SECOND AMENDED AND RESTATED CREDIT AGREEMENT

 

Execution Copy

 

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

 

THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of July 15, 2005 (the “ Credit Agreement ”), is by and between CABELA’S INCORPORATED, a Delaware corporation (“ Cabela’s ”), CABELA’S RETAIL, INC., a Nebraska corporation, VAN DYKE SUPPLY COMPANY, INC., a South Dakota corporation, CABELA’S VENTURES, INC., a Nebraska corporation, CABELA’S OUTDOOR ADVENTURES, INC., a Nebraska corporation, CABELA’S CATALOG, INC., a Nebraska corporation, CABELA’S WHOLESALE, INC., a Nebraska corporation, CABELA’S MARKETING AND BRAND MANAGEMENT, INC., a Nebraska corporation, CABELAS.COM, INC., a Nebraska corporation, WILD WINGS, LLC, a Minnesota limited liability company, CABELA’S LODGING, LLC, a Nebraska limited liability company, CABELA’S RETAIL LA, LLC, a Nebraska limited liability company, CABELA’S TROPHY PROPERTIES, LLC, a Nebraska limited liability company, ORIGINAL CREATIONS, LLC, a Minnesota limited liability company, CABELA’S RETAIL TX, L.P., a Nebraska limited partnership, CABELA’S RETAIL GP, LLC, a Nebraska limited liability company, and CRLP, LLC, a Nebraska limited liability company (each, a “ ,Borrower ” and collectively, the “ Borrowers ”), the banks which are signatories hereto (individually, a “ Bank ” and, collectively, the “ Banks ”), LASALLE BANK NATIONAL ASSOCIATION, a national banking association, one of the Banks, as Co-Syndication Agent, WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, one of the Banks and a LC Bank, as Co-Syndication Agent, COMERICA BANK, one of the Banks, WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, one of the Banks, as Co-Syndication Agent, JPMORGAN CHASE BANK, N.A., a national banking association, one of the Banks, SOVEREIGN BANK, a federal savings bank, one of the Banks, and U.S. BANK NATIONAL ASSOCIATION, a national banking association (“ USBNA ”), one of the Banks and a LC Bank, as administrative agent for the Banks (in such capacity, the “ Administrative Agent ”).

 

RECITALS

 

A.      The Borrowers and the Banks are parties to an Amended and Restated Credit Agreement dated as of May 6, 2004 (the “ Existing Credit Agreement ”).

 

B.      This Agreement amends and restates the Existing Credit Agreement in its entirety.

 

NOW THEREFORE, in consideration of the foregoing Recitals and other good and valuable consideration, the receipt and adequacy of which is hereby mutually acknowledged, the parties hereto do hereby mutually agree as follows:

 

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

 

Section 1.1      Defined Terms . As used in this Agreement the following terms shall have the following respective meanings (and such meanings shall be equally applicable to both the singular and plural form of the terms defined, as the context may require):

 

 

 

“ Adjusted Eurodollar Rate ”: With respect to each Interest Period applicable to a Eurodollar Rate Advance, the rate (rounded upward, if necessary, to the next 1/16th of 1%) determined by dividing the Eurodollar Rate for such Interest Period by 1.00 minus the Eurodollar Reserve Percentage.

 

“ Adjusted Coverage Indebtedness ”: As of any Measurement Date, the aggregate amount of (a) Coverage Indebtedness of Cabela’s on a consolidated basis excluding (i) liabilities of WFB, (ii) long term deferred compensation, (iii) long term deferred taxes, (iv) any Current Liabilities (other than Coverage Indebtedness), and (v) Deferred Grant Income on such Measurement Date and on each of the three preceding Measurement Dates, divided by (b) 4, in each case determined on a consolidated basis in accordance with GAAP.

 

“ Administrative Agent ”: U.S. Bank National Association, a national banking association, acting in its capacity as administrative agent for the Banks under this Credit Agreement, or its successor appointed pursuant to the terms of this Credit Agreement.

 

“ Advance ”: Each Swing Line Loan by the Swing Line Bank or any portion of the outstanding Revolving Loans by a Bank as to which one of the available interest rate options and, if pertinent, an Interest Period, is applicable. An Advance may be a Eurodollar Rate Advance, Prime Rate Advance or an Alternate Advance.

 

“ Affiliate ”: When used with reference to any Person, (a) each Person that, directly or indirectly, controls, is controlled by or is under common control with, the Person referred to, (b) each Person which beneficially owns or holds, directly or indirectly, five percent or more of any class of voting stock of the Person referred to (or if the Person referred to is not a corporation, five percent or more of the equity interest), (c) each Person, five percent or more of the voting stock (or if such Person is not a corporation, five percent or more of the equity interest) of which is beneficially owned or held, directly or indirectly, by the Person referred to, and (d) each of such Person’s officers, directors, joint venturers and partners. The term control (including the terms “controlled by” and “under common control with”) means the possession, directly, of the power to direct or cause the direction of the management and policies of the Person in question.

 

“ Agency Fee ”: As defined in Section 2.16 hereof.

 

“ Aggregate Revolving Commitment Amounts ”: As of any date, the sum of the Revolving Commitment Amounts of all the Banks.

 

“ Alternate Advance ”: An Advance with respect to which the interest rate is determined by reference to a rate quoted from time to time by the Swing Line Bank and agreed to by the Borrowers’ Agent.

 

 

 

“ Applicable Fee Percentage ”: The Applicable Fee Percentage set forth in the table below as in effect from time to time determined based on the Cash Flow Leverage Ratio calculated as of the end of the most recent fiscal quarter of the Borrowers for which the Borrowers have furnished the financial statements and reports required under Section 5.1(a) or 5.1(c) or under Section 5.1(a) or 5.1(c) of the Existing Credit Agreement, as applicable, for the previous four fiscal quarters (adjustments to the Applicable Fee Percentage to become effective as of the first day of the month following receipt of the financial statements required under Section 5.1(a) or 5.1(c), as applicable):

 

 

Notwithstanding the foregoing, if the Borrowers have not furnished the financial statements and reports required under Section 5.1(a) or 5.1(c), as applicable, for any fiscal quarter by the required date, the Applicable Fee Percentage shall be calculated as if the Cash Flow Leverage Ratio as of the end of such fiscal quarter was equal to or greater than 2.50 to 1.00 for the period from the first day of the fiscal quarter first occurring after such required date until the first day of the month following the month in which such financial statements and reports are delivered.

 

“ Applicable LC Fee Percentage ”: The Applicable LC Fee Percentage set forth in the table below as in effect from time to time determined based on the Cash Flow Leverage Ratio calculated as of the end of the most recent fiscal quarter of the Borrowers for which the Borrowers have furnished the financial statements and reports required under Section 5.1(a) or 5.1(c) or under Section 5.1(a) or 5.1(c) of the Existing Credit Agreement, as applicable, for the previous four fiscal quarters (adjustments to the Applicable LC Fee Percentage to become effective as of the first day of the month following receipt of the financial statements required under Section 5.1(a) or 5.1(c), as applicable):

 

 

 

 

Notwithstanding the foregoing, if the Borrowers have not furnished the financial statements and reports required under Section 5.1(a) or 5.1(c), as applicable, for any fiscal quarter by the required date, the Applicable LC Fee Percentage shall be calculated as if the Cash Flow Leverage Ratio as of the end of such fiscal quarter was equal to or greater than 2.50 to 1.00 for the period from the first day of the fiscal quarter first occurring after such required date until the first day of the month following the month in which such financial statements and reports are delivered.

 

“ Applicable Lending Office ”: For each Bank and for each type of Advance, the office of such Bank identified as such Bank’s Applicable Lending Office on the signature pages hereof or such other domestic or foreign office of such Bank (or of an Affiliate of such Bank) as such Bank may specify from time to time, by notice given pursuant to Section 9.4, to the Administrative Agent and the Borrowers as the office by which its Advances of such type are to be made and maintained.

 

“ Applicable Margin ”:  The Applicable Margin set forth in the table below as in effect from time to time determined based on the Cash Flow Leverage Ratio calculated as of the end of the most recent fiscal quarter of the Borrowers for which the Borrowers have furnished the financial statements and reports required under Section 5.1(a) or 5.1(c) or under Section 5.1(a) or 5.1(c) of the Existing Credit Agreement, as applicable, for the previous four fiscal quarters (adjustments to the Applicable Margin to become effective as of the first day of the month following receipt of the financial statements required under Section 5.1(a) or 5.1(c), as applicable):

 

 

 

 

In the event the calculation of the Cash Flow Leverage Ratio as set forth above results in a change in the Applicable Margin, such change shall be applied only to existing Prime Rate Advances and Eurodollar Rate Advances made on or after the date of such change. Notwithstanding the foregoing, if the Borrowers have not furnished the financial statements and reports required under Section 5.1(a) or 5.1(c), as applicable, for any fiscal quarter by the required date, the Applicable Margin shall be calculated as if the Cash Flow Leverage Ratio as of the end of such fiscal quarter was equal to or greater than 2.50 to 1.00 for the period from the first day of the fiscal quarter first occurring after such required date until the first day of the month following the month in which such financial statements and reports are delivered.

 

“ Assignee ”: As defined in Section 9.6(c).

 

“ Assignment Agreement ”: As defined in Section 9.6(c).

 

“ Bank ”: As defined in the opening paragraph hereof and any successor and assign thereto.

 

“ Board ”: The Board of Governors of the Federal Reserve System or any successor thereto.

 

“ Borrowers ”: As defined in the opening paragraph hereof.

 

“ Borrowers’ Agent ”: Cabela’s Incorporated, a Delaware corporation.

 

“ Business Day ”: Any day (other than a Saturday, Sunday or legal holiday in the State of Minnesota) on which banks are permitted to be open in Minneapolis, Minnesota.

 

 

 

“ Call Reports ”: Consolidated Reports of Condition and Income for a Bank with Domestic Offices Only - FFIEC 041, as filed with the Federal Deposit Insurance Corporation or such other reports as may be required to be filed by WFB.

 

“ Capitalized Lease ”: A lease of (or other agreement conveying the right to use) real or personal property with respect to which at least a portion of the rent or other amounts thereon constitute Capitalized Lease Obligations.

 

“ Capitalized Lease Obligations ”: As to any Person, the obligations of such Person to pay rent or other amounts under a lease of (or other agreement conveying the right to use) real or personal property which obligations are required to be classified and accounted for as a capital lease on a balance sheet of such Person under GAAP (including Statement of Financial Accounting Standards No. 13 of the Financial Accounting Standards Board), and, for purposes of this Agreement, the amount of such obligations shall be the capitalized amount thereof, determined in accordance with GAAP (including such Statement No. 13).

 

“ Cash Flow Leverage Ratio ”: For any period of determination ending on a Measurement Date, the ratio of

 

to

 

(b)      EBITDA for the twelve (12) month period ending on such Measurement Date.

 

“ Change in Control ”: The occurrence, after the Closing Date, of any of the following circumstances: (a) Cabela’s shall cease to own, directly or indirectly, 100% of the shares of each class of the voting stock or other equity interest of each other Borrower that has or has had total assets in excess of $10,000,000; (b) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the date hereof), of equity interests representing more than 25% of the aggregate ordinary voting power represented by the issued and outstanding equity interests of Cabela’s (other than by Richard N. Cabela or James W. Cabela or a group controlled by Richard N. Cabela or James W. Cabela); or (c) occupation of a majority of the seats (other than vacant seats) on the board of directors of Cabela’s by Persons who were neither (i) nominated by the board of directors of Cabela’s nor (ii) appointed by directors so nominated.

 

“ Charges ”: As defined in Section 9.19.

 

“ Closing Date ”: June 30, 2005.

 

“ Code ”: The Internal Revenue Code of 1986, as amended.

 

 

 

“ Commercial Letter of Credit ”: An import or commercial letter of credit issued by the LC Bank pursuant to this Agreement for the account of the Borrowers.

 

“ Contingent Obligation ”: With respect to any Person at the time of any determination, without duplication, any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness of any other Person (the “ primary obligor ”) in any manner, whether directly or otherwise: (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or to purchase (or to advance or supply funds for the purchase of) any direct or indirect security therefor, (b) to purchase property, securities or services for the purpose of assuring the owner of such Indebtedness of the payment of such Indebtedness, (c) to maintain working capital, equity capital or other financial statement condition of the primary obligor so as to enable the primary obligor to pay such Indebtedness or otherwise to protect the owner thereof against loss in respect thereof, or (d) to assure in any manner the owner of such Indebtedness of the payment of such Indebtedness or to protect the owner against loss in respect thereof; provided , that the term “Contingent Obligation” shall not include endorsements for collection or deposit, in each case in the ordinary course of business. Without limiting the generality of the foregoing, the term “Contingent Obligation” shall also include any contingent repayment obligations of any Person with respect to Deferred Grant Income and other forms of governmental assistance, including grants, bonds and notes.

 

“ Coverage Indebtedness ”: With respect to any Person at the time of any determination, without duplication, all obligations of such Person which in accordance with GAAP should be classified upon the balance sheet of such Person as debt, but in any event including: (a) all obligations of such Person for borrowed money (including non-recourse obligations), (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (c) all obligations of such Person upon which interest charges are customarily paid or accrued, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property purchased by such Person, (e) all obligations of such Person issued or assumed as the deferred purchase price of property or services with an original maturity of greater than one year, (f) all obligations of others secured by any Lien on property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed, and (g) all Capitalized Lease Obligations of such Person.

 

“ Default ”: Any event which, with the giving of notice (whether such notice is required under Section 7.1, or under some other provision of this Agreement, or otherwise) or lapse of time, or both, would constitute an Event of Default.

 

“ Defaulting Bank ”: At any time, any Bank that, at such time (a) has failed to make a Revolving Loan or any Advances thereunder required pursuant to the terms of this Agreement, including the funding of any participation in accordance with the terms of this Agreement, (b) has failed to pay to the Administrative Agent or any Bank an amount owed by such Bank pursuant to the terms of this Agreement, or (c) has been deemed insolvent or has become subject to a bankruptcy, receivership or insolvency proceeding, or to a receiver, trustee or similar official.

 

 

 

“ Deferred Grant Income ”: As of any Measurement Date, the amount reflected on the consolidated balance sheet of Cabela’s which represents grant amounts received from a governmental entity that are subject to forfeiture based on achieving certain prescribed employment levels or other performance conditions for a prescribed period of time.

 

“ EBITDA ”: For any period of determination, the net income of the Borrowers and the Subsidiaries before deductions for income taxes, Interest Expense, depreciation and amortization, all as determined on a consolidated basis in accordance with GAAP.

 

“ EBITR ”: For any period of determination, the net income of the Borrowers and the Subsidiaries before deductions for income taxes, Interest Expense and Operating Lease Obligations, all as determined on a consolidated basis in accordance with GAAP.

 

“ ERISA ”: The Employee Retirement Income Security Act of 1974, as amended.

 

“ ERISA Affiliate ”: Any trade or business (whether or not incorporated) that is a member of a group of which the Borrowers is a member and which is treated as a single employer under Section 414 of the Code.

 

“ Eurodollar Business Day ”: A Business Day which is also a day for trading by and between banks in United States dollar deposits in the London interbank Eurodollar market and a day on which banks are open for business in New York City.

 

“ Eurodollar Rate ”: With respect to each Interest Period applicable to a Eurodollar Rate Advance, the average offered rate for deposits in United States dollars (rounded upward, if necessary, to the nearest 1/16 of 1%) for delivery of such deposits on the first day of such Interest Period, for the number of days in such Interest Period, which appears on Telerate page 3750 as of 11:00 AM, London time (or such other time as of which such rate appears) two Eurodollar Business Days prior to the first day of such Interest Period, or the rate for such deposits determined by the Administrative Agent at such time based on such other published service of general application as shall be selected by the Administrative Agent for such purpose; provided, that in lieu of determining the rate in the foregoing manner, the Administrative Agent may determine the rate based on rates at which United States dollar deposits are offered to the Administrative Agent in the interbank Eurodollar market at such time for delivery in Immediately Available Funds on the first day of such Interest Period in an amount approximately equal to the Advance by the Administrative Agent to which such Interest Period is to apply (rounded upward, if necessary, to the nearest 1/16 of 1%). “Telerate page 3750” means the display designated as such on the Telerate reporting system operated by Telerate System Incorporated (or such other page as may replace page 3750 for the purpose of displaying London interbank offered rates of major banks for United States dollar deposits).

 

“ Eurodollar Rate Advance ”: An Advance with respect to which the interest rate is determined by reference to the Adjusted Eurodollar Rate.

 

 

 

“ Eurodollar Reserve Percentage ”: As of any day, that percentage (expressed as a decimal) which is in effect on such day, as prescribed by the Board for determining the maximum reserve requirement (including any basic, supplemental or emergency reserves) for a member bank of the Federal Reserve System, with deposits comparable in amount to those held by the Administrative Agent, in respect of “Eurocurrency Liabilities” as such term is defined in Regulation D of the Board. The rate of interest applicable to any outstanding Eurodollar Rate Advances shall be adjusted automatically on and as of the effective date of any change in the Eurodollar Reserve Percentage.

 

“ Event of Default ”: Any event described in Section 7.1.

 

“ Existing Credit Agreement ”: As defined in the Recitals.

 

“ Federal Funds Rate ”: For any day, the rate per annum (rounded upwards to the nearest 1/100 of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the first preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate charged to the Administrative Agent on such day on such transactions as determined by the Administrative Agent.

 

“ Fixed Charge Coverage Ratio ”: For any period of determination ending on a Measurement Date, the ratio of

 

in each case determined for said period in accordance with GAAP.

 

 

 

“ GAAP ”: Generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as may be approved by a significant segment of the accounting profession, which are applicable to the circumstances as of any date of determination.

 

“ Holding Account ”: A deposit account belonging to the Administrative Agent for the benefit of the Banks into which the Borrowers may be required to make deposits pursuant to the provisions of this Agreement, such account to be under the sole dominion and control of the Administrative Agent and not subject to withdrawal by the Borrowers, with any amounts therein to be held for application toward payment of any outstanding Letters of Credit when drawn upon. The Holding Account shall be a money market savings account or substantial equivalent (or other appropriate investment medium as the Borrowers may from time to time request and to which the Administrative Agent in its reasonable discretion shall have consented) and shall bear interest in accordance with the terms of similar accounts held by the Administrative Agent for its customers.

 

“ Immediately Available Funds ”: Funds with good value on the day and in the city in which payment is received.

 

“ Indebtedness ”: With respect to any Person at the time of any determination, without duplication, all obligations, contingent or otherwise, of such Person which in accordance with GAAP should be classified upon the balance sheet of such Person as liabilities, but in any event including: (a) all obligations of such Person for borrowed money (including non-recourse obligations), (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (c) all obligations of such Person upon which interest charges are customarily paid or accrued, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property purchased by such Person, (e) all obligations of such Person issued or assumed as the deferred purchase price of property or services, (f) all obligations of others secured by any Lien on property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed, (g) all Capitalized Lease Obligations of such Person, (h) all obligations of such Person in respect of interest rate swap agreements, cap or collar agreements, interest rate future or option contracts, currency swap agreements, currency future or option agreements and other similar contracts, (i) all obligations of such Person, actual or contingent, as an account party in respect of letters of credit or bankers’ acceptances, (j) all obligations of any partnership or joint venture as to which such Person is or may become personally liable, (k) all trade payables ninety (90) days overdue (except to the extent such trade payables are being contested in good faith by such Person), (l) all obligations of such Person under any equity security issued by such Person which ceases to be considered an equity interest in such Person, and (m) all Contingent Obligations of such Person.

 

 

 

“ Interest Expense ”: For any period of determination, the aggregate amount, without duplication, of interest paid, accrued or scheduled to be paid in respect of any Indebtedness of the Borrowers or any Subsidiary except WFB, including (a) all but the principal component of payments in respect of conditional sale contracts, Capitalized Leases and other title retention agreements, (b) commissions, discounts and other fees and charges with respect to letters of credit and bankers’ acceptance financings and (c) net costs under interest rate protection agreements, in each case determined in accordance with GAAP.

 

“ Interest Period ”: With respect to each Eurodollar Rate Advance, the period commencing on the date of such Advance or on the last day of the immediately preceding Interest Period, if any, applicable to an outstanding Advance and ending one, two, three or six months thereafter, as the Borrowers may elect in the applicable notice of borrowing, continuation or conversion; provided that :

 

“ Intercreditor Agreement ”: The Amended and Restated Intercreditor Agreement, in the form attached hereto as Exhibit D , as the same may be amended, restated, supplemented or otherwise modified from time to time.

 

“ Investment ”: The acquisition, purchase, making or holding of any stock or other security, any loan, advance, contribution to capital, extension of credit (except for trade and customer accounts receivable for inventory sold or services rendered in the ordinary course of business and payable in accordance with customary trade terms), any acquisitions of real or personal property (other than real and personal property acquired in the ordinary course of

 

 

business) and any purchase or commitment or option to purchase stock or other debt or equity securities of or any interest in another Person or any integral part of any business or the assets comprising such business or part thereof. The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment.

 

“ LC Bank ”: USBNA with respect to Standby Letters of Credit, in its capacity as such issuer, or Wachovia Bank National Association with respect to Commercial Letters of Credit, in its capacity as such issuer, or from time to time, such successor Bank approved by the Borrowers and the Administrative Agent that issues a Standby Letter of Credit or Commercial Letter of Credit, as applicable, in its capacity as such issuer.

 

“ Letter of Credit ”: A Standby Letter of Credit or a Commercial Letter of Credit.

 

“ Letter of Credit Fee ”: As defined in Section 2.16(c).

 

“ Lien ”: With respect to any Person, any security interest, mortgage, pledge, lien, charge, encumbrance, title retention agreement or analogous instrument or device (including the interest of each lessor under any Capitalized Lease), in, of or on any assets or properties of such Person, now owned or hereafter acquired, whether arising by agreement or operation of law.

 

“ Loan ”: A Revolving Loan or a Swing Line Loan.

 

“ Loan Documents ”: This Agreement and the Notes.

 

“ Majority Banks ”: At any time, Banks other than Defaulting Banks holding at least 51% of the aggregate unpaid principal amount of the Notes, excluding Notes held by Defaulting Banks or, if no Loans are at the time outstanding hereunder, Banks other than Defaulting Banks whose Total Percentages aggregate at least 51% (with Total Percentages being computed without reference to the Revolving Commitment Amounts of Defaulting Banks).

 

“ Material Adverse Occurrence ”: Any occurrence of whatsoever nature (including, without limitation, any adverse determination in any litigation, arbitration, or governmental investigation or proceeding) which could reasonably be expected to materially and adversely affect (a) the financial condition or operations of the Borrowers and the Subsidiaries on a consolidated basis, (b) the ability of the Borrowers and the Subsidiaries on a consolidated basis to perform their obligations under any Loan Document, or any writing executed pursuant thereto, (c) the validity or enforceability of the material obligations of any Borrower under any Loan Document, (d) the rights and remedies of the Banks or the Administrative Agent against any Borrower, (e) the timely payment of the principal of and interest on the Loans or other amounts payable by the Borrowers hereunder, or (f) the validity of the joint and several nature of the obligations of the Borrowers with respect to all of the Obligations.

 

“ Material Contracts ”: Any contract entered into by any Borrower or any Subsidiary where loss of such contract would constitute a Material Adverse Occurrence.

 

 

 

“ Maximum Rate ”: As defined in Section 9.19.

 

“ Measurement Date ”: The last day of each fiscal quarter of the Borrowers.

 

“ Multiemployer Plan ”: A multiemployer plan, as such term is defined in Section 4001 (a) (3) of ERISA, which is maintained (on the Closing Date, within the five years preceding the Closing Date, or at any time after the Closing Date) for employees of the Borrowers or any ERISA Affiliate.

 

“ Net Cash Proceeds ”: The gross cash proceeds received by any Borrower or any Subsidiary except WFB with respect to (a) any offering of capital stock or issuance of Indebtedness by the Borrower or Subsidiary or (b) any sale or other disposition by such Borrower or such Subsidiary of Investments, less all legal, underwriting and other fees and expenses incurred by such Borrower or such Subsidiary in connection therewith.

 

“ Note ”: A Revolving Note or the Swing Line Note.

 

“ Obligations ”: The Borrowers’ obligations in respect of the due and punctual payment of principal and interest on the Notes and Unpaid Drawings when and as due, whether by acceleration or otherwise and all fees (including Revolving Commitment Fees), expenses, indemnities, reimbursements and other obligations of the Borrowers under this Agreement or any other Loan Document, and all obligations to any Rate Protection Provider under any Rate Protection Agreement, in all cases whether now existing or hereafter arising or incurred.

 

“ Operating Lease ”: A lease of (or other agreement conveying the right to use) real or personal property that is not a Capitalized Lease.

 

“ Operating Lease Obligations ”: As to any Person, the obligations of such Person to pay rent or other amounts under an Operating Lease.

 

“ Other Taxes ”: As defined in Section 2.26(b).

 

“ PBGC ”: The Pension Benefit Guaranty Corporation, established pursuant to Subtitle A of Title IV of ERISA, and any successor thereto or to the functions thereof.

 

“ Person ”: Any natural person, corporation, partnership, limited partnership, limited liability company, joint venture, firm, association, trust, unincorporated organization, government or governmental agency or political subdivision or any other entity, whether acting in an individual, fiduciary or other capacity.

 

“ Plan ”: Each employee benefit plan (whether in existence on the Closing Date or thereafter instituted), as such term is defined in Section 3 of ERISA, maintained for the benefit of employees, officers or directors of the Borrowers or of any ERISA Affiliate.

 

 

 

“ Prime Rate ”: For any day, a fluctuating rate per annum equal to the higher of (a) the Federal Funds Rate in effect for such day plus ½ of 1% or (b) the rate of interest in effect for such day as publicly announced from time to time by the Administrative Agent as its “prime rate.” The Administrative Agent may lend to its customers at rates that are at, above or below the Prime Rate. For purposes of determining any interest rate hereunder or under any other Loan Document which is based on the Prime Rate, such interest rate shall change as and when the Prime Rate shall change.

 

“ Prime Rate Advance ”: An Advance with respect to which the interest rate is determined by reference to the Prime Rate.

 

“ Prohibited Transaction ”: The respective meanings assigned to such term in Section 4975 of the Code and Section 406 of ERISA.

 

“ Rate Protection Agreement ”: Any interest rate swap, cap or option agreement, or any other agreement pursuant to which any Borrower hedges interest rate risk with respect to a portion of the Obligations, entered into by any Borrower with a Rate Protection Provider.

 

“ Rate Protection Obligations ”: The liabilities, indebtedness and obligations of any Borrower, if any, to any Rate Protection Provider under a Rate Protection Agreement.

 

“ Rate Protection Provider ”: Any Bank, or any Affiliate of any Bank, that is any Borrower’s counterparty under any Rate Protection Agreement.

 

“ Regulatory Change ”: Any change after the Closing Date in federal, state or foreign laws or regulations or the adoption or making after such date of any interpretations, directives or requests applying to a class of banks including any Bank under any federal, state or foreign laws or regulations (whether or not having the force of law) by any court or governmental or monetary authority charged with the interpretation or administration thereof.

 

“ Reportable Event ”: A reportable event as defined in Section 4043 of ERISA and the regulations issued under such Section, with respect to a Plan, excluding, however, such events as to which the PBGC by regulation has waived the requirement of Section 4043(a) of ERISA that it be notified within 30 days of the occurrence of such event, provided that a failure to meet the minimum funding standard of Section 412 of the Code and of Section 302 of ERISA shall be a Reportable Event regardless of the issuance of any waiver in accordance with Section 412(d) of the Code.

 

“ Restricted Payments ”: With respect to any Borrower and its Subsidiaries, collectively, all dividends or other distributions of any nature (cash, securities other than common stock of the Borrowers, assets or otherwise), and all payments on any class of equity securities (including warrants, options or rights therefor) issued by the Borrowers, whether such securities are authorized or outstanding on the Closing Date or at any time thereafter and any redemption or purchase of, or distribution in respect of, any of the foregoing, whether directly or indirectly, but excluding repurchases of stock from employees acquiring shares pursuant to stock options.

 

 

 

“ Revolving Commitment ”: With respect to a Bank, the agreement of such Bank to make Revolving Loans to the Borrowers in an aggregate principal amount outstanding at any time not to exceed such Bank’s Revolving Commitment Amount upon the terms and subject to the conditions and limitations of this Agreement.

 

“ Revolving Commitment Amount ”: With respect to a Bank, initially the amount set opposite such Bank’s name on the signature page hereof as its Revolving Commitment Amount, but as the same may be reduced or increased from time to time pursuant to Section 2.14.

 

“ Revolving Commitment Ending Date ”: June 30, 2010.

 

“ Revolving Commitment Fees ”: As defined in Section 2.16.

 

“ Revolving Loan ”: As defined in Section 2.1.

 

“ Revolving Loan Date ”: The date of the making of any Revolving Loans hereunder.

 

“ Revolving Note ”: A promissory note of the Borrowers in the form of Exhibit A-1 .

 

“ Revolving Outstandings ”: As to any Bank at any date, an amount equal to the sum of (a) the aggregate principal amount of all Revolving Loans made by such Bank then outstanding, (b) such Bank’s pro   rata share of outstanding Swing Line Loans, (c) such Bank’s participation in the aggregate maximum amount available to be drawn under Letters of Credit outstanding on such date, and (d) such Bank’s participation in the aggregate amount of Unpaid Drawings on such date.

 

“ Revolving Percentage ”: With respect to any Bank, the percentage equivalent of a fraction, the numerator of which is the Revolving Commitment Amount of such Bank and the denominator of which is the Aggregate Revolving Commitment Amounts.

 

“ Standby Letter of Credit ”: An irrevocable standby letter of credit issued by the LC Bank pursuant to this Agreement for the account of the Borrowers.

 

“ Subordinated Debt ”: Any Indebtedness of the Borrowers, now existing or hereafter created, incurred or arising, which is subordinated in right of payment to the payment of the Obligations in a manner and to an extent (a) that Majority Banks have approved in writing prior to the creation of such Indebtedness, or (b) as to any Indebtedness of the Borrowers existing on the date of this Agreement, that Majority Banks have approved as Subordinated Debt in a writing delivered by Majority Banks to the Borrowers’ Agent on or prior to the Closing Date.

 

“ Subsidiary ”: Any corporation or other entity of which securities or other ownership interests having ordinary voting power for the election of a majority of the board of directors or other Persons performing similar functions are owned by any Borrower either directly or through one or more Subsidiaries.

 

 

 

“ Swing Line Bank ”: USBNA, or any other Bank to whom the Swing Line Commitment is assigned pursuant to the terms of Section 9.6.

 

“ Swing Line Commitment ”: The sum of Twenty Million and No/100 Dollars ($20,000,000), as such amount may be reduced pursuant to Section 2.3(e).

 

“ Swing Line Conversion Date ”: As defined in Section 2.3(c).

 

“ Swing Line Default Payment Date ”: As defined in Section 2.3(f).

 

“ Swing Line Loans ”: As defined in Section 2.3(a).

 

“ Swing Line Note ”: A promissory note of the Borrowers in the form of Exhibit A-2 .

 

“ Tangible Net Worth ”: As of any date of determination, the sum of the amounts set forth on the balance sheet of the Borrowers and all Subsidiaries as the sum of the common stock, preferred stock, additional paid-in capital and retained earnings of the Borrowers and all Subsidiaries (excluding treasury stock), less the book value of all intangible assets of the Borrowers and all Subsidiaries, including all such items as goodwill, trademarks, trade names, service marks, copyrights, patents, licenses, unamortized debt discount and expenses and the excess of the purchase price of the assets of any business acquired by the Borrowers and all Subsidiaries (but in any case excluding all assets of the Borrowers and all Subsidiaries that are amortized for less than one year) over the book value of such assets.

 

“ Taxes ”: As defined in Section 2.26(a).

 

“ Termination Date ”: The earliest of (a) the Revolving Commitment Ending Date, (b) the date on which the Revolving Commitments are terminated pursuant to Section 7.2 hereof or (c) the date on which the Revolving Commitment Amounts are reduced to zero pursuant to Section 2.14 hereof.

 

“ Total Letter of Credit Commitment Amount ”: One Hundred Fifty Million and No/100 Dollars ($150,000,000) in the aggregate, inclusive of any Unpaid Drawings.

 

“ Total Percentage ”: With respect to any Bank, the percentage equivalent of a fraction, the numerator of which is the sum of the Revolving Commitment Amount of such Bank and the denominator of which is the sum of the Revolving Commitment Amounts of all the Banks.

 

“ Total Revolving Outstandings ”: At any time, the aggregate amount of the Banks’ Revolving Outstandings.

 

“ U.S. Taxes ”: As defined in Section 2.26(f).

 

“ Unpaid Drawing ”: As defined in Section 2.12.

 

 

 

“ Unused Revolving Commitment ”: With respect to any Bank as of any date of determination, the amount by which such Bank’s Revolving Commitment Amount exceeds such Bank’s Revolving Percentage of the Total Revolving Outstandings on such date.

 

“ USBNA ”: U.S. Bank National Association in its capacity as one of the Banks hereunder.

 

“ WFB ”: World’s Foremost Bank, a state chartered bank, and a Subsidiary of Cabela’s.

 

Section 1.2      Accounting Terms and Calculations . Except as may be expressly provided to the contrary herein, all accounting terms used herein shall be interpreted and all accounting determinations hereunder shall be made in accordance with GAAP. To the extent any change in GAAP affects any computation or determination required to be made pursuant to this Agreement, such computation or determination shall be made as if such change in GAAP had not occurred unless the Borrowers and Majority Banks agree in writing on an adjustment to such computation or determination to account for such change in GAAP.

 

Section 1.3      Computation of Time Periods . In this Agreement, in the computation of a period of time from a specified date to a later specified date, unless otherwise stated the word “from” means “from and including” and the word “to” or “until” each means “to but excluding”. Unless otherwise specified, the word “month” shall refer to a calendar month and the word “quarter” shall refer to a calendar quarter.

 

Section 1.4      Other Definitional Terms . The words “hereof,”“herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. References to Sections, Exhibits, schedules and like references are to this Agreement unless otherwise expressly provided. The words “include,”“includes” and “including” shall be deemed to be followed by the phrase “without limitation.” Unless the context in which used herein otherwise clearly requires, “or” has the inclusive meaning represented by the phrase “and/or.” All incorporation by reference of covenants, terms, definitions or other provisions from other agreements are incorporated into this Agreement as if such provisions were fully set forth herein, include all necessary definitions and related provisions from such other agreements but including only amendments thereto agreed to by the Majority Banks, and shall survive any termination of such other agreements until the obligations of the Borrowers under this Agreement and the Notes are irrevocably paid in full, all Letters of Credit have expired without renewal or been returned to the Administrative Agent, and the commitments of any Bank to advance funds to any Borrower are terminated.

 

ARTICLE II

TERMS OF THE CREDIT FACILITIES

 

Part A -- Terms of Lending

 

Section 2.1      Revolving Credit . On the terms and subject to the conditions hereof, each Bank severally agrees to make a revolving credit facility available as loans (each, a “ Revolving Loan ” and, collectively, the “ Revolving Loans ”) to the Borrowers, jointly and severally, on a

 

 

revolving basis at any time and from time to time from the Closing Date to the Termination Date, during which period the Borrowers may borrow, repay and reborrow in accordance with the provisions hereof, provided, that no Revolving Loan will be made in any amount which, after giving effect thereto, would cause the Total Revolving Outstandings to exceed the Aggregate Revolving Commitment Amounts. Revolving Loans hereunder shall be made by the several Banks ratably in the proportion of their respective Revolving Commitments Amounts. Revolving Loans may be obtained and maintained, at the election of the Borrowers’ Agent but subject to the limitations hereof, as Prime Rate Advances or Eurodollar Rate Advances; provided, however, that no more than ten (10) Eurodollar Rate Advances in respect of the Revolving Loans may be outstanding at any one time.

 

Section 2.2      Procedure for Revolving Loans . Any request by the Borrowers’ Agent for Revolving Loans hereunder shall be in writing or by telephone and must be given so as to be received by the Administrative Agent not later than 11:00 a.m. (Minneapolis time) two Eurodollar Business Days prior to the requested Revolving Loan Date if the Revolving Loans (or any portion thereof) are requested as Eurodollar Rate Advances and not later than 11:00 a.m. (Minneapolis time) on the requested Revolving Loan Date if the Revolving Loans are requested as Prime Rate Advances. Each request for Revolving Loans hereunder shall be irrevocable and shall be deemed a representation by the Borrowers that on the requested Revolving Loan Date and after giving effect to the requested Revolving Loans the applicable conditions specified in Article III have been and will be satisfied. Each request for Revolving Loans hereunder shall specify (i) the requested Revolving Loan Date, (ii) the aggregate amount of Revolving Loans to be made on such date which shall be in a minimum amount of $1,000,000 and integral multiples of $500,000 for amounts greater than such minimum (or an aggregate principal amount equal to the remaining balance of the available Commitments or the outstanding principal balance of the Swing Line Loans being repaid from a Borrowing on a Swing Line Conversion Date) or, if more, an integral multiple thereof, (iii) whether such Revolving Loans are to be funded as Prime Rate Advances or Eurodollar Rate Advances (and, if such Revolving Loans are to be made with more than one applicable interest rate choice, specifying the amount to which each interest rate choice is applicable), and (iv) in the case of Eurodollar Rate Advances, the duration of the initial Interest Period applicable thereto. The Administrative Agent may rely on any telephone request by the Borrowers’ Agent for Revolving Loans hereunder which it believes in good faith to be genuine; and the Borrowers hereby waive the right to dispute the Administrative Agent’s record of the terms of such telephone request. The Administrative Agent shall promptly notify each other Bank of the receipt of such request, the matters specified therein, and of such Bank’s ratable share of the requested Revolving Loans. On the date of the requested Revolving Loans, each Bank shall provide its share of the requested Revolving Loans to the Administrative Agent in Immediately Available Funds not later than 1:00 p.m. Minneapolis time. Unless the Administrative Agent determines that any applicable condition specified in Article III has not been satisfied, the Administrative Agent will make available to the Borrowers at the Administrative Agent’s principal office in Minneapolis, Minnesota in Immediately Available Funds not later than 4:00 p.m. (Minneapolis time) on the requested Revolving Loan Date the amount of the requested Revolving Loans. If the Administrative Agent has made a Revolving Loan to the Borrowers on behalf of a Bank but has not received the amount of such Revolving Loan from such Bank by the time herein required, such Bank shall pay interest to the

 

 

Administrative Agent on the amount so advanced at the overnight Federal Funds rate from the date of such Revolving Loan to the date funds are received by the Administrative Agent from such Bank, such interest to be payable with such remittance from such Bank of the principal amount of such Revolving Loan (provided, however, that the Administrative Agent shall not make any Revolving Loan on behalf of a Bank if the Administrative Agent has received prior notice from such Bank that it will not make such Revolving Loan). If the Administrative Agent does not receive payment from such Bank by the next Business Day after the date of any Revolving Loan, the Administrative Agent shall be entitled to recover such Revolving Loan, with interest thereon at the rate (or rates) then applicable to the such Revolving Loan, on demand, from the Borrowers, without prejudice to the Administrative Agent’s and the Borrowers’s rights against such Bank. If such Bank pays the Administrative Agent the amount herein required with interest at the overnight Federal Funds rate before the Administrative Agent has recovered from the Borrowers, such Bank shall be entitled to the interest payable by the Borrowers with respect to the Revolving Loan in question accruing from the date the Administrative Agent made such Revolving Loan.

 

Section 2.3      Swing Line Loans . (a) On the terms and subject to the conditions hereof, the Swing Line Bank agrees to lend to the Borrowers from time to time during the period from the Closing Date to but not including the Termination Date, such sums (the “ Swing Line Loans ”) as the Borrowers’ Agent may request in the aggregate up to the amount of the Swing Line Commitment, provided , that

 

 

 

 

 

 

 

Section 2.4      Notes . The Revolving Loans of each Bank shall be evidenced by a single Revolving Note payable to the order of such Bank in a principal amount equal to such Bank’s Revolving Commitment Amount originally in effect. The Swing Line Loans shall be evidenced by a single Swing Line Note payable to the order of the Swing Line Bank in the principal amount of the Swing Line Commitment originally in effect. Upon receipt of each Bank’s Notes from the Borrowers, the Administrative Agent shall mail such Notes to such Bank. Each Bank shall enter in its ledgers and records the amount of each Revolving Loan, the various Advances made, converted or continued and the payments made thereon, and each Bank is authorized by the Borrowers to enter on a schedule attached to its Revolving Note, as appropriate, a record of such Revolving Loans, Advances and payments; provided, however that the failure by any Bank to make any such entry or any error in making such entry shall not limit or otherwise affect the obligation of the Borrowers hereunder and on the Notes, and, in all events, the principal amounts owing by the Borrowers in respect of the Revolving Notes shall be the aggregate amount of all Revolving Loans made by the Banks less all payments of principal thereof made by the Borrowers.

 

 

 

Section 2.5      Conversions and Continuations . On the terms and subject to the limitations hereof, the Borrowers shall have the option at any time and from time to time to convert all or any portion of the Advances into Prime Rate Advances or Eurodollar Rate Advances, or to continue a Eurodollar Rate Advance as such; provided, however that a Eurodollar Rate Advance may be converted or continued only on the last day of the Interest Period applicable thereto and no Advance may be converted to or continued as a Eurodollar Rate Advance if a Default or Event of Default has occurred and is continuing on the proposed date of continuation or conversion. Advances may be converted to, or continued as, Eurodollar Rate Advances only in integral multiples, as to the aggregate amount of the Advances of all Banks so converted or continued, of $500,000. The Borrowers’ Agent shall give the Administrative Agent written notice of any continuation or conversion of any Advances and such notice must be given so as to be received by the Administrative Agent not later than 11:00 a.m. (Minneapolis time) two Eurodollar Business Days prior to requested date of conversion or continuation in the case of the continuation of, or conversion to, Eurodollar Rate Advances and on the date of the requested conversion to Prime Rate Advances. Each such notice shall specify (a) the amount to be continued or converted, (b) the date for the continuation or conversion (which must be (i) the last day of the preceding Interest Period for any continuation or conversion of Eurodollar Rate Advances, and (ii) a Eurodollar Business Day in the case of continuations as or conversions to Eurodollar Rate Advances and a Business Day in the case of conversions to Prime Rate Advances), and (c) in the case of conversions to or continuations as Eurodollar Rate Advances, the Interest Period applicable thereto. Any notice given by the Borrowers’ Agent under this Section shall be irrevocable. If the Borrowers’ Agent shall fail to notify the Administrative Agent of the continuation of any Eurodollar Rate Advances within the time required by this Section, at the option of the Administrative Agent, such Advances shall, on the last day of the Interest Period applicable thereto, (y) automatically be continued as Eurodollar Rate Advances with the same Interest Period or (z) automatically be converted into Prime Rate Advances. All conversions and continuation of Advances must be made uniformly and ratably among the Banks.

 

Section 2.6      Interest Rates, Interest Payments and Default Interest .

 

 

 

Section 2.7      Repayment and Mandatory Prepayment .

 

 

Section 2.8      Optional Prepayments . The Borrowers may prepay Prime Rate Advances and Alternate Advances, in whole or in part, at any time, without premium or penalty. The Borrowers may prepay Eurodollar Rate Advances, in whole or in part, at any time; provided that, upon such prepayment, the Borrowers shall pay to the Banks the amounts, if any, required pursuant to Section 2.25. Any prepayment shall be accompanied by accrued and unpaid interest on the amount prepaid and be made by the Borrowers not later than 11:00 a.m. (Minneapolis time) on the date the Borrowers wish such prepayment to become effective. Each partial prepayment shall be in an aggregate minimum amount for all the Banks of $1,000,000 and integral multiples of $500,000 for amounts greater than such minimum. Except upon an acceleration following an Event of Default or upon termination of the Revolving Commitments in whole, the Borrowers may pay Eurodollar Rate Advances only on the last day of the Interest Period applicable thereto. Amounts paid (unless following an acceleration or upon termination of the Revolving Commitments in whole) or prepaid on Advances on the Revolving Loans under this Section may be reborrowed upon the terms and subject to the conditions and limitations of this Agreement. Amounts paid or prepaid on the Revolving Loans under this Section shall be for the account of each Bank in proportion to its share of outstanding Revolving Loans.

 

Part B -- Terms of the Letter of Credit Facility

 

Section 2.9      Letters of Credit . Upon the terms and subject to the conditions of this Agreement, the LC Bank agrees to issue Letters of Credit for the account of the Borrowers from time to time between the Closing Date and the Termination Date in such amounts as the Borrowers’ Agent shall request up to an aggregate amount at any time outstanding not exceeding the Total Letter of Credit Commitment Amount; provided that no Letter of Credit will be issued in any amount which, after giving effect to such issuance, would cause Total Revolving Outstandings to exceed the Aggregate Revolving Commitment Amounts. Notwithstanding any provision herein to the contrary, each letter of credit issued pursuant to the Existing Credit Agreement that is currently outstanding and identified on Schedule 2.9 hereto shall constitute a Letter of Credit hereunder.

 

 

Section 2.10      Procedures for Letters of Credit . Each request for a Letter of Credit shall be made by the Borrowers’ Agent in writing, by telex, facsimile transmission or electronic conveyance received by the LC Bank and the Administrative Agent by 11:00 a.m. (Minneapolis time) on a Business Day which is not less than one Business Day preceding the requested date of issuance (which shall also be a Business Day). Each request for a Letter of Credit shall be deemed a representation by the Borrowers that on the date of issuance of such Letter of Credit and after giving effect thereto the conditions specified in Article III have been and will be satisfied. The LC Bank may require that such request be made on such letter of credit application and reimbursement agreement form as the LC Bank may from time to time specify, along with satisfactory evidence of the authority and incumbency of the officials of the Borrowers’ Agent making such request. The LC Bank shall promptly notify the Administrative Agent and other Banks of the receipt of the request and the matters specified therein. On the date of each issuance of a Letter of Credit the LC Bank shall send notice to the other Banks of such issuance, accompanied by a copy of the Letter or Letters of Credit so issued. 

 

Section 2.11      Terms of Letters of Credit . Letters of Credit shall be issued in support of obligations of the Borrowers. All Letters of Credit must expire not later than 364 days from the date of issuance (subject to renewal). As to each Letter of Credit that will be outstanding as of the Revolving Commitment Ending Date or as of the termination of the Commitments pursuant to Section 2.14, no further renewal of any such Letter of Credit shall occur, and the Borrower shall provide prior to the issuance of such Letter of Credit, (i) cash collateral in an amount reasonably satisfactory to the LC Bank, or (ii) one or more irrevocable letters of credit in form and substance, and issued by a bank, reasonably satisfactory to the LC Bank pursuant to which the LC Bank is entitled to recover the maximum amount at any time payable under such Letter of Credit, plus all costs and fees then or thereafter payable with respect to such Letter of Credit under the terms of this Agreement.

 

Section 2.12      Agreement to Repay Letter of Credit Drawings . If the LC Bank has received documents purporting to draw under a Letter of Credit that the LC Bank believes conform to the requirements of the Letter of Credit, or if the LC Bank has decided that it will comply with the Borrowers’ Agent’s written or oral request or authorization to pay a drawing on any Letter of Credit that the LC Bank does not believe conforms to the requirements of the Letter of Credit, it will notify the Borrowers’ Agent of that fact. The Borrowers shall reimburse the LC Bank by 9:30 a.m. (Minneapolis time) on the day on which such drawing is to be paid in Immediately Available Funds in an amount equal to the amount of such drawing. Any amount by which the Borrowers have failed to reimburse the LC Bank for the full amount of such drawing by 10:00 a.m. on the date on which the LC Bank in its notice indicated that it would pay such drawing, until reimbursed from the proceeds of Loans pursuant to Section 2.15 or out of funds available in the Holding Account, is an “ Unpaid Drawing .”

 

Section 2.13      Obligations Absolute . The obligation of the Borrowers under Section 2.12 to repay the LC Bank for any amount drawn on any Letter of Credit and to repay the Banks for any Revolving Loans made under Section 2.15 to cover Unpaid Drawings shall be absolute, unconditional and irrevocable, shall continue for so long as any Letter of Credit is outstanding notwithstanding any termination of this Agreement, and shall be paid strictly in accordance with the terms of this Agreement, under all circumstances whatsoever, including without limitation the following circumstances:

 

 

 

Neither the LC Bank nor any Bank nor officers, directors or employees of any thereof shall be liable or responsible for, and the obligations of the Borrowers to the LC Bank and the Banks shall not be impaired by:

 

Notwithstanding the foregoing, the Borrowers shall have a claim against the LC Bank, and the LC Bank shall be liable to the Borrowers, to the extent, but only to the extent, of any direct, as opposed to consequential, damages suffered by the Borrowers which the Borrowers prove were caused by the LC Bank’s willful misconduct or gross negligence in determining whether documents presented under any Letter of Credit comply with the terms thereof.

 

 

 

Part C -- General

 

Section 2.14      Changes to Revolving Commitment Amounts .

 

 

 

Section 2.15      Loans to Cover Unpaid Drawings . Whenever any Unpaid Drawing exists for which there are not then funds in the Holding Account to cover the same, the Administrative Agent shall give the other Banks notice to that effect, specifying the amount thereof, in which event each Bank is authorized (and the Borrowers do here so authorize each Bank) to, and shall, make a Revolving Loan (as a Prime Rate Advance) to the Borrowers in an amount equal to such Bank’s Revolving Percentage of the amount of the Unpaid Drawing. The Administrative Agent shall notify each Bank by 11:00 a.m. (Minneapolis time) on the date such Unpaid Drawing occurs of the amount of the Revolving Loan to be made by such Bank. Notices received after such time shall be deemed to have been received on the next Business Day. Each Bank shall then make such Revolving Loans (regardless of noncompliance with the applicable conditions precedent specified in Article III hereof and regardless of whether an Event of Default then exists) and each Bank shall provide the Administrative Agent with the proceeds of such Revolving Loan in Immediately Available Funds, at the office of the Administrative Agent, not later than 2:00 p.m. (Minneapolis time) on the day on which such Bank received such notice (or, in the case of notices received after 11:00 a.m., Minneapolis time, is deemed to have received such notice). The Administrative Agent shall apply the proceeds of such Revolving Loans directly to reimburse the LC Bank for such Unpaid Drawing. If any portion of any such amount paid to the Administrative Agent should be recovered by or on behalf of the Borrowers from the LC Bank in bankruptcy, by assignment for the benefit of creditors or otherwise, the loss of the amount so recovered shall be ratably shared between and among the Banks in the manner contemplated by Section 8.10 hereof. If at the time the Banks make funds available to the Administrative Agent pursuant to the provisions of this Section, the applicable conditions precedent specified in Article III shall not have been satisfied, the Borrowers shall pay to the Administrative Agent for the account of the Banks interest on the funds so advanced at a floating rate per annum equal to the sum of the Prime Rate plus the Applicable Margin for Prime Rate Advances plus two percent (2.00%). If for any reason any Bank is unable to make a Revolving Loan to the Borrowers to reimburse the LC Bank for an Unpaid Drawing, then such Bank shall immediately purchase from the LC Bank a risk participation in such Unpaid Drawing, at par, in an amount equal to such Bank’s Revolving Percentage of the Unpaid Drawing. 

 

 

Section 2.16      Fees .

 

 

 

Section 2.17      Computation . Computation of interest on Prime Rate Advances shall be calculated on the basis of a year of 365 or 366 days, as the case may be, and the actual number of days elapsed. Computation of all other types of interest and all fees shall be calculated on the basis of actual days elapsed and a year of 360 days.

 

Section 2.18      Payments . Payments and prepayments of principal of, and interest on, the Notes and all fees, expenses and other obligations under this Agreement payable to the Administrative Agent or the Banks shall be made without setoff or counterclaim in Immediately Available Funds not later than 9:30 a.m. (Minneapolis time) on the dates called for under this Agreement and the Notes to the Administrative Agent at its main office in Minneapolis, Minnesota. Funds received after such time shall be deemed to have been received on the next Business Day. The Administrative Agent will promptly distribute in like funds to each Bank its ratable share of each such payment of principal, interest and fees received by the Administrative Agent for the account of the Banks. Whenever any payment to be made hereunder or on the Notes shall be stated to be due on a day which is not a Business Day, such payment shall be made on the next succeeding Business Day and such extension of time, in the case of a payment of principal, shall be included in the computation of any interest on such principal payment; provided, however, that if such extension would cause payment of interest on or principal of a Eurodollar Rate Advance to be made in the next following calendar month, such payment sh