Fourth Amended and Restated Intercreditor Agreement dated as of June 15, 2007, among Cabelas Incorporated, various noteholders party thereto, various lenders party thereto, and U.S. Bank National Association, as Collateral Agent

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Exhibit 10.1

 

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

 

 

 

 

 

 

	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 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) Jackson National Life Insurance Company, Jackson 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, Jackson 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”), Wells Fargo Bank, National Association (“Wells Fargo”), Sovereign Bank (“Sovereign”) and JPMorgan Chase Bank, N.A. (“JPMorgan”), and, together with LaSalle, Wachovia, U.S. Bank, Comerica, Wells 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) Cabelas.com, Inc., (vi) Cabela’s Wholesale, Inc., (vii) Cabela’s Ventures, Inc. and (viii) Van Dyke 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) Van Dyke 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) Cabelas.com, Inc., (ix) Wild Wings, LLC (“Wild Wings”), (x) Cabela’s Lodging, LLC (“Lodging”), (xi) Herter’s, LLC (“Herter’s”), (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 Herter’s 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 Herter’s, 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, Herter’s and the 1995 Noteholders (“Amendment No. 4”),  (v) Amendment No. 5 dated as of May 5, 2004 between the Original Obligors Wild Wings,

 

Lodging, Herter’s 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 No. 1, Amendment No. 2, Amendment No. 3, Amendment No. 4, Amendment No. 5, Amendment No. 6, Amendment No. 7, 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, Herter’s, (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

 

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.

 

 

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.

 

 

“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 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.

 

 

“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.

 

 

 

Transamerica Occidental Life Insurance Company, AmerUs Life Insurance Company, American Investors Life Insurance Company, Indianapolis Life Insurance Company, Genworth Life and Annuity Insurance Company, Jackson 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 Jackson National Life Insurance Company, Jackson 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.

 

 

 

    (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:

 

 

 

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.

 

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.

 

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.

 

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

 

 

 

    

        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.

 

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;

 

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.

 

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

 

 

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 6.1.    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

 

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 Omaha Plaza Omaha, Nebraska 68175 Attention:  Kent Knudsen Telefacsimile:  (402) 351-291
	If to the 2002 Noteholders:	Jackson National Life Insurance Company Jackson National Life Insurance Company   of New York The Prudential Assurance Company Limited c/o PPM America Inc. 225 West Wacker Drive, Suite 1200 Chicago, Illinois  60606-1228 Attention:  Michael Harrington Telefacsimile:   ###-###-####   AIG SunAmerica Life Assurance Company First SunAmerica Life Insurance Company c/o AIG Global Investment Corporation 2929 Allen Parkway, Suite A36-01 Houston, Texas 77019-2155 Attention:  Legal Department -Investment Management Telefacsimile:   ###-###-####   Genworth Life Insurance Company Genworth Life and Annuity Insurance Company  c/o GE Financial Assurance Two Union Square, 601 Union Street Seattle, Washington  98101 Attention:  Investment Department, Private Placements Telefacsimile:   ###-###-####

 

Teachers Insurance and Annuity Association of America 730 Third Avenue New York, New York  10017-3206 Attention:  Securities Accounting Division Telefacsimile:   ###-###-####   TIAA-CREF Life Insurance Company 730 Third Avenue New York, New York 10017-3206 Attention:  Securities Accounting Division Telefacsimile:   ###-###-####   Nationwide Life Insurance Company Nationwide Life and Annuity Insurance Company Provident Mutual Life Insurance Company One Nationwide Plaza (1-33-07) Columbus, Ohio   ###-###-#### Attention:  Corporate Fixed -Income Securities Telefacsimile:   Pacific Life Insurance Company 700 Newport Center Drive Newport Beach, California ###-###-#### Attention:  Securities Administration – Cash Team Telefacsimile:   ###-###-####   Massachusetts Mutual Life Insurance Company C.M. Life Insurance Company MassMutual Asia Limited c/o Babson Capital Management LLC 1500 Main Street Springfield, Massachusetts 01115 Attention:  Securities Investment Division Telefacsimile:

		Principal Life Insurance Company c/o Principal Capital Income Investors, LLC 801 Grand Avenue Des Moines, Iowa  50392-0800 Attention:  Investment Department - Securities Telefacsimile:   ###-###-####
	If to the 2006 Noteholders:	Principal Life Insurance Company c/o Principal Global Investors, LLC 711 High Street Des Moines, Iowa  50392-0800   Symetra Life Insurance Company c/o Principal Global Investors, LLC 711 High Street Des Moines, Iowa  50392-0800 Attention:  Fixed Income Private Placement   Gibraltar Life Insurance Co., Ltd. Prudential Private Placement Investors, L.P. c/o Prudential Capital Group Two Prudential Plaza 180 North Stetson Street, Suite 5600 Chicago, Illinois  60601-6716 Attention:  Managing Director   The Prudential Insurance Company of America c/o Prudential Capital Group Two Prudential Plaza 180 North Stetson Street, Suite 5600 Chicago, Illinois  60601-6716 Attention:  Managing Director   MTL Insurance Company Prudential Private Placement Investors, L.P. c/o Prudential Capital Group Two Prudential Plaza 180 North Stetson Street, Suite 5600 Chicago, Illinois  60601-6716 Attention:  Managing Director

Security Benefit Life Insurance Company, Inc. Prudential Private Placement Investors, L.P. c/o Prudential Capital Group Two Prudential Plaza 180 North Stetson Street, Suite 5600 Chicago, Illinois  60601-6716 Attention:  Managing Director   The Variable Annuity Life Insurance Company c/o AIG Global Investment Group 2929 Allen Parkway, Suite A36-01 Houston, Texas  77019-2155 Attn:  Legal Department - Investment Management Facsimile Number:   ###-###-####   AIG Annuity Insurance Company c/o AIG Global Investment Group 2929 Allen Parkway, A36-01 Houston, Texas  77019-2155 Attention:  Legal Department-Investment Management Fax Number:   ###-###-####   The Guardian Life Insurance Company of America 7 Hanover Square New York, NY  10004-2616 Attention:  Barry Scheinholtz Investment Department 20-D Fax Number:   ###-###-####/2656   Berkshire Life Insurance Company of America c/o The Guardian Life Insurance Company of America 7 Hanover Square New York, NY  10004-2616 Attention:  Barry Scheinholtz Investment Department 20-D Telefacsimile:   ###-###-####/2656

Transamerica Occidental Life Insurance Company c/o AEGON USA Investment Management, LLC 4333 Edgewood Road N.E. Cedar Rapids, Iowa   ###-###-#### Attention:  Director of Private Placements Phone:   ###-###-#### Fax:   ###-###-####   AmerUs Life Insurance Company c/o AmerUs Capital Management 699 Walnut Street, Suite 1700 Des Moines, Iowa  50309 Attention:  Steve Sweeney Telephone:   ###-###-#### Facsimile:   ###-###-####   American Investors Life Insurance Company c/o AmerUs Capital Management 699 Walnut Street, Suite 1700 Des Moines, Iowa  50309 Attention:  Steve Sweeney Telephone:   ###-###-#### Facsimile:   ###-###-####   Indianapolis Life Insurance Company c/o AmerUs Capital Management 699 Walnut Street, Suite 1700 Des Moines, Iowa  50309 Attention:  Steve Sweeney Telephone:   ###-###-#### Facsimile:   ###-###-####   Genworth Life and Annuity Insurance Company c/o Genworth Financial Account:  Genworth Life and Annuity Insurance Company 601 Union Street, Suite 2200 Seattle, Washington  98101 Attention:  Private Placements Phone Number:   ###-###-#### Fax Number:   ###-###-####

Jackson National Life Insurance Company 5901 Executive Drive Lansing, Michigan  48911   Life Insurance Company of the Southwest c/o National Life Insurance Company One National Life Drive Montpelier, Vermont  05604 Attention:  Private Placements Fax Number:   ###-###-#### E-mail:   ***@***   Ameritas Life Insurance Corp. - Closed Block 5900 “O” Street Lincoln, Nebraska   ###-###-####   Ameritas Life Insurance Corp. 5900 “O” Street Lincoln, Nebraska   ###-###-####   Acacia Life Insurance Company 5900 “O” Street Lincoln, Nebraska   ###-###-####   Equitrust Life Insurance Company 5400 University Avenue West Des Moines, Iowa  50266-5997 Attention:  Securities Department   Assurity Life Insurance Company Attention: Investment Division 4000 Pine Lake Road Lincoln, Nebraska  68516   Security Financial Life Insurance Co. 4000 Pine Lake Road P. O. Box 82248 Lincoln, Nebraska   ###-###-####

	If to the 2007 Noteholders:	Metropolitan Life Insurance Company 1 MetLife Plaza 27-01 Queens Plaza North Long Island City, New York 11101   Metropolitan Tower Life Insurance Company 1 MetLife Plaza 27-01 Queens Plaza North Long Island City, New York 11101
	If to the Banks:	U.S. Bank National Association 233 South 13th Street Lincoln, Nebraska 68508 Attention:  James M. Williams with a copy to: Dorsey & Whitney, LLP 50 South Sixth Street, Suite 1500 Minneapolis, MN 55402 Attention:  Mike Pignato   Wachovia Securities One South Broad Street MC:  PA4843 Philadelphia, PA  19107 Attention:  Mark Supple   LaSalle Bank National Association Republic Plaza 370 17th Street, Suite 3590 Denver, CO 80202 Attention:  Darren L. Lemkau   Comerica Bank Comerica Bank at Detroit Center 500 Woodward Avenue Detroit, Michigan  48226 Attention:  Timothy H. O’Rourke

		Wells Fargo Bank, National Association 1248 O Street Lincoln, Nebraska 68508 Attention:  Bill Weber   Sovereign Bank 601 Penn St. 10-6438-CM9 Reading, PA 19601 Attention:  Kevin Cornwall   JPMorgan Chase Bank, N.A. 227 W. Monroe Street, Fl. 28 Chicago, IL 60606 Attention:  John Runger
	If to the Collateral Agent:	U.S. Bank National Association 233 South 13th Street Lincoln, Nebraska 68508 Attention:  James M. Williams, Vice President
	If to the Company:	Cabela’s Incorporated One Cabela Drive Sidney, Nebraska  69160 Attention:  Ralph Castner, CFO & Vice President Telefacsimile:   ###-###-####   with a copy to:   Koley Jessen, P.C. 1125 South 103rd Street, Suite 800 Omaha, Nebraska 68124 Attention:  Michael M. Hupp Telefacsimile: (402) 390-9005   Cabela’s Incorporated One Cable Drive Sidney, Nebraska 69160 Attention: Legal Department Telefacsimile: (308) 254-8060

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

 

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.

 

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/ Curtis R. Caldwell
		Name:	Curtis R. Caldwell
		Title:	Vice President

	Companion Life Insurance Company, as a 1995 Noteholder
	By:	/s/ Curtis R. Caldwell
		Name:	Curtis R. Caldwell
		Title:	Authorized Signer

 

	Mutual of Omaha Insurance Company, as a 1995 Noteholder
	By:	/s/ Curtis R. Caldwell
		Name:	Curtis R. Caldwell
		Title:	Vice President

 

	Jackson National Life Insurance Company, as a 2002 Noteholder and as a 2006 Noteholder
	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, as a 2002 Noteholder
	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, as a 2002 Noteholder
	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, as 2002 Noteholders
	By:	AIG Global Investment Corp., investment adviser
	By:	/s/ Gerald F. Herman
		Name:	Gerald F. Herman
		Title:	Vice President

	Genworth Life Insurance Company, as a 2002 Noteholder
	By:	/s/ Morian C. Mooers
		Name:	Morian C. Mooers
		Title:	Investment Officer

	Genworth Life and Annuity Insurance Company, as a 2002 Noteholder
	By:	/s/ Morian C. Mooers
		Name:	Morian C. Mooers
		Title:	Investment Officer

	Teachers Insurance and Annuity Association of America, as a 2002 Noteholder
	By:	/s/ Brian Noelae
		Name:	Brian 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/ Brian Noelae
		Name:	Brian Noelae
		Title:	Director

	Nationwide Life Insurance Company Nationwide Life and Annuity Insurance Company Provident Mutual Life Insurance Company, as 2002 Noteholders
	By:	/s/ Joseph P. Young
		Name:	Joseph P. Young
		Title:	Authorized Signatory

	Pacific Life Insurance Company, as a 2002 Noteholder
	By:	/s/ Matthew Levane
		Name:	Matthew Levane
		Title:	Assistant Vice President

	By:	/s/ Cathy Schwartz
		Name:	Cathy Schwartz
		Title:	Assistant Secretary

	Massachusetts Mutual Life Insurance Company, as a 2002 Noteholder
	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, as a 2002 Noteholder
	By:	Babson Capital Management LLC as Investment Sub-Adviser
	By:	/s/ Elisabeth A. Perenick
		Name:	Elisabeth A. Perenick
		Title:	Managing Director

	MassMutual Asia Limited, as a 2002 Noteholder
	By:	Babson Capital Management LLC as Investment Adviser
	By:	/s/ Elisabeth A. Perenick
		Name:	Elisabeth A. Perenick
		Title:	Managing Director

	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/ Alan P. Kress
		Name:	Alan P. Kress
		Title:	Counsel
	By:	/s/ Alan P. Kress
		Name:	Alan P. Kress
		Title:	Counsel

	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/ Colin Pennycooke
		Name:	Colin Pennycooke
		Title:	Counsel
	By:	/s/ James C. Fifield
		Name:	James C. Fifield
		Title:	Assistant General Counsel

	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/ Julia B. Buthman
		Name:	Julia B. Buthman
		Title:	Vice President

	The Prudential Insurance Company of America, as a 2006 Noteholder
	By:	/s/ Julia B. Buthman
		Name:	Julia B. Buthman
		Title:	Vice President

	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/ Julia B. Buthman
		Name:	Julia B. Buthman
		Title:	Vice President

	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/ Julia B. Buthman
		Name:	Julia B. Buthman
		Title:	Vice President

	The Variable Annuity Life Insurance Company AIG Annuity Insurance Company, as 2006 Noteholders
	By:	AIG Global Investment Corp., investment adviser
	By:	/s/ Gerald F. Herman
		Name:	Gerald F. Herman
		Title:	Vice President

	The Guardian Life Insurance Company of America, as a 2006 Noteholder
	By:	/s/ Barry Scheinholtz
		Name:	Barry Scheinholtz
		Title:	Private Placements Manager

	Berkshire Life Insurance Company of America, as a 2006 Noteholder
	By:	/s/ Barry Scheinholtz
		Name:	Barry Scheinholtz
		Title:	Private Placement Manager

	Transamerica Occidental Life Insurance Company, as a 2006 Noteholder
	By:	s/ Debra R. Thompson
		Name:	Debra R. Thompson
		Title:	Vice President

	AmerUs Life Insurance Company, as a 2006 Noteholder
	By:	AmerUs Capital Management Group, Inc., its authorized attorney-in-fact
	By:	/s/ Roger D. Fors
		Name:	Roger D. Fors
		Title:	VP-Private Placement

	American Investors Life Insurance Company, as a 2006 Noteholder
	By:	AmerUs Capital Management Group, Inc., its authorized attorney-in-fact
	By:	/s/ Roger D. Fors
		Name:	Roger D. Fors
		Title:	VP-Private Placement

	Indianapolis Life Insurance Company, as a 2006 Noteholder
	By:	AmerUs Capital Management Group, Inc., its authorized attorney-in-fact
	By:	/s/ Roger D. Fors
		Name:	Roger D. Fors
		Title:	VP-Private Placement

	Genworth Life and Annuity Insurance Company, as a 2006 Noteholder
	By:	/s/ Morian C. Mooers
		Name:	Morian C. Mooers
		Title:	Investment Officer

	Life Insurance Company of the Southwest, as a 2006 Noteholder
	By:	/s/ R. Scott Higgins
		Name:	R. Scott Higgins
		Title:	Vice President Sentinel Asset Management

	Ameritas Life Insurance Corp. - Closed Block, as a 2006 Noteholder
	By:	Ameritas Investment Advisors Inc., as Agent
	By:	/s/ Andrew S. White
		Name:	Andrew S. White
		Title:	Vice President - Fixed Income Securities

	Ameritas Life Insurance Corp., as a 2006 Noteholder
	By:	Ameritas Investment Advisors Inc., as Agent
	By:	/s/ Andrew S. White
		Name:	Andrew S. White
		Title:	Vice President - Fixed Income Securities

	Acacia Life Insurance Company, as a 2006 Noteholder
	By:	Ameritas Investment Advisors Inc. as Agent
	By:	/s/ Andrew S. White
		Name:	Andrew S. White
		Title:	Vice President - Fixed Income Securities

	Equitrust Life Insurance Company, as a 2006 Noteholder
	By:	/s/ Herman L. Riva
		Name:	Herman L. Riva
		Title:	Senior Portfolio Manager

	Assurity Life Insurance Company, as a 2006 Noteholder
	By:	/s/ Victor Weber
		Name:	Victor Weber
		Title:	Senior Director - Investments

	Security Financial Life Insurance Co., as a 2006 Noteholder
	By:	/s/ Victor Weber
		Name:	Victor Weber
		Title:	Senior Director - Investments

	Metropolitan Life Insurance Company, as a 2007 Noteholder
	By:	/s/ Judith A. Gulotta
		Name:	Judith A. Gulotta
		Title:	Director

	Metropolitan Tower Life Insurance Company, as a 2007 Noteholder
	By:	/s/ Judith A. Gulotta
		Name:	Judith A. Gulotta
		Title:	Director

	U.S. BANK NATIONAL ASSOCIATION
	By:	/s/ James M. Williams
		Name:	James M. Williams
		Title:	Vice President

	U.S. BANK NATIONAL ASSOCIATION, as Collateral Agent
	By:	/s/ James M. Williams
		Name:	James M. Williams
		Title:	Vice President

	WACHOVIA BANK, NATIONAL ASSOCIATION
	By:	/s/ Mark S. Supple
		Name:	Mark S. Supple
		Title:	Vice President

	LASALLE BANK NATIONAL ASSOCIATION
	By:	/s/ Darren L. Lemkau
		Name:	Darren L. Lemkau
		Title:	Senior Vice President

	COMERICA BANK
	By:	/s/ Timothy O’Rourke
		Name:	Timothy O’Rourke
		Title:	Vice President

	WELLS FARGO BANK, NATIONAL ASSOCIATION
	By:	/s/ Rick Warren
		Name:	Rick Warren
		Title:	Vice President

	SOVEREIGN BANK
	By:	/s/ Jeffrey N. Kruffman
		Name:	Jeffrey N. Kruffman
		Title:	Vice President

	JPMORGAN CHASE BANK, N.A.
	By:	/s/ Christine Herrick
		Name:	Christine Herrick
		Title:	Vice President

 

 

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) Cabelas.com, Inc., (v) Cabela’s Wholesale, Inc., (vi) Cabela’s Ventures, Inc., (vii) Wild Wings, LLC, (viii) Cabela’s Lodging, LLC, (ix) Van Dyke 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. 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 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/ Dennis Highby
		Name:	Dennis Highby
		Title:	President, CEO, or Manager
	Cabela’s Trophy Properties, LLC
	By:	/s/ Gregg Severinson
		Name:	Gregg Severinson
		Title:	Vice President and Manager
	Cabela’s Retail TX, L.P.
	By:	Cabela’s Retail GP, LLC
	Its:	General Partner
	By:	/s/ Dennis Highby
		Name:	Dennis Highby
		Title:	President

 

 

 

 

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