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EXHIBIT 10.4
AMENDMENT NO. 1 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT (the "Amendment") dated
as of December 22, 1998 by and among CHAMPION ENTERPRISES, INC., a Michigan
corporation (the "Borrower"), the Banks set forth therein, NBD BANK, as
Syndication Agent, COMERICA BANK, as Documentation Agent and NATIONAL CITY BANK,
XXXXXX TRUST AND SAVINGS BANK, KEYBANK NATIONAL ASSOCIATION, NATIONSBANK, N.A.
and WACHOVIA BANK, N.A., as Co-Agents, and PNC BANK, NATIONAL ASSOCIATION, in
its capacity as Administrative Agent for the Banks (the "Agent").
WITNESSETH:
WHEREAS, the Borrower, the Banks, the Syndication Agent, the
Documentation Agent, the Co-Agents and the Agent are parties to that certain
Credit Agreement dated as of May 5, 1998 (the "Credit Agreement"); and
WHEREAS, the parties hereto desire to amend the Credit Agreement
as herein 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 meaning ascribed to them in the Credit Agreement as amended by this
Amendment.
2. Amendment of Credit Agreement.
A. Section 2.9.1 [Issuance of Letters of Credit] of the Credit
Agreement is hereby amended by deleting "$20,000,000" in the last sentence
thereof and inserting in lieu thereof "$60,000,000."
B. Section 7.2.1 [Indebtedness] of the Credit Agreement is hereby
amended by deleting clause (viii) in its entirety and inserting in lieu thereof
the following:
(viii) "Indebtedness of a Loan Party or a Subsidiary of a Loan Party
under an interest rate swap, cap, collar or floor agreement or other interest
rate management device with any Bank referencing an aggregate notional amount
not to exceed (i) with respect to then-outstanding Indebtedness, the sum of
Indebtedness permitted under Section 7.2.1 which constitutes interest-bearing
indebtedness for borrowed money and interest-bearing Earn Out Obligations and
(ii) with respect to future interest-bearing indebtedness for borrowed money
anticipated to be incurred within twelve (12) months after any date of
determination and otherwise permitted pursuant to Section 7.2.1, $100,000,000,
provided, in each case, such interest rate swap, cap, collar or floor agreement,
or interest rate management device is entered into for hedging purposes only and
not for speculation, as determined in accordance with Statement of Financial
Accounting Standards No. 133 (Accounting for Derivative Instruments and Hedging
Activities); and
(ix) Indebtedness (other than as set forth above) of the Borrower and
its Subsidiaries in an amount not to exceed fifteen percent (15%) of
Consolidated Net Worth in the aggregate at any one time outstanding."
C. Section 7.2.5(2)(vi) [Liquidations, Mergers, Consolidations,
Acquisitions] of the Credit Agreement is hereby amended by (a) deleting
"$5,000,000" in the second line thereof and inserting in lieu thereof
"$15,000,000" and (b) deleting "five (5)" in the eighth (8th) line thereof and
inserting in lieu thereof "one (1)."
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D. Exhibit 7.2.5 [Acquisition Compliance Certificate] to the
Credit Agreement is hereby amended and restated in the form attached hereto as
Exhibit 7.2.5.
E. Exhibit 7.3.3 [Quarterly Compliance Certificate) to the Credit
Agreement is hereby amended by deleting Section 5(D) in its entirety and
inserting the following in lieu thereof:
(D)Indebtedness under an interest rate swap, cap, collar or floor
arrangement or other interest rate management device with any Bank (aggregate
notional amount may not exceed (i) with respect to then-outstanding
Indebtedness, the sum of interest-bearing indebtedness for borrowed money and
interest-bearing Earn Out Obligations and (ii) with respect to future
interest-bearing indebtedness for borrowed money anticipated to be incurred
within twelve (12) months after the Report Date and otherwise permitted by
Section 7.2.1, $100,000,000) $ ___________________
(E)Indebtedness (other than set forth in Sections 7.2.1 (i) through
(viii) of the Credit Agreement) (may not exceed $ ______________ which is
fifteen percent (15%) of the Consolidated Net Worth) $ ___________________
3. Conditions of Effectiveness of this Agreement.
The effectiveness of this Amendment No. 1 is expressly conditioned upon
satisfaction of each of the following conditions precedent:
(a) Representations and Warranties; No Defaults. The representations
and warranties of the Loan Parties contained in Section 5 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); the Loan Parties shall have
performed and complied with all covenants and conditions of the Credit
Agreement; and no Event of Default or Potential Default under the Credit
Agreement shall have occurred and be continuing or shall exist.
(b) Counterparts. The Agent shall have received counterparts of this
Amendment No. 1 duly executed by the Borrower and the Banks, 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. This Amendment No. 1 may be executed by
the parties hereto in any number of separate counterparts, each of which when
taken together and duly executed and delivered shall together constitute one and
the same instrument.
(c) Borrower Certificate. The Agent shall have received a certificate
signed by the Secretary or Assistant Secretary of the Borrower certifying as to
all action taken by the Borrower to authorize the execution, delivery and
performance of this Amendment No. 1.
4. Force and Effect. Except as 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 on and after the date
hereof.
5. Governing Law. This Amendment No. 1 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.
6. Effective Date. This Amendment No. 1 shall be dated as of and shall
be effective as of the date and year first above written, which date shall be
the date of the
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satisfaction of all conditions precedent to effectiveness set forth in this
Amendment No. 1.
[SIGNATURE PAGE FOLLOWS]
(SIGNATURE PAGE 1 OF 6 OF AMENDMENT NO. 1 TO CREDIT AGREEMENT)
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto
duly authorized, have executed this Agreement as of the day and year first above
written.
ATTEST: CHAMPION ENTERPRISES, INC.
By:
Name:
Title:
(Seal)
ATTEST: CHAMPION HOME BUILDERS CO.
By:
Name:
Title:
(Seal)
ATTEST: XXXXXX HOMES, INC.
By:
Name:
Title:
(Seal)
ATTEST: DUTCH HOUSING, INC.
By:
Name:
Title:
(Seal)
ATTEST: ACCENT MOBILE HOMES, INC.
By:
Name:
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Title:
(Seal)
(SIGNATURE PAGE 2 OF 6 OF AMENDMENT NO. 1 TO CREDIT AGREEMENT)
ATTEST: SOUTHERN SHOWCASE HOUSING, INC.
By:
Name:
Title:
(Seal)
ATTEST: AUBURN CHAMP, INC.
By:
Name:
Title:
(Seal)
ATTEST: XXXXXX BUSINESS TRUST
By:
Name:
Title:
(Seal)
ATTEST: CHANDELEUR HOMES, INC.
By:
Name:
Title:
(Seal)
ATTEST: HOMES OF LEGEND, INC.
By:
Name:
Title:
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(Seal)
(SIGNATURE PAGE 3 OF 6 OF AMENDMENT NO. 1 TO CREDIT AGREEMENT)
ATTEST: GRAND MANOR, INC.
By:
Name:
Title:
(Seal)
ATTEST: CREST RIDGE HOMES, INC.
By:
Name:
Title:
(Seal)
ATTEST: LAMPLIGHTER HOMES, INC.,
a Washington corporation
By:
Name:
Title:
(Seal)
ATTEST: LAMPLIGHTER HOMES, INC.,
an Oregon corporation
By:
Name:
Title:
(Seal)
(SIGNATURE PAGE 4 OF 6 OF AMENDMENT NO. 1 TO CREDIT AGREEMENT)
PNC BANK, NATIONAL ASSOCIATION,
Individually and as Administrative
Agent
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By:
Name:
Title:
NBD BANK, individually and as
Syndication Agent
By:
Name:
Title:
COMERICA BANK, individually and as
Documentation Agent
By:
Name:
Title:
NATIONAL CITY BANK, individually
and as Co-Agent
By:
Name:
Title:
XXXXXX TRUST AND SAVINGS BANK,
individually and as Co-Agent
By:
Name:
Title:
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(SIGNATURE PAGE 5 OF 6 OF AMENDMENT NO. 1 TO CREDIT AGREEMENT)
KEYBANK NATIONAL ASSOCIATION,
individually and as Co-Agent
By:
Name:
Title:
NATIONSBANK, N.A., individually
and as Co-Agent
By:
Name:
Title:
WACHOVIA BANK, N.A., individually
and as Co-Agent
By:
Name:
Title:
STANDARD FEDERAL BANK
By:
Name:
Title:
THE BANK OF TOKYO-MITSUBISHI,
LTD., CHICAGO BRANCH
By:
Name:
Title:
(SIGNATURE PAGE 6 OF 6 OF AMENDMENT NO. 1 TO CREDIT AGREEMENT)
MICHIGAN NATIONAL BANK
By:
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Name:
Title:
THE BANK OF NOVA SCOTIA
By:
Name:
Title:
BANK ONE, N.A.
By:
Name:
Title:
HIBERNIA NATIONAL BANK
By:
Name:
Title:
CREDIT SUISSE FIRST BOSTON
By:
Name:
Title:
By:
Name:
Title:
