LIMITED CONSENT, LIMITED WAIVER AND THIRD AMENDMENT TO
CREDIT AGREEMENT
This LIMITED CONSENT, LIMITED WAIVER AND THIRD AMENDMENT TO CREDIT
AGREEMENT (this "Amendment") is dated as of October 11, 2004 by and among ICON
HEALTH & FITNESS, INC., a Delaware corporation ("Borrower"), the other Credit
Parties signatory hereto, GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware
corporation ("Agent"), for itself as a Lender and as Agent for Lenders, and the
other Lenders signatory hereto. Unless otherwise specified herein, capitalized
terms used in this Amendment shall have the meanings ascribed to them in Annex A
to the Credit Amendment (as hereinafter defined).
RECITALS
WHEREAS, Borrower, the other Credit Parties signatory thereto, Agent and
the Lenders have entered into that certain Credit Agreement, dated as of April
9, 2002 (as amended, supplemented, restated or otherwise modified from time to
time, the "Credit Agreement");
WHEREAS, Borrower has informed the Agent and the Lenders that Borrower
desires to (i) indefinitely postpone the construction of and investment in a new
manufacturing facility in Qingdao, China and the formation of the Qingdao
Subsidiary; (ii) increase its investment in the Xiamen Subsidiary; (iii) cause
its Subsidiary, ICON Cayman to form certain new Chinese Subsidiaries in order to
facilitate the sale and retail distribution of the health and fitness products
manufactured and/or distributed by Borrower and its Subsidiaries, including,
without limitation, the Chinese Subsidiaries and/or third-party contract
manufacturers within the territory of the People's Republic of China; (iv) amend
certain provisions of the Credit Agreement to permit the foregoing transactions;
and (v) increase the Revolving Loan Commitment to Two Hundred Seventy-Five
Million Dollars ($275,000,000) and amend certain other provisions of the Credit
Agreement as set forth herein; and
WHEREAS, Borrower, the other Credit Parties, Agent and the Lenders have
agreed to amend certain provisions of the Credit Agreement as set forth herein.
NOW THEREFORE, in consideration of the foregoing recitals, mutual
agreements contained herein and for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Agent, the Lenders,
Borrower and the Credit Parties agree as follows:
Section 1. Limited Consent. Subject to the terms and conditions set
forth herein and notwithstanding Sections 5.1, 6.1, 6.5 or 6.15 of the Credit
Agreement, the Agent and the Lenders consent to:
(a) The formation by ICON Cayman of (i) a trading company which shall be
a wholly-owned Subsidiary of ICON Cayman incorporated in China and shall operate
in Xiamen and/or Shanghai (the "Chinese Trading Company") and (ii) a retail
sales company which shall be a wholly-owned Subsidiary of ICON Cayman
incorporated in China (the "Chinese Retail Sales Company" and together with the
Chinese Trading Company are collectively, the "Chinese Sales Companies");
provided that ICON Cayman will own 100% of the issued and outstanding Stock of
each of the Chinese Trading Company and the Chinese Retail Sales Company; and
(b) The formation by the Chinese Retail Sales Company of (i) a retail sales
company incorporated in China which shall be a wholly-owned Subsidiary of the
Chinese Retail Sales Company and shall operate in Beijing (the "Beijing Retail
Company"); (ii) a retail sales company incorporated in China which shall be a
wholly-owned Subsidiary of the Chinese Retail Sales Company and shall operate in
Shanghai (the "Shanghai Retail Company") and (iii) a retail sales company
incorporated in China which shall be a wholly-owned Subsidiary of the Chinese
Retail Sales Company and shall operate in Guangzhou (the "Guangzhou Retail
Company" and together with the Beijing Retail Company, the Shanghai Retail
Company and the Chinese Sales Companies are collectively, the "New Chinese
Subsidiaries"); provided that the Chinese Retail Sales Company will own 100% of
the issued and outstanding Stock of each of the Beijing Retail Company, the
Shanghai Retail Company and the Guangzhou Retail Company (it being understood
and agreed by the parties hereto that the Chinese Retail Sales Company may elect
to establish the foregoing retail sales companies as branches of the Chinese
Retail Sales Company instead of being incorporated as wholly-owned Subsidiaries
thereof, in which case the requirements set forth in this clause (b) and Section
2 hereof shall not be applicable and hereby waived with respect to each of the
Beijing Retail Company, the Shanghai Retail Company and the Guangzhou Retail
Company).
Section 2. The consents set forth in Section 1 above shall be effective
upon satisfaction of the following conditions precedent (all documents to be in
form and substance satisfactory to Agent):
(a) Agent shall have received, in form and substance satisfactory to
Agent, a certificate executed by the corporate secretary or an assistant
secretary (or equivalent thereof) of each New Chinese Subsidiary attaching and
certifying (i) the articles of association (or equivalent thereof) of each New
Chinese Subsidiary together with all amendments thereto; and (ii) good standing
certificates (including verification of tax status) (or applicable equivalent)
for each New Chinese Subsidiary in its the state (or province) of incorporation,
certified by the applicable authorized Governmental Authority; and
(b) Agent shall have received, in form and substance satisfactory to
Agent, a memorandum prepared by Sidley Austin Brown & Wood confirming (x)
certain tax benefits available to the New Chinese Subsidiaries, including,
without limitation, (i) the compliance with Chinese tax and other laws of
proposed transfer pricing applicable to the New Chinese Subsidiaries, (ii) VAT
and income tax exemptions and limitations applicable to the New Chinese
Subsidiaries and (iii) the New Chinese Subsidiaries' status as wholly owned
foreign enterprises under Chinese law, and (y) the feasibility of the new
Chinese retail sales structure presented by the New Chinese Subsidiaries under
Chinese foreign exchange control laws and customs laws.
Section 3. Limited Consent. Subject to the terms and conditions set forth
herein and notwithstanding Sections 5.1 or 6.5 of the Credit Agreement, the
Agent and the Lenders consent to the discontinuation of the trampoline business
line of Jumpking.
Section 4. Limited Waivers. The Agent and the Requisite Revolving
Lenders hereby waive any breach or violation of the Credit Agreement (and any
resulting Event of Default) which has occurred solely as a result of Borrower's
failure to comply with (i) the Minimum Fixed Charge Coverage Ratio covenant set
forth in clause (b) of Annex G to the Credit Agreement for the Fiscal Quarter
ending on or about August 31, 2004 and (ii) the Minimum EBITDA covenant set
forth in clause (c) of Annex G to the Credit Agreement for the Fiscal Quarter
ending on or about August 31, 2004.
Section 5. Amendments to Credit Amendment.
(a) The parties hereto agree that Section 1.1(b)(ii) of the Credit
Amendment is hereby amended and restated to read in its entirety as follows:
"(ii) Borrower, Agent and each Lender hereby acknowledge and agree that
as of the date of the Third Amendment (i) the aggregate outstanding principal
balance of the Term Loan equals Twelve Million Five Hundred Thousand Dollars
($12,500,000) (the "Existing Term Loan") and (ii) the aggregate accrued, but
unpaid interest in respect of the Term Loan equals Thirty Four Thousand Three
Hundred Ninety Two Dollars and Forty Cents ($34,392.40) (the "Term Loan Interest
Amount"). Notwithstanding anything to the contrary contained herein, Borrower,
Agent and each Lender hereby acknowledge and agree that on the Third Amendment
Effective Date (i) the entire principal balance of the Existing Term Loan shall
be allocated to and constitute the entire amount of the Fixed Asset
Availability, (ii) the entire principal balance of the Existing Term Loan and
the Term Loan Interest Amount shall be converted into and shall constitute a
portion of the principal balance of the Revolving Loan and that each Revolving
Lender shall be deemed to have fulfilled all of its Revolving Loan Commitment to
provide its Pro Rata Share of such portion of the Revolving Loan by virtue of
such conversion of the entire balance of the Existing Term Loan and the Term
Loan Interest Amount to a portion of the principal balance of the Revolving
Loan, which shall be deemed to be extended by Revolving Lenders to Borrower on
the Third Amendment Effective Date and (iii) as a result of the foregoing
conversion, the Term Loan Commitment is terminated and the Revolving Loan
Commitment of each Revolving Lender shall be deemed to be increased with its
respective Pro Rata Share of the entire principal balance of the Existing Term
Loan and the Term Loan Interest Amount.
Fixed Asset Availability shall be automatically and permanently reduced by
ten (10) consecutive quarterly installments on the last day of February, May,
August and November of each year, commencing November 30, 2004, as follows:
Reduction Installment
Dates Amounts
November 30, 2004 $1,250,000
February 28, 2005 $1,250,000
May 31, 2005 $1,250,000
August 31, 2005 $1,250,000
November 30, 2005 $1,250,000
February 28, 2006 $1,250,000
May 31, 2006 $1,250,000
August 31, 2006 $1,250,000
November 30, 2006 $1,250,000
February 28, 2007 $1,250,000"
(b) The parties hereto agree that Section 1.5(a) of the Credit Amendment
is hereby amended and restated to read in its entirety as follows:
"(a) Borrower shall pay interest in cash to Agent, for the ratable
benefit of Lenders in accordance with the various Loans being made by each
Lender, in arrears on each applicable Interest Payment Date, at the following
rates: (A) with respect to the Revolving Credit Advances, the Index Rate plus
the Applicable Revolver Index Margin per annum or, at the election of Borrower,
the applicable LIBOR Rate plus the Applicable Revolver LIBOR Margin per annum,
based on the aggregate Revolving Credit Advances outstanding from time to time;
and (B) with respect to the Swing Line Loan, the Index Rate plus the Applicable
Revolver Index Margin per annum.
The Applicable Margins are as follows:
Applicable Revolver Index Margin 1.375%
Applicable Revolver LIBOR Margin 2.750%
Applicable L/C Margin 2.000%
Applicable Unused Line Fee Margin
(subject to adjustment in
accordance with Section 1.9(b)) 0.500%
The Applicable Revolver Index Margin and the Applicable Revolver LIBOR
Margin may be adjusted by reference to the following grids:
If Fixed Charge Coverage Ratio is: Level of Applicable Margins:
- ---------------------------------- ----------------------------
Less than 1.25 to 1.00 Level I
Equal to or greater than 1.25 to 1.00 Level II
Level I Level II
------- --------
Applicable Revolver Index Margin 1.375% 1.125%
Applicable Revolver LIBOR Margin 2.750% 2.500%
Adjustments in the Applicable Revolver Index Margin and the Applicable
Revolver LIBOR Margin commencing with the Fiscal Quarter ending on or about May
31, 2005 shall be implemented quarterly on a prospective basis, for each
calendar month commencing at least five (5) days after the date of delivery to
Lenders of the quarterly unaudited or annual audited (as applicable) Financial
Statements evidencing the need for an adjustment. Concurrently with the delivery
of those Financial Statements, Borrower shall deliver to Agent and Lenders a
certificate, signed by its chief financial officer, setting forth in reasonable
detail the basis for the continuance of, or any change in, the Applicable
Revolver Index Margin and the Applicable Revolver LIBOR Margin. Failure to
timely deliver such Financial Statements shall, in addition to any other remedy
provided for in this Agreement, result in an increase in the Applicable Revolver
Index Margin and the Applicable Revolver LIBOR Margin to the highest level set
forth in the foregoing grid, until the first day of the first calendar month
following the delivery of those Financial Statements demonstrating that such an
increase is not required. If an Event of Default has occurred and is continuing
at the time any reduction in the Applicable Revolver Index Margin and the
Applicable Revolver LIBOR Margin is to be implemented, that reduction shall be
deferred until the first day of the first calendar month following the date on
which such Event of Default is waived or cured."
(c) The parties hereto agree that Section 5.12 of the Credit Amendment is
hereby amended and restated to read in its entirety as follows:
"Section 5.12 Sales of Inventory by Chinese Subsidiaries. Borrower
agrees that all Inventory manufactured by or purchased for resale by any of the
Chinese Subsidiaries and intended for resale to Borrower's customers located in
the United States shall be sold to Borrower's customers through Borrower.
Although Chinese Subsidiaries may drop ship Inventory directly to Borrower's
customers, Chinese Subsidiaries shall first sell such Inventory to Borrower
based on purchase orders issued by Borrower to Chinese Subsidiaries and invoices
issued by Chinese Subsidiaries to Borrower; Borrower shall then sell such
Inventory to its customers; Borrower shall issue all invoices to the relevant
Account Debtors; and Borrower shall require that payments on all such invoices
be made to a Depository Account in the United States subject to a Blocked
Account Agreement (reasonably acceptable to Agent) in favor of Agent pursuant to
which the Depository Bank shall have limited set-off rights."
(d) The parties hereto agree that Section 5 of the Credit Amendment is
hereby amended by adding the following new Section 5.13 at the end thereof:
"Section 5.13 Chinese Sales Companies. The Credit Parties hereby agree
that in the event any of the Chinese Sales Companies shall sell export products
manufactured by the Xiamen Subsidiary outside of China, the Credit Parties shall
cause the Xiamen Subsidiary and the Chinese Sales Companies (as applicable) to
execute and deliver to Agent export sales agreements, in form and substance
substantially similar to the form attached to the Third Amendment as Exhibit A,
pursuant to which the Xiamen Subsidiary may sell its export products to the
Chinese Sales Companies, except for finished goods intended for resale to
Borrower's customers located in the United States, which finished goods will be
sold to Borrower for resale to such customers."
(e) The parties hereto agree that clauses (i) and (j) of Section 6.2 of
the Credit Amendment are hereby amended and restated to read in their entirety
as follows:
"(i) Borrower may make investments in Xiamen Subsidiary not to exceed
$10,000,000 in the aggregate (the "Xiamen Subsidiary Investments") on or prior
to November 30, 2004, as follows: (a) Borrower has already made the first
portion of the Xiamen Subsidiary Investments in the amount of $5,000,000 on or
prior to April 15, 2004 and (b) Borrower may make the second portion of the
Xiamen Subsidiary Investments not to exceed $5,000,000 on or prior to November
30, 2004 so long as prior to such investment Agent shall have received, in form
and substance satisfactory to Agent, written evidence that Ming-Tsung Johnny Lee
has provided an additional cash equity contribution of not less than $3,500,000
to the Xiamen Subsidiary; and (j) Borrower may make investments in (a) the
Chinese Retail Sales Company not to exceed $600,000 in the aggregate and (v) the
Chinese Trading Company not to exceed $600,000 in the aggregate."
(f) The parties hereto agree that clause (xi)of Section 6.3(a) of the
Credit Amendment is hereby amended and restated to read in its entirety as
follows and that clause (xii) of Section 6.3(a) of the Credit Amendment is
hereby deleted:
"and (xi) Indebtedness incurred by Xiamen Subsidiary from Bank of China
not to exceed $5,000,000."
(g) The parties hereto agree that the Section 6 of the Credit Amendment
is hereby amended by adding the following new Section 6.21 at the end thereof:
"Section 6.21. ICON Cayman, Cayman Sales Company and Chinese Subsidiaries.
None of the Chinese Subsidiaries, ICON Cayman, Cayman Sales Company or any other
Credit Party shall, without Agent's prior written consent, (i) change or amend
the terms of any of the existing articles of organization, articles of
association, bylaws, shareholders' agreements, operating agreements, consulting
agreements or similar agreements of, or relating to, ICON Cayman, ICON Sales
Company and any Chinese Subsidiary, or (ii) enter into any shareholders'
agreements, operating agreements, consulting agreements or similar agreements
of, or relating to, ICON Cayman, ICON Sales Company and any Chinese Subsidiary."
(h) The parties hereto agree that the first sentence of the second
paragraph of Section 9.2 of the Credit Amendment is hereby amended and restated
to read in its entirety as follows:
"If Agent shall request instructions from Requisite Lenders, Requisite
Revolving Lenders, Supermajority Revolving Lenders or all affected Lenders with
respect to any act or action (including failure to act) in connection with this
Agreement or any other Loan Document, then Agent shall be entitled to refrain
from such act or taking such action unless and until Agent shall have received
instructions from Requisite Lenders, Requisite Revolving Lenders, Supermajority
Revolving Lenders or all affected Lenders, as the case may be, and Agent shall
not incur liability to any Person by reason of so refraining."
(i) The parties hereto agree that the last sentence of the second
paragraph of Section 9.2 of the Credit Amendment is hereby amended and restated
to read in its entirety as follows:
"Without limiting the foregoing, no Lender shall have any right of action
whatsoever against Agent as a result of Agent acting or refraining from acting
hereunder or under any other Loan Document in accordance with the instructions
of Requisite Lenders, Requisite Revolving Lenders, Supermajority Revolving
Lenders or all affected Lenders, as applicable."
(j) The parties hereto agree that the second sentence of Section 9.9(d)
of the Credit Amendment is hereby amended and restated to read in its entirety
as follows:
"Notwithstanding anything set forth herein to the contrary, a Non-Funding
Lender shall not have any voting or consent rights under or with respect to any
Loan Document or constitute a "Lender" or a "Revolving Lender" (or be included
in the calculation of "Requisite Lenders," "Requisite Revolving Lenders" or
"Supermajority Revolving Lenders" hereunder) for any voting or consent rights
under or with respect to any Loan Document."
(k) The parties hereto agree that the first sentence of Section 11.2(a)
of the Credit Amendment is hereby amended and restated to read in its entirety
as follows:
"Except for actions expressly permitted to be taken by Agent, no amendment,
modification, termination or waiver of any provision of this Agreement or any
other Loan Document, or any consent to any departure by any Credit Party
therefrom, shall in any event be effective unless the same shall be in writing
and signed by Agent and Borrower, and by Requisite Lenders, Requisite Revolving
Lenders, Supermajority Revolving Lenders or all affected Lenders, as
applicable."
(l) The parties hereto agree that Section 11.2(b) of the Credit Amendment
is hereby amended by adding the following new sentence at the end thereof:
"No amendment, modification, or waiver of, the definition of Minimum Excess
Availability Reserve" shall be effective unless the same shall be in writing and
signed by Agent, Supermajority Revolving Lenders and Borrower."
(m) The parties hereto agree that clause (vii) in the first sentence of
Section 11.2(c) of the Credit Amendment is hereby amended and restated to read
in its entirety as follows:
"(vii) amend or waive this Section 11.2 or the definitions of the terms
"Requisite Lenders", "Requisite Revolving Lenders" or "Supermajority Revolving
Lenders" insofar as such definitions affect the substance of this Section 11.2;"
(n) The parties hereto agree that Section 11.2(d) of the Credit Amendment
is hereby amended and restated to read in its entirety as follows:
"(d) If, in connection with any proposed amendment, modification, waiver
or termination (a "Proposed Change"):
(i) requiring the consent of all affected Lenders, the consent of
Requisite Lenders is obtained, but the consent of other Lenders whose consent
is required is not obtained (any such Lender whose consent is not obtained as
described in this clause (i) and in clauses (ii) and (iii) below being referred
to as a "Non-Consenting Lender"),
(ii) requiring the consent of Supermajority Revolving Lenders, the
onsent of Requisite Revolving Lenders is obtained, but the consent of
Supermajority Revolving Lenders is not obtained;
(iii) requiring the consent of Requisite Revolving Lenders, the
consent of Revolving Lenders holding 51% or more of the aggregate Revolving Loan
Commitments is obtained, but the consent of Requisite Revolving Lenders is not
obtained, or
(iv) requiring the consent of Requisite Lenders, the consent of
Lenders holding 51% or more of the aggregate Commitments is obtained, but the
consent of Requisite Lenders is not obtained,
then, so long as Agent is not a Non-Consenting Lender, at Borrower's
request Agent, or a Person acceptable to Agent, shall have the right with
Agent's consent and in Agent's sole discretion (but shall have no obligation) to
purchase from such Non-Consenting Lenders, and such Non-Consenting Lenders agree
that they shall, upon Agent's request, sell and assign to Agent or such Person,
all of the Commitments of such Non-Consenting Lenders for an amount equal to the
principal balance of all Loans held by the Non-Consenting Lenders and all
accrued interest and Fees with respect thereto through the date of sale, such
purchase and sale to be consummated pursuant to an executed Assignment
Agreement."
(o) The parties hereto agree to add the following new definitions in Annex
A to the Credit Amendment in alphabetical order:
""Cayman Sales Company" means Xiamen Cowell Industrial Sales, Inc., a
Cayman Islands corporation, the wholly-owned Subsidiary of International
Holdings.
"Chinese Retail Sales Company" shall mean a retail sales company to be
formed subject to the terms and conditions set forth in Sections 1 and 2 of the
Third Amendment, which shall be a wholly-owned Subsidiary of ICON Cayman
incorporated in China.
"Chinese Sales Companies" shall mean the Chinese Retail Sales Company, the
Chinese Trading Company and those certain other new Chinese Subsidiaries to be
formed subject to the terms and conditions set forth in Sections 1 and 2 of the
Third Amendment.
"Chinese Trading Company" shall mean a trading company to be formed subject
to the terms and conditions set forth in Sections 1 and 2 of the Third
Amendment, which shall be a wholly-owned Subsidiary of ICON Cayman incorporated
in China and shall operate in Xiamen and/or Shanghai.
"Fixed Asset Availability" shall mean Twelve Million Five Hundred Thousand
Dollars ($12,500,000), which shall be automatically and permanently reduced
pursuant to Section 1.1(b)(ii) hereof.
"Minimum Excess Availability Reserve" shall mean a special Reserve
established by Agent on the Third Amendment Effective Date and maintained by
Agent until the Termination Date in an amount equal to Twenty Five Million
Dollars ($25,000,000).
"Third Amendment" means that certain Limited Consent, Limited Waiver and
Third Amendment dated as of October 11, 2004 by and among Borrower, Credit
Parties, Agent and the Lenders party thereto.
"Supermajority Revolving Lenders" means Lenders having (a) 80% or more of
the Revolving Loan Commitments of all Lenders, or (b) if the Revolving Loan
Commitments have been terminated, 80% or more of the aggregate outstanding
amount of the Revolving Loan (with the Swing Line Loan being attributed to the
Lender making such Loan) and Letter of Credit Obligations.
"Third Amendment Effective Date" shall mean the date on which each of the
conditions precedent to the effectiveness of the Third Amendment set forth in
Section 6 thereof is satisfied."
(p) The parties hereto agree that the following definitions in Annex A to
the Credit Amendment shall be amended and restated to read in their entirety as
follows:
""Borrowing Base" means, as of any date of determination by Agent, from
time to time, an amount equal to the sum at such time of:
(a) up to eighty-five percent (85%) of the book value of Borrower's
and its domestic and Canadian Subsidiaries' Eligible Accounts, less any Reserves
established by Agent at such time; plus
(b) up to the lesser of (i) sixty percent (60%) (seventy percent
(70%) during the period of July 1 to November 30 of each year) of the book value
of Borrower's and its domestic and Canadian Subsidiaries' Eligible Inventory
valued on a first?in, first?out basis (at the lower of cost or market), less any
Reserves established by Agent at such time or (ii) eighty-five percent (85%)
(ninety-five percent (95%) during the period of July 1 to November 30 of each
year) of the appraised net orderly liquidation value (less liquidation costs in
an amount determined by Agent in its reasonable discretion) of Inventory based
on an appraisal, such appraisal to be conducted by an appraiser acceptable to
Agent and in form and substance satisfactory to Agent; plus
(c) in the sole and absolute discretion of Agent, up to 50% of the
book value of Eligible In-Transit Inventory valued at the lower of cost
(determined on a first-in, first-out basis) or market, excluding individual
shipments (per vessel) with an aggregate book value of less than $250,000; plus
(d) Fixed Asset Availability;
less the Minimum Excess Availability Reserve.
For the purpose of valuing the Collateral of each of Borrower's
Canadian Subsidiaries that is denominated in Canadian Dollars or Borrower's
Accounts that are denominated in pounds sterling or Australian dollars, such
Collateral shall be converted into the Equivalent Amount thereof in Dollars, in
each case, as determined as of the last day of each Fiscal Month unless Agent
has notified Borrower that, in light of recent or expected currency
fluctuations, the conversion shall be made on a more current basis.
"Chinese Subsidiaries" collectively means the Xiamen Subsidiary and
each of the Chinese Sales Companies.
"Commitments" means (a) as to any Lender, the aggregate of such
Lender's Revolving Loan Commitment (including without duplication the Swing Line
Lender's Swing Line Commitment as a subset of its Revolving Loan Commitment) as
set forth on Annex J to the Agreement or in the most recent Assignment Agreement
executed by such Lender and (b) as to all Lenders, the aggregate of all Lenders'
Revolving Loan Commitments (including without duplication the Swing Line
Lender's Swing Line Commitment as a subset of its Revolving Loan Commitment,
which aggregate commitment shall be Two Hundred Seventy-Five Million Dollars
($275,000,000) on the Third Amendment Effective Date, as to each of clauses (a)
and (b), as such Commitments may be reduced, amortized or adjusted from time to
time in accordance with the Agreement.
"Revolving Loan Commitment" means (a) as to any Revolving Lender, the
aggregate commitment of such Revolving Lender to make Revolving Credit Advances
(including without duplication Swing Line Advances as a subset of the Swing Line
Lender's Revolving Loan Commitment) or incur Letter of Credit Obligations as set
forth on Annex J to the Agreement or in the most recent Assignment Agreement
executed by such Revolving Lender and (b) as to all Revolving Lenders, the
aggregate commitment of all Revolving Lenders to make Revolving Credit Advances
(including without duplication Swing Line Advances as a subset of the Swing Line
Lender's Revolving Loan Commitment) or incur Letter of Credit Obligations, which
aggregate commitment shall be Two Hundred Seventy-Five Million Dollars
($275,000,000) on the Third Amendment Effective Date, as such amount may be
adjusted, if at all, from time to time in accordance with the Agreement."
(q) The parties hereto agree that the following sentence is added to the
end of the definition of Eligible In-Transit Inventory: "Inventory in-transit
from any of the Chinese Subsidiaries, which meets the criteria set forth above
shall constitute Eligible In-Transit Inventory only if it is being shipped to
destinations owned or leased by Borrower."
(r) The parties hereto agree that Clause (b) of Annex F to Credit
Agreement is hereby amended and restated to read in its entirety as follows:
"(b) To Lenders, upon Agent's request, and in any event no less
frequently than three (3) Business Days after the end of each month (as of the
last Business Day of each month), a Borrowing Base Certificate, accompanied by
such supporting detail and documentation as shall be requested by Agent in its
reasonable discretion; provided that, so long as Borrowing Availability is less
than $25,000,000, the Borrowing Base and accompanying information will be
provided no less frequently than three (3) Business Days after the end of each
week."
(s) The parties hereto agree that Clauses (a), (b) and (c) of Annex G to
Credit Agreement are hereby amended and restated to read in their entirety as
follows:
"(a) [Intentionally omitted.] (b) [Intentionally omitted.] (c)
[Intentionally omitted.]"
(t) The parties hereto agree that Annex J to Credit Agreement are hereby
amended and restated to read in its entirety as set forth on Annex J attached
hereto.
Section 6. Conditions to Effectiveness. This Amendment shall be effective
upon the satisfaction of each of the below conditions precedent, each in
form and substance satisfactory to Agent: (a) this Amendment shall have
been executed and delivered by Borrower, each of the other Credit
Parties, Agent and each Lender; and
(b) Borrower shall have executed and delivered to Agent new Revolving
Notes for each Lender evidencing the increase in their respective Revolving Loan
Commitments set forth herein.
Section 7. Representations And Warranties Of Credit Parties.
(a) the execution, delivery and performance by each Credit Party of
this Amendment has been duly authorized by all necessary corporate action and
this Amendment is a legal, valid and binding obligation of such Credit Party
enforceable against such Credit Party in accordance with its terms, except as
the enforcement thereof may be subject to (i) the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally and (ii) general principles of equity (regardless of
whether such enforcement is sought in a proceeding in equity or at law);
(b) each of the representations and warranties contained in the Credit
Agreement is true and correct in all material respects on and as of the date
hereof as if made on the date hereof, except to the extent that such
representations and warranties expressly relate to an earlier date; and
(c) neither the execution, delivery and performance of this Amendment
by each Credit Party nor the consummation of the transactions contemplated
hereby does or shall contravene, result in a breach of, or violate (i) any
provision of such Credit Party's certificate or articles of incorporation or
bylaws, (iii) any law or regulation, or any order or decree of any court or
government instrumentality, or (iii) any indenture, mortgage, deed of trust,
lease, agreement or other instrument to which such Credit Party or any of its
Subsidiaries is a party or by which such Credit Party or any of its Subsidiaries
or any of their property is bound, except in any such case to the extent such
conflict or breach has been waived by a written waiver document, a copy of which
has been delivered to Agent on or before the date hereof.
Section 8. Reference To And Effect Upon The Credit Agreement.
(a) Except as specifically set forth above, the Credit Agreement and
the other Loan Documents shall remain in full force and effect and are hereby
ratified and confirmed.
(b) The consents, waivers and amendments set forth in this Amendment are
effective solely for the purposes set forth herein and shall be limited
precisely as written, and shall not be deemed to (i) be a consent to any
amendment, waiver or modification of any other term or condition of the Credit
Agreement or any other Loan Document, (ii) operate as a waiver or otherwise
prejudice any right, power or remedy that the Agent or the Lenders may now have
or may have in the future under or in connection with the Credit Agreement or
any other Loan Document, (iii) be a waiver of any Default or Event of Default
arising out of any other failure of the Credit Parties to comply with the terms
of the Credit Agreement, or (iv) constitute a waiver of or an amendment to any
provision of the Credit Agreement or any Loan Document, except as specifically
set forth herein. Upon the effectiveness of this Amendment, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of similar import shall mean and be a reference to the Credit Agreement as
amended hereby.
Section 9. Costs And Expenses. As provided in Section 11.3 of the Credit
Amendment, Borrower agrees to reimburse Agent for all fees, costs and expenses,
including the fees, costs and expenses of counsel or other advisors for advice,
assistance, or other representation in connection with this Amendment.
Section 10. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAWS
PROVISIONS) OF THE STATE OF ILLINOIS.
Section 11. Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purposes.
Section 12. Counterparts. This Amendment may be executed in any number
of counterparts, each of which when so executed shall be deemed an original,
but all such counterparts shall constitute one and the same instrument.
(signature page follows)
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first written above.
BORROWER
ICON HEALTH & FITNESS, INC.
By:/s/ S. Fred Beck
- ---------------------------------------
Name: S. Fred Beck
- ---------------------------------------
Title: CFO
- ---------------------------------------
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent and Lender
By: Joseph Valallo
- ---------------------------------------
Duly Authorized Signatory
THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Lender
/s/ Arthur R. Cordweller
- ---------------------------------------
By: Arthur R. Cordweller
- ---------------------------------------
Duly Authorized Signatory
JPMORGAN CHASE BANK,
as a Lender
/s/ Thomas N. Vertin
- ---------------------------------------
By: Thomas N. Vertin
- ---------------------------------------
Duly Authorized Signatory
FLEET CAPITAL CORPORATION,
as a Lender
/s/ Daniel P. Corcoran, Jr.
- ---------------------------------------
By: Daniel P. Corcoran, Jr.
- ---------------------------------------
Duly Authorized Signatory
SIEMENS FINANCIAL SERVICES, INC.,
as a Lender
/s/ Frank Amodio
- ---------------------------------------
By: Frank Amodio
- ---------------------------------------
Duly Authorized Signatory
ZIONS FIRST NATIONAL BANK,
as a Lender
/s/ Jim C. Stanchfield
- ---------------------------------------
By: Jim C. Stanchfield
- ---------------------------------------
Duly Authorized Signatory
GMAC COMMERCIAL FINANCE, LLC (f/k/a GMAC
Business Credit, LLC),
as a Lender
/s/ Robert F. McIntyre
- ---------------------------------------
By: Robert F. McIntyre
- ---------------------------------------
Duly Authorized Signatory
WELLS FARGO FOOTHILL, LLC,
as a Lender
/s/ Maged Ghebrail
- ---------------------------------------
By: Maged Ghebrail
- ---------------------------------------
Duly Authorized Signatory
The following Persons are signatories to this Amendment in their capacity
as Credit Parties and not as Borrowers.
HF HOLDINGS, INC.
By: /s/ S. Fred Beck
- ---------------------------------------
Name: S. Fred Beck
- ---------------------------------------
Title: CFO
- ---------------------------------------
JUMPKING, INC.
By: /s/ Charlie B. Alley
- ---------------------------------------
Name: Charlie B. Alley
- ---------------------------------------
Title: Secretary / Treasurer
- ---------------------------------------
ICON INTERNATIONAL HOLDINGS, INC.
By:/s/ Matthew Allen
- ---------------------------------------
Name: Matthew Allen
- ---------------------------------------
Title: President
- ---------------------------------------
UNIVERSAL TECHNICAL SERVICES
By:/s/ Matthew Allen
- ---------------------------------------
Name: Matthew Allen
- ---------------------------------------
Title: President
- ---------------------------------------
ICON DU CANADA INC./ICON OF CANADA INC.
By:/s/ S. Fred Beck
- ---------------------------------------
Name: S. Fred Beck
- ---------------------------------------
Title: Treasurer
- ---------------------------------------
510152 N.B. LTD.
By: /s/ M. Joseph Brough
- ---------------------------------------
Name: M. Joseph Brough
- ---------------------------------------
Title: President
- ---------------------------------------
NORDICTRACK, INC.
By:/s/ Matthew Allen
- ---------------------------------------
Name: Matthew Allen
- ---------------------------------------
Title: President
- ---------------------------------------
ICON IP., INC.
By:/s/ S. Fred Beck
- ---------------------------------------
Name: S. Fred Beck
- ---------------------------------------
Title: President
- ---------------------------------------
FREE MOTION FITNESS, INC.
By:/s/ Brad H. Bearnson
- ---------------------------------------
Name: Brad H. Bearnson
- ---------------------------------------
Title: Secretary
- ---------------------------------------
EXHIBIT A
FORM OF EXPORT SALES AGREEMENT
ANNEX J (from Annex A - Commitments definition)
to
CREDIT AGREEMENT
Lenders:
General Electric Capital Corporation
Revolving Loan Commitment
(including a Swing Line Commitment
of $10,000,000): $110,000,000.00
The CIT Group/Business Credit, Inc.
Revolving Loan Commitment: $25,000,000.00
JPMorgan Chase Bank
Revolving Loan Commitment: $33,000,000.00
Fleet Capital Corporation
Revolving Loan Commitment: $33,000,000.00
Siemens Financial Services, Inc.
Revolving Loan Commitment: $15,000,000.00
Zions First National Bank
Revolving Loan Commitment: $11,500,000.00
GMAC Commercial Finance, LLC
Revolving Loan Commitment: $20,000,000.00
Wells Fargo Foothill, LLC
Revolving Loan Commitment: $27,500,000.00
Document processed with L&W WPClean by Latham & Watkins (L & W) on Tuesday, June
17, 1997 at 8:02 PM
AMENDED AND RESTATED REVOLVING NOTE
Chicago, Illinois
$110,000,000.00 October 11, 2004
FOR VALUE RECEIVED, the undersigned, ICON HEALTH & FITNESS, INC., a
Delaware corporation ("Borrower"), HEREBY PROMISES TO PAY to the order of
GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation ("Lender"), at the
offices of GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation, as
Agent for Lenders ("Agent"), at its address at 500 West Monroe Street, Chicago,
Illinois, 60661, or at such other place as Agent may designate from time to time
in writing, in lawful money of the United States of America and in immediately
available funds, the amount of ONE HUNDRED TEN MILLION DOLLARS AND ZERO CENT
($110,000,000.00) or, if less, the aggregate unpaid amount of all Revolving
Credit Advances made to the undersigned under the "Credit Agreement" (as
hereinafter defined). All capitalized terms used but not otherwise defined
herein have the meanings given to them in the Credit Agreement or in Annex A
thereto.
This Revolving Note is one of the Revolving Notes issued pursuant to that
certain Credit Agreement dated as of April 9, 2002 by and among Borrower, the
other Persons named therein as Credit Parties, Agent and the other Persons
signatory thereto from time to time as Lenders (including all annexes, exhibits
and schedules thereto, and as from time to time amended, restated, supplemented
or otherwise modified, the "Credit Agreement"), and is entitled to the benefit
and security of the Credit Agreement, the Security Agreement and all of the
other Loan Documents referred to therein. Reference is hereby made to the Credit
Agreement for a statement of all of the terms and conditions under which the
Loans evidenced hereby are made and are to be repaid. The date and amount of
each Revolving Credit Advance made by Lenders to Borrower, the rates of interest
applicable thereto and each payment made on account of the principal thereof,
shall be recorded by Agent on its books; provided that the failure of Agent to
make any such recordation shall not affect the obligations of Borrower to make a
payment when due of any amount owing under the Credit Agreement or this Note in
respect of the Revolving Credit Advances made by Lender to Borrower.
The principal amount of the indebtedness evidenced hereby shall be payable
in the amounts and on the dates specified in the Credit Agreement, the terms of
which are hereby incorporated herein by reference. Interest thereon shall be
paid until such principal amount is paid in full at such interest rates and at
such times, and pursuant to such calculations, as are specified in the Credit
Agreement.
If any payment on this Revolving Note becomes due and payable on a day
other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension.
Upon and after the occurrence of any Event of Default, this Revolving Note
may, as provided in the Credit Agreement, and without demand, notice or legal
process of any kind, be declared, and immediately shall become, due and payable.
Time is of the essence of this Revolving Note. Demand, presentment, protest
and notice of nonpayment and protest are hereby waived by Borrower.
Except as provided in the Credit Agreement, this Revolving Note may not be
assigned by Lender to any Person.
THIS REVOLVING NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT
STATE.
This Revolving Note supersedes and replaces the Revolving Note issued by
Borrower to Lender on April 29, 2002 (the "Prior Note"). The Revolving Loans
outstanding under the Prior Note are continuing in all respects. This Revolving
Note does not evidence a novation of, or a repayment and reborrowing of amounts
outstanding under the Prior Note.
[Signature page follows]
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Revolving Note as of the date first written above.
ICON HEALTH & FITNESS, INC.
By: /s/ S. Fred Beck
- -----------------------------------
Title: CFO
- -----------------------------------
Document processed with L&W WPClean by Latham & Watkins (L & W) on Tuesday, June
17, 1997 at 8:02 PM
AMENDED AND RESTATED REVOLVING NOTE
Chicago, Illinois
$25,000,000.00 October 11, 2004
FOR VALUE RECEIVED, the undersigned, ICON HEALTH & FITNESS, INC., a Delaware
corporation ("Borrower"), HEREBY PROMISES TO PAY to the order of THE CIT
GROUP/BUSINESS CREDIT, INC., a New York Corporation ("Lender"), at the offices
of GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation, as Agent for
Lenders ("Agent"), at its address at 500 West Monroe Street, Chicago, Illinois,
60661, or at such other place as Agent may designate from time to time in
writing, in lawful money of the United States of America and in immediately
available funds, the amount of TWENTY FIVE MILLION DOLLARS AND ZERO CENT
($25,000,000.00) or, if less, the aggregate unpaid amount of all Revolving
Credit Advances made to the undersigned under the "Credit Agreement" (as
hereinafter defined). All capitalized terms used but not otherwise defined
herein have the meanings given to them in the Credit Agreement or in Annex A
thereto.
This Revolving Note is one of the Revolving Notes issued pursuant to that
certain Credit Agreement dated as of April 9, 2002 by and among Borrower, the
other Persons named therein as Credit Parties, Agent and the other Persons
signatory thereto from time to time as Lenders (including all annexes, exhibits
and schedules thereto, and as from time to time amended, restated, supplemented
or otherwise modified, the "Credit Agreement"), and is entitled to the benefit
and security of the Credit Agreement, the Security Agreement and all of the
other Loan Documents referred to therein. Reference is hereby made to the Credit
Agreement for a statement of all of the terms and conditions under which the
Loans evidenced hereby are made and are to be repaid. The date and amount of
each Revolving Credit Advance made by Lenders to Borrower, the rates of interest
applicable thereto and each payment made on account of the principal thereof,
shall be recorded by Agent on its books; provided that the failure of Agent to
make any such recordation shall not affect the obligations of Borrower to make a
payment when due of any amount owing under the Credit Agreement or this Note in
respect of the Revolving Credit Advances made by Lender to Borrower.
The principal amount of the indebtedness evidenced hereby shall be payable
in the amounts and on the dates specified in the Credit Agreement, the terms of
which are hereby incorporated herein by reference. Interest thereon shall be
paid until such principal amount is paid in full at such interest rates and at
such times, and pursuant to such calculations, as are specified in the Credit
Agreement.
If any payment on this Revolving Note becomes due and payable on a day
other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension.
Upon and after the occurrence of any Event of Default, this Revolving Note
may, as provided in the Credit Agreement, and without demand, notice or legal
process of any kind, be declared, and immediately shall become, due and payable.
Time is of the essence of this Revolving Note. Demand, presentment, protest
and notice of nonpayment and protest are hereby waived by Borrower.
Except as provided in the Credit Agreement, this Revolving Note may not be
assigned by Lender to any Person.
THIS REVOLVING NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT
STATE.
This Revolving Note supersedes and replaces the Revolving Note issued by
Borrower to Lender on April 9, 2002 (the "Prior Note"). The Revolving Loans
outstanding under the Prior Note are continuing in all respects. This Revolving
Note does not evidence a novation of, or a repayment and reborrowing of amounts
outstanding under the Prior Note.
[Signature page follows]
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Revolving Note as of the date first written above.
ICON HEALTH & FITNESS, INC.
By: /s/ S. Fred Beck
- -----------------------------------
Title: CFO
- -----------------------------------
Document processed with L&W WPClean by Latham & Watkins (L & W) on Tuesday, June
17, 1997 at 8:02 PM
AMENDED AND RESTATED REVOLVING NOTE
Chicago, Illinois
$33,000,000.00 October 11, 2004
FOR VALUE RECEIVED, the undersigned, ICON HEALTH & FITNESS, INC., a
Delaware corporation ("Borrower"), HEREBY PROMISES TO PAY to the order of
JPMORGAN CHASE BANK, a New York banking corporation ("Lender"), at the offices
of GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation, as Agent for
Lenders ("Agent"), at its address at 500 West Monroe Street, Chicago, Illinois,
60661, or at such other place as Agent may designate from time to time in
writing, in lawful money of the United States of America and in immediately
available funds, the amount of THIRTY THREE MILLION DOLLARS AND ZERO CENT
($33,000,000.00) or, if less, the aggregate unpaid amount of all Revolving
Credit Advances made to the undersigned under the "Credit Agreement" (as
hereinafter defined). All capitalized terms used but not otherwise defined
herein have the meanings given to them in the Credit Agreement or in Annex A
thereto.
This Revolving Note is one of the Revolving Notes issued pursuant to that
certain Credit Agreement dated as of April 9, 2002 by and among Borrower, the
other Persons named therein as Credit Parties, Agent and the other Persons
signatory thereto from time to time as Lenders (including all annexes, exhibits
and schedules thereto, and as from time to time amended, restated, supplemented
or otherwise modified, the "Credit Agreement"), and is entitled to the benefit
and security of the Credit Agreement, the Security Agreement and all of the
other Loan Documents referred to therein. Reference is hereby made to the Credit
Agreement for a statement of all of the terms and conditions under which the
Loans evidenced hereby are made and are to be repaid. The date and amount of
each Revolving Credit Advance made by Lenders to Borrower, the rates of interest
applicable thereto and each payment made on account of the principal thereof,
shall be recorded by Agent on its books; provided that the failure of Agent to
make any such recordation shall not affect the obligations of Borrower to make a
payment when due of any amount owing under the Credit Agreement or this Note in
respect of the Revolving Credit Advances made by Lender to Borrower.
The principal amount of the indebtedness evidenced hereby shall be payable
in the amounts and on the dates specified in the Credit Agreement, the terms of
which are hereby incorporated herein by reference. Interest thereon shall be
paid until such principal amount is paid in full at such interest rates and at
such times, and pursuant to such calculations, as are specified in the Credit
Agreement.
If any payment on this Revolving Note becomes due and payable on a day
other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension.
Upon and after the occurrence of any Event of Default, this Revolving Note
may, as provided in the Credit Agreement, and without demand, notice or legal
process of any kind, be declared, and immediately shall become, due and payable.
Time is of the essence of this Revolving Note. Demand, presentment, protest
and notice of nonpayment and protest are hereby waived by Borrower.
Except as provided in the Credit Agreement, this Revolving Note may not be
assigned by Lender to any Person.
THIS REVOLVING NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT
STATE.
This Revolving Note supersedes and replaces the Revolving Note issued by
Borrower to Lender on April 9, 2002 (the "Prior Note"). The Revolving Loans
outstanding under the Prior Note are continuing in all respects. This Revolving
Note does not evidence a novation of, or a repayment and reborrowing of amounts
outstanding under the Prior Note.
[Signature page follows]
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Revolving Note as of the date first written above.
ICON HEALTH & FITNESS, INC.
By: /s/ S. Fred Beck
- -----------------------------------
Title: CFO
- -----------------------------------
Document processed with L&W WPClean by Latham & Watkins (L & W) on Tuesday, June
17, 1997 at 8:02 PM
AMENDED AND RESTATED REVOLVING NOTE
Chicago, Illinois
$33,000,000.00 October 11, 2004
FOR VALUE RECEIVED, the undersigned, ICON HEALTH & FITNESS, INC., a
Delaware corporation ("Borrower"), HEREBY PROMISES TO PAY to the order of FLEET
CAPITAL CORPORATION, a Rhode Island corporation ("Lender"), at the offices of
GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation, as Agent for
Lenders ("Agent"), at its address at 500 West Monroe Street, Chicago, Illinois,
60661, or at such other place as Agent may designate from time to time in
writing, in lawful money of the United States of America and in immediately
available funds, the amount of THIRTY THREE MILLION DOLLARS AND ZERO CENT
($33,000,000.00) or, if less, the aggregate unpaid amount of all Revolving
Credit Advances made to the undersigned under the "Credit Agreement" (as
hereinafter defined). All capitalized terms used but not otherwise defined
herein have the meanings given to them in the Credit Agreement or in Annex A
thereto.
This Revolving Note is one of the Revolving Notes issued pursuant to that
certain Credit Agreement dated as of April 9, 2002 by and among Borrower, the
other Persons named therein as Credit Parties, Agent and the other Persons
signatory thereto from time to time as Lenders (including all annexes, exhibits
and schedules thereto, and as from time to time amended, restated, supplemented
or otherwise modified, the "Credit Agreement"), and is entitled to the benefit
and security of the Credit Agreement, the Security Agreement and all of the
other Loan Documents referred to therein. Reference is hereby made to the Credit
Agreement for a statement of all of the terms and conditions under which the
Loans evidenced hereby are made and are to be repaid. The date and amount of
each Revolving Credit Advance made by Lenders to Borrower, the rates of interest
applicable thereto and each payment made on account of the principal thereof,
shall be recorded by Agent on its books; provided that the failure of Agent to
make any such recordation shall not affect the obligations of Borrower to make a
payment when due of any amount owing under the Credit Agreement or this Note in
respect of the Revolving Credit Advances made by Lender to Borrower.
The principal amount of the indebtedness evidenced hereby shall be payable
in the amounts and on the dates specified in the Credit Agreement, the terms of
which are hereby incorporated herein by reference. Interest thereon shall be
paid until such principal amount is paid in full at such interest rates and at
such times, and pursuant to such calculations, as are specified in the Credit
Agreement. If any payment on this Revolving Note becomes due and payable on a
day other than a Business Day, the maturity thereof shall be extended to the
next succeeding Business Day and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension.
Upon and after the occurrence of any Event of Default, this Revolving Note
may, as provided in the Credit Agreement, and without demand, notice or legal
process of any kind, be declared, and immediately shall become, due and payable.
Time is of the essence of this Revolving Note. Demand, presentment,
protest and notice of nonpayment and protest are hereby waived by Borrower.
Except as provided in the Credit Agreement, this Revolving Note may not be
assigned by Lender to any Person.
THIS REVOLVING NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT
STATE.
This Revolving Note supersedes and replaces the Revolving Note issued by
Borrower to Lender on April 9, 2002 (the "Prior Note"). The Revolving Loans
outstanding under the Prior Note are continuing in all respects. This Revolving
Note does not evidence a novation of, or a repayment and reborrowing of amounts
outstanding under the Prior Note. [Signature page follows]
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Revolving Note as of the date first written above.
ICON HEALTH & FITNESS, INC.
By: /s/ S. Fred Beck
- -----------------------------------
Title: CFO
- -----------------------------------
Document processed with L&W WPClean by Latham & Watkins (L & W) on Tuesday, June
17, 1997 at 8:02 PM
AMENDED AND RESTATED REVOLVING NOTE
Chicago, Illinois
$15,000,000.00 October 11, 2004
FOR VALUE RECEIVED, the undersigned, ICON HEALTH & FITNESS, INC., a
Delaware corporation ("Borrower"), HEREBY PROMISES TO PAY to the order of
SIEMENS FINANCIAL SERVICES, INC. ("Lender"), at the offices of GENERAL ELECTRIC
CAPITAL CORPORATION, a Delaware corporation, as Agent for Lenders ("Agent"), at
its address at 500 West Monroe Street, Chicago, Illinois, 60661, or at such
other place as Agent may designate from time to time in writing, in lawful money
of the United States of America and in immediately available funds, the amount
of FIFTEEN MILLION DOLLARS AND ZERO CENT ($15,000,000.00) or, if less, the
aggregate unpaid amount of all Revolving Credit Advances made to the undersigned
under the "Credit Agreement" (as hereinafter defined). All capitalized terms
used but not otherwise defined herein have the meanings given to them in the
Credit Agreement or in Annex A thereto.
This Revolving Note is one of the Revolving Notes issued pursuant to that
certain Credit Agreement dated as of April 9, 2002 by and among Borrower, the
other Persons named therein as Credit Parties, Agent and the other Persons
signatory thereto from time to time as Lenders (including all annexes, exhibits
and schedules thereto, and as from time to time amended, restated, supplemented
or otherwise modified, the "Credit Agreement"), and is entitled to the benefit
and security of the Credit Agreement, the Security Agreement and all of the
other Loan Documents referred to therein. Reference is hereby made to the Credit
Agreement for a statement of all of the terms and conditions under which the
Loans evidenced hereby are made and are to be repaid. The date and amount of
each Revolving Credit Advance made by Lenders to Borrower, the rates of interest
applicable thereto and each payment made on account of the principal thereof,
shall be recorded by Agent on its books; provided that the failure of Agent to
make any such recordation shall not affect the obligations of Borrower to make a
payment when due of any amount owing under the Credit Agreement or this Note in
respect of the Revolving Credit Advances made by Lender to Borrower.
The principal amount of the indebtedness evidenced hereby shall be payable
in the amounts and on the dates specified in the Credit Agreement, the terms of
which are hereby incorporated herein by reference. Interest thereon shall be
paid until such principal amount is paid in full at such interest rates and at
such times, and pursuant to such calculations, as are specified in the Credit
Agreement.
If any payment on this Revolving Note becomes due and payable on a day
other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension.
Upon and after the occurrence of any Event of Default, this Revolving Note
may, as provided in the Credit Agreement, and without demand, notice or legal
process of any kind, be declared, and immediately shall become, due and payable.
Time is of the essence of this Revolving Note. Demand, presentment, protest
and notice of nonpayment and protest are hereby waived by Borrower.
Except as provided in the Credit Agreement, this Revolving Note may not be
assigned by Lender to any Person.
THIS REVOLVING NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT
STATE.
This Revolving Note supersedes and replaces the Revolving Note issued by
Borrower to Lender on April 29, 2002 (the "Prior Note"). The Revolving Loans
outstanding under the Prior Note are continuing in all respects. This Revolving
Note does not evidence a novation of, or a repayment and reborrowing of amounts
outstanding under the Prior Note.
[Signature page follows]
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Revolving Note as of the date first written above.
ICON HEALTH & FITNESS, INC.
By: /s/ S. Fred Beck
- -----------------------------------
Title: CFO
- -----------------------------------
Document processed with L&W WPClean by Latham & Watkins (L & W) on Tuesday, June
17, 1997 at 8:02 PM
AMENDED AND RESTATED REVOLVING NOTE
Chicago, Illinois
$11,500,000.00 October 11, 2004
FOR VALUE RECEIVED, the undersigned, ICON HEALTH & FITNESS, INC., a
Delaware corporation ("Borrower"), HEREBY PROMISES TO PAY to the order of ZIONS
FIRST NATIONAL BANK, a national banking association ("Lender"), at the offices
of GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation, as Agent for
Lenders ("Agent"), at its address at 500 West Monroe Street, Chicago, Illinois,
60661, or at such other place as Agent may designate from time to time in
writing, in lawful money of the United States of America and in immediately
available funds, the amount of ELEVEN MILLION FIVE HUNDRED THOUSAND DOLLARS AND
ZERO CENT ($11,500,000.00) or, if less, the aggregate unpaid amount of all
Revolving Credit Advances made to the undersigned under the "Credit Agreement"
(as hereinafter defined). All capitalized terms used but not otherwise defined
herein have the meanings given to them in the Credit Agreement or in Annex A
thereto.
This Revolving Note is one of the Revolving Notes issued pursuant to that
certain Credit Agreement dated as of April 9, 2002 by and among Borrower, the
other Persons named therein as Credit Parties, Agent and the other Persons
signatory thereto from time to time as Lenders (including all annexes, exhibits
and schedules thereto, and as from time to time amended, restated, supplemented
or otherwise modified, the "Credit Agreement"), and is entitled to the benefit
and security of the Credit Agreement, the Security Agreement and all of the
other Loan Documents referred to therein. Reference is hereby made to the Credit
Agreement for a statement of all of the terms and conditions under which the
Loans evidenced hereby are made and are to be repaid. The date and amount of
each Revolving Credit Advance made by Lenders to Borrower, the rates of interest
applicable thereto and each payment made on account of the principal thereof,
shall be recorded by Agent on its books; provided that the failure of Agent to
make any such recordation shall not affect the obligations of Borrower to make a
payment when due of any amount owing under the Credit Agreement or this Note in
respect of the Revolving Credit Advances made by Lender to Borrower.
The principal amount of the indebtedness evidenced hereby shall be payable
in the amounts and on the dates specified in the Credit Agreement, the terms of
which are hereby incorporated herein by reference. Interest thereon shall be
paid until such principal amount is paid in full at such interest rates and at
such times, and pursuant to such calculations, as are specified in the Credit
Agreement.
If any payment on this Revolving Note becomes due and payable on a day
other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension.
Upon and after the occurrence of any Event of Default, this Revolving Note
may, as provided in the Credit Agreement, and without demand, notice or legal
process of any kind, be declared, and immediately shall become, due and payable.
Time is of the essence of this Revolving Note. Demand, presentment, protest
and notice of nonpayment and protest are hereby waived by Borrower.
Except as provided in the Credit Agreement, this Revolving Note may not be
assigned by Lender to any Person.
THIS REVOLVING NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT
STATE.
This Revolving Note supersedes and replaces the Revolving Note issued by
Borrower to Lender on April 29, 2002 (the "Prior Note"). The Revolving Loans
outstanding under the Prior Note are continuing in all respects. This Revolving
Note does not evidence a novation of, or a repayment and reborrowing of amounts
outstanding under the Prior Note.
[Signature page follows]
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Revolving Note as of the date first written above.
ICON HEALTH & FITNESS, INC.
By: /s/ S. Fred Beck
- -----------------------------------
Title: CFO
- -----------------------------------
Document processed with L&W WPClean by Latham & Watkins (L & W) on Tuesday, June
17, 1997 at 8:02 PM
AMENDED AND RESTATED REVOLVING NOTE
Chicago, Illinois
$20,000,000.00 October 11, 2004
FOR VALUE RECEIVED, the undersigned, ICON HEALTH & FITNESS, INC., a
Delaware corporation ("Borrower"), HEREBY PROMISES TO PAY to the order of GMAC
COMMERCIAL FINANCE, LLC (f/k/a GMAC Business Credit, LLC) ("Lender"), at the
offices of GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation, as
Agent for Lenders ("Agent"), at its address at 500 West Monroe Street, Chicago,
Illinois, 60661, or at such other place as Agent may designate from time to time
in writing, in lawful money of the United States of America and in immediately
available funds, the amount of TWENTY MILLION DOLLARS AND ZERO CENT
($20,000,000.00) or, if less, the aggregate unpaid amount of all Revolving
Credit Advances made to the undersigned under the "Credit Agreement" (as
hereinafter defined). All capitalized terms used but not otherwise defined
herein have the meanings given to them in the Credit Agreement or in Annex A
thereto.
This Revolving Note is one of the Revolving Notes issued pursuant to that
certain Credit Agreement dated as of April 9, 2002 by and among Borrower, the
other Persons named therein as Credit Parties, Agent and the other Persons
signatory thereto from time to time as Lenders (including all annexes, exhibits
and schedules thereto, and as from time to time amended, restated, supplemented
or otherwise modified, the "Credit Agreement"), and is entitled to the benefit
and security of the Credit Agreement, the Security Agreement and all of the
other Loan Documents referred to therein. Reference is hereby made to the Credit
Agreement for a statement of all of the terms and conditions under which the
Loans evidenced hereby are made and are to be repaid. The date and amount of
each Revolving Credit Advance made by Lenders to Borrower, the rates of interest
applicable thereto and each payment made on account of the principal thereof,
shall be recorded by Agent on its books; provided that the failure of Agent to
make any such recordation shall not affect the obligations of Borrower to make a
payment when due of any amount owing under the Credit Agreement or this Note in
respect of the Revolving Credit Advances made by Lender to Borrower.
The principal amount of the indebtedness evidenced hereby shall be payable
in the amounts and on the dates specified in the Credit Agreement, the terms of
which are hereby incorporated herein by reference. Interest thereon shall be
paid until such principal amount is paid in full at such interest rates and at
such times, and pursuant to such calculations, as are specified in the Credit
Agreement.
If any payment on this Revolving Note becomes due and payable on a day
other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension.
Upon and after the occurrence of any Event of Default, this Revolving Note
may, as provided in the Credit Agreement, and without demand, notice or legal
process of any kind, be declared, and immediately shall become, due and payable.
Time is of the essence of this Revolving Note. Demand, presentment, protest
and notice of nonpayment and protest are hereby waived by Borrower.
Except as provided in the Credit Agreement, this Revolving Note may not be
assigned by Lender to any Person.
THIS REVOLVING NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT
STATE.
This Revolving Note supersedes and replaces the Revolving Note issued by
Borrower to Lender on April 29, 2002 (the "Prior Note"). The Revolving Loans
outstanding under the Prior Note are continuing in all respects. This Revolving
Note does not evidence a novation of, or a repayment and reborrowing of amounts
outstanding under the Prior Note.
[Signature page follows]
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Revolving Note as of the date first written above.
ICON HEALTH & FITNESS, INC.
By: /s/ S. Fred Beck
- -----------------------------------
Title: CFO
- -----------------------------------
Document processed with L&W WPClean by Latham & Watkins (L & W) on Tuesday, June
17, 1997 at 8:02 PM
AMENDED AND RESTATED REVOLVING NOTE
Chicago, Illinois
$27,500,000.00 October 11, 2004
FOR VALUE RECEIVED, the undersigned, ICON HEALTH & FITNESS, INC., a
Delaware corporation ("Borrower"), HEREBY PROMISES TO PAY to the order of WELLS
FARGO FOOTHILL, LLC ("Lender"), at the offices of GENERAL ELECTRIC CAPITAL
CORPORATION, a Delaware corporation, as Agent for Lenders ("Agent"), at its
address at 500 West Monroe Street, Chicago, Illinois, 60661, or at such other
place as Agent may designate from time to time in writing, in lawful money of
the United States of America and in immediately available funds, the amount of
TWENTY SEVEN MILLION FIVE HUNDRED THOUSAND DOLLARS AND ZERO CENT
($27,500,000.00) or, if less, the aggregate unpaid amount of all Revolving
Credit Advances made to the undersigned under the "Credit Agreement" (as
hereinafter defined). All capitalized terms used but not otherwise defined
herein have the meanings given to them in the Credit Agreement or in Annex A
thereto.
This Revolving Note is one of the Revolving Notes issued pursuant to that
certain Credit Agreement dated as of April 9, 2002 by and among Borrower, the
other Persons named therein as Credit Parties, Agent and the other Persons
signatory thereto from time to time as Lenders (including all annexes, exhibits
and schedules thereto, and as from time to time amended, restated, supplemented
or otherwise modified, the "Credit Agreement"), and is entitled to the benefit
and security of the Credit Agreement, the Security Agreement and all of the
other Loan Documents referred to therein. Reference is hereby made to the Credit
Agreement for a statement of all of the terms and conditions under which the
Loans evidenced hereby are made and are to be repaid. The date and amount of
each Revolving Credit Advance made by Lenders to Borrower, the rates of interest
applicable thereto and each payment made on account of the principal thereof,
shall be recorded by Agent on its books; provided that the failure of Agent to
make any such recordation shall not affect the obligations of Borrower to make a
payment when due of any amount owing under the Credit Agreement or this Note in
respect of the Revolving Credit Advances made by Lender to Borrower.
The principal amount of the indebtedness evidenced hereby shall be payable
in the amounts and on the dates specified in the Credit Agreement, the terms of
which are hereby incorporated herein by reference. Interest thereon shall be
paid until such principal amount is paid in full at such interest rates and at
such times, and pursuant to such calculations, as are specified in the Credit
Agreement.
If any payment on this Revolving Note becomes due and payable on a day
other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension.
Upon and after the occurrence of any Event of Default, this Revolving Note
may, as provided in the Credit Agreement, and without demand, notice or legal
process of any kind, be declared, and immediately shall become, due and payable.
Time is of the essence of this Revolving Note. Demand, presentment, protest
and notice of nonpayment and protest are hereby waived by Borrower.
Except as provided in the Credit Agreement, this Revolving Note may not be
assigned by Lender to any Person.
THIS REVOLVING NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT
STATE.
This Revolving Note supersedes and replaces the Revolving Note issued by
Borrower to Lender on June 16, 2003 (the "Prior Note"). The Revolving Loans
outstanding under the Prior Note are continuing in all respects. This Revolving
Note does not evidence a novation of, or a repayment and reborrowing of amounts
outstanding under the Prior Note.
[Signature page follows]
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Revolving Note as of the date first written above.
ICON HEALTH & FITNESS, INC.
By: /s/ S. Fred Beck
- -----------------------------------
Name: S. Fred Beck
- -----------------------------------
Title: CFO
- -----------------------------------