is
subject and which, if determined adversely to any Borrower or such Subsidiary,
would constitute a Material Adverse Occurrence, and (c) any adverse development
which occurs in any litigation, arbitration or governmental investigation
or
proceeding previously disclosed by the Borrowers’ Agent to the Administrative
Agent which, if determined adversely to any Borrower or any Subsidiary, would
constitute a Material Adverse Occurrence.
Section
5.10 ERISA.
Each
Borrower will maintain, and will cause each Subsidiary to maintain, each
Plan in
compliance with all material applicable requirements of ERISA and of the
Code
and with all applicable rulings and regulations issued under the provisions
of
ERISA and of the Code and will not, and will not permit any Subsidiary or
any of
the ERISA Affiliates to (a) engage in any transaction in connection with
which
such Borrower or any Subsidiary or any of the ERISA Affiliates would be subject
to either a civil penalty assessed pursuant to Section 502(i) of ERISA or
a tax
imposed by Section 4975 of the Code, in either case in an amount exceeding
$50,000, (b) fail to make full payment when due of all amounts which, under
the
provisions of any Plan, such Borrower or any Subsidiary or any ERISA Affiliate
is required to pay as contributions thereto, or permit to exist any accumulated
funding deficiency (as such term is defined in Section 302 of ERISA and Section
412 of the Code), whether or not waived, with respect to any Plan in an
aggregate amount exceeding $50,000 or (c) fail to make any payments in an
aggregate amount exceeding $50,000 to any Multiemployer Plan that such Borrower
or any Subsidiary or any of the ERISA Affiliates may be required to make
under
any agreement relating to such Multiemployer Plan or any law pertaining
thereto.
Section
5.11 Environmental
Matters; Reporting.
Each
Borrower will observe and comply with, and will cause each Subsidiary to
observe
and comply with, all laws, rules, regulations and orders of any government
or
government agency relating to health, safety, pollution, hazardous materials
or
other environmental matters to the extent non-compliance could result in
a
Material Adverse Occurrence. The Borrowers’ Agent will give the Administrative
Agent
prompt
written notice of any violation as to any environmental matter by
-
46
-
any
Borrower or any Subsidiary and of the commencement of any judicial or
administrative proceeding relating to health, safety or environmental matters
(a) in which an adverse determination or result could result in the revocation
of or have a material adverse effect on any operating permits, air emission
permits, water discharge permits, hazardous waste permits or other permits
held
by such Borrower or any Subsidiary which are material to the operations of
such
Borrower or any Subsidiary, or (b) which will or threatens to impose a material
liability on such Borrower or any Subsidiary to any Person or which will
require
a material expenditure by such Borrower or any Subsidiary to cure any alleged
problem or violation.
Section
5.12 Compliance
with Terms
of Material Contracts.
Each
Borrower shall, and cause each Subsidiary to, make all payments and otherwise
perform all obligations in respect of all Material Contracts to which such
Borrower or such Subsidiary is a party.
Section
5.13 Further
Assurances.
Each
Borrower shall promptly correct any defect or error that may be discovered
in
any Loan Document or in the execution, acknowledgment or recordation thereof.
Promptly upon request by the Administrative Agent or the Majority Banks,
each
Borrower also shall do, execute, acknowledge, deliver, record, re-record,
file,
re-file, register and re-register, any and all assignments, transfers,
certificates, assurances and other instruments as the Administrative Agent
or
the Majority Banks may reasonable require from time to time in order: (a)
to
carry out more effectively the purposes of the Loan Documents; and (b) to
better
assure, preserve, protect and confirm unto the Banks
the
rights granted now or hereafter intended to be granted to the Banks
under
any Loan Document or under any other instrument executed in connection with
any
Loan Document or that such Borrower may be or become bound to convey, mortgage
or assign to the Administrative Agent for the benefit of the Banks in order
to
carry out the intention or facilitate the performance of the provisions of
any
Loan Document.
Section
5.14 Dissolution
of Xxxxxx’x, LLC.
The
Borrowers shall dissolve Xxxxxx’x, LLC within 90 days after the Closing
Date.
ARTICLE
VI
NEGATIVE
COVENANTS
Until
all
obligations of the Banks hereunder to make the Revolving Loans and of the
LC
Bank to issue Letters of Credit shall have expired or been terminated and
the
Notes and all of the other Obligations have been paid in full and all
outstanding Letters of Credit shall have expired or the liability of the
LC Bank
thereon shall have otherwise been discharged:
Section
6.1 Merger.
No
Borrower will merge or consolidate or enter into any analogous reorganization
or
transaction with any Person or liquidate, wind up or dissolve itself (or
suffer
any liquidation or dissolution) nor permit any Subsidiary, except as permitted
under Section 6.2, to do any of the foregoing, except that (i) any wholly-owned
Subsidiary may merge or consolidate with any Borrower provided that such
Borrower is the surviving entity of any such merger or consolidation, (ii)
any
wholly-owned Subsidiary may merge or consolidate with any other wholly-owned
Subsidiary, (iii) any Borrower may merge or consolidate with any other Borrower,
or (iv) any Subsidiary that is not a Borrower may merge or consolidate with
any
Person provided that such Subsidiary is the surviving entity of any such
merger
or consolidation and immediately after giving effect to any such merger or
consolidation no Default or Event of Default shall have occurred and be
continuing.
-
47
-
Section
6.2 Disposition
of Assets.
No
Borrower will, nor will permit any Subsidiary to, directly or indirectly,
sell,
assign, lease, convey, transfer or otherwise dispose of (whether in one
transaction or a series of transactions) any property (including accounts
and
notes receivable, with or without recourse) or enter into any agreement to
do
any of the foregoing, except:
(a) dispositions
of
inventory, or used, worn-out or surplus equipment, all in the ordinary course
of
business;
(b) sales
of unimproved
parcels of real estate that are not required or anticipated to be required
for
any Borrower’s or any Subsidiary’s business purposes;
(c) the
sale of equipment to
the extent that such equipment is exchanged for credit against the purchase
price of similar replacement equipment, or the proceeds of such sale are
applied
with reasonable promptness to the purchase price of such replacement
equipment;
(d) sales
or
transfers by a wholly-owned Subsidiary of any Borrower to a Borrower or another
wholly-owned Subsidiary of a Borrower;
(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 fiscal year 2004;
(f) commercially
reasonable securitizations of the assets of WFB;
(g) the
sale
or other disposition of (i) Investments that do not constitute Investments
in
any Borrower or any Subsidiary, and (ii) economic development bonds;
(h) the
sale, merger,
consolidation of WFB or all or substantially all of its assets, provided
that
(i) the Borrowers’ Agent provides written notice to the Administrative Agent not
less than ten (10) days prior to the closing of any such transaction, and
(ii)
at the time of and after giving effect to such transaction the Borrowers
shall
be in compliance with all of their obligations under the Loan Documents and
no
Default or Event of Default shall have occurred and be continuing;
or
(i) the
sale, merger or
consolidation of (A) any Subsidiary that is not a Borrower other than WFB
or (B)
all or substantially all of the assets of any such Subsidiary, in each case
provided that (x) the Borrowers’ Agent provides to the Administrative Agent
written notice not less than ten (10) days prior to the closing of any such
transaction, (y) the sum of the book value of the assets transferred in any
such
transactions in any consecutive 365 day period shall not exceed 25% of the
consolidated total assets of the Borrowers and the Subsidiaries as of the
end of
the most recently ended calendar month preceding any such transaction, and
(z)
at the time of, and after giving effect to, such transaction the Borrowers
shall
be in compliance with all of its obligations under the Loan Documents and
no
Default or Event of Default shall have occurred and be
continuing.
-
48
-
Section
6.3 Plans.
No
Borrower will permit, nor will allow any Subsidiary to permit, any event
to
occur or condition to exist which would permit any Plan to terminate under
any
circumstances which would cause the Lien provided for in Section 4068 of
ERISA
to attach to any assets of any Borrower or any Subsidiary; and no Borrower
will
permit, as of the most recent valuation date for any Plan subject to Title
IV of
ERISA, the present value (determined on the basis of reasonable assumptions
employed by the independent actuary for such Plan and previously furnished
in
writing to the Banks)
of such
Plan’s projected benefit obligations to exceed the fair market value of such
Plan’s assets.
Section
6.4 Change
in Nature of Business.
No
Borrower will, nor will permit any Subsidiary to, make any material change
in
the nature of the business of such Borrower or such Subsidiary, as carried
on at
the date hereof.
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 that is not a Borrower, have a value
of
less than $5,000,000. If at any time after the Closing Date the value of
the
assets of any Subsidiary that is not a Borrower, together with the value
of the
assets of each other Subsidiary that is not a Borrower, equals or exceeds
$5,000,000, 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.
Section
6.6 Negative
Pledges.
Except
as may be required by law or regulatory bodies with jurisdiction or as set
forth
on Schedule 6.6, no Borrower will permit any Subsidiary to place or allow
any
restriction, directly or indirectly, on the ability of such Subsidiary to
(a)
pay dividends or any distributions on or with respect to such Subsidiary’s
capital stock or (b) make loans or other cash payments to such Borrower.
Except
as set forth on Schedule 6.6, no Borrower will, nor permit any Subsidiary
to,
enter into any agreement, bond, note or other instrument with or for the
benefit
of any Person other than the Banks
which
would (i) prohibit such Borrower from granting, or otherwise limit the ability
of the Borrowers to grant, to the Banks
any Lien
on any assets or properties of the Borrowers, or (ii) require such Borrower
to
xxxxx x Xxxx to any other Person if such Borrower grants any Lien to the
Banks.
Section
6.7 Restricted
Payments.
No
Borrower will make any Restricted Payments, except:
-
49
-
(a) Restricted
Payments by any Borrower to any other Borrower so long as each such Borrower
remains a wholly-owned subsidiary of Cabela’s;
(b) Any
other Restricted
Payment so long as the aggregate amount of such Restricted Payments for any
fiscal year does not exceed 50% of EBITDA for the previous fiscal
year.
Section
6.8 Transactions
with
Affiliates.
No
Borrower will, nor will permit any Subsidiary to, enter into any transaction
with any Affiliate of such Borrower that is not a Borrower, except upon fair
and
reasonable terms no less favorable than such Borrower, or such Subsidiary,
would
obtain in a comparable arm’s-length transaction with a Person not an
Affiliate.
Section
6.9 Accounting
Changes.
No
Borrower will, nor will permit any Subsidiary to, make any significant change
in
accounting treatment or reporting practices, except as required by GAAP,
or
change its fiscal year.
Section
6.10 Subordinated
Debt.
No
Borrower will, nor will permit any Subsidiary to, (a) make any scheduled
payment
of the principal of or interest on any Subordinated Debt which would be
prohibited by the terms of such Subordinated Debt and any related subordination
agreement; (b) directly or indirectly make any prepayment on or purchase,
redeem
or defease any Subordinated Debt or offer to do so (whether such prepayment,
purchase or redemption, or offer with respect thereto, is voluntary or
mandatory); (c) amend or cancel the subordination provisions applicable to
any
Subordinated Debt; (d) take or omit to take any action if as a result of
such
action or omission the subordination of such Subordinated Debt, or any part
thereof, to the Obligations might be terminated, impaired or adversely affected;
or (e) omit to give the Administrative
Agent
prompt
notice of any notice received from any holder of Subordinated Debt, or any
trustee therefor, or of any default under any agreement or instrument relating
to any Subordinated Debt by reason whereof such Subordinated Debt might become
or be declared to be due or payable.
Section
6.11 Investments.
No
Borrower will, nor will permit any Subsidiary to, acquire for value, make,
have
or hold any Investments, except:
(a) Investments
existing on the date of this Agreement and described in Schedule
6.11.
(b) Travel
advances to
management personnel and employees in the ordinary course of business not
to
exceed $1,000,000 in the aggregate at any period of time between the Closing
Date and the Revolving Commitment Ending Date.
(c) Investments
in readily marketable direct obligations issued or guaranteed by the United
States or any agency thereof and supported by the full faith and credit of
the
United States.
-
50
-
(d) Certificates
of deposit or bankers’ acceptances maturing no more than one hundred twenty
(120) days from the date of creation thereof issued by commercial banks
incorporated under the laws of the United States of America, each having
combined capital, surplus and undivided profits of not less than $500,000,000
and having a rating of “A” or better by a nationally recognized rating agency;
provided, that the aggregate amount invested in such certificates of deposit
shall not at any time exceed $5,000,000 for any one such certificate of deposit
and $10,000,000 for any one such bank.
(e) Time
deposits maturing no more than thirty (30) days from the date of creation
thereof with commercial banks or savings banks or savings and loan associations
each having membership either in the FDIC or the deposits of which are insured
by the FDIC and in amounts not exceeding the maximum amounts of insurance
thereunder.
(f) Commercial
paper maturing
no more than one hundred twenty (120) days from the date of creation thereof
and
currently having the highest rating obtainable from either Standard & Poor’s
Rating Services, a division of The XxXxxx-Xxxx Companies, Inc., or Xxxxx’x
Investors Services, Inc.
(g) Repurchase
agreements
relating to securities issued or guaranteed as to principal and interest
by the
United States of America with a term of not more than seven (7) days; provided
all such agreements shall require physical delivery of the securities securing
such repurchase agreement, except those delivered through the Federal Reserve
Book Entry System.
(h) Other
readily marketable Investments in debt securities which are reasonably
acceptable to the Majority Banks.
(i) Loans
made from time to
time from one Borrower to another.
(j) Loans
or deposits by any
Borrower or any Subsidiary to or in WFB, provided
that
such loans or deposits do not exceed $75,000,000 in the aggregate at any
time
that there are Revolving Outstandings.
(k) Contributions
of capital
by any Borrower or any Subsidiary to WFB provided such contributions do not
exceed $25,000,000 in any fiscal year or $75,000,000 in the aggregate from
the
Closing Date through the Termination Date.
(l) Investments
in tax increment financing notes, sales tax bonds, or similar bond instruments
where the proceeds of those instruments are used for the sole purpose of
(i)
construction of or furnishings for a new store, distribution center or other
related facility to be used and owned or leased by any Borrower or any
Subsidiary, (ii) public infrastructure construction or improvements required
in
respect of such new store or distribution center construction, (iii) other
improvements in a common development of which such new store or distribution
center is part, or (iv) legal, underwriting and other fees and expenses incurred
by any Borrower or any Subsidiary in connection with such
instruments.
-
51
-
(m) Credit
card loans by WFB
to the extent and in the amount permitted by WFB’s Articles of Association dated
as of November 30, 2000 or retained interest in securitization transactions
involving credit card loans originated or acquired by WFB.
(n) Investments
in businesses
located in common developments of which a new store owned by any Borrower
or any
Subsidiary is part provided such Investments are in the form of contributions
by
such Borrower or such Subsidiary of unimproved parcels of real estate (or
improvements to such real estate paid for with tax increment financing notes
or
sales tax bonds) that are part of such common development but that are not
required or anticipated to be required for such new store.
(o) Investments
not to exceed the aggregate sum of the Net Cash Proceeds from the sale or
other
disposition of Investments that do not constitute Investments in any Borrower
or
any Subsidiary.
(p) Auction
rate securities, provided that no Borrower shall hold any such auction rate
security for more than one year after the acquisition thereof by such
Borrower.
(q) Other
Investments (except
an Investment by any Borrower or any Subsidiary with respect to WFB) if the
consideration therefor does not exceed $10,000,000 for any single Investment
or
$20,000,000 in the aggregate in any fiscal year.
Any
Investments under clauses (c), (d), (e) or (f) above must mature within one
year
of the acquisition thereof by the Borrowers.
Section
6.12 Indebtedness.
No
Borrower will, nor will permit any Subsidiary to, incur, create, issue, assume
or suffer to exist any Indebtedness which would cause or result in a violation
of Section 6.16.
Section
6.13 Liens.
No
Borrower will, nor will permit any Subsidiary to, create, incur, assume or
suffer to exist any Lien, or enter into, or make any commitment to enter
into,
any arrangement for the acquisition of any property through conditional sale,
lease-purchase or other title retention agreements, with respect to any property
now owned or hereafter acquired by a Borrower or a Subsidiary,
except:
(a) Liens
existing on the
date of this Agreement and disclosed on Schedule 6.13 hereto.
(b) Deposits
or pledges to secure payment of workers’ compensation, unemployment insurance,
old age pensions or other social security obligations, in the ordinary course
of
business of a Borrower or a Subsidiary.
(c)
Liens
for
taxes, fees, assessments and governmental charges not delinquent or to the
extent that payment therefor shall not at the time be required to be made
in
accordance with the provisions of Section
5.4.
-
52
-
(d) Liens
of
carriers, warehousemen, mechanics and materialmen, and other like Liens arising
in the ordinary course of business, for sums not due or to the extent that
payment therefor shall not at the time be required to be made in accordance
with
the provisions of Section
5.4.
(e) Liens
incurred or deposits or pledges made or given in connection with, or to secure
payment of, indemnity, performance or other similar bonds.
(f) Liens
securing purchase
money Indebtedness of the Borrowers and the Subsidiaries in an aggregate
amount
not to exceed $10,000,000 on any date of determination.
(g) Liens
arising solely by virtue of any statutory or common law provision relating
to
banker’s liens, rights of set-off or similar rights and remedies as to deposit
accounts or other funds maintained with a creditor depository institution;
provided that
(i) such
deposit account is not a dedicated cash collateral account and is not subject
to
restriction against access by the Borrowers or a Subsidiary in excess of
those
set forth by regulations promulgated by the Board, and (ii) such deposit
account
is not intended by the Borrowers or a Subsidiary to provide collateral to
the
depository institution.
(h) Encumbrances
in the nature of zoning restrictions, easements and rights or restrictions
of
record on the use of real property and landlord’s Liens under leases on the
premises rented, which do not materially detract from the value of such property
or impair the use thereof in the business of a Borrower or a
Subsidiary.
(i) Encumbrances
in the nature of financing statements filed by the owner of equipment subject
to
an Operating Lease.
(j) The
interest of any
lessor under any Capitalized Lease entered into after the Closing Date or
purchase money Liens on property acquired after the Closing Date; provided,
that, (i) the Indebtedness secured thereby is otherwise permitted by this
Agreement and (ii) such Liens are limited to the property acquired and do
not
secure Indebtedness other than the related Capitalized Lease Obligations
or the
purchase price of such property.
(k) Liens
securing floor plan financing for boats and all terrain vehicles in an aggregate
amount not to exceed $20,000,000 at any time.
(l) Any
other Liens if the
aggregate value therefor does not exceed $10,000,000 at any time.
-
53
-
Section
6.14 Contingent
Liabilities.
No
Borrower will, nor will permit any Subsidiary to, be or become liable on
any
Contingent Obligations except (a) Contingent Obligations existing on the
date of
this Agreement and described on Schedule 6.14, (b) Contingent Obligations
for
the benefit of the Banks or any Rate Protection Providers and described on
Schedule 6.14, (c) Contingent Obligations with respect to Indebtedness of
the
Borrowers where the proceeds of such Indebtedness are used to purchase tax
increment financing notes, sales tax bonds, or similar bond instruments as
allowed pursuant to Section 6.11(l) and, for any such Contingent Obligation
in
an amount in excess of $2,500,000, described on Schedule 6.14, or (d) Contingent
Obligations with respect to Deferred Grant Income and other forms of
governmental assistance, including grants, bonds and notes, and, for any
such
Contingent Obligation in an amount in excess of $2,500,000, described on
Schedule 6.14.
Section
6.15 Tangible
Net Worth.
The
Borrowers will not permit the Tangible Net Worth as of any Measurement Date
to
be less than the sum of (i) $350,000,000 plus
(ii) the
greater of (x) zero and (y) fifty percent (50%) of the Borrowers’ and the
Subsidiaries’ cumulative consolidated net income as determined in accordance
with GAAP for each fiscal year ending after the Closing Date.
Section
6.16 Cash
Flow Leverage
Ratio.
The
Borrowers will not permit the Cash Flow Leverage Ratio as of any Measurement
Date to be more than 3.00
to
1.00.
Section
6.17 Fixed
Charge Coverage Ratio.
The
Borrowers will not permit the Fixed Charge Coverage Ratio as of any Measurement
Date to be less than 1.50
to
1.00.
Section
6.18 Loan
Proceeds.
No
Borrower will use, nor will permit any Subsidiary to use, any part of the
proceeds of any Loan or Advances directly or indirectly, and whether
immediately, incidentally or ultimately, (a) to purchase or carry margin
stock
(as defined in Regulation U of the Board) or to extend credit to others for
the
purpose of purchasing or carrying margin stock or to refund Indebtedness
originally incurred for such purpose or (b) for any purpose which entails
a
violation of, or which is inconsistent with, the provisions of Regulations
U or
X of the Board.
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.
Section
6.20 Intercreditor
Agreement.
The
Borrower shall not fail to deliver to the Administrative Agent, within 45
days
after the Closing Date, the Intercreditor Agreement, duly executed by the
parties thereto.
ARTICLE
VII
EVENTS
OF DEFAULT AND REMEDIES
Section
7.1 Events
of Default.
The
occurrence of any one or more of the following events shall constitute an
Event
of Default:
-
54
-
(a) The
Borrowers shall fail
to make when due, whether by acceleration or otherwise, any payment of principal
of or interest on any Note or any other Obligation required to be made to
the
Administrative Agent, the LC Bank or any Bank pursuant to this Agreement.
(b) Any
representation or warranty made by or on behalf of the Borrowers or any
Subsidiary in this Agreement or any other Loan Document or by or on behalf
of
the Borrowers or any Subsidiary in any certificate, statement, report or
document herewith or hereafter furnished to any Bank or the Administrative
Agent
pursuant to this Agreement or any other Loan Document shall prove to have
been
false or misleading in any material respect on the date as of which the facts
set forth are stated or certified.
(c) The
Borrowers shall fail
to comply with Sections 5.2, 5.3 or 5.4 hereof or any Section of Article
VI
hereof.
(d) The
Borrowers shall fail
to comply with any other agreement, covenant, condition, provision or term
contained in this Agreement (other than those hereinabove set forth in this
Section 7.1) and such failure to comply shall continue for 30
calendar
days after whichever of the following dates is the earliest: (i) the date
a
Borrower or the Borrowers’ Agent gives notice of such failure to the
Banks,
(ii)
the date a Borrower or the Borrowers’ Agent should have given notice of such
failure to the Banks pursuant to Section 5.1, or (iii) the date the
Administrative Agent or any Bank gives notice of such failure to the Borrowers’
Agent.
(e) Any
Borrower or any Subsidiary with assets of more than $10,000,000 shall become
insolvent or shall generally not pay its debts as they mature or shall apply
for, shall consent to, or shall acquiesce in the appointment of a custodian,
trustee or receiver of such Borrower or such Subsidiary or for a substantial
part of the property thereof or, in the absence of such application, consent
or
acquiescence, a custodian, trustee or receiver shall be appointed for any
Borrower or any Subsidiary or for a substantial part of the property thereof
and
shall not be discharged within 45 days, or any Borrower or any Subsidiary
shall
make an assignment for the benefit of creditors.
(f) Any
bankruptcy,
reorganization, debt arrangement or other proceedings under any bankruptcy
or
insolvency law shall be instituted by or against any Borrower or any Subsidiary,
and, if instituted against any Borrower or any Subsidiary with assets of
more
than $10,000,000, shall have been consented to or acquiesced in by such Borrower
or such Subsidiary, or shall remain undismissed for 60 days, or an order
for
relief shall have been entered against such Borrower or such
Subsidiary.
(g) Any
dissolution or
liquidation proceeding shall be instituted by or against any Borrower or
any
Subsidiary with assets of more than $10,000,000, and, if instituted against
any
Borrower or any Subsidiary, shall be consented to or acquiesced in by such
Borrower or such Subsidiary or shall remain for 45 days
undismissed.
-
55
-
(h) A
judgment or judgments
for the payment of money in excess of the sum of $5,000,000 in the aggregate
shall be rendered against any Borrower or any Subsidiary and either (i) the
judgment creditor executes on such judgment or (ii) such judgment remains
unpaid
or undischarged for more than 60 days from the date of entry thereof or such
longer period during which execution of such judgment shall be stayed during
an
appeal from such judgment.
(i) The
maturity of any
material Indebtedness of the Borrowers (other than Indebtedness under this
Agreement) or any Subsidiary shall be accelerated, or the Borrowers or any
Subsidiary shall fail to pay any such material Indebtedness when due (after
the
lapse of any applicable grace period) or, in the case of such Indebtedness
payable on demand, when demanded (after the lapse of any applicable grace
period), or any event shall occur or condition shall exist and shall continue
for more than the period of grace, if any, applicable thereto and shall have
the
effect of causing, or permitting the holder of any such Indebtedness or any
trustee or other Person acting on behalf of such holder to cause, such material
Indebtedness to become due prior to its stated maturity or to realize upon
any
collateral given as security therefor. For purposes of this Section,
Indebtedness of the Borrowers shall be deemed “material” if it exceeds
$5,000,000 as to any item of Indebtedness or in the aggregate for all items
of
Indebtedness with respect to which any of the events described in this Section
7.1(j) has occurred.
(j) Any
execution or
attachment shall be issued whereby any substantial part of the property of
any
Borrower or any Subsidiary shall be taken or attempted to be taken and the
same
shall not have been vacated or stayed within 30 days after the issuance
thereof.
(k) Any
Loan Document shall,
at any time, cease to be in full force and effect or shall be judicially
declared null and void, or the validity or enforceability thereof shall be
contested by any Borrower or any Subsidiary, other than by action or inaction
of
the Administrative Agent or the Banks if any of the foregoing shall remain
unremedied for ten days or more after receipt of notice thereof by the
Borrowers’ Agent from the Administrative Agent.
(l) Any
Change of Control
shall occur.
(m) Any
Borrower or any
Subsidiary shall fail to pay any amount payable in respect of any Rate
Protection Agreement when the same becomes due and payable (whether by scheduled
payment, termination or otherwise), and such failure shall continue after
the
applicable grace period, if any, specified in such Rate Protection
Agreement.
Section
7.2 Remedies.
If (a)
any Event of Default described in Sections 7.1 (e), (f) or (g) shall occur
with
respect to any Borrower, the Commitments and the Swing Line Commitment shall
automatically terminate and the Notes and all other Obligations shall
automatically become immediately due and payable, and the Borrowers shall
without demand pay into the Holding
-
56
-
Account
an amount equal to the aggregate face amount of all outstanding Letters of
Credit; or (b) any other Event of Default shall occur and be continuing,
then,
upon receipt by the Administrative Agent of a request in writing from the
Majority Banks, the Administrative Agent shall take any of the following
actions
so requested: (i) declare the Commitments and Swing Line Commitment terminated,
whereupon the Commitments and the Swing Line Commitment shall terminate,
(ii)
declare the outstanding unpaid principal balance of the Notes, the accrued
and
unpaid interest thereon and all other Obligations to be forthwith due and
payable, whereupon the Notes, all accrued and unpaid interest thereon and
all
such Obligations shall immediately become due and payable, in each case without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived, anything in this Agreement or in the Notes to the
contrary notwithstanding, and (iii) demand that the Borrowers pay into the
Holding Account an amount equal to the aggregate face amount of all outstanding
Letters of Credit. Upon the occurrence of any of the events described in
clause
(a) of the preceding sentence, or upon the occurrence of any of the events
described in clause (b) of the preceding sentence when so requested by the
Majority Banks, Eurodollar Rate Advances shall cease to be available and
all
outstanding Eurodollar Rate Advances shall be converted into Prime Rate Advances
upon the expiration of each Interest Period applicable to such Eurodollar
Rate
Advances, and the Administrative Agent may exercise all rights and remedies
under any of the Loan Documents, and enforce all rights and remedies under
any
applicable law.
Section
7.3 Offset.
In
addition to the remedies set forth in Section 7.2, upon the occurrence of
any
Event of Default and thereafter while the same be continuing, the Borrowers
hereby irrevocably authorizes each Bank to set off any Obligations owed to
such
Bank against all deposits and credits of the Borrowers with, and any and
all
claims of the Borrowers against, such Bank. Such right shall exist whether
or
not such Bank shall have made any demand hereunder or under any other Loan
Document, whether or not the Obligations, or any part thereof, or deposits
and
credits held for the account of the Borrowers is or are matured or unmatured,
and regardless of the existence or adequacy of any collateral, guaranty or
any
other security, right or remedy available to such Bank or the Banks. Each
Bank
agrees that, as promptly as is reasonably possible after the exercise of
any
such setoff right, it shall notify the Borrowers’ Agent of its exercise of such
setoff right; provided, however, that the failure of such Bank to provide
such
notice shall not affect the validity of the exercise of such setoff rights.
Nothing in this Agreement shall be deemed a waiver or prohibition of or
restriction on any Bank to all rights of banker’s Lien, setoff and counterclaim
available pursuant to law.
ARTICLE
VIII
THE
ADMINISTRATIVE AGENT
The
following provisions shall govern the relationship of the Administrative
Agent
with the Banks.
Section
8.1 Appointment
and Authorization.
Each
Bank appoints and authorizes the Administrative Agent to take such action
as
Administrative Agent on its behalf and to exercise such respective powers
under
the Loan Documents as are delegated to the Administrative Agent by the terms
thereof, together with such powers as are reasonably incidental thereto.
Neither
the
-
57
-
Administrative
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. The
Administrative Agent shall act as an independent contractor in performing
its
obligations as Administrative Agent hereunder. The duties of the Administrative
Agent shall be mechanical and administrative in nature and nothing herein
contained shall be deemed to create any fiduciary relationship among or between
the Administrative Agent, any Borrower or the Banks.
Section
8.2 Note
Holders.
The
Administrative 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 the Administrative Agent.
Section
8.3 Consultation
With
Counsel.
The
Administrative Agent may consult with legal counsel selected by it and shall
not
be liable for any action taken or suffered in good faith by it in accordance
with the advice of such counsel.
Section
8.4 Loan
Documents.
The
Administrative Agent shall not be responsible to any Bank for any recitals,
statements, representations or warranties in any Loan Document or be under
a
duty to examine or pass upon the validity, effectiveness, genuineness or
value
of any of the Loan Documents or any other instrument or document furnished
pursuant thereto, and the Administrative Agent shall be entitled to assume
that
the same are valid, effective and genuine and what they purport to
be.
Section
8.5 USBNA
and
Affiliates.
With
respect to its Commitments and the Loans made by it, USBNA shall have the
same
rights and powers under the Loan Documents as any other Bank and may exercise
the same as though it were not the Administrative Agent consistent with the
terms thereof, and USBNA and its Affiliates may accept deposits from, lend
money
to and generally engage in any kind of business with the Borrowers as if
it were
not the Administrative Agent.
Section
8.6 Action
by Administrative Agent.
Except
as may otherwise be expressly stated in this Agreement, the Administrative
Agent
shall be entitled to use its discretion with respect to exercising or refraining
from exercising any rights which may be vested in it by, or with respect
to
taking or refraining from taking any action or actions which it may be able
to
take under or in respect of, the Loan Documents. The Administrative Agent
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 the Majority Banks,
and such instructions shall be binding upon all holders of Notes; provided,
however, that the Administrative Agent shall not be required to take any
action
which exposes the Administrative Agent to personal liability or which is
contrary to the Loan Documents or applicable law. The Administrative 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 and to be consistent with the terms of this Agreement.
-
58
-
Section
8.7 Credit
Analysis.
Each
Bank has made, and shall continue to make, its own independent investigation
or
evaluation of the operations, business, property and condition, financial
and
otherwise, of the Borrowers in connection with entering into this Agreement
and
has made its own appraisal of the creditworthiness of the Borrowers. Except
as
explicitly provided herein, the Administrative Agent has no duty or
responsibility, either initially or on a continuing basis, to provide any
Bank
with any credit or other information with respect to such operations, business,
property, condition or creditworthiness, whether such information comes into
its
possession on or before the first Event of Default or at any time
thereafter.
Section
8.8 Notices
of Event of
Default, Etc.
In the
event that the Administrative Agent shall have acquired actual knowledge
of any
Event of Default or Default, the Administrative Agent shall promptly give
notice
thereof to the Banks. The Administrative Agent shall not be deemed to have
knowledge or notice of any Default or Event of Default, except with respect
to
actual defaults in the payment of principal, interest and fees required to
be
paid to the Administrative Agent for the account of the Banks, unless the
Administrative Agent shall have received written notice from a Bank or a
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a “Notice of Default.”
Section
8.9 Indemnification.
Each
Bank agrees to indemnify the Administrative Agent, as Administrative Agent
(to
the extent not reimbursed by the Borrowers), ratably according to such Bank’s
share of the aggregate Revolving Loan Commitment Amounts 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 or incurred by the Administrative Agent
in
any way relating to or arising out of the Loan Documents or any action taken
or
omitted by the Administrative 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 the Administrative Agent’s gross negligence or willful
misconduct. No payment by any Bank under this Section shall relieve the
Borrowers of any of its obligations under this Agreement.
Section
8.10 Payments
and Collections.
All
funds received by the Administrative Agent in respect of any payments made
by
the Borrowers on the Revolving Notes, Revolving Commitment Fees or Letter
of
Credit Fees shall be distributed forthwith by the Administrative Agent among
the
Banks, in like currency and funds as received, ratably according to each
Bank’s
Revolving Percentage. After any Event of Default has occurred, all funds
received by the Administrative Agent, whether as payments by the Borrowers
or as
realization on collateral or on any guaranties,
shall (except as may otherwise be required by law) be distributed by the
Administrative Agent in the following order: (a) first to the Administrative
Agent or any Bank who has incurred unreimbursed costs of collection with
respect
to any Obligations hereunder, ratably to the Administrative Agent and each
Bank
in the proportion that the costs incurred by the Administrative Agent or
such
Bank bear to the total of all such costs incurred by the Administrative Agent
and all Banks; (b) next to the Administrative Agent for the account of the
Banks
(in accordance with their respective Revolving Percentages) for any unpaid
Revolving Commitment Fees or Letter of Credit Fees owing by the Borrowers
hereunder; (c) next to the
-
59
-
Administrative
Agent for the account of the Banks (in accordance with their respective Total
Percentages) for application to interest on the Notes and any Rate Protection
Obligations; (d) next to the Administrative Agent for the account of the
Banks
(in accordance with their respective Total Percentages) for application to
principal on the Notes and any Rate Protection Obligations; and (e) last
to the
Administrative Agent to be held in the Holding Account to cover any outstanding
Letters of Credit.
Section
8.11 Sharing
of
Payments.
If any
Bank shall receive and retain any payment, voluntary or involuntary, whether
by
setoff, application of deposit balance or security, or otherwise, in respect
of
Indebtedness under this Agreement or the Notes in excess of such Bank’s share
thereof as determined under this Agreement, then such Bank shall purchase
from
the other Banks for cash and at face value and without recourse, such
participation in the Notes held by such other Banks as shall be necessary
to
cause such excess payment to be shared ratably as aforesaid with such other
Banks; provided, that if such excess payment or part thereof is thereafter
recovered from such purchasing Bank, the related purchases from the other
Banks
shall be rescinded ratably and the purchase price restored as to the portion
of
such excess payment so recovered, but without interest. Subject to the
participation purchase obligation above, each Bank agrees to exercise any
and
all rights of setoff, counterclaim or banker’s lien first fully against any
Notes and participations therein held by such Bank, next to any other
Indebtedness of the Borrowers to such Bank arising under or pursuant to this
Agreement and to any participations held by such Bank in Indebtedness of
the
Borrowers arising under or pursuant to this Agreement, and only then to any
other Indebtedness of the Borrowers to such Bank.
Section
8.12 Advice
to Banks.
The
Administrative Agent shall forward to the Banks copies of all notices, financial
reports and other communications received hereunder from the Borrowers by
it as
Administrative Agent, excluding, however, notices, reports and communications
which by the terms hereof are to be furnished by the Borrowers directly to
each
Bank.
Section
8.13 Defaulting
Bank.
(a) Remedies
Against a
Defaulting Bank.
In
addition to the rights and remedies that may be available to the Administrative
Agent or the Borrowers under this Agreement or applicable law, if at any
time a
Bank is a Defaulting Bank such Defaulting Bank’s right to participate in the
administration of the Loans, this Agreement and the other Loan Documents,
including without limitation, any right to vote in respect of, to consent
to or
to direct any action or inaction of the Administrative Agent or to be taken
into
account in the calculation of the Majority Banks, shall be suspended while
such
Bank remains a Defaulting Bank. If a Bank is a Defaulting Bank because it
has
failed to make timely payment to the Administrative Agent of any amount required
to be paid to the Administrative Agent hereunder (without giving effect to
any
notice or cure periods), in addition to other rights and remedies which the
Administrative Agent or the Borrowers may have under the immediately preceding
provisions or otherwise, the Administrative Agent shall be entitled (i) to
collect interest from such Defaulting Bank on such delinquent payment for
the
period from the date on which the payment was due until the
-
60
-
date
on
which the payment is made at the overnight Federal Funds rate, (ii) to withhold
or setoff and to apply in satisfaction of the defaulted payment and any related
interest, any amounts otherwise payable to such Defaulting Bank under this
Agreement or any other Loan Document until such defaulted payment and related
interest has been paid in full and such default no longer exists and (iii)
to
bring an action or suit against such Defaulting Bank in a court of competent
jurisdiction to recover the defaulted amount and any related interest. Any
amounts received by the Administrative Agent in respect of a Defaulting Bank’s
Loans shall not be paid to such Defaulting Bank and shall be held uninvested
by
the Administrative Agent and either applied against the purchase price of
such
Loans under the following subsection (b) or paid to such Defaulting Bank
upon
the default of such Defaulting Bank being cured.
(b) Purchase
from Defaulting Bank.
Any
Bank that is not a Defaulting Bank shall have the right, but not the obligation,
in its sole discretion, to acquire all of a Defaulting Bank’s Commitments. If
more than one Bank exercises such right, each such Bank shall have the right
to
acquire such proportion of such Defaulting Bank’s Commitments on a pro rata
basis. Upon any such purchase, the Defaulting Bank’s interest in its Loans and
its rights hereunder (but not its liability in respect thereof or under the
Loan
Documents or this Agreement to the extent the same relate to the period prior
to
the effective date of the purchase) shall terminate on the date of purchase,
and
the Defaulting Bank shall promptly execute all documents reasonably requested
to
surrender and transfer such interest to the purchaser thereof subject to
and in
accordance with the requirements set forth in Section
9.6,
including an Assignment in form acceptable to the Administrative Agent. The
purchase price for the Commitments of a Defaulting Bank shall be equal to
the
amount of the principal balance of the Loans outstanding and owed by the
Borrowers to the Defaulting Bank. The purchaser shall pay to the Defaulting
Bank
in Immediately Available Funds on the date of such purchase the principal
of and
accrued and unpaid interest and fees on the Loans made by such Defaulting
Bank
hereunder (it being understood that such accrued and unpaid interest and
fees
may be paid pro rata to the purchasing Bank and the Defaulting Bank by the
Administrative Agent at a subsequent date upon receipt of payment of such
amounts from the Borrowers). Prior to payment of such purchase price to a
Defaulting Bank, the Administrative Agent shall apply against such purchase
price any amounts retained by the Administrative Agent pursuant to the last
sentence of the immediately preceding subsection (a). The Defaulting Bank
shall
be entitled to receive amounts owed to it by the Borrowers under the Loan
Documents which accrued prior to the date of the default by the Defaulting
Bank,
to the extent the same are received by the Administrative Agent from or on
behalf of the Borrowers. There shall be no recourse against any Bank or the
Administrative Agent for the payment of such sums except to the extent of
the
receipt of payments from any other party or in respect of the
Loans.
-
61
-
Section
8.14 Resignation.
If at
any time USBNA shall deem it advisable, in its sole discretion, it may submit
to
each of the Banks and the Borrowers’ Agent a written notification of its
resignation as Administrative Agent under this Agreement, such resignation
to be
effective upon the appointment of a successor Administrative Agent, but in
no
event later than 30 days from the date of such notice. Upon submission of
such
notice, the Majority Banks may appoint a successor Administrative
Agent.
ARTICLE
IX
MISCELLANEOUS
Section
9.1 Modifications.
Notwithstanding any provisions to the contrary herein, any term of this
Agreement may be amended with the written consent of the Borrowers; provided
that no amendment, modification or waiver of any provision of this Agreement
or
any other Loan Document or consent to any departure therefrom by the Borrowers
or other party thereto shall in any event be effective unless the same shall
be
in writing and signed by the Majority Banks, and then such amendment,
modification, waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Notwithstanding the forgoing, no such
amendment, modification, waiver or consent shall:
(a) Reduce
the rate or extend
the time of payment of interest thereon, or reduce the amount of the principal
thereof, or modify any of the provisions of any Note with respect to the
payment
or repayment thereof, without the consent of the holder of each Note so
affected; or
(b) Increase
the amount or extend the time of any Commitment of any Bank, without the
consent
of such Bank; or
(c) Reduce
the rate or extend the time of payment of any fee payable to a Bank, without
the
consent of the Bank affected; or
(d) Except
as may otherwise
be expressly provided in any of the other Loan Documents, release any material
portion of collateral securing, or any guaranties for, all or any part of
the
Obligations without the consent of all the Banks; or
(e) Amend
or modify the
definition of Majority Banks or otherwise reduce the percentage of the Banks
required to approve or effectuate any such amendment, modification, waiver,
or
consent, without the consent of all the Banks; or
(f) Amend,
modify or waive
any provision of Section 2.3 without the written consent of the Majority
Banks
and Swing Line Bank; or
(g) Amend,
modify or waive
any of the foregoing Subsections (a) through (e) of this Section or this
Subsection (f) without the consent of all the Banks; or
-
62
-
(h) Amend,
modify or waive
any provision of this Agreement relating to the Administrative Agent in its
capacity as Administrative Agent without the consent of the Administrative
Agent; or
(i) Amend,
modify or waive
any provision of this Agreement relating to the issuance of Letters of Credit
without the consent of the Majority Banks and LC Bank.
Section
9.2 Expenses.
Whether
or not the transactions contemplated hereby are consummated, the Borrowers
shall
pay all reasonable out-of-pocket expenses incurred by the Administrative
Agent,
including the reasonable fees, charges and disbursements of outside counsel
of
the Administrative Agent (determined on the basis of such counsel’s generally
applicable rates, which may be higher than the rates such counsel charges
the
Administrative Agent in certain matters) and/or the allocated costs of in-house
counsel incurred from time to time in connection with the negotiation,
preparation, approval, review, execution, delivery, administration, amendment,
modification and interpretation of this Agreement and the other Loan Documents
and any commitment letters relating thereto. The Borrowers shall also reimburse
the Administrative Agent and each Bank upon demand for all reasonable
out-of-pocket expenses (including expenses of legal counsel) paid or incurred
by
the Administrative Agent or any Bank in connection with the collection and
enforcement of this Agreement and any other Loan Document. The obligations
of
the Borrowers under this Section shall survive any termination of this
Agreement.
Section
9.3 Waivers,
etc.
No
failure on the part of the Administrative Agent or the holder of a Note to
exercise and no delay in exercising any power or right hereunder or under
any
other Loan Document shall operate as a waiver thereof; nor shall any single
or
partial exercise of any power or right preclude any other or further exercise
thereof or the exercise of any other power or right. The remedies herein
and in
the other Loan Documents provided are cumulative and not exclusive of any
remedies provided by law.
Section
9.4 Notices.
Except
when telephonic notice is expressly authorized by this Agreement, any notice
or
other communication to any party in connection with this Agreement shall
be in
writing and shall be sent by manual delivery, telegram, telex, facsimile
transmission, overnight courier or United States mail (postage prepaid)
addressed to such party at the address specified on the signature page hereof,
or at such other address as such party shall have specified to the other
party
hereto in writing. All periods of notice shall be measured from the date
of
delivery thereof if manually delivered, from the date of sending thereof
if sent
by telegram, telex or facsimile transmission, from the first Business Day
after
the date of sending if sent by overnight courier, or from four days after
the
date of mailing if mailed; provided, however, that any notice to the
Administrative Agent or any Bank under Article II hereof shall be deemed
to have
been given only when received by the Administrative Agent or such
Bank.
Section
9.5 Taxes.
The
Borrowers agree to pay, and save the Administrative Agent and the Banks harmless
from all liability for, any stamp or other taxes which may be payable with
respect to the execution or delivery of this Agreement or the issuance of
the
Notes, which obligation of the Borrowers shall survive the termination of
this
Agreement.
-
63
-
Section
9.6 Successors
and Assigns; Participations; Foreign and Purchasing Banks.
(a) This
Agreement shall be
binding upon and inure to the benefit of the Borrowers, the Administrative
Agent, the Banks, all future holders of the Notes, and their respective
successors and assigns, except that the Borrowers may not assign or transfer
any
of its rights or obligations under this Agreement without the prior written
consent of each Bank.
(b) Any
Bank may, in the
ordinary course of its commercial banking business and in accordance with
applicable law, at any time sell to one or more banks or other entities
(“Participants”)
participating interests in a minimum aggregate amount of $5,000,000 in any
Revolving Loan or other Obligation owing to such Bank, any Revolving Note
held
by such Bank, and any Revolving Commitment of such Bank, or any other interest
of such Bank hereunder. In the event of any such sale by a Bank of participating
interests to a Participant, (i) such Bank’s obligations under this Agreement to
the other parties to this Agreement shall remain unchanged, (ii) such Bank
shall
remain solely responsible for the performance thereof, (iii) such Bank shall
remain the holder of any such Revolving Note for all purposes under this
Agreement, (iv) the Borrowers, the Borrowers’ Agent and the Administrative Agent
shall continue to deal solely and directly with such Bank in connection with
such Bank’s rights and obligations under this Agreement and (v) the agreement
pursuant to which such Participant acquires its participating interest herein
shall provide that such Bank shall retain the sole right and responsibility
to
enforce the Obligations, including, without limitation the right to consent
or
agree to any amendment, modification, consent or waiver with respect to this
Agreement or any other Loan Document, provided that such agreement may provide
that such Bank will not consent or agree to any such amendment, modification,
consent or waiver with respect to the matters set forth in Sections 9.1(a)
- (e)
without the prior consent of such Participant. Each Borrower agrees that
if
amounts outstanding under this Agreement, the Revolving Notes and the Loan
Documents are due and unpaid, or shall have been declared or shall have become
due and payable upon the occurrence of an Event of Default, each Participant
shall be deemed to have, to the extent permitted by applicable law, the right
of
setoff in respect of its participating interest in amounts owing under this
Agreement and any Revolving Note or other Loan Document to the same extent
as if
the amount of its participating interest were owing directly to it as a Bank
under this Agreement or any Revolving Note or other Loan Document; provided,
that
such right of setoff shall be subject to the obligation of such Participant
to
share with the Banks, and the Banks agree to share with such Participant,
as
provided in subsection 8.11. Each Borrower also agrees that each Participant
shall be entitled to the benefits of subsections 2.21, 2.22, 2.23, 2.24 and
9.2
with respect to its participation in the Revolving Commitments and Revolving
Loans; provided,
that no
Participant shall be entitled to receive any greater amount pursuant to such
subsections than the transferor Bank would have been entitled to receive
in
respect of the amount of the participation transferred by such transferor
Bank
to such Participant had no such transfer occurred.
-
64
-
(c) Each
Bank may, from time
to time, with
the
consent of the Administrative Agent, and the Borrowers’ Agent (none of which
consents shall be unreasonably withheld; and if an Event of Default shall
have
occurred and be continuing, then consent of the Borrowers’ Agent shall not be
required) assign to other lenders (each, an “Assignee”)
all or
part of its rights or obligations hereunder or under any other Loan Document
in
a minimum aggregate amount of $5,000,000 evidenced by any Revolving Note
then
held by that Bank, together with equivalent proportions of its Revolving
Commitment or the Swing Line Commitment, together with the Swing Line Note,
pursuant to a written agreement executed by such assigning Bank, such
Assignee(s), the Borrowers’ Agent, and the Administrative Agent in substantially
the form of Exhibit
C,
which
agreements shall specify in each instance the portion of the Obligations
evidenced by the Revolving Notes which are to be assigned to each Assignee
and
the portion of the Revolving Commitment or the Swing Line Commitment of such
Bank to be assumed by each Assignee (each, an “Assignment
Agreement”);
provided,
however,
that
the assigning Bank must pay to the Administrative Agent a processing and
recordation fee of $3,500
and, in the case of an assignment of the Swing Line Commitment, such assignment
may only be made to a Bank that holds a Commitment hereunder and must be
of the
entire Swing Line Commitment. Upon the execution of each Assignment Agreement
by
the assigning Bank, the relevant Assignee, the Borrowers’ Agent, and the
Administrative Agent, payment to the assigning Bank by such Assignee of the
purchase price for the portion of the Obligations being acquired by it and
receipt by the Borrowers’ Agent of a copy of the relevant Assignment Agreement,
(x) such Assignee lender shall thereupon become a “Bank” for all purposes of
this Agreement with a Revolving Commitment in the amount set forth in such
Assignment Agreement and with all the rights, powers and obligations afforded
a
Bank under this Agreement, (y) such assigning Bank shall have no further
liability for funding the portion of its Commitment assumed by such Assignee
and
(z) the address for notices to such Assignee shall be as specified in the
Assignment Agreement executed by it. Concurrently with the execution and
delivery of each Assignment Agreement, the assigning Bank shall surrender
to the
Administrative Agent the applicable Revolving Note and the Borrowers shall
execute and deliver a Revolving Note to the Assignee in the amount of its
Revolving Commitment, and a new Revolving Note to the assigning Bank in the
amount of its Revolving Commitment, respectively, after giving effect to
the
reduction occasioned by such assignment, all such Notes to constitute “Revolving
Notes” for all purposes of this Agreement and of the other Loan Documents. In
the case of the assignment of the Swing Line Commitment, the Assignee shall
become the “Swing Line Bank” for all purposes of this Agreement, and the
assigning Bank shall assign the Swing Line Note by allonge to the Assignee.
(d) The
Borrowers shall not
be liable for any costs incurred by the Banks in effecting any participation
under subparagraph (b) of this subsection or by the Banks in effecting any
assignment under subparagraph (c) of this subsection.
-
65
-
(e) Each
Bank
may disclose to any Assignee or Participant and to any prospective Assignee
or
Participant any and all financial information in such Bank’s possession
concerning either Borrower or any of its Subsidiaries (if any) which has
been
delivered to such Bank by or on behalf of either Borrower or any of its
Subsidiaries pursuant to this Agreement or which has been delivered to such
Bank
by or on behalf of either Borrower or any of its Subsidiaries in connection
with
such Bank’s credit evaluation of such Borrower or any of its Subsidiaries prior
to entering into this Agreement, provided
that
prior to disclosing such information, such Bank shall first obtain the agreement
of such prospective Participant to comply with the provisions of Section
9.7.
(f) Notwithstanding
any other provision in this Agreement, any Bank may at any time create a
security interest in, or pledge, all or any portion of its rights under and
interest in this Agreement and any note held by it in favor of any federal
reserve bank in accordance with Regulation A of the Board or U. S. Treasury
Regulation 31 CFR § 203.14, and such Federal Reserve Bank may enforce such
pledge or security interest in any manner permitted under applicable law.
Section
9.7 Confidentiality
of
Information.
The
Administrative Agent and each Bank shall use reasonable efforts to assure
that
information about the Borrowers and their operations, affairs and financial
condition, not generally disclosed to the public or to trade and other
creditors, which is furnished to the Administrative Agent or such Bank pursuant
to the provisions hereof is used only for the purposes of this Agreement
and any
other relationship between any Bank and the Borrowers and shall not be divulged
to any Person other than the Banks, their Affiliates and their respective
officers, directors, employees and Administrative Agents, except: (a) to
their
attorneys and accountants, (b) in connection with the enforcement of the
rights
of the Administrative Agent or the Banks
under
the Loan Documents or otherwise in connection with applicable litigation,
(c) in
connection with assignments and participations and the solicitation of
prospective assignees and participants referred to in the immediately preceding
Section, (d) if such information is generally available to the public other
then
as a result of disclosure by the Administrative Agent or a Bank, (e) to any
direct or indirect contractual counterparty in any hedging arrangement or
such
contractual counterparty’s professional advisor, (f) to any nationally
recognized rating agency that requires information about a Bank investment
portfolio in connection with ratings issued with respect to such Bank, and
(g)
as may otherwise be required or requested by any regulatory authority having
jurisdiction over the Administrative Agent or any Bank or by any applicable
law,
rule, regulation or judicial process, the opinion of the Administrative Agent’s
or such Bank’s counsel concerning the making of such disclosure to be binding on
the parties hereto. Neither the Administrative Agent nor any Bank shall incur
any liability to the Borrowers by reason of any disclosure permitted by this
Section.
Section
9.8 Governing
Law and Construction.
THE
VALIDITY, CONSTRUCTION AND ENFORCEABILITY OF THIS AGREEMENT AND THE NOTES
SHALL
BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEBRASKA,
WITHOUT
GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF, BUT GIVING EFFECT TO
FEDERAL LAWS OF THE UNITED STATES APPLICABLE TO NATIONAL BANKS AND FEDERAL
SAVINGS BANKS. Whenever possible, each provision of this
-
66
-
Agreement
and the other Loan 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 and valid under such applicable
law, but, if any provision of this Agreement, the other Loan Documents or
any
other statement, instrument or transaction contemplated hereby or thereby
or
relating hereto or thereto shall be held to be prohibited or invalid under
such
applicable law, such provision shall be ineffective only to the extent of
such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement, the other Loan Documents or
any
other statement, instrument or transaction contemplated hereby or thereby
or
relating hereto or thereto.
Section
9.9 Consent
to
Jurisdiction.
AT THE OPTION OF THE ADMINISTRATIVE AGENT, THIS AGREEMENT AND THE OTHER BORROWER
LOAN DOCUMENTS MAY BE ENFORCED IN ANY FEDERAL COURT OR NEBRASKA
STATE COURT SITTING IN LANCASTER OR XXXXXXX
COUNTY;
AND THE BORROWER CONSENTS TO THE JURISDICTION AND VENUE OF ANY SUCH COURT
AND
WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUMS IS NOT CONVENIENT. IN THE EVENT
ANY BORROWER COMMENCES ANY ACTION IN ANOTHER JURISDICTION OR VENUE UNDER
ANY
TORT OR CONTRACT THEORY ARISING DIRECTLY OR INDIRECTLY FROM THE RELATIONSHIP
CREATED BY THIS AGREEMENT, THE ADMINISTRATIVE
AGENT
AT ITS OPTION SHALL BE ENTITLED TO HAVE THE CASE TRANSFERRED TO ONE OF THE
JURISDICTIONS AND VENUES ABOVE-DESCRIBED, OR IF SUCH TRANSFER CANNOT BE
ACCOMPLISHED UNDER APPLICABLE LAW, TO HAVE SUCH CASE DISMISSED WITHOUT
PREJUDICE.
Section
9.10 Waiver
of Jury Trial.
EACH OF THE BORROWER , THE ADMINISTRATIVE AGENT AND EACH BANK IRREVOCABLY
WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
Section
9.11 Survival
of
Agreement.
All
representations, warranties, covenants and agreement made by each Borrower
herein or in the other Loan Documents and in the certificates or other
instruments prepared or delivered in connection with or pursuant to this
Agreement or any other Loan Document shall be deemed to have been relied
upon by
the Banks and shall survive the making of the Loans by the Banks and the
execution and delivery to the Banks by the Borrowers of the Notes, regardless
of
any investigation made by or on behalf of the Banks, and shall continue in
full
force and effect as long as any Obligation is outstanding and unpaid and
so long
as the Commitments have not been terminated; provided, however, that the
obligations of the Borrowers under Section
9.2,
Section
9.5
and
Section
9.12
shall
survive payment in full of the Obligations and the termination of the
Commitments.
-
67
-
Section
9.12 Indemnification.
The
Borrowers hereby agree to defend, protect, indemnify and hold harmless the
Administrative Agent and the Banks and their respective Affiliates and the
directors, officers, employees, attorneys and Administrative Agents of the
Administrative Agent and the Banks and their respective Affiliates (each
of the
foregoing being an “Indemnitee”
and all
of the foregoing being collectively the “Indemnitees”)
from
and against any and all claims, actions, damages, liabilities, judgments,
costs
and expenses (including all reasonable fees and disbursements of counsel
which
may be incurred in the investigation or defense of any matter) imposed upon,
incurred by or asserted against any Indemnitee, whether direct, indirect
or
consequential and whether based on any federal, state, local or foreign laws
or
regulations (including securities laws, environmental laws, commercial laws
and
regulations), under common law or on equitable cause, or on contract or
otherwise:
(a) by
reason
of, relating to or in connection with the execution, delivery, performance
or
enforcement of any Loan Document, any commitments relating thereto, or any
transaction contemplated by any Loan Document;
(b) by
reason of, relating to
or in connection with any credit extended or used under the Loan Documents
or
any act done or omitted by any Person, or the exercise of any rights or remedies
thereunder, including the acquisition of any collateral by the Banks
by way
of foreclosure of the Lien thereon, deed or xxxx of sale in lieu of such
foreclosure or otherwise; or
(c) any
civil
penalty or fine assessed by OFAC against, and all reasonable costs and expenses
(including counsel fees and disbursements) incurred in connection with the
defense thereof, by the Administrative Agent or any Bank as a result of conduct
of any Borrower that violates a sanction enforced by OFAC;
provided,
however, that the Borrowers shall not be liable to any Indemnitee for any
portion of such claims, damages, liabilities and expenses resulting from
such
Indemnitee’s gross negligence or willful misconduct. In the event this indemnity
is unenforceable as a matter of law as to a particular matter or consequence
referred to herein, it shall be enforceable to the full extent permitted
by
law.
This
indemnification applies, without limitation, to any act, omission, event
or
circumstance existing or occurring on or prior to the later of the Termination
Date or the date of payment in full of the Obligations, including specifically
Obligations arising under clause (b) of this Section. The indemnification
provisions set forth above shall be in addition to any liability the Borrowers
may otherwise have. Without prejudice to the survival of any other obligation
of
the Borrowers hereunder the indemnities and obligations of the Borrowers
contained in this Section shall survive the payment in full of the other
Obligations.
Section
9.13 Captions.
The
captions or headings herein and any table of contents hereto are for convenience
only and in no way define, limit or describe the scope or intent of any
provision of this Agreement.
-
68
-
Section
9.14 Entire
Agreement.
This
Agreement and the other Loan Documents embody the entire agreement and
understanding between the Borrowers, the Administrative Agent and the Banks
with
respect to the subject matter hereof and thereof. This Agreement supersedes
all
prior agreements and understandings relating to the subject matter hereof.
Nothing contained in this Agreement or in any other Loan Document, expressed
or
implied, is intended to confer upon any Persons other than the parties hereto
any rights, remedies, obligations or liabilities hereunder or
thereunder.
Section
9.15 Counterparts.
This
Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one and the same instrument, and any of the parties
hereto may execute this Agreement by signing any such counterpart.
Section
9.16 Borrowers
Acknowledgements.
Each
Borrower hereby acknowledges that (a) it has been advised by counsel in the
negotiation, execution and delivery of this Agreement and the other Loan
Documents, (b) neither the Administrative Agent nor any Bank has any fiduciary
relationship to such Borrower, the relationship being solely that of debtor
and
creditor, (c) no joint venture exists between such Borrower and the
Administrative Agent or any Bank, and (d) neither the Administrative Agent
nor
any Bank undertakes any responsibility to such Borrower to review or inform
such
Borrower of any matter in connection with any phase of the business or
operations of such Borrower and such Borrower shall rely entirely upon its
own
judgment with respect to its business, and any review, inspection or supervision
of, or information supplied to, such Borrower by the Administrative Agent
or any
Bank is for the protection of the Banks
and
neither the Borrower nor any third party is entitled to rely
thereon.
Section
9.17 Appointment
of and Acceptance by Borrowers’ Agent.
Each
Borrower hereby appoints and authorizes the Borrowers’ Agent to take such action
as its Administrative Agent on its behalf and to exercise such powers under
the
Loan Documents as are delegated to the Borrowers’ Agent by the terms thereof,
together with such power that are reasonably incidental thereto, and Cabela’s
hereby accepts such appointment.
Section
9.18 Relationship
Among
Borrowers.
(a) JOINT
AND SEVERAL LIABILITY.
EACH
BORROWER AGREES THAT IT IS LIABLE, JOINTLY AND SEVERALLY WITH EACH OTHER
BORROWER, FOR THE PAYMENT OF ALL OBLIGATIONS OF THE BORROWERS UNDER THIS
AGREEMENT, AND THAT THE BANKS AND THE ADMINISTRATIVE AGENT CAN ENFORCE SUCH
OBLIGATIONS AGAINST ANY OR ALL BORROWERS, IN THE BANKS’ OR THE ADMINISTRATIVE
AGENT’S SOLE AND UNLIMITED DISCRETION.
(b) Waivers
of
Defenses.
The
obligations of the Borrowers hereunder shall not be released, in whole or
in
part, by any action or thing which might, but for this provision of this
Agreement, be deemed a legal or equitable discharge of a surety or guarantor,
other than irrevocable payment and performance in full of the Obligations
(except for contingent indemnity and other contingent Obligations not yet
due
and
-
69
-
payable)
at a time after any obligation of the Banks hereunder to make the Revolving
Loans, the Swing Line Bank to make the Swing Line Loans and of the
Administrative Agent to issue Letters of Credit shall have expired or been
terminated and all outstanding Letters of Credit shall have expired or the
liability of the Administrative Agent thereon shall have otherwise been
discharged. The purpose and intent of this Agreement is that the Obligations
constitute the direct and primary obligations of each Borrower and that the
covenants, agreements and all obligations of each Borrower hereunder be
absolute, unconditional and irrevocable. Each Borrower shall be and remain
liable for any deficiency remaining after foreclosure of any mortgage, deed
of
trust or security agreement securing all or any part of the Obligations,
whether
or not the liability of any other Person for such deficiency is discharged
pursuant to statute, judicial decision or otherwise.
(c) Other
Transactions.
The
Banks and the Administrative Agent are expressly authorized to exchange,
surrender or release with or without consideration any or all collateral
and
security which may at any time be placed with it by the Borrowers or by any
other Person on behalf of the Borrowers, or to forward or deliver any or
all
such collateral and security directly to the Borrowers for collection and
remittance or for credit. No invalidity, irregularity or unenforceability
of any
security for the Obligations or other recourse with respect thereto shall
affect, impair or be a defense to the Borrowers’ obligations under this
Agreement. The liabilities of each Borrower hereunder shall not be affected
or
impaired by any failure, delay, neglect or omission on the part of any Bank
or
the Administrative Agent to realize upon any of the Obligations of any other
Borrower to the Banks or the Administrative Agent, or upon any collateral
or
security for any or all of the Obligations, nor by the taking by any Bank
or the
Administrative Agent of (or the failure to take) any guaranty or guaranties
to
secure the Obligations, nor by the taking by any Bank or the Administrative
Agent of (or the failure to take or the failure to perfect its security interest
in or other lien on) collateral or security of any kind. No act or omission
of
any Bank or the Administrative Agent, whether or not such action or failure
to
act varies or increases the risk of, or affects the rights or remedies of
a
Borrower, shall affect or impair the obligations of the Borrowers
hereunder.
(d) Actions
Not
Required.
Each
Borrower, to the extent permitted by applicable law, hereby waives any and
all
right to cause a marshaling of the assets of any other Borrower or any other
action by any court or other governmental body with respect thereto or to
cause
any Bank or the Administrative Agent to proceed against any security for
the
Obligations or any other recourse which any Bank or the Administrative Agent
may
have with respect thereto and further waives any and all requirements that
any
Bank or the Administrative Agent institute any action or proceeding at law
or in
equity, or obtain any judgment, against any other Borrower or any other Person,
or with respect to any collateral security for the Obligations, as a condition
precedent to making demand on or bringing an action or obtaining and/or
enforcing a judgment against, such Borrower under this Agreement.
-
70
-
(e) No
Subrogation.
Notwithstanding any payment or payments made by any Borrower hereunder or
any
setoff or application of funds of any Borrower by any Bank or the Administrative
Agent, such Borrower shall not be entitled to be subrogated to any of the
rights
of any Bank or the Administrative Agent against any other Borrower or any
other
guarantor or any collateral security or guaranty or right of offset held
by any
Bank or the Administrative Agent for the payment of the Obligations, nor
shall
such Borrower seek or be entitled to seek any contribution or reimbursement
from
any other Borrower or any other guarantor in respect of payments made by
such
Borrower hereunder, until all amounts owing to the Banks and the Administrative
Agent by the Borrowers on account of the Obligations are irrevocably paid
in
full. If any amount shall be paid to a Borrower on account of such subrogation
rights at any time when all of the Obligations shall not have been irrevocably
paid in full, such amount shall be held by that Borrower in trust for the
Banks
and the Administrative Agent, segregated from other funds of that Borrower,
and
shall, forthwith upon receipt by the Borrower, be turned over to the
Administrative Agent in the exact form received by the Borrower (duly indorsed
by the Borrower to the Administrative Agent, if required), to be applied
against
the Obligations, whether matured or unmatured, in such order as the
Administrative Agent may determine.
(f) Application
of Payments.
Any and
all payments upon the Obligations made by the Borrowers or by any other Person,
and/or the proceeds of any or all collateral or security for any of the
Obligations, may be applied by the Banks on such items of the Obligations
as the
Banks may elect.
(g) Recovery
of Payment.
If any
payment received by the Banks or the Administrative Agent and applied to
the
Obligations is subsequently set aside, recovered, rescinded or required to
be
returned for any reason (including, without limitation, the bankruptcy,
insolvency or reorganization of a Borrower or any other obligor), the
Obligations to which such payment was applied shall, to the extent permitted
by
applicable law, be deemed to have continued in existence, notwithstanding
such
application, and each Borrower shall be jointly and severally liable for
such
Obligations as fully as if such application had never been made. References
in
this Agreement to amounts “irrevocably paid” or to “irrevocable payment” refer
to payments that cannot be set aside, recovered, rescinded or required to
be
returned for any reason.
(h) Borrowers’
Financial
Condition.
Each
Borrower is familiar with the financial condition of the other Borrowers,
and
each Borrower has executed and delivered this Agreement based on that Borrower’s
own judgment and not in reliance upon any statement or representation of
the
Bank. The Banks and the Administrative Agent shall have no obligation to
provide
any Borrower with any advice whatsoever or to inform any Borrower at any
time of
the Bank’s actions, evaluations or conclusions on the financial condition or any
other matter concerning the Borrowers.
-
71
-
(i) Bankruptcy
of the Borrowers.
Each
Borrower expressly agrees that, to the extent permitted by applicable law,
the
liabilities and obligations of that Borrower under this Agreement shall not
in
any way be impaired or otherwise affected by the institution by or against
any
other Borrower or any other Person of any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or any other similar
proceedings for relief under any bankruptcy law or similar law for the relief
of
debtors and that any discharge of any of the Obligations pursuant to any
such
bankruptcy or similar law or other law shall not diminish, discharge or
otherwise affect in any way the obligations of that Borrower under this
Agreement, and that upon the institution of any of the above actions, such
obligations shall be enforceable against that Borrower.
(j) Limitation;
Insolvency Laws.
As used
in this Section 9.18(j): (a) the term “Applicable Insolvency Laws” means the
laws of the United States of America or of any State, province, nation or
other
governmental unit relating to bankruptcy, reorganization, arrangement,
adjustment of debts, relief of debtors, dissolution, insolvency, fraudulent
transfers or conveyances or other similar laws (including, without limitation,
11 U. S. C. §547, §548, §550 and other “avoidance” provisions of Title 11 of the
United States Code) as applicable in any proceeding in which the validity
and/or
enforceability of this Agreement against any Borrower, or any Specified Lien
is
in issue; and (b) “Specified Lien” means any security interest, mortgage, lien
or encumbrance granted by any Borrower securing the Obligations, in whole
or in
part. Notwithstanding any other provision of this Agreement, if, in any
proceeding, a court of competent jurisdiction determines that with respect
to
any Borrower, this Agreement or any Specified Lien would, but for the operation
of this Section, be subject to avoidance and/or recovery or be unenforceable
by
reason of Applicable Insolvency Laws, this Agreement and each such Specified
Lien shall be valid and enforceable against such Borrower, only to the maximum
extent that would not cause this Agreement or such Specified Lien to be subject
to avoidance, recovery or unenforceability. To the extent that any payment
to,
or realization by, the Banks or the Administrative Agent on the Obligations
exceeds the limitations of this Section and is otherwise subject to avoidance
and recovery in any such proceeding, the amount subject to avoidance shall
in
all events be limited to the amount by which such actual payment or realization
exceeds such limitation, and this Agreement as limited shall in all events
remain in full force and effect and be fully enforceable against such Borrower.
This Section is intended solely to reserve the rights of the Banks and the
Administrative Agent hereunder against each Borrower, in such proceeding
to the
maximum extent permitted by Applicable Insolvency Laws and neither the
Borrowers, any guarantor of the Obligations nor any other Person shall have
any
right, claim or defense under this Section that would not otherwise be available
under Applicable Insolvency Laws in such proceeding.
Section
9.19 USA
Patriot Act
Notice.
Each
Bank that is subject to the Act (as hereinafter defined) and the Administrative
Agent (for itself and not on behalf of any Bank) hereby notifies the Borrowers
that pursuant to the requirements of the USA Patriot Act (Title III of Pub.
L.
107-56 (signed into law October 26, 2001)) (the “Act”),
it is
required to obtain, verify and record information that identifies the Borrowers,
which information includes the name and address of the Borrowers and other
information that will allow such Bank or the Administrative Agent, as
applicable, to identify the Borrowers in accordance with the
Act.
-
72
-
Section
9.20 Interest
Rate Limitation.
Notwithstanding anything herein to the contrary, if at any time the interest
rate applicable to any Loan, together with all fees, charges and other amounts
that are treated as interest on such Loan under applicable law (collectively,
the “Charges”),
shall
exceed the maximum lawful rate (the “Maximum
Rate”)
that
may be contracted for, charged, taken, received or reserved by the Bank holding
such Loan in accordance with applicable law, the rate of interest payable
in
respect of such Loan hereunder, together with all Charges payable in respect
thereof, shall be limited to the Maximum Rate and, to the extent lawful,
the
interest and Charges that would have been payable in respect of such Loan
but
were not payable as a result of the operation of this Section shall be cumulated
and the interest and Charges payable to such Bank in respect of other Loans
or
periods shall be increased (but not above the Maximum Rate therefor) until
such
cumulated amount, together with interest thereon at the Federal Funds Rate
to
the date of repayment, shall have been received by such Bank.
Section
9.21 Effect
of Existing
Credit Agreement.
This
Agreement amends and restates the Existing Credit Agreement in its entirety,
provided
that the
obligations of the Borrowers incurred under the Existing Credit Agreement
shall
continue under this Agreement, and shall not in any circumstances be terminated,
extinguished or discharged hereby or thereby but shall hereafter be governed
by
the terms of this Agreement.
[The
remainder of this page intentionally left blank.]
-
73
-
IN
WITNESS WHEREOF,
the
parties hereto have caused this Agreement to be executed as of the date first
above written.
|
CABELA’S
INCORPORATED
|
||
|
By:
/s/
Xxxxx X.
Xxxxxxx
|
||
|
Name:
Xxxxx X. Xxxxxxx
|
||
|
Title:
Vice President and CFO
|
|
CABELA’S
CATALOG, INC.
|
||
|
By:
/s/
Xxxxx X.
Xxxxxxx
|
||
|
Name:
Xxxxx X. Xxxxxxx
|
||
|
Title:
Secretary and Treasurer
|
|
CABELA’S
MARKETING AND BRAND MANAGEMENT, INC.
|
||
|
By:
/s/
Xxxxx X.
Xxxxxxx
|
||
|
Name:
Xxxxx X. Xxxxxxx
|
||
|
Title:
Vice President, Secretary and
Treasurer
|
|
CABELA’S
RETAIL, INC.
|
||
|
By:
/s/ Xxxxx X.
Xxxxxxx
|
||
|
Name:
Xxxxx X. Xxxxxxx
|
||
|
Title:
Secretary and Treasurer
|
|
CABELA’S
OUTDOOR ADVENTURES, INC.
|
||
|
By:
/s/ Xxxxx X.
Xxxxxxx
|
||
|
Name:
Xxxxx X. Xxxxxxx
|
||
|
Title:
Secretary and Treasurer
|
|
XXXXXXX.XXX,
INC.
|
||
|
By:
/s/
Xxxxx X.
Xxxxxxx
|
||
|
Name:
Xxxxx X. Xxxxxxx
|
||
|
Title:
Secretary and Treasurer
|
S-1
to
Amended and Restated Credit Agreement
|
CABELA’S
WHOLESALE, INC.
|
||
|
By:
/s/
Xxxxx X.
Xxxxxxx
|
||
|
Name:
Xxxxx X. Xxxxxxx
|
||
|
Title:
Secretary and Treasurer
|
|
CABELA’S
VENTURES, INC.
|
||
|
By:
/s/
Xxxxx X.
Xxxxxxx
|
||
|
Name:
Xxxxx X. Xxxxxxx
|
||
|
Title:
Secretary and Treasurer
|
|
XXX
XXXX SUPPLY COMPANY, INC.
|
||
|
By:
/s/
Xxxxx X.
Xxxxxxx
|
||
|
Name:
Xxxxx X. Xxxxxxx
|
||
|
Title:
Secretary and Treasurer
|
|
WILD
WINGS, LLC
|
||
|
By:
/s/
Xxxxx X.
Xxxxxxx
|
||
|
Name:
Xxxxx X. Xxxxxxx
|
||
|
Title:
Secretary and Treasurer
|
|
CABELA’S
LODGING, LLC
|
||
|
By:
/s/
Xxxxx X.
Xxxxxxx
|
||
|
Name:
Xxxxx X. Xxxxxxx
|
||
|
Title:
Secretary and Treasurer
|
|
CABELA’S
RETAIL LA, LLC
|
||
|
By:
/s/
Xxxxx X.
Xxxxxxx
|
||
|
Name:
Xxxxx X. Xxxxxxx
|
||
|
Title:
Secretary and Treasurer
|
S-2
to
Amended and Restated Credit Agreement
|
CABELA’S
TROPHY PROPERTIES, LLC.
|
||
|
By:
/s/
Xxxxx X.
Xxxxxxx
|
||
|
Name:
Xxxxx X. Xxxxxxx
|
||
|
Title:
Secretary and Treasurer
|
|
ORIGINAL
CREATIONS, LLC
|
||
|
By:
/s/
Xxxxx X.
Xxxxxxx
|
||
|
Name:
Xxxxx X. Xxxxxxx
|
||
|
Title:
Secretary and Treasurer
|
|
:
|
CABELA’S
RETAIL TX, L.P.
By:
Cabela’s Retail GP, LLC
Its:
General Partner
|
|
|
By:
/s/
Xxxxx X.
Xxxxxxx
|
||
|
Name:
Xxxxx X. Xxxxxxx
|
||
|
Title:
Secretary and Treasurer
|
|
CABELA’S
RETAIL GP, L.P.
|
||
|
By:
/s/
Xxxxx X.
Xxxxxxx
|
||
|
Name:
Xxxxx X. Xxxxxxx
|
||
|
Title:
Secretary and Treasurer
|
|
CRLP,
LLC
|
||
|
By:
/s/
Xxxxx X.
Xxxxxxx
|
||
|
Name:
Xxxxx X. Xxxxxxx
|
||
|
Title:
Secretary and Treasurer
|
S-3
to
Amended and Restated Credit Agreement
|
Commitment
Amount
|
||
|
Revolving
|
Swing
Line
|
|
|
$85,000,000
Initial
Revolving Percentage
26.153846153848%
|
$20,000,000
|
U.S.
BANK NATIONAL ASSOCIATION, in its individual corporate capacity
and as
Administrative Agent
By:
/s/
Xxxxx X.
Xxxxxxxx
Name:
Xxxxx X. Xxxxxxxx
Title:
Vice President
Address
for Administrative Agent:
Attention:
Xxxxxxx X. Xxxxxxx
U.S.
Bank Capital Markets
Mail
Location: MK-WI-J3SM
000
Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
|
|
Address
for Bank:
Attention:
Xxxxx X. Xxxxxxxx
000
Xxxxx 00xx
Xxxxxx
0xx
Xxxxx, XXXX0000
Xxxxxxx,
XX 00000
|
||
S-4
to
Amended and Restated Credit Agreement
|
Commitment
Amount
|
||
|
Revolving
|
||
|
$50,000,000
Initial
Revolving Percentage
15.384615384615%
|
LASALLE
BANK NATIONAL ASSOCIATION
By:
/s/
Xxxxxx X.
Xxxxxx
Name:
Xxxxxx X. Xxxxxx
Title:
First Vice President
Address:
Attention:
Xxxxxx X. Xxxxxx
Republic
Plaza
000
00xx Xxxxxx, Xxxxx 0000
Xxxxxx,
XX 00000
|
|
S-5
to
Amended and Restated Credit Agreement
|
Commitment
Amount
|
||
|
Revolving
|
||
|
$50,000,000
Initial
Revolving Percentage
15.384615384615%
|
WACHOVIA
BANK, NATIONAL ASSOCIATION
By:
/s/
Xxxxxxx
Xxxxxx
Name:
Xxxxxxx Xxxxxx
Title:
Managing Director
Address:
Attention:
Xxxxx Xxxxx
000
Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxx
XX0000
Xxxxxxxxx,
XX 00000
|
|
S-6
to
Amended and Restated Credit Agreement
|
Commitment
Amount
|
||
|
Revolving
|
||
|
$30,000,000
Initial
Revolving Percentage
9.230769230769%
|
COMERICA
BANK
By:
/s/
Xxxxxxx X.
X’Xxxxxx
Name:
Xxxxxxx X. X'Xxxxxx
Title:
Vice President
Address:
Attention:
Xxxxxxx X. X’Xxxxxx
U.S.
Banking-Midwest II
000
Xxxxxxxx Xxx. - M.C. 3269
Xxxxxxx,
XX 00000
|
|
S-7
to
Amended and Restated Credit Agreement
|
Commitment
Amount
|
||
|
Revolving
|
||
|
$50,000,000
Initial
Revolving Percentage
15.384615384615%
|
XXXXX
FARGO BANK,
NATIONAL
ASSOCIATION
By:
/s/
Xxxx X.
Xxxxx
Name:
Xxxx X. Xxxxx
Title:
Vice President
Address:
Attention:
Xxxx X. Xxxxx
Xxxxx
Fargo Center
0000
“X” Xxxxxx
Xxxxxxx,
XX 00000
|
|
S-8
to
Amended and Restated Credit Agreement
|
Commitment
Amount
|
||
|
Revolving
|
||
|
$30,000,000
Initial
Revolving Percentage
9.230769230769%
|
JPMORGAN
CHASE BANK, N.A.
By:
/s/
Xxxx
Xxxxxxxxx
Name:
Xxxx Xxxxxxxxx
Title:
Vice President
Address:
Attention:
Xxxx Xxxxxxxxx
JPMorgan
Chase Bank, N.A.
000
Xxxx Xxx., 0xx
Xxxxx
Xxx
Xxxx, XX 00000
|
|
S-9
to
Amended and Restated Credit Agreement
|
Commitment
Amount
|
||
|
Revolving
|
||
|
$30,000,000
Initial
Revolving Percentage
9.230769230769%
|
SOVEREIGN
BANK
By:
/s/
Xxxxx
Xxxxxxxx
Name:
Xxxxx Xxxxxxxx
Title:
Vice President
Address:
Attention:
Xxxxx Xxxxxxxx
000
Xxxx Xx.
00-0000-XX0
Xxxxxxx,
XX 00000
|
|
X-00
to
Amended and Restated Credit Agreement
