Exhibit 4.9
XXXXXXX WORLDWIDE ASSOCIATES, INC.
THIRD AMENDMENT TO NOTE AGREEMENTS
Dated as of October 3, 1997
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
0000 Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
THIRD AMENDMENT TO NOTE AGREEMENTS
Dated as of October 3, 1997
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 Third Amendment
to Note Agreement.
Ladies and Gentlemen:
Reference is made to the separate Note Agreements each dated as of
October 1, 1995, as amended by the First Amendment dated as of October 31,
1996 and the Second Amendment to Note Agreement dated as of September 30,
1997, (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. AMENDMENTS OF NOTE AGREEMENTS
Section 1.1. Section 5.6(a)(3) of the Note Agreements shall be
amended in its entirety to read as follows:
(3) Current Debt or Funded Debt of the Company and its
Restricted Subsidiaries; provided that at the time of creation,
issuance, assumption, guarantee or incurrence thereof and after
giving effect thereto and to the application of the proceeds thereof,
Consolidated Funded Debt would not exceed 55% of Consolidated Total
Capitalization, provided that for purposes of any determination of
additional Funded Debt to be issued or incurred within the limitation
of this Section 5.6(a)(3), the Average Outstanding Balance of
Consolidated Current Debt (as defined in Section 5.6(e) below)
computed for the Compliance Period (as defined in Section 5.6(e)
below) 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, except to the extent that
any such Current Debt was refinanced with Funded Debt, in which case
such Current Debt, to the extent it was refinanced with Funded Debt,
will not be deemed to constitute Funded Debt, shall be deemed
outstanding at all times prior to the end of the next Compliance
Period; and
Section 1.2. Section 5.9 of the Note Agreements shall be amended
in its entirety to read as follows:
Section 5.9. Consolidated Net Worth. The Company will at
all times keep and maintain Consolidated Net Worth at an amount not
less than $100,000,000; provided that Charges for Identified
Dispositions shall not be taken into account for purposes of
determining the amount of Consolidated Net Worth maintained by the
Company for purposes of calculations pursuant to this Section 5.9.
As used in this Section 5.9, "Charges for Identified Dispositions"
shall mean charges taken by the Company on or prior to October 2,
1998 in an aggregate amount not in excess of $5,000,000 and relating
to (i) the closing of certain distribution centers and other
facilities owned or operated by Uwatec AG and its subsidiaries, and
(ii) the disposition of the Airguide Instrument Company.
Section 1.3. Section 5.16 of the Note Agreements shall be amended
in its entirety to read as follows:
5.16. Fixed Charge Coverage Ratio. The Company will keep
and maintain the Fixed Charge Coverage Ratio at not less than 1.5 to
1; provided that on not more than four occasions (including the
quarter ending October 3, 1997) the Fixed Charge Coverage Ratio can
be less than 1.5 to 1 so long as it is greater than 1.2 to 1. As
used in this Section 5.16, "Fixed Charge Coverage Ratio" shall mean
the ratio of (i) Net Income Available for Fixed Charges to (ii) Fixed
Charges determined as of the end of each fiscal quarter for the
period consisting of the immediately preceding four fiscal quarters
(each such rolling four fiscal quarter period being treated as a
single accounting period).
ARTICLE 2. MISCELLANEOUS
Section 2.1. 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 2.2. 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 2.3. Successors and Assigns. This Third 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 2.4. Requisite Approval; Expenses. This Third 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 Third Amendment to Note
Agreements, (b) the Company shall have paid a fee in the aggregate amount
of $225,000 (pro rata based on the unpaid principal amount of the Notes
held by each holder) to the holders of the Notes, and (c) 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
Third 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 Third Amendment to Note Agreements.
Section 2.5. Counterparts. This Third 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 Third Amendment to
Note Agreements as of the day and year first above written.
XXXXXXX WORLDWIDE ASSOCIATES, INC.
By__________________________
Its
This Third Amendment to Note Agreements is accepted and agreed to as
of the day and year first above written.
NATIONWIDE LIFE INSURANCE COMPANY
By_______________________________
Its
This Third 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_____________________________
Its
This Third 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 _____________________________
Its
By ____________________________
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
-----------
TOTAL $45,000,000
