EXHIBIT 4.h
AMENDMENT NO. 2 TO SECOND AMENDED
AND RESTATED LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 2, dated as of December 31, 2002, by and among Congress
Financial Corporation (Central), in its capacity as agent (in such capacity,
"Agent") acting for and on behalf of Lenders (as hereinafter defined), Huffy
Corporation ("Huffy"), Royce Union Bicycle Company ("Royce"), Huffy Service
First, Inc. ("Huffy Service"), American Sports Design Company ("American"),
Gen-X Sports Inc., formerly known as HSGC, Inc. ("Gen-X") and Gen-X Sports
Canada Inc., as successor by amalgamation with HSGC Canada, Inc. ("Canadian
Borrower" and together with Huffy, Royce, Huffy Service, American and Gen-X,
each individually, a "Borrower" and collectively, the "Borrowers"), Huffy Risk
Management, Inc. ("HRMI"), Huffy Brands Company, as successor by merger with
Hufco Company ("Huffy Brands"), HCAC, Inc., formerly known as True Temper
Hardware Company ("HCAC"), Hufco-Delaware Company, formerly known as Gerry Baby
Products Company ("Hufco-Delaware"), Huffy Sports, Inc., formerly known as Gerry
Wood Products Company ("Huffy Sports"), McCalla Company ("McCalla"), Creative
Retail Services, Inc. ("Creative"), Creative Retail Services (Canada)
("Canada"), Gen-X Sports Outlet Inc., formerly known as 1489055 Ontario Limited
("Outlet"), Tommy Armour Golf Company ("Armour"), Lamar Snowboards Inc.
("Lamar"), Gen-X Sports Sarl ("Gen-X Swiss"), Gen-X Sports Ltd. ("Limited"),
First Team Sports, Inc. ("First Team"), Hespeler Hockey Holding, Inc.
("Hespeler"), and Lehigh Avenue Property Holdings, Inc. ("Lehigh" and together
with HRMI, Huffy Brands, HCAC, Hufco-Delaware, Huffy Sports, McCalla, Creative,
Creative Canada, Outlet, Armour, Lamar, Gen-X Swiss, Limited, First Team and
Hespeler, each individually, a "Guarantor" and collectively, "Guarantors").
W I T N E S S E T H:
WHEREAS, Agent, Lenders, Borrowers and Guarantors have entered into
financing arrangements pursuant to which Agent and Lenders may make loans and
advances and provide other financial accommodations to Borrowers as set forth in
the Second Amended and Restated Loan and Security Agreement, dated as of
September 19, 2002, by and among Agent, Borrowers, Guarantors and the financial
institutions from time to time parties thereto as lenders ("Lenders"), whether
by execution thereof or of an Assignment and Acceptance, as amended by Amendment
No. 1 to Second Amended and Restated Loan and Security Agreement, dated as of
November 20, 2002 (as amended hereby and as the same may hereafter be further
amended, modified, supplemented, extended, renewed, restated or replaced, the
"Loan Agreement", and together with all agreements, documents and instruments at
any time executed and/or delivered in connection therewith or related thereto,
as from time to time amended and supplemented, collectively, the "Financing
Agreements");
WHEREAS, it is contemplated that Royce and Huffy Brands, each a
wholly-owned subsidiary of Huffy, will merge with and into Huffy with Huffy as
the surviving corporation;
WHEREAS, Borrowers and Guarantors have requested that Agent and Lenders
make certain amendments to the Loan Agreement;
WHEREAS, Agent and Lenders are willing to consent to such mergers and make
such amendments to the extent and upon the terms and conditions set forth
herein; and
WHEREAS, by this Amendment No. 2, Agent, Lenders, Borrowers and Guarantors
desire and intend to evidence such consent and amendments.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
and covenants contained herein, the parties hereto agree as follows:
1. DEFINITIONS.
(a) ADDITIONAL DEFINITIONS. As used herein, the following terms shall
have the respective meanings given to them below and the Loan Agreement shall be
deemed and hereby is amended to include, in addition and not in limitation, each
of the following definitions:
(i) "Amendment No. 2" shall mean this Amendment No. 2 to
Second Amended and Restated Loan and Security Agreement, as the same now exists
or may hereafter be amended, modified, supplemented, extended, renewed, restated
or replaced.
(ii) "Guarantees" shall mean, collectively, the following (as
the same now exist or may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced): (A) the Guarantee, dated as of
September 19, 2002, by Royce, Huffy Brands and certain of their Affiliates, in
favor of Agent, with respect to the Obligations of Gen-X, (B) the Guarantee,
dated as of September 19, 2002, by Royce, Huffy Brands and certain of their
Affiliates in favor of Agent with respect to the Obligations of Canadian
Borrower, (C) the Guarantee, dated January 26, 2000, by Royce, Huffy Brands and
certain of their Affiliates in favor of Agent with respect to the Obligations of
Huffy, (D) the Guarantee, dated January 26, 2000, by Royce, Huffy Brands and
certain of their Affiliates in favor of Agent with respect to the Obligations of
American and (E) the Guarantee, dated January 26, 2000 by Royce, Huffy Brands
and certain of their Affiliates in favor of Agent with respect to the
Obligations of Huffy Service.
(iii) "Merger Agreements" shall mean, collectively, the
following (as the same now exist or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced): (A) the Agreement and
Plan of Merger, dated December 31, 2002, between Royce and Huffy, (B) the
Agreement and Plan of Merger, dated December 31, 2002, between Huffy Brands and
Huffy, (C) the Certificates of Merger, each dated December 31, 2002, with
respect to the Mergers and (D) all agreements, documents and instruments related
to the foregoing.
(iv) "Mergers" shall mean the mergers of Royce and Huffy
Brands with and into Huffy, pursuant to the terms of the Merger Agreements (as
in effect on the date hereof), with Huffy as the surviving corporation.
(b) INTERPRETATION. For purposes of this Amendment No. 2, unless
otherwise defined herein, all terms used herein, including, but not limited to,
those terms used and/or defined in the recitals above, shall have the respective
meanings assigned to such terms in the Loan Agreement.
2. CONSENT. Subject to the terms and conditions set forth herein, Agent and
Lenders hereby consent to the Mergers.
3. ELIGIBLE INVENTORY. Section 1.50 of the Loan Agreement is hereby amended
by deleting the first sentence thereof in its entirety and substituting the
following therefor:
"1.50 "Eligible Inventory" shall mean, as to Huffy, Inventory of Huffy
Bicycle Company Division of Huffy consisting of finished goods held for resale
in the ordinary course of the business of Huffy and Inventory of the Huffy
Sports Company Division of Huffy consisting of finished goods held for resale in
the ordinary course of the business of Huffy and raw materials for such finished
goods, as to Gen-X, Inventory of Gen-X held for resale in the ordinary course of
its business and as to Canadian Borrower, Inventory of Canadian Borrower held
for resale in the ordinary course of its business in each case which are
acceptable to Agent based on the criteria set forth below."
4. INVENTORY LOAN LIMIT. Section 1.82 of the Loan Agreement is hereby
deleted in its entirety and the following substituted therefor:
"1.82 "Inventory Loan Limit" shall mean, at any time, (a) as to Huffy,
the amount equal to $50,000,000 minus the amount of the Loans based on Eligible
Inventory to Gen-X and Canadian Borrower then outstanding, (b) as to Gen-X the
amount equal to $50,000,000 minus the amount of the Loans based on Eligible
Inventory to Huffy and Canadian Borrower then outstanding, and (c) as to
Canadian Borrower, the amount equal to $50,000,000 minus the amount of the Loans
based on Eligible Inventory to Huffy and Gen-X then outstanding."
5. US BORROWING BASE. Section 1.125(a) of the Loan Agreement is hereby
deleted in its entirety and the following substituted therefor:
"1.125 "US Borrowing Base" shall mean, as to each US Borrower, at any
time:
(a) the sum of:
(i) eighty-five (85%) percent of the Net Amount of
the Eligible Accounts of such Borrower, PLUS
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(ii) as to Huffy, the lesser of (A) the Inventory
Loan Limit for Huffy or (B) the sum of: (1) sixty-six (66%) percent of the Value
of Eligible Inventory of the Huffy Bicycle Company Division of Huffy consisting
of finished goods, other than in the months of January, June, July, August,
September and December of any year and sixty-two (62%) percent of the Value of
Eligible Inventory of the Huffy Bicycle Company Division of Huffy consisting of
finished goods at all times during the months of January, June, July, August,
September and December of each year plus (2) fifty-four (54%) percent of the
Value of Eligible Inventory of the Huffy Sports Company Division of Huffy
consisting of finished goods and raw materials, other than during the months of
January, June, July, August, September and December of any year and forty-seven
(47%) percent of the Value of Eligible Inventory of the Huffy Sports Company
Division of Huffy consisting of finished goods and raw materials at all times
during the months of January, June, July, August, September and December of each
year and
(iii) as to Gen-X, the lesser of (A) the Inventory
Loan Limit for Gen-X or (B)(1) during the months of May through and including
November, sixty (60%) percent of the Value of Eligible Inventory of Gen-X
consisting of finished goods and (2) during the months of December through and
including April, fifty (50%) percent of the Value of Eligible Inventory of Gen-X
consisting of finished goods; MINUS"
6. INDEBTEDNESS. Section 9.9(d)(v) of the Loan Agreement is hereby deleted
in its entirety and the following substituted therefor:
"(v) as of the date of any such loan or advance and after giving effect
thereto, the Excess Availability of the Borrower making such loan shall be not
less than $11,500,000 as to loans or advances made by Huffy, $1,000,000, as to
loans or advances made by Huffy Service and $100,000 as to loans or advances
made by American, $2,500,000 as to loans or advances made by Gen-X and
$7,500,000 as to loans or advances made by Canadian Borrower."
7. ACKNOWLEDGMENT.
(a) Royce, Huffy Brands and Huffy hereby acknowledge, confirm, and agree
that as of the date hereof (i) the Guarantees are in full force and effect, and
their respective obligations thereunder are unconditionally owing to Agent and
Lenders, without offset, defense or counterclaim of any kind, nature or
description whatsoever, (ii) Agent, for itself and the ratable benefit of
Lenders, has and shall continue to have a security interest in and lien upon the
Collateral of Royce and Huffy Brands heretofore granted to Agent pursuant to
certain of the Financing Agreements to which each of Royce and Huffy Brands is a
party and (iii) the consent contained herein to the Mergers shall not be deemed
to release, terminate or waive such security interests and liens, or any rights
or remedies of Agent pursuant thereto, all of which shall continue in all
respects.
(b) Borrowers and Guarantors hereby acknowledge, confirm, and agree that on
and after the effectiveness of the Mergers: (i) Huffy, as survivor pursuant to
the Mergers, is and shall continue to be liable in all respects for all of the
Obligations pursuant to the Guarantees; (ii) the security interests in and liens
upon the assets and properties of Royce and Huffy Brands in favor of Agent shall
continue upon all assets and properties of Huffy, including such assets and
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properties to which Huffy shall succeed pursuant to the Mergers, and such
security interests and liens and their perfection and priority shall continue in
all respects in full force and effect; and (iii) without limiting the generality
of the foregoing, the Mergers shall in no way limit, impair or adversely affect
the Obligations howsoever arising, or any security interests or liens securing
the same.
8. REPRESENTATIONS, WARRANTIES AND COVENANTS. In addition to the continuing
representations, warranties and covenants heretofore or hereafter made by
Borrowers or Guarantors to Agent and Lenders pursuant to the other Financing
Agreements, Borrowers and Guarantors hereby represent, warrant and covenant with
and to Agent and Lenders as follows (which representations, warranties and
covenants are continuing and shall survive the execution and delivery hereof and
shall be incorporated into and made a part of the Financing Agreements):
(a) As of the filing of the Certificate of Merger with respect to the
Mergers with the Ohio Secretary of State, (i) the Mergers are valid and
effective in accordance with the Merger Agreements and the corporation statutes
of the State of Ohio and Huffy shall be the surviving corporation pursuant to
the Mergers, (ii) all actions and proceedings required by the Merger Agreements,
applicable law and regulation have been taken and the transactions required
thereunder have been duly and validly taken and consummated, and (iii) no court
of competent jurisdiction has issued any injunction, restraining order or other
order which prohibits consummation of the transactions described in the Merger
Agreements and no government action or proceeding has been threatened or
commenced seeking any injunction, restraining order or other order which seeks
to void or otherwise modify the transactions described in the Merger Agreements.
(b) The Mergers and the other arrangements contemplated herein do not
violate any law or regulation or any order or decree of any court or
governmental instrumentality in any respect and do not and will not conflict
with or result in the breach of, or constitute a default in any respect under,
any agreement, document or instrument to which any Borrowers or Guarantors is a
party or may be bound, or result in the creation or imposition of any lien,
charge or encumbrance upon any of the property of any Borrower or Guarantor or
violate any provision of the Certificate of Incorporation or By-Laws of any
Borrower or Guarantor.
(c) Borrowers and Guarantors have delivered, or caused to be delivered, to
Agent, true, correct and complete copies of the Merger Agreements, PROVIDED
THAT, Agent shall have received the Certificate of Merger indicating that it has
been filed with and accepted by the Ohio Secretary of State.
(d) This Amendment has been duly authorized, executed and delivered by
Borrowers and Guarantors, and the agreements and obligations of Borrowers and
Guarantors contained herein constitute legal, valid and binding obligations of
Borrowers and Guarantors, and are enforceable against Borrowers and Guarantors
in accordance with their respective terms.
(e) No Event of Default exists on the date of this Amendment (after giving
effect to the amendments to the Loan Agreement provided in this Amendment).
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9. CONDITIONS PRECEDENT. The effectiveness of the consent set forth in
Section 2 hereof, shall be subject to the satisfaction of each of the following
conditions precedent:
(a) Agent shall have received an original of this Amendment, duly
authorized, executed and delivered by Borrowers and Guarantors;
(b) Agent shall have received evidence, in form and substance satisfactory
to it, that the Merger Agreements have been duly executed and delivered by and
to the appropriate parties thereto and the transactions contemplated under the
terms of the Merger Agreements have been consummated;
(c) Agent shall have received evidence, in form and substance to it, that
all required consents or approvals of any persons other than Agent and Lenders
to the Mergers and the other arrangements contemplated herein have been obtained
and are in full force and effect;
(d) Agent shall have received a true, correct and complete copies of all of
the Merger Agreements;
(e) the Certificate of Merger with respect to the Mergers shall have been
filed with the Secretary of State of Ohio, as applicable and the Mergers shall
be valid and effective in accordance with the terms and provisions of the
applicable corporate statutes of the State of Ohio; and
(f) after giving effect to the Mergers, no Event of Default or event, act
or condition which with notice, passage of time or both would constitute an
Event of Default, shall exist or have occurred and be continuing.
10. EFFECT OF THIS AMENDMENT. Except as expressly set forth herein, no
other amendments, consents, changes or modifications to the Financing Agreements
are intended or implied, and in all other respects the Financing Agreements are
hereby specifically ratified, restated and confirmed by all parties hereto as of
the effective date hereof and Borrowers shall not be entitled to any other or
further amendment or consent by virtue of the provisions of this Amendment No. 2
or with respect to the subject matter of this Amendment No. 2. To the extent of
conflict between the terms of this Amendment No. 2 and the other Financing
Agreements, the terms of this Amendment No. 2 shall control. The Loan Agreement
and this Amendment No. 2 shall be read and construed as one agreement.
11. FURTHER ASSURANCES. The parties hereto shall execute and deliver such
additional documents and take such additional action as may be necessary or
desirable to effectuate the provisions and purposes of this Amendment No. 2.
12. GOVERNING LAW. The validity, interpretation and enforcement of this
Amendment No. 2 and the other Financing Agreements and any dispute arising out
of the relationship between the parties hereto whether in contract, tort, equity
or otherwise, shall be governed by the
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internal laws of the State of Illinois but excluding any principles of
conflicts of law or other rule of law that would cause the application of the
law of any jurisdiction other than the laws of the State of Illinois.
13. BINDING EFFECT. This Amendment No. 2 shall be binding upon and inure to
the benefit of each of the parties hereto and their respective successors and
assigns.
14. HEADINGS. The headings listed herein are for convenience only and do
not constitute matters to be construed in interpreting this Amendment No. 2.
15. COUNTERPARTS. This Amendment No. 2 may be executed in any number of
counterparts, each of which shall be an original and all of which shall together
constitute but one and the same agreement. In making proof of this Amendment No.
2, it shall not be necessary to produce or account for more than one counterpart
thereof signed by each of the parties hereto. Delivery of an executed
counterpart of this Amendment No. 2 by telefacsimile shall have the same force
and effect as delivery of an original executed counterpart of this Amendment No.
2. Any party delivering an executed counterpart of this Amendment No. 2 by
telefacsimile also shall deliver an original executed counterpart of this
Amendment No. 2, but the failure to deliver an original executed counterpart
shall not affect the validity, enforceability, and binding effect of this
Amendment No. 2 as to such party or any other party.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to
be duly executed and delivered by their authorized officers as of the day and
year first above written.
BORROWERS:
ROYCE UNION BICYCLE COMPANY HUFFY CORPORATION
By: /s/ Robert W. Lafferty By: /s/ Robert W. Lafferty
------------------------------- -----------------------------------
Title: Vice President and Treasurer Title: Vice President - Finance
---------------------------- --------------------------------
HUFFY SERVICE FIRST, INC. AMERICAN SPORTS DESIGN COMPANY
By: /s/ Robert W. Lafferty By: /s/ Robert W. Lafferty
------------------------------- -----------------------------------
Title: Treasurer Title: Vice President and Treasurer
---------------------------- --------------------------------
GEN-X SPORTS INC. GEN-X SPORTS CANADA INC.
By: /s/ Robert W. Lafferty By: /s/ Robert W. Lafferty
------------------------------- -----------------------------------
Title: Treasurer Title: Treasurer
---------------------------- --------------------------------
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GUARANTORS:
HUFFY BRANDS COMPANY HUFCO-DELAWARE COMPANY
By: /s/ Robert W. Lafferty By: /s/ Robert W. Lafferty
------------------------------- -----------------------------------
Title: Vice President and Treasurer Title: Treasurer
---------------------------- --------------------------------
HUFFY RISK MANAGEMENT, INC. HUFFY SPORTS, INC.
By: /s/ Robert W. Lafferty By: /s/ Robert W. Lafferty
------------------------------- -----------------------------------
Title: Vice President - Finance Title: Treasurer
---------------------------- --------------------------------
HCAC, INC. McCALLA COMPANY
By: /s/ Robert W. Lafferty By: /s/ Robert W. Lafferty
------------------------------- -----------------------------------
Title: Treasurer Title: Treasurer
---------------------------- --------------------------------
CREATIVE RETAIL SERVICES, INC. TOMMY ARMOUR GOLF COMPANY
By: /s/ Robert W. Lafferty By: /s/ Robert W. Lafferty
------------------------------- -----------------------------------
Title: Treasurer Title: Treasurer
---------------------------- --------------------------------
LAMAR SNOWBOARDS INC. GEN-X SPORTS SARL
By: /s/ Robert W. Lafferty By: /s/ Kenneth J. Finkelstein
------------------------------- -----------------------------------
Title: Treasurer Title: Director
---------------------------- --------------------------------
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GEN-X SPORTS LTD. FIRST TEAM SPORTS, INC.
By: /s/ Robert W. Lafferty By: /s/ Robert W. Lafferty
------------------------------- -----------------------------------
Title: Treasurer Title: Treasurer
---------------------------- --------------------------------
HESPELER HOCKEY HOLDING, INC. LEHIGH AVENUE PROPERTY
HOLDINGS, INC.
By: /s/ Robert W. Lafferty By: /s/ Robert W. Lafferty
------------------------------- -----------------------------------
Title: Treasurer Title: Treasurer
---------------------------- --------------------------------
CREATIVE RETAIL SERVICES GEN-X SPORTS OUTLET INC.
(CANADA), INC.
By: /s/ Robert W. Lafferty By: /s/ Robert W. Lafferty
------------------------------- -----------------------------------
Title: Treasurer Title: Treasurer
---------------------------- --------------------------------
GEN-X SPORTS, INC.
By: /s/ Robert W. Lafferty
-----------------------------------
Title: Vice President - Treasurer
--------------------------------
AGENT:
CONGRESS FINANCIAL CORPORATION
(CENTRAL), as Agent
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By: /s/ Thomas C. Lannon
-------------------------------
Title: Vice President
----------------------------
US LENDER:
CONGRESS FINANCIAL CORPORATION
(CENTRAL)
By: /s/ Thomas C. Lannon
-------------------------------
Title: Vice President
----------------------------
CANADIAN LENDER:
CONGRESS FINANCIAL CORPORATION
(CANADA)
By: /s/ Thomas C. Lannon
-------------------------------
Title: Vice President
----------------------------
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