CONSENT AND AMENDMENT NO. 2 TO REVOLVING CREDIT AGREEMENT
This Consent and Amendment No. 2 to Revolving Credit Agreement dated as
of November 30, 2006 (this "Agreement") is entered into among ICON Health &
Fitness, Inc., a Delaware corporation (the "Borrower"), the other Credit Parties
signatory hereto, the lenders party hereto (the "Lenders") and Bank of America,
N.A., as agent for the Lenders (the "Administrative Agent"). Capitalized terms
used herein but not defined herein shall have the meanings provided in the
Credit Agreement (as defined below).
WITNESSETH:
WHEREAS, the Credit Parties, the Lenders and the Administrative Agent
are parties to that certain Revolving Credit Agreement dated as of October 31,
2005 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement");
WHEREAS, the Credit Parties, the Lenders and the Administrative Agent
have agreed, on the terms and conditions set forth herein, to amend certain
provisions of the Credit Agreement;
WHEREAS, the Credit Parties have requested that the Administrative Agent
and Lenders consent to the First Supplemental Indenture attached hereto as
Exhibit A (the "Supplemental Indenture") to the Subordinated Indenture; and
WHEREAS, the Required Lenders and the Administrative Agent are willing
to amend the Credit Agreement and consent to the First Supplemental Indenture,
but only on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendments. Subject to the conditions precedent set forth in
Section 3 hereof, the Credit Agreement is hereby amended as follows:
(a) The Credit Agreement is hereby amended by deleting the definition of
"Indenture Borrowing Base Report" contained in Section 1.1 thereof and
substituting in lieu thereof the following new definition:
"Indenture Borrowing Base Report. A report signed by the chief financial
officer or cash manager of the Borrower demonstrating calculation of the
"Borrowing Base" (as defined in the Subordinated Indenture) as of the last day
of the most recently ended Fiscal Quarter (or such other date as may be elected
by the Borrower pursuant to the Subordinated Indenture) and the amount of
Indebtedness incurred pursuant to Sections 4.09(b)(1) and 4.09(b)(13) of the
Subordinated Indenture as of the date of such report, in the form of Exhibit E-1
hereto."
(b) The Credit Agreement is hereby further amended by deleting clause
(f) of Section 7.4 and substituting in lieu thereof the following new clause
(f):
"(f) as soon as available and in any event no later than five (5)
Business Days after the last day of each Fiscal Quarter (or with greater
frequency (x) to the extent required under the terms of the Subordinated Debt
Documents or (y) in the event that the Borrower elects, pursuant to the terms
of the Subordinated Indenture, to update the calculation of the Indenture
Borrowing Base), an Indenture Borrowing Base Report as of the last day of such
Fiscal Quarter or such other date;"
SECTION 2. Consent. Subject to the conditions precedent set forth in
Section 3 hereof, notwithstanding Section 8.15 of the Credit Agreement, the
Required Lenders and the Administrative Agent hereby consent to the Supplemental
Indenture; provided that no Default or Event of Default shall have occurred and
be continuing or would result therefrom.
SECTION 3. Condition Precedent; Effective Date. The Administrative
Agent, the Lenders and the Credit Parties agree that this Amendment shall become
effective upon the satisfaction of the following conditions precedent, each in
form and substance satisfactory to the Administrative Agent:
(i) the execution hereof by the Credit Parties, the Required Lenders and
the Administrative Agent;
(ii) the execution and delivery of an amendment and consent to the Back
Bay Loan Agreement; and
(iii) the effectiveness of the Supplemental Indenture.
SECTION 4. Borrower Representations and Warranties. Each Credit Party
hereby represents and warrants that (a) this Agreement constitutes its legal,
valid and binding obligation, enforceable against such Credit Party in
accordance with the terms hereof, (b) after giving effect to this Agreement, (i)
the representations and warranties contained in the Credit Agreement are correct
in all material respects as though made on and as of the date of this Agreement,
and (ii) no Default or Event of Default has occurred and is continuing.
SECTION 5. Reference to and Effect on the Credit Agreement.
5.1 Upon the effectiveness of this Agreement, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof", "herein", or words
of like import shall mean and be a reference to the Credit Agreement, as
modified hereby, and each reference to the Credit Agreement in any other
document, instrument or agreement executed and/or delivered in connection with
the Credit Agreement shall mean and be a reference to the Credit Agreement, as
modified hereby.
5.2 Except as specifically set forth in Section 1 hereof, the Credit
Agreement and all other documents, instruments and agreements executed and/or
delivered in connection therewith shall remain in full force and effect and are
hereby ratified and confirmed.
5.3 The execution, delivery and effectiveness of this Agreement shall
not operate or be construed as a waiver or forbearance with respect to any
Defaults or Events of Default under the Credit Agreement which may now or
hereafter exist, or the waiver of any right, power or remedy which the
Administrative Agent and the Lenders may have with respect thereto under the
Credit Agreement or applicable law. The Lenders hereby reserve any and all
rights which may now or hereafter exist in favor of the Lenders under the
Credit Agreement.
SECTION 6. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to
be an original and all of which taken together shall constitute but one and the
same instrument.
SECTION 7. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws (as opposed to the conflicts of
laws provisions) of the Commonwealth of Massachusetts.
SECTION 8. Section Titles. The section titles contained in this
Agreement are and shall be without substance, meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
(Signature pages follow)
IN WITNESS WHEREOF, the parties hereto have caused this Consent and
Amendment No.2 to the Revolving Credit Agreement to be duly executed and
delivered as of the date first above written.
ICON HEALTH & FITNESS, INC.
By: /s/ Everett Smith
Name: Everett Smith
Title: General Counsel & Secretary
HF HOLDINGS, INC.
By: /s/ Everett Smith
Name: Everett Smith
Title: General Counsel & Secretary
ICON INTERNATIONAL HOLDINGS, INC.
By: /s/ Everett Smith
Name: Everett Smith
Title: General Counsel & Secretary
UNIVERSAL TECHNICAL SERVICES
By: /s/ Everett Smith
Name: Everett Smith
Title: General Counsel & Secretary
FREE MOTION FITNESS, INC.
By: /s/ Everett Smith
Name: Everett Smith
Title: General Counsel & Secretary
ICON IP, INC.
By: /s/ Everett Smith
Name: Everett Smith
Title: General Counsel & Secretary
NORDICTRACK, INC.
By: /s/ Everett Smith
Name: Everett Smith
Title: General Counsel & Secretary
510152 N.B. LTD.
By: /s/ Everett Smith
Name: Everett Smith
Title: General Counsel & Secretary
ICON DU CANADA INC./ICON OF CANADA INC.
By: /s/ Everett Smith
Name: Everett Smith
Title: General Counsel & Secretary
BANK OF AMERICA, N.A. individually and
as Administrative Agent, Issuing Lender
and Cash Management Bank
By: /s/ Christopher Godfrey
Name: Christopher Godfrey
Title: Senior Vice President
GMAC COMMERCIAL FINANCE, LLC
By: /s/ Robert F. McLanture
Name: Robert F. McLanture
Title: Director
THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ Jang S. Kim
Name: Jang S. Kim
Title: Vice President
WELLS FARGO FOOTHILL, LLC
By: /s/ Yelena Kravchuk
Name: Yelena Kravchuk
Title: AVP
MERRILL LYNCH CAPITAL, A DIVISION OF
MERRILL LYNCH BUSINESS FINANCIAL
SERVICES INC.
By: /s/ Andrew Sepe
Name: Andrew Sepe
Title: Vice President