Second Amended And Restated Intercreditor Agreement Dated as of September 6, 2005 Among United of Omaha Life Insurance Company, Companion Life Insurance Company and Mutual of Omaha Insurance Company (the “1995 Noteholders”) and Jackson National Life...
Second
Amended And Restated Intercreditor Agreement
Dated
as
of September 6, 2005
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,
General
Electric Capital Assurance Company,
GE
Life
and Annuity Assurance 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
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”)
Section
|
Heading
|
Page
|
|
Section
1.
|
Definitions
|
||
Section
2.
|
[Intentionally
Reserved]
|
||
Section
3.
|
Remedies;
Application of Proceeds, Recoveries and Other Amounts
|
||
Section 3.1.
|
Remedies
|
||
Section 3.2.
|
Application
of Proceeds and Other Recoveries
|
||
Section
3.3.
|
Subaccounts
for Unfunded L/C Obligations
|
||
Section
3.4.
|
Sharing
of Recoveries
|
||
Section
3.5.
|
Return
of Amounts
|
||
Section
4.
|
Agreements
Among the Senior Creditors
|
||
Section
4.1.
|
Delivery
of Notice of Actionable Default
|
||
Section
4.2.
|
Notifications
|
||
Section
4.3.
|
Effect
of Non-Compliance
|
||
Section
4.4.
|
Agreement
to Cooperate and to Pursue Remedies
|
||
Section
4.5.
|
Independent
Actions by Senior Creditors
|
||
Section
4.6.
|
Relation
of Senior Creditors
|
||
Section
4.7.
|
Amendments
and Waivers of Agreements
|
||
Section
4.8.
|
Amendments
and Waivers of This Agreement
|
||
Section
4.9.
|
Solicitation
of Senior Creditors
|
||
Section
4.10.
|
Parity
of Treatment
|
||
Section
5.
|
The
Collateral Agent
|
||
Section 5.1.
|
Duties
of Collateral Agent
|
||
Section
5.2.
|
Collateral
Agent’s Liability
|
||
Section
5.3.
|
No
Responsibility of Collateral Agent for Recitals
|
||
Section
5.4.
|
Certain
Limitations on Collateral Agent’s Rights to Compensation and
Indemnification
|
||
Section
5.5.
|
Status
of Moneys Received
|
||
Section
5.6.
|
Resignation
or Termination of Collateral Agent
|
||
Section
5.7.
|
Succession
of Successor Collateral Agent
|
||
Section
5.8.
|
Eligibility
of Collateral Agent
|
||
Section
5.9.
|
Successor
Collateral Agent by Merger
|
||
Section
5.10.
|
Compensation
and Reimbursement of Collateral Agent; Indemnification of Collateral
Agent
|
||
Section
5.11.
|
Self
Dealing
|
||
Section
6.
|
Miscellaneous
|
||
Section
6.1.
|
Entire
Agreement; Parties
|
||
Section
6.2.
|
Notices
|
||
Section
6.3.
|
Successors
and Assigns
|
||
Section
6.4.
|
Successor
Collateral Agent
|
||
Section
6.5.
|
Governing
Law
|
||
Section
6.6.
|
Counterparts
|
||
Section
6.7.
|
Sale
of Interest
|
||
Section
6.8.
|
Additional
Parties
|
||
Section
6.9.
|
Termination
|
||
Section
6.10.
|
Severability
|
AMENDED
AND RESTATED
INTERCREDITOR
AGREEMENT
SECOND
AMENDED
AND RESTATED
INTERCREDITOR
AGREEMENT
dated
for
convenience as of September 6, 2005 between (i) United of Omaha Life
Insurance Company, Companion Life Insurance Company and Mutual of Omaha
Insurance Company (collectively, the “1995
Noteholders”)
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, General Electric Capital
Assurance Company, GE Life and Annuity Assurance 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 (collectively, the “2002
Noteholders”)
as
parties to the 2002 Note Agreements (as hereinafter defined), (iii)
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), (iv) U.S. Bank
National Association, as Collateral Agent (the “Collateral
Agent”).
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, (x) Cabela’s Lodging, LLC, (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 (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”and
together with Cabela’s LA, Cabela’s TX, Cabela’s GP and the 2004 Obligors
(except Xxxxxx’x, LLC), are collectively, the “Obligors”)
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
and
the 1995 Noteholders (“Amendment
No. 4”),
(v)
Amendment No. 5 dated as of May 5, 2004 between the Original Obligors and
the
1995 Noteholders (“Amendment
No. 5”),
and
(vi) 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”))
(the
Original Note Agreements, as amended and supplemented by Amendment Xx. 0,
Xxxxxxxxx Xx. 0, Xxxxxxxxx Xx. 0, Xxxxxxxxx Xx. 0, Xxxxxxxxx Xx. 0 and the
1995
A&R Joinder being collectively, 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 its
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 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
Original 2002 Note Agreements as amended and supplemented by the A&R 2002
Joinder are the “2002
Note Agreements”).
E. 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
Bank
Loans (as hereinafter defined) and all principal thereof and interest thereon
and any and all other obligations of the Obligors to the 1995 Noteholders,
the
2002 Noteholders and the Banks 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 Bank Notes (as hereinafter defined), the 1995
Note
Agreements, the 2002 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, 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.”
F. The
1995 Noteholders, the
2002 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:
“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.
“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 or (iii) any Event of Default
under the 2002 Note Agreements.
“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.
“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.
“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, 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 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 the Recitals hereto.
“Obligors”shall
have the meaning set forth in paragraph B of the Recitals hereto.
“Original
Co-Obligor Subsidiaries”shall
have the meaning set forth in paragraph B of the Recitals hereto.
“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, (3) 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 (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 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 Bank Notes, the New Bank Agreement, the Letters of Credit
and
any and all amendments and supplements thereof.
“Senior
Creditors”shall
mean the 1995 Noteholders, the 2002 Noteholders and the Banks.
“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.
“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, General
Electric Capital Assurance Company, GE Life and Annuity Assurance 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 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), due on the Bank Loans, the 1995 Notes, the 2002 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 or 2002 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 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 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 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, 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, (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, and (iii) the 2002
Noteholders may enter into any amendment or modification of the 2002 Notes
or
the 2002 Note Agreements without the consent of the Banks or the 1995
Noteholders; provided,
that
upon
the Banks, the 1995 Noteholders or the 2002 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 2002 Notes then outstanding, and
(iii)
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:
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,
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
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 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. 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 and (iii) all Persons who
are
signatories and parties to the New Bank Agreement.
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:
(000) 000-0000
|
|
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
|
General
Electric Capital Assurance
Company
GE
Life and Annuity Assurance Company
c/o
GE Financial Assurance
Two
Union Square, 000 Xxxxx Xxxxxx
Xxxxxxx,
Xxxxxxxxxx 00000
Attention:
Investment Department, Private
Placements
Telefacsimile:
(000) 000-0000
|
||
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
Xxxxx X. Xxxxxx & Company Inc.
0000
Xxxx Xxxxxx, Xxxxx 0000
|
Xxxxxxxxxxx,
Xxxxxxxxxxxxx 00000
Attention:
Securities Investment Division
Telefacsimile:
|
||
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 Banks:
|
U.S.
Bank National Association
000
Xxxxx 00xx Xxxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxx X. Xxxxxxxx
with
a copy to:
Xxxxxx
& Xxxxxxx, LLP
00
Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx,
XX 00000
Attention:
Xxxx Xxxxxxx
|
|
Wachovia
Bank, National Association
000
Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxx
XX0000
Xxxxxxxxx,
XX 00000
Attention:
Xxxxx Xxxxx
|
||
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,
|
||
Xxxxx
Fargo 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
|
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 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.
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
|
||
By
|
/s/
Xxxxx X. Xxxxxxxx, Xx.
|
|
Name:
Xxxxx X. Xxxxxxxx, Xx.
Title:
First Vice President
|
Companion
Life Insurance Company
|
||
By
|
/s/
Xxxxx X. Xxxxxxxx, Xx.
|
|
Name:
Xxxxx X. Xxxxxxxx, Xx.
Title:
Authorized Representative
|
Mutual
of Omaha Insurance Company
|
||
By
|
/s/
Xxxxx X. Xxxxxxxx, Xx.
|
|
Name:
Xxxxx X. Xxxxxxxx, Xx.
Title:
First Vice President
|
Xxxxxxx
National Life Insurance Company
|
||
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
|
||
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
|
||
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
|
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/
Xxxxxxx X. XxXxx
|
||
Name:
Xxxxxxx X. XxXxx
Title:
Managing Director
|
General
Electric Capital Assurance
Company
|
||
By
|
/s/
Xxxxx X. Sell
|
|
Name:
Xxxxx X. Sell
Title:
Investment Officer
|
GE
Life and Annuity Assurance Company
|
||
By
|
/s/
Xxxxx X. Sell
|
|
Name:
Xxxxx X. Sell
Title:
Investment Officer
|
Teachers
Insurance and Annuity
Association of America
|
||
By
|
/s/
Xxxx Xxxxxxxx
|
|
Name:
Xxxx Xxxxxxxx
Title:
Director
|
TIAA-CREF
Life Insurance Company
|
||
By:
|
Teachers
Insurance and Annuity
Association
of America, as Investment
Manager
|
|
By
|
/s/
Xxxx Xxxxxxxx
|
|
Name:
Xxxx Xxxxxxxx
Title:
Director
|
Nationwide
Life Insurance Company
|
||
By
|
/s/
Xxxx X. Xxxxxxxxxx
|
|
Name:
Xxxx X. Xxxxxxxxxx
Title:
Authorized Signatory
|
Nationwide
Life and Annuity Insurance
Company
|
||
By
|
/s/
Xxxx X. Xxxxxxxxxx
|
|
Name:
Xxxx X. Xxxxxxxxxx
Title:
Authorized Signatory
|
Provident
Mutual Life Insurance Company
|
||
By
|
/s/
Xxxx X. Xxxxxxxxxx
|
|
Name:
Xxxx X. Xxxxxxxxxx
Title:
Authorized Signatory
|
Pacific
Life Insurance Company
|
||
By
|
/s/
Xxxxxx X. Xxxxxx
|
|
Name:
Xxxxxx X. Xxxxxx
Title:
Senior Vice President
|
||
By
|
/s/
Xxxxx X. Xxxx
|
|
Name:
Xxxxx X. Xxxx
Title:
Assistant Secretary
|
Massachusetts
Mutual Life Insurance
Company
|
||
By:
|
Babson
Capital Management LLC as
Investment
Adviser
|
By
|
/s/
Xxxxxxx X. Xxxxxxxx
|
||
Name:
Xxxxxxx X. Xxxxxxxx
Title:
Managing Director
|
C.M.
Life Insurance Company
|
||
By:
|
Babson
Capital Management LLC as
Investment
Sub-Adviser
|
By
|
/s/
Xxxxxxx X. Xxxxxxxx
|
||
Name:
Xxxxxxx X. Xxxxxxxx
Title:
Managing Director
|
MassMutual
Asia Limited
|
||
By:
|
Babson
Capital Management LLC as
Investment
Adviser
|
By
|
/s/
Xxxxxxx X. Xxxxxxxx
|
||
Name:
Xxxxxxx X. Xxxxxxxx
Title:
Managing Director
|
Principal
Life Insurance Company
|
||
By:
|
Principal
Global Investors, LLC, a
Delaware
limited liability company, its
authorized
signatory
|
By
|
/s/
Xxxxx Xxxxxxxxxx
|
||
Name:
Xxxxx Xxxxxxxxxx
Title:
Counsel
|
By
|
/s/
Xxxxxxxxxxx X. Xxxxxxxxx
|
||
Name:
Xxxxxxxxxxx X. Xxxxxxxxx
Title:
Counsel
|
U.S.
BANK
NATIONAL
ASSOCIATION
|
||
By
|
/s/
Xxxxx X. Xxxxxxxx
|
|
Name:
Xxxxx X. Xxxxxxxx
Title:
Vice President
|
U.S.
BANK
NATIONAL
ASSOCIATION,
as
Collateral Agent
|
||
By
|
/s/
Xxxxx X. Xxxxxxxx
|
|
Name:
Xxxxx X. Xxxxxxxx
Title:
Vice President
|
WACHOVIA
BANK,
NATIONAL
ASSOCIATION
|
||
By
|
/s/
Xxxxxxx Xxxxxx
|
|
Name:
Xxxxxxx Xxxxxx
Title:
Managing Director
|
LASALLE
BANK
NATIONAL
ASSOCIATION
|
||
By
|
/s/
Xxxx Xxxxxx
|
|
Name:
Xxxx Xxxxxx
Title:
Assistant Vice President
|
COMERICA
BANK
|
||
By
|
/s/
Xxxxxxx X. X’Xxxxxx
|
|
Name:
Xxxxxxx X. X’Xxxxxx
Title:
Vice President
|
XXXXX
FARGO
BANK,
NATIONAL
ASSOCIATION
|
||
By
|
/s/
Xxxx X. Xxxxx
|
|
Name:
Xxxx X. Xxxxx
Title:
Relationship Manager Vice
President
|
SOVEREIGN
BANK
|
||
By
|
/s/
Xxxxx X. Xxxxxxxx
|
|
Name:
Xxxxx X. Xxxxxxxx
Title:
Senior Vice President
|
JPMORGAN
CHASE
BANK,
N.A.
|
||
By
|
/s/
Xxxx Xxxxxxxxx
|
|
Name:
Xxxx Xxxxxxxxx
Title:
Vice President
|
Acknowledgment,
Consent and Agreement
Each
of
Cabela’s Incorporated (the “Company”)
and the
Subsidiaries of the Company consisting of (i) Cabela’s Retail, Inc., (ii) Xxx
Xxxx Supply Company, Inc., (iii) Cabela’s Ventures, 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., (viii) Xxxxxxx.Xxx, Inc.,
(ix)
Wild
Wings, LLC, (x) Cabela’s Lodging, LLC, (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, and (xvi) CRLP, LLC (such
subsidiaries being “Co-Obligor
Subsidiaries”and
together with the Company, the “Obligors”)
hereby:
(a) acknowledges receipt of the foregoing Second Amended and Restated
Intercreditor Agreement, (b) agrees to be bound by each of the obligations
applicable to it set forth in the Second Amended and Restated Intercreditor
Agreement, (c) believes it is in its best interests to have the Senior Creditors
(as defined in the Second Amended and Restated Intercreditor Agreement) enter
into the Second 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
Second 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 Second
Amended
and Restated Intercreditor Agreement.
Cabela’s
Incorporated
|
||
By
|
/s/
Xxxxx Xxxxxxx
|
|
Name: Xxxxx
Xxxxxxx
Title:
Chief Financial Officer
|
Cabela’s
Retail, Inc.
|
||
By
|
/s/
Xxxxx Xxxxxxx
|
|
Name:
Xxxxx Xxxxxxx
Title:
Secretary/Treasurer
|
Xxx
Xxxx Supply Company, Inc.
|
||
By
|
/s/
Xxxxx Xxxxxxx
|
|
Name:
Xxxxx Xxxxxxx
Title:
Secretary/Treasurer
|
Cabela’s
Ventures, Inc.
|
||
By
|
/s/
Xxxxx Xxxxxxx
|
|
Name:
Xxxxx Xxxxxxx
Title:
Secretary/Treasurer
|
Cabela’s
Outdoor Adventures, Inc.
|
||
By
|
/s/
Xxxxx Xxxxxxx
|
|
Name:
Xxxxx Xxxxxxx
Title:
Secretary/Treasurer
|
Cabela’s
Catalog, Inc.
|
||
By
|
/s/
Xxxxx Xxxxxxx
|
|
Name:
Xxxxx Xxxxxxx
Title:
Secretary/Treasurer
|
Cabela’s
Wholesale, Inc.
|
||
By
|
/s/
Xxxxx Xxxxxxx
|
|
Name:
Xxxxx Xxxxxxx
Title:
Secretary/Treasurer
|
Cabela’s
Marketing and Brand
Management, Inc.
|
||
By
|
/s/
Xxxxx Xxxxxxx
|
|
Name:
Xxxxx Xxxxxxx
Title:
Secretary/Treasurer
|
Xxxxxxx.xxx,
Inc.
|
||
By
|
/s/
Xxxxx Xxxxxxx
|
|
Name:
Xxxxx Xxxxxxx
Title:
Secretary/Treasurer
|
Wild
Wings , LLC
|
||
By
|
/s/
Xxxxx Xxxxxxx
|
|
Name:
Xxxxx Xxxxxxx
Title:
Secretary/Treasurer
|
Cabela’s
Lodging, LLC
|
||
By
|
/s/
Xxxxx Xxxxxxx
|
|
Name:
Xxxxx Xxxxxxx
Title:
Secretary/Treasurer
|
Cabela’s
Retail LA, LLC
|
||
By
|
/s/
Xxxxx Xxxxxxx
|
|
Name:
Xxxxx Xxxxxxx
Title:
Secretary/Treasurer
|
Cabela’s
Trophy Properties, LLC
|
||
By
|
/s/
Xxxxx Xxxxxxx
|
|
Name:
Xxxxx Xxxxxxx
Title:
Secretary/Treasurer
|
Original
Creations, LLC
|
||
By
|
/s/
Xxxxx Xxxxxxx
|
|
Name:
Xxxxx Xxxxxxx
Title:
Secretary/Treasurer
|
Cabela’s
Retail TX, L.P.
|
||
By:
|
Cabela’s
Retail GP,
LLC, General Partner
|
By
|
/s/
Xxxxx Xxxxxxx
|
||
Name:
Xxxxx Xxxxxxx
Title:
Secretary/Treasurer
|
Cabela’s
Retail GP, LLC
|
||
By
|
/s/
Xxxxx Xxxxxxx
|
|
Name:
Xxxxx Xxxxxxx
Title:
Secretary/Treasurer
|
CRLP,
LLC
|
||
By
|
/s/
Xxxxx Xxxxxxx
|
|
Name:
Xxxxx Xxxxxxx
Title:
Secretary/Treasurer
|
-
4
-