EXHIBIT 4(c)
[Execution]
AMENDMENT NO. 8 TO SECOND AMENDED
AND RESTATED LOAN AND SECURITY AGREEMENT
Amendment No. 8, dated July 31, 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, Amendment No. 5 to Second Amended and Restated Loan and
Security Agreement, dated May 2, 2003; Amendment No. 6 to Second Amended and
Restated Loan and Security Agreement, dated May 9, 2003; and Amendment No. 7 to
Second Amended and Restated Loan and Security Agreement, dated July __, 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
Revolving Loan Commitment, Revolving Loan Limit and Maximum Credit 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. 8, 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. 8" shall mean this Amendment No. 8
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.
(b) Amendments to Definitions.
(i) Section 1.89 of the Loan Agreement is hereby
deleted in its entirety and the following substituted therefor:
"1.89 "Maximum Credit" shall mean
$105,000,000."
(ii) The reference to "$75,000,000" in the definition
of Revolving Loan Limit in the Loan Agreement is hereby replaced with
"$90,000,000"
(iii) The definition of "Suppressed Availability" is
hereby deleted in its entirety.
(c) Interpretation. For purposes of this Amendment No. 8,
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. Commitments. The Commitments of Congress Financial Corporation
(Central), as US Lender, and Congress Financial Corporation (Canada), as
Canadian Lender, are hereby increased by the aggregate sum of $15,000,000.
3. Amendment Fee.
(a) In consideration of the amendment set forth herein US
Borrowers shall, on the date hereof, pay to LaSalle Business Credit, LLC
("LaSalle") in immediately available funds, or Agent may at its option charge
the account of Borrowers maintained by Agent for payment to LaSalle, a
supplemental loan fee in the amount of $37,500.00, which fee is fully earned as
of the date hereof and shall constitute part of the Obligations.
(b) In consideration of the amendment set forth herein
Canadian Borrowers shall, on the date hereof, pay to ABN Amro Bank N.V., Canada
Branch ("ABN Canada") in immediately available funds, or Agent may at its option
charge the account of Borrowers maintained by Agent for payment to ABN Canada, a
supplemental loan fee in the amount of $37,500.00, which fee is fully earned as
of the date hereof and shall constitute part of the Obligations.
(c) In consideration of the amendment set forth herein
Borrowers shall pay to Term Loan Lender, in immediately available funds, or
Agent may at its option charge the account of Borrowers maintained by Agent for
payment to Term Loan Lender, the following fees, which are fully owed as of the
dated hereof and constitute a part of the Obligations:
(i) a supplemental loan closing fee in the amount of
$416,617.00, which fee is due and payable on the date hereof; and
(ii) supplemental loan facility fees in the amount of
$69,444.33, per year, which shall be due and payable on each of the first,
second and third anniversary of this Amendment, provided, that, if as of such
anniversary date, all outstanding principal and interest amounts in respect of
the Term Loan have been fully and finally repaid, such fee shall not be due or
payable.
4. 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. 8; and
(b) this Amendment No. 8 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.
5. 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. 8 duly
authorized, executed and delivered by the parties hereto;
(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;
(c) contemporaneously herewith, Agent shall have received,
with respect to the sale, transfer and assignment to LaSalle of a portion of the
Commitment and each of the Committed Loans of Congress Financial Corporation
(Central) ("Congress") and all related rights, benefits, obligations,
liabilities and indemnities of Congress under and in connection with the Loan
Agreement and the other Financing Agreements, a true, complete and correct
Assignment and Assumption Agreement between Congress and LaSalle in form and
substance satisfactory to Agent duly executed and delivered by LaSalle and
Congress and the transactions contemplated under the terms of such Assignment
and Assumption Agreement shall have been consummated; and
(d) contemporaneously herewith, Agent shall have received,
with respect to the sale, transfer and assignment to ABN Canada of a portion of
the Commitment and each of the Committed Loans of Congress Financial Corporation
(Canada) ("Congress Canada") and all related rights, benefits, obligations,
liabilities and indemnities of Congress Canada under and in connection with the
Loan Agreement and the other Financing Agreements, a true, complete and correct
Assignment and Assumption Agreement between Congress and ABN Canada in form and
substance satisfactory to Agent duly executed and delivered by ABN Canada and
Congress Canada and the transactions contemplated under the terms of such
Assignment and Assumption Agreement shall have been consummated.
6. 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. 8
or with respect to the subject matter of this
Amendment No. 8. To the extent of conflict between the terms of this Amendment
No. 8 and the other Financing Agreements, the terms of this Amendment No. 8
shall control. The Loan Agreement and this Amendment No. 8 shall be read and
construed as one agreement.
7. 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. 8.
8. Governing Law. The validity, interpretation and enforcement of this
Amendment No. 8 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.
9. Binding Effect. This Amendment No. 8 shall be binding upon and inure
to the benefit of each of the parties hereto and their respective successors and
assigns.
10. Headings. The headings listed herein are for convenience only and
do not constitute matters to be construed in interpreting this Amendment No. 8.
11. Counterparts. This Amendment No. 8 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.
8, 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. 8 by telefacsimile shall have the same force
and effect as delivery of an original executed counterpart of this Amendment No.
8. Any party delivering an executed counterpart of this Amendment No. 8 by
telefacsimile also shall deliver an original executed counterpart of this
Amendment No. 8, but the failure to deliver an original executed counterpart
shall not affect the validity, enforceability, and binding effect of this
Amendment No. 8 as to such party or any other party.
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IN WITNESS WHEREOF, the parties hereto have caused this letter
agreement to be executed on the day and year first written.
HUFFY CORPORATION
By:____________________________
Title: Vice President - Finance
Treasurer
AMERICAN SPORTS DESIGN
COMPANY
GEN-X SPORTS INC.
By:____________________________
Title: Vice President and Treasurer
GEN-X SPORTS CANADA INC.
By:____________________________
Title: Treasurer
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GUARANTORS:
CREATIVE RETAIL SERVICES
(CANADA), INC.
CREATIVE RETAIL SERVICES, INC.
FIRST TEAM SPORTS, INC.
GEN-X SPORTS LTD.
GEN-X SPORTS OUTLET INC.
HCAC, INC.
HESPLER HOCKEY HOLDING, INC.
HUFCO-DELAWARE COMPANY
HUFFY SERVICE FIRST, INC.
HUFFY SPORTS, INC.
LAMAR SNOWBOARDS INC.
LEHIGH AVENUE PROPERTY
HOLDINGS, INC.
McCALLA COMPANY
TOMMY ARMOUR GOLF COMPANY
By:__________________________
Title: Treasurer
GEN-X SPORTS SARL
By:___________________________
Title: Manager
HUFFY RISK MANAGEMENT, INC.
By:__________________________
Title: Vice President - Finance
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AGENT:
CONGRESS FINANCIAL CORPORATION
(CENTRAL), as Agent
By:______________________________
Title:_____________________________
US LENDERS:
CONGRESS FINANCIAL CORPORATION
(CENTRAL)
By:______________________________
Title:___________________________
GMAC COMMERCIAL FINANCE
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:___________________________