EXHIBIT 10(m)
EXECUTION COPY
CREDIT AGREEMENT
Dated as of July 27, 2001
Among
THE FINANCIAL INSTITUTIONS NAMED HEREIN,
AS THE LENDERS;
BANK OF AMERICA, N.A.,
AS THE ADMINISTRATIVE AGENT;
CITICORP USA, INC.,
AS THE DOCUMENTATION AGENT;
XXXXXX FINANCIAL, INC.,
AS THE SYNDICATION AGENT;
FLEETWOOD ENTERPRISES, INC.,
AS A GUARANTOR;
and
FLEETWOOD HOLDINGS INC., and certain of its Subsidiaries,
and
FLEETWOOD RETAIL CORP., and certain of its Subsidiaries,
AS THE BORROWERS.
TABLE OF CONTENTS
PAGE
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ARTICLE 1 LOANS AND LETTERS OF CREDIT..........................................................2
1.1 Total Facility...............................................................2
1.2 Revolving Loans..............................................................2
1.3 Term Loans...................................................................6
1.4 Letters of Credit............................................................6
1.5 Bank Products...............................................................10
1.6 Joint and Several Obligations; Contribution Rights..........................11
1.7 Borrowing Agency Provisions.................................................15
1.8 Senior Debt.................................................................17
ARTICLE 2 INTEREST AND FEES...................................................................17
2.1 Interest....................................................................17
2.2 Continuation and Conversion Elections.......................................17
2.3 Maximum Interest Rate.......................................................18
2.4 Closing Fee.................................................................19
2.5 Unused Line Fee.............................................................19
2.6 Letter of Credit Fee........................................................19
ARTICLE 3 PAYMENTS AND PREPAYMENTS............................................................20
3.1 Revolving Loans.............................................................20
3.2 Termination of Facility.....................................................20
3.3 Repayment of the Term Loans.................................................20
3.4 Prepayments of the Loans....................................................21
3.5 LIBOR Rate Loan Prepayments.................................................22
3.6 Payments by the Borrowers...................................................22
3.7 Payments as Revolving Loans.................................................22
3.8 Apportionment, Application and Reversal of Payments.........................23
3.9 Indemnity for Returned Payments.............................................23
3.10 The Agent's and Lenders' Books and Records; Monthly Statements..............24
3.11 Release of FRC Borrower.....................................................24
ARTICLE 4 TAXES, YIELD PROTECTION AND ILLEGALITY..............................................25
4.1 Taxes.......................................................................25
4.2 Illegality..................................................................26
4.3 Increased Costs and Reduction of Return.....................................27
4.4 Funding Losses..............................................................27
4.5 Inability to Determine Rates................................................28
4.6 Certificates of the Agent...................................................28
4.7 Survival....................................................................28
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ARTICLE 5 BOOKS AND RECORDS; FINANCIAL INFORMATION; NOTICES...................................28
5.1 Books and Records...........................................................28
5.2 Financial Information.......................................................28
5.3 Notices to the Lenders......................................................31
ARTICLE 6 GENERAL WARRANTIES AND REPRESENTATIONS..............................................33
6.1 Authorization, Validity, and Enforceability of this Agreement and the
Loan Documents..............................................................34
6.2 Validity and Priority of Security Interest..................................34
6.3 Organization and Qualification..............................................34
6.4 Corporate Name; Prior Transactions..........................................34
6.5 Subsidiaries and Affiliates.................................................35
6.6 Financial Statements and Projections........................................35
6.7 Capitalization..............................................................35
6.8 Solvency....................................................................36
6.9 Debt........................................................................36
6.10 Distributions...............................................................36
6.11 Real Estate; Leases.........................................................36
6.12 Proprietary Rights..........................................................36
6.13 Trade Names.................................................................36
6.14 Litigation..................................................................37
6.15 Labor Disputes..............................................................37
6.16 Environmental Laws..........................................................37
6.17 No Violation of Law.........................................................38
6.18 No Default..................................................................38
6.19 ERISA Compliance............................................................38
6.20 Taxes.......................................................................39
6.21 Regulated Entities..........................................................39
6.22 Use of Proceeds; Margin Regulations.........................................39
6.23 Copyrights, Patents, Trademarks and Licenses, etc...........................39
6.24 No Material Adverse Change..................................................40
6.25 Full Disclosure.............................................................40
6.26 Material Agreements.........................................................40
6.27 Bank Accounts...............................................................40
6.28 Governmental Authorization..................................................40
6.29 Senior Debt.................................................................40
ARTICLE 7 AFFIRMATIVE AND NEGATIVE COVENANTS..................................................40
7.1 Taxes and Other Obligations.................................................41
7.2 Legal Existence and Good Standing...........................................41
7.3 Compliance with Law and Agreements; Maintenance of Licenses.................41
7.4 Maintenance of Property; Inspection of Property.............................41
7.5 Insurance...................................................................42
7.6 Insurance and Condemnation Proceeds.........................................43
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7.7 Environmental Laws..........................................................43
7.8 Compliance with ERISA.......................................................44
7.9 Mergers, Consolidations or Sales............................................45
7.10 Distributions; Capital Change; Restricted Investments.......................46
7.11 Transactions Affecting Collateral or Obligations............................47
7.12 Guaranties..................................................................47
7.13 Debt........................................................................48
7.14 Prepayment..................................................................50
7.15 Transactions with Affiliates................................................50
7.16 Investment Banking and Finder's Fees........................................50
7.17 Business Conducted..........................................................51
7.18 Liens.......................................................................51
7.19 Sale and Leaseback Transactions.............................................51
7.20 New Subsidiaries............................................................51
7.21 Fiscal Year.................................................................51
7.22 Capital Expenditures........................................................51
7.23 Fixed Charge Coverage Ratio.................................................52
7.24 EBITDA......................................................................52
7.25 Minimum Aggregate Availability..............................................52
7.26 Contribution of Management Fees.............................................53
7.27 Use of Proceeds.............................................................53
7.28 Further Assurances; Additional Mortgages....................................53
7.29 Subordinated Debt; Trust Securities.........................................54
7.30 Advisors for Sale of Term Loan Collateral...................................54
ARTICLE 8 CONDITIONS OF LENDING...............................................................55
8.1 Conditions Precedent to Making of Loans on the Initial Funding Date.........55
8.2 Conditions Precedent to Each Loan...........................................58
ARTICLE 9 DEFAULT; REMEDIES...................................................................59
9.1 Events of Default...........................................................59
9.2 Remedies....................................................................62
ARTICLE 10 TERM AND TERMINATION...............................................................63
10.1 Term and Termination........................................................63
ARTICLE 11 AMENDMENTS; WAIVERs; PARTICIPATIONS; ASSIGNMENTS; SUCCESSORS.......................64
11.1 Amendments and Waivers......................................................64
11.2 Assignments; Participations.................................................66
ARTICLE 12 THE AGENT..........................................................................68
12.1 Appointment and Authorization...............................................68
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12.2 Delegation of Duties........................................................69
12.3 Liability of the Agent......................................................69
12.4 Reliance by the Agent.......................................................69
12.5 Notice of Default...........................................................69
12.6 Credit Decision.............................................................70
12.7 Indemnification.............................................................70
12.8 The Agent in Individual Capacity............................................70
12.9 Successor Agent.............................................................71
12.10 Withholding Tax.............................................................71
12.11 Collateral Matters..........................................................72
12.12 Restrictions on Actions by Lenders; Sharing of Payments.....................74
12.13 Agency for Perfection.......................................................74
12.14 Payments by the Agent to Lenders............................................75
12.15 Settlement..................................................................75
12.16 Letters of Credit; Intra-Lender Issues......................................78
12.17 Concerning the Collateral and the Related Loan Documents....................81
12.18 Field Audit and Examination Reports; Disclaimer by Lenders..................81
12.19 Relation Among Lenders......................................................82
12.20 Co-Agents...................................................................82
12.21 Collateral Priority.........................................................82
ARTICLE 13 MISCELLANEOUS......................................................................82
13.1 No Waivers; Cumulative Remedies.............................................82
13.2 Severability................................................................83
13.3 Governing Law; Choice of Forum; Service of Process..........................83
13.4 WAIVER OF JURY TRIAL........................................................84
13.5 Survival of Representations and Warranties..................................84
13.6 Other Security and Guaranties...............................................84
13.7 Fees and Expenses...........................................................84
13.8 Notices.....................................................................85
13.9 Waiver of Notices...........................................................86
13.10 Binding Effect..............................................................86
13.11 Indemnity of the Agent and the Lenders by the Borrower......................87
13.12 Limitation of Liability.....................................................87
13.13 Final Agreement.............................................................88
13.14 Counterparts................................................................88
13.15 Captions....................................................................88
13.16 Right of Setoff.............................................................88
13.17 Confidentiality.............................................................89
13.18 Conflicts with Other Loan Documents.........................................89
13.19 Increases in Total Revolving Credit Commitment..............................90
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ANNEXES, EXHIBITS AND SCHEDULES
ANNEX A - DEFINED TERMS
EXHIBIT A-1 - FORM OF REVOLVING LOAN NOTE
EXHIBIT A-2 - FORM OF TERM LOAN NOTE
EXHIBIT B - FORM OF BORROWING BASE CERTIFICATE
EXHIBIT C - FINANCIAL STATEMENTS
EXHIBIT D - FORM OF NOTICE OF BORROWING
EXHIBIT E - FORM OF NOTICE OF CONTINUATION/CONVERSION
EXHIBIT F - FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
SCHEDULE 1.2 - LENDERS' COMMITMENTS (ANNEX A - DEFINED TERMS)
SCHEDULE 1.3 - EXCLUDED RETAIL SUBSIDIARIES
SCHEDULE 1.4 - TERM LOAN COLLATERAL
SCHEDULE 6.3 - ORGANIZATION AND QUALIFICATIONS
SCHEDULE 6.4 - CORPORATE NAMES; PRIOR TRANSACTIONS
SCHEDULE 6.5 - SUBSIDIARIES AND AFFILIATES
SCHEDULE 6.7 - CAPITALIZATION
SCHEDULE 6.9 - DEBT
SCHEDULE 6.11 - REAL ESTATE; LEASES
SCHEDULE 6.12 - PROPRIETARY RIGHTS
SCHEDULE 6.13 - TRADE NAMES
SCHEDULE 6.14 - LITIGATION
SCHEDULE 6.15 - UNION CONTRACTS; LABOR DISPUTES
SCHEDULE 6.16 - ENVIRONMENTAL LAW
SCHEDULE 6.19 - ERISA COMPLIANCE
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SCHEDULE 6.26 - MATERIAL AGREEMENTS
SCHEDULE 6.27 - BANK ACCOUNTS
SCHEDULE 7.5(a) - REAL PROPERTY EXCLUDED FROM FLOOD INSURANCE REQUIREMENT
SCHEDULE 7.9 - ASSETS HELD FOR SALE; ADI LOCATIONS
SCHEDULE 7.12 - GUARANTIES
SCHEDULE 7.28 - ADDITIONAL MORTGAGES
SCHEDULE A - COLI POLICIES
SCHEDULE B - ELIGIBLE REAL ESTATE
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CREDIT AGREEMENT
This
CREDIT AGREEMENT, dated as of July 27, 2001 (this
"AGREEMENT"), among the financial institutions from time to time parties hereto
(such financial institutions, together with their respective successors and
assigns, are referred to hereinafter each individually as a "LENDER" and
collectively as the "LENDERS"); BANK OF AMERICA, N.A., with an office at 00
Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000, as the administrative
agent for the Lenders (in its capacity as administrative agent, the "AGENT");
Citicorp USA, Inc., as the documentation agent (in its capacity as documentation
agent, the "DOCUMENTATION AGENT"); Xxxxxx Financial, Inc., as the syndication
agent (in its capacity as syndication agent, the "SYNDICATION AGENT"); FLEETWOOD
ENTERPRISES, INC., a Delaware corporation ("FLEETWOOD"), as a Guarantor;
FLEETWOOD HOLDINGS INC., a Delaware corporation ("HOLDINGS"); FLEETWOOD RETAIL
CORP., a Delaware corporation ("RETAIL"); and those Subsidiaries of Holdings and
Retail set forth on the signature pages hereto or which become parties hereto
hereafter in accordance with the requirements of this Agreement (each of
Holdings, Retail and each such Subsidiary individually, a "BORROWER" and,
collectively, the "BORROWERS"). Capitalized terms used in this Agreement and not
otherwise defined herein shall have the meanings ascribed thereto in ANNEX A,
which is attached hereto and incorporated herein; the rules of construction
contained therein shall govern the interpretation of this Agreement, and all
Annexes, Exhibits and Schedules attached hereto are incorporated herein by
reference.
W I T N E S S E T H:
WHEREAS, the Borrowers have requested the Lenders to make
available to the Borrowers a revolving line of credit for loans and letters of
credit in an aggregate amount not to exceed $230,000,000 and to make term loans
to FMC in the aggregate principal amount of $30,000,000, and which extensions of
credit the Borrowers will use for the purposes permitted hereunder;
WHEREAS, Holdings, Retail and their respective Subsidiaries
are wholly-owned Subsidiaries of Fleetwood and all Borrowers are engaged in an
inter-related business enterprise with an identity of interests, and accordingly
the financing provided hereunder will directly and indirectly benefit each of
the Borrowers;
WHEREAS, neither Holdings or its Subsidiaries nor Retail or
its Subsidiaries would be able to obtain sufficient working capital financing
for their respective businesses unless the individual FMC Borrowers and FRC
Borrowers were jointly and severally liable for the obligations of FMC or FRC,
as applicable, and unless Fleetwood guarantees the obligations of all Borrowers;
WHEREAS, FMC manufactures goods, a portion of which is sold to
FRC, and therefore the financing extended hereunder benefits both FMC and FRC;
WHEREAS, the Revolving Credit Lenders have agreed to make
available to the Borrowers a revolving credit facility and the Term Lenders have
agreed to make term loans to FMC upon the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual conditions and
agreements set forth in this Agreement, and for good and valuable consideration,
the receipt of which is hereby acknowledged, the Lenders, the Agent, Fleetwood
and the Borrowers hereby agree as follows:
ARTICLE 1
LOANS AND LETTERS OF CREDIT
1.1 TOTAL FACILITY. Subject to all of the terms and conditions
of this Agreement, the Lenders agree to make available a total credit facility
of up to $260,000,000 (the "TOTAL FACILITY") to the Borrowers from time to time
during the term of this Agreement. The Total Facility shall be composed of a
revolving line of credit consisting of Revolving Loans and Letters of Credit and
the Term Loans described herein.
1.2 REVOLVING LOANS.
(a) (i) AMOUNTS. Subject to the satisfaction of the
conditions precedent set forth in ARTICLE 8, and except for
Non-Ratable Loans and Agent Advances, each Revolving Credit
Lender severally, but not jointly, agrees, upon a Borrower's
request from time to time on any Business Day during the
period from the Closing Date to the Termination Date, to make
revolving loans (the "REVOLVING LOANS") to the Borrowers in
aggregate amounts not to exceed such Lender's Pro Rata Share
of the Aggregate Availability, and, for Revolving Loans to
FMC, in an amount which does not exceed such Lender's Pro Rata
Share of FMC's Availability, or for Revolving Loans to FRC, in
an amount which does not exceed such Lender's Pro Rata Share
of FRC's Availability. The Revolving Credit Lenders, however,
in their unanimous discretion, may elect to make Revolving
Loans or issue or arrange to have issued Letters of Credit in
excess of the Aggregate Borrowing Bases or the Borrowing Base
of FMC or FRC, as applicable, on one or more occasions, but if
they do so, neither the Agent nor the Revolving Credit Lenders
shall be deemed thereby to have changed the limits of the
Borrowing Base of FMC or FRC, or the Aggregate Borrowing Bases
or to be obligated to exceed such limits on any other
occasion. If (x) the Aggregate Revolver Outstandings of FMC
would exceed its Availability after giving effect to any
Borrowing, or (y) the Aggregate Revolver Outstandings of FRC
would exceed its Availability after giving effect to any
Borrowing, the Revolving Credit Lenders may refuse to make or
may otherwise restrict the making of Revolving Loans to FMC or
FRC, as applicable, as the Revolving Credit Lenders determine
until such excess has been eliminated, subject to the Agent's
authority, in its sole discretion, to make Agent Advances
pursuant to the terms of SECTION 1.2(i).
(ii) At the request of any Revolving Credit
Lender, each of the FMC Borrowers and each of the FRC
Borrowers shall execute and deliver to such Lender a single
note to evidence the Revolving Loans of that Lender. Each note
shall be in the principal amount of the Revolving Credit
Lender's Pro Rata Share of the Revolving Loan Commitments,
dated the date hereof and substantially in the form of EXHIBIT
A-1 (each such note, together with any new note issued
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pursuant to SECTION 11.2 upon the assignment of any portion of
any Revolving Credit Lender's Revolving Loans and Revolving
Credit Commitment a "REVOLVING LOAN NOTE" and, collectively,
the "REVOLVING LOAN NOTES"). Each Revolving Loan Note shall
represent the obligation of each of FMC and FRC to pay the
amount of such Revolving Credit Lender's Pro Rata Share of the
Revolving Loan Commitments, or, if less, such Revolving Credit
Lender's Pro Rata Share of the aggregate unpaid principal
amount of all Revolving Loans to FMC or FRC, as applicable,
together with interest thereon as prescribed in SECTION 1.2.
The entire unpaid balance of the Revolving Loans and all other
non-contingent Obligations shall be immediately due and
payable in full in immediately available funds on the
Termination Date.
(b) PROCEDURE FOR BORROWING.
(i) Each Borrowing shall be made upon a
Borrower's irrevocable written notice delivered to the Agent
in the form of a notice of borrowing ("NOTICE OF BORROWING"),
which must be received by the Agent prior to (i) 10:00 a.m.
(Los Angeles time) three Business Days prior to the requested
Funding Date, in the case of LIBOR Rate Loans and (ii) 10:00
a.m. (Los Angeles time) on the requested Funding Date, in the
case of Base Rate Loans, specifying:
(1) the amount of the Borrowing,
which in the case of a LIBOR Rate Loan must equal or
exceed $1,000,000 (and increments of $500,000 in
excess of such amount);
(2) the requested Funding Date,
which must be a Business Day;
(3) whether the Revolving Loans
requested are to be Base Rate Revolving Loans or
LIBOR Rate Loans (and if not specified, it shall be
deemed a request for a Base Rate Revolving Loan); and
(4) the duration of the Interest
Period for LIBOR Rate Loans (and if not specified, it
shall be deemed a request for an Interest Period of
one month);
PROVIDED, HOWEVER, that with respect to the Borrowings to be
made on the Initial Funding Date, such Borrowings will consist
of Base Rate Revolving Loans only.
(ii) In lieu of delivering a Notice of Borrowing,
a Borrower may give the Agent telephonic notice of such
request for advances to its Designated Account on or before
the deadline set forth above. The Agent at all times shall be
entitled to rely on such telephonic notice in making such
Revolving Loans, regardless of whether any written
confirmation is received.
(iii) The Borrowers shall have no right to
request a LIBOR Rate Loan while a Default or Event of Default
has occurred and is continuing.
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(c) RELIANCE UPON AUTHORITY. Prior to the Closing
Date, the Borrowers shall deliver to the Agent a notice setting forth
the accounts of each of FMC and FRC (each, a "DESIGNATED ACCOUNT") to
which the Agent is authorized to transfer the proceeds of the Revolving
Loans requested hereunder by each of FMC and FRC. Any of FMC and FRC
may designate a replacement account from time to time by written
notice. All such Designated Accounts must be reasonably satisfactory to
the Agent. The Agent is entitled to rely conclusively on any person's
request for Revolving Loans on behalf of any Borrower, so long as the
proceeds thereof are to be transferred to the applicable Designated
Account. The Agent has no duty to verify the identity of any individual
representing himself or herself as a person authorized by any Borrower
to make such requests on its behalf.
(d) NO LIABILITY. The Agent shall not incur any
liability to the Borrowers as a result of acting upon any notice
referred to in SECTIONS 1.2(b) and (c), which the Agent believes in
good faith to have been given by an officer or other person duly
authorized by the applicable Borrower to request Revolving Loans on its
behalf. The crediting of Revolving Loans to the applicable Designated
Account conclusively establishes the obligation of the applicable
Borrowers to repay such Revolving Loans as provided herein.
(e) NOTICE IRREVOCABLE. Any Notice of Borrowing (or
telephonic notice in lieu thereof) made pursuant to SECTION 1.2(b)
shall be irrevocable. A Borrower shall be bound to borrow the funds
requested therein in accordance therewith.
(f) THE AGENT'S ELECTION. Promptly after receipt of a
Notice of Borrowing (or telephonic notice in lieu thereof), the Agent
shall elect to have the terms of SECTION 1.2(g) or the terms of SECTION
1.2(h) apply to such requested Borrowing. If the Bank declines in its
sole discretion to make a Non-Ratable Loan pursuant to SECTION 1.2(h),
the terms of SECTION 1.2(g) shall apply to the requested Borrowing.
(g) MAKING OF REVOLVING LOANS. If the Agent elects to
have the terms of this SECTION 1.2(g) apply to a requested Borrowing,
then promptly after receipt of a Notice of Borrowing or telephonic
notice in lieu thereof, the Agent shall notify the Revolving Credit
Lenders by telecopy, telephone or e-mail of the requested Borrowing.
Each Revolving Credit Lender shall transfer its Pro Rata Share of the
requested Borrowing to the Agent in immediately available funds, to the
account from time to time designated by the Agent, not later than 12:00
noon (Los Angeles time) on the applicable Funding Date. After the
Agent's receipt of all proceeds of such Revolving Loans, the Agent
shall make the proceeds of such Revolving Loans available to the
applicable Borrower on the applicable Funding Date by transferring same
day funds to the Designated Account of the applicable Borrower;
PROVIDED, HOWEVER, that the amount of Revolving Loans so made to FMC or
FRC on any date shall not exceed its Availability on such date, unless
all of the Revolving Credit Lenders otherwise agree.
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(h) MAKING OF NON-RATABLE LOANS.
(i) If the Agent elects, with the consent of the
Bank, to have the terms of this SECTION 1.2(h) apply to a
requested Borrowing, the Bank shall make a Revolving Loan in
the amount of that Borrowing available to the applicable
Borrower on the applicable Funding Date by transferring same
day funds to such Borrower's Designated Account. Each
Revolving Loan made solely by the Bank pursuant to this
Section is herein referred to as a "NON-RATABLE LOAN", and
such Revolving Loans are collectively referred to as the
"NON-RATABLE LOANS." Each Non-Ratable Loan shall be subject to
all the terms and conditions applicable to other Revolving
Loans except that all payments thereon shall be payable to the
Bank solely for its own account. The aggregate amount of
Non-Ratable Loans outstanding at any time shall not exceed
$10,000,000. The Agent shall not request the Bank to make any
Non-Ratable Loan if (1) the Agent has received written notice
from any Revolving Credit Lender that one or more of the
applicable conditions precedent set forth in ARTICLE 8 will
not be satisfied on the requested Funding Date for the
applicable Borrowing, and such conditions have not been waived
in accordance with this Agreement or (2) the requested
Borrowing by FMC or FRC would exceed its Availability on that
Funding Date.
(ii) The Non-Ratable Loans shall be secured by
the Agent's Liens in and to the Collateral and shall
constitute Base Rate Revolving Loans and Obligations
hereunder.
(i) THE AGENT ADVANCES.
(i) Subject to the limitations set forth
below, the Agent is authorized by the Borrowers and the
Revolving Credit Lenders, from time to time in the Agent's
sole discretion, (A) after the occurrence of a Default or an
Event of Default, or (B) at any time that any of the other
conditions precedent set forth in ARTICLE 8 have not been
satisfied, to make Base Rate Revolving Loans to the Borrowers
on behalf of the Revolving Credit Lenders in an aggregate
amount outstanding at any time not to exceed $10,000,000 which
the Agent, in its reasonable business judgment, deems
necessary or desirable (1) to preserve or protect the
Collateral, or any portion thereof, (2) to enhance the
likelihood of, or maximize the amount of, repayment of the
Loans and other Obligations, or (3) to pay any other amount
chargeable to the Borrowers pursuant to the terms of this
Agreement, including costs, fees and expenses as described in
SECTION 13.7 (any of such advances are herein referred to as
"AGENT ADVANCES"); PROVIDED, that (x) in no event shall the
Aggregate Revolver Outstandings at any time exceed the
aggregate Revolving Credit Commitments and (y) the Majority
Lenders may at any time revoke the Agent's authorization to
make Agent Advances. Any such revocation must be in writing
and shall become effective prospectively upon the Agent's
receipt thereof.
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(ii) Agent Advances shall be secured by the
Agent's Liens in and to the Collateral and shall constitute
Base Rate Revolving Loans and Obligations hereunder.
1.3 TERM LOANS.
(a) AMOUNTS OF TERM LOANS. Each Term Lender severally
agrees to make a term loan (any such term loan being referred to as a
"TERM LOAN" and such term loans being referred to collectively as the
"TERM LOANS") to FMC on the Initial Funding Date, upon the satisfaction
of the conditions precedent set forth in ARTICLE 8, in an amount equal
to such Lender's Pro Rata Share of $30,000,000. The Term Loans shall be
Base Rate Loans.
(b) MAKING OF TERM LOANS. Each Term Lender shall make
the amount of such Lender's Term Loan available to the Agent in same
day funds, to the Agent's designated account, not later than 12:00 noon
(Los Angeles time) on the Initial Funding Date. After the Agent's
receipt of the proceeds of such Term Loans, upon satisfaction of the
conditions precedent set forth in ARTICLE 8, the Agent shall make the
proceeds of such Term Loans available to FMC on such Funding Date by
transferring same day funds equal to the proceeds of such Term Loans
received by the Agent to FMC's Designated Account or as FMC shall
otherwise instruct in writing.
(c) TERM LOAN NOTES. FMC shall execute and deliver to
the Agent on behalf of each Term Lender, on the Closing Date, a
promissory note, substantially in the form of EXHIBIT A-2 attached
hereto and made a part hereof (such promissory notes, together with any
new notes issued pursuant to SECTION 11.2 upon the assignment of any
portion of any Term Lender's Term Loan, being hereinafter referred to
collectively as the "TERM LOAN NOTES" and each of such promissory notes
being hereinafter referred to individually as a "TERM LOAN NOTE"). The
Term Loan Notes shall evidence each Term Lender's Term Loan, in an
original principal amount equal to that Lender's Pro Rata Share of
$30,000,000 and with other appropriate insertions. Each Term Loan Note
shall be dated the Closing Date and shall mature on the second
Anniversary Date. Each payment shall be payable to the Agent for the
account of the applicable Term Lender. The Term Loans shall be payable
in full on the date on which this Agreement is terminated for any
reason. Payments or prepayments of the Term Loans may not be
reborrowed.
1.4 LETTERS OF CREDIT.
(a) AGREEMENT TO ISSUE OR CAUSE TO ISSUE. Subject to
the terms and conditions of this Agreement, the Agent agrees (i) to
cause the Letter of Credit Issuer to issue for the account of a
Borrower one or more commercial/documentary and standby letters of
credit ("LETTER OF CREDIT") and/or (ii) to provide credit support or
other enhancement to a Letter of Credit Issuer acceptable to the Agent,
which issues a Letter of Credit for the account of a Borrower (any such
credit support or enhancement being herein referred to as a "CREDIT
SUPPORT") from time to time during the term of this Agreement.
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(b) AMOUNTS; OUTSIDE EXPIRATION DATE. The Agent shall
not have any obligation to issue or cause to be issued any Letter of
Credit or to provide Credit Support for any Letter of Credit at any
time if: (i) the maximum face amount of the requested Letter of Credit
is greater than the Unused Letter of Credit Subfacility at such time;
(ii) the maximum undrawn amount of the requested Letter of Credit and
all commissions, fees, and charges due from the Borrowers in connection
with the opening thereof would exceed the Aggregate Availability at
such time; or, as to any Letter of Credit issued for the account of
FMC, would exceed the Availability of FMC at that time or, as to any
Letter of Credit issued for the account of FRC, would exceed the
Availability of FRC at that time, or (iii) such Letter of Credit has an
expiration date less than 30 days prior to the Stated Termination Date
or more than 12 months from the date of issuance for standby letters of
credit and 180 days for documentary letters of credit. With respect to
any Letter of Credit which contains any "evergreen" or automatic
renewal provision, each Lender shall be deemed to have consented to any
such extension or renewal unless any Revolving Credit Lender shall have
provided to the Agent written notice that it declines to consent to any
such extension or renewal at least thirty (30) days prior to the date
on which the Letter of Credit Issuer is entitled to decline to extend
or renew the Letter of Credit. If all of the requirements of this
SECTION 1.4 are met and no Default or Event of Default has occurred and
is continuing, no Lender shall decline to consent to any such extension
or renewal.
(c) OTHER CONDITIONS. In addition to conditions
precedent contained in ARTICLE 8, the obligation of the Agent to cause
to be issued any Letter of Credit or to provide Credit Support for any
Letter of Credit is subject to the following conditions precedent
having been satisfied in a manner reasonably satisfactory to the Agent:
(i) The applicable Borrower shall have
delivered to the Letter of Credit Issuer, at such times and in
such manner as such Letter of Credit Issuer may prescribe, an
application in form and substance satisfactory to such Letter
of Credit Issuer and reasonably satisfactory to the Agent for
the issuance of the Letter of Credit and such other documents
as may be required pursuant to the terms thereof, and the
form, terms and purpose of the proposed Letter of Credit shall
be reasonably satisfactory to the Agent and the Letter of
Credit Issuer; and
(ii) As of the date of issuance, no order of
any court, arbitrator or Governmental Authority shall purport
by its terms to enjoin or restrain money center banks
generally from issuing letters of credit of the type and in
the amount of the proposed Letter of Credit, and no law, rule
or regulation applicable to money center banks generally and
no request or directive (whether or not having the force of
law) from any Governmental Authority with jurisdiction over
money center banks generally shall prohibit, or request that
the proposed Letter of Credit Issuer refrain from, the
issuance of letters of credit generally or the issuance of
such Letters of Credit.
7
(d) ISSUANCE OF LETTERS OF CREDIT.
(i) REQUEST FOR ISSUANCE. A Borrower must
notify the Agent of a requested Letter of Credit at least
three (3) Business Days prior to the proposed issuance date.
Such notice shall be irrevocable and must specify the original
face amount of the Letter of Credit requested, the Business
Day of issuance of such requested Letter of Credit, whether
such Letter of Credit may be drawn in a single or in partial
draws, the Business Day on which the requested Letter of
Credit is to expire, the purpose for which such Letter of
Credit is to be issued, and the beneficiary of the requested
Letter of Credit. The Borrower shall attach to such notice the
proposed form of the Letter of Credit.
(ii) RESPONSIBILITIES OF THE AGENT; ISSUANCE. As
of the Business Day immediately preceding the requested
issuance date of the Letter of Credit, the Agent shall
determine the amount of the applicable Unused Letter of Credit
Subfacility, the Availability of FMC or FRC, as applicable and
the Aggregate Availability. If (i) the face amount of the
requested Letter of Credit is less than the Unused Letter of
Credit Subfacility and (ii) the amount of such requested
Letter of Credit and all commissions, fees, and charges due
from the Borrower in connection with the opening thereof would
not exceed the Availability of FMC or FRC, as applicable, the
Agent shall cause the Letter of Credit Issuer to issue the
requested Letter of Credit on the requested issuance date so
long as the other conditions hereof are met.
(iii) NO EXTENSIONS OR AMENDMENT. The Agent
shall not be obligated to cause the Letter of Credit Issuer to
extend or amend any Letter of Credit issued pursuant hereto
unless the requirements of this SECTION 1.4 are met as though
a new Letter of Credit were being requested and issued.
(e) PAYMENTS PURSUANT TO LETTERS OF CREDIT. Each of
FMC or FRC, as applicable, agrees to reimburse immediately the Letter
of Credit Issuer for any draw under any Letter of Credit issued for its
benefit and the Agent for the account of the Revolving Credit Lenders
upon any payment pursuant to any Credit Support, and to pay the Letter
of Credit Issuer the amount of all other charges and fees payable to
the Letter of Credit Issuer in connection with any Letter of Credit
immediately when due, irrespective of any claim, setoff, defense or
other right which any Borrower may have at any time against the Letter
of Credit Issuer or any other Person. Each drawing under any Letter of
Credit shall constitute a request by the applicable Borrower to the
Agent for a Borrowing of a Base Rate Revolving Loan in the amount of
such drawing. The Funding Date with respect to such borrowing shall be
the date of such drawing.
(f) INDEMNIFICATION; EXONERATION; POWER OF ATTORNEY.
(i) INDEMNIFICATION. In addition to amounts
payable as elsewhere provided in this SECTION 1.4, each of
FMC, FRC and Fleetwood agrees to protect, indemnify, pay and
save the Lenders and the Agent harmless from and against any
and all claims, demands, liabilities, damages, losses, costs,
charges
8
and expenses (including reasonable attorneys' fees) which any
Lender or the Agent (other than a Lender in its capacity as
Letter of Credit Issuer) may incur or be subject to as a
consequence, direct or indirect, of the issuance of any Letter
of Credit or the provision of any Credit Support or
enhancement in connection therewith. The Borrowers'
obligations under this Section shall survive payment of all
other Obligations.
(ii) ASSUMPTION OF RISK BY THE BORROWERS. As
among the Borrowers, the Lenders, and the Agent but subject to
subsection (iv) below, the Borrowers assume all risks of the
acts and omissions of, or misuse of any of the Letters of
Credit by, the respective beneficiaries of such Letters of
Credit. In furtherance and not in limitation of the foregoing,
subject to SUBSECTION (iv) below, the Lenders and the Agent
shall not be responsible for: (A) the form, validity,
sufficiency, accuracy, genuineness or legal effect of any
document submitted by any Person in connection with the
application for and issuance of and presentation of drafts
with respect to any of the Letters of Credit, even if it
should prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (B) the
validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any Letter of
Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason; (C) the failure of the beneficiary
of any Letter of Credit to comply duly with conditions
required in order to draw upon such Letter of Credit; (D)
errors, omissions, interruptions, or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they be in cipher; (E) errors in
interpretation of technical terms; (F) any loss or delay in
the transmission or otherwise of any document required in
order to make a drawing under any Letter of Credit or of the
proceeds thereof; (G) the misapplication by the beneficiary of
any Letter of Credit of the proceeds of any drawing under such
Letter of Credit; (H) any consequences arising from causes
beyond the control of the Lenders or the Agent, including any
act or omission, whether rightful or wrongful, of any present
or future DE JURE or DE FACTO Governmental Authority; or (I)
the Letter of Credit Issuer's honor of a draw for which the
draw or any certificate fails to comply in any respect with
the terms of the Letter of Credit. None of the foregoing shall
affect, impair or prevent the vesting of any rights or powers
of the Agent or any Lender under this SECTION 1.4(f).
(iii) EXONERATION. Without limiting the
foregoing, no action or omission whatsoever by the Agent or
any Lender with respect to any Letter of Credit issued
hereunder (excluding any Lender in its capacity as a Letter of
Credit Issuer) shall result in any liability of the Agent
and/or Lender to any Borrower, or relieve any Borrower of any
of its obligations hereunder to any such Person.
(iv) RIGHTS AGAINST LETTER OF CREDIT ISSUER.
Nothing contained in this Agreement is intended to limit a
Borrower's rights, if any, with respect to the Letter of
Credit Issuer which arise as a result of the letter of credit
application
9
and related documents executed by and between such Borrower
and the Letter of Credit.
(v) ACCOUNT PARTY. Each Borrower hereby
authorizes and directs any Letter of Credit Issuer to name
such Borrower as the "Account Party" therein and to deliver to
the Agent all instruments, documents and other writings and
property received by the Letter of Credit Issuer pursuant to
the Letter of Credit, and to accept and rely upon the Agent's
instructions and agreements with respect to all matters
arising in connection with the Letter of Credit or the
application therefor.
(g) SUPPORTING LETTER OF CREDIT; CASH COLLATERAL. If,
notwithstanding the provisions of SECTION 1.4(b) and SECTION 10.1, any
Letter of Credit or Credit Support is outstanding upon the termination
of this Agreement, then upon such termination FMC or FRC as applicable,
shall deposit with the Agent, for the ratable benefit of the Agent and
the Revolving Credit Lenders, with respect to each Letter of Credit or
Credit Support then outstanding, cash ("CASH COLLATERAL") or a standby
letter of credit (a "SUPPORTING LETTER OF CREDIT") in form and
substance satisfactory to the Agent, issued by an issuer satisfactory
to the Agent, in each case in an amount equal to the greatest amount
for which such Letter of Credit or such Credit Support may be drawn
plus any fees and expenses associated with such Letter of Credit or
such Credit Support, under which Supporting Letter of Credit the Agent
is entitled to draw amounts necessary to reimburse the Agent and the
Revolving Credit Lenders for payments to be made by the Agent and the
Revolving Credit Lenders under such Letter of Credit or Credit Support
and any fees and expenses associated with such Letter of Credit or
Credit Support. Such Supporting Letter of Credit and/or Cash Collateral
shall be held by the Agent, for the ratable benefit of the Agent and
the Revolving Credit Lenders, as security for, and to provide for the
payment of, the aggregate undrawn amount of such Letters of Credit or
such Credit Support remaining outstanding.
1.5 BANK PRODUCTS. A Borrower may request and the Agent may,
in its sole and absolute discretion, arrange for a Borrower to obtain from the
Bank or the Bank's Affiliates Bank Products although no Borrower is required to
do so. If Bank Products so requested by a Borrower are provided by an Affiliate
of the Bank, each Borrower agrees to indemnify and hold the Agent, the Bank and
the Lenders harmless from any and all costs and obligations now or hereafter
incurred by the Agent, the Bank or any of the Lenders which arise from any
indemnity given by the Agent to its Affiliates related to such Bank Products;
PROVIDED, HOWEVER, nothing contained herein is intended to limit the Borrower's
rights, with respect to the Bank or its Affiliates, if any, which arise as a
result of the execution of documents by and between such Borrower and the Bank
which relate to Bank Products. The agreement contained in this Section shall
survive termination of this Agreement. Each Borrower acknowledges and agrees
that the obtaining of Bank Products from the Bank or the Bank's Affiliates (a)
is in the sole and absolute discretion of the Bank or the Bank's Affiliates,
and (b) is subject to all rules and regulations of the Bank or the Bank's
Affiliates.
10
1.6 JOINT AND SEVERAL OBLIGATIONS; CONTRIBUTION RIGHTS.
(a) All Obligations of FMC shall be the joint and
several Obligations of the FMC Borrowers and all Obligations of FRC
shall be the joint and several Obligations of the FRC Borrowers,
regardless of which Borrower actually receives any Loans or other
extensions of credit under the Loan Documents, the amount received by
any Borrower or the manner in which any Borrower, the Agent or any
Lender accounts for such Loans and other extensions of credit.
(b) To the extent that any Borrower is a guarantor or
a surety as a result of the joint and several obligations hereunder,
such Obligations and the Liens securing such Obligations shall not be
released or impaired by any action or inaction on the part of the Agent
or any Lender which would otherwise constitute the release of a surety.
Without limiting the generality of the foregoing, the liability of any
Borrower under this Agreement shall not be affected or impaired in any
manner by, (i) the failure of any Person to become or remain a Borrower
or guarantor or the failure of the Agent or any Lender to preserve,
protect or enforce any right to require any Person to become or remain
a Borrower or guarantor, (ii) any taking, failure to take, failure to
create, perfect or ensure the priority of, or exchange, release or
termination or lapse of any Lien securing any Obligations, or any
taking, failure to take, release or amendment or waiver of or consent
to departure from any other guaranty of, any of the Obligations, (iii)
any manner or order of sale or other enforcement of any Lien securing
any of the Obligations or any manner or order of application of the
proceeds of any such Lien to the payment of the Obligations or any
failure to enforce any Lien or to apply any proceeds thereof, (iv) any
furnishing, exchange, substitution or release of any collateral
securing the Obligations, or any failure to perfect any Lien in any of
the collateral securing the Obligations, or (v) any other circumstance
which might otherwise constitute a defense (except the indefeasible
final payment in full) available to, or a discharge of, a surety or
guarantor.
(c) To the extent that any Borrower is a guarantor or
a surety as a result of the joint and several obligations hereunder,
the liability of each such Borrower under this Agreement shall remain
valid and enforceable and shall not be subject to any reduction,
limitation, impairment, discharge or termination for any reason (other
than indefeasible final payment in full of the Obligations), including
the occurrence of any of the following, whether or not such Borrower
shall have had notice or knowledge of any of them: (i) any failure or
omission to assert or enforce or agreement or election not to assert or
enforce, or the stay or enjoining, by order of court, by operation of
law or otherwise, of the exercise or enforcement of, any claim or
demand or any right, power or remedy (whether arising under the Loan
Documents, at law, in equity or otherwise) with respect to the
Obligations or any agreement relating thereto, or with respect to any
other guaranty of or security for the payment of the Obligations; (ii)
any rescission, waiver, amendment or modification of, or any consent to
departure from, any of the terms or provisions (including provisions
relating to Events of Default) of the
Credit Agreement, any of the
other Loan Documents or any agreement or instrument executed pursuant
thereto, or of any other guaranty or security for the Obligations, in
each case whether or not in accordance with the terms of this
Agreement, such Loan Document or any agreement relating to such other
guaranty or security; (iii) the Obligations, or any
11
agreement relating thereto, at any time being found to be illegal,
invalid or unenforceable in any respect; (iv) the application of
payments received from any source to the payment of any liability other
than the Obligations, even though the Lenders might have elected to
apply such payment to any part or all of the Obligations; (v) any
consent by any Lender or the Agent to the change, reorganization or
termination of the corporate structure or existence of any other
Borrower, or any other Person and to any corresponding restructuring of
the Obligations; (vi) any failure to perfect or continue perfection of
a security interest in any collateral which secures any of the
Obligations; (vii) any defenses (except the defense of indefeasible
final payment in full), set-offs or counterclaims which any Borrower,
any guarantor or any other Person may allege or assert against the
Agent or any Lender in respect of the Obligations, including, for
example, failure of consideration, breach of warranty, statute of
frauds, statute of limitations, accord and satisfaction and usury; and
(viii) 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 any Borrower as an obligor in respect of the Obligations.
(d) To the extent that any Borrower is a guarantor or
a surety as a result of the joint and several obligations hereunder, to
the maximum extent permitted by law, each such Borrower hereby waives
and agrees not to assert or take advantage of: (i) any defense now
existing or hereafter arising based upon any legal disability or other
defense of any other Borrower or any guarantor or other Person, or by
reason of the cessation or limitation of the liability of any other
Borrower or any guarantor or other Person from any cause other than
full payment and performance of all obligations due under this
Agreement or any of the other Loan Documents; (ii) any defense based
upon any lack of authority of the officers, directors, partners or
agents acting or purporting to act on behalf of any other Borrower or
any guarantor or other Person, or any defect in the formation of any
other Borrower or any guarantor or other Person; (iii) the
unenforceability or invalidity of any security or guaranty or the lack
of perfection or continuing perfection, or failure of priority of any
security for the Obligations; (iv) any and all rights and defenses
arising out of an election of remedies by the Agent or any Lender, even
though that election of remedies, such as a nonjudicial foreclosure
with respect to security for an Obligation, has destroyed such
Borrower's rights of subrogation and reimbursement against the
principal by the operation of Section 580d of the
California Code of
Civil Procedure or otherwise; (v) any defense based upon any failure to
disclose to such Borrower any information concerning the financial
condition of any other Borrower or any guarantor or other Person or any
other circumstances bearing on the ability of any other Borrower or any
guarantor or other Person to pay and perform all obligations due under
this Agreement or any of the other Loan Documents; (vi) any failure by
the Agent or any Lender to give notice to any Borrower or any guarantor
or other Person of the sale or other disposition of security, and any
defect in notice given by the Agent or any Lender in connection with
any such sale or disposition of security; (vii) any failure of the
Agent or any Lender to comply with applicable laws in connection with
the sale or disposition of security, including, without limitation, any
failure by the Lender to conduct a commercially reasonable sale or
other disposition of such security; (viii) any defense based upon any
statute or rule of law which provides that the obligation of a surety
must be neither larger in amount nor in any other respects more
burdensome than that of a principal, or that reduces a surety's or
guarantor's obligations in proportion
12
to the principal's obligation; (ix) any use of cash collateral under
Section 363 of the Bankruptcy Code; (x) any defense based upon an
election by the Agent or any Lender, in any proceeding instituted under
the Bankruptcy Code, of the application of Section 1111(b)(2) of the
Bankruptcy Code or any successor statute; (xi) any defense based upon
any borrowing or any grant of a security interest under Section 364 of
the Bankruptcy Code; (xii) any right of subrogation, any right to
enforce any remedy which the Agent or any Lender may have against any
other Borrower or any guarantor or other Person and any right to
participate in, or benefit from, any security now or hereafter held by
the Agent or any Lender for the Obligations; (xiii) presentment,
demand, protest and notice of any kind, including notice of acceptance
of this Agreement and of the existence, creation or incurring of new or
additional Obligations; (xiv) the benefit of any statute of limitations
affecting the liability of any other Borrower or any guarantor or other
Person, enforcement of this Agreement or any other Loan Documents, the
liability of any Borrower hereunder or the enforcement hereof; (xv) all
notices of intention to accelerate and/or notice of acceleration of the
Obligations; (xvi) relief from any applicable valuation or appraisement
laws; (xvii) any other action by the Agent or any Lender, whether
authorized by this Agreement or otherwise, or any omission by the Agent
or any Lender or other failure of the Agent or any Lender to pursue, or
delay in pursuing, any other remedy in its power; (xviii) any and all
claims and/or rights of counterclaim, recoupment, setoff or offset; and
(xix) any defense based upon the application of the proceeds of a Loan
for purposes other than the purposes represented by the Borrowers or
intended or understood by the Agent or any Lender or any Borrower. Each
Borrower agrees that the payment and performance of all Obligations or
any part thereof or other act which tolls any statute of limitations
applicable to this Agreement or the other Loan Documents shall
similarly operate to toll the statute of limitations applicable to such
Borrower's liability hereunder. Without limiting the generality of the
foregoing or any other provision hereof, each Borrower further waives
any and all rights and defenses that such Borrower may have because the
debt of the Borrowers is secured by real property of other Borrowers;
this means, among other things, that: (1) the Lenders may collect from
such Borrower without first foreclosing on any real or personal
property collateral pledged by any other Borrower, (2) if the Agent or
any Lender forecloses on any real property collateral pledged by any
other Borrower, then (A) the amount of the debt may be reduced only by
the price for which that collateral is sold at the foreclosure sale,
even if the collateral is worth more than the sale price, and (B) the
Agent or any Lender may collect from such Borrower even if the Agent or
any Lender, by foreclosing on the real property collateral, has
destroyed any right such Borrower may have to collect from any other
Borrower. The foregoing sentence is an unconditional and irrevocable
waiver of any rights and defenses each Borrower may have because the
Obligations are secured by real property of any other Borrower. Each
Borrower acknowledges and agrees that
California Civil Code Section
2856 authorizes and validates waivers of a guarantor's rights of
subrogation and reimbursement and waivers of certain other rights and
defenses available to a guarantor under
California law. Based on the
preceding sentence and without limiting the generality of the foregoing
waivers contained in this subparagraph or any other provision hereof,
each Borrower expressly waives to the extent permitted by law any and
all rights and defenses (except the defense of indefeasible final
payment in full), including without limitation any rights of
subrogation, reimbursement,
13
indemnification and contribution (except contribution pursuant to this
Agreement), which might otherwise be available to such Borrower under
California Civil Code Sections 2787 to 2855, inclusive, 2899 and 3433
and under
California Code of Civil Procedure Sections 580a, 580b, 580d
and 726 (or any of such sections), or any other jurisdiction to the
extent the same are applicable to this Agreement or the agreements,
covenants or obligations of any Borrower hereunder.
(e) Each Borrower is fully aware of the financial
condition of the FRC Borrowers or the FMC Borrowers, as applicable, and
is executing and delivering this Agreement based solely upon such
Borrower's own independent investigation of all matters pertinent
hereto and is not relying in any manner upon any representation or
statement by the Agent or any Lender. Each Borrower hereby assumes full
responsibility for obtaining any additional information concerning the
financial condition of the FRC Borrowers, the FMC Borrowers or any
other guarantor or their respective properties, financial condition and
prospects and any other matter pertinent hereto as such Borrower may
desire, and such Borrower is not relying upon or expecting the Agent or
any Lender to furnish to such Borrower any information now or hereafter
in the possession of the Agent or any Lender concerning the same or any
other matter. By executing this Agreement, each Borrower knowingly
accepts the full range of risks encompassed within a contract of this
type, which risks such Borrower acknowledges. No Borrower shall have
the right to require the Agent or any Lender to obtain or disclose any
information with respect to the Obligations, the financial condition or
prospects of any Borrower, the ability of any Borrower to pay or
perform the Obligations, the existence, perfection, priority or
enforceability of any collateral security for any or all of the
Obligations, the existence or enforceability of any other guaranties of
all or any part of the Obligations, any action or non-action on the
part of the Agent or any Lender, any Borrower or any other Person, or
any other event, occurrence, condition or circumstance whatsoever.
(f) To the extent that any Borrower is a guarantor or
a surety as a result of the joint and several obligations hereunder,
the Obligations of each such FMC Borrower and each such FRC Borrower
shall be limited in amount to an amount not to exceed the maximum
amount of such obligations and liabilities that can be made or assumed
by such Borrower without rendering such obligation or liability void or
voidable under applicable laws relating to fraudulent conveyance,
fraudulent transfer or similar laws affecting the rights of creditors
generally, in each case giving effect to all liabilities of such
Borrower other than any liabilities in respect of intercompany
indebtedness to the extent that it would be discharged in the amount
paid by such Borrower hereunder and giving effect to all rights of
subrogation, contribution, reimbursement, indemnity or similar rights
pursuant to applicable law or any agreement (the "MAXIMUM LIABILITY").
(g) (i) Each FMC Borrower hereby agrees that to the
extent that an FMC Borrower makes any payment on behalf of
FMC, such FMC Borrower shall be entitled to seek and receive
contribution and indemnification from and to be reimbursed by
each other FMC Borrower in an amount equal to a fraction of
such payment, the numerator of which is the Maximum Liability
of the FMC Borrower making the payment and the denominator of
which is the Maximum Liability of all FMC Borrowers as of the
date of determination. Each FMC
14
Borrower's right of contribution shall be subject to the terms
and conditions of SECTION 1.6(h). The provisions of this
SECTION 1.6(g)(i) shall in no respect limit the obligations
and liabilities of any FMC Borrower to the Lenders and each
FMC Borrower shall remain liable to the Lenders for the full
amount of its liabilities hereunder.
(ii) Each FRC Borrower hereby agrees that to
the extent that an FRC Borrower makes any payment on behalf of
FRC, such FRC Borrower shall be entitled to seek and receive
contribution and indemnification from and to be reimbursed by
each other FRC Borrower in an amount equal to a fraction of
such payment, the numerator of which is the Maximum Liability
of the FRC Borrower making the payment and the denominator of
which is the Maximum Liability of all FRC Borrowers as of the
date of determination. Each FRC Borrower's right of
contribution shall be subject to the terms and conditions of
SECTION 1.6(h). The provisions of this SECTION 1.6(g)(ii)
shall in no respect limit the obligations and liabilities of
any FRC Borrower to the Lenders and each FRC Borrower shall
remain liable to the Lenders for the full amount of its
liabilities hereunder.
(h) No FMC Borrower or FRC Borrower shall be entitled
to be subrogated to any of the rights of the Agent or any Lender
against or any other FMC Borrower or FRC Borrower or any collateral
security or guarantee or right to offset held by the Agent or any
Lender for the payment of the Obligations of FMC or FRC, as the case
may be, nor shall any FMC Borrower or FRC Borrower seek or be entitled
to seek any contribution or reimbursement from or any other FMC
Borrower or FRC Borrower in respect of payments made by such Borrower
hereunder, until all amounts owing to the Agent or any Lender on
account of the Obligations of FMC or FRC, as the case may be, are paid
in full, no Letter of Credit shall be outstanding and the Commitments
are terminated or have expired. If any amount shall be paid to any FMC
Borrower or FRC Borrower on account of such subrogation rights at any
time not permitted hereunder, such amount shall be held by such
Borrower in trust for the Agent and the Lenders, segregated from other
funds of such Borrower, and shall, forthwith upon receipt, be turned
over to the Agent in the exact form received (duly endorsed to the
Agent, if required), to be applied against the Obligations, whether
matured or unmatured, in such order as the Agent may determine.
1.7 BORROWING AGENCY PROVISIONS.
(a) At the request of, and solely as an accommodation
to, Borrowers, the Lenders have agreed to make the Loans to, and to
issue Letters of Credit for the FMC Borrowers and the FRC Borrowers on
a joint and several basis as co-borrowers. In order to facilitate the
co-borrowing arrangement, each FMC Borrower hereby irrevocably
designates Holdings to be its agent and attorney-in-fact for purposes
of the Loan Documents, and each FRC Borrower hereby irrevocably
designates Retail to be its agent and attorney-in-fact for purposes of
the Loan Documents, and each of them hereby irrevocably authorizes such
agent in such capacity to take such actions on behalf of the applicable
FMC Borrower or FRC Borrower, as the case may be, and to exercise such
powers under this Agreement and the other Loan Documents on such
Borrower's behalf
15
as may otherwise be exercised by such Borrower, together with such
powers as are incidental thereto, including without limitation to
borrow Loans, to execute and deliver Notices of Borrowing, Notices of
Conversion/Continuation, requests for Letters of Credit, Borrowing Base
Certificates and such other documents, instruments and certificates
required by the Loan Documents in connection with any Borrowing or
repayment of the Loans, to borrow, repay, reborrow, convert and
continue Loans and to receive proceeds of Loans and to give all other
notices and consents hereunder. Each Borrower further irrevocably
authorizes the Agent to act on all such documents, instruments and
certificates delivered by such agents and attorneys-in-fact, and to
pay over and credit the proceeds of any Loans so requested to the
Designated Account of FMC or FRC, as applicable. Each of Holdings and
Retail hereby accepts the appointment to act as agent and attorney in
fact for the FMC Borrowers and the FRC Borrowers, as the case may be.
The Agent and each Lender shall be entitled to rely absolutely on the
appointment and authorization of Holdings to act on behalf of the FMC
Borrowers and of Retail to act on behalf of the FRC Borrowers with
respect to all matters relating to this Agreement and the other Loan
Documents, whether or not any provision of this Agreement or any other
Loan Documents specifically provides that action may or shall be taken
by Holdings or Retail on behalf of the FMC Borrowers or the FRC
Borrowers. The Agent and the Lenders may give all notices to any FMC
Borrower to Holdings and to any FRC Borrower to Retail. Each Borrower
agrees that each notice, election, representation and warranty,
covenant, agreement and undertaking made on its behalf by Holdings or
Retail, as the case may be, shall be deemed for all purposes to have
been made by such Borrower and shall be binding upon and enforceable
against such Borrower to the same extent as if the same had been made
directly by such Borrower.
(b) All Borrowers acknowledge and agree that the
Borrowers are engaged in an integrated operation that requires
financing on the basis of credit availability to each Borrower, that
the co-borrowing arrangement has been established at the request of the
Borrowers, and that each Borrower expects to derive, directly or
indirectly, benefit from such credit availability to the other
Borrowers. Neither the Agent nor the Letter of Credit Issuer nor any
Lender shall incur any liability to Borrowers or any other Loan Party
as a result of the co-borrowing arrangement established by this
Agreement and shall not have any liability or responsibility to the
Borrowers to inquire into the allocation, apportionment or use of the
proceeds of any Loans or extensions of credit hereunder. To induce the
Agent, the Letter of Credit Issuer and the Lenders to establish this
co-borrowing arrangement and in consideration thereof, each Borrower
hereby indemnifies the Agent, the Letter of Credit Issuer and the
Lenders, and their respective successors and assigns, and agrees to
hold each of them harmless from any and all liabilities, expenses,
losses, damages and claims asserted against them by any Person arising
from or incurred by reason of the handling of the financing
arrangements of the Borrowers as provided in this Agreement, any
reliance by the Agent, the Letter of Credit Issuer or any Lender on any
document, request or instruction given by the agents designated by the
FMC Borrowers and the FRC Borrowers herein to act on their behalf or
any other action taken by the Agent, the Letter of Credit Issuer or the
Lenders with respect to the co-borrowing arrangement; PROVIDED,
HOWEVER, that no Borrower shall have an obligation to indemnify any of
the Agent, the Letter of Credit Issuer or any Lender under this SECTION
1.7 with respect to any liabilities finally determined by a court of
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competent jurisdiction to have resulted primarily from the gross
negligence or willful misconduct of such indemnified party. The
agreements of the Borrowers contained in this SECTION 1.7 shall survive
payment of all other Obligations.
1.8 SENIOR DEBT. All Obligations of Fleetwood under this
Agreement and the other Loan Documents, and all rights of contribution,
indemnity, subrogation and reimbursement relating to the Obligations of any Loan
Party with respect to Fleetwood, are "Senior Debt" under the Subordinated
Debentures and Fleetwood's guaranty of the Trust Securities.
ARTICLE 2
INTEREST AND FEES
2.1 INTEREST.
(a) INTEREST RATES. All outstanding Obligations shall
bear interest on the unpaid principal amount thereof (including, to the
extent permitted by law, on interest thereon not paid when due) from
the date made until paid in full in cash at a rate determined by
reference to the Base Rate or the LIBOR Rate plus the Applicable
Margin, but not to exceed the Maximum Rate. The Term Loans shall be
Base Rate Loans. If at any time Loans are outstanding with respect to
which a Borrower has not delivered to the Agent a notice specifying the
basis for determining the interest rate applicable thereto in
accordance herewith, those Loans shall bear interest at a rate
determined by reference to the Base Rate until notice to the contrary
has been given to the Agent in accordance with this Agreement and such
notice has become effective.
Each change in the Base Rate shall be reflected in the interest rate
applicable to Base Rate Loans as of the effective date of such change.
All interest charges shall be computed on the basis of a year of 360
days and actual days elapsed (which results in more interest being paid
than if computed on the basis of a 365-day year). The applicable
Borrowers shall pay to the Agent, for the ratable benefit of the
Revolving Credit Lenders or the Term Lenders, as the case may be,
interest accrued on all Loans in arrears on the first day of each month
hereafter and on the Termination Date.
(b) DEFAULT RATE. If any Default or Event of Default
occurs and is continuing and the Agent or the Majority Lenders in their
discretion so elect, then, from the date of the occurrence of any such
Default or Event of Default and so long as such Default or Event of
Default is continuing, all of the Obligations shall bear interest at
the Default Rate applicable thereto; provided that from the date of the
occurrence of an Event of Default under SECTION 9.1(a) with respect to
any Term Loan Obligation, the Term Loan Obligations shall automatically
bear interest at the Default Rate applicable thereto.
2.2 CONTINUATION AND CONVERSION ELECTIONS.
(a) FMC or FRC may:
(i) elect, as of any Business Day, in the
case of Base Rate Revolving Loans to convert any such Base
Rate Revolving Loans (or any part
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thereof in an amount not less than $1,000,000, or that is in
an integral multiple of $500,000 in excess thereof) into LIBOR
Rate Loans; or
(ii) elect, as of the last day of the
applicable Interest Period, to continue any LIBOR Rate Loans
having Interest Periods expiring on such day (or any part
thereof in an amount not less than $1,000,000, or that is in
an integral multiple of $500,000 in excess thereof);
PROVIDED, that if at any time the aggregate amount of LIBOR Rate Loans
in respect of any Borrowing is reduced, by payment, prepayment, or
conversion of part thereof to be less than $1,000,000, such LIBOR Rate
Loans shall automatically convert into Base Rate Loans; PROVIDED
FURTHER that if the notice shall fail to specify the duration of the
Interest Period, such Interest Period shall be one month.
(b) FMC or FRC shall deliver a notice of
continuation/conversion ("NOTICE OF CONTINUATION/CONVERSION") to the
Agent not later than 10:00 a.m. (Los Angeles time) at least three (3)
Business Days in advance of the Continuation/Conversion Date, if the
Loans are to be converted into or continued as LIBOR Rate Loans and
specifying:
(i) the proposed Continuation/Conversion Date;
(ii) the aggregate amount of Loans to be converted
or renewed;
(iii) the type of Loans resulting from the proposed
conversion or continuation; and
(iv) the duration of the requested Interest
Period, PROVIDED, HOWEVER, the Borrowers may not select an
Interest Period that ends after the Stated Termination Date.
(c) If upon the expiration of any Interest Period
applicable to LIBOR Rate Loans, FMC or FRC, as the case may be, has
failed to select timely a new Interest Period to be applicable to LIBOR
Rate Loans or if any Default or Event of Default then exists, the
applicable Borrower(s) shall be deemed to have elected to convert such
LIBOR Rate Loans into Base Rate Loans effective as of the expiration
date of such Interest Period.
(d) The Agent will promptly notify each Lender of its
receipt of a Notice of Continuation/Conversion. All conversions and
continuations shall be made ratably according to the respective
outstanding principal amounts of the Loans with respect to which the
notice was given held by each Lender.
(e) There may not be more than seven (7) different
LIBOR Rate Loans in effect hereunder at any time.
2.3 MAXIMUM INTEREST RATE. In no event shall any interest
rate provided for hereunder exceed the maximum rate legally chargeable by any
Lender under applicable law for
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such Lender with respect to loans of the type provided for hereunder (the
"MAXIMUM RATE"). If, in any month, any interest rate, absent such limitation,
would have exceeded the Maximum Rate, then the interest rate for that month
shall be the Maximum Rate, and, if in future months, that interest rate would
otherwise be less than the Maximum Rate, then that interest rate shall remain at
the Maximum Rate until such time as the amount of interest paid hereunder equals
the amount of interest which would have been paid if the same had not been
limited by the Maximum Rate. In the event that, upon payment in full of the
Obligations, the total amount of interest paid or accrued under the terms of
this Agreement is less than the total amount of interest which would, but for
this SECTION 2.3, have been paid or accrued if the interest rate otherwise set
forth in this Agreement had at all times been in effect, then the Borrowers
shall, to the extent permitted by applicable law, pay the Agent, for the account
of the Lenders, an amount equal to the excess of (a) the lesser of (i) the
amount of interest which would have been charged if the Maximum Rate had, at all
times, been in effect or (ii) the amount of interest which would have accrued
had the interest rate otherwise set forth in this Agreement, at all times, been
in effect over (b) the amount of interest actually paid or accrued under this
Agreement. If a court of competent jurisdiction determines that the Agent and/or
any Lender has received interest and other charges hereunder in excess of the
Maximum Rate, such excess shall be deemed received on account of, and shall
automatically be applied to reduce, the Obligations other than interest, in the
inverse order of maturity, and if there are no Obligations outstanding, the
Agent and/or such Lender shall refund to the applicable Borrower(s) such excess.
2.4 CLOSING FEE. The Borrowers, jointly and severally, agree
to pay the Agent on the Closing Date a closing fee (the "CLOSING FEE") as set
forth in the Fee Letter.
2.5 UNUSED LINE FEE. On the first day of each month and on the
Termination Date the Borrowers, jointly and severally, agree to pay to the
Agent, for the account of the Revolving Credit Lenders, in accordance with their
respective Pro Rata Shares, an unused line fee (the "UNUSED LINE FEE") equal to
percentage per annum set forth in the definition of Applicable Margin times the
amount by which the Maximum Revolver Amount exceeded the sum of the average
daily outstanding amount of Revolving Loans and the average daily undrawn face
amount of outstanding Letters of Credit, during the immediately preceding month
or shorter period if calculated for the first month hereafter or on the
Termination Date. The Unused Line Fee shall be computed on the basis of a
360-day year for the actual number of days elapsed. All principal payments
received by the Agent shall be deemed to be credited to the applicable
Borrowers' Loan Account immediately upon receipt for purposes of calculating the
Unused Line Fee pursuant to this SECTION 2.5.
2.6 LETTER OF CREDIT FEE. FMC or FRC, as applicable, agree to
pay to the Agent, for the account of the Revolving Credit Lenders, in accordance
with their respective Pro Rata Shares, for each Letter of Credit, a fee (the
"LETTER OF CREDIT FEE") equal to the percentage per annum set forth in the
definition of Applicable Margin times the undrawn face amount of each Letter of
Credit and to the Agent for the benefit of the Letter of Credit Issuer a
fronting fee of one-eighth of one percent (0.125%) per annum of the undrawn face
amount of each Letter of Credit, and to the Letter of Credit Issuer, all
out-of-pocket costs, fees and expenses incurred by the Letter of Credit Issuer
in connection with the application for, processing of, issuance of, or amendment
to any Letter of Credit. The Letter of Credit Fee shall be payable monthly in
arrears on the first day of each month following any month in which a Letter of
Credit is outstanding
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and on the Termination Date. The Letter of Credit Fee shall be computed on the
basis of a 360-day year for the actual number of days elapsed.
ARTICLE 3
PAYMENTS AND PREPAYMENTS
3.1 REVOLVING LOANS. FMC or FRC shall repay the outstanding
principal balance of the Revolving Loans made to it, plus all accrued but unpaid
interest thereon, on the Termination Date. A Borrower may prepay Revolving Loans
at any time, and reborrow subject to the terms of this Agreement. In addition,
and without limiting the generality of the foregoing, upon demand FMC or FRC, as
applicable, shall pay to the Agent, for account of the Revolving Credit Lenders,
the amount, without duplication, by which its Aggregate Revolver Outstandings
exceeds the lesser of its Borrowing Base or the Maximum Revolver Amount.
3.2 TERMINATION OF FACILITY. The Borrowers may terminate this
Agreement upon at least thirty days' notice to the Agent and the Lenders, upon
(a) the payment in full of all outstanding Revolving Loans, together with
accrued interest thereon, and the cancellation and return of all outstanding
Letters of Credit (or the provision of Cash Collateral or a Supporting Letter of
Credit in accordance with SECTION 1.4(g) above), (b) the prepayment in full of
the Term Loans, together with accrued and unpaid interest thereon, (c) the
payment of the early termination fee set forth below, (d) the payment in full in
cash of all reimbursable expenses and other Obligations, and (e) with respect to
any LIBOR Rate Loans prepaid, payment of the amounts due under SECTION 4.4, if
any. If this Agreement is terminated prior to the first anniversary of the
Closing Date, whether pursuant to this SECTION 3.2 or pursuant to SECTION 9.2,
Borrowers shall pay to the Agent, for the accounts of the Lenders, in proportion
to their respective Pro Rata Shares, an early termination fee equal to two
percent (2%) of the Total Facility. No early termination fee shall be payable if
this Agreement is terminated after the first anniversary of the Closing Date.
3.3 REPAYMENT OF THE TERM LOANS.
(a) AMORTIZATION OF TERM LOAN.
(i) On the first day of each calendar month,
commencing with the first day of the first calendar month
after the first Anniversary Date, FMC agrees to repay the
principal amount of Term Loans in an amount equal to
$1,000,000.
(ii) On the second Anniversary Date, FMC
agrees to repay the outstanding principal amount of and all
accrued and unpaid interest on the Term Loans.
(b) TERM LENDERS. FMC agrees to repay the principal
of the Term Loans to the Agent, for the account of the Lenders as set
forth in SECTION 1.3.
(c) APPLICATION OF PREPAYMENTS. Any prepayments to
Term Loan hereunder shall be applied FIRST, to the repayments of Term
Loans required pursuant to
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SECTION 3.3(a)(ii), and SECOND, to the repayments of Term Loans
required pursuant to SECTION 3.3(a)(i) in inverse order of maturity.
3.4 PREPAYMENTS OF THE LOANS.
(a) FMC may prepay the principal of the Term Loans in
whole or in part, at any time and from time to time upon at least 5
Business Days' prior written notice to the Agent and the Term Lenders.
All voluntary prepayments of the principal of the Term Loans shall be
accompanied by the payment of all accrued but unpaid interest on the
Term Loans to the date of prepayment. Amounts prepaid in respect of the
Term Loans may not be reborrowed.
(b) Immediately upon receipt by any Loan Party of
proceeds of any disposition of Eligible Equipment or Eligible Real
Estate, FMC shall repay the Revolving Loans in an amount equal to the
amount advanced against the applicable asset in calculation of the
Borrowing Base, and the Maximum PP&E Loan Amount shall be permanently
reduced by such amount.
(c) Subject to the terms of SECTION 7.9 permitting
certain reinvestment of asset disposition proceeds, immediately upon
any receipt by any Loan Party of proceeds of any disposition of any
Term Loan Collateral, FMC shall repay the Term Loans in an amount equal
to all such proceeds, net of (A) commissions and other customary
transaction costs, fees and expenses properly attributable to such
transaction and payable by a Loan Party in connection therewith (other
than any amounts payable to any Affiliate), (B) transfer taxes, (C)
amounts payable to holders of senior Liens (to the extent that such
Liens are Permitted Liens), if any, (D) an appropriate reserve for
income taxes in accordance with GAAP in connection therewith; and (E)
with respect to any sale of all of the Capital Stock of the Identified
Subsidiary an amount equal the amount advanced against the Eligible
Accounts and Eligible Inventory of the Identified Subsidiary (the "NET
PROCEEDS"). After the Term Loans have been repaid in full, any
remaining Net Proceeds shall be applied to the Revolving Loans, but
without reduction of the Revolving Credit Commitments.
(d) Immediately upon any receipt by any Loan Party of
proceeds of any assets (other than (i) Inventory sold in the ordinary
course of business and (ii) assets described in SUBSECTIONS (b) or (c)
above), the Borrowers shall repay the Revolving Loans in an amount
equal to the Net Proceeds, but without reduction of the Revolving
Credit Commitments.
(e) Concurrently with an FRC Borrower Release, the
Borrowers shall repay the Revolving Loans in an amount equal the amount
advanced against the Eligible Accounts, Eligible Inventory and Eligible
Equipment of the FRC Borrower being released in such FRC Borrower
Release, but without reduction of the Revolving Credit Commitments.
(f) Concurrently with the sale of the Capital Stock
of the Identified Subsidiary, the Borrowers shall repay the Revolving
Loans in an amount equal to the
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amount advanced against the Eligible Accounts and Eligible Inventory of
the Identified Subsidiary, but without reduction of the Revolving
Credit Commitments.
(g) No provision contained in this SECTION 3.4 shall
constitute a consent to an asset disposition that is otherwise not
permitted by the terms of this Agreement.
3.5 LIBOR RATE LOAN PREPAYMENTS. In connection with any
prepayment, if any LIBOR Rate Loans are prepaid prior to the expiration date of
the Interest Period applicable thereto, the applicable Borrower shall pay to the
Revolving Credit Lenders the amounts described in SECTION 4.4.
3.6 PAYMENTS BY THE BORROWERS.
(a) All payments to be made by the Borrowers shall be
made without set-off, recoupment or counterclaim. Except as otherwise
expressly provided herein, all payments by the Borrowers shall be made
to the Agent for the account of the Revolving Credit Lenders or Term
Lenders, as applicable, at the account designated by the Agent and
shall be made in Dollars and in immediately available funds, no later
than 12:00 noon (Los Angeles time) on the date specified herein. Any
payment received by the Agent after such time shall be deemed (for
purposes of calculating interest only) to have been received on the
following Business Day and any applicable interest shall continue to
accrue.
(b) Subject to the provisions set forth in the
definition of "INTEREST PERIOD", whenever any payment is due on a day
other than a Business Day, such payment shall be due on the following
Business Day, and such extension of time shall in such case be included
in the computation of interest or fees, as the case may be.
3.7 PAYMENTS AS REVOLVING LOANS. At the election of the Agent,
all payments of principal of or interest on the Revolving Loans, reimbursement
obligations in connection with Letters of Credit and Credit Support for Letters
of Credit, fees, premiums, reimbursable expenses and other sums payable
hereunder (other than the Term Loans), may be paid from the proceeds of
Revolving Loans made hereunder. Proceeds of Revolving Loans may be used to make
payments of the Term Loan Obligations only if: (a) for payments of the Term Loan
Obligations under SECTION 3.3(a)(i), no Event of Default has occurred and is
continuing, and (b) for payments of Term Loan Obligations under SECTION
3.3(a)(ii), (x) no Event of Default has occurred and is continuing, (y) the
amount of the average of the Liquidity for each of the most recent three
calendar months is at least $60,000,000 and (z) on the date of any such payment
of the Term Loan Obligations, after giving effect to any Borrowing, the
Aggregate Availability PLUS the Qualified Cash Equivalents is equal to or
greater than $10,000,000 plus the amount, on such date, of the required minimum
Aggregate Availability under SECTION 7.25. Each Borrower hereby irrevocably
authorizes the Agent to charge the applicable Loan Account for the purpose of
paying all amounts from time to time due from FMC and FRC or any FMC Borrower or
FRC Borrower and agrees that all such amounts charged shall constitute Revolving
Loans (including Non-Ratable Loans and Agent Advances).
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3.8 APPORTIONMENT, APPLICATION AND REVERSAL OF PAYMENTS.
Principal and interest payments shall be apportioned ratably among the Lenders
(according to the unpaid principal balance of the Loans to which such payments
relate held by each Lender). All payments shall be remitted to the Agent and all
such payments not relating to principal or interest of specific Loans, or not
constituting payment of specific fees, and all proceeds of Accounts, or, except
as set forth below with respect to Term Loan Collateral, other Collateral
received by the Agent, shall be applied, ratably, subject to the provisions of
this Agreement, FIRST, to pay any fees, indemnities, or expense reimbursements
(other than amounts related to Bank Products) then due to the Agent or the
Lenders from the applicable Borrower; SECOND, to pay interest due from such
Borrower in respect of all Loans, including Non-Ratable Loans and Agent
Advances; THIRD, to pay or prepay principal of the Non-Ratable Loans and Agent
Advances owed by such Borrower; FOURTH, to pay or prepay principal of the
Revolving Loans (other than Non-Ratable Loans and Agent Advances) and unpaid
reimbursement obligations in respect of Letters of Credit; FIFTH, to pay an
amount to the Agent equal to all outstanding Letter of Credit Obligations of
such Borrower to be held as cash collateral for such Obligations; SIXTH, to pay
or prepay principal of the Term Loans owed by such Borrower; SEVENTH, to the
payment of any other Obligation (other than amounts related to Bank Products)
due to the Agent or any Lender by such Borrower and EIGHTH, to pay any fees,
indemnities or expense reimbursements related to Bank Products due to the Agent
from the applicable Borrower. Notwithstanding the foregoing, until the Term
Loans have been paid in full, proceeds of the Term Loan Collateral shall be
applied FIRST to pay any fees, indemnities or expense reimbursements relating to
the Term Loans or the Term Loan Collateral then due to the Agent or the Lenders
from FMC; SECOND, to pay interest due from FMC in respect to the Term Loans;
THIRD, to pay or prepay principal of the Term Loans; and FOURTH, to all other
Obligations in accordance with the preceding sentence. Notwithstanding anything
to the contrary contained in this Agreement, unless so directed by the
applicable Borrower, or unless an Event of Default has occurred and is
continuing, neither the Agent nor any Lender shall apply any payments which it
receives to any LIBOR Rate Loan, except (a) on the expiration date of the
Interest Period applicable to any such LIBOR Rate Loan, or (b) in the event, and
only to the extent, that there are no outstanding Base Rate Loans and, in any
event, the applicable Borrower shall pay LIBOR breakage losses in accordance
with SECTION 4.4. The Agent and the Lenders shall have the continuing and
exclusive right to apply and reverse and reapply any and all such proceeds and
payments to any portion of the Obligations.
3.9 INDEMNITY FOR RETURNED PAYMENTS. If after receipt of any
payment which is applied to the payment of all or any part of the Obligations,
the Agent, any Lender, the Bank or any Affiliate of the Bank is for any reason
compelled to surrender such payment or proceeds to any Person because such
payment or application of proceeds is invalidated, declared fraudulent, set
aside, determined to be void or voidable as a preference, impermissible setoff,
or a diversion of trust funds, or for any other reason, then the Obligations or
part thereof intended to be satisfied shall be revived and continued and this
Agreement shall continue in full force as if such payment or proceeds had not
been received by the Agent, such Lender, the Bank or any Affiliate of the Bank
and the Borrowers shall be liable to pay to the Agent and the Lenders, and
hereby indemnify the Agent and the Lenders and hold the Agent and the Lenders
harmless for the amount of such payment or proceeds surrendered. The provisions
of this SECTION 3.9 shall be and remain effective notwithstanding any contrary
action which may have been taken by the Agent or any Lender, the Bank or any
Affiliate of the Bank in reliance upon such payment or application of proceeds,
and any such contrary action so taken shall be without prejudice to the
23
Agent's and the Lenders' rights under this Agreement and shall be deemed to have
been conditioned upon such payment or application of proceeds having become
final and irrevocable. The provisions of this SECTION 3.9 shall survive the
termination of this Agreement.
3.10 THE AGENT'S AND LENDERS' BOOKS AND RECORDS; MONTHLY
STATEMENTS. The Agent shall record the principal amount of the Loans owing to
each Lender, the undrawn face amount of all outstanding Letters of Credit and
the aggregate amount of unpaid reimbursement obligations outstanding with
respect to the Letters of Credit from time to time on its books. In addition,
each Lender may note the date and amount of each payment or prepayment of
principal of such Lender's Loans in its books and records. Failure by the Agent
or any Lender to make such notation shall not affect the obligations of the
applicable Borrower with respect to the Loans or the Letters of Credit. Each
Borrower agrees that the Agent's and each Lender's books and records showing the
Obligations and the transactions pursuant to this Agreement and the other Loan
Documents shall be admissible in any action or proceeding arising therefrom, and
shall constitute rebuttably presumptive proof thereof, irrespective of whether
any Obligation is also evidenced by a promissory note or other instrument. The
Agent will provide to the Borrowers a monthly statement of Loans, payments, and
other transactions pursuant to this Agreement. Such statement shall be deemed
correct, accurate, and binding on the Borrowers and an account stated (except
for reversals and reapplications of payments made as provided in SECTION 3.8 and
corrections of errors discovered by the Agent), unless the Borrowers notify the
Agent in writing to the contrary within thirty (30) days after such statement is
rendered. In the event a timely written notice of objections is given by the
Borrowers, only the items to which exception is expressly made will be
considered to be disputed by the Borrowers.
3.11 RELEASE OF FRC BORROWER. Provided that no Default or Event of
Default has occurred and is continuing (or would occur or exist as a result of
or following the release of an FRC Borrower pursuant to this SECTION 3.11),
Fleetwood shall have the right, subject to the provisions of this SECTION 3.11,
to obtain a release of an FRC Borrower (each, an "FRC BORROWER RELEASE") from
its Obligations under this Agreement and the other Loan Documents. In the event
Fleetwood seeks to obtain an FRC Borrower Release, the Agent shall release such
FRC Borrower (each a "RELEASED FRC BORROWER") from this Agreement and the other
Loan Documents, but only upon satisfaction of all of the following conditions:
(a) Any request for an FRC Borrower Release shall be
made in writing to the Agent no less than five (5) Business Days prior
to the date of the requested FRC Borrower Release;
(b) the FRC Borrowers make any payment required
pursuant to SECTION 3.4(e) in connection with such FRC Borrower
Release;
(c) the FRC Borrowers shall pay all of the Agent's
reasonable costs and expenses, including counsel fees and
disbursements, incurred in connection with the FRC Borrower Release and
the review and approval of the documents and information required to be
delivered in connection therewith; and
(d) the FRC Borrowers shall deliver to the Agent
simultaneously with the request referred to in clause (a) above, an FRC
Borrowing Base Certificate signed by
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an Authorized Officer of FRC, representing and certifying the pro
forma calculations after giving effect to the proposed FRC Borrower
Release.
ARTICLE 4
TAXES, YIELD PROTECTION AND ILLEGALITY
4.1 TAXES.
(a) Any and all payments by the Borrowers to each
Lender or the Agent under this Agreement and any other Loan Document
shall be made free and clear of, and without deduction or withholding
for any Taxes. In addition, the Borrowers shall pay all Other Taxes.
(b) Each Borrower agrees to indemnify and hold
harmless each Lender and the Agent for the full amount of Taxes or
Other Taxes (including any Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under this Section) paid by any Lender
or the Agent and any liability (including penalties, interest,
additions to tax and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. Payment under this indemnification shall be made
within 30 days after the date such Lender or the Agent makes written
demand therefor.
(c) If a Borrower shall be required by law to deduct
or withhold any Taxes or Other Taxes from or in respect of any sum
payable hereunder to any Lender or the Agent, then:
(i) the sum payable shall be increased as
necessary so that after making all required deductions and
withholdings (including deductions and withholdings applicable
to additional sums payable under this Section) such Lender or
the Agent, as the case may be, receives an amount equal to the
sum it would have received had no such deductions or
withholdings been made;
(ii) such Borrower shall make such
deductions and withholdings;
(iii) such Borrower shall pay the full
amount deducted or withheld to the relevant taxing authority
or other authority in accordance with applicable law; and
(iv) such Borrower shall also pay to each
Lender or the Agent for the account of such Lender, at the
time interest is paid, all additional amounts which the
respective Lender specifies as necessary to preserve the
after-tax yield such Lender would have received if such Taxes
or Other Taxes had not been imposed.
(d) At the Agent's request, within 30 days after the
date of any payment by a Borrower of Taxes or Other Taxes, such
Borrower shall furnish the Agent the original or a certified copy of a
receipt evidencing payment thereof, or other evidence
25
of payment satisfactory to the Agent. If any Borrower determines in
good faith that a reasonable basis exists for contesting any Taxes or
Other Taxes, at the request of such Borrower, the relevant Lender shall
cooperate with such Borrower in challenging such Tax or Other Tax at
such Borrower's expense (but shall have no obligation to disclose any
confidential information with respect to such Lender). No Lender shall
have any obligation to contest any Tax or Other Tax, except to
cooperate with the Borrowers in any contest requested by a Borrower as
provided herein. If any Lender becomes aware that it has received a
refund for any Tax or Other Tax for which a payment has been made to it
by the Borrowers under this Section, which in the good faith judgment
of such Lender is allocable to such payment, the amount of such refund
shall be paid to the applicable Borrower(s) to the extent that such
Borrower(s) have paid in full the payments required by this SECTION 4.1
(e) If a Borrower is required to pay additional
amounts to any Lender or the Agent pursuant to SUBSECTION (c) of this
Section, then such Lender shall use reasonable efforts (consistent with
legal and regulatory restrictions) to change the jurisdiction of its
lending office so as to eliminate any such additional payment by such
Borrower which may thereafter accrue, if such change in the judgment of
such Lender is not otherwise disadvantageous to such Lender.
4.2 ILLEGALITY.
(a) If any Revolving Credit Lender determines that
the introduction of any Requirement of Law, or any change in any
Requirement of Law, or in the interpretation or administration of any
Requirement of Law, has made it unlawful, or that any central bank or
other Governmental Authority has asserted that it is unlawful, for any
Revolving Credit Lender or its applicable lending office to make LIBOR
Rate Loans, then, on notice thereof by that Revolving Credit Lender to
the Borrowers through the Agent, any obligation of that Revolving
Credit Lender to make LIBOR Rate Loans shall be suspended until that
Revolving Credit Lender notifies the Agent and the Borrowers that the
circumstances giving rise to such determination no longer exist.
(b) If a Revolving Credit Lender determines that it
is unlawful to maintain any LIBOR Rate Loan, the Borrowers shall, upon
receipt of notice of such fact and demand from such Revolving Credit
Lender (with a copy to the Agent), prepay in full such LIBOR Rate Loans
of that Revolving Credit Lender then outstanding, together with
interest accrued thereon and amounts required under SECTION 4.4, either
on the last day of the Interest Period thereof, if that Revolving
Credit Lender may lawfully continue to maintain such LIBOR Rate Loans
to such day, or immediately, if that Revolving Credit Lender may not
lawfully continue to maintain such LIBOR Rate Loans. If the Borrowers
are required to so prepay any LIBOR Rate Loans, then concurrently with
such prepayment, the applicable Borrower shall borrow from the affected
Revolving Credit Lender, in the amount of such repayment, a Base Rate
Loan.
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4.3 INCREASED COSTS AND REDUCTION OF RETURN.
(a) If any Lender determines that due to either (i)
the introduction of any Requirement of Law, or any change in any
Requirement of Law, or any change in the interpretation of any
Requirement of Law or (ii) the compliance by that Lender with any
guideline or request from any central bank or other Governmental
Authority (whether or not having the force of law), there shall be any
increase in the cost to such Lender of agreeing to make or making,
funding or maintaining any LIBOR Rate Loans, then the Borrowers shall
be liable for, and shall from time to time, upon demand (with a copy of
such demand to be sent to the Agent), pay to the Agent for the account
of such Lender, additional amounts as are sufficient to compensate such
Lender for such increased costs.
(b) If any Lender shall have determined that (i) the
introduction of any Capital Adequacy Regulation, (ii) any change in any
Capital Adequacy Regulation, (iii) any change in the interpretation or
administration of any Capital Adequacy Regulation by any central bank
or other Governmental Authority charged with the interpretation or
administration thereof, or (iv) compliance by such Lender or any
corporation or other entity controlling such Lender with any Capital
Adequacy Regulation, affects or would affect the amount of capital
required or expected to be maintained by such Lender or any corporation
or other entity controlling such Lender and (taking into consideration
such Lender's or such corporation's or other entity's policies with
respect to capital adequacy and such Lender's desired return on
capital) determines that the amount of such capital is increased as a
consequence of its Commitments, Loans, credits or obligations under
this Agreement, then, upon demand of such Lender to the Borrowers
through the Agent, the Borrowers shall pay to such Lender, from time to
time as specified by such Lender, additional amounts sufficient to
compensate such Lender for such increase.
4.4 FUNDING LOSSES. FMC or FRC, as the case may be, shall reimburse
each Revolving Credit Lender and hold each Revolving Credit Lender harmless from
any loss or expense which such Lender may sustain or incur as a consequence of:
(a) the failure of the applicable Borrower(s) to make
on a timely basis any payment of principal of any LIBOR Rate Loan;
(b) the failure of the applicable Borrower(s) to
borrow, continue or convert a Loan after such Borrower has given (or is
deemed to have given) a Notice of Borrowing or a Notice of
Continuation/Conversion; or
(c) the prepayment or other payment (including
after acceleration thereof) of any LIBOR Rate Loans on a day that is
not the last day of the relevant Interest Period;
including any such loss of anticipated profit and any loss or expense arising
from the liquidation or reemployment of funds obtained by it to maintain its
LIBOR Rate Loans or from fees payable to terminate the deposits from which such
funds were obtained. The Borrowers shall also pay any customary administrative
fees charged by any Lender in connection with the foregoing.
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4.5 INABILITY TO DETERMINE RATES. If the Agent determines that for
any reason adequate and reasonable means do not exist for determining the LIBOR
Rate for any requested Interest Period with respect to a proposed LIBOR Rate
Loan, or that the LIBOR Rate for any requested Interest Period with respect to a
proposed LIBOR Rate Loan does not adequately and fairly reflect the cost to the
Revolving Credit Lenders of funding such Loan, the Agent will promptly so notify
the Borrowers and each Revolving Credit Lender. Thereafter, the obligation of
the Revolving Credit Lenders to make or maintain LIBOR Rate Loans hereunder
shall be suspended until the Agent revokes such notice in writing; and the Agent
shall promptly deliver such notice after it determines that the reason for such
suspension no longer exists. Upon receipt of such notice of suspension,
Borrowers may revoke any Notice of Borrowing or Notice of
Continuation/Conversion then submitted by it. If the applicable Borrower does
not revoke such Notice, the Revolving Credit Lenders shall make, convert or
continue the Loans, as proposed by the applicable Borrower, in the amount
specified in the applicable notice submitted by such Borrower, but such Loans
shall be made, converted or continued as Base Rate Loans instead of LIBOR Rate
Loans.
4.6 CERTIFICATES OF THE AGENT. If any Lender claims reimbursement
or compensation under this ARTICLE 4, the Agent shall determine the amount
thereof and shall deliver to the Borrowers (with a copy to the affected Lender)
a certificate setting forth in reasonable detail the amount payable to the
affected Lender, and such certificate shall be conclusive and binding on the
Borrowers in the absence of manifest or demonstrable error.
4.7 SURVIVAL. The agreements and obligations of the Borrowers in
this ARTICLE 4 shall survive the payment of all other Obligations.
ARTICLE 5
BOOKS AND RECORDS; FINANCIAL INFORMATION; NOTICES
5.1 BOOKS AND RECORDS. Fleetwood shall, and shall cause each of
its Subsidiaries to maintain, at all times, correct and complete books, records
and accounts in which complete, correct and timely entries are made of its
transactions in accordance with GAAP applied consistently with the audited
Financial Statements required to be delivered pursuant to SECTION 5.2(a).
Fleetwood shall, and shall cause each of its Subsidiaries to, by means of
appropriate entries, reflect in such accounts and in all Financial Statements
proper liabilities and reserves for all taxes and proper provision for
depreciation and amortization of property and bad debts, all in accordance with
GAAP. Fleetwood shall, and shall cause each Loan Party to maintain at all times
books and records pertaining to the Collateral in such detail, form and scope as
the Agent or any Lender shall reasonably require, including, but not limited to,
records of (a) all payments received and all credits and extensions granted with
respect to the Accounts; (b) the return, rejection, repossession, stoppage in
transit, loss, damage, or destruction of any Inventory; and (c) all other
dealings affecting the Collateral in any material respect.
5.2 FINANCIAL INFORMATION. Fleetwood shall, and shall cause each
of its Subsidiaries to promptly furnish to each Lender, all such financial
information as the Agent shall reasonably request. Without limiting the
foregoing, Fleetwood and the Borrowers will furnish to the Agent, in sufficient
copies for distribution by the Agent to each Lender, in such detail as the Agent
or the Lenders shall request, the following:
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(a) As soon as available, but in any event not later
than ninety (90) days after the close of each Fiscal Year, consolidated
audited and consolidating (by Business Unit) unaudited balance sheets,
and income statements, cash flow statements and changes in
stockholders' equity for Fleetwood and its Subsidiaries for such Fiscal
Year, and the accompanying notes thereto, setting forth in each case in
comparative form figures for the previous Fiscal Year, all in
reasonable detail, fairly presenting the financial position and the
results of operations of Fleetwood and its consolidated Subsidiaries as
at the date thereof and for the Fiscal Year then ended, and prepared in
accordance with GAAP. Such statements shall be examined in accordance
with generally accepted auditing standards by and, in the case of such
statements performed on a consolidated basis, accompanied by a report
thereon unqualified in any respect of independent certified public
accountants selected by Fleetwood and reasonably satisfactory to the
Agent. Fleetwood and the Borrowers hereby authorize the Agent to
communicate directly with their certified public accountants and, by
this provision, authorize those accountants to disclose to the Agent
any and all financial statements and other supporting financial
documents and schedules relating to Fleetwood and its Subsidiaries and
to discuss directly with the Agent, in the presence of Fleetwood, the
finances and affairs of Fleetwood and its Subsidiaries.
(b) As soon as available, but in any event not later
than forty-five (45) days after the end of each Fiscal Quarter,
consolidated and consolidating (by Business Unit) unaudited balance
sheets of Fleetwood and its consolidated Subsidiaries as at the end of
such Fiscal Quarter, and consolidated and consolidating (by Business
Unit) unaudited income statements and cash flow statements for
Fleetwood and its consolidated Subsidiaries for such Fiscal Quarter and
for the period from the beginning of the Fiscal Year to the end of such
Fiscal Quarter, all in reasonable detail, fairly presenting the
financial position and results of operations of Fleetwood and its
consolidated Subsidiaries as at the date thereof and for such periods,
and, in each case, in comparable form, figures for the corresponding
period in the prior Fiscal Year and in the budget of Fleetwood and its
Subsidiaries, and prepared in accordance with GAAP applied consistently
with the audited Financial Statements required to be delivered pursuant
to SECTION 5.2(a). Fleetwood shall certify by a certificate signed by
its chief financial officer that all such statements have been prepared
in accordance with GAAP and present fairly the financial position of
Fleetwood and its Subsidiaries as at the dates thereof and its results
of operations for the periods then ended, subject to normal year-end
adjustments and to the absence of footnotes required by GAAP.
(c) As soon as available, but in any event not later
than forty-five (45) days after the end of each fiscal month, the
Borrowers shall provide the following information in form satisfactory
to the Agent, a forecasted consolidated and consolidating (by Business
Unit) balance sheet and statement of income and expense and cash flow
through the immediately forthcoming fiscal quarter end and through the
balance of the fiscal year on a quarterly basis (referred to as the
A1-A4 series) with an explanation of the variances of the figures in
the corresponding forecast to that provided in the immediately
preceding fiscal month and to those presented in the Latest
Projections.
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(d) With each of the audited Financial Statements
delivered pursuant to SECTION 5.2(a), a certificate of the independent
certified public accountants that examined such statement to the effect
that they have reviewed and are familiar with this Agreement and that,
in examining such Financial Statements, they did not become aware of
any fact or condition which then constituted a Default or Event of
Default with respect to a financial covenant, except for those, if any,
described in reasonable detail in such certificate.
(e) With each of the annual audited Financial
Statements delivered pursuant to SECTION 5.2(a), and within forty-five
(45) days after the end of each Fiscal Quarter, a certificate of the
chief financial officer, vice president-treasurer or vice
president-controller of Fleetwood setting forth in reasonable detail
the calculations required to establish that the Fleetwood and its
Subsidiaries were in compliance with the covenants set forth in
SECTIONS 7.22 through 7.25 during the period covered in such Financial
Statements and as at the end thereof. Within forty-five (45) days after
the end of each Fiscal Quarter, a certificate of the chief financial
officer, vice president-treasurer or vice president-controller of
Fleetwood stating that, except as explained in reasonable detail in
such certificate, (A) all of the representations and warranties of the
Loan Parties contained in this Agreement and the other Loan Documents
are correct and complete in all material respects as at the date of
such certificate as if made at such time, except for those that speak
as of a particular date, which shall have been true and correct as of
such date, (B) the Loan Parties are, at the date of such certificate,
in compliance in all material respects with all of their respective
covenants and agreements in this Agreement and the other Loan
Documents, (C) no Default or Event of Default then exists or existed
during the period covered by the Financial Statements for such Fiscal
Quarter, (D) describing and analyzing in reasonable detail all material
trends, changes, and developments in each and all Financial Statements;
and (E) explaining the variances of the figures in the corresponding
Latest Projections and prior Fiscal Year financial statements. If any
such certificate discloses that a representation or warranty is not
correct or complete, or that a covenant has not been complied with, or
that a Default or Event of Default existed or exists, such certificate
shall set forth what action Loan Parties have taken or propose to take
with respect thereto.
(f) No sooner than sixty (60) days prior to and not
more than thirty (30) days after the beginning of each Fiscal Year,
annual forecasts (to include forecasted consolidated and consolidating
(by Business Unit) balance sheets, income statements and cash flow
statements) for Fleetwood and its Subsidiaries as at the end of and for
each month of such Fiscal Year.
(g) Promptly after filing with the PBGC and the IRS,
a copy of each annual report or other filing filed with respect to each
Plan of Fleetwood and its Subsidiaries.
(h) Promptly upon the filing thereof, copies of all
reports, if any, to or other documents filed by Fleetwood or any of its
Subsidiaries with the Securities and Exchange Commission under the
Exchange Act, and all reports, notices, or statements sent or received
by Fleetwood or any of its Subsidiaries to or from the holders of any
30
equity interests of Fleetwood or any of its Subsidiaries (other than
routine non-material correspondence sent by shareholders of Fleetwood
to Fleetwood) or any such Subsidiary or of any Debt of Fleetwood or any
of its Subsidiaries registered under the Securities Act or to or from
the trustee under any indenture under which the same is issued.
(i) As soon as available, but in any event not later
than 15 days after any Loan Party's receipt thereof, a copy of all
management reports and management letters prepared for any Loan Party
by any independent certified public accountants.
(j) Promptly after their preparation, copies of any
and all proxy statements, financial statements, and reports which
Fleetwood makes available to its shareholders.
(k) If requested by the Agent, promptly after filing
with the IRS, a copy of each tax return filed by Fleetwood or by any of
its Subsidiaries.
(l) No later than Wednesday of each week, a Borrowing
Base Certificate and all supporting information in accordance with
Section 9 of the Security Agreement as of the end of the preceding
week.
(m) No later than the 15th day of each month, a
Pricing Certificate, and a report, in form and substance satisfactory
to the Agent, with respect to the Repurchase Obligations.
(n) If the Term Loans have not been paid in full on
or prior to the date six months after the Closing Date, then on the
first day of each calendar month thereafter until payment in full of
the Term Loans, the Borrowers shall provide to the Agent and the Term
Lenders a written description of all transactions which the Borrowers
anticipate closing in order to raise the amount necessary to repay the
Term Loans and a description of the current status of each such
transaction.
(o) Such additional information as the Agent and/or
any Lender may from time to time reasonably request regarding the
financial and business affairs of Fleetwood or any Subsidiary.
5.3 NOTICES TO THE LENDERS. Fleetwood or the Borrowers shall notify
the Agent and the Lenders in writing of the following matters at the following
times:
(a) Immediately after becoming aware of any Default
or Event of Default;
(b) Immediately after becoming aware of the assertion
by the holder of any Capital Stock of Fleetwood or of any Subsidiary or
the holder of any Debt of Fleetwood or any Subsidiary in a face amount
in excess of $1,000,000 that a default exists with respect thereto or
that Fleetwood or such Subsidiary is not in compliance with the terms
thereof, or the threat or commencement by such holder of any
enforcement action because of such asserted default or non-compliance;
and immediately after
31
becoming aware of the assertion that any Repurchase Obligations of
$500,000 or more payable in cash shall have become due and payable;
(c) Immediately after becoming aware of any event or
circumstance (other than general economic trends) which could
reasonably be expected to have a Material Adverse Effect;
(d) Immediately after becoming aware of any pending
or threatened action, suit, or proceeding, by any Person, or any
pending or threatened investigation by a Governmental Authority, which
if adversely determined would reasonably be expected to have a Material
Adverse Effect;
(e) Immediately after becoming aware of any pending
or threatened strike, work stoppage, unfair labor practice claim, or
other labor dispute affecting Fleetwood or any of its Subsidiaries in a
manner which could reasonably be expected to have a Material Adverse
Effect;
(f) Immediately after becoming aware of any violation
of any law, statute, regulation, or ordinance of a Governmental
Authority affecting Fleetwood or any Subsidiary which could reasonably
be expected to have a Material Adverse Effect;
(g) Immediately after receipt of any notice of any
violation by Fleetwood or any of its Subsidiaries of any Environmental
Law which could reasonably be expected to have a Material Adverse
Effect or that any Governmental Authority has asserted in writing that
Fleetwood or any Subsidiary is not in compliance in any material
respect with any Environmental Law or is investigating Fleetwood's or
such Subsidiary's compliance therewith;
(h) Immediately after receipt of any written notice
that Fleetwood or any of its Subsidiaries is or may be liable to any
Person as a result of the Release or threatened Release of any
Contaminant or that Fleetwood or any Subsidiary is subject to
investigation by any Governmental Authority evaluating whether any
remedial action is needed to respond to the Release or threatened
Release of any Contaminant which, in either case, is reasonably likely
to give rise to liability in excess of $1,000,000;
(i) Immediately after receipt of any written
notice of the imposition of any Environmental Lien against
any property of Fleetwood or any of its Subsidiaries;
(j) Any change in any Loan Party's name, state of
organization, locations of Collateral, or form of organization, trade
names under which it will sell Inventory or create Accounts, or to
which instruments in payment of Accounts may be made payable, in each
case at least thirty (30) days prior thereto;
(k) Within ten (10) Business Days after Fleetwood or
any ERISA Affiliate knows or has reason to know, that an ERISA Event or
a prohibited transaction (as defined in Sections 406 of ERISA and 4975
of the Code) has occurred, and, when known, any action taken or
threatened by the IRS, the DOL or the PBGC with respect thereto;
32
(l) Upon request, or, in the event that such filing
reflects a significant change with respect to the matters covered
thereby, within three (3) Business Days after the filing thereof with
the PBGC, the DOL or the IRS, as applicable, copies of the following:
(i) each annual report (form 5500 series), including Schedule B
thereto, filed with the PBGC, the DOL or the IRS with respect to each
Plan, (ii) a copy of each funding waiver request filed with the PBGC,
the DOL or the IRS with respect to any Plan and all communications
received by Fleetwood or any ERISA Affiliate from the PBGC, the DOL or
the IRS with respect to such request, and (iii) a copy of each other
filing or notice filed with the PBGC, the DOL or the IRS, with respect
to each Plan by either Fleetwood or any ERISA Affiliate;
(m) Upon request, copies of each actuarial report for
any Plan or Multi-employer Plan and annual report for any
Multi-employer Plan; and within three (3) Business Days after receipt
thereof by Fleetwood or any ERISA Affiliate, copies of the following:
(i) any notices of the PBGC's intention to terminate a Plan or to have
a trustee appointed to administer such Plan; (ii) any favorable or
unfavorable determination letter from the IRS regarding the
qualification of a Plan under Section 401(a) of the Code; or (iii) any
notice from a Multi-employer Plan regarding the imposition of
withdrawal liability;
(n) Within three (3) Business Days after the
occurrence thereof: (i) any changes in the benefits of any existing
Plan which increase the annual costs of Fleetwood and its Subsidiaries
with respect thereto by an amount in excess of $1,000,000 or the
establishment of any new Plan or the commencement of contributions to
any Plan to which Fleetwood or any ERISA Affiliate was not previously
contributing; or (ii) any failure by Fleetwood or any ERISA Affiliate
to make a required installment or any other required payment under
Section 412 of the Code on or before the due date for such installment
or payment; or
(o) Within three (3) Business Days after Fleetwood or
any ERISA Affiliate knows or has reason to know that any of the
following events has or will occur: (i) a Multi-employer Plan has been
or will be terminated; (ii) the administrator or plan sponsor of a
Multi-employer Plan intends to terminate a Multi-employer Plan; or
(iii) the PBGC has instituted or will institute proceedings under
Section 4042 of ERISA to terminate a Multi-employer Plan.
Each notice given under this Section shall describe the subject matter thereof
in reasonable detail, and shall set forth the action that Fleetwood, its
Subsidiary, or any ERISA Affiliate, as applicable, has taken or proposes to take
with respect thereto.
ARTICLE 6
GENERAL WARRANTIES AND REPRESENTATIONS
Fleetwood and the Borrowers warrant and represent to the Agent
and the Lenders that except as hereafter disclosed to and accepted by the Agent
and the Majority Lenders in writing:
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6.1 AUTHORIZATION, VALIDITY, AND ENFORCEABILITY OF THIS AGREEMENT
AND THE LOAN DOCUMENTS. Each Loan Party has the power and authority to execute,
deliver and perform this Agreement and the other Loan Documents to which it is a
party, to incur the Obligations, and to grant to the Agent Liens upon and
security interests in the Collateral. Each Loan Party has taken all necessary
action (including obtaining approval of its stockholders if necessary) to
authorize its execution, delivery, and performance of this Agreement and the
other Loan Documents to which it is a party. This Agreement and the other Loan
Documents to which it is a party have been duly executed and delivered by each
Loan Party which is a party thereto, and constitute the legal, valid and binding
obligations of such Loan Party, enforceable against it in accordance with their
respective terms, subject to the effect of bankruptcy, insolvency, moratorium
and other laws affecting the rights of creditors generally and to the effect of
general principles of equity. Each Loan Party's execution, delivery, and
performance of this Agreement and the other Loan Documents to which it is a
party do not and will not conflict with, or constitute a violation or breach of,
or result in the imposition of any Lien upon the property of Fleetwood or any of
its Subsidiaries, by reason of the terms of (a) any material contract, mortgage,
lease, agreement, indenture, or instrument to which Fleetwood or any of its
Subsidiaries is a party or which is binding upon it, (b) any Requirement of Law
applicable to Fleetwood or any of its Subsidiaries, or (c) the certificate or
articles of incorporation or by-laws or the limited liability company or limited
partnership agreement (or other organizational documents) of Fleetwood or any of
its Subsidiaries.
6.2 VALIDITY AND PRIORITY OF SECURITY INTEREST. The provisions of
this Agreement, the Mortgages, and the other Loan Documents create legal and
valid Liens on all the Collateral in favor of the Agent, for the ratable benefit
of the Agent and the Revolving Credit Lenders or the Term Lenders, as the case
may be, and, when properly filed and, where applicable recorded, such Liens
constitute perfected and continuing Liens on all the Collateral, having priority
over all other Liens on the Collateral (except for Permitted Liens) securing all
the Obligations, and enforceable against the Loan Parties and all third parties.
The Liens (a) on the Collateral other than the Term Loan Collateral constitute
(i) first priority perfected Liens in favor of the Agent, for the ratable
benefit of the Agent and the Revolving Credit Lenders, and (ii) second priority
perfected Liens in favor of the Agent, for the ratable benefit of the Agent and
the Term Lenders, junior only to the Liens described in the foregoing clause (i)
and (b) on the Term Loan Collateral constitute (iii) first priority, perfected
Liens in favor of the Agent, for the ratable benefit of the Agent and the Term
Lenders, and (iv) second priority, perfected Liens in favor of the Agent, for
the ratable benefit of the Agent and the Revolving Credit Lenders, junior only
to the Liens described in the foregoing clause (iii), except in each case for
Permitted Liens.
6.3 ORGANIZATION AND QUALIFICATION. Each Loan Party (a) is duly
organized or incorporated and validly existing in good standing under the laws
of the state of its organization or incorporation, (b) is qualified to do
business and is in good standing in the jurisdictions set forth on SCHEDULE 6.3
which are the only jurisdictions in which qualification is material to the
conduct of its business and (c) has all requisite power and authority to conduct
its business and to own its property.
6.4 CORPORATE NAME; PRIOR TRANSACTIONS. Except as set forth on
SCHEDULE 6.4, no Loan Party has, during the past five (5) years, been known by
or used any other corporate or fictitious name, or been a party to any merger or
consolidation, or acquired all or substantially all
34
of the assets of any Person, or acquired any of its property outside of the
ordinary course of business.
6.5 SUBSIDIARIES AND AFFILIATES. SCHEDULE 6.5 is a correct and
complete list of the name and relationship to Fleetwood of each and all of its
Subsidiaries and, to the knowledge of Fleetwood and the Borrowers, their other
Affiliates. Each Subsidiary which is not a Loan Party is (a) duly incorporated
or organized and validly existing in good standing under the laws of its state
of incorporation or organization set forth on SCHEDULE 6.5, and (b) qualified to
do business and in good standing in each jurisdiction in which the failure to so
qualify or be in good standing would reasonably be expected to have a material
adverse effect on any such Subsidiary's business, operations, property, or
condition (financial or otherwise) and (c) has all requisite power and authority
to conduct its business and own its property.
6.6 FINANCIAL STATEMENTS AND PROJECTIONS.
(a) Fleetwood has delivered to the Agent and the
Lenders the audited balance sheet and related statements of income,
retained earnings, cash flows, and changes in stockholders equity for
Fleetwood and its consolidated Subsidiaries as of April 29, 2000, and
for the Fiscal Year then ended, accompanied by the report thereon of
its independent certified public accountants, Xxxxxx Xxxxxxxx.
Fleetwood has also delivered to the Agent and the Lenders the unaudited
balance sheet and related statements of income and cash flows for
Fleetwood and its consolidated Subsidiaries as of the Fiscal Quarter
ending January 28, 2001. Such financial statements are attached hereto
as EXHIBIT C. All such financial statements have been prepared in
accordance with GAAP and present accurately and fairly in all material
respects the financial position of Fleetwood and its consolidated
Subsidiaries as at the dates thereof and their results of operations
for the periods then ended, subject in the case of the unaudited
statements to normal year end audit adjustments and to the omission of
footnotes required by GAAP.
(b) The Latest Projections when submitted to the
Lenders as required herein represent the good faith estimate by the
Borrowers of the future financial performance of Fleetwood and its
consolidated Subsidiaries for the periods set forth therein. The Latest
Projections have been prepared on the basis of the assumptions set
forth therein, which the Borrowers believe are fair and reasonable in
light of current and reasonably foreseeable business conditions at the
time submitted to the Lenders.
(c) The pro forma balance sheet of Fleetwood and its
Subsidiaries as at April 29, 2001, attached hereto as EXHIBIT C,
presents fairly and accurately the financial condition of Fleetwood and
its Subsidiaries as at such date after giving effect to the
transactions contemplated by the Loan Documents as if such transactions
had occurred on such date and the Initial Funding Date had been such
date, and has been prepared in accordance with GAAP.
6.7 CAPITALIZATION. SCHEDULE 6.7 sets forth, as of the Closing
Date, the capitalization of Fleetwood and its Subsidiaries and all of the
authorized and issued Capital Stock of each such Person. All outstanding Capital
Stock has been validly issued, and is fully
35
paid and non-assessable. All of the Capital Stock of Subsidiaries is owned,
beneficially and of record, by the Person set forth on such SCHEDULE 6.7.
6.8 SOLVENCY. Each Loan Party is, and upon the incurrence of any
Obligations by such Loan Party will be, Solvent.
6.9 DEBT. After giving effect to the making of the Term Loans and
the Revolving Loans to be made on the Initial Funding Date, Fleetwood and its
Subsidiaries have no Debt, except (a) the Obligations, (b) Debt described on
SCHEDULE 6.9, and (c) other Debt in an aggregate amount of not more than
$2,000,000.
6.10 DISTRIBUTIONS. Since June 12, 2001, no Distribution has been
declared, paid, or made upon or in respect of any Capital Stock or other
securities of Fleetwood or any of its Subsidiaries, except as permitted by
SECTION 7.10.
6.11 REAL ESTATE; LEASES. SCHEDULE 6.11 sets forth, as of the
Closing Date, a correct and complete list of all Real Estate owned in fee simple
by Fleetwood or any of its Subsidiaries, all leases and subleases of real or
personal property held by Fleetwood or any of its Subsidiaries as lessee or
sublessee (other than leases of personal property as to which Fleetwood or any
of its Subsidiaries is lessee or sublessee for which the value of such personal
property covered by such lease in the aggregate is less than $250,000), and all
leases and subleases of real or personal property held by Fleetwood or any of
its Subsidiaries as lessor, or sublessor. Each of such leases and subleases is
valid and enforceable in accordance with its terms and is in full force and
effect, and to the knowledge of Fleetwood and the Borrowers no material default
by any party to any such lease or sublease exists. Fleetwood and its
Subsidiaries have good and marketable title in fee simple to the Real Estate
identified on SCHEDULE 6.11 as owned by Fleetwood or any of its Subsidiaries, or
valid leasehold interests in all Real Estate designated therein as "leased" by
Fleetwood or any of its Subsidiaries and Fleetwood and its Subsidiaries have
good, indefeasible, and merchantable title to all of its other property
reflected on the most recent Financial Statements delivered to the Agent and the
Lenders, except as disposed of in the ordinary course of business or as
otherwise permitted by SECTION 7.9 since the date thereof, free of all Liens
except Permitted Liens.
6.12 PROPRIETARY RIGHTS. SCHEDULE 6.12 sets forth a correct and
complete list of all of the Proprietary Rights of the Loan Parties. As of the
Closing Date, none of such Proprietary Rights is subject to any licensing
agreement or similar arrangement except as set forth on SCHEDULE 6.12. To the
knowledge of Fleetwood and the Borrowers, none of the Proprietary Rights
infringes on or conflicts with any other Person's property, and, to the
knowledge of Fleetwood and the Borrowers no other Person's property infringes on
or conflicts with the Proprietary Rights. The Proprietary Rights described on
SCHEDULE 6.12 constitute all of the property of such type material to the
current and anticipated future conduct of the business of the Loan Parties.
6.13 TRADE NAMES. All trade names or styles under which any Loan
Party will sell Inventory or create Accounts, or to which instruments in payment
of Accounts may be made payable, are listed on SCHEDULE 6.13.
36
6.14 LITIGATION. Except as set forth on SCHEDULE 6.14, there is no
pending, or to the best knowledge of Fleetwood and the Borrowers threatened,
action, suit, proceeding, or counterclaim by any Person, or to the best
knowledge of Fleetwood and the Borrowers, investigation by any Governmental
Authority, or to the best knowledge of Fleetwood and the Borrowers, any basis
for any of the foregoing, which could reasonably be expected to have a Material
Adverse Effect.
6.15 LABOR DISPUTES. Except as set forth on SCHEDULE 6.15, as of
the Closing Date (a) there is no collective bargaining agreement or other labor
contract covering employees of Fleetwood or any of its Subsidiaries, (b) no such
collective bargaining agreement or other labor contract is scheduled to expire
during the term of this Agreement, (c) no union or other labor organization is
seeking to organize, or to be recognized as, a collective bargaining unit of
employees of Fleetwood or any of its Subsidiaries or for any similar purpose,
and (d) there is no pending or (to the best knowledge of the Borrowers)
threatened, strike, work stoppage, material unfair labor practice claim, or
other material labor dispute against or affecting Fleetwood or its Subsidiaries
or their employees.
6.16 ENVIRONMENTAL LAWS. Except as otherwise disclosed on SCHEDULE
6.16:
(a) Fleetwood and its Subsidiaries have complied in
all material respects with all Environmental Laws and neither Fleetwood
nor any Subsidiary nor any of its presently owned real property or
presently conducted operations, nor its previously owned real property
or prior operations, is subject to any enforcement order from or
liability agreement with any Governmental Authority or private Person
respecting (i) compliance with any Environmental Law or (ii) any
potential liabilities and costs or remedial action arising from the
Release or threatened Release of a Contaminant.
(b) Fleetwood and its Subsidiaries have obtained all
permits necessary for their current operations under Environmental
Laws, and all such permits are in good standing and Fleetwood and its
Subsidiaries are in compliance with all material terms and conditions
of such permits.
(c) Neither Fleetwood nor any of its Subsidiaries,
nor, to the best knowledge of Fleetwood and the Borrowers, any of its
predecessors in interest, has in violation of applicable law stored,
treated or disposed of any hazardous waste, except for any such
violation as could not reasonably be expected to have a Material
Adverse Effect.
(d) Neither Fleetwood nor any of its Subsidiaries has
received any summons, complaint, order or similar written notice
indicating that it is not currently in compliance with, or that any
Governmental Authority is investigating its compliance with, any
Environmental Laws or that it is or may be liable to any other Person
as a result of a Release or threatened Release of a Contaminant.
(e) To the best knowledge of Fleetwood and the
Borrowers, none of the present or past operations of Fleetwood and its
Subsidiaries is the subject of any
37
investigation by any Governmental Authority evaluating whether any
remedial action is needed to respond to a Release or threatened
Release of a Contaminant.
(f) There is not now, nor to the best knowledge of
Fleetwood and the Borrowers has there ever been on or in the Real
Estate:
(i) any underground storage tanks or other
than those maintained and/or closed in compliance in all
material respects with applicable laws or surface
impoundments,
(ii) any asbestos-containing material that
is friable, except such as has been removed in compliance in
all material respects with Environmental Laws, or
(iii) any polychlorinated biphenyls (PCBs)
used in hydraulic oils, electrical transformers or other
equipment, other than those maintained in compliance in all
material respects with Environmental Laws.
(g) Neither Fleetwood nor any of its Subsidiaries has
filed any notice under any requirement of Environmental Law reporting a
spill or accidental and unpermitted Release or discharge of a
Contaminant into the environment.
(h) Neither Fleetwood nor any of its Subsidiaries has
entered into any negotiations or settlement agreements with any Person
(including the prior owner of its property) imposing material
obligations or liabilities on Fleetwood or any of its Subsidiaries with
respect to any remedial action in response to the Release of a
Contaminant or environmentally related claim.
(i) None of the products currently manufactured,
distributed or sold by Fleetwood or any of its Subsidiaries contain
asbestos containing material.
(j) No Environmental Lien has attached to the Real
Estate.
6.17 NO VIOLATION OF LAW. Neither Fleetwood nor any of its
Subsidiaries is in violation of any law, statute, regulation, ordinance,
judgment, order, or decree applicable to it which violation could reasonably be
expected to have a Material Adverse Effect.
6.18 NO DEFAULT. Neither Fleetwood nor any of its Subsidiaries is
in default with respect to any note, indenture, loan agreement, mortgage, lease,
deed, or other agreement to which Fleetwood or such Subsidiary is a party or by
which it is bound, which default could reasonably be expected to have a Material
Adverse Effect.
6.19 ERISA COMPLIANCE. Except as specifically disclosed in SCHEDULE
6.19:
(a) Each Plan is in compliance in all material
respects with the applicable provisions of ERISA, the Code and other
federal or state law. Each Plan which is intended to qualify under
Section 401(a) of the Code has received a favorable determination
letter from the IRS and to the best knowledge of Fleetwood and the
38
Borrowers, nothing has occurred which would cause the loss of such
qualification. Fleetwood and each ERISA Affiliate has made all required
contributions to any Plan subject to Section 412 of the Code, and no
application for a funding waiver or an extension of any amortization
period pursuant to Section 412 of the Code has been made with respect
to any Plan.
(b) There are no pending or, to the best knowledge of
Fleetwood and Borrowers, threatened claims, actions or lawsuits, or
action by any Governmental Authority, with respect to any Plan which
has resulted or could reasonably be expected to result in a Material
Adverse Effect. There has been no prohibited transaction or violation
of the fiduciary responsibility rules with respect to any Plan which
has resulted or could reasonably be expected to result in a Material
Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably
expected to occur; (ii) no Pension Plan has any Unfunded Pension
Liability; (iii) neither Fleetwood nor any ERISA Affiliate has
incurred, or reasonably expects to incur, any liability under Title IV
of ERISA with respect to any Pension Plan (other than premiums due and
not delinquent under Section 4007 of ERISA); (iv) neither Fleetwood nor
any ERISA Affiliate has incurred, or reasonably expects to incur, any
liability (and no event has occurred which, with the giving of notice
under Section 4219 of ERISA, would result in such liability) under
Section 4201 or 4243 of ERISA with respect to a Multi-employer Plan;
and (v) neither Fleetwood nor any ERISA Affiliate has engaged in a
transaction that could be subject to Section 4069 or 4212(c) of ERISA.
6.20 TAXES. Fleetwood and its Subsidiaries have filed all federal
and other tax returns and reports required to be filed, and have paid all
federal and other taxes, assessments, fees and other governmental charges levied
or imposed upon them or their properties, income or assets otherwise due and
payable unless such unpaid taxes and assessments would constitute a Permitted
Lien.
6.21 REGULATED ENTITIES. None of Fleetwood, any Person controlling
Fleetwood, or any Subsidiary, is an "Investment Company" within the meaning of
the Investment Company Act of 1940. No Loan Party is subject to regulation under
the Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act, any state public utilities code or law, or any other
federal or state statute or regulation limiting its ability to incur
indebtedness.
6.22 USE OF PROCEEDS; MARGIN REGULATIONS. The proceeds of the Loans
are to be used solely for the repayment of Debt, working capital and other
general corporate purposes. Neither Fleetwood nor any Subsidiary is engaged in
the business of purchasing or selling Margin Stock or extending credit for the
purpose of purchasing or carrying Margin Stock.
6.23 COPYRIGHTS, PATENTS, TRADEMARKS AND LICENSES, ETC. Each Loan
Party owns or is licensed or otherwise has the right to use all of the patents,
trademarks, service marks, trade names, copyrights, contractual franchises,
licenses, rights of way, authorizations and other rights that are reasonably
necessary for the operation of its businesses, without known conflict with the
rights of any other Person. To the knowledge of Fleetwood and the Borrowers, no
slogan or
39
other advertising device, product, process, method, substance, part or other
material now employed, or now contemplated to be employed, by Fleetwood or any
Subsidiary infringes upon any rights held by any other Person. No claim or
litigation regarding any of the foregoing is pending or, to the knowledge of
Fleetwood and the Borrowers, threatened, and to the knowledge of Fleetwood and
the Borrowers no patent, invention, device, application, principle or any
statute, law, rule, regulation, standard or code is pending or, to the knowledge
of Fleetwood and the Borrowers, proposed, which, in either case, could
reasonably be expected to have a Material Adverse Effect.
6.24 NO MATERIAL ADVERSE CHANGE. Except for a default on the
Prudential Loan Documents (which Prudential Loan will be paid with the proceeds
of the Loans made on the Initial Funding Date) and financial performance of
Fleetwood and its Subsidiaries as disclosed in public disclosures, copies of
which have been provided to the Lenders prior to the Closing Date, no Material
Adverse Effect has occurred since January 28, 2001.
6.25 FULL DISCLOSURE. None of the representations or warranties
made by Fleetwood or any Subsidiary in the Loan Documents as of the date such
representations and warranties are made or deemed made, and none of the
statements contained in any exhibit, report, statement or certificate furnished
by or on behalf of Fleetwood or any Subsidiary in connection with the Loan
Documents (including the offering and disclosure materials delivered by or on
behalf of Fleetwood or any of its Subsidiaries to the Lenders prior to the
Closing Date), contains any untrue statement of a material fact or omits any
material fact required to be stated therein or necessary to make the statements
made therein, in light of the circumstances under which they are made, not
misleading as of the time when made or delivered.
6.26 MATERIAL AGREEMENTS. SCHEDULE 6.26 hereto sets forth as of the
Closing Date all Material Contracts existing as of the date hereof.
6.27 BANK ACCOUNTS. SCHEDULE 6.27 contains as of the Closing Date a
complete and accurate list of all bank accounts maintained by any Loan Party
with any bank or other financial institution.
6.28 GOVERNMENTAL AUTHORIZATION. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority or other Person is necessary or required in connection
with the execution, delivery or performance by, or enforcement against,
Fleetwood or any of its Subsidiaries of this Agreement or any other Loan
Document.
6.29 SENIOR DEBT. All Obligations of Fleetwood under the Loan
Documents are "Senior Debt" under the Subordinated Debentures and Fleetwood's
Guaranty of the Trust Securities.
ARTICLE 7
AFFIRMATIVE AND NEGATIVE COVENANTS
Fleetwood and the Borrowers covenant to the Agent and each
Lender that so long as any of the Obligations remain outstanding or this
Agreement is in effect:
40
7.1 TAXES AND OTHER OBLIGATIONS. Fleetwood shall, and shall cause
each of its Subsidiaries to, (a) file when due all tax returns and other reports
which it is required to file; (b) pay, or provide for the payment, when due
(subject to permitted extensions), of all taxes, fees, assessments and other
governmental charges against it or upon its property, income and franchises,
make all required withholding and other tax deposits, and establish adequate
reserves for the payment of all such items, and provide to the Agent and the
Lenders, upon request, satisfactory evidence of its timely compliance with the
foregoing; and (c) pay when due all Debt owed by it and all claims of
materialmen, mechanics, carriers, warehousemen, landlords, processors and other
like Persons, and all other indebtedness owed by it and perform and discharge in
a timely manner all other obligations undertaken by it; PROVIDED, HOWEVER, so
long as Fleetwood has notified the Agent in writing, neither Fleetwood nor any
of its Subsidiaries need pay any tax, fee, assessment, or governmental charge
(i) it is contesting in good faith by appropriate proceedings diligently
pursued, (ii) as to which Fleetwood or its Subsidiary, as the case may be, has
established proper reserves as required under GAAP, and (iii) the nonpayment of
which does not result in the imposition of a Lien (other than a Permitted Lien).
7.2 LEGAL EXISTENCE AND GOOD STANDING. Fleetwood shall, and shall
cause each other Loan Party to, maintain its legal existence (except as
permitted by SECTION 7.9) and its qualification and good standing in all
jurisdictions in which the failure to maintain such existence and qualification
or good standing would reasonably be expected to have a Material Adverse Effect.
7.3 COMPLIANCE WITH LAW AND AGREEMENTS; MAINTENANCE OF LICENSES.
Fleetwood shall comply, and shall cause each Subsidiary to comply, in all
material respects with all Requirements of Law of any Governmental Authority
having jurisdiction over it or its business (including the Federal Fair Labor
Standards Act and all Environmental Laws). Fleetwood shall, and shall cause each
of its Subsidiaries to, obtain and maintain all licenses, permits, franchises,
and governmental authorizations necessary to own its property and to conduct its
business as conducted on the Closing Date, except where the failure to obtain or
maintain such licenses, franchises and governmental authorizations could not
reasonably be expected to have a Material Adverse Effect. Fleetwood shall not,
and shall not permit any of its Subsidiaries to, modify, amend or alter its
certificate or articles of incorporation, or its limited liability company
operating agreement, limited partnership agreement or other organizational
documents, as applicable, other than in a manner which does not adversely affect
the rights of the Lenders or the Agent.
7.4 MAINTENANCE OF PROPERTY; INSPECTION OF PROPERTY.
(a) Fleetwood shall, and shall cause each of its
Subsidiaries to, maintain all of its property necessary and useful in
the conduct of its business, in good operating condition and repair,
ordinary wear and tear excepted.
(b) Fleetwood shall, and shall cause each of the Loan
Parties to, permit representatives and independent contractors of the
Agent (at the expense of the Borrowers and not to exceed four (4) times
per year unless an Event of Default has occurred and is continuing) to
visit and inspect any of its properties, to examine its corporate,
financial and operating records, and make copies thereof or abstracts
therefrom
41
and to discuss its affairs, finances and accounts with its directors,
officers and independent public accountants, at such reasonable times
during normal business hours and as soon as may be reasonably desired,
upon reasonable advance; PROVIDED, HOWEVER, that representatives and
independent contractors of each Lender may, at such Lender's own
expense, accompany the Agent's representatives and independent
contractors on such visits and inspections. Notwithstanding the
foregoing, when an Event of Default exists, the Agent or any Lender may
do any of the foregoing at the expense of the Borrowers at any time
during normal business hours and without advance notice.
7.5 INSURANCE.
(a) Fleetwood shall maintain, and shall cause each of
its Subsidiaries to maintain, with financially sound and reputable
insurers having a rating of at least A+ or better by Best Rating Guide,
insurance against loss or damage by fire with extended coverage; theft,
burglary, pilferage and loss in transit; public liability and third
party property damage; larceny, embezzlement or other criminal
liability; business interruption; public liability and third party
property damage; and such other hazards or of such other types as is
customary for Persons engaged in the same or similar business, as the
Agent, in its commercially reasonable discretion, or acting at the
commercially reasonable direction of the Majority Lenders, shall
specify, in amounts, and under policies acceptable to the Agent and the
Majority Lenders. Without limiting the foregoing, in the event that any
improved Real Estate covered by the Mortgages is determined to be
located within an area that has been identified by the Director of the
Federal Emergency Management Agency as a Special Flood Hazard Area
("SFHA"), the applicable Loan Party shall purchase and maintain flood
insurance on the improved Real Estate and any Equipment and Inventory
located on such Real Estate to the extent required by applicable law.
The amount of said flood insurance will be reasonably determined by the
Agent, and shall, at a minimum, comply with applicable federal
regulations as required by the Flood Disaster Protection Act of 1973,
as amended. Except as otherwise approved by the Agent, the Loan Parties
shall also maintain flood insurance for all Inventory and Equipment
which is, at any time, located in a SFHA. Notwithstanding anything to
the contrary in this SECTION 7.5(a), no flood insurance shall be
required for the Real Estate identified on SCHEDULE 7.5(a).
(b) Fleetwood shall cause the Agent, for the ratable
benefit of the Agent and the Lenders, to be named as secured party or
mortgagee and sole loss payee or additional insured, in a manner
acceptable to the Agent. Each policy of insurance shall contain a
clause or endorsement requiring the insurer to give not less than
thirty (30) days' prior written notice to the Agent in the event of
cancellation of the policy for any reason whatsoever and a clause or
endorsement stating that the interest of the Agent shall not be
impaired or invalidated by any act or neglect of Fleetwood or any of
its Subsidiaries or the owner of any Real Estate for purposes more
hazardous than are permitted by such policy. All premiums for such
insurance shall be paid by Fleetwood and its Subsidiaries when due, and
certificates of insurance and, if requested by the Agent or any Lender,
photocopies of the policies, shall be delivered to the Agent, in each
case in sufficient quantity for distribution by the Agent to each of
the Lenders. If Fleetwood and its Subsidiaries fail to procure such
insurance or to pay the premiums therefor when due,
42
the Agent may, and at the direction of the Majority Lenders shall, do
so from the proceeds of Revolving Loans.
7.6 INSURANCE AND CONDEMNATION PROCEEDS. The Borrowers shall
promptly notify the Agent and the Lenders of any material loss, damage, or
destruction to the Collateral, whether or not covered by insurance. The Agent is
hereby authorized to collect all insurance and condemnation proceeds in respect
of Collateral directly and to apply or remit them as follows:
(a) With respect to insurance and condemnation
proceeds relating to Collateral other than Fixed Assets, after
deducting from such proceeds the reasonable expenses, if any, incurred
by the Agent in the collection or handling thereof, the Agent shall
apply such proceeds to the Revolving Loans.
(b) With respect to insurance and condemnation
proceeds relating to Collateral consisting of Fixed Assets, the Agent
shall permit or require the Loan Parties to use such proceeds, or any
part thereof, to replace, repair, restore or rebuild the relevant Fixed
Assets in a diligent and expeditious manner with materials and
workmanship of substantially the same quality as existed before the
loss, damage or destruction so long as (1) no Default or Event of
Default has occurred and is continuing and (2) the Loan Parties first
(i) provide the Agent and the Majority Lenders with plans and
specifications for any such repair or restoration which shall be
reasonably satisfactory to the Majority Lenders (such satisfaction not
to be unreasonably withheld or delayed) and (ii) demonstrate to the
reasonable satisfaction of the Majority Lenders (such satisfaction not
to be unreasonably withheld or delayed) that the funds available to it
will be sufficient to complete such project in the manner provided
therein. In all other circumstances, the Agent shall apply such
insurance and condemnation proceeds, (a) to the Term Loans if such
Fixed Assets are Term Loan Collateral or (b) to the Revolving Loans
(but without reduction of the Revolving Loan Commitments).
Notwithstanding the foregoing, no insurance or condemnation proceeds
relating to the Term Loan Collateral may be used to replace, repair,
restore or rebuild without the prior written consent of Required Term
Lenders (such consent not to be unreasonably withheld or delayed).
7.7 ENVIRONMENTAL LAWS.
(a) Fleetwood shall, and shall cause each of its
Subsidiaries to, conduct its business in compliance in all material
respects with all Environmental Laws applicable to it, including those
relating to the generation, handling, use, storage, and disposal of any
Contaminant. Fleetwood shall, and shall cause each of its Subsidiaries
to, take prompt and appropriate action to respond to any non-compliance
with Environmental Laws and shall regularly report to the Agent on such
response.
(b) Without limiting the generality of the foregoing,
Fleetwood shall submit to the Agent and the Lenders annually,
commencing on the first Anniversary Date, and on each Anniversary Date
thereafter, an update of the status of each environmental compliance or
liability issue. The Agent or any Lender may request copies of
technical reports prepared by Fleetwood or any of its Subsidiaries and
its communications with any Governmental Authority to determine whether
Fleetwood or
43
any of its Subsidiaries is proceeding reasonably to correct, cure or
contest in good faith any alleged non-compliance or environmental
liability. Fleetwood shall, at the Agent's or the Majority Lenders'
request and at the Borrowers' expense, (i) retain an independent
environmental engineer acceptable to the Agent to evaluate the site,
including tests if appropriate, where the non-compliance or alleged
non-compliance with Environmental Laws has occurred and prepare and
deliver to the Agent, in sufficient quantity for distribution by the
Agent to the Lenders, a report setting forth the results of such
evaluation, a proposed plan for responding to any environmental
problems described therein, and an estimate of the costs thereof, and
(ii) provide to the Agent and the Lenders a supplemental report of
such engineer whenever the scope of the environmental problems, or the
response thereto or the estimated costs thereof, shall increase in any
material respect.
(c) The Agent and its representatives will have the
right at any reasonable time to enter and visit the Real Estate and any
other place where any property of any Loan Party is located for the
purposes of observing the Real Estate, taking and removing soil or
groundwater samples, and conducting tests on any part of the Real
Estate. The Agent is under no duty, however, to visit or observe the
Real Estate or to conduct tests, and any such acts by the Agent will be
solely for the purposes of protecting the Agent's Liens and preserving
the Agent and the Lenders' rights under the Loan Documents. No site
visit, observation or testing by the Agent and the Lenders will result
in a waiver of any default or impose any liability on the Agent or the
Lenders. In no event will any site visit, observation or testing by the
Agent be a representation that hazardous substances are or are not
present in, on or under the Real Estate, or that there has been or will
be compliance with any Environmental Law. Neither Fleetwood nor any of
its Subsidiaries nor any other party is entitled to rely on any site
visit, observation or testing by the Agent. The Agent and the Lenders
owe no duty of care to protect Fleetwood or any of its Subsidiaries or
any other party against, or to inform Fleetwood or any of its
Subsidiaries or any other party of, any hazardous substances or any
other adverse condition affecting the Real Estate. The Agent may in its
discretion disclose to Fleetwood or to any other party if so required
by law any report or findings made as a result of, or in connection
with, any site visit, observation or testing by the Agent. Fleetwood
and the Borrowers understand and agree that the Agent makes no warranty
or representation to any Loan Party or any other party regarding the
truth, accuracy or completeness of any such report or findings that may
be disclosed. Fleetwood and the Borrowers also understands that
depending on the results of any site visit, observation or testing by
the Agent and disclosed to Fleetwood, Fleetwood or its Subsidiary may
have a legal obligation to notify one or more environmental agencies of
the results, that such reporting requirements are site-specific, and
are to be evaluated by or its Subsidiary without advice or assistance
from the Agent. In each instance, the Agent will give Fleetwood
reasonable notice before entering the Real Estate or any other place
the Agent is permitted to enter under this SECTION 7.7(c). The Agent
will make reasonable efforts to avoid interfering with the use of the
Real Estate or any other property in exercising any rights provided
hereunder.
7.8 COMPLIANCE WITH ERISA. Fleetwood shall, and shall cause each of
its ERISA Affiliates to: (a) maintain each Plan in compliance in all material
respects with the
44
applicable provisions of ERISA, the Code and other federal or state law; (b)
cause each Plan which is qualified under Section 401(a) of the Code to maintain
such qualification; (c) make all required contributions to any Plan subject to
Section 412 of the Code; (d) not engage in a prohibited transaction or violation
of the fiduciary responsibility rules which prohibited transaction or violation
of fiduciary responsibility rules, together with all other prohibited
transactions and violations of fiduciary responsibility rules, has resulted or
could reasonably be expected to result in a Material Adverse Effect; and (e) not
engage in a transaction that could be subject to Section 4069 or 4212(c) of
ERISA.
7.9 MERGERS, CONSOLIDATIONS OR SALES. Neither Fleetwood nor any of
its Subsidiaries shall enter into any transaction of merger, reorganization, or
consolidation, or transfer, sell, assign, lease, or otherwise dispose of all or
any part of its property, or wind up, liquidate or dissolve, or agree to do any
of the foregoing, except
(a) sales of Inventory in the ordinary course of its
business;
(b) sales or other dispositions of Equipment in the ordinary
course of business that are obsolete or no longer useable by the
applicable Person in its business with an orderly liquidation value not
to exceed $1,000,000 in any Fiscal Year;
(c) on no less than 10 days' prior notice to the Agent, any
FMC Borrower may merge with and into any other FMC Borrower and any FRC
Borrower may merge with and into any other FRC Borrower, PROVIDED,
HOWEVER, that all Liens of the Agent shall remain unimpaired, and the
surviving Borrower shall execute and deliver to the Agent such
documents and agreements as the Agent may reasonably request to
evidence the continued liability for the Obligations of the
disappearing Borrower and the Liens securing such Obligations;
(d) sale of the Term Loan Collateral for at least fair market
value, PROVIDED, HOWEVER, that (x) the sales price for (i) any Term
Loan Collateral specifically identified on SCHEDULE 1.4 must be greater
than the amount for such Term Loan Collateral set forth in the column
labeled "Minimum Price" on such SCHEDULE 1.4, and (ii) any other Term
Loan Collateral consisting of Fixed Assets must be greater than sixty
percent (60%) of the appraised orderly liquidation value for such Term
Loan Collateral; and (y) all proceeds shall be in cash and shall be
applied to repay the Loans as required by SECTION 3.4(c);
(e) sale for fair market value of the assets described on
SCHEDULE 7.9 as "Assets held for Sale" if (1) at least 50% of the
proceeds are received in cash and applied to the Obligations in
accordance with SECTION 3.4 and any non-cash consideration received by
any Loan Party shall constitute additional Collateral hereunder, in
which the Agent shall have a duly perfected Lien; and (2) after giving
effect to such disposition, no Default or Event of Default exists;
(f) an FRC Borrower may transfer Inventory at the locations
set forth on SCHEDULE 7.9 as "ADI Locations" to ADI in accordance with
the ADI Agreement if
45
FRC receives payment for such assets in accordance with the ADI
Agreement and applies such proceeds to the Obligations of FRC in
accordance with SECTION 3.4;
(g) any Excluded Subsidiary may be wound up and dissolved;
and
(h) sale/leaseback transactions with respect to Real Estate
and Equipment permitted by SECTION 7.19.
Within 120 days following each such Equipment sale or disposition involving Term
Loan Collateral under clause (d), the applicable FMC Borrower shall either (i)
reinvest the proceeds of that sale or disposition in other Equipment (which
shall become Term Loan Collateral), and pending such reinvestment shall apply
the proceeds to the Revolving Loans or (ii) FMC shall apply such proceeds to the
Term Loans in accordance with SECTION 3.4. All Equipment purchased under this
paragraph shall be free and clear of all Liens except Liens under clauses (a)
and (b) of the definition of Permitted Liens.
7.10 DISTRIBUTIONS; CAPITAL CHANGE; RESTRICTED INVESTMENTS. Neither
Fleetwood nor any of its Subsidiaries shall
(a) directly or indirectly declare or make, or incur any
liability to make, any Distribution, EXCEPT (i) Distributions to
Holdings by any of its Subsidiaries, Distributions to Retail by any of
its Subsidiaries, or Distributions by any FMC Borrower or FRC Borrower
to another FMC Borrower or FRC Borrower which is its parent; (ii) so
long as no Default or Event of Default has occurred and is continuing
on the date of the payment thereof, both before and after giving effect
to such payment, the Borrowers may make Distributions to Fleetwood (or
make intercompany loans permitted to be paid pursuant to SECTION
7.13(h) or retain management fees to the extent permitted to be paid
pursuant to SECTION 7.26) to pay, and Fleetwood may pay, a cash
Dividend on the common stock of Fleetwood in aggregate amounts not in
excess of $.04 per share of its outstanding common stock in any Fiscal
Quarter; (iii) so long as no Default or Event of Default has occurred
and is continuing on the date of the payment thereof, both before and
after giving effect to such payment and Fleetwood has not given notice
of an election to defer payments in accordance with the Subordinated
Debentures (unless such notice has been rescinded), the Borrowers may
make Distributions to Fleetwood (or make intercompany loans permitted
to be paid pursuant to SECTION 7.13(h) or retain management fees to the
extent permitted pursuant to SECTION 7.26) to make, and Fleetwood may
make, payments of interest then due without acceleration on the
Subordinated Debentures to Fleetwood Trust and Fleetwood Trust may pay
Dividends then due on the Trust Securities; (iv) Subsidiaries of
Fleetwood may make Distributions to Fleetwood (or make intercompany
loans permitted to be paid pursuant to SECTION 7.13(h) or retain
management fees to the extent permitted pursuant to SECTION 7.26) to
pay when due (x) consolidated taxes, employee related expenses
(including salaries, wages, bonuses, fringe benefits, health benefits,
workers compensation insurance premiums and claims, retirement plan
contributions and related expenses (including payments with respect to
the COLI Policies), and manager's in training reimbursements),
marketing and product development, capital expenditures and products'
liability payments, all in amounts and in a manner consistent with past
practices and (y) an
46
additional aggregate amount in any Fiscal Year not to exceed $6,000,000
to fund other general corporate overhead and operating expenses; (v)
Subsidiaries of Fleetwood may pay management fees to Fleetwood
consistent with those agreements in existence on the Closing Date; (vi)
on the Initial Funding Date, the Borrowers may make Distributions to
Fleetwood in an amount not to exceed $71,200,000 to be applied by
Fleetwood to pay obligations of Fleetwood owed to The Prudential
Insurance Company of America and Pruco Life Insurance Company
(collectively, "PRUDENTIAL") pursuant to the loan documents with
Prudential (the "PRUDENTIAL LOAN DOCUMENTS"), and (vii) Fleetwood Trust
may acquire the Trust Securities in an exchange to the extent permitted
by SECTION 7.29;
(b) make any change in its capital structure which
could reasonably be expected to have a Material Adverse Effect; or
(c) make any Restricted Investment other than Hedge
Agreements with a Lender, EXCEPT THAT (i) Fleetwood may make capital
contributions to Holdings or Retail; (ii) any FMC Borrower may make
contributions, loans or advances to any other FMC Borrower and any FRC
Borrower may make contributions, loans or advances to any other FRC
Borrower; (iii) any Borrower may make loans or advances to Fleetwood or
any Subsidiary only to the extent permitted by SECTION 7.13; (iv) the
FMC Borrowers may make loans or advances to the FRC Borrowers and the
FRC Borrowers may make loans or advances to the FMC Borrowers; PROVIDED
that the aggregate amount of all such loans and advances during the
term of this Agreement does not exceed $10,000,000; (v) Retail may make
advances to the Excluded Retail Subsidiaries for operating expenses
that such Excluded Subsidiaries have an obligation to reimburse;
PROVIDED that the aggregate amount of all such advances outstanding at
any time does not exceed $1,000,000; (vi) any Excluded Subsidiary may
make contributions, loans or advances to any other Excluded Subsidiary;
(vii) Fleetwood may make advances to the Excluded Subsidiaries for
operating expenses that such Excluded Subsidiaries have an obligation
to reimburse; PROVIDED that the aggregate amount of all such advances
outstanding at any time does not exceed $1,000,000; (viii) Fleetwood
may make capital contributions, loans or advances to the Excluded
Subsidiaries in an aggregate amount not to exceed $4,000,000 during the
term of this Agreement; and (ix) Fleetwood may make additional capital
contributions, loans or advances to the Excluded Subsidiaries in excess
of those permitted under clause (viii) hereof in an aggregate amount
not to exceed (A) $6,000,000 plus (B) the net amount of New Capital
Proceeds received by Fleetwood after the Closing Date; PROVIDED (x)
that no Default or Event of Default has occurred and is continuing on
the date of the making of such capital contribution, loan or advance,
both before and after giving effect to such capital contribution, loan
or advance and (y) the amount of the average of the Liquidity for each
of the most recent three calendar months minus the amount of such
capital contribution, loan or advance is at least $80,000,000.
7.11 TRANSACTIONS AFFECTING COLLATERAL OR OBLIGATIONS. Neither
Fleetwood nor any of its Subsidiaries shall enter into any transaction which
would be reasonably expected to have a Material Adverse Effect.
7.12 GUARANTIES. Neither Fleetwood nor any of its Subsidiaries
shall make, issue, or become liable on any Guaranty, EXCEPT (a) Guaranties of
the Obligations in favor of the
47
Agent; (b) Repurchase Obligations of Fleetwood incurred in the ordinary course
of business consistent with past practices and customary in the industry; (c)
Guaranties existing on the date hereof and described on SCHEDULE 7.12; (d)
unsecured Guaranties by Fleetwood and FRC of the obligations of the Excluded
Retail Subsidiaries to the Floor Plan Lenders on terms and conditions
satisfactory to Majority Lenders; (e) Fleetwood's unsecured Guaranty of the
Trust Securities; (f) Letters of Credit issued for the account of a Borrower to
support obligations of Fleetwood and its Subsidiaries for worker's compensation
and similar claims and insurance liabilities; and (g) other Guaranties in an
aggregate amount not to exceed $1,000,000 at any time in effect.
7.13 DEBT. Neither Fleetwood nor any of its Subsidiaries shall
incur or maintain any Debt, OTHER THAN:
(a) the Obligations;
(b) the Subordinated Debt;
(c) Debt existing on the Closing Date described on
SCHEDULE 6.9 which is not to be repaid with the proceeds of the Loans
made on the Initial Funding Date;
(d) Capital Leases of Equipment and purchase money
secured Debt incurred to purchase Equipment PROVIDED that
(i) Liens securing the same attach only to
the Equipment acquired by the incurrence of such Debt and
proceeds thereof, and
(ii) the aggregate amount of such Debt
(including Capital Leases) outstanding does not exceed
$20,000,000 at any time;
(e) Capital Leases of Equipment or Real Property
entered into in connection with sale\leaseback transactions permitted
pursuant to SECTION 7.19 PROVIDED that Liens securing the same attach
only to the Equipment or Real Property subject to the applicable
Capital Lease;
(f) Debt evidencing a refunding, renewal or extension
of the Debt described on SCHEDULE 6.9; PROVIDED that
(i) the principal amount thereof is not
increased,
(ii) the Liens, if any, securing such
refunded, renewed or extended Debt do not attach to any assets
in addition to those assets, if any, securing the Debt to be
refunded, renewed or extended,
(iii) no Person that is not an obligor or
guarantor of such Debt as of the Closing Date shall become an
obligor or guarantor thereof, and
48
(iv) the terms of such refunding, renewal or
extension are no less favorable to Fleetwood, its Subsidiary,
the Agent or the Lenders than the original Debt;
(g) Debt of any FMC Borrower to another FMC Borrower
or of a FRC Borrower to another FRC Borrower evidenced by a master
intercompany note pledged to the Agent;
(h) Debt of Fleetwood to any Borrower PROVIDED, THAT
(i) on the date of the advance of the proceeds of such Debt, such
Borrower would be permitted to make a Distribution pursuant to SECTION
7.10(a)(ii), (iii), OR (iv); and (ii) such Debt is evidenced by a
promissory note pledged to the Agent which note provides that the
obligations of Fleetwood thereunder are "Senior Debt" within the
meaning of the Subordinated Debentures and Fleetwood's Guaranty of the
Trust Securities;
(i) Debt of any Excluded Subsidiary to Fleetwood;
PROVIDED that (i) such loan is permitted pursuant to SECTION
7.10(c)(vii), (viii) OR (ix) and (ii) such Debt is evidenced by a
promissory note pledged to the Agent;
(j) Debt of any FMC Borrower to any FRC Borrower and
Debt of any FRC Borrower to any FMC Borrower; PROVIDED that (i) such
loan is permitted pursuant to SECTION 7.10(c)(iv) and (ii) such Debt is
evidenced by a promissory note pledged to the Agent;
(k) Debt of an Excluded Retail Subsidiary to Retail;
PROVIDED that (i) such loan is permitted pursuant to SECTION
7.10(c)(v); and (ii) such Debt is evidenced by a promissory note
pledged to the Agent;
(l) Debt of any Excluded Subsidiary to another
Excluded Subsidiary;
(m) Debt of an FMC Borrower to Fleetwood or any
Subsidiary (other than an FRC Borrower, an FMC Borrower or an Excluded
Subsidiary), or Debt of an FRC Borrower to Fleetwood or any Subsidiary
(other than an FMC Borrower, an FRC Borrower or an Excluded
Subsidiary), in each case that is evidenced by a master intercompany
note pledged to the Agent, and subordinated to the payment in full of
the Obligations on terms satisfactory to the Majority Lenders;
(n) Floor Plan Debt of the Excluded Retail
Subsidiaries;
(o) Guaranties permitted by SECTION 7.12 and any Debt
arising upon such contingent obligations becoming absolute and matured;
(p) Debt of any FMC Borrower to Fleetwood Canada
which loans are evidenced by an intercompany note pledged to the Agent
and subordinated to payment in full of the Obligations on terms
satisfactory to the Majority Lenders PROVIDED that the aggregate amount
of all such Debt to all FMC Borrowers outstanding does not exceed the
amount of the Borrowing Base attributable to the Accounts of Fleetwood
Canada;
49
(q) obligations under Hedge Agreements with any
Lender; and
(r) Debt arising from rights of indemnity or
contribution with respect to payments under the Loan Documents.
Notwithstanding anything to the contrary contained in this SECTION 7.13, so long
as any portion of the Term Loans are outstanding, the aggregate amount of all
Debt of Fleetwood Folding Trailer (other than Debt permitted pursuant to SECTION
7.13(a)), shall not exceed an amount equal to (x) the amount of the Borrowing
Base attributable to the Accounts and Inventory of Fleetwood Folding Trailer
plus (y) $2,000,000.
7.14 PREPAYMENT. Neither Fleetwood nor any of its Subsidiaries
shall voluntarily prepay any Debt, except the Obligations in accordance with the
terms of this Agreement; PROVIDED that the Excluded Retail Subsidiaries may
prepay the Floor Plan Debt and intercompany Debt.
7.15 TRANSACTIONS WITH AFFILIATES. Except as set forth below,
neither Fleetwood nor any of its Subsidiaries shall sell, transfer, distribute,
or pay any money or property, including, but not limited to, any fees or
expenses of any nature (including, but not limited to, any fees or expenses for
management services), to any Affiliate, or lend or advance money or property to
any Affiliate, or except as permitted in SECTION 7.10, invest in (by capital
contribution or otherwise) or purchase or repurchase any Capital Stock or
indebtedness, or any property, of any Affiliate, or except as permitted in
SECTION 7.12, become liable on any Guaranty of the indebtedness, dividends, or
other obligations of any Affiliate. Notwithstanding the foregoing but subject to
the limitations set forth in SECTIONS 7.9, 7.10, 7.12, and 7.13, while no Event
of Default has occurred and is continuing, (i) Fleetwood and its Subsidiaries
may engage in transactions with Affiliates in the ordinary course of business
consistent with past practices, and in the case of transactions with Affiliates
other than Loan Parties and Excluded Subsidiaries, in amounts and upon terms
fully disclosed to the Agent and the Lenders, and no less favorable to Loan
Parties than would be obtained in a comparable arm's-length transaction with a
third party who is not an Affiliate; and (ii) Fleetwood and its Subsidiaries may
engage in transactions with Finance Co. in the ordinary course of business and
on terms no less favorable to the Loan Parties than would be obtained in a
comparable arm's-length transaction with a third party who is not an Affiliate.
All sales of Inventory by FMC to any FRC Borrower shall be on terms no less
favorable to FRC Borrowers than would be obtained in an arm's length transaction
with a Person which is not an Affiliate.
7.16 INVESTMENT BANKING AND FINDER'S FEES. Neither Fleetwood nor
any of its Subsidiaries shall pay or agree to pay, or reimburse any other party
with respect to, any investment banking or similar or related fee, underwriter's
fee, finder's fee, or broker's fee to any Person in connection with this
Agreement. The Borrowers shall defend and indemnify the Agent and the Lenders
against and hold them harmless from all claims of any Person that the Borrower
is obligated to pay for any such fees, and all costs and expenses (including
attorneys' fees) incurred by the Agent and/or any Lender in connection
therewith.
50
7.17 BUSINESS CONDUCTED. Fleetwood shall not and shall not permit
any of its Subsidiaries to, engage directly or indirectly, in any line of
business other than the businesses in which it is engaged on the Closing Date
and businesses reasonably related thereto.
7.18 LIENS. Neither Fleetwood nor any of its Subsidiaries shall
create, incur, assume, or permit to exist any Lien on any property now owned or
hereafter acquired by any of them, except Permitted Liens.
7.19 SALE AND LEASEBACK TRANSACTIONS. Neither Fleetwood nor any of
its Subsidiaries shall, directly or indirectly, enter into any arrangement with
any Person providing for Fleetwood or such Subsidiary to lease or rent property
that Fleetwood or such Subsidiary has sold or will sell or otherwise transfer to
such Person, EXCEPT that:
(a) a Borrower may sell Real Estate owned by it
(other than Term Loan Collateral) and lease such Real Estate if (i) the
Net Proceeds are an amount in excess of the amount advanced against
such Real Estate in the Borrowing Base, (ii) the terms and conditions
of such sale and leaseback are approved by Majority Lenders and (iii)
the proceeds of such sale are applied to the Obligations in accordance
with SECTION 3.4;
(b) a Borrower may sell Real Estate that is Term Loan
Collateral and that is owned by it and lease such Real Estate if (i)
the Net Proceeds are an amount in excess of (x) for any Term Loan
Collateral specifically identified on SCHEDULE 1.4 the amount for such
Term Loan Collateral set forth in the column labeled "Minimum Price" on
such SCHEDULE 1.4, and (y) for any other Term Loan Collateral
consisting of Fixed Assets sixty percent (60%) of the appraised orderly
liquidation value for such Term Loan Collateral, (ii) the terms and
conditions of such sale and leaseback are approved by Required Term
Lenders and (iii) the proceeds of such sale are applied to the
Obligations in accordance with SECTION 3.4; and
(c) a Borrower may sell Equipment owned by it and
lease such Equipment if (i) the Net Proceeds are an amount in excess of
the amount advanced against such Equipment in the Borrowing Base, (ii)
the terms and conditions of such sale and leaseback are approved by
Majority Lenders (iii) the proceeds of such sale are applied to the
Obligations in accordance with SECTION 3.4; and (iv) the aggregate
Net Proceeds of such sale and all previous sales pursuant to this
SECTION 7.19(b) do not exceed $25,000,000.
7.20 NEW SUBSIDIARIES. Without the prior written consent of the
Agent and Majority Lenders, Fleetwood shall not, directly or indirectly,
organize, create, acquire or permit to exist any Subsidiary other (i) than those
listed on SCHEDULE 6.5, and (ii) Excluded Subsidiaries.
7.21 FISCAL YEAR. Fleetwood shall not, and shall not permit any of
its Subsidiaries to, change its Fiscal Year, EXCEPT that the Fiscal Year of FRC
may be changed so that it is the same as the Fiscal Year of Fleetwood.
7.22 CAPITAL EXPENDITURES. Neither Fleetwood nor any of its
Subsidiaries shall make or incur any Capital Expenditure if, after giving effect
thereto, the aggregate amount of all
51
Capital Expenditures by Fleetwood and its Subsidiaries on a consolidated basis
(including the capitalized amount of all Capital Leases and the principal amount
of all Purchase Money Debt incurred in connection therewith) would exceed
$35,000,000 in Fiscal Year 2002, $31,300,000 in Fiscal Year 2003 or $34,500,000
in Fiscal Year 2004.
7.23 FIXED CHARGE COVERAGE RATIO. Fleetwood will maintain a Fixed
Charge Coverage Ratio for each period of four consecutive Fiscal Quarters ended
on the last day of each Fiscal Quarter set forth below of not less than the
ratio set forth below opposite each such fiscal quarter:
PERIOD ENDING FIXED CHARGE COVERAGE RATIO
------------- ---------------------------
On the last Sunday in July 2002 1.05 : 1.00
On the last Sunday in October 2002 1.10 : 1.00
On the last Sunday in January 2003 1.15 : 1.00
On the last Sunday in April 2003 and each Fiscal Quarter 1.20 : 1.00
thereafter
7.24 EBITDA.
(a) On a consolidated basis, Fleetwood shall have
EBITDA for the portion of the Fiscal Year 2002 then elapsed of not less
than the amount set forth below opposite each such Fiscal Quarter:
PERIOD ENDING EBITDA
------------- ------
On the last Sunday in October 2001 $15,000,000
On the last Sunday in January 2002 $25,000,000
On the last Sunday in April 2002 $55,000,000
(b) For each Fiscal Quarter ending after the last
Sunday in April 2002, Fleetwood shall have EBITDA for the four-fiscal
quarter period ending on the last day of such Fiscal Quarter of not
less than $70,000,000.
7.25 MINIMUM AGGREGATE AVAILABILITY. The Borrowers shall maintain,
at all times, Aggregate Availability of not less than (i) if the Fixed Charge
Coverage Ratio for each of the most recently ended two consecutive Fiscal
Quarters (tested separately) was at least 1.05 to 1.00, $30,000,000; and (ii)
otherwise, $50,000,000; PROVIDED that no minimum Aggregate Availability shall be
required during any period when (x) the Applicable Margin is at Level I, (y) the
Fixed Charge Coverage Ratio for the two fiscal quarter period ending on the last
day of
52
the most recent Fiscal Quarter is greater than 1.5 to 1.0 and (z) no Default or
Event of Default has occurred and is continuing.
7.26 CONTRIBUTION OF MANAGEMENT FEES. On the date of receipt by
Fleetwood of any management fees from any of its Subsidiaries, Fleetwood shall
make a capital contribution to FMC in the amount of such management fees so
received less the amount on such day of Distributions by the Borrowers to
Fleetwood that would be permitted pursuant to SECTION 7.10(a)(ii), (iii), OR
(iv).
7.27 USE OF PROCEEDS. The Borrowers shall not, and shall not suffer
or permit any of their Subsidiaries to, use any portion of the Loan proceeds,
directly or indirectly, (i) to purchase or carry Margin Stock, (ii) to repay or
otherwise refinance indebtedness of Fleetwood or any of its Subsidiaries or
others incurred to purchase or carry Margin Stock, (iii) to extend credit for
the purpose of purchasing or carrying any Margin Stock, or (iv) to acquire any
security in any transaction that is subject to Section 13 or 14 of the Exchange
Act. The proceeds of the Revolving Loans shall not be used to pay the Term Loan
Obligations unless (x) for payments of the Term Loan Obligations under SECTION
3.3(a)(i), no Event of Default has occurred and is continuing, and (y) for
payments of Term Loan Obligations under SECTION 3.3(a)(ii), (A) no Event of
Default has occurred and is continuing, (B) the amount of the average of the
Liquidity for each of the most recent three calendar months is at least
$60,000,000 and (C) on the date of the payment of the Term Loan Obligations,
after giving effect to any Borrowing, the Aggregate Availability plus the
Qualified Cash Equivalents is equal to or greater than $10,000,000 plus the
amount, on such date, of the required minimum Aggregate Availability under
SECTION 7.25.
7.28 FURTHER ASSURANCES; ADDITIONAL MORTGAGES.
(a) Fleetwood shall, and shall cause each of its
Subsidiaries to, execute and deliver, or cause to be executed and
delivered, to the Agent and/or the Lenders such documents and
agreements, and shall take or cause to be taken such actions, as the
Agent or any Lender may, from time to time, request to carry out the
terms and conditions of this Agreement and the other Loan Documents.
(b) With respect to each parcel of Real Estate listed
on SCHEDULE 7.28 with a fair market value in excess of $250,000, within
60 days after the Closing Date, and with respect to any Real Estate
acquired in fee simple by any Loan Party after the Closing Date with a
fair market value in excess of $250,000, within 60 days after
acquisition thereof, Fleetwood and/or the applicable Loan Party shall
deliver to the Agent (i) duly executed and acknowledged Mortgages on
the Real Property, (ii) if required by the Agent for Real Estate
hereafter acquired, extended coverage ALTA policies of title insurance
in such amounts, and containing such endorsements, as reasonably
required by the Agent, insuring that such Mortgages constitute first
priority mortgage liens subject only to Permitted Liens under clauses
(a), (b), (d) and (e) of the definition of Permitted Liens, and (iii)
if requested by the Agent, opinions of counsel as to such matters as
reasonably requested by the Agent.
(c) If Fleetwood forms any new Subsidiary or if any
Inactive Subsidiary becomes an active Subsidiary which owns assets in
excess of $250,000 or has
53
revenues in excess of $1,000,000 in any Fiscal Year, the Borrowers
shall cause such Subsidiary to either become an FMC Borrower or FRC
Borrower hereunder by delivering a counterpart to this Agreement and to
each other Loan Document to which an FMC Borrower or an FRC Borrower,
as the case may be, is a party or become a Guarantor by delivering a
counterpart to the Subsidiary Guaranty and to each other Loan Document
to which a Guarantor which is a Subsidiary is a party, together with
such evidences of authority, opinions and other documents and
instruments as the Agent may reasonably request; PROVIDED that no such
Subsidiary may become an FRC Borrower or an FMC Borrower without the
prior written consent of the Required Lenders.
7.29 SUBORDINATED DEBT; TRUST SECURITIES. Fleetwood will not, and
will not permit any of its Subsidiaries to, (i) make any payments or prepayments
with respect to the Subordinated Debt other than, so long as no Default or Event
of Default has occurred and is continuing on the date of payment, both before
and after giving effect to such payment, and so long as Fleetwood has not
elected to defer payment in accordance with the Subordinated Debentures,
payments of interest when due under the terms of the Subordinated Debentures
(without acceleration) (PROVIDED, that payments permitted under this clause (i)
shall not duplicate payments made under SECTION 7.10(a)(iii)) or (ii) amend,
supplement or otherwise modify the terms of the Subordinated Debentures or any
Guaranty thereof, or the Trust Securities or any Guaranty thereof or added any
Guaranty; PROVIDED, HOWEVER, that Fleetwood and the Fleetwood Trust may exchange
(such exchange, the "SUBORDINATED DEBT EXCHANGE") the Subordinated Debentures
and the Trust Securities outstanding on the Closing Date for new Subordinated
Debentures and Trust Securities if (i) the transactions are not materially cash
negative upon closing (taking into account taxes and transaction fees payable by
Fleetwood on a pro forma basis), as determined by the Majority Lenders; (ii)
there is no increase in the aggregate amounts payable by Fleetwood and its
Subsidiaries as a result thereof; (iii) the amount of the aggregate annual
payments with respect to the Subordinated Debt, after giving effect to such
exchange and to any additional Subordinated Debentures and Trust Securities
issued concurrently with such exchange, does not exceed one hundred fifty
percent (150%) of the amount of the aggregate annual payments with respect to
the Subordinated Debt on the Closing Date; (iv) the rate of interest for the
Subordinated Debt and any additional Subordinated Debentures and Trust
Securities issued concurrently with such exchange, does not exceed twelve
percent (12%); (v) the ability of Fleetwood to defer cash payments on the
Subordinated Debentures and of Fleetwood Trust to defer cash dividends on the
Trust Securities is no less favorable (PROVIDED that the ability to make
payments with the issuance of new securities shall be treated as deferral of
cash payments for purposes of this clause (v)) and the subordination terms of
the Subordinated Debentures and the Guaranty of the Trust Securities are no less
favorable to the Lenders and (vi) all other terms and conditions are acceptable
to the Majority Lenders.
7.30 ADVISORS FOR SALE OF TERM LOAN COLLATERAL. If the Term Loan
Obligations have not been paid in full on or prior to the first Anniversary
Date, then no later than thirty (30) days after written request by the Required
Term Lenders, FMC will, at its expense, engage advisors reasonably acceptable to
the Required Term Lenders to arrange for sale/leaseback transactions of active
real estate locations included in the Term Loan Collateral and to market and
sell the balance of the Term Loan Collateral in an orderly manner and will fully
cooperate with such advisors.
54
ARTICLE 8
CONDITIONS OF LENDING
8.1 CONDITIONS PRECEDENT TO MAKING OF LOANS ON THE INITIAL FUNDING
DATE. The obligation of the Lenders to make the initial Revolving Loans and the
Term Loans, and the obligation of the Agent to cause the Letter of Credit Issuer
to issue any Letter of Credit, are subject to the following conditions precedent
having been satisfied in a manner satisfactory to the Agent and each Lender:
(a) This Agreement and the other Loan Documents shall
have been executed by each party thereto and the Loan Parties shall
have performed and complied in all material respects with all
covenants, agreements and conditions contained herein and the other
Loan Documents which are required to be performed or complied with by
the Loan Parties before or on the Closing Date.
(b) Upon making the Revolving Loans (including such
Revolving Loans made to finance the Closing Fee or otherwise as
reimbursement for fees, costs and expenses then payable under this
Agreement) and with all obligations current, the Borrowers shall have
Aggregate Availability of at least $80,000,000.
(c) All representations and warranties made hereunder
and in the other Loan Documents shall be true and correct as if made on
such date.
(d) No Default or Event of Default shall have
occurred and be continuing after giving effect to the Loans to be made
and the Letters of Credit to be issued on the Initial Funding Date.
(e) The Agent and the Lenders shall have received
such opinions of counsel for Fleetwood and its Subsidiaries as the
Agent or any Lender shall reasonably request, each such opinion to be
in a form, scope, and substance reasonably satisfactory to the Agent,
the Lenders, and their respective counsel.
(f) The Agent shall have received ALTA extended
coverage title policies, in form and substance and in amounts and with
such endorsements acceptable to the Agent, with respect to the
Mortgages to be delivered on the Closing Date.
(g) The Agent shall have received:
(i) acknowledgment copies of proper
financing statements, duly filed on or before the Closing Date
under the UCC of all jurisdictions that the Agent may deem
necessary or desirable in order to perfect the Agent's Liens;
or shall have received duly executed financing statements from
all Loan Parties for all such jurisdictions;
(ii) duly executed UCC-3 Termination
Statements or such other instruments or evidence, in form and
substance satisfactory to the Agent, as shall be necessary to
terminate and satisfy all Liens on the Property of Fleetwood
and its Subsidiaries except Permitted Liens;
55
(iii) duly executed security agreements with
respect to all Proprietary Rights for recording in the United
States Patent and Trademark Office;
(iv) certificates for the Capital Stock
pledged pursuant to the Pledge Agreement together with undated
stock powers duly endorsed in blank; and
(v) all intercompany notes payable to
any Loan Party duly endorsed in blank.
(h) The Borrowers shall have paid all fees and
expenses of the Agent and the Attorney Costs incurred in connection
with any of the Loan Documents and the transactions contemplated
thereby to the extent invoiced.
(i) Fleetwood and the Borrowers shall have paid all
fees due and owing to the Agent and the Lenders on the Closing Date
(including all fees under the Fee Letter).
(j) The Agent shall have received evidence, in form,
scope, and substance, reasonably satisfactory to the Agent, of all
insurance coverage as required by this Agreement.
(k) The Agent and the Lenders shall have had an
opportunity, if they so choose, to examine the books of account and
other records and files of Fleetwood and its Subsidiaries and to make
copies thereof, and to conduct a pre-closing audit which shall include,
without limitation, verification of Inventory, Accounts, and the
Borrowing Bases, and the results of such examination and audit shall
have been satisfactory to the Agent and the Lenders in all respects.
(l) All proceedings taken in connection with the
execution of this Agreement, the Term Notes, all other Loan Documents
and all documents and papers relating thereto shall be satisfactory in
form, scope, and substance to the Agent and the Lenders.
(m) No material adverse change, in the opinion of the
Lenders, shall have occurred, in the assets, liabilities, business,
financial condition, or results of operations of Fleetwood and its
Subsidiaries.
(n) There shall exist no action, suit, investigation,
litigation, or proceeding pending or, to the knowledge of Fleetwood and
the Borrowers or any Lender, threatened in any court or before any
arbitrator or Governmental Authority that (i) could reasonably be
expected to have a material adverse effect on any Borrower's assets,
liabilities, business, or financial condition, or results of operations
or which could impair any Borrower's ability to perform satisfactorily
under the Loan Documents or repay the Obligations, or (ii) could
reasonably be expected to materially and adversely affect the Loan
Documents or the transactions contemplated thereby.
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(o) The Lenders shall have received, each in form and
substance satisfactory to the Lenders, (i) a pro forma consolidated
balance sheet of Fleetwood and its Subsidiaries dated as of April 29,
2001 and adjusted to give effect to the advances under this Agreement
and the application of the proceeds thereof, which balance sheets shall
reflect no material changes from the most recent pro forma balance
sheets of Fleetwood and its Subsidiaries previously delivered to
Lenders, (ii) consolidated and consolidating (by Business Unit)
financial projections of Fleetwood and its Subsidiaries evidencing
ability to comply with the financial covenants set forth herein and to
repay the Obligations, and (iii) drafts of the consolidated and
consolidating (by Business Unit) annual financial statements for
Fleetwood and its Subsidiaries as of the end of the most recent Fiscal
Year plus Fleetwood's most recently updated forecast, if any.
(p) Lenders shall be satisfied that each Borrower is
adequately capitalized, that the fair saleable value of its assets will
exceed its liabilities at closing, and that each Borrower will have
sufficient working capital to pay its debts as they become due.
(q) Fleetwood and its Subsidiaries shall have
obtained all governmental and third party consents and approvals as may
be necessary or appropriate in connection with the Loan Documents and
the transactions contemplated thereby.
(r) The Lenders shall be satisfied with all
environmental aspects relating to Borrowers and their business,
including all environmental reports as may be required by the Lenders.
(s) All Debt of Fleetwood and its Subsidiaries, other
than (i) Debt of the Excluded Retail Subsidiaries to the Floor Plan
Lender, (ii) existing financing in connection with company-owned life
insurance and split-dollar life insurance and policies, and (iii) Debt
permitted pursuant to SECTION 7.13(a), (b), (c), (g), (l), (m), (o),
(q) and (r) shall have been repaid in full and all Liens and security
interests shall have been released. The Floor Plan Debt shall be on
terms and conditions satisfactory to the Agent and Lenders and shall
not be guaranteed by any Borrower or any Guarantor unless approved by
the Agent and Lenders.
(t) The Agent shall have entered into an
intercreditor agreement with the Floor Plan Lender, in form, scope and
substance satisfactory to the Lenders, with respect to their respective
rights and remedies.
(u) The Revolving Credit Loans shall have been
successfully syndicated on the terms set forth herein and as described
in the commitment letter from the Agent to Fleetwood, to the
satisfaction of the Agent, and all Lenders shall ratably fund the Loans
on the Initial Funding Date.
(v) Without limiting the generality of the items
described above, any other documents or other items reasonably
requested by the Agent or any Lender.
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(w) All cash and marketable securities held by the
Borrowers in domestic unrestricted accounts on the Closing Date shall
be liquidated and applied against Revolving Loans.
(x) The Agent and the applicable Loan Party shall
have executed and delivered notices of assignment of the Accounts of
the Loan Parties to such Persons designated by the Agent.
The acceptance by any Borrower of any Loans made or Letters of Credit issued on
the Initial Funding Date shall be deemed to be a representation and warranty
made by Fleetwood and the Borrowers to the effect that all of the conditions
precedent to the making of such Loans or the issuance of such Letters of Credit
set forth in CLAUSES (a), (b), (c), (d), (h), (i), (n), (q), (s) and (x) have
been satisfied, and that no material adverse change has occurred since January
28, 2001 except as disclosed by Fleetwood publicly in the assets, liabilities,
business, financial condition or results of operations of Fleetwood and its
Subsidiaries, with the same effect as delivery to the Agent and the Lenders of a
certificate signed by a Responsible Officer of the Borrowers, dated the Initial
Funding Date, to such effect.
Execution and delivery to the Agent by a Lender of a
counterpart of this Agreement shall be deemed confirmation by such Lender that
(i) all conditions precedent in this SECTION 8.1 have been fulfilled to the
satisfaction of such Lender, (ii) the decision of such Lender to execute and
deliver to the Agent an executed counterpart of this Agreement was made by such
Lender independently and without reliance on the Agent or any other Lender as to
the satisfaction of any condition precedent set forth in this SECTION 8.1, and
(iii) all documents sent to such Lender for approval consent, or satisfaction
were acceptable to such Lender.
8.2 CONDITIONS PRECEDENT TO EACH LOAN. The obligation of the
Lenders to make each Loan, including the initial Revolving Loans on the Initial
Funding Date and the Term Loans, and the obligation of the Agent to cause the
Letter of Credit Issuer to issue any Letter of Credit shall be subject to the
further conditions precedent that on and as of the date of any such extension of
credit:
(a) The following statements shall be true, and the
acceptance by any Borrower of any extension of credit shall be deemed
to be a statement to the effect set forth in CLAUSES (i), (ii) and
(iii) with the same effect as the delivery to the Agent and the Lenders
of a certificate signed by a Responsible Officer, dated the date of
such extension of credit, stating that:
(i) The representations and warranties
contained in this Agreement and the other Loan Documents are
correct in all material respects on and as of the date of such
extension of credit as though made on and as of such date,
other than any such representation or warranty which relates
to a specified prior date and except to the extent the Agent
and the Lenders have been notified in writing by the Borrowers
that any representation or warranty is not correct and the
Majority Lenders have explicitly waived in writing compliance
with such representation or warranty; and
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(ii) No event has occurred and is
continuing, or would result from such extension of credit,
which constitutes a Default or an Event of Default; and
(iii) No event has occurred and is
continuing, or would result from such extension of credit,
which has had or would have a Material Adverse Effect.
(b) No such Borrowing shall exceed Aggregate
Availability, nor shall any Borrowing by FMC or FRC exceed its
Availability PROVIDED, HOWEVER, that the foregoing conditions precedent
are not conditions to each Revolving Credit Lender participating in or
reimbursing the Bank or the Agent for such Lenders' Pro Rata Share of
any Non-Ratable Loan or Agent Advance made in accordance with the
provisions of SECTIONS 1.2(h) and (i).
ARTICLE 9
DEFAULT; REMEDIES
9.1 EVENTS OF DEFAULT. It shall constitute an event of default
("EVENT OF DEFAULT") if any one or more of the following shall occur for any
reason:
(a) any failure by any Borrower to pay (i) the
principal of or interest or premium on any of the Obligations when due,
whether upon demand or otherwise, or (ii) any fee or other amount owing
hereunder within 3 Business Days after such amount is due;
(b) any representation or warranty made or deemed
made by Fleetwood or the Borrowers in this Agreement or by any Loan
Party in any of the other Loan Documents, any Financial Statement, or
any certificate furnished by any Loan Party at any time to the Agent or
any Lender shall prove to be untrue in any material respect as of the
date on which made, deemed made, or furnished;
(c) (i) any default shall occur in the observance or
performance of any of the covenants and agreements contained in
Sections 5.2(l), 7.2, 7.5, 7.9 through 7.30, or Section 11 of the
Security Agreement, (ii) any default shall occur in the observance or
performance of any of the covenants and agreements contained in SECTION
5.2 (other than SECTION 5.2(l)) or SECTION 5.3 and such default shall
continue for 5 Business Days or more; or (iii) any default shall occur
in the observance or performance of any of the other covenants or
agreements contained in any other Section of this Agreement or any
other Loan Document, or any other agreement entered into at any time to
which Fleetwood or any Subsidiary and the Agent or any Lender are party
(including in respect of any Bank Products) and such default shall
continue for 30 days or more;
(d) any failure to pay any principal of or premium or
interest on any Debt (other than the Obligations) of Fleetwood or any
of its Subsidiaries in an outstanding principal amount which exceeds
$5,000,000, or under any agreement or instrument under or pursuant to
which any such Debt may have been issued, created, assumed, or
guaranteed by Fleetwood or any of its Subsidiaries, and such failure to
pay
59
shall continue for more than the period of grace, if any, therein
specified; or any default shall occur with respect to any Debt (other
than the Obligations) of Fleetwood or any of its Subsidiaries in an
outstanding principal amount which exceeds $5,000,000, or under any
agreement or instrument under or pursuant to which any such Debt may
have been issued, created, assumed, or guaranteed by Fleetwood or any
of its Subsidiaries, and such default shall continue for more than the
period of grace, if any, therein specified, if the effect thereof (with
or without the giving of notice or further lapse of time or both) is to
accelerate, or to permit the holders of any such Debt to accelerate,
the maturity of any such Debt; or any such Debt shall be declared due
and payable or be required to be prepaid (other than by a regularly
scheduled required prepayment) prior to the stated maturity thereof;
(e) Fleetwood or any of its Subsidiaries shall (i)
file a voluntary petition in bankruptcy or file a voluntary petition or
an answer or otherwise commence any action or proceeding seeking
reorganization, arrangement or readjustment of its debts or for any
other relief under the Bankruptcy Code, as amended, or under any other
bankruptcy or insolvency act or law, state or federal, now or hereafter
existing, or consent to, approve of, or acquiesce in, any such
petition, action or proceeding; (ii) apply for or acquiesce in the
appointment of a receiver, assignee, liquidator, sequestrator,
custodian, monitor, trustee or similar officer for it or for all or any
part of its property; (iii) make an assignment for the benefit of
creditors; or (iv) be unable generally to pay its debts as they become
due;
(f) an involuntary petition shall be filed or an
action or proceeding otherwise commenced seeking reorganization,
arrangement, consolidation or readjustment of the debts of Fleetwood or
any of its Subsidiaries or for any other relief under the Bankruptcy
Code, as amended, or under any other bankruptcy or insolvency act or
law, state or federal, now or hereafter existing and such petition or
proceeding shall not be dismissed within 60 days after the filing or
commencement thereof or an order of relief shall be entered with
respect thereto;
(g) a receiver, assignee, liquidator, sequestrator
custodian, monitor, trustee or similar officer for Fleetwood or any of
its Subsidiaries or for all or any part of its property shall be
appointed or a warrant of attachment, execution or similar process
shall be issued against any part of the property of Fleetwood or any of
its Subsidiaries;
(h) except as expressly permitted under this
Agreement, Fleetwood or any of its Subsidiaries shall file a
certificate of dissolution under applicable state law or shall be
liquidated, dissolved or wound-up or shall commence or have commenced
against it any action or proceeding for dissolution, winding-up or
liquidation, or shall take any corporate action in furtherance thereof;
(i) all or any material part of the property of
Fleetwood or any of its Subsidiaries shall be nationalized,
expropriated or condemned, seized or otherwise appropriated, or custody
or control of such property or of Fleetwood or such Subsidiary shall be
assumed by any Governmental Authority or any court of competent
jurisdiction
60
at the instance of any Governmental Authority, except where contested
in good faith by proper proceedings diligently pursued where a stay of
enforcement is in effect;
(j) any Loan Document shall be terminated (except in
accordance with its terms), revoked or declared void or invalid or
unenforceable or challenged by any Loan Party;
(k) one or more judgments, orders, decrees or
arbitration awards is entered against Fleetwood or any of its
Subsidiaries involving in the aggregate liability (to the extent not
covered by independent third-party insurance as to which the insurer
has not denied coverage) as to any single or related or unrelated
series of transactions, incidents or conditions, of $5,000,000 or more,
and the same shall remain unsatisfied, unvacated and unstayed pending
appeal for a period of thirty (30) days after the entry thereof;
(l) any loss, theft, damage or destruction of any
item or items of Collateral or other property of Fleetwood or any of
its Subsidiaries occurs which could reasonably be expected to cause a
Material Adverse Effect and is not adequately covered by insurance;
(m) there is filed against Fleetwood or any of its
Subsidiaries any action, suit or proceeding under any federal or state
racketeering statute (including the Racketeer Influenced and Corrupt
Organization Act of 1970), which action, suit or proceeding (i) is not
dismissed within one hundred twenty (120) days, and (ii) would
reasonably be expected to result in the confiscation or forfeiture of
any material portion of the Collateral;
(n) for any reason other than the failure of the
Agent to take any action available to it to maintain perfection of the
Agent's Liens pursuant to the Loan Documents, any Loan Document ceases
to be in full force and effect in accordance with its terms or, except
for any Lien released in accordance with the Loan Documents, any Lien
with respect to any material portion of the Collateral intended to be
secured thereby ceases to be, or is not, valid, perfected and prior to
all other Liens (other than Permitted Liens) or is terminated, revoked
or declared void;
(o) an ERISA Event shall occur with respect to a
Pension Plan or Multi-employer Plan which has resulted or could
reasonably be expected to result in liability of Fleetwood or any ERISA
Affiliate under Title IV of ERISA to the Pension Plan, Multi-employer
Plan or the PBGC in an aggregate amount in excess of $10,000,000; (ii)
the aggregate amount of Unfunded Pension Liability among all Pension
Plans at any time exceeds $10,000,000; or (iii) Fleetwood or any ERISA
Affiliate shall fail to pay when due, after the expiration of any
applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multi-employer
Plan in an aggregate amount in excess of $10,000,000;
(p) there occurs a Change of Control; or
(q) there occurs an event having a Material Adverse
Effect.
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9.2 REMEDIES.
(a) If a Default or an Event of Default exists, the
Agent may, in its discretion, and shall, at the direction of the
Majority Lenders, do one or more of the following at any time or times
and in any order, without notice to or demand on the Borrowers: (i)
reduce the Maximum Revolver Amount, or the advance rates against
Eligible Accounts and/or Eligible Inventory and/or Eligible Equipment
and/or Eligible Real Estate used in computing the Borrowing Base, or
reduce one or more of the other elements used in computing the
Borrowing Base; (ii) restrict the amount of or refuse to make Revolving
Loans; and (iii) restrict or refuse to provide Letters of Credit or
Credit Support. If an Event of Default exists, the Agent shall, at the
direction of the Majority Lenders, do one or more of the following, in
addition to the actions described in the preceding sentence, at any
time or times and in any order, without notice to or demand on the
Borrowers: (A) terminate the Commitments and this Agreement; (B)
declare any or all Obligations to be immediately due and payable;
PROVIDED, HOWEVER, that upon the occurrence of any Event of Default
described in SECTIONS 9.1(e), 9.1(f), 9.1(g), or 9.1(h), the
Commitments shall automatically and immediately expire and all
Obligations shall automatically become immediately due and payable
without notice or demand of any kind; (C) require the Borrowers to cash
collateralize all outstanding Letter of Credit Obligations; and (D)
pursue its other rights and remedies under the Loan Documents and
applicable law.
(b) If an Event of Default has occurred and is
continuing: (i) the Agent shall have for the benefit of the Lenders, in
addition to all other rights of the Agent and the Lenders, the rights
and remedies of a secured party under the Loan Documents and the UCC;
(ii) the Agent may, at any time, take possession of the Collateral and
keep it on any Loan Party's premises, at no cost to the Agent or any
Lender, or remove any part of it to such other place or places as the
Agent may desire, or the Borrowers shall, upon the Agent's demand, at
the Borrowers' cost, assemble the Collateral and make it available to
the Agent at a place reasonably convenient to the Agent; and (iii) the
Agent may sell and deliver any Collateral at public or private sales,
for cash, upon credit or otherwise, at such prices and upon such terms
as the Agent deems advisable, in its sole discretion, and may, if the
Agent deems it reasonable, postpone or adjourn any sale of the
Collateral by an announcement at the time and place of sale or of such
postponed or adjourned sale without giving a new notice of sale.
Without in any way requiring notice to be given in the following
manner, each Borrower agrees that any notice by the Agent of sale,
disposition or other intended action hereunder or in connection
herewith, whether required by the UCC or otherwise, shall constitute
reasonable notice to such Borrower if such notice is delivered
personally or by overnight courier against receipt, at least five (5)
Business Days prior to such action to the Borrowers' address specified
in or pursuant to SECTION 13.8. If any Collateral is sold on terms
other than payment in full at the time of sale, no credit shall be
given against the Obligations until the Agent or the Lenders receive
payment, and if the buyer defaults in payment, the Agent may resell the
Collateral without further notice to the Borrowers. In the event the
Agent seeks to take possession of all or any portion of the Collateral
by judicial process, each Borrower irrevocably waives: (A) the posting
of any bond, surety or security with respect thereto which might
otherwise be required; (B) any demand for possession prior to the
commencement of any
62
suit or action to recover the Collateral; and (C) any requirement that
the Agent retain possession and not dispose of any Collateral until
after trial or final judgment. Each Borrower agrees that the Agent has
no obligation to preserve rights to the Collateral or marshal any
Collateral for the benefit of any Person. The Agent is hereby granted a
license or other right to use, without charge, each Borrower's and
Fleetwood's labels, patents, copyrights, name, trade secrets, trade
names, trademarks, and advertising matter, or any similar property, in
completing production of, advertising or selling any Collateral, and
each Borrower's and Fleetwood's rights under all licenses and all
franchise agreements shall inure to the Agent's benefit for such
purpose. The proceeds of sale shall be applied first to all expenses of
sale, including attorneys' fees, and then to the Obligations. The Agent
will return any excess to the Borrowers and the Borrowers shall remain
liable for any deficiency.
(c) If an Event of Default occurs, each Borrower
hereby waives to the greatest extent permitted by applicable law all
rights to notice and hearing prior to the exercise by the Agent of the
Agent's rights to repossess the Collateral without judicial process or
to reply, attach or levy upon the Collateral without notice or hearing.
(d) Notwithstanding anything to the contrary
contained in this SECTION 9.2 or any Collateral Document, if a default
under SECTION 9.1(a) has occurred and is continuing with respect to any
Term Loan Obligation, then the Required Term Lenders shall have the
right, which right may be exercised by written notice to the Agent by
the Required Term Lenders, to require the Agent to proceed with the
exercise of remedies provided hereunder and under the other Collateral
Documents with respect to the following Collateral: (i) the Capital
Stock of Fleetwood Folding Trailer, and (ii) all of the assets of
Fleetwood Folding Trailer; provided that from any proceeds realized on
such Collateral, an amount equal the amount advanced against the
Eligible Accounts and Eligible Inventory of Fleetwood Folding Trailer
shall be applied to reduce Revolving Loans.
ARTICLE 10
TERM AND TERMINATION
10.1 TERM AND TERMINATION. The term of this Agreement shall end on
the Stated Termination Date unless sooner terminated in accordance with the
terms hereof. The Agent upon direction from the Majority Lenders may terminate
this Agreement without notice upon the occurrence of an Event of Default. Upon
the effective date of termination of this Agreement for any reason whatsoever,
all Obligations (including all unpaid principal, accrued and unpaid interest and
any accrued and unpaid fees) shall become immediately due and payable and the
Borrowers shall immediately arrange for the cancellation and return of Letters
of Credit then outstanding. Notwithstanding the termination of this Agreement,
until all Obligations are indefeasibly paid and performed in full in cash, the
Borrowers shall remain bound by the terms of this Agreement and shall not be
relieved of any of their Obligations hereunder or under any other Loan Document,
and the Agent and the Lenders shall retain all their rights and remedies
hereunder (including the Agent's Liens in and all rights and remedies with
respect to all then existing and after-arising Collateral).
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ARTICLE 11
AMENDMENTS; WAIVERS; PARTICIPATIONS; ASSIGNMENTS; SUCCESSORS
11.1 AMENDMENTS AND WAIVERS.
(a) No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent with respect to
any departure by any Loan Party therefrom, shall be effective unless
the same shall be in writing and signed by the Majority Lenders (or by
the Agent at the written request of the Majority Lenders), Fleetwood
and the Borrowers and then any such waiver or consent shall be
effective only in the specific instance and for the specific purpose
for which given; PROVIDED, HOWEVER,
(i) no such waiver, amendment, or consent
shall, unless in writing and signed by all the Lenders,
Fleetwood and the Borrowers and acknowledged by the Agent, do
any of the following:
(A) change the percentage of the
Commitments or of the aggregate unpaid
principal amount of the Loans which is
required for the Lenders or any of them to
take any action hereunder;
(B) amend this Section or any
provision of this Agreement providing for
consent or other action by all Lenders;
(C) release any Guaranties of the
Obligations;
(D) change the definitions of
"Majority Lenders" or "Required Lenders"; or
(E) amend SECTION 7.25; or
(ii) no such waiver, amendment, or consent
shall, unless in writing and signed by all the Term Lenders
and the Majority Revolving Lenders, Fleetwood and the
Borrowers and acknowledged by the Agent, do any of the
following:
(A) postpone or delay any date fixed
by this Agreement or any other Loan Document
for any payment of principal, interest, fees
or other amounts due to the Term Lenders (or
any of them) hereunder or under any other
Loan Document;
(B) reduce the principal of, or the
rate of interest specified herein on any
Term Loan, or any fees or other amounts
payable to the Term Lenders hereunder or
under any other Loan Document;
(C) release any Term Loan Collateral
other than as permitted by SECTION 12.11; or
64
(D) change the definitions of
"Majority Term Lenders" or "Required Term
Lenders"; or
(iii) no such waiver, amendment, or consent
shall, unless in writing and signed by all the Revolving
Credit Lenders and the Majority Term Lenders, Fleetwood and
the Borrowers and acknowledged by the Agent, do any of the
following:
(A) increase or extend the Revolving
Credit Commitment of any Revolving Credit
Lender;
(B) postpone or delay any date fixed
by this Agreement or any other Loan Document
for any payment of principal, interest, fees
or other amounts due to the Revolving Credit
Lenders (or any of them) hereunder or under
any other Loan Document;
(C) reduce the principal of, or the
rate of interest specified herein on any
Loan, or any fees or other amounts payable
to the Revolving Credit Lenders hereunder or
under any other Loan Document;
(D) increase any of the percentages
set forth in the definition of the Borrowing
Base;
(E) release any Collateral other than
Term Loan Collateral, except as permitted
by SECTION 12.11;
(F) change the definitions of
"Majority Revolving Lenders" or "Required
Revolving Lenders"; or
(G) increase the Maximum Revolver
Amount, the Maximum Inventory Loan Amount,
the Maximum PP&E Loan Amount or the Unused
Letter of Credit Subfacility;
PROVIDED, HOWEVER, the Agent may, in its sole discretion and
notwithstanding the limitations contained in CLAUSES (iii)(D) and (G)
above and any other terms of this Agreement, make Agent Advances in
accordance with SECTION 1.2(i) or SECTION 13.19 and, PROVIDED FURTHER,
that no amendment, waiver or consent shall, unless in writing and
signed by the Agent, affect the rights or duties of the Agent under
this Agreement or any other Loan Document; and PROVIDED FURTHER, that
SCHEDULE 1.2 hereto (Commitments) may be amended from time to time by
the Agent alone to reflect assignments of Commitments in accordance
herewith.
(b) If, in connection with any proposed amendment,
waiver or consent (a "PROPOSED CHANGE"):
(i) requiring the consent of all Lenders,
the consent of Majority Lenders is obtained, but the consent
of other Lenders is not obtained
65
(any such Lender whose consent is not obtained as described in
this clause (i) and in clause (ii) below being referred to as
a "NON-CONSENTING LENDER"), or
(ii) requiring the consent of Required
Lenders, the consent of Majority Lenders is obtained,
then, so long as the Agent is not a Non-Consenting Lender, at the
Borrowers' request, the Agent or an Eligible Assignee shall have the
right (but not the obligation) with the Agent's approval, to purchase
from the Non-Consenting Lenders, and the Non-Consenting Lenders agree
that they shall sell, all the Non-Consenting Lenders' Commitments and
Loans for an amount equal to the principal balances thereof and all
accrued interest and fees with respect thereto through the date of sale
pursuant to Assignment and Acceptance Agreement(s), without premium or
discount.
11.2 ASSIGNMENTS; PARTICIPATIONS.
(a) Any Lender may, with the written consent of the
Agent and, so long as no Default or Event of Default then exists,
Fleetwood (which consents of the Agent and Fleetwood shall not be
unreasonably withheld), assign and delegate to one or more Eligible
Assignees (PROVIDED that no consent shall be required in connection
with any assignment and delegation by a Lender to an Affiliate of such
Lender) (each an "ASSIGNEE") all, or any ratable part of all, of the
Loans, the Commitments and the other rights and obligations of such
Lender hereunder, in a minimum amount of (x) $5,000,000 for Term Loans
and (y) $10,000,000 for Revolving Commitments (PROVIDED THAT, unless an
assignor Lender has assigned and delegated all of its Loans and
Commitments, no such assignment and/or delegation shall be permitted
unless, after giving effect thereto, such assignor Lender retains a
Commitment in a minimum amount of (x) $5,000,000 for Term Loans and (y)
$10,000,000 for Revolving Commitments; PROVIDED, HOWEVER, that the
Borrowers and the Agent may continue to deal solely and directly with
such Lender in connection with the interest so assigned to an Assignee
until (i) written notice of such assignment, together with payment
instructions, addresses and related information with respect to the
Assignee, shall have been given to the Borrowers and the Agent by such
Lender and the Assignee; (ii) such Lender and its Assignee shall have
delivered to the Borrowers and the Agent an Assignment and Acceptance
in the form of EXHIBIT F ("ASSIGNMENT AND ACCEPTANCE") together with
any note or notes subject to such assignment and (iii) the assignor
Lender or Assignee has paid to the Agent a processing fee in the amount
of $3,500. The Borrowers agree to promptly execute and deliver new
promissory notes and replacement promissory notes as reasonably
requested by the Agent to evidence assignments of the Loans and
Commitments in accordance herewith.
(b) From and after the date that the Agent notifies
the assignor Lender that it has received an executed Assignment and
Acceptance and payment of the above-referenced processing fee, (i) the
Assignee thereunder shall be a party hereto and, to the extent that
rights and obligations, including, but not limited to, the obligation
to participate in Letters of Credit and Credit Support have been
assigned to it pursuant to such Assignment and Acceptance, shall have
the rights and obligations of a Lender under the Loan Documents, and
(ii) the assignor Lender shall, to the extent that rights and
66
obligations hereunder and under the other Loan Documents have been
assigned by it pursuant to such Assignment and Acceptance, relinquish
its rights and be released from its obligations under this Agreement
(and in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and
Acceptance, the assigning Lender thereunder and the Assignee thereunder
confirm to and agree with each other and the other parties hereto as
follows: (i) other than as provided in such Assignment and Acceptance,
such assigning Lender makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency
or value of this Agreement or any other Loan Document furnished
pursuant hereto or the attachment, perfection, or priority of any Lien
granted by any Loan Party to the Agent or any Lender in the Collateral;
(ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of
Fleetwood or any of its Subsidiaries or the performance or observance
by any Loan Party of any of its obligations under this Agreement or any
other Loan Document furnished pursuant hereto; (iii) such Assignee
confirms that it has received a copy of this Agreement, together with
such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into such Assignment
and Acceptance; (iv) such Assignee will, independently and without
reliance upon the Agent, such assigning Lender or any other Lender, and
based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not
taking action under this Agreement; (v) such Assignee appoints and
authorizes the Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement as are delegated to the Agent
by the terms hereof, together with such powers, including the
discretionary rights and incidental power, as are reasonably incidental
thereto; and (vi) such Assignee agrees that it will perform in
accordance with their terms all of the obligations which by the terms
of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon satisfaction of the requirements
of SECTION 11.2(a), this Agreement shall be deemed to be amended to the
extent, but only to the extent, necessary to reflect the addition of
the Assignee and the resulting adjustment of the Commitments arising
therefrom. The Commitment allocated to each Assignee shall reduce such
Commitments of the assigning Lender PRO TANTO.
(e) Any Lender may at any time sell to one or more
commercial banks, financial institutions, or other Persons not
Affiliates of any Loan Party (a "PARTICIPANT") participating interests
in any Loans, the Commitment of that Lender and the other interests of
that Lender (the "ORIGINATING LENDER") hereunder and under the other
Loan Documents; PROVIDED, HOWEVER, that (i) the originating Lender's
obligations under this Agreement shall remain unchanged, (ii) the
originating Lender shall remain solely responsible for the performance
of such obligations, (iii) the Borrowers and the Agent shall continue
to deal solely and directly with the originating Lender in connection
with the originating Lender's rights and obligations under this
Agreement and the other
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Loan Documents, and (iv) no Lender shall transfer or grant any
participating interest under which the Participant has rights to
approve any amendment to, or any consent or waiver with respect to,
this Agreement or any other Loan Document except the matters set forth
in SECTION 11.1(a) (i), (ii) AND (iii) with respect to the Loans in
which such Participant has an interest, and all amounts payable by the
Borrowers hereunder shall be determined as if such Lender had not sold
such participation; except that, if amounts outstanding under this
Agreement are due and unpaid, or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall be deemed
to have the right of set-off in respect of its participating interest
in amounts owing under this Agreement to the same extent and subject to
the same limitation as if the amount of its participating interest were
owing directly to it as a Lender under this Agreement.
(f) Notwithstanding any other provision in this
Agreement, any Lender may at any time create a security interest in, or
pledge, all or any portion of its rights under and interest in this
Agreement in favor of any Federal Reserve Bank in accordance with
Regulation A of the FRB or U.S. Treasury Regulation 31 CFR Section
203.14, and such Federal Reserve Bank may enforce such pledge or
security interest in any manner permitted under applicable law.
ARTICLE 12
THE AGENT
12.1 APPOINTMENT AND AUTHORIZATION. Each Lender hereby designates
and appoints Bank as its Agent under this Agreement and the other Loan Documents
and each Lender hereby irrevocably authorizes the Agent to take such action on
its behalf under the provisions of this Agreement and each other Loan Document
and to exercise such powers and perform such duties as are expressly delegated
to it by the terms of this Agreement or any other Loan Document, together with
such powers as are reasonably incidental thereto. The Agent agrees to act as
such on the express conditions contained in this ARTICLE 12. The provisions of
this ARTICLE 12 are solely for the benefit of the Agent and the Lenders and no
Loan Party shall have no rights as a third party beneficiary of any of the
provisions contained herein. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Loan Document, the Agent
shall not have any duties or responsibilities, except those expressly set forth
herein, nor shall the Agent have or be deemed to have any fiduciary relationship
with any Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Agent. Without limiting the generality
of the foregoing sentence, the use of the term "agent" in this Agreement with
reference to the Agent is not intended to connote any fiduciary or other implied
(or express) obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent
contracting parties. Except as expressly otherwise provided in this Agreement,
the Agent shall have and may use its sole discretion with respect to exercising
or refraining from exercising any discretionary rights or taking or refraining
from taking any actions which the Agent is expressly entitled to take or assert
under this Agreement and the other Loan Documents, including (a) the
determination of the applicability of ineligibility criteria with respect to the
calculation of the Borrowing Base, (b) the making of Agent Advances pursuant to
SECTION 1.2(i), and (c) the exercise of remedies
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pursuant to SECTION 9.2, and any action so taken or not taken shall be deemed
consented to by the Lenders.
12.2 DELEGATION OF DUTIES. The Agent may execute any of its duties
under this Agreement or any other Loan Document by or through agents, employees
or attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects as
long as such selection was made without gross negligence or willful misconduct.
12.3 LIABILITY OF THE AGENT. None of the Agent-Related Persons
shall (i) be liable for any action taken or omitted to be taken by any of them
under or in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except for its own gross negligence or willful
misconduct), or (ii) be responsible in any manner to any of the Lenders for any
recital, statement, representation or warranty made by the Borrower or any
Subsidiary or Affiliate of Fleetwood, or any officer thereof, contained in this
Agreement or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Agent under or in connection with, this Agreement or any other Loan Document, or
the validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document, or for any failure of any Loan Party or
any other party to any Loan Document to perform its obligations hereunder or
thereunder. No Agent-Related Person shall be under any obligation to any Lender
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of Fleetwood or any of
its Subsidiaries or Affiliates.
12.4 RELIANCE BY THE AGENT. The Agent shall be entitled to rely,
and shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons, and upon advice and statements of legal counsel (including counsel
to the Borrowers), independent accountants and other experts selected by the
Agent. The Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Majority Lenders as it deems
appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action. The
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement or any other Loan Document in accordance with a
request or consent of the Majority Lenders (or all Lenders if so required by
SECTION 11.1) and such request and any action taken or failure to act pursuant
thereto shall be binding upon all of the Lenders.
12.5 NOTICE OF DEFAULT. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default, unless
the Agent shall have received written notice from a Lender or the Borrowers
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default." The Agent will notify the
Lenders of its receipt of any such notice. The Agent shall take such action with
respect to such Default or Event of Default as may be requested by the Majority
Lenders in
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accordance with SECTION 9; PROVIDED, HOWEVER, that unless and until the Agent
has received any such request, the Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable.
12.6 CREDIT DECISION. Each Lender acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that no
act by the Agent hereinafter taken, including any review of the affairs of
Fleetwood, its Subsidiaries and its Affiliates, shall be deemed to constitute
any representation or warranty by any Agent-Related Person to any Lender. Each
Lender represents to the Agent that it has, independently and without reliance
upon any Agent-Related Person and based on such documents and information as it
has deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of Fleetwood, its Subsidiaries and its Affiliates, and all
applicable bank regulatory laws relating to the transactions contemplated
hereby, and made its own decision to enter into this Agreement and to extend
credit to the Borrowers. Each Lender also represents that it will, independently
and without reliance upon any Agent-Related Person and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower. Except for notices, reports and other
documents expressly herein required to be furnished to the Lenders by the Agent,
the Agent shall not have any duty or responsibility to provide any Lender with
any credit or other information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of Fleetwood or any
of its Subsidiaries which may come into the possession of any of the
Agent-Related Persons.
12.7 INDEMNIFICATION. Whether or not the transactions contemplated
hereby are consummated, the Lenders shall indemnify upon demand the
Agent-Related Persons (to the extent not reimbursed by or on behalf of the
Borrowers and without limiting the obligation of the Borrowers to do so), in
accordance with their Pro Rata Shares, from and against any and all Indemnified
Liabilities as such term is defined in SECTION 13.11; PROVIDED, HOWEVER, that no
Lender shall be liable for the payment to the Agent-Related Persons of any
portion of such Indemnified Liabilities resulting solely from such Person's
gross negligence or willful misconduct. Without limitation of the foregoing,
each Lender shall reimburse the Agent upon demand for its Pro Rata Share of any
costs or out-of-pocket expenses (including Attorney Costs) incurred by the Agent
in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the Agent is not
reimbursed for such expenses by or on behalf of the Borrowers. The undertaking
in this Section shall survive the payment of all Obligations hereunder and the
resignation or replacement of the Agent.
12.8 THE AGENT IN INDIVIDUAL CAPACITY. The Bank and its Affiliates
may make loans to, issue letters of credit for the account of, accept deposits
from, acquire equity interests in and generally engage in any kind of banking,
trust, financial advisory, underwriting or other business with Fleetwood and its
Subsidiaries and Affiliates as though the Bank were not the
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Agent hereunder and without notice to or consent of the Lenders. The Bank or its
Affiliates may receive information regarding Fleetwood, its Subsidiaries, its
Affiliates and Account Debtors (including information that may be subject to
confidentiality obligations in favor of a Loan Party or such Subsidiary) and
acknowledge that the Agent and the Bank shall be under no obligation to provide
such information to them. With respect to its Loans, the Bank shall have the
same rights and powers under this Agreement as any other Lender and may exercise
the same as though it were not the Agent, and the terms "Lender" and "Lenders"
include the Bank in its individual capacity.
12.9 SUCCESSOR AGENT. The Agent may resign as Agent upon at least
30 days' prior notice to the Lenders and the Borrowers, such resignation to be
effective upon the acceptance of a successor agent to its appointment as Agent.
In the event the Bank sells all of its Commitment and Revolving Loans as part of
a sale, transfer or other disposition by the Bank of substantially all of its
loan portfolio, the Bank shall resign as Agent and such purchaser or transferee
shall become the successor Agent hereunder. Subject to the foregoing, if the
Agent resigns under this Agreement, the Majority Lenders shall appoint from
among the Lenders a successor agent for the Lenders. If no successor agent is
appointed prior to the effective date of the resignation of the Agent, the Agent
may appoint, after consulting with the Lenders and the Borrowers, a successor
agent from among the Lenders. Upon the acceptance of its appointment as
successor agent hereunder, such successor agent shall succeed to all the rights,
powers and duties of the retiring Agent and the term "AGENT" shall mean such
successor agent and the retiring Agent's appointment, powers and duties as the
Agent shall be terminated. After any retiring Agent's resignation hereunder as
the Agent, the provisions of this ARTICLE 12 shall continue to inure to its
benefit as to any actions taken or omitted to be taken by it while it was the
Agent under this Agreement.
12.10 WITHHOLDING TAX.
(a) If any Lender is a "foreign corporation,
partnership or trust" within the meaning of the Code and such Lender
claims exemption from, or a reduction of, U.S. withholding tax under
Sections 1441 or 1442 of the Code, such Lender agrees with and in favor
of the Agent, to deliver to the Agent:
(i) if such Lender claims an exemption from,
or a reduction of, withholding tax under a United States of
America tax treaty, properly completed IRS Forms W-8BEN and
W-8ECI before the payment of any interest in the first
calendar year and before the payment of any interest in each
third succeeding calendar year during which interest may be
paid under this Agreement;
(ii) if such Lender claims that interest
paid under this Agreement is exempt from United States of
America withholding tax because it is effectively connected
with a United States of America trade or business of such
Lender, two properly completed and executed copies of IRS Form
W-8ECI before the payment of any interest is due in the first
taxable year of such Lender and in each succeeding taxable
year of such Lender during which interest may be paid under
this Agreement, and IRS Form W-9; and
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(iii) such other form or forms as may be
required under the Code or other laws of the United States of
America as a condition to exemption from, or reduction of,
United States of America withholding tax.
Such Lender agrees to promptly notify the Agent of any change in
circumstances which would modify or render invalid any claimed
exemption or reduction.
(b) If any Lender claims exemption from, or reduction
of, withholding tax under a United States of America tax treaty by
providing IRS Form FW-8BEN and such Lender sells, assigns, grants a
participation in, or otherwise transfers all or part of the Obligations
owing to such Lender, such Lender agrees to notify the Agent of the
percentage amount in which it is no longer the beneficial owner of
Obligations of the Borrowers to such Lender. To the extent of such
percentage amount, the Agent will treat such Lender's IRS Form W-8BEN
as no longer valid.
(c) If any Lender claiming exemption from United
States of America withholding tax by filing IRS Form W-8ECI with the
Agent sells, assigns, grants a participation in, or otherwise transfers
all or part of the Obligations owing to such Lender, such Lender agrees
to undertake sole responsibility for complying with the withholding tax
requirements imposed by Sections 1441 and 1442 of the Code.
(d) If any Lender is entitled to a reduction in the
applicable withholding tax, the Agent may withhold from any interest
payment to such Lender an amount equivalent to the applicable
withholding tax after taking into account such reduction. If the forms
or other documentation required by SUBSECTION (a) of this Section are
not delivered to the Agent, then the Agent may withhold from any
interest payment to such Lender not providing such forms or other
documentation an amount equivalent to the applicable withholding tax.
(e) If the IRS or any other Governmental Authority of
the United States of America or other jurisdiction asserts a claim that
the Agent did not properly withhold tax from amounts paid to or for the
account of any Lender (because the appropriate form was not delivered,
was not properly executed, or because such Lender failed to notify the
Agent of a change in circumstances which rendered the exemption from,
or reduction of, withholding tax ineffective, or for any other reason)
such Lender shall indemnify the Agent fully for all amounts paid,
directly or indirectly, by the Agent as tax or otherwise, including
penalties and interest, and including any taxes imposed by any
jurisdiction on the amounts payable to the Agent under this Section,
together with all costs and expenses (including Attorney Costs). The
obligation of the Lenders under this subsection shall survive the
payment of all Obligations and the resignation or replacement of the
Agent.
12.11 COLLATERAL MATTERS.
(a) The Lenders hereby irrevocably authorize the
Agent, at its option and in its sole discretion, to release any Agent's
Liens upon any Collateral (i) upon the termination of the Commitments
and payment and satisfaction in full by the Borrowers of
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all Loans and reimbursement obligations in respect of Letters of Credit
and Credit Support, and the termination of all outstanding Letters of
Credit (whether or not any of such obligations are due) and all other
Obligations; (ii) constituting property being sold or disposed of if
the Borrowers certify to the Agent that the sale or disposition is made
in compliance with SECTION 7.9, or SECTION 7.19 (and the Agent may rely
conclusively on any such certificate, without further inquiry) and the
proceeds are applied to the Obligations to the extent required by this
Agreement; (iii) constituting property in which a Loan Party owned no
interest at the time the Lien was granted or at any time thereafter;
(iv) constituting property leased to a Loan Party under a lease which
has expired or been terminated in a transaction permitted under this
Agreement; (v) constituting property subject to a Capital Lease or
purchase money Debt permitted by this Agreement if required by the
lender or lessor or (vi) constituting property owned by an FRC Borrower
that is released in compliance with the provisions of SECTION 3.11. In
addition any Guaranty may be released if the Guarantor is sold in a
transaction permitted under this Agreement and Liens on the Term Loan
Collateral securing the Term Loan Obligations may be released with the
consent of only the Term Lenders. Except as provided above, the Agent
will not release any of the Agent's Liens without the prior written
authorization of the Lenders; PROVIDED that the Agent may, in its
discretion, release the Agent's Liens on Collateral (other than Term
Loan Collateral) valued in the aggregate not in excess of $1,000,000
during each Fiscal Year without the prior written authorization of the
Lenders and the Agent may release the Agent's Liens on Collateral
(other than Term Loan Collateral) valued in the aggregate not in excess
of $2,000,000 during each Fiscal Year with the prior written
authorization of Majority Lenders. Upon request by the Agent or the
Borrowers at any time, the Lenders will confirm in writing the Agent's
authority to release any Agent's Liens upon particular types or items
of Collateral or any Guaranty pursuant to this SECTION 12.11.
(b) Upon receipt by the Agent of any authorization
required pursuant to SECTION 12.11(a) from the Lenders of the Agent's
authority to release Agent's Liens upon particular types or items of
Collateral or any Guaranty, and upon at least 3 Business Days prior
written request by the Borrowers, the Agent shall (and is hereby
irrevocably authorized by the Lenders to) execute such documents as may
be necessary to evidence the release of the Agent's Liens upon such
Collateral or any Guaranty; PROVIDED, HOWEVER, that (i) the Agent shall
not be required to execute any such document on terms which, in the
Agent's opinion, would expose the Agent to liability or create any
obligation or entail any consequence other than the release of such
Liens without recourse or warranty, and (ii) such release shall not in
any manner discharge, affect or impair the Obligations or any Liens
(other than those expressly being released) upon (or obligations of the
Loan Parties in respect of) all interests retained by the Loan Parties,
including the proceeds of any sale, all of which shall continue to
constitute part of the Collateral.
(c) The Agent shall have no obligation whatsoever to
any of the Lenders to assure that the Collateral exists or is owned by
any Loan Party or is cared for, protected or insured or has been
encumbered, or that the Agent's Liens have been properly or
sufficiently or lawfully created, perfected, protected or enforced or
are entitled to any particular priority, or to exercise at all or in
any particular manner or under
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any duty of care, disclosure or fidelity, or to continue exercising,
any of the rights, authorities and powers granted or available to the
Agent pursuant to any of the Loan Documents, it being understood and
agreed that in respect of the Collateral, or any act, omission or event
related thereto, the Agent may act in any manner it may deem
appropriate, in its sole discretion given the Agent's own interest in
the Collateral in its capacity as one of the Lenders and that the Agent
shall have no other duty or liability whatsoever to any Lender as to
any of the foregoing.
12.12 RESTRICTIONS ON ACTIONS BY LENDERS; SHARING OF PAYMENTS.
(a) Each of the Lenders agrees that it shall not,
without the express consent of all Lenders, and that it shall, to the
extent it is lawfully entitled to do so, upon the request of all
Lenders, set off against the Obligations, any amounts owing by such
Lender to any Loan Party or any accounts of any Loan Party now or
hereafter maintained with such Lender. Each of the Lenders further
agrees that it shall not, unless specifically requested to do so by the
Agent, take or cause to be taken any action to enforce its rights under
this Agreement or against any Loan Party, including the commencement of
any legal or equitable proceedings, to foreclose any Lien on, or
otherwise enforce any security interest in, any of the Collateral.
(b) If at any time or times any Lender shall receive
(i) by payment, foreclosure, setoff or otherwise, any proceeds of
Collateral or any payments with respect to the Obligations to such
Lender arising under, or relating to, this Agreement or the other Loan
Documents, except for any such proceeds or payments received by such
Lender from the Agent pursuant to the terms of this Agreement, or (ii)
payments from the Agent in excess of such Lender's Pro Rata Share of
all such distributions by the Agent, such Lender shall promptly (1)
turn the same over to the Agent, in kind, and with such endorsements as
may be required to negotiate the same to the Agent, or in same day
funds, as applicable, for the account of all of the Lenders and for
application to the Obligations in accordance with the applicable
provisions of this Agreement, or (2) purchase, without recourse or
warranty, an undivided interest and participation in the Obligations
owed to the other Lenders so that such excess payment received shall be
applied ratably as among the Lenders in accordance with their Pro Rata
Shares; PROVIDED, HOWEVER, that if all or part of such excess payment
received by the purchasing party is thereafter recovered from it, those
purchases of participations shall be rescinded in whole or in part, as
applicable, and the applicable portion of the purchase price paid
therefor shall be returned to such purchasing party, but without
interest except to the extent that such purchasing party is required to
pay interest in connection with the recovery of the excess payment.
12.13 AGENCY FOR PERFECTION. Each Lender hereby appoints each other
Lender as agent for the purpose of perfecting the Lenders' security interest in
assets which, in accordance with Article 9 of the UCC can be perfected by
possession. Should any Lender (other than the Agent) obtain possession of any
such Collateral, such Lender shall notify the Agent thereof, and, promptly upon
the Agent's request therefor shall deliver such Collateral to the Agent or in
accordance with the Agent's instructions.
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12.14 PAYMENTS BY THE AGENT TO LENDERS. All payments to be made by
the Agent to the Lenders shall be made by bank wire transfer or internal
transfer of immediately available funds to each Lender pursuant to wire transfer
instructions delivered in writing to the Agent on or prior to the Initial
Funding Date (or if such Lender is an Assignee, on the applicable Assignment and
Acceptance), or pursuant to such other wire transfer instructions as each party
may designate for itself by written notice to the Agent. Concurrently with each
such payment, the Agent shall identify whether such payment (or any portion
thereof) represents principal, premium or interest on the Revolving Loans, Term
Loans or otherwise. Unless the Agent receives notice from the Borrowers prior to
the date on which any payment is due to the Lenders that the Borrowers will not
make such payment in full as and when required, the Agent may assume that the
Borrowers have made such payment in full to the Agent on such date in
immediately available funds and the Agent may (but shall not be so required), in
reliance upon such assumption, distribute to each Lender on such due date an
amount equal to the amount then due such Lender. If and to the extent the
Borrowers have not made such payment in full to the Agent, each Lender shall
repay to the Agent on demand such amount distributed to such Lender, together
with interest thereon at the Federal Funds Rate for each day from the date such
amount is distributed to such Lender until the date repaid.
12.15 SETTLEMENT.
(a) (i) Each Lender's funded portion of the Revolving Loans is
intended by the Lenders to be equal at all times to such Lender's
Pro Rata Share of the outstanding Revolving Loans. Notwithstanding
such agreement, the Agent, the Bank, and the other Lenders agree
(which agreement shall not be for the benefit of or enforceable by
the Borrowers) that in order to facilitate the administration of
this Agreement and the other Loan Documents, settlement among them
as to the Revolving Loans, the Non-Ratable Loans and Agent Advances
shall take place on a periodic basis in accordance with the
following provisions:
(ii) The Agent shall request settlement ("SETTLEMENT") with
the Lenders on at least a weekly basis, or on a more frequent basis
at the Agent's election, (A) on behalf of the Bank, with respect to
each outstanding Non-Ratable Loan, (B) for itself, with respect to
each Agent Advance, and (C) with respect to collections received,
in each case, by notifying the Lenders of such requested Settlement
by telecopy, telephone or other similar form of transmission, of
such requested Settlement, no later than 11:00 a.m. (Los Angeles
time) on the date of such requested Settlement (the "SETTLEMENT
DATE"). Each Lender (other than the Bank, in the case of
Non-Ratable Loans and the Agent in the case of Agent Advances)
shall transfer the amount of such Lender's Pro Rata Share of the
outstanding principal amount of the Non-Ratable Loans and Agent
Advances with respect to each Settlement to the Agent, to Agent's
account, not later than 1:00 p.m. (Los Angeles time), on the
Settlement Date applicable thereto. Settlements may occur during
the continuation of a Default or an Event of Default and whether or
not the applicable conditions precedent set forth in ARTICLE 8 have
then been satisfied. Such amounts made available to the Agent shall
be applied against the amounts of the applicable Non-Ratable Loan
or Agent Advance and, together
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with the portion of such Non-Ratable Loan or Agent Advance
representing the Bank's Pro Rata Share thereof, shall constitute
Revolving Loans of such Lenders. If any such amount is not
transferred to the Agent by any Lender on the Settlement Date
applicable thereto, the Agent shall be entitled to recover such
amount on demand from such Lender together with interest thereon at
the Federal Funds Rate for the first three (3) days from and after
the Settlement Date and thereafter at the Interest Rate then
applicable to the Revolving Loans (A) on behalf of the Bank, with
respect to each outstanding Non-Ratable Loan, and (B) for itself,
with respect to each Agent Advance.
(iii) Notwithstanding the foregoing, not more than one (1)
Business Day after demand is made by the Agent (whether before or
after the occurrence of a Default or an Event of Default and
regardless of whether the Agent has requested a Settlement with
respect to a Non-Ratable Loan or Agent Advance), each other Lender
(A) shall irrevocably and unconditionally purchase and receive from
the Bank or the Agent, as applicable, without recourse or warranty,
an undivided interest and participation in such Non-Ratable Loan or
Agent Advance equal to such Lender's Pro Rata Share of such
Non-Ratable Loan or Agent Advance and (B) if Settlement has not
previously occurred with respect to such Non-Ratable Loans or Agent
Advances, upon demand by Bank or the Agent, as applicable, shall
pay to Bank or the Agent, as applicable, as the purchase price of
such participation an amount equal to one-hundred percent (100%) of
such Lender's Pro Rata Share of such Non-Ratable Loans or Agent
Advances. If such amount is not in fact made available to the Agent
by any Lender, the Agent shall be entitled to recover such amount
on demand from such Lender together with interest thereon at the
Federal Funds Rate for the first three (3) days from and after such
demand and thereafter at the Interest Rate then applicable to Base
Rate Revolving Loans.
(iv) From and after the date, if any, on which any Lender
purchases an undivided interest and participation in any
Non-Ratable Loan or Agent Advance pursuant to CLAUSE (iii) above,
the Agent shall promptly distribute to such Lender, such Lender's
Pro Rata Share of all payments of principal and interest and all
proceeds of Collateral received by the Agent in respect of such
Non-Ratable Loan or Agent Advance.
(v) Between Settlement Dates, the Agent, to the extent no
Agent Advances are outstanding, may pay over to the Bank any
payments received by the Agent, which in accordance with the terms
of this Agreement would be applied to the reduction of the
Revolving Loans, for application to the Bank's Revolving Loans
including Non-Ratable Loans. If, as of any Settlement Date,
collections received since the then immediately preceding
Settlement Date have been applied to the Bank's Revolving Loans
(other than to Non-Ratable Loans or Agent Advances in which such
Lender has not yet funded its purchase of a participation pursuant
to clause (iii) above), as provided for in the previous sentence,
the Bank shall pay to the Agent for the accounts of the Lenders, to
be applied to the outstanding Revolving Loans of such Lenders, an
amount such that
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each Lender shall, upon receipt of such amount, have, as of such
Settlement Date, its Pro Rata Share of the Revolving Loans. During
the period between Settlement Dates, the Bank with respect to
Non-Ratable Loans, the Agent with respect to Agent Advances, and
each Lender with respect to the Revolving Loans other than
Non-Ratable Loans and Agent Advances, shall be entitled to interest
at the applicable rate or rates payable under this Agreement on the
actual average daily amount of funds employed by the Bank, the
Agent and the other Lenders.
(vi) Unless the Agent has received written notice from a
Borrower or a Lender to the contrary, the Agent may assume that the
applicable conditions precedent set forth in ARTICLE 8 have been
satisfied and the requested Borrowing will not exceed Availability
on any Funding Date for a Revolving Loan or Non-Ratable Loan.
(b) LENDERS' FAILURE TO PERFORM. All Revolving Loans
(other than Non-Ratable Loans and Agent Advances) shall be made by the
Lenders simultaneously and in accordance with their Pro Rata Shares. It
is understood that (i) no Lender shall be responsible for any failure
by any other Lender to perform its obligation to make any Revolving
Loans hereunder, nor shall any Commitment of any Lender be increased or
decreased as a result of any failure by any other Lender to perform its
obligation to make any Revolving Loans hereunder, (ii) no failure by
any Lender to perform its obligation to make any Revolving Loans
hereunder shall excuse any other Lender from its obligation to make any
Revolving Loans hereunder, and (iii) the obligations of each Lender
hereunder shall be several, not joint and several.
(c) DEFAULTING LENDERS. Unless the Agent receives
notice from a Lender on or prior to the Initial Funding Date or, with
respect to any Borrowing after the Initial Funding Date, at least one
Business Day prior to the date of such Borrowing, that such Lender will
not make available as and when required hereunder to the Agent that
Lender's Pro Rata Share of a Borrowing, the Agent may assume that each
Lender has made such amount available to the Agent in immediately
available funds on the Funding Date. Furthermore, the Agent may, in
reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If any Lender has not transferred its full
Pro Rata Share to the Agent in immediately available funds and the
Agent has transferred corresponding amount to the applicable Borrower
on the Business Day following such Funding Date that Lender shall make
such amount available to the Agent, together with interest at the
Federal Funds Rate for that day. A notice by the Agent submitted to any
Lender with respect to amounts owing shall be conclusive, absent
manifest error. If each Lender's full Pro Rata Share is transferred to
the Agent as required, the amount transferred to the Agent shall
constitute that Lender's Revolving Loan for all purposes of this
Agreement. If that amount is not transferred to the Agent on the
Business Day following the Funding Date, the Agent will notify the
Borrowers of such failure to fund and, upon demand by the Agent, the
Borrowers shall pay such amount to the Agent for the Agent's account,
together with interest thereon for each day elapsed since the date of
such Borrowing, at a rate per annum equal to the Interest Rate
applicable at the time to the Revolving Loans comprising that
particular Borrowing. The failure of any Lender to make any Revolving
Loan on any Funding Date (any such
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Lender, prior to the cure of such failure, being hereinafter referred
to as a "DEFAULTING LENDER") shall not relieve any other Lender of its
obligation hereunder to make a Revolving Loan on that Funding Date. No
Lender shall be responsible for any other Lender's failure to advance
such other Lenders' Pro Rata Share of any Borrowing.
(d) RETENTION OF DEFAULTING LENDER'S PAYMENTS. The
Agent shall not be obligated to transfer to a Defaulting Lender any
payments made by any Borrower to the Agent for the Defaulting Lender's
benefit; nor shall a Defaulting Lender be entitled to the sharing of
any payments hereunder. Amounts payable to a Defaulting Lender shall
instead be paid to or retained by the Agent. In its discretion, the
Agent may loan any Borrower the amount of all such payments received or
retained by it for the account of such Defaulting Lender. Any amounts
so loaned to any Borrower shall bear interest at the rate applicable to
Base Rate Revolving Loans and for all other purposes of this Agreement
shall be treated as if they were Revolving Loans, PROVIDED, HOWEVER,
that for purposes of voting or consenting to matters with respect to
the Loan Documents and determining Pro Rata Shares, such Defaulting
Lender shall be deemed not to be a "Lender". Until a Defaulting Lender
cures its failure to fund its Pro Rata Share of any Borrowing (A) such
Defaulting Lender shall not be entitled to any portion of the Unused
Line Fee and (B) the Unused Line Fee shall accrue in favor of the
Lenders which have funded their respective Pro Rata Shares of such
requested Borrowing and shall be allocated among such performing
Lenders ratably based upon their relative Commitments. This Section
shall remain effective with respect to such Lender until such time as
the Defaulting Lender shall no longer be in default of any of its
obligations under this Agreement. The terms of this Section shall not
be construed to increase or otherwise affect the Commitment of any
Lender, or relieve or excuse the performance by the Borrowers of their
duties and obligations hereunder.
(e) REMOVAL OF DEFAULTING LENDER. At the Borrowers'
request, the Agent or an Eligible Assignee reasonably acceptable to the
Agent and the Borrowers shall have the right (but not the obligation)
to purchase from any Defaulting Lender, and each Defaulting Lender
shall, upon such request, sell and assign to the Agent or such Eligible
Assignee, all of the Defaulting Lender's outstanding Commitments
hereunder. Such sale shall be consummated promptly after the Agent has
arranged for a purchase by the Agent or an Eligible Assignee pursuant
to an Assignment and Acceptance, and at a price equal to the
outstanding principal balance of the Defaulting Lender's Loans, plus
accrued interest and fees, without premium or discount. Any such
purchase from a Defaulting Lender shall not effect a release of such
Defaulting Lender from any claim suit or liability hereunder or under
any Loan Document.
12.16 LETTERS OF CREDIT; INTRA-LENDER ISSUES.
(a) NOTICE OF LETTER OF CREDIT BALANCE. On each
Settlement Date the Agent shall notify each Lender of the issuance of
all Letters of Credit since the prior Settlement Date.
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(b) PARTICIPATIONS IN LETTERS OF CREDIT.
(i) PURCHASE OF PARTICIPATIONS. Immediately
upon issuance of any Letter of Credit in accordance with
SECTION 1.4(d), each Revolving Credit Lender shall be deemed
to have irrevocably and unconditionally purchased and received
without recourse or warranty, an undivided interest and
participation equal to such Lender's Pro Rata Share of the
face amount of such Letter of Credit or the Credit Support
provided through the Agent to the Letter of Credit Issuer, if
not the Bank, in connection with the issuance of such Letter
of Credit (including all obligations of the Borrowers with
respect thereto, and any security therefor or guaranty
pertaining thereto).
(ii) SHARING OF REIMBURSEMENT OBLIGATION
PAYMENTS. Whenever the Agent receives a payment from any
Borrower on account of reimbursement obligations in respect of
a Letter of Credit or Credit Support as to which the Agent has
previously received for the account of the Letter of Credit
Issuer thereof payment from a Revolving Credit Lender, the
Agent shall promptly pay to such Revolving Credit Lender such
Revolving Credit Lender's Pro Rata Share of such payment from
such Borrower. Each such payment shall be made by the Agent on
the next Settlement Date.
(iii) DOCUMENTATION. Upon the request of any
Revolving Credit Lender, the Agent shall furnish to such
Revolving Credit Lender copies of any Letter of Credit, Credit
Support for any Letter of Credit, reimbursement agreements
executed in connection therewith, applications for any Letter
of Credit, and such other documentation as may reasonably be
requested by such Revolving Credit Lender.
(iv) OBLIGATIONS IRREVOCABLE. The
obligations of each Revolving Credit Lender to make payments
to the Agent with respect to any Letter of Credit or with
respect to their participation therein or with respect to any
Credit Support for any Letter of Credit or with respect to the
Revolving Loans made as a result of a drawing under a Letter
of Credit and the obligations of the Borrower for whose
account the Letter of Credit or Credit Support was issued to
make payments to the Agent, for the account of the Revolving
Credit Lenders, shall be irrevocable and shall not be subject
to any qualification or exception whatsoever, including any of
the following circumstances:
(1) any lack of validity or
enforceability of this Agreement or any of the other
Loan Documents;
(2) the existence of any claim,
setoff, defense or other right which any Borrower may
have at any time against a beneficiary named in a
Letter of Credit or any transferee of any Letter of
Credit (or any Person for whom any such transferee
may be acting), any Revolving Credit Lender, the
Agent, the issuer of such Letter of Credit, or any
other Person, whether in connection with this
Agreement, any Letter of Credit,
79
the transactions contemplated herein or any unrelated
transactions (including any underlying transactions
between any Borrower or any other Person and the
beneficiary named in any Letter of Credit);
(3) any draft, certificate or any
other document presented under the Letter of Credit
proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein
being untrue or inaccurate in any respect;
(4) the surrender or impairment of
any security for the performance or observance of any
of the terms of any of the Loan Documents;
(5) the occurrence of any Default or
Event of Default; or
(6) the failure of any Borrower to
satisfy the applicable conditions precedent set forth
in ARTICLE 8.
(c) RECOVERY OR AVOIDANCE OF PAYMENTS; REFUND OF
PAYMENTS IN ERROR. In the event any payment by or on behalf of any
Borrower received by the Agent with respect to any Letter of Credit or
Credit Support provided for any Letter of Credit and distributed by the
Agent to the Revolving Credit Lenders on account of their respective
participations therein is thereafter set aside, avoided or recovered
from the Agent in connection with any receivership, liquidation or
bankruptcy proceeding, the Revolving Credit Lenders shall, upon demand
by the Agent, pay to the Agent their respective Pro Rata Shares of such
amount set aside, avoided or recovered, together with interest at the
rate required to be paid by the Agent upon the amount required to be
repaid by it. Unless the Agent receives notice from the Borrowers prior
to the date on which any payment is due to the Revolving Credit Lenders
that the Borrowers will not make such payment in full as and when
required, the Agent may assume that the Borrowers have made such
payment in full to the Agent on such date in immediately available
funds and the Agent may (but shall not be so required), in reliance
upon such assumption, distribute to each Revolving Credit Lender on
such due date an amount equal to the amount then due such Revolving
Credit Lender. If and to the extent the Borrowers have not made such
payment in full to the Agent, each Revolving Credit Lender shall repay
to the Agent on demand such amount distributed to such Revolving Credit
Lender, together with interest thereon at the Federal Funds Rate for
each day from the date such amount is distributed to such Revolving
Credit Lender until the date repaid.
(d) INDEMNIFICATION BY LENDERS. To the extent not
reimbursed by the Borrowers and without limiting the obligations of the
Borrowers hereunder, the Revolving Credit Lenders agree to indemnify
the Letter of Credit Issuer ratably in accordance with their respective
Pro Rata Shares, for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses
(including attorneys' fees) or disbursements of any kind and nature
whatsoever that may be imposed on, incurred by or asserted against the
Letter of Credit Issuer in any way relating to or arising
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out of any Letter of Credit or the transactions contemplated thereby or
any action taken or omitted by the Letter of Credit Issuer under any
Letter of Credit or any Loan Document in connection therewith; PROVIDED
that no Revolving Credit Lender shall be liable for any of the
foregoing to the extent it arises from the gross negligence or willful
misconduct of the Person to be indemnified. Without limitation of the
foregoing, each Revolving Credit Lender agrees to reimburse the Letter
of Credit Issuer promptly upon demand for its Pro Rata Share of any
costs or expenses payable by the Borrowers to the Letter of Credit
Issuer, to the extent that the Letter of Credit Issuer is not promptly
reimbursed for such costs and expenses by the Borrowers. The agreement
contained in this Section shall survive payment in full of all other
Obligations.
12.17 CONCERNING THE COLLATERAL AND THE RELATED LOAN DOCUMENTS.
Each Lender authorizes and directs the Agent to enter into the other Loan
Documents and the Intercreditor Agreement, for the ratable benefit and
obligation of the Agent and the Lenders. Each Lender agrees that any action
taken by the Agent, Majority Lenders or Required Lenders, as applicable, in
accordance with the terms of this Agreement or the other Loan Documents, and the
exercise by the Agent, the Majority Lenders, or the Required Lenders, as
applicable, of their respective powers set forth therein or herein, together
with such other powers that are reasonably incidental thereto, shall be binding
upon all of the Lenders. The Lenders acknowledge that the Revolving Loans, Agent
Advances, Non-Ratable Loans, Hedge Agreements, Bank Products and all interest,
fees and expenses hereunder constitute one Debt, secured PARI PASSU by all of
the Collateral, which Liens on the Term Loan Collateral shall be subordinated to
the Liens securing the Term Loan.
12.18 FIELD AUDIT AND EXAMINATION REPORTS; DISCLAIMER BY LENDERS.
By signing this Agreement, each Lender:
(a) is deemed to have requested that the Agent
furnish such Lender, promptly after it becomes available, a copy of
each field audit or examination report (each a "REPORT" and
collectively, "REPORTS") prepared by or on behalf of the Agent;
(b) expressly agrees and acknowledges that neither
the Bank nor the Agent (i) makes any representation or warranty as to
the accuracy of any Report, or (ii) shall be liable for any information
contained in any Report;
(c) expressly agrees and acknowledges that the
Reports are not comprehensive audits or examinations, that the Agent or
the Bank or other party performing any audit or examination will
inspect only specific information regarding the Borrowers and will rely
significantly upon the Borrowers' books and records, as well as on
representations of the Borrowers' personnel;
(d) agrees to keep all Reports confidential and
strictly for its internal use, and not to distribute except to its
participants, or use any Report in any other manner in accordance with
the provisions of Section 13.17; and
(e) without limiting the generality of any other
indemnification provision contained in this Agreement, agrees: (i) to
hold the Agent and any such other
81
Lender preparing a Report harmless from any action the indemnifying
Lender may take or conclusion the indemnifying Lender may reach or draw
from any Report in connection with any loans or other credit
accommodations that the indemnifying Lender has made or may make to any
Borrower, or the indemnifying Lender's participation in, or the
indemnifying Lender's purchase of, a loan or loans of any Borrower; and
(ii) to pay and protect, and indemnify, defend and hold the Agent and
any such other Lender preparing a Report harmless from and against, the
claims, actions, proceedings, damages, costs, expenses and other
amounts (including Attorney Costs) incurred by the Agent and any such
other Lender preparing a Report as the direct or indirect result of any
third parties who might obtain all or part of any Report through the
indemnifying Lender.
12.19 RELATION AMONG LENDERS. The Lenders are not partners or
co-venturers, and no Lender shall be liable for the acts or omissions of, or
(except as otherwise set forth herein in case of the Agent) authorized to act
for, any other Lender.
12.20 CO-AGENTS. None of the Lenders identified on the facing page
or signature pages of this Agreement as a "co-agent" shall have any right,
power, obligation, liability, responsibility or duty under this Agreement other
than those applicable to all Lenders as such. Without limiting the foregoing,
none of the Lenders so identified as a "co-agent" shall have or be deemed to
have any fiduciary relationship with any Lender. Each Lender acknowledges that
it has not relied, and will not rely, on any of the Lenders so identified in
deciding to enter into this Agreement or in taking or not taking action
hereunder.
12.21 COLLATERAL PRIORITY. The Lenders hereby agree that the Liens
created under the Collateral Documents (a) on the Term Loan Collateral
constitute (i) first priority, perfected Liens in favor of the Agent, for the
ratable benefit of the Agent and the Term Lenders, and (ii) second priority,
perfected Liens in favor of the Agent, for the ratable benefit of the Agent and
the Revolving Credit Lenders, junior only to the Liens described in the
foregoing clause (a)(i), and (b) on the Collateral other than the Term Loan
Collateral constitute (i) first priority perfected Liens in favor of the Agent,
for the ratable benefit of the Agent and the Revolving Credit Lenders, and (ii)
second priority perfected Liens in favor of the Agent, for the ratable benefit
of the Agent and the Term Lenders, junior only to the Liens described in the
foregoing clause (b)(i), except in each case for Permitted Liens.
ARTICLE 13
MISCELLANEOUS
13.1 NO WAIVERS; CUMULATIVE REMEDIES. No failure by the Agent or
any Lender to exercise any right, remedy, or option under this Agreement or any
present or future supplement thereto, or in any other agreement between or among
the Borrowers (or any of them), the Loan Parties (or any of them) and the Agent
and/or any Lender, or delay by the Agent or any Lender in exercising the same,
will operate as a waiver thereof. No waiver by the Agent or any Lender will be
effective unless it is in writing, and then only to the extent specifically
stated. No waiver by the Agent or the Lenders on any occasion shall affect or
diminish the Agent's and each Lender's rights thereafter to require strict
performance by the Borrowers of any provision of this Agreement or by any Loan
Party of any provision of any Loan Document. The Agent and the Lenders may
proceed directly to collect the Obligations without any prior recourse
82
to the Collateral. The Agent's and each Lender's rights under this Agreement
will be cumulative and not exclusive of any other right or remedy which the
Agent or any Lender may have.
13.2 SEVERABILITY. The illegality or unenforceability of any
provision of this Agreement or any Loan Document or any instrument or agreement
required hereunder shall not in any way affect or impair the legality or
enforceability of the remaining provisions of this Agreement or any instrument
or agreement required hereunder.
13.3 GOVERNING LAW; CHOICE OF FORUM; SERVICE OF PROCESS.
(a) THIS AGREEMENT SHALL BE INTERPRETED AND THE
RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE
WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICT OF LAWS PROVISIONS
PROVIDED THAT ISSUES WITH RESPECT TO CREATION, PERFECTION OR
ENFORCEMENT OF LIENS UNDER ARTICLE 9 OF THE UCC MAY GIVE EFFECT TO
APPLICABLE CHOICE OR CONFLICT OF LAW RULES SET FORTH IN ARTICLE 9 OF
THE UCC) OF THE STATE OF
CALIFORNIA; PROVIDED THAT THE AGENT AND THE
LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS
OF THE STATE OF
CALIFORNIA OR OF THE UNITED STATES OF AMERICA LOCATED
IN LOS ANGELES COUNTY,
CALIFORNIA, AND BY EXECUTION AND DELIVERY OF
THIS AGREEMENT, EACH OF THE BORROWERS, THE AGENT AND THE LENDERS
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE PERSONAL JURISDICTION OF THOSE COURTS. EACH OF THE
BORROWERS, THE AGENT AND THE LENDERS IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS
OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF
THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. NOTWITHSTANDING THE
FOREGOING: (1) THE AGENT AND THE LENDERS SHALL HAVE THE RIGHT TO BRING
ANY ACTION OR PROCEEDING AGAINST ANY LOAN PARTY OR ITS PROPERTY IN THE
COURTS OF ANY OTHER JURISDICTION THE AGENT OR THE LENDERS DEEM
NECESSARY OR APPROPRIATE IN ORDER TO REALIZE ON THE COLLATERAL OR OTHER
SECURITY FOR THE OBLIGATIONS AND (2) EACH OF THE PARTIES HERETO
ACKNOWLEDGES THAT ANY APPEALS FROM THE COURTS DESCRIBED IN THE
IMMEDIATELY PRECEDING SENTENCE MAY HAVE TO BE HEARD BY A COURT LOCATED
OUTSIDE THOSE JURISDICTIONS.
(c) FLEETWOOD AND EACH BORROWER HEREBY WAIVES
PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL
SUCH SERVICE OF PROCESS MAY BE MADE BY PERSONAL
83
DELIVERY OR OVERNIGHT COURIER DIRECTED TO FLEETWOOD AND EACH THE
BORROWERS AT ITS ADDRESS SET FORTH IN SECTION 13.8 AND SERVICE SO MADE
SHALL BE DEEMED TO BE COMPLETED FIVE (5) DAYS AFTER THE SAME SHALL HAVE
BEEN SO DEPOSITED IN THE U.S. MAILS POSTAGE PREPAID. NOTHING CONTAINED
HEREIN SHALL AFFECT THE RIGHT OF AGENT OR THE LENDERS TO SERVE LEGAL
PROCESS BY ANY OTHER MANNER PERMITTED BY LAW.
13.4 WAIVER OF JURY TRIAL. FLEETWOOD, EACH BORROWER, THE LENDERS
AND THE AGENT EACH IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY
OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY
ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON,
PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS,
OR OTHERWISE. FLEETWOOD, EACH BORROWER, THE LENDERS AND THE AGENT EACH AGREE
THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A
JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR
RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO
ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART,
TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS.
13.5 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties contained in this Agreement shall survive the
execution, delivery, and acceptance thereof by the parties, notwithstanding any
investigation by the Agent or the Lenders or their respective agents.
13.6 OTHER SECURITY AND GUARANTIES. The Agent, may, without notice
or demand and without affecting the Borrowers' obligations hereunder, from time
to time: (a) take from any Person and hold collateral (other than the
Collateral) for the payment of all or any part of the Obligations and exchange,
enforce or release such collateral or any part thereof; and (b) accept and hold
any endorsement or guaranty of payment of all or any part of the Obligations and
release or substitute any such endorser or guarantor, or any Person who has
given any Lien in any other collateral as security for the payment of all or any
part of the Obligations, or any other Person in any way obligated to pay all or
any part of the Obligations.
13.7 FEES AND EXPENSES. The Borrowers agree jointly and severally
to pay to the Agent, for its benefit, on demand, all costs and expenses that the
Agent pays or incurs in connection with the negotiation, preparation,
syndication, consummation, administration, enforcement, and termination of this
Agreement or any of the other Loan Documents, including: (a) Attorney Costs; (b)
costs and expenses (including reasonable attorneys' and paralegals' fees
84
and disbursements) for any amendment, supplement, waiver, consent, or subsequent
closing in connection with the Loan Documents and the transactions contemplated
thereby; (c) costs and expenses of lien and title searches and title insurance;
(d) taxes, fees and other charges for recording the Mortgages, filing financing
statements and continuations, and other actions to perfect, protect, and
continue the Agent's Liens (including costs and expenses paid or incurred by the
Agent in connection with the consummation of Agreement); (e) sums paid or
incurred to pay any amount or take any action required of any Loan Party under
the Loan Documents that it fails to pay or take; (f) costs of appraisals,
inspections, and verifications of the Collateral, including travel, lodging, and
meals for inspections of the Collateral and the Loan Parties' operations by the
Agent plus the Agent's then customary charge for field examinations and audits
and the preparation of reports thereof (such charge is currently $750 per day
(or portion thereof) for each Person retained or employed by the Agent with
respect to each field examination or audit); and (g) costs and expenses of
forwarding loan proceeds, collecting checks and other items of payment, and
establishing and maintaining Payment Accounts and lock boxes, and costs and
expenses of preserving and protecting the Collateral. In addition, the Borrowers
jointly and severally agree to pay costs and expenses incurred by the Agents
(including Attorneys' Costs) to the Agents, for their benefit, on demand, and to
the other Lenders for their benefit, on demand, and all reasonable fees,
expenses and disbursements incurred by such other Lenders for one law firm
retained by such other Lenders as a group, in each case, paid or incurred to
obtain payment of the Obligations, enforce the Agent's Liens, sell or otherwise
realize upon the Collateral, and otherwise enforce the provisions of the Loan
Documents, or to defend any claims made or threatened against the Agent or any
Lender arising out of the transactions contemplated hereby (including
preparations for and consultations concerning any such matters). The foregoing
shall not be construed to limit any other provisions of the Loan Documents
regarding costs and expenses to be paid by the Borrowers or any other Loan
Party. All of the foregoing costs and expenses shall be charged to the
Borrowers' Loan Account as Revolving Loans as described in SECTION 3.7.
13.8 NOTICES. Except as otherwise provided herein, all notices,
demands and requests that any party is required or elects to give to any other
shall be in writing, or by a telecommunications device capable of creating a
written record, and any such notice shall become effective (a) upon personal
delivery thereof, including, but not limited to, delivery by overnight mail and
courier service, (b) five (5) days after it shall have been mailed by United
States mail, first class, certified or registered, with postage prepaid, or (c)
in the case of notice by such a telecommunications device, when receipt is
confirmed, in each case addressed to the party to be notified as follows:
If to the Agent or to the Bank:
Bank of America, N.A.
00 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxx
Telecopy No.: (000) 000-0000
85
with copies to:
Xxxxxx & Xxxxxxx
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxx, Esq.
Telecopy No.: (000) 000-0000
If to Fleetwood or any Borrower:
Fleetwood Holdings Inc.
Fleetwood Enterprises, Inc.
Fleetwood Retail Corp., Inc.
0000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Telecopy No.: (000) 000-0000
Attention: General Counsel
Telecopy No.: (000) 000-0000
with copies to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
Jamboree Center
0 Xxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
or to such other address as each party may designate for itself by like notice.
Failure or delay in delivering copies of any notice, demand, request, consent,
approval, declaration or other communication to the persons designated above to
receive copies shall not adversely affect the effectiveness of such notice,
demand, request, consent, approval, declaration or other communication.
13.9 WAIVER OF NOTICES. Unless otherwise expressly provided
herein, each Borrower waives presentment, and notice of demand or dishonor and
protest as to any instrument, notice of intent to accelerate the Obligations and
notice of acceleration of the Obligations, as well as any and all other notices
to which it might otherwise be entitled. No notice to or demand on any Borrower
which the Agent or any Lender may elect to give shall entitle any Borrower to
any or further notice or demand in the same, similar or other circumstances.
13.10 BINDING EFFECT. The provisions of this Agreement shall be
binding upon and inure to the benefit of the respective representatives,
successors, and assigns of the parties hereto; PROVIDED, HOWEVER, that no
interest herein may be assigned by any Borrower without prior written consent of
the Agent and each Lender. The rights and benefits of the Agent and the
86
Lenders hereunder shall, if such Persons so agree, inure to any party acquiring
any interest in the Obligations or any part thereof.
13.11 INDEMNITY OF THE AGENT AND THE LENDERS BY THE BORROWER.
(a) The Borrowers jointly and severally agree to
defend, indemnify and hold the Agent-Related Persons, and each Lender
and each of its respective officers, directors, employees, counsel,
representatives, agents and attorneys-in-fact (each, an "INDEMNIFIED
PERSON") harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
costs, charges, expenses and disbursements (including Attorney Costs)
of any kind or nature whatsoever which may at any time (including at
any time following repayment of the Loans and the termination,
resignation or replacement of the Agent or replacement of any Lender)
be imposed on, incurred by or asserted against any such Person in any
way relating to or arising out of this Agreement or any document
contemplated by or referred to herein, or the transactions contemplated
hereby, or any action taken or omitted by any such Person under or in
connection with any of the foregoing, including with respect to any
investigation, litigation or proceeding (including any Insolvency
Proceeding or appellate proceeding) related to or arising out of this
Agreement, any other Loan Document, or the Loans or the use of the
proceeds thereof, whether or not any Indemnified Person is a party
thereto (all the foregoing, collectively, the "INDEMNIFIED
LIABILITIES"); PROVIDED, that the Borrowers shall have no obligation
hereunder to any Indemnified Person with respect to Indemnified
Liabilities finally determined by a court of competent jurisdiction to
have resulted primarily from the gross negligence or willful misconduct
of such Indemnified Person. The agreements in this Section shall
survive payment of all other Obligations.
(b) The Borrowers agree to indemnify, defend and hold
harmless the Agent and the Lenders from any loss or liability directly
or indirectly arising out of the use, generation, manufacture,
production, storage, release, threatened release, discharge, disposal
or presence of a hazardous substance relating to any Loan Party's
operations, business or property. This indemnity will apply whether the
hazardous substance is on, under or about any Loan Party's property or
operations or property leased to any Loan Party's. The indemnity
includes but is not limited to Attorneys Costs. The indemnity extends
to the Agent and the Lenders, their parents, affiliates, subsidiaries
and all of their directors, officers, employees, agents, successors,
attorneys and assigns. "Hazardous substances" means any substance,
material or waste that is or becomes designated or regulated as
"toxic," "hazardous," "pollutant," or "contaminant" or a similar
designation or regulation under any federal, state or local law
(whether under common law, statute, regulation or otherwise) or
judicial or administrative interpretation of such, including petroleum
or natural gas. This indemnity will survive repayment of all other
Obligations.
13.12 LIMITATION OF LIABILITY. NO CLAIM MAY BE MADE BY FLEETWOOD,
ANY BORROWER, ANY LENDER OR OTHER PERSON AGAINST THE AGENT, ANY LENDER, OR THE
AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, COUNSEL, REPRESENTATIVES, AGENTS OR
ATTORNEYS-IN-FACT OF ANY OF THEM FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR
PUNITIVE DAMAGES IN RESPECT OF ANY CLAIM FOR BREACH OF CONTRACT OR ANY OTHER
THEORY OF
87
LIABILITY ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY ACT, OMISSION OR EVENT
OCCURRING IN CONNECTION THEREWITH, AND FLEETWOOD, EACH BORROWER AND EACH LENDER
HEREBY WAIVE, RELEASE AND AGREE NOT TO XXX UPON ANY CLAIM FOR SUCH DAMAGES,
WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN ITS
FAVOR.
13.13 FINAL AGREEMENT. This Agreement and the other Loan Documents
are intended by Fleetwood, each Borrower, the Agent and the Lenders to be the
final, complete, and exclusive expression of the agreement between them. This
Agreement supersedes any and all prior oral or written agreements relating to
the subject matter hereof except for the Fee Letter. No modification,
rescission, waiver, release, or amendment of any provision of this Agreement or
any other Loan Document shall be made, except by a written agreement signed by
the Borrowers and a duly authorized officer of each of the Agent and the
requisite Lenders.
13.14 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and by the Agent, each Lender, Fleetwood and the Borrower in
separate counterparts, each of which shall be an original, but all of which
shall together constitute one and the same agreement; signature pages may be
detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
13.15 CAPTIONS. The captions contained in this Agreement are for
convenience of reference only, are without substantive meaning and should not be
construed to modify, enlarge, or restrict any provision.
13.16 RIGHT OF SETOFF. In addition to any rights and remedies of the
Lenders provided by law, if an Event of Default exists or the Loans have been
accelerated, each Lender is authorized at any time and from time to time,
without prior notice to Fleetwood or the Borrowers, any such notice being waived
by Fleetwood and the Borrowers to the fullest extent permitted by law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held by, and other indebtedness at any time
owing by, such Lender or any Affiliate of such Lender to or for the credit or
the account of Fleetwood and the Borrowers against any and all Obligations owing
to such Lender, now or hereafter existing, irrespective of whether or not the
Agent or such Lender shall have made demand under this Agreement or any Loan
Document and although such Obligations may be contingent or unmatured. Each
Lender agrees promptly to notify the Borrowers and the Agent after any such
set-off and application made by such Lender; PROVIDED, HOWEVER, that the failure
to give such notice shall not affect the validity of such set-off and
application. NOTWITHSTANDING THE FOREGOING, NO LENDER SHALL EXERCISE ANY RIGHT
OF SET-OFF, BANKER'S LIEN, OR THE LIKE AGAINST ANY DEPOSIT ACCOUNT OR PROPERTY
OF FLEETWOOD OR ANY LOAN PARTY HELD OR MAINTAINED BY SUCH LENDER WITHOUT THE
PRIOR WRITTEN UNANIMOUS CONSENT OF THE LENDERS.
88
13.17 CONFIDENTIALITY.
(a) Fleetwood and each Borrower hereby consents that
the Agent and each Lender may issue and disseminate to the public
general information describing the credit accommodation entered into
pursuant to this Agreement, including the name and address of Fleetwood
or the Borrowers and a general description of the business of Fleetwood
and its Subsidiaries and may use Fleetwood's and the Borrowers' names
in advertising and other promotional material.
(b) Each Lender severally agrees to take normal and
reasonable precautions and exercise due care to maintain the
confidentiality of all non-public financial information provided to the
Lenders and relating to Fleetwood or any Borrower, non-public
information relating to major transactions not in the ordinary course
of business and to be entered into by Fleetwood or any Borrower, and
all other information identified as "confidential" or "secret" by
Fleetwood or the Borrowers and provided to the Agent or such Lender by
or on behalf of the Borrowers, under this Agreement or any other Loan
Document, except to the extent that such information (i) was or becomes
generally available to the public other than as a result of disclosure
by the Agent or such Lender, or (ii) was or becomes available on a
nonconfidential basis from a source other than Fleetwood or the
Borrowers, PROVIDED that such source is not bound by a confidentiality
agreement with Fleetwood or the Borrowers known to the Agent or such
Lender; PROVIDED, HOWEVER, that the Agent and any Lender may disclose
such information (1) at the request or pursuant to any requirement of
any Governmental Authority to which the Agent or such Lender is subject
or in connection with an examination of the Agent or such Lender by any
such Governmental Authority; (2) pursuant to subpoena or other court
process; (3) when required to do so in accordance with the provisions
of any applicable Requirement of Law; (4) to the extent reasonably
required in connection with any litigation or proceeding (including,
but not limited to, any bankruptcy proceeding) to which the Agent, any
Lender or their respective Affiliates may be party involving any Loan
Document, any Loan Party or the use of the proceeds of the Loans; (5)
to the extent reasonably required in connection with the exercise of
any remedy hereunder or under any other Loan Document; (6) to the
Agent's or such Lender's independent auditors, accountants, attorneys
and other professional advisors; (7) to any prospective Participant or
Assignee under any Assignment and Acceptance, actual or potential,
PROVIDED that such prospective Participant or Assignee agrees to keep
such information confidential to the same extent required of the Agent
and the Lenders hereunder; (8) as expressly permitted under the terms
of any other document or agreement regarding confidentiality to which
Fleetwood or any Borrower is party or is deemed party with the Agent or
such Lender, and (9) to its Affiliates.
13.18 CONFLICTS WITH OTHER LOAN DOCUMENTS. Unless otherwise
expressly provided in this Agreement (or in another Loan Document by specific
reference to the applicable provision contained in this Agreement), if any
provision contained in this Agreement conflicts with any provision of any other
Loan Document, the provision contained in this Agreement shall govern and
control.
89
13.19 INCREASES IN TOTAL REVOLVING CREDIT COMMITMENT.
(a) COMMITMENT INCREASE. The Borrowers have requested
that the Revolving Credit Commitments be increased to $230,000,000, and
the Agent has agreed to use its best efforts to find one or more
additional financial institutions (the "NEW LENDERS") to become parties
to this Agreement with Revolving Credit Commitments not in excess of an
amount sufficient to increase the Revolving Credit Commitments to
$230,000,000 in the aggregate (the "COMMITMENT INCREASE"). The New
Lenders shall be selected by the Agent and the Borrowers shall pay to
the Agent the fees and expenses provided for in the Agent Fee Letter.
The Agent shall have no liability to the Borrowers or the Lenders if
the Agent is unable to successfully syndicate the Commitment Increase.
If the Agent is able to successfully syndicate the Commitment Increase,
the Commitment Increase (or so much thereof as shall have been
syndicated, as notified to the Borrowers and the Lenders by the Agent)
shall become effective on the date specified by the Agent (the "NEW
LENDER EFFECTIVE DATE"); provided, however, that (i) no Default or
Event of Default shall exist on such date, both before and after giving
effect to the Commitment Increase, (ii) the New Lenders shall have
entered into one or more joinder agreements, in form and substance
satisfactory to the Agent, to become Lenders hereunder, (iii) the
Borrowers shall have paid all fees and expenses in connection with the
syndication and arrangement of the Commitment Increase, (iv) if
requested by the New Lenders, the Borrowers shall have executed and
delivered to the Agent for the benefit of the New Lenders promissory
notes in the amount of the respective portion of the Commitment
Increase, and (v) the Borrowers shall have delivered or caused to be
delivered to the Agent such legal opinions, certificates and other
documents as the Agent may reasonably request.
(b) On the New Lender Effective Date (i) Schedule 1.2
shall be amended to reflect the reallocated Revolving Credit
Commitments, (ii) each New Lender shall become a Lender hereunder and
under the other Loan Documents; (iii) the Borrowers shall pay the
principal amount of, and accrued and unpaid interest on, Revolving
Loans of the Lenders other than the New Lenders in an amount sufficient
(as determined by the Agent) to permit the New Lender to fund Revolving
Loans in an amount equal to the New Lenders' Pro Rata Share of the then
outstanding Revolving Loans, and in connection with such payment shall
also pay breakage losses on such repayment in accordance with SECTION
4.4; and (iv) each New Lender shall fund Revolving Loans in an amount
equal to its Pro Rata Share of the then outstanding Revolving Loans.
(c) In no event shall the Revolving Credit
Commitments exceed $230,000,000 without the consent of all Lenders.
[Signatures on Following Page]
90
IN WITNESS WHEREOF, the parties have entered into this
Credit
Agreement on the date first above written.
"FMC 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.
FLEETWOOD MOTOR HOMES OF PENNSYLVANIA, INC.
S-1
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.
FLEETWOOD FOLDING TRAILERS, 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.
By:
--------------------------------
Name: Xxxx. X. Xxxxxxx
Title: Senior Vice President and Chief
Financial Officer
S-2
"FRC BORROWERS" FLEETWOOD RETAIL CORP.
FLEETWOOD RETAIL CORP. OF CALIFORNIA
FLEETWOOD RETAIL CORP. OF IDAHO
FLEETWOOD RETAIL CORP. OF KENTUCKY
FLEETWOOD RETAIL CORP. OF MISSISSIPPI
FLEETWOOD RETAIL CORP. OF NORTH CAROLINA
FLEETWOOD RETAIL CORP. OF OREGON
FLEETWOOD RETAIL CORP. OF VIRGINIA
By:
--------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President and Chief
Financial Officer
"GUARANTOR" FLEETWOOD ENTERPRISES, INC., as the
Guarantor
By:
--------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President and Chief
Financial Officer
S-3
"AGENT" BANK OF AMERICA, N.A., as the Agent
By:
--------------------------------
, Vice President
-------------------
"DOCUMENTATION AGENT" CITICORP USA, INC., as the Documentation Agent
By:
--------------------------------
, Vice President
-------------------
S-4
"SYNDICATION AGENT" XXXXXX FINANCIAL, INC., as the Syndication Agent
By:
--------------------------------
, Vice President
-------------------
"LENDERS" BANK OF AMERICA, N.A., as a Lender
By:
--------------------------------
, Vice President
-------------------
CITICORP USA, INC, as a Lender
By:
--------------------------------
, Vice President
-------------------
XXXXXX FINANCIAL, INC., as a Lender
By:
--------------------------------
, Vice President
-------------------
S-5
THE CIT GROUP/BUSINESS CREDIT, INC.
By:
--------------------------------
, Vice President
-------------------
S-6
FOOTHILL CAPITAL CORPORATION
By:
--------------------------------
, Vice President
-------------------
S-7
GMAC BUSINESS CREDIT, INC.
By:
--------------------------------
, Vice President
-------------------
S-8
ANNEX A
TO
CREDIT AGREEMENT
DEFINITIONS
Capitalized terms used in the Loan Documents shall have the
following respective meanings (unless otherwise defined therein), and all
section references in the following definitions shall refer to sections of the
Agreement:
"ACCOUNTS" means, as to any Person, all of such Person's now
owned or hereafter acquired or arising accounts, as defined in the UCC,
including any rights to payment for the sale or lease of goods or rendition of
services, whether or not they have been earned by performance.
"ACCOUNT DEBTOR" means each Person obligated in any way on or
in connection with an Account.
"ACH TRANSACTIONS" means any cash management or related
services including the automatic clearinghouse transfer of funds by the Bank for
the account of any Loan Party pursuant to agreement or overdrafts.
"ADI" means Associated Dealers, Inc. or any Person which
acquires all of the Inventory at any locations of an FRC Borrower pursuant to
the ADI Agreement.
"ADI AGREEMENT" means that certain Operating Agreement dated
as of January 2001 between Retail and ADI
"ADJUSTED NET EARNINGS FROM OPERATIONS" means, with respect to
any fiscal period the net income of Fleetwood and its consolidated Subsidiaries
after provision for income taxes for such fiscal period, as determined in
accordance with GAAP and reported on the Financial Statements for such period,
excluding any and all of the following included in such net income: (a) gain or
loss arising from the sale of any capital assets; (b) gain arising from any
write-up in the book value of any asset; (c) earnings of any Person,
substantially all the assets of which have been acquired by Fleetwood or any of
its Subsidiaries in any manner, to the extent realized by such other Person
prior to the date of acquisition; (d) earnings of any Person in which any Person
other than Fleetwood or any of its Subsidiaries has an ownership interest unless
(and only to the extent) such earnings shall actually have been received by
Fleetwood or any of its Subsidiaries in the form of cash distributions; (e)
earnings of any Person to which assets of Fleetwood or any of its Subsidiaries
shall have been sold, transferred or disposed of, or into which any Subsidiary
shall have been merged, or which has been a party with Fleetwood or any of its
Subsidiaries to any consolidation or other form of reorganization, prior to the
date of such transaction; (f) gain arising from the acquisition of debt or
equity securities of Fleetwood or any of its Subsidiaries or from cancellation
or forgiveness of Debt; (g) gain arising from extraordinary items, as determined
in accordance with GAAP, or from any other non-recurring transaction; (h)
interest income; (i) other income not earned from operations; (j) any write-down
or write-off of goodwill under FAS 142; (k) any non-cash adjustment required as
a result of a change in GAAP that occurs after the Closing Date; and (l)
write-downs of Fixed Assets (other than Eligible Equipment, Eligible Real Estate
or Term Loan Collateral) or goodwill as a result of an
Annex - 1
impairment in the value of such Fixed Assets or goodwill that requires a
write-down in accordance with GAAP; PROVIDED that the aggregate amount of all
write-downs under this clause (l) for the life of the Agreement shall not exceed
$8,000,000.
"AFFILIATE" means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person or which owns, directly or indirectly, ten percent
(10%) or more of the outstanding equity interest of such Person. A Person shall
be deemed to control another Person if the controlling Person possesses,
directly or indirectly, the power to direct or cause the direction of the
management and policies of the other Person, whether through the ownership of
voting securities, by contract, or otherwise.
"AGENT" means the Bank, solely in its capacity as agent for
the Lenders, and any successor agent.
"AGENT ADVANCES" has the meaning specified in SECTION 1.2(i).
"AGENT FEE LETTER" means that certain fee letter dated July
27, 2001 between the Agent and Fleetwood.
"AGENT'S LIENS" means the Liens in the Collateral granted to
the Agent, for the benefit of the Lenders, Bank, and the Agent pursuant to the
Loan Documents.
"AGENT-RELATED PERSONS" means the Agent, together with its
Affiliates, and the officers, directors, employees, counsel, representatives,
agents and attorneys-in-fact of the Agent and such Affiliates.
"AGENTS" means the Agent, the Documentation Agent and the
Syndication Agent.
"AGGREGATE AVAILABILITY" means, at any time, (a) the lesser of
(i) the Maximum Revolver Amount or (ii) the Aggregate Borrowing Bases, MINUS (b)
Reserves other than Reserves deducted in the calculation of the Borrowing Bases,
MINUS (c) in each case, the Aggregate Revolver Outstandings.
"AGGREGATE BORROWING BASES" means, at any time, the Borrowing
Base of FMC PLUS the Borrowing Base of FRC.
"AGGREGATE REVOLVER OUTSTANDINGS" means, at any date of
determination: the sum of the following for all Borrowers: (a) the unpaid
balance of Revolving Loans, (b) the aggregate amount of Pending Revolving Loans,
(c) one hundred percent (100%) of the aggregate undrawn face amount of all
outstanding Letters of Credit, and (d) the aggregate amount of any unpaid
reimbursement obligations in respect of Letters of Credit; PROVIDED that for
purposes of determining Availability of FMC or FRC, the forgoing shall be
determined solely with respect to FMC or FRC, as applicable.
"AGREEMENT" means the
Credit Agreement to which this ANNEX A
is attached, as from time to time amended, supplemented, modified or restated.
Annex - 2
"ANNIVERSARY DATE" means each anniversary of the Closing Date.
"APPLICABLE MARGIN" means (i) with respect to the Term Loans,
3.00%, increasing to 6.00% on the first Anniversary Date; and (ii) with respect
to the Revolving Loans, all other Obligations (other than the Term Loans), the
Unused Line Fee and the Letter of Credit Fee, a rate per annum corresponding to
the Levels set forth below opposite the Liquidity set forth below determined as
of the end of the most recent fiscal month, and if applicable, at any time after
delivery of the audited Financial Statements for the Fiscal Year ended April 28,
2002, (x) the Fixed Charge Coverage Ratio for the four-Fiscal Quarter Period
ended as of the end of the most recent Fiscal Quarter, and (y) the Fixed Charge
Coverage Ratio for the four-Fiscal Quarter Period ended as of the end Fiscal
Quarter immediately preceding the Fiscal Quarter referred to in clause (x). The
Applicable Margin shall be based on Level III through December 31, 2001, and in
no event shall Level I be available until after delivery of the Financial
Statements for the Fiscal Year ending April 28, 2002. Adjustments in Applicable
Margins shall be determined by reference to the following grids:
---------------------------------------- -------------------------------------
LEVEL OF
IF LIQUIDITY IS: APPLICABLE MARGINS:
---------------------------------------- -------------------------------------
GREATER THAN$80,000,000 and the Four- Level I
Fiscal-Quarter-Fixed Charge Coverage
Ratio is greater than 1.5 to 1.0 for
each of the two most recently ended
Fiscal Quarters
---------------------------------------- -------------------------------------
GREATER THAN OR EQUAL TO$80,000,000 Level II
---------------------------------------- -------------------------------------
GREATER THAN$55,000,000, but Level III
LESS THAN OR EQUAL TO$80,000,000
---------------------------------------- -------------------------------------
LESS THAN OR EQUAL TO$55,000,000 Level IV
---------------------------------------- -------------------------------------
LOW TO HIGH
--------------------------------------- ------------------------------------------------------------
APPLICABLE MARGINS
--------------------------------------- ------------------------------------------------------------
XXXXX X XXXXX XX XXXXX XXX XXXXX XX
--------------------------------------- -------------- --------------- -------------- --------------
Base Rate Revolving Loans 0% 0.50% 1.00% 1.50%
--------------------------------------- -------------- --------------- -------------- --------------
LIBOR Revolving Loans 2.25% 2.75% 3.25% 3.75%
--------------------------------------- -------------- --------------- -------------- --------------
Unused Line Fees .25% .375% .500% .625%
--------------------------------------- -------------- --------------- -------------- --------------
Letter of Credit Fees 2.25% 2.75% 3.25% 3.75%
--------------------------------------- -------------- --------------- -------------- --------------
All adjustments in the Applicable Margin shall be based on the
Pricing Certificate delivered pursuant to SECTION 5.2(m), and, if applicable,
the unaudited Financial Statements delivered pursuant to SECTION 5.2(b) and
shall be implemented on the first day of the calendar month commencing at least
5 days after the date of delivery to the Lenders of the Pricing Certificate for
any month and, if applicable, the Financial Statements evidencing the need for
an adjustment, PROVIDED, HOWEVER, that if the Applicable Margins are adjusted at
the end of any Fiscal Year based upon a Pricing Certificate delivered pursuant
to SECTION 5.2(m) and/or unaudited Financial Statements delivered pursuant to
SECTION 5.2(b) and if the Liquidity and/or Fixed Charge Coverage Ratio
determined from the audited Financial Statements for such Fiscal
Annex - 3
Year requires an adjustment in the Applicable Margins that would result in
higher Applicable Margins, then the Applicable Margins shall be adjusted
retroactively based on such audited Financial Statements and any increased
amount owed by the Borrowers as a result thereof shall be paid on the next
applicable payment date. Failure to timely deliver any Pricing Certificate or
any Financial Statements shall, in addition to any other remedy provided for in
this Agreement, result in an increase in the Applicable Margins to the highest
level set forth in the foregoing grid, until the first day of the first calendar
month following the delivery of those Financial Statements demonstrating that
such an increase is not required. If a Default or Event of Default has occurred
and is continuing at the time any reduction in the Applicable Margins is to be
implemented, such reduction shall not occur.
"ASSIGNED CONTRACTS" means, collectively, all of the Loan
Parties' rights and remedies under, and all moneys and claims for money due or
to become due to any Loan Party under those contracts set forth on SCHEDULE 1.1,
and any other material contracts, and any and all amendments, supplements,
extensions, and renewals thereof including all rights and claims of any Loan
Party now or hereafter existing: (i) under any insurance, indemnities,
warranties, and guarantees provided for or arising out of or in connection with
any of the foregoing agreements; (ii) for any damages arising out of or for
breach or default under or in connection with any of the foregoing contracts;
(iii) to all other amounts from time to time paid or payable under or in
connection with any of the foregoing agreements; or (iv) to exercise or enforce
any and all covenants, remedies, powers and privileges thereunder.
"ASSIGNEE" has the meaning specified in SECTION 11.2(a).
"ASSIGNMENT AND ACCEPTANCE" has the meaning specified in
SECTION 11.2(a).
"ATTORNEY COSTS" means and includes all reasonable fees,
expenses and disbursements of any law firm or other counsel engaged by the Agent
and the reasonably allocated costs and expenses of internal legal services of
the Agent.
"AVAILABILITY" means, as to FMC or FRC, as applicable, at any
time (a) the lesser of the Maximum Revolver Amount minus the Aggregate Revolver
Outstandings or (ii) its Borrowing Base minus the Aggregate Revolver
Outstandings attributable to FMC or FRC, as applicable, minus (b) Reserves
attributable to FRC or FMC, as applicable, other than Reserves deducted in
calculating its Borrowing Base.
"BANK" means Bank of America, N.A., a national banking
association, or any successor entity thereto.
"BANK PRODUCTS" means any one or more of the following types
of services or facilities extended to Fleetwood or any of its Subsidiaries by
the Bank or any affiliate of the Bank in reliance on the Bank's agreement to
indemnify such affiliate: (i) credit cards; (ii) ACH Transactions; (iii) cash
management, including controlled disbursement services; and (iv) Hedge
Agreements.
"BANK PRODUCT RESERVES" means all reserves which the Agent
from time to time establishes in its reasonable discretion for the Bank Products
then provided or outstanding.
Annex - 4
"BANKRUPTCY CODE" means Title 11 of the United States Code
(11 U.S.C. Section 101 ET SEQ.).
"BASE RATE" means, for any day, the rate of interest in effect
for such day as publicly announced from time to time by the Bank in Charlotte,
North Carolina as its "prime rate" (the "prime rate" being a rate set by the
Bank based upon various factors including the Bank's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate). Any change in the prime rate announced by the Bank shall take effect at
the opening of business on the day specified in the public announcement of such
change. Each Interest Rate based upon the Base Rate shall be adjusted
simultaneously with any change in the Base Rate.
"BASE RATE LOANS" means, collectively, the Base Rate Revolving
Loans and the Term Loans.
"BASE RATE REVOLVING LOAN" means a Revolving Loan during any
period in which it bears interest based on the Base Rate.
"BLOCKED ACCOUNT AGREEMENT" means an agreement among a
Borrower, the Agent and a Clearing Bank, in form and substance reasonably
satisfactory to the Agent, concerning the collection of payments which represent
the proceeds of Accounts or of any other Collateral.
"BORROWERS" has the meaning given that term in the preamble to
the Agreement.
"BORROWING" means a borrowing hereunder consisting of
Revolving Loans or Term Loans made on the same day by the Lenders to a Borrower
or by Bank in the case of a Borrowing funded by Non-Ratable Loans or by the
Agent in the case of a Borrowing consisting of an Agent Advance, or the issuance
of Letters of Credit hereunder.
"BORROWING BASE" means, with respect to FMC or FRC, as
applicable, 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 sum of
(1) the lesser of (x) fifty percent (50%) 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 lumber located at warehouses) and (y) eighty-five percent (85%)
of the appraised orderly liquidation value of its Eligible Inventory (other than
motor home chassis and lumber located at warehouses), PLUS (2) eighty-five
percent (85%) of the appraised orderly liquidation value of its Eligible
Inventory consisting of motor home chassis, PLUS (3) eighty-five percent (85%)
of the appraised orderly liquidation value of its Eligible Inventory consisting
of lumber located at warehouses; provided that the aggregate manufactured
housing Inventory of FMC shall not exceed $10,000,000; and (B) the Maximum
Inventory Loan Amount, PLUS (iii) the lesser of (C) the sum of eighty percent
(80%) of the appraised orderly liquidation value of its Eligible Equipment and
fifty percent (50%) of the appraised fair market value of its Eligible Real
Estate subject to a Mortgage and (D) the Maximum PP&E Loan Amount 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, the
amount advanced against the Accounts and Inventory of Fleetwood Folding Trailer
shall not exceed $8,000,000.
Annex - 5
"BORROWING BASE CERTIFICATE" means a certificate by a
Responsible Officer of FMC or FRC, as applicable, substantially in the form of
EXHIBIT B (or another form acceptable to the Agent) setting forth the
calculation of the respective Borrowing Base, including a calculation of each
component thereof, all in such detail as shall be reasonably satisfactory to the
Agent. All calculations of the Borrowing Base in connection with the preparation
of any Borrowing Base Certificate shall originally be made by FMC or FRC, as
applicable and certified to the Agent; PROVIDED, that the Agent shall have the
right to review and adjust, in the exercise of its reasonable credit judgment,
any such calculation (1) to reflect its reasonable estimate of declines in value
of any of the Collateral described therein, and (2) to the extent that such
calculation is not in accordance with this Agreement.
"BUSINESS DAY" means (a) any day that is not a Saturday,
Sunday, or a day on which banks in Los Angeles, California or Charlotte, North
Carolina are required or permitted to be closed, and (b) with respect to all
notices, determinations, fundings and payments in connection with the LIBOR Rate
or LIBOR Rate Loans, any day that is a Business Day pursuant to CLAUSE (a) above
and that is also a day on which trading in Dollars is carried on by and between
banks in the London interbank market.
"BUSINESS UNIT" means (a) for purposes of SECTION 5.2(c),
SECTION 5.2(f) and SECTION 8.1(o), (i) the FMC Borrowers and (ii) (x) until the
date (the "CONVERSION DATE") one hundred twenty (120) days after the Closing
Date, the FRC Borrowers and the Excluded Retail Subsidiaries and (y) on and
after the Conversion Date, the FRC Borrowers; and (b) for all other purposes,
(i) the FMC Borrowers, (ii) (x) until the Conversion Date, the FRC Borrowers and
the Excluded Retail Subsidiaries and (y) on and after the Conversion Date, the
FRC Borrowers; (iii) Fleetwood Folding Trailer, (iv) on and after the Conversion
Date, the Excluded Retail Subsidiaries; (v) the Excluded Subsidiaries (other
than the Excluded Retail Subsidiaries); and (vi) Fleetwood.
"CANADIAN SECURITY AGREEMENT" means the Canadian Security
Agreement of even date herewith between Fleetwood Canada and the Agent for the
benefit of the Agent and the Lenders.
"CAPITAL ADEQUACY REGULATION" means any guideline, request or
directive of any central bank or other Governmental Authority, or any other law,
rule or regulation, whether or not having the force of law, in each case,
regarding capital adequacy of any bank or of any corporation controlling a bank.
"CAPITAL EXPENDITURES" means all payments due during any
relevant period (whether or not paid during any fiscal period) in respect of the
cost of any fixed asset or improvement, or replacement, substitution, or
addition thereto, which has a useful life of more than one year, including,
without limitation, those costs arising in connection with the direct or
indirect acquisition of such asset by way of increased product or service
charges or in connection with a Capital Lease.
"CAPITAL STOCK" means any and all shares, interests,
participations or other equivalents (however designated) of capital stock or
other equity interests, any and all equivalent
Annex - 6
ownership interests in a Person (other than a corporation) and any and all
warrants, rights, options to purchase or other rights to acquire any of the
foregoing.
"CAPITAL LEASE" of a Person means any lease of property by
such Person which, in accordance with GAAP, should be reflected as a capital
lease on the balance sheet of such Person.
"CASH COLLATERAL" has the meaning specified in SECTION 1.4(g).
"CHANGE OF CONTROL" means either (i) a change shall occur in
the Board of Directors of Fleetwood so that a majority of the Board of Directors
of Fleetwood ceases to consist of the individuals who constituted the Board of
Directors of Fleetwood on the Closing Date (or individuals whose election or
nomination for election was approved by a vote of more than 50% of the directors
then in office who either were directors of Fleetwood on the Closing Date or
whose election or nomination for election previously was so approved); or (ii)
any Person or Group (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission), shall become or be the owner, directly or indirectly,
beneficially or of record, of shares representing more than 20% of the aggregate
ordinary voting power represented by the issued and outstanding Capital Stock of
Fleetwood on a fully diluted basis; or (iii) except as permitted hereunder, any
Loan Party (other than Fleetwood) ceases to be a direct or indirect wholly-owned
Subsidiary of Fleetwood.
"CHATTEL PAPER" means, as to any Person, all of such Person's
now owned or hereafter acquired chattel paper, as defined in the UCC, including
electronic chattel paper.
"CLEARING BANK" means the Bank or any other banking
institution with which a Payment Account has been established pursuant to a
Blocked Account Agreement.
"CLOSING DATE" means the date of this Agreement.
"CLOSING FEE" has the meaning specified in SECTION 2.4.
"CODE" means the Internal Revenue Code of 1986.
"COLI POLICIES" means those insurance policies identified on
SCHEDULE A.
"COLLATERAL" means all of the Loan Parties' real and personal
property, and all other assets of any Person (other than the COLI Policies),
from time to time subject to the Agent's Liens securing payment or performance
of the Obligations.
"COMMITMENT" means, at any time with respect to a Lender, the
principal amount set forth beside such Lender's name under the heading
"COMMITMENT" on SCHEDULE 1.2 attached to the Agreement or on the signature page
of the Assignment and Acceptance pursuant to which such Lender became a Lender
hereunder in accordance with the provisions of SECTION 11.2, as such Commitment
may be adjusted from time to time in accordance with the provisions of SECTION
11.2, and "COMMITMENTS" means, collectively, the aggregate amount of the
commitments of all of the Lenders.
Annex - 7
"COMMITMENT INCREASE" has the meaning specified in SECTION
13.19.
"CONTAMINANT" means any waste, pollutant, hazardous substance,
toxic substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, asbestos in any form or condition, polychlorinated biphenyls
("PCBS"), or any constituent of any such substance or waste.
"CONTINUATION/CONVERSION DATE" means the date on which a Loan
is converted into or continued as a LIBOR Rate Loan.
"CONTRIBUTION AGREEMENT" means the Contribution, Indemnity and
Subrogation Agreement, dated as of the date hereof, among the Loan Parties.
"COPYRIGHT" has the meaning specified in Copyright Security
Agreement.
"COPYRIGHT SECURITY AGREEMENT" means the Copyright Security
Agreement dated as of the date hereof, executed and delivered by a Loan Party to
the Agent, for the benefit of the Agent and the Lenders, to evidence and perfect
the Agent's security interest in such Loan Party's present and future copyrights
and related licenses and rights.
"CREDIT SUPPORT" has the meaning specified in SECTION 1.4(a).
"DEBT" means, with respect to any Person and without
duplication, all liabilities, obligations and indebtedness of such Person to any
other Person, of any kind or nature, now or hereafter owing, arising, due or
payable, howsoever evidenced, created, incurred, acquired or owing, whether
primary, secondary, direct, contingent, fixed or otherwise, consisting of
indebtedness for borrowed money or the deferred purchase price of property,
excluding trade payables incurred in the ordinary course of business, but
including (a) all Obligations; (b) all obligations and liabilities of any other
Person secured by any Lien on the such Person's property, even though such
Person shall not have assumed or become liable for the payment thereof;
PROVIDED, HOWEVER, that all such obligations and liabilities which are limited
in recourse to such property shall be included in Debt only to the extent of the
book value of such property as would be shown on a balance sheet of such Person
prepared in accordance with GAAP; (c) all obligations or liabilities created or
arising under any Capital Lease or conditional sale or other title retention
agreement with respect to property used or acquired by such Person, even if the
rights and remedies of the lessor, seller or lender thereunder are limited to
repossession of such property; PROVIDED, HOWEVER, that all such obligations and
liabilities which are limited in recourse to such property shall be included in
Debt only to the extent of the book value of such property as would be shown on
a balance sheet of such Person prepared in accordance with GAAP; (d) all
obligations and liabilities under Guaranties; (e) the present value (discounted
at the Base Rate) of lease payments due under synthetic leases; and (f) all
obligations and liabilities under any preferred stock (including the Trust
Securities) or similar securities.
"DEFAULT" means any event or circumstance which, with the
giving of notice, the lapse of time, or both, would (if not cured, waived, or
otherwise remedied during such time) constitute an Event of Default.
Annex - 8
"DEFAULT RATE" means a fluctuating per annum interest rate at
all times equal to the sum of (a) the otherwise applicable Interest Rate PLUS
(b) two percent (2%) per annum. Each Default Rate shall be adjusted
simultaneously with any change in the applicable Interest Rate. In addition, the
Default Rate shall result in an increase in the Letter of Credit Fee by 2
percentage points per annum during any period for which the Default Rate is
applied.
"DEFAULTING LENDER" has the meaning specified in SECTION
12.15(c).
"DESIGNATED ACCOUNT" has the meaning specified in SECTION
1.2(c).
"DISTRIBUTION" means, in respect of any Person: (a) the
payment or making of any dividend or other distribution of property in respect
of Capital Stock of such Person, other than distributions in Capital Stock of
the same class; or (b) the redemption or other acquisition by such Person of its
Capital Stock.
"DOCUMENTS" means, with respect to any Person, all documents
as such term is defined in the UCC, including bills of lading, warehouse
receipts or other documents of title, now owned or hereafter acquired by such
Person.
"DOL" means the United States Department of Labor or any
successor department or agency.
"DOLLAR" and "$" means dollars in the lawful currency of the
United States. Unless otherwise specified, all payments under the Agreements
shall be made in Dollars.
"EBITDA" means, with respect to any fiscal period, Adjusted
Net Earnings from Operations, PLUS, to the extent deducted in the determination
of Adjusted Net Earnings from Operations for that fiscal period, interest
expenses, Federal, state, local and foreign income taxes, depreciation and
amortization.
"ELIGIBLE ACCOUNTS" means, with respect to FMC or FRC, as
applicable, the Accounts of FMC (which for purposes of this definition only
shall include Fleetwood Canada) or FRC, as applicable, which the Agent in the
exercise of its reasonable commercial discretion determines to be Eligible
Accounts. Without limiting the discretion of the Agent to establish other
criteria of ineligibility, Eligible Accounts shall not, unless the Agent in its
sole discretion elects (which discretion cannot be exercised without the consent
of Majority Lenders), include any Account:
(a) with respect to which more than 60 days have elapsed since
the date of the original invoice therefor;
(b) with respect to which any of the representations,
warranties, covenants, and agreements contained in the Security Agreement are
incorrect or have been breached;
(c) with respect to which Account (or any other Account due
from such Account Debtor), in whole or in part, two or more checks, promissory
notes, drafts, trade acceptances or other instruments for the payment of money
have been received, presented for payment and returned uncollected for any
reason within any six month period;
Annex - 9
(d) which represents a progress billing (as hereinafter
defined); for the purposes hereof, "progress billing" means any invoice for
goods sold or leased or services rendered under a contract or agreement pursuant
to which the Account Debtor's obligation to pay such invoice is conditioned upon
a Borrower's completion of any further performance under the contract or
agreement;
(e) with respect to which any one or more of the following
events has occurred to the Account Debtor on such Account: death or judicial
declaration of incompetency of an Account Debtor who is an individual; the
filing by or against the Account Debtor of a request or petition for
liquidation, reorganization, arrangement, adjustment of debts, adjudication as a
bankrupt, winding-up, or other relief under the bankruptcy, insolvency, or
similar laws of the United States, any state or territory thereof, or any
foreign jurisdiction, now or hereafter in effect; the making of any general
assignment by the Account Debtor for the benefit of creditors; the appointment
of a receiver or trustee for the Account Debtor or for any of the assets of the
Account Debtor, including, without limitation, the appointment of or taking
possession by a "custodian," as defined in the Bankruptcy Code; the institution
by or against the Account Debtor of any other type of insolvency proceeding
(under the bankruptcy laws of the United States or otherwise) or of any formal
or informal proceeding for the dissolution or liquidation of, settlement of
claims against, or winding up of affairs of, the Account Debtor; the sale,
assignment, or transfer of all or any material part of the assets of the Account
Debtor (unless the transferee is, in the Agent's judgment, able to pay); the
nonpayment generally by the Account Debtor of its debts as they become due; or
the cessation of the business of the Account Debtor as a going concern;
(f) if fifty percent (50%) or more of the aggregate Dollar
amount of outstanding Accounts owed at such time by the Account Debtor thereon
is classified as ineligible under CLAUSE (a) above;
(g) owed by an Account Debtor which: (i) does not maintain its
chief executive office in the United States of America or Canada (other than the
Province of Newfoundland); or (ii) is not organized under the laws of the United
States of America or Canada or any state or province thereof; or (iii) is the
government of any foreign country or sovereign state, or of any state, province,
municipality, or other political subdivision thereof, or of any department,
agency, public corporation, or other instrumentality thereof; except to the
extent that such Account is secured or payable by a letter of credit
satisfactory to the Agent in its discretion;
(h) owed by an Account Debtor which is an Affiliate or
employee of Fleetwood or any of its Subsidiaries;
(i) except as provided in CLAUSE (k) below, with respect to
which either the perfection, enforceability, or validity of the Agent's Liens in
such Account, or the Agent's right or ability to obtain direct payment to the
Agent of the proceeds of such Account, is governed by any federal, state, or
local statutory requirements other than those of the UCC;
(j) owed by an Account Debtor to which Fleetwood or any of its
Subsidiaries, is indebted in any way, or which is subject to any right of setoff
or recoupment by the Account
Annex - 10
Debtor, unless the Account Debtor has entered into an agreement acceptable to
the Agent to waive setoff rights; or if the Account Debtor thereon has disputed
liability or made any claim with respect to any other Account due from such
Account Debtor; but in each such case only to the extent of such indebtedness,
setoff, recoupment, dispute, or claim;
(k) owed by the government of the United States of America, or
any department, agency, public corporation, or other instrumentality thereof,
unless the Federal Assignment of Claims Act of 1940, as amended (31 U.S.C.
Section 3727 ET SEQ.), and any other steps necessary or desirable to perfect the
Agent's Liens therein, have been complied with to the Agent's satisfaction with
respect to such Account;
(l) owed by any state, municipality, or other political
subdivision of the United States of America, or any department, agency, public
corporation, or other instrumentality thereof and as to which the Agent
determines that its Lien therein is not or cannot be perfected;
(m) which represents a sale on a xxxx-and-hold, guaranteed
sale, sale and return, sale on approval, consignment, or other repurchase or
return basis;
(n) which is evidenced by a promissory note or other
instrument or by chattel paper;
(o) if the Agent believes, in the exercise of its reasonable
commercial judgment, that such Account may not be collected for any reason;
(p) with respect to which the Account Debtor is located in any
state requiring the filing of a Notice of Business Activities Report or similar
report in order to permit a Borrower to seek judicial enforcement in such State
of payment of such Account, unless such Borrower has qualified to do business in
such state or has filed a Notice of Business Activities Report or equivalent
report for the then current year;
(q) which arises out of a sale not made in the ordinary course
of a Borrower's business;
(r) with respect to which the goods giving rise to such
Account have not been shipped and delivered to and accepted by the Account
Debtor or the services giving rise to such Account have not been performed by a
Borrower, and, if applicable, accepted by the Account Debtor, or the Account
Debtor revokes its acceptance of such goods or services;
(s) owed by an Account Debtor which is obligated to FMC, FRC
or Fleetwood, as applicable respecting Accounts the aggregate unpaid balance of
which exceeds ten percent (10%) of the aggregate unpaid balance of all Accounts
owed to FMC, FRC or Fleetwood, as applicable at such time by all of the Account
Debtors, but only to the extent of such excess;
(t) which is not subject to a first priority and perfected
security interest securing the Revolving Loans in favor of the Agent for the
benefit of the Lenders; and
Annex - 11
(u) an Account representing a dealer rebate or other sales
program accrual.
If any Account at any time ceases to be an Eligible Account, then such Account
shall promptly be excluded from the calculation of Eligible Accounts.
"ELIGIBLE ASSIGNEE" means (a) a commercial bank, commercial
finance company or other asset based lender, having total assets in excess of
$1,000,000,000; (b) any Lender listed on the signature page of this Agreement;
(c) any Affiliate of any Lender; and (d) if an Event of Default has occurred and
is continuing, any Person reasonably acceptable to the Agent.
"ELIGIBLE EQUIPMENT" means the Equipment of FMC constituting
PP&E Subfacility Assets which the Agent in the exercise of its reasonable
commercial discretion determines to the Eligible Equipment. Without limiting the
discretion of the Agent to establish other criteria of ineligibility, Eligible
Equipment shall not, unless the Agent in its sole discretion elects (which
discretion cannot be exercised without the consent of Majority Lenders), include
any Equipment:
(a) that is not owned by FMC;
(b) that is not subject to the Agent's Liens, which are first
priority and perfected as to such Equipment, or that are subject to any other
Lien whatsoever (other than the Liens securing the Term Loans and the Liens
described in CLAUSES (a) OR (d) of the definition of Permitted Liens PROVIDED
that all such Liens are (i) junior in priority to the Agent's Liens or subject
to Reserves and (ii) do not impair directly or indirectly the ability of the
Agent to realize on or obtain the full benefit of the Collateral);
(c) that is not in good condition, ordinary wear and tear
excepted, is unmerchantable or does not meet in all material respects all
standards of any Governmental Authority having regulatory authority over such
Equipment, its use or sale;
(d) that has not been appraised by an appraiser satisfactory
to the Agent;
(e) that is located outside the United States;
(f) that is in a facility leased by a Borrower (as landlord or
tenant) if the tenant or lessor, as the case may be, has not delivered to the
Agent a subordination or landlord agreement in form and substance satisfactory
to the Agent or if a Reserve for rents has not been established; or
(g) that is owned by Fleetwood Folding Trailer.
If any Equipment at any time ceases to be Eligible Equipment, such Equipment
shall promptly be excluded from the calculation of Eligible Equipment.
"ELIGIBLE INVENTORY" means, with respect to FMC or FRC, as
applicable, Inventory, which the Agent, in its reasonable commercial discretion,
determines to be Eligible Inventory. Without limiting the discretion of the
Agent to establish other criteria of ineligibility,
Annex - 12
Eligible Inventory shall not, unless the Agent in its sole discretion elects
(which discretion cannot be exercised without the consent of the Majority
Lenders), include any Inventory:
(a) that is not owned by the applicable Borrower;
(b) that is not subject to the Agent's Liens, which are
perfected as to such Inventory, or that are subject to any other Lien whatsoever
(other than the Liens described in CLAUSES (a) OR (d) of the definition of
Permitted Liens PROVIDED that such Permitted Liens (i) are junior in priority to
the Agent's Liens or subject to Reserves and (ii) do not impair directly or
indirectly the ability of the Agent to realize on or obtain the full benefit of
the Collateral);
(c) that does not consist of finished goods or raw materials;
(d) that consists of work-in-process, chemicals, samples,
prototypes, supplies, or packing and shipping materials;
(e) that is not in good condition, is defective or
unmerchantable, or does not meet all standards imposed by any Governmental
Authority having regulatory authority over such goods, their use or sale;
(f) that is obsolete;
(g) that is located outside the United States of America (or
that is in-transit from vendors or suppliers);
(h) that is located in a public warehouse or in possession of
a bailee or in a facility leased by the Borrower, if the warehouseman, the
bailee or the lessor has not delivered to the Agent, a subordination or landlord
agreement in form and substance satisfactory to the Agent or if a Reserve for
rents or storage charges has not been established for Inventory at that
location;
(i) that contains or bears any Proprietary Rights licensed to
a Borrower by any Person, if the Agent is not satisfied that it may sell or
otherwise dispose of such Inventory in accordance with the terms of the Security
Agreement and SECTION 9.2 without infringing the rights of the licensor of such
Proprietary Rights or violating any contract with such licensor (and without
payment of any royalties other than any royalties due with respect to the sale
or disposition of such Inventory pursuant to the existing license agreement),
and as to which the applicable Borrower has not delivered to the Agent a consent
or sublicense agreement from such licensor in form and substance acceptable to
the Agent if requested;
(j) that is not reflected in the details of a current
inventory report delivered to the Agent; or
(k) that is Inventory placed on consignment, including any
Inventory transferred to ADI.
If any Inventory at any time ceases to be Eligible Inventory, such Inventory
shall promptly be excluded from the calculation of Eligible Inventory.
Annex - 13
"ELIGIBLE REAL ESTATE" means the Real Estate of FMC and
Fleetwood constituting PP&E Subfacility Assets which the Agent in the exercise
of its reasonable commercial discretion determines to be Eligible Real Estate.
Without limiting the discretion of the Agent to establish other criteria of
ineligibility, Eligible Real Estate shall not, unless the Agent in its sole
discretion elects (which discretion cannot be exercised without the consent of
Majority Lenders), include any Real Estate:
(a) that is not owned in fee simple by FMC or Fleetwood and
listed on SCHEDULE B, hereto;
(b) that is not subject to a recorded Mortgage which creates a
first priority Lien to secure the Revolving Loans or that are subject to any
other Lien whatsoever (other than the Liens securing the Term Loans and the
Liens described in CLAUSES (a), (d) OR (e) of the definition of Permitted Liens
PROVIDED that all such Liens are (i) junior in priority to the Agent's Liens
securing the Revolving Loans or subject to Reserves and (ii) do not impair
directly or indirectly the ability of the Agent to realize on or obtain the full
benefit of the Collateral);
(c) that is not marketable;
(d) that has not been appraised by an appraiser satisfactory
to the Agent;
(e) that is located outside the United States; or
(f) that is subject to a lease or sublease in favor of any
Person if the tenant subtenant, as the case may be, has not delivered to the
Agent a subordination and attornment agreement in form and substance
satisfactory to the Agent.
If any Real Estate at any time ceases to be Eligible Real Estate, such Real
Estate shall promptly be excluded from the calculation of Eligible Real Estate.
"ENVIRONMENTAL CLAIMS" means all claims, however asserted, by
any Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law, or for a Release or
injury to the environment.
"ENVIRONMENTAL COMPLIANCE RESERVE" means any reserve which the
Agent establishes in its reasonable discretion after prior written notice to the
Borrowers from time to time for amounts that are reasonably likely to be
expended by Fleetwood or any of its Subsidiaries in order for such Person and
its operations and property (a) to comply with any notice from a Governmental
Authority asserting material non-compliance with Environmental Laws, or (b) to
correct any such material non-compliance identified in a report delivered to the
Agent and the Lenders pursuant to SECTION 7.7.
"ENVIRONMENTAL LAWS" means all federal, state or local laws,
statutes, common law duties, rules, regulations, ordinances and codes, together
with all administrative orders, directed duties, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case
relating to environmental, health, safety and land use matters.
Annex - 14
"ENVIRONMENTAL LIEN" means a Lien in favor of any Governmental
Authority for (a) any liability under Environmental Laws, or (b) damages arising
from, or costs incurred by such Governmental Authority in response to, a Release
or threatened Release of a Contaminant into the environment.
"EQUIPMENT" means, with respect to any Person, all of such
Person's now owned and hereafter acquired machinery, equipment, furniture,
furnishings, fixtures, and other tangible personal property (except Inventory),
including embedded software, motor vehicles with respect to which a certificate
of title has been issued, aircraft, dies, tools, jigs, molds and office
equipment, as well as all of such types of property leased by such Person and
all of such Person's rights and interests with respect thereto under such leases
(including, without limitation, options to purchase); together with all present
and future additions and accessions thereto, replacements therefor, component
and auxiliary parts and supplies used or to be used in connection therewith, and
all substitutes for any of the foregoing, and all manuals, drawings,
instructions, warranties and rights with respect thereto; wherever any of the
foregoing is located.
"ERISA" means the Employee Retirement Income Security Act of
1974, and regulations promulgated thereunder.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) under common control with Fleetwood or any of its Subsidiaries
within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and
(o) of the Code for purposes of provisions relating to Section 412 of the Code).
"ERISA EVENT" means (a) a Reportable Event with respect to a
Pension Plan, (b) a withdrawal by Fleetwood or any ERISA Affiliate from a
Pension Plan subject to Section 4063 of ERISA during a plan year in which it was
a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations which is treated as such a withdrawal under Section
4062(e) of ERISA, (c) a complete or partial withdrawal by Fleetwood or any ERISA
Affiliate from a Multi-employer Plan or notification that a Multi-employer Plan
is in reorganization, (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Section 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multi-employer Plan, (e) the occurrence of an event or condition which
might reasonably be expected to constitute grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any
Pension Plan or Multi-employer Plan, or (f) the imposition of any liability
under Title IV of ERISA, other than for PBGC premiums due but not delinquent
under Section 4007 of ERISA, upon Fleetwood or any ERISA Affiliate.
"EVENT OF DEFAULT" has the meaning specified in SECTION 9.1.
"EXCHANGE ACT" means the Securities Exchange Act of 1934 and
the rules and regulations promulgated thereunder.
"EXCLUDED RETAIL SUBSIDIARY" means each direct and indirect
Subsidiary of FRC which is a retailer of manufactured housing products and is
either (i) listed on SCHEDULE 1.3 to the
Annex - 15
Agreement; (ii) formed or acquired by Fleetwood or any direct or indirect
Subsidiary of FRC after the Closing Date; or (iii) a Released FRC Borrower.
"EXCLUDED SUBSIDIARIES" means, collectively, Finance Co.,
Fleetwood Trust, Fleetwood Foreign Sales Corp., a U.S. Virgin Islands
corporation, Gibraltar Insurance Company Ltd., a Bermuda corporation, Paramount
Insurance Company, Ltd., a Bermuda corporation, National Home Shield Insurance
Agency, Inc., Home Sentry Insurance Agency of Alabama, Inc., Xxxxxxx & Xxxx
Insurance Agency, Inc., the Inactive Subsidiaries, the Excluded Retail
Subsidiaries and any other Subsidiary of Fleetwood acquired or formed after the
Closing Date.
"FDIC" means the Federal Deposit Insurance Corporation, and
any Governmental Authority succeeding to any of its principal functions.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; PROVIDED that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate charged to
the Bank on such day on such transactions as determined by the Agent.
"FEDERAL RESERVE BOARD" means the Board of Governors of the
Federal Reserve System or any successor thereto.
"FEE LETTERS" means the Agent Fee Letter and the separate fee
letters dated July 27, 2001, between the Agent and each of the Lenders.
"FINANCE CO." means Home One Credit Corp., a wholly-owned
Subsidiary, which has entered into, or may enter into, one or more joint
ventures to provide financing to customers of FRC and its Subsidiaries.
"FINANCIAL STATEMENTS" means, according to the context in
which it is used, the financial statements referred to in SECTIONS 5.2 AND 6.6
or any other financial statements required to be given to the Lenders pursuant
to this Agreement.
"FISCAL QUARTER" means any fiscal quarter of any Fiscal Year.
"FISCAL YEAR" means Fleetwood's fiscal year for financial
accounting purposes, which currently ends on the last Sunday in April. The
current Fiscal Year of Fleetwood will end on April 28, 2002.
"FIXED ASSETS" means, as to any Person, the Equipment and Real
Estate of such Person.
Annex - 16
"FIXED CHARGE COVERAGE RATIO" means, with respect to any
fiscal period, the ratio of EBITDA to Fixed Charges.
"FIXED CHARGES" means, with respect to any fiscal period of
Fleetwood on a consolidated basis, without duplication, (a) interest expense
paid in cash; (b) Capital Expenditures (excluding Capital Expenditures funded
with Debt other than Revolving Loans); (c) scheduled principal payments of Debt;
(d) Federal, state, local and foreign income taxes paid in cash, excluding (i)
deferred taxes and (ii) taxes paid as a result of any gain recognized in
connection with the Subordinated Debt Exchange; (e) Distributions paid in cash
by Fleetwood or the Fleetwood Trust; and (f) without duplication of clause (e),
payments made in cash on the Subordinated Debentures.
"FLEETWOOD" has the meaning given such term in the preamble.
"FLEETWOOD CANADA" means Fleetwood Canada Ltd., an Ontario
corporation.
"FLEETWOOD FOLDING TRAILER" means Fleetwood Folding Trailers,
Inc., a Delaware corporation.
"FLEETWOOD TRUST" means either or both (as the context
requires) Fleetwood Capital Trust and Fleetwood Capital Trust II, each a
business trust organized under the laws of the State of Delaware, whose sole
assets consist of the Subordinated Debt.
"FLOOR PLAN DEBT" means Debt of an Excluded Retail Subsidiary
to a Floor Plan Lender, which shall be on terms and conditions satisfactory to
the Agent and the Majority Lenders.
"FLOOR PLAN LENDER" means Conseco Finance Servicing Corp. and
any other lender of Floor Plan Debt acceptable to the Agent and the Majority
Lenders.
"FMC" means, collectively and jointly and severally, the FMC
Borrowers.
"FMC BORROWERS" means each of the following in their
capacities as Borrowers: Holdings, Fleetwood Homes of Arizona, Inc., an Arizona
corporation, Fleetwood Homes of California, Inc., a California corporation,
Fleetwood Homes of Florida, Inc., a Florida corporation, Fleetwood Homes of
Georgia, Inc., a Georgia corporation, Fleetwood Homes of Idaho, Inc., an Idaho
corporation, Fleetwood Homes of Indiana, Inc., an Indiana corporation, Fleetwood
Homes of Kentucky, Inc., a Kentucky corporation, Fleetwood Homes of North
Carolina, Inc., a North Carolina corporation, Fleetwood Homes of Oregon, Inc.,
an Oregon corporation, Fleetwood Homes of Pennsylvania, Inc., a Pennsylvania
corporation, Fleetwood Homes of Tennessee, Inc., a Tennessee corporation,
Fleetwood Homes of Texas, L.P., a Texas limited partnership, Fleetwood Homes of
Virginia, Inc., a Virginia corporation, Fleetwood Homes of Washington, Inc., a
Washington corporation, Fleetwood Motor Homes of California, Inc., a California
corporation, Fleetwood Motor Homes of Indiana, Inc., an Indiana corporation,
Fleetwood Motor Homes of Pennsylvania, Inc., a Pennsylvania corporation,
Fleetwood Travel Trailers of California, Inc., a California corporation,
Fleetwood Travel Trailers of Indiana, Inc., an Indiana corporation, Fleetwood
Travel Trailers of Kentucky, Inc., a Kentucky corporation, Fleetwood Travel
Trailers of Maryland, Inc., a Maryland corporation, Fleetwood Travel Trailers
Annex - 17
of Ohio, Inc., an Ohio corporation, Fleetwood Travel Trailers of Oregon, Inc.,
an Oregon corporation, Fleetwood Travel Trailers of Texas, Inc., a Texas
corporation, Fleetwood Folding Trailers, Gold Shield, Inc., a California
corporation, Gold Shield of Indiana, Inc., an Indiana corporation, Xxxxxx Lake
Lumber Operation, Inc., an Idaho corporation, Continental Lumber Products, Inc.,
a California corporation, Fleetwood General Partner of Texas, Inc., a Delaware
corporation, Fleetwood Homes Investment, Inc., a California corporation, and
their permitted successors and assigns.
"FMC GUARANTY" means the Guaranty dated as of the Closing Date
from FMC to the Agent, for its benefit and the benefit of the Lenders.
"FRC" means, collectively and jointly and severally, the FRC
Borrowers.
"FRC BORROWERS" means each of the following in their
capacities as Borrowers: Retail, Fleetwood Retail Corp. of California, a
California corporation, Fleetwood Retail Corp. of Idaho, an Idaho corporation,
Fleetwood Retail Corp. of Kentucky, a Kentucky corporation, Fleetwood Retail
Corp. of Mississippi, a Mississippi corporation, Fleetwood Retail Corp. of North
Carolina, a North Carolina corporation, Fleetwood Retail Corp. of Oregon, an
Oregon corporation, and Fleetwood Retail Corp. of Virginia, a Virginia
corporation and any other Subsidiary of Retail which becomes a Borrower
hereunder in accordance with SECTION 7.28, and their permitted successors and
assigns.
"FRC BORROWER RELEASE" has the meaning specified in SECTION
3.11.
"FRC GUARANTY" means the Guaranty dated as of the Closing Date
from FRC to the Agent, for its benefit and the benefit of the Lenders.
"FUNDING DATE" means the date on which a Borrowing occurs.
"GAAP" means generally accepted accounting principles and
practices set forth from time to time in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board (or agencies with similar functions of comparable stature and
authority within the U.S. accounting profession), which are applicable to the
circumstances as of the Closing Date.
"GENERAL INTANGIBLES" means, with respect to any Person all of
such Person's now owned or hereafter acquired general intangibles, choses in
action and causes of action and all other intangible personal property of such
Person of every kind and nature (other than Accounts), including, without
limitation, all contract rights, payment intangibles, Proprietary Rights,
corporate or other business records, inventions, designs, blueprints, plans,
specifications, patents, patent applications, trademarks, service marks, trade
names, trade secrets, goodwill, copyrights, computer software, customer lists,
registrations, licenses, franchises, tax refund claims, any funds which may
become due to such Person in connection with the termination of any Plan or
other employee benefit plan or any rights thereto and any other amounts payable
to such Person from any Plan or other employee benefit plan, rights and claims
against carriers and shippers, rights to indemnification, business interruption
insurance and proceeds thereof, property, casualty or any similar type of
insurance and any proceeds thereof, proceeds of insurance
Annex - 18
covering the lives of key employees on which such Person is beneficiary, rights
to receive dividends, distributions, cash, Instruments and other property in
respect of or in exchange for pledged equity interests or Investment Property
and any letter of credit, guarantee, claim, security interest or other security
held by or granted to such Person.
"GOVERNMENTAL AUTHORITY" means any nation or government, any
state or other political subdivision thereof, any central bank (or similar
monetary or regulatory authority) thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"GUARANTORS" means, collectively, Fleetwood, Fleetwood Canada,
Buckingham Development Co., a California corporation, and Fleetwood
International Inc., a California corporation, and any Subsidiary of Fleetwood
which becomes a Guarantor in accordance with the requirements of this Agreement.
"GUARANTY" means, with respect to any Person, all obligations
of such Person which in any manner directly or indirectly guarantee or assure,
or in effect guarantee or assure, the payment or performance of any
indebtedness, dividend or other obligations of any other Person (the "guaranteed
obligations"), or assure or in effect assure the holder of the guaranteed
obligations against loss in respect thereof, including any such obligations
incurred through an agreement, contingent or otherwise: (a) to purchase the
guaranteed obligations or any property constituting security therefor; (b) to
advance or supply funds for the purchase or payment of the guaranteed
obligations or to maintain a working capital or other balance sheet condition;
or (c) to lease property or to purchase any debt or equity securities or other
property or services.
"HEDGE AGREEMENT" means, with respect to any Person, any and
all transactions, agreements or documents now existing or hereafter entered
into, which provide for an interest rate, credit, commodity or equity swap, cap,
floor, collar, forward foreign exchange transaction, currency swap, cross
currency rate swap, currency option, or any combination of, or option with
respect to, these or similar transactions, for the purpose of hedging such
Person's exposure to fluctuations in interest or exchange rates, loan, credit
exchange, security or currency valuations or commodity prices.
"HOLDINGS" has the meaning given such term in the preamble.
"IDENTIFIED SUBSIDIARY" means that Subsidiary identified in
the side letter dated July 27, 2001 from Fleetwood to the Agent.
"INACTIVE SUBSIDIARIES" means, collectively, Expression Homes
Corporation, a Delaware corporation, Fleetwood Homes of Alabama, Inc., an
Alabama corporation, North River Homes, Inc., an Alabama corporation, Fleetwood
Homes of Mississippi, Inc., a Mississippi corporation, Fleetwood Homes of
Oklahoma, Inc., an Oklahoma corporation, Fleetwood Travel Trailers of Nebraska,
Inc., a Nebraska corporation, Fleetwood Travel Trailers of Virginia, Inc., a
Virginia corporation, Fleetwood Retail Investment Corp., a California
corporation, C.V. Aluminum, Inc., a California corporation, Fleetwood Holidays,
Inc., a Florida corporation,
Annex - 19
Fleetwood Recreational Vehicles of Michigan, Inc., a Michigan corporation and
GSF Installation Co., a California corporation.
"INITIAL FUNDING DATE" shall mean the date of the funding of
the Term Loans and the initial Revolving Loans hereunder.
"INSTRUMENTS" means, with respect to any Person, all
instruments as such term is defined in the UCC, now owned or hereafter acquired
by such Person.
"INTERCREDITOR AGREEMENT" means the Intercreditor Agreement
dated as of the Closing Date between Conseco Financing Servicing Corp. and the
Agent, as it may be amended, supplemented or otherwise modified from time to
time with the consent of the Majority Lenders, and any other intercreditor
agreement with any other Floor Plan Lender entered into by the Agent, with the
consent of the Majority Lenders.
"INTEREST PERIOD" means, as to any LIBOR Rate Loan, the period
commencing on the Funding Date of such Loan or on the Continuation/Conversion
Date on which the Loan is converted into or continued as a LIBOR Rate Loan, and
ending on the date one, two, three or six months thereafter as selected by the
Borrower in its Notice of Borrowing, in the form attached hereto as EXHIBIT D,
or Notice of Continuation/Conversion, in the form attached hereto as EXHIBIT E,
PROVIDED that:
(a) if any Interest Period would otherwise end on a day that
is not a Business Day, that Interest Period shall be extended to the
following Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month, in which event
such Interest Period shall end on the preceding Business Day;
(b) any Interest Period pertaining to a LIBOR Rate Loan that
begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business Day
of the calendar month at the end of such Interest Period; and
(c) no Interest Period shall extend beyond the Stated
Termination Date.
"INTEREST RATE" means each or any of the interest rates,
including the Default Rate, set forth in SECTION 2.1.
"INVENTORY" means, with respect to any Person, all of such
Person's now owned and hereafter acquired inventory, goods and merchandise,
wherever located, to be furnished under any contract of service or held for sale
or lease, all returned goods, raw materials, work-in-process, finished goods
(including embedded software), other materials and supplies of any kind, nature
or description which are used or consumed in such Person's business or used in
connection with the packing, shipping, advertising, selling or finishing of such
goods, merchandise, and all documents of title or other Documents representing
them.
"INVESTMENT PROPERTY" means, with respect to any Person, all
of such Person's right title and interest in and to any and all: (a) securities
whether certificated or uncertificated;
Annex - 20
(b) securities entitlements; (c) securities accounts; (d) commodity contracts;
or (e) commodity accounts.
"IRS" means the Internal Revenue Service and any Governmental
Authority succeeding to any of its principal functions under the Code.
"LATEST PROJECTIONS" means: (a) on the Closing Date and
thereafter until the Agent receives new projections pursuant to SECTION 5.2(f),
the projections of the financial condition, results of operations, and cash
flows of Fleetwood and its Subsidiaries, for the period commencing on April 2001
and ending on April 2003 and delivered to the Agent and the Lenders prior to the
Closing Date; and (b) thereafter, the projections most recently received by the
Agent pursuant to SECTION 5.2(f).
"LENDER" and "LENDERS" have the meanings specified in the
introductory paragraph hereof and shall include any Revolving Credit Lender and
Term Lender and the Agent to the extent of any Agent Advance outstanding and the
Bank to the extent of any Non-Ratable Loan outstanding; PROVIDED that no such
Agent Advance or Non-Ratable Loan shall be taken into account in determining any
Lender's Pro Rata Share.
"LETTER OF CREDIT" has the meaning specified in SECTION
1.4(a).
"LETTER OF CREDIT FEE" has the meaning specified in SECTION
2.6.
"LETTER OF CREDIT ISSUER" means the Bank, any Affiliate of the
Bank or any other financial institution that issues any Letter of Credit
pursuant to this Agreement.
"LIBOR RATE" means, for any Interest Period, with respect to
LIBOR Rate Loans, the rate of interest per annum determined pursuant to the
following formula:
LIBOR Rate = Offshore Base Rate
----------------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"OFFSHORE BASE RATE" means the rate per annum
appearing on Telerate Page 3750 (or any successor page) as the London
interbank offered rate for deposits in Dollars at approximately 11:00
a.m. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period. If for
any reason such rate is not available, the Offshore Base Rate shall be,
for any Interest Period, the rate per annum appearing on Reuters Screen
LIBO Page as the London interbank offered rate for deposits in Dollars
at approximately 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period for a term comparable to such
Interest Period; PROVIDED, HOWEVER, if more than one rate is specified
on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates. If for any reason none of the
foregoing rates is available, the Offshore Base Rate shall be, for any
Interest Period, the rate per annum determined by the Agent as the rate
of interest at which dollar deposits in the approximate amount of the
LIBOR Rate Loan comprising part of such Borrowing would be offered by
the Bank's London Branch to major banks in the offshore dollar market
at their request at or about 11:00 a.m. (London time) two
Annex - 21
Business Days prior to the first day of such Interest Period for a
term comparable to such Interest Period.
"EURODOLLAR RESERVE PERCENTAGE" means, for any day
during any Interest Period, the reserve percentage (expressed as a
decimal, rounded upward to the next 1/100th of 1%) in effect on such
day applicable to member banks under regulations issued from time to
time by the Federal Reserve Board for determining the maximum reserve
requirement (including any emergency, supplemental or other marginal
reserve requirement) with respect to Eurocurrency funding (currently
referred to as "EUROCURRENCY LIABILITIES"). The Offshore Rate for each
outstanding LIBOR Rate Loan shall be adjusted automatically as of the
effective date of any change in the Eurodollar Reserve Percentage.
"LIBOR RATE LOAN" means a Revolving Loan during any period
in which it bears interest based on the LIBOR Rate.
"LIEN" means: (a) any interest in property securing an
obligation owed to, or a claim by, a Person other than the owner of the
property, whether such interest is based on the common law, statute, or
contract, and including a security interest, charge, claim, or lien arising from
a mortgage, deed of trust, encumbrance, pledge, hypothecation, assignment,
deposit arrangement, agreement, security agreement, conditional sale or trust
receipt or a lease, consignment or bailment for security purposes; (b) to the
extent not included under CLAUSE (a), any reservation, exception, encroachment,
easement, right-of-way, covenant, condition, restriction, lease or other title
exception or encumbrance affecting property; and (c) any contingent or other
agreement to provide any of the foregoing.
"LIQUIDITY" means, for any calendar month, the sum of (a) the
average daily Aggregate Availability during such calendar month PLUS (b) the
average daily Qualified Cash Equivalents.
"LOAN ACCOUNT" means, as applicable the loan account of FMC or
FRC, each of which accounts shall be maintained by the Agent.
"LOAN DOCUMENTS" means this Agreement, the Revolving Notes,
the Term Loan Notes, the Patent and Trademark Agreements, the Copyright Security
Agreement, the Security Agreement, the Canadian Security Agreement, the Pledge
Agreement, the Mortgages, the Parent Guaranty, FMC Guaranty, the FRC Guaranty,
the Subsidiary Guaranty, the Contribution Agreement, the Intercreditor
Agreement, any Hedge Agreement entered into with a Lender and any other
agreements, instruments, and documents heretofore, now or hereafter evidencing,
securing, guaranteeing or otherwise relating to the Obligations, the Collateral,
or any other aspect of the transactions contemplated by this Agreement.
"LOAN PARTIES" means collectively, the Borrowers and the
Guarantors.
"LOANS" means, collectively, all loans and advances provided
for in ARTICLE 1.
"MAJORITY LENDERS" means at any date of determination
Lenders whose Pro Rata Shares aggregate more than 50%.
Annex - 22
"MAJORITY REVOLVING LENDERS" means at any time Revolving
Credit Lenders whose Pro Rata Shares aggregate more than 50%.
"MAJORITY TERM LENDERS" means at any time Term Lenders whose
Pro Rata Shares aggregate more than 50%.
"MARGIN STOCK" means "margin stock" as such term is defined in
Regulation T, U or X of the Federal Reserve Board.
"MATERIAL ADVERSE EFFECT" means (a) a material adverse change
in, or a material adverse effect upon, the operations, business, properties, or
condition (financial or otherwise) of Fleetwood and its Subsidiaries, taken as a
whole, (b) a material impairment of the ability of a Borrower or any Affiliate
of a Borrower to perform under any Loan Document to which it is a party; or (c)
a material adverse effect upon the legality, validity, binding effect or
enforceability against any Loan Party of any Loan Document to which it is a
party.
"MATERIAL CONTRACTS" means the agreements, contracts and other
documents that are material to Fleetwood and its Subsidiaries.
"MAXIMUM INVENTORY LOAN AMOUNT" means $100,000,000 for both of
FMC and FRC combined.
"MAXIMUM PP&E LOAN AMOUNT" means $30,000,000, reducing on the
first day of each Fiscal Quarter commencing November 1, 2001 by an amount equal
to $1,500,000, and as further reduced from time to time pursuant to SECTION
3.4(a).
"MAXIMUM RATE" has the meaning specified in SECTION 2.3.
"MAXIMUM REVOLVER AMOUNT" means $230,000,000.
"MORTGAGES" means and includes any and all of the mortgages,
deeds of trust, deeds to secure debt, assignments and other instruments executed
and delivered by any Loan Party to or for the benefit of the Agent by which the
Agent, on behalf of the Lenders, acquires a Lien on the Real Estate or a
collateral assignment of a Loan Party's interest under leases of Real Estate,
and all amendments, modifications and supplements thereto.
"MULTI-EMPLOYER PLAN" means a "multi-employer plan" as defined
in Section 4001(a)(3) of ERISA which is or was at any time during the current
year or the immediately preceding six (6) years contributed to by Fleetwood or
any ERISA Affiliate.
"NET AMOUNT OF ELIGIBLE ACCOUNTS" means, at any time, the
gross amount of Eligible Accounts less sales, excise or similar taxes, and less
returns, discounts, claims, credits allowances, accrued rebates, offsets,
deductions, counterclaims, disputes and other defenses of any nature at any time
issued, owing, granted, outstanding, available or claimed.
"NET PROCEEDS" has the meaning specified in SECTION 3.4(c).
Annex - 23
"NEW CAPITAL PROCEEDS" means the amount of cash proceeds
received by Fleetwood after the Closing Date from issuance of Fleetwood Capital
Stock or from the exchange of the Trust Debentures in the exchange referred to
in the definition of Trust Debentures, net of (A) commissions and other
customary transaction costs, fees and expenses properly attributable to such
transaction and payable by a Loan Party in connection therewith (other than any
amounts payable to any Affiliate), (B) transfer taxes, (C) amounts payable to
holders of senior Liens (to the extent that such Liens are Permitted Liens), if
any, and (D) an appropriate reserve for income taxes in accordance with GAAP in
connection therewith.
"NEW LENDER" has the meaning specified in SECTION 13.19.
"NEW LENDER EFFECTIVE DATE" has the meaning specified in
SECTION 13.19.
"NON-CONSENTING LENDER" has the meaning specified in SECTION
11.1(c)(i).
"NON-RATABLE LOAN" and "NON-RATABLE LOANS" have the meanings
specified in SECTION 1.2(h).
"NOTES" means the Term Loan Notes and the Revolving Loan
Notes.
"NOTICE OF BORROWING" has the meaning specified in SECTION
1.2(b).
"NOTICE OF CONTINUATION/CONVERSION" has the meaning specified
in SECTION 2.2(b).
"OBLIGATIONS" means, with respect to any Loan Party, all
present and future loans, advances, liabilities, obligations, covenants, duties,
and debts owing by such Loan Party to the Agent and/or any Lender, arising under
or pursuant to this Agreement or any of the other Loan Documents, whether or not
evidenced by any note, or other instrument or document, whether arising from an
extension of credit, opening of a letter of credit, acceptance, loan, guaranty,
indemnification or otherwise, whether direct or indirect, absolute or
contingent, due or to become due, primary or secondary, as principal or
guarantor, and including all principal, interest, (including any interest which
accrues after the filing of a proceeding under the Bankruptcy Code or which
would have accrued but for such filing) charges, expenses, fees, attorneys'
fees, filing fees and any other sums chargeable to the Borrowers hereunder or
under any of the other Loan Documents. "Obligations" includes, without
limitation, (a) all debts, liabilities, and obligations now or hereafter arising
from or in connection with the Letters of Credit and (b) all debts, liabilities
and obligations now or hereafter arising from or in connection with Bank
Products.
"OTHER TAXES" means any present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies which
arise from any payment made hereunder or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement or any other Loan
Documents but excluding, in the case of each Lender and the Agent, such taxes
(including income taxes or franchise taxes) as are imposed on or measured by the
Agent's or each Lender's net income in any jurisdiction (whether federal, state
or local and including any political subdivision thereof) under the laws of
which such Lender or the Agent, as the case may be, is organized or maintains a
lending office.
Annex - 24
"PARENT GUARANTY" means the Parent Guaranty dated as of the
Closing Date from Fleetwood to the Agent, for its benefit and the benefit of the
Lenders.
"PARTICIPANT" means any Person who shall have been granted the
right by any Lender to participate in the financing provided by such Lender
under this Agreement and the other Loan Documents, and who shall have entered
into a participation agreement in form and substance satisfactory to such
Lender.
"PATENT" has the meaning specified in Patent and Trademark
Agreements.
"PATENT AND TRADEMARK AGREEMENTS" means collectively, the
Patent Security Agreement(s) and the Trademark Security Agreement(s), executed
and delivered by any Loan Party to the Agent to evidence and perfect the Agent's
security interest in the present and future patents, trademarks, and related
licenses and rights of such Loan Party, for the benefit of the Agent and the
Lenders.
"PAYMENT ACCOUNT" means each bank account established pursuant
to the Security Agreement, to which the proceeds of Accounts and other
Collateral are deposited or credited, and which is maintained in the name of the
Agent or of FMC, FRC or any other Loan Party, as applicable, as the Agent may
determine, on terms acceptable to the Agent.
"PBGC" means the Pension Benefit Guaranty Corporation or any
Governmental Authority succeeding to the functions thereof.
"PENDING REVOLVING LOANS" means, at any time, the aggregate
principal amount of all Revolving Loans requested in any Notice of Borrowing
received by the Agent which have not yet been advanced.
"PENSION PLAN" means a pension plan (as defined in Section
3(2) of ERISA) subject to Title IV of ERISA which Fleetwood or any ERISA
Affiliate sponsors, maintains, or to which it makes, is making, or is obligated
to make contributions, or in the case of a Multi-employer Plan has made
contributions at any time during the immediately preceding six (6) plan years.
"PERMITTED LIENS" means:
(a) Liens for taxes not delinquent or statutory Liens
for taxes in an amount not to exceed $1,000,000 provided that the
payment of such taxes which are due and payable is being contested in
good faith and by appropriate proceedings diligently pursued and as to
which adequate financial reserves have been established on books and
records of Fleetwood and its Subsidiaries and a stay of enforcement of
any such Lien is in effect;
(b) the Agent's Liens;
(c) Liens consisting of deposits made in the ordinary
course of business in connection with, or to secure payment of,
obligations under worker's compensation, unemployment insurance, social
security and other similar laws, or to
Annex - 25
secure the performance of bids, tenders or contracts (other than for
the repayment of Debt) or to secure indemnity, performance or other
similar bonds for the performance of bids, tenders or contracts (other
than for the repayment of Debt) or to secure statutory obligations
(other than liens arising under ERISA or Environmental Liens) or surety
or appeal bonds, or to secure indemnity, performance or other similar
bonds;
(d) Liens securing the claims or demands of
materialmen, mechanics, carriers, warehousemen, landlords and other
like Persons, PROVIDED that if any such Lien arises from the nonpayment
of such claims or demand when due, such claims or demands do not exceed
$1,000,000 in the aggregate;
(e) Liens constituting encumbrances in the nature of
reservations, exceptions, encroachments, easements, rights of way,
covenants running with the land, and other similar title exceptions or
encumbrances affecting any Real Estate; PROVIDED that they do not in
the aggregate materially detract from the value of the Real Estate or
materially interfere with its use in the ordinary conduct of the
Borrower's business;
(f) Liens arising from judgments and attachments in
connection with court proceedings PROVIDED that the attachment or
enforcement of such Liens would not result in an Event of Default
hereunder and such Liens are being contested in good faith by
appropriate proceedings, adequate reserves have been set aside and no
material Property is subject to a material risk of imminent loss or
forfeiture and a stay of execution pending appeal or proceeding for
review is in effect;
(g) Liens on the assets of any Loan Party described
on SCHEDULE 6.9, securing the Debt identified on SCHEDULE 6.9 as
"Secured Debt" and refinancings, renewals and extensions thereof
permitted pursuant to SECTION 7.13(f);
(h) Interests of lessors under operating leases;
(i) other Liens securing Debt not in excess of
$1,000,000 at any time outstanding;
(j) Liens on assets of the Excluded Retail
Subsidiaries securing Floor Plan Debt permitted hereunder;
(k) deposits by Retail and/or the Excluded Retail
Subsidiaries in a reserve account with the Floor Plan Lender;
(l) Liens on assets of the Excluded Subsidiaries, as
long as the holder of such Lien has no recourse to any Loan Party or
its assets; and
(m) Liens securing Debt permitted under SECTION
7.13(d) AND (e).
"PERSON" means any individual, sole proprietorship,
partnership, limited liability company, joint venture, trust, unincorporated
organization, association, corporation, Governmental Authority, or any other
entity.
Annex - 26
"PLAN" means an employee benefit plan (as defined in Section
3(3) of ERISA) which Fleetwood or any ERISA Affiliate sponsors or maintains or
to which Fleetwood or any ERISA Affiliate makes, is making, or is obligated to
make contributions and includes any Pension Plan.
"PLEDGE AGREEMENT" means the Pledge Agreement dated as of the
date hereof by the Loan Parties in favor of the Agent, for the benefit of the
Agent and the Lenders.
"PP&E SUBFACILITY ASSETS" means the Fixed Assets of FMC other
than those included in the Term Loan Collateral.
"PRICING CERTIFICATE" means a certificate of the chief
financial officer, vice president-treasurer or vice president-controller of
Fleetwood demonstrating in reasonable detail the calculation of the Liquidity as
of the last day of any fiscal month and the Fixed Charge Coverage Ratio for the
Four-Fiscal Quarter period ending as of the end of the most recent Fiscal
Quarter.
"PROPRIETARY RIGHTS" means, as to any Person, all of such
Person's now owned and hereafter arising or acquired: licenses, franchises,
permits, patents, patent rights, copyrights, works which are the subject matter
of copyrights, trademarks, service marks, trade names, trade styles, patent,
trademark and service xxxx applications, and all licenses and rights related to
any of the foregoing, including those patents, trademarks, service marks, trade
names and copyrights set forth on SCHEDULE 6.12 hereto, and all other rights
under any of the foregoing, all extensions, renewals, reissues, divisions,
continuations, and continuations-in-part of any of the foregoing, and all rights
to xxx for past, present and future infringement of any of the foregoing.
"PRO RATA SHARE" of a Lender means (a) with respect to all
provisions relating to Revolving Loans or Letters of Credit or the Revolving
Credit Commitments, a fraction (expressed as a percentage), the numerator of
which is the amount of such Lender's Revolving Credit Commitment and the
denominator of which is the Revolving Credit Commitments of all Lenders, or if
no Revolving Credit Commitment is outstanding, a fraction (expressed as a
percentage), the numerator of which is the Aggregate Revolver Outstandings owed
to such Lender and the denominator of which is the Aggregate Revolver
Outstandings; (b) with respect to all provisions relating to the Term Loans, a
fraction (expressed as a percentage), the numerator of which is the outstanding
Term Loan of such Term Lender and the denominator of which is the outstanding
Term Loans; and (c) otherwise, a fraction (expressed as a percentage), the
numerator of which is the amount of such Lender's Revolving Credit Commitment
plus the outstanding Term Loans of such Lender and the denominator of which is
the Revolving Credit Commitments of all Lenders plus the outstanding Term Loans,
or if no Revolving Credit Commitment is outstanding, a fraction (expressed as a
percentage), the numerator of which is the Aggregate Revolver Outstandings of
such Lender plus the outstanding Term Loans of such Lender and the denominator
of which is the Aggregate Revolver Outstandings and the outstanding Term Loans.
"PRUDENTIAL LOAN DOCUMENTS" has the meaning specified in
SECTION 7.10(a).
"QUALIFIED CASH EQUIVALENTS" means, as of any date, the
balance of cash and marketable securities held by the Loan Parties in the United
States on such date, which cash and
Annex - 27
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.
"REAL ESTATE" means, as to any Person, all of such Person's
now or hereafter owned or leased estates in real property, including, without
limitation, all fees, leaseholds and future interests, together with all of such
Person's now or hereafter owned or leased interests in the improvements thereon,
the fixtures attached thereto and the easements appurtenant thereto.
"RELEASE" means a release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration of a
Contaminant into the indoor or outdoor environment or into or out of any Real
Estate or other property, including the movement of Contaminants through or in
the air, soil, surface water, groundwater or Real Estate or other property.
"RELEASED FRC BORROWER" has the meaning specified in SECTION
3.11.
"REPORTABLE EVENT" means, any of the events set forth in
Section 4043(b) of ERISA or the regulations thereunder, other than any such
event for which the 30-day notice requirement under ERISA has been waived in
regulations issued by the PBGC.
"REPURCHASE OBLIGATIONS" means the liabilities of Fleetwood to
retail floor plan lenders to repurchase Inventory sold by FMC to retail dealers.
"REQUIRED LENDERS" means at any time Lenders whose Pro Rata
Shares aggregate more than 66-2/3%.
"REQUIRED REVOLVING LENDERS" means at any time Revolving
Credit Lenders whose Pro Rata Shares aggregate more than 66-2/3%.
"REQUIRED TERM LENDERS" means at any time when there are two
or fewer Term Lenders, all Term Lenders, and at all other times, Term Lenders
whose Pro Rata Shares aggregate at least 66-2/3%.
"REQUIREMENT OF LAW" means, as to any Person, any law
(statutory or common), treaty, rule or regulation or determination of an
arbitrator or of a Governmental Authority, in each case applicable to or binding
upon the Person or any of its property or to which the Person or any of its
property is subject.
"RESERVES" means reserves that limit the availability of
credit hereunder, consisting of reserves against Availability, Aggregate
Availability, Eligible Accounts, Eligible Equipment, Eligible Inventory or
Eligible Real Estate established by the Agent in good faith from time to time in
the Agent's reasonable credit judgment. Without limiting the generality of the
foregoing, the following reserves shall be deemed to be a reasonable exercise of
the Agent's credit judgment: (a) Bank Product Reserves, (b) a reserve for
accrued, unpaid interest on the Obligations, (c) reserves for rent at leased
locations subject to statutory or contractual landlord liens, or where the Agent
has not received an acceptable agreement from the landlord, (d) Environmental
Compliance Reserves, and (e) warehousemen's or bailees' charges.
Annex - 28
"RESPONSIBLE OFFICER" means, as to any Loan Party, the chief
executive officer or the president, or any other officer having substantially
the same authority and responsibility; or, with respect to compliance with
financial covenants and the preparation of the Borrowing Base Certificate, the
chief financial officer, vice president-treasurer or vice president-controller,
or any other officer of such Loan Party having substantially the same authority
and responsibility.
"RESTRICTED INVESTMENT" means any acquisition of property in
exchange for cash or other property, whether in the form of an acquisition of
stock, Debt, or other indebtedness or obligation, or the purchase or acquisition
of any other property, or a loan, advance, capital contribution, or
subscription, except the following: (a) acquisitions of Equipment to be used in
the business so long as the acquisition costs thereof constitute Capital
Expenditures permitted hereunder; (b) acquisitions of Inventory in the ordinary
course of business; (c) acquisitions of current assets acquired in the ordinary
course of business; (d) direct obligations of the United States of America, or
any agency thereof, or obligations guaranteed by the United States of America,
PROVIDED that such obligations mature within one year from the date of
acquisition thereof; (e) acquisitions of certificates of deposit maturing within
one year from the date of acquisition, bankers' acceptances, Eurodollar bank
deposits, or overnight bank deposits, in each case issued by, created by, or
with a bank or trust company organized under the laws of the United States of
America or any state thereof having capital and surplus aggregating at least
$100,000,000; (f) acquisitions of commercial paper given a rating of "A2" or
better by Standard & Poor's Corporation or "P2" or better by Xxxxx'x Investors
Service, Inc. and maturing not more than 90 days from the date of creation
thereof; and (g) Hedge Agreements.
"RETAIL" has the meaning given such term in the preamble.
"REVOLVING CREDIT COMMITMENT" means, at any time with respect
to a Lender, the principal amount set forth beside such Lender's name under the
heading "REVOLVING CREDIT COMMITMENT" on SCHEDULE 1.2 attached to the Agreement
or on the signature page of the Assignment and Acceptance pursuant to which such
Lender became a Lender hereunder in accordance with the provisions of SECTION
11.2, as such Revolving Credit Commitment may be adjusted from time to time in
accordance with the provisions of SECTION 11.2 and SECTION 13.19, and "REVOLVING
CREDIT COMMITMENTS" means, collectively, the aggregate amount of the commitments
of all Lenders.
"REVOLVING CREDIT LENDER" means any Lender which has a
Revolving Credit Commitment or, if the Commitments have been terminated, any
Lender which has any Revolving Loan outstanding or any participation interest in
any outstanding Letter of Credit.
"REVOLVING LOANS" has the meaning specified in SECTION 1.2 and
includes each Agent Advance and Non-Ratable Loan.
"REVOLVING LOAN NOTE" and "REVOLVING LOAN NOTES" have the
meanings specified in SECTION 1.2(a)(ii).
"SECURITIES ACT" means the Securities Act of 1933 and the
rules and regulations promulgated thereunder.
Annex - 29
"SECURITY AGREEMENT" means the Security Agreement of even date
herewith among the Loan Parties and the Agent for the benefit of the Agent and
the Lenders.
"SETTLEMENT" AND "SETTLEMENT DATE" have the meanings specified
in SECTION 12.15(a)(ii).
"SOLVENT" means, when used with respect to any Person, that at
the time of determination:
(a) the assets of such Person (including any contribution
rights under any Loan Document), at a fair valuation, are in excess of
the total amount of its debts (including contingent liabilities); and
(b) the present fair saleable value of its assets is greater
than its probable liability on its existing debts as such debts become
absolute and matured; and
(c) it is then able and expects to be able to pay its debts
(including contingent debts and other commitments) as they mature; and
(d) it has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
For purposes of determining whether a Person is Solvent, the
amount of any contingent liability shall be computed as the amount that, in
light of all the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured liability.
"STATED TERMINATION DATE" means July 27, 2004.
"SUBORDINATED DEBENTURES" means Fleetwood's 6% Convertible
Subordinated Debentures due February 15, 2028 in the original principal amount
of $296,400,000, and/or any convertible subordinated debentures issued in
exchange therefor and any additional convertible subordinated debentures issued
concurrently with, and having the same terms as, the convertible subordinated
debentures issued in such exchange, in each case to the extent and only to the
extent permitted under the Agreement.
"SUBORDINATED DEBT" means the Debt from time to time
outstanding under the Subordinated Debentures and the subordinated Guaranty by
Fleetwood of the Trust Securities.
"SUBORDINATED DEBT EXCHANGE" has the meaning specified in
SECTION 7.29.
"SUBSIDIARY" of a Person means any corporation, association,
partnership, limited liability company, joint venture or other business entity
of which more than fifty percent (50%) of the voting Capital Stock, is owned or
controlled directly or indirectly by the Person, or one or more of the
Subsidiaries of the Person, or a combination thereof. Unless the context
otherwise clearly requires, references herein to a "Subsidiary" refer to a
Subsidiary of Fleetwood.
Annex - 30
"SUBSIDIARY GUARANTY" means the Subsidiary Guaranty dated as
of the Closing Date from Subsidiaries of Fleetwood (other than the Borrowers and
the Excluded Subsidiaries) to the Agent, for its benefit and the benefit of the
Lenders.
"SUPPORTING LETTER OF CREDIT" has the meanings specified in
SECTION 1.4(g).
"SUPPORTING OBLIGATIONS" means all supporting obligations as
such term is defined in the UCC.
"TAXES" means any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender and the Agent, such taxes
(including income taxes or franchise taxes) as are imposed on or measured by the
Agent's or each Lender's net income in any jurisdiction (whether federal, state
or local and including any political subdivision thereof) under the laws of
which such Lender or the Agent, as the case may be, is organized or maintains a
lending office.
"TERM LENDER" means a Lender which has made a Term Loan, as
long as any portion of such Term Loan is outstanding.
"TERM LOAN" and "TERM LOANS" have the meanings specified in
SECTION 1.3(a).
"TERM LOAN COLLATERAL" means collectively, (a) the Fixed
Assets of Fleetwood Folding Trailer, now owned or hereafter acquired, (b) the
Capital Stock of Fleetwood Folding Trailer, and (c) the Real Estate listed on
SCHEDULE 1.4, to the Agreement, in each case as to which the Agent, for the
benefit of the Term Lenders, has been granted a first priority Lien to secure
the Term Loans.
"TERM LOAN NOTE" and "TERM LOAN NOTES" have the meanings
specified in SECTION 1.3(c).
"TERM LOAN OBLIGATIONS" means the Obligations of FMC with
respect to the Term Loans.
"TERMINATION DATE" means the earliest to occur of (i) the
Stated Termination Date, (ii) the date the Total Facility is terminated either
by the Borrowers pursuant to SECTION 3.2 or by the Majority Lenders pursuant to
SECTION 9.2, and (iii) the date the Agreement is otherwise terminated for any
reason whatsoever pursuant to the terms of the Agreement.
"TOTAL FACILITY" has the meaning specified in SECTION 1.1.
"TRADEMARK" has the meaning specified in Patent and Trademark
Agreements.
"TRUST SECURITIES" means the 6% Convertible Trust Preferred
Securities issued by Fleetwood Trust in February 1998, with a liquidation
preference of $50 per share, guaranteed on a subordinated unsecured basis by
Fleetwood, and any securities issued by Fleetwood Trust in exchange therefor and
any additional securities issued concurrently with, and having the same terms
as, the securities issued in such exchange, in each case to the extent and only
to the extent permitted under the Agreement.
Annex - 31
"UCC" means the Uniform Commercial Code, as in effect from
time to time, of the State of California or of any other state the laws of which
are required as a result thereof to be applied in connection with the issues of
perfection, continuation or enforcement of security interests.
"UNFUNDED PENSION LIABILITY" means the excess of a Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.
"UNUSED LETTER OF CREDIT SUBFACILITY" means an amount equal to
$75,000,000 MINUS the sum of (a) the aggregate undrawn amount of all outstanding
Letters of Credit PLUS, without duplication, (b) the aggregate unpaid
reimbursement obligations with respect to all Letters of Credit.
"UNUSED LINE FEE" has the meaning specified in SECTION 2.5.
ACCOUNTING TERMS. Any accounting term used in the Agreement
shall have, unless otherwise specifically provided herein, the meaning
customarily given in accordance with GAAP, and all financial computations in the
Agreement shall be computed, unless otherwise specifically provided therein, in
accordance with GAAP as consistently applied and using the same method for
inventory valuation as used in the preparation of the Financial Statements.
INTERPRETIVE PROVISIONS.
(a) The meanings of defined terms are equally applicable to
the singular and plural forms of the defined terms.
(b) The words "hereof," "herein," "hereunder" and similar
words refer to the Agreement as a whole and not to any particular provision of
the Agreement; and Subsection, Section, Schedule and Exhibit references are to
the Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all
instruments, documents, agreements, certificates, indentures, notices
and other writings, however evidenced.
(ii) The term "including" is not limiting and means
"including without limitation."
(iii) In the computation of periods of time from a
specified date to a later specified date, the word "from" means "from
and including," the words "to" and "until" each mean "to but excluding"
and the word "through" means "to and including."
(iv) The word "or" is not exclusive.
(d) Unless otherwise expressly provided herein, (i) references
to agreements (including the Agreement) and other contractual instruments shall
be deemed to include all subsequent amendments and other modifications thereto,
but only to the extent such amendments and other modifications are not
prohibited by the terms of any Loan Document, and (ii)
Annex - 32
references to any statute or regulation are to be construed as including all
statutory and regulatory provisions consolidating, amending, replacing,
supplementing or interpreting the statute or regulation.
(e) The captions and headings of the Agreement and other Loan
Documents are for convenience of reference only and shall not affect the
interpretation of the Agreement.
(f) The Agreement and other Loan Documents may use several
different limitations, tests or measurements to regulate the same or similar
matters. All such limitations, tests and measurements are cumulative and shall
each be performed in accordance with their terms.
(g) For purposes of SECTION 9.1, a breach of a financial
covenant contained in SECTIONS 7.22 THROUGH 7.26 shall be deemed to have
occurred as of any date of determination thereof by the Agent or as of the last
day of any specified measuring period, regardless of when the Financial
Statements reflecting such breach are delivered to the Agent.
(h) The Agreement and the other Loan Documents are the result
of negotiations among and have been reviewed by counsel to the Agent, Fleetwood,
the Borrowers and the other parties, and are the products of all parties.
Accordingly, they shall not be construed against the Lenders or the Agent merely
because of the Agent's or Lenders' involvement in their preparation.
Annex - 33
EXHIBIT A-1
FORM OF REVOLVING LOAN NOTE
$_____________ ______ __, 2001
FOR VALUE RECEIVED, the undersigned jointly and severally,
promise to pay to the order of the financial institutions from time to time
parties to that certain
Credit Agreement as defined below (the "LENDERS") and
Bank of America, N.A., with an office at 00 Xxxxx Xxxx Xxxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxxxxxx 00000, as administrative agent for the Lenders (in its
capacity as agent, the "AGENT"), in lawful money of the United States of America
and in immediately available funds, the principal amount of __________ Dollars
($_________), or such lesser amount as may then constitute the unpaid aggregate
principal amount on the Termination Date of the Revolving Loans made to the FMC
Borrowers.
The [FMC/FRC] Borrowers further agree to pay interest, in like
money, on the unpaid principal amount owing hereunder from time to time from the
date hereof on the dates and at the rate specified in Article 2 of the
Credit
Agreement.
If any payment on this promissory note becomes due and payable
on a day other than a Business Day, the maturity thereof shall be extended to
the next succeeding Business Day, and with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension.
This promissory note is one of the Revolving Loan Notes
referred to in the
Credit Agreement, dated as of _____ ___, 2001, by and among
FLEETWOOD ENTERPRISES, INC., a Delaware corporation ("FLEETWOOD"), as a
Guarantor, FLEETWOOD HOLDINGS INC., a Delaware corporation ("HOLDINGS"),
FLEETWOOD RETAIL CORP., a Delaware corporation ("RETAIL") and those Subsidiaries
of Holdings and Retail set forth on the signature pages hereto (each of
Holdings, Retail and each such Subsidiary individually, a "BORROWER" and,
collectively, the "BORROWERS"), the Agent and the Lenders (as amended,
supplemented, amended and restated or otherwise modified from time to time, the
"CREDIT AGREEMENT"). Capitalized terms used herein without definition shall have
the meanings given to such terms in the Credit Agreement. The Credit Agreement,
among other things, provides for the making of Revolving Loans by the Lenders to
the FMC Borrowers from time to time in an amount not to exceed such Lender's Pro
Rata Share of the Aggregate Availability.
Upon the occurrence of any one or more of the Events of
Default specified in the Credit Agreement, all amounts then remaining unpaid on
this promissory note shall become, or may be declared to be, immediately due and
payable, all as provided in the Credit Agreement.
This promissory note is secured by security agreements and
other collateral documents pursuant to the Credit Agreement.
A-1 - 1
Each [FMC Borrower/FRC Borrower] hereby waives presentment,
demand, protest and notice of any kind. No failure to exercise, and no delay in
exercising, any rights hereunder on the part of the holder hereof shall operate
as a waiver of such rights.
[Remainder of page intentionally left blank]
A-1 - 2
THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS
PROMISSORY NOTE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA WITHOUT
GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
[FMC BORROWERS/FRC BORROWERS]
By: __________________________________
Name: __________________________________
Title: __________________________________
X-0 - 0
XXXXXXX X-0
XXXX XX XXXX LOAN NOTE
$_____________ ______ __, 200_
FOR VALUE RECEIVED, the undersigned jointly and severally,
promise to pay to the order of the financial institutions from time to time
parties to that certain Credit Agreement as defined below (the "LENDERS") and
BANK OF AMERICA, N.A., with an office at 00 Xxxxx Xxxx Xxxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxxxxxx 00000, as administrative agent for the Lenders (in its
capacity as agent, the "AGENT"), in lawful money of the United States of America
and in immediately available funds, the principal amount of __________ Dollars
($_________) owing by each FMC Borrower to the Lenders as Term Loans under the
Credit Agreement, as set forth in Section 1.3 of the Credit Agreement.
Each FMC Borrower further agrees to pay interest at said
office, in like money, on the unpaid principal amount owing hereunder from time
to time from the date hereof on the dates and at the rate specified in Article 2
of the Credit Agreement, subject to the limitations of Section 2.3 of the Credit
Agreement.
If any payment on this promissory note becomes due and payable
on a day other than a Business Day, the maturity thereof shall be extended to
the next succeeding Business Day, and with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension.
This promissory note is one of the Term Loan Notes referred to
in the Credit Agreement, dated as of _____ __, 2001, by and among FLEETWOOD
ENTERPRISES, INC., a Delaware corporation ("FLEETWOOD") as a Guarantor,
FLEETWOOD HOLDINGS INC., a Delaware corporation ("HOLDINGS"), FLEETWOOD RETAIL
CORP., a Delaware corporation ("RETAIL") and those Subsidiaries of Holdings and
Retail set forth on the signature pages thereto (each of Holdings, Retail and
each such Subsidiary individually, a "BORROWER" and, collectively, "BORROWERS"),
the Agent and the Lenders, as the same shall be amended, restated, supplemented
or otherwise modified from time to time (the "CREDIT AGREEMENT"), and is subject
to, and entitled to, all provisions and benefits thereof and is subject to
optional and mandatory prepayment in whole or in part as provided therein.
Capitalized terms used herein without definition shall have the meanings given
to such terms in the Credit Agreement.
Upon the occurrence of any one or more of the Events of
Default specified in the Credit Agreement, all amounts then remaining unpaid on
this promissory note shall become, or may be declared to be, immediately due and
payable, all as provided in the Credit Agreement.
This promissory note is secured by security agreements,
mortgages and other collateral documents more particularly described in the
Credit Agreement and the other Loan Documents.
A-2 - 1
Each FMC Borrower hereby waives presentment, demand, protest
and notice of any kind. No failure to exercise, and no delay in exercising any
rights hereunder on the part of the holder hereof shall operate as a waiver of
such rights.
[Remainder of page intentionally left blank]
A-2 - 2
THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS
PROMISSORY NOTE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA WITHOUT
GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
[FMC BORROWERS]
By: __________________________________
Name: __________________________________
Title: __________________________________
X-0 - 0
XXXXXXX X
FORM OF BORROWING BASE CERTIFICATE
B - 1
EXHIBIT C
FINANCIAL STATEMENTS
C - 1
EXHIBIT D
NOTICE OF BORROWING
Date: ______________, 200_
To: Bank of America, N.A. as administrative agent for the Lenders who are
parties to the Credit Agreement dated as of July 27, 2001 (as extended,
renewed, amended or restated from time to time, the "CREDIT AGREEMENT")
among Fleetwood Enterprises, Inc., and, certain of its Subsidiaries as
Borrowers, certain Lenders which are signatories thereto and Bank of
America, N.A., as the Agent.
Ladies and Gentlemen:
The undersigned, on behalf of [FMC] [FRC], refers to the
Credit Agreement, the terms defined therein being used herein as therein
defined, and hereby gives you notice irrevocably of the Borrowing specified
below:
1. The Business Day of the proposed Borrowing is
_____________, 200_.
2. The aggregate amount of the proposed Borrowing is
$____________.
3. The Borrowing is to be comprised of $________ of Base Rate
and $_______ of LIBOR Rate Loans.
4. The duration of the Interest Period for the LIBOR Rate
Loans, if any, included in the Borrowing shall be
______ months.
The undersigned hereby certifies on behalf of [FMC] [FRC] that
the following statements are true on the date hereof, and will be true on the
date of the proposed Borrowing, before and after giving effect thereto and to
the application of the proceeds therefrom:
(a) The representations and warranties of the Loan Parties
contained in the Credit Agreement and the other Loan Documents are true and
correct in all material respects as though made on and as of such date other
than any such representation or warranty which relates to a specified prior date
(which shall have been true and correct in all material respects as of such
date) and except to the extent the Agent and the Lenders have been notified in
writing by the Borrowers that any representation or warranty is not correct and
the Majority Lenders have explicitly waived in writing compliance with such
representation or warranty;
(b) No event has occurred and is continuing, or would result
from such proposed Borrowing, which constitutes a Default or Event of Default;
(c) No event has occurred and is continuing, or would result
from such proposed Borrowing, which has had or would have a Material Adverse
Effect; and
D - 1
(d) The proposed Borrowing will not exceed the Availability of
[FRC] [FMC] or cause the aggregate principal amount of all outstanding Revolving
Loans PLUS the aggregate amount available for drawing under all outstanding
Letters of Credit, to exceed the Aggregate Borrowing Bases or the combined
Revolving Credit Commitments of the Lenders.
[FMC] [FRC]
By: __________________________________
Name: __________________________________
Title: __________________________________
D - 2
EXHIBIT E
NOTICE OF CONTINUATION/CONVERSION
Date: ____________, 200_
To: Bank of America, N.A. as administrative agent for the Lenders to the
Credit Agreement dated as of July 27, 2001 (as extended, renewed,
amended or restated from time to time, the "CREDIT AGREEMENT") among
Fleetwood Enterprises, Inc. and certain of its Subsidiaries, as
Borrowers, certain Lenders which are signatories thereto and Bank of
America, N.A., as the Agent
Ladies and Gentlemen:
The undersigned, on behalf of [FMC] [FRC], refers to the
Credit Agreement, the terms defined therein being used herein as therein
defined, and hereby gives you notice irrevocably of the [conversion]
[continuation] of the Loans specified herein, that:
1. The Continuation/Conversion Date is ________, 200_.
2. The aggregate amount of the Loans to be [converted]
[continued] is $ .
3. The Loans are to be [converted into] [continued as]
[LIBOR Rate] [Base Rate] Loans.
4. The duration of the Interest Period for the LIBOR Rate
Loans included in the [conversion] [continuation] shall
be months.
The undersigned hereby certifies on behalf of [FMC] [FRC],
that the following statements are true on the date hereof, and will be true on
the proposed Continuation/Conversion Date, before and after giving effect
thereto and to the application of the proceeds therefrom:
(a) The representations and warranties of the Loan Parties
contained in the Credit Agreement and the other Loan Documents are true and
correct in all material respects as though made on and as of such date other
than any such representation or warranty which relates to a specified prior date
(which shall have been true and correct in all material respects as of such
date) and except to the extent the Agent and the Lenders have been notified in
writing by the Borrowers that any representation or warranty is not correct and
the Majority Lenders have explicitly waived in writing compliance with such
representation or warranty;
(b) No event has occurred and is continuing, or would result
from such [conversion] [continuation], which constitutes a Default or Event of
Default; and
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(c) No event has occurred and is continuing, or would result
from such proposed Borrowing, which has had or would have a Material Adverse
Effect.
[FMC] [FRC]
By: __________________________________
Name: __________________________________
Title: __________________________________
E - 2
EXHIBIT F
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (this "ASSIGNMENT
AND ACCEPTANCE") dated as of [______] [__], 200[_] is made between
[________________________] (the "ASSIGNOR") and [__________________________]
(the "ASSIGNEE").
RECITALS
WHEREAS, the Assignor is party to that certain Credit
Agreement dated as of July 27, 2001 (as amended, amended and restated, modified,
supplemented or renewed, the "CREDIT AGREEMENT") among FLEETWOOD ENTERPRISES,
INC., a Delaware corporation ("FLEETWOOD"), as a Guarantor, FLEETWOOD HOLDINGS
INC., a Delaware corporation ("HOLDINGS"), FLEETWOOD RETAIL CORP., a Delaware
corporation ("RETAIL"), those Subsidiaries of Holdings and Retail parties to in
the Credit Agreement (each of Holdings, Retail and each such Subsidiary
individually, a "BORROWER" and, collectively, the "BORROWERS"), the several
financial institutions from time to time party thereto (such financial
institutions, together with their respective successors and assigns, are
referred to hereinafter each individually as a "LENDER" and collectively as the
"LENDERS"), BANK OF AMERICA, N.A., with an office at 00 Xxxxx Xxxx Xxxxxx, Xxxxx
000, Xxxxxxxx, Xxxxxxxxxx 00000, as administrative agent for the Lenders (in its
capacity as administrative agent, the "AGENT"), Citicorp USA, Inc., as the
documentation agent (in its capacity as documentation agent, the "DOCUMENTATION
AGENT"), and Xxxxxx Financial, Inc., as the syndication agent (in its capacity
as syndication agent, the "SYNDICATION AGENT"). Any terms defined in the Credit
Agreement and not defined in this Assignment and Acceptance are used herein as
defined in the Credit Agreement;
WHEREAS, as provided under the Credit Agreement, the Revolving
Lenders have committed to making a revolving line of credit for loans and
letters of credit (the "COMMITTED REVOLVING LOANS") to the Borrowers in an
aggregate amount not to exceed $230,000,000 (the "REVOLVING COMMITMENT") and the
Term Lenders have committed to making term loans to FMC (the "COMMITTED TERM
LOANS" and, together with the Committed Revolving Loans, the "COMMITTED LOANS")
in the aggregate principal amount of $30,000,000 (the "TERM COMMITMENT" and,
together with the Revolving Commitment, the "COMMITMENTS");
WHEREAS, the Assignor has made Committed Loans in the
aggregate principal amount of $_______________ to the Borrowers;
WHEREAS, the Assignor has acquired a participation in its pro
rata share of the Lenders' liabilities under Letters of Credit in an aggregate
principal amount of $[_________] (the "L/C OBLIGATIONS"); and
WHEREAS, the Assignor wishes to assign to the Assignee [PART
OF THE] [ALL] rights and obligations of the Assignor under the Credit Agreement
in respect of its Commitments, together with a corresponding portion of each of
its outstanding Committed Loans and L/C Obligations, in an amount equal to
$[__________] (the "ASSIGNED AMOUNT") on the terms and subject to the conditions
set forth herein and the Assignee wishes to accept
F - 1
assignment of such rights and to assume such obligations from the Assignor on
such terms and subject to such conditions;
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements contained herein, the parties hereto agree as follows:
1. ASSIGNMENT AND ACCEPTANCE.
(a) Subject to the terms and conditions of this Assignment and
Acceptance, (i) the Assignor hereby sells, transfers and assigns to the
Assignee, and (ii) the Assignee hereby purchases, assumes and undertakes from
the Assignor, without recourse and without representation or warranty (except as
provided in this Assignment and Acceptance) [__]% (the "ASSIGNEE'S PERCENTAGE
SHARE") of (A) the Revolving Commitment, the Revolving Loans and the
L/C Obligations [and the Term Loans] of the Assignor and (B) all related rights,
benefits, obligations, liabilities and indemnities of the Assignor under and in
connection with the Credit Agreement and the Loan Documents.
(b) With effect on and after the Effective Date (as defined in
Section 5 hereof), the Assignee shall be a party to the Credit Agreement and
succeed to all of the rights and be obligated to perform all of the obligations
of a Lender under the Credit Agreement, including the requirements concerning
confidentiality and the payment of indemnification, with a Revolving Commitment
in an amount equal to $___________ and a Term Loan of $_________. The Assignee
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender. It is the intent of the parties hereto that the
[Revolving] [and Term] Commitments of the Assignor shall, as of the Effective
Date, be reduced by an amount equal to the Assigned Amount and the Assignor
shall relinquish its rights and be released from its obligations under the
Credit Agreement to the extent such obligations have been assumed by the
Assignee; provided, however, the Assignor shall not relinquish its rights under
Sections 13.11 and 13.12 of the Credit Agreement to the extent such rights
relate to the time prior to the Effective Date.
(c) After giving effect to the assignment and assumption set
forth herein, on the Effective Date the Assignee's Revolving Credit Commitment
will be $[__________] and its Term Loan will be [$_______________].
(d) After giving effect to the assignment and assumption set
forth herein, on the Effective Date the Assignor's Revolving Credit Commitment
will be $[__________] and its Term Loan will be [$______________].
2. PAYMENTS.
(a) As consideration for the sale, assignment and transfer
contemplated in Section 1 hereof, the Assignee shall pay to the Assignor on the
Effective Date in immediately available funds an amount equal to $[__________],
representing the Assignee's Pro Rata Share of the principal amount of all
Committed Loans.
(b) The Assignee further agrees to pay to the Agent a
processing fee in the amount specified in Section 11.2(a) of the Credit
Agreement.
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3. REALLOCATION OF PAYMENTS.
Any interest, fees and other payments accrued to the Effective
Date with respect to the Commitments, Committed Loans and L/C Obligations shall
be for the account of the Assignor. Any interest, fees and other payments
accrued on and after the Effective Date with respect to the Assigned Amount
shall be for the account of the Assignee. Each of the Assignor and the Assignee
agrees that it will hold in trust for the other party any interest, fees and
other amounts which it may receive to which the other party is entitled pursuant
to the preceding sentence and pay to the other party any such amounts which it
may receive promptly upon receipt.
4. INDEPENDENT CREDIT DECISION.
The Assignee (a) acknowledges that it has received a copy of
the Credit Agreement and the Schedules and Exhibits thereto, together with
copies of the most recent financial statements of the Borrowers, and such other
documents and information as it has deemed appropriate to make its own credit
and legal analysis and decision to enter into this Assignment and Acceptance;
and (b) agrees that it will, independently and without reliance upon the
Assignor, the Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit and legal decisions in taking or not taking action under the Credit
Agreement.
5. EFFECTIVE DATE; NOTICES.
(a) As between the Assignor and the Assignee, the effective
date for this Assignment and Acceptance shall be [______] [__], 200[_] (the
"EFFECTIVE DATE"); PROVIDED that the following conditions precedent have been
satisfied on or before the Effective Date:
(i) this Assignment and Acceptance shall be
executed and delivered by the Assignor and the Assignee;
(ii) the consent of the Agent required for an
effective assignment of the Assigned Amount by the Assignor to the
Assignee shall have been duly obtained and shall be in full force and
effect as of the Effective Date;
(iii) the Assignee shall pay to the Assignor all
amounts due to the Assignor under this Assignment and Acceptance;
(iv) the Assignee shall have complied with
Section 11.2 of the Credit Agreement;
(v) the processing fee referred to in
Section 2(b) hereof and in Section 11.2(a) of the Credit Agreement
shall have been paid to the Agent; and
F-3
(b) Promptly following the execution of this Assignment and
Acceptance, the Assignor shall deliver to the Borrower and the Agent for
acknowledgment by the Agent, a Notice of Assignment in the form attached hereto
as SCHEDULE 1.
6. [AGENT. [INCLUDE ONLY IF ASSIGNOR IS AGENT]
(a) THE ASSIGNEE HEREBY APPOINTS AND AUTHORIZES THE ASSIGNOR
TO TAKE SUCH ACTION AS AGENT ON ITS BEHALF AND TO EXERCISE SUCH POWERS UNDER THE
CREDIT AGREEMENT AS ARE DELEGATED TO THE AGENT BY THE LENDERS PURSUANT TO THE
TERMS OF THE CREDIT AGREEMENT.
(b) THE ASSIGNEE SHALL ASSUME NO DUTIES OR OBLIGATIONS HELD BY
THE ASSIGNOR IN ITS CAPACITY AS AGENT UNDER THE CREDIT AGREEMENT.]
7. WITHHOLDING TAX.
The Assignee (a) represents and warrants to the Lenders, the
Agent and the Borrowers that under applicable law and treaties no tax will be
required to be withheld by the Lender with respect to any payments to be made to
the Assignee hereunder, (b) agrees to furnish (if it is organized under the laws
of any jurisdiction other than the United States or any State thereof) to the
Agent and the Borrowers prior to the time that the Agent or Borrowers are
required to make any payment of principal, interest or fees hereunder, duplicate
executed originals of either U.S. Internal Revenue Service Form W-8ECI or U.S.
Internal Revenue Service Form W-8BEN (wherein the Assignee claims entitlement to
the benefits of a tax treaty that provides for a complete exemption from U.S.
federal income withholding tax on all payments hereunder) and agrees to provide
new Forms W-8ECI or W-8BEN upon the expiration of any previously delivered form
or comparable statements in accordance with applicable U.S. law and regulations
and amendments thereto, duly executed and completed by the Assignee, and (c)
agrees to comply with all applicable U.S. laws and regulations with regard to
such withholding tax exemption.
8. REPRESENTATIONS AND WARRANTIES.
(a) The Assignor represents and warrants that (i) it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any Lien or other adverse claim; (ii) it
is duly organized and existing and it has the full power and authority to take,
and has taken, all action necessary to execute and deliver this Assignment and
Acceptance and any other documents required or permitted to be executed or
delivered by it in connection with this Assignment and Acceptance and to fulfill
its obligations hereunder; (iii) no notices to, or consents, authorizations or
approvals of, any Person are required (other than any already given or obtained)
for its due execution, delivery and performance of this Assignment and
Acceptance, and apart from any agreements or undertakings or filings required by
the Credit Agreement, no further action by, or notice to, or filing with, any
Person is required of it for such execution, delivery or performance; and (iv)
this Assignment and Acceptance has been duly executed and delivered by it and
constitutes the legal, valid and binding obligation of the Assignor, enforceable
against the Assignor in accordance with the terms hereof, subject, as to
F-4
enforcement, to bankruptcy, insolvency, moratorium, reorganization and other
laws of general application relating to or affecting creditors' rights and to
general equitable principles.
(b) The Assignor makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement or any other instrument or document furnished pursuant
thereto. The Assignor makes no representation or warranty in connection with,
and assumes no responsibility with respect to, the solvency, financial condition
or statements of the Borrowers, or the performance or observance by the
Borrowers, of any of its respective obligations under the Credit Agreement or
any other instrument or document furnished in connection therewith.
(c) The Assignee represents and warrants that (i) it is duly
organized and existing and it has full power and authority to take, and has
taken, all action necessary to execute and deliver this Assignment and
Acceptance and any other documents required or permitted to be executed or
delivered by it in connection with this Assignment and Acceptance, and to
fulfill its obligations hereunder; (ii) no notices to, or consents,
authorizations or approvals of, any Person are required (other than any already
given or obtained) for its due execution, delivery and performance of this
Assignment and Acceptance; and apart from any agreements or undertakings or
filings required by the Credit Agreement, no further action by, or notice to, or
filing with, any Person is required of it for such execution, delivery or
performance; (iii) this Assignment and Acceptance has been duly executed and
delivered by it and constitutes the legal, valid and binding obligation of the
Assignee, enforceable against the Assignee in accordance with the terms hereof,
subject, as to enforcement, to bankruptcy, insolvency, moratorium,
reorganization and other laws of general application relating to or affecting
creditors' rights and to general equitable principles; and (iv) it is an
Eligible Assignee.
9. FURTHER ASSURANCES.
The Assignor and the Assignee each hereby agree to execute and
deliver such other instruments, and take such other action, as either party may
reasonably request in connection with the transactions contemplated by this
Assignment and Acceptance, including the delivery of any notices or other
documents or instruments to the Borrower or the Agent, which may be required in
connection with the assignment and assumption contemplated hereby.
10. MISCELLANEOUS.
(a) Any amendment or waiver of any provision of this
Assignment and Acceptance shall be in writing and signed by the parties hereto.
No failure or delay by either party hereto in exercising any right, power or
privilege hereunder shall operate as a waiver thereof and any waiver of any
breach of the provisions of this Assignment and Acceptance shall be without
prejudice to any rights with respect to any other or further breach thereof.
(b) All payments made hereunder shall be made without any
set-off or counterclaim.
F-5
(c) The Assignor and the Assignee shall each pay its own costs
and expenses incurred in connection with the negotiation, preparation, execution
and performance of this Assignment and Acceptance.
(d) This Assignment and Acceptance may be executed in any
number of counterparts and all of such counterparts taken together shall be
deemed to constitute one and the same instrument.
(e) THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF CALIFORNIA. THE ASSIGNOR
AND THE ASSIGNEE EACH IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF
ANY STATE OR FEDERAL COURT SITTING IN LOS ANGELES COUNTY, CALIFORNIA, OVER ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS ASSIGNMENT AND
ACCEPTANCE AND IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH LOS ANGELES COUNTY, CALIFORNIA,
STATE OR FEDERAL COURT. EACH PARTY TO THIS ASSIGNMENT AND ACCEPTANCE HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE
OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING.
(f) THE ASSIGNOR AND THE ASSIGNEE EACH HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH THIS ASSIGNMENT AND ACCEPTANCE, THE CREDIT AGREEMENT, ANY
RELATED DOCUMENTS AND AGREEMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALING, OR
STATEMENTS (WHETHER ORAL OR WRITTEN).
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
this Assignment and Acceptance to be executed and delivered by their duly
authorized officers as of the date first above written.
[ASSIGNOR]
By: [________________________]
Title: [_____________________]
Address: [___________________]
[ASSIGNEE]
By: [________________________]
Title: [_____________________]
Address: [___________________]
F-6
F-7
SCHEDULE 1
to
ASSIGNMENT AND ACCEPTANCE
NOTICE OF ASSIGNMENT AND ACCEPTANCE
[______] [__], 000[_]
Xxxx xx Xxxxxxx, N.A.
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: [_______________________]
Re: FLEETWOOD ENTERPRISES, INC. AND ITS SUBSIDIARIES
Ladies and Gentlemen:
We refer to the Credit Agreement dated as of July 27, 2001 (as
amended, amended and restated, modified, supplemented or renewed from time to
time the "CREDIT AGREEMENT") among FLEETWOOD ENTERPRISES, INC., a Delaware
corporation ("FLEETWOOD"), as a Guarantor, FLEETWOOD HOLDINGS INC., a Delaware
corporation ("HOLDINGS"), FLEETWOOD RETAIL CORP., a Delaware corporation
("RETAIL"), those Subsidiaries of Holdings and Retail set forth in the Credit
Agreement (each of Holdings, Retail and each Subsidiary individually, a
"BORROWER" and, collectively, the "BORROWERS"), the Lenders referred to therein,
BANK OF AMERICA, N.A., as administrative agent for the Lenders (in its capacity
as administrative agent, the "AGENT"), CITICORP USA, INC., as the documentation
agent (in its capacity as documentation agent, the "DOCUMENTATION AGENT"), and
XXXXXX FINANCIAL, INC., as the syndication agent (in its capacity as syndication
agent, the "SYNDICATION AGENT"). Terms defined in the Credit Agreement are used
herein as therein defined.
1. We hereby give you notice of, and request your consent to,
the assignment by [_____________________] (the "ASSIGNOR") to [_______________]
(the "ASSIGNEE") of [__]% of the right, title and interest of the Assignor in
and to the Credit Agreement (including the right, title and interest of the
Assignor in and to the Commitments of the Assignor, all outstanding Loans made
by the Assignor and the Assignor's participation in the Letters of Credit
pursuant to the Assignment and Acceptance Agreement attached hereto (the
"ASSIGNMENT AND ACCEPTANCE"). We understand and agree that the Assignor's
Revolving Credit Commitment, as of [______] [__], 200[_], is $ [___________],
the aggregate amount of its outstanding Revolving Loans is $[__________], its
participation in L/C Obligations is $[___________], [and the aggregate amount of
its outstanding Term Loans is $___________].
F-8
2. The Assignee agrees that, upon receiving the consent of the
Agent to such assignment, the Assignee will be bound by the terms of the Credit
Agreement as fully and to the same extent as if the Assignee were the Lender
originally holding such interest in the Credit Agreement.
3. The following administrative details apply to the Assignee:
(A) Notice Address:
Assignee name: [_______________________]
Address: [_____________________________]
[_____________________________]
[_____________________________]
Attention: [___________________________]
Telephone: [(__)_______________________]
Telecopier: [(__)______________________]
Telex (Answerback): [__________________]
(B) Payment Instructions:
Account No.: [_________________________]
At: [_________________________]
[_________________________]
[_________________________]
Reference: [_________________________]
Attention: [_________________________]
4. You are entitled to rely upon the representations,
warranties and covenants of each of the Assignor and Assignee contained in the
Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
this Notice of Assignment and Acceptance to be executed by their respective duly
authorized officials, officers or agents as of the date first above mentioned.
Very truly yours,
[NAME OF ASSIGNOR]
By: _______________________
Title: ____________________
[NAME OF ASSIGNEE]
By: _______________________
Title: ____________________
F-9
ACKNOWLEDGED AND ASSIGNMENT
CONSENTED TO:
BANK OF AMERICA, N.A., as Agent
By: ___________________________
Title: ________________________
F-10
