Exhibit 4.9
▇▇▇▇▇▇▇ WORLDWIDE ASSOCIATES
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
FOURTH AMENDMENT TO NOTE AGREEMENTS
Dated as of January 10, 2000
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 Purchasers Named
on Schedule I hereto
Ladies and Gentlemen:
Reference is made to the separate Note Agreements dated as of October
1, 1995, as amended by that certain First Amendment to Note Agreements dated as
of October 31, 1996, and that Second Amendment to Note Agreements dated as of
September 30, 1997 and that Third Amendment to Note Agreements dated as of
October 3, 1997 (the Note Agreements as amended the "Note Agreements") between
▇▇▇▇▇▇▇ Worldwide Associates, Inc., a Wisconsin corporation (the "Company"), and
each of you, under and pursuant to which $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, 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 each of you accept each of the
amendments set forth below in the manner herein provided:
ARTICLE 1
AMENDMENTS TO NOTE AGREEMENTS
Section 1.1. Section 2.1(c) of the Note Agreements is hereby amended
by restating the second paragraph thereof as follows:
"In the event the Company shall prepay less than all of the Notes
pursuant to Section 2.2 or repurchase any Notes in accordance with Section 5.12,
the principal amount of each required
prepayment of the Notes becoming due under Section 2.1(a) and Section 2.1(b) on
and after the date of such prepayment or purchase shall be reduced by crediting
such prepayments first, against the amount due at the final maturity of the
Notes being prepaid then, against the prepayments required by Section 2.1(a) or
Section 2.1(b), as the case may be, in the inverse order of the due dates of
such prepayments."
Section 1.2. Section 2 of the Note Agreement is hereby amended by
adding two new sections 2.7 and 2.8 thereto, reading in their entirety as
follows:
Section 2.7. Application of Proceeds of Designated
Sale; Partial Prepayment of Notes. The Company expects to
receive net cash proceeds of approximately $34,500,000 from
the Designated Sale. Upon closing of the Designated Sale (i)
such proceeds in an amount not less than $18,500,000 will be
applied to the repayment of current debt and proceeds in the
amount of $16,000,000 will be applied to the prepayment of
long-term debt (including the Notes) and (ii) the Company
will pay $9,800,000 to the holders of the Notes (payable to
each holder as set forth on Schedule I to the Fourth
Amendment to this Note Agreement) as a partial prepayment on
the Notes, together with accrued interest on such amount to
the date of payment, but without any Make-Whole Amount.
Section 2.8. Prepayment of Notes Upon Failure to
Close Designated Sale. In the event that for any reason the
Designated Sale does not occur, the Company will give
written notice of such fact (the "Company Notice") in the
manner provided in Section 9.6 to the holders of the Notes.
The Company Notice shall be delivered promptly after the
Company determines that the Designated Sale will not close
and in any event no later than May 2, 2000. The Company
Notice shall (a) make reference to the fact that the
Designated Sale has not closed, (b) make reference to this
Section 2.8 and the right of the holders of the Notes to
require prepayment of the Notes on the terms and conditions
provided for in this Section 2.8, (c) offer in writing to
prepay the outstanding Notes held by each holder of the
Notes of both Series, together with accrued interest to the
date of prepayment and an amount equal to the then
applicable Make-Whole Amount and (d) specify the date for
such prepayment (the "Prepayment Date"), which shall be no
later than June 30, 2000. Each holder of outstanding Notes
of each respective Series of Notes shall have the right, by
written notice given to the Company not later than ten days
after receipt of the Company Notice, to demand that the
Company prepay, and the Company will prepay, all (but not
less than all) of the respective Series of Notes then held
by such holder on the Prepayment Date. The prepayment price
of any Notes payable
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upon the Prepayment Date shall be an amount equal to 100% of
the principal amount of the Notes so to be prepaid and
accrued interest thereon to the Prepayment Date, together
with an amount equal to the then applicable Make-Whole
Amount, determined as of three business days prior to the
Prepayment Date.
Section 1.3. Section 5.6(e) of the Note Agreements is hereby amended
by the addition of a new sentence to the definition of "Average Outstanding
Balance of Consolidated Current Debt" which shall read as follows:
"For purposes of calculation of the Average Outstanding
Balance of Consolidated Current Debt for the Compliance
Period ending October 1, 1999, Consolidated Current Debt
shall be reduced by the amount of $18,500,000."
Section 1.4. Section 5.8 of the Note Agreements is hereby amended by
the addition thereto of a new Section 5.8(e) as follows:
(e) Notwithstanding any other provision of this
Section 5.8, (i) the Company or any Subsidiary engaged in
the recreational fishing business of the Company ("Fishing
Subsidiary") may sell, transfer or otherwise dispose of all
or part of the stock or assets of the recreational fishing
business of the Company or such Fishing Subsidiary and (ii)
any Fishing Subsidiary may consolidate or merge with any
other corporation in connection with the Designated Sale.
The sale of stock or assets permitted by this Section 5.8(e)
shall not be taken into account for purposes of calculating
the limitations on permitted sales of assets and stock set
forth in Section 5.8(b)(1) and the proviso at the end of
Section 5.8(c).
Section 1.5. Section 5.9 is hereby amended in its entirety 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 the sum of (a) $90,000,000 plus
(b) an aggregate amount equal to 25% of its Consolidated Net
Income (but, in each case, only if a positive number) for
each completed fiscal year beginning with the fiscal year
ending September 29, 2000; 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."
Section 1.6. Section 8.1 is hereby amended to add the following
defined terms:
"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 (A) the closing of certain distribution centers
and other facilities owned or operated by Uwatec AG
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and its subsidiaries, and (B) the disposition of the
Airguide Instrument Company.
"Designated Sale" shall mean the sale by the
Company of all or part of the recreational fishing business
of the Company to Berkley, Inc. for net cash proceeds of
approximately $34,500,000 expected to be consummated prior
to April 30, 2000.
Section 1.7. Section 8.1 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 into account in
determining Consolidated Net Income for any fiscal quarter
ending on or after December 31, 1999) an amount equal to the
charge taken during the fiscal quarter ended December 31,
1999 in respect of the book loss of up to $24,000,000
incurred in connection with the proposed disposition of the
Company's recreational fishing business included in the
Designated Sale"
ARTICLE 2
WARRANTIES AND REPRESENTATIONS
The Company represents and warrants that as of the Closing Date:
Section 2.1. Fourth Amendment to Note Agreements is Legal and
Authorized.
(a) The execution and delivery of the Fourth 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 Fourth 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 Fourth 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 Fourth Amendment to Note Agreements has been executed and delivered by the
Company and the Note Agreements, as amended by the Fourth Amendment to Note
Agreements, constitutes the legal, valid and binding obligation, contract and
agreement of the Company enforceable in accordance with its terms.
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Section 2.2. No Defaults. Upon effectiveness of this Fourth Amendment
to Note Agreements no Default or Event of Default will exist or be continuing.
ARTICLE 3
CONDITIONS PRECEDENT
This Fourth Amendment to Note Agreements shall be effective as of
January 10, 2000 upon the fulfillment by the Company of the conditions precedent
set forth below. The closing date for this Fourth Amendment to Note Agreements
(the "Closing Date") shall be subject to the fulfillment by the Company of the
following conditions precedent:
Section 3.1. Payment of Special Counsel Fees. The Company shall have
paid the reasonable fees and disbursements of your special counsel for which the
Company shall have received an invoice at least one business day prior to the
Closing Date.
Section 3.2. Fee to Noteholders. The Company shall have paid to each
of you a fee of 37.5 basis points on the principal amount of the Notes
outstanding as of January 10, 2000 and which will be in the amount listed
opposite your name on Schedule I hereto.
Section 3.3. Opinion. ▇▇▇▇▇ & ▇▇▇▇▇▇▇ shall have delivered to you
their favorable opinion in a form reasonably satisfactory to you with respect to
the due authorization, execution and delivery and enforceability of this Fourth
Amendment to Note Agreement.
Section 3.4. Other Amendment. The First Amendment to Note Agreement
dated as of September 15, 1997 shall have been executed and delivered in
substantially the same form as this Fourth Amendment to Note Agreements.
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 Fourth Amendment to Note Agreements, this Fourth Amendment to Note
Agreements shall govern.
Section 4.2. Counterparts. This Fourth Amendment to Note Agreements
may be simultaneously executed in any number of counterparts, and all such
counterparts together, each as an original, shall constitute but one and the
same instrument.
Section 4.3. Reference to the Note Agreements. Any and all notices,
requests, certificates and any other instruments, including the Notes, may refer
to the Note Agreements or the Note Agreements dated as of October 15, 1995,
without making specific reference to this Fourth Amendment to Note Agreements,
but all such references shall be deemed to include this Fourth Amendment to Note
Agreements.
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Section 4.4. Requisite Approval; Expenses. This Fourth Amendment to
the Note Agreements shall not be effective until (a) the Company and the holders
of 100% in aggregate principal amount of all the Notes outstanding on the date
hereof shall have executed this Fourth 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
Fourth Amendment to Note Agreements, including, without limitation, the fees,
expenses and disbursements of counsel to the Noteholders which are reflected in
statements of such counsel rendered on or prior to the effective date of this
Fourth Amendment to Note Agreements.
Section 4.5. Governing Law. The Note Agreements as amended by this
Fourth 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.
Section 4.6. Successors and Assigns. This Fourth Amendment to Note
Agreements shall be binding upon the Company and its successors and assigns and
shall inure to the benefit of each of you and to the benefit of your successors
and assigns, including each successive holder or holders of any Notes.
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IN WITNESS WHEREOF, the Company has executed this Fourth Amendment to
Note Agreements as of the day and year first above written.
▇▇▇▇▇▇▇ WORLDWIDE ASSOCIATES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
and Chief Financial
Officer, Secretary and
Treasurer
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This Fourth Amendment to Note Agreements is accepted and agreed to as
of the day and year first above written.
NATIONWIDE LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Associate Vice President
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This Fourth 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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Investments
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
Investments
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SCHEDULE I
Name of Purchaser Prepayment Amount Fee
----------------- ----------------- ---
Nationwide Life Insurance $6,700,000 $101,250
Company
Great-West Life & Annuity $3,100,000 $ 46,875
Insurance Company
