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Exhibit 10.b
FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE AGREEMENT (the "First Amendment") is entered into
by and between SELCO Service Corporation, an Ohio corporation ("Selco"), and
HUFFY CORPORATION, an Ohio corporation ("Huffy"), as of January , 2000.
RECITALS:
A. Selco and Huffy are parties to a Lease Agreement dated December 29, 1993 (the
"Lease"). Pursuant to the Lease, Selco, as lessor, leases to Huffy, as lessee,
the real property and the building thereon located at 225 Byers Road,
Miamisburg, Montgomery County, Ohio (collectively, the "Leased Premises," as
this and as other initial-capitalized and quoted words or phrases not otherwise
defined in this First Amendment are defined in the Lease).
B. Selco and Huffy desire to make certain amendments to the Lease as described
more fully below.
AGREEMENT:
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties to this First Amendment hereby
agree as follows:
1. Basic Rent Payment Amendments.
1.1. Definitional Amendments. The following definitional amendments are made to
the preliminary section of the Lease titled "DEFINITIONS" (the "Definitional
Section"):
(i) The definition of "Basic Rent Payment Date" is deleted in its entirety and
is replaced with the following:
"'Basic Rent Annual Payment Date' means each December 31 during the Base Lease
Term from December 31, 1994 through December 31, 1999, inclusive.
Notwithstanding the foregoing, if any Basic Rent Annual Payment Date would
otherwise fall on a day that is not a Business Day, such Basic Rent Annual
Payment Date shall be deemed to fall on the immediately-following Business Day
(unless such immediately-following Business Day falls in another calendar month,
in which case such Basic Rent Annual Payment Date shall be deemed to fall on the
immediately-preceding Business Day)."
(ii) The following new definition of "Basic Rent Monthly Payment Date" is added
to the Definitional Section in its proper alphabetic order therein:
"'Basic Rent Monthly Payment Date' means the last Business Day of each month
during the Base Lease Term from January 31, 2000 through December 31, 2003,
inclusive."
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(iii) The definition of "Term Rent" is deleted in its entirety and is replaced
by the following:
"'Term Annual Rent' and 'Term Monthly Rent' shall have the meanings given to
such terms in paragraph 4.1(a)."
(iv) The following new definition of "Supplemental Monthly Rent" is added to the
Definitional Section in its proper alphabetic order therein:
"'Supplemental Monthly Rent'shall have the meaning given to such term in
paragraph 4.1(b)."
1.2. Substantive Amendments.
1.2.1. Basic Rent. The amount and timing of certain of the "Basic Rent" payments
is modified as described below. Paragraph 4.1(a) of the Lease is amended by
deleting the first two sentences therein in their entirety and by replacing them
with the following:
"4.1 Basic Rent: Rate Adjustments. (a) Lessee shall pay Basic Rent to Lessor
during the Base Lease term as follows:
(1) Six (6) annual installments, payable in arrears on each Basic Rent Annual
Payment Date (with the last of such annual installments being due as of December
31, 1999), with each such annual installment being comprised of two components:
(A) Term Annual Rent in the amount of $435,436.95 each, plus (B) Annual
Adjustment Rent, as calculated below, to reflect changes in the Libor Rate for
each Monthly Adjustment Period during the year; and
(2) Forty-eight (48) monthly installments, payable in arrears on the later of
(i) each Basic Rent Monthly Payment Date (commencing January 31, 2000) or (ii)
two (2) Business Days after Lessee receives an invoice from Lessor for such
installment, with each such monthly installment being comprised of three
components: (A) Term Monthly Rent in the amount of $36,286.42 each, plus (B)
Monthly Adjustment Rent, plus (C) Supplemental Monthly Rent, as calculated
below."
1.2.2. Adjustment Rent: Supplemental Monthly Rent. Paragraph 4.1(b) of the Lease
is amended by deleting it in its entirety and by replacing it with the
following:
"(b)(i) 'Annual Adjustment Rent'" shall be an amount equal to the sum of all
Monthly Adjustment Rent computed for a twelve (12) month period since the last
Basic Rent Annual Payment Date.
(ii) 'Monthly Adjustment Rent' shall be an amount equal to the product of (A)
the Effective Balance as of the last day of the prior Monthly Adjustment Period
and (B) a fraction, the numerator of which is the Effective Rate for the
relevant Monthly Adjustment Period minus the Assumed Rate, and the denominator
of which is twelve (12), provided that there shall be no Monthly Adjustment Rent
for the period prior to January 1, 1994.
(iii) 'Supplemental Monthly Rent' shall be, from and after January 1, 2000, an
amount equal to the product of (A) the Effective Balance as of the last day of
the prior Monthly Adjustment Period
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and (B) a fraction, the numerator of which is (1) from and as of January 1, 2000
through June 30, 2001, inclusive, two percent (2.0%), and (2) from July 1, 2001
through the end of the Base Lease Term, inclusive, three and one-half percent
(3.5%), and the denominator of which is twelve (12), provided, however, that the
percentage value in sub-clause (2) above shall revert from three and one-half
percent (3.5%) to two percent (2.0% %) upon the sale or transfer to, and the
assumption by. a purchaser or assignee acceptable to Lessor, of all of Lessee's
right, title, interest, duties, and obligations under this Agreement."
2. Purchase Option Amendments.
2.1. Extension of Early Termination Option. Selco and Huffy desire to extend the
period during which Huffy may exercise its option to terminate the "Base Lease
Term" and to purchase the "Leased Premises" until the end of the Base Lease
Term. Accordingly, paragraph 5.1 of the Lease is amended by deleting from the
first sentence therein the phrase "on or prior to December 31. 2000" and by
replacing it with the phrase "prior to the expiration of the Base Lease Term."
Paragraph 5.1 of the Lease is further amended by adding the following three
lines at the end of the chart therein:
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"2001 46.78%
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2002 38.58%
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2003 29.48%"
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2.2. Modification of Appraiser Used to Determine Fair Market Value. Selco and
Huffy desire to modify the manner of choosing an appraiser to determine the
"Fair Market Value" of the Leased Premises in connection with Huffy's exercise
of its purchase option under the Lease. Accordingly, (i) paragraph 5.1 of the
Lease is amended by deleting the phrase "selected by Lessee" in clause (a)
thereof and by replacing it with the phrase "acceptable to Lessor and Lessee,"
and (ii) paragraph 6.1 of the Lease is amended by deleting the phrase "selected
by Lessor" in clause (a) thereof and by replacing it with the phrase "acceptable
to Lessor and Lessee."
2.3. Equalization of End of Base Lease Term Purchase Option Notifications.
Paragraph 5.1 of the Lease presently provides for early termination of the Base
Least Term and election to purchase the Leased Premises upon not less than
ninety (90) days' notice from Huffy to Selco, whereas paragraph 6.2 of the Lease
presently provides for election to purchase the Leased Premises at the
expiration of the Base Lease Term upon not less than one hundred eighty (180)
days' notice from Huffy to Selco. Selco and Huffy desire to provide for a
uniform notice period for election to purchase the Leased Premises at the end of
the Base Lease Term. Accordingly, paragraph 5.1 of the Lease is amended by
inserting, immediately following the phrase in the first sentence therein "upon
not less than ninety (90) days prior notice to Lessor of such election," the
phrase "(unless the date set forth in the notice to exercise such option is on
or after July 1, 2003, in which case Lessee must provide Lessor with not less
than one hundred eighty (180) days prior notice of such election, which exercise
shall be irrevocable)."
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3. Additional Amendments.
3.1. Events of Default.
3.1.1. Cure Period. Paragraph 15.1(a) of the Lease is amended by deleting it in
its entirety and by replacing it with the following:
"(a) Should Lessee fail to pay any installment of Term Monthly Rent, Monthly
Adjustment Rent, Supplemental Monthly Rent, or any other sum herein required to
be paid to Lessor when any such amount shall become due and payable; or"
3.1.2. Abandonment. Paragraph 15.1(b) of the Lease is amended by deleting the
phrase "one hundred eighty (180) consecutive days" and by replacing it with the
phrase "ninety (90) consecutive days."
3.1.3. Cross-Default. Paragraphs 15.1(f) through (k) of the Lease are amended by
deleting them in their entirety and by replacing them with the following:
"(f) should any default or event of default occur and be continuing under
Lessee's $40,000,000 term loan governed by the Credit Agreement;
In connection therewith, the Definitional Section of the Lease is amended by
adding the following new definition of "Credit Agreement" in its proper
alphabetic order therein:
"'Credit Agreement' means the Credit Agreement dated as of January ___, 2000 by
and among Lessee, among others, and certain lenders identified therein, and
agented by Lessor's affiliate, KeyBank National Association, as amended from
time to time.'"
3.2. Notice to Selco. Paragraph 21 of the Lease is amended by deleting the
notice provision to Selco therein in it entirety and by replacing it with the
following:
"To Lessor: SELCO Service Corporation
c/o KeyBank National Association
127 Public Square
Fifth Floor
Cleveland, Ohio 44114-1306
Mailcode OH-01-27-0504
Attention: Arthur E. Cutler.
Vice President
Fax:(216) 689-8468
With a copy to: Michael A. Axel, Esq.
Vice President and Senior Counsel
KeyBank National Association
127 Public Square
Second Floor
Cleveland, Ohio 44114-1306
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Mailcode: OH-01-27-0200
Fax:(216) 689-5681
4. Representations and Warranties. The representations and warranties made by
Huffy in Sections 5.01 through 5.20, inclusive, of the Credit Agreement are
hereby incorporated by reference herein and are extended by Huffy to Selco. Any
and all references in such representations and warranties to "Agent," "Lender,"
or "Lenders" shall, for purposes of this First Amendment, be deemed to
constitute references to Selco.
5. Modification Expenses. Concurrently with its execution of this First
Amendment, Huffy shall reimburse Selco's reasonable fees and expenses for the
preparation and negotiation of this First Amendment and all related agreements,
instruments, and documents, including Selco's in-house and outside-retained
attorneys' fees.
6. Releases. Effective upon the date of execution of this First Amendment, Huffy
hereby releases and discharges Selco and its officers, directors, shareholders,
agents, servants, employees, attorneys, affiliates, subsidiaries, successors,
and assigns, and all persons, firms, corporations, and organizations acting on
their behalf (collectively, the "Selco Parties"), from any and all claims,
demands, liabilities, obligations, damages, losses, actions, and causes of
action whatsoever that Huffy has or claims to have against any of the Selco
Parties as of the date hereof, whether known or unknown at the time of this
release, and of every nature and extent whatsoever on account of or in any way,
directly or indirectly, related to, concerning, arising out of, or founded upon
the Lease or the business relationship in general between Huffy and any of the
Selco Parties.
7. Further Assurances. Huffy shall execute any and all agreements, instruments,
and documents, and shall take such further actions as may be necessary, to fully
effectuate this First Amendment.
8. Benefit of Successors. This First Amendment and the various rights and
obligations arising hereunder shall inure to the benefit of and be binding upon
the parties to this First Amendment and their respective successors and assigns.
Huffy may not assign its rights or obligations arising under this First
Amendment without Selco's prior written consent.
9. No Third Party Beneficiaries. All of the terms and conditions of this First
Amendment are for the sole and exclusive benefit of the parties to this First
Amendment and their respective successors and assigns. No other person or entity
shall obtain any interest in this First Amendment or require the satisfaction of
such terms and conditions according to the terms of this First Amendment or be
entitled to assume that any of the parties to this First Amendment will enforce
such terms and conditions, and no other person or entity shall, under any
circumstances, be a beneficiary of such terms or conditions.
10. Recitals. The statements contained in the Recital paragraphs of this First
Amendment are specifically incorporated by reference in this First Amendment as
part of the representations and warranties made by the parties to this First
Amendment.
11. Integration. This First Amendment embodies the entire agreement and
understanding between
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the parties hereto with respect to the subject matter of this First Amendment
and supersedes all prior and contemporaneous agreements and understandings
relative to such subject matter.
12. Severability. If one or more or the provisions of this First Amendment shall
for any reason be held to be invalid, illegal, or unenforceable in any respect,
such invalidity, illegality, or unenforceability shall not affect any other
provision of this First Amendment, and this First Amendment shall be construed
as if such invalid, illegal, or unenforceable provisions had not been contained
in this First Amendment.
13. No Waiver or Amendment. Except as otherwise provided in this First
Amendment, nothing in this First Amendment shall constitute a waiver or estoppel
by Selco with respect to any claims, causes of action, rights, or remedies under
the Lease or an amendment or modification of the terms and conditions thereof.
Unless specifically modified by this First Amendment, all terms and conditions
of the Lease shall continue in full force and effect.
14. Applicable Law: Jurisdiction and Venue. This First Amendment shall be
construed in accordance with the laws of the State of Ohio. This First Amendment
has been entered into in Cuyahoga County, Ohio and shall be performable for all
purposes in such County. Courts within the State of Ohio shall have jurisdiction
over any and all disputes arising under or pertaining to this First Amendment
and venue in any such dispute shall lie in Cuyahoga County, Ohio.
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15. Counterparts. This First Amendment may be executed in one or more
counterparts, each of which shall be considered an original, and all of which
when taken together shall constitute one and the same agreement.
16. JURY TRIAL WAIVER. HUFFY AND SELCO WAIVE ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE, BETWEEN SELCO AND HUFFY ARISING OUT OF, IN CONNECTION WITH, RELATED
TO, OR INCIDENTAL TO ANY RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION
WITH THIS FIRST AMENDMENT OR ANY OTHER AGREEMENT, INSTRUMENT, OR DOCUMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED
THERETO.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of
the date first stated above.
SELCO SERVICE CORPORATION,
an Ohio corporation
By:
Its:
WITNESSES:
PRINT NAME:
PRINT NAME:
HUFFY CORPORATION, an Ohio corporation
By: /s/Robert W. Lafferty
Its: Vice President, Chief Financial
Officer & Treasurer
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WITNESSES:
/s/Nancy A. Michaud
PRINT NAME: Nancy A. Michaud
/s/Timothy G. Howard
PRINT NAME: Timothy G. Howard
STATE OF OHIO}
}SS.
COUNTY OF CUYAHOGA }
The foregoing First Amendment to Lease Agreement was acknowledged before me this
26th day of January, 2000 by Robert W. Lafferty, the Vice President, Chief
Financial Officer and Treasurer of Huffy Corporation, an Ohio corporation, on
behalf of such corporation.
/s/ David J. Naftzinger
DAVID J. NAFTZINGER. Attorney At Law
Notary Public - State of Ohio
My commission has no expiration date.
Section 147.03 R. C.