Exhibit 4.8
AMENDMENT NO. 2
TO
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT (the
"Amendment"), dated as of September 30, 1999, among XXXXXXX WORLDWIDE
ASSOCIATES, INC., a Wisconsin corporation (the "Company"), certain consolidated
subsidiaries of the Company which may from time to time become parties thereto
(the "Subsidiaries"), BANK ONE, NA, formerly known as The First National Bank of
Chicago, FIRSTAR BANK MILWAUKEE, N.A., M&I XXXXXXXX & ILSLEY BANK, THE NORTHERN
TRUST COMPANY, SOCIETE GENERALE AND DRESDNER BANK (the "Banks"), and BANK ONE,
N.A., formerly known as The First National Bank of Chicago in its capacity as
contractual representative for itself and the other Bank (the "Agent") under
that certain Amended and Restated Credit Agreement dated as of April 3, 1998 by
and among the Company, certain of the Banks and the Agent (as amended by an
Amendment No. 1 dated as of September 11, 1998, the "Credit Agreement"). Defined
terms used herein and not otherwise defined herein shall have the meaning given
to them in the Credit Agreement.
WHEREAS, the Borrower, the Banks and the Agent have entered the Credit
Agreement and now wish to amend it;
NOW, THEREFORE, in consideration of the premises set forth above, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Amendment to the Credit Agreement. Effective as of the date first
above written and subject to the execution of this Amendment by the parties
hereto and the satisfaction of the conditions precedent set forth in Section 2
below, the Credit Agreement shall be and hereby is amended as follows:
(a) Section 1.01 is hereby amended (i) to insert immediately prior to
the period (".") now appearing at the end of the definition of "Consolidated
Funded Debt", the following:
"; provided, that for purposes of calculating Consolidated Funded
Debt, the Average Outstanding Balance of Consolidated Current Debt
computed for the Compliance Period preceding the date of any such
determination shall be deemed to constitute outstanding Funded Debt of
the Company incurred as of the last day of such Compliance Period and
shall be deemed outstanding at all times prior to the end of the next
Compliance Period; provided, however, that the Average Outstanding
Balance of Consolidated Current Debt of any Person computed for the
Compliance Period immediately preceding such date of determination
shall be reduced by an amount equal to the permanent prepayment of
Consolidated Current Debt of such Person with the proceeds of the
Designated Sale from and after the date of such prepayment"
; (ii) to insert immediately prior to the period (".") now appearing at the end
of the definition of "EBITDA", the following:
", plus (viii) any charges taken in connection with the Designated
Sale to the extent deducted in computing Consolidated Net Income"
; and (iii) to add alphabetically the following defined term:
"Designated Sale" shall mean the sale by the Company of all
or part of the recreational fishing business of the Company.
(b) Section 1.01 is hereby amended to add the following at the end of
the definition of "Net Income Available for Fixed Charges":
", and plus (e) (to the extent taken in account in determining
Consolidated Net Income) an amount equal to the charge taken during
such period in respect of the book loss incurred in connection with
the Designated Sale".
(c) Section 6.01(a) is hereby amended to delete the following clause:
"; provided, that for purposes of calculating compliance with this Section 6.01,
the Average Outstanding Balance of Consolidated Current Debt computed for the
Compliance Period preceding the date of any such determination shall be deemed
to constitute outstanding Funded Debt of the Company incurred as of the last day
of such Compliance Period and shall be deemed outstanding at all times prior to
the end of the next Compliance Period".
(d) Section 6.02 is hereby amended to insert the following new clause
(e) at the end thereof:
"(e) Notwithstanding any other provision of this Section
6.02, (i) the Company; or any Subsidiary of the Company constituting
the recreational fishing business of the Company (the "Fishing
Subsidiary"), may sell, transfer or otherwise dispose of all or any
part of the assets, or all or any part of the shares of capital stock
of any Subsidiary, constituting the recreational fishing business of
the Company or such Fishing Subsidiary in connection with the
Designated Sale, and (ii) any Fishing Subsidiary may consolidate or
merge with any other Person in connection with the Designated Sale.
Sale of stock or assets permitted by this Section 6.02(e) shall not be
taken into account for purposes of calculating the limitations on
permitted sales of assets and stock set forth in Section 6.02(b)(1)
and the provision at the end of Section 6.02(c)."
(e) Section 6.05(i) is hereby amended to insert immediately prior to
the period (".") now appearing at the end thereof, the following:
"; provided, however, that any charges taken by the Company or any
Fishing Subsidiary in connection with the Designated Sale shall not be
taken into account for purposes of calculations pursuant to this
Section 6.05(i)".
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2. Conditions of Effectiveness. This Amendment shall become effective
and be deemed effective as of the date hereof, if, and only if, the Agent shall
have received each of the following:
(a) duly executed originals of this Amendment from the Company, the
Majority Banks and the Agent; and
(b) such other documents, instruments and agreements as the Agent may
reasonably request.
3. Representations and Warranties of the Company. The Company hereby
represents and warrants as follows:
(a) This Agreement and the Credit Agreement as previously executed and
as amended hereby, constitute legal, valid and binding obligations of the
Company and are enforceable against the Company in accordance with their terms.
(b) Upon the effectiveness of this Amendment, the Company hereby
reaffirms all covenants, representations and warranties made in the Credit
Agreement, to the extent the same are not amended hereby, agrees that all such
covenants, representations and warranties (as so modified) shall be deemed to
have been remade as of the effective date of this Amendment.
4. Reference to the Effect on the Credit Agreement.
(a) Upon the effectiveness of Section 1 hereof, on and after the date
hereof, each reference in the Credit Agreement to "this Agreement," "hereunder,"
"hereof," "herein" or words of like import shall mean and be a reference to the
Amended and Restated Credit Agreement dated as of April 3, 1998, as amended by
Amendment No. 1 and as amended hereby.
(b) Except as specifically amended above, the Amended and Restated
Credit Agreement dated as of April 3, 1998 and all other documents, instruments
and agreements executed and/or delivered in connection therewith shall remain in
full force and effect, and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of the Agent or any of the Banks, nor constitute a waiver of any
provision of the Credit Agreement or any other documents, instruments and
agreements executed and/or delivered in connection therewith.
5. Costs and Expenses. The Company agrees to pay all reasonable
costs, fees and out-of-pocket expenses (including attorneys' fees and expenses
charged to the Agent) incurred by the Agent in connection with the preparation,
execution and enforcement of this Amendment.
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6. Governing Law. This Amendment shall be governed by and construed
in accordance with the internal laws (as opposed to the conflict of law
provisions) of the State of Illinois.
7. Headings. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
8. Counterparts. This Amendment may be executed by one or more of the
parties to the Amendment on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
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IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered on the date first above written.
XXXXXXX WORLDWIDE ASSOCIATES, INC.
By:
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Name:
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Title:
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BANK ONE, NA, formerly known as THE
FIRST NATIONAL BANK OF CHICAGO,
individually and as Agent (Main
Office Chicago)
By:
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Name:
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Title:
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FIRSTAR BANK MILWAUKEE, N.A.
By:
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Name:
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Title:
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M&I XXXXXXXX & ILSLEY BANK
By:
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Name:
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Title:
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THE NORTHERN TRUST COMPANY
By:
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Name:
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Title:
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