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Loan Agreement [Amended and Restated No. 2]
Loan Agreement [Amended and Restated No. 2] (240K)
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SECOND AMENDED AND RESTATED LOAN AGREEMENT
By and Among
WASHINGTON MUTUAL BANK doing business as WESTERN BANK
BANK OF AMERICA, N.A.
The Several Lenders from Time to Time Parties Hereto
as the Lenders
and
WASHINGTON MUTUAL BANK doing business as WESTERN BANK
as the Letter of Credit Issuer
and
CUTTER & BUCK INC.
as the Borrower
and
WASHINGTON MUTUAL BANK doing business as WESTERN BANK
as the Administrative Agent to the Lenders and the Letter of Credit Issuer
Dated as of July 28, 2000
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS.........................................................................2
Section 1.1 Certain Defined Terms...................................................................2
Section 1.2 Computation of Time Periods.............................................................10
Section 1.3 Accounting Terms........................................................................10
ARTICLE II AMOUNTS AND TERMS OF THE BORROWINGS.....................................................................10
Section 2.1 The Facilities..........................................................................10
Section 2.2 The Borrowings..........................................................................11
Section 2.3 Making the Borrowings...................................................................18
Section 2.4 Interest Rates; Late Charges............................................................19
Section 2.5 Repayment...............................................................................20
Section 2.6 Fees....................................................................................21
Section 2.7 Prepayments.............................................................................21
Section 2.8 Payments and Computations...............................................................21
Section 2.9 Increased Costs.........................................................................22
Section 2.10 Illegality..............................................................................23
Section 2.11 Prepayment Indemnity; Fee...............................................................23
Section 2.12 Evidence of Debt........................................................................25
Section 2.13 Collateral..............................................................................25
Section 2.14 Use of Proceeds finance the Borrower's equipment and leasehold improvements.............25
ARTICLE III CONDITIONS OF BORROWING................................................................................25
Section 3.1 Conditions Precedent to Effective Date..................................................25
Section 3.2 Conditions Precedent to Each Borrowing..................................................26
ARTICLE IV REPRESENTATIONS AND WARRANTIES..........................................................................27
Section 4.1 Organization............................................................................27
Section 4.2 Authorization...........................................................................27
Section 4.3 Financial Information...................................................................27
Section 4.4 Legal Effect............................................................................27
Section 4.5 Properties..............................................................................28
Section 4.6 Hazardous Substances....................................................................28
Section 4.7 Litigation and Claims...................................................................28
Section 4.8 Taxes...................................................................................28
Section 4.9 Lien Priority...........................................................................28
Section 4.10 Binding Effect..........................................................................28
Section 4.11 Commercial Purposes.....................................................................28
Section 4.12 Employee Benefit Plans..................................................................28
Section 4.13 Location of The Borrower's Offices and Records..........................................29
Section 4.14 Information.............................................................................29
Section 4.15 Survival of Representations and Warranties..............................................29
ARTICLE V COVENANTS OF THE BORROWER................................................................................29
Section 5.1 Affirmative Covenants...................................................................29
Section 5.2 Negative Covenants......................................................................32
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Section 5.3 Financial Covenants.....................................................................33
ARTICLE VI EVENTS OF DEFAULT.......................................................................................34
Section 6.1 Events of Default.......................................................................34
Section 6.2 Remedies................................................................................35
Section 6.3 Adjustments; Right of Set-Off...........................................................36
Section 6.4 Cumulative Remedies.....................................................................36
Section 6.5 Application of Payments.................................................................37
ARTICLE VII THE ADMINISTRATIVE AGENT...............................................................................37
Section 7.1 Appointment.............................................................................37
Section 7.2 Delegation of Duties....................................................................37
Section 7.3 Exculpatory Provisions..................................................................38
Section 7.4 Reliance by Administrative Agent........................................................38
Section 7.5 Notice of Default.......................................................................38
Section 7.6 Non-Reliance on Administrative Agent and Other Lenders..................................38
Section 7.7 Indemnification.........................................................................39
Section 7.8 Administrative Agent in Its Individual Capacity.........................................39
Section 7.9 Successor Administrative Agent..........................................................39
ARTICLE VIII MISCELLANEOUS.........................................................................................40
Section 8.1 Amendments..............................................................................40
Section 8.2 Notices.................................................................................40
Section 8.3 No Waiver; Remedies.....................................................................41
Section 8.4 Costs and Expenses; Indemnification.....................................................41
Section 8.5 Binding Effect; Successors and Assigns; Participations and Assignments..................42
Section 8.6 Execution in Counterparts...............................................................44
Section 8.7 Governing Law...........................................................................44
Section 8.8 Mediation/Arbitration Provisions........................................................44
Section 8.9 Severability............................................................................46
Section 8.10 Entire Agreement........................................................................46
Section 8.11 Descriptive Headings....................................................................46
Section 8.12 Gender and Number.......................................................................46
Section 8.13 Confirmation of Security Documents......................................................46
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EXHIBIT A-1 FORM OF REVOLVING FACILITY NOTE
EXHIBIT A-2 FORM OF TERM FACILITY NOTE
EXHIBIT B FORM OF NOTICE OF BORROWING
EXHIBIT C FORM OF ASSIGNMENT AND ACCEPTANCE
EXHIBIT D COMMITMENT AMOUNTS
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AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDED AND RESTATED LOAN AGREEMENT (this "Agreement") dated as of
JULY 28, 2000 is made by and among CUTTER & BUCK INC., a Washington
corporation (the "Borrower"), WASHINGTON MUTUAL BANK doing business as
WESTERN BANK ("Western Bank"), BANK OF AMERICA, N.A. ("BofA"), the several
banks and other financial institutions from time to time parties to this
Agreement (including Western Bank and BofA in their respective capacities as
lenders, the "Lenders"), Western Bank, as issuer of letters of credit (the
"Letter of Credit Issuer") and as issuer of credit cards (the "Credit Card
Issuer"), and Western Bank, as administrative agent for the Lenders, the
Letter of Credit Issuer and the Credit Card Issuer (in such capacity, the
"Administrative Agent"), and amends and restates in its entirety the Amended
and Restated Loan Agreement dated as of April 28, 1999 among the Borrower,
Western Bank and BofA (then known as Bank of America National Trust and
Savings Association doing business as Seafirst Bank) (the "Original Loan
Agreement").
RECITALS
The Borrower, Western Bank and BofA are parties to the Original Loan
Agreement pursuant to which Western Bank and BofA agreed to provide certain
credit facilities to the Borrower. The Borrower, Western Bank and BofA have
agreed, among other things, to increase the amount of the commitment under
the Original Loan Agreement, to amend certain financial covenants and to
extend the termination date of the Original Loan Agreement. The Borrower,
Western Bank and BofA desire to amend and restate the Original Loan Agreement
to reflect the foregoing.
Accordingly, the parties agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms
defined):
"ACCEPTANCE" means a Draft presented to the Letter of Credit Issuer and
accepted by the Letter of Credit Issuer in accordance with Section 2.2(d).
"ADVANCE" means an advance to the Borrower pursuant to Article II, and
refers to a Floating Rate Advance or a Fixed Rate Advance (each of which
shall be a "TYPE" of Advance). Revolving Facility Advances may be borrowed as
Floating Rate Advances or LIBOR Rate Advances. Term Facility Advances may be
borrowed as Floating Rate Advances, LIBOR Rate Advances or Term Rate Advances.
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"AFFILIATE" means, as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control
with, such Person. For purposes of this definition, "control" of a Person
means the power, directly or indirectly, either to (a) vote 20% or more of
the voting interests of such Person or (b) direct or cause the direction of
the management and policies of such Person, whether by contract or otherwise.
"AUTHORIZED OFFICER" means the President, any Senior Vice-President or
the Chief Financial Officer or Controller of the Borrower.
"BORROWER" means Cutter & Buck Inc., a Washington corporation.
"BORROWING" means a borrowing consisting of (a) the making of an
Advance, (b) the issuance of a Letter of Credit, (c) the acceptance of Drafts
or (d) the funding of risk participations pursuant to Section 2.2(b)(iii) or
2.2(c)(ii).
"BORROWING REQUEST" means a request made by the Borrower to the
Administrative Agent for (a) a Borrowing or (b) the conversion or
continuation of an Advance pursuant to the terms of this Agreement and shall,
if requested by the Administrative Agent, be in the form of a Notice of
Borrowing attached as Exhibit B.
"BUSINESS DAY" means a day of the year on which banks are not required
or authorized to close in Seattle, Washington and, if the applicable Business
Day relates to any LIBOR Rate Advances, on which dealings are carried on in
the London interbank market.
"CAPITAL EXPENDITURES" means expenditures in respect of the purchase or
other acquisition of fixed or capital assets that are required to be
capitalized for financial reporting purposes in accordance with GAAP.
"COLLATERAL" means the collateral described in the Security Agreement or
any other Loan Document at any time now or hereafter in effect between the
Borrower and the Administrative Agent, acting on behalf and for the benefit
of each of the Lenders, the Letter of Credit Issuer and the Credit Card
Issuer, including all items of real and personal property in which the
Administrative Agent holds a Lien to secure the credit facilities provided in
this Agreement.
"COMMERCIAL LETTERS OF CREDIT" means irrevocable commercial letters of
credit issued pursuant to Section 2.2(b) from time to time by the Letter of
Credit Issuer or one of its correspondents for the account of the Borrower.
"COMMITMENT" means, with respect to each Lender, the dollar amount
constituting a portion of the Revolving Commitment set forth opposite such
Lender's name on Exhibit D hereof, including any recalculation thereof
resulting from an assignment of any portion of its rights and obligations
under this Agreement pursuant to Section 8.5(c).
"COMMITMENT PERCENTAGE" means, as to any Lender at any time, the
percentage which such Lender's Commitment then constitutes of the Revolving
Commitment.
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"CREDIT CARDS" means one or more Business Visa Cards issued pursuant to
Section 2.2(c) for the account of the Borrower.
"CREDIT CARD PARTICIPANT" means as to any Credit Card, each Lender other
than the Letter of Credit Issuer and BofA.
"CREDIT CARD ISSUER" means Washington Mutual Bank doing business as
Western Bank.
"DEBT SERVICE" means, as of the last day of any fiscal quarter, the sum
of (a) interest on Indebtedness paid during the fiscal quarter then ended and
the immediately preceding three fiscal quarters, (b) factoring commissions
paid during the fiscal quarter then ended and the immediately preceding three
fiscal quarters, (c) all amounts required to be paid or prepaid with respect
to Funded Indebtedness within one year of such date and (d) all amounts
required to be paid or prepaid with respect to capital leases or long term
operating leases within one year of such date.
"DEFAULT" has the meaning specified in the definition of "Event of
Default."
"DEFAULT RATE" has the meaning specified in Section 2.4(b).
"DOLLARS", "DOLLARS" or the symbol "$" means lawful money of the United
States of America denominated in United States dollars.
"DRAFT" has the meaning specified in Section 2.2(d).
"EBITDA" means, for any period, the net income or net loss of the
Borrower and its subsidiaries computed on a consolidated basis in accordance
with GAAP (but excluding extraordinary gains or losses), after restoring
amounts deducted for, without duplication, (a) interest expense, (b) taxes
based upon net income and (c) depreciation and amortization.
"EFFECTIVE DATE" means July 31, 2000.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"EVENT OF DEFAULT" means any of the events specified in Section 6.1,
provided that there has been satisfied any requirement in connection with
such event for the giving of notice, or the lapse of time, or the happening
of any further condition, event or act, and "DEFAULT" shall mean any of such
events, whether or not any such requirement has been satisfied.
"FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any day, the weighted
average of the rates on overnight federal funds transactions with members of
the Federal Reserve System arranged by federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day which is a Business Day, the
average of the quotations for the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized standing
selected by it.
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"FIXED RATE" means a LIBOR Rate or a Term Rate.
"FIXED RATE ADVANCE" means a LIBOR Rate Advance or a Term Rate Advance.
"FLOATING RATE" means, with respect to any Floating Rate Advance, the
interest rate per annum reported as the Prime Rate in the Money Rates section
of the Wall Street Journal. If the Wall Street Journal ceases reporting the
Prime Rate as currently reported, the Floating Rate shall be another
reasonably comparable rate selected by the Lender.
"FLOATING RATE ADVANCE" means an Advance which bears interest at a rate
determined by reference to the Floating Rate as provided in Section 2.4(a)(i).
"FUNDED DEBT" means, as of any date of determination, (a) the
Indebtedness of the Borrower under this Agreement, plus (b) any other
Indebtedness of the Borrower or its subsidiaries that (i) has a stated
maturity date in excess of one year from the date of the creation of such
Indebtedness or (ii) has a stated maturity date of one year or less from the
date of creation of such Indebtedness but is renewable or extendable at the
option of the Borrower.
"GAAP" means generally accepted accounting principles in the United
States.
"INDEBTEDNESS" means, with respect to any Person: (i) all items of
indebtedness or liability which would be included in determining total
liabilities as shown on the liability side of a balance sheet as of the date
as of which indebtedness is determined; (ii) indebtedness secured by any Lien
on property carried on the asset side of the balance sheet of such Person
whether or not such indebtedness shall have been assumed; (iii) any other
indebtedness or liability for borrowed money or for the deferred purchase
price of property or services for which such Person is directly or
contingently liable as obligor, guarantor, or otherwise, or in respect of
which such Person otherwise assures a creditor against loss; and (iv) any
other obligations of such Person under leases which shall have been or,
pursuant to GAAP, should be recorded as capital leases.
"INTEREST PERIOD" means, for each Fixed Rate Advance, the period
beginning on the date of such Advance and ending on the last day of the
period selected by the Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be (a) in the case of a LIBOR
Rate Advance, one, two, three or six months, and (b) in the case of a Term
Rate Advance, one, three, four or five years, in each case as selected by the
Borrower in its applicable Borrowing Request; provided, however, that:
(i) no Interest Period shall end after the Termination Date,
in the case of a Revolving Facility Advance, or after the Maturity Date, in
the case of a Term Facility Advance; and
(ii) if the last day of such Interest Period would otherwise
occur on a day which is not a Business Day, such last day shall be extended
to the next succeeding Business Day, EXCEPT if such Interest Period is for a
LIBOR Rate Advance and such extension would
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cause such last day to occur in a new calendar month, then such last day
shall occur on the next preceding Business Day.
"LETTER OF CREDIT" means any letter of credit issued by the Letter of
Credit Issuer or one of its correspondents for the account of the Borrower in
accordance with the provisions of Section 2.2(b), which letter of credit
shall be: (i) in the case of a Commercial Letter of Credit, issued in
connection with the purchase of inventory by the Borrower and, in the case of
a Standby Letter of Credit, issued for such other purposes, if any, for which
the Borrower has historically obtained letters of credit or for such other
purposes as are acceptable to the Lender; (ii) denominated in United States
Dollars, and (iii) otherwise in such form as may be approved from time to
time by the Letter of Credit Issuer.
"LETTER OF CREDIT AGREEMENTS" means, collectively, the Continuing
Agreement for Commercial Letters of Credit dated as of January 29, 1997 from
the Borrower to the Letter of Credit Issuer and the Continuing Agreement for
Standby Letters of Credit dated as of January 29, 1997 from the Borrower to
the Letter of Credit Issuer.
"LETTER OF CREDIT ISSUER" means Washington Mutual Bank doing business as
Western Bank.
"LETTER OF CREDIT PARTICIPANT" means as to any Letter of Credit, each
Lender other than the Letter of Credit Issuer.
"LIBOR RATE" means, with respect to any LIBOR Rate Advance for any
Interest Period, an interest rate per annum (rounded upward to the next 1/100
of 1%) reported as the London Interbank Offered Rate in the Money Rates
section of the Wall Street Journal published on the Business Day next
preceding the date such LIBOR Rate Advance is made (which rate may be
reported as of an earlier date) for maturities equal to the requested
Interest Period. Unless and until the Wall Street Journal publishes such rate
for two-month periods, the LIBOR Rate for two-month Interest Periods shall be
the average of the one-month and the three-month London Interbank Offered
Rates as reported in the Wall Street Journal on the relevant day. If the Wall
Street Journal ceases reporting London Interbank Offered Rates comparable to
those currently reported, the LIBOR Rate shall be another reasonably
comparable rate selected by the Lender.
"LIBOR RATE ADVANCE" means an Advance which bears interest at a rate
determined by reference to the LIBOR Rate as provided in Section 2.4(a)(ii).
"LIEN" means any mortgage, pledge, security interest, encumbrance, lien
or charge of any kind (including any agreement to give any of the foregoing,
any conditional sale or other title retention agreement, any lease in the
nature thereof, and the filing of or agreement to give any financing
statement under the Uniform Commercial Code of any jurisdiction).
"LOAN DOCUMENTS" means this Agreement, the Notes, the Letter of Credit
Agreements, the Security Documents and all other documents, instruments and
agreements related thereto, including all documentation delivered pursuant to
Section 2.2(b)(ii).
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"MATURITY DATE" means, with respect to each Term Facility Advance,
August 1, 2005.
"NOTES" means the Revolving Facility Note and the Term Facility Note.
"NOTICE OF BORROWING" means a written notice in the form of Exhibit B.
"OUTSTANDING" means, as of any date of determination, (a) with respect
to Letters of Credit, all Letters of Credit issued pursuant to Section
2.2(b), with respect to which the full amount available to be drawn
thereunder has not been drawn and which have not expired at their stated
expiration dates or otherwise in accordance with their terms or been
surrendered to the Letter of Credit Issuer for cancellation, or (b) with
respect to Advances, the principal amount thereof remaining unpaid and owing
by the Borrower. As used in connection with Acceptances, the term
"Outstanding" shall have the meaning specified in Section 2.2(d)(v).
"PERMITTED LIENS" means (a) Liens securing Indebtedness owed by the
Borrower to the Lenders, (b) Liens for taxes, assessments or similar charges
either not yet due or being contested in good faith, (c) Liens of material
men, mechanics, warehousemen or carriers, or other like Liens arising in the
ordinary course of business and securing obligations which are not yet
delinquent, (d) purchase money Liens or purchase money security interests
upon or in any property acquired or held by the Borrower in the ordinary
course of business to secure Indebtedness outstanding on the Effective Date
or permitted to be incurred under Section 5.2(a), (e) Liens which, as of the
Effective Date, have been disclosed to and approved by the Lender in writing,
(f) Liens which in the aggregate constitute an immaterial and insignificant
monetary amount with respect to the net value of the Borrower's assets and
(g) Liens granted pursuant to capital leases.
"PERSON" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture or other entity, or any governmental authority or entity.
"REQUIRED LENDERS" means, at any date, the Lenders having an aggregate
Commitment Percentage equal to 100% of the Commitment.
"REVOLVING COMMITMENT" has the meaning specified in Section 2.1.
"REVOLVING FACILITY" has the meaning specified in Section 2.1(a).
"REVOLVING FACILITY ADVANCES" means Advances by the Lenders to the
Borrower under the Revolving Facility as Floating Rate Advances or LIBOR Rate
Advances.
"REVOLVING FACILITY NOTE" means the promissory note payable to the order
of each of the Lenders, in substantially the form of Exhibit A-1, in the
amount of such Lender's Commitment Percentage, evidencing the aggregate
Indebtedness of the Borrower to such Lender resulting from Borrowings under
the Revolving Facility.
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"SECURITY AGREEMENT" means the Amended and Restated Security Agreement
dated the Effective Date between the Borrower and the Administrative Agent,
as secured party on behalf of the Lenders, the Letter of Credit Issuer and
the Credit Card Issuer.
"SECURITY DOCUMENTS" means the Security Agreement and all other
documents, instruments and agreements (a) under which any Person grants a
security interest to the Administrative Agent on behalf and for the benefit
of the Lenders, the Letter of Credit Issuer and the Credit Card Issuer for
the purpose of securing the obligations of the Borrower contained in this
Agreement and the other Loan Documents, or (b) which relate to the perfection
of such a security interest.
"STANDBY LETTERS OF CREDIT" means irrevocable standby letters of credit
issued pursuant to Section 2.2(b) from time to time by the Letter of Credit
Issuer or one of its correspondents for the account of the Borrower.
"TANGIBLE NET WORTH" means the sum of common stock, additional paid in
capital and retained earnings of the Borrower and its subsidiaries calculated
on a consolidated basis in accordance with GAAP.
"TERM COMMITMENT" has the meaning specified in Section 2.1.
"TERM FACILITY" has the meaning specified in Section 2.1(b).
"TERM FACILITY ADVANCES" means Advances by the Term Lender to the
Borrower under the Term Facility as Floating Rate Advances, LIBOR Rate
Advances or Term Rate Advances.
"TERM FACILITY NOTE" means the promissory note payable to the order of
the Term Lender, in substantially the form of Exhibit A-2 evidencing the
aggregate Indebtedness of the Borrower to the Term Lender resulting from
Borrowings under the Term Facility.
"TERM LENDER" means Washington Mutual Bank doing business as Western
Bank.
"TERM RATE" means, with respect to any Term Rate Advance, for any
Interest Period, an interest rate per annum (rounded upward to the next 1/100
of 1%) equal to the yield adjusted to constant maturity on U.S. Treasury
securities as reported by the Federal Reserve Bank of San Francisco based on
composites of quotations by five leading U.S. government securities dealers
to the Federal Reserve Bank of New York for maturities equal to the requested
Interest Period. Unless and until the Federal Reserve Bank reports yields
adjusted to constant maturity on U.S. Treasury securities with maturities of
four years, the Term Rate applicable to any Interest Period of four years
shall be determined by straight-line interpolation between the yield on U.S.
Treasury securities with maturities of two years and three years. If the
Federal Reserve Bank ceases reporting the U.S. Treasury yields adjusted to
constant maturities, the Term Rate shall be another reasonably comparable
rate selected by the Lender.
"TERM RATE ADVANCE" means an Advance which bears interest at a rate
determined by reference to the Term Rate as provided in Section 2.4(a)(iii).
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"TERMINATION DATE" means August 1, 2002, unless earlier terminated
pursuant to Section 6.2.
"TYPE" has the meaning specified in the definition of "Advance".
"UCC" means the Uniform Commercial Code as enacted in the state of
Washington (presently Revised Code of Washington title 62A).
"UNUSED ACCEPTANCE SUBLIMIT" means, as of any date of determination, an
amount equal to $5,000,000 minus the sum of (a) the aggregate amount of all
Acceptances Outstanding and/or which have not been converted into a Floating
Rate Advance as provided in Section 2.2(d)(vii) and (b) the aggregate amount
of Acceptances for which a Borrowing Request has been made but for which
Drafts have not been accepted by the Letter of Credit Issuer.
"UNUSED REVOLVING FACILITY COMMITMENT" means, as of any date of
determination, an amount equal to the Revolving Commitment minus the sum of:
(a) the aggregate principal amount of all Revolving Facility Advances
Outstanding, (b) the aggregate amount available to be drawn under all Letters
of Credit Outstanding and the aggregate amount drawn under Letters of Credit
for which the Letter of Credit Issuer has not been reimbursed or which has
not been converted into a Floating Rate Advance, as provided in Section
2.2(b)(iii), (c) the aggregate amount of all Acceptances Outstanding which
have not been paid or converted into a Floating Rate Advance, as provided in
Section 2.2(d)(vii), (d) the aggregate principal, stated or face amounts of
Revolving Facility Advances, Letters of Credit and Acceptances for which a
Borrowing Request has been made pursuant to Section 2.3(a) but which have not
been disbursed or issued as of the date of determination and (e) the Credit
Card sublimit of $250,000.
"UNUSED SLC SUBLIMIT" means, as of any date of determination, an amount
equal to $8,000,000 minus the sum of (a) the aggregate amount available to be
drawn under all Standby Letters of Credit Outstanding and the aggregate
amount drawn under Standby Letters of Credit for which the Letter of Credit
Issuer has not been reimbursed or which has not been converted into a
Floating Rate Advance, as provided in Section 2.2(b)(iii) and (b) the
aggregate stated amounts of Standby Letters of Credit for which a Borrowing
Request has been made pursuant to Section 2.3(a) but which have not been
issued as of the date of determination.
"UNUSED TERM FACILITY COMMITMENT" means, as of any date of
determination, an amount equal to the Term Commitment minus the sum of (a)
the aggregate principal amount of all Term Facility Advances Outstanding and
(b) the aggregate principal amount of Term Facility Advances for which a
Borrowing Request has been made pursuant to Section 2.3(a) but which have not
been issued as of the date of determination.
"WORKING CAPITAL" means current consolidated assets of the Borrower and
its subsidiaries minus current consolidated liabilities of the Borrower and
its subsidiaries, as defined according to GAAP.
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Section 1.2 COMPUTATION OF TIME PERIODS. In this Agreement, in the
computation of periods of time from a specified date to a later specified
date: (a) the word "from" means "from and including," (b) the words "to" and
"until" each means "to but excluding"; and (c) the word "through" means
"through and including."
Section 1.3 ACCOUNTING TERMS. All accounting terms not specifically
defined in this Agreement shall be construed, and all accounting procedures
shall be performed, in accordance with GAAP applicable as of the date of this
Agreement, consistently applied.
ARTICLE II
AMOUNTS AND TERMS OF THE BORROWINGS
Section 2.1 THE FACILITIES.
(a) Subject to the terms and conditions of this Agreement, each
Lender severally agrees to make available to the Borrower for working capital
and general corporate purposes its Commitment Percentage of a revolving
credit facility and (the "Revolving Facility") in the maximum amount of
$55,000,000, subject to increase as provided in Section 2.1(c) (the
"Revolving Commitment"), consisting of (i) Floating Rate Advances and LIBOR
Advances, (ii) Standby Letters of Credit, (iii) Commercial Letters of Credit,
(iv) Credit Cards and (v) Acceptances; provided, however, that:
(i) The aggregate stated amount of Standby Letters of
Credit at any time Outstanding may not exceed $8,000,000;
(ii) The aggregate credit limit of all Credit Cards issued
to the Borrower may not exceed $250,000;
(iii) The Letter of Credit Issuer shall be obligated to issue
Commercial Letters of Credit in an aggregate stated amount equal to, but not
to exceed, the full amount of the Unused Revolving Facility Commitment;
(iv) The Letter of Credit Issuer shall be obligated to issue
Standby Letters of Credit in an aggregate stated amount equal to, but not to
exceed, the full amount of the Unused SLC Sublimit; and
(v) The aggregate amount of Acceptances at any time
Outstanding may not exceed $5,000,000.
(b) Subject to the terms and conditions of this Agreement, the
Term Lender shall make available to the Borrower for financing equipment and
leasehold improvements a line of credit (the "Term Facility") in the maximum
amount of $5,000,000 (the "Term Commitment") consisting of Floating Rate
Advances, LIBOR Rate Advances and Term Rate Advances. The Term Facility and
the Revolving Facility are sometimes collectively referred to herein as the
"Facilities".
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(c) (i) Upon written notice from the Borrower to the Administrative
Agent, given within thirty (30) days following the delivery pursuant to
Section 5.1(c)(i) of the audited consolidated financial statements of the
Borrower for the fiscal year ended April 30, 2001, the Revolving Commitment
shall be increased by $10,000,000 TO $65,000,000, provided that the
following conditions are satisfied:
(A) EBITDA for the fiscal year ended April 30, 2001 is at least
$24,000,000; and
(B) the number of "inventory days on hand" as of April 30, 2001
(determined as provided below) does not exceed 185.
"Inventory days on hand" means (x) 365, divided by (y) the number
obtained by dividing (1) the cost of goods sold of the Borrower as reflected on
such financial statements by (2) inventory of the Borrower as reflected on such
financial statements.
(ii) In the event the Borrower elects to increase the Revolving
Commitment pursuant to clause (i) above, the Commitment of Western Bank shall
be increased by $10,000,000 to $40,000,000. The Administrative Agent shall
deliver to each Lender a new Exhibit D to this Agreement reflecting such
increase. In addition, the Borrower shall execute and deliver to Western Bank
a new Note in the principal amount of $40,000,000. Except for the foregoing
and the receipt of written notice from the Borrower pursuant to Section
2.1(c)(i) above, the increase in the Revolving Commitment provided in this
Section 2.1(c) shall take effect without any action on the part of any of
the parties hereto.
Section 2.2 THE BORROWINGS.
(a) ADVANCES UNDER THE FACILITIES.
(i) In the case of Revolving Facility Advances, each Lender agrees,
on the terms and conditions set forth below, to make its pro rata share of
Advances to the Borrower from time to time on any Business Day during the
period from the Effective Date to the Termination Date in an aggregate amount
not to exceed such Lender's Commitment Percentage of the Unused Revolving
Facility Commitment. Within the limits of the Unused Revolving Facility
Commitment, the Borrower may request an Advance under the Revolving Facility
on any Business Day and may prepay such Advance pursuant to Section 2.7 and
re-borrow under the Revolving Facility pursuant to this Section 2.2(a).
(ii) In the case of a Term Facility Advance, the Term Lender agrees,
on the terms and conditions set forth below, to make Advances to the Borrower
from time to time on any Business Day during the period from the Effective
Date to the Termination Date in an amount not to exceed the Unused Term
Facility Commitment. Any Borrowing under the Term Facility that is repaid
pursuant to Section 2.5(b) or prepaid pursuant to Section 2.7 may not be
reborrowed.
11
{PAGE}
(iii) Each request for an Advance shall be in an amount not less than
$500,000, or an integral multiple of $100,000 in excess thereof. At no time
may LIBOR Rate Advances bearing more than four different LIBOR Rates be
Outstanding.
(b) ISSUANCE OF LETTERS OF CREDIT UNDER THE REVOLVING FACILITY.
(i) The Letter of Credit Issuer agrees that it shall, on the terms
and conditions set forth below, provide Standby Letters of Credit for the
account of the Borrower; provided, however, that no Standby Letter of Credit
shall be issued if the stated amount thereof exceeds the lesser of the Unused
Revolving Facility Commitment or the Unused SLC Sublimit. No Standby Letter
of Credit shall have an expiration date that is more than ninety (90) days
after the Termination Date. A Standby Letter of Credit may provide for a
single draw or a number of partial draws, as specified by the Borrower.
(ii) The Letter of Credit Issuer agrees that it shall, on the terms
and conditions set forth below, provide Commercial Letters of Credit for the
account of the Borrower; provided, however, that no Commercial Letter of
Credit shall be issued if the stated amount thereof exceeds the Unused
Revolving Facility Commitment. No Commercial Letter of Credit shall have an
expiration date that is more than ninety (90) days after the Termination
Date. A Commercial Letter of Credit may provide for a single draw or a number
of partial draws, as specified by the Borrower.
(iii) The Letter of Credit Issuer hereby grants to each Letter of
Credit Participant, and, to induce the Letter of Credit Issuer to issue
Letters of Credit hereunder, each Letter of Credit Participant hereby accepts
and purchases from the Letter of Credit Issuer, on the terms and conditions
set forth below, for such Letter of Credit Participant's own account and
risk, an undivided interest equal to such Letter of Credit Participant's
Commitment Percentage in the Letter of Credit Issuer's obligations and rights
under each Letter of Credit issued by the Letter of Credit Issuer hereunder
and the amount of each draft paid by the Letter of Credit Issuer thereunder.
Each Letter of Credit Participant unconditionally agrees with the Letter of
Credit Issuer that, if a draft is paid under any Letter of Credit issued by
the Letter of Credit Issuer for which the Letter of Credit Issuer is not
reimbursed in full by the Borrower in accordance with the terms of this
Agreement, such Letter of Credit Participant shall, upon demand by the Letter
of Credit Issuer, pay to the Administrative Agent for the account of the
Letter of Credit Issuer an amount equal to such Letter of Credit
Participant's Commitment Percentage of the amount of such draft, or any part
thereof, which is not so reimbursed. Any amount so paid shall be a Borrowing
hereunder.
(iv) If any amount required to be paid by any Letter of Credit
Participant to the Letter of Credit Issuer pursuant to Section 2.2(b)(iii),
in respect of any unreimbursed portion of any payment made by the Letter of
Credit Issuer under any Letter of Credit, is paid to the Administrative Agent
for the account of the Letter of Credit Issuer within three Business Days
after the date such payment is due, such Letter of Credit Participant shall,
upon demand by the Letter of Credit Issuer, pay to the Administrative Agent
for the account of the Letter of Credit Issuer an amount equal to the product
of (a) such amount, times (b) the Federal Funds Effective Rate, during the
period from and including the date such payment is
12
{PAGE}
required to the date on which such payment is immediately available to the
Administrative Agent for the account of the Letter of Credit Issuer, times
(c) a fraction the numerator of which is the number of days that elapse
during such period and the denominator of which is 360. If any such amount
required to be paid by any Letter of Credit Participant pursuant to Section
2.2(b)(iii) is not in fact made available to the Administrative Agent for the
account of the Letter of Credit Issuer by such Letter of Credit Participant
within three Business Days after the date such payment is due, the Letter of
Credit Issuer shall be entitled to recover from such Letter of Credit
Participant, on demand, such amount with interest thereon calculated from
such due date at the rate per annum applicable to Floating Rate Advances
hereunder. A certificate of any Letter of Credit Issuer submitted to any
Letter of Credit Participant with respect to any amounts owing under this
Section 2.2(b) shall be conclusive in the absence of manifest error.
(v) Whenever, at any time after the Letter of Credit Issuer has made
payment under any Letter of Credit issued by the Letter of Credit Issuer and
has received from any Letter of Credit Participant its PRO RATA share of such
payment in accordance with Section 2.2(b)(iii), the Letter of Credit Issuer
receives any payment related to such Letter of Credit (whether directly from
the Borrower or otherwise), or any payment of interest on account thereof,
the Letter of Credit Issuer will distribute to such Letter of Credit
Participant its PRO RATA share thereof; PROVIDED, HOWEVER, that in the event
that any such payment received by the Letter of Credit Issuer shall be
required to be returned by the Letter of Credit Issuer, such Letter of Credit
Participant shall return to the Letter of Credit Issuer the portion thereof
previously distributed by the Letter of Credit Issuer to it.
(vi) No Letter of Credit shall be issued unless it is issued in
accordance with the Letter of Credit Issuer's customary requirements,
standards, fees and procedures and as set forth in the Letter of Credit
Agreements and the Letter of Credit Issuer's other customary letter of credit
documentation requirements, nor if it is for a purpose not described in the
definition of "Letter of Credit" in Section 1.1.
(vii) The Borrower shall reimburse the Letter of Credit Issuer for any
draw on any Letter of Credit by making payment thereof to the Lender by 3:00
P.M. (Seattle time) on the date on which such draw is paid or, if any draw is
to be made pursuant to a time draft, by 3:00 P.M. (Seattle time) at least one
Business Day prior to the maturity of such time draft. Unless reimbursement
is made by 3:00 P.M. (Seattle time) on any such date, the Borrower shall be
conclusively deemed to have made a Borrowing Request requesting a Floating
Rate Advance under the Facilities to be made on such date in an amount equal
to the amount of such draw. Such a deemed Borrowing Request will be honored
only if it would have been honored if actually made by the Borrower.
(viii) The obligations of the Borrower to reimburse the Letter of Credit
Issuer for drawings made under each Letter of Credit shall be unconditional
and irrevocable and shall be paid strictly in accordance with the terms of
this Agreement under all circumstances, including without limitation (it
being understood that any such payment by the Borrower shall be without
prejudice to, and shall not constitute a waiver of, any rights the Borrower
might have or might acquire against the beneficiary of the Letter of Credit
as a result of the payment by the Letter of Credit Issuer of any draft or the
reimbursement by the Borrower thereof): (A) the
13
{PAGE}
existence of any claim, setoff, defense or other right which the Borrower may
have at any time against a beneficiary of any Letter of Credit or against the
Letter of Credit Issuer, whether in connection with this Agreement, the
transactions contemplated herein or any unrelated transaction; (B) any lack
of validity or enforceability of any Letter of Credit or any other Loan
Document, (C) any draft, demand, certificate or other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; (D) any interruption, error or delay in
transmission or delivery by facsimile or any other method, (E) payment by the
Letter of Credit Issuer of any Letter of Credit against presentation of a
demand, draft or certificate or other document which does not comply with the
terms of such Letter of Credit; (F) any other circumstances or happening
whatsoever, which is similar to any of the foregoing; or (G) the fact that
any Default or Event of Default shall have occurred and be continuing.
(ix) In connection with the Letters of Credit to be issued under the
Revolving Facility, the Borrower may submit communications (a "Faxed
Document") to Letter of Credit Issuer by facsimile transmission. With respect
to such facsimile transmission, the Borrower agrees as follows:
(A) Each such Faxed Document shall be deemed an original document
and shall be effective for all purposes as if it were an original. The
Borrower shall retain the original of any Faxed Document and shall deliver it
to the Letter of Credit Issuer on request.
(B) If the Borrower sends the Letter of Credit Issuer a manually
signed confirmation of a Faxed Document, the Letter of Credit Issuer shall
have no duty to compare it to the previously received Faxed Document nor
shall it have any liability or duty to act should the contents of the
confirmation differ therefrom. Any manually signed confirmation of a Faxed
Document must be conspicuously marked "previously transmitted by facsimile,"
and the Letter of Credit Issuer shall not be liable for the issuance of
duplicate Letters of Credit or amendments thereto that result from the Letter
of Credit Issuer's receipt of confirmations not so marked.
(C) The Borrower shall have sole responsibility for the security
of using facsimile transmissions and for any authorized or unauthorized Faxed
Document received by the Letter of Credit Issuer, purportedly on behalf of
the Borrower.
(D) The Borrower agrees to indemnify and hold harmless the Letter
of Credit Issuer from each and every claim, demand, liability, loss, cost or
expense (including attorneys' fees and expenses) which may arise or be
created by the Letter of Credit Issuer's acceptance of telecommunication
instructions in connection with any Letter of Credit, including facsimile
instructions in connection with any waiver of discrepancies.
(x) The Borrower will promptly examine each Letter of Credit issued
hereunder, any amendments thereto and all information, documents and
instruments delivered to the Borrower from time to time by the Letter of
Credit Issuer or any of its correspondents. The Borrower shall notify the
Letter of Credit Issuer within five Business Days after receipt of any of
14
{PAGE}
the foregoing if the Borrower claims that the Letter of Credit Issuer has
failed to comply with the Borrower's instructions or the Letter of Credit
Issuer's obligations with respect to such Letter of Credit or has wrongfully
honored or dishonored any presentation under the Letter of Credit or if the
Borrower claims any other irregularity. If the Borrower does not so notify
the Letter of Credit Issuer within such time period, the Borrower shall be
conclusively deemed to have waived, and therefore be precluded from
asserting, such claims.
(c) ISSUANCE OF CREDIT CARDS UNDER THE REVOLVING FACILITY.
(i) The Credit Card Issuer shall provide the Borrower with one or
more Credit Cards with an aggregate credit limit of $250,000 during the
period from the Effective Date through the Termination Date. The Borrower
agrees to execute the Credit Card Issuer's standard business card agreement
and any other documents the Credit Card Issuer may request in connection with
the provision of such Credit Cards.
(ii) The Credit Card Issuer hereby grants to each Credit Card
Participant, and, to induce the Credit Card Issuer to issue Credit Cards
hereunder, each Credit Card Participant hereby accepts and purchases for the
Credit Card Issuer, on the terms and conditions set forth below, for such
Credit Card Participant's own account and risk, an undivided interest equal
to such Credit Card Participant's Commitment Percentage in the Credit Card
Issuer's obligations and rights under each Credit Card issued by the Credit
Card Issuer hereunder and the amount of each draft paid by the Credit Card
Issuer thereunder. Each Credit Card Participant unconditionally agrees with
the Credit Card Issuer that, if any amounts are disbursed under any Credit
Card issued by the Credit Card Issuer for which the Credit Card Issuer is not
reimbursed in full by the Borrower in accordance with the terms of this
Agreement, such Credit Card Participant shall, upon demand by the Credit Card
Issuer, pay to the Administrative Agent for the account of the Credit Card
Issuer an amount equal to such Credit Card Participant's Commitment
Percentage of the amount of such disbursement, or any part thereof, which is
not so reimbursed.
(iii) If any amount required to be paid by any Credit Card Participant
to the Credit Card Issuer pursuant to Section 2.2(c)(ii), in respect of any
unreimbursed portion of any disbursement made by the Credit Card Issuer under
any Credit Card, is paid to the Administrative Agent for the account of the
Credit Card Issuer within three Business Days after the date such payment is
due, such Credit Card Participant shall, upon demand by the Credit Card
Issuer, pay to the Administrative Agent for the account of the Credit Card
Issuer an amount equal to the product of (a) such amount, times (b) the
Federal Funds Effective Rate, during the period from and including the date
such payment is required to the date on which such payment is immediately
available to the Administrative Agent for the account of the Credit Card
Issuer, times (c) a fraction the numerator of which is the number of days
that elapse during such period and the denominator of which is 360. If any
such amount required to be paid by any Credit Card Participant pursuant to
Section 2.2(c)(ii) is not in fact made available to the Administrative Agent
for the account of the Credit Card Issuer by such Credit Card Participant
within three Business Days after the date such payment is due, the Credit
Card Issuer shall be entitled to recover from such Credit Card Participant,
on demand, such amount with interest thereon calculated from such due date at
the rate per annum applicable to Floating Rate Advances
15
{PAGE}
hereunder. A certificate of any Credit Card Issuer submitted to any Credit
Card Participant with respect to any amounts owing under this Section 2.2(c)
shall be conclusive in the absence of manifest error.
(iv) Whenever, at any time after the Credit Card Issuer has made a
disbursement under any Credit Card issued by the Credit Card Issuer and has
received from any Credit Card Participant its PRO RATA share of such
disbursement in accordance with Section 2.2(c)(ii), the Credit Card Issuer
receives any payment related to such Credit Card (whether directly from the
Borrower or otherwise), or any payment of interest on account thereof, the
Credit Issuer will distribute to such Credit Card Participant its PRO RATA
share thereof; PROVIDED, HOWEVER, that in the event that any such payment
received by the Credit Card Issuer shall be required to be returned by the
Credit Card Issuer, such Credit Card Participant shall return to the Credit
Card Issuer the portion thereof previously distributed by the Credit Card
Issuer to it.
(v) If the balance owing on any Credit Card issued to the Borrower
under this Section 2.2(c) is more than 60 days past due, the Administrative
Agent may terminate such Credit Card.
(d) ISSUANCE OF ACCEPTANCES UNDER THE REVOLVING FACILITY.
(i) The Letter of Credit Issuer agrees that it shall, on the terms
and conditions hereinafter set forth, accept drafts (the "Drafts") drawn on
the Letter of Credit Issuer and submitted to it in connection with Commercial
Letters of Credit issued hereunder; provided, however, that no Draft will be
accepted if the face amount thereof exceeds the Unused Acceptance Sublimit.
(ii) Each Draft presented for acceptance shall mature not later than
90 days after the date of presentation to the Letter of Credit Issuer for
acceptance; provided, however, that no Draft shall have a maturity date later
than the Termination Date unless the Letter of Credit Issuer otherwise agrees
in its sole discretion. Notwithstanding the foregoing, if any Acceptance is
Outstanding as of the Termination Date, the Borrower shall, on or before the
Termination Date, deliver to the Letter of Credit Issuer, as collateral for
the Borrower's obligations with respect to such Acceptance, immediately
available funds in an amount equal to the face amount of each such Acceptance.
(iii) The Borrower represents and warrants that each Draft it presents
for acceptance is an eligible Draft as determined by the Federal Reserve Bank
and complies with the Federal Reserve Act and with applicable regulations of
the Board of Governors of the Federal Reserve System of the United States
governing banker's acceptances, or any successor thereto. Without limiting
the generality of the foregoing, The Borrower represents and warrants that
each Draft it presents for acceptance and discounting results from a bona
fide business transaction and (a) will grow out of one or more transactions
involving the importation or exportation of goods; (b) will grow out of one
or more transactions involving the domestic shipment of goods; or (c) will be
secured at the time of acceptance of the Draft by warehouse receipts or
similar documents conveying or securing title and covering readily marketable
goods. The Borrower represents and warrants that no other financing of the
transactions underlying any
16
{PAGE}
requested Acceptance whether characterized as a loan, sale, or an account
receivable has been obtained or will be solicited or accepted and that no
lien or security interest in or rights to the subject matter under the
underlying transaction has been or will be granted to any other person
without the Letter of Credit Issuer's prior written consent. The Borrower
further represents and warrants that (x) completion of each transaction
related to a Draft is anticipated to occur on or before the maturity date of
such Draft, (y) that the maturity of each Draft will be consistent with the
period usually and reasonably necessary to finance transactions of such kind,
and (z) that no banker's acceptances other than the Acceptance requested
hereunder have been or will be outstanding with respect to the goods covered
by the Draft whose acceptance is requested hereunder.
(iv) Each accepted Draft shall be held to maturity by the Letter of
Credit Issuer unless otherwise agreed by the Letter of Credit Issuer in its
sole discretion.
(v) The Borrower shall pay to the Letter of Credit Issuer a fee for
the issuance of each Acceptance in an amount equal to the face amount of the
Acceptance multiplied by one and one-half percent (1.5%) per year (calculated
on the basis of a 360-day year and the actual number of days elapsed) for the
period of time from the acceptance of the Draft creating the Acceptance
through the date on which the Borrower pays such Draft in full to the Letter
of Credit Issuer and such Acceptance shall be deemed to be "Outstanding" for
that period of time. Such fee shall be paid upon acceptance of the Draft by
the Letter of Credit Issuer. In addition, the Borrower shall pay to the
Letter of Credit Issuer all of its normal and customary charges and fees for
the issuance and administration of banker's acceptances.
(vi) The Borrower agrees to pay to the Letter of Credit Issuer the
face amount of each Acceptance together with all unpaid charges of and
expenses paid or incurred by the Letter of Credit Issuer in connection
therewith on the maturity date of such Acceptance. All such payments to be
made by the Borrower shall be made not later than 11:00 a.m. Seattle time on
the due dates thereof (or, if earlier, on the Termination Date) in the manner
provided for repayment of Advances under the terms of this Agreement.
(vii) The Letter of Credit Issuer hereby grants to each Letter of
Credit Participant, and, to induce the Letter of Credit Issuer to accept
Drafts hereunder, each Letter of Credit Participant hereby accepts and
purchases from the Letter of Credit Issuer, on the terms and conditions set
forth below, for such Letter of Credit Participant's own account and risk, an
undivided interest equal to such Letter of Credit Participant's Commitment
Percentage in the Letter of Credit Issuer's obligations and rights under each
Draft accepted by the Letter of Credit Issuer hereunder. In the event that
the Borrower fails to pay any Acceptance in full on the maturity date
thereof, then each Letter of Credit Participant shall, upon demand by the
Letter of Credit Issuer, pay to the Letter of Credit Issuer an amount equal
to such Letter of Credit Participant's Commitment Percentage multiplied by
the amount of such Acceptance, or any part thereof which is not so
reimbursed. Such payments shall be made on the terms set forth in Section
2.2(b) applicable to payments to be made by the Letter of Credit Participants
to the Letter of Credit Issuer in respect of payments on Letters of Credit
which are not timely reimbursed by the Borrower.
17
{PAGE}
Section 2.3 MAKING THE BORROWINGS.
(a) PROCEDURE FOR BORROWINGS.
(i) BORROWING REQUESTS. Each Borrowing Request for an Advance shall
be made by the Borrower to the Administrative Agent (A) in the case of
Floating Rate Advances, not later than 9:00 A.M. (Seattle time) on the day of
the proposed Borrowing; and (B) in the case of Fixed Rate Advances, not later
than 9:00 A.M. on the third Business Day prior to the date of the proposed
Borrowing. Each Borrowing Request (A) for the issuance of a Letter of Credit
shall be made by the Borrower to the Letter of Credit Issuer not later than
9:00 A.M. (Seattle time) on the date of the proposed Borrowing, and (B) for
the issuance of a Credit Card shall be made by the Borrower to the Credit
Card Issuer not later than 9:00 A.M. on the date of the proposed issuance of
a Credit Card. Each Borrowing Request shall be made by an Authorized Officer
of the Borrower by telephone or, if requested by the Administrative Agent,
the Letter of Credit Issuer or the Credit Card Issuer, by telecopy or
personal delivery, in writing, in substantially the form of Exhibit B hereto,
fully and accurately specifying the information required therein. Upon
receipt by the Administrative Agent of a Borrowing Request from the Borrower
requesting either a Floating Rate Advance or a Fixed Rate Advance under the
Revolving Facility, the Administrative Agent shall promptly notify each
Lender thereof. Thereafter, each Lender shall make the amount of its pro rata
share of each Revolving Facility Advance available to the Administrative
Agent for the account of the Borrower at the of
407848
|
Cutter & Buck
As referenced in this Loan Agreement [Amended and Restated No. 2]:
CUTTER & BUCK INC – N.A.
The Several Lenders from Time to Time Parties Hereto
as the Lenders
and
WASHINGTON MUTUAL BANK doing business as WESTERN BANK
as the Letter of Credit Issuer
and
CUTTER & BUCK INC .
as the Borrower
and
WASHINGTON MUTUAL BANK doing business as WESTERN BANK
as the Administrative Agent to the Lenders and the Letter of Credit Issuer
Dated as of July
_____________
CUTTER & BUCK INC – EXHIBIT D COMMITMENT AMOUNTS
iii
{PAGE}
AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDED AND RESTATED LOAN AGREEMENT (this "Agreement") dated as of
JULY 28, 2000 is made by and among CUTTER & BUCK INC ., a Washington
corporation (the "Borrower"), WASHINGTON MUTUAL BANK doing business as
WESTERN BANK ("Western Bank"), BANK OF AMERICA, N.A. ("BofA"), the several
banks and other financial institutions from
_____________
Cutter & Buck Inc – policies of such Person, whether by contract or otherwise.
"AUTHORIZED OFFICER" means the President, any Senior Vice-President or
the Chief Financial Officer or Controller of the Borrower.
"BORROWER" means Cutter & Buck Inc ., a Washington corporation.
"BORROWING" means a borrowing consisting of (a) the making of an
Advance, (b) the issuance of a Letter of Credit, (c) the acceptance of Drafts
or (
_____________
Cutter & Buck Inc – in this
Agreement, all notices and other communications provided for hereunder shall
be in writing (including telecopier) and mailed, telecopied or otherwise
transmitted or delivered, if to the Borrower, at:
Cutter & Buck Inc .
2701 First Avenue, Suite 500
Seattle, WA 98121
Attention: Steve Lowber, Chief Financial Officer
Telecopy: (206) 448-0589
Telephone (206) 622-4191
if to a Lender, the Administrative Agent,
_____________
CUTTER & BUCK INC – date first written above.
ORAL AGREEMENTS OR ORAL COMMITMENTS TO LEND MONEY, EXTEND CREDIT OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER
WASHINGTON LAW.
BORROWER: CUTTER & BUCK INC .
By:
-----------------------
Its:
-------------------
ADMINISTRATIVE
AGENT, LETTER OF
CREDIT ISSUER AND
CREDIT CARD ISSUER: WASHINGTON MUTUAL BANK
doing business as WESTERN BANK
By:
-----------------------
Its:
-------------------
Address for Notices:
1201 Third Avenue, Suite
_____________
dt 1533815
;
 BofA
As referenced in this Loan Agreement [Amended and Restated No. 2]:
BANK OF AMERICA, N.A. – 16
{SEQUENCE}2
{FILENAME}a2025504zex-10_16.txt
{DESCRIPTION}EXHIBIT 10-16
{TEXT}
{PAGE}
SECOND AMENDED AND RESTATED LOAN AGREEMENT
By and Among
WASHINGTON MUTUAL BANK doing business as WESTERN BANK
BANK OF AMERICA, N.A.
The Several Lenders from Time to Time Parties Hereto
as the Lenders
and
WASHINGTON MUTUAL BANK doing business as WESTERN BANK
as the Letter of Credit Issuer
and
CUTTER &
_____________
BANK OF AMERICA, N.A. – Agreement") dated as of
JULY 28, 2000 is made by and among CUTTER & BUCK INC., a Washington
corporation (the "Borrower"), WASHINGTON MUTUAL BANK doing business as
WESTERN BANK ("Western Bank"), BANK OF AMERICA, N.A. ("BofA"), the several
banks and other financial institutions from time to time parties to this
Agreement (including Western Bank and BofA in their respective capacities as
lenders, the "Lenders"),
_____________
Bank of America Na – Agent"), and amends and restates in its entirety the Amended
and Restated Loan Agreement dated as of April 28, 1999 among the Borrower,
Western Bank and BofA (then known as Bank of America Na tional Trust and
Savings Association doing business as Seafirst Bank) (the "Original Loan
Agreement").
RECITALS
The Borrower, Western Bank and BofA are parties to the Original Loan
Agreement pursuant to
_____________
BANK OF AMERICA, N.A. – Its:
-------------------
Address for Notices:
1201 Third Avenue, Suite 1000
Seattle, Washington 98101
Attention: Todd Leber
Telecopy: (206) 554-2696
LENDERS: WASHINGTON MUTUAL BANK doing business as
WESTERN BANK
By:
-----------------------
Its:
-------------------
BANK OF AMERICA, N.A.
By:
-----------------------
Its:
-------------------
47
{PAGE}
TERM LENDER: WASHINGTON MUTUAL BANK doing business as
WESTERN BANK
By:
-----------------------
Its:
-------------------
48
{PAGE}
EXHIBIT A-1
SECOND AMENDED AND RESTATED REVOLVING CREDIT FACILITY NOTE
_____________
BANK OF AMERICA, N.A. – Amended and Restated
Loan Agreement dated as of April 28, 1999, between the Borrower, the
Administrative Agent, WASHINGTON MUTUAL BANK
A-1 - 1
{PAGE}
doing business as WESTERN BANK and BANK OF AMERICA, N.A. (formerly known as
Bank of America National Trust and Savings Association doing business as
Seafirst) (the "Original Loan Agreement"). The indebtedness of the Borrower
evidenced by this Note includes
_____________
dt 1554195
;
|
BNY
As referenced in this Loan Agreement [Amended and Restated No. 2]:
Bank of New York, – rates on overnight federal funds transactions with members of
the Federal Reserve System arranged by federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day which is a Business Day, the
average of the quotations for the day of such transactions received by
_____________
Bank of New York – S. Treasury
securities as reported by the Federal Reserve Bank of San Francisco based on
composites of quotations by five leading U.S. government securities dealers
to the Federal Reserve Bank of New York for maturities equal to the requested
Interest Period. Unless and until the Federal Reserve Bank reports yields
adjusted to constant maturity on U.S. Treasury securities with maturities of
four
_____________
dt 1583687
;
WaMu Bank
As referenced in this Loan Agreement [Amended and Restated No. 2]:
WASHINGTON MUTUAL BANK – {DOCUMENT}
{TYPE}EX-10.16
{SEQUENCE}2
{FILENAME}a2025504zex-10_16.txt
{DESCRIPTION}EXHIBIT 10-16
{TEXT}
{PAGE}
SECOND AMENDED AND RESTATED LOAN AGREEMENT
By and Among
WASHINGTON MUTUAL BANK doing business as WESTERN BANK
BANK OF AMERICA, N.A.
The Several Lenders from Time to Time Parties Hereto
as the Lenders
and
WASHINGTON MUTUAL BANK doing business as WESTERN
_____________
WASHINGTON MUTUAL BANK – AGREEMENT
By and Among
WASHINGTON MUTUAL BANK doing business as WESTERN BANK
BANK OF AMERICA, N.A.
The Several Lenders from Time to Time Parties Hereto
as the Lenders
and
WASHINGTON MUTUAL BANK doing business as WESTERN BANK
as the Letter of Credit Issuer
and
CUTTER & BUCK INC.
as the Borrower
and
WASHINGTON MUTUAL BANK doing business as WESTERN BANK
as the Administrative
_____________
WASHINGTON MUTUAL BANK – to Time Parties Hereto
as the Lenders
and
WASHINGTON MUTUAL BANK doing business as WESTERN BANK
as the Letter of Credit Issuer
and
CUTTER & BUCK INC.
as the Borrower
and
WASHINGTON MUTUAL BANK doing business as WESTERN BANK
as the Administrative Agent to the Lenders and the Letter of Credit Issuer
Dated as of July 28, 2000
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ARTICLE
_____________
WASHINGTON MUTUAL BANK – RESTATED LOAN AGREEMENT
THIS AMENDED AND RESTATED LOAN AGREEMENT (this "Agreement") dated as of
JULY 28, 2000 is made by and among CUTTER & BUCK INC., a Washington
corporation (the "Borrower"), WASHINGTON MUTUAL BANK doing business as
WESTERN BANK ("Western Bank"), BANK OF AMERICA, N.A. ("BofA"), the several
banks and other financial institutions from time to time parties to this
Agreement (including Western
_____________
Washington Mutual Bank – for the account of the Borrower.
"CREDIT CARD PARTICIPANT" means as to any Credit Card, each Lender other
than the Letter of Credit Issuer and BofA.
"CREDIT CARD ISSUER" means Washington Mutual Bank doing business as
Western Bank.
"DEBT SERVICE" means, as of the last day of any fiscal quarter, the sum
of (a) interest on Indebtedness paid during the fiscal quarter then
_____________
dt 1505540
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