Exhibit 4.10
XXXXXXX WORLDWIDE ASSOCIATES
0000 Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
FIRST AMENDMENT TO NOTE AGREEMENT
Dated as of January 10, 2000
Re: Note Agreement dated as of September 15, 1997
and
$25,000,000 7.15% Senior Notes
Due October 15, 2007
The Northwestern Mutual Life
Insurance Company
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to the Note Agreement dated as of September 15,
1997, (the "Note Agreement") between Xxxxxxx Worldwide Associates, Inc., a
Wisconsin corporation (the "Company"), and you, under and pursuant to which
$25,000,000 aggregate principal amount of 7.15% Senior Notes, due October 15,
2007, of the Company were originally issued. Terms used but not otherwise
defined herein shall have the meanings set forth in the Note Agreement.
The Company hereby requests that you accept each of the amendments set
forth below in the manner herein provided:
ARTICLE 1
AMENDMENTS TO NOTE AGREEMENT
Section 1.1. Section 2.1(b) of the Note Agreement 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) 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) 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 $6,200,000 to the holders of the Notes as a partial
prepayment on the Notes, together with accrued interest to
the date of prepayment, 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, 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 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 Notes then held by such
holder on the Prepayment Date. The prepayment price of any
Notes payable upon 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.
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Section 1.3. Section 5.6(e) of the Note Agreement 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 term:
"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 (v) (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
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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. First Amendment to Note Agreement is Legal and
Authorized.
(a) The execution and delivery of the First Amendment to Note
Agreement by the Company and compliance by the Company with all of the
provisions of the Note Agreement, as amended by the First Amendment to Note
Agreement --
(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 First Amendment to Note
Agreement 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
First Amendment to Note Agreement has been executed and delivered by the Company
and the Note Agreement, as amended by the First Amendment to Note Agreement,
constitutes the legal, valid and binding obligation, contract and agreement of
the Company enforceable in accordance with its terms.
Section 2.2. No Defaults. Upon effectiveness of this First Amendment
to Note Agreement no Default or Event of Default will exist or be continuing.
ARTICLE 3
CONDITIONS PRECEDENT
This First Amendment to Note Agreement shall be effective as of
January 10, 2000 upon satisfaction of the conditions precedent set forth below.
The closing date for this First Amendment to Note Agreement (the "Closing Date")
shall be subject to the fulfillment by the Company of the following conditions
precedent:
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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 Noteholder. The Company shall have paid to you a
fee of 37.5 basis points ($93,750) on the principal amount of the Notes
outstanding as of January 10, 2000.
Section 3.3. Opinion. Xxxxx & Xxxxxxx 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 First
Amendment to Note Agreement.
Section 3.4. Other Amendment. The Fourth Amendment to Note Agreements
dated as of October 1, 1995 shall have been executed and delivered in
substantially the same form as this First Amendment to Note Agreement.
ARTICLE 4
MISCELLANEOUS
Section 4.1. Ratification of Note Agreement. Except as herein
expressly amended, the Note Agreement is in all respects ratified and confirmed.
If and to the extent that any of the terms or provisions of the Note Agreement
is in conflict or inconsistent with any of the terms or provisions of this First
Amendment to Note Agreement, this First Amendment to Note Agreement shall
govern.
Section 4.2. Counterparts. This First Amendment to Note Agreement 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 Agreement. Any and all notices,
requests, certificates and any other instruments, including the Notes, may refer
to the Note Agreement or the Note Agreement dated as of September 15, 1997,
without making specific reference to this First Amendment to Note Agreement, but
all such references shall be deemed to include this First Amendment to Note
Agreement.
Section 4.4. Governing Law. The Note Agreement as amended by this
First Amendment to Note Agreement and the Notes shall be governed by and
construed in accordance with Wisconsin law, including all matters of
construction, validity and performance.
Section 4.5. Successors and Assigns. This First Amendment to Note
Agreement shall be binding upon the Company and its successors and assigns and
shall inure to your benefit 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 First Amendment to
Note Agreement as of the day and year first above written.
XXXXXXX WORLDWIDE ASSOCIATES, INC.
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President and
Chief Financial Officer,
Secretary and Treasurer
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This First Amendment to Note Agreement is accepted and agreed to as of
the day and year first above written.
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Its Authorized Representative
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