OMNIBUS AMENDMENT
Exhibit
99.1
THIS
OMNIBUS AMENDMENT (the “Agreement”) is made
as of October 3, 2008 by and among XXXXXXX OUTDOORS INC. (the “Borrower”), the
financial institutions listed on the signature pages hereof (the “Lenders”) and
JPMORGAN CHASE BANK, N.A., in its individual capacity as a Lender and in its
capacity as contractual representative (the “Administrative
Agent”) under the Credit Agreements (as defined below).
WITNESSETH
WHEREAS,
the Borrower, certain of the Lenders, and the Administrative Agent are parties
to that certain Credit Agreement dated as of October 7, 2005 (as heretofore
amended, restated, supplemented and otherwise modified, the “2005 Credit
Agreement”); and
WHEREAS,
the Borrower, certain of the Lenders and the Administrative Agent are parties
to
that certain Credit Agreement dated as of February 12, 2008 (as heretofore
amended, restated, supplemented and otherwise modified, the “2008 Credit
Agreement” and together with the 2005 Credit Agreement, the “Credit Agreements”);
and
WHEREAS,
the Borrower has requested that the Lenders agree to amend certain provisions
of
the Credit Agreements; and
WHEREAS,
the Lenders have agreed to amend certain provisions of the Credit Agreements,
subject to the terms and conditions set forth herein;
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 as follows:
1.
Effectiveness.
Subject to the satisfaction of the conditions precedent set forth in Section 5 below, (i)
the amendments set forth in Sections 2 and 3
shall be effective
from October 3, 2008 until 5:00 p.m. New York City time on January 2, 2009
(or
such later date as the Administrative Agent and the Lenders, in their sole
and
absolute discretion may specify in writing to the Borrower) (such period, the
“Temporary Amendment
Period”) and (ii) the amendments set forth in Section 4 shall
be
effective as of October 3, 2008.
2.
Temporary Amendments
to the 2005 Credit Agreement. Until the expiration of the Temporary
Amendment Period, and subject to the satisfaction of the conditions precedent
set forth in Section
5 below, the 2005 Credit Agreement is hereby amended as
follows:
2.1.
The definition of “Applicable Rate” appearing in Section 1.01 is
amended by and restated in its entirety to read as follows:
“Applicable
Rate”
means, for any day, the rate per annum equal to (i) the sum of (x) the
Adjusted
LIBO Rate plus
(y) 3.25%, with respect to any Eurocurrency Loan, (ii) the sum of (x) the
Alternate Base Rate plus (y) 2.25%,
with
respect to any ABR Loan, and (iii) 0.55%, with respect to the facility fee
payable pursuant to Section
2.12.
2.2.
The definition of “Consolidated EBITDA” appearing in Section 1.01 is
amended and restated in its entirety to read 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, (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, (vii) non-cash impairment charges and (viii) non-cash foreign exchange
charges minus, to the
extent included in Consolidated Net Income, extraordinary non-cash gains
realized other than in the ordinary course of business and proceeds of
litigation settlements with insurance providers of the Borrower or any of its
Subsidiaries, all calculated for the Borrower and its Subsidiaries in accordance
with GAAP on a consolidated basis.
2.3.
The definition of “Permitted Acquisition” appearing in Section 1.01 is
amended and restated in its entirety to read 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, (ii) all the Equity Interests in, a Person
or
division or line of business of a Person or (iii) if clauses (i) and (ii) above
are inapplicable, the rights of any licensee (including by means of the
termination of such licensee’s rights under such license) under a trademark
license to such licensee from the Borrower or any Subsidiary, 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 such acquired or newly formed Subsidiary under
Section 5.09 shall have been taken, (c) the aggregate consideration paid in
respect of such acquisition shall not exceed an amount equal to $2,000,000,
(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, as
amended by the Omnibus Amendment dated as of October 3, 2008, 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 deemed
to be 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 (e) in the case of an acquisition or merger involving the
Borrower or a Subsidiary, the Borrower or such Subsidiary is the surviving
entity of such merger and/or consolidation.
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2.4.
The definition of “Restricted Payment” appearing in Section 1.01 is
amended by adding the phrase “or repurchase” immediately after the phrase “on
account of the purchase” contained therein.
2.5.
Section
6.04 is amended by (i) inserting the word “and” at the end of clause (l)
thereof, (ii) deleting the phrase “; and” in clause (m) thereof and inserting a
period (“.”) in its place and (iii) deleting clause (n) in its
entirety.
2.6.
Section 6.08 is
amended and restated in its entirety to read as follows:
"SECTION
6.08 Restricted
Payments. The Borrower will not, and will not permit any of
its Subsidiaries to, declare or make, or agree to pay or make, directly or
indirectly, any Restricted Payment, or incur any obligation (contingent or
otherwise) to do so, except (a) the Borrower may declare and pay dividends
with
respect to its Equity Interests payable solely in additional shares of its
common stock, (b) Subsidiaries may declare and pay dividends ratably with
respect to their Equity Interests, (c) the Borrower may make Restricted Payments
pursuant to and in accordance with stock option plans or other benefit plans
for
management or employees of the Borrower and its Subsidiaries and (d) so long
as
no Default has occurred and is continuing or would arise after giving effect
thereto, the Borrower may pay dividends in the ordinary course of business,
as
frequently and in such amounts as is consistent with current practice as of
the
June 2, 2008 declaration of dividends payable on July 24, 2008.”
Upon
expiration of the Temporary Amendment Period, the foregoing amendments shall
be
of no further force or effect and the terms of the 2005 Credit Agreement,
including without limitation, the definition of “Applicable Rate,” “Consolidated
EBITDA” and “Permitted Acquisition” in Section 1.01 and the
terms of Sections
6.04 and 6.08,
shall the terms
thereof as in effect prior to the effectiveness of this Agreement.
3.
Temporary Amendments
to the 2008 Credit Agreement. Until the expiration of the
Temporary Amendment Period, and subject to the satisfaction of the conditions
precedent set forth in Section 5 below, the
2008 Credit Agreement is hereby amended as follows:
3.1.
The definition of “Applicable Rate” appearing in Section 1.01 is
amended by and restated in its entirety to read as follows:
“Applicable
Rate”
means, for any day, the rate per annum equal to (i) the sum of (x) the
Adjusted
LIBO Rate plus
(y) 3.25%, with respect to any Eurocurrency Loan, and (ii) the sum of (x) the
Alternate Base Rate plus (y) 2.25%
with
respect to any ABR Loan.
3.2.
The definition of “Consolidated EBITDA” appearing in Section 1.01 is
amended and restated in its entirety to read 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, (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, (vii) non-cash impairment charges and (viii) non-cash foreign
exchange charges minus,
to the extent included in Consolidated Net Income, extraordinary non-cash gains
realized other than in the ordinary course of business and proceeds of
litigation settlements with insurance providers of the Borrower or any of its
Subsidiaries, all calculated for the Borrower and its Subsidiaries in accordance
with GAAP on a consolidated basis.
3
3.3. The
definition of “Permitted Acquisition” appearing in Section 1.01 is
amended and restated in its entirety to read 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, (ii) all the Equity Interests in, a Person
or
division or line of business of a Person or (iii) if clauses (i) and (ii) above
are inapplicable, the rights of any licensee (including by means of the
termination of such licensee’s rights under such license) under a trademark
license to such licensee from the Borrower or any Subsidiary, 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 such acquired or newly formed Subsidiary under
Section 5.09 shall have been taken, (c) the aggregate consideration paid in
respect of such acquisition shall not exceed an amount equal to $2,000,000,
(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, as
amended by the Omnibus Amendment dated as of October 3, 2008, 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 deemed
to be 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 (e) in the case of an acquisition or merger involving the
Borrower or a Subsidiary, the Borrower or such Subsidiary is the surviving
entity of such merger and/or consolidation.
3.4. The
definition of “Restricted Payment” appearing in Section 1.01 is
amended by adding the phrase “or repurchase” immediately after the phrase “on
account of the purchase” contained therein.
3.5. Section
6.04 is
amended by (i) inserting the word “and” at the end of clause (l) thereof, (ii)
deleting the phrase “; and” in clause (m) thereof and inserting a period (“.”)
in its place and (iii) deleting clause (n) in its entirety.
3.6.
The proviso appearing at the end of Section 6.05 is
amended and restated in its entirety to read as follows:
“provided
that (i) all
sales, transfers, leases and other dispositions permitted hereby (other than
those permitted by paragraphs (b) and (f) above) shall be made for fair value
and for at least 85% cash consideration or as a trade-in for replacement
property and (ii) the proceeds of any sale, transfer, lease or other disposition
permitted by paragraphs (b) through (g) above shall be applied to pay
Obligations outstanding under this Agreement or any other Loan
Document.”
4
3.7.
Section 6.08 is
amended and restated in its entirety to read as follows:
"SECTION 6.08 Restriced
Payments. The Borrower will not, and will not permit any of
its Subsidiaries to, declare or make, or agree to pay or make, directly or
indirectly, any Restricted Payment, or incur any obligation (contingent or
otherwise) to do so, except (a) the Borrower may declare and pay dividends
with
respect to its Equity Interests payable solely in additional shares of its
common stock, (b) Subsidiaries may declare and pay dividends ratably with
respect to their Equity Interests, (c) the Borrower may make Restricted Payments
pursuant to and in accordance with stock option plans or other benefit plans
for
management or employees of the Borrower and its Subsidiaries and (d) so long
as
no Default has occurred and is continuing or would arise after giving effect
thereto, the Borrower may pay dividends in the ordinary course of business,
as
frequently and in such amounts as is consistent with current practice as of
the
June 2, 2008 declaration of dividends payable on July 24, 2008.”
Upon
expiration of the Temporary Amendment Period, the foregoing amendments shall
be
of no further force or effect and the terms of the 2008 Credit Agreement,
including without limitation, the definition of “Applicable Rate,” “Consolidated
EBITDA” and “Permitted Acquisition” in Section 1.01 and the
terms of Sections
6.04, 6.05 and
6.08,
shall the terms
thereof as in effect prior to the effectiveness of this Agreement.
4.
Amendments to the
Credit Agreements. Subject to the satisfaction of the
conditions precedent set forth in Section 5 below, the
2005 Credit Agreement and the 2008 Credit Agreement are each hereby amended
as
follows:
(a)
Section 6.13(a)
of each of the Credit Agreements is amended and restated in its entirety to
read
as follows:
"(a) Minimum
Fixed Charge Coverage Ratio. The Borrower will not permit the
Fixed Charge Coverage Ratio, calculated for the Borrower and its Subsidiaries
on
a consolidated basis, determined for the period of four (4) consecutive fiscal
quarters then ending as of the end of each of its fiscal quarters ending on
and
after March 31, 2008, to be less than 2.25 to 1.0; provided that for
the
period of four (4) consecutive fiscal quarters ending on October 3, 2008, the
Borrower will not permit the Fixed Charge Coverage Ratio, to be less than 1.75
to 1.0.”
(b) Section
6.13(b) of
each of the Credit Agreements is amended and restated in its entirety to read
as
follows:
“(b) Maximum Leverage
Ratio. The Borrower will not permit the Leverage Ratio,
calculated for the Borrower and its Subsidiaries on a consolidated basis,
determined as of the end of each of its fiscal quarters ending on and after
March 31, 2008, to be greater than 3.5 to 1.0; provided that for the fiscal
quarter ending on October 3, 2008, the Borrower will not permit the
Leverage Ratio, calculated for the Borrower and its Subsidiaries on a
consolidated basis, to be greater than 5.0 to 1.0.”
5
5.
Conditions of
Effectiveness. This Agreement shall be effective (the “Effective
Date”) upon
the receipt by the Administrative Agent of, and is subject to the conditions
precedent that the Administrative Agent shall have received, the
following:
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(a)
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duly
executed originals of this Agreement from the Borrower, the requisite
number of Lenders under Section 9.02 of the 2005 Credit Agreement,
and the
Administrative Agent;
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(b)
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duly
executed originals of this Agreement from the Borrower, the requisite
number of Lenders under Section 9.02 of the 2008 Credit Agreement,
and the
Administrative Agent;
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(c)
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duly
executed originals of a Reaffirmation in the form of Attachment
A
attached hereto from each of the Subsidiaries identified thereon;
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(d)
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duly
executed originals of a Security Agreement by the Borrower and its
Domestic Subsidiaries in favor of the Administrative Agent, in form
and
substance, and with respect to collateral, satisfactory to the
Administrative Agent;
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(e)
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payment
of all fees and expenses due and owing as of such date to the
Administrative Agent and the Lenders (including, fees and expenses
of
counsel for the Administrative Agent and the Lenders) in connection
with
this Agreement; and
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(f)
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such
other documents, instruments and agreements as the Administrative
Agent
may reasonably request.
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6.
Representations
and
Warranties.
6.1. The
Borrower hereby represents and warrants that this Agreement, the attached
Reaffirmation and each of the Credit Agreements, as previously executed and
as
amended hereby, constitute legal, valid and binding obligations of the Borrower
and the Subsidiaries parties thereto and are enforceable against the Borrower
and the Subsidiaries parties thereto in accordance with their terms (except
as
enforceability may be limited by bankruptcy, insolvency, or similar laws
affecting the enforcement of creditors’ rights generally).
6.2. Upon
the effectiveness of this Agreement and after giving effect hereto, the Borrower
hereby (i) reaffirms all covenants, representations and warranties made in
each
Credit Agreement as amended hereby, and agrees that all such representations
and
warranties shall be true and correct as of the effective date of this Agreement
(unless such representation and warranty is made as of a specific date, in
which
case such representation and warranty shall be true and correct as of such
date)
and (ii) certifies to the Lenders and the Agents that no Default or Event of
Default has occurred and is continuing.
7.
References to the Credit Agreement.
7.1. Upon
the effectiveness of Sections 2, 3
and 4 hereof,
on and
after the date hereof, each reference in each Credit Agreement (including any
reference therein to “this CreditAgreement,”
“hereunder,” “hereof,” “herein” or words of like import referring thereto) or in
any other Loan Document shall mean and be a reference to such Credit Agreement
as amended hereby. Upon the expiration of the Temporary Amendment
Period, each reference in each Credit Agreement (including any reference therein
to “this Credit Agreement,” “hereunder,” “hereof,” “herein” or words of like
import referring thereto) or in any other Loan Document shall mean and be a
reference to such Credit Agreement as amended pursuant to Section 4
hereof.
6
7.2. Except
as specifically amended above, each 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.
7.3. The
execution, delivery and effectiveness of this Agreement shall not operate as
a
waiver of any right, power or remedy of the Administrative 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.
8.
Ratification and
General Release.
8.1. The
Borrower hereby (i) ratifies and reaffirms all of its payment and performance
obligations, contingent or otherwise, under each Credit Agreement and under
the
related Loan Documents, (ii) agrees and acknowledges that such ratification
is
not a condition to the continued effectiveness of either Credit Agreement and
(iii) agrees and acknowledges the obligations of the Borrower under the Credit
Agreements and the related Loan Documents (collectively, the “Obligations”)
constitute legal, valid and binding obligations of the Borrower, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement
of
creditors’ rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law), and that (x) no
offsets, defenses or counterclaims to the Obligations or any other causes of
action with respect to the Obligations, either Credit Agreement or the related
Loan Documents exist and (y) no portion of the Obligations is subject to
avoidance, disallowance, reduction or subordination pursuant to any requirement
of law.
8.2. In
consideration of, among other things, the amendments to the Credit Agreements
provided for herein, the other agreements of the Administrative Agent and the
Lenders contained herein and for other good and valuable consideration, as
of
the date hereof, the Borrower (on behalf of itself and its respective
Subsidiaries and Affiliates), its successors-in-title, legal representatives
and
assignees and, to the extent the same is claimed by right of, through or under
the Borrower, for its past, present and future employees, members, agents,
representatives, officers, directors, shareholders, and trustees, do hereby
and
shall be deemed to have forever remised, released and discharged the
Administrative Agent, the Lenders and each of the other indemnified parties
under the Credit Agreements and any of their respective successors-in-title,
legal representatives and assignees, past, present and future officers,
directors, shareholders, trustees, agents, employees, consultants, experts,
advisors, attorneys and other professionals and all other persons and entities
to whom any of the Administrative Agent, the Lenders or any indemnified party
would be liable if such persons or entities were found to be liable to the
Borrower, or any of them (collectively hereinafter the “Lender Parties”),
from any and
all
manner of action and actions, cause and causes of action, claims, charges,
demands, counterclaims, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, controversies, damages,
judgments, expenses, executions, liens, claims of liens, claims of costs,
penalties, attorneys’ fees, or any other compensation, recovery or relief on
account of any liability, obligation, demand or cause of action of whatever
nature, whether in law, equity or otherwise, whether known or unknown, fixed
or
contingent, joint and/or several, secured or unsecured, due or not due, primary
or secondary, liquidated or unliquidated, contractual or tortious, direct,
indirect, or derivative, asserted or unasserted, foreseen or unforeseen,
suspected or unsuspected, now existing, heretofore existing or which may have
heretofore accrued against any of the Lender Parties, whether held in a personal
or representative capacity, and which are based on any act, fact, event or
omission or other matter, cause or thing occurring at or from any time prior
to
and including the date hereof in any way, directly or indirectly arising out
of,
connected with or relating to this Agreement, either Credit Agreement or any
related Loan Document and the transactions contemplated thereby, and all other
agreements, certificates, instruments and other documents and statements
(whether written or oral) related to any of the foregoing.
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8.3. The
Borrower hereby knowingly, voluntarily, intentionally and expressly waives
and
relinquishes any and all rights and benefits that it may have as against the
Lender Parties under any law, rule or regulation of any jurisdiction that would
have the effect of limiting the extent to which a general release extends to
claims which a Lender Party does not know or suspect to exist as of the date
hereof. The Borrower hereby acknowledges that the foregoing waiver was
separately bargained for and that such waiver is an essential term of this
Agreement, without which the consideration would not have been given by the
Administrative Agent and the Lenders to the Borrower.
8.4. The
provisions of this Section 8 shall
survive the termination of this Agreement, either Credit Agreement and payment
in full of the Obligations and all of the other obligations under the Credit
Agreements.
9.
Miscellaneous.
9.1. Amendment. This
Agreement may not be amended or otherwise modified except as provided in the
Credit Agreements.
9.2.
Consultation with
Counsel. Each of the parties hereto represents to each other
party hereto that it has discussed this Agreement with its counsel.
9.3. GOVERNING
LAW. THIS AGREEMENT 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.
9.4. Headings. Section
headings in this Agreement are included herein for convenience of reference
only
and shall not constitute a part of this Agreement for any other
purpose.
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9.5. Counterparts. This
Agreement may be executed by one or more of the parties to this Agreement on
any
number of separate counterparts and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.
9.6. Severability. Any
provision in this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
[REMAINDER
OF
PAGE INTENTIONALLY BLANK]
9
IN
WITNESS WHEREOF, this Agreement has been duly executed as of the day and year
first above written.
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XXXXXXX
OUTDOORS INC.
BY /s/
Xxxxx
X.
Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer
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JPMORGAN
CHASE BANK, N.A., individually
as
a Lender and as Administrative Agent
BY
/s/ Xxxxx X.
Xxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President
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LASALLE
BANK NATIONAL ASSOCIATION,
as
a Lender
BY
/s/ Xxxxxx X.
Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
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M&I
XXXXXXXX & XXXXXX BANK,
as
a Lender
BY
/s/ Xxxxxx X.
Carry
Name: Xxxxxx X. Carry
Title: Vice President
BY
/s/
Xxxxx
X.
Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
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ASSOCIATED
BANK, N.A., as a Lender
By
/s/ Xxxxxx
Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
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HSBC
BANK USA, NA, as a Lender
BY /s/
Xxxxx
Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Vice President
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THE
PRIVATE BANK AND TRUST COMPANY, as a Lender
BY
/s/ Xxxx
Xxxxx
Name: Xxxx Xxxxx
Title: Associate Managing Director
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XXXXX
FARGO BANK, N.A., as a Lender
BY
/s/
Xxxx X.
Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Vice President
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10
ATTACHMENT
A
REAFFIRMATION
Each
of
the undersigned Subsidiary Guarantors hereby acknowledges receipt of a copy
of
that certain Omnibus Amendment dated as of October 3, 2008 (as the same may
be
amended, restated, supplemented or otherwise modified from time to time, the
“Amendment”),
by and among XXXXXXX OUTDOORS INC. (the “Borrower”), the
financial institutions listed on the signature pages thereof (the “Lenders”), and
JPMORGAN CHASE BANK, N.A., in its individual capacity as a Lender and in its
capacity as contractual representative (the “Administrative
Agent”) under that certain Credit Agreement dated as of October 7, 2005
(as heretofore amended, restated, supplemented and otherwise modified, the
“2005 Credit
Agreement”), by and among the Borrower, certain of the Lenders, and the
Administrative Agent and under that certain Credit Agreement dated as of
February 12, 2008 (as heretofore amended, restated, supplemented and otherwise
modified, the “2008
Credit Agreement” and together with the 2005 Credit Agreement, the “Credit Agreements”),
by and among the Borrower, certain of the Lenders, and the Administrative
Agent. Capitalized terms used in this Reaffirmation and not defined
herein shall have the meanings given to them in the Credit
Agreements. Without in any way establishing a course of dealing by
the Administrative Agent or any Lender, each of the undersigned Subsidiary
Guarantors reaffirms the terms and conditions of (i) the Subsidiary Guaranty
and
any other Loan Document executed by it in connection with the 2005 Credit
Agreement and (ii) the Subsidiary Guaranty and any other Loan Document executed
by it in connection with the 2008 Credit Agreement and acknowledges and agrees
that each such agreement and each and every such Loan Document executed by
the
undersigned Subsidiary Guarantors in connection with the Credit Agreements
remains in full force and effect and is hereby reaffirmed, ratified and
confirmed. All references to either Credit Agreement contained in the
above-referenced documents shall be a reference to such Credit Agreement as
so
modified by the terms of the Amendment and as the same may from time to time
hereafter be amended, modified or restated.
[REMAINDER
OF
PAGE INTENTIONALLY BLANK]
Dated: October
3, 2008
|
OLD
TOWN CANOE COMPANY, as
a
Subsidiary Guarantor
By:
/s/ Xxxxxx
X.
Xxxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxxx
Title: Treasurer
|
TECHSONIC
INDUSTRIES, INC., as a
Subsidiary
Guarantor
By:
/s/ Xxxxxx
X.
Xxxxxxxxxx
Name:
Xxxxxx
X. Xxxxxxxxxx
Title: Secretary
and Treasurer
|
|
|
UNDER
SEA INDUSTRIES, INC., as
a
Subsidiary Guarantor
By: /s/ Xxxxxx
X.
Xxxxxxxxxx
Name:
Xxxxxx
X. Xxxxxxxxxx
Title: Director
|
XXXXXXX
MARINE ELECTRONICS LLC, as a Subsidiary
Guarantor
By:
/s/ Xxxxxx
X.
Xxxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxxx
Title:
Secretary
|
|
|
SCUBAPRO
U.S. LLC, as
a
Subsidiary
Guarantor
By:
/s/ Xxxxxx
X.
Xxxxxxxxxx
Name:
Xxxxxx X. Xxxxxxxxxx
Title: Secretary
|
OUTDOOR
EQUIPMENT GROUP LLC, as a
Subsidiary
Guarantor
By:
/s/ Xxxxxx
X.
Xxxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxxx
Title: Secretary
and Treasurer
|
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