Exhibit 4.b
AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 5, dated May 2, 2003, 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"), Huffy Service First, Inc. ("HSFI"), 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, HSFI, American and Gen-X, each
individually, a "Borrower" and collectively, the "Borrowers"), Huffy Risk
Management, Inc. ("HRMI"), 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), Inc. ("Creative
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, 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 party thereto as lenders (each individually, a "Lender" and
collectively, "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, Amendment No. 2 to Second
Amended and Restated Loan and Security Agreement, dated as of December 31, 2002,
Amendment No. 3 to Second Amended and Restated Loan and Security Agreement,
dated as of January 31, 2003, and Amendment No. 4 to Second Amended and Restated
Loan and Security Agreement, dated March 14, 2003 (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, modified,
supplemented, extended, renewed, restated or replaced, collectively, the
"Financing Agreements");
WHEREAS, Borrowers and Guarantors have requested that Agent and Lenders
make certain amendments to the Loan Agreement; and
WHEREAS, by this Amendment No. 5, Agent, Lenders, Borrowers and
Guarantors desire and intend to evidence such 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 and the other Financing Agreements are hereby amended to include, in
addition and not in limitation, each such definition.
(i) "Amendment No. 5" shall mean Amendment No. 5 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) "Revolving Loan Limit" shall mean, as to each
Borrower, at any time, the amount equal to $75,000,000 minus the then
outstanding principal amount of the Revolving Loans and Letter of Credit
Accommodations provided to the other Borrowers.
(b) AMENDMENTS TO DEFINITIONS.
(i) All references to the term "Lenders" herein and in the
Loan Agreement and the other Financing Agreements shall be deemed and each such
reference is hereby amended to mean, collectively, the Revolving Loan Lenders
and the Term Loan Lender (sometimes being referred to individually as a
"Lender"), EXCEPT THAT for purposes of Sections 1.15, 1.63, 1.125, 2.1(b), (d)
and (e), 2.2, 2.3, 2.4, 6.5(b), 6.12, 12.8 and 13.1(b) all references to the
term "Lenders" in such Sections shall be deemed and each such reference is
hereby amended to mean the Revolving Loan Lenders; PROVIDED, THAT, the reference
to "Lenders" in clause (b) of the proviso of Section 12.8 shall be deemed to
mean the Revolving Loan Lenders and the Term Loan Lender.
(ii) All references to the term "Loans" in the Loan
Agreement and the other Financing Agreements shall be deemed and each such
reference is hereby amended to mean the Revolving Loans and the Term Loan
(sometimes referred to individually as a "Loan"), EXCEPT THAT for purposes of
Sections 1.15, 1.125, 2.1(b), (d) and (e), 2.2, 2.3, 2.4, 6.5(b), 6.12 and 12.8,
all references to the term "Loans" in such Sections and each such reference is
hereby amended to mean the Revolving Loans.
(c) INTERPRETATION. For purposes of this Amendment No. 5,
unless otherwise defined herein, all capitalized terms used herein which are
defined in the Loan Agreement shall have the respective meanings given to such
terms in the Loan Agreement.
2. EXCESS AVAILABILITY. Section 1.59 of the Loan Agreement is hereby
deleted in its entirety and the following substituted therefor:
""Excess Availability" shall mean, as to each Borrower, the US
Dollar Equivalent of the amount, as determined by Agent,
calculated at any time, equal to (a) the lesser of: (i) the
Borrowing Base of such Borrower, or (ii) the Revolving Loan
Limit of such Borrower, MINUS (b) the sum of: (i) the amount
of all then outstanding and unpaid Obligations of such
Borrower (other than pursuant to its guarantee of the
Obligations of the other Borrowers), plus (ii) the aggregate
amount of all trade payables and other obligations of such
Borrower which are more than sixty (60) days past due as of
such time."
3. INTEREST RATE. Section 1.80(c) of the Loan Agreement is hereby
amended by adding the phrase "or the Revolving Loan Limit of such Borrower"
after the phrase "Borrowing Base of such Borrower" in such Section.
4. MAXIMUM CREDIT. Section 1.89 of the Loan Agreement is hereby amended
by deleting the reference therein to "$75,000,000" and substituting
"$90,000,000" therefor.
5. US LOAN LIMIT. Section 1.133 of the Loan Agremeent is hereby amended
by deleting the reference therein to "Maximum Credit" and substituting
"Revolving Loan Limit" therefor.
6. REVOLVING LOAN FACILITY.
(a) Section 2.1(a) of the Loan Agreement is hereby deleted in
its entirety and the following substituted therefor:
"Subject to and upon the terms and conditions contained
herein, each US Lender severally (and not jointly) agrees to
fund its Pro Rata Share of US Dollar Loans to each US Borrower
from time to time in amounts requested by such Borrower (or on
its behalf by Huffy), up to the amount at any time outstanding
equal to the lesser of the US Borrowing Base of such Borrower
at such time or the Revolving Loan Limit of such Borrower,
subject to the limitation that the aggregate amount
outstanding of such US Dollar Loans shall not exceed the US
Loan Limit at such time."
(b) Section 2.1(c) is hereby deleted in its entirety and the
following substituted therefor:
"(c) In the event that the aggregate principal amount of
the Revolving Loans and Letter of Credit Accommodations
outstanding to a Borrower exceed the Borrowing Base of such
Borrower or the Revolving Loan Limit of such Borrower, or the
aggregate principal amount of Revolving Loans and Letter of
Credit Accommodations based on the Eligible Inventory of a
Borrower exceed the Inventory Loan Limit of such Borrower, or
the aggregate principal amount of Revolving Loans based on the
Eligible Inventory of all Borrowers exceeds any of the
applicable sublimits with respect thereto set forth above, or
the aggregate amount of the outstanding Letter of Credit
Accommodations exceed the sublimit for Letter of Credit
Accommodations set forth in Section 2.2(d), or the aggregate
amount of the Revolving Loans and Letter of Credit
Accommodations made under the Canadian Facility exceed the
Canadian Loan Limit or the aggregate amount of the Revolving
Loans and Letter of Credit Accommodations under the US Credit
Facility exceed the US Loan Limit or the aggregate amount of
the Loans and Letter of Credit Accommodations exceed the
Maximum Credit, such event shall not limit, waive or otherwise
affect any rights of Agent or Lenders in such circumstances or
on any future occasions and US Borrowers shall, upon demand by
Agent, which may be made at any time or from time to time,
immediately repay to Agent and Canadian Borrower shall, upon
demand by Agent which may be made at any time or from time to
time immediately repay to Canadian Lender, the entire amount
of any such excess(es) for which payment is demanded."
(c) Section 2.1(e) of the Loan Agreement is hereby amended by
deleting the reference therein to "Maximum Credit" and substituting "Revolving
Loan Limit" therefor.
7. MAXIMUM CREDIT; INVENTORY LOAN LIMIT. Section 2.4 of the Loan
Agreement is hereby deleted in its entirety and the following substituted
therefor:
"2.4. MAXIMUM CREDIT; INVENTORY LOAN LIMIT. Except in
Agent's discretion, with the consent of all Lenders, (a) the
aggregate amount of the Revolving Loans and the Letter of
Credit Accommodations outstanding at any time shall not exceed
the Revolving Loan Limit; (b) the aggregate principal amount
of Revolving Loans and Letter of Credit Accommodations
outstanding at any time to US Borrowers shall not exceed the
lesser of the US Borrowing Base or the US Loan Limit; (c) the
aggregate principal amount of Revolving Loans and Letter of
Credit Accommodations outstanding at any time to Canadian
Borrower shall not exceed the lesser of the Canadian Borrowing
Base or the Canadian Loan Limit, (d) the aggregate amount of
the Revolving Loans based on Eligible Inventory outstanding at
any time (and including as such Loans for this purpose the
portion of any Letter of Credit Accommodations used for the
purpose of purchasing Inventory not subject to a reserve as
provided in Section 2.2(c) hereof) outstanding at any time
shall not exceed $50,000,000; (e) the aggregate amount of the
Revolving Loans based on Eligible Inventory consisting of raw
materials
outstanding at any time shall not exceed $5,000,000; and (f)
the aggregate amount of Loans and Letter of Credit
Accommodations shall not exceed the Maximum Credit."
8. MANDATORY PREPAYMENTS. Section 6.5(a) of the Loan Agreement is
hereby deleted in its entirety and the following substituted therefor: 1.
"(a) In the event that the aggregate amount of the
Revolving Loans and the Letter of Credit Accommodations made
or provided to any Borrower outstanding at any time shall
exceed the Borrowing Base or the Revolving Loan Limit of such
Borrower, or the aggregate amount of the outstanding Letter of
Credit Accommodations exceed the sublimit for Letter of Credit
Accommodations set forth in Section 2.2(d), or the aggregate
amount of Revolving Loans made or provided to any Borrower at
any time with respect to Eligible Inventory shall exceed the
applicable Inventory Loan Limit, or the aggregate amount of
the Loans and the Letter of Credit Accommodations outstanding
at any time shall exceed the Maximum Credit or the aggregate
amount of the Revolving Loans and Letter of Credit
Accommodations made under the Canadian Credit Facility exceed
the Canadian Borrowing Base or the Revolving Loan Limit of
Canadian Borrower or the Canadian Loan Limit or the aggregate
amount of the Revolving Loans and Letter of Credit
Accommodations made under the US Credit Facility exceed the US
Borrowing Base or the Revolving Loan Limit of any US Borrower
or the US Loan Limit, such event shall not limit, waive or
otherwise affect any rights of Agent and Revolving Loan
Lenders in that circumstance or on any future occasions and
Borrowers shall, upon demand by Agent, which may be made at
any time or from time to time, immediately pay to Agent, for
the ratable benefit of Revolving Loan Lenders, the entire
amount of any such excess(es) for which payment is demanded or
provide cash collateral up to such amount as may be required
by Agent."
9. TERM. Section 13.1(b) of the Loan Agreement is hereby amended by
deleting each reference therein to "Maximum Credit" and substituting
"$75,000,000" therefor.
10. REPRESENTATIONS AND WARRANTIES. In addition to the continuing
representations, warranties and covenants hereafter made by Borrowers or
Guarantors to Agent and Lenders pursuant to the other Financing Agreements,
Borrowers and Guarantors, jointly and severally, 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, the truth and accuracy of, or compliance with each, together
with the representations, warranties and covenants in the other Financing
Agreements, being a continuing condition of the making of any Loans by Agent or
any Lender to Borrowers:
(a) This Amendment No. 5 has been duly authorized, executed
and delivered by each Borrower and Guarantor and is in full force and effect as
of the date hereof and the agreements and obligations of each Borrower and
Guarantor contained herein constitute legal, valid and binding obligations of
each Borrower and Guarantor enforceable against each of them in accordance with
their terms.
(b) No Event of Default exists or has occurred as of the date
of this Amendment No. 5.
11. CONDITIONS PRECEDENT. The effectiveness of the amendments contained
herein shall only be effective upon the satisfaction of each of the following
conditions precedent in a manner satisfactory to Agent:
(a) no Event of Default shall have occurred and be continuing
and no event shall have occurred or condition be existing and continuing which,
with notice or passage of time or both, would constitute an Event of Default;
and
(b) Agent shall have received an original of this Amendment
No. 5, duly authorized, executed and delivered by Borrowers and Guarantors.
12. 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 and Guarantors shall not be entitled to
any other or further amendment or consent by virtue of the provisions of this
Amendment No. 5 or with respect to the subject matter of this Amendment No. 5.
To the extent that any provision of the Loan Agreement or any of the other
Financing Agreements are inconsistent with the provisions of this Amendment No.
5, the provisions of this Amendment No. 5 shall control. The Loan Agreement and
this Amendment No. 5 shall be read and construed as one agreement.
13. GOVERNING LAW. The validity, interpretation and enforcement of this
Amendment No. 5 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 and interpreted and determined in accordance
with the 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.
14. BINDING EFFECT. This Amendment No. 5 shall be binding upon and
inure to the benefit of each of the parties hereto and their respective
successors and assigns.
15. COUNTERPARTS. This Amendment No. 5 may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one and
the same agreement. In making proof of this Amendment No. 5, 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. 5 by telefacsimile shall have the same force and effect as
delivery of an original executed counterpart of this Amendment No. 5. Any party
delivering an executed counterpart of this Amendment No. 5 by telefacsimile also
shall deliver an original executed counterpart of this Amendment No. 5, but the
failure to deliver an original executed counterpart shall not affect the
validity, enforceability, and binding effect of this Amendment No. 5 as to such
party or any other party.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 5 to be executed on the day and year first written.
BORROWERS:
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HUFFY CORPORATION HUFFY SERVICE FIRST, INC.
By: /s/ Robert W. Lafferty By: /s/ Robert W. Lafferty
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Title: Vice President - Finance By: Treasurer
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Chief Financial Officer and Treasurer
AMERICAN SPORTS DESIGN GEN-X SPORTS INC.
COMPANY
By: /s/ Robert W. Lafferty By: /s/ Robert W. Lafferty
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Title: Vice President and Treasurer By: Vice President and Treasurer
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GEN-X SPORTS CANADA INC.
By: /s/ Robert W. Lafferty
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Title: Treasurer
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[SIGNATURES CONTINUE ON FOLLOWING PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
GUARANTORS:
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HUFCO-DELAWARE COMPANY HUFFY RISK MANAGEMENT, INC.
By: /s/ Robert W. Lafferty By: /s/ Robert W. Lafferty
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Title: Treasurer By: Vice President - Finance
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HUFFY SPORTS, INC. HCAC, INC.
By: /s/ Robert W. Lafferty By: /s/ Robert W. Lafferty
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Title: Treasurer By: Treasurer
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TOMMY ARMOUR GOLF COMPANY LAMAR SNOWBOARDS INC.
By: /s/ Robert W. Lafferty By: /s/ Robert W. Lafferty
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Title: Treasurer By: Treasurer
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GEN-X SPORTS SARL GEN-X SPORTS LTD.
By: /s/ Robert W. Lafferty By: /s/ Robert W. Lafferty
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Title: Manager By: Treasurer
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FIRST TEAM SPORTS, INC. HESPELER HOCKEY HOLDING, INC.
By: /s/ Robert W. Lafferty By: /s/ Robert W. Lafferty
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Title: Treasurer By: Treasurer
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[SIGNATURES CONTINUE ON FOLLOWING PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
GEN-X SPORTS OUTLET INC. LEHIGH AVENUE PROPERTY
HOLDINGS, INC.
By: /s/ Robert W. Lafferty By: /s/ Robert W. Lafferty
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Title: Treasurer By: Treasurer
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CREATIVE RETAIL SERVICES, INC. CREATIVE RETAIL SERVICES
(CANADA), INC.
By: /s/ Robert W. Lafferty By: /s/ Robert W. Lafferty
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Title: Treasurer By: Treasurer
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MCCALLA COMPANY
By: /s/ Robert W. Lafferty
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Title: Treasurer
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[SIGNATURES CONTINUE ON FOLLOWING PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
AGENT:
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CONGRESS FINANCIAL CORPORATION
(CENTRAL), as Agent
By: /s/ Thomas C. Lannon
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Title: Vice President
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US LENDER:
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CONGRESS FINANCIAL CORPORATION
(CENTRAL)
By: /s/ Thomas C. Lannon
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Title: Vice President
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CANADIAN LENDER:
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CONGRESS FINANCIAL CORPORATION
(CANADA)
By: /s/ Thomas C. Lannon
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Title: Vice President
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TERM LOAN LENDER:
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ABLECO FINANCE LLC
By: /s/ Alexander J. Ornstein
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Title: Vice President
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