AMENDMENT NO. 1 to CREDIT AGREEMENT
EXECUTION
VERSION
AMENDMENT
NO. 1
to
THIS
AMENDMENT NO. 1 TO CREDIT AGREEMENT (this “Amendment”) is made
as of February 12, 2008 by and among XXXXXXX OUTDOORS INC. (the “Borrower”),
the Lenders signatory hereto and JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, as administrative agent for the Lenders (in such capacity, the
“Administrative
Agent”), under that certain Credit Agreement, dated as of October 7, 2005
(as amended, restated, supplemented or otherwise modified from time to time, the
“Credit
Agreement”), by and among the Borrower, the lenders party thereto (the
“Lenders”) and
the Administrative Agent. Defined terms used herein and not otherwise
defined herein shall have the meaning given to them in the Credit
Agreement.
W I T N E S S E T
H:
WHEREAS,
the Borrower, the Lenders and the Administrative Agent are parties to the Credit
Agreement; and
WHEREAS,
it is a condition to the extension of credit under that certain Credit Agreement
dated as of February 12, 2008, by and among Xxxxxxx Outdoors Inc., as borrower,
the Lenders party thereto, and JPMorgan Chase Bank, N.A., as Administrative
Agent (the “Term
Credit Agreement”) that the Credit Agreement is amended; and
WHEREAS,
the Borrower, the Required Lenders and the Administrative Agent desire to enter
into this Amendment on the terms and conditions set forth herein and to amend
the Credit Agreement in the manner hereinafter set forth;
NOW,
THEREFORE, in consideration of the premises set forth above, the terms and
conditions contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
have agreed to the following amendment to the Credit Agreement:
1. Amendments
to the Credit Agreement. Effective as of the date hereof and
subject to the satisfaction of the conditions precedent set forth in Section 2 below, the
Credit Agreement is hereby amended as follows:
(a) Section 1.01 of the
Credit Agreement is amended to insert the following new definitions thereto in
the appropriate alphabetical order as follows:
“2008 Restructuring”
means the formation by the Borrower of new, wholly-owned Subsidiaries and the
transfer by the Borrower of all or substantially all of its operating assets to
such new Subsidiaries on a basis satisfactory to the Administrative
Agent.
“Electronic Delivery”
has the meaning set forth in Section 5.01(a).
“First Tier Foreign
Subsidiary” means each Foreign Subsidiary with respect to which any one
or more of the Borrower and its Domestic Subsidiaries directly owns or controls
more than 50% of such Foreign Subsidiary’s issued and outstanding Equity
Interests.
“Material Foreign
Subsidiary” means a Foreign Subsidiary that generates EBITDA on a
consolidated basis calculated for such Foreign Subsidiary and its subsidiaries
greater than or equal to 10% of Consolidated EBITDA.
“Obligations” means
all unpaid principal of and accrued and unpaid interest on the Loans, all
accrued and unpaid fees and all expenses, reimbursements, indemnities and other
obligations and indebtedness (including interest accruing during the pendency of
any bankruptcy, insolvency, receivership or other similar proceeding, regardless
of whether allowed or allowable in such proceeding), obligations and liabilities
of any of the Borrower and its Subsidiaries to any of the Lenders, the
Administrative Agent or any indemnified party, individually or collectively,
existing on the Effective Date or arising thereafter, direct or indirect, joint
or several, absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract, operation of law or
otherwise, arising or incurred under this Credit Agreement or any of the other
Loan Documents or to the Lenders or any of their Affiliates under any Swap
Agreement or in respect of any of the Loans made or reimbursement or other
obligations incurred or other instruments at any time evidencing any
thereof.
“Pledge Agreements”
means those certain pledge agreements, share mortgages, charges and comparable
instruments and documents from time to time executed pursuant to the terms of
the Term Credit Agreement in favor of the “Administrative Agent” for the benefit
of the “Secured Parties” thereunder and in favor of the Administrative Agent for
the benefit of the Secured Parties, as amended, restated, supplemented or
otherwise modified from time to time.
“Secured Parties”
means the holders of the Obligations from time to time and shall include (i)
each Lender in respect of its Loan, (ii) the Administrative Agent and the
Lenders in respect of all other present and future obligations and liabilities
of the Borrower and each Subsidiary of every type and description arising under
or in connection with this Agreement or any other Loan Document, (iii) each
Lender and affiliate of such Lender in respect of Swap Obligations entered into
with such Person by the Borrower or any Subsidiary, (iv) each indemnified party
under Section 9.03 in respect of the obligations and liabilities of the Borrower
to such Person hereunder and under the other Loan Documents, and (v) their
respective successors and (in the case of a Lender, permitted) transferees and
assigns.
“Term Credit
Agreement” means that certain Credit Agreement dated as of February 12,
2008, by and among Xxxxxxx Outdoors Inc., as borrower, the lenders party
thereto, and JPMorgan Chase Bank, N.A., as administrative agent
thereunder.
(b) The
definition of “Affiliate” appearing
in Section 1.01
of the Credit Agreement is amended and restated in its entirety as
follows:
“Affiliate” means, in
the case of an affiliate of the Borrower, a Person that directly, or indirectly
through one or more intermediaries, is Controlled by the Borrower and, in the
case of an affiliate of the Administrative Agent or any Lender, a Person that
directly or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
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(c) The
definition of “Change
of Control” appearing in Section 1.01 of the
Credit Agreement is amended to (1) insert the phrase “other than the Xxxxxxx
Family” after the parenthetical in clause (b) thereof
and at the end of clause (d), and (2)
to insert the phrase “including, without limitation, pursuant to Section 6.05,”
immediately after the phrase “except as expressly permitted under the terms of
this Agreement,” in clause (e)
thereof.
(d) The
definition of “Consolidated EBITDA”
appearing in Section
1.01 of the Credit Agreement is amended and restated in its entirety as
follows:
“Consolidated EBITDA”
means Consolidated Net Income plus, to the extent deducted from revenues in
determining Consolidated Net Income, (i) Consolidated Interest Expense, (ii)
expense for taxes paid or accrued, (iii) depreciation, (iv) amortization, (v)
extraordinary non-cash losses incurred other than in the ordinary course of
business, and (vi) non-cash losses incurred as a result of the treatment of the
Escape electric boat product line as a discontinued operation and the related
impairment charges in respect of the inventory and fixed assets of such product
line minus, to the
extent included in Consolidated Net Income, extraordinary non-cash gains
realized other than in the ordinary course of business, all calculated for the
Borrower and its Subsidiaries in accordance with GAAP on a consolidated
basis.
(e) The
definition of “Fixed
Charge Coverage Ratio” appearing in Section 1.01 of the
Credit Agreement is amended (1) to delete the word “cash” in clause (a) of clause (ii) thereof
and replace it with the word “Consolidated” and (2) to add the clause “or
consented to by the Required Lenders” after the reference to Section 6.04 and
the reference to Section 6.05 in the proviso thereto.
(f) The
definition of “Investment” appearing
in Section 1.01
of the Credit Agreement is amended (1) to add the words “or agents” after the
word “employees” in the second line thereof and (2) to add the phrase “and shall
include any Acquisition” at the end thereof.
(g) The
definition of “Xxxxxxx
Family” appearing in Section 1.01 of the
Credit Agreement is amended and restated in its entirety as
follows:
“Xxxxxxx Family” shall
mean at any time, collectively, the estate of Xxxxxx X. Xxxxxxx, the widow of
Xxxxxx X. Xxxxxxx and the children and grandchildren of Xxxxxx X. Xxxxxxx, the
executor or administrator of the estate or other legal representative of any
such Person, all trusts for the benefit of the foregoing or their heirs or any
one or more of them, and all partnerships, corporations or other entities
directly or indirectly controlled by the foregoing or any one or more of
them.
(h) The
definition of “Leverage Ratio” appearing in Section 1.01 of the Credit Agreement
is amended to add the clause “or consented to by the Required Lenders” after the
reference to Section 6.04 and the reference to Section 6.05 in the proviso
thereto.
(i) The
definition of “LIBO
Rate” appearing in Section 1.01 of the
Credit Agreement is amended to delete the words “of the DOW Xxxxx Market
Service” in the first sentence thereof and to insert the phrase “Reuters British
Banking Association Libor Rates” immediately before the phrase “Page
3750”.
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(j) The
definition of “Permitted
Acquisition” appearing in Section 1.01 of the
Credit Agreement is amended and restated in its entirety as
follows:
“Permitted
Acquisition” means any Acquisition (whether by purchase, merger,
consolidation or otherwise but excluding in any event a Hostile Acquisition) or
series of related acquisitions by the Borrower or any Subsidiary of (i) all or
substantially all the assets of a Person or a division or line of business of a
Person, or (ii) all the Equity Interests in, a Person or division or line of
business of a Person, if, at the time of and immediately after giving effect
thereto, (a) no Default has occurred and is continuing or would arise after
giving effect thereto, (b) all actions required to be taken with respect to any
acquired or newly formed Subsidiary under Sections 5.09 and 5.10 shall have been
taken, (c) the aggregate consideration paid in respect of such Acquisition,
including the incurrence or assumption of any Indebtedness in connection
therewith, shall not exceed an amount equal to $15,000,000 when aggregated
together with the consideration paid in respect of all other Permitted
Acquisitions consummated subsequent to the date hereof and prior to the Maturity
Date, (d) the Borrower and the Subsidiaries are in compliance, on a pro forma
basis reasonably acceptable to the Administrative Agent after giving effect to
such Acquisition (including pro forma adjustments arising out of events which
are directly attributable to the Acquisition, are factually supportable and are
expected to have a continuing impact, in each case as determined on a basis
consistent with Article 11 of Regulation S-X of the Securities Act of 1933, as
amended, as interpreted by the SEC), with the covenants contained in Section
6.13 recomputed as of the last day of the most recently ended fiscal quarter of
the Borrower for which financial statements are available, as if such
Acquisition (and any related incurrence or repayment of Indebtedness, with any
new Indebtedness being amortized over the applicable testing period in
accordance with its terms) had occurred on the first day of each relevant period
for testing such compliance and, if the aggregate consideration paid in respect
of such Acquisition exceeds $5,000,000, the Borrower shall have delivered to the
Administrative Agent a certificate of a Financial Officer of the Borrower, to
such effect, together with all relevant financial information requested by the
Administrative Agent and (e) in the case of an Acquisition or merger involving
the Borrower, the Borrower is the surviving entity of such merger and/or
consolidation.
(k) The
definition of “Permitted
Investments” appearing in Section 1.01 of the
Credit Agreement is amended (1) to add the words “and demand” immediately before
the phrase “and money market deposit accounts” in clause (c) thereof,
and (2) to restate in its entirety clause (e) thereof to
read as follows:
(e) money
market funds that (i) in the case of a money market fund subject to regulation
by the SEC, complies with the criteria set forth in Securities and Exchange
Commission Rule 2a-7 under the Investment Company Act of 1940, (ii) in the case
of any other money market fund, complies with all applicable legal requirements
of the appropriate Governmental Authority, (iii) are rated AAA by S&P and
Aaa by Xxxxx’x and (iv) have portfolio assets of at least $5,000,000,000;
and
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(l) The
definition of “Permitted
Investments” appearing in Section 1.01 of the
Credit Agreement is amended to add a new clause (f) thereto as
follows:
(f) investments
by Foreign Subsidiaries in financial institutions located outside the United
States that are rated at least A by S&P and A2 by Xxxxx’x.
(m) Section 2.13 of the
Credit Agreement is amended to delete the address stated in clause (ii) in the
third sentence thereof and replace it with “10 South Dearborn Street, Suite
IL1-0010, Xxxxxxx, Xxxxxxxx 00000”.
(n) Section 3.01 of the
Credit Agreement is amended (1) to insert the words “current or” immediately
before the phrase “good standing under the laws” in the first sentence thereof,
(2) to insert the phrase “, other than Liens created under the Pledge
Agreements” at the end of the second sentence thereof, and (3) to insert the
phrase “, except for the issuance of Equity Interests in the Borrower to members
of management or other employees” at the end of the third sentence
thereof.
(o) Section 3.03 of the
Credit Agreement is amended to insert the phrase “, other than Liens created
under the Pledge Agreements” at the end of clause (d)
thereof.
(p) Section 4.01 of the
Credit Agreement is amended to insert the words “current or” immediately before
the phrase “good standing under the laws” in clause (d)
thereof.
(q) Section 5.01 is
amended to add the following phrase at the end of clause (a)
thereof:
“; provided that the
delivery within the time period specified above of the Borrower’s Form 10-K for
such fiscal year prepared in accordance with the requirements therefor and filed
with the SEC shall be deemed to satisfy the requirements of this Section
5.01(a), provided, further, that the
Borrower shall be deemed to have made such delivery of such Form 10-K if it
shall have timely made such Form 10-K available on the “XXXXX” online service
provided by the SEC and on its home page on the worldwide web (at the date of
this Agreement located at: xxxx://xxx.xxxxx-xxxxxx.xxx) and shall have given
each Lender prior notice of such availability on XXXXX and on its home page in
connection with such delivery (such availability and notice thereof being
referred to as “Electronic
Delivery”)”
(r) Section 5.01 is
amended to add the following phrase at the end of clause (b)
thereof:
“; provided that
delivery within the time period specified above of copies of the Borrower’s Form
10-Q prepared in compliance with the requirements therefor and filed with the
SEC shall be deemed to satisfy the requirements of this Section 5.01(b), provided, further, that the
Borrower shall be deemed to have made such delivery of such Form 10-Q if it
shall have timely made Electronic Delivery thereof”
(s) Section 5.01 is
amended to add the phrase “(and in the case of Electronic Delivery of such
financial statements, concurrently with the notice of the Lenders of such
Electronic Delivery)” immediately after the phrase “under clause (a) or (b)
above” in clause
(c) thereof.
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(t) Section 5.01 is
amended to add the following phrase immediately prior to the word “and” at the
end of clause
(d) thereof:
“provided that
Electronic Delivery of Forms 10-K and 10-Q shall be deemed to satisfy the
Borrower’s obligations to provide such Forms under this
subsection;”
(u) Section 5.02 of the
Credit Agreement is amended (1) to delete the word “Affiliate” and replace it
with the word “Subsidiary”, and (2) to delete the phrase “if adversely
determined” in clause (b) thereof.
(v) Article 5 is amended
to add a new Section
5.10 thereto as follows:
SECTION
5.10. Pledge
Agreements. Effective upon the termination of the Note
Agreement dated as of December 13, 2001 pursuant to which the Borrower issued
notes due December 13, 2008, the Borrower shall pledge to the Administrative
Agent for the benefit of the Secured Parties pursuant to a Pledge Agreement
governed by Illinois law with respect to 65% of all of the outstanding Equity
Interests of any First Tier Foreign Subsidiary that is a Material Foreign
Subsidiary; provided that no such
pledge of the Equity Interests of a First Tier Foreign Subsidiary shall be
required hereunder to the extent such pledge (i) is prohibited by applicable law
or (ii) the Administrative Agent and its counsel reasonably determine that, in
light of the cost and expense associated therewith, such pledge would not
provide material support for the benefit of the Secured Parties pursuant to
legally binding, valid and enforceable Pledge Agreements. The
Borrower further agrees to deliver to the Administrative Agent all such Pledge
Agreements, together with appropriate corporate resolutions and other
documentation (including legal opinions, the stock certificates representing the
Equity Interests subject to such pledge, stock powers with respect thereto
executed in blank, and such other documents as shall be reasonably requested to
perfect the Lien of such pledge) in each case in form and substance reasonably
satisfactory to the Administrative Agent, and in a manner that the
Administrative Agent shall be reasonably satisfied that it has a first priority
perfected pledge of or charge over the Pledged Equity related
thereto.
(w) Section 6.01 of the
Credit Agreement is amended to add a new clause (k) thereto as
follows:
(k) Indebtedness
incurred pursuant to the Term Credit Agreement.
(x) Section 6.02 of the
Credit Agreement is amended (1) to insert the phrase “and Liens created under
the Pledge Agreements” at the end of clause (a) thereof,
and (2) to add a new clause (g) thereto as
follows:
(g) the
sale of receivables provided the aggregate book value of such receivables does
not exceed $100,000.
(y) Section 6.03 of the
Credit Agreement is amended to add, immediately before the proviso at the end
thereof, new clauses (v) and (vi) as follows:
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“(v) the
Borrower may effect the 2008 Restructuring and (vi) the Borrower or any
Subsidiary may sell all of the Equity Interest of a Subsidiary, and a Subsidiary
may sell, lease, transfer or otherwise dispose of assets, if permitted under
Section 6.05”
(z) Section 6.04 of the
Credit Agreement is amended to delete the language now contained in clause (c)
and to substitute the following therefor:
(c)
investments by the Borrower in the capital stock of its Subsidiaries; provided
that any Investments made by the Borrower after the date of the Term Credit
Agreement in the capital stock of a Subsidiary which is not a Loan Party shall
comply with the proviso to Section 6.04(d);
(aa) Section 6.04 of the
Credit Agreement is amended to delete the language now contained in clause (m) and to
substitute the following therefor:
(m) Investments
resulting from the 2008 Restructuring provided that the Subsidiaries created to
effect the 2008 Restructuring execute and deliver the Subsidiary Guaranty and
related documents in accordance with Section 5.09 prior to the effective date of
the asset transfers to such Subsidiaries; and
(bb) Section 6.04 is
amended to add the words “and (c)” immediately before the phrase “through (m)
above” in clause
(n) thereof.
(cc) Section 6.05(d) is
amended and restated in its entirety as follows:
(d) sales,
transfers and dispositions of investments permitted by clauses (a), (g), (h),
(i), (k) and (l) of Section 6.04;
(dd) Section 6.05(g) is
amended to delete the phrase “assets that comprised” and to substitute therefor
the phrase “in the case of the sale, transfer or other disposition of assets
comprising a business line of the Borrower or a Subsidiary, such business line
generated net income” in clauses (iv)(1)(y)
and (iv)(2)(y)
thereof.
(ee) Section 6.05(g) is
amended to insert the phrase “in the case of the sale, transfer or other
disposition of assets comprising a business line of the Borrower or a
Subsidiary, such business line generated net income” in both of the clauses (2) in clause (v)
thereof.
(ff) Section 6.05 is
amended to insert the phrase “or as a trade-in for replacement property” at the
end of the proviso appearing after clause (g)
thereof.
(gg) Section 6.08 of the
Credit Agreement is amended to delete the language now contained in clause (d) thereof
and to substitute the following therefor:
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“so long
as no Default has occurred and is continuing or would arise after giving effect
thereto, the Borrower may redeem, repurchase, acquire or retire an amount of its
capital stock and declare and pay dividends in the ordinary course of business
during the period from and after September 28, 2007 to and including the
Maturity Date up to an amount, in the aggregate for such period, equal to
$5,000,000 plus fifty percent (50%) of Consolidated Net Income earned in each
fiscal year commencing with the fiscal year ending September 29,
2008.”
(hh) Section 6.13 of the
Credit Agreement is amended to delete the language now contained in clauses (a) and (c) thereof and to
substitute the following therefor:
(a) Minimum Fixed Charge
Coverage Ratio. The Borrower will not permit the Fixed Charge
Coverage Ratio, determined as of the end of each of its fiscal quarters ending
before March 31, 2008 for the period of four (4) consecutive fiscal quarters
then ending, calculated for the Borrower and its Subsidiaries on a consolidated
basis, to be less than 2.0 to 1.0, or for each of its fiscal quarters ending on
and after March 31, 2008, for the period of four (4) consecutive fiscal quarters
then ending, calculated for the Borrower and its Subsidiaries on a consolidated
basis, to be less than 2.25 to 1.0.
(c) Maintenance of Net
Worth. The Borrower will not permit Consolidated Net
Worth at any time to be less than the sum of (i) $153,314,000, plus (ii) 50% of
positive Consolidated Net Income earned in each fiscal year, commencing with the
fiscal year ending on September 29, 2008, plus (iii) 75% of the net cash
proceeds resulting from any issuance of capital stock by the
Borrower.
(ii) Article VII is
amended to restate in its entirety clause (d)(i) thereof as
follows:
(d) (i)
the Borrower shall fail to observe or perform any covenant, condition or
agreement contained in Section 5.02, 5.03 (with respect to the Borrower’s
existence), 5.08, 5.09 or in Article VI or
(jj) Section 9.01 of the
Credit Agreement is amended to restate in their entirety clauses (i) and (ii) of clause (a) thereof as
follows:
(i) if
to the Borrower, to it at 000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxxx 00000, Attention: Treasury Department (Facsimile No.
262-631-6608) with a copy to the Borrower at 000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxxx 00000, Attention: General Counsel (Facsimile No.
262-631-6610);
(ii) if
to the Administrative Agent, to JPMorgan Chase Bank, N.A., Loan and Operations,
00 X. Xxxxxxxx Xxxxxx, Xxxxx XX0-0000, Xxxxxxx, XX 00000, Attention of Xxxx
Xxxxxx (Facsimile No. (000) 000-0000 and e-mail xxxx.xxxxxx@xxxxxxxx.xxx)
with a copy to JPMorgan Chase Bank, N.A., 00 X. Xxxxxxxx Xxxxxx, Xxxxxxx, XX
00000, Attention of Xxxxxx Xxxxx (Facsimile No. (000) 000-0000 and e-mail
address xxxxxx.xxxxx@xxxxxxxx.xxx);
and
2. Conditions
of Effectiveness. The effectiveness of this Amendment is
subject to the condition precedent that the Administrative Agent shall have
received the following documents:
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(i)
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duly
executed originals of this Amendment from each of the Borrower, the
Required Lenders and the Administrative Agent;
and
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(ii)
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duly
executed originals of the Term Credit Agreement from each of the parties
thereto; and
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(ii)
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duly
executed originals of a Consent and Reaffirmation in the form of Exhibit A
attached hereto from each Subsidiary
Guarantor.
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3. Representations
and Warranties of the Borrower. The Borrower hereby represents
and warrants as follows:
(a) This
Amendment and the Credit Agreement, as previously executed and as amended
hereby, constitute legal, valid and binding obligations of the Borrower
enforceable against the Borrower in accordance with their terms, except as
enforceability may be limited by (i) bankruptcy, insolvency, fraudulent
conveyance, reorganization or similar laws relating to or affecting the
enforcement of creditors’ rights generally; (ii) general equitable principles
(whether considered in a proceeding in equity or at law); and (iii) requirements
of reasonableness, good faith and fair dealing.
(b) Upon
the effectiveness of this Amendment and after giving effect hereto, (i) the
Borrower hereby reaffirms all covenants, representations and warranties made in
the Credit Agreement as amended hereby, and agrees that all such covenants,
representations and warranties (other than covenants, representations and
warranties that are expressly made as of a specific date) shall be deemed to
have been remade as of the effective date of this Amendment and (ii) no Default
has occurred and is continuing.
4. Reference
to and Effect on the Credit Agreement.
(a) Upon
the effectiveness of Section 1 hereof, on
and after the date hereof, each reference in the Credit Agreement or in any
other Credit Document (including any reference therein to “this Credit
Agreement,” “hereunder,” “hereof,” “herein” or words of like import referring
thereto) shall mean and be a reference to the Credit Agreement as amended
hereby.
(b) Except
as specifically amended above, 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.
(c) The
execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy of
the Administrative Agent, the Collateral Agent or the Lenders, nor constitute a
waiver of any provision of the Credit Agreement or any other documents,
instruments and agreements executed and/or delivered in connection
therewith.
5. Costs and
Expenses. The Borrower agrees to pay all reasonable costs,
internal charges and out-of-pocket expenses (including reasonable attorneys’ and
paralegals’ fees and time charges of attorneys for the Administrative Agent)
incurred by the Administrative Agent in connection with the preparation,
arrangement, execution and enforcement of this Amendment.
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6. GOVERNING
LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING 735 ILCS 105/5-1 ET SEQ., BUT
OTHERWISE WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS) OF THE STATE OF
ILLINOIS.
7. 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
purpose.
8. Counterparts. This
Amendment may be executed by one or more of the parties to the Amendment on any
number of separate counterparts and all of said counterparts taken together
shall be deemed to constitute one and the same instrument. A
signature page sent to the Administrative Agent or its counsel by facsimile or
other electronic means (including in portable document format (.pdf)) shall be
effective as an original counterpart signature.
[Remainder
of page intentionally left blank.]
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed by their respective authorized officers as of the day and year first
above written.
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XXXXXXX
OUTDOORS INC.
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By
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/s/ Xxxxx X. Xxxxxxx
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Name:
Xxxxx X. Xxxxxxx
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Title:
V.P. & CFO
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JPMORGAN
CHASE BANK, N.A., individually as a Lender and as Administrative
Agent
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By
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/s/ Xxxxx X. Xxxxxx
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Name:
Xxxxx X. Xxxxxx
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Title:
Vice President
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LASALLE
BANK NATIONAL ASSOCIATION,
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as
a Lender
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By
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/s/ Xxxxxx X. Xxxxxxx
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Name:
Xxxxxx X. Xxxxxxx
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Title:
Senior Vice President
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M&I
XXXXXXXX & XXXXXX BANK,
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as
a Lender
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By
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/s/ Xxxxxx X. Xxxxx
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Name:
Xxxxxx X. Xxxxx
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Title:
Vice President
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By
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/s/ Xxxxx X. Xxxxxx
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Name:
Xxxxx X. Xxxxxx
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Title:
Senior Vice President
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XXXXX
FARGO BANK, N.A., as a Lender
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By
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/s/ Xxxx X. Xxxxxxxx
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Name:
Xxxx X. Xxxxxxxx
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Title:
Vice President
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Signature Page to
Amendment to Credit Agreement
Xxxxxxx Outdoors Inc.
EXHIBIT
A
Consent and Reaffirmation
re. Loan Documents
Each of
the undersigned hereby acknowledges receipt of a copy of the foregoing Amendment
to that certain Credit Agreement (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”) by
and among Xxxxxxx Outdoors Inc. (the “Borrower”),
the Lenders signatory thereto and JPMorgan Chase Bank, National
Association, as administrative agent for the Lenders (in such capacity, the
“Administrative
Agent”), under that certain Credit Agreement, dated as of October 7, 2005
(as amended, restated, supplemented or otherwise modified from time to time, the
“Credit
Agreement”), which Amendment is dated as of February 12, 2008 and is by
and among the Borrower, the Lenders listed on the signature pages thereof, the
Administrative Agent and the Collateral Agent (the “Amendment”). Capitalized
terms used in this Consent and Reaffirmation and not defined herein shall have
the meanings given to them in the Credit Agreement. Without in any
way establishing a course of dealing by the Administrative Agent or any Lender,
each of the undersigned consents to the Amendment and reaffirms the terms and
conditions of the Subsidiary Guaranty and any other Loan Document executed by it
and acknowledges and agrees that the Subsidiary Guaranty and each and every such
Loan Document executed by the undersigned in connection with the Credit
Agreement remains in full force and effect and is hereby reaffirmed, ratified
and confirmed. All references to the Credit Agreement contained in
the above-referenced documents shall be a reference to the Credit Agreement as
so modified by the Amendment and as the same may from time to time hereafter be
amended, modified or restated.
Dated
February 12, 2008
[Signature
Pages Follow]
EX-A
IN
WITNESS WHEREOF, this Consent and Reaffirmation has been duly executed as of the
day and year above written.
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OLD
TOWN CANOE COMPANY, as Guarantor
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By:
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/s/ Xxxxx Xxxxxx
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Name:
Xxxxx Xxxxxx
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Title:
Secretary and Treasurer
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| LEISURE LIFE LIMITED, as Guarantor | |||
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By:
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/s/ Xxxxx Xxxxxx
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Name:
Xxxxx Xxxxxx
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Title:
Secretary and Treasurer
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TECHSONIC
INDUSTRIES, INC. , as Guarantor
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By:
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/s/ Xxxxx Xxxxxx
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Name:
Xxxxx Xxxxxx
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Title:
Secretary and Treasurer
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UNDER
SEA INDUSTRIES, INC. , as Guarantor
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By:
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/s/ Xxxxx Xxxxxx
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Name:
Xxxxx Xxxxxx
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Title:
Secretary and Treasurer
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Signature
Page to
Consent and Reaffirmation
Xxxxxxx Outdoors Inc.
