Loan Agreement - Coldwater Creek inc. and U.S. Bank of Idaho
LOAN AGREEMENT
Dated as of: JANUARY 10, 1997
Parties: COLDWATER CREEK INC. ("BORROWER")
And: U.S. BANK OF IDAHO ("LENDER")
ARTICLE I
CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
"Access Laws" means the Americans With Disabilities Act of 1990; the Fair
Housing Amendments Act of 1988; all other federal, state and local laws or
ordinances related to disabled access; and all statutes, rules, regulations,
ordinances, orders of governmental bodies and regulatory agencies and orders and
decrees of any court adopted, enacted or issued with respect thereto; all as now
existing or hereafter amended or adopted.
"Borrower" means Coldwater Creek Inc., a Delaware corporation.
"Debt Service Coverage Ratio" means net income plus depreciation and
amortization minus dividends divided by $3,500,000.00.
"Debt to Tangible Net Worth Ratio" means total liabilities divided by
Tangible Net Worth.
"Default" means any Event of Default or any event which with the giving of
notice or the passage of time, or both, would constitute an Event of Default.
"Environmental Laws" means all local, state or federal laws, rules,
regulations, or ordinances pertaining to Hazardous Substances and environmental
regulation, contamination or clean-up including, without limitation, the federal
statutes commonly known as CERCLA and RCRA and all other federal or state lien
or environmental clean-up statutes, all as now existing or hereafter amended or
adopted.
"GAAP" means generally accepted accounting principles consistently applied.
The definition of any accounting term used in this Agreement that is not
specifically defined shall be the GAAP definition therefor.
"Hazardous Substances" means (a) any substance or material defined or
designated as hazardous or toxic waste, hazardous or toxic material, or a
hazardous, toxic or radioactive substance (or designated by any similar term) by
or for purposes of any applicable Environmental Law; (b) asbestos and any
substance or compound containing asbestos; and (c) any other hazardous, toxic or
dangerous waste, substance or material, including but not limited to gasoline,
crude oil, fuel oil, diesel oil, and any other related petroleum products.
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"L/C Agreements" means the Continuing Agreement for Commercial Letters of
Credit and the Continuing Agreement for Irrevocable Standby Letters of Credit.
"L/C Outstandings" means, as of any date of determination, (a) the
aggregate maximum principal amount available to be drawn under all outstanding
letters of credit issued by Lender for the account of Borrower, plus (b) the
aggregate face amount of all sight or time drafts drawn under letters of credit
which amounts have not been reimbursed by Borrower.
"Loan Documents" means this Agreement, the Notes, and the Security
Documents and all other documents and instruments attached hereto, referred to
herein or heretofore, contemporaneously herewith or hereafter executed or
delivered to Lender by any Person in connection with any indebtedness of
Borrower to Lender.
"Long Term Revolving Loan Review Date" means the earlier of June 30, 2000,
and the date Lender demands payment in full of the then outstanding balance of
the Long Term Revolving Note.
"Maximum Letter of Credit Amount" means $1,000,000.00.
"Maximum Long Term Revolving Loan Amount" means $17,500,000.00.
"Maximum Short Term Revolving Loan Amount" means $17,500,000.00.
"Note(s)" means any one or more of Short Term Revolving Note or the Long
Term Revolving Note.
"Person" means an individual or entity, including without limitation a
corporation, general or limited partnership, limited liability company, trust,
unincorporated association, government or government agency.
"Short Term Revolving Loan Review Date" means the earlier of June 30, 1998,
and the date Lender demands payment in full of the then outstanding balance of
the Short Term Revolving Note.
"Security Documents" means any document or instrument evidencing a security
interest given by the Borrower to the Lender together with all amendments,
replacements, substitutions, or additions thereto.
"Tangible Net Worth" means total assets minus intangible assets minus total
liabilities.
ARTICLE II
SHORT TERM REVOLVING LOANS
2.1 MAXIMUM AMOUNT. Subject to the terms and conditions of this
Agreement, Lender agrees to make loans to Borrower from time to time on a
revolving credit basis (each a "Short Term Revolving Advance", collectively,
"Short Term Revolving Loans"), provided that the aggregate principal amount of
outstanding Short Term Revolving Loans shall at no time
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exceed the Maximum Short Term Revolving Loan Amount. The availability of Short
Term Revolving Advances shall terminate on the Short Term Revolving Loan Review
Date.
2.2 USE OF PROCEEDS. Borrower shall use the proceeds of the Short Term
Revolving Loans for its normal working capital needs.
2.3 SHORT TERM REVOLVING NOTE. The Short Term Revolving Loans shall be
evidenced by a promissory note executed by Borrower in the principal amount of
$17,500,000.00 substantially in the form attached as Exhibit A ("Short Term
Revolving Note"). The Short Term Revolving Loans shall be subject to all terms
and conditions of the Short Term Revolving Note and of this Agreement.
2.4 INTEREST. Interest on the unpaid principal balance of the Short Term
Revolving Note shall be due and payable at the times and at the rates set forth
in the Short Term Revolving Note.
2.5 PRINCIPAL PAYMENTS. The principal balance of the Short Term Revolving
Note shall be due and payable on the Short Term Revolving Note Review Date.
2.6 ADDITIONAL PAYMENTS. In addition to the payments otherwise required
on the Short Term Revolving Note, if at any time the outstanding principal
balance of the Short Term Revolving Note exceeds the Maximum Short Term
Revolving Loan Amount, Borrower shall pay to Lender on demand an amount equal to
the amount by which such principal balance exceeds the Maximum Short Term
Revolving Loan Amount.
2.7 REQUESTS FOR SHORT TERM REVOLVING ADVANCES. Whenever Borrower wishes
to request a Short Term Revolving Advance, Borrower shall give Lender notice
thereof either orally or in writing or by means of a "Zero Balance Account"
where checks written by Borrower are automatically paid so long as the aggregate
amount of checks written and presented for payment do not exceed the Maximum
Short Term Revolving Loan Amount and in accordance with the provisions of the
Short Term Revolving Note. Notwithstanding any other provision herein or in the
Short Term Revolving Note, Lender may in its discretion revoke Borrower's option
to request a Short Term Revolving Advance by means of writing checks on a Zero
Balance Account and require that requests be made either orally or in writing to
a representative of Lender authorized to handle Borrower's requests for a Short
Term Revolving Advance.
2.8 30 DAY REST REQUIREMENT. The Borrower shall maintain a zero balance
on the Short Term Revolving Note for at least 30 consecutive days at any time
during the period from the date hereof and the Short Term Revolving Loan Review
Date.
ARTICLE III
LONG TERM REVOLVING LOANS
3.1 MAXIMUM AMOUNT. Subject to the terms and conditions of this
Agreement, Lender agrees to make loans to Borrower from time to time on a
revolving credit basis (each a "Long Term Revolving Advance", collectively,
"Long Term Revolving Loans"), provided that the aggregate principal amount of
outstanding Long Term Revolving Loans shall at no time
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exceed the Maximum Long Term Revolving Loan Amount. The availability of Long
Term Revolving Advances shall terminate on the Long Term Revolving Loan Review
Date.
3.2 USE OF PROCEEDS. Borrower shall use the proceeds of the Long Term
Revolving Loans for the purchase of fixed assets and to repay a promissory note
owed Lender dated September 9, 1996, in the face amount of $11,500,000.00.
3.3 LONG TERM REVOLVING NOTE. The Long Term Revolving Loans shall be
evidenced by a promissory note executed by Borrower in the principal amount of
$17,500,000.00 substantially in the form attached as Exhibit B ("Long Term
Revolving Note"). The Long Term Revolving Loans shall be subject to all terms
and conditions of the Long Term Revolving Note and of this Agreement.
3.4 INTEREST. Interest on the unpaid principal balance of the
Long Term Revolving Note shall be due and payable at the times and at the rates
set forth in the Long Term Revolving Note.
3.5 PRINCIPAL PAYMENTS. The principal balance of the Long Term Revolving
Note shall be due and payable on the Long Term Revolving Note Review Date.
3.6 ADDITIONAL PAYMENTS. In addition to the payments otherwise required
on the Long Term Revolving Note, if at any time the outstanding principal
balance of the Long Term Revolving Note exceeds the Maximum Long Term Revolving
Loan Amount, Borrower shall pay to Lender on demand an amount equal to the
amount by which such principal balance exceeds the Maximum Long Term Revolving
Loan Amount.
3.7 REQUESTS FOR LONG TERM REVOLVING ADVANCES. Whenever Borrower wishes
to request a Long Term Revolving Advance, Borrower shall give Lender notice
thereof in accordance with the provisions of the Long Term Revolving Note.
ARTICLE IV
LETTERS OF CREDIT
4.1 MAXIMUM AMOUNT OF CREDITS. Subject to the terms and conditions of
this Agreement and the L/C Agreements, Lender in its sole discretion and at its
sole option may issue one or more standby or commercial letters of credit for
the account of Borrower (each a "Letter of Credit"), provided that the L/C
Outstandings shall not exceed at any one time the Maximum Letter of Credit
Amount.
4.2 L/C APPLICATIONS. Whenever Borrower wishes to request the issuance of
a Letter of Credit, Borrower shall execute and deliver to Lender an application
and agreement therefor in Lender's standard form, appropriately completed with
all required information (an "L/C Application"). Each Letter of Credit shall be
subject to all terms and conditions of this Agreement, the L/C Agreements and of
the applicable L/C Application. In the event of any express conflict between
the terms of this Agreement, the L/C Applications or the L/C Agreements, the
terms of this Agreement shall control.
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4.3 EXPIRY DATE. No Letter of Credit shall be issued on or after the L/C
Termination Date. Each Letter of Credit shall have an expiration date no later
than 365 days after the L/C Termination Date. Drafts drawn under a Letter of
Credit may be sight drafts or time drafts; provided, however, that no draft
shall have a maturity date later than 365 days after the L/C Termination Date.
4.4 REIMBURSEMENT. Borrower hereby agrees to reimburse Lender an amount
equal to the face amount of each draft drawn under each Letter of Credit in
accordance with the terms of the L/C Agreements. Notwithstanding the terms of
the applicable L/C Agreement or any L/C Application, in the event Borrower fails
to pay Lender in accordance with the terms of the applicable L/C Agreement or
any L/C Application, Borrower agrees to pay to Lender on demand interest on all
amounts due under such Letter of Credit at the default rate of interest
specified in the applicable L/C Agreement.
4.5 CERTAIN FEES. In addition to any other fees set forth herein,
Borrower agrees to pay to Lender on demand:
4.5.2 With respect to each commercial Letter of Credit, and each
draft drawn thereunder, Lender's customary issuance fees, processing fees,
negotiation commissions and acceptance fees, as applicable.
4.5.3 With respect to each standby Letter of Credit, an issuing fee
of 1% per annum, calculated from and including the date of issuance (or date of
renewal or extension if any) thereof to the expiry date thereof.
ARTICLE V
LOAN FEES
Borrower shall pay to Lender the following fees:
5.1 A non-usage fee of .125% of the daily unused portion of the Short Term
Revolving Loans which fee shall be due and payable quarterly in arrears.
5.2 A non-usage fee of .125% of the daily unused portion of the Long Term
Revolving Loans which fee shall be due and payable quarterly in arrears.
5.3 Letter of Credit fees referred to in Section 5.5.
ARTICLE VI
ADDITIONAL TERMS APPLICABLE TO CERTAIN CREDIT FACILITIES
6.1 REPRESENTATION AND WARRANTY OF CREDIT AVAILABILITY. Each request by
Borrower for a Short Term Revolving Advance, Long Term Revolving Advance, or
Letter of Credit shall be deemed to be its representation and warranty that (a)
such Short Term Revolving Advance or Long Term Revolving Advance may be made or
such Letter of Credit may be issued without exceeding the applicable maximum
amount determined in accordance with the provisions of this Agreement, (b) no
Default has occurred, or will occur as a result of making
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such Short Term Revolving Advance or Long Term Revolving Advance or the issuance
of such Letter of Credit, and (c) all representations and warranties set forth
in this Agreement are true, accurate and complete as of the date of such
request.
ARTICLE VII
SECURITY AND RELATED MATTERS
7.1 SECURITY.
7.1.1 COLLATERAL. The Long Term Revolving Loans shall be secured by
a first priority security interest in the following property and in all such
other real and personal property collateral as Lender may from time to time
require (collectively, "Collateral"):
(a) all of the Borrower's now owned and hereafter acquired equipment
and fixtures;
(b) real property located in Bonner County, State of Idaho; and
(c) all products and proceeds of the foregoing.
7.1.2 SECURITY DOCUMENTS. Lender's security interests in the
Collateral shall be evidenced by the Current Security Documents and by such
other security agreements, Uniform Commercial Code financing statements,
certificates of title, trust deeds, modifications thereto and other security
documents covering the Collateral as Lender may at any time require.
7.1.3 ADDITIONAL ACTS. As a condition precedent to the effectiveness
of this Agreement, and from time to time at Lender's request, Borrower shall
execute and/or deliver to Lender such security agreements, Uniform Commercial
Code financing statements, certificates of title, deeds of trust and any other
documents and instruments (endorsed or assigned to Lender as Lender may
request), which may be required under applicable law or which Lender may
request to effectuate the transactions contemplated hereunder and to grant,
preserve, protect, perfect and continue the validity and first priority of
Lender's security interests.
7.1.4 MAXIMUM SECURITY AMOUNT. Notwithstanding any contrary
provision of any Security Document executed by the Borrower, the security
interest granted to Lender by Borrower under the Security Documents shall be
limited to Collateral having a value equal to the maximum amount which can be
transferred to Lender without rendering Borrower's grant of a security interest
to Lender subject to avoidance as a fraudulent transfer or fraudulent conveyance
or any similar term under any applicable state or federal law.
7.2 NEGATIVE PLEDGE.
7.2.1 Borrower shall not grant, create, assume or permit to exist any
pledge, assignment for security purposes, encumbrance, mortgage, hypothecation,
or any other security interest on any of the Borrower's accounts or inventory.
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ARTICLE VIII
CONDITIONS PRECEDENT
8.1 INITIAL CONDITIONS PRECEDENT. The effectiveness of this Agreement is
subject to satisfaction of each of the following conditions precedent
concurrently with or prior to execution of this Agreement:
8.1.1 Lender shall have received executed originals of this Agreement,
the Notes, and each other Loan Document required by Lender.
8.1.2 Lender shall have received all documents and information Lender
may request relating to the authority for and validity of this Agreement and the
other Loan Documents, and to any other related matters, each in form and
substance satisfactory to Lender.
8.1.3 Lender shall have received such additional documents and
information and the Borrower shall have satisfied such additional requirements
as Lender reasonably requires.
8.2 CONDITIONS PRECEDENT TO EACH SHORT TERM OR LONG TERM REVOLVING ADVANCE
OR THE ISSUANCE OF ANY LETTER OF CREDIT. Lender's Agreement to make a Short Term
or a Long Term Revolving Loan Advance or to issue any Letter of Credit is
subject to satisfaction of the following conditions on the date any loan is made
or any Letter of Credit is issued.
8.2.1 No Default shall have occurred or will occur as a result of the
Borrower's action or inaction.
8.2.2 The representations and warranties in this Agreement shall be
true and correct as of such date.
ARTICLE IX
REPRESENTATIONS AND WARRANTIES
Borrower hereby represents and warrants:
9.1 EXISTENCE AND POWER. It is a duly organized and validly existing
corporation, is duly qualified and in good standing in each jurisdiction where
the conduct of its business or the ownership of its properties requires such
qualification, and has full power, authority and legal right to carry on its
business as presently conducted, to own and operate its properties and assets,
and to execute, deliver and perform the Loan Documents and all other documents
to be executed and delivered by it.
9.2 AUTHORIZATION. Its execution, delivery and performance of the Loan
Documents and all documents to be executed, delivered or performed by it and any
borrowing in connection therewith have been duly authorized by all necessary
corporate action, do not contravene any law, regulation, rule or order binding
on it or its articles of incorporation, and do not contravene the provisions of
or constitute a default under any agreement or instrument to which it is a party
or by which it may be bound or affected.
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9.3 LITIGATION. There are no actions, proceedings, investigations, or
claims pending against it, or to its knowledge, threatened against or affecting
it, before any court or arbitrator or any governmental body or agency which
would be likely to result in a judgment or order against it (in excess of
insurance coverage) for more than $100,000.00 individually or in the aggregate.
9.4 FINANCIAL CONDITION. Its most recent balance sheet and related
statements of income, retained earnings and changes in financial position
heretofore delivered to Lender fairly present as of the date thereof its
financial condition for the period then ended, all in accordance with GAAP.
Since that date there have been no material adverse changes in its financial
condition or operations, except as disclosed to Lender in writing.
9.5 TAXES. It has filed all tax returns and reports required of it, and has
paid all taxes payable by it which have become due pursuant to such tax returns
and all other taxes and assessments payable by it.
9.6 OTHER AGREEMENTS. It is not in breach of or in default under any
agreement to which it is a party or which is binding on it or any of its assets,
which such breach or default would have a material adverse effect on its
financial condition or operations.
9.7 GOOD TITLE AND VALIDITY. It is the true and lawful owner of and has
good title to all Collateral which it now owns and it will have good title to
all such Collateral acquired hereafter, free of any security interests, liens or
encumbrances, except in favor of Lender.
9.8 FIRST PRIORITY SECURITY INTEREST. The liens created or to be created in
favor of Lender under the Security Documents do and will at all times on and
after the effective date of this Agreement, constitute first priority security
interests in the Collateral as security for the obligations of Borrower under
the Loan Documents.
9.9 COMPLIANCE WITH LAWS. It is in compliance with all applicable federal,
state, regional and local laws, regulations and ordinances, including without
limitation all environmental permits, Environmental Laws and Access Laws.
9.10 ERISA AND FLSA COMPLIANCE. Any employee pension benefit plan ("Plan")
maintained for its employees which is subject to the Employment Retirement
Income Security Act of 1974 and any regulations issued thereto complies in all
material respects with ERISA and any other applicable laws and (a) such Plan has
not incurred any material accumulated "funding deficiency" and (b) with respect
to such Plan, no "reportable event" nor "prohibited transaction" has occurred.
It is in full compliance with the Fair Labor Standards Acts.
9.11 NO MATERIAL MISSTATEMENTS. No report, financial statement,
representation or other information furnished by it to Lender contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
9.12 ENFORCEABILITY. This Agreement constitutes, and each other Loan
Document to which it is a party when executed and delivered to Lender will
constitute a legal, valid and binding obligation of Borrower, enforceable in
accordance with its terms.
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ARTICLE X
FINANCIAL COVENANTS AND INFORMATION
10.1 FINANCIAL COVENANTS. Until payment and performance in full of all
obligations of the Borrower under the Loan Documents, the Borrower agrees that:
10.1.1 DEBT TO TANGIBLE NET WORTH RATIO. The Borrower shall have a
Debt to Tangible Net Worth Ratio not to exceed 1.50 to 1 at the end of
Borrower's first, second, and third fiscal quarter and 1.20 to 1 at the end of
each fiscal year of Borrower. The Debt to Tangible Net Worth Ratio shall be
calculated on the "Compliance Certificate" and measured at the end of each
fiscal quarter of the Borrower.
10.1.2 MINIMUM TANGIBLE NET WORTH. The Borrower shall have Tangible
Net Worth of at least $18,000,000.00 as at the end of Borrower's first, second
and third fiscal quarters and at least $30,000,000.00 as of the Borrower's 1998
fiscal year end and thereafter. Tangible Net Worth shall be calculated on the
"Compliance Certificate" and measured at the end of each fiscal quarter of the
Borrower.
10.1.3 DEBT SERVICE COVERAGE RATIO. The Borrower shall have a Debt
Service Coverage Ratio of at least 1.25:1, which ratio shall be calculated at
the end of each fiscal year of the Borrower.
10.2 FINANCIAL INFORMATION
10.2.1 As soon as available and in any event within 90 days after the
end of each of its fiscal years, the Borrower shall deliver to Lender its CPA
audited balance sheet as at the end of such fiscal year; related statements of
income, retained earnings and changes in financial position for such year; and
report, if any, to management by the accountant who prepared the financial
statements, in each case certified by a certified public accountant acceptable
to Lender. No document or report shall contain a disclaimer of opinion or
adverse opinion except such as Lender in its sole discretion may determine to be
immaterial.
10.2.2. As soon as available and in any event within 30 days after the
end of each of its fiscal quarters, the Borrower shall deliver to Lender its
internally prepared balance sheet and related statements of income, retained
earnings and changes in financial position as at the end of such quarter, and
for the fiscal year to date.
10.2.3 As soon as available and in any event within 30 days after the
end of each of its fiscal quarters, the Borrower shall deliver to Lender, at
Borrower's sole expense, a compliance certificate substantially in the form
attached hereto as Exhibit "C" completed and signed by Borrower's chief
financial officer or other authorized officer acceptable to Lender (the
"Compliance Certificate").
10.2.4 From time to time, Borrower shall provide to Lender such
information as Lender may reasonably request concerning the financial condition
and business affairs of Borrower.
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ARTICLE XI
AFFIRMATIVE COVENANTS
Until payment and performance in full of all obligations of the Borrower
under the Loan Documents, the Borrower agrees that:
11.1 INSPECTION RIGHTS. At any reasonable time, and from time to time, it
will permit Lender to examine and make copies of and abstracts from its records
and books of account, to visit its properties and to discuss its affairs,
finances and accounts with any of its officers or representatives.
11.2 COLLATERAL AUDITS. It will permit Lender by or through any of Lender's
representatives, attorneys or accountants and at the expense of Borrower, at
such intervals as may be required by Lender in its sole discretion, to conduct
audits of and to verify, the Collateral.
11.3 KEEPING OF BOOKS AND RECORDS. It will keep adequate records and books
of account in which complete entries will be made reflecting all material
financial transactions, and except as otherwise specifically provided herein,
will prepare all financial statements, computations and information required
hereunder in accordance with GAAP.
11.4 OTHER OBLIGATIONS. It will pay and discharge before the same shall
become delinquent all indebtedness, taxes and other obligations for which it is
liable or to which its income or property is subject and all claims for labor
and materials or supplies which, if unpaid, might become by law a lien upon its
assets, unless it is contesting the indebtedness, taxes, or other obligations
in good faith and provision has been made to the reasonable satisfaction of
Lender for the payment thereof in the event any such contest is determined
adversely to it.
11.5 INSURANCE. It will provide and maintain policies of insurance on its
properties and operations, carried with companies acceptable to Lender, in such
form and amounts and covering such risks as Lender may require, with loss
payable to Lender.
11.6 ERISA COMPLIANCE. It will cause each Plan to comply in all material
respects with ERISA and any other applicable laws, will promptly make all
contributions necessary to meet the minimum funding standards set forth in ERISA
and will promptly notify Lender of the occurrence of any "reportable event" (as
defined in ERISA) or any other event which might constitute grounds for
termination of any ERISA Plan. It will not terminate any ERISA Plan nor permit
to exist any "termination event" (as defined in ERISA).
11.7 COMPLIANCE WITH LAWS. It shall comply in all material respects with all
federal, state, regional and local laws, regulations and ordinances (including
but not limited to all Environmental Laws, Access Laws and the Fair Labor
Standards Act) and promptly provide written notice to Lender of the receipt of
any notice of violation thereof from any governmental authority which violation,
alone or together with any other such violations, could reasonably be expected
to have a material adverse effect on its business, assets, operations or
condition, financial or otherwise.
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11.8 NOTIFICATION. Promptly after learning thereof, it will notify Lender
in writing of:
11.8.1 The occurrence of any Default, and if such Default is then
continuing, a certificate of its chief financial officer or other authorized
officer setting forth the details thereof and the action which it is taking or
proposes to take with respect thereto;
11.8.2 The occurrence of any release of any Hazardous Substances onto
or affecting any of its property or any adjacent property, any Collateral, or
any other environmental problem or liability with respect to any such property;
and
11.8.3 The details of any claim, lien, litigation, administrative
proceeding or judgment involving $100,000.00 or more individually or in the
aggregate threatened, instituted or completed against Borrower, any Collateral
or any assets of Borrower, including but not limited to any and all
enforcement, cleanup, removal or other governmental or regulatory proceedings
pursuant to any Environmental Laws.
ARTICLE XII
NEGATIVE COVENANTS
Until payment and performance in full of all obligations of Borrower under
the Loan Documents, Borrower agrees that except with the written consent of
Lender:
12.1 LIQUIDATION, MERGER. It shall not liquidate, dissolve or enter into
any merger, consolidation or other combination.
12.2 SALE OF ASSETS. It shall not sell, lease or dispose of any portion of
its business or assets except in the ordinary course of business.
12.3 GUARANTIES, ETC. It shall not assume, guarantee, endorse or otherwise
become directly or contingently liable for, nor obligated to purchase, pay or
provide funds for payment of, any obligation or indebtedness of any other
Person.
12.4 LIENS. It shall not at any time grant a security interest in any or
all of its presently owned or hereafter acquired property which constitutes
Collateral, accounts or inventory except to Lender.
12.5 TYPE OF BUSINESS. It shall not make any material change in the
character of its business.
12.6 STRUCTURE. It shall not make any material change in its corporate
structure.
ARTICLE XIII
DEFAULT
13.1 EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute an Event of Default under this Agreement and each of the Loan
Documents:
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13.1.1 Any default in the payment of any portion of any principal,
interest, fees or any other amount when due under this Agreement, any Note or
any other Loan Document.
13.1.2 Any other default in the performance of or compliance with any term
of this Agreement, any other Loan Document, or any other agreement between
Lender and Borrower.
13.1.3 Any indebtedness of Borrower under any note, indenture, agreement,
undertaking or obligation of any kind to any Person, including Lender, becomes
due by acceleration or otherwise and is not paid.
13.1.4 Any default under any security instrument securing any indebtedness
or obligation of Borrower to Lender or any security interest or lien created or
purported to be created by the Security Document shall cease to be, or shall be
asserted by any Person not to be, a valid, first priority security interest or
lien.
13.1.5 Any warranty, representation, statement, or information made or
furnished to Lender by or on behalf of Borrower proves to have been false or
misleading in any material respect when made or furnished or when deemed made or
furnished.
13.1.6 The commencement of any proceeding under any bankruptcy or
insolvency laws by or against, appointment of a receiver for any part of the
property of, insolvency or business failure of, or any attachment, seizure or
levy on any property of, Borrower.
13.1.7 The dissolution or liquidation of Borrower.
13.1.8 The interruption or cessation of a material portion of Borrower's
ordinary business operations.
13.1.9 Any judgment, writ of attachment or similar process in an amount in
excess of $250,000.00 individually or in the aggregate shall be entered or filed
against Borrower or any property of Borrower and remains unpaid, unvacated,
unbonded or unstayed for a period of 30 days or more.
13.1.10 The failure of Borrower to provide Lender with financial
information promptly when requested.
13.1.11 Any change in ownership of 40% or more of the capital stock of
Borrower in one or more transactions.
13.1.12 Any material adverse change, as determined solely by Lender, in the
financial condition or management of Borrower or Lender reasonably deems itself
insecure with respect to the payment or performance of the obligations of
Borrower to Lender.
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13.2 CURE PERIOD. Notwithstanding the foregoing, the Borrower shall have 30
days to cure any default occurring under Sections 13.1.1, 13.1.2, 13.1.8,
13.1.9, 13.1.10, 13.1.11, or 13.1.12.
13.3 CONSEQUENCES OF DEFAULT; LENDER'S RIGHTS AND REMEDIES. Time is of the
essence of this Agreement.
13.2.1 Without prejudice to any right of Lender to require payment of
any obligations of Borrower to Lender under any of the Loan Documents on
demand, upon the occurrence of any Event of Default and at any time
thereafter Lender may, at its sole option, do any one or more of the
following:
(a) Without notice to Borrower, declare the entire outstanding
balance of principal and interest on the Notes and other Loan
Documents immediately due and payable, whereupon the same shall become
immediately due and payable without presentment, demand, protest or
other requirements of any kind, all of which are expressly waived by
Borrower; and
(b) Exercise any and all other rights and remedies provided in
the Loan Documents and in any related agreements and documents, and as
otherwise provided by law.
13.2.2 Notwithstanding any right to cure events of default provided in
any Note or any of the other Loan Documents, Borrower agrees that Borrower
shall have only such cure rights as may be set forth herein.
ARTICLE XIV
MISCELLANEOUS
14.1 NO WAIVER BY LENDER. No failure or delay of Lender in exercising any
right, power or remedy under this Agreement or any Loan Document shall operate
as a waiver of such right, power or remedy of Lender or of any other right. A
waiver of any provision of any Loan Document shall not constitute a waiver of or
prejudice Lender's right otherwise to demand strict compliance with that
provision or any other provison. Any waiver, permit, consent or approval of any
kind or character on the part of Lender must be in writing and shall be
effective only to the extent specifically set forth in such writing.
14.2 COSTS AND FEES. Without limiting any other provisions of this
Agreement, Borrower hereby agrees to pay Lender on demand an amount equal to
all costs and expenses incurred by Lender in connection with the negotiation,
preparation, execution, administration and enforcement of the Loan Documents,
including without limitation all recording costs, filing fees, costs of
appraisals, collateral audits, costs of perfecting, maintaining and defending
Lender's security interest in the Collateral and fees of in-house and outside
counsel.
14.3 AGREEMENTS ENFORCEABLE. Borrower reaffirms the representations and
warranties in each of the existing Loan Documents and acknowledges that except
as amended previously or
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herein, each such Loan Document remains in full force and effect and is and
shall remain valid and enforceable in accordance with its terms.
14.4 NOTICES. Except as otherwise specifically set forth in any Loan
Document, all notices, requests and demands hereunder shall be in writing, and
shall be deemed to have been given when hand-delivered, when deposited in the
mail as first class, registered or certified mail, postage prepaid, or when sent
by telecopier, addressed as set forth below; provided, however, that any notice,
request or demand by Borrower to Lender pursuant to Section 11.8 shall not be
effective until received by Lender. Any party may at any time change its address
for notices by giving notice of such change to the other parties.
If to Borrower: Coldwater Creek Inc.
One Cold Water Creek Drive
Sandpoint, ID 83864
If to Lender: U.S. Bank of Idaho
Corporate Banking Department-IDW 0475
P.O. Box 8247
Boise, Idaho 83733
Facsimile (208) 383-7563
14.5 COLLECTION COSTS AND ATTORNEY FEES. Whether or not litigation or
arbitration is commenced, Borrower promises to pay all costs of collecting any
amounts which may become due to Lender under any of the Loan Documents. Without
limiting the foregoing, if litigation or arbitration is commenced to enforce or
construe any term of any of the Loan Documents, the prevailing party shall be
entitled to recover from the other party all costs thereof, including but not
limited to such sums as the court or arbitrator(s) may adjudge reasonable as
attorney fees at trial, in any appellate proceeding, proceeding under the
bankruptcy code or receivership and post-judgment attorney fees incurred in
enforcing any judgment.
14.6 INTEGRATION; CONFLICTING TERMS. This Agreement together with the other
Loan Documents comprises the entire agreement of the parties on the subject
matter hereof and supersedes and replaces all prior agreements, oral and
written, on such subject matter. If any term of any of the other Loan Documents
expressly conflicts with the provisions of this Agreement, the provisions of
this Agreement shall control; provided, however, that the inclusion of
supplemental rights and remedies of Lender in any of the other Loan Documents
shall not be deemed a conflict with this Agreement.
14.7 GOVERNING LAW. Except to the extent that Lender has greater rights and
remedies under federal law, this Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Idaho without regard to
conflicts of law principles.
14.8 ADDITIONAL ACTS. Upon request by Lender, Borrower will from time to
time provide such information, execute such documents and do such acts as may
reasonably be required by Lender in connection with any indebtedness or
obligations of any of them to Lender.
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