Third Amendment Agreement to Note Purchase Agreements dated as of September 5, 2002, among Cabelas Incorporated and various purchasers party thereto

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Exhibit 4.5

 

Cabela’s Incorporated

Cabela’s Catalog, Inc.

Cabela’s Retail, Inc.

Cabela’s Outdoor Adventures, Inc.

Cabelas.com, Inc.

Cabela’s Wholesale, Inc.

Cabela’s Ventures, Inc.

Wild Wings, LLC

Cabela’s Lodging, LLC

Van Dyke Supply Company, Inc.

Cabela’s Marketing and Brand Management, Inc.

Cabela’s Retail LA, LLC

Cabela’s Trophy Properties, LLC

Original Creations, LLC

Cabela’s Retail TX, L.P.

Cabela’s Retail GP, LLC

Legacy Trading Company

CRLP, LLC

Cabela’s Retail MO, LLC

Cabela’s Retail IL, Inc.

Third Amendment Agreement

 

Dated as of June 15, 2007

Re:

Note Purchase Agreements dated as of September 5, 2002

 

                                                                         

 

Re:

Note Purchase Agreements dated as of September 5, 2002

and

 

Dated as of

June 15, 2007

To each of the Holders of Notes

  Named on Schedule I hereto

 

Ladies and Gentlemen:

 

Reference is made to the separate Note Purchase Agreements, each dated as of September 5, 2002 as amended by the First Amendment Agreement dated as of October 31, 2005 and the Second Amendment Agreement dated as of February 27, 2006 (and as further amended from time to time by joinder agreements, the “Existing Note Agreements” and, as amended hereby, the “Note Agreements”), between Cabela’s Incorporated (the “Company”) and the Subsidiaries of the Company consisting of (i) Cabela’s Catalog, Inc., a Nebraska corporation (“Catalog”), (ii) Cabela’s Retail, Inc., a Nebraska corporation (“Retail”), (iii) Cabela’s Outdoor Adventures, Inc., a Nebraska corporation (“Adventures”), (iv) Cabelas.com, Inc., a Nebraska corporation (“Cabelas.com”), (v) Cabela’s Wholesale, Inc., a Nebraska corporation (“Wholesale”), (vi) Cabela’s Ventures, Inc., a Nebraska corporation (“Ventures”), (vii) Wild Wings, LLC, a Minnesota limited liability company (“Wild Wings”), (viii) Cabela’s Lodging, LLC, a Nebraska limited liability company (“Lodging”), (ix) Van Dyke Supply Company, Inc., a South Dakota corporation (“Van Dyke”), (x) Cabela’s Marketing and Brand Management, Inc., a Nebraska corporation (“Marketing”), (xi) Cabela’s Retail LA, LLC, a Nebraska limited liability company (“Retail LA”), (xii) Cabela’s Trophy Properties, LLC, a Nebraska limited liability company (“Trophy”), (xiii) Original Creations, LLC, a Minnesota limited liability company (“Creations”), (xiv) Cabela’s Retail TX, L.P., a Nebraska limited partnership (“Retail TX”), (xv) Cabela’s Retail GP, LLC, a Nebraska limited liability company (“Retail GP”), (xvi) Legacy Trading Company, a South Dakota corporation (“Legacy”), (xvii) CRLP, LLC, a Nebraska limited liability company (“CRLP”), (xviii) Cabela’s Retail MO, LLC, a Nebraska limited liability company (“Retail MO”), and (xix) Cabela’s Retail IL, Inc., an Illinois corporation (“Retail IL” and, together with the Company, Catalog, Retail, Adventures, Cabelas.com, Wholesale, Ventures, Wild Wings, Lodging, Van Dyke, Marketing, Retail LA, Trophy, Creations, Retail TX, Retail GP, Legacy, CRLP and Retail MO are, individually, referred to as an “Obligor” and, collectively, as the “Obligors”), and each of the Purchasers named in Schedule A thereto, respectively, under and pursuant to which $125,000,000 aggregate principal amount of 4.95% Senior Notes, Series 2002-A, due September 5, 2009 (the “Notes”) of the Obligors were issued.

 

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Obligors request the amendment of a certain provision of the Existing Note Agreements as hereinafter provided.

 

Upon your acceptance hereof in the manner hereinafter provided and upon satisfaction of all conditions to the effectiveness hereof and receipt by the Obligors of similar acceptances from the Holders of the Notes, this Third Amendment Agreement shall constitute a contract between us amending the Existing Note Agreements, as of the Third Amendment Closing Date (hereinafter defined), but only in the respects hereinafter set forth:

 

 

Section 1.1    The “and” at the end of Section 7.1(f) shall be deleted, the “.” at the end of Section 7.1(g) shall be replaced with “; and” and the following shall be added as a new section 7.1(h):

 

“(h)  Supplements, Restatements and Amendments– promptly and in any event within five (5) Business Days after the execution and delivery of any amendment, restatement or supplement of the 1995 Note Agreements, the 2006 Note Agreements or the Credit Agreement, a copy thereof.”

 

    Section 1.2.    The following definitions in Schedule B of the Existing Note Agreements are either added or otherwise restated:

 

“Obligors” is defined in the first paragraph of the Third Amendment Agreement and shall include any other party that is a party to a joinder agreement executed pursuant to Section 9.8(d) of this Agreement.

 

“Third Amendment Agreement” means this Third Amendment Agreement dated as of June 15, 2007.

 

“2006 Note Agreements” means those certain separate Note Purchase Agreements dated as of February 27, 2006 between the 2006 Noteholders and the Obligors, as amended, restated and supplemented from time to time.

 

“2006 Noteholders” means the parties set forth in Schedule A to the 2006 Note Agreements and the corresponding schedule of any supplement thereto, and any Person who succeeds to their respective benefits in accordance with the 2006 Note Agreements.

 

 

The Obligors hereby represent and warrant that as of the date hereof and as of the date of execution and delivery of this Third Amendment Agreement, there are no Defaults or Events of Default under the Existing Note Agreements before and after giving effect to this Third Amendment Agreement and the representations and warranties set forth in Schedule II hereto are true and correct before and after giving effect to this Third Amendment Agreement.

 

 

This Third Amendment Agreement shall not become effective until, and shall become effective on, the Business Day when each of the following conditions shall have been satisfied (the “Third Amendment Closing Date”):

 

    Section 3.1.    Consent.  The Obligors shall have obtained your written consent as evidenced by your signature at the foot of this Third Amendment Agreement.

 

    Section 3.2.    Payment of Fees and Expenses.  The reasonable fees and disbursements of Chapman and Cutler LLP, your special counsel, relating to the preparation, execution and delivery of this Third Amendment Agreement and related matters shall have been paid by the Company to the extent reflected in a statement of such counsel rendered to the Company.

 

Section 3.3.    First Supplement to 2006 Note Agreements. Each of the parties thereto shall have executed and delivered the First Supplement to the 2006 Note Agreements.

 

    Section 3.4.    Revised Intercreditor Agreement.  Each of the parties thereto shall have executed and delivered the Fourth Amended and Restated Intercreditor Agreement dated as of June 15, 2007 (the “Revised Intercreditor Agreement”) in the form attached hereto as Exhibit A, which Revised Intercreditor Agreement will be satisfactory to you in scope and form.

    

    Section 3.5.    Representations and Warranties.  The representations and warranties of each of the Obligors in this Third Amendment Agreement shall be correct when made and at the time of the Closing.

 

    Section 3.6.    Proceedings and Documents.  All corporate or limited liability company or limited partnership and other proceedings in connection with the transactions contemplated by this Third Amendment Agreement and all documents and instruments incident to such transactions shall be satisfactory to you and your special counsel, and you and your special counsel shall have received all such counterpart originals or certified or other copies of such documents as you or they may reasonably request.

 

 

    Section 4.1.    Except as amended herein, all terms and provisions of the Existing Note Agreements and the Notes and related agreements and instruments are hereby ratified, confirmed and approved in all respects.

 

    Section 4.2.    Any and all notices, requests, certificates and other instruments, including the Notes, may refer to the Note Agreements without making specific reference to this Third Amendment Agreement, but nevertheless all such references shall be deemed to include this Third Amendment Agreement unless the context shall otherwise require.

 

    Section 4.3.    This Third Amendment Agreement and all covenants herein contained shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereunder.  All covenants made by the Obligors herein shall survive the closing and the delivery of this Third Amendment Agreement.

 

    Section 4.4.    This Third Amendment Agreement shall be governed by and construed in accordance with Nebraska law.

 

    Section 4.5.    The capitalized terms used in this Third Amendment Agreement shall have the respective meanings specified in the Note Agreements unless otherwise herein defined, or the context hereof shall otherwise require.

 

 

 

 

The execution hereof by the Holders shall constitute a contract among the Obligors and the Holders for the uses and purposes hereinabove set forth.  This Third Amendment Agreement may be executed in any number of counterparts, each executed counterpart constituting an original but all together only one agreement.

	Cabela’s Incorporated Cabela’s Catalog, Inc. Cabela’s Retail, Inc. Cabela’s Outdoor Adventures, Inc. Cabelas.com, Inc. Cabela’s Wholesale, Inc. Cabela’s Ventures, Inc. Wild Wings, LLC Cabela’s Lodging, LLC Cabela’s Marketing and Brand Management, Inc. Cabela’s Retail LA, LLC Original Creations, LLC Cabela’s Trophy Properties, LLC Cabela’s Retail GP, LLC Legacy Trading Company CRLP, LLC Cabela’s Retail MO, LLC Cabela’s Retail IL, Inc.
	By:	/s/ Ralph W. Castner
		Name:	Ralph W. Castner
		Title:	Vice President, CFO, Secretary or Treasurer
	Van Dyke Supply Company, Inc.
	By:	/s/ Gregg Severinson
		Name:	Gregg Severinson
		Title:	Vice President
	Cabela’s Retail TX, L.P.
	By:	Cabela’s Retail GP, LLC
	Its:	General Partner
	By:	/s/ Ralph W. Castner
		Name:	Ralph W. Castner
		Title:	Secretary and Treasurer

 

This foregoing Third Amendment Agreement is hereby accepted and agreed to as of the date aforesaid.

 

	Jackson National Life Insurance Company
	By:	PPM America, Inc., as attorney in fact, on behalf of Jackson National Life Insurance Company
	By:	/s/ Mark Staub
		Name:	Mark Staub
		Title:	Vice President
	Jackson National Life Insurance Company of New York
	By:	PPM America, Inc., as attorney in fact, on behalf of Jackson National Life Insurance Company of New York
	By:	/s/ Mark Staub
		Name:	Mark Staub
		Title:	Vice President
	The Prudential Assurance Company Limited
	By:	PPM America, Inc., as attorney in fact, on behalf of The Prudential Assurance Company Limited
	By:	/s/ Mark Staub
		Name:	Mark Staub
		Title:	Vice President

	First SunAmerica Life Insurance Company
	AIG SunAmerica Life Assurance Company F.K.A and D.B.A. Anchor National Life Insurance Company
	By:	AIG Global Investment Corp., investment adviser
	By:	/s/ Gerald F. Herman
		Name:	Gerald F. Herman
		Title:	Vice President

	Genworth Life Insurance Company
	By:	/s/ Morian C. Mooers
		Name:	Morian C. Mooers
		Title:	Investment Officer
	Genworth Life and Annuity Insurance Company
	By:	/s/ Morian C. Mooers
		Name:	Morian C. Mooers
		Title:	Investment Officer

	Teachers Insurance and Annuity Association of America
	By:	/s/ Brian Noelae
		Name:	Brian Noelae
		Title:	Director
	TIAA-CREF Life Insurance Company
	By:	Teachers Insurance and Annuity Association of America, as Investment Manager
	By:	/s/ Brian Noelae
		Name:	Brian Noelae
		Title:	Director

	Nationwide Life Insurance Company
	Nationwide Life and Annuity Insurance Company
	Provident Mutual Life Insurance Company
	By:	/s/ Joseph P. Young
		Name:	Joseph P. Young
		Title:	Authorized Signatory

	Pacific Life Insurance Company
	By:	/s/ Matthew Levene
		Name:	Matthew Levene
		Title:	Assistant Vice President
	By:	/s/ Cathy Schwartz
		Name:	Cathy Schwartz
		Title:	Assistant Secretary
	Massachusetts Mutual Life Insurance Company
	By:	Babson Capital Management LLC as Investment Adviser
	By:	/s/ Elisabeth A. Perenick
		Name:	Elisabeth A. Perenick
		Title:	Managing Director
	C.M. Life Insurance Company
	By:	Babson Capital Management LLC as Investment Sub-Adviser
	By:	/s/ Elisabeth A. Perenick
		Name:	Elisabeth A. Perenick
		Title:	Managing Director

	MassMutual Asia Limited
	By:	Babson Capital Management LLC as Investment Adviser
	By:	/s/ Elisabeth A. Perenick
		Name:	Elisabeth A. Perenick
		Title:	Managing Director

	Principal Life Insurance Company
	By:	Principal Global Investors, LLC, a Delaware limited liability company, its authorized signatory
	By:	/s/ Colin Pennycooke
		Name:	Colin Pennycooke
		Title:	Counsel
	By:	/s/ James C. Fifield
		Name:	James C. Fifield
		Title:	Assistant General Counsel

 

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