EXHIBIT 4.p
AMENDMENT NO. 10 TO SECOND AMENDED
AND RESTATED LOAN AND SECURITY AGREEMENT
Amendment No. 10, dated February 19, 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 Xxxxx Baby
Products Company ("Hufco-Delaware"), Huffy Sports, Inc., formerly known as Xxxxx
Xxxx Products Company ("Huffy Sports"), XxXxxxx Company ("XxXxxxx"), Creative
Retail Services, Inc. ("Creative"), Creative Retail Services (Canada), Inc.
("Creative Canada"), Gen-X Sports Outlet Inc., formerly known as 1489055 Ontario
Limited ("Outlet"), Xxxxx Xxxxxx Golf Company ("Armour"), Xxxxx Snowboards Inc.
("Xxxxx"), 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, XxXxxxx, Creative, Creative
Canada, Outlet, Xxxxxx, Xxxxx, 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, Amendment No. 7 to
Second Amended and Restated Loan and Security Agreement, dated as of July 7,
2003, Amendment No. 8 to Second Amended Loan and Security Agreement, dated July
31, 2003 and Amendment No. 9 to Second Amended Loan and Security Agreement,
dated January 15, 2004 (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 Xx. 00, Xxxxx, Xxxxxxx, 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. 10" shall mean this Amendment No.
10 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) "Special Charge" shall mean the one-time charges
against earnings in an aggregate amount not to exceed US$5,300,000, as
previously itemized to Lenders, taken by Huffy and its subsidiaries with respect
to the fiscal quarter ended December 31,2003.
(b) Interpretation. For purposes of this Amendment No. 10,
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. EBITDA. Section 9.23(a) of the Loan Agreement is hereby deleted in
its entirety and the following substituted therefor:
"(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
provided, however, that EBITDA shall be calculated for the periods from
December 31, 2003 through and including November 30, 2004, without
taking account of the Special Charge. For purposes of this Section
9.23, the calculation of EBITDA shall also 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")."
3. Mandatory Prepayments. Notwithstanding Section 12(b)(i) of Amendment
No. 4 or any provision of any other Financing Agreements to the contrary, any
Business Unit Sale
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with respect to HSFI or the sale of any Term Loan Priority Collateral shall, in
either case, require the prior written consent of Term Loan Lender.
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. 10; and
(b) This Amendment No. 10 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. 10 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.
6. Amendment Fee. In consideration of the amendment set forth herein
Borrowers shall (a) 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$225,000, the US Dollar Equivalent US$112,500 of
which shall be for the account of Revolving Loan Lenders, and the US Dollar
Equivalent of US$112,500 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, and (b) on February 27, 2004, 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 of US$225,000, the US Dollar Equivalent
of US$112,500 of which shall be for the account of Revolving Loan Lenders, and
US Dollar Equivalent US$112,500 of which shall be for the sole account of Term
Loan Lender, which fee shall be fully earned as of the date hereof and shall
constitute part of the Obligations.
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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.
10 or with respect to the subject matter of this Amendment No. 10. To the extent
of conflict between the terms of this Amendment No. 10 and the other Financing
Agreements, the terms of this Amendment No. 10 shall control. The Loan Agreement
and this Amendment No. 10 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. 10.
9. Governing Law. The validity, interpretation and enforcement of this
Amendment No. 10 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. 10 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. 10.
12. Counterparts. This Amendment No. 10 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. 10, 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. 10 by telefacsimile shall have the
same force and effect as delivery of an original executed counterpart of this
Amendment No. 10. Any party delivering an executed counterpart of this Amendment
No. 10 by telefacsimile also shall deliver an original executed counterpart of
this Amendment No. 10, but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability, and binding effect of
this Amendment No. 10 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.
XXXXX SNOWBOARDS INC.
LEHIGH AVENUE PROPERTY
HOLDINGS, INC.
XxXXXXX COMPANY
XXXXX XXXXXX GOLF COMPANY
By:___________________________
Title: Treasurer
GEN-X SPORTS SARL
By:___________________________
Title: Manager
HUFFY RISK MANAGEMENT, INC.
By:___________________________
Title: Treasurer
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
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:_____________________________
