EXHIBIT 4.12
WAIVER AND AMENDMENT NO. 2
THIS WAIVER AND AMENDMENT NO. 2 (the "Amendment") is entered
into as of November 6, 1996 by and among XXXXXXX WORLDWIDE ASSOCIATES,
INC. (the "Company"), the undersigned Banks and THE FIRST NATIONAL BANK OF
CHICAGO, as Agent.
W I T N E S S E T H :
WHEREAS, the Company, the Banks and the Agent are parties to
that certain Revolving Credit Agreement dated as of November 29, 1995, as
amended prior to the date hereof (as so amended, the "Agreement");
WHEREAS, the Company is in default under Section 6.03 of the
Agreement due to the Company's failure to maintain, for the four fiscal
quarters ending September 27, 1996, the ratio of Net Income Available for
Fixed Charges to Fixed Charges required to be maintained pursuant to said
Section;
WHEREAS, the Company is in default under certain agreements
(collectively, the "1991 and 1993 Note Agreements") under which the
Company has incurred Indebtedness in excess of $5,000,000 ("Other
Specified Indebtedness") due, in each case, to the Company's failure to
maintain, for the period of four consecutive fiscal quarters ending
September 27, 1996, a certain minimum fixed charge coverage ratio ("Fixed
Charge Coverage Defaults"), and such Fixed Charge Coverage Defaults permit
the maturity of such Other Specified Indebtedness to be accelerated by the
holders thereof;
WHEREAS, Events of Default have occurred under the terms of the
Agreement due to the default under Section 6.03 of the Agreement and the
Fixed Charge Coverage Defaults and the Company has requested that the
Banks waive such Events of Default;
WHEREAS, subject to the terms and conditions hereof, the
undersigned Banks have agreed to grant such waiver; and
WHEREAS, the Company and the undersigned Banks also desire to
amend the Agreement in certain respects more fully described hereinafter;
NOW, THEREFORE, in consideration of the premises herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. Defined Terms. Capitalized terms used herein and not
otherwise defined herein shall have the meanings attributed to such terms
in the Agreement.
2. Waiver. The undersigned Banks hereby waive the Events of
Default arising under clauses (d) and (e) of Article VII of the Agreement
to the extent that such Events of Default result solely from the Company's
default under Section 6.03 of the Agreement and the Fixed Charge Coverage
Defaults, respectively, in each case as at September 27, 1996; provided,
however, that the foregoing waiver shall be effective only until the
occurrence of any acceleration of the maturity of any of the Other
Specified Indebtedness.
3. Amendments to the Agreement.
3.1. The definition of "Net Income Available for Fixed Charges"
set forth in Section 1.01 of the Agreement is hereby amended by deleting
the period at the end thereof and inserting the following in lieu thereof:
"plus (d) (to the extent taken into account in determining
Consolidated Net Income) in the case of the period of time prior
to October 2, 1998, special charges not to exceed $5,000,000
taken in respect of certain distribution center closings and, if
Uwatec A.G. is acquired, certain plant closings, in each case
during such period."
3.2. Section 1.01 of the Agreement is hereby amended by
inserting in proper alphabetical order the following definition:
"Quarterly Date" shall mean the last day of each fiscal
quarter of the Company."
3.3. Section 6.03 of the Agreement is hereby amended to read in
its entirety as follows:
"SECTION 6.03. Fixed Charges Coverage Ratio. The Company
will, as at each Quarterly Date set forth below, have kept and
maintained for the immediately preceding four (or, as at
December 27, 1996, one, or as at March 28, 1997, two, or as at
June 27, 1997, three) fiscal quarters ending on such Quarterly
Date, a ratio of Net Income Available for Fixed Charges to Fixed
Charges of not less than the ratio set forth below opposite such
Quarterly Date:
Quarterly Date Ratio
December 27, 1996 (1.25):1.00
March 28, 1997 1.00:1.00
June 27, 1997 and each Quarterly
Date thereafter 1.50:1.00;
provided that on any four (but only four) Quarterly Dates
occurring during the period from June 27, 1997 to but excluding
the Expiration Date, the ratio of Net Income Available for Fixed
Charges to Fixed Charges for the immediately preceding four
fiscal quarters ending on such Quarterly Dates may be less than
1.5 to 1.0, but must be greater than 1.2 to 1.0."
4. Effective Date. This Amendment shall become effective as
of the date first above written (the "Effective Date") upon receipt by the
Agent of the following:
(i) Counterparts of this Amendment duly executed by the
Company and the Majority Banks.
(ii) For the account of each Bank, an amendment fee in the
amount of 0.10% of the sum of such Bank's Eurocurrency
Commitment and Revolving Loan Commitment.
(iii) Such other documents, in each case in form and
substance satisfactory to the Agent, as the Agent may reasonably
request.
5. Ratification. The Agreement (including, without
limitation, Article XI thereof), as modified and amended hereby, shall
remain in full force and effect and is hereby ratified, approved and
confirmed in all respects.
6. Reference to Agreement. From and after the Effective Date,
each reference in the Agreement to "this Agreement", "hereof", or
"hereunder" or words of like import, and all references to the Agreement
in any and all agreements, instruments, documents, notes, certificates and
other writings of every kind and nature shall be deemed to mean the
Agreement, as modified and amended by this Amendment.
7. Costs and Expenses. The Company agrees to pay all
reasonable costs, fees and out-of-pocket expenses (including attorneys'
fees and time charges of attorneys for the Agent, which attorneys may be
employees of the Agent) incurred by the Agent in connection with the
preparation, execution and enforcement of this Amendment.
8. CHOICE OF LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAWS OF CONFLICTS) OF THE
STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO
NATIONAL BANKS.
9. Execution in Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the Company, the undersigned Banks and the
Agent have executed this Amendment as of the date first above written.
XXXXXXX WORLDWIDE ASSOCIATES,
INC.
By: _________________________________
Title: ______________________
THE FIRST NATIONAL BANK OF
CHICAGO, Individually and as Agent
By: _________________________________
Title: ______________________
FIRSTAR BANK MILWAUKEE, N.A.
By: _________________________________
Title: ______________________
SOCIETE GENERALE
By: _________________________________
Title: ______________________
WACHOVIA BANK OF GEORGIA, N.A.
By: _________________________________
Title: ______________________
M&I XXXXXXXX & ILSLEY BANK
By: _________________________________
Title: ______________________
THE NORTHERN TRUST COMPANY
By: _________________________________
Title: ______________________
