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EXHIBIT 10.12
LOAN AGREEMENT
This LOAN AGREEMENT ("Agreement") is made as of the 23RD day of MAY,
1996, between FIRST NATIONAL BANK AND TRUST CO. OF XXXXXXX ("Lender") and THE
BUCKLE, INC. ("Borrower," whether one or more; unless expressly indicated
otherwise, all references to Borrower shall be both individually and
collectively if Borrower is more than one person and/or entity).
I. THE LOAN
1.1 Loan. Lender shall lend Borrower the sum of $5,000,000.00 (the
"Loan"), as evidenced by the following note(s)
PROGRAMMED LENDING NOT OF EVEN DATE IN THE AMOUNT OF $5,000,000.00
(the "Note," whether one or more), and pursuant to the terms of a loan
commitment letter dated _______, 199__ ("Commitment Letter"). The Loan shall be
governed by the terms of this Agreement, the Commitment Letter, the Note and the
other "Loan Documents" (as defined in the Note), all of which are incorporated
herein by reference. The terms and conditions of this Agreement, the Commitment
Letter, the Note and the other Loan Documents shall be considered cumulative and
not exclusive or alternative.
1.2 PROGRAMMED LENDING. With respect to that portion of the Loan, if any,
that is represented by one or more programmed lending notes, Lender at
Borrower's request will advance funds under and in accordance with the terms of
each such note from time to time as long as the outstanding principal balance
does not exceed the maximum principal amount of the note. The actual principal
balance outstanding at any one time may be increased or decreased from time to
time as a result of advances by Lender and payments by Borrower, and a payment
by the Borrower during the term of a programmed lending note of the entire
principal balance of such note shall not operate as a discharge of Borrower
under the note.
1.3 ADVANCES. All Loan advances may be made to Borrower's regular
checking account number 326-406. A check or other charge presented against
this account in excess of the account balance may be treated by Lender as a
request for a Loan advance, and payment by Lender of any such check may at its
option constitute a Loan advance under this Agreement. Advances, if made
pursuant to the payment of a check or other charge, shall be debited to the Loan
balance and credited to the checking account balance, and unless otherwise
agreed by Lender shall be in multiples of $1,000 or an amount equal to the
unused portion of the maximum credit available if less than $1,000.
II. CONDITIONS OF LENDING/ADVANCES
The obligation of Lender to make the Loan and any advances under the
Note(or any of them if more than one) is subject to the following conditions
precedent: (a) Borrower is not in default under any provisions of this
Agreement, the Commitment Letter, any Note or any other Loan Documents; (b) all
warranties and representations of Borrower under this Agreement, the Commitment
Letter, the Note and the other Loan Documents are true as of the date of the
requested advance; (c) no litigation or other legal proceeding is pending or
threatened against Borrower that has not been disclosed to Lender in writing
before the date of the Loan or advance; (d) there is no material adverse change
in the financial condition or earning power of Borrower or any guarantor of the
Loan, or material decrease in the value of any security for the Loan; and (e)
there is no change in any law or regulation that makes it unlawful for Lender to
make the Loan or advances under the Note (or any of them if more than one) or to
give effect to Lender's obligations as contemplated hereby. Further, Lender may
require appropriate documentation as to the reason for a requested advance
before making an advance.
III. SECURITY
3.1 LOAN DOCUMENTS. All advances and readvances made pursuant to the Note
(or any of them if more than one) and this Agreement shall be secured by all
security agreements, mortgages, deed(s) of trust and other security documents
set forth in the Note and included within the term "Loan Documents" therein.
Such security shall secure all existing and future indebtedness owed by Borrower
to Lender.
3.2 FURTHER ASSURANCES. Borrower agrees to execute and deliver such
security agreements, financing statements, and other such documents as Lender
will require for perfection of security interests, liens, and other security
described above, as Lender may reasonably request at any time from time to time
in form satisfactory to Lender.
IV. COVENANTS
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Until payment of all sums owing under this Agreement, the Commitment
Letter, the Note and the other Loan Documents Borrower shall:
4.1 FINANCIAL INFORMATION. Furnish to Lender with reasonable
promptness the following financial information: _______________________
_________________________
_______________________________________________________________________
_________________________
_______________________________________________________________________
_________________________
_______________________________________________________________________
4.2 LEGAL PROCEEDINGS. Notify Lender in writing of any material
legal action or proceeding commenced against Borrower.
4.3 ENVIRONMENTAL LAWS. Keep its property and operations in
compliance with all applicable laws, ordinances and regulations relating to
industrial hygiene or environmental protection (collectively, "Environmental
Laws"); allow Lender to enter Borrower's property to conduct any and all
inspections and testing that Lender reasonably deems necessary or desirable to
determine whether Borrower is in compliance with Environmental Laws;
notify Lender of any spill, release or discovery of any substance deemed to be
hazardous or toxic under any Environmental Laws (collectively, "Hazardous
Materials") on, onto or from any of Borrower's properties; notify Lender of any
order, request, notice or other form of written or oral communication from any
governmental agency relating to any violation or potential violation of any
Environmental Laws in connection with any of Borrower's properties; and
indemnify and hold harmless Lender, its directors, employees and agents, and
any successors to Lender's interest, from and against any and all claims,
damages, losses and liabilities arising in connection with the presence, use,
disposal or transport of any Hazardous Materials on, under, from or about
Borrower's property. NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO
THE CONTRARY, THE PROVISIONS OF THIS PARAGRAPH 4.3, INCLUDING WITHOUT
LIMITATION BORROWER'S OBLIGATION PURSUANT TO THE FOREGOING INDEMNITY, SHALL
SURVIVE PAYMENT OF THE LOAN.
4.4 MAINTAIN ENTITY. If Borrower is or includes a corporation or
partnership, maintain its existence as a duly organized corporation and/or
partnership and promptly notify Lender of any change in its articles of
incorporation and/or partnership agreement.
V. WARRANTIES AND REPRESENTATIONS
Borrower warrants and represents to Lender as follows:
5.1 FINANCIAL STATEMENTS. All financial statements relating to
Borrower provided to Lender fairly reflect the financial condition of Borrower
as of the dates of such statements, and there has been no material adverse
change in the financial condition of Borrower since the dates thereof.
5.2 PROCEEDINGS. No proceedings exist or are threatened against
Borrower that will substantially and adversely affect Borrower's condition,
financial or otherwise.
VI. OTHER COVENANTS, WARRENTIES AND REPRESENTATIONS
In addition to the above covenants, warranties and representations, Borrower
covenants, warrants and represents to Lender as follows:
________________________________________________________________________________
_____________________
________________________________________________________________________________
_____________________
VII. EVENTS OF DEFAULT
In addition to anything contained in the Commitment Letter, the Note
and the other Loan Documents, the occurrence of any of the following shall
constitute an Event of Default by Borrower:
7.1 FAILURE OF PAYMENT. Failure to pay in full all principal and
interest under the Note (or any of them if more than one) when due.
7.2 FALSE WARRANTIES OR REPRESENTATIONS. Any of the warranties or
representations in sections V and VI hereof being or becoming materially false,
or any information contained in any schedule, statement, report, notice or
other writing furnished by or on behalf of Borrower to Lender pursuant to this
Agreement, or otherwise in connection with the Loan, being materially false.
7.3 BREACH OF COVENANT. A breach or failure in performance of any
covenant set forth in sections IV and VI hereof.
7.4 OTHER BREACH. A breach or failure in the performance of any other
provision of the Agreement, not specified above, which shall have
continued for a period of thirty (30) days after Lender has given notice of
such breach or failure; or a breach or failure in the performance of any term,
covenant, warranty, representation or other agreement contained in the
Commitment Letter, any Note or any other Loan Documents, after giving effect to
any express notice requirement and/or curative period set forth therein.
7.5 OTHER INDEBTEDNESS. Any default in the payment or performance of
any indebtedness, liability or obligation of Borrower (or any one or more
of them if more than one) to Lender, not specified above, whether now existing
or hereafter arising.
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VIII. REMEDIES
The occurrence of any Event of Default shall constitute a default under
the Note and the other Loan Documents, and Lender shall have all rights and
remedies available under this Agreement, the Commitment Letter, the Note, the
other Loan Documents and applicable law, including without limitation the right
to declare the entire balance of the Note immediately due and payable, and all
such rights and remedies shall be cumulative. No delay or omission of Lender
in exercising any of its rights or remedies shall operate as a waiver of such
right or remedy or any other right or remedy of Lender, and a waiver on any
occasion shall not constitute a waiver of such right or remedy on any future
occasion.
IX. MISCELLANEOUS
9.1 GOVERNING LAW. This Agreement and the Loan shall be governed by
the laws of the State of Nebraska.
9.2 SURVIVAL OF REPRESENTATIONS. All covenants, warranties and
representations made in writing by Borrower in connection herewith shall survive
the execution and delivery of this Agreement, the Commitment Letter, the Note
and the other Loan Documents.
9.3 BINDING EFFECT. All agreements, covenants, warranties and
representations in this Agreement shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto.
9.4 ASSIGNMENT. Borrower may not assign this Agreement, the
Commitment Letter, the Note (or any of them if more than one) or any other
Loan Documents without the express written consent of Lender, which shall be
exercised at Lender's sole discretion.
9.5 RENEWALS; EXTENSIONS. The provisions of this Agreement shall
apply to any renewal or extension of the Loan, except as modified or amended
in writing by the parties hereto at the time of such renewal or extension.
9.6 JOINT AND SEVERAL LIABILITY. If Borrower consists of more than
one person and/or entity, the obligations, liabilities, covenants, agreements,
warranties and representations contained in or arising from this Agreement are
joint and several as to each such person and/or entity.
9.7 LIMITATION OF LIABILITY. LENDER SHALL NOT BE LIABLE FOR ANY
CLAIMS, DEMANDS, LOSSES OR DAMAGES MADE, CLAIMED OR SUFFERED BY ANY PARTY TO
THIS AGREEMENT.
9.8 ENTIRE AGREEMENT. This Agreement, the Note and the other Loan
Documents contain the entire agreement of the parties, and cannot be modified
or altered unless reduced to writing and consented to by all the undersigned
parties.
FIRST NATIONAL BANK AND TRUST CO. OF
XXXXXXX
Name and Lender
Date: 5-23-96 BY: XXXXX X. XXXXXX
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Title: CHAIRMAN AND CEO
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Date: 5-23-96 X XXX XXXXXXXXXX
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THE BUCKLE, INC. Borrower
Date: 5-23-96 X
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BY Borrower
Date:
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Borrower
STATE OF )
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) ss.
COUNTY OF )
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The foregoing Agreement was acknowledged before me
this day of, by
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Notary Public
