Exhibit 4.3
Xxxxxxx Worldwide Associates, Inc.
First Amendment to Note Agreements
Dated as of October 31, 1996
Re:
Note Agreements Dated as of October 1, 1995
and
$30,000,000 7.77% Senior Notes, Series A
Due October 15, 2005
and
$15,000,000 6.98% Senior Notes, Series B
Due October 15, 2005
Xxxxxxx Worldwide Associates, Inc. First Amendment to Note Agreements
Xxxxxxx Worldwide Associates
0000 Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
First Amendment to Note Agreements
Dated as of October 31, 1996
Re: Note Agreements Dated as of October 1, 1995
and
$30,000,000 7.77% Senior Notes, Series A
Due October 15, 2005
and
$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 First Amendment
to Note Agreement.
Ladies and Gentlemen:
Reference is made to the separate Note Agreements each dated as of
October 1, 1995 (the "Note Agreements"), between Xxxxxxx Worldwide
Associates, Inc., a Wisconsin corporation (the "Company"), and the
Purchasers named therein, under and pursuant to which $30,000,000
aggregate principal amount of 7.77% Senior Notes, Series A, due October
15, 2005 and $15,000,000 6.98% Senior Notes, Series B, due October 15,
2005 (collectively, 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 each of the amendments
set forth below in the manner herein provided:
ARTICLE 1. WAIVER
Section 1.1. Waiver of Cross Defaults under Section 6.1(e). Upon
the proper waiver of any default which shall have occurred under any
indenture, agreement or other instrument pursuant to which any
Indebtedness for borrowed money of the Company or any Restricted
Subsidiary in excess of $3,000,000 was issued, the Noteholders hereby
waive the Events of Default which shall have occurred under Section 6.1(e)
of the Note Agreements.
ARTICLE 2. AMENDMENTS OF NOTE AGREEMENTS
Section 2.1. Amendment of Section 5.9. Section 5.9 of the Note
Agreements shall be amended in its entirety so that the same shall read as
follows:
Section 5.9. Consolidated Tangible Net Worth. The Company will at
all times keep and maintain Consolidated Tangible Net Worth at an
amount not less than $25,000,000; provided, however, that if the
Company incurs any special charges on or before October 2, 1998 as a
result of the closing of certain distribution centers or the closing
of certain plants if Uwatec A.G. is acquired, such special charges in
an aggregate amount not to exceed $5,000,000 shall not be taken into
account for purposes of determining the amount of Consolidated
Tangible Net Worth required to be maintained pursuant to this Section
5.9.
Section 2.2. Amendment of Section 5.15. Subparagraphs (e) and (f)
of Section 5.15 of the Note Agreements shall be amended by changing the
references to "Section Section 5.6 through 5.11" set forth therein to
"Section Section 5.6 through 5.11 and Section 5.16".
Section 2.3. Amendment of Section 5. Section 5 of the Note Agreements
shall be amended by the addition thereto of a new Section 5.16 which
shall read as follows:
Section 5.16. Fixed Charge Coverage Ratio. On October 3, 1997 and
on the last day of each fiscal quarter thereafter, the Company will
have kept and maintained the ratio of Net Income Available for Fixed
Charges to Fixed Charges for the period of four consecutive fiscal
quarters ending on each of such dates at not less than 1.50 to 1.00.
Section 2.4. Amendment of Section 6.1. Subparagraph (f) of Section
6.1 of the Note Agreements shall be amended in its entirety so that the
same shall read as follows:
(f) Default shall occur in the observance or performance of any
covenant or agreement contained in Section 5.6 through Section 5.11
or Section 5.16 hereof; or
Section 2.5. Amendment of Section 8.1. Section 8.1 of the Note
Agreements shall be amended by the addition thereto of three new
definitions which shall read as follows:
"Fixed Charges" for any period shall mean on a consolidated basis the
sum of (i) all Rentals (excluding all Capitalized Rentals) payable
during such period by the Company and its Restricted Subsidiaries,
and (b) all Interest Charges on all Indebtedness (including the
interest component of Capitalized Rentals) of the Company and its
Restricted Subsidiaries.
"Interest Charges" for any period shall mean on a consolidated basis
the sum of all interest and all amortization of debt discount and
expense on any particular Indebtedness for which such calculations
are being made, including the interest component of all Capitalized
Rentals of the Company and its Restricted Subsidiaries. For purposes
of this definition, computations of interest charges on a pro forma
basis for Indebtedness having a variable interest rate shall be
calculated at the rate in effect on the date of any determination.
"Net Income Available for Fixed Charges" for any period shall mean
the sum of (a) Consolidated Net Income during such period plus (to
the extent deducted in determining Consolidated Net Income), (b) all
provisions for any Federal, state or other income taxes made by the
Company and its Restricted Subsidiaries during such period, plus (c)
Fixed Charges during such period, plus (d) in the case of any fiscal
quarter ending on or before October 2, 1998, special charges not to
exceed $5,000,000 taken in respect of the closing of certain
distribution centers, and, if Uwatec A.G. is acquired, the closing of
certain plants, during such period.
ARTICLE 3. MISCELLANEOUS
Section 3.1. Fee. In consideration of the execution and delivery
of this Amendment, the Company agrees to pay to each holder of a Note,
within ten (10) days of the date hereof, its ratable portion of a fee in
the aggregate amount of $45,000.
Section 3.2. 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.
Section 3.3. Effect of Amendment. Except as expressly amended
hereby, the Company agrees that the Note Agreements, the Notes and all
other documents and agreements executed by the Company in connection with
the Note Agreements in favor of the Noteholders are ratified and confirmed
and shall remain in full force and effect and that it has no set-off,
counterclaim or defense with respect to any of the foregoing.
Section 3.4.Successors and Assigns. This First 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 3.5. Requisite Approval; Expenses. This First Amendment to
Note Agreements shall not be effective until (a) the Company and the
holders of 70% in aggregate principal amount of all Notes outstanding on
the date hereof shall have executed this First Amendment to Note
Agreements, and (b) 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 First 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 First Amendment to Note
Agreements.
Section 3.6. Counterparts. This First Amendment to Note Agreements
may be executed in any number of counterparts, each executed counterpart
constituting an original but all together only one agreement.
In Witness Whereof, the Company has executed this First Amendment to
Note Agreements as of the day and year first above written.
Xxxxxxx Worldwide Associates, Inc.
By /s/
Its
This First Amendment to Note Agreements is accepted and agreed to as
of the day and year first above written.
Nationwide Life Insurance Company
By /s/
Its
This First Amendment to Note Agreements is accepted and agreed to as
of the day and year first above written.
Employers Life Insurance Company
of Wausau
By /s/
Its
This First Amendment to Note Agreements is accepted and agreed to as
of the day and year first above written.
Great-West Life & Annuity
Insurance Company
By /s/
Its
By /s/
Its
Schedule I
Outstanding
Principal Amount
of Notes
Nationwide Life Insurance Company $27,000,000
Employers Life Insurance Company of Wausau $3,000,000
Great-West Life & Annuity Insurance Company $15,000,000
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Total $45,000,000
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