TENTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT AND CONSENT OF GUARANTORS
Exhibit
10.1
Execution
Copy
TENTH
AMENDMENT TO
THIRD
AMENDED AND RESTATED CREDIT AGREEMENT
AND
CONSENT OF GUARANTORS
This
TENTH
AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT AND CONSENT OF
GUARANTORS (this
“Amendment”)
is
dated as of November 26, 2008, and entered into by and among FLEETWOOD
ENTERPRISES, INC. (“Fleetwood”),
FLEETWOOD
HOLDINGS INC. (“Holdings”) and
its
Subsidiaries listed on the signature pages hereof (collectively, “Borrowers”),
the
banks and other financial institutions signatory hereto that are parties as
Lenders to the Credit Agreement referred to below (the “Lenders”),
and
BANK
OF AMERICA, N.A.,
as
administrative agent and collateral agent (in such capacity, the “Agent”)
for
the Lenders.
Recitals
Whereas,
Fleetwood, the Borrowers, the Lenders, and the Agent have entered into that
certain Third Amended and Restated Credit Agreement dated as of January 5,
2007,
as amended by that certain First Amendment to Third Amended and Restated Credit
Agreement and Consent of Guarantors dated as of May 25, 2007, that certain
Second Amendment to Third Amended and Restated Credit Agreement and Consent
of
Guarantors dated as of September 18, 2007, that certain Third Amendment to
Third
Amended and Restated Credit Agreement and Consent of Guarantors dated as of
January 16, 2008, that certain Fourth Amendment to Third Amended and Restated
Credit Agreement and Consent of Guarantors dated as of March 5, 2008, that
certain Fifth Amendment to Third Amended and Restated Credit Agreement and
Consent of Guarantors dated as of April 9, 2008, that certain Sixth Amendment
to
Third Amended and Restated Credit Agreement and Consent of Guarantors dated
as
of April 24, 2008, that certain Seventh Amendment to Third Amended and Restated
Credit Agreement and Consent of Guarantors dated as of August 6, 2008, that
certain Eighth Amendment to Third Amended and Restated Credit Agreement and
Consent of Guarantors dated as of October 21, 2008 and that certain Ninth
Amendment to Third Amended and Restated Credit Agreement and Consent of
Guarantors dated as of October 29, 2008 (as amended, amended and restated,
extended, supplemented or otherwise modified from time to time, the
“Credit
Agreement”).
Any
terms defined in the Credit Agreement and not defined in this Amendment are
used
herein as defined in the Credit Agreement;
Whereas,
the
Borrowers have requested the amendments to the Credit Agreement as further
set
forth herein; and
Whereas,
the
Lenders and the Agent are willing to agree to the amendments requested by the
Borrowers, on the terms and conditions set forth in this Amendment;
Now
Therefore, in
consideration of the premises and the mutual agreements set forth herein,
Fleetwood, the Borrowers, the Lenders and the Agent agree as
follows:
1
1. AMENDMENTS
TO CREDIT AGREEMENT.
Subject
to the conditions and upon the terms set forth in this Amendment and in reliance
on the representations and warranties of Fleetwood and the Borrowers set forth
in this Amendment, the Credit Agreement is hereby amended as
follows:
1.1 Amendments
to Annex A to Credit Agreement (Definitions).
The
definition of “Permitted
Liens”
in
Annex A of the Credit Agreement is amended to delete the “and” at the end of
clause “(m)” thereof, delete the period at the end of clause “(n)” thereof and
to replace the same with the following:
“;
and
(o) Liens
on
life insurance policies listed on a Schedule
7.13(u)
hereto,
securing Permitted Life Insurance Policy Debt.”
1.2 Amendments
to Annex A to Credit Agreement (Definitions).
The
definitions of “Borrowing
Base,”
“Maximum
Real Estate Loan Amount,”
“Maximum
Revolver Amount”
and
“Qualified
Cash Equivalents”
in
Annex A of the Credit Agreement are amended to read as follows:
“Borrowing
Base”
means
an amount equal to (a) the sum of (i) eighty-five percent (85%) of the Net
Amount of its Eligible Accounts, plus
(ii) the
lesser of (A) the Maximum Inventory Loan Amount and (B) the sum of (1) the
lesser of (I) fifty-five percent (55%) of its Eligible Inventory, valued at
the
lower of cost on a first-in, first-out basis or market (other than motor home
chassis) and (II) eighty-five percent (85%) of the appraised orderly liquidation
value of its Eligible Inventory (other than motor home chassis) calculated
in a
manner consistent with the methodology used in such appraisal and (2) the lesser
of (I) eighty percent (80%) of its Eligible Inventory, valued at the lower
of
cost on a first-in, first-out basis or market (consisting of motor home chassis)
and (II) ninety percent (90%) of the appraised orderly liquidation value of
its
Eligible Inventory (consisting of motor home chassis) calculated in a manner
consistent with the methodology used in such appraisal, plus
(iii)
the lesser of (A) seventy-five percent (75%) of the appraised fair market value
of its Real Estate Subfacility Assets subject to a Mortgage and (B) the Maximum
Real Estate Loan Amount, plus
(iv) one
hundred percent (100%) of the amount of Borrowing Base Cash Collateral in an
amount not to exceed the lesser of (X) $50,000,000 and (Y) the aggregate undrawn
face amount of all outstanding Letters of Credit issued hereunder minus
(b) Reserves from time to time established by the Agent in its reasonable
credit judgment. Notwithstanding anything to the contrary in the Loan Documents,
(i) the amount advanced against the Accounts and Inventory of Fleetwood Folding
Trailer shall not exceed $8,000,000 and (ii) the amount advanced against
aggregate manufactured housing Inventory shall not exceed the lesser of
(A) $10,000,000 and (B) 30% of the Borrowing Base attributable to
aggregate Eligible Inventory.
2
“Maximum
Real Estate Loan Amount”
means
$12,000,000; provided
that
such amount shall reduce
(i) on the first day of each Fiscal Quarter after the Tenth Amendment
Effective Date by an amount equal to $375,000, and (ii) from time to time
pursuant to Sections
3.4(b)
and
3.4(f);
provided
further
that
such amount shall be reduced by each Additional Secured Debenture First Priority
Amount notified to the Agent from time to time.
“Maximum
Revolver Amount”
means
$135,000,000; provided
that
such amount shall reduce
from
time to time pursuant to Sections
3.4(e).
““Qualified
Cash Equivalents”
means,
as of any date for any Person, the balance of cash and marketable securities
(other than Borrowing Base Cash Collateral) held by such Person in the United
States on such date, which cash and marketable securities are held in an account
with the Agent and are subject to a first priority, perfected Lien in favor
of
the Agent and the use of which is not otherwise restricted, by law or by
agreement.
1.3 Amendments
to Annex A to Credit Agreement (Definitions).
Annex A
of the Credit Agreement is amended to include the following additional
definitions in the appropriate alphabetical order:
“Borrowing
Base Cash Collateral”
means
the balance of cash held by such Person in the United States on such date,
which
cash is held in a segregated account with the Agent that is subject to a deposit
account control agreement in form and substance acceptable to the Agent (it
being understood that such agreement shall provide that cash may not be released
from such account without the consent of the Agent), are subject to a first
priority, perfected Lien in favor of the Agent, and the use of which is not
otherwise restricted, by law or by agreement.
“Permitted
Life Insurance Policy Debt”
means
Debt secured by Liens on life insurance policies listed on Schedule
7.13(u)
hereto
in an aggregate principal amount not to exceed the cash surrender value of
such
life insurance policies; provided
that
such Debt shall be recourse only to such life insurance policies and the cash
surrender value thereof and shall otherwise be on customary terms and conditions
reasonably acceptable to the Agent; for the avoidance of doubt, such Debt shall
be without recourse to Fleetwood or any of its Subsidiaries or
Affiliates.
“Tenth
Amendment”
means
that certain Tenth Amendment to Third Amended and Restated Credit Agreement
and
Consent of Guarantors, dated as of November 26, 2008, and entered into by and
among Fleetwood, Holdings and its Subsidiaries listed on the signature pages
thereof, the banks and other financial institutions signatory thereto that
are
parties as Lenders to this Agreement and Bank of America, N.A., as
administrative agent and collateral agent for the Lenders.
“Tenth
Amendment Effective Date”
means
the “Effective Date” as defined in the Tenth Amendment.
3
1.4 Amendments
to Section 3.4(f).
Section
3.4(f)
shall be
amended by deleting the reference to “[RESERVED]” and replacing it with the
following:
“(f) Following
the initial incurrence of any Permitted Life Insurance Policy Debt, the
Borrowers shall immediately (i) repay the Revolving Loans in an aggregate
principal amount equal to the lesser of (i) the aggregate outstanding principal
amount thereof and (ii) $2,000,000 and (ii) permanently reduce the Maximum
Real
Estate Loan Amount by an amount equal to $2,000,000.”
1.5 Amendment
to Section 5.2. Section
5.2
shall be
amended by adding the following clause (q) after the existing clause
(p):
“(q) Concurrent
with the delivery of each Weekly Borrowing Base Certificate delivered
immediately prior the commencement of each fiscal month in accordance with
Section
5.2(l), a
report listing forecasted Availability for such fiscal month and
each of the next two subsequent fiscal months thereafter in a form reasonably
satisfactory to the Agent.”
1.6 Amendment
to Section 7.13. Clause
(u) of Section
7.13
shall be
amended by deleting such clause and replacing it with the
following:
“(u) Permitted
Life Insurance Policy Debt;”
1.7
Amendment to Section 7.24. Section
7.24
shall be
amended by deleting clause (b) thereof and replacing it with the
following:
“(b) Minimum
Liquidity.
From
and after the Ninth Amendment Effective Date, there shall not have occurred
any
three
consecutive Business Day period over which Fleetwood, on a consolidated basis,
had Fleetwood Liquidity of $25,000,000 or less for each such Business
Day.”
1.8 Amendment
to Section 12.11. Section
12.11
shall be
amended by adding the following clause (d) after the existing clause
(c):
“(d) The
Lenders hereby irrevocably authorize the Agent, at its option and in its sole
discretion, to release from any account subject to the Agent’s control into such
other account of Fleetwood or its Subsidiaries as Fleetwood may direct any
(i)
cash constituting Borrowing Base Cash Collateral and (ii) any cash that has
been deposited with the Agent to be held as cash collateral for Letter of Credit
Obligations in accordance with clause “fifth” of Section 3.8 (including, without
limitation, any such cash so deposited after being paid by FMC to the Agent
pursuant to the second sentence of Section 3.1 to cash collateralize Aggregate
Revolver Outstandings constituting the undrawn face amount of outstanding
Letters of Credit) or otherwise; provided
that
immediately upon such release the Aggregate Revolver Outstandings shall not
exceed the lesser of the Borrowing Base or the Maximum Revolver Amount and
both
immediately prior to and immediately following such release no Default or Event
of Default shall exist and be continuing.”
4
1.9 Amendment
to Schedules.
Schedule
7.13(u)
attached
hereto shall be attached to the Credit Agreement as Schedule
7.13(u)
thereto.
2. REPRESENTATIONS
AND WARRANTIES OF FLEETWOOD AND THE BORROWERS. In
order
to induce the Lenders and the Agent to enter into this Amendment, each of
Fleetwood and each Borrower represents and warrants to each Lender and the
Agent
that the following statements are true, correct and complete:
2.1 Power
and Authority.
Each of
the Loan Parties has all corporate power and authority to enter into this
Amendment and, as applicable, the Consent of Guarantors attached hereto (the
“Consent”),
and
to carry out the transactions contemplated by, and to perform its obligations
under or in respect of, the Credit Agreement.
2.2 Corporate
Action.
The
execution and delivery of this Amendment and the Consent and the performance
of
the obligations of each Loan Party under or in respect of the Credit Agreement
as amended hereby have been duly authorized by all necessary corporate action
on
the part of each of the Loan Parties.
2.3 No
Conflict or Violation or Required Consent or Approval.
The
execution and delivery of this Amendment and the Consent, the performance of
the
obligations of each Loan Party under or in respect of the Credit Agreement
as
amended hereby and the transactions contemplated hereby do not and will not
conflict with or violate (a) any provision of the governing documents of any
Loan Party or any of its Subsidiaries, (b) any Requirement of Law, (c) any
order, judgment or decree of any court or other governmental agency binding
on
any Loan Party or any of its Subsidiaries, or (d) any indenture, agreement
or
instrument to which any Loan Party or any of its Subsidiaries is a party or
by
which any Loan Party or any of its Subsidiaries, or any property of any of
them,
is bound, and do not and will not require any consent or approval of any
Person.
2.4 Execution,
Delivery and Enforceability.
This
Amendment and the Consent have been duly executed and delivered by each Loan
Party which is a party thereto and are the legal, valid and binding obligations
of such Loan Party, enforceable in accordance with their terms, except as
enforceability may be affected by applicable bankruptcy, insolvency, and similar
proceedings affecting the rights of creditors generally, and general principles
of equity. The Agent’s Liens in the Collateral continue to be valid, binding and
enforceable first priority Liens (except for Permitted Liens) which secure
the
Obligations.
2.5 No
Default or Event of Default.
No event
has occurred and is continuing or will result from the execution and delivery
of
this Amendment or the Consent that would constitute a Default or an Event of
Default.
2.6 Representations
and Warranties.
Each of
the representations and warranties contained in the Loan Documents is and will
be true and correct in all material respects on and as of the date hereof and
as
of the effective date of this Amendment, except to the extent that such
representations and warranties specifically relate to an earlier date, in which
case they were true, correct and complete in all material respects as of such
earlier date.
5
3. CONDITIONS
TO EFFECTIVENESS OF THIS AMENDMENT. This
Amendment, and the consents and approvals contained herein, shall be effective
only if and when signed by, and when counterparts hereof shall have been
delivered to the Agent (by hand delivery, mail or telecopy) by, Fleetwood,
the
Borrowers and each Lender and only if and when each of the following conditions
is satisfied:
3.1 Consent
of Guarantors. Each
of
the Guarantors shall have executed and delivered to the Agent the
Consent.
3.2 No
Default or Event of Default; Accuracy of Representations and
Warranties.
No
Default or Event of Default shall exist and each of the representations and
warranties made by the Loan Parties herein and in or pursuant to the Loan
Documents shall be true and correct in all material respects as if made on
and
as of the date on which this Amendment becomes effective (except that any such
representation or warranty that is expressly stated as being made only as of
a
specified earlier date shall be true and correct as of such earlier date),
and
the Borrowers shall have delivered to the Agent a certificate confirming such
matters.
3.3 Delivery
of Documents.
The
Agent
shall have received such documents as the Agent may reasonably request in
connection with this Amendment.
4. EFFECTIVE
DATE.
This
Amendment shall become effective (the “Effective
Date”)
on the
date of the satisfaction of the conditions set forth in Section
5.
5. EFFECT
OF AMENDMENT; RATIFICATION.
This
Amendment is a Loan Document. From and after the date on which this Amendment
becomes effective, all references in the Loan Documents to the Credit Agreement
shall mean the Credit Agreement as amended hereby. Except as expressly amended
hereby or waived herein, the Credit Agreement and the other Loan Documents,
including the Liens granted thereunder, shall remain in full force and effect,
and all terms and provisions thereof are hereby ratified and confirmed.
6. Each
of
Fleetwood and the Borrowers confirms that as amended hereby, each of the Loan
Documents is in full force and effect, and that none of the Credit Parties
has
any defenses, setoffs or counterclaims to its Obligations.
7. APPLICABLE
LAW. THE
VALIDITY, INTERPRETATIONS AND ENFORCEMENT OF THIS AMENDMENT AND ANY DISPUTE
ARISING OUT OF OR IN CONNECTION WITH THIS AMENDMENT, WHETHER SOUNDING IN
CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL BE GOVERNED BY THE INTERNAL LAWS
AND
DECISIONS OF THE STATE OF CALIFORNIA; PROVIDED THAT THE AGENT AND THE LENDERS
SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
8. NO
WAIVER. The
execution, delivery and effectiveness of this Amendment does not constitute
a
waiver of any Default or Event of Default, amend or modify any provision of
any
Loan Document except as expressly set forth herein or constitute a course of
dealing or any other basis for altering the Obligations of any Loan
Party.
6
9. COMPLETE
AGREEMENT. This
Amendment sets forth the complete agreement of the parties in respect of any
amendment to any of the provisions of any Loan Document or any waiver thereof.
The execution, delivery and effectiveness of this Amendment do not constitute
a
waiver of any Default or Event of Default, amend or modify any provision of
any
Loan Document except as expressly set forth herein or constitute a course of
dealing or any other basis for altering the Obligations of any Loan
Party.
10. CAPTIONS;
COUNTERPARTS. The
catchlines and captions herein are intended solely for convenience of reference
and shall not be used to interpret or construe the provisions hereof. This
Amendment may be executed by one or more of the parties to this Amendment on
any
number of separate counterparts (including by telecopy), all of which taken
together shall constitute but one and the same instrument.
[signatures
follow; remainder of page intentionally left blank]
7
IN
WITNESS WHEREOF,
each of
the undersigned has duly executed this Amendment as of the date set forth
above.
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BORROWERS
|
FLEETWOOD
HOLDINGS INC.
FLEETWOOD
HOMES OF ARIZONA, INC.
FLEETWOOD
HOMES OF CALIFORNIA, INC.
FLEETWOOD
HOMES OF FLORIDA, INC.
FLEETWOOD
HOMES OF GEORGIA, INC.
FLEETWOOD
HOMES OF IDAHO, INC.
FLEETWOOD
HOMES OF INDIANA, INC.
FLEETWOOD
HOMES OF KENTUCKY, INC.
FLEETWOOD
HOMES OF NORTH CAROLINA,
INC.
FLEETWOOD
HOMES OF OREGON, INC.
FLEETWOOD
HOMES OF PENNSYLVANIA,
INC.
FLEETWOOD
HOMES OF TENNESSEE, INC.
FLEETWOOD
HOMES OF TEXAS, L.P.
By:
FLEETWOOD
GENERAL PARTNER
OF
TEXAS, INC.,
its General Partner
FLEETWOOD
HOMES OF VIRGINIA, INC.
FLEETWOOD
HOMES OF WASHINGTON, INC.
FLEETWOOD
MOTOR HOMES OF CALIFORNIA,
INC.
FLEETWOOD
MOTOR HOMES OF INDIANA,
INC.
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Tenth
Amendment and Consent of Guarantors
S-1
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FLEETWOOD
MOTOR HOMES OF PENNSYLVANIA,
INC.
FLEETWOOD
TRAVEL TRAILERS OF CALIFORNIA,
INC.
FLEETWOOD
TRAVEL TRAILERS OF INDIANA,
INC.
FLEETWOOD
TRAVEL TRAILERS OF KENTUCKY,
INC.
FLEETWOOD
TRAVEL TRAILERS OF MARYLAND,
INC.
FLEETWOOD
TRAVEL TRAILERS OF OHIO,
INC.
FLEETWOOD
TRAVEL TRAILERS OF OREGON,
INC.
FLEETWOOD
TRAVEL TRAILERS OF TEXAS,
INC.
GOLD
SHIELD, INC.
GOLD
SHIELD OF INDIANA, INC.
XXXXXX
LAKE LUMBER OPERATION, INC.
CONTINENTAL
LUMBER PRODUCTS, INC.
FLEETWOOD
GENERAL PARTNER OF TEXAS,
INC.
FLEETWOOD
HOMES INVESTMENT, INC.
|
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By:
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/s/
Xxxxxx X. Xxxxxxxxx
|
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Name:
|
Xxxxxx
X. Xxxxxxxxx
|
|
Title:
|
Senior
Vice President and Chief Financial
Officer
|
Tenth
Amendment and Consent of Guarantors
S-2
|
GUARANTOR
|
FLEETWOOD
ENTERPRISES, INC., as the
Guarantor
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By:
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/s/
Xxxxxx X. Xxxxxxxxx
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|
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Name:
|
Xxxxxx
X. Xxxxxxxxx
|
|
|
Title:
|
Senior
Vice President and Chief Financial
Officer
|
|
Tenth
Amendment and Consent of Guarantors
S-3
IN
WITNESS WHEREOF,
each of
the undersigned has duly executed this Amendment as of the date set forth
above.
|
BANK
OF AMERICA, N.A., as the Agent and
as
a Lender
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||
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By:
|
/s/
Xxxx Xxxxxxxxx
|
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Name:
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Xxxx
Xxxxxxxxx
|
|
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Title:
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Vice
President
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Tenth
Amendment and Consent of Guarantors
S-4
|
XXXXX
FARGO FOOTHILL, INC., fka
FOOTHILL
CAPITAL CORPORATION, as
a
Lender
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||
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By:
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/s/
Xxxxx Xxxxxxxx
|
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Name:
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Xxxxx
Xxxxxxxx
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Title:
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V.P.
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Tenth
Amendment and Consent of Guarantors
S-5
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TEXTRON
FINANCIAL CORPORATION,
as
a Lender
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||
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By:
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/s/
Xxxxxxx Xxxxxxx
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Name:
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Xxxxxxx
Xxxxxxx
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Title:
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Senior
Account Executive
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Tenth
Amendment and Consent of Guarantors
S-6
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PNC
BANK, NATIONAL ASSOCIATION, as
a
Lender
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||
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By:
|
/s/
Xxxxx X. Xxxxxxx
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Name:
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Xxxxx
X. Xxxxxxx
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Title:
|
Vice
President
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Tenth
Amendment and Consent of Guarantors
S-7
|
WACHOVIA
CAPITAL FINANCE
CORPORATION
(WESTERN), as a Lender
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By:
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/s/
Xxxxxxx Xxxxx
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Name:
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Xxxxxxx
Xxxxx
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Title:
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Associate
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Tenth
Amendment and Consent of Guarantors
S-8
CONSENT
OF GUARANTORS
Each
of
the undersigned is a Guarantor of the Obligations of the Borrowers under the
Credit Agreement and hereby (a) consents to the foregoing Amendment,
(b) acknowledges that notwithstanding the execution and delivery of the
foregoing Amendment, the obligations of each of the undersigned Guarantors
are
not impaired or affected and the Guaranties continue in full force and effect,
and (c) ratifies its Guaranty and each of the Loan Documents to which it is
a party.
IN
WITNESS WHEREOF, each of the undersigned has executed and delivered this CONSENT
OF GUARANTORS as of the 26th day of November, 2008.
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GUARANTORS
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FLEETWOOD
ENTERPRISES, INC.
FLEETWOOD
CANADA LTD.
FLEETWOOD
INTERNATIONAL INC.
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By:
|
/s/
Xxxxxx X. Xxxxxxxxx
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Name:
|
Xxxxxx
X. Xxxxxxxxx
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|
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Title:
|
Senior
Vice President and Chief
Financial
Officer
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Tenth
Amendment and Consent of Guarantors
S-9
Schedule
7.13(u)
Life
Insurance Policies
|
Insurer
|
Policy
|
Insureds
|
|||
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The
Prudential Insurance Company of America
|
Split-dollar
life insurance policy # 79782810
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Xxxx
& Xxxxx Xxxxx
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|||
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Xxxx
Xxxxxxx Life Insurance Company
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Split-dollar
life insurance policy # 08001248-7
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Xxxx
& Xxxxx Xxxxx
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|||
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Midwestern
United Life Insurance Company
|
|
Split-dollar
life insurance policy # 001047396
|
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Xxxx
& Xxxxx Xxxxx
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Schedule
7.13(u)
