FIFTH AMENDMENT TO CREDIT AGREEMENT
This FIFTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is dated as of
December 21, 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, the other Credit Parties, Agent and Requisite 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, Agent, Requisite Lenders,
Borrower and the Credit Parties agree as follows:
Section 1. Amendment to Credit Amendment. The parties hereto agree that
clause (i) of Section 6.2 of the Credit Amendment is hereby amended and restated
to read in its 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 December 31, 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 December 31, 2004
so long as prior to such investment Agent shall have received, in
form and substance satisfactory to Agent, written evidence that Xxxx-
Xxxxx Xxxxxx Xxx has provided an additional cash equity contribution
of not less than $2,000,000 to the Xiamen Subsidiary"
Section 2. Conditions to Effectiveness. This Amendment shall be effective
upon its execution and delivery by Borrower, each of the other Credit Parties,
Agent and Requisite Lender.
Section 3. 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 4. 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 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 an
d be a reference to the Credit Agreement as amended hereby.
Section 5. 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 6. 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 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 purposes.
Section 8. 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. Xxxx Xxxx
Name: S. Xxxx Xxxx
Title: CFO
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent and Lender
By: /s/ Xxxxxx Xxxxxx
Duly Authorized Signatory
THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Lender
By: /s/ Xxxxxx X. Xxxxxxxx
Duly Authorized Signatory
JPMORGAN CHASE BANK,
as a Lender
By: /s/ Xxxxx X. Xxxxxxxxx
Duly Authorized Signatory
FLEET CAPITAL CORPORATION,
as a Lender
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
Duly Authorized Signatory
SIEMENS FINANCIAL SERVICES, INC.,
as a Lender
By: /s/ Xxxxx Xxxxxx
Duly Authorized Signatory
ZIONS FIRST NATIONAL BANK,
as a Lender
By: /s/ Xxx X. Xxxxxxxxxxx
Duly Authorized Signatory
GMAC COMMERCIAL FINANCE, LLC (f/k/a GMAC Business Credit, LLC),
as a Lender
By: /s/ Xxxxxx X. XxXxxxxx
Duly Authorized Signatory
XXXXX FARGO FOOTHILL, LLC,
as a Lender
By:
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. Xxxx Xxxx
Name: S. Xxxx Xxxx
Title: CFO
JUMPKING, INC.
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Secretary
ICON INTERNATIONAL HOLDINGS, INC.
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Secretary
UNIVERSAL TECHNICAL SERVICES
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Secretary
ICON DU CANADA INC./ICON OF CANADA INC.
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Secretary
510152 N.B. LTD.
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Vice President & Secretary
NORDICTRACK, INC.
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Secretary
ICON IP., INC.
By: /s/ S. Xxxx Xxxx
Name: S. Xxxx Xxxx
Title: President
FREE MOTION FITNESS, INC.
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Secretary
