EXHIBIT 10.2
AMENDMENT NO. 9 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 9 TO CREDIT AGREEMENT (the "Amendment")
dated as of October 15, 2001, by and among Champion Enterprises, Inc., a
Michigan corporation, (the "Borrower"), each of the Guarantors (as defined in
the Credit Agreement which is hereinafter defined), the Banks (as defined in the
Credit Agreement), Bank One, Michigan, successor to NBD Bank, in the capacity as
Administrative Agent and Syndication Agent, Comerica Bank, in the capacity as
Documentation Agent, and National City Bank, Xxxxxx Trust and Savings Bank,
Keybank, National Association, Bank of America, N.A. and Wachovia Bank, N.A., as
Co-Agents.
W I T N E S S E T H:
WHEREAS, the parties hereto are parties to that certain Credit
Agreement dated as of May 5, 1998, as amended, (the "Credit Agreement"),
pursuant to which the Banks provide a $75,000,000 revolving credit facility to
the Borrower; and
WHEREAS, the Borrower, the Banks and the Agent desire to amend
the Credit Agreement as hereinafter provided.
NOW, THEREFORE, the parties hereto, in consideration of their
mutual covenants and agreements hereinafter set forth and intending to be
legally bound hereby, covenant and agree as follows:
1. Definitions.
Defined terms used herein unless otherwise defined herein shall have
the meanings ascribed to them in the Credit Agreement, as hereby amended.
2. Amendment of Credit Agreement.
The following definitions set forth in Section 1.1 of the
Credit Agreement are hereby amended and restated as follows:
"Consolidated Cash Flow From Operations for any
period of determination shall mean (i) the sum of net income, depreciation,
amortization, interest expense, income tax expense, and, without duplication,
Approved Non-Cash Charges and Plant Closing Charges, plus one-time charges not
in excess of $4,000,000 taken by the Borrower and its Subsidiaries during the
period from September 1 through December 31, 2001, which are related to losses
on the loan portfolio of Homepride Finance Corp., minus (ii) noncash credits to
net
income and gains on the disposition of assets to the extent included in net
income but not included in operating income, in each case of the Borrower and
its Subsidiaries for such period determined and consolidated in accordance with
GAAP.
Retail Finance Companies shall mean collectively, and
Retail Finance Company shall mean separately, a Person, other than an
individual, primarily engaged in the business of making loans to retail
purchasers of manufactured housing products subject to the underwriting
standards of purchasers of such types of loans, provided that the loans which
are held by Retail Finance Companies which are Subsidiaries of the Borrower and
which are in excess of sixty (60) days past the due date for such loans shall
not at any time exceed (i) during the period from October 15, 2001, through
December 30, 2001, $9,000,000 and (ii) during the period from and after December
31, 2001, $5,000,000."
3. Waiver.
The Banks hereby waive compliance by the Loans Parties (i) with respect
to the covenant set forth in Section 7.2.4(iv) to the extent that the loans,
advances and investments of the Loan Parties and their Subsidiaries in
Subsidiaries which are Retail Finance Companies exceeded five percent (5%) of
Consolidated Net Worth at any time prior to September 27, 2001, and (ii) to the
extent that the loans which are held by Retail Finance Companies which are
Subsidiaries of the Borrower and which are in excess of sixty (60) days past the
due date for such loans exceeded $5,000,000 at any time prior to October 15,
2001. The foregoing waivers are limited to the specific covenants and periods
set forth in the preceding sentence and do not constitute an agreement by the
Banks to waive any other covenants or to waive such covenants for any other
periods.
4. Amendment Fee.
The Borrower shall pay to the Agent, for the benefit of the approving
Banks, an amendment fee in an amount equal to twenty (20) basis points of the
aggregate Revolving Credit Commitments of the Banks which have executed and
delivered this Amendment on or before 4:00 p.m. Eastern Standard Time, on
October 15, 2001, such fee to be allocated to such approving Banks in accordance
with their respective Ratable Share.
5. Conditions of Effectiveness of Amendment.
The effectiveness of this Amendment is expressly conditioned upon
satisfaction of each of the following conditions precedent:
A. The representations and warranties of the Borrower
contained in Article V of the Credit Agreement shall be true and accurate on the
date hereof with the same effect as though such representations and warranties
had been made on and as of such date (except representations and warranties
which relate solely to an earlier date or time, which representations and
warranties shall be true and correct on and as of the specific dates or times
referred to therein), and the Borrower and the Guarantors shall have performed
and complied with all covenants and conditions under the Loan Documents and
hereof; no Event of Default or
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Potential Default under the Credit Agreement and the other Loan Documents shall
have occurred and be continuing or shall exist other than those specific Events
of Default and Potential Defaults which have been expressly waived by the Banks;
and an Authorized Officer shall have delivered to the Agent for the benefit of
each Bank a duly executed certificate dated the date hereof certifying as to the
items in this Section 5.A.
B. There shall be delivered to the Agent for the benefit of
each Bank a certificate, dated as of the date hereof and signed by the Secretary
or an Assistant Secretary of the Borrower and each Guarantor, certifying as
appropriate as to:
(a) all action taken by such party in
connection with this Amendment and the other Loan Documents;
(b) the names of the officer or officers
authorized to sign this Amendment and the other documents executed and delivered
in connection herewith and described in this Section 5 and the true signatures
of such officer or officers and, in the case of the Borrower, specifying the
Authorized Officers permitted to act on behalf of the Borrower for purposes of
the Loan Documents and the true signatures of such officers, on which the Agent
and each Bank may conclusively rely; and
(c) copies of its organizational documents,
including its certificate of incorporation and bylaws if it is a corporation,
its certificate of partnership and partnership agreement if it is a partnership,
and its certificate of organization and limited liability company operating
agreement if it is a limited liability company, in each case as in effect on the
date hereof, certified by the appropriate state official where such documents
are filed in a state office together with certificates from the appropriate
state officials as to the continued existence and good standing of the Borrower
and each Guarantor in each state where organized; provided that the Borrower and
each of the Guarantors may, in lieu of delivering copies of the foregoing
organizational documents and good standing certificates, certify that the
organizational documents and good standing certificates previously delivered by
the Borrower and the Guarantors to the Agent on May 5, 1998 or thereafter,
remain in effect and have not been amended.
C. The Borrower shall pay or cause to be paid [the amendment
fee described in Section 4 above and all other] costs and expenses accrued
through the date hereof and the costs and expenses of the Agent and the Banks
including, without limitation, reasonable fees of the Agent's counsel.
D. All consents required to effectuate the transactions
contemplated hereby shall have been obtained and copies thereof shall have been
delivered to the Agent for the benefit of the Banks.
E. On the date hereof there shall have been no Material
Adverse Change, and since January 1, 2001, no Material Adverse Change shall have
occurred with respect to the operations or financial condition of the Borrower
or any of its Significant Subsidiaries.
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F. On the date hereof no action, proceeding, investigation,
regulation or legislation shall have been instituted, threatened or proposed
before any court, governmental agency or legislative body to enjoin, restrain or
prohibit, or to obtain damages in respect of, the Credit Agreement, or any Loan
Documents or the consummation of the transactions contemplated hereby or which,
in the Agent's reasonable discretion, could result in a Material Adverse Change.
G. Each of the Guarantors, by its execution below of this
Amendment, hereby confirms its continuing obligations under the Guaranty
Agreement, and each of the Guarantors hereby confirms its continuing obligations
under the Guaranty by execution and delivery of this Amendment. Each of the
Guarantors represents and warrants that it is a party to the Guaranty Agreement,
either by execution of the Guaranty Agreement or by joinder to the Guaranty
Agreement in accordance with the provisions of Section 10.18 of the Credit
Agreement.
H. All legal details and proceedings in connection with the
transactions contemplated by this Amendment shall be in form and substance
satisfactory to the Agent, the Agent shall have received from the Borrower and
the Required Banks an executed original of this Amendment and the Agent shall
have received all such other counterpart originals or certified or other copies
of such documents and proceedings in connection with such transactions, in form
and substance satisfactory to the Agent.
6. Force and Effect. Except as otherwise expressly modified by this
Amendment, the Credit Agreement and the other Loan Documents are hereby ratified
and confirmed and shall remain in full force and effect after the date hereof.
7. Governing Law. This Amendment shall be deemed to be a contract under
the laws of the Commonwealth of Pennsylvania and for all purposes shall be
governed by and construed and enforced in accordance with the internal laws of
the Commonwealth of Pennsylvania without regard to its conflict of laws
principles.
8. Effective Date; Certification of the Borrower. This Amendment shall
be dated as of and shall be binding, effective and enforceable upon the date of
(i) satisfaction of all conditions set forth in Section 5 hereof and (ii)
receipt by the Agent of duly executed original counterparts of this Amendment
from the Borrower, the Guarantors and the Required Banks, and from and after
such date this Amendment shall be binding upon the Borrower, the Guarantors,
each Bank and the Agent, and their respective successors and assigns permitted
by the Credit Agreement.
[SIGNATURE PAGES FOLLOW]
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[SIGNATURE PAGE 1 OF 14 TO AMENDMENT NO. 9]
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto
duly authorized, have executed this Amendment as of the day and year first above
written.
[BORROWER]
CHAMPION ENTERPRISES, INC.
By:
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Name:
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Title: [Seal]
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[GUARANTORS]
EACH GUARANTOR LISTED ON
SCHEDULE 1 HERETO
By:
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Name:
--------------------------------
Title: [Seal]
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of each Guarantor listed on
Schedule 1
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[SIGNATURE PAGE 2 OF 14 TO AMENDMENT NO. 9]
[BANKS AND AGENTS]
BANK ONE, MICHIGAN, individually and
as Administrative Agent and
Syndication Agent
By:
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Name:
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Title:
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[SIGNATURE PAGE 3 OF 14 TO AMENDMENT NO. 9]
COMERICA BANK, individually and as
Documentation Agent
By:
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Name:
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Title:
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[SIGNATURE PAGE 4 OF 14 TO AMENDMENT NO. 9]
PNC BANK, NATIONAL ASSOCIATION
By:
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Name:
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Title:
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[SIGNATURE PAGE 5 OF 14 TO AMENDMENT NO. 9]
NATIONAL CITY BANK, individually and
as Co-Agent
By:
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Name:
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Title:
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[SIGNATURE PAGE 6 OF 14 TO AMENDMENT NO. 9]
XXXXXX TRUST AND SAVINGS BANK,
individually and as Co-Agent
By:
---------------------------------
Name:
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Title:
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[SIGNATURE PAGE 7 OF 14 TO AMENDMENT NO. 9]
KEYBANK NATIONAL ASSOCIATION,
individually and as Co-Agent
By:
---------------------------------
Name:
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Title:
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[SIGNATURE PAGE 8 OF 14 TO AMENDMENT NO. 9]
BANK OF AMERICA, N.A., individually
and as Co-Agent
By:
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Name:
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Title:
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[SIGNATURE PAGE 9 OF 14 TO AMENDMENT NO. 9]
WACHOVIA BANK, N.A., individually
and as Co-Agent
By:
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Name:
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Title:
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[SIGNATURE PAGE 10 OF 14 TO AMENDMENT NO. 9]
STANDARD FEDERAL BANK
By:
---------------------------------
Name:
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Title:
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MICHIGAN NATIONAL BANK
By:
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Name:
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Title:
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[SIGNATURE PAGE 11 OF 14 TO AMENDMENT NO. 9]
THE BANK OF TOKYO-MITSUBISHI,
LTD., CHICAGO BRANCH
By:
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Name:
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Title:
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[SIGNATURE PAGE 12 OF 14 TO AMENDMENT NO. 9]
THE BANK OF NOVA SCOTIA
By:
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Name:
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Title:
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[SIGNATURE PAGE 13 OF 14 TO AMENDMENT NO. 9]
HIBERNIA NATIONAL BANK
By:
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Name:
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Title:
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[SIGNATURE PAGE 14 OF 14 TO AMENDMENT NO. 9]
CREDIT SUISSE FIRST BOSTON
By:
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Name:
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Title:
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By:
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Name:
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Title:
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SCHEDULE 1
[GUARANTORS]
A-1 HOMES GROUP, INC., a Michigan corporation
ACCENT MOBILE HOMES, INC., a North Carolina corporation
ALPINE HOMES, INC., a Colorado corporation
AMERICAN TRANSPORT, INC., a Nevada corporation
ART XXXXXXX INSURANCE, INC., a Kentucky corporation
AUBURN CHAMP, INC., a Michigan corporation
BRYAN MOBILE HOMES, INC., a Texas corporation
BUILDERS CREDIT CORPORATION, a Michigan corporation
CAC FUNDING CORPORATION, a Michigan corporation
CAL-NEL, INC., a Texas corporation
CARE FREE HOMES, INC., a Michigan corporation
CHI, INC., A Kansas corporation
CENTRAL MISSISSIPPI MANUFACTURED HOUSING, INC., a Mississippi corporation
CHAMPION FINANCIAL CORPORATION, a Michigan corporation
CHAMPION GP, INC., a Michigan corporation
CHAMPION HOME BUILDERS CO., a Michigan corporation
CHAMPION HOME COMMUNITIES, INC., a Michigan corporation
CHAMPION MOTOR COACH, INC., a Michigan corporation
CHAMPION RETAIL, INC., a Michigan corporation
CHANDELEUR HOMES, INC., a Michigan corporation
CLIFF AVE. INVESTMENTS, INC., a South Dakota corporation
COLONIAL HOUSING, INC., a Texas corporation
COUNTRY ESTATE HOMES, INC., an Oklahoma corporation
COUNTRYSIDE HOMES, INC., a North Dakota corporation
CREST RIDGE HOMES, INC., a Michigan corporation
CRESTPOINTE FINANCIAL SERVICES, INC., a Delaware corporation
DUTCH HOUSING, INC., a Michigan corporation
FACTORY HOMES OUTLET, INC., an Idaho corporation
XXXXXXX COUNTY INDUSTRIES, INC., a Kentucky corporation
GATEWAY ACCEPTANCE CORP., a South Dakota corporation
GATEWAY MOBILE & MODULAR HOMES, INC., a Nebraska corporation
GATEWAY PROPERTIES CORP., a South Dakota corporation
GEM HOMES, INC., a Delaware corporation
GENESIS HOME CENTERS, LIMITED PARTNERSHIP, a Michigan limited partnership
(Champion GP, Inc. is General Partner authorized to execute documents on behalf
of limited partnership)
GRAND MANOR, INC., a Michigan corporation
HEARTLAND HOMES, L.P., a Texas limited partnership
HOMEPRIDE FINANCE CORP., a Michigan corporation
HOMES AMERICA FINANCE, INC., a Nevada corporation
HOMES AMERICA OF ARIZONA, INC., an Arizona corporation
HOMES AMERICA OF CALIFORNIA, INC., a California corporation
HOMES AMERICA OF OKLAHOMA, INC., an Oklahoma corporation
HOMES AMERICA OF PHOENIX, LLC, a Michigan limited liability company
(Homes America of Arizona, Inc. is sole member/manager authorized to execute
documents on behalf of limited liability company)
HOMES AMERICA OF UTAH, INC., a Utah corporation
HOMES AMERICA OF WYOMING, INC., a Wyoming corporation
HOMES AMERICA, INC., a Michigan corporation
HOMES OF KENTUCKIANA, L.L.C., a Kentucky limited liability company
(Trading Post Mobile Homes, Inc. is sole member authorized to execute documents
on behalf of limited liability company)
HOMES OF LEGEND, INC., a Michigan corporation
HOMES OF MERIT, INC., a Florida corporation
X.X.X., INCORPORATED, an Oklahoma corporation
IMPERIAL HOUSING, INC., a Texas corporation
INVESTMENT HOUSING, INC., a Texas corporation
XXXXXX CORP., a South Dakota corporation
JASPER MOBILE HOMES, INC., a Texas corporation
LAKE COUNTRY LIVING, INC., a Texas corporation
LAMPLIGHTER HOMES, INC., a Washington corporation
LAMPLIGHTER HOMES (OREGON), INC., an Oregon corporation
M&J SOUTHWEST DEVELOPMENT CORP., a Texas corporation
MANUFACTURED HOUSING OF LOUISIANA, INC., a Michigan corporation
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MOBILE FACTORY OUTLET, INC., a Texas corporation
MODULINE INTERNATIONAL, INC., a Washington corporation
NORTHSTAR CORPORATION, a South Dakota corporation
PHILADELPHIA HOUSING CENTER, INC., a Mississippi corporation
PRAIRIE RIDGE, INC., a Kansas corporation
PREMIER HOUSING, INC., a Texas corporation
XXXXXX BUSINESS TRUST, a Delaware business trust
XXXXXX HOMES MANAGEMENT COMPANY, INC., a Delaware corporation
XXXXXX HOMES, INC., a Delaware corporation
XXXXXX INDUSTRIES, INC., a Delaware corporation
XXXXXX INVESTMENT, INC., a Delaware corporation
XXXXXX MANAGEMENT SERVICES BUSINESS TRUST, a Delaware business trust
XXXXXX RETAIL, INC., a Delaware corporation
REGENCY SUPPLY COMPANY, INC., a Delaware corporation
SAN XXXX ADVANTAGE HOMES, INC., a California corporation
SERVICE CONTRACT CORPORATION, a Michigan corporation
SOUTHERN SHOWCASE FINANCE, INC., a Michigan corporation
SOUTHERN SHOWCASE HOUSING, INC., a North Carolina corporation
STAR FLEET, INC., an Indiana corporation
THE OKAHUMPKA CORPORATION, a Florida corporation
XXXXXX HOMES OF AUSTIN, INC., a Texas corporation
XXXXXX HOMES OF BUDA, INC., a Texas corporation
XXXXXX HOMES OF TEXAS, INC., a Texas corporation
TRADING POST MOBILE HOMES, INC., a Kentucky corporation
U.S.A. MOBILE HOMES, INCORPORATED, an Oregon corporation
VICTORY INVESTMENT CO., an Oklahoma corporation
VIDOR MOBILE HOME CENTER, INC., a Texas corporation
WESTERN HOMES CORPORATION, a Delaware corporation
XXXXXXXXX MANAGEMENT, INC., a Nevada corporation
XXXXXX'X MOBILE HOMES, INC., a Texas corporation
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