EXHIBIT 10.27
September 30, 2001
Southern Energy Homes, Inc.
000 Xxxxxxxxx Xxx
Xxxxxxx, Xxxxxxx 00000
RE: LOANS BY AMSOUTH BANK, AS AGENT AND LENDER, AND AMSOUTH
CAPITAL CORP. AS ADMINISTRATIVE AGENT TO SOUTHERN ENERGY
HOMES, INC. AND ITS SUBSIDIARIES
Ladies/Gentlemen:
Reference is made to the Loan and Security Agreement, dated as
of March 9, 2001 (the "Loan Agreement"), among the financial institutions party
thereto, AmSouth Bank, as Agent, AmSouth Capital Corp., as Administrative Agent,
Southern Energy Homes, Inc. ("XXXX") and the Subsidiaries of XXXX listed on the
signature pages thereto. Capitalized terms not otherwise described herein that
are defined in the Loan Agreement shall have the meanings provided in the Loan
Agreement.
The undersigned agree that Section 9.23 of the Loan Agreement
is amended to read as follows:
SECTION 9.23 OPERATING LEASE OBLIGATIONS.
No Borrower nor any Subsidiary shall enter into, or suffer to
exist, any lease that commences after the date of this Agreement of
real or personal property as lessee or sublessee (other than (i) all
Capital Leases and (ii) renewals and renegotiated leases with respect
to leases that were in effect on the date of this Agreement (provided,
if a renewal or renegotiated lease has Rentals in excess of the
original lease, such excess shall be included in calculating compliance
with the limit below), if, after giving effect thereto, the aggregate
amount of Rentals (as hereinafter defined) payable by Borrowers and
their Subsidiaries on a consolidated basis in any Fiscal Year in
respect of such lease and all other such leases would exceed $200,000
(such amount being referred to herein as "Permitted Rentals"). The term
"Rentals" means all payments due from the lessee or sublessee under a
lease that commences after the date of this Agreement, including,
without limitation, basic rent, percentage rent, property taxes,
utility or maintenance costs, and insurance premiums.
The undersigned further agree that the effectiveness of this
amendment shall be retroactive to March 9, 2001 with the same effect as if
Section 9.23 to the Loan Agreement had always read as set forth above.
Except as set forth above, the Loan Agreement and the other
Loan Documents are ratified and confirmed in all respects.
Very truly yours,
AMSOUTH BANK, as Agent and as a Lender
By
---------------------------------------
Its
--------------------------------------
AMSOUTH CAPITAL CORP., as Administrative
Agent
By
---------------------------------------
Its
--------------------------------------
Agreed as of the date first written above:
SOUTHERN ENERGY HOMES, INC.
AL/TEX HOMES, INC.
WENCO FINANCE, INC.
MH TRANSPORT, INC.
SOUTHERN ENERGY HOMES RETAIL CORP.
By
---------------------------------------
Its
--------------------------------------
REAFFIRMATION
Each of the undersigned consents to the foregoing letter
agreement and reaffirms its obligations under its Guaranty of the Loan Agreement
dated March 9, 2001 and each other Loan Document to which it is a party.
SOUTHERN ENERGY HOMES OF NORTH
CAROLINA, INC.
SOUTHERN ENERGY HOMES OF
PENNSYLVANIA, INC.
BR AGENCY, INC.
By
---------------------------------------
Its
--------------------------------------
-2-
AMENDMENT NO. 1
TO
LOAN AND SECURITY AGREEMENT
February 21, 2002
Southern Energy Homes, Inc.
AL/Tex Homes, Inc.
Wenco Finance, Inc.
MH Transport, Inc.
Southern Energy Homes Retail Corp.
000 Xxxxxxxxx Xxx
Xxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
Reference is made to the Loan and Security Agreement dated as
of March 9, 2001 among each of you ("Borrowers"), the Lenders party thereto
("Lenders"), AmSouth Bank, as agent ("Agent") and AmSouth Capital Corp., as
administrative agent (as amended by the letter agreement dated September 30,
2001, the "Loan Agreement"). Unless otherwise defined herein, capitalized terms
used herein shall have the meanings ascribed to such terms in the Loan
Agreement.
Borrowers have requested that Xxxxxxx agree to amend the Loan
Agreement in certain respects. Xxxxxxx have agreed to the foregoing, on the
terms and conditions contained herein.
Therefore, the parties hereto agree as follows:
1. Amendments to Loan Agreement. The Loan Agreement is
hereby amended with retroactive effect to December 30, 2001 as follows:
(a) Clause (g) of the definition of "EBITDA" in Section
1.1 of the Loan Agreement is amended by inserting the following at the end of
such clause:
(plus, solely for the purposes of determining (i) compliance
with Section 9.24 for the fiscal quarter ending December 31,
2001, and (ii) determining the Interest Coverage Ratio solely
for the periods including the fiscal quarters ending December
31, 2001, March 31, 2002, June 30, 2002, and September 30,
2002, the $1,637,841 write down of goodwill associated with
the Clanton, Alabama and Tuscaloosa, Alabama retail locations
in the fiscal quarter ending December 31, 2001 and the
$750,100 write down of Xxxxxxxx's interest in the Texas
WoodPerfect joint venture in the fiscal quarter ending
December 31, 2001)
(b) Section 9.22 of the Loan Agreement is amended by
inserting the following at the end of such Section:
; provided, the aggregate amount of all Capital Expenditures
by Borrowers and their Subsidiaries on a consolidated basis
for the Fiscal Year ending December 31, 2001 may be in an
amount not exceeding $1,100,000.
2. Scope. This Amendment No. 1 to Loan and Security
Agreement (the "Amendment") shall have the effect of amending the Loan Agreement
and the other Loan Documents as appropriate to express the agreements contained
herein. In all other respects, the Loan Agreement and the other Loan Documents
shall remain in full force and effect in accordance with their respective terms.
-3-
3. Conditions to Effectiveness. This Amendment shall be
effective immediately upon the execution and delivery of this Amendment by Agent
and each Lender, acceptance hereof by Borrowers and the acknowledgment hereof by
each guarantor of the Loan Agreement.
Very truly yours,
AMSOUTH BANK, as Agent and a Lender
By
---------------------------------------
Title:
-----------------------------------
Acknowledged and agreed to this 21 day of February, 2002.
SOUTHERN ENERGY HOMES, INC.
AL/TEX HOMES, INC.
WENCO FINANCE, INC.
MH TRANSPORT, INC.
SOUTHERN ENERGY HOMES RETAIL
CORP.
Each By
-----------------------------
Title
-------------------------------
ACKNOWLEDGMENT
Each of the undersigned as of the date first written above (a)
consents and agrees to the foregoing Amendment No. 1, (b) reaffirms its
obligations under its Guaranty in favor of the Agent and the other Lenders and
under the other Loan Documents to which it is a party, and (c) agrees that each
reference in the Loan Documents to which it is a party to the Loan Agreement
shall be a reference to the Loan Agreement as amended by Amendment No. 1.
Dated: February 21, 2002
SOUTHERN ENERGY HOMES OF NORTH
CAROLINA, INC.
SOUTHERN ENERGY HOMES OF
PENNSYLVANIA, INC.
BR AGENCY, INC.
Each By
----------------------------------
Title
------------------------------------
-4-
AMENDMENT NO. 2
TO
LOAN AND SECURITY AGREEMENT
August 30, 2002
Southern Energy Homes, Inc.
AL/Tex Homes, Inc.
Wenco Finance, Inc.
MH Transport, Inc.
Southern Energy Homes Retail Corp.
000 Xxxxxxxxx Xxx
Xxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
Reference is made to the Loan and Security Agreement dated as
of March 9, 2001 among each of you ("Borrowers"), the Lenders party thereto
("Lenders"), AmSouth Bank, as agent ("Agent") and AmSouth Capital Corp., as
administrative agent (as amended, the "Loan Agreement"). Unless otherwise
defined herein, capitalized terms used herein shall have the meanings ascribed
to such terms in the Loan Agreement.
Borrowers have requested that Xxxxxxx agree to amend the Loan
Agreement in certain respects. Xxxxxxx have agreed to the foregoing, on the
terms and conditions contained herein.
Therefore, the parties hereto agree as follows:
4. Amendment to Loan Agreement. Section 9.22 of the Loan
Agreement is hereby amended and restated in its entirety to read as follows:
SECTION 9.22 CAPITAL EXPENDITURES.
No Borrower nor any Subsidiary shall make or incur
any Capital Expenditure if, after giving effect thereto, the
aggregate amount of all Capital Expenditures by Borrowers and
their Subsidiaries on a consolidated basis would exceed
$1,000,000 in any Fiscal Year; provided, such Capital
Expenditures may be in an amount up to $2,600,000 for the
Fiscal Year ending December 31, 2002.
5. Scope. This Amendment No. 2 to Loan and Security
Agreement (this "Amendment") shall have the effect of amending the Loan
Agreement and the other Loan Documents as appropriate to express the agreements
contained herein. In all other respects, the Loan Agreement and the other Loan
Documents shall remain in full force and effect in accordance with their
respective terms.
-5-
6. Conditions to Effectiveness. This Amendment shall be
effective immediately upon the execution and delivery of this Amendment by Agent
and each Lender, acceptance hereof by Borrowers and the acknowledgment hereof by
each guarantor of the Loan Agreement.
Very truly yours,
AMSOUTH BANK, as Agent and a Lender
By
---------------------------------------
Title:
-----------------------------------
Acknowledged and agreed to this 30th day of August, 2002.
SOUTHERN ENERGY HOMES, INC.
AL/TEX HOMES, INC.
WENCO FINANCE, INC.
MH TRANSPORT, INC.
SOUTHERN ENERGY HOMES RETAIL
CORP.
Each By
--------------------------
Title
----------------------------
ACKNOWLEDGMENT
Each of the undersigned as of the date first written above (a)
consents and agrees to the foregoing Amendment No. 2, (b) reaffirms its
obligations under its Guaranty in favor of the Agent and the other Lenders and
under the other Loan Documents to which it is a party, and (c) agrees that each
reference in the Loan Documents to which it is a party to the Loan Agreement
shall be a reference to the Loan Agreement as amended by Amendment No. 2.
Dated: August 30, 2002
SOUTHERN ENERGY HOMES OF NORTH
CAROLINA, INC.
SOUTHERN ENERGY HOMES OF
PENNSYLVANIA, INC.
BR AGENCY, INC.
Each By
----------------------------------
Title
------------------------------------
-6-
AMENDMENT NO. 3
TO
LOAN AND SECURITY AGREEMENT
November 7, 2002
Southern Energy Homes, Inc.
AL/Tex Homes, Inc.
Wenco Finance, Inc.
MH Transport, Inc.
Southern Energy Homes Retail Corp.
000 Xxxxxxxxx Xxx
Xxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
Reference is made to the Loan and Security Agreement dated as
of March 9, 2001 among each of you ("Borrowers"), the Lenders party thereto
("Lenders"), AmSouth Bank, as agent ("Agent") and AmSouth Capital Corp., as
administrative agent (as amended by the letter agreement dated September 30,
2001, Amendment No. 1 dated February 21, 2002 and Amendment No. 2 dated August
30, 2002, the "Loan Agreement"). Unless otherwise defined herein, capitalized
terms used herein shall have the meanings ascribed to such terms in the Loan
Agreement.
Borrowers have requested that Xxxxxxx agree to amend the Loan
Agreement in certain respects. Xxxxxxx have agreed to the foregoing, on the
terms and conditions contained herein.
Therefore, the parties hereto agree as follows:
7. Amendments to Loan Agreement. The Loan Agreement is
hereby amended with retroactive effect to September 27, 2002 as follows:
(a) Clause (g) of the definition of "EBITDA" in Section
1.1 of the Loan Agreement is amended by replacing, in its entirety, the
parenthetical that was inserted at the end of such clause (g) pursuant to
Amendment No. 1 to Loan and Security Agreement, with the following:
(plus, solely for the purposes of determining (A) (i)
compliance with Section 9.24 for the fiscal quarter ending
nearest December 31, 2001, and (ii) determining the Interest
Coverage Ratio solely for the periods including the fiscal
quarters ending nearest December 31, 2001, March 31, 2002,
June 30, 2002, and September 30, 2002, to the extent deducted
for purposes of calculating net income, the $1,637,841 write
down of goodwill associated with the closing of the Clanton,
Alabama and Tuscaloosa, Alabama retail locations in the
fiscal quarter ending nearest December 31, 2001 and the
$750,100 write down of Borrower's interest in the Texas
WoodPerfect joint venture in the fiscal quarter ending
nearest December 31, 2001 and (B) (i) compliance with Section
9.24 for the fiscal quarter ending nearest September 30,
2002, and (ii) determining Interest Coverage Ratio solely for
periods including the fiscal quarters ending nearest
September 30, 2002, December 31, 2002, March 31, 2003, and
June 30, 2003, to the extent deducted for purposes of
determining net income, the $4,590,896 charge for
discontinued operations associated with the closing of the
following retail locations in the fiscal quarter ending
nearest September 30, 2002: Albertville, Alabama; Clanton,
Alabama; Tuscaloosa, Alabama; Cullman, Alabama; North
Charleston, South Carolina; Summerville, South Carolina; and
Gallatin, Tennessee)
(b) Section 9.24 of the Loan Agreement is amended and
restated in its entirety, retroactive to September 27, 2002, as follows:
-7-
SECTION 9.24 MINIMUM QUARTERLY EBITDA.
Borrowers shall achieve EBITDA for each fiscal quarter set
forth below in an amount not less than the amount set forth below opposite such
fiscal quarter:
Fiscal Quarter Ending Nearest Minimum EBITDA
----------------------------- --------------
March 31, 2001 $(1,750,000)
June 30, 2001 $ 500,000
September 30, 2001 $ 1,000,000
December 31, 2001 $ 250,000
March 31, 2002 $ (750,000)
June 30, 2002 $ 1,000,000
September 30, 2002 $ 680,000
December 31, 2002 $ 500,000
March 31, 2003 $ (250,000)
June 30, 2003 $ 1,250,000
September 30, 2003 $ 1,250,000
December 31, 2003 $ 750,000
8. Scope. This Amendment No. 3 to Loan and Security
Agreement (the "Amendment") shall have the effect of amending the Loan Agreement
and the other Loan Documents as appropriate to express the agreements contained
herein. In all other respects, the Loan Agreement and the other Loan Documents
shall remain in full force and effect in accordance with their respective terms.
9. Conditions to Effectiveness. This Amendment shall be
effective immediately upon the execution and delivery of this Amendment by Agent
and each Lender, acceptance hereof by Borrowers and the acknowledgment hereof by
each guarantor of the Loan Agreement.
Very truly yours,
AMSOUTH BANK, as Agent and a Lender
By
---------------------------------------
Title:
-----------------------------------
-8-
Acknowledged and agreed to this
_____ day of November, 2002.
SOUTHERN ENERGY HOMES, INC.
AL/TEX HOMES, INC.
WENCO FINANCE, INC.
MH TRANSPORT, INC.
SOUTHERN ENERGY HOMES RETAIL
CORP.
Each By
----------------------------
Title
------------------------------
ACKNOWLEDGMENT
Each of the undersigned as of the date first written above (a)
consents and agrees to the foregoing Amendment No. 3, (b) reaffirms its
obligations under its Guaranty in favor of the Agent and the other Lenders and
under the other Loan Documents to which it is a party, and (c) agrees that each
reference in the Loan Documents to which it is a party to the Loan Agreement
shall be a reference to the Loan Agreement as amended by Amendment No. 1.
Dated: November __, 2002
SOUTHERN ENERGY HOMES OF NORTH
CAROLINA, INC.
SOUTHERN ENERGY HOMES OF
PENNSYLVANIA, INC.
BR AGENCY, INC.
Each By
----------------------------------
Title
------------------------------------
-9-
AMENDMENT NO. 4
TO
LOAN AND SECURITY AGREEMENT
March 25, 2003
Southern Energy Homes, Inc.
AL/Tex Homes, Inc.
Wenco Finance, Inc.
MH Transport, Inc.
Southern Energy Homes Retail Corp.
000 Xxxxxxxxx Xxx
Xxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
Reference is made to the Loan and Security Agreement dated as
of March 9, 2001 among each of you ("Borrowers"), the Lenders party thereto
("Lenders"), AmSouth Bank, as agent ("Agent") and AmSouth Capital Corp., as
administrative agent (as amended, the "Loan Agreement"). Unless otherwise
defined herein, capitalized terms used herein shall have the meanings ascribed
to such terms in the Loan Agreement.
Borrowers have requested that Xxxxxxx agree to amend the Loan
Agreement in certain respects. Xxxxxxx have agreed to the foregoing, on the
terms and conditions contained herein.
Therefore, the parties hereto agree as follows:
10. Amendments to Loan Agreement. The Loan Agreement is
hereby amended as follows:
(a) Clause (g) of the definition of "EBITDA" in Section
1.1 of the Loan Agreement is amended retroactive to January 3, 2003 by
replacing, in its entirety, the parenthetical that was inserted at the end of
such clause (g) pursuant to Amendment No. 3 to Loan and Security Agreement, with
the following:
(plus, solely for the purposes of determining (A) (i)
compliance with Section 9.24 for the fiscal quarter ending
nearest December 31, 2001, and (ii) determining the Interest
Coverage Ratio solely for the periods including the fiscal
quarters ending nearest December 31, 2001, March 31, 2002,
June 30, 2002, and September 30, 2002, to the extent deducted
for purposes of calculating net income, the $1,637,841 write
down of goodwill associated with the closing of the Clanton,
Alabama and Tuscaloosa, Alabama retail locations in the
fiscal quarter ending nearest December 31, 2001 and the
$750,100 write down of Borrower's interest in the Texas
WoodPerfect joint venture in the fiscal quarter ending
nearest December 31, 2001, (B) (i) compliance with Section
9.24 for the fiscal quarter ending nearest September 30,
2002, and (ii) determining Interest Coverage Ratio solely for
periods including the fiscal quarters ending nearest
September 30, 2002, December 31, 2002, March 31, 2003, and
June 30, 2003, to the extent deducted for purposes of
determining net income, the $4,590,896 charge for
discontinued operations associated with the closing of the
following retail locations in the fiscal quarter ending
nearest September 30, 2002: Albertville, Alabama; Xxxxxxx,
Alabama; Tuscaloosa, Alabama; Cullman, Alabama; North
Charleston, South Carolina; Summerville, South Carolina; and
Gallatin, Tennessee, and (C) (i) compliance with Section 9.24
for the fiscal quarter ending nearest December 31, 2002, and
(ii) determining Interest Coverage Ratio solely for periods
including the fiscal quarters ending nearest December 31,
2002, March 31, 2003, June 30, 2003 and September 30, 2003,
to the extent deducted for purposes of determining net
income, the $104,427 charge for the write down of the value
of retail inventory in the fiscal quarter ending nearest
December 31, 2002 and the
-10-
$5,664,892 charge for the loss realized upon the sale of
Wenco's portfolio of retail installment contracts in the
fiscal quarter ending nearest December 31, 2002)
(b) The definition of "Maximum Revolver Amount" in
Section 1.1 of the Loan Agreement is amended by deleting the reference to
"$40,000,000" and inserting "$10,000,000" in its place.
(c) The definition of "Revolving Commitment" in Section
1.1 of the Loan Agreement is amended and restated in its entirety to read as
follows:
"Revolving Commitment" means, with respect to each
Lender, the amount set forth below such Xxxxxx's name on the
signature page to Amendment No. 4 to Loan and Security
Agreement dated March 25, 2003, or on the signature page of
the Assignment and Acceptance pursuant to which such Xxxxxx
became a Lender hereunder in accordance with the provisions
of Section 13.3, as such commitment may be adjusted from time
to time in accordance with the provisions of Section 13.3.
(d) Section 2.1 of the Loan Agreement is amended by
deleting the reference to "$40,000,000" and inserting "$10,000,000 in its place.
(e) Section 9.24 of the Loan Agreement is amended
retroactive to January 3, 2003 by deleting the reference to "$500,000" opposite
"December 31, 2002" and inserting "($1,400,000)" in its place.
11. Release of Security Interest in Motor Vehicles and
Aircraft. Agent hereby releases its security interest in the aircraft and motor
vehicles of Borrowers in which it has a security interest on the date of this
Amendment No. 4 to Loan and Security Agreement (this "Amendment") and Agent
agrees to execute, at the expense of Borrowers, such documents as Borrowers may
reasonably request to further evidence such release.
12. Scope. This Amendment shall have the effect of
amending the Loan Agreement and the other Loan Documents as appropriate to
express the agreements contained herein. In all other respects, the Loan
Agreement and the other Loan Documents shall remain in full force and effect in
accordance with their respective terms.
13. Conditions to Effectiveness. This Amendment shall be
effective immediately upon the execution and delivery of this Amendment by Agent
and each Lender, acceptance hereof by Borrowers and the acknowledgment hereof by
each guarantor of the Loan Agreement.
Very truly yours,
AMSOUTH BANK, as Agent and a Lender
By
---------------------------------------
Title:
-----------------------------------
Revolving Commitment: $10,000,000
-11-
Acknowledged and agreed to this
25th day of March, 2003.
SOUTHERN ENERGY HOMES, INC.
AL/TEX HOMES, INC.
WENCO FINANCE, INC.
MH TRANSPORT, INC.
SOUTHERN ENERGY HOMES RETAIL
CORP.
Each By
------------------------------
Title
--------------------------------
ACKNOWLEDGMENT
Each of the undersigned as of the date first written above (a)
consents and agrees to the foregoing Amendment No. 4, (b) reaffirms its
obligations under its Guaranty in favor of the Agent and the other Lenders and
under the other Loan Documents to which it is a party, and (c) agrees that each
reference in the Loan Documents to which it is a party to the Loan Agreement
shall be a reference to the Loan Agreement as amended by Amendment No. 4.
Dated: March 25, 2003
SOUTHERN ENERGY HOMES OF NORTH
CAROLINA, INC.
SOUTHERN ENERGY HOMES OF
PENNSYLVANIA, INC.
BR AGENCY, INC.
Each By
----------------------------------
Title
------------------------------------
-12-
