EXHIBIT 4.i
AMENDMENT NO. 3 TO SECOND AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 3, dated January 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. ("Huffy Service"), 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, Huffy Service, 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 ▇▇▇▇▇ Baby
Products Company ("Hufco-Delaware"), Huffy Sports, Inc., formerly known as ▇▇▇▇▇
▇▇▇▇ Products Company ("Huffy Sports"), ▇▇▇▇▇▇▇ Company ("▇▇▇▇▇▇▇"), Creative
Retail Services, Inc. ("Creative"), Creative Retail Services (Canada)
("Canada"), Gen-X Sports Outlet Inc., formerly known as 1489055 Ontario Limited
("Outlet"), ▇▇▇▇▇ ▇▇▇▇▇▇ Golf Company ("Armour"), ▇▇▇▇▇ Snowboards Inc.
("▇▇▇▇▇"), 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, ▇▇▇▇▇▇▇, Creative, Creative
Canada, Outlet, ▇▇▇▇▇▇, ▇▇▇▇▇, 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 and Amendment No. 2 to Second Amended and Restated Loan and
Security Agreement, dated as of December 31, 2002 (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 and
supplemented, collectively, the "Financing Agreements");
WHEREAS, Borrowers and Guarantors have requested that Agent and Lenders
agree to include certain inventory owned by Gen-X Swiss in the Canadian
Borrowing Base and amend the Loan Agreement in certain other respects as
hereinafter provided and Agent and Lenders are willing to agree to the foregoing
to the extent and upon the terms and conditions set forth herein; and
WHEREAS, by this Amendment ▇▇. ▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, Borrowers and Guarantors
desire and intend to evidence such consent and 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 of the following
definitions:
(i) "Amendment No. 3" shall mean this Amendment No. 3
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) "Warehouses" shall mean, collectively, the
warehouse owned by First Team, located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ and the warehouses leased by Huffy, located at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
(b) INTERPRETATION. For purposes of this Amendment No. 3,
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. BORROWING BASE. Section 1.15(a) of the Loan Agreement is hereby deleted
in its entirety and the following substituted therefor:
"1.15 "Canadian Borrowing Base" shall mean at any time, as to
Canadian Borrower, the amount equal to:
(a) the sum of:
(i) eighty-five (85%) percent of the Net Amount of
the Eligible Accounts of Canadian Borrower; PLUS
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(ii) the lesser of (A) the Inventory Loan Limit for
Canadian Borrower or (B) during the months of May through and
including November, sixty (60%) percent of the Value of
Eligible Inventory of Canadian Borrower and during the months
of December through and including April, fifty (50%) percent
of the Value of Eligible Inventory of Canadian Borrower, PLUS
(iii) the lesser of (A) during the months of May
through and including November, sixty (60%) percent of the
Value of Eligible Inventory of Gen-X Swiss located at the
Warehouses and during the months of December through and
including April, fifty (50%) percent of the Value of Eligible
Inventory of Gen-X Swiss located at the Warehouses or (B)
$12,000,000; MINUS"
3. ELIGIBLE INVENTORY. The first sentence of Section 1.50 of the Loan
Agreement is hereby deleted in its entirety and the following substituted
therefor:
""Eligible Inventory" shall mean, as to Huffy,
Inventory of the Huffy Bicycle Company Division of Huffy
consisting of finished goods held for resale in the ordinary
course of its business and raw materials for such finished
goods, as to Gen-X, Inventory of Gen-X consisting of finished
goods held for resale in the ordinary course of its business,
and as to Canadian Borrower, Inventory of Canadian Borrower
consisting of finished goods held for resale in the ordinary
course of its business and Inventory of Gen-X Swiss consisting
of finished goods located at the Warehouses, in each case
which are acceptable to Agent based on the criteria set forth
below."
4. COLLATERAL REPORTING. Section 7.1(a)(i) of the Loan Agreement is hereby
deleted in its entirety and the following substituted therefor:
"(i) as soon as possible after the end of each week
(but in any event within two (2) Business Days after the end
thereof), on a weekly basis or more frequently as Agent may
request, a schedule of sales made, credits issued and cash
received as of the immediately preceding week as to the
Accounts and as of the last day of the immediately preceding
month as to Inventory (identifying, in each case, any
Inventory of Gen-X Swiss located at the Warehouses and
identifying the applicable warehouse location with respect to
all such Inventory);"
5. 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:
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(a) This Amendment No. 3 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 action of, or filing with, or consent of any Governmental
Authority, and no approval or consent of any other party, is or will be required
to authorize, or is or will be otherwise required in connection with, the
execution, delivery and performance of this Amendment No. 3.
(c) None of the transactions contemplated by this Amendment No. 3
violate or will violate any applicable law or regulation, or do or will give
rise to a default or breach under any agreement to which any Borrower or
Guarantor is a party or by which any property of any Borrower or Guarantor is
bound.
(d) Gen-X shall pay to Gen-X Swiss, in cash, an annual fee in the
amount of not less than $75,000 during each calendar year that the Loan
Agreement is in effect, in consideration of the Guarantee by Gen-X Swiss of the
Obligations of Gen-X under the Financing Agreements.
(e) Borrowers and Guarantors shall use their best efforts to cause to
be delivered to Agent as soon as possible, but in any event within thirty (30)
days following the date hereof, a Mortgagee Waiver, duly authorized, executed
and delivered by ▇▇▇▇▇ Fargo Bank, National Association, in form and substance
satisfactory to Agent, together with all exhibits and schedules thereto, with
respect to the warehouse located in Anoka, Minnesota owned by First Team.
(f) No Event of Default exists or has occurred as of the date of this
Amendment No. 3.
6. 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) Agent shall have received, in form and substance satisfactory to
Agent, all consents, waivers, acknowledgments and other agreements from third
persons which Agent may deem necessary or desirable in order to permit, protect
and perfect the security interests of Agent, for the benefit of Lenders, in and
liens upon the Collateral or to effectuate the provisions of this Amendment and
the other Financing Agreements, including, without limitation, acknowledgments
by lessors, mortgagees, warehousemen and processors of the security interests of
Agent, for the benefit of Lenders, in the Collateral, waivers by such persons of
any Liens or other claims by such persons to the Collateral and agreements
permitting Agent access to, and the right to remain on, the premises to exercise
its and Lenders' rights and remedies and otherwise deal with the Collateral;
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(b) 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;
(c) Agent shall have received an original of this Amendment No. 3, duly
authorized, executed and delivered by Borrowers and Guarantors; and
(d) Agent shall have received, in form and substance satisfactory to
Agent, the opinion letter of Swiss counsel to Agent with respect to the security
interests and liens of Agent in the assets of Gen-X Swiss located at the
Warehouses and such other matters as Agent may request.
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. 3
or with respect to the subject matter of this Amendment No. 3. 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. 3, the
provisions of this Amendment No. 3 shall control. The Loan Agreement and this
Amendment No. 3 shall be read and construed as one agreement.
8. FURTHER ASSURANCES. Borrowers and Guarantors shall execute and deliver
such additional documents and take such additional action as may be reasonably
requested by Agent to effectuate the provisions and purposes of this Amendment
No. 3.
9. GOVERNING LAW. The validity, interpretation and enforcement of this
Amendment No. 3 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.
10. BINDING EFFECT. This Amendment No. 3 shall be binding upon and inure to
the benefit of each of the parties hereto and their respective successors and
assigns.
11. COUNTERPARTS. This Amendment No. 3 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. 3, 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. 3 by telefacsimile shall have the same force and effect as
delivery of an original executed counterpart of this Amendment No. 3. Any party
delivering an executed counterpart of this Amendment No. 3 by telefacsimile also
shall deliver an original executed counterpart of this Amendment No. 3, but the
failure to deliver an original executed counterpart shall not affect the
validity, enforceability, and binding effect of this Amendment No. 3 as to such
party or any other party.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 3 to
be executed on the day and year first written.
BORROWERS:
HUFFY CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Title: Vice President - Finance, Chief Financial Officer and Treasurer
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AMERICAN SPORTS DESIGN
HUFFY SERVICE FIRST, INC. COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------- ------------------------------------
Title: Treasurer Title: Vice President and Treasurer
---------------------------- ---------------------------------
GEN-X SPORTS INC. GEN-X SPORTS CANADA INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------- ------------------------------------
Title: Vice President and Treasurer Title: Treasurer
---------------------------- ---------------------------------
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
GUARANTORS:
HUFCO-DELAWARE COMPANY HUFFY RISK MANAGEMENT, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------- ------------------------------------
Title: Treasurer Title: Vice President - Finance
------------------------- ---------------------------------
HUFFY SPORTS, INC. HCAC, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------- ------------------------------------
Title: Treasurer Title: Treasurer
------------------------- ---------------------------------
▇▇▇▇▇▇▇ COMPANY CREATIVE RETAIL SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------- ------------------------------------
Title: Treasurer Title: Treasurer
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▇▇▇▇▇ ▇▇▇▇▇▇ GOLF COMPANY ▇▇▇▇▇ SNOWBOARDS INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------- ------------------------------------
Title: Treasurer Title: Treasurer
------------------------- ---------------------------------
GEN-X SPORTS SARL GEN-X SPORTS LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------- ------------------------------------
Title: Chief Financial Officer Title: Treasurer
------------------------- ---------------------------------
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
FIRST TEAM SPORTS, INC. HESPELER HOCKEY HOLDING, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------- ------------------------------------
Title: Treasurer Title: Treasurer
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LEHIGH AVENUE PROPERTY CREATIVE RETAIL SERVICES
HOLDINGS, INC. (CANADA), INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------- ------------------------------------
Title: Treasurer Title: Treasurer
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GEN-X SPORTS OUTLET INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Title: Treasurer
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[SIGNATURES CONTINUE ON FOLLOWING PAGE]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
AGENT:
CONGRESS FINANCIAL CORPORATION
(CENTRAL), as Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Title: Vice President
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US LENDER:
CONGRESS FINANCIAL CORPORATION
(CENTRAL)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Title: Vice President
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CANADIAN LENDER:
CONGRESS FINANCIAL CORPORATION
(CANADA)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Title: Vice President
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