Fourth Amended And Restated Intercreditor Agreement Dated as of June 15, 2007 Among United of Omaha Life Insurance Company, Companion Life Insurance Company and Mutual of Omaha Insurance Company (the “1995 Noteholders”) and Jackson National Life...
Exhibit
10.1
Execution
Copy
Fourth
Amended And Restated Intercreditor Agreement
Dated
as
of June 15, 2007
Among
United
of
Omaha Life Insurance Company,
Companion
Life Insurance Company
and
Mutual
of
Omaha Insurance Company
(the
“1995 Noteholders”)
and
Xxxxxxx
National Life Insurance Company,
Xxxxxxx
National Life Insurance Company of New York,
The
Prudential Assurance Company Limited,
AIG
SunAmerica Life Assurance Company
First
SunAmerica Life Insurance Company,
Genworth
Life Insurance Company,
Genworth
Life and Annuity Insurance Company,
Teachers
Insurance and Annuity Association of America,
TIAA-CREF
Life Insurance Company
Nationwide
Life Insurance Company,
Nationwide
Life and Annuity Insurance Company,
Provident
Mutual Life Insurance Company,
Pacific
Life Insurance Company,
Massachusetts
Mutual Life Insurance Company,
C.M.
Life
Insurance Company,
MassMutual
Asia Limited
and
Principal
Life Insurance Company
(the
“2002 Noteholders”)
and
Principal
Life Insurance Company
Symetra
Life Insurance Company
Gibraltar
Life Insurance Co., Ltd.
The
Prudential Insurance Company of America
MTL
Insurance Company
Security
Benefit Life Insurance Company, Inc.
The
Variable Annuity Life Insurance Company
AIG
Annuity Insurance Company
The
Guardian Life Insurance Company of America
Berkshire
Life Insurance Company of America
Transamerica
Occidental Life Insurance Company
AmerUs
Life Insurance Company
American
Investors Life Insurance Company
Indianapolis
Life Insurance Company
Genworth
Life and Annuity Insurance Company
Xxxxxxx
National Life Insurance Company
Life
Insurance Company of the Southwest
Ameritas
Life Insurance Corp.
Acacia
Life Insurance Company
Equitrust
Life Insurance Company
Assurity
Life Insurance Company
Security
Financial Life Insurance Co.
(the
“2006 Noteholders”)
and
Metropolitan
Life Insurance Company
Metropolitan
Tower Life Insurance Company
(the
“2007 Noteholders”)
and
U.S.
Bank
National Association,
Wachovia
Bank, National Association,
LaSalle
Bank National Association,
Comerica
Bank,
Xxxxx
Fargo Bank, National Association,
Sovereign
Bank
and
JPMorgan
Chase Bank, N.A.
(the
“BANKS”)
and
U.S.
Bank
National Association,
as
Collateral Agent
(the
“Collateral Agent”)
and
Additional
Noteholders
(from
time to time)
Table
of Contents
|
Section
|
Heading
|
||
|
Section
1.
|
Definitions
|
4
|
|
|
Section
2.
|
[Intentionally
Reserved]
|
8
|
|
|
Section
3.
|
Remedies;
Application of Proceeds, Recoveries and Other Amounts
|
8
|
|
|
Section 3.1.
|
Remedies
|
8
|
|
|
Section 3.2.
|
Application
of Proceeds and Other Recoveries
|
9
|
|
|
Section
3.3.
|
Subaccounts
for Unfunded L/C Obligations
|
10
|
|
|
Section
3.4.
|
Sharing
of Recoveries
|
10
|
|
|
Section
3.5.
|
Return
of Amounts
|
11
|
|
|
Section
4
|
Agreements
Among the Senior Creditors
|
11
|
|
|
Section
4.1.
|
Delivery
of Notice of Actionable Default
|
11
|
|
|
Section
4.2.
|
Notifications
|
11
|
|
|
Section
4.3.
|
Effect
of Non-Compliance
|
11
|
|
|
Section
4.4.
|
Agreement
to Cooperate and to Pursue Remedies
|
11
|
|
|
Section
4.5
|
Independent
Actions by Senior Creditors
|
12
|
|
|
Section
4.6.
|
Relation
of Senior Creditors
|
12
|
|
|
Section
4.7
|
Amendments
and Waivers of Agreements
|
12
|
|
|
Section
4.8.
|
Amendments
and Waivers of This Agreement
|
13
|
|
|
Section
4.9.
|
Solicitation
of Senior Creditors
|
13
|
|
|
Section
4.10.
|
Parity
of Treatment
|
13
|
|
|
Section
5.
|
The
Collateral Agent
|
13
|
|
|
Section 5.1.
|
Duties
of Collateral Agent
|
14
|
|
|
Section
5.2.
|
Collateral
Agent’s Liability
|
14
|
|
|
Section
5.3.
|
No
Responsibility of Collateral Agent for Recitals
|
15
|
|
|
Section
5.4.
|
Certain
Limitations on Collateral Agent’s Rights to Compensation and
Indemnification
|
15
|
|
|
Section
5.5.
|
Status
of Moneys Received
|
16
|
|
|
Section
5.6.
|
Resignation
or Termination of Collateral Agent
|
16
|
|
|
Section
5.7.
|
Succession
of Successor Collateral Agent
|
16
|
|
|
Section
5.8.
|
Eligibility
of Collateral Agent
|
17
|
|
|
Section
5.9.
|
Successor
Collateral Agent by Merger
|
17
|
|
|
Section
5.10.
|
Compensation
and Reimbursement of Collateral Agent; Indemnification of Collateral
Agent
|
17
|
|
|
Section
5.11.
|
Self
Dealing
|
18
|
|
|
Section
6.
|
Miscellaneous
|
18
|
|
-i-
|
Section
6.1.
|
Entire
Agreement; Parties
|
18
|
|
|
Section
6.2.
|
Notices
|
19
|
|
|
Section
6.3.
|
Successors
and Assigns
|
27
|
|
|
Section
6.4.
|
Successor
Collateral Agent
|
27
|
|
|
Section
6.5.
|
Governing
Law
|
27
|
|
|
Section
6.6.
|
Counterparts
|
27
|
|
|
Section
6.7.
|
Sale
of Interest
|
27
|
|
|
Section
6.8.
|
Additional
Parties
|
27
|
|
|
Section
6.9.
|
Termination
|
27
|
|
|
Section
6.10.
|
Severability
|
28
|
FOURTH
AMENDED AND RESTATED INTERCREDITOR
AGREEMENT
FOURTH AMENDED
AND RESTATED INTERCREDITOR
AGREEMENT
dated
for convenience
as of June 15, 2007 between (i) United of Omaha Life Insurance Company,
Companion Life Insurance Company and Mutual of Omaha Insurance Company as
parties to the 1995 Note Agreements (as hereinafter defined), (ii) Xxxxxxx
National Life Insurance Company, Xxxxxxx National Life Insurance Company of
New
York, The Prudential Assurance Company Limited, AIG SunAmerica Life Assurance
Company, First SunAmerica Life Insurance Company, Genworth Life Insurance
Company, Genworth Life and Annuity Insurance Company, Teachers Insurance and
Annuity Association of America, TIAA-CREF Life Insurance Company, Nationwide
Life Insurance Company, Nationwide Life and Annuity Insurance Company, Provident
Mutual Life Insurance Company, Pacific Life Insurance Company, Massachusetts
Mutual Life Insurance Company, C.M. Life Insurance Company, MassMutual Asia
Limited and Principal Life Insurance Company as parties to the 2002 Note
Agreements (as hereinafter defined), Principal Life Insurance Company, Symetra
Life Insurance Company, Gibraltar Life Insurance Co., Ltd., The Prudential
Insurance Company of America, MTL Insurance Company, Security Benefit Life
Insurance Company, Inc., The Variable Annuity Life Insurance Company, AIG
Annuity Insurance Company, The Guardian Life Insurance Company of America,
Berkshire Life Insurance Company of America, Transamerica Occidental Life
Insurance Company, AmerUs Life Insurance Company, American Investors Life
Insurance Company, Indianapolis Life Insurance Company, Genworth Life and
Annuity Insurance Company, Xxxxxxx National Life Insurance Company, Life
Insurance Company of the Southwest, Ameritas Life Insurance Corp., Acacia Life
Insurance Company, Equitrust Life Insurance Company, Assurity Life Insurance
Company and Security Financial Life Insurance Co. as parties to the Original
2006 Note Agreements (as hereinafter defined), (iv) Metropolitan Life
Insurance Company and Metropolitan Tower Life Insurance Company as parties
to
the First Supplement (as hereinafter defined), (v) LaSalle Bank National
Association (“LaSalle”), Wachovia Bank, National Association
(“Wachovia”), U.S. Bank National Association (“U.S. Bank”),
Comerica Bank (“Comerica”), Xxxxx Fargo Bank, National Association
(“Xxxxx Fargo”), Sovereign Bank (“Sovereign”) and JPMorgan
Chase Bank, N.A. (“JPMorgan”), and, together with LaSalle, Wachovia,
U.S. Bank, Comerica, Xxxxx Fargo and Sovereign, individually, a “Bank,”
and, collectively, the “Banks”, as parties to the New Bank
Agreement (as hereinafter defined), (vi) U.S. Bank National Association, as
Collateral Agent (the “Collateral Agent”) and (vii) Additional
Noteholders from time to time.
RECITALS:
A. Cabela’s
Incorporated, a Delaware corporation (the “Company”), entered into the
separate Note Agreements dated as of January 1, 1995 (collectively, the
“Original Note Agreements”) with each of the 1995 Noteholders, pursuant
to which the Company theretofore issued and sold to the 1995 Noteholders (i)
$10,000,000 in aggregate principal amount of its 8.79% Senior Notes, Series
A,
due January 1, 2007 (the “1995 Series A Notes”), (ii) $5,000,000 in
aggregate principal amount of its 9.01% Senior Notes, Series B, due January
1,
2007 (the “1995 Series B Notes”), and (iii) $5,000,000 in aggregate
principal amount of its 9.19% Senior
Notes,
Series C, due January 1, 2010 (the “1995
Series C Notes”) (the Series A Notes, the Series B Notes and the
Series C Notes being collectively the “1995 Notes”).
B. The
Company
and certain of the Banks entered into a Credit Agreement dated as of October
9,
2001 with the borrowers thereunder consisting of the Company and the following
Subsidiaries of the Company: (i) Cabela’s Catalog, Inc., (ii)
Cabela’s Promotions, Inc. (now, Cabela’s Marketing and Brand Management, Inc.),
(iii) Cabela’s Retail, Inc., (iv) Cabela’s Outdoor Adventures, Inc., (v)
Xxxxxxx.xxx, Inc., (vi) Cabela’s Wholesale, Inc., (vii) Cabela’s Ventures, Inc.
and (viii) Xxx Xxxx Supply Company, Inc. (together the “Original Co-Obligor
Subsidiaries” and such Original Co-Obligor Subsidiaries, together with the
Company, the “Original Obligors”). The Company and certain of the Banks
entered into an Amended and Restated Credit Agreement dated as of May 6, 2004
(the “2004 Bank Agreement”) with the borrowers thereunder consisting of
the Company and the following Subsidiaries of the Company (such Subsidiaries
being “2004 Co-Obligor Subsidiaries”, and such 2004 Co-Obligor
Subsidiaries, together with the Company, the “2004 Obligors”): (i)
Cabela’s Retail, Inc., (ii) Xxx Xxxx Supply Company, Inc., (iii) Cabela’s
Venture, Inc., (iv) Cabela’s Outdoor Adventures, Inc., (v) Cabela’s Catalog,
Inc., (vi) Cabela’s Wholesale, Inc., (vii) Cabela’s Marketing and Brand
Management, Inc. (formerly known as Cabela’s Promotions Inc.),
(viii) Xxxxxxx.xxx, Inc., (ix) Wild Wings, LLC (“Wild Wings”), (x)
Cabela’s Lodging, LLC (“Lodging”), (xi) Xxxxxx’x, LLC
(“Xxxxxx’x”), (xii) Cabela’s Trophy Properties, LLC
(“Trophy”), and (xiii) Original Creations, LLC (“Creations”).
The Obligors (as hereinafter defined) and the Banks amended and restated the
2004 Bank Agreement by entering into a Second Amended and Restated Credit
Agreement dated as of July 15, 2005 (as further supplemented, amended or
restated, from time to time the “New Bank Agreement”) in which Xxxxxx’x
is no longer a borrower thereunder and in which Cabela’s Retail LA, LLC, a
Nebraska limited liability company (“Cabela’s LA”), Cabela’s Retail TX,
L.P., a Nebraska limited partnership (“Cabela’s TX”), Cabela’s Retail
GP, LLC, a Nebraska limited liability company (“Cabela’s GP”), CRLP,
LLC, a Nebraska limited liability company (“CRLP”) have become
additional borrowers and certain additional borrowers entered into
the Joinder Agreement dated as of February 22, 2006 by Legacy Trading
Company (“Legacy”) and by Cabela’s Retail MO, LLC. (“Retail
MO”) and have become additional borrowers under the New Bank
Agreement. An additional borrower entered
into a Joinder Agreement dated as of June 15, 2007 by Cabelas’s Retail IL, Inc.,
an Illinois corporation (“Retail IL”) and together with
Cabela’s LA, Cabela’s TX, Cabela’s GP, CRLP, Legacy, Retail MO, Retail IL and
the 2004 Obligors (except Xxxxxx’x, LLC), are collectively, the
“Obligors”) and have become additional borrowers under the New Bank
Agreement. The Obligors are sometimes referred to as “Borrowers”
under the New Bank Agreement.
C. The
Original
Note Agreements were amended and supplemented pursuant to the terms of
(i) Amendment No. 1 dated as of June 30, 1997 between the Company and
the 1995 Noteholders (“Amendment No. 1”), (ii) Amendment
No. 2 dated as of September 1, 2000 between the Company and the 1995
Noteholders (“Amendment No. 2”), (iii) Amendment No. 3 dated
as of October 9, 2001 between the Company and the 1995 Noteholders
(“Amendment No. 3”), (iv) Amendment No. 4 dated as of
September 5, 2002 between the Original Obligors, Wild Wings, Lodging,
Xxxxxx’x and the 1995 Noteholders (“Amendment No. 4”), (v) Amendment
No. 5 dated as of May 5, 2004 between the Original Obligors Wild Wings,
-2-
Lodging,
Xxxxxx’x and the 1995 Noteholders
(“Amendment No. 5”), (vi) Amendment No. 6 dated as of February 27, 2006
(“Amendment No. 6”), (vii) Amendment No. 7 dated as of June 15, 2007
(“Amendment No. 7”), (viii) the Joinder Agreement dated as of July
30, 2004 by Trophy, Creations, Cabela’s LA, Cabela’s TX, Cabela’s GP and CRLP
(as amended and restated by the Amended and Restated Joinder Agreement dated
July 15, 2005 (the “A&R 1995 Joinder”)), (ix) the Joinder
Agreement dated as of February 27, 2006 by Legacy and by Retail
MO (the “2006/1995 Joinders”) and (x) the Joinder Agreement dated June
15, 2007 by Retail IL (the “2007/1995 Joinder”) (the Original Note
Agreements, as amended and supplemented by Amendment Xx. 0, Xxxxxxxxx
Xx. 0, Xxxxxxxxx Xx. 0, Amendment Xx. 0, Xxxxxxxxx Xx. 0,
Xxxxxxxxx Xx. 0, Xxxxxxxxx Xx. 0, the 1995 A&R Joinder, the 2006/1995
Joinders and the 2007/1995 Joinder being collectively, and
as further supplemented, amended or related from time to time, the “1995
Note Agreements”).
D. The
Original
Obligors, Wild Wings, LLC, Cabela’s Lodging, LLC, Xxxxxx’x, (collectively, the
“2002 Obligors”) and the 2002 Noteholders entered into the separate
Note Purchase Agreements dated as of September 5, 2002 (collectively, the
“Original 2002 Note Agreements”) with each of the 2002 Noteholders
pursuant to which the 2002 Obligors issued and sold to the 2002 Noteholders
$125,000,000 in aggregate principal amount of their 4.95% Senior Notes, Series
2002-A, due September 5, 2009 (the “2002 Notes”). The Original 2002
Note Agreements were amended and supplemented by the First Amendment Agreement
dated October 31, 2005 (the “First 2002 Amendment”), the Second
Amendment Agreement dated February 27, 2006 (the “Second 2002
Amendment”), the Third Amendment Agreement dated June 15, 2007 (the
“Third 2002 Amendment”), the Joinder Agreement dated as of
July 30, 2004 by Trophy, Creations, Cabela’s LA, Cabela’s TX, Cabela’s GP
and CRLP (as amended and restated by the Amended and Restated Joinder Agreement
dated July 15, 2005 (the “A&R 2002 Joinder”)), the Joinder
Agreement dated as of February 27, 2006 by Legacy and by Retail MO (the
“2006/2002 Joinders”) and the Joinder Agreement dated June 15, 2007 by
Retail IL (the “2007/2002 Joinder”) (the Original 2002 Note Agreements
as amended and supplemented by the First 2002 Amendment, the Second 2002
Amendment, the Third 2002 Amendment, the A&R 2002 Joinder, the 2006/2002
Joinders, the 2007/2002 Joinder and as further supplemented, amended or restated
from time to time are the “2002 Note
Agreements”).
E. The
Obligors
and the 2006 Noteholders entered into separate Note Purchase Agreements dated
as
of February 27, 2006 (collectively, the “Original 2006 Note
Agreements”) with each of the 2006 Noteholders pursuant to which the
Obligors issued and sold to the 2006 Noteholders $215,000,000 aggregate
principal amount of their 5.99% Senior Notes, Series 2006-A, due
February 27, 2016 (the “2006 Notes”). The Original 2006
Note Agreements were amended and supplemented by the First Amendment Agreement
dated as of June 15, 2007 (the “First 2006 Amendment”) and the Joinder
Agreement dated June 15, 2007 by Retail IL (the “2007/2006
Joinder”).
F. The
Obligors
and the 2007 Noteholders entered into the First Supplement dated as of June
15,
2007 (the “First Supplement”) to the Original 2006 Note Agreements (the
Original 2006 Note Agreements as amended and supplemented by the First 2006
Amendment, the 2007/2006
Joinder and by the First Supplement and as further supplemented, amended or
restated from time to time are the “2006/2007 Note Agreements”)
pursuant to which the
-3-
Obligors
issued and sold to the 2007 Noteholders
$60,000,000 aggregate principal amount of their 6.08% Senior Notes,
Series 2007-A, due June 15, 2017 (the “2007
Notes”).
G. The
1995
Notes and all principal thereof, premium, if any, and interest thereon, the
2002
Notes and all principal thereof, premium, if any and interest thereon, the
2006
Notes and all principal thereof, premium, if any, and interest thereof, the
2007
Notes and all principal thereof, premium, if any, and interest thereon, the
Bank
Loans (as hereinafter defined) and all principal thereof and interest thereon
and any Additional Notes and all principal thereof, premium, if any and interest
thereof and any and all other obligations of the Obligors to the 1995
Noteholders, the 2002 Noteholders, the 2006 Noteholders, the 2007 Noteholders,
the Banks and any Additional Noteholders of every kind and description, direct
or indirect, absolute or contingent, primary or secondary, due or to become
due,
now existing or hereafter arising or acquired, under the terms of the 1995
Notes, the 2002 Notes, the 2006 Notes, the 2007 Notes, the Bank Notes (as
hereinafter defined), any Additional Notes, the 1995 Note Agreements, the 2002
Note Agreements, the 2006/2007 Note Agreements, the New Bank Agreement or any
other document or instrument executed and delivered by any of the Obligors
pursuant to the 1995 Note Agreements, the 2002 Note Agreements, the 2006/2007
Note Agreements or the New Bank Agreement and any modification, renewal or
replacement thereof, regardless of how they arise or are acquired or by what
agreement or instrument, if any, including obligations to perform acts and
refrain from taking action as well as obligations to pay money and including,
without limitation, the obligation of the Obligors in respect of undrawn amounts
of Letters of Credit, are hereinafter collectively referred to as the
“Obligations.”
H. The
1995
Noteholders, the 2002 Noteholders, the 2006 Noteholders, the 2007 Noteholders
and the Banks have reached certain agreements concerning the interests of each
and have set forth said agreements below.
Section
1. Definitions.
Unless
the context otherwise requires, the terms hereinafter set forth when used herein
shall have the following meanings and the following definitions shall be equally
applicable to both the singular and plural forms of any of the terms herein
defined:
“Additional
Notes” shall have the meaning set forth in the 2002 Note
Agreements and the 2006/2007 Note Agreements (as applicable).
“Additional
Noteholders” shall mean any Person who purchases Additional Notes and
executed a counterpart to this Agreement pursuant to Section 6.8 hereto and
any
Persons who succeed to their respective benefits in accordance with
Section 6.3 and 6.7 hereto.
“Bank
Loans” shall mean the Revolver Loans, the L/C Loans and the Swing Line
Loans.
“Bank
Notes” shall mean, collectively, the Revolving Loan Notes evidencing the
Revolver Loans outstanding from time to time under the New Bank Agreement
and
the Swing Line Note evidencing the Swing Line Loans outstanding from time
to
time under the New Bank Agreement.
-4-
“Banks”
shall have the meaning set forth in the introductory paragraph of this
Agreement.
“Borrowers”
shall have the meaning set forth in paragraph B of the Recitals
hereto.
“Collateral”
shall mean any amounts received by the Collateral Agent hereunder to pay
Obligations including, without limitation, any Recoveries and any other
collateral from time to time securing the Obligations.
“Collateral
Agent” shall mean U.S. Bank National Association, in its capacity as
collateral agent hereunder, and any successor collateral agent appointed
pursuant to Section 5.6 hereof.
“Company”
shall mean Cabela’s Incorporated, a Delaware corporation, and any Person
who succeeds to all, or substantially all, of the assets and business of
Cabela’s Incorporated.
“Event
of Default” means (i) any Event of Default under the New Bank Agreement,
(ii) any Event of Default under the 1995 Note Agreements, (iii) any Event
of Default under the 2002 Note Agreements, or (iv) any Event of Default
under the 2006/2007 Note Agreements.
“First
Supplement” shall have the meaning set forth in paragraph F of the
Recitals hereto.
“Funded
L/C Obligations” shall mean at any time the obligations of the Borrowers
with respect to any Letter of Credit which has been partially or fully drawn
upon.
“L/C
Funding Event” shall mean the occurrence of an event which causes an
Unfunded L/C Obligation to become a Funded L/C Obligation.
“L/C
Loans” means the loans of the Banks with respect to Letters of
Credit.
“Legacy
Joinder” shall have the meaning set forth in paragraph D of the
Recitals thereto.
“Letters
of Credit” shall mean the Letters of Credit available to the Borrowers
under the New Bank Agreement.
“New
Bank Agreement” shall have the meaning set forth in paragraph B of the
Recitals hereto.
“1995
Note Agreements” shall have the meaning set forth in paragraph C of the
Recitals hereto.
“1995
Noteholders” shall mean United of Omaha Life Insurance Company, Companion
Life Insurance Company and Mutual of Omaha Insurance Company, as the initial
purchasers of the 1995 Notes, and any Persons who succeed to their respective
benefits in accordance with Sections 6.3 and 6.7 hereof.
-5-
“1995
Notes” shall have the meaning set forth in paragraph A of the Recitals
hereto.
“Nonpayment
Event of Default” shall mean the occurrence of any Event of Default other
than a Payment Event of Default.
“Notice
of Actionable Default” shall mean a written notice issued by a Senior
Creditor or Senior Creditors to the Collateral Agent, with a copy thereof to
the
Company, certifying (1) that a Payment Event of Default under the 1995 Note
Agreements, the 2002 Note Agreements, the 2006/2007 Note Agreements or the
New
Bank Agreement, as the case may be, to which such Senior Creditor or Senior
Creditors shall be a party has occurred and is continuing or (2) that a
Nonpayment Event of Default under the 1995 Note Agreements, the 2002 Note
Agreements, the 2006/2007 Note Agreements or the New Bank Agreement, as the
case
may be, to which such Senior Creditor or Senior Creditors shall be a party
has
occurred and is continuing, and that at least 10 days prior to the issuance
of
such notice, a Senior Creditor shall have delivered to the Collateral Agent,
the
Company and every other Senior Creditor prior written notice of such Nonpayment
Event of Default.
“Obligations”
shall have the meaning set forth in paragraph E of the Recitals
hereto.
“Obligors”
shall have the meaning set forth in paragraph B of the Recitals hereto and
shall include any other borrower or guarantor from time to time under the New
Bank Agreement, the 1995 Note Agreements, the 2002 Note Agreements or the
2006/2007 Note Agreements.
“Original
Co-Obligor Subsidiaries” shall have the meaning set forth in paragraph B of
the Recitals hereto.
“Original
2006 Note Agreements” shall have the meaning set forth in paragraph E
of the Recitals thereof.
“Original
Obligors” shall have the meaning set forth in paragraph B of the Recitals
hereto.
“Payment
Event of Default” shall mean (1) the occurrence of a default or an event of
default under the 1995 Note Agreements as a result of the failure of the
Obligors to pay when due principal of, premium, if any, or interest on any
1995
Note, (2) the occurrence of a default or an event of default under the 2002
Note
Agreements as a result of the failure of the Obligors to pay when due principal
of, premium, if any, or interest on any 2002 Note or any Additional Note, (3)
the occurrence of a default or an event of default under the 2006/2007 Note
Agreements as a result of the failure of the Obligors to pay when due principal
of, premium, if any, or interest on any 2006 Note or any 2007 Note or any
Additional Note, (4) the occurrence of a default or an event of default
under the New Bank Agreement as a result of the failure of the Obligors to
pay
when due interest, unused commitment fee and/or prepayment compensation, if
any,
or principal on the Revolver Loans or the Swing Line Loans, or (5) the
occurrence of a default or an event of default under the New Bank Agreement
as a
result of the failure of the Obligors to pay when due reimbursement obligations
on Letters of Credit.
-6-
“Person”
shall mean an individual, partnership, corporation, limited liability
company, bank, trust or unincorporated organization, and a government or agency
or political subdivision thereof.
“Reallocation
Event” shall mean an event which causes an Unfunded L/C Obligation to cease
to exist without becoming a Funded L/C Obligation, including the termination
of
a Letter of Credit without being drawn upon.
“Recovery”
shall have the meaning set forth in Section 3.4 hereof.
“Revolver
Loans” shall mean the Revolver Loans available to the Borrowers under the
New Bank Agreement.
“Secured
Documents” shall mean the 1995 Notes, the 1995 Note Agreements, the 2002
Notes, the 2002 Note Agreements, the 2006 Notes, the 2006/2007 Note Agreements,
the 2007 Notes, the Bank Notes, the New Bank Agreement, the Letters of Credit,
any Additional Notes and any and all amendments and supplements
thereof.
“Senior
Creditors” shall mean the 1995 Noteholders, the 2002 Noteholders, the 2006
Noteholders, the 2007 Noteholders, the Banks and the Additional
Noteholders.
“Swing
Line Loans” shall mean the Swing Line Loans available to the Borrowers
under the New Bank Agreement.
“2004
Bank Agreement” shall have the meaning set forth in paragraph B of the
Recitals hereto.
“2004
Co-Obligor Subsidiaries” shall have the meaning set forth in paragraph B of
the Recitals hereto.
“2004
Obligors” shall have the meaning set forth in paragraph B of the Recitals
hereto.
“2007
Noteholders” means Metropolitan Life Insurance Company and Metropolitan
Tower Life Insurance Company as the initial purchasers of the 2007 Notes, and
any Persons who succeed to their respective benefits in accordance with
Section 6.3 and 6.7 hereof.
“2007
Notes” shall have the meaning set forth in paragraph F of the Recitals
hereto.
“2006/2007
Note Agreements” shall have the meaning set forth in paragraph F of the
Recitals hereto.
“2006
Noteholders” shall mean Principal Life Insurance Company, Symetra Life
Insurance Company, Gibraltar Life Insurance Co., Ltd., The Prudential Insurance
Company of America, MTL Insurance Company, Security Benefit Life Insurance
Company, Inc., The Variable Annuity Life Insurance Company, AIG Annuity
Insurance Company, The Guardian Life Insurance Company of America, Berkshire
Life Insurance Company of America,
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Transamerica
Occidental Life Insurance Company, AmerUs Life Insurance Company, American
Investors Life Insurance Company, Indianapolis Life Insurance Company, Genworth
Life and Annuity Insurance Company, Xxxxxxx National Life Insurance Company,
Life Insurance Company of the Southwest, Ameritas Life Insurance Corp., Acacia
Life Insurance Company, Equitrust Life Insurance Company, Assurity Life
Insurance Company and Security Financial Life Insurance Co., as the initial
purchasers of the 2006 Notes, and any Persons who succeed to their respective
benefits in accordance with Sections 6.3 and 6.7 hereof.
“2006
Notes” shall have the meaning set forth in paragraph E of the Recitals
hereto.
“2002
Note Agreements” shall have the meaning set forth in paragraph D of the
Recitals hereto.
“2002
Noteholders” shall mean Xxxxxxx National Life Insurance Company, Xxxxxxx
National Life Insurance Company of New York, The Prudential Assurance Company
Limited, AIG SunAmerica Life Assurance Company, First SunAmerica Life Insurance
Company, Genworth Life Insurance Company, Genworth Life and Annuity Insurance
Company, Teachers Insurance and Annuity Association of America, TIAA-CREF Life
Insurance Company, Nationwide Life Insurance Company, Nationwide Life and
Annuity Insurance Company, Provident Mutual Life Insurance Company, Pacific
Life
Insurance Company, Massachusetts Mutual Life Insurance Company, C.M. Life
Insurance Company, MassMutual Asia Limited and Principal Life Insurance Company,
as the initial purchasers of the 2002 Notes, and any Persons who succeed to
their respective benefits in accordance with Sections 6.3 and 6.7
hereof.
“2002
Notes” shall have the meaning set forth in paragraph D of the Recitals
hereto.
“Unfunded
L/C Obligations” shall mean at any time the obligations of the Borrowers to
the Banks in respect of undrawn amounts of outstanding Letters of Credit issued
by such Banks. Each such Unfunded Obligation will be deemed to be in
an amount equal to the undrawn amount of the related Letter of
Credit.
“Uniform
Commercial Code” shall mean the Uniform Commercial Code, as in effect in
the applicable jurisdiction.
Section
2.
[Intentionally Reserved].
Section
3. Remedies; Application
of Proceeds, Recoveries and Other Amounts.
Section 3.1. Remedies. Upon
receipt of a Notice of Actionable Default, the Collateral Agent shall, pursuant
to the written direction of the Senior Creditor or Senior Creditors giving
the
Notice of Actionable Default, exercise each of the remedies available to
the
Collateral Agent and specified in each written direction to the Collateral
Agent, it being expressly understood that no remedy herein conferred is intended
to be exclusive of any other remedy or remedies; but each and every remedy
shall
be cumulative and shall be in addition to every other remedy given herein
or now
or hereafter existing at law or in equity or by statute; provided, that
(i) a Notice of Actionable Default may be withdrawn at any time by delivery
of a
written notice to the
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Collateral
Agent to such effect by the Senior Creditor or Senior Creditors which gave
the
Notice of Actionable Default and upon receipt of such written notice, the
Collateral Agent shall no longer follow the written directions of such
Senior
Creditor or Senior Creditors with respect to the exercise of remedies hereunder,
and (ii) if there shall be more than one Notice of Actionable Default
outstanding at any time and the written directions from the respective
Senior
Creditors shall be conflicting, the Collateral Agent may exercise such
remedies
as it shall, in its sole discretion, deem appropriate, which will include
the
following:
(a) The
Collateral Agent shall have the right immediately and without prior notice
or
demand to set off against Obligations, whether or not due, all money and other
amounts owed by the Collateral Agent in any capacity to any of the Obligors,
and
the Collateral Agent may freeze any bank account of any of the Obligors with
the
Collateral Agent prior to and in anticipation of said setoff;
(b) The
Collateral Agent may proceed to protect and enforce its rights by a suit or
suits in equity or at law, or for the specific performance of any covenant
or
agreement contained herein, or in aid of the execution of any power herein
granted, or for the enforcement of this Agreement, or for the enforcement of
any
other appropriate legal or equitable remedy permitted by applicable
law.
Section 3.2. Application
of Proceeds and Other Recoveries. In the event that any Notice
of Actionable Default shall have been delivered to the Collateral Agent, amounts
recovered from the Obligors or pursuant to Section 3.4 hereof shall be applied,
as promptly as reasonably practicable, but in no event later than 5 business
days after receipt thereof, subject to the following provisions of this Section
3, to the payment of the Obligations as follows:
(a) To
the payment of costs
and expenses of suit, if any, and the costs of collecting and recovering any
such amounts including, without limitation, the reasonable compensation
of the Collateral Agent, its agents, attorneys and counsel, and of all
reasonable expenses, liabilities and advances incurred or made hereunder by
the
Collateral Agent;
(b) to
the application to the
Obligations in the following order:
(i) to
pay all
accrued interest, fees and other amounts (excluding the items described in
clause (ii) below) which are payable under the Secured Documents apportioned
among the Senior Creditors in proportion to the aggregate amount thereof
then
due each Senior Creditor;
(ii) to
be
allocated among all outstanding principal, and premium, if any (including,
in
the case of the 1995 Notes, the Make-Whole Amounts, as defined in the 1995
Note
Agreements and in the case of the 2002 Notes, the Make-Whole Amount as defined
in the 2002 Note Agreements and, in the case of the 2006 Notes, the Make-Whole
Amount as defined in the Original 2006 Note Agreements and, in the case of
the
2007 Notes, the Make-Whole Amount as defined in the First Supplement and
any
premium related to any Additional Notes
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as
set
forth in a Supplement to the 2002 Note Agreements or the 2006 Note Agreements
(as the case may be)), due on the Bank Loans, the 1995 Notes, the 2002 Notes,
the 2006 Notes, the 2007 Notes, any Additional Notes and all Unfunded L/C
Obligations, apportioned among the Senior Creditors in proportion to the
aggregate amount of (w) the outstanding principal of the Bank Loans, 1995 Notes,
2002 Notes, 2006 Notes, 2007 Notes or Additional Notes of each Senior Creditor,
(x) the aggregate Unfunded L/C Obligations of each Senior Creditor, and (y)
the
premium, if any, then due each Senior Creditor thereunder; and any amount so
allocated under clauses (w) or (y) of this paragraph (b)(ii) to a Senior
Creditor, shall be paid to such Senior Creditor and any amount so allocated
under clause (x) of this paragraph (b)(ii) to any Senior Creditor shall be
held
in a separate subaccount established under Section 3.3 hereof for
disposition in accordance with the provisions thereof;
(c) the
payment
of the surplus, if any, to the Obligors, their successors or to whomsoever
may
be lawfully entitled to receive the same.
Section
3.3. Subaccounts for
Unfunded L/C Obligations. Whenever any amount
(“proceeds”) is allocated to a Senior Creditor of Unfunded L/C
Obligations pursuant to Section 3.2 above, such proceeds shall be held by
the Collateral Agent for the benefit of such Senior Creditor and shall be
suballocated by the Collateral Agent to separate subaccounts for each of the
Unfunded L/C Obligations of such Senior Creditor based upon the Senior
Creditors’ share of each of such Unfunded L/C Obligations. Upon the subsequent
occurrence of an L/C Funding Event with respect to an Unfunded L/C Obligation
to
which proceeds have been suballocated, the Collateral Agent shall pay the
amount(s) suballocated in respect of such Unfunded L/C Obligations (adjusted
for
any partial draws or investment losses or gains pursuant to this
Section 3.3) to the Senior
Creditors for whom the related subaccounts were established. Pending the
distribution of such amounts, the Collateral Agent shall hold the amounts
allocated to separate subaccounts pursuant to the foregoing provisions and
may
invest such amounts in direct obligations of the United States of America or
obligations for which the full faith and credit of the United States is pledged
to provide for the payment of principal and interest, maturing not more than
90
days from the date of such investment.
Upon
the occurrence
of a Reallocation Event with respect to any Unfunded L/C Obligation for which
proceeds have been suballocated pursuant to the foregoing provisions of this
Section 3.3, the Collateral Agent shall reapply the proceeds which have been
so
suballocated (adjusted for any investment losses or gains pursuant to this
Section 3.3) as if such proceeds had then been received for application pursuant
to Section 3.2 hereof.
Section
3.4. Sharing of
Recoveries. If (i) a Notice of Actionable Default shall have
been delivered to the Collateral Agent and (ii) such Notice shall not have
been
withdrawn and the Event of Default described therein shall then be continuing,
any Senior Creditor which shall receive any payment of any fee, expense,
principal, premium or interest under any of the Secured Documents, including
any
amount received by the exercise of any right of setoff (any such payment
or
amount being hereinafter referred to as a “Recovery”), shall pay the
amount of such Recovery to the Collateral Agent for distribution to the Senior
Creditors and the Collateral Agent
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shall
pay
such amount to the Senior Creditors in accordance with the provisions set forth
in Section 3.2.
Section
3.5. Return of
Amounts. In the event that any Senior Creditor which shall
receive any payments pursuant to Section 3.4 above (a “Recovering
Party”) shall be legally required to return or repay any Recovery to any of
the Obligors, or the representative or successor in interest of any of the
Obligors because any such payments are subsequently invalidated, voided,
declared to be fraudulent or preferential, set aside or required to be paid
to a
trustee under the bankruptcy code, each other Senior Creditor which shall have
received any portion of such Recovery shall, promptly upon its receipt of notice
thereof from the Collateral Agent or such Recovering Party, pay to the
Collateral Agent such portion, and the Collateral Agent shall promptly return
such portion to such Obligors, their representative or successor in interest
of
such Obligors, as the case may be. If any such Recovery, or any part
thereof, is subsequently re-recovered by the Recovering Party from any Obligors
or the representative or successor in interest of the Obligors, such Recovery
shall be paid by the Recovering Party to the Collateral Agent, and the
Collateral Agent shall redistribute such Recovery to the other Senior Creditors
on the same basis as such amounts were originally distributed. In
addition, if any Senior Creditor shall have its right to share in the proceeds
of any part of the Collateral released, terminated or invalidated, whether
voluntarily or involuntarily, then such proceeds shall be reallocated among
the
Senior Creditors entitled to receive such proceeds and the indebtedness owing
to
such Senior Creditor shall no longer be considered in determining the allocation
of proceeds received with respect to said Collateral, and such Senior Creditor
shall have no claim on said Collateral or the proceeds thereof. The obligations
of the Senior Creditors and the Collateral Agent under this paragraph shall
survive the repayment of the Obligations and the termination of the Collateral
Documents.
Section
4. Agreements Among the
Senior Creditors.
Section
4.1. Delivery of
Notice of
Actionable Default. Each Senior Creditor shall have the right to
issue a Notice of Actionable Default.
Section
4.2. Notifications. Prior
to the delivery to the Collateral Agent of a Notice of Actionable Default
by a
Senior Creditor, each Senior Creditor shall deliver notice thereof to every
other Senior Creditor and the Company.
Section
4.3. Effect of
Non-Compliance. The failure of any Senior Creditor to perform
any of its obligations under the 1995 Note Agreements, the 2002 Note Agreements,
the 2006/2007 Note Agreements, the New Bank Agreement, or this Agreement,
including without limitation, the failure of any Senior Creditor to pay to
the
Collateral Agent any amounts required to be so paid under this Agreement,
shall
not relieve any other Senior Creditor of its obligations under the 1995 Note
Agreements, the 2002 Note Agreements, the 2006/2007 Note Agreements, the
New
Bank Agreement or this Agreement.
Section
4.4. Agreement to
Cooperate and to Pursue Remedies. (a) Each Senior Creditor
hereby agrees to cooperate fully with each other Senior Creditor, in order
to
promptly discharge the terms and provisions of this Agreement. Each
Senior Creditor also agrees, from time to time,
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to
execute and deliver any and all other agreements, documents or instruments
and
to take such other actions, all as may be reasonably necessary or desirable
to
effectuate the terms, provisions and the intent of this Agreement.
(b) Each
Senior Creditor
agrees that, until its Obligations have been paid in full, it will diligently
pursue, or cause the Collateral Agent to diligently pursue, any and all
collection actions and remedies available to such Senior Creditor or to the
Collateral Agent under applicable law which actions and remedies such Senior
Creditor deems reasonably likely to result in the recovery of amounts to be
applied to Obligations for the benefit of the Senior Creditors, which
Obligations shall include, without limitation, any amounts distributed to such
Secured Party by the Collateral Agent as a sharing of a Recovery under Section
3.4 hereof.
Section
4.5. Independent
Actions by Senior Creditors. Nothing contained in this Agreement
shall prohibit any Senior Creditor from accelerating the maturity of or
demanding payment on any indebtedness of any of the Obligors to such Senior
Creditor or exercising any right of set-off against any amounts owed to any
of
the Obligors or from instituting legal action against any of the Obligors,
to
obtain a judgment or other legal process in respect of such indebtedness, but
any funds received in connection with any such set-off or enforcement of any
such judgment shall be subject to the terms of this Agreement and, if received
by a Senior Creditor, shall be turned over to the Collateral Agent to the extent
required hereunder for application as set forth herein.
Section
4.6. Relation of Senior
Creditors. This Agreement is entered into solely for the
purposes set forth herein and, except as expressly provided otherwise herein,
no
Senior Creditor assumes any responsibility to any other party hereto to advise
such other party of information known to such other party regarding the
financial condition of the Company or the other Obligors or of any other
circumstances bearing upon the risk of nonpayment of the obligations of the
Obligors to the Senior Creditors. Each Senior Creditor shall be
responsible for managing its relations with the Obligors, and no party shall
be
deemed the agent of any other party for any purpose except as expressly set
forth herein. Each Senior Creditor specifically acknowledges and agrees that
nothing contained in this Agreement is or is intended to be for the benefit
of
any of the Obligors and nothing contained herein shall limit or in any way
modify any of the obligations of the Obligors to the Senior Creditors.
Section
4.7. Amendments
and
Waivers of Agreements. The Senior Creditors agree that
(i) the Banks may enter into any amendment or modification of the New Bank
Agreement without the consent of the 1995 Noteholders or the 2002 Noteholders
or
the 2006 Noteholders or the 2007 Noteholders or any Additional Noteholders,
(ii) the 1995 Noteholders may enter into any amendment or modification of
the 1995 Notes or the 1995 Note Agreements without the consent of the Banks
or
the 2002 Noteholders or the 2006 Noteholders or the 2007 Noteholders or any
Additional Noteholders, (iii) the 2002 Noteholders or the Additional
Noteholders under the 2002 Note Agreements may enter into any amendment or
modification of the 2002 Notes or the 2002 Note Agreements or such Additional
Notes without the consent of the Banks or the 1995 Noteholders or the 2006
Noteholders or the 2007 Noteholders or the Additional Noteholders under the
2006/2007 Note Agreements and (iv) the 2006 Noteholders or the 2007
Noteholders or the Additional Noteholders under the 2006/2007 Note Agreements
may enter into
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any
amendment or modification of the 2006 Notes, the 2007 Notes, such Additional
Notes or the 2006/2007 Note Agreements without the consent of the Banks or
the
1995 Noteholders or the 2002 Noteholders or the Additional Noteholders under
the
2002 Note Agreements; provided, that, upon the Banks, the 1995
Noteholders, the 2002 Noteholders, the 2006 Noteholders, the 2007 Noteholders
or
the Additional Noteholders entering into any such amendment or modification,
the
Persons executing such amendment or modification shall promptly furnish a copy
thereof to all of the other Senior Creditors.
Section
4.8. Amendments and
Waivers of This Agreement. Any provision of this Agreement may
be amended or compliance therewith waived with the written consent thereto
of:
(i) the
holders
of at least 51% in aggregate principal amount of the 1995 Notes then
outstanding;
(ii) the
holders
of at least 51% in aggregate principal amount of the sum of (x) 2002 Notes
and (y) any Additional Notes under the 2002 Note Agreements then
outstanding;
(iii) the
holders of at least 51% in aggregate principal amount of the sum of
(x) 2006 Notes and (y) the 2007 Notes and (z) any Additional
Notes under the 2006/2007 Note Agreements then outstanding;
and
(iv) each
of the
Banks which is a party to the New Bank Agreement.
Section
4.9. Solicitation
of Senior Creditors. Each of the Obligors hereby agrees that it
will not offer to any Senior Creditor any benefit or consideration (whether
immediate or prospective, definite or contingent) of any kind as an inducement
to such Senior Creditor to consent to an amendment or waiver of any of the
foregoing documents or instruments without concurrently offering a comparable
benefit or consideration to each other Senior Creditor as an inducement to
consent to such amendment or waiver.
Section
4.10. Parity of
Treatment. Each Senior Creditor agrees that it will not accept
from any of the Obligors or any other Person any benefit or consideration
(whether immediate or prospective, definite or contingent) with respect to
the
Obligations (including, without limitation, any guaranty from any third party
or
any collateral security) without the prior written consent of each other
Senior
Creditor unless such benefit or consideration shall also be conferred upon
or
paid to each other Senior Creditor on a pro rata basis based upon the amount
of
Obligations owed thereto.
Section
5. The
Collateral Agent.
The
Collateral Agent accepts the duties hereunder and agrees to perform the same,
but only upon the terms and conditions hereof, including the following, to
all
of which the Obligors and the respective Senior Creditors by their acceptance
hereof agree:
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Section 5.1. Duties
of
Collateral Agent. (a) In the event that a Responsible Officer of
the Collateral Agent shall have received written notice from a Senior Creditor
or any of the Obligors of an Event of Default, the Collateral Agent shall give
prompt written notice of such Event of Default to each Senior Creditor. Subject
to the terms of Section 5.2(g), the Collateral Agent shall take such action
or
refrain from taking such action as the Collateral Agent shall be directed
pursuant to a Notice of Actionable Default. The term “Responsible
Officer” of the Collateral Agent shall mean (i) any officer of the
Collateral Agent which is a loan officer on the account of the Obligors under
the New Bank Agreement, (ii) any other officer which has direct or indirect
supervisory responsibility of the account of the Obligors under the New Bank
Agreement, and (iii) any Person to whom notice may be given on behalf of the
Collateral Agent under Section 6 hereof.
(b) The
Collateral Agent
shall not have any duty or obligation to take or refrain from taking any action
under, or in connection with, this Agreement, except as expressly provided
by
the terms and conditions of this Agreement, or expressly provided in written
instructions received pursuant to the terms of this Agreement.
(c) The
Collateral Agent
may, but shall not be under any obligation to, take any action which is
discretionary with the Collateral Agent or otherwise requires judgment to be
made by the Collateral Agent under the provisions hereof, except on written
request by the Senior Creditors.
Section
5.2. Collateral
Agent’s
Liability. No provision of this Agreement (except to the extent
provided in Section 5.11 hereof) shall be construed to relieve the Collateral
Agent from liability for its own grossly negligent action, grossly negligent
failure to act, or its own willful misconduct, and provided further that:
(a) the
Collateral Agent
shall not be liable except for the performance of such duties as are
specifically set forth in this Agreement and no implied covenants or obligations
of the Collateral Agent shall be read into this Agreement but the duties
and
obligations of the Collateral Agent shall be determined solely by the express
provisions of this Agreement;
(b) in
the absence of bad
faith on the part of the Collateral Agent, the Collateral Agent may rely
upon
the authenticity of, and the truth of the statements and the correctness
of the
opinions expressed in, and shall be protected in acting upon, any resolution,
officer’s certificate, opinion of counsel, note, request, notice, consent,
waiver, order, signature guaranty, notarial seal, stamp, acknowledgment,
verification, appraisal, report, stock certificate, or other paper or document
believed by the Collateral Agent to be genuine and to have been signed, affixed
or presented by the proper party or parties;
(c) in
the absence of bad
faith on the part of the Collateral Agent, whenever the Collateral Agent,
or any
of its agents, representatives, experts or counsel, shall consider it necessary
or desirable that any matter be proved or established, such matter (unless
other
evidence in respect thereof be herein specifically prescribed) may be deemed
to
be conclusively proved and established by an officer’s certificate;
provided,
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however,
that the Collateral Agent, or such agent, representative, expert or counsel,
may
require such further and additional evidence and make such further investigation
as it or they may consider reasonable;
(d) the
Collateral Agent
may consult with counsel and the advice or opinion of such counsel shall be
full
and complete authorization and protection in respect of any action taken or
suffered hereunder in good faith and in accordance with such advice or opinion
of counsel;
(e) the
Collateral Agent
shall not be liable with respect to any action taken or omitted to be taken
by
it in good faith in accordance with any direction or request of a Senior
Creditor pursuant to the terms of this Agreement;
(f) the
Collateral Agent
shall not be liable for any error of judgment made in good faith by an officer
of the Collateral Agent unless it shall be proved that the Collateral Agent
was
grossly negligent in ascertaining the pertinent facts;
(g) whether
or not an
Event of Default shall have occurred, the Collateral Agent shall not be under
any obligation to take or refrain from taking any action under this Agreement
which may tend to involve it in any expense or liability, the payment of
which
within a reasonable time is not, in its reasonable opinion, assured to it
by the
security afforded to it by the terms of this Agreement, unless and until
it is
requested in writing so to do by a Senior Creditor and furnished, from time
to
time as it may require, with reasonable security and indemnity; and
(h) the
Collateral Agent
shall not be concerned with or accountable to any Person for the use or
application of any deposited moneys which shall be released or withdrawn
in
accordance with the provisions of this Agreement.
Section
5.3. No Responsibility
of
Collateral Agent for Recitals. The recitals and statements
contained in this Agreement and in the Secured Documents shall be taken as
the
recitals and statements of the Obligors, and the Collateral Agent assumes
no
responsibility for the correctness of the same.
The
Collateral Agent makes no representation as to the validity or sufficiency
of
this Agreement or of the Obligations.
Section
5.4. Certain Limitations
on Collateral Agent’s Rights to Compensation and
Indemnification. Except to the extent otherwise expressly
provided in Section 5.10, the Collateral Agent shall have no right against
a
Senior Creditor for the payment of compensation for its services hereunder
or
any expenses or disbursements incurred in connection with the exercise and
performance of its powers and duties hereunder or any indemnification against
liabilities which it may incur in the exercise and performance of such powers
and duties, but on the contrary, shall look solely to the Obligors for such
payment and indemnification which the Obligors hereby acknowledge, and the
Collateral Agent shall have a lien on and a security
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interest
in the Collateral as security for such compensation, expenses, disbursements
and
indemnification provided for in Section 3.2 hereof.
Section
5.5. Status of
Moneys Received. (a) All moneys received by the Collateral Agent
shall, until used or applied as herein provided, be held for the purposes for
which they were received, but need not be segregated in any manner from any
other moneys, except to the extent required by law, and may be deposited by
the
Collateral Agent under such general conditions as may be prescribed by law
in
the Collateral Agent’s general banking department, and the Collateral Agent
shall be under no liability for interest on any moneys received by it hereunder.
The Collateral Agent and any affiliated corporation may become the owner of
any
of the Obligations and be interested in any financial
transaction with any Obligor, or the Collateral Agent may act as depository
or
otherwise in respect to other securities of any Obligor, all with the same
rights which it would have if it was not the Collateral
Agent.
(b) The
Collateral Agent
may invest and reinvest any funds from time to time held by the Collateral
Agent
in direct obligations of the United States of America or obligations for which
the full faith and credit of the United States is pledged to provide for the
payment of principal and interest, maturing not more than 90 days from the
date
of such investment.
Section
5.6. Resignation
or Termination of Collateral Agent. The Collateral Agent may
resign as Collateral Agent upon not less than 30 days’ written notice to each of
the Senior Creditors. In addition, any Senior Creditor may by written
notice at any time remove the Collateral Agent for cause by giving written
notice thereof, including a description of the reason for such removal, to
the
Collateral Agent, the other Senior Creditors and the Company. Upon
any such resignation, or any such removal, the Senior Creditors shall have
the
right to jointly appoint a successor Collateral Agent. If no successor
Collateral Agent shall have been so appointed, and shall have accepted such
appointment in writing within 30 days after the retiring Collateral Agent’s
giving of notice of resignation or its removal, as the case may be, then
the
retiring Collateral Agent may, on behalf of the Senior Creditors, appoint
a
successor Collateral Agent, which shall be a commercial bank organized under
the
laws of the United States of America or of any state thereof with the legal
capacity to act as Collateral Agent hereunder and having a combined capital,
surplus and undivided profits of not less than $100,000,000, and the Company
agrees to pay such reasonable fees and expenses of any such commercial bank
as
shall be necessary to induce such commercial bank to agree to become a successor
Collateral Agent hereunder. Upon acceptance of appointment as Collateral
Agent,
such successor shall thereupon and forthwith succeed to and become vested
with
all the rights, powers and privileges, immunities and duties of the retiring
Collateral Agent, and the retiring Collateral Agent, upon the signing,
transferring and setting over to such successor Collateral Agent all rights,
moneys and other collateral held by it in its capacity as Collateral Agent,
shall be discharged from its duties and obligations hereunder. After
any retiring Collateral Agent’s resignation or removal as Collateral Agent, the
provisions of this Section 5 shall govern as to any actions taken or omitted
to
be taken by it while it acted as Collateral Agent.
Section
5.7. Succession
of Successor Collateral Agent. Any successor Collateral Agent
appointed hereunder shall execute, acknowledge and deliver to the Obligors
and
the predecessor Collateral Agent an instrument accepting such appointment,
and
thereupon such successor
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Collateral
Agent, without any further act, deed, conveyance or transfer, shall become
vested with the security interest in the Collateral, and with all the rights,
powers, duties and obligations of the predecessor Collateral Agent in the trust
hereunder, with like effect as if originally named as Collateral Agent herein.
Upon
the
request of any such successor Collateral Agent, however, the Obligors and the
predecessor Collateral Agent shall execute and deliver such instruments of
conveyance and further assurance and do such other things as may reasonably
be
required for more fully and certainly vesting and confirming in such successor
Collateral Agent its interest in the Collateral and all such rights, powers,
duties and obligations of the predecessor Collateral Agent hereunder, and the
predecessor Collateral Agent shall also assign and deliver to the successor
Collateral Agent any Collateral subject to the lien and security interest of
this Agreement which may then be in its possession.
Section
5.8. Eligibility of
Collateral Agent. Any successor Collateral Agent shall be a
state or national bank or trust company in good standing, organized under the
laws of the United States of America or of any State, having capital, surplus
and undivided profits aggregating at least $100,000,000 or a guaranty of its
obligations hereunder from such a bank or trust company or holding company
in
good standing, organized under the laws of the United States of America or
of
any State having a capital, surplus and undivided profits aggregating at least
$100,000,000, if there be such a bank or trust company willing and able to
accept the duties hereunder upon reasonable and customary terms.
Section
5.9. Successor
Collateral Agent by Merger. Any corporation into which the
Collateral Agent may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the Collateral
Agent shall be a party, or any state or national bank or trust company in any
manner succeeding to the corporate trust business of the Collateral Agent as
a
whole or substantially as a whole, if eligible as provided in Section 5.8,
shall be the successor of the Collateral Agent hereunder without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything to the contrary contained herein notwithstanding.
Section
5.10. Compensation
and Reimbursement of Collateral Agent; Indemnification of Collateral
Agent. The Obligors agree:
(a) to
pay to the
Collateral Agent all of its out-of-pocket expenses in connection with the
preparation, execution and delivery of this Agreement and the transactions
contemplated hereby, including but not limited to the reasonable charges and
disbursements of its counsel;
(b) to
pay to the
Collateral Agent from time to time reasonable compensation for all services
rendered by it hereunder; provided, that the Collateral Agent may waive
any such compensation;
(c) except
as
otherwise expressly provided herein, to reimburse the Collateral Agent upon
its
request for all reasonable expenses, disbursements and advances incurred
-17-
or
made
by the Collateral Agent in accordance with any provision of this Agreement
(including the reasonable compensation and the expenses and disbursements of
its
agents and counsel), except any such expense, disbursement or advance as may
be
attributable to its gross negligence or willful misconduct; and
(d) to
indemnify
the Collateral Agent for, and to hold it harmless against, any loss, liability
or expense incurred without gross negligence or willful misconduct on its part,
arising out of or in connection with the acceptance or administration of the
Agreement, including, but not limited to, the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder, and any loss, liability,
expense or claim arising out of its possession, management, control, use or
operation of the Collateral.
The
Senior Creditors agree, severally but not jointly and severally, to indemnify
the Collateral Agent (to the extent not reimbursed under Section 5.10(a) through
(d) inclusive), ratably on the basis of the respective principal amounts of
the
Obligations outstanding, for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever that may be imposed on, incurred by or
asserted against the Collateral Agent (including the costs and expenses that
the
Obligors are obligated to pay under this Section 5.10 regardless of whether
the
obligation of the Obligors to pay such costs and expenses is enforceable)
arising out of the actions of the Collateral Agent hereunder or the transactions
contemplated thereby or the enforcement of any of the terms thereof or of any
such other documents, provided that no Senior Creditor shall be liable
for any of the foregoing to the extent they arise from the gross negligence,
willful misconduct or knowing violations of law by the Collateral
Agent.
Notwithstanding
any other provision of this Agreement, the Collateral Agent shall in all cases
be fully justified in failing or refusing to act hereunder unless it shall
be
indemnified to its satisfaction by the Senior Creditors against any and all
liability and expense that may be incurred by it by reason of taking or
continuing to take any such action.
Section
5.11. Self
Dealing. The Collateral Agent or any holding company, trust
company or corporation in or with which the Collateral Agent or the Collateral
Agent’s stockholders may be interested or affiliated, or any officer or director
of the Collateral Agent or of any other such entity, or any agent appointed
by
the Collateral Agent, may have commercial relations or otherwise deal with
any
of the Obligors, or any Senior Creditor, or with any other corporation having
relations with any of the Obligors or any Senior Creditor, and with any other
entity, whether or not affiliated with the Collateral Agent, without affecting
its rights hereunder.
Section
6. Miscellaneous.
Section
6.1. Entire
Agreement; Parties. This Agreement represents the entire
Agreement between the Senior Creditors and the Collateral Agent and, except
as
otherwise provided, this Agreement may not be altered, amended or modified
except in a writing executed by all the parties to this Agreement. The persons
who shall be parties to this Agreement shall be (i) all 1995 Noteholders,
(ii) all 2002 Noteholders, (iii) all 2006 Noteholders, (iv) all
2007
-18-
Noteholders,
(v) all Persons who are signatories
and parties to the New Bank Agreement and (vi) all Additional Noteholders.
Section
6.2. Notices. All
communications provided for herein shall be in writing, delivered or mailed
prepaid by registered or certified mail or overnight air courier, or by
facsimile communication at the addresses set forth below, or to such other
address as such person may designate to the other persons named below by notice
given in accordance with this Section:
|
If
to the 1995 Noteholders:
|
United
of Omaha Life Insurance Company
Companion
Life Insurance Company
Mutual
of Omaha Insurance Company
Mutual
of Xxxxx Xxxxx
Xxxxx,
Xxxxxxxx 00000
Attention: Xxxx
Xxxxxxx
Telefacsimile: (402)
351-291
|
|
|
If
to the 2002 Noteholders:
|
Xxxxxxx
National Life Insurance Company
Xxxxxxx
National Life Insurance Company
of
New York
The
Prudential Assurance Company Limited
c/o
PPM America Inc.
000
Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000-0000
Attention: Xxxxxxx
Xxxxxxxxxx
Telefacsimile: (000)
000-0000
AIG
SunAmerica Life Assurance Company
First
SunAmerica Life Insurance Company
c/o
AIG Global Investment Corporation
0000
Xxxxx Xxxxxxx, Xxxxx X00-00
Xxxxxxx,
Xxxxx 00000-0000
Attention: Legal
Department -Investment
Management
Telefacsimile: (000)
000-0000
Genworth
Life Insurance Company
Genworth
Life and Annuity Insurance Company
c/o
GE Financial Assurance
Two
Union Square, 000 Xxxxx Xxxxxx
Xxxxxxx,
Xxxxxxxxxx 00000
Attention: Investment
Department, Private Placements
Telefacsimile: (000)
000-0000
|
-19-
|
Teachers
Insurance and Annuity Association of
America
000
Xxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000-0000
Attention: Securities
Accounting Division
Telefacsimile: 000-000-0000
TIAA-CREF
Life Insurance Company
000
Xxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000-0000
Attention: Securities
Accounting Division
Telefacsimile: 000-000-0000
Nationwide
Life Insurance Company
Nationwide
Life and Annuity Insurance Company
Provident
Mutual Life Insurance Company
Xxx
Xxxxxxxxxx Xxxxx (0-00-00)
Xxxxxxxx,
Xxxx 00000-0000
Attention: Corporate
Fixed -Income Securities
Telefacsimile:
Pacific
Life Insurance Company
000
Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Securities
Administration – Cash Team
Telefacsimile: (000)
000-0000
Massachusetts
Mutual Life Insurance Company
C.M.
Life Insurance Company
MassMutual
Asia Limited
c/o
Babson Capital Management LLC
0000
Xxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxxxxxx 00000
Attention: Securities
Investment Division
Telefacsimile:
|
-20-
|
Principal
Life Insurance Company
c/o
Principal Capital Income Investors, LLC
000
Xxxxx Xxxxxx
Xxx
Xxxxxx, Xxxx 00000-0000
Attention: Investment
Department - Securities
Telefacsimile: (000)
000-0000
|
||
|
If
to the 2006 Noteholders:
|
Principal
Life Insurance Company
c/o
Principal Global Investors, LLC
000
Xxxx Xxxxxx
Xxx
Xxxxxx, Xxxx 00000-0000
Symetra
Life Insurance Company
c/o
Principal Global Investors, LLC
000
Xxxx Xxxxxx
Xxx
Xxxxxx, Xxxx 00000-0000
Attention: Fixed
Income Private Placement
Gibraltar
Life Insurance Co., Ltd.
Prudential
Private Placement Investors, L.P.
c/o
Prudential Capital Group
Two
Prudential Plaza
000
Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000-0000
Attention: Managing
Director
The
Prudential Insurance Company of America
c/o
Prudential Capital Group
Two
Prudential Plaza
000
Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000-0000
Attention: Managing
Director
MTL
Insurance Company
Prudential
Private Placement Investors, L.P.
c/o
Prudential Capital Group
Two
Prudential Plaza
000
Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000-0000
Attention: Managing
Director
|
-21-
|
Security
Benefit Life Insurance Company, Inc.
Prudential
Private Placement Investors, L.P.
c/o
Prudential Capital Group
Two
Prudential Plaza
000
Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000-0000
Attention: Managing
Director
The
Variable Annuity Life Insurance Company
c/o
AIG Global Investment Group
0000
Xxxxx Xxxxxxx, Xxxxx X00-00
Xxxxxxx,
Xxxxx 00000-0000
Attn: Legal
Department - Investment Management
Facsimile
Number: (000) 000-0000
AIG
Annuity Insurance Company
c/o
AIG Global Investment Group
0000
Xxxxx Xxxxxxx, X00-00
Xxxxxxx,
Xxxxx 00000-0000
Attention: Legal
Department-Investment Management
Fax
Number: (000) 000-0000
The
Guardian Life Insurance Company of America
0
Xxxxxxx Xxxxxx
Xxx
Xxxx, XX 00000-0000
Attention: Xxxxx
Xxxxxxxxxxx
Investment
Department 20-D
Fax
Number: (000) 000-0000/2656
Berkshire
Life Insurance Company of America
c/o
The Guardian Life Insurance Company of America
0
Xxxxxxx Xxxxxx
Xxx
Xxxx, XX 00000-0000
Attention: Xxxxx
Xxxxxxxxxxx
Investment
Department 20-D
Telefacsimile: (000)
000-0000/2656
|
-22-
|
Transamerica
Occidental Life Insurance Company
c/o
AEGON USA Investment Management, LLC
0000
Xxxxxxxx Xxxx X.X.
Xxxxx
Xxxxxx, Xxxx 00000-0000
Attention: Director
of Private Placements
Phone: (000)
000-0000
Fax: (000)
000-0000
AmerUs
Life Insurance Company
c/o
AmerUs Capital Management
000
Xxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxx, Xxxx 00000
Attention: Xxxxx
Xxxxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
American
Investors Life Insurance Company
c/o
AmerUs Capital Management
000
Xxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxx, Xxxx 00000
Attention: Xxxxx
Xxxxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Indianapolis
Life Insurance Company
c/o
AmerUs Capital Management
000
Xxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxx, Xxxx 00000
Attention: Xxxxx
Xxxxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Genworth
Life and Annuity Insurance Company
c/o
Genworth Financial
Account: Genworth
Life and Annuity Insurance Company
000
Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxxxx 00000
Attention: Private
Placements
Phone
Number: (000) 000-0000
Fax
Number: (000) 000-0000
|
-23-
|
Xxxxxxx
National Life Insurance Company
0000
Xxxxxxxxx Xxxxx
Xxxxxxx,
Xxxxxxxx 00000
Life
Insurance Company of the Southwest
c/o
National Life Insurance Company
One
National Life Drive
Montpelier,
Vermont 05604
Attention: Private
Placements
Fax
Number: (000) 000-0000
E-mail: xxxxxxxx@xxxxxxxxxxxx.xxx
Ameritas
Life Insurance Corp. - Closed Block
0000
“X” Xxxxxx
Xxxxxxx,
Xxxxxxxx 00000-0000
Ameritas
Life Insurance Corp.
0000
“X” Xxxxxx
Xxxxxxx,
Xxxxxxxx 00000-0000
Acacia
Life Insurance Company
0000
“X” Xxxxxx
Xxxxxxx,
Xxxxxxxx 00000-0000
Equitrust
Life Insurance Company
0000
Xxxxxxxxxx Xxxxxx
Xxxx
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Securities
Department
Assurity
Life Insurance Company
Attention:
Investment Division
0000
Xxxx Xxxx Xxxx
Xxxxxxx,
Xxxxxxxx 00000
Security
Financial Life Insurance Co.
0000
Xxxx Xxxx Xxxx
P.
O. Xxx 00000
Xxxxxxx,
Xxxxxxxx 00000-0000
|
-24-
|
If
to the 2007 Noteholders:
|
Metropolitan
Life Insurance Company
1
MetLife Plaza
00-00
Xxxxxx Xxxxx Xxxxx
Xxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Metropolitan
Tower Life Insurance
Company
1
MetLife Plaza
00-00
Xxxxxx Xxxxx Xxxxx
Xxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
|
|
|
If
to the Banks:
|
U.S.
Bank National Association
000
Xxxxx 00xx Xxxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attention: Xxxxx
X. Xxxxxxxx
with
a copy to:
Xxxxxx
& Whitney, LLP
00
Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx,
XX 00000
Attention: Xxxx
Xxxxxxx
Wachovia
Securities
One
South Broad Street
MC:
PA4843
Xxxxxxxxxxxx,
XX 00000
Attention: Xxxx
Xxxxxx
LaSalle
Bank National Association
Republic
Plaza
000
00xx Xxxxxx, Xxxxx 0000
Xxxxxx,
XX 00000
Attention: Xxxxxx
X. Xxxxxx
Comerica
Bank
Comerica
Bank at Detroit Center
000
Xxxxxxxx Xxxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attention: Xxxxxxx
X. X’Xxxxxx
|
-00-
|
Xxxxx
Xxxxx Bank, National Association
0000
X Xxxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attention: Xxxx
Xxxxx
Sovereign
Bank
000
Xxxx Xx.
00-0000-XX0
Xxxxxxx,
XX 00000
Attention: Xxxxx
Xxxxxxxx
JPMorgan
Chase Bank, N.A.
000
X. Xxxxxx Xxxxxx, Xx. 28
Xxxxxxx,
XX 00000
Attention: Xxxx
Xxxxxx
|
||
|
If
to the Collateral Agent:
|
U.S.
Bank National Association
000
Xxxxx 00xx Xxxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attention: Xxxxx
X. Xxxxxxxx,
Vice
President
|
|
|
If
to the Company:
|
Cabela’s
Incorporated
Xxx
Xxxxxx Xxxxx
Xxxxxx,
Xxxxxxxx 00000
Attention: Xxxxx
Xxxxxxx, CFO & Vice
President
Telefacsimile: (000)
000-0000
with
a copy to:
Xxxxx
Xxxxxx, P.C.
0000
Xxxxx 000xx Xxxxxx, Xxxxx 000
Xxxxx,
Xxxxxxxx 00000
Attention: Xxxxxxx
X. Xxxx
Telefacsimile:
(000) 000-0000
Cabela’s
Incorporated
Xxx
Xxxxx Xxxxx
Xxxxxx,
Xxxxxxxx 00000
Attention:
Legal Department
Telefacsimile:
(000) 000-0000
|
-26-
|
If
to the Additional Noteholders:
|
At
an address provided by such Additional
Noteholder
at the time of the execution of
a
counterpart hereto.
|
Section
6.3.Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of each of the Senior Creditors and their respective successors and
assigns, whether so expressed or not, and, in particular, shall inure to the
benefit of and be enforceable by any future holder or holders of any
Obligations, and the term “Senior Creditor” shall mean and include only the
Persons referred to in the second sentence of Section 6.1 above.
Section
6.4.Successor
Collateral Agent. In the event that a successor Collateral Agent
is appointed hereunder, each of the Senior Creditors and the Obligors hereby
agree to use its best efforts and to take all actions necessary and appropriate
to provide for the collection of Obligations by the successor Collateral Agent
upon the delivery of a Notice of Actionable Default.
Section
6.5.Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Nebraska.
Section
6.6.Counterparts. This
Agreement may be
executed in any number of counterparts, all of which taken together shall
constitute one Agreement, and any of the parties hereto may execute this
Agreement by signing any such counterpart.
Section
6.7.Sale of
Interest. No Senior Creditor will sell, transfer or dispose of
any interest in the Obligations unless such purchaser or transferee shall agree,
in writing, to be bound by the terms of this Agreement.
Section
6.8.Additional
Parties. Any Person which becomes a 1995 Noteholder, a 2002 Noteholder, a
2006 Noteholder, a 2007 Noteholder or a party to the New Bank Agreement shall
become a party to this Agreement which shall be evidenced by such Person
executing a counterpart signature page of this Agreement whereby such holder
shall then be a Secured Creditor hereunder and shall have all the rights and
benefits hereunder as a Secured Creditor as if it had signed this Agreement
on
the date hereof. It is understood and agreed that any Person
that purchases Additional Notes under the 2002 Note Agreements and/or the
2006/2007 Note Agreements and becomes a holder (as defined in the 2002 Note
Agreements and the 2006/2007 Note Agreements respectively) thereunder after
the
date hereof shall become a Secured Creditor hereunder by executing a counterpart
signature page of this Agreement whereby such holder shall then be a Secured
Creditor hereunder and shall have all the rights and benefits hereunder as
a
Secured Creditor as if it had signed this Agreement on the date
hereof. Any such Person who executes a counterpart signature page of
this Agreement shall deliver a copy of such counterpart to the Company who
shall
distribute a copy of such counterpart to all Secured Parties.
Section
6.9.Termination. In the
event that (i) no Event of Default exists and no event or circumstance which,
with the passage of time or the giving of notice would constitute an Event
of
Default (a “Default”) exists and (ii) the Collateral Agent and each of
the Senior Creditors
-27-
receives
written notice (the “Termination Notice”) from the Company certifying
in a manner reasonably satisfactory to the Collateral Agent and the Senior
Creditors that (a) the Company is the sole Obligor with respect to any and
all
Obligations and that all other Obligors have been fully and properly released
from their respective Obligations (including, without limitation, any existing
Obligations in respect of fees, costs or other liabilities relative to the
Collateral Agent, the Senior Creditors or otherwise) and (b) no Default or
Event
of Default then exists, this Agreement shall be deemed terminated in its
entirety on the first business day which is 10 days after the date of the
Termination Notice.
Section
6.10. Severability. In
case any one or more of the provisions contained in this Agreement shall be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions of this Agreement shall not in any
way be affected or impaired thereby.
-28-
IN
WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed as of the date first above written.
|
United
of Omaha Life Insurance Company, as a 1995 Noteholder
|
|||
|
By:
|
/s/
Xxxxxx X. Xxxxxxxx
|
||
|
Name:
|
Xxxxxx
X. Xxxxxxxx
|
||
|
Title:
|
Vice
President
|
||
|
Companion
Life Insurance Company, as a 1995 Noteholder
|
|||
|
By:
|
/s/
Xxxxxx X. Xxxxxxxx
|
||
|
Name:
|
Xxxxxx
X. Xxxxxxxx
|
||
|
Title:
|
Authorized
Signer
|
||
|
Mutual
of Omaha Insurance Company, as a 1995 Noteholder
|
|||
|
By:
|
/s/
Xxxxxx X. Xxxxxxxx
|
||
|
Name:
|
Xxxxxx
X. Xxxxxxxx
|
||
|
Title:
|
Vice
President
|
||
-29-
|
Xxxxxxx
National Life Insurance Company, as a 2002 Noteholder and as a 2006
Noteholder
|
|||
|
By:
|
PPM
America, Inc.,
as
attorney in fact, on behalf of Xxxxxxx National Life Insurance
Company
|
||
|
By:
|
/s/
Xxxx Xxxxx
|
||
|
Name:
|
Xxxx
Xxxxx
|
||
|
Title:
|
Vice
President
|
||
|
Xxxxxxx
National Life Insurance Company of New York, as a 2002
Noteholder
|
|||
|
By:
|
PPM
America, Inc.,
as
attorney in fact, on behalf of Xxxxxxx National Life Insurance Company
of
New York
|
||
|
By:
|
/s/
Xxxx Xxxxx
|
||
|
Name:
|
Xxxx
Xxxxx
|
||
|
Title:
|
Vice
President
|
||
|
The
Prudential Assurance Company Limited, as a 2002
Noteholder
|
|||
|
By:
|
PPM
America, Inc.,
as
attorney in fact, on behalf of The Prudential Assurance Company
Limited
|
||
|
By:
|
/s/
Xxxx Xxxxx
|
||
|
Name:
|
Xxxx
Xxxxx
|
||
|
Title:
|
Vice
President
|
||
-30-
|
First
SunAmerica Life Insurance Company
AIG
SunAmerica Life Assurance Company F.K.A and D.B.A. Anchor National
Life
Insurance Company, as 2002 Noteholders
|
|||
|
By:
|
AIG
Global Investment Corp., investment adviser
|
||
|
By:
|
/s/
Xxxxxx X. Xxxxxx
|
||
|
Name:
|
Xxxxxx
X. Xxxxxx
|
||
|
Title:
|
Vice
President
|
||
-31-
|
Genworth
Life Insurance Company, as a 2002 Noteholder
|
|||
|
By:
|
/s/
Xxxxxx X. Xxxxxx
|
||
|
Name:
|
Xxxxxx
X. Xxxxxx
|
||
|
Title:
|
Investment
Officer
|
||
|
Genworth
Life and Annuity Insurance Company, as a 2002
Noteholder
|
|||
|
By:
|
/s/
Xxxxxx X. Xxxxxx
|
||
|
Name:
|
Xxxxxx
X. Xxxxxx
|
||
|
Title:
|
Investment
Officer
|
||
-32-
|
Teachers
Insurance and Annuity Association of America, as a 2002
Noteholder
|
|||
|
By:
|
/s/
Xxxxx Noelae
|
||
|
Name:
|
Xxxxx
Noelae
|
||
|
Title:
|
Director
|
||
|
TIAA-CREF
Life Insurance Company, as a 2002 Noteholder
|
|||
|
By:
|
Teachers
Insurance and Annuity Association of America, as Investment
Manager
|
||
|
By:
|
/s/
Xxxxx Noelae
|
||
|
Name:
|
Xxxxx
Noelae
|
||
|
Title:
|
Director
|
||
-33-
|
Nationwide
Life Insurance Company
Nationwide
Life and Annuity Insurance Company
Provident
Mutual Life Insurance Company, as 2002 Noteholders
|
|||
|
By:
|
/s/
Xxxxxx X. Xxxxx
|
||
|
Name:
|
Xxxxxx
X. Xxxxx
|
||
|
Title:
|
Authorized
Signatory
|
||
-34-
|
Pacific
Life Insurance Company, as a 2002 Noteholder
|
|||
|
By:
|
/s/
Xxxxxxx Xxxxxx
|
||
|
Name:
|
Xxxxxxx
Xxxxxx
|
||
|
Title:
|
Assistant
Vice President
|
||
|
By:
|
/s/
Xxxxx Xxxxxxxx
|
||
|
Name:
|
Xxxxx
Xxxxxxxx
|
||
|
Title:
|
Assistant
Secretary
|
||
-35-
|
Massachusetts
Mutual Life Insurance Company, as a 2002 Noteholder
|
|||
|
By:
|
Babson
Capital Management LLC as Investment Adviser
|
||
|
By:
|
/s/
Xxxxxxxxx X. Xxxxxxxx
|
||
|
Name:
|
Xxxxxxxxx
X. Xxxxxxxx
|
||
|
Title:
|
Managing
Director
|
||
|
C.M.
Life Insurance Company, as a 2002 Noteholder
|
|||
|
By:
|
Babson
Capital Management LLC as Investment Sub-Adviser
|
||
|
By:
|
/s/
Xxxxxxxxx X. Xxxxxxxx
|
||
|
Name:
|
Xxxxxxxxx
X. Xxxxxxxx
|
||
|
Title:
|
Managing
Director
|
||
|
MassMutual
Asia Limited, as a 2002 Noteholder
|
|||
|
By:
|
Babson
Capital Management LLC as Investment Adviser
|
||
|
By:
|
/s/
Xxxxxxxxx X. Xxxxxxxx
|
||
|
Name:
|
Xxxxxxxxx
X. Xxxxxxxx
|
||
|
Title:
|
Managing
Director
|
||
-36-
|
Principal
Life Insurance Company, as a 2002 Noteholder and a 2006
Noteholder
|
|||
|
By:
|
Principal
Global Investors, LLC, a Delaware limited liability company, its
authorized signatory
|
||
|
By:
|
/s/
Xxxx X. Xxxxx
|
||
|
Name:
|
Xxxx
X. Xxxxx
|
||
|
Title:
|
Counsel
|
||
|
By:
|
/s/
Xxxx X. Xxxxx
|
||
|
Name:
|
Xxxx
X. Xxxxx
|
||
|
Title:
|
Counsel
|
||
-37-
|
Symetra
Life Insurance Company, a Washington corporation, as a 2006
Noteholder
|
|||
|
By:
|
Principal
Global Investors, LLC, a Delaware limited liability company, its
authorized signatory
|
||
|
By:
|
/s/
Xxxxx Xxxxxxxxxx
|
||
|
Name:
|
Xxxxx
Xxxxxxxxxx
|
||
|
Title:
|
Counsel
|
||
|
By:
|
/s/
Xxxxx X. Xxxxxxx
|
||
|
Name:
|
Xxxxx
X. Xxxxxxx
|
||
|
Title:
|
Assistant
General Counsel
|
||
-38-
|
Gibraltar
Life Insurance Co., Ltd., as a 2006 Noteholder
|
|||
|
By:
|
Prudential
Investment Management (Japan), Inc., as Investment
Manager
|
||
|
By:
|
Prudential
Investment Management, Inc., as Sub-Adviser
|
||
|
By:
|
/s/
Xxxxx X. Xxxxxxx
|
||
|
Name:
|
Xxxxx
X. Xxxxxxx
|
||
|
Title:
|
Vice
President
|
||
-39-
|
The
Prudential Insurance Company of America, as a 2006
Noteholder
|
|||
|
By:
|
/s/
Xxxxx X. Xxxxxxx
|
||
|
Name:
|
Xxxxx
X. Xxxxxxx
|
||
|
Title:
|
Vice
President
|
||
-40-
|
MTL
Insurance Company, as a 2006 Noteholder
|
|||
|
By:
|
Prudential
Private Placement Investors, L.P. (as Investment
Advisor)
|
||
|
By:
|
Prudential
Private Placement Investors, L.P. (as its General
Partner)
|
||
|
By:
|
/s/
Xxxxx X. Xxxxxxx
|
||
|
Name:
|
Xxxxx
X. Xxxxxxx
|
||
|
Title:
|
Vice
President
|
||
-41-
|
Security
Benefit Life Insurance Company, Inc., as a 2006
Noteholder
|
|||
|
By:
|
Prudential
Private Placement Investors, L.P. (as Investment
Advisor)
|
||
|
By:
|
Prudential
Private Placement Investors, L.P. (as its General
Partner)
|
||
|
By:
|
/s/
Xxxxx X. Xxxxxxx
|
||
|
Name:
|
Xxxxx
X. Xxxxxxx
|
||
|
Title:
|
Vice
President
|
||
-42-
|
The
Variable Annuity Life Insurance Company
AIG
Annuity Insurance Company, as 2006 Noteholders
|
|||
|
By:
|
AIG
Global Investment Corp., investment adviser
|
||
|
By:
|
/s/
Xxxxxx X. Xxxxxx
|
||
|
Name:
|
Xxxxxx
X. Xxxxxx
|
||
|
Title:
|
Vice
President
|
||
-43-
|
The
Guardian Life Insurance Company of America, as a 2006
Noteholder
|
|||
|
By:
|
/s/
Xxxxx Xxxxxxxxxxx
|
||
|
Name:
|
Xxxxx
Xxxxxxxxxxx
|
||
|
Title:
|
Private
Placements Manager
|
||
-44-
|
Berkshire
Life Insurance Company of America, as a 2006 Noteholder
|
|||
|
By:
|
/s/
Xxxxx Xxxxxxxxxxx
|
||
|
Name:
|
Xxxxx
Xxxxxxxxxxx
|
||
|
Title:
|
Private
Placement Manager
|
||
-45-
|
Transamerica
Occidental Life Insurance Company, as a 2006 Noteholder
|
|||
|
By:
|
s/
Xxxxx X. Xxxxxxxx
|
||
|
Name:
|
Xxxxx
X. Xxxxxxxx
|
||
|
Title:
|
Vice
President
|
||
-46-
|
AmerUs
Life Insurance Company, as a 2006 Noteholder
|
|||
|
By:
|
AmerUs
Capital Management Group, Inc., its authorized
attorney-in-fact
|
||
|
By:
|
/s/
Xxxxx X. Xxxx
|
||
|
Name:
|
Xxxxx
X. Xxxx
|
||
|
Title:
|
VP-Private
Placement
|
||
-47-
|
American
Investors Life Insurance Company, as a 2006 Noteholder
|
|||
|
By:
|
AmerUs
Capital Management Group, Inc., its authorized
attorney-in-fact
|
||
|
By:
|
/s/
Xxxxx X. Xxxx
|
||
|
Name:
|
Xxxxx
X. Xxxx
|
||
|
Title:
|
VP-Private
Placement
|
||
-48-
|
Indianapolis
Life Insurance Company, as a 2006 Noteholder
|
|||
|
By:
|
AmerUs
Capital Management Group, Inc., its authorized
attorney-in-fact
|
||
|
By:
|
/s/
Xxxxx X. Xxxx
|
||
|
Name:
|
Xxxxx
X. Xxxx
|
||
|
Title:
|
VP-Private
Placement
|
||
-49-
|
Genworth
Life and Annuity Insurance Company, as a 2006
Noteholder
|
|||
|
By:
|
/s/
Xxxxxx X. Xxxxxx
|
||
|
Name:
|
Xxxxxx
X. Xxxxxx
|
||
|
Title:
|
Investment
Officer
|
||
-50-
|
Life
Insurance Company of the Southwest, as a 2006
Noteholder
|
|||
|
By:
|
/s/
R. Xxxxx Xxxxxxx
|
||
|
Name:
|
R.
Xxxxx Xxxxxxx
|
||
|
Title:
|
Vice
President Sentinel Asset Management
|
||
-51-
|
Ameritas
Life Insurance Corp. - Closed Block, as a 2006
Noteholder
|
|||
|
By:
|
Ameritas
Investment Advisors Inc., as Agent
|
||
|
By:
|
/s/
Xxxxxx X. Xxxxx
|
||
|
Name:
|
Xxxxxx
X. Xxxxx
|
||
|
Title:
|
Vice
President - Fixed Income Securities
|
||
-52-
|
Ameritas
Life Insurance Corp., as a 2006 Noteholder
|
|||
|
By:
|
Ameritas
Investment Advisors Inc., as Agent
|
||
|
By:
|
/s/
Xxxxxx X. Xxxxx
|
||
|
Name:
|
Xxxxxx
X. Xxxxx
|
||
|
Title:
|
Vice
President - Fixed Income Securities
|
||
-53-
|
Acacia
Life Insurance Company, as a 2006 Noteholder
|
|||
|
By:
|
Ameritas
Investment Advisors Inc. as Agent
|
||
|
By:
|
/s/
Xxxxxx X. Xxxxx
|
||
|
Name:
|
Xxxxxx
X. Xxxxx
|
||
|
Title:
|
Vice
President - Fixed Income Securities
|
||
-54-
|
Equitrust
Life Insurance Company, as a 2006 Noteholder
|
|||
|
By:
|
/s/
Xxxxxx X. Xxxx
|
||
|
Name:
|
Xxxxxx
X. Xxxx
|
||
|
Title:
|
Senior
Portfolio Manager
|
||
-55-
|
Assurity
Life Insurance Company, as a 2006 Noteholder
|
|||
|
By:
|
/s/
Xxxxxx Xxxxx
|
||
|
Name:
|
Xxxxxx
Xxxxx
|
||
|
Title:
|
Senior
Director - Investments
|
||
-56-
|
Security
Financial Life Insurance Co., as a 2006 Noteholder
|
|||
|
By:
|
/s/
Xxxxxx Xxxxx
|
||
|
Name:
|
Xxxxxx
Xxxxx
|
||
|
Title:
|
Senior
Director - Investments
|
||
-57-
|
Metropolitan
Life Insurance Company, as a 2007 Noteholder
|
|||
|
By:
|
/s/
Xxxxxx X. Xxxxxxx
|
||
|
Name:
|
Xxxxxx
X. Xxxxxxx
|
||
|
Title:
|
Director
|
||
|
Metropolitan
Tower Life Insurance Company, as a 2007 Noteholder
|
|||
|
By:
|
/s/
Xxxxxx X. Xxxxxxx
|
||
|
Name:
|
Xxxxxx
X. Xxxxxxx
|
||
|
Title:
|
Director
|
||
-58-
|
U.S.
BANK NATIONAL ASSOCIATION
|
|||
|
By:
|
/s/
Xxxxx X. Xxxxxxxx
|
||
|
Name:
|
Xxxxx
X. Xxxxxxxx
|
||
|
Title:
|
Vice
President
|
||
-59-
|
U.S.
BANK NATIONAL ASSOCIATION, as Collateral Agent
|
|||
|
By:
|
/s/
Xxxxx X. Xxxxxxxx
|
||
|
Name:
|
Xxxxx
X. Xxxxxxxx
|
||
|
Title:
|
Vice
President
|
||
-60-
|
WACHOVIA
BANK, NATIONAL ASSOCIATION
|
|||
|
By:
|
/s/
Xxxx X. Xxxxxx
|
||
|
Name:
|
Xxxx
X. Xxxxxx
|
||
|
Title:
|
Vice
President
|
||
-61-
|
LASALLE
BANK NATIONAL ASSOCIATION
|
|||
|
By:
|
/s/
Xxxxxx X. Xxxxxx
|
||
|
Name:
|
Xxxxxx
X. Xxxxxx
|
||
|
Title:
|
Senior
Vice President
|
||
-62-
|
COMERICA
BANK
|
|||
|
By:
|
/s/
Xxxxxxx X’Xxxxxx
|
||
|
Name:
|
Xxxxxxx
X’Xxxxxx
|
||
|
Title:
|
Vice
President
|
||
-63-
|
XXXXX
FARGO BANK, NATIONAL ASSOCIATION
|
|||
|
By:
|
/s/
Xxxx Xxxxxx
|
||
|
Name:
|
Xxxx
Xxxxxx
|
||
|
Title:
|
Vice
President
|
||
-00-
|
XXXXXXXXX
XXXX
|
|||
|
By:
|
/s/
Xxxxxxx X. Kruffman
|
||
|
Name:
|
Xxxxxxx
X. Kruffman
|
||
|
Title:
|
Vice
President
|
||
-65-
|
JPMORGAN
CHASE BANK, N.A.
|
|||
|
By:
|
/s/
Xxxxxxxxx Xxxxxxx
|
||
|
Name:
|
Xxxxxxxxx
Xxxxxxx
|
||
|
Title:
|
Vice
President
|
||
-66-
Acknowledgment,
Consent and Agreement
Each
of
Cabela’s Incorporated (the “Company”) and the Subsidiaries of the
Company consisting of (i) Cabela’s Catalog, Inc., (ii) Cabela’s Retail, Inc.,
(iii) Cabela’s Outdoor Adventures, Inc., (iv) Xxxxxxx.xxx, Inc., (v) Cabela’s
Wholesale, Inc., (vi) Cabela’s Ventures, Inc., (vii) Wild Wings, LLC, (viii)
Cabela’s Lodging, LLC, (ix) Xxx Xxxx Supply Company, Inc., (x) Cabela’s
Marketing and Brand Management, Inc., (xi) Cabela’s Retail LA, LLC, (xii)
Cabela’s Trophy Properties, LLC, (xiii) Original Creations, LLC, (xiv) Cabela’s
Retail TX, L.P., (xv) Cabela’s Retail GP, LLC, (xvi) Legacy Trading Company,
(xvii) CRLP, LLC and (xviii) Cabela’s Retail MO, LLC and
(xix) Cabela’s Retail IL, Inc. (such subsidiaries being “Co-Obligor
Subsidiaries” and together with the Company, the “Obligors”)
hereby: (a) acknowledges receipt of the foregoing Fourth Amended and Restated
Intercreditor Agreement, (b) agrees to be bound by each of the obligations
applicable to it set forth in the Fourth Amended and Restated Intercreditor
Agreement (including but not limited to the obligations under Section 6.8),
(c) believes it is in its best interests to have the Senior Creditors (as
defined in the Fourth Amended and Restated Intercreditor Agreement) enter into
the Fourth Amended and Restated Intercreditor Agreement and to cooperate among
themselves regarding their respective financial relationships with the Obligors,
(d) consents to the free exchange of information among the Senior Creditors
regarding their respective financial relationships with the Obligors, including
any and all information obtained from any of the Obligors, (e) waives any claim
of confidentiality with respect to the exchange of information among the Senior
Creditors, and (f) acknowledges and agrees that pursuant to the Fourth
Amended and Restated Intercreditor Agreement (i) the Senior Creditors have
agreed as set forth therein to share amounts recovered under any of the Secured
Documents and (ii) the Obligations (including, without limitation, any amounts
paid by or recovered from any Obligor in satisfaction thereof) of any Senior
Creditor shall be deemed to be outstanding, except to the extent such Senior
Creditor has received a distribution of amounts from the Collateral Agent for
application on the Obligations pursuant to Section 3.2 of the Fourth Amended
and
Restated Intercreditor Agreement.
|
Cabela’s
Incorporated
Cabela’s
Catalog, Inc.
Cabela’s
Retail, Inc.
Cabela’s
Outdoor Adventures, Inc.
Xxxxxxx.xxx,
Inc.
Cabela’s
Wholesale, Inc.
Cabela’s
Ventures, Inc.
Wild
Wings, LLC
Cabela’s
Lodging, LLC
Xxx
Xxxx Supply Company, Inc.
Cabela’s
Marketing and Brand Management, Inc.
Cabela’s
Retail LA, LLC
Original
Creations, LLC
Cabela’s
Retail GP, LLC
Legacy
Trading Company
CRLP,
LLC
Cabela’s
Retail MO, LLC
Cabela’s
Retail IL, Inc.
|
|||
|
By:
|
/s/
Xxxxxx Xxxxxx
|
||
|
Name:
|
Xxxxxx
Xxxxxx
|
||
|
Title:
|
President,
CEO, or Manager
|
||
|
Cabela’s
Trophy Properties, LLC
|
|||
|
By:
|
/s/
Xxxxx Xxxxxxxxxx
|
||
|
Name:
|
Xxxxx
Xxxxxxxxxx
|
||
|
Title:
|
Vice
President and Manager
|
||
|
Cabela’s
Retail TX, L.P.
|
|||
|
By:
|
Cabela’s
Retail GP, LLC
|
||
|
Its:
|
General
Partner
|
||
|
By:
|
/s/
Xxxxxx Xxxxxx
|
||
|
Name:
|
Xxxxxx
Xxxxxx
|
||
|
Title:
|
President
|
||
-2-
