LOAN AGREEMENT
Dated as of: SEPTEMBER 9, 1996
Parties: COLDWATER CREEK, INC. ("BORROWER")
And: U.S. BANK OF IDAHO, FORMERLY KNOWN AS ("LENDER")
WEST ONE BANK, IDAHO
ARTICLE I
LOAN AGREEMENT
Dated as of: SEPTEMBER 9, 1996
Parties: COLDWATER CREEK, INC. ("BORROWER")
And: U.S. BANK OF IDAHO, FORMERLY KNOWN AS ("LENDER")
WEST ONE BANK, IDAHO
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 $2,100,000.00.
"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.
"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 March 31,
1999, and the date Lender demands payment in full of the then outstanding
balance of the Long Term Revolving Note.
"Maximum Long Term Revolving Loan Amount" means $11,500,000.00.
"Maximum Short Term Revolving Loan Amount" means $8,500,000.00.
"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 March 17,
1997, 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
CURRENT INDEBTEDNESS
2.1 PROMISSORY NOTES. Borrower is indebted to Lender pursuant to
the terms of the following promissory notes which may renew promissory notes
previously executed by Borrower ("Current Indebtedness"). Borrower may also
have other indebtedness or obligations to Lender.
2.1.1 Promissory note dated March 18, 1996, in the principal amount
of $6,500,000.00, which promissory note shall be superseded by the Short Term
Revolving Note. The principal balance is $0 as of June 24, 1996.
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2.1.2 Promissory note dated March 8, 1996, in the principal amount of
$8,500,000.00, which promissory note shall be superseded by the Long Term
Revolving Note. The principal balance is $0 as of June 24, 1996.
2.2 CURRENT SECURITY. The Current Indebtedness is secured by the
collateral described in the following documents, in any related Uniform
Commercial Code financing statements and certificates of title and in any
other security documents executed by Borrower ("Current Security Documents").
2.2.1 Commercial Security Agreement dated March 8, 1996, executed by
the Borrower.
2.2.2 Deed of Trust dated March 20, 1995, executed by the Borrower
and recorded in the real estate records of Xxxxxx County on July 3, 1995, as
instrument #467892.
ARTICLE III
SHORT 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 "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 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.
3.2 USE OF PROCEEDS. Borrower shall use the proceeds of the Short
Term Revolving Loans for its normal working capital needs.
3.3 SHORT TERM REVOLVING NOTE. The Short Term Revolving Loans
shall be evidenced by a promissory note executed by Borrower in the principal
amount of $8,500,000.00 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.
3.4 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.
3.5 PRINCIPAL PAYMENTS. The principal balance of the Short Term
Revolving Note shall be due and payable on the Short Term Revolving Note
Review Date.
3.6 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.
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3.7 REQUESTS FOR SHORT TERM REVOLVING ADVANCES. Whenever Borrower
wishes to request a Short Term Revolving Advance, Borrower shall give Lender
notice thereof in accordance with the provisions of the Short Term Revolving
Note.
ARTICLE IV
LONG TERM REVOLVING LOANS
4.1 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 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.
4.2 USE OF PROCEEDS. Borrower shall use the proceeds of the Long
Term Revolving Loans for the purchase of fixed assets.
4.3 LONG TERM REVOLVING NOTE. The Long Term Revolving Loans shall
be evidenced by a promissory note executed by Borrower in the principal
amount of $11,500,000.00 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.
4.4 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.
4.5 PRINCIPAL PAYMENTS. The principal balance of the Long Term
Revolving Note shall be due and payable on the Long Term Revolving Note
Review Date.
4.6 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.
4.7 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 V
LOAN FEES
Borrower shall pay to Lender the following fees:
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7.1 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.
7.2 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.
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 or Long Term Revolving
Advance shall be deemed to be its representation and warranty that (a) such
Short Term Revolving Advance or Long Term Revolving Advance may be made
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 such Short Term Revolving Advance or Long Term
Revolving Advance, 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 Xxxxxx 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 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
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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.
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. Lender's Agreement to make a Short Term or a Long Term Revolving
Loan Advance is subject to satisfaction of the following conditions on the
date any loan is made.
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.
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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.
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.
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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 Act.
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.
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, which ratio shall
be calculated at the end of each fiscal year of the Borrower.
10.1.2 MINIMUM TANGIBLE NET WORTH. The Borrower shall have
Tangible Net Worth of at least $18,000,000.00, which amount shall be
calculated at the end of each fiscal year 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.
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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 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.
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
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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.
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.
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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 EVENT OF DEFAULT. The occurrence of any of the following shall
constitute an Event of Default under this Agreement and each of the Loan
Documents:
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 any 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 judgement, 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
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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.
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
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compliance with that provision or any other provision. 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 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 Xxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
If to Lender: U.S. Bank of Idaho
Corporate Banking Department - IDW 0475
X.X. Xxx 0000
Xxxxx, Xxxxx 00000
Facsimile (000) 000-0000
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
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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.
14.9 DOCUMENTS SATISFACTORY TO LENDER. All information, documents
and instruments required to be executed or delivered to Lender shall be in
form and substance satisfactory to Lender.
14.10 JURY WAIVER. LENDER AND BORROWER HEREBY WAIVE THE RIGHT TO ANY
JURY TRIAL IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY
EITHER LENDER OR BORROWER AGAINST THE OTHER.
14.11 EXHIBITS. All Exhibits referred to herein are attached hereto
and hereby incorporated by reference as if fully set forth herein.
14.12 REFERENCES.
14.12.1 References to any Loan Document shall mean such Loan
Document as amended, modified, supplemented or extended from time to time and
any number of substitutions, renewals and replacements thereof or therefor.
14.12.2 References to governmental laws, statutes, ordinances,
rules and regulations shall be construed as including all amendments,
consolidations and replacements thereof or therefor.
BORROWER ACKNOWLEDGES RECEIPT OF A COPY OF THIS AGREEMENT.
BORROWER LENDER
COLDWATER CREEK, INC. U.S. BANK OF IDAHO FORMERLY
KNOWN AS WEST ONE BANK, IDAHO
BY /S/ Xxxxxx X. Xxxxxx BY /S/ Xxxxxxx X. Xxxxxxx
------------------------- -------------------------
Xxxxxx X. Xxxxxx, Vice President & Xxxxxxx X. Xxxxxxx
Chief Financial Officer
TITLE C.F.O. TITLE SR. VP
------------------------- -------------------------
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