form8k.htm
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of
the
Securities Exchange Act of 1934
Date of
Report (Date of earliest event reported): February 12,
2008
Johnson
Outdoors Inc.
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(Exact
name of registrant as specified in its
charter)
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Wisconsin
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0-16255
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39-1536083
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(State
or other jurisdiction of incorporation)
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(Commission
File Number)
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(IRS
Employer Identification No.)
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555
Main Street, Racine, Wisconsin 53403
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(Address
of principal executive offices, including zip
code)
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(262)
631-6600
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(Registrant's
telephone number, including area
code)
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Not
Applicable
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(Former
name or former address, if changed since last
report)
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Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
£
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Written communications pursuant
to Rule 425 under the Securities Act (17 CFR
230.425)
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£
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Soliciting material pursuant to
Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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£
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Pre-commencement communications
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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£
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Pre-commencement communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Section
1 - Registrant's Business and Operations
Item
1.01
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Entry
into a Material Definitive
Agreement
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On
February 12, 2008, Johnson Outdoors, Inc. (the "Company") entered into a
Term Loan Agreement, dated as of February 12, 2008 (the Term Loan Agreement”),
with JPMorgan Chase Bank N.A., as lender and agent and the other lenders named
therein. On the same date, the Company entered into an Amended and
Restated Credit Agreement (the "Amended Credit Agreement"), with JPMorgan Chase
Bank, N.A., as lender and agent, and the other lenders named therein. This
amendment updates the Company's October 7, 2005 credit facility.
The new credit facility consists of a
$60 million term loan maturing in five years from the date of the Term Loan
Agreement. The term loan bears interest at a LIBOR rate plus an applicable
margin. The applicable margin is based on the Company’s ratio of consolidated
debt to earnings before interest, taxes, depreciation and amortization (EBITDA)
and varies between 1.25% and 2.00%. At February 12, 2008, the margin in effect
was 1.50% for LIBOR loans. Under the terms of the credit facility, the Company
will be required to comply with certain financial and non-financial covenants.
Among other restrictions, the Company will be restricted in its ability to pay
dividends, incur additional debt and make acquisitions above certain amounts.
The key financial covenants include minimum fixed charge coverage and leverage
ratios. The most significant changes to the previous covenants include the
minimum fixed charge coverage ratio increasing from 2.0 to 2.25 and the pledge
of 65% of the shares of material foreign subsidiaries.
The Term
Loan Agreement is attached hereto as Exhibit 99.1 and is incorporated
herein by reference. The Amended Credit Agreement is attached
hereto as Exhibit 99.2 and is incorporated herein by
reference.
Section
2 - Financial Information
Item
2.03
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Creation
of a Direct Financial Obligation or an Obligation under an Off-Balance
Sheet Arrangement of a Registrant
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On
February 12, 2008, the Company became obligated on a direct financial obligation
pursuant to the Term Loan Agreement, as described in Item 1.01
above.
Section
9 - Financial Statements and Exhibits
Item
9.01
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Financial
Statements and Exhibits
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(d) Exhibits
The
following exhibits are filed herewith:
Exhibit 99.1 – Term Loan Agreement, dated as of
February 12, 2008, among Johnson Outdoors, Inc., JPMorgan Chase Bank, N.A.,
as lender and agent, and the other lenders named therein.
Exhibit 99.2 - Amended and Restated Credit Agreement,
dated as of February 12, 2008, among Johnson Outdoors, Inc., JPMorgan Chase
Bank, N.A., as lender and agent, and the other lenders named
therein.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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JOHNSON
OUTDOORS INC.
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Date: February
19, 2008
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By:
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/s/
David W. Johnson
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David
W. Johnson, Vice President and Chief Financial
Officer
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ex99_1.htm
EXECUTION
COPY
CREDIT
AGREEMENT
dated as
of
February
12, 2008
among
JOHNSON
OUTDOORS INC.
The
Lenders Party Hereto
and
JPMORGAN
CHASE BANK, N.A.
as
Administrative Agent
J.P.
MORGAN SECURITIES INC.
as Sole
Bookrunner and Sole Lead Arranger
TABLE OF
CONTENTS
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Page
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ARTICLE
I Definitions
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SECTION
1.01.
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Defined
Terms
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1
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SECTION
1.02.
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Classification
of Loans and Borrowings
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17
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SECTION
1.03.
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Terms
Generally
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17
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SECTION
1.04.
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Accounting
Terms; GAAP
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18
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ARTICLE
II The Credits
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18
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SECTION
2.01.
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Commitments
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18
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SECTION
2.02.
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Loans
and Borrowings
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18
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SECTION
2.03.
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Borrowing
Type
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18
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SECTION
2.04.
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Funding
of Borrowings
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19
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SECTION
2.05.
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Repayment
of Loans; Evidence of Debt
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19
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SECTION
2.06.
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Prepayment
of Loans
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20
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SECTION
2.07.
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Fees
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20
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SECTION
2.08.
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Interest
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20
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SECTION
2.09.
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Alternate
Rate of Interest
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21
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SECTION
2.10.
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Increased
Costs
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21
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SECTION
2.11.
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Break
Funding Payments
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22
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SECTION
2.12.
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Taxes
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23
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SECTION
2.13.
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Payments
Generally; Pro Rata Treatment; Sharing of Set-offs.
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24
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SECTION
2.14.
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Mitigation
Obligations; Replacement of Lenders
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25
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ARTICLE
III Representations and Warranties
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26
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SECTION
3.01.
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Organization;
Powers; Subsidiaries
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26
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SECTION
3.02.
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Authorization;
Enforceability
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26
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SECTION
3.03.
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Governmental
Approvals; No Conflicts
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27
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SECTION
3.04.
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Financial
Condition; No Material Adverse Change
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27
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SECTION
3.05.
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Properties
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27
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SECTION
3.06.
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Litigation
and Environmental Matters
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27
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SECTION
3.07.
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Compliance
with Laws and Agreements
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28
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SECTION
3.08.
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Investment
Company Status
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28
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SECTION
3.09.
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Taxes
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28
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SECTION
3.10.
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ERISA
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28
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SECTION
3.11.
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Disclosure
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28
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SECTION
3.12.
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Federal
Reserve Regulations
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29
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SECTION
3.13.
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No
Default
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29
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ARTICLE
IV Conditions
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29
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SECTION
4.01.
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Effective
Date
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29
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Table of
Contents
(continued)
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Page
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ARTICLE
V Affirmative Covenants
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30
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SECTION
5.01.
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Financial
Statements and Other Information
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30
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SECTION
5.02.
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Notices
of Material Events
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32
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SECTION
5.03.
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Existence;
Conduct of Business
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32
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SECTION
5.04.
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Payment
of Obligations
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32
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SECTION
5.05.
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Maintenance
of Properties; Insurance
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32
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SECTION
5.06.
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Books
and Records; Inspection Rights
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33
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SECTION
5.07.
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Compliance
with Laws
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33
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SECTION
5.08.
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Use
of Proceeds
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33
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SECTION
5.09.
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Subsidiary
Guaranty
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33
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SECTION
5.10.
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Pledge
Agreements
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33
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ARTICLE
VI Negative Covenants
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34
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SECTION
6.01.
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Indebtedness
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34
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SECTION
6.02.
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Liens
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35
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SECTION
6.03.
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Fundamental
Changes
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36
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SECTION
6.04.
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Investments,
Loans, Advances, Guarantees and Acquisitions
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36
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SECTION
6.05.
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Asset
Sales
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38
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SECTION
6.06.
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Sale
and Leaseback Transactions
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39
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SECTION
6.07.
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Swap
Agreements
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39
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SECTION
6.08.
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Restricted
Payments
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40
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SECTION
6.09.
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Transactions
with Affiliates
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40
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SECTION
6.10.
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Restrictive
Agreements
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40
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SECTION
6.11.
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Amendment
of Material Documents
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40
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SECTION
6.12.
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[Intentionally
Omitted].
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41
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SECTION
6.13.
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Financial
Covenants.
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41
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SECTION
6.14.
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Fiscal
Year
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41
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ARTICLE
VII Events of Default
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41
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ARTICLE
VIII The Administrative Agent
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44
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ARTICLE
IX Miscellaneous
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46
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SECTION
9.01.
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Notices
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46
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SECTION
9.02.
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Waivers;
Amendments
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47
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SECTION
9.03.
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Expenses;
Indemnity; Damage Waiver
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48
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SECTION
9.04.
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Successors
and Assigns
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49
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SECTION
9.05.
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Survival
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52
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SECTION
9.06.
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Counterparts;
Integration; Effectiveness
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52
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Table of
Contents
(continued)
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Page
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SECTION
9.07.
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Severability
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52
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SECTION
9.08.
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Right
of Setoff
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53
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SECTION
9.09.
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Governing
Law; Jurisdiction; Consent to Service of Process
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53
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SECTION
9.10.
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WAIVER
OF JURY TRIAL
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53
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SECTION
9.11.
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Headings
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54
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SECTION
9.12.
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Confidentiality
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54
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SECTION
9.13.
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USA
PATRIOT Act
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54
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Table of
Contents
(continued)
SCHEDULES:
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Schedule
1.01 – Excluded Subsidiaries
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Schedule
2.01 – Commitments
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Schedule
3.01 – Subsidiaries
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Schedule
6.01 – Existing Indebtedness
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Schedule
6.02 – Existing Liens
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Schedule
6.04 – Existing Investments
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Schedule
6.10 – Existing Restrictions
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EXHIBITS:
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Exhibit
A – Form of Assignment and Assumption
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Exhibit
B – Form of Opinion of Loan Parties’ Counsel
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Exhibit
C – List of Closing Documents
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CREDIT
AGREEMENT dated as of February 12, 2008 among JOHNSON OUTDOORS INC., the LENDERS
party hereto and JPMORGAN CHASE BANK, N.A., as Administrative
Agent.
The
parties hereto agree as follows:
ARTICLE
I
Definitions
SECTION
1.01. Defined
Terms. As used in this Agreement, the following terms have the
meanings specified below:
“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.
“ABR”, when used in
reference to any Loan or Borrowing, refers to whether such Loan, or the Loans
comprising such Borrowing, are bearing interest at a rate determined by
reference to the Alternate Base Rate.
“Acquisition” means
any transaction, or any series of related transactions, consummated on or after
the date of this Agreement, by which the Borrower or any of its Subsidiaries (i)
acquires any going business or all or substantially all of the assets of any
firm, corporation or limited liability company or other business entity, or
division thereof, whether through purchase of assets, merger or otherwise or
(ii) directly or indirectly acquires (in one transaction or as the most recent
transaction in a series of transactions) at least a majority (in number of
votes) of the securities of a corporation which have ordinary voting power for
the election of directors (other than securities having such power only by
reason of the happening of a contingency) or a majority (by percentage of voting
power) of the outstanding ownership interests of a partnership or limited
liability company or other business entity.
“Adjusted LIBO Rate”
means, with respect to any Eurocurrency Borrowing for any Interest Period, an
interest rate per annum equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.
“Administrative Agent”
means JPMorgan Chase Bank, N.A., in its capacity as administrative agent for the
Lenders hereunder.
“Administrative
Questionnaire” means an Administrative Questionnaire in a form supplied
by the Administrative Agent.
“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.
“Alternate Base Rate”
means, for any day, a rate per annum equal to the greater of (a) the Prime Rate
in effect on such day and (b) the Federal Funds Effective Rate in effect on such
day plus ½ of 1%. Any change in the Alternate Base Rate due to a
change in the Prime Rate or the Federal Funds Effective Rate shall be effective
from and including the effective date of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively.
“Applicable
Percentage” means, with respect to any Lender, the percentage of the
total Commitments represented by such Lender’s Commitment. If the
Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
“Applicable Rate”
means, for any day, with respect to any Eurocurrency Loan or ABR Loan, the
applicable rate per annum set forth below under the caption “Eurocurrency
Margin” or “ABR Margin” as the case may be, based upon the Leverage Ratio
applicable on such date:
Category:
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Leverage
Ratio:
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Eurocurrency
Margin
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ABR
Margin
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1
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< 1.5
to 1.0
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1.25%
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0.25%
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2
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> 1.5 to
1.0 but < 3.0 to
1.0
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1.50%
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0.50%
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3
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> 3.0 to 1.0
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2.00%
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1.00%
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For
purposes of the foregoing,
(i) if at
any time the Borrower fails to deliver the Financials on or before the 30th day
after the date the Financials are due, Category 3 (as identified in the above
table) shall be deemed applicable for the period commencing five (5) Business
Days after such 30th day and
ending on the date which is five (5) Business Days after the Financials are
actually delivered, after which the Category shall be determined in accordance
with the table above as applicable;
(ii)
adjustments, if any, to the Category then in effect shall be effective five (5)
Business Days after the Administrative Agent has received the applicable
Financials (it being understood and agreed that each change in Category shall
apply during the period commencing on the effective date of such change and
ending on the date immediately preceding the effective date of the next such
change); and
(iii)
notwithstanding the foregoing, Category 2 (as identified in the above table)
shall be deemed to be applicable until the Administrative Agent’s receipt of the
applicable Financials for the Borrower’s fiscal quarter ending on or about March
31, 2008, and adjustments to the Category then in effect shall thereafter be
effected in accordance with the preceding paragraphs.
“Approved Fund” has
the meaning assigned to such term in Section 9.04.
“Assignment and
Assumption” means an assignment and assumption entered into by a Lender
and an assignee (with the consent of any party whose consent is required by
Section 9.04), and accepted by the Administrative Agent, in the form of Exhibit A or any
other form approved by the Administrative Agent.
“Board” means the
Board of Governors of the Federal Reserve System of the United States of
America.
“Borrower” means
Johnson Outdoors Inc., a Wisconsin corporation.
“Borrowing” means
Loans of the same Type, made, converted or continued on the same date and, in
the case of Eurocurrency Loans, as to which a single Interest Period is in
effect.
“Borrowing Request”
means a request by the Borrower for a Borrowing in accordance with Section
2.03.
“Business Day” means
any day that is not a Saturday, Sunday or other day on which commercial banks in
New York City are authorized or required by law to remain closed; provided that,
when used in connection with a Eurocurrency Loan, the term “Business Day” shall
also exclude any day on which banks are not open for dealings in Dollars in the
London interbank market.
“Capital Expenditures”
means, without duplication, any expenditures or commitment to expend money for
any purchase or other acquisition of any asset which would be classified as a
fixed or capital asset on a consolidated balance sheet of the Borrower and its
Subsidiaries prepared in accordance with GAAP.
“Capital Lease
Obligations” of any Person means the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the
right to use) real or personal property, or a combination thereof, which
obligations are required to be classified and accounted for as capital leases on
a balance sheet of such Person under GAAP, and the amount of such obligations
shall be the capitalized amount thereof determined in accordance with
GAAP.
“Change in Control”
means (a) the Johnson Family shall at any time fail to own stock having, in the
aggregate, votes sufficient to elect at least a fifty-one percent (51%) majority
of the Board of Directors of the Borrower; (b) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder as in effect on the date hereof)
other than the Johnson Family, of Equity Interests representing more than 30% of
the aggregate ordinary voting power represented by the issued and outstanding
Equity Interests of the Borrower; (c) occupation of a majority of the seats
(other than vacant seats) on the board of directors of the Borrower by Persons
who were neither (i) nominated by the board of directors of the Borrower nor
(ii) appointed by directors so nominated; (d) the acquisition of direct or
indirect Control of the Borrower by any Person or group other than the Johnson
Family; (e) except as expressly permitted under the terms of this Agreement,
including, without limitation, pursuant to Section 6.05, the Borrower
consolidates with or merges into another Person or conveys, transfers or leases
all or substantially all of its property to any Person, or any Person
consolidates with or merges into the Borrower, in either event pursuant to a
transaction in which the outstanding Equity Interests of the Borrower is
reclassified or changed into or exchanged for cash, securities or other
property; or (f) except as otherwise expressly permitted under the terms of this
Agreement, the Borrower shall cease to own and control, directly or indirectly,
all of the economic and voting rights associated with all of the outstanding
Capital Stock of each of the Borrower’s Subsidiaries or shall cease to have the
power, directly or indirectly, to elect all of the members of the board of
directors of each of the Borrower’s Subsidiaries.
“Change in Law” means
(a) the adoption of any law, rule or regulation after the date of this
Agreement, (b) any change in any law, rule or regulation or in the
interpretation or application thereof by any Governmental Authority after the
date of this Agreement or (c) compliance by any Lender (or, for purposes of
Section 2.11(b), by any lending office of such Lender or by such Lender’s
holding company, if any) with any request, guideline or directive (whether or
not having the force of law) of any Governmental Authority made or issued after
the date of this Agreement.
“Code” means the
Internal Revenue Code of 1986, as amended from time to time.
“Commitment” means,
with respect to each Lender, the commitment of such Lender to make a Loan,
expressed as an amount representing the maximum aggregate amount of such
Lender’s Credit Exposure hereunder, as such commitment may be reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The amount of each Lender’s Commitment is
set forth on Schedule
2.01, or in the Assignment and Assumption pursuant to which such Lender
shall have assumed its Commitment, as applicable. The initial
aggregate amount of the Lenders’ Commitments is $60,000,000.
“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.
“Consolidated Interest
Expense” means, with reference to any period, total interest expense
(including that attributable to Capital Lease Obligations) of the Borrower and
its Subsidiaries for such period with respect to all outstanding Indebtedness of
the Borrower and its Subsidiaries (including all commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers’
acceptance financing and net costs under Swap Agreements in respect of interest
rates to the extent such net costs are allocable to such period in accordance
with GAAP), calculated on a consolidated basis for the Borrower and its
Subsidiaries for such period in accordance with GAAP.
“Consolidated Net
Income” means, with reference to any period, the net income (or loss) of
the Borrower and its Subsidiaries calculated in accordance with GAAP on a
consolidated basis (without duplication) for such period.
“Consolidated Net
Worth” means, at any time, the total consolidated stockholders’ equity of
the Borrower and its Subsidiaries calculated in accordance with GAAP on a
consolidated basis as of such time.
“Consolidated Rent
Expense” means, with reference to any period, all payments under
Operating Leases to the extent deducted in computing Consolidated Net Income,
calculated in accordance with GAAP for the Borrower and its Subsidiaries on a
consolidated basis for such period.
“Consolidated Total
Assets” means, as of the date of any determination thereof, total assets
of the Borrower and its Subsidiaries calculated in accordance with GAAP on a
consolidated basis as of such date.
“Consolidated Total
Indebtedness” means at any time the sum, without duplication, of the
aggregate Indebtedness of the Borrower and its Subsidiaries calculated on a
consolidated basis as of such time in accordance with GAAP.
“Control” means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ability
to exercise voting power, by contract or otherwise. “Controlling” and
“Controlled” have meanings correlative thereto.
“Credit Exposure”
means, with respect to any Lender at any time, the outstanding principal amount
of such Lender’s Loan at such time.
“Default” means any
event or condition which constitutes an Event of Default or which upon notice,
lapse of time or both would, unless cured or waived, become an Event of
Default.
“Dollars” or “$” refers to lawful
money of the United States of America.
“Domestic Subsidiary”
means a Subsidiary organized under the laws of a jurisdiction located in the
United States of America.
“Effective Date” means
the date on which the conditions specified in Section 4.01 are satisfied (or
waived in accordance with Section 9.02).
“Electronic Delivery”
has the meaning set forth in Section 5.01(a).
“Environmental Laws”
means all laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by any Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural resources, the management,
release or threatened release of any Hazardous Material or to health and safety
matters.
“Environmental
Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or
indemnities), of the Borrower or any Subsidiary directly or indirectly resulting
from or based upon (a) violation of any Environmental Law, (b) the generation,
use, handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or (e) any
contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.
“Equity Interests”
means shares of capital stock, partnership interests, membership interests in a
limited liability company, beneficial interests in a trust or other equity
ownership interests in a Person, and any warrants, options or other rights
entitling the holder thereof to purchase or acquire any such equity
interest.
“ERISA” means the
Employee Retirement Income Security Act of 1974, as amended from time to
time.
“ERISA Affiliate”
means any trade or business (whether or not incorporated) that, together with
the Borrower, is treated as a single employer under Section 414(b) or (c) of the
Code or, solely for purposes of Section 302 of ERISA and Section 412 of the
Code, is treated as a single employer under Section 414 of the
Code.
“ERISA Event” means
(a) any “reportable event”, as defined in Section 4043 of ERISA or the
regulations issued thereunder with respect to a Plan (other than an event for
which the 30-day notice period is waived); (b) the existence with respect to any
Plan of an “accumulated funding deficiency” (as defined in Section 412 of the
Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to
Section 412(d) of the Code or Section 303(d) of ERISA of an application for a
waiver of the minimum funding standard with respect to any Plan; (d) the
incurrence by the Borrower or any of its ERISA Affiliates of any liability under
Title IV of ERISA with respect to the termination of any Plan; (e) the receipt
by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of
any notice relating to an intention to terminate any Plan or Plans or to appoint
a trustee to administer any Plan; (f) the incurrence by the Borrower or any of
its ERISA Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the
Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
“Eurocurrency”, when
used in reference to any Loan or Borrowing, refers to whether such Loan, or the
Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate.
“Event of Default” has
the meaning assigned to such term in Article VII.
“Excluded
Subsidiaries” means the Subsidiaries listed in Schedule 1.01
hereto.
“Excluded Taxes”
means, with respect to the Administrative Agent, any Lender or any other
recipient of any payment to be made by or on account of any obligation of the
Borrower hereunder, (a) income or franchise taxes imposed on (or measured by)
its net income by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction in which the Borrower is located and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Borrower under
Section 2.15(b)), any withholding tax that is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this Agreement
(or designates a new lending office) or is attributable to such Foreign Lender’s
failure to comply with Section 2.13(e), except to the extent that such Foreign
Lender (or its assignor, if any) was entitled, at the time of designation of a
new lending office (or assignment), to receive additional amounts from the
Borrower with respect to such withholding tax pursuant to Section
2.13(a).
“Federal Funds Effective
Rate” means, for any day, the weighted average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day that
is a Business Day, the average (rounded upwards, if necessary, to the next 1/100
of 1%) of the quotations for such day for such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
“Financial Officer”
means the chief financial officer, principal accounting officer, treasurer or
controller of the Borrower.
“Financials” means the
annual or quarterly financial statements, and accompanying certificates and
other documents, of the Borrower required to be delivered pursuant to Section
5.01(a) or 5.01(b).
“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.
“Fixed Charge Coverage
Ratio” means, the ratio, determined as of the end of each fiscal quarter
of the Borrower for the most-recently ended four fiscal quarters, of (i) the sum
of (a) Consolidated EBITDA for such period, plus (b) Consolidated Rent Expense
for such period, to (ii) the sum of (a) Consolidated Interest Expense during
such period, plus (b) Consolidated Rent Expense for such period, all calculated
for the Borrower and its Subsidiaries on a consolidated basis in accordance with
GAAP, provided that solely for purposes of Section 6.13(a), to the extent the
Borrower or any Subsidiary makes any Acquisition permitted pursuant to Section
6.04 or consented to by the Required Lenders or disposition of assets
outside the ordinary course of business that is permitted by Section 6.05 or
consented to by the Required Lenders (or all of the Lenders to the extent
required by Section 9.02) during the period of four fiscal quarters of the
Borrower most recently ended, the Fixed Charge Coverage Ratio shall be
calculated after giving pro forma effect thereto (including pro forma
adjustments arising out of events which are directly attributable to the
Acquisition or the disposition of assets, 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, and as certified by a Financial Officer of
the Borrower and reasonably satisfactory to the Administrative Agent), as if
such Acquisition or such disposition (and any related incurrence, repayment or
assumption of Indebtedness) had occurred in the first day of such four quarter
period.
“Foreign Lender” means
any Lender that is organized under the laws of a jurisdiction other than that in
which the Borrower is located. For purposes of this definition, the
United States of America, each State thereof and the District of Columbia shall
be deemed to constitute a single jurisdiction.
“Foreign Subsidiary”
means any Subsidiary other than a Domestic Subsidiary.
“GAAP” means generally
accepted accounting principles in the United States of America.
“Governmental
Authority” means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and
any agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
“Guarantee” of or by
any Person (the “guarantor”) means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the “primary obligor”) in
any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or other obligation or
to purchase (or to advance or supply funds for the purchase of) any security for
the payment thereof, (b) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness or other obligation
of the payment thereof, (c) to maintain working capital, equity capital or any
other financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness or other obligation or (d)
as an account party in respect of any letter of credit or letter of guaranty
issued to support such Indebtedness or obligation; provided, that the
term Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business.
“Hazardous Materials”
means all explosive or radioactive substances or wastes and all hazardous or
toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated
biphenyls, radon gas, infectious or medical wastes and all other substances or
wastes of any nature regulated pursuant to any Environmental Law.
“Hostile Acquisition”
means (a) the acquisition of the Equity Interests of a Person through a tender
offer or similar solicitation of the owners of such Equity Interests which has
not been approved (prior to such acquisition) by the board of directors (or any
other applicable governing body) of such Person or by similar action if such
Person is not a corporation and (b) any such acquisition as to which such
approval has been withdrawn.
“Indebtedness” of any
Person means, without duplication, (a) all obligations of such Person for
borrowed money or with respect to advances of any kind to such Person,
(b) all obligations of such Person evidenced by bonds, debentures, notes or
similar instruments, (c) all obligations of such Person upon which interest
charges are customarily paid, (d) all obligations of such Person under
conditional sale or other title retention agreements relating to property
acquired by such Person, (e) all obligations of such Person in respect of
the deferred purchase price of property or services (excluding current accounts
payable incurred in the ordinary course of business), (f) all Indebtedness
of others secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien on property
owned or acquired by such Person, whether or not the Indebtedness secured
thereby has been assumed, (g) all Guarantees by such Person of Indebtedness
of others, (h) all Capital Lease Obligations of such Person, (i) all
obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers’
acceptances. The Indebtedness of any Person shall include the
Indebtedness of any other entity (including any partnership in which such Person
is a general partner) to the extent such Person is liable therefor as a result
of such Person’s ownership interest in or other relationship with such entity,
except to the extent the terms of such Indebtedness provide that such Person is
not liable therefor.
“Indemnified Taxes”
means Taxes other than Excluded Taxes.
“Information
Memorandum” means the Confidential Information Memorandum dated January
2008 relating to the Borrower.
“Interest Payment
Date” means (a) with respect to any ABR Loan, the last day of each March,
June, September and December and the Maturity Date, and (b) with respect to any
Eurocurrency Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part.
“Interest Period”
means with respect to any Eurocurrency Borrowing, the period commencing on the
date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is three months thereafter or such shorter period as may be
agreed to by the Administrative Agent with respect to the initial Borrowing, as
the Borrower may elect; provided, that (i) if any Interest Period would end on a
day other than a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless such next succeeding Business Day would fall
in the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day and (ii) any Interest Period that commences on the
last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and, in the case of
a Borrowing, thereafter shall be the effective date of the most recent
conversion or continuation of such Borrowing.
“Investment” of a
Person means any loan, advance (other than commission, travel and similar
advances to officers, employees or agents made in the ordinary course of
business), extension of credit (other than receivables and inventory arising in
the ordinary course of business) or contribution of capital by such Person;
stocks, bonds, mutual funds, partnership interests, notes, debentures or other
securities owned by such Person; any deposit accounts and certificates of
deposit owned by such Person; and structured notes, derivative financial
instruments and other similar instruments or contracts owned by such Person and
shall include any Acquisition.
“Johnson Family” shall
mean at any time, collectively, the estate of Samuel C. Johnson, the widow of
Samuel C. Johnson and the children and grandchildren of Samuel C. Johnson, 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.
“Lenders” means the
Persons listed on Schedule 2.01 and any
other Person that shall have become a party hereto pursuant to an Assignment and
Assumption, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Assumption.
“Leverage Ratio”
means, on any date, the ratio of (a) Consolidated Total Indebtedness on such
date to (b) Consolidated EBITDA for the period of four consecutive fiscal
quarters ended on such date (or, if such date is not the last day of a fiscal
quarter, ended on the last day of the fiscal quarter most recently ended prior
to such date), provided that solely for purposes of the definition of
“Applicable Rate” and Section 6.13(b), (i) Consolidated Total Indebtedness shall
be calculated as of the last day of each fiscal quarter based upon the average
quarter-end Consolidated Total Indebtedness for the four-quarter period ending
as of the last day of such fiscal quarter and (ii) to the extent the Borrower or
any Subsidiary makes any Acquisition permitted pursuant to Section 6.04 or
consented to by the Required Lenders or disposition of assets outside the
ordinary course of business that is permitted by Section 6.05 or consented to by
the Required Lenders during the period of four fiscal quarters of the Borrower
most recently ended, the Leverage Ratio shall be calculated after giving pro
forma effect thereto (including pro forma adjustments arising out of events
which are directly attributable to the Acquisition or the disposition of assets,
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, and as
certified by a Financial Officer of the Borrower), as if such Acquisition or
such disposition (and any related incurrence, repayment or assumption of
Indebtedness) had occurred in the first day of such four quarter
period.
“LIBO Rate” means,
with respect to any Eurocurrency Borrowing for any Interest Period, the rate
appearing on Reuters British Bankers Association Libor Rates Page 3750 (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to deposits in Dollars in the London interbank market)
at approximately 11:00 a.m., London time, two (2) Business Days prior to the
commencement of such Interest Period, as the rate for deposits in Dollars with a
maturity comparable to such Interest Period, provided, however that for the
Interest Period commencing on the Effective Date and ending on March 14, 2008,
the LIBO Rate shall be equal to the rate for deposits in Dollars with a
one-month maturity as of two (2) Business Days prior to the Effective
Date. In the event that such rate is not available at such time for
any reason, then the “LIBO Rate” with
respect to such Eurocurrency Borrowing for such Interest Period shall be the
rate at which deposits in Dollars in an amount of $5,000,000 and for a maturity
comparable to such Interest Period are offered by the principal London office of
the Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two (2) Business Days prior to
the commencement of such Interest Period.
“Lien” means, with
respect to any asset, (a) any mortgage, deed of trust, lien, pledge,
hypothecation, encumbrance, charge or security interest in, on or of such asset,
(b) the interest of a vendor or a lessor under any conditional sale agreement,
capital lease or title retention agreement (or any financing lease having
substantially the same economic effect as any of the foregoing) relating to such
asset and (c) in the case of securities, any purchase option, call or similar
right of a third party with respect to such securities.
“Loan” means a Loan
made pursuant to Section 2.03.
“Loans” means the
loans made by the Lenders to the Borrower pursuant to this
Agreement.
“Loan Documents” means
this Agreement, the Subsidiary Guaranty, the Pledge Agreements, any promissory
notes executed and delivered pursuant to Section 2.05(e) and any and all other
instruments and documents executed and delivered in connection with any of the
foregoing.
“Loan Parties” means,
collectively, the Borrower and the Subsidiary Guarantors.
“Material Adverse
Effect” means a material adverse effect on (a) the business, assets,
property, condition (financial or otherwise), operations or prospects, of the
Borrower and the Subsidiaries taken as a whole or (b) the validity or
enforceability of this Agreement any or any and all other Loan Documents or the
rights or remedies of the Administrative Agent and the Lenders
thereunder.
“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.
“Material
Indebtedness” means Indebtedness (other than the Loans), or obligations
in respect of one or more Swap Agreements, of any one or more of the Borrower
and its Subsidiaries in an aggregate principal amount exceeding
$5,000,000. For purposes of determining Material Indebtedness, the
“principal amount” of the obligations of the Borrower or any Subsidiary in
respect of any Swap Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that the Borrower or such Subsidiary
would be required to pay if such Swap Agreement were terminated at such
time.
“Maturity Date” means
February 12, 2013.
“Moody’s” means
Moody’s Investors Service, Inc.
“Multiemployer Plan”
means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
“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.
“Operating Lease” of a
Person means any lease of property (other than a capital lease under GAAP) by
such Person as lessee which has an original term (including any required
renewals and any renewals effective at the option of the lessor) of one year or
more.
“Other Subsidiary
Investment” means, for any period of determination, the sum, without
duplication, of (i) the aggregate principal amount of all intercompany loans
made during such period by any Loan Party to any Subsidiary which is not a Loan
Party (less all repayments in immediately available funds of such intercompany
loans during such period); (ii) the aggregate principal amount of Indebtedness
of any Subsidiary which is not a Loan Party at the end of such period subject to
Guarantees by any Loan Party; (iii) all Investments made during such period by
any Loan Party in any Subsidiary which is not a Loan Party; and (iv) an amount
equal to the net benefit derived by any Subsidiary which is not a Loan Party
resulting from any non-arm’s-length transactions, or any other transfer of
assets conducted, in each case entered into during such period, between any Loan
Party, on the one hand, and such Subsidiary, on the other hand, other than (a)
transactions in the ordinary course of business and (b) in respect of legal,
accounting, reporting, listing and similar administrative services provided by
any Loan Party to such Subsidiary in the ordinary course of business consistent
with past practice.
“Other Taxes” means
any and all present or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies arising from any payment made
hereunder or from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement.
“Participant” has the
meaning set forth in Section 9.04.
“PBGC” means the
Pension Benefit Guaranty Corporation referred to and defined in ERISA and any
successor entity performing similar functions.
“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.
“Permitted
Encumbrances” means:
(a) Liens
imposed by law for taxes that are not yet due or are being contested in
compliance with Section 5.04;
(b) carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens
imposed by law, arising in the ordinary course of business and securing
obligations that are not overdue by more than sixty (60) days or are being
contested in compliance with Section 5.04;
(c) pledges
and deposits made in the ordinary course of business in compliance with workers’
compensation, unemployment insurance and other social security laws or
regulations;
(d) deposits
to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of
a like nature, in each case in the ordinary course of business;
(e) judgment
liens in respect of judgments that do not constitute an Event of Default under
clause (k) of Article VII; and
(f) easements,
zoning restrictions, rights-of-way and similar encumbrances on real property
imposed by law or arising in the ordinary course of business that do not secure
any monetary obligations and do not materially detract from the value of the
affected property or interfere with the ordinary conduct of business of the
Borrower or any Subsidiary;
provided that the
term “Permitted Encumbrances” shall not include any Lien securing
Indebtedness.
“Permitted
Investments” means:
(a) direct
obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any agency
thereof to the extent such obligations are backed by the full faith and credit
of the United States of America), in each case maturing within one year from the
date of acquisition thereof;
(b) investments
in commercial paper maturing within 270 days from the date of acquisition
thereof and having, at such date of acquisition, the highest credit rating
obtainable from S&P or from Moody’s;
(c) investments
in certificates of deposit, banker’s acceptances and time deposits maturing
within 180 days from the date of acquisition thereof issued or guaranteed by or
placed with, and demand and money market deposit accounts issued or offered by,
any domestic office of any commercial bank organized under the laws of the
United States of America or any State thereof which has a combined capital and
surplus and undivided profits of not less than $500,000,000;
(d) fully
collateralized repurchase agreements with a term of not more than thirty (30)
days for securities described in clause (a) above and entered into with a
financial institution satisfying the criteria described in clause (c)
above;
(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 Moody’s and (iv) have portfolio assets of at least $5,000,000,000;
and
(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 Moody’s.
“Person” means any
natural person, corporation, limited liability company, trust, joint venture,
association, company, partnership, Governmental Authority or other
entity.
“Plan” means any
employee pension benefit plan (other than a Multiemployer Plan) subject to the
provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of
ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if
such plan were terminated, would under Section 4069 of ERISA be deemed to be) an
“employer” as defined in Section 3(5) of ERISA.
“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
Section 5.10 in favor of the Administrative Agent for the benefit of the Secured
Parties and in favor of the “Administrative Agent” for the benefit of
the “Secured Parties” under that certain Credit Agreement, dated as of October
5, 2007, by and among Johnson Outdoors Inc., as borrower, the lenders party
thereto and JPMorgan Chase Bank, N.A., in its capacity as administrative agent
for itself and the other lenders thereunder, as amended, restated, supplemented
or otherwise modified from time to time.
“Pledged Equity” means
all pledged Equity Interests in or upon which a security interest or Lien is
from time to time granted to the Administrative Agent, for the benefit of the
Secured Parties, under the Pledge Agreements.
“Prime Rate” means the
rate of interest per annum publicly announced from time to time by JPMorgan
Chase Bank, N.A. as its prime rate in effect at its principal office in New York
City; each change in the Prime Rate shall be effective from and including the
date such change is publicly announced as being effective.
“Register” has the
meaning set forth in Section 9.04.
“Related Parties”
means, with respect to any specified Person, such Person’s Affiliates and the
respective directors, officers, employees, agents and advisors of such Person
and such Person’s Affiliates.
“Required Lenders”
means, at any time, Lenders having Credit Exposures representing more than 50%
of the sum of the total Credit Exposures at such time.
“Restricted Payment”
means any dividend or other distribution (whether in cash, securities or other
property) with respect to any Equity Interests in the Borrower or any
Subsidiary, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, acquisition, cancellation or termination of any such
Equity Interests in the Borrower or any Subsidiary or any option, warrant or
other right to acquire any such Equity Interests in the Borrower or any
Subsidiary.
“S&P” means
Standard & Poor’s.
“Secured Parties”
means the holders of the Obligations from time to time and shall include (i)
each Lender in respect of its Loans, (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 the Credit 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.
“Statutory Reserve
Rate” means, with respect to any currency, a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve, liquid asset, fees
or similar requirements (including any marginal, special, emergency or
supplemental reserves or other requirements) established by any central bank,
monetary authority, the Board, the Financial Services Authority, the European
Central Bank or other Governmental Authority for any category of deposits or
liabilities customarily used to fund loans in such currency, expressed in the
case of each such requirement as a decimal. Such reserve percentages
shall, in the case of Dollar denominated Loans, include those imposed pursuant
to Regulation D of the Board. Eurocurrency Loans shall be deemed
to be subject to such reserve, liquid asset or similar requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under any applicable law, rule or regulation,
including Regulation D. The Statutory Reserve Rate shall be
adjusted automatically on and as of the effective date of any change in any
reserve, liquid asset or similar requirement.
“Subordinated
Indebtedness” of a Person means any Indebtedness of such Person the
payment of which is subordinated to payment of the obligations of the Borrower
and/or any Subsidiary in respect of any sum due to any Lender or the
Administrative Agent hereunder or under any other Loan Document.
“subsidiary” means,
with respect to any Person (the “parent”) at any date,
any corporation, limited liability company, partnership, association or other
entity the accounts of which would be consolidated with those of the parent in
the parent’s consolidated financial statements if such financial statements were
prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other entity
(a) of which securities or other ownership interests representing more than 50%
of the equity or more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests are, as of such
date, owned, controlled or held, or (b) that is, as of such date, otherwise
Controlled, by the parent or one or more subsidiaries of the parent or by the
parent and one or more subsidiaries of the parent.
“Subsidiary” means any
subsidiary of the Borrower.
“Subsidiary Guarantor”
means each Domestic Subsidiary (other than Excluded
Subsidiaries). The Subsidiary Guarantors on the Effective Date are
identified as such in Schedule 3.01
hereto.
“Subsidiary Guaranty”
means that certain Guaranty dated as of the Effective Date (including any and
all supplements thereto) and executed by each Subsidiary Guarantor party
thereto, as amended, restated, supplemented or otherwise modified from time to
time.
“Swap Agreement” means
any agreement with respect to any swap, forward, future or derivative
transaction or option or similar agreement involving, or settled by reference
to, one or more rates, currencies, commodities, equity or debt instruments or
securities, or economic, financial or pricing indices or measures of economic,
financial or pricing risk or value or any similar transaction or any combination
of these transactions; provided that no
phantom stock or similar plan providing for payments only on account of services
provided by current or former directors, officers, employees or consultants of
the Borrower or the Subsidiaries shall be a Swap Agreement.
“Swap Obligations”
means any and all obligations of the Borrower or any Subsidiary, whether
absolute or contingent and howsoever and whensoever created, arising, evidenced
or acquired (including all renewals, extensions and modifications thereof and
substitutions therefor), under (a) any and all Swap Agreements permitted
hereunder with a Lender or an affiliate of a Lender, and (b) any and all
cancellations, buy backs, reversals, terminations or assignments of any such
Swap Agreement transaction.
“Taxes” means any and
all present or future taxes, levies, imposts, duties, deductions, charges or
withholdings imposed by any Governmental Authority.
“Transactions” means
the execution, delivery and performance by the Borrower and the relevant
Subsidiaries of this Agreement and the other Loan Documents, the borrowing of
Loans and the use of the proceeds thereof.
“Type”, when used in
reference to any Loan or Borrowing, refers to whether the rate of interest on
such Loan, or on the Loans comprising such Borrowing, is determined by reference
to the Adjusted LIBO Rate or the Alternate Base Rate.
“Withdrawal Liability”
means liability to a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
SECTION
1.02. Classification of Loans and
Borrowings. For purposes of this Agreement, Loans may be
classified and referred to by Type (e.g., a “Eurocurrency
Loan”). Borrowings also may be classified and referred to by Type
(e.g., a
“Eurocurrency Borrowing”).
SECTION
1.03. Terms
Generally. The definitions of terms herein shall apply equally
to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words “include”, “includes” and
“including” shall be deemed to be followed by the phrase “without
limitation”. The word “will” shall be construed to have the same
meaning and effect as the word “shall”. Unless the context requires
otherwise (a) any definition of or reference to any agreement, instrument or
other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein), (b) any reference herein to any Person shall
be construed to include such Person’s successors and assigns, (c) the words
“herein”, “hereof” and “hereunder”, and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (d) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits
and Schedules to, this Agreement and (e) the words “asset” and “property” shall
be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
SECTION
1.04. Accounting Terms;
GAAP. Except as otherwise expressly provided herein, all terms
of an accounting or financial nature shall be construed in accordance with GAAP,
as in effect from time to time; provided that, if the
Borrower notifies the Administrative Agent that the Borrower requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance
herewith.
ARTICLE
II
The
Credits
SECTION
2.01. Commitments. Subject
to the terms and conditions set forth herein, each Lender agrees to make a term
loan (“Loan”) to the Borrower in Dollars on the Effective Date in a principal
amount equal to the amount of such Lender’s Commitment. Amounts
repaid or prepaid in respect of the Loans may not be reborrowed.
SECTION
2.02. Loans
and Borrowings. (a) Each Loan shall be made as part
of a single Borrowing consisting of Loans made by the Lenders ratably in
accordance with their respective Commitments. The failure of any
Lender to make its Loan shall not relieve any other Lender of its obligations
hereunder; provided that the
Commitments of the Lenders are several and no Lender shall be responsible for
any other Lender’s failure to make its Loans as required.
(b) Subject
to Section 2.10, the Borrowing shall be comprised entirely of ABR Loans or
Eurocurrency Loans as the Borrower may request in accordance
herewith.
(c) Notwithstanding
any other provision of this Agreement, the Borrower shall not be entitled to
elect to convert the Borrowing to, or continue, the Borrowing as, a Eurocurrency
Borrowing if the Interest Period requested with respect thereto would end after
the Maturity Date.
SECTION
2.03. Borrowing
Type. The initial Borrowing shall be a
Eurocurrency Borrowing with the Interest Period beginning on the
Effective Date and ending on March 14, 2008. On March 14, 2008, the Borrowing
shall automatically be converted to a Eurocurrency Borrowing with an Interest
Period of three months and shall thereafter automatically successively continue
as a Eurocurrency Borrowing with an Interest Period of three
months. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the
request of the Required Lenders, so notifies the Borrower, then, so long as an
Event of Default is continuing (i) no outstanding Borrowing may be converted to
or continued as a Eurocurrency Borrowing and (ii) unless repaid, each
Eurocurrency Borrowing shall be converted to an ABR Borrowing at the end of the
Interest Period applicable thereto.
SECTION
2.04. Funding of
Borrowings. (a) Each Lender shall make the Loan to
be made by it hereunder on the Effective Date by wire transfer of immediately
available funds by 12:00 noon, Chicago time, to the account of the
Administrative Agent designated by it for such purpose by notice to the
Lenders. The Administrative Agent will make such Loans available to
the Borrower by promptly crediting the amounts so received, in like funds, to
Account No. DDA 5529069 of the Borrower maintained with the Administrative
Agent.
(b) Unless
the Administrative Agent shall have received notice from a Lender prior to the
Effective Date that such Lender will not make its Loan available to the
Administrative Agent, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of this
Section and may, in reliance upon such assumption, make available to the
Borrower a corresponding amount. In such event, if a Lender has not
in fact made its Loan available to the Administrative Agent, then the applicable
Lender and the Borrower severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to
but excluding the date of payment to the Administrative Agent, at (i) in the
case of such Lender, the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation or (ii) in the case of the Borrower, the interest rate
applicable to ABR Loans. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender’s Loan
included in the Borrowing.
SECTION
2.05. Repayment of Loans; Evidence
of Debt. (a) The Borrower hereby unconditionally promises to
pay to the Administrative Agent for the account of each Lender the then unpaid
principal amount of each Loan on the Maturity Date.
(b) Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrower to such Lender resulting
from the Loan made by such Lender, including the amounts of principal and
interest payable and paid to such Lender from time to time
hereunder.
(c) The
Administrative Agent shall maintain accounts in which it shall record (i) the
amount of each Loan made hereunder, the Type thereof and the Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from the Borrower to each Lender hereunder and
(iii) the amount of any sum received by the Administrative Agent hereunder for
the account of the Lenders and each Lender’s share thereof.
(d) The
entries made in the accounts maintained pursuant to paragraph (b) or (c) of this
Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Agreement.
(e) Any
Lender may request that the Loan made by it be evidenced by a promissory
note. In such event, the Borrower shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) and in a
form approved by the Administrative Agent. Thereafter, the Loan
evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
SECTION
2.06. Prepayment of
Loans. The Borrower shall have the right at any time and from
time to time to prepay the Borrowing in whole or in part, subject to prior
notice as provided in this Section. The Borrower shall notify the
Administrative Agent by telephone (confirmed by facsimile) of any prepayment
hereunder (i) in the case of prepayment of a Eurocurrency Borrowing, not later
than 11:00 a.m., Chicago time, at least one Business Day before the date of
prepayment, or (ii) in the case of prepayment of an ABR Borrowing, not later
than 10:00 a.m., Chicago time, one Business Day before the date of
prepayment. Each such notice shall be irrevocable and shall specify
the prepayment date and the principal amount of each Borrowing or portion
thereof to be prepaid. Promptly following receipt of any such notice
relating to a Borrowing, the Administrative Agent shall advise the Lenders of
the contents thereof. Each prepayment of the Borrowing shall be
applied ratably to the Loans. Prepayments shall be accompanied by
accrued interest to the extent required by Section 2.08 and break funding costs
to the extent required by Section 2.11.
SECTION
2.07. Fees. (a) The
Borrower agrees to pay to the Administrative Agent, for its own account, fees
payable in the amounts and at the times separately agreed upon between the
Borrower and the Administrative Agent.
(b) All
fees payable hereunder shall be paid on the dates due, in immediately available
funds, to the Administrative Agent. Fees paid shall not be refundable
under any circumstances.
SECTION
2.08. Interest. (a) The
Loans comprising each ABR Borrowing shall bear interest at the Alternate Base
Rate plus the Applicable Rate.
(b) The
Loans comprising each Eurocurrency Borrowing shall bear interest at the Adjusted
LIBO Rate for the Interest Period in effect for such Borrowing plus the
Applicable Rate.
(c) Notwithstanding
the foregoing, if any principal of or interest on any Loan or any fee or other
amount payable by the Borrower hereunder is not paid when due, whether at stated
maturity, upon acceleration or otherwise, such overdue amount shall bear
interest, after as well as before judgment, at a rate per annum equal to (i) in
the case of overdue principal of any Loan, 2% plus the rate otherwise applicable
to such Loan as provided in the preceding paragraphs of this Section or (ii) in
the case of any other amount, 2% plus the rate applicable to ABR Loans as
provided in paragraph (a) of this Section.
(d) Accrued
interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan; provided that (i)
interest accrued pursuant to paragraph (c) of this Section shall be payable on
demand, (ii) in the event of any repayment or prepayment of any Loan, accrued
interest on the principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment and (iii) in the event of any conversion of any
Eurocurrency Loan prior to the end of the current Interest Period therefor,
accrued interest on such Loan shall be payable on the effective date of such
conversion.
(e) All
interest hereunder shall be computed on the basis of a year of 360 days, except
that interest for any Loan that is computed by reference to the Alternate Base
Rate at times when the Alternate Base Rate is based on the Prime Rate, in each
case, shall be computed on the basis of a year of 365 days (or 366 days in a
leap year). The applicable Alternate Base Rate, Adjusted LIBO Rate or
LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION
2.09. Alternate Rate of
Interest. If prior to the commencement of any Interest Period
for a Eurocurrency Borrowing:
(a) the
Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining
the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest
Period; or
(b) the
Administrative Agent is advised by the Required Lenders that the Adjusted LIBO
Rate or the LIBO Rate, as applicable, for such Interest Period will not
adequately and fairly reflect the cost to such Lenders (or Lender) of
maintaining their Loans (or its Loan) included in such Borrowing for such
Interest Period;
then the
Administrative Agent shall give notice thereof to the Borrower and the Lenders
by telephone or facsimile as promptly as practicable thereafter and, until the
Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, the Borrowing shall
convert to an ABR Borrowing at the end of the Interest Period then in
effect.
SECTION
2.10. Increased
Costs. (a) If any Change in Law shall:
(i) impose,
modify or deem applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended by,
any Lender (except any such reserve requirement reflected in the Adjusted LIBO
Rate); or
(ii) impose
on any Lender or the London interbank market any other condition affecting this
Agreement or Eurocurrency Loan made by such Lender;
and the
result of any of the foregoing shall be to increase the cost to such Lender of
maintaining any Eurocurrency Loan or to reduce the amount of any sum received or
receivable by such Lender hereunder, whether of principal, interest or
otherwise, then the Borrower will pay to such Lender such additional amount or
amounts as will compensate such Lender for such additional costs incurred or
reduction suffered.
(b) If
any Lender determines that any Change in Law regarding capital requirements has
or would have the effect of reducing the rate of return on such Lender’s capital
or on the capital of such Lender’s holding company, if any, as a consequence of
this Agreement or the Loan made by such Lender to a level below that which such
Lender or such Lender’s holding company could have achieved but for such Change
in Law (taking into consideration such Lender’s policies and the policies of
such Lender’s holding company with respect to capital adequacy), then from time
to time the Borrower will pay to such Lender such additional amount or amounts
as will compensate such Lender or such Lender’s holding company for any such
reduction suffered.
(c) A
certificate of a Lender setting forth the amount or amounts necessary to
compensate such Lender or its holding company, as the case may be, as specified
in paragraph (a) or (b) of this Section shall be delivered to the Borrower and
shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within ten (10) days
after receipt thereof.
(d) Failure
or delay on the part of any Lender to demand compensation pursuant to this
Section shall not constitute a waiver of such Lender’s right to demand such
compensation; provided that the
Borrower shall not be required to compensate a Lender pursuant to this Section
for any increased costs or reductions incurred more than 180 days prior to the
date that such Lender notifies the Borrower of the Change in Law giving rise to
such increased costs or reductions and of such Lender’s intention to claim
compensation therefor; provided further that, if the
Change in Law giving rise to such increased costs or reductions is retroactive,
then the 180-day period referred to above shall be extended to include the
period of retroactive effect thereof.
SECTION
2.11. Break
Funding Payments. In the event of (a) the payment of any
principal of any Eurocurrency Loan other than on the last day of an Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the failure to prepay any Eurocurrency Loan on the date specified in any notice
delivered pursuant hereto or (c) the assignment of any Eurocurrency Loan other
than on the last day of the Interest Period applicable thereto as a result of a
request by the Borrower pursuant to Section 2.14, then, in any such event, the
Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event. Such loss, cost or expense to any Lender
shall be deemed to include an amount determined by such Lender to be the excess,
if any, of (i) the amount of interest which would have accrued on the principal
amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that
would have been applicable to such Loan, for the period from the date of such
event to the last day of the then current Interest Period therefor, over (ii)
the amount of interest which would accrue on such principal amount for such
period at the interest rate which such Lender would bid were it to bid, at the
commencement of such period, for deposits in Dollars of a comparable amount and
period from other banks in the eurocurrency market. A certificate of
any Lender setting forth any amount or amounts that such Lender is entitled to
receive pursuant to this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender
the amount shown as due on any such certificate within ten (10) days after
receipt thereof.
SECTION
2.12. Taxes. (a) Any
and all payments by or on account of any obligation of the Borrower hereunder
shall be made free and clear of and without deduction for any Indemnified Taxes
or Other Taxes; provided that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent or Lender
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) In
addition, the Borrower shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.
(c) The
Borrower shall indemnify the Administrative Agent and each Lender, within ten
(10) days after written demand therefor, for the full amount of any Indemnified
Taxes or Other Taxes paid by the Administrative Agent or such Lender on or with
respect to any payment by or on account of any obligation of the Borrower
hereunder (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to the Borrower by a Lender,
or by the Administrative Agent on its own behalf or on behalf of a Lender, shall
be conclusive absent manifest error.
(d) As
soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower to a Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) Any
Foreign Lender that is entitled to an exemption from or reduction of withholding
tax under the law of the jurisdiction in which the Borrower is located, or any
treaty to which such jurisdiction is a party, with respect to payments under
this Agreement shall deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law or reasonably
requested by the Borrower as will permit such payments to be made without
withholding or at a reduced rate.
(f) If
the Administrative Agent or a Lender determines, in its sole discretion, that it
has received a refund of any Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts pursuant to this Section 2.12, it shall pay over such refund
to the Borrower (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section 2.12 with respect to
the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent or such Lender and without interest (other
than any interest paid by the relevant Governmental Authority with respect to
such refund); provided, that the Borrower, upon the request of the
Administrative Agent or such Lender, agrees to repay the amount paid over to the
Borrower (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Administrative Agent or such Lender in the event
the Administrative Agent or such Lender is required to repay such refund to such
Governmental Authority. This Section shall not be construed to require the
Administrative Agent or any Lender to make available its tax returns (or any
other information relating to its taxes which it deems confidential) to the
Borrower or any other Person.
SECTION
2.13. Payments Generally; Pro Rata
Treatment; Sharing of Set-offs.
(a) The
Borrower shall make each payment required to be made by it hereunder (whether of
principal, interest or fees, or of amounts payable under Section 2.10, 2.11 or
2.12, or otherwise) prior to 12:00 noon, Chicago time on the date when due, in
immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such
payments shall be made to the Administrative Agent at its offices at 10 South
Dearborn Street, Suite IL1-0010, Chicago, Illinois 60603 and except that
payments pursuant to Sections 2.10, 2.11, 2.12 and 9.03 shall be made directly
to the Persons entitled thereto. If any payment hereunder shall be
due on a day that is not a Business Day, the date for payment shall be extended
to the next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such
extension.
(b) If
at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, interest and fees
then due hereunder, such funds shall be applied (i) first, towards payment of
interest and fees then due hereunder, ratably among the parties entitled thereto
in accordance with the amounts of interest and fees then due to such parties,
and (ii) second, towards payment of principal then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal then
due to such parties.
(c) If
any Lender shall, by exercising any right of set-off or counterclaim or
otherwise, obtain payment in respect of any principal of or interest on any of
its Loans resulting in such Lender receiving payment of a greater proportion of
the aggregate amount of its Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the Loans
of other Lenders to the extent necessary so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance with the aggregate
amount of principal of and accrued interest on their respective Loans; provided
that (i) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall
be rescinded and the purchase price restored to the extent of such recovery,
without interest, and (ii) the provisions of this paragraph shall not be
construed to apply to any payment made by the Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in any
of its Loans to any assignee or participant, other than to the Borrower or any
Subsidiary or Affiliate thereof (as to which the provisions of this paragraph
shall apply). The Borrower consents to the foregoing and agrees, to
the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise
against the Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower
in the amount of such participation.
(d) Unless
the Administrative Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Administrative Agent for the account
of the Lenders hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such payment on such
date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders severally
agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
(e) If
any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.04(b), 2.13(d) or 9.03(c), then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Administrative Agent for the account of such Lender
to satisfy such Lender’s obligations under such Sections until all such
unsatisfied obligations are fully paid.
SECTION
2.14. Mitigation Obligations;
Replacement of Lenders. (a) If any Lender requests
compensation under Section 2.10, or if the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account of
any Lender pursuant to Section 2.12, then such Lender shall use reasonable
efforts to designate a different lending office for funding or booking its Loan
hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 2.10 or 2.12, as the case may be, in the future and (ii) would not
subject such Lender to any unreimbursed cost or expense and would not otherwise
be disadvantageous to such Lender. The Borrower hereby agrees to pay
all reasonable costs and expenses incurred by any Lender in connection with any
such designation or assignment.
(b) If
any Lender requests compensation under Section 2.10, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.12, or if any
Lender defaults in its obligation to fund its Loan hereunder, then the Borrower
may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the
Borrower shall have received the prior written consent of the Administrative
Agent, which consent shall not unreasonably be withheld, (ii) such Lender shall
have received payment of an amount equal to the outstanding principal of its
Loan, accrued interest thereon, accrued fees and all other amounts payable to it
hereunder, from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Borrower (in the case of all other amounts)
and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.10 or payments required to be made pursuant to
Section 2.12, such assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment
and delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.
ARTICLE
III
Representations and
Warranties
The
Borrower represents and warrants to the Lenders that:
SECTION
3.01. Organization; Powers;
Subsidiaries. Each of the Borrower and its Subsidiaries is
duly organized, validly existing and in current or good standing under the laws
of the jurisdiction of its organization, has all requisite power and authority
to carry on its business as now conducted and, except where the failure to do
so, individually or in the aggregate, could not reasonably be expected to result
in a Material Adverse Effect, is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is
required. Schedule 3.01 hereto
(as supplemented from time to time) identifies each Subsidiary, the jurisdiction
of its incorporation or organization, as the case may be, the percentage of
issued and outstanding shares of each class of its capital stock or other equity
interests owned by the Borrower and the other Subsidiaries and, if such
percentage is not 100% (excluding directors’ and nominees’ qualifying shares as
required by law), a description of each class issued and
outstanding. All of the outstanding shares of capital stock and other
equity interests of each Subsidiary are validly issued and outstanding and fully
paid and nonassessable and all such shares and other equity interests indicated
on Schedule
3.01 as owned by the Borrower or another Subsidiary are owned,
beneficially and of record, by the Borrower or any Subsidiary free and clear of
all Liens, other than Liens created under the Pledge
Agreements. There are no outstanding commitments or other obligations
of the Borrower or any Subsidiary to issue, and no options, warrants or other
rights of any Person to acquire, any shares of any class of capital stock or
other equity interests of the Borrower or any Subsidiary, except for the
issuance of Equity Interests in the Borrower to members of management or other
employees.
SECTION
3.02. Authorization;
Enforceability. The Transactions are within the Borrower’s
corporate powers and have been duly authorized by all necessary corporate and,
if required, stockholder action. This Agreement has been duly
executed and delivered by the Borrower and constitutes a legal, valid and
binding obligation of the Borrower, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors’ rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
SECTION
3.03. Governmental Approvals; No
Conflicts. The Transactions (a) do not require any consent or
approval of, registration or filing with, or any other action by, any
Governmental Authority, except such as have been obtained or made and are in
full force and effect, (b) will not violate any applicable law or regulation or
the charter, by-laws or other organizational documents of the Borrower or any of
its Subsidiaries or any order of any Governmental Authority, (c) will not
violate or result in a default under any indenture, agreement or other
instrument binding upon the Borrower or any of its Subsidiaries or its assets,
or give rise to a right thereunder to require any payment to be made by the
Borrower or any of its Subsidiaries, and (d) will not result in the creation or
imposition of any Lien on any asset of the Borrower or any of its Subsidiaries,
other than Liens created under the Pledge Agreements.
SECTION
3.04. Financial Condition; No
Material Adverse Change. (a) The Borrower has
heretofore furnished to the Lenders its consolidated balance sheet and
statements of income, stockholders equity and cash flows (i) as of and for the
fiscal year ended September 28, 2007 reported on by Ernst & Young LLP,
independent public accountants, and (ii) as of and for the fiscal quarter and
the portion of the fiscal year ended December 28, 2007, certified by its chief
financial officer. Such financial statements present fairly, in all
material respects, the financial position and results of operations and cash
flows of the Borrower and its consolidated Subsidiaries as of such dates and for
such periods in accordance with GAAP, subject to year-end audit adjustments and
the absence of footnotes in the case of the statements referred to in clause
(ii) above.
(b) Since
September 28, 2007, there has been no material adverse change in the business,
assets, property, condition (financial or otherwise), operations or prospects,
of the Borrower and the Subsidiaries taken as a whole.
SECTION
3.05. Properties. (a) Each
of the Borrower and its Subsidiaries has good title to, or valid leasehold
interests in, all its real and personal property material to its business,
except for minor defects in title that do not interfere with its ability to
conduct its business as currently conducted or to utilize such properties for
their intended purposes. There are no Liens on any of the
real or personal properties of the Borrower or any Subsidiary except for Liens
permitted by Section 6.02.
(b) Each
of the Borrower and its Subsidiaries owns, or is licensed to use, all
trademarks, tradenames, copyrights, patents and other intellectual property
material to its business, and the use thereof by the Borrower and its
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION
3.06. Litigation and Environmental
Matters. (a) There are no actions, suits or proceedings by or
before any arbitrator or Governmental Authority pending against or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or any
of its Subsidiaries (i) as to which there is a reasonable possibility of an
adverse determination and that, if adversely determined, could reasonably be
expected, individually or in the aggregate, to result in a Material Adverse
Effect or (ii) that involve this Agreement or the Transactions. There
are no labor controversies pending against or, to the knowledge of the Borrower,
threatened against or affecting the Borrower or any of its Subsidiaries (i)
which could reasonably be expected, individually or in the aggregate, to result
in a Material Adverse Effect, or (ii) that involve this Agreement or the
Transactions.
(b) Except
with respect to any matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, neither the
Borrower nor any of its Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received notice of any claim with respect
to any Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
(c) Neither
the Borrower nor any Subsidiary is party or subject to any law, regulation, rule
or order, or any obligation under any agreement or instrument, that has a
Material Adverse Effect.
SECTION
3.07. Compliance with Laws and
Agreements. Each of the Borrower and its Subsidiaries is in
compliance with all laws, regulations and orders of any Governmental Authority
applicable to it or its property and all indentures, agreements and other
instruments binding upon it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
SECTION
3.08. Investment Company
Status. Neither the Borrower nor any of its Subsidiaries is an
“investment company” as defined in, or subject to regulation under, the
Investment Company Act of 1940.
SECTION
3.09. Taxes. Each
of the Borrower and its Subsidiaries has timely filed or caused to be filed all
Tax returns and reports required to have been filed and has paid or caused to be
paid all Taxes required to have been paid by it, except (a) Taxes that are being
contested in good faith by appropriate proceedings and for which the Borrower or
such Subsidiary, as applicable, has set aside on its books adequate reserves or
(b) to the extent that the failure to do so could not reasonably be expected to
result in a Material Adverse Effect.
SECTION
3.10. ERISA. No
ERISA Event has occurred or is reasonably expected to occur that, when taken
together with all other such ERISA Events for which liability is reasonably
expected to occur, could reasonably be expected to result in a Material Adverse
Effect. The present value of all accumulated benefit obligations
under each Plan (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed the fair market
value of the assets of such Plan by an amount that could reasonably be expected
to result in a Material Adverse Effect, and the present value of all accumulated
benefit obligations of all underfunded Plans (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did not, as of
the date of the most recent financial statements reflecting such amounts, exceed
the fair market value of the assets of all such underfunded Plans by an amount
that could reasonably be expected to result in a Material Adverse
Effect.
SECTION
3.11. Disclosure. The
Borrower has disclosed to the Lenders all agreements, instruments and corporate
or other restrictions to which it or any of its Subsidiaries is subject, and all
other matters known to it, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse
Effect. Neither the Information Memorandum nor any of the other
reports, financial statements, certificates or other information furnished by or
on behalf of the Borrower to the Administrative Agent or any Lender in
connection with the negotiation of this Agreement or delivered hereunder (as
modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with
respect to projected financial information, the Borrower represents only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.
SECTION
3.12. Federal Reserve
Regulations. No part of the proceeds of any Loan have been
used or will be used, whether directly or indirectly, for any purpose that
entails a violation of any of the Regulations of the Board, including
Regulations T, U and X.
SECTION
3.13. No
Default. The Borrower is in full compliance with this
Agreement and no Default or Event of Default has occurred and is
continuing.
ARTICLE
IV
Conditions
SECTION
4.01. Effective
Date. The obligations of the Lenders to make Loans hereunder
shall not become effective until the date on which each of the following
conditions is satisfied (or waived in accordance with Section
9.02):
(a) The
Administrative Agent (or its counsel) shall have received from each party hereto
either (i) a counterpart of this Agreement signed on behalf of such party or
(ii) written evidence satisfactory to the Administrative Agent (which may
include facsimile transmission of a signed signature page of this Agreement)
that such party has signed a counterpart of this Agreement.
(b) The
Administrative Agent shall have received favorable written opinions (addressed
to the Administrative Agent and the Lenders and dated the Effective Date) of
Reinhart Boerner Van Deuren s.c., counsel for the Loan Parties, and such other
local counsel opinions as may be applicable, substantially in the form of Exhibit B, and
covering such other matters relating to the Loan Parties, the Loan Documents or
the Transactions as the Required Lenders shall reasonably
request. The Borrower hereby requests such counsel to deliver such
opinion.
(c) The
Lenders shall have received (i) reasonably satisfactory audited consolidated
financial statements of the Borrower for the two most recent fiscal years ended
prior to the Effective Date as to which such financial statements are available,
(ii) reasonably satisfactory unaudited interim consolidated financial statements
of the Borrower for each quarterly period ended subsequent to the date of the
latest financial statements delivered pursuant to clause (i) of this paragraph
as to which such financial statements are available and (iii) such other
documents or information as the Administrative Agent and the Lenders shall
reasonably request.
(d) The
Administrative Agent shall have received such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the
organization, existence and current status or good standing of the Borrower, the
authorization of the Transactions and any other legal matters relating to the
Loan Parties, the Loan Documents or the Transactions, all in form and substance
satisfactory to the Administrative Agent and its counsel and as further
described in the list of closing documents attached as Exhibit
C.
(e) The
Administrative Agent shall have received evidence satisfactory to it that the
Borrower’s existing Credit Agreement dated October 7, 2005 has been amended to
permit incurrence of the Indebtedness evidenced by this Credit
Agreement.
(f) The
Administrative Agent shall have received all fees and other amounts due and
payable on or prior to the Effective Date, including, to the extent invoiced,
reimbursement or payment of all reasonable out-of-pocket expenses required to be
reimbursed or paid by the Borrower hereunder.
The
Administrative Agent shall notify the Borrower and the Lenders of the Effective
Date, and such notice shall be conclusive and
binding. Notwithstanding the foregoing, the obligations of the
Lenders to make Loans hereunder shall not become effective unless each of the
foregoing conditions is satisfied (or waived pursuant to Section 9.02) at or
prior to 3:00 p.m., Chicago time, on the Effective Date (and, in the event such
conditions are not so satisfied or waived, the Commitments shall terminate at
such time).
ARTICLE
V
Affirmative
Covenants
Until the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, the Borrower covenants and agrees with the Lenders
that:
SECTION
5.01. Financial Statements and
Other Information. The Borrower will furnish to the
Administrative Agent and each Lender:
(a) within
ninety (90) days after the end of each fiscal year of the Borrower, its audited
consolidated balance sheet and related statements of operations, stockholders’
equity and cash flows as of the end of and for such year, setting forth in each
case in comparative form the figures for the previous fiscal year, all reported
on by Ernst & Young LLP or other independent public accountants of
recognized national standing (without a “going concern” or like qualification or
exception and without any qualification or exception as to the scope of such
audit) to the effect that such consolidated financial statements present fairly
in all material respects the financial condition and results of operations of
the Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied; 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 “EDGAR” online service
provided by the SEC and on its home page on the worldwide web (at the date of
this Agreement located at: http://www.edgar-online.com) and shall have given
each Lender prior notice of such availability on EDGAR and on its home page in
connection with such delivery (such availability and notice thereof being
referred to as “Electronic
Delivery”);
(b) within
forty-five (45) days after the end of each of the first three fiscal quarters of
each fiscal year of the Borrower, its consolidated balance sheet and related
statements of operations, stockholders’ equity and cash flows as of the end of
and for such fiscal quarter and the then elapsed portion of the fiscal year,
setting forth in each case in comparative form the figures for the corresponding
period or periods of (or, in the case of the balance sheet, as of the end of)
the previous fiscal year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and results
of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes; 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;
(c) concurrently
with any delivery of financial statements under clause (a) or (b) above (and in
the case of Electronic Delivery of such financial statements, concurrently with
the notice of the Lenders of such Electronic Delivery), a certificate of a
Financial Officer of the Borrower (i) certifying as to whether a Default has
occurred and, if a Default has occurred, specifying the details thereof and any
action taken or proposed to be taken with respect thereto, (ii) setting forth
reasonably detailed calculations demonstrating compliance with Sections 6.01,
6.04, 6.05, 6.12 and 6.13 and (iii) stating whether any change in GAAP or in the
application thereof has occurred since the date of the audited financial
statements referred to in Section 3.04 and, if any such change has occurred,
specifying the effect of such change on the financial statements accompanying
such certificate;
(d) promptly
after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by the Borrower or any
Subsidiary with the Securities and Exchange Commission, or any Governmental
Authority succeeding to any or all of the functions of said Commission, or with
any national securities exchange, or distributed by the Borrower to its
shareholders generally, as the case may be; 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;
and
(e) promptly
following any request therefor, such other information regarding the operations,
business affairs and financial condition of the Borrower or any Subsidiary, or
compliance with the terms of this Agreement, as the Administrative Agent or any
Lender may reasonably request.
SECTION
5.02. Notices of Material
Events. The Borrower will furnish to the Administrative Agent
and each Lender prompt written notice of the following:
(a) the
occurrence of any Default;
(b) the
filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting the Borrower or any
Subsidiary thereof that could reasonably be expected to result in a Material
Adverse Effect;
(c) the
occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, could reasonably be expected to have a Material
Adverse Effect; and
(d) any
other development that results in, or could reasonably be expected to result in,
a Material Adverse Effect.
Each
notice delivered under this Section shall be accompanied by a statement of a
Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION
5.03. Existence; Conduct of
Business. The Borrower will, and will cause each of its
Subsidiaries to, do or cause to be done all things necessary to preserve, renew
and keep in full force and effect its legal existence and the rights, licenses,
permits, privileges and franchises material to the conduct of its business;
provided that
the foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 6.03.
SECTION
5.04. Payment of
Obligations. The Borrower will, and will cause each of its
Subsidiaries to, pay its obligations, including Tax liabilities, that, if not
paid, could result in a Material Adverse Effect before the same shall become
delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) the Borrower or
such Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP and (c) the failure to make payment pending such
contest could not reasonably be expected to result in a Material Adverse
Effect.
SECTION
5.05. Maintenance of Properties;
Insurance. The Borrower will, and will cause each of its
Subsidiaries to, (a) keep and maintain all property material to the conduct of
its business in good working order and condition, ordinary wear and tear
excepted, and (b) maintain, with financially sound and reputable insurance
companies, insurance in such amounts and against such risks as are customarily
maintained by companies engaged in the same or similar businesses operating in
the same or similar locations.
SECTION
5.06. Books
and Records; Inspection Rights. The Borrower will, and will
cause each of its Subsidiaries to, keep proper books of record and account in
which full, true and correct entries are made of all dealings and transactions
in relation to its business and activities. The Borrower will, and
will cause each of its Subsidiaries to, permit any representatives designated by
the Administrative Agent or any Lender, upon reasonable prior notice, to visit
and inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers
and independent accountants, all at such reasonable times and as often as
reasonably requested.
SECTION
5.07. Compliance with
Laws. The Borrower will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations and orders of any
Governmental Authority applicable to it or its property (including without
limitation Environmental Laws), except where the failure to do so, individually
or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.
SECTION
5.08. Use
of Proceeds. The proceeds of the Loans will be used only to
repay existing Indebtedness on the Effective Date, finance the working capital
needs, and for general corporate purposes, of the Borrower and its Subsidiaries
in the ordinary course of business. No part of the proceeds of any
Loan will be used, whether directly or indirectly, for any purpose that entails
a violation of any of the Regulations of the Board, including Regulations T, U
and X.
SECTION
5.09. Subsidiary
Guaranty. As promptly as possible but in any event within
thirty (30) days (or such later date as may be agreed upon by the Administrative
Agent) after any Person becomes a Subsidiary or merges into a Subsidiary
pursuant to Section 6.03, the Borrower shall provide the Administrative Agent
with written notice thereof setting forth information in reasonable detail
describing the material assets of such Person and shall cause each such
Subsidiary which also qualifies as a Subsidiary Guarantor to deliver to the
Administrative Agent the Subsidiary Guaranty pursuant to which such Subsidiary
agrees to be bound by the terms and provisions of thereof, such Subsidiary
Guaranty to be accompanied by appropriate corporate resolutions, other corporate
documentation and legal opinions in form and substance reasonably satisfactory
to the Administrative Agent and its counsel.
SECTION
5.10. Pledge
Agreements. The Borrower shall execute or cause to be
executed, by no later than sixty days (or such later date as is agreed to by the
Administrative Agent in its reasonable discretion) after the date on which any
First Tier Foreign Subsidiary becomes a Material Foreign Subsidiary, a Pledge
Agreement governed by Illinois law in favor of the Administrative Agent for the
benefit of the Secured Parties with respect to 65% of all of the outstanding
Equity Interests of such Subsidiary on terms which do not violate or cause a
breach of the Note Agreement dated as of December 13, 2001 pursuant to which the
Borrower issued notes due December 13, 2008 so long as such Note Agreement is in
effect; 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.
ARTICLE
VI
Negative
Covenants
Until the
principal of and interest on each Loan and all fees payable hereunder
have been paid in full, the Borrower covenants and agrees with the Lenders
that:
SECTION
6.01. Indebtedness. The
Borrower will not, and will not permit any Subsidiary to, create, incur, assume
or permit to exist any Indebtedness, except:
(a) Indebtedness
created under the Loan Documents;
(b) Indebtedness
existing on the date hereof and set forth in Schedule 6.01 and
extensions, renewals and replacements of any such Indebtedness with Indebtedness
of a similar type that does not increase the outstanding principal amount
thereof;
(c) Indebtedness
of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any
other Subsidiary; provided that
Indebtedness by any Subsidiary which is not a Loan Party to the Borrower or any
other Subsidiary shall comply with the proviso in Section 6.04(d);
(d) Guarantees
by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of
Indebtedness of the Borrower or any other Subsidiary; provided that
Guarantees by the Borrower or any Subsidiary of Indebtedness of any Subsidiary
which is not a Loan Party shall comply with the proviso in Section
6.04(d);
(e) Indebtedness
of the Borrower or any Subsidiary incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, including Capital
Lease Obligations and any Indebtedness assumed in connection with the
acquisition of any such assets or secured by a Lien on any such assets prior to
the acquisition thereof, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof;
provided that
(i) such Indebtedness is incurred prior to or within ninety (90) days after such
acquisition or the completion of such construction or improvement and (ii) the
aggregate principal amount of Indebtedness permitted by this clause (e) shall
not exceed $10,000,000 at any time outstanding;
(f) Indebtedness
of the Borrower or any Subsidiary as an account party in respect of trade
letters of credit;
(g) Indebtedness
constituting (a) accounts payable of the Borrower and its Subsidiaries arising
in the ordinary course of business payable on terms customary in the trade and
consistent with past practice, (b) payroll accruals, (c) tax, assessments and
other governmental charges which are not yet due or which are being contested in
good faith by appropriate proceedings and with respect to which adequate
reserves have been set aside in accordance with GAAP, and (d) other similar
unsecured Indebtedness incurred in the ordinary course of business and
consistent with past practice, but not incurred through the borrowing of money
or the obtaining of credit;
(h) Indebtedness
in connection with overdraft facilities in an aggregate outstanding principal
amount not to exceed $10,000,000;
(i) Indebtedness
evidenced by letters of credit in an aggregate face amount not to exceed
$10,000,000 at any time; and
(j) other
unsecured Indebtedness in an aggregate principal amount not exceeding
$10,000,000 at any time outstanding.
SECTION
6.02. Liens. The
Borrower will not, and will not permit any Subsidiary to, create, incur, assume
or permit to exist any Lien on any property or asset now owned or hereafter
acquired by it, or assign or sell any income or revenues (including accounts
receivable) or rights in respect of any thereof, except:
(a) Permitted
Encumbrances and Liens created under the Pledge Agreements;
(b) any
Lien on any property or asset of the Borrower or any Subsidiary existing on the
date hereof and set forth in Schedule 6.02;
provided that (i) such Lien shall not apply to any other property or asset of
the Borrower or any Subsidiary and (ii) such Lien shall secure only those
obligations which it secures on the date hereof and extensions, renewals and
replacements thereof that do not increase the outstanding principal amount
thereof;
(c) any
Lien existing on any property or asset prior to the acquisition thereof by the
Borrower or any Subsidiary or existing on any property or asset of any Person
that becomes a Subsidiary after the date hereof prior to the time such Person
becomes a Subsidiary; provided that (i) such Lien is not created in
contemplation of or in connection with such acquisition or such Person becoming
a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other
property or assets of the Borrower or any Subsidiary and (iii) such Lien shall
secure only those obligations which it secures on the date of such acquisition
or the date such Person becomes a Subsidiary, as the case may be and extensions,
renewals and replacements thereof that do not increase the outstanding principal
amount thereof;
(d) Liens
of a collecting bank arising in the ordinary course of business under Section
4-208 of the Uniform Commercial Code in effect in the relevant jurisdiction
covering only the items being collected upon;
(e) Liens
arising out of sale and leaseback transactions permitted by Section
6.06;
(f) Liens
on fixed or capital assets acquired, constructed or improved by the Borrower or
any Subsidiary; provided that (i)
such security interests secure Indebtedness permitted by clause (e) of Section
6.01, (ii) such security interests and the Indebtedness secured thereby are
incurred prior to or within ninety (90) days after such acquisition or the
completion of such construction or improvement, (iii) the Indebtedness secured
thereby does not exceed 100% of the cost of acquiring, constructing or improving
such fixed or capital assets and (iv) such security interests shall not apply to
any other property or assets of the Borrower or any Subsidiary; and
(g) the
sale of receivables provided the aggregate book value of such receivables does
not exceed $100,000.
SECTION
6.03. Fundamental
Changes. The Borrower will not, and will not permit any
Subsidiary to, merge into or consolidate with any other Person, or permit any
other Person to merge into or consolidate with it, or sell, transfer, lease or
otherwise dispose of (in one transaction or in a series of transactions) all or
substantially all of its assets, or all or substantially all of the stock of any
of its Subsidiaries (in each case, whether now owned or hereafter acquired), or
liquidate or dissolve, except that, if at the time thereof and immediately after
giving effect thereto no Default shall have occurred and be continuing (i) any
Person may merge into the Borrower in a transaction in which the Borrower is the
surviving corporation, (ii) any Subsidiary/Person may merge into any Subsidiary
in a transaction in which the surviving entity is a Subsidiary, (iii) any
Subsidiary may sell, transfer, lease or otherwise dispose of its assets to the
Borrower or to another Subsidiary (subject to the limitations of Section 6.04),
(iv) any Subsidiary may liquidate or dissolve if the Borrower determines in good
faith that such liquidation or dissolution is in the best interests of the
Borrower and is not materially disadvantageous to the Lenders, (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;
provided that any such merger involving a Person that is not a wholly-owned
Subsidiary immediately prior to such merger shall not be permitted unless also
permitted by Section 6.04.
SECTION
6.04. Investments, Loans,
Advances, Guarantees and Acquisitions. The Borrower will not,
and will not permit any of its Subsidiaries to, purchase, hold or acquire
(including pursuant to any merger with any Person that was not a wholly-owned
Subsidiary prior to such merger) any capital stock, evidences of indebtedness or
other securities (including any option, warrant or other right to acquire any of
the foregoing) of, make or permit to exist any loans or advances to, Guarantee
any obligations of, or make or permit to exist any Investment or any other
interest in, any other Person, or purchase or otherwise acquire (in one
transaction or a series of transactions) any assets of any other Person
constituting a business unit, except:
(a) Permitted
Investments;
(b) Permitted
Acquisitions;
(c) investments
by the Borrower in the capital stock of its Subsidiaries; provided that any
Investments made by the Borrower after the date of this Agreement in the capital
stock of any Subsidiary which is not a Loan Party shall comply with the proviso
in Section 6.04(d);
(d) loans
or advances made by the Borrower to any Subsidiary and made by any Subsidiary to
the Borrower or any other Subsidiary; provided that the
Borrower will not, nor will it permit any other Loan Party to, enter into or
suffer to exist Other Subsidiary Investments at any time during any fiscal year
(but calculated exclusive of all Other Subsidiary Investments existing
immediately prior to such fiscal year) in an aggregate amount greater than
$5,000,000;
(e) Guarantees
constituting Indebtedness permitted by Section 6.01;
(f) Investments
in existence on the date of this Agreement and described in Schedule
6.04;
(g) notes
payable or stock or other securities issued by account debtors to the Borrower
or any Subsidiary pursuant to negotiated agreements with respect to settlement
of such account debtor’s accounts in the ordinary course of business, consistent
with past practices;
(h) loans
or advances made by the Borrower or any Subsidiary to its employees on an
arm’s-length basis in the ordinary course of business consistent with past
practices for travel and entertainment expenses, relocation costs and similar
purposes up to a maximum of $2,000,000 in the aggregate at any one time
outstanding;
(i) Investments
in the form of Swap Agreements permitted by Section 6.07;
(j) Investments
of any Person existing at the time such Person becomes a Subsidiary of the
Borrower or consolidates or merges with the Borrower or any of the Subsidiaries
(including in connection with a Permitted Acquisition) so long as such
investments were not made in contemplation of such Person becoming a Subsidiary
or of such merger;
(k) Investments
received in connection with the disposition of assets permitted by Section
6.05;
(l) Investments
constituting deposits described in clauses (c) and (d) of the definition of
“Permitted Encumbrances”;
(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
(n) Investments
not otherwise permitted by clauses (a) and (c) through (m) above, provided that
at the time such investment is made, (i) all Investments made pursuant to this
clause (n) in the aggregate shall not exceed ten percent (10%) of Consolidated
Net Worth as of the end of the fiscal quarter ending immediately prior to the
fiscal quarter in which such investment is made, (ii) no Default has occurred
and is continuing or would arise after giving effect thereto and (iii) with
respect to any such Investment that constitutes an Acquisition (1) the Borrower
shall have satisfied the requirements of clauses (b), (d) and (e) of the
definition of “Permitted Acquisitions” and (2) such Acquisition is not a Hostile
Acquisition.
SECTION
6.05. Asset
Sales. The Borrower will not, and will not permit any of its
Subsidiaries to, sell, transfer, lease or otherwise dispose of any asset,
including any Equity Interest owned by it, nor will the Borrower permit any
Subsidiary to issue any additional Equity Interest in such Subsidiary (other
than to the Borrower or another Subsidiary in compliance with Section 6.04),
except:
(a) sales,
transfers and dispositions of (i) inventory in the ordinary course of business
and (ii) used, obsolete, worn out or surplus equipment or property in the
ordinary course of business;
(b) sales,
transfers and dispositions to the Borrower or any Subsidiary, provided that any
such sales, transfers or dispositions involving a Subsidiary that is not a
Subsidiary Guarantor shall be made in compliance with Section 6.09;
(c) sales,
transfers and dispositions of accounts receivable in connection with the
compromise, settlement or collection thereof;
(d) sales,
transfers and dispositions of Investments permitted by clauses (a), (g), (h),
(i), (k) and (l) of Section 6.04;
(e) sale
and leaseback transactions permitted by Section 6.06;
(f) dispositions
resulting from any casualty or other insured damage to, or any taking under
power of eminent domain or by condemnation or similar proceeding of, any
property or asset of the Borrower or any Subsidiary; and
(g) sales,
transfers and other dispositions of assets (other than Equity Interests in a
Subsidiary unless all Equity Interests in such Subsidiary are sold) that are not
permitted by any other paragraph of this Section, provided that each such
transaction (i) is for consideration consisting of at least eighty-five percent
(85%) of cash, (ii) is for not less than fair market value (as determined in
good faith by the Borrower’s board of directors), (iii) after giving effect to
such transaction, no Default or Event of Default shall exist, (iv) together with
all other such transactions under this subsection (g) calculated at book value
(1) during the immediately preceding twelve-month period, represent the
disposition of (x) not greater than twenty percent (20%) of the Borrower’s
Consolidated Total Assets at the end of the fiscal year immediately preceding
that in which such transaction is proposed to be entered into and (y)
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 not greater than twenty percent (20%) of the Borrower’s Consolidated Net
Income for such preceding fiscal year, and (2) during the period from the date
hereof to the date of such proposed transaction represents the disposition of
(x) not greater than thirty-five percent (35%) of the Borrower’s Consolidated
Total Assets at the end of the fiscal year immediately preceding that in which
such transaction is proposed to be entered into and (y) 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 not greater
than thirty-five percent (35%) of the Borrower’s Consolidated Net Income for
such preceding fiscal year and (v) the Borrower and the Subsidiaries are in
compliance, on a pro forma basis reasonably acceptable to the Administrative
Agent after giving effect to such transaction (including pro forma adjustments
arising out of events which are directly attributable to the sale, transfer or
disposition of assets, 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 transaction had occurred on the
first day of each relevant period for testing such compliance and, if the assets
sold, transferred or disposed of in such transaction represent the disposition
of assets (1) exceeding five percent (5%) of the Borrower’s Consolidated Total
Assets as at the end of the fiscal year immediately preceding that in which such
transaction is proposed to be entered into or (2) 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 comprising
greater than five percent (5%) of the Borrower’s Consolidated Net Income for
such preceding fiscal year, the Borrower shall have delivered to the
Administrative Agent a certificate of a Financial Officer of the Borrower to
such effect (and if the assets sold, transferred or disposed of in such
transaction represent the disposition of assets (1) exceeding ten percent (10%)
of the Borrower’s Consolidated Total Assets as at the end of the fiscal year
immediately preceding that in which such transaction is proposed to be entered
into or (2) 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 comprising greater than ten percent (10%) of the Borrower’s
Consolidated Net Income for such preceding fiscal year, such certificate and the
supporting calculations shall have been reviewed by Ernst & Young LLP or
other independent public accountants of recognized national standing), together
with all relevant financial information requested by the Administrative
Agent;
provided that 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.
SECTION
6.06. Sale
and Leaseback Transactions. The Borrower will not, and will
not permit any of its Subsidiaries to, enter into any arrangement, directly or
indirectly, whereby it shall sell or transfer any property, real or personal,
used or useful in its business, whether now owned or hereafter acquired, and
thereafter rent or lease such property or other property that it intends to use
for substantially the same purpose or purposes as the property sold or
transferred, except for any such sale of any fixed or capital assets by the
Borrower or any Subsidiary that is made for cash consideration in an amount not
less than the fair value of such fixed or capital asset and is consummated
within 90 days after the Borrower or such Subsidiary acquires or completes the
construction of such fixed or capital asset.
SECTION
6.07. Swap
Agreements. The Borrower will not, and will not permit any of
its Subsidiaries to, enter into any Swap Agreement, except (a) Swap Agreements
entered into to hedge or mitigate risks to which the Borrower or any Subsidiary
has actual exposure (other than those in respect of Equity Interests of the
Borrower or any of its Subsidiaries), and (b) Swap Agreements entered into in
order to effectively cap, collar or exchange interest rates (from fixed to
floating rates, from one floating rate to another floating rate, from floating
to fixed rates or otherwise) with respect to any interest-bearing liability or
Investment of the Borrower or any Subsidiary.
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 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.
SECTION
6.09. Transactions with
Affiliates. The Borrower will not, and will not permit any of
its Subsidiaries to, sell, lease or otherwise transfer any property or assets
to, or purchase, lease or otherwise acquire any property or assets material to
its business from, or otherwise engage in any other transactions with, any of
its Affiliates, except (a) in the ordinary course of business at prices and on
terms and conditions not less favorable to the Borrower or such Subsidiary than
could be obtained on an arm’s-length basis from unrelated third parties and (b)
transactions between or among the Borrower and its wholly-owned Subsidiaries not
involving any other Affiliate.
SECTION
6.10. Restrictive
Agreements. The Borrower will not, and will not permit any of
its Subsidiaries to, directly or indirectly, enter into, incur or permit to
exist any agreement or other arrangement that prohibits, restricts or imposes
any condition upon (a) the ability of the Borrower or any Subsidiary to create,
incur or permit to exist any Lien upon any of its property or assets, or (b) the
ability of any Subsidiary to pay dividends or other distributions with respect
to any shares of its capital stock or to make or repay loans or advances to the
Borrower or any other Subsidiary or to Guarantee Indebtedness of the Borrower or
any other Subsidiary; provided that (i) the
foregoing shall not apply to restrictions and conditions imposed by law or by
any Loan Document, (ii) the foregoing shall not apply to restrictions and
conditions existing on the date hereof identified on Schedule 6.10 (but
shall apply to any extension or renewal of, or any amendment or modification
expanding the scope of, any such restriction or condition), (iii) the foregoing
shall not apply to customary restrictions and conditions contained in agreements
relating to the sale of a Subsidiary pending such sale, provided such
restrictions and conditions apply only to the Subsidiary that is to be sold and
such sale is permitted hereunder, (iv) clause (a) of the foregoing shall not
apply to restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness and (v) clause
(a) of the foregoing shall not apply to customary provisions in leases and other
contracts restricting the assignment thereof.
SECTION
6.11. Amendment of Material
Documents. The Borrower shall not, and will not permit any
Subsidiary to, amend, modify or waive any of its rights under
(a) agreement relating to any Subordinated Indebtedness or (b) its
certificate of incorporation, by-laws, operating, management or partnership
agreement or other organizational documents, to the extent any such amendment,
modification or waiver would be adverse to the Lenders.
SECTION
6.12. [Intentionally
Omitted].
SECTION
6.13. Financial
Covenants.
(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
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.
(b) Maximum Leverage
Ratio. The Borrower will not permit the Leverage Ratio,
determined as of the end of each of its fiscal quarters ending on and after
March 31, 2008, calculated for the Borrower and its Subsidiaries on a
consolidated basis, to be greater than 3.5 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.
SECTION
6.14. Fiscal
Year. Neither the Borrower nor any of its Subsidiaries shall
change its fiscal year for accounting or tax purposes from a period consisting
of a 52/53 calendar week year ending on or about September 30 of each year
without the prior written consent of the Administrative Agent.
ARTICLE
VII
Events of
Default
If any of
the following events (“Events of Default”)
shall occur:
(a) the
Borrower shall fail to pay any principal of any Loan when and as the same shall
become due and payable, whether at the due date thereof or at a date fixed for
prepayment thereof or otherwise;
(b) the
Borrower shall fail to pay any interest on any Loan or any fee or any other
amount (other than an amount referred to in clause (a) of this Article) payable
under this Agreement, when and as the same shall become due and payable, and
such failure shall continue unremedied for a period of five (5) Business
Days;
(c) any
representation or warranty made or deemed made by or on behalf of the Borrower
or any Subsidiary in or in connection with this Agreement or any other Loan
Document or any amendment or modification thereof or waiver thereunder, or in
any report, certificate, financial statement or other document furnished
pursuant to or in connection with this Agreement or any other Loan Document or
any amendment or modification thereof or waiver thereunder, shall prove to have
been materially incorrect when made or deemed made;
(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, 5.10 or in Article VI or (ii) any Loan Document shall
for any reason not be or shall cease to be in full force and effect or is
declared to be null and void, or the Borrower or any Subsidiary takes any action
for the purpose of terminating, repudiating or rescinding any Loan Document or
any of its obligations thereunder;
(e) the
Borrower or any Subsidiary Guarantor, as applicable, shall fail to observe or
perform any covenant, condition or agreement contained in this Agreement (other
than those specified in clause (a), (b) or (d) of this Article) or any other
Loan Document, and such failure shall continue unremedied for a period of thirty
(30) days after notice thereof from the Administrative Agent to the Borrower
(which notice will be given at the request of any Lender);
(f) the
Borrower or any Subsidiary shall fail to make any payment (whether of principal
or interest and regardless of amount) in respect of any Material Indebtedness,
when and as the same shall become due and payable, following the expiration of
any applicable grace periods;
(g) any
event or condition occurs that results in any Material Indebtedness becoming due
prior to its scheduled maturity or that enables or permits (with or without the
giving of notice, the lapse of time or both) the holder or holders of any
Material Indebtedness or any trustee or agent on its or their behalf to cause
any Material Indebtedness to become due, or to require the prepayment,
repurchase, redemption or defeasance thereof, prior to its scheduled maturity;
provided that
this clause (g) shall not apply to secured Indebtedness that becomes due as a
result of the voluntary sale or transfer of the property or assets securing such
Indebtedness;
(h) an
involuntary proceeding shall be commenced or an involuntary petition shall be
filed seeking (i) liquidation, reorganization or other relief in respect of the
Borrower or any Subsidiary or its debts, or of a substantial part of its assets,
under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any Subsidiary or for a substantial part of its assets, and,
in any such case, such proceeding or petition shall continue undismissed for
sixty (60) days or an order or decree approving or ordering any of the foregoing
shall be entered;
(i) the
Borrower or any Subsidiary shall (i) voluntarily commence any proceeding or file
any petition seeking liquidation, reorganization or other relief under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar law
now or hereafter in effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition described
in clause (h) of this Article, (iii) apply for or consent to the appointment of
a receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any Subsidiary or for a substantial part of its assets, (iv)
file an answer admitting the material allegations of a petition filed against it
in any such proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any action for the purpose of effecting any of the
foregoing;
(j) the
Borrower or any Subsidiary shall become unable, admit in writing its inability
or fail generally to pay its debts as they become due;
(k) one
or more judgments for the payment of money in an aggregate amount in excess of
$5,000,000 (except to the extent covered by independent third-party insurance as
to which the insurer has not disclaimed coverage) shall be rendered against the
Borrower, any Subsidiary or any combination thereof and the same shall remain
undischarged for a period of thirty (30) consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken by a
judgment creditor to attach or levy upon any assets of the Borrower or any
Subsidiary to enforce any such judgment;
(l) an
ERISA Event shall have occurred that, in the opinion of the Required Lenders,
when taken together with all other ERISA Events that have occurred, would
reasonably be expected to result in a Material Adverse Effect; or
(m) a
Change in Control shall occur;
then, and
in every such event (other than an event with respect to the Borrower described
in clause (h) or (i) of this Article), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of
the Required Lenders shall, by notice to the Borrower, declare the Loans then
outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be
due and payable), and thereupon the principal of the Loans so declared to be due
and payable, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder and under the other Loan
Documents, shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; and in case of any event with respect to the
Borrower described in clause (h) or (i) of this Article, the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder and under the other Loan
Documents, shall automatically become due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower.
Any
proceeds of Pledged Equity received by the Administrative Agent after an Event
of Default has occurred and is continuing and the Administrative Agent so elects
or the Required Lenders so direct, such funds shall be applied ratably first, to pay any
fees, indemnities, or expense reimbursements including amounts then due to the
Administrative Agent from the Loan Parties, second, to pay any
fees or expense reimbursements then due to the Lenders from the Loan Parties,
third, to pay
interest then due and payable on the Loans ratably, fourth, on a ratable
basis, to prepay principal on the Loans and to payment of any amounts owing with
respect to Banking Services Obligations and Swap Obligations, and fifth, to the payment
of any other Obligation due to the Administrative Agent or any Lender by the
Loan Parties. The Administrative Agent and the Lenders shall have the
continuing and exclusive right to apply and reverse and reapply any and all such
proceeds and payments to any portion of the Obligations.
ARTICLE
VIII
The Administrative
Agent
Each of
the Lenders hereby irrevocably appoints the Administrative Agent as its agent
and authorizes the Administrative Agent to take such actions on its behalf and
to exercise such powers as are delegated to the Administrative Agent by the
terms hereof, together with such actions and powers as are reasonably incidental
thereto.
The bank
serving as the Administrative Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the same
as though it were not the Administrative Agent, and such bank and its Affiliates
may accept deposits from, lend money to and generally engage in any kind of
business with the Borrower or any Subsidiary or other Affiliate thereof as if it
were not the Administrative Agent hereunder.
The
Administrative Agent shall not have any duties or obligations except those
expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing as directed by the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02), and (c) except as expressly set
forth herein, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the
Borrower or any of its Subsidiaries that is communicated to or obtained by the
bank serving as Administrative Agent or any of its Affiliates in any
capacity. The Administrative Agent shall not be liable for any action
taken or not taken by it with the consent or at the request of the Required
Lenders (or such other number or percentage of the Lenders as shall be necessary
under the circumstances as provided in Section 9.02) or in the absence of its
own gross negligence or willful misconduct. The Administrative Agent
shall be deemed not to have knowledge of any Default unless and until written
notice thereof is given to the Administrative Agent by the Borrower or a Lender,
and the Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement, (ii) the contents of any certificate,
report or other document delivered hereunder or in connection herewith, (iii)
the performance or observance of any of the covenants, agreements or other terms
or conditions set forth herein, (iv) the validity, enforceability, effectiveness
or genuineness of this Agreement or any other agreement, instrument or document,
(v) the satisfaction of any condition set forth in Article IV or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent, or (vi) the creation, perfection or
priority of Liens on the Pledged Equity or the existence of the Pledged
Equity.
The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may
consult with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
The
Administrative Agent may perform any and all its duties and exercise its rights
and powers by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent
may perform any and all its duties and exercise its rights and powers through
their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative
Agent.
Subject
to the appointment and acceptance of a successor Administrative Agent as
provided in this paragraph, the Administrative Agent may resign at any time by
notifying the Lenders and the Borrower. Upon any such resignation,
the Required Lenders shall have the right, in consultation with the Borrower, to
appoint a successor. If no successor shall have been so appointed by
the Required Lenders and shall have accepted such appointment within thirty (30)
days after the retiring Administrative Agent gives notice of its resignation,
then the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent which shall be a bank with an office in New York,
New York, or an Affiliate of any such bank. Upon the acceptance of
its appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations
hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such
successor. After the Administrative Agent’s resignation hereunder,
the provisions of this Article and Section 9.03 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative Agent.
Each
Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges
that it will, independently and without reliance upon the Administrative Agent
or any other Lender and based on such documents and information as it shall from
time to time deem appropriate, continue to make its own decisions in taking or
not taking action under or based upon this Agreement, any related agreement or
any document furnished hereunder or thereunder.
None of
the Lenders, if any, identified in this Agreement as a Syndication Agent or
Documentation Agent shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Lenders as such. Without limiting the foregoing, none of such Lenders
shall have or be deemed to have a fiduciary relationship with any
Lender. Each Lender hereby makes the same acknowledgments with
respect to the relevant Lenders in their capacity as Syndication Agents or
Documentation Agents as it makes with respect to the Administrative Agent in the
preceding paragraph.
In its
capacity, the Administrative Agent is a “representative” of the Secured Parties
within the meaning of the term “secured party” as defined in the Illinois
Uniform Commercial Code. Each Lender authorizes the Administrative
Agent to enter into each of the Pledge Agreements to which it is a party and to
take all action contemplated by such documents. Each Lender agrees
that no Secured Parties (other than the Administrative Agent) shall have the
right individually to seek to realize upon the security granted by any Pledge
Agreement, it being understood and agreed that such rights and remedies may be
exercised solely by the Administrative Agent for the benefit of the Secured
Parties upon the terms of the Pledge Agreements. In the event that
any Pledged Equity is hereafter pledged by any Person as collateral security for
the Obligations, the Administrative Agent is hereby authorized, and hereby
granted a power of attorney, to execute and deliver on behalf of the Secured
Parties any Loan Documents necessary or appropriate to grant and perfect a Lien
on such Pledged Equity in favor of the Administrative Agent on behalf of the
Secured Parties. The Lenders hereby authorize the Administrative
Agent, at its option and in its discretion, to release any Lien granted to or
held by the Administrative Agent upon any Pledged Equity (i) as described in
Section 9.02(b); (ii) as permitted by, but only in accordance with, the terms of
the applicable Loan Document; or (iii) if approved, authorized or ratified in
writing by the Required Lenders, unless such release is required to be approved
by all of the Lenders hereunder. Upon request by the Administrative
Agent at any time, the Lenders will confirm in writing the Administrative
Agent’s authority to release particular types or items of Pledged Equity
pursuant hereto. Upon any sale or transfer of assets constituting
Pledged Equity which is permitted pursuant to the terms of any Loan Document, or
consented to in writing by the Required Lenders or all of the Lenders, as
applicable, and upon at least five Business Days’ prior written request by the
Borrower to the Administrative Agent, the Administrative Agent shall (and is
hereby irrevocably authorized by the Lenders to) execute such documents as may
be necessary to evidence the release of the Liens granted to the Administrative
Agent for the benefit of the Secured Parties herein or pursuant hereto upon the
Pledged Equity that was sold or transferred; provided, however, that (i) the
Administrative Agent shall not be required to execute any such document on terms
which, in the Administrative Agent’s opinion, would expose the Administrative
Agent to liability or create any obligation or entail any consequence other than
the release of such Liens without recourse or warranty, and (ii) such release
shall not in any manner discharge, affect or impair the Obligations or any Liens
upon (or obligations of the Borrower or any Subsidiary in respect of) all
interests retained by the Borrower or any Subsidiary, including (without
limitation) the proceeds of the sale, all of which shall continue to constitute
part of the Pledged Equity.
ARTICLE
IX
Miscellaneous
SECTION
9.01. Notices. (a)
Except in the case of notices and other communications expressly permitted to be
given by telephone (and subject to paragraph (b) below), all notices and other
communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or
sent by facsimile, as follows:
(i) if
to the Borrower, to it at 555 Main Street, Suite 023, Racine,
Wisconsin 53403, Attention: Treasury Department (Facsimile No.
262-631-6608) with a copy to the Borrower at 555 Main Street, Suite 023, Racine,
Wisconsin 53403, Attention: General Counsel (Facsimile No.
262-631-6610);
(ii) if
to the Administrative Agent, to JPMorgan Chase Bank, N.A., Loan and Operations,
10 S. Dearborn Street, Suite IL1-0010, Chicago, IL 60603, Attention of Edna
Guerra (Facsimile No. (312) 732-4864 and e-mail edna.guerra@jpmchase.com)
with a copy to JPMorgan Chase Bank, N.A., 10 S. Dearborn Street, Chicago, IL
60603, Attention of Nathan Bloch (Facsimile No. (312) 325-3060 and e-mail
address nathan.bloch@jpmorgan.com);
and
(iii) if
to any other Lender, to it at its address (or facsimile number) set forth in its
Administrative Questionnaire.
(b) Notices
and other communications to the Lenders hereunder may be delivered or furnished
by electronic communications pursuant to procedures approved by the
Administrative Agent; provided that the foregoing shall not apply to notices
pursuant to Article II unless otherwise agreed by the Administrative Agent and
the applicable Lender. The Administrative Agent or the Borrower may,
in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it;
provided that approval of such procedures may be limited to particular notices
or communications.
(c) Any
party hereto may change its address or facsimile number for notices and other
communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the date
of receipt.
SECTION
9.02. Waivers;
Amendments. (a) No failure or delay by the
Administrative Agent or any Lender in exercising any right or power hereunder or
under any other Loan Document shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or
power. The rights and remedies of the Administrative Agent and the
Lenders hereunder and under any other Loan Document are cumulative and are not
exclusive of any rights or remedies that they would otherwise
have. No waiver of any provision of any Loan Document or consent to
any departure by the Borrower therefrom shall in any event be effective unless
the same shall be permitted by paragraph (b) of this Section, and then such
waiver or consent shall be effective only in the specific instance and for the
purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent or any Lender may have
had notice or knowledge of such Default at the time.
(b) Neither
this Agreement nor any other Loan Document nor any provision hereof or thereof
may be waived, amended or modified except pursuant to an agreement or agreements
in writing entered into by the Borrower and the Required Lenders or by the
Borrower and the Administrative Agent with the consent of the Required Lenders;
provided that
no such agreement shall (i) increase the Commitment of any Lender
without the written consent of such Lender, (ii) reduce or forgive the principal
amount of any Loan or reduce the rate of interest thereon, or reduce or forgive
any interest or fees payable hereunder, without the written consent of each
Lender affected thereby, (iii) postpone the scheduled date of payment of the
principal amount of any Loan, or any interest thereon, or any fees payable
hereunder, or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date of expiration of any Commitment, without the written
consent of each Lender affected thereby, (iv) change Section 2.13(b) or (c) in a
manner that would alter the pro rata sharing of payments required thereby,
without the written consent of each Lender, (v) change any of the provisions of
this Section or the definition of “Required Lenders” or any other provision
hereof specifying the number or percentage of Lenders required to waive, amend
or modify any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender or (vi) release any
Subsidiary Guarantor from its obligation under the Subsidiary Guaranty (except
as otherwise permitted herein or in the other Loan Documents), without the
written consent of each Lender; provided further that no such
agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent hereunder without the prior written consent of the
Administrative Agent.
SECTION
9.03. Expenses; Indemnity; Damage
Waiver. (a) The Borrower shall pay (i) all
reasonable out-of-pocket expenses incurred by the Administrative Agent and its
Affiliates, including the reasonable fees, charges and disbursements of counsel
the Administrative Agent, in connection with the syndication and distribution
(including, without limitation, via the internet or through a service such as
IntraLinks) of the credit facilities provided for herein, the preparation and
administration of this Agreement or any amendments, modifications or waivers of
the provisions hereof (whether or not the transactions contemplated hereby or
thereby shall be consummated), and (ii) all reasonable out-of-pocket expenses
incurred by the Administrative Agent or any Lender, including the reasonable
fees, charges and disbursements of any counsel for the Administrative Agent or
any Lender, in connection with the enforcement, collection or protection of its
rights in connection with this Agreement, including its rights under this
Section, or in connection with the Loans made hereunder, including all such
reasonable out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans.
(b) The
Borrower shall indemnify the Administrative Agent and each Lender, and each
Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, penalties, liabilities and related expenses, including the fees,
charges and disbursements of any counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement or any agreement or
instrument contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder or the consummation of the Transactions or any
other transactions contemplated hereby, (ii) any Loan or the use of the proceeds
therefrom, (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Borrower or any of
its Subsidiaries, or any Environmental Liability related in any way to the
Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, penalties, liabilities or related expenses are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee.
(c) To
the extent that the Borrower fails to pay any amount required to be paid by it
to the Administrative Agent under paragraph (a) or (b) of this Section, each
Lender severally agrees to pay to the Administrative Agent, such Lender’s
Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that
the unreimbursed expense or indemnified loss, claim, damage, penalty, liability
or related expense, as the case may be, was incurred by or asserted against the
Administrative Agent in its capacity as such.
(d) To
the extent permitted by applicable law, the Borrower shall not assert, and
hereby waives, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) arising out of, in connection with, or as a result of, this
Agreement or any agreement or instrument contemplated hereby, the Transactions,
any Loan or the use of the proceeds thereof.
(e) All
amounts due under this Section shall be payable not later than fifteen (15) days
after written demand therefor.
SECTION
9.04. Successors and
Assigns. (a) The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that (i) the Borrower
may not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any attempted assignment
or transfer by the Borrower without such consent shall be null and void) and
(ii) no Lender may assign or otherwise transfer its rights or obligations
hereunder except in accordance with this Section. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby, or Participants (to the extent provided in paragraph (c) of
this Section) and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this
Agreement.
(b)(i) Subject
to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to
one or more assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of the Loans at the time owing to it) with
the prior written consent (such consent not to be unreasonably withheld)
of:
(A) the
Borrower, provided that no
consent of the Borrower shall be required for an assignment to a Lender, an
Affiliate of a Lender, an Approved Fund or, if an Event of Default has occurred
and is continuing, any other assignee; and
(B) the
Administrative Agent.
(ii) Assignments
shall be subject to the following additional conditions:
(A)
except in the case of an assignment to a Lender or an Affiliate of a Lender or
an assignment of the entire remaining amount of the assigning Lender’s
Commitment or Loans, the amount of the Commitment or Loans of the assigning
Lender subject to each such assignment (determined as of the date the Assignment
and Assumption with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 unless each of the
Borrower and the Administrative Agent otherwise consent, provided that no such
consent of the Borrower shall be required if an Event of Default has occurred
and is continuing;
(B) each
partial assignment shall be made as an assignment of a proportionate part of all
the assigning Lender’s rights and obligations under this Agreement;
(C) the
parties to each assignment shall execute and deliver to the Administrative Agent
an Assignment and Assumption, together with a processing and recordation fee of
$3,500; and
(D) the
assignee, if it shall not be a Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire.
For the
purposes of this Section 9.04(b), the term “Approved Fund” has
the following meaning:
“Approved Fund” means
any Person (other than a natural person) that is engaged in making, purchasing,
holding or investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
(iii) Subject
to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and
Assumption the assignee thereunder shall be a party hereto and, to the extent of
the interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 2.10,
2.11, 2.12 and 9.03). Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
Section 9.04 shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
paragraph (c) of this Section.
(iv) The
Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses of
the Lenders, and the Commitment of, and principal amount of the Loans owing to,
each Lender pursuant to the terms hereof from time to time (the “Register”). The
entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the
Borrower and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(v) Upon
its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an assignee, the assignee’s completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section and
any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Assumption
and record the information contained therein in the Register; provided that if
either the assigning Lender or the assignee shall have failed to make any
payment required to be made by it pursuant to Section 2.04(b), 2.13(d) or
9.03(c), the Administrative Agent shall have no obligation to accept such
Assignment and Assumption and record the information therein in the Register
unless and until such payment shall have been made in full, together with all
accrued interest thereon. No assignment shall be effective for
purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.
(c) (i) Any
Lender may, without the consent of the Borrower or the Administrative Agent,
sell participations to one or more banks or other entities (a “Participant”) in all
or a portion of such Lender’s rights and obligations under this Agreement
(including all or a portion of the Loans owing to it); provided that (A) such
Lender’s obligations under this Agreement shall remain unchanged, (B) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (C) the Borrower, the Administrative Agent
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(b) that affects such
Participant. Subject to paragraph (c)(ii) of this Section, the
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.10, 2.11 and 2.12 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this
Section. To the extent permitted by law, each Participant also shall
be entitled to the benefits of Section 9.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.13(c) as though it were a
Lender.
(ii) A
Participant shall not be entitled to receive any greater payment under Section
2.10 or 2.12 than the applicable Lender would have been entitled to receive with
respect to the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower’s prior written
consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 2.12 unless the Borrower
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 2.12(e) as
though it were a Lender.
(d) Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such Lender,
including without limitation any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party
hereto.
SECTION
9.05. Survival. All
covenants, agreements, representations and warranties made by the Borrower
herein and in the certificates or other instruments delivered in connection with
or pursuant to this Agreement shall be considered to have been relied upon by
the other parties hereto and shall survive the execution and delivery of this
Agreement and the making of any Loans, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other amount
payable under this Agreement is outstanding and unpaid. The
provisions of Sections 2.10, 2.11, 2.12 and 9.03 and Article VIII shall survive
and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans and the Commitments
or the termination of this Agreement or any provision hereof.
SECTION
9.06. Counterparts; Integration;
Effectiveness. This Agreement may be executed in counterparts
(and by different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Agreement and any separate letter agreements
with respect to fees payable to the Administrative Agent constitute the entire
contract among the parties relating to the subject matter hereof and supersede
any and all previous agreements and understandings, oral or written, relating to
the subject matter hereof. Except as provided in Section 4.01, this
Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns. Delivery of an executed counterpart of a signature page of
this Agreement by facsimile shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION
9.07. Severability. Any
provision of this Agreement held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction.
SECTION
9.08. Right
of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender and each of its Affiliates is hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other obligations at any time owing by such
Lender or Affiliate to or for the credit or the account of the Borrower against
any of and all the obligations of the Borrower now or hereafter existing under
this Agreement held by such Lender, irrespective of whether or not such Lender
shall have made any demand under this Agreement and although such obligations
may be unmatured. The rights of each Lender under this Section are in
addition to other rights and remedies (including other rights of setoff) which
such Lender may have.
SECTION
9.09. Governing Law; Jurisdiction;
Consent to Service of Process. (a) This Agreement
shall be construed in accordance with and governed by the law of the State of
Illinois.
(b) The
Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any United States Federal or
Illinois State Court sitting in Chicago, Illinois, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such
Illinois State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law. Nothing in this Agreement shall affect any right that the
Administrative Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against the Borrower or its properties in
the courts of any jurisdiction.
(c) The
Borrower hereby irrevocably and unconditionally waives, to the fullest extent it
may legally and effectively do so, any objection which it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement in any court referred to in paragraph (b) of this
Section. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) Each
party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement will
affect the right of any party to this Agreement to serve process in any other
manner permitted by law.
SECTION
9.10. WAIVER OF JURY
TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION
9.11. Headings. Article
and Section headings and the Table of Contents used herein are for convenience
of reference only, are not part of this Agreement and shall not affect the
construction of, or be taken into consideration in interpreting, this
Agreement.
SECTION
9.12. Confidentiality. Each
of the Administrative Agent and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its and its Affiliates’ directors, officers, employees
and agents, including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to this Agreement,
(e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights
hereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Borrower and its
obligations, (g) with the consent of the Borrower or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to the Administrative Agent or any Lender
on a nonconfidential basis from a source other than the Borrower. For
the purposes of this Section, “Information” means
all information received from the Borrower relating to the Borrower or its
business, other than any such information that is available to the
Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by the Borrower; provided that, in the
case of information received from the Borrower after the date hereof, such
information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.
SECTION
9.13. USA
PATRIOT Act. Each Lender that is subject to the requirements
of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”) hereby notifies the Borrower that pursuant to the
requirements of the Act, it is required to obtain, verify and record information
that identifies the Borrower, which information includes the name and address of
the Borrower and other information that will allow such Lender to identify the
Borrower in accordance with the Act.
[Signature Pages
Follow]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
|
JOHNSON
OUTDOORS INC.
|
|
|
|
|
|
|
|
By
|
/s/ David W.
Johnson
|
|
|
|
Name:
David W. Johnson
|
|
|
|
Title:
V.P. and CFO
|
|
|
|
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|
|
|
|
|
|
JPMORGAN
CHASE BANK, N.A., individually as a Lender and as Administrative
Agent
|
|
|
|
|
|
|
|
|
|
By
|
/s/ Sabir A. Hashmy
|
|
|
|
Name:
Sabir A. Hashmy
|
|
|
|
Title:
Vice President
|
|
|
|
|
|
|
|
|
|
|
LASALLE
BANK NATIONAL ASSOCIATION,
|
|
as
a Lender
|
|
|
|
|
|
|
|
|
|
|
By
|
/s/ Steven K. Kessler
|
|
|
|
Name:
Steven K. Kessler
|
|
|
|
Title:
Senior Vice President
|
|
|
|
|
|
|
|
|
|
|
M&I
MARSHALL & ILSLEY BANK,
|
|
as
a Lender
|
|
|
|
|
|
|
|
|
|
|
By
|
/s/ Ronald J. Carey
|
|
|
|
Name:
Ronald J. Carey
|
|
|
|
Title:
Vice President
|
|
|
|
|
|
|
By
|
/s/ Thomas F. Bickelhaupt
|
|
|
|
Name:
Thomas F. Bickelhaupt
|
|
|
|
Title:
Vice President
|
|
Signature
Page to Credit Agreement
Johnson
Outdoors Inc.
|
ASSOCIATED
BANK, N.A., as a Lender
|
|
|
|
|
|
|
|
|
|
By
|
/s/ Daniel Holzhauer
|
|
|
|
Name:
Daniel Holzhauer
|
|
|
|
Title:
Vice President
|
|
|
|
|
|
|
|
|
|
|
HSBC
BANK USA, NA, as a Lender
|
|
|
|
|
|
|
|
|
|
|
By
|
/s/ John S. Sneed
|
|
|
|
Name:
John S. Sneed
|
|
|
|
Title:
Vice President
|
|
|
|
|
|
|
|
|
|
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THE
PRIVATE BANK AND TRUST COMPANY, as a Lender
|
|
|
|
|
|
|
|
|
|
By
|
/s/ Jeff Janza
|
|
|
|
Name:
Jeff Janza
|
|
|
|
Title:
Associate Managing Director
|
|
|
|
|
|
|
|
|
|
|
WELLS
FARGO BANK, N.A., as a Lender
|
|
|
|
|
|
|
|
|
|
By
|
/s/ Paul J. Hennessy
|
|
|
|
Name:
Paul J. Hennessy
|
|
|
|
Title:
Vice President
|
|
Signature
Page to Credit Agreement
Johnson
Outdoors Inc.
SCHEDULE
2.01
COMMITMENTS
Lender
|
Title
|
|
Allocation
|
|
JPMorgan
Chase Bank, N.A.
|
Administrative
Agent
|
|
$ |
7,500,000 |
|
LaSalle
Bank National Association
|
|
|
|
8,750,000 |
|
Wells
Fargo Bank, N.A.
|
|
|
|
8,750,000 |
|
M&I
Marshall & Ilsley Bank
|
|
|
|
8,750,000 |
|
Associated
Bank, N.A.
|
|
|
|
8,750,000 |
|
HSBC
Bank USA, NA
|
|
|
|
8,750,000 |
|
The
Private Bank and Trust Company
|
|
|
|
8,750,000 |
|
|
|
|
|
|
|
Total
|
|
|
$ |
60,000,000 |
|
EXHIBIT
A
ASSIGNMENT
AND ASSUMPTION
This
Assignment and Assumption (the “Assignment and Assumption”) is dated
as of the Effective Date set forth below and is entered into by and between
[Insert name of Assignor] (the “Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized
terms used but not defined herein shall have the meanings given to them in the
Credit Agreement identified below (as amended, the “Credit Agreement”),
receipt of a copy of which is hereby acknowledged by the
Assignee. The Standard Terms and Conditions set forth in Annex 1
attached hereto are hereby agreed to and incorporated herein by reference and
made a part of this Assignment and Assumption as if set forth herein in
full.
For an
agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the
Assignor, subject to and in accordance with the Standard Terms and Conditions
and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of the Assignor’s rights and
obligations in its capacity as a Lender under the Credit Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to the
amount and percentage interest identified below of all of such outstanding
rights and obligations of the Assignor under the respective facilities
identified below and (ii) to the extent permitted to be assigned under
applicable law, all claims, suits, causes of action and any other right of the
Assignor (in its capacity as a Lender) against any Person, whether known or
unknown, arising under or in connection with the Credit Agreement, any other
documents or instruments delivered pursuant thereto or the loan transactions
governed thereby or in any way based on or related to any of the foregoing,
including contract claims, tort claims, malpractice claims, statutory claims and
all other claims at law or in equity related to the rights and obligations sold
and assigned pursuant to clause (i) above (the rights and obligations sold and
assigned pursuant to clauses (i) and (ii) above being referred to herein
collectively as the “Assigned
Interest”). Such sale and assignment is without recourse to
the Assignor and, except as expressly provided in this Assignment and
Assumption, without representation or warranty by the Assignor.
1.
|
Assignor:
|
|
|
|
|
|
|
|
|
2.
|
Assignee:
|
|
|
|
|
|
[and is
an Affiliate/Approved Fund of [identify
Lender]1]
|
3.
|
Borrower(s):
|
|
Johnson
Outdoors Inc.
|
|
4.
|
Administrative
Agent:
|
|
JPMorgan
Chase Bank, N.A., as the administrative agent under the Credit
Agreement
|
1 Select as
applicable.
5.
|
Credit
Agreement:
|
|
The
$60,000,000 Credit Agreement dated as of ____________ among Johnson
Outdoors Inc., the Lenders parties thereto, JPMorgan Chase Bank, N.A., as
Administrative Agent, and the other lenders parties
thereto
|
Aggregate
Amount of Commitment/Loans for all Lenders
|
Amount
of Commitment/
Loans
Assigned
|
Percentage
Assigned of Commitment/Loans2
|
$
|
$
|
%
|
|
$
|
$
|
%
|
|
$
|
$
|
%
|
|
Effective
Date: _____________ ___, 20___ [TO BE
INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF
RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms
set forth in this Assignment and Assumption are hereby agreed to:
|
ASSIGNOR
|
|
|
|
|
[NAME
OF ASSIGNOR]
|
|
|
|
|
By:
|
|
|
|
Title:
|
|
|
|
|
ASSIGNEE
|
|
|
|
|
[NAME
OF ASSIGNEE]
|
|
|
|
|
By:
|
|
|
|
Title:
|
Consented
to and Accepted:
JPMORGAN
CHASE BANK, N.A., as
Administrative
Agent
2 Set
forth, so at least 9 decimals, as a percentage of the Commitment/Loans of all
Lenders thereunder.
[Consented
to:]3
|
|
|
|
|
JOHNSON
OUTDOORS INC.
|
|
|
|
|
By:
|
|
|
|
Title:
|
|
3 To be
added only if the consent of the Borrower is required by the terms of the Credit
Agreement.
ANNEX
I
STANDARD
TERMS AND CONDITIONS FOR
ASSIGNMENT
AND ASSUMPTION
1. Representations and
Warranties.
1.1 Assignor. The
Assignor (a) represents and warrants that (i) it is the legal and beneficial
owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of
any lien, encumbrance or other adverse claim and (iii) it has full power and
authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated
hereby; and (b) assumes no responsibility with respect to (i) any statements,
warranties or representations made in or in connection with the Credit Agreement
or any other Loan Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Loan Documents or any
collateral thereunder, (iii) the financial condition of the Borrower, any of its
Subsidiaries or Affiliates or any other Person obligated in respect of any Loan
Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.
1.2. Assignee. The
Assignee (a) represents and warrants that (i) it has full power and authority,
and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become
a Lender under the Credit Agreement, (ii) it satisfies the requirements, if any,
specified in the Credit Agreement that are required to be satisfied by it in
order to acquire the Assigned Interest and become a Lender, (iii) from and after
the Effective Date, it shall be bound by the provisions of the Credit Agreement
as a Lender thereunder and, to the extent of the Assigned Interest, shall have
the obligations of a Lender thereunder, (iv) it has received a copy of the
Credit Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 5.01 thereof, as applicable, and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Assumption and to
purchase the Assigned Interest on the basis of which it has made such analysis
and decision independently and without reliance on the Administrative Agent or
any other Lender, and (v) if it is a Foreign Lender, attached to the Assignment
and Assumption is any documentation required to be delivered by it pursuant to
the terms of the Credit Agreement, duly completed and executed by the Assignee;
and (b) agrees that (i) it will, independently and without reliance on the
Administrative Agent, the Assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Loan
Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.
2. Payments. From
and after the Effective Date, the Administrative Agent shall make all payments
in respect of the Assigned Interest (including payments of principal, interest,
fees and other amounts) to the Assignor for amounts which have accrued to but
excluding the Effective Date and to the Assignee for amounts which have accrued
from and after the Effective Date.
3. General Provisions.
This Assignment and Assumption shall be binding upon, and inure to the benefit
of, the parties hereto and their respective successors and
assigns. This Assignment and Assumption may be executed in any number
of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page
of this Assignment and Assumption by facsimile shall be effective as delivery of
a manually executed counterpart of this Assignment and
Assumption. This Assignment and Assumption shall be governed by, and
construed in accordance with, the law of the State of Illinois.
EXHIBIT
B
OPINION
OF COUNSEL FOR THE LOAN PARTIES
[Effective
Date]
To the
Lenders and the Administrative
Agent
Referred to Below
c/o
JPMorgan Chase Bank, N.A. as
Administrative
Agent
Loan and
Operations
131 S.
Dearborn Street
Chicago,
IL 60670
Dear
Sirs:
We have
acted as counsel for Johnson Outdoors Inc., a Wisconsin corporation (the
“Borrower”) and [DESCRIBE
SUBSIDIARY GUARANTORS]
(collectively with the Borrower, the “Loan Parties”), in
connection with (i) the Credit Agreement dated as of _____________ (the “Credit Agreement”),
among the Borrower, the banks and other financial institutions identified
therein as Lenders, and JPMorgan Chase Bank, N.A., as Administrative Agent and
(ii) [DESCRIBE
OTHER LOAN DOCUMENTS]
(collectively with the Credit Agreement, the “Loan
Documents”). Terms defined in the Credit Agreement are used
herein with the same meanings.
We have
examined originals or copies, certified or otherwise identified to our
satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as we have deemed necessary or advisable for purposes of this
opinion.
Upon the
basis of the foregoing, we are of the opinion that:
1. Each
Loan Party (a) is a [_______] duly
organized, validly existing and in good standing under the laws of the State of
[________], (b) has
all requisite power and authority to carry on its business as now conducted and
(c) except where the failure to do so, individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect, is qualified
to do business in, and is in good standing in, every jurisdiction where such
qualification is required.
2. The
Transactions are within each Loan Party’s corporate/limited liability company
powers and have been duly authorized by all necessary corporate/company and, if
required, stockholder or other equityholder action. Each Loan
Document has been duly executed and delivered by each Loan Party thereto and
constitutes a legal, valid and binding obligation of such Loan Party,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors’ rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
3. The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such as
have been obtained or made and are in full force and effect, (b) will not
violate any applicable law or regulation or the charter, by-laws or other
organizational documents of any Loan Party or any of its Subsidiaries or any
order of any Governmental Authority, (c) will not violate or result in a default
under any indenture, agreement or other instrument binding upon any Loan Party
or any of its Subsidiaries or its assets, or give rise to a right thereunder to
require any payment to be made by or any of its Subsidiaries, and (d) will not
result in the creation or imposition of any Lien on any asset of any Loan Party
or any of its Subsidiaries.
4. There
are no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to our knowledge, threatened against or affecting
any Loan Party or any of its Subsidiaries (a) as to which there is a reasonable
possibility of an adverse determination and that, if adversely determined, could
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect or (b) that involve any Loan Document or the
Transactions.
5. None
of the Loan Parties is an “investment company” as defined in, or subject to
regulation under, the Investment Company Act of 1940.
6. [Pledge
security creation and perfection opinions.]
We are
members of the bar of the States of Wisconsin and Illinois and the foregoing
opinion is limited to the laws of the States of Wisconsin and Illinois, the
General Corporation Law of the State of Delaware and the Federal laws of the
United States of America. This opinion is rendered solely to you in
connection with the above matter. This opinion may not be relied upon
by you for any other purpose or relied upon by any other Person (other than your
successors and assigns as Lenders and Persons that acquire participations in
your Loans) without our prior written consent.
EXHIBIT
C
LIST OF
CLOSING DOCUMENTS
Attached.
ex99_2.htm
EXECUTION
VERSION
AMENDMENT
NO. 1
to
CREDIT
AGREEMENT
THIS
AMENDMENT NO. 1 TO CREDIT AGREEMENT (this “Amendment”) is made
as of February 12, 2008 by and among JOHNSON 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 Johnson 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 Johnson 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.
(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 Johnson
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 “Johnson
Family” appearing in Section 1.01 of the
Credit Agreement is amended and restated in its entirety as
follows:
“Johnson Family” shall
mean at any time, collectively, the estate of Samuel C. Johnson, the widow of
Samuel C. Johnson and the children and grandchildren of Samuel C. Johnson, 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 Jones Market
Service” in the first sentence thereof and to insert the phrase “Reuters British
Banking Association Libor Rates” immediately before the phrase “Page
3750”.
(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 Moody’s and (iv) have portfolio assets of at least $5,000,000,000;
and
(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 Moody’s.
(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, Chicago, Illinois 60603”.
(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 “EDGAR” online service
provided by the SEC and on its home page on the worldwide web (at the date of
this Agreement located at: http://www.edgar-online.com) and shall have given
each Lender prior notice of such availability on EDGAR 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.
(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:
“(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:
“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 555 Main Street, Suite 023, Racine,
Wisconsin 53403, Attention: Treasury Department (Facsimile No.
262-631-6608) with a copy to the Borrower at 555 Main Street, Suite 023, Racine,
Wisconsin 53403, Attention: General Counsel (Facsimile No.
262-631-6610);
(ii) if
to the Administrative Agent, to JPMorgan Chase Bank, N.A., Loan and Operations,
10 S. Dearborn Street, Suite IL1-0010, Chicago, IL 60603, Attention of Edna
Guerra (Facsimile No. (312) 732-4864 and e-mail edna.guerra@jpmchase.com)
with a copy to JPMorgan Chase Bank, N.A., 10 S. Dearborn Street, Chicago, IL
60603, Attention of Nathan Bloch (Facsimile No. (312) 325-3060 and e-mail
address nathan.bloch@jpmorgan.com);
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.
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.]
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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JOHNSON
OUTDOORS INC.
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By
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/s/ David W. Johnson
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Name:
David W. Johnson
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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/ Sabir A. Hashmy
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Name:
Sabir A. Hashmy
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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/ Steven K. Kessler
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Name:
Steven K. Kessler
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Title:
Senior Vice President
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M&I
MARSHALL & ILSLEY BANK,
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as
a Lender
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By
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/s/ Ronald J. Carey
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Name:
Ronald J. Carey
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Title:
Vice President
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By
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/s/ James R. Miller
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Name:
James R. Miller
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Title:
Senior Vice President
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WELLS
FARGO BANK, N.A., as a Lender
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By
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/s/ Paul J. Hennessy
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Name:
Paul J. Hennessy
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Title:
Vice President
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Signature Page to
Amendment to Credit Agreement
Johnson 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 Johnson 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]
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/ Derek Coffie
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Name:
Derek Coffie
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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/ Derek Coffie
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Name:
Derek Coffie
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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/ Derek Coffie
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Name:
Derek Coffie
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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/ Derek Coffie
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Name:
Derek Coffie
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Title:
Secretary and Treasurer
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Signature
Page to
Consent and Reaffirmation
Johnson Outdoors Inc.