JOINDER AGREEMENT
Exhibit
10.2
This
Joinder Agreement (this “Agreement”), dated as of June 15, 2007 (the “Effective
Date”), is made by Cabela’s Retail IL, Inc., an Illinois corporation (the “New
Borrower”), in favor of U.S. Bank National Association, as Agent for the
Banks under the Credit Agreement (each as defined below).
RECITALS
A. Cabela’s
Incorporated, a Delaware corporation, Cabela’s Retail, Inc., a Nebraska
corporation, Xxx Xxxx Supply Company, Inc., a South Dakota corporation, Cabela’s
Ventures, Inc., a Nebraska corporation, Cabela’s Outdoor Adventures, Inc., a
Nebraska corporation, Cabela’s Catalog, Inc., a Nebraska corporation, Cabela’s
Wholesale, Inc., a Nebraska corporation, Cabela’s Marketing and Brand
Management, Inc., a Nebraska corporation, Xxxxxxx.xxx, Inc., a Nebraska
corporation, Wild Wings, LLC, a Minnesota limited liability company, Cabela’s
Lodging, LLC, a Nebraska limited liability company, Cabela’s Retail LA, LLC, a
Nebraska limited liability company, Cabela’s Trophy Properties, LLC, a Nebraska
limited liability company, Original Creations, LLC, a Minnesota limited
liability company, Cabela’s Retail TX, L.P., a Nebraska limited partnership,
Cabela’s Retail GP, LLC, a Nebraska limited liability company, CRLP, LLC, a
Nebraska limited liability company, Legacy Trading Company, a South Dakota
corporation, and Cabela’s Retail MO, LLC, a Nebraska limited liability company
(individually, an “Existing Borrower” and, collectively, the “Existing
Borrowers”), the banks which are signatories hereto (individually, a “Bank” and,
collectively, the “Banks”), and U.S. Bank National Association, one of the
Banks, as agent for the Banks (in such capacity, the “Agent”), have entered into
a Second Amended and Restated Credit Agreement, dated as of July 15, 2005
(as
the same may be amended, restated, supplemented or otherwise modified from
time
to time, the “Credit Agreement”); and
B. The
New Borrower desires to become a borrower under the Credit Agreement and
the
other Loan Documents (as defined therein).
NOW
THEREFORE, for and in consideration of the mutual covenants, conditions,
stipulations and agreements set forth herein and in the Credit Agreement
and the
other Loan Documents, and other valuable consideration, the receipt of which
is
hereby acknowledged, the undersigned hereby consents and agrees as
follows:
1. Capitalized
terms used in this Agreement, but not otherwise defined, shall have the meanings
ascribed to them in the Credit Agreement.
2. Without
in any manner affecting the Existing Borrowers’ joint and several liability
under the Loan Documents, the New Borrower hereby jointly and severally assumes
and agrees to perform all of the terms, restrictions, obligations and conditions
of a “Borrower” under the Credit Agreement, the Notes and, by execution of this
Agreement, is hereby designated a “Borrower” for purposes of, and agrees to be
bound by, each and all terms of the Credit Agreement and the
Notes. Without limiting the generality of the forgoing, the New
Borrower hereby (a) expressly agrees that it is jointly and severally liable
for
and assumes all Obligations under the Credit Agreement, the Notes and all
other
Loan Documents to which any Existing Borrower
is a party, and (b) agrees to perform for the Agent’s and the Banks’ benefit and
be bound by the terms and covenants of the Credit Agreement, the Notes or
all
other Loan Document to which any Existing Borrower is a
party.
3. Subject
to Section 5 hereof, the Agent confirms that the New Borrower is a “Borrower”
under the Credit Agreement and all of the rights and obligations of a Borrower
under the Credit Agreement shall inure to and bind, as a joint and several
obligor, the New Borrower.
4. The
New Borrower represents to the Agent and the Banks that:
(a) It
is a corporation or limited liability company duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization
and
has the power and authority and the legal right to own and operate its
properties and to conduct the business in which it is currently
engaged.
(b) It
has the power and authority and the legal right to execute and deliver, and
to
perform its obligations under, this Agreement, the Credit Agreement, the
Notes
and all other Loan Documents and has taken all necessary action required
by its
form of organization to authorize such execution, delivery and
performance.
(c) This
Agreement, the Credit Agreement, the Notes and all other Loan Documents
constitute its legal, valid and binding obligations enforceable in accordance
with their terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the
enforcement of creditors’ rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
(d) The
execution, delivery and performance of this Agreement, the Credit Agreement
and
all other Loan Documents will not (i) 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 it, (ii) violate or contravene any provision
of its organizational documents, or (iii) 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 it is a party or by which it or any of its
properties may be bound or result in the creation of any lien
thereunder. It is not 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 have a material adverse effect on its business,
operations, properties, assets or condition (financial or
otherwise).
(e) 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 its part to authorize, or is required in connection
with the execution, delivery and performance of, or the legality, validity,
binding effect or enforceability of, this Agreement, the Credit Agreement,
the
Notes and all other Loan Documents.
(f) There
are no actions, suits or proceedings pending or, to its knowledge, threatened
against or affecting it or any of its properties before any court or arbitrator,
or any governmental department, board, agency or other instrumentality which,
if
determined adversely to it, would have a material adverse effect on its
business, operations, property or condition (financial or otherwise) or on
its
ability to perform its obligations hereunder and under this Agreement, the
Credit Agreement, the Notes and all other Loan Documents.
(g) It
expects to derive benefits from the transactions resulting in the creation
of
the Obligations. The Agent and the Banks may rely conclusively on the
continuing warranty, hereby made, that the New Borrower continues to be
benefited by the Banks’ extension of credit accommodations to the Borrowers and
neither the Agent nor the Banks shall have no duty to inquire into or confirm
the receipt of any such benefits, and this Agreement, the Credit Agreement,
the
Notes and all other Loan Documents to which it is a party shall be effective
and
enforceable by the Agent and the Banks without regard to the receipt, nature
or
value of any such benefits.
(h) The
representations and warranties contained in Article IV of the Credit Agreement
are true and correct, with respect to the New Borrower, as of the Effective
Date, except to the extent such representations and warranties specifically
relate to an earlier date, in which case they are true and correct as of
such
earlier date, and after giving effect to this Agreement, there will exist
no
breach of such representations and warranties.
5. Effectiveness. This
Agreement shall become effective upon satisfaction by the New Borrower of
the
conditions set forth in Sections 3.1(a)(ii), 3.1(a)(iii), 3.1(b), 3.1(d),
3.1(e)
and 3.1(f) of the Credit Agreement, provided that any such condition to be
performed or dated on or as of the Closing Date shall be performed or dated
on
or as of the Effective Date.
6. Governing
Law and Construction. THE VALIDITY, CONSTRUCTION AND
ENFORCEABILITY OF THIS AGREEMENT 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. Whenever possible, each provision of this Agreement
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 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 or any other statement, instrument or transaction contemplated
hereby
or thereby or relating hereto or thereto.
7. Waiver
of Jury Trial. EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING
OUT OF
OR RELATING TO THIS AGREEMENT.
8. 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.
9. New
Borrower Acknowledgements. The New Borrower hereby acknowledges
that (a) it has received from the Borrowers’ Agent true and correct copies of
each Loan Document, (b) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement, and (c) the New Borrower shall
rely
entirely upon its own judgment with respect to its business, and any review,
inspection or supervision of, or information supplied to, the New Borrower
by
the Banks is for the protection of the Banks and neither the New Borrower
nor
any third party is entitled to rely thereon.
[REMAINDER
OF PAGE IS INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the parties hereto
have caused this Agreement to be executed as of the date first above
written.
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Cabela’s
Retail IL, Inc., an Illinois corporation, New Borrower
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By:
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/s/
Xxxxx X. Xxxxxxx
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Name:
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Xxxxx
X. Xxxxxxx
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Title:
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Secretary
and Treasurer
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U.S.
Bank National Association, as
Agent
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By:
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/s/
Xxxxx X. Xxxxxxxx
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Name:
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Xxxxx
X. Xxxxxxxx
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Title:
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Vice
President
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REAFFIRMATION
BY EXISTING BORROWERS
The
undersigned, each an Existing
Borrower, as defined in the Joinder Agreement (the “Joinder Agreement”), dated
as of June 15, 2007, from Cabela’s Retail IL, Inc. in favor of U.S. Bank
National Association, as Agent for the Banks under the Credit Agreement (each
as
defined in the Joinder Agreement), each acknowledges receipt of the Joinder
Agreement and acknowledges and affirms that the Credit Agreement, as modified
by
the Joinder Agreement, is hereby ratified and confirmed in all respects and
all
terms, conditions and provisions of the Credit Agreement, except as modified
by
the Joinder Agreement, shall remain unmodified and in full force and
effect. All references in any document or instrument to the Credit
Agreement are hereby amended and shall refer to the Credit Agreement as modified
by the Joinder Agreement.
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Cabela’s
Incorporated
Cabela’s
Catalog, Inc.
Cabela’s
Retail, Inc.
Cabela’s
Outdoor Adventures, Inc.
Xxxxxxx.xxx,
Inc.
Cabela’s
Wholesale, Inc.
Cabela’s
Ventures, Inc.
Wild
Wings, LLC
Cabela’s
Lodging, LLC
Legacy
Trading Company
Cabela’s
Trophy Properties, LLC
Cabela’s
Marketing and Brand Management, Inc.
Cabela’s
Retail LA, LLC
Original
Creations, LLC
Cabela’s
Retail GP, LLC
CRLP,
LLC
Cabela’s
Retail MO, LLC
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By:
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/s/
Xxxxx X. Xxxxxxx
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Name:
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Xxxxx
X. Xxxxxxx
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Title:
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Vice
President, CFO, Secretary or Treasurer
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Xxx
Xxxx Supply Company, Inc.
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By:
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/s/
Xxxx Xxxx
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Name:
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Xxxx
Xxxx
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Title:
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Secretary
and Treasurer
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Cabela’s
Retail TX, L.P.
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By:
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Cabela’s
Retail GP, LLC
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Its:
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General
Partner
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By:
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/s/
Xxxxx X. Xxxxxxx
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Name:
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Xxxxx
X. Xxxxxxx
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Title:
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Secretary
and Treasurer
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