EXHIBIT 4(a)
[Execution]
AMENDMENT NO. 6 TO SECOND AMENDED
AND RESTATED LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 6, dated May 9, 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 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, 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,
Amendment No. 4 to Second Amended and Restated Loan and Security Agreement,
dated March 14, 2003, and Amendment No. 5 to Second Amended and Restated Loan
and Security Agreement, dated May 2, 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 have requested that Agent and Lenders increase the
Maximum Credit for a sixty (60) day period and Agent and Lenders are willing to
agree to such request, subject to the terms and conditions contained herein; and
WHEREAS, by this Amendment No. 6, Agent, Lenders, Borrowers and
Guarantors desire and intend to evidence such amendment.
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:
(i) "Amendment No. 6" shall mean this Amendment No. 6
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) "Suppressed Availability" shall mean, after
giving effect to Amendment No. 6, the difference between (A) the aggregate
amount of Revolving Loans and Letter of Credit Accommodations which would be
available at such time to Borrowers, as determined in accordance with the
applicable borrowing base formulas under the Loan Agreement, without giving
effect to any sublimits or other limitations on such amount resulting from
reference under such formulas to the Maximum Credit, and (B) the aggregate
amount of Revolving Loans and Letter of Credit Accommodations available at any
time to Borrowers, as determined in accordance with the applicable borrowing
base formulas under the Loan Agreement.
(b) Interpretation. For purposes of this Amendment No. 6,
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. Maximum Credit. Section 1.89 of the Loan Agreement is hereby deleted
in its entirety and the following substituted therefor:
"1.89 "Maximum Credit" shall mean $95,000,000 at all times
from May 9, 2003 through and including July 7, 2003 and $90,000,000 at all other
times."
3. Commitment. The Commitment of Congress Financial Corporation
(Central) as US Lender specified beneath its signature to the Loan Agreement
shall be
and hereby is amended by deleting the reference beneath such signature to
"$50,000,000" and substituting "$55,000,000" therefor.
4. Amendment Fee. In consideration of the amendment set forth herein
Borrowers shall on the date hereof, pay to Agent or Agent, at its option, may
charge the account of Borrowers maintained by Agent, a supplemental loan fee in
the amount of $150,000, $25,000 of which shall be for the sole account of
Congress Financial Corporation (Central), and $125,000 of which shall be for the
sole account of Term Loan Lender, which fee is fully earned as of the date
hereof and shall constitute part of the Obligations.
5. Additional Representations, Warranties and Covenants. Each Borrower
and Guarantor, jointly and severally, represents, warrants and covenants with
and to Agent and Lenders as follows, which representations, warranties and
covenants are continuing and shall survive the execution and delivery hereof,
and 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 Loans by Agent or any Lender to
Borrowers:
(a) no Event of Default and no event, act or condition which
with notice or passage of time or both would constitute an Event of Default,
exists or has occurred as of the date of this Amendment No. 6;
(b) this Amendment No. 6 has been duly 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
respective terms; and
(c) from May 9, 2003 through and including July 7, 2003,
Suppressed Availability shall at all times be not less than $10,000,000.
6. Conditions Precedent. The effectiveness of the amendments contained
herein shall be subject to the satisfaction of each of the following, in a
manner satisfactory to Agent and its counsel:
(a) Agent shall have received this Amendment No. 6 duly
authorized, executed and delivered by the parties hereto; and
(b) no Event of Default, or event, act or condition which with
notice or passage of time or both would constitute an Event of Default, shall
exist or have occurred.
7. 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. 6
or with respect to the subject matter of this Amendment No. 6. To the extent of
conflict between the terms of this Amendment No. 6 and the other Financing
Agreements, the terms of this Amendment No. 6 shall control. The Loan Agreement
and this Amendment No. 6 shall be read and construed as one agreement.
8. 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. 6.
9. Governing Law. The validity, interpretation and enforcement of this
Amendment No. 6 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 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.
10. Binding Effect. This Amendment No. 6 shall be binding upon and
inure to the benefit of each of the parties hereto and their respective
successors and assigns.
11. Headings. The headings listed herein are for convenience only and
do not constitute matters to be construed in interpreting this Amendment No. 6.
12. Counterparts. This Amendment No. 6 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.
6, 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. 6 by telefacsimile shall have the same force
and effect as delivery of an original executed counterpart of this Amendment No.
6. Any party delivering an executed counterpart of this Amendment No. 6 by
telefacsimile also shall deliver an original executed counterpart of this
Amendment No. 6, but the failure to deliver an original executed counterpart
shall not affect the validity, enforceability, and binding effect of this
Amendment No. 6 as to such party or any other party.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 6
to be duly executed and delivered by their authorized officers as of the day and
year first above written.
BORROWERS:
HUFFY CORPORATION HUFFY SERVICE FIRST, INC.
By:__________________________ By:___________________________
Title:_______________________ Title:________________________
AMERICAN SPORTS DESIGN GEN-X SPORTS INC.
COMPANY
By:__________________________ By:___________________________
Title:_______________________ Title:________________________
GEN-X SPORTS CANADA INC.
By:__________________________
Title:_______________________
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
GUARANTORS:
HUFCO-DELAWARE COMPANY HUFFY RISK MANAGEMENT, INC.
By:___________________________ By:___________________________
Title:________________________ Title:________________________
HUFFY SPORTS, INC. HCAC, INC.
By:___________________________ By:___________________________
Title:________________________ Title:________________________
TOMMY ARMOUR GOLF COMPANY LAMAR SNOWBOARDS INC.
By:___________________________ By:___________________________
Title:________________________ Title:________________________
GEN-X SPORTS SARL GEN-X SPORTS LTD.
By:___________________________ By:___________________________
Title:________________________ Title:__________________________
FIRST TEAM SPORTS, INC. HESPELER HOCKEY HOLDING, INC.
By:___________________________ By:___________________________
Title:________________________ Title:__________________________
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
GEN-X SPORTS OUTLET INC. LEHIGH AVENUE PROPERTY
HOLDINGS, INC.
By:___________________________ By:___________________________
Title:________________________ Title:________________________
CREATIVE RETAIL SERVICES, INC. CREATIVE RETAIL SERVICES
(CANADA), INC.
By:___________________________ By:___________________________
Title:________________________ Title:________________________
MCCALLA COMPANY
By:___________________________
Title:________________________
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
AGENT:
CONGRESS FINANCIAL CORPORATION
(CENTRAL), as Agent
By:______________________________
Title:___________________________
US LENDER:
CONGRESS FINANCIAL CORPORATION
(CENTRAL)
By:______________________________
Title:___________________________
CANADIAN LENDER:
CONGRESS FINANCIAL CORPORATION
(CANADA)
By:______________________________
Title:___________________________
TERM LOAN LENDER:
ABLECO FINANCE LLC, on its behalf and
on behalf of its Affiliate assigns
By:______________________________
Title:___________________________