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XXXXXXX OUTDOORS INC.
FIFTH AMENDMENT AND WAIVER TO NOTE AGREEMENTS
Dated as of December 13, 2001
Re:
Note Agreement dated as of October 1, 1995
and
$30,000,000 7.77% Senior Notes, Series A, due October 15, 2005
$15,000,000 6.98% Senior Notes, Series B, due October 15, 2005
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XXXXXXX OUTDOORS INC.
0000 Xxxxxx Xxxx
X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxxxx 00000-0000
FIFTH AMENDMENT AND WAIVER TO NOTE AGREEMENTS
Dated as of December 13, 2001
Re: Note Agreement dated as of October 1, 1995
and
$30,000,000 7.77% Senior Notes, Series A, due October 15, 2005
$15,000,000 6.98% Senior Notes, Series B, due October 15, 2005
To the Noteholders named in Schedule I hereto which are also signatories to this
Fifth Amendment to the Note Agreements.
Ladies and Gentlemen:
Reference is made to the separate Note Agreements dated as of October
1, 1995, as amended by the First Amendment to Note Agreements dated as of
October 31, 1996, the Second Amendment to Note Agreements dated as of September
30, 1997, the Third Amendment to Note Agreements dated as of October 3, 1997,
and the Fourth Amendment to Note Agreements dated as of February 1, 2000 (the
"Note Agreements"), between Xxxxxxx Outdoors Inc. (formerly known as Xxxxxxx
Worldwide Associates Inc.), a Wisconsin corporation (the "Company"), and the
Purchasers named therein, under and pursuant to which (i) $30,000,000 7.77%
Senior Notes, Series A, due October 15 and 2005 and (ii) $15,000,000 6.98%
Senior Notes, Series B, due October 15, 2005 (the "Notes") of the Company were
originally issued. Terms used but not otherwise defined herein shall have the
meanings set forth in the Note Agreements.
The Company hereby requests that you accept the waivers and amendments
set forth in this Fifth Amendment and Waiver to Note Agreements (the "Fifth
Amendment to Note Agreements") in the manner herein provided:
ARTICLE 1
WAIVER OF NOTE AGREEMENTS
Section 1.1. Waiver of Default under Section 5.6(b). Pursuant to that
certain Three Year Revolving Credit Agreement dated as of August 31, 2001
between the Company and the financial institutions named therein (the "Bank
Credit Agreement"), certain Subsidiaries of the Company entered into guaranties
of Indebtedness outstanding under the Bank Credit Agreement.
The amount of Indebtedness outstanding under the Bank Credit Agreement exceeds
the aggregate principal amount of Indebtedness which is permitted to be
outstanding in respect of Restricted Subsidiaries of the Company under and
pursuant to Section 5.6(b) of the Note Agreements. The Noteholders hereby waive
any Default or Event of Default which shall exist, or shall have existed, under
Sections 5.6(b) and 6.1(f) of the Note Agreements during the period beginning on
August 31, 2001 to and including the date hereof solely on account of such
guaranties under the Bank Credit Agreement.
ARTICLE 2
AMENDMENT OF NOTE AGREEMENTS
Section 2.1. Amendment of Section 1. Section 1 of the Note Agreements
shall be and is hereby amended by the addition thereto of a new Section 1.4 to
read as follows:
Section 1.4. Subsidiary Guaranty. The payment by the Company
of all amounts due with respect to the Notes and the performance by the
Company of its obligations under this Agreement will be absolutely and
unconditionally guaranteed by the Subsidiary Guarantors pursuant to the
Subsidiary Guaranty (the "Subsidiary Guaranty"), which shall be in
substantially the form attached hereto as Exhibit E.
Payments under the Subsidiary Guaranties shall be subject to
the terms of an Intercreditor Agreement dated as of December 13, 2001
(the "Intercreditor Agreement") which shall be in substantially the
form attached hereto as Exhibit F among the Purchaser, the banks which
are parties to the Bank Credit Agreement and certain other creditors of
the Company which are beneficiaries of Guaranties by Subsidiary
Guarantors.
Section 2.2. Amendment to Section 5.6(b). Section 5.6(b) of the Note
Agreements shall be and is hereby amended in its entirety so that the same shall
read as follows:
(b) The Company will not at any time permit the sum of (i)
Current Debt and Funded Debt of Restricted Subsidiaries (other than
Current Debt and Funded Debt owed to the Company or an Eighty
Percent-Owned Restricted Subsidiary and Excluded Subsidiary
Obligations), plus (ii) Funded Debt of the Company and Restricted
Subsidiaries secured by Liens permitted by ss.5.7(a)(9) to exceed 25%
of Consolidated Tangible Assets.
Section 2.3. Amendment of Section 5.6. Section 5.6 of the Note
Agreement shall be and is hereby amended by the addition thereto of two new
subsections 5.6(f) and 5.6(g) to read as follows:
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(f) The Company will not at any time permit Indebtedness of
Foreign Subsidiaries outstanding pursuant to the Bank Credit Agreement
to exceed 10.5% of Consolidated Tangible Assets.
(g) The Company will not permit any Restricted Subsidiary to
become a direct borrower, co-obligor or guarantor under the Bank Credit
Agreement; provided that (i) Foreign Subsidiaries may become direct
borrowers under the Bank Credit Agreement within the limitations of
this ss.5.6, and (ii) subject to ss.5.17, Subsidiary Guarantors may be
obligated on the subsidiary guaranties under the Bank Credit Agreement.
Section 2.4. Amendment to Section 5.16(e). The proviso beginning in the
third to the last line of Section 5.16(e) of the Note Agreement shall be and is
hereby amended in its entirety so that the same shall read as follows:
provided further, that such certificates as are delivered with respect
to (i) the period provided for in paragraph (b) above, shall include a
list of any changes in Restricted Subsidiaries as at the end of such
period, and (ii) the periods provided for in paragraphs (a) and (b)
above shall set forth for each Restricted Subsidiary, the amount of
Indebtedness of such Restricted Subsidiary outstanding at the end of
such period together with a brief description of such Indebtedness.
Section 2.5. Amendment to Section 5. Section 5 of the Note Agreements
shall be and is hereby amended by the addition thereto of a new Section 5.17 to
read as follows:
Section 5.17. Subsidiary Guaranty. The Company will cause each
Subsidiary which is, or becomes, a guarantor of Indebtedness under the
Bank Credit Agreement (excluding any Foreign Subsidiary which borrows
amounts denominated in its local currency (and Guaranties of such
borrowings by other Foreign Subsidiaries)) to be a party to the
Subsidiary Guaranty. In the case of any such Subsidiary which becomes a
guarantor under the Bank Credit Agreement after the date of the
Closing, concurrently with such Subsidiary becoming a guarantor under
the Bank Credit Agreement, the Company will deliver to each holder of
the Notes the following items:
(i) a joinder agreement in respect of the Subsidiary
Guaranty which shall have been duly executed by such
Subsidiary;
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(ii) a certificate signed by the President, a Vice
President or another authorized Responsible Officer of the
Company making representations and warranties to the effect of
those contained in Paragraphs 10 and 12 of Exhibit B, with
respect to such Subsidiary and the Subsidiary Guaranty, as
applicable; and
(iii) an opinion of counsel (who may be in-house
counsel for the Company) addressed to each of the holders of
the Notes satisfactory to the holders of a majority in
principal amount of the Notes outstanding at the time, to the
effect that the joinder to the Subsidiary Guaranty has been
duly authorized, executed and delivered by such Subsidiary and
that the Subsidiary Guaranty constitutes the legal, valid and
binding contract and agreement of such Subsidiary Guarantor
enforceable in accordance with its terms, except as an
enforcement of such terms may be limited by bankruptcy,
insolvency, fraudulent conveyance and similar laws affecting
the enforcement of creditors' rights generally and by general
equitable principles.
Section 2.6. Amendment to Section 5. Section 5 of the Note Agreement
shall be and is hereby amended by the addition thereto of a new subsection 5.18
to read as follows:
Section 5.18. Restrictions on Subsidiaries. The Company will
not, and will not permit any Restricted Subsidiary to, agree to or
otherwise permit to exist any contractual limitation on the payment of
dividends or other distributions to the Company.
Section 2.7. Amendment to Section 6.1. Section 6.1 of the Note
Agreements shall be and is hereby amended by changing paragraphs "(i)", "(j)"
and "(k)" of Section 6.1 to read as paragraphs "(j)", "(k)" and "(l)"
respectively and by the addition of a new paragraph (i) to read as follows:
(i) the Subsidiary Guaranty ceases to be in full force and
effect or any Subsidiary Guarantor shall contest or deny in writing the
validity or enforceability of any of its obligations under the
Subsidiary Guaranty; or
Section 2.8. Amendment to Section 6.3. Section 6.3 of the Note
Agreements shall be and is hereby amended by (a) changing the reference to
paragraph "(i)" in the third line of such Section 6.3 to read as paragraph "(j)"
and (b) changing the reference to "paragraph (j) or (k)" in the tenth line of
such Section 6.3 to read as "paragraph (k) or (l)."
Section 2.9. Amendment to Section 6.4. Section 6.4 of the Note
Agreements shall be and is hereby amended by changing the reference to paragraph
"(i)" in the fourth line of such Section 6.4 to read as paragraph "(j)."
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Section 2.10. Amendment to Section 8.1. The definition of Funded Debt
in Section 8.1 of the Note Agreements shall be and is hereby amended by the
addition thereto of the following sentence to read as follows:
For purposes of any determination of under this Agreement,
revolving credit Indebtedness under the Bank Credit Agreement shall not
be deemed to be Funded Debt except to the extent that such Indebtedness
shall be included in the Average Outstanding Balance of Consolidated
Current Debt determined in accordance with ss.5.6.
Section 2.11. New Definitions in Section 8.1. Section 8.1 to the Note
Agreements shall be and is hereby amended to include the following new
definitions in alphabetical order:
"Bank Credit Agreement" means that certain Three Year Revolving Credit
Agreement dated as of August 31, 2001, by and among the Company, and the
financial institutions named therein, as amended, supplemented, renewed or
restated and any replacement facility which constitutes the primary bank credit
facility of the Company.
"Excluded Subsidiary Obligations" shall mean (a) the Subsidiary
Guaranty and any other Guaranty of Indebtedness of the Company or another
Restricted Subsidiary by a Subsidiary Guarantor, and (b) obligations of a
Subsidiary Guarantor as co-obligor with the Company or another Restricted
Subsidiary on Indebtedness under note agreements, loan agreements or credit
agreements (other than the Bank Credit Agreement); provided that each creditor
which is the beneficiary of any such Guaranty or which is a party to any such
note agreement, loan agreement or credit agreement (or an agent acting on its
behalf) shall have become a party to the Intercreditor Agreement.
"Foreign Subsidiary" means any Subsidiary of the Company organized
under the laws of a jurisdiction other than the United States or any
jurisdiction thereof.
"Intercreditor Agreement" is defined in ss.1.4.
"Responsible Officer" means any Senior Financial Officer and any other
officer of the Company with responsibility for the administration of the
relevant portion of this Agreement.
"Senior Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or comptroller of the Company.
"Subsidiary Guarantor" means each of the domestic Subsidiaries of the
Company on the date of this Agreement and each other Subsidiary of the Company
that subsequent to the date of this Agreement becomes a party to the Subsidiary
Guaranty in accordance with ss.5.17 of this Agreement.
"Subsidiary Guaranty" is defined in ss.1.4.
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ARTICLE 3
WARRANTIES AND REPRESENTATIONS
The Company represents and warrants that as of the date hereof:
Section 3.1. Fifth Amendment to Note Agreements is Legal and
Authorized. (a) The execution and delivery of the Fifth Amendment to Note
Agreements by the Company and compliance by the Company with all of the
provisions of the Note Agreements, as amended by the Fifth Amendment to Note
Agreements--
(i) is within the corporate powers of the Company; and
(ii) will not violate any provisions of any law or any order
of any court or governmental authority or agency and will not conflict
with or result in any breach of any of the terms, conditions or
provisions of, or constitute a default under the Articles of
Incorporation or By-laws of the Company or any indenture or other
agreement or instrument to which the Company is a party or by which it
may be bound or result in the imposition of any Liens or encumbrances
on any property of the Company.
(b) The execution and delivery of the Fifth Amendment to Note
Agreements has been duly authorized by proper corporate action on the part of
the Company (no action by the stockholders of the Company being required by law,
by the Articles of Incorporation or By-laws of the Company or otherwise); and
the Fifth Amendment to Note Agreements has been executed and delivered by the
Company and the Note Agreements, as amended by the Fifth Amendment to Note
Agreements, constitutes the legal, valid and binding obligation, contract and
agreement of the Company enforceable in accordance with its terms.
Section 3.2. No Defaults. Upon the effectiveness of this Fifth
Amendment to Note Agreements, no Default or Event of Default shall exist or be
continuing.
ARTICLE 4
MISCELLANEOUS
Section 4.1. Ratification of Note Agreements. Except as herein
expressly amended, each of the Note Agreements is in all respects ratified and
confirmed. If and to the extent that any of the terms or provisions of the Note
Agreements is in conflict or inconsistent with any of the terms or provisions of
this Fifth Amendment to Note Agreements, this Fifth Amendment to Note Agreements
shall govern.
Section 4.2. No Legend Required. References in the Note Agreements or
in any Note, certificate, instrument or other document to the Note Agreements
shall be deemed to be references to the Note Agreements as amended hereby and as
further amended from time to time.
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Section 4.3. Successors and Assigns. This Fifth Amendment to Note
Agreements shall be binding upon the Company and its successors and assigns and
shall inure to the benefit of the Noteholders and to the benefit of the
Noteholders' successors and assigns, including each successive holder or holders
of any Notes.
Section 4.4. Requisite Approval; Expenses. This Fifth Amendment to Note
Agreements shall not be effective until (a) the Company and the holders of at
least 70% in aggregate principal amount of the outstanding Notes shall have
executed this Fifth Amendment to Note Agreements, (b) the Noteholders shall have
received opinions of Xxxxx & Xxxxxxx, counsel for the Company, in form and
substance satisfactory to each of the Noteholders covering the matters set forth
in Exhibit A and covering such other matters incident to the transactions
contemplated hereby as the Noteholders or their counsel may reasonably request,
(c) the Company shall have delivered to the Noteholders an Officer's Certificate
making representations and warranties to the effect of those contained in
Paragraphs 10 and 12 of Exhibit B to the Note Agreements, with respect to the
Subsidiary Guarantors and the Subsidiary Guaranty, (d) each Subsidiary Guarantor
of the Company shall have executed and delivered to the Noteholders a
counterpart of the Subsidiary Guaranty, (e) the Second Amendment and Waiver to
that certain Note Agreement dated as of September 15, 1997 shall have been
executed and delivered in substantially the same form as this Fifth Amendment to
Note Agreements, (f) the Intercreditor Agreement shall have been executed and
delivered by the Noteholders, the banks which are parties to the Bank Credit
Agreement and certain other creditors of the Company which are beneficiaries of
Guaranties by Subsidiary Guarantors, and (g) the Company shall have paid all
out-of-pocket expenses incurred by the Noteholders in connection with the
consummation of the transactions contemplated by this Fifth Amendment to Note
Agreements, including, without limitation, the fees, expenses and disbursements
of Xxxxxxx and Xxxxxx which are reflected in statements of such counsel rendered
on or prior to the effective date of this Fifth Amendment to Note Agreements.
Section 4.5. Table of Contents. The Table of Contents of the Note
Agreements shall be and is hereby amended to reflect the changes made to section
title headings herein.
Section 4.6. Counterparts. This Fifth Amendment to Note Agreements may
be executed in any number of counterparts, each executed counterpart
constituting an original but all together only one agreement.
Section 4.7. Governing Law. The Note Agreements as amended by this
Fifth Amendment to Note Agreements and the Notes shall be governed by and
construed in accordance with Wisconsin law, including all matters of
construction, validity and performance.
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IN WITNESS WHEREOF, the Company has executed this Fifth Amendment to
Note Agreements as of the day and year first above written.
XXXXXXX OUTDOORS INC.
By /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
Its Treasurer
This Fifth Amendment to Note Agreements is accepted and agreed to as of
the day and year first above written.
NATIONWIDE LIFE INSURANCE COMPANY
By /s/ Xxxx X. Xxxxxxxxxx
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Xxxx X. Xxxxxxxxxx
Its Associate Vice President
This Fifth Amendment to Note Agreement is accepted and agreed to as of
the day and year first above written.
GREAT-WEST LIFE & ANNUITY INSURANCE
COMPANY
By /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Its Senior Vice President
Investments
By /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Its Assistant Vice President
Investments
