EXHIBIT 4.o
AMENDMENT NO. 9 TO SECOND AMENDED
AND RESTATED LOAN AND SECURITY AGREEMENT
Amendment No. 9, dated January 15, 2004, 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 :
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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, Amendment No. 7 to
Second Amended and Restated Loan and Security Agreement, dated as of July 7,
2003 and Amendment No. 8 to Second Amended Loan and Security Agreement, dated
July 31, 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 make certain
amendments to the Loan Agreement and Agent and Lenders are willing to agree to
such requests, subject to the terms and conditions contained herein; and
WHEREAS, by this Amendment No. 9, 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:
(i) "Amendment No.9" shall mean this Amendment No. 9 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) Amendment to Definition.
(i) The definition of "Net Income" is hereby amended by
deleting the parenthetical following the word "period" in the first sentence of
such definition and substituting the following parenthetical therefor:
"(excluding to the extent included therein any income
related to discontinued operations, extraordinary items,
restructuring or one-time or non-recurring gains)"
(ii) The definition of "EBITDA" is hereby amended by
adding the following phrase at the end thereof:
", minus the fees of consultants retained by Borrowers and
Guarantors, to the extent that the services of such
consultants were required by Agent to be performed."
(c) Interpretation. For purposes of this Amendment No. 9,
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. Testing of Financial Covenants.
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(a) Agent and Lenders agree that they shall not test the
compliance of Huffy and its Subsidiaries with the covenant set forth in Section
9.23 of the Loan Agreement with respect to EBITDA for the immediately preceding
four (4) consecutive quarters ended December 31, 2003.
(b) Agent and Lenders agree that they shall not test the
compliance of Huffy and its Subsidiaries with the covenant set forth in Section
9.24 of the Loan Agreement with respect to the Fixed Charge Coverage Ratio for
the ten (10) month period ended December 31, 2003.
3. EBITDA. Section 9.23 of the Loan Agreement is hereby amended
by deleting such Section in its entirety and substituting the following
therefor:
"9.23 EBITDA.
(a) As of the last day of each fiscal month of Huffy
and its Subsidiaries, the EBITDA of Huffy and its Subsidiaries
for the immediately preceding twelve (12) consecutive month
period shall be not less than the amount indicated for such
month on Exhibit A hereto. For purposes of this Section 9.23,
the calculation of EBITDA shall be made without taking account
of any scheduled payments by Borrowers made in respect of the
settlement of certain claims against Washington Inventory
Service, formerly an Affiliate of Huffy (the "WIS Payments").
(b) Exhibit A to the Loan Agreement is hereby deleted
in its entirety and the "Exhibit A to Second Amended and
Restated Loan and Security Agreement" appended hereto is
hereby substituted therefor."
4. Fixed Charge Coverage Ratio. Section 9.24 of the Loan
Agreement is hereby amended by deleting such Section in its entirety and
substituting the following therefor:
"9.24 Fixed Charge Coverage Ratio. As of the last day of each
month set forth on Schedule 9.24 hereto, the Fixed Charge
Coverage Ratio of Huffy and its Subsidiaries for the
immediately preceding twelve (12) consecutive month period
shall be not less than the ratio set forth on such Schedule
with respect to each month set forth therein.
5. Excess Availability. The Loan Agreement is hereby amended by
adding the following additional Section 9.25 thereto:
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"9.25 Excess Availability (a) At all times during each of
the periods indicated below, the aggregate Excess
Availability of Borrowers shall be not less than the US
Dollar Equivalent of the amount indicated below with respect
to each such period:
Period Minimum Excess Availability
- ------------------------------------------- ---------------------------
From January 13, 2004 through and US$5,250,000
including January 31, 2004
From February 1, 2004 through and including US$5,500,000
February 29, 2004
From March 1, 2004 through and including US$5,750,000
March 31, 2004
On April 1, 2004 US$10,000,000
From April 2, 2004 and at all times US$9,500,000
thereafter
(b) In the event that at any time after April 1, 2004
Borrowers shall not be in compliance with the foregoing
minimum Excess Availability requirement then, without
limitation upon any rights or remedies available to Agent
and Lenders under this Agreement, the other Financing
Agreements or otherwise at law or equity, Borrowers and
Guarantors shall pay to Agent, or Agent shall charge any
loan account(s) of Borrowers or Guarantors, a fee for the
account of the Lenders in the amount equal to the US Dollar
Equivalent of one and one-half (1 -1/2%) percent of the
Maximum Credit."
6. Revolving Loan Limit. The Loan Agreement is hereby amended by
adding the following additional Section 9.26 thereto:
"Section 9.26 Revolving Loan Limit. At no time shall the
aggregate of the principal amount of the Revolving Loans and
Letter of Credit Accommodations outstanding to Borrowers
exceed the US Dollar Equivalent of the amounts set forth on
Schedule 9.26 with respect to each of the periods specified
therein."
7. Amendments and Waivers. Section 11.3(b)(viii)(B) of the Loan
Agreement is hereby amended by adding the phrase "Section 9.25 or Section 9.26"
after the reference therein to "Section 9.24".
8. Repayment of Term Loan. In the event that on April 1, 2004 the
Borrowers shall have aggregate Excess Availability in an amount equal to the US
Dollar Equivalent of $10,000,000 or more, the Agent shall charge the loan
account(s) of Borrowers and Guarantors
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the amount equal to the US Dollar Equivalent of $500,000, which amount shall be
applied to the reduction of the Obligations in respect of the Term Loan in such
manner and order as the Term Loan Lender shall determine. This Section 8 may not
be amended or modified, nor may any obligation of Borrowers or Guarantors under
this Section 8 be waived, without the prior written consent of all Lenders.
9. 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. 9; and
(b) This Amendment No. 9 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.
10. 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. 9 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; and Agent shall have received an original of this
Amendment No 10, duly authorized, executed and delivered by each of the parties
hereto.
11. 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 fee in the amount of
the US Dollar Equivalent US$400,000, the US Dollar Equivalent US$150,000 of
which shall be for the account of Revolving Loan Lenders and the US Dollar
Equivalent US$250,000 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.
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 shall
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not be entitled to any other or further amendment or consent by virtue of the
provisions of this Amendment No. 9 or with respect to the subject matter of this
Amendment No. 9. To the extent of conflict between the terms of this Amendment
No. 9 and the other Financing Agreements, the terms of this Amendment No. 9
shall control. The Loan Agreement and this Amendment No. 9 shall be read and
construed as one agreement.
13. 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. 9.
14. Governing Law. The validity, interpretation and enforcement
of this Amendment No. 9 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.
15. Binding Effect. This Amendment No. 9 shall be binding upon
and inure to the benefit of each of the parties hereto and their respective
successors and assigns.
16. Headings. The headings listed herein are for convenience only
and do not constitute matters to be construed in interpreting this Amendment No.
9.
17. Counterparts. This Amendment No. 9 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. 9, 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. 9 by telefacsimile shall have the
same force and effect as delivery of an original executed counterpart of this
Amendment No. 9. Any party delivering an executed counterpart of this Amendment
No. 9 by telefacsimile also shall deliver an original executed counterpart of
this Amendment No. 9, but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability, and binding effect of
this Amendment No. 9 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.
Very truly yours,
HUFFY CORPORATION
By:____________________________
Title: Treasurer
AMERICAN SPORTS DESIGN
COMPANY
GEN-X SPORTS INC.
By:____________________________
Title: Treasurer
GEN-X SPORTS CANADA INC.
By:____________________________
Title: Treasurer
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
GUARANTORS:
CREATIVE RETAIL SERVICES
(CANADA), 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 SOLUTIONS, 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: Treasurer
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
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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:_____________________________
LASALLE BUSINESS CREDIT, LLC
By:________________________________
Title:_____________________________
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
CANADIAN LENDERS:
CONGRESS FINANCIAL CORPORATION
(CANADA)
By:________________________________
Title:_____________________________
ABN AMRO BANK N.V., CANADA BRANCH
By:________________________________
Title:_____________________________
GMAC COMMERCIAL FINANCE
CORPORATION - CANADA
By:________________________________
Title:_____________________________
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
TERM LOAN LENDER:
ABLECO FINANCE LLC, on its behalf and
on behalf of its Affiliate assigns
By:______________________________
Title:_____________________________