Exhibit 4.7
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") dated as of
August 7, 2002, among CHAMPION ENTERPRISES, INC., a Michigan corporation (the
"Company"), and each of its Subsidiaries listed in this Supplemental Indenture
as a Subordinated Subsidiary Guarantor (the "Subordinated Subsidiary
Guarantors"), and XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION (successor to
BANK ONE TRUST COMPANY, NA, formerly known as THE FIRST NATIONAL BANK OF
CHICAGO, the "Predecessor Trustee"), a national banking association, as trustee
under the indenture referred to below (the "Trustee").
RECITALS:
A. The Company and the Subsidiary Guarantors, identified therein,
have heretofore executed and delivered to the Predecessor Trustee an Indenture,
dated as of May 3, 1999, as supplemented July 30, 1999, October 4, 1999,
February 10, 2000, September 5, 2000, and March 15, 2002 (as may be amended,
supplemented or modified and in effect from time to time, the "Indenture")
providing for the issuance of an aggregate principal amount of up to
$200,000,000 of 7 5/8% Senior Notes Due 2009 (the "Securities");
B. Pursuant to Section 10.06 of the Indenture, the Subsidiary
Guarantors have been released from all of their obligations under Article X of
the Indenture;
C. The Company has determined for its benefit and for the benefit
of the Securityholders to cause the Subordinated Subsidiary Guarantors to
execute and deliver to the Trustee a supplemental indenture pursuant to which
each Subordinated Subsidiary Guarantor shall unconditionally guarantee all of
the Company's obligations under the Securities, on the terms and conditions set
forth herein; and
D. Pursuant to Section 9.01 of the Indenture, the Trustee and the
Company are authorized to execute and deliver this Supplemental Indenture for
the purpose of adding Guarantees with respect to the Securities without notice
to or consent of any Securityholders.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Subordinated Subsidiary Guarantors, the Company and the Trustee mutually
covenant and agree for the equal and ratable benefit of the holders of the
Securities as follows:
1. Definitions.
(a) Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
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Exhibit 4.7
(b) For all purposes of this Supplemental Indenture,
except as otherwise herein expressly provided or unless the context otherwise
requires: (i) the terms and expressions used herein shall have the same meanings
as corresponding terms and expressions used in the Indenture; and (ii) the words
"herein," "hereof" and "hereby" and other words of similar import used in this
Supplemental Indenture refer to this Supplemental Indenture as a whole and not
to any particular section hereof.
2. Amendments to the Indenture.
(a) The following definitions shall be added to Article I
of the Indenture:
"2002 Indenture" means the Indenture, dated as of April 22,
2002, among Champion Home Builders Co., the Company and the other Guarantors
named therein, and Bank One Trust Company N.A., as trustee.
"Designated Senior Debt" means (a) the Indebtedness, premiums,
penalties, fees, and interest (including post-petition interest) payable with
respect to such Indebtedness of any Subordinated Subsidiary Guarantor
outstanding under the 2002 Indenture, and (b) any Senior Debt of any
Subordinated Subsidiary Guarantor which, at the date of determination, has an
aggregate principal amount outstanding of, or under which, at the date of
determination, the holders thereof are committed to lend up to, at least $50
million and is specifically designated by the Subordinated Subsidiary Guarantor
in the instrument evidencing or governing such Senior Debt as "Designated Senior
Debt" for purposes of this Indenture.
"Senior Debt" means:
(a) All Indebtedness and premiums, penalties, fees, and
interest (including post-petition interest) payable with respect to
such Indebtedness of any Subordinated Subsidiary Guarantor outstanding
under the 0000 Xxxxxxxxx;
(b) any other obligations with respect to Indebtedness of
any Subordinated Subsidiary Guarantor, unless the instrument under
which such Indebtedness is incurred expressly provides that it is on a
parity with or subordinated in right of payment to the Subordinated
Guaranty; and
(c) all Hedging Obligations with respect to the preceding
clauses (a) and (b).
Notwithstanding anything to the contrary, in the preceding,
Senior Debt will not include:
(a) any liability for federal, state, local or
other taxes owed or owing by the Subordinated Subsidiary Guarantors;
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Exhibit 4.7
(b) any Indebtedness of the Subordinated
Subsidiary Guarantors to any of their Subsidiaries or other Affiliates;
(c) any trade payables; or
(d) any obligation with respect to any Capital
Stock.
"Subordinated Guaranty" means a Guarantee, on the terms set
forth in Article XII, by a Subordinated Subsidiary Guarantor of the Company's
obligations with respect to the Securities.
"Subordinated Subsidiary Guarantor" means, unless released
from their Subordinated Guaranties as permitted by Section 12.06, A-1 Champion
GP, Inc.; A-1 Homes Group, L.P.; Alpine Homes, Inc.; American Transport, Inc.;
Art Xxxxxxx Insurance, Inc.; Auburn Champ, Inc.; Builders Credit Corporation;
CAC Funding Corporation; Care Free Homes, Inc.; Central Mississippi Manufactured
Housing, Inc.; Champion Financial Corporation; Champion GP, Inc.; Champion Home
Builders Co.; Champion Retail, Inc.; Champion Home Communities, Inc.; Champion
Motor Coach, Inc.; Chandeleur Homes, Inc.; CHI, Inc.; Cliff Ave. Investments,
Inc.; Crest Ridge Homes, Inc.; Crestpointe Financial Services, Inc.; Dutch
Housing, Inc.; Factory Homes Outlet, Inc.; Xxxxxxx County Industries, Inc.;
Gateway Acceptance Corp.; Gateway Mobile & Modular Homes, Inc.; Gateway
Properties Corp.; Gem Homes, Inc.; Genesis Home Centers, Limited Partnership;
Grand Manor, Inc.; Heartland Homes, L.P.; HomePride Finance Corp.; Homes America
Finance, Inc.; Homes America of Arizona, Inc.; Homes America of California,
Inc.; Homes America of Oklahoma, Inc.; Homes America of Utah, Inc.; Homes
America of Wyoming, Inc.; Homes of Kentuckiana, L.L.C.; Homes of Legend, Inc.;
Homes of Merit, Inc.; X.X.X., Inc.; Xxxxxx Corp.; Lamplighter Homes, Inc.;
Lamplighter Homes (Oregon), Inc.; Manufactured Housing of Louisiana, Inc.;
Moduline International, Inc.; Northstar Corporation; Philadelphia Housing
Center, Inc.; Prairie Ridge, Inc.; Xxxxxx Business Trust; Xxxxxx Homes
Management Company, Inc.; Xxxxxx Homes, Inc.; Xxxxxx Industries, Inc.; Xxxxxx
Investment, Inc.; Xxxxxx Management Services Business Trust; Xxxxxx Retail,
Inc.; Regency Supply Company, Inc.; San Xxxx Advantage Homes, Inc.; Service
Contract Corporation; Southern Showcase Finance, Inc.; Southern Showcase
Housing, Inc.; Star Fleet, Inc.; The Okahumpka Corporation; Trading Post Mobile
Homes, Inc.; U.S.A. Mobile Homes, Inc.; Victory Investment Company; Western
Homes Corporation; and Xxxxxxxxx Management, Inc. and any other person that
becomes a Subordinated Subsidiary Guarantor pursuant to Section 12.07.
(b) The following Articles XII and XIII shall be added to
the Indenture:
ARTICLE XII
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Exhibit 4.7
Subordinated Guaranties
SECTION 12.01. Subordinated Guaranties. Each Subordinated
Subsidiary Guarantor hereby unconditionally and irrevocably guarantees, jointly
and severally, to each Holder and to the Trustee and its successors and assigns
(a) the full and punctual payment of principal of, premium, if any, and interest
on the Securities when due, whether at maturity, by acceleration, by redemption
or otherwise, and all other monetary obligations of the Company under this
Indenture and the Securities and (b) the full and punctual performance within
applicable grace periods of all other obligations of the Company under this
Indenture and the Securities (all the foregoing being hereinafter collectively
called the "Guaranteed Obligations"). Each Subordinated Subsidiary Guarantor
further agrees that the Guaranteed Obligations may be extended or renewed, in
whole or in part, without notice or further assent from such Subordinated
Subsidiary Guarantor and that such Subordinated Subsidiary Guarantor will remain
bound under this Article XII notwithstanding any extension or renewal of any
Guaranteed Obligation.
Each Subordinated Subsidiary Guarantor waives presentation to,
demand of, payment from and protest to the Company of any of the Guaranteed
Obligations and also waives notice of protest for nonpayment. Each Subordinated
Subsidiary Guarantor waives notice of any default under the Securities or the
Guaranteed Obligations. The obligations of each Subordinated Subsidiary
Guarantor hereunder shall not be affected by (a) the failure of any Holder or
the Trustee to assert any claim or demand or to enforce any right or remedy
against the Company or any other Person under this Indenture, the Securities or
any other agreement or otherwise; (b) any extension or renewal of any thereof;
(c) any rescission, waiver, amendment or modification of any of the terms or
provisions of this Indenture, the Securities or any other agreement; (d) the
release of any security held by any Holder or the Trustee for the Guaranteed
Obligations or any of them; (e) the failure of any Holder or the Trustee to
exercise any right or remedy against any other guarantor of the Guaranteed
Obligations; or (f) any change in the ownership of such Subordinated Subsidiary
Guarantor.
Each Subordinated Subsidiary Guarantor further agrees that its
Subordinated Guaranty herein constitutes a guarantee of payment, performance and
compliance when due (and not a guarantee of collection) and waives any right to
require that any resort be had by any Holder or the Trustee to any security held
for payment of the Guaranteed Obligations.
Each Subordinated Guaranty is, to the extent and in the manner
set forth in Article XIII of this Indenture, subordinated and subject in right
of payment to the prior payment in full of the principal of and premium, if any,
and interest on all Senior Debt of the Subordinated Subsidiary Guarantor giving
such Subordinated Guaranty and each Subordinated Guaranty is made subject to
such provisions of this Indenture.
Except as expressly set forth in Sections 8.01(b), 12.02,
12.06 and Article XIII, the obligations of each Subordinated Subsidiary
Guarantor hereunder shall not be subject to any
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Exhibit 4.7
reduction, limitation, impairment or termination for any reason, including any
claim of waiver, release, surrender, alteration or compromise, and shall not be
subject to any defense of setoff, counterclaim, recoupment or termination
whatsoever or by reason of the invalidity, illegality or unenforceability of the
Guaranteed Obligations or otherwise. Without limiting the generality of the
foregoing, the obligations of each Subordinated Subsidiary Guarantor herein
shall not be discharged or impaired or otherwise affected by the failure of any
Holder or the Trustee to assert any claim or demand or to enforce any remedy
under this Indenture, the Securities or any other agreement, by any waiver or
modification of any thereof, by any default, failure or delay, willful or
otherwise, in the performance of the Guaranteed Obligations, or by any other act
or thing or omission or delay to do any other act or thing which may or might in
any manner or to any extent vary the risk of such Subordinated Subsidiary
Guarantor or would otherwise operate as a discharge of such Subordinated
Subsidiary Guarantor as a matter of law or equity.
Each Subordinated Subsidiary Guarantor further agrees that its
Subordinated Guaranty herein shall continue to be effective or be reinstated, as
the case may be, if at any time payment, or any part thereof, of principal of,
premium, if any, or interest on any Guaranteed Obligation is rescinded or must
otherwise be restored by any Holder or the Trustee upon the bankruptcy or
reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any
other right which any Holder or the Trustee has at law or in equity against any
Subordinated Subsidiary Guarantor by virtue hereof, upon the failure of the
Company to pay the principal of, premium, if any, or interest on any Guaranteed
Obligation when and as the same shall become due, whether at maturity, by
acceleration, by redemption or otherwise, or to perform or comply with any other
Guaranteed Obligation, each Subordinated Subsidiary Guarantor hereby promises to
and will, upon receipt of written demand by the Trustee, forthwith pay, or cause
to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of
(i) the unpaid amount of such Guaranteed Obligations, (ii) accrued and unpaid
interest on such Guaranteed Obligations (but only to the extent not prohibited
by law) and (iii) all other monetary Guaranteed Obligations of the Company to
the Holders and the Trustee.
Each Subordinated Subsidiary Guarantor agrees that it shall
not be entitled to any right of subrogation in respect of any Guaranteed
Obligations guaranteed hereby until payment in full of all Guaranteed
Obligations and all obligations to which the Guaranteed Obligations are
subordinated as provided in Article XIII. Each Subordinated Subsidiary Guarantor
further agrees that, as between it, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations
hereby may be accelerated as provided in Article VI for the purposes of such
Subordinated Subsidiary Guarantor's Subordinated Guaranty herein,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y)
in the event of any declaration of acceleration of such obligations as provided
in Article VI, such obligations (whether or not due and payable) shall forthwith
become due and payable by such Subordinated Subsidiary Guarantor for the
purposes
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Exhibit 4.7
of this Section.
Each Subordinated Subsidiary Guarantor also agrees to pay any
and all costs and expenses (including reasonable attorneys' fees) incurred by
the Trustee or any Holder in enforcing any rights under this Section.
SECTION 12.02. Limitation on Liability. Any term or provision
of this Indenture to the contrary notwithstanding, the maximum aggregate amount
of the obligations guaranteed hereunder by any Subordinated Subsidiary Guarantor
shall not exceed the maximum amount that can be hereby guaranteed without
rendering this Indenture, as it relates to such Subordinated Subsidiary
Guarantor, voidable under applicable law relating to fraudulent conveyance or
fraudulent transfer or similar laws affecting the rights of creditors generally.
SECTION 12.03. Successors and Assigns. Subject to Section
12.06, this Article XII shall be binding upon each Subordinated Subsidiary
Guarantor and its successors and assigns and shall enure to the benefit of the
successors and assigns of the Trustee and the Holders and, in the event of any
transfer or assignment of rights by any Holder or the Trustee, the rights and
privileges conferred upon that party in this Indenture and in the Securities
shall automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions of this Indenture.
SECTION 12.04. No Waiver. Neither a failure nor a delay on the
part of either the Trustee or the Holders in exercising any right, power or
privilege under this Article XII shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise of any
right, power or privilege. The rights, remedies and benefits of the Trustee and
the Holders herein expressly specified are cumulative and not exclusive of any
other rights, remedies or benefits which either may have under this Article XII
at law, in equity, by statute or otherwise.
SECTION 12.05. Modification. No modification, amendment or
waiver of any provision of this Article XII, nor the consent to any departure by
any Subordinated Subsidiary Guarantor therefrom, shall in any event be effective
unless the same shall be in writing and signed by the Trustee, and then such
waiver or consent shall be effective only in the specific instance and for the
purpose for which given. No notice to or demand on any Subordinated Subsidiary
Guarantor in any case shall entitle such Subordinated Subsidiary Guarantor to
any other or further notice or demand in the same, similar or other
circumstances.
SECTION 12.06. Release of Subordinated Subsidiary Guarantor.
Upon the sale or disposition (including by way of consolidation or merger) of a
Subordinated Subsidiary Guarantor or the sale or disposition of all or
substantially all the assets of a Subordinated Subsidiary Guarantor (in each
case other than to the Company or an Affiliate of the Company), or if a
Subordinated Subsidiary Guarantor ceases to be a guarantor under the 2002
Indenture, such Subordinated Subsidiary Guarantor shall be deemed released from
all obligations under this Article XII without any further action required on
the part of the Trustee or any Holder. At the request of the Company,
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Exhibit 4.7
the Trustee shall execute and deliver an appropriate instrument evidencing such
release.
SECTION 12.07. Execution of Supplemental Indenture for Future
Subordinated Subsidiary Guarantors. Each Subsidiary that provides a Guarantee in
connection with the 2002 Indenture shall, and the Company shall cause each such
Subsidiary to, execute and deliver to the Trustee a supplemental indenture
pursuant to which such Subsidiary will become a Subordinated Subsidiary
Guarantor under this Article XII.
ARTICLE XIII
Subordination of Subordinated Guaranties
SECTION 13.01. Agreement To Subordinate. Notwithstanding any
other provision to the contrary in this Indenture, each Subordinated Subsidiary
Guarantor covenants and agrees, and each Holder covenants and agrees, that all
payments by such Subordinated Subsidiary Guarantor in respect of its
Subordinated Guarantee are subordinated in right of payment, to the extent and
in the manner provided in this Article XIII, to the prior payment in full of all
Senior Debt of such Subordinated Subsidiary Guarantor, whether outstanding on
the date hereof or hereafter created, incurred, assumed or guaranteed. The
subordination provisions set forth in this Article XIII are for the benefit of,
and shall be enforceable directly by, the holders of Senior Debt.
Each Holder authorizes and directs the Trustee on such
Holder's behalf to take such action as may be necessary or appropriate, in the
sole discretion of the Trustee, to acknowledge or effectuate the subordination
between the Holders and the holders of Senior Debt of each Subordinated
Subsidiary Guarantor as provided in this Article XIII and appoints the Trustee
as such Holder's attorney-in-fact for any and all such proposes, including, in
the event of any voluntary or involuntary liquidation or dissolution of a
Subordinated Subsidiary Guarantor, whether total or partial, or in a bankruptcy,
reorganization, insolvency, receivership, dissolution, assignment for the
benefit of creditors, marshalling of assets or similar proceeding relating to a
Subordinated Subsidiary Guarantor or its property, the timely filing of a claim
for the unpaid balance of such Holder's Securities in the form required in said
proceeding and cause said claim to be approved.
Each Holder acknowledges and agrees that the subordination
provisions set forth in this Article XIII are, and are intended to be, an
inducement and consideration to each holder of Senior Debt of each Subordinated
Subsidiary Guarantor, whether such Senior Debt was created before or after the
issuance of the Securities, to acquire and continue to hold, or to continue to
hold, such Senior Debt, and such holder of Senior Debt shall be deemed
conclusively to have relied upon such subordination provisions in acquiring and
continuing to hold, or in continuing to hold, such Senior Debt, and such holder
is made an obligee hereunder and may enforce directly
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Exhibit 4.7
such subordination provisions.
SECTION 13.02. Liquidation; Dissolution; Bankruptcy. Upon any
payment or distribution of the assets of any Subordinated Subsidiary Guarantor
of any kind or character, whether in cash, property or securities, to creditors
upon a total or partial liquidation or dissolution or reorganization or similar
proceeding relating to such Subordinated Subsidiary Guarantor or its property or
in a bankruptcy, reorganization, insolvency, receivership or similar proceeding:
(a) the holders of Senior Debt of such Subordinated
Subsidiary Guarantor shall be entitled to receive payment in full in cash of
such Senior Debt before Holders are entitled to receive any payment; and
(b) until the Senior Debt of such Subordinated Subsidiary
Guarantor is paid in full, any payment or distribution to which Holders would be
entitled but for this Article XIII shall be made to holders of Senior Debt of
such Subordinated Subsidiary Guarantor, as their interests may appear.
Upon any payment or distribution referred to in this Article
XIII, the Trustee and the Holders shall be entitled to rely upon any order or
decree of a court of competent jurisdiction in which such proceedings are
pending for the purpose of ascertaining the identity of Persons entitled to
participate in such payment or distribution, the holders of Senior Debt, the
amount thereof or payable thereon and all other facts pertinent thereto or to
this Article XIII, and the Trustee and the Holders shall be entitled to rely
upon a certificate of the liquidating trustee or agent or other Person
(including any representative of holders of Senior Debt of such Subordinated
Subsidiary Guarantor) making any payment or distribution to the Trustee or to
the Holders for the purpose of ascertaining the identity of Persons entitled to
participate in such payment or distribution, the holders of Senior Debt, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article XIII. In the
event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person, as a holder of Senior Debt, to
participate in any payment or distribution pursuant to this Article, the Trustee
may request such Person (at the expense of the Holders) to furnish evidence to
the reasonable satisfaction of the Trustee, acting in good faith, as to the
amount of such Senior Debt held by such Person, as to the extent to which such
Person is entitled to participate in such payment or distribution, and as to the
other facts pertinent to the rights of such Person under this Section, and if
such evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive
payment.
The consolidation or merger of a Subordinated Subsidiary
Guarantor with or into any Person, or the sale, assignment, transfer, lease,
conveyance or other disposition of all or substantially all of such Subordinated
Subsidiary Guarantor's assets to any Person, in compliance
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Exhibit 4.7
with the terms and conditions set forth in the Indenture, shall not be deemed to
be a liquidation, dissolution or reorganization or similar proceeding relating
to such Subordinated Subsidiary Guarantor for purposes of this Section.
SECTION 13.03. Default on Senior Debt.
(a) If any Senior Debt of a Subordinated Subsidiary
Guarantor is not paid when due, such Subordinated Subsidiary Guarantor may not
pay the Subordinated Subsidiary Guaranty unless the default shall have been
cured or waived or such Senior Debt has been paid in full in cash.
(b) If any default on any Senior Debt of a Subordinated
Subsidiary Guarantor, other than as set forth in Section 13.03(a), occurs and
such Senior Debt is accelerated in accordance with its terms, such Subordinated
Subsidiary Guarantor may not pay the Subordinated Subsidiary Guaranty unless the
default shall have been cured or waived and any such acceleration has been
rescinded or such Senior Debt has been paid in full in cash.
(c) Notwithstanding Sections 13.03(a) and (b), the
Subordinated Subsidiary Guarantors may pay the Subordinated Subsidiary
Guaranties without regard to the foregoing if the Subordinated Subsidiary
Guarantors and the Trustee receive written notice approving such payment from
the representative of the Senior Debt with respect to which either of the events
set forth in Sections 13.03(a) and (b) has occurred and is continuing. During
the continuance of any default, other than a default described in Sections
13.03(a) and (b), with respect to any Designated Senior Debt, of a Subordinated
Subsidiary Guarantor pursuant to which the maturity thereof may be accelerated
immediately without further notice (except such notice as may be required to
effect such acceleration) or the expiration of any applicable grace periods,
such Subordinated Subsidiary Guarantor may not pay the Subordinated Guaranty for
a period (a "Payment Blockage Period") commencing upon the receipt by the
Trustee (with a copy to such Subordinated Subsidiary Guarantor) of written
notice (a "Blockage Notice") of such default from the representative of the
holders of such Designated Senior Debt specifying an election to effect a
Payment Blockage Period and ending 179 days thereafter (or earlier if such
Payment Blockage Period is terminated (i) by written notice to the Trustee and
such Subordinated Subsidiary Guarantor from the Person or Persons who gave such
Blockage Notice, (ii) because the default giving rise to such Blockage Notice
has been waived in writing or (iii) because such Designated Senior Debt has been
repaid in full). Notwithstanding the provisions described in the immediately
preceding sentence, unless the holders of such Designated Senior Debt or the
representative of such holders has accelerated the maturity of such Designated
Senior Debt, such Subordinated Subsidiary Guarantor may resume payments on the
Subordinated Guaranty after the end of such Payment Blockage Period. The
Subordinated Guaranties shall not be subject to more than one Payment Blockage
Period in any consecutive 360-day period, irrespective of the number of such
nonpayment defaults with respect to Designated Senior Debt during such period.
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Exhibit 4.7
(d) In the event that the Securities are declared due and
payable before their Stated Maturity in accordance with this Indenture, then and
in such event the holders of Senior Debt of any Subordinated Subsidiary
Guarantor outstanding at the time the Securities so become due and payable shall
be entitled to receive payment in full in cash of all amounts due or to become
due on or in respect of such Senior Debt (whether or not an event of default has
occurred thereunder or the Senior Debt of such Subordinated Subsidiary Guarantor
is, or has been declared to be, due and payable prior to the date on which it
otherwise would have become due and payable) before the Holders shall be
entitled to receive any payment on the Securities.
SECTION 13.04. Payments of Subordinated Subsidiary Guaranty
Permitted if No Default. Nothing contained in this Article XIII or elsewhere in
this Indenture, or in any of the Securities, shall prevent a Subordinated
Subsidiary Guarantor or any Person acting on behalf of a Subordinated Subsidiary
Guarantor, at any time except as otherwise provided in Section 13.02 or 13.03,
from paying the Subordinated Subsidiary Guaranty.
SECTION 13.05. When Subordinated Subsidiary Guaranty Must Be
Paid Over. In the event that any payment is made on the Subordinated Subsidiary
Guaranty to the Trustee or the Holders that, because of this Article XIII,
should not have been so made or may not be paid over to the Holders, such
payment shall be held by the Trustee or the Holders who receive such payment, as
the case may be, for the benefit of, and shall forthwith be paid over or
delivered to, the holders of the Senior Debt of the Subordinated Subsidiary
Guarantors remaining unpaid or their representatives, as their interests may
appear, to the extent necessary to irrevocably and indefeasibly pay such Senior
Debt in full in cash or in accordance with its terms, after giving effect to any
concurrent payment or distribution to or for the holders of such Senior Debt.
SECTION 13.06. Subrogation. After all Senior Debt is
irrevocably and indefeasibly paid in full in cash and until the Securities are
paid in full, Holders shall be subrogated to the rights of holders of Senior
Debt of the respective Subordinated Subsidiary Guarantors to receive
distributions applicable to Senior Debt to the extent that distributions
otherwise payable to Holders have been applied to the payment of Senior Debt. A
distribution made under this Article XIII to holders of Senior Debt which
otherwise should have been made to Holders is not, as between a Subordinated
Subsidiary Guarantor and the Holders, payment by such Subordinated Subsidiary
Guarantor on Senior Debt.
SECTION 13.07. Relative Rights. This Article XIII defines the
relative rights of Holders and holders of Senior Debt of the Subordinated
Subsidiary Guarantors. Nothing in this Indenture shall:
(a) impair, as between a Subordinated Subsidiary
Guarantor and the Holders, the obligation of a Subordinated Subsidiary
Guarantor, which is absolute and unconditional, to make any payment in
accordance with the terms of its Subordinated Guaranty;
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Exhibit 4.7
(b) affect the relative rights of Holders and
creditors of a Subordinated Subsidiary Guarantor other than holders of Senior
Debt of such Subordinated Subsidiary Guarantor; or
(c) prevent the Trustee or any Holder from
exercising its available remedies upon an Event of Default, subject to the
rights of holders of Senior Debt to receive prepayment, payments and
distributions otherwise payable to Holders.
SECTION 13.08 Subordination May Not Be Impaired by the
Subordinated Subsidiary Guarantor. No right of any holder of Senior Debt to
enforce the subordination of the obligation of a Subordinated Subsidiary
Guarantor pursuant to its Subordinated Guaranty shall be impaired by (a) any act
or failure to act by such Subordinated Subsidiary Guarantor or by its failure to
comply with this Indenture, (b) any release of any collateral or any guarantor
or any Person or such Subordinated Subsidiary Guarantor's obligations under
Senior Debt, (c) any amendment, supplement, extension, renewal, restatement or
other modification of any Senior Debt, (d) any settlement or compromise of any
Senior Debt, (e) the unenforceability of any of the Senior Debt or (f) the
failure of any holder of Senior Debt to pursue claims against such Subordinated
Subsidiary Guarantor. The terms of the subordination provisions contained in
this Article XIII will not apply to payments from money or the proceeds of U.S.
Government Obligations held in trust by the Trustee for the payment of principal
of and interest on the Securities pursuant to and in accordance with the
provisions described in Article 8.
SECTION 13.09. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of Senior
Debt, the distribution may be made and the notice given to their representative
(if any).
SECTION 13.10. Rights of Trustee and Paying Agent. The Trustee
or any Paying Agent may continue to make payments in respect of the Securities
and shall not be charged with knowledge of the existence of facts that would
prohibit the making of any such payment unless, not less than three Business
Days prior to the date of any such payment, the Trustee receives written notice
reasonably satisfactory to it that payments in respect of the Securities may not
be made under this Article XIII. Only a Subordinated Subsidiary Guarantor, a
representative of the Senior Debt (satisfactorily identified to the Trustee) or
a holder of a class of Senior Debt that has no representative (satisfactorily
identified to the Trustee) may give the notice. Prior to the receipt of such
notice, the Trustee and any Paying Agent shall be entitled in all respects to
assume that no such facts exist. In any case, the Trustee shall have no
responsibility to the holders of Senior Debt for payments made to Holders by a
Subordinated Subsidiary Guarantor or any Paying Agent unless such payments are
made at the direction of the Trustee after receipt of such notice referred to
above.
Neither the Trustee nor any Paying Agent shall be deemed to owe any fiduciary
duty to the holders of Senior Debt. With respect to the holders of Senior Debt,
the Trustee undertakes to
11
Exhibit 4.7
perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article XIII, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be liable to any holders of
Senior Debt if it shall mistakenly pay over or deliver to Holders, the Company
or any other Person moneys or assets to which any holder of Senior Debt shall be
entitled by virtue of this Article XIII or otherwise.
The Trustee in its individual or any other capacity may hold
Senior Debt with the same rights it would have if it were not Trustee.
This Section is solely for the benefit of the Trustee and any
Paying Agents and shall not limit the obligations of the Holders under Section
13.05.
3. Ratification of Indenture; Supplemental Indentures Part of
Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. This Supplemental Indenture shall form a
part of the Indenture for all purposes, and every Holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby.
4. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT
THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
5. Trustee Makes No Representation. The Trustee makes no
representation as to and shall not be responsible for the validity or
sufficiency of this Supplemental Indenture or for the recitals contained herein,
all of which recitals are made solely by the Company and the Subordinated
Subsidiary Guarantors.
6. Counterparts. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
7. Effect of Headings. The Section headings herein are for
convenience only and shall not effect the construction thereof.
[remainder of page intentionally left blank]
12
Exhibit 4.7
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
CHAMPION ENTERPRISES, INC.,
By: /s/ Xxxx X. Xxxxxxx, Xx.
Name: Xxxx X. Xxxxxxx, Xx.
Title: Secretary
SUBORDINATED SUBSIDIARY
GUARANTORS:
A-1 CHAMPION GP, INC.
A-1 HOMES GROUP, L.P.
ALPINE HOMES, INC.
AMERICAN TRANSPORT, INC.
ART XXXXXXX INSURANCE, INC.
AUBURN CHAMP, INC.
BUILDERS CREDIT CORPORATION
CAC FUNDING CORPORATION
CARE FREE HOMES, INC.
CHI, INC.
CENTRAL MISSISSIPPI MANUFACTURED
HOUSING, INC.
CHAMPION FINANCIAL CORPORATION
CHAMPION GP, INC.
CHAMPION HOME BUILDERS CO.
CHAMPION RETAIL, INC.
CHAMPION HOME COMMUNITIES, INC.
CHAMPION MOTOR COACH, INC.
CHANDELEUR HOMES, INC.
CLIFF AVE. INVESTMENTS, INC.
CRESTPOINTE FINANCIAL SERVICES,
INC.
CREST RIDGE HOMES, INC.
DUTCH HOUSING, INC.
FACTORY HOMES OUTLET, INC.
XXXXXXX COUNTY INDUSTRIES, INC.
GATEWAY ACCEPTANCE CORP.
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Exhibit 4.7
GATEWAY MOBILE & MODULAR HOMES,
INC.
GATEWAY PROPERTIES CORP.
GEM HOMES, INC.
GENESIS HOME CENTERS, LIMITED
PARTNERSHIP
GRAND MANOR, INC.
HEARTLAND HOMES, L.P.
HOMEPRIDE FINANCE CORP.
HOMES AMERICA FINANCE, INC.
HOMES AMERICA OF ARIZONA, INC.
HOMES AMERICA OF CALIFORNIA, INC.
HOMES AMERICA OF OKLAHOMA, INC.
HOMES AMERICA OF UTAH, INC.
HOMES AMERICA OF WYOMING, INC.
HOMES OF KENTUCKIANA, L.L.C.
HOMES OF LEGEND, INC.
HOMES OF MERIT, INC.
X.X.X., INC.
XXXXXX CORP.
LAMPLIGHTER HOMES, INC.
LAMPLIGHTER HOMES (OREGON), INC.
MANUFACTURED HOUSING OF LOUISIANA,
INC.
MODULINE INTERNATIONAL, INC.
NORTHSTAR CORPORATION
PHILADELPHIA HOUSING CENTER, INC.
PRAIRIE RIDGE, INC.
XXXXXX BUSINESS TRUST
XXXXXX HOMES, INC.
XXXXXX HOMES MANAGEMENT
COMPANY, INC.
XXXXXX INDUSTRIES, INC.
XXXXXX INVESTMENT, INC.
XXXXXX MANAGEMENT SERVICES
BUSINESS TRUST
XXXXXX RETAIL, INC.
REGENCY SUPPLY COMPANY, INC.
SAN XXXX ADVANTAGE HOMES, INC.
SERVICE CONTRACT CORPORATION
SOUTHERN SHOWCASE FINANCE, INC.
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Exhibit 4.7
SOUTHERN SHOWCASE HOUSING, INC.
STAR FLEET, INC.
THE OKAHUMPKA CORPORATION
TRADING POST MOBILE HOMES, INC.
U.S.A. MOBILE HOMES, INC.
VICTORY INVESTMENT COMPANY
WESTERN HOMES CORPORATION
XXXXXXXXX MANAGEMENT, INC.
THE UNDERSIGNED, IN THE CAPACITIES
INDICATED, IS THE AUTHORIZED
SIGNATORY FOR THE SUBORDINATED
SUBSIDIARY GUARANTORS,
By: /s/ Xxxx X. Xxxxxxx, Xx.
Xxxx X. Xxxxxxx, Xx., as Secretary of
Champion GP, Inc., General Partner of
Genesis Home Centers, Limited
Partnership and Heartland Homes, L.P.
By: /s/ Xxxx X. Xxxxxxx, Xx.
Xxxx X. Xxxxxxx, Xx., as Secretary of A-1
Champion GP, Inc., General Partner of A-1
Homes Group, L.P.
By: /s/ Xxxx X. Xxxxxxx, Xx.
Xxxx X. Xxxxxxx, Xx., as Secretary of
each of the Remaining Subordinated
Subsidiary Guarantors
15
Exhibit 4.7
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee,
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Corporate Trust Officer
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