EXHIBIT 10.36
AMENDMENT NO. 1 TO LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 1 TO LOAN AND SECURITY AGREEMENT (this
"Amendment"), dated as of February 17, 2004, is entered into between Champion
Home Builders Co., a Michigan corporation ("Borrower"), Congress Financial
Corporation (Central), an Illinois corporation, in its capacity as agent for
Lenders (in such capacity, "Agent"), and the Lenders listed on the signature
pages hereto.
W I T N E S S E T H:
WHEREAS, the parties hereto are parties to that certain Loan
and Security Agreement dated as of January 17, 2003 (as amended, modified or
supplemented from time to time, "Loan Agreement") and certain other agreements
and documents executed or delivered in connection therewith. Capitalized terms
used herein without definition shall have the meanings ascribed to such terms in
the Loan Agreement; and
WHEREAS, the parties hereto desire to amend definition of
"Maximum Credit" in the Loan Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual
covenants herein contained and other good and valuable consideration (the
receipt, adequacy and sufficiency of which are hereby acknowledged), the parties
hereto, intending legally to be bound, hereby agree as follows:
1. Amendment to Loan Agreement. Clause (b) of the definition
of "Maximum Credit" in Section 1 of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
(b) the amount at such time equal to the sum of (1) 60% of the
lesser of the wholesale invoice and expected sale price of the
complete manufactured homes inventory of Parent and its
"Restricted Subsidiaries" (as defined in the Borrower
Indenture); (2) 60% of the lesser of the market value and book
value of the other inventory of Parent and its "Restricted
Subsidiaries" (as defined in the Borrower Indenture); (3) 75%
of the book value of the accounts receivables of Parent and
its "Restricted Subsidiaries" (as defined in the Borrower
Indenture) in each case, determined in accordance with GAAP;
and (4) Indebtedness under this Agreement that does not
constitute "Indebtedness" (as defined in the Borrower
Indenture); or
2. Effective Date of this Amendment. This Amendment shall
become effective upon the fulfillment of each of the following conditions
(including the conditions to the satisfaction of Agent):
(a) All of Borrower's representations and warranties contained
in the Loan Agreement and any other agreement executed in connection
therewith (other than the representations and warranties that are
expressly made as of a certain date, which shall be true and correct in
all material respects on and as of such date) shall be true and correct
in all material respects;
(b) Borrower shall deliver to Lender a certificate of the
Secretary of Borrower, dated as of the date hereof and satisfactory in
form and substance to Agent, as Agent, in its sole discretion, shall
determine, certifying (1) the names and true signatures of the officers
of Borrower authorized to sign this Amendment; (2) that attached
thereto is a true and complete copy of the By-Laws of Borrower as in
effect on the date of such certification; and (3) that attached thereto
is a true and complete copy of the resolutions of Borrower's Board of
Directors approving and authorizing the execution and delivery of this
Amendment;
(c) Agent shall have received from Borrower and the Required
Lenders fully executed counterparts to this Amendment signed by duly
authorized officers of Borrower and the Required Lenders, respectively,
and Agent shall have delivered to Borrower a fully executed counterpart
to this Amendment signed by a duly authorized officer of Agent; and
(d) Agent shall have received from each of the Parent and each
Restricted Subsidiary fully executed counterparts to the Acknowledgment
and Reaffirmation in the form of Exhibit A attached hereto reaffirming
its obligations under each of the Collateral Agreements to which it is
a party.
3. Absence of Waiver or Setoff.
3.1. No Waiver. Agent, Required Lenders and Borrower agree
that the amendment set forth in Section 1 hereof shall be limited precisely as
written and except as expressly set forth in Section 1 of this Amendment, shall
not be deemed to be a consent to any waiver or modification of any other term or
condition of the Loan Agreement or any Financing Agreements.
3.2. Acknowledgment of Liabilities. Borrower hereby
acknowledges and agrees that there is no defense, setoff or counterclaim of any
kind, nature or description to the Obligations or the payment thereof when due.
4. Representations. Borrower hereby represents and warrants to
Agent and Lenders that:
(a) Borrower is a corporation duly organized, validly
existing, and in good standing under the laws of the state of its
incorporation;
(b) the execution, delivery and performance of this Amendment
by Borrower are within its corporate powers and have been duly
authorized by all necessary corporate action; and
(c) this Amendment is a legal, valid, and binding obligation
of Borrower, enforceable against Borrower in accordance with its terms.
5. References in Other Documents. References to the Loan
Agreement in any Financing Agreement shall be deemed to be a reference to the
Loan Agreement as amended hereby, whether or not reference is made to this
Amendment.
6. Miscellaneous.
(a) Section headings used in this Amendment are for
convenience of reference only and shall not affect the construction of
this Amendment.
(b) This Amendment may be delivered by facsimile and executed
in one or more counterparts and by different parties in separate
counterparts, each of which when so executed and delivered shall be
deemed to be an original, but all of which counterparts taken together
shall constitute but one and the same agreement.
(c) This Amendment shall be a contract made under and governed
by the laws of the State of Illinois, without giving effect to
principles of conflicts of laws.
(d) All obligations of Borrower and rights of Agent and
Lenders that are expressed herein, shall be in addition to and not in
limitation of those provided by applicable law.
(e) Whenever possible, each provision of this Amendment shall
be interpreted in such manner as to be effective and valid under
applicable law; but if any provision of this Amendment shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining
provisions of this Amendment.
(f) This Amendment shall be binding upon Borrower, Agent and
Lenders and their respective successors and assigns, and shall inure to
the benefit of Borrower, Agent and Lenders and the successors and
assigns of Borrower, Agent and Lenders.
[NEXT PAGE IS SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
CHAMPION HOME BUILDERS CO., as Borrower
By:
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Name:
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Title:
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CONGRESS FINANCIAL CORPORATION
(CENTRAL), as Agent and Lender
By:
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Name:
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Title:
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WELLSFARGO FOOTHILL, INC., as a Lender
By:
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Name:
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Title:
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CERBERUS CAPITAL MANAGEMENT LP, as a Lender
By:
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Name:
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Title:
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EXHIBIT A
Acknowledgment and Reaffirmation
Each of the undersigned hereby acknowledges receipt of the
attached Amendment and consents to the execution and performance thereof by
Champion Home Builders Co. Each of the undersigned hereby also reaffirms that
its obligations under each of the Collateral Agreements to which it is a party
remain in full force and effect and acknowledges and agrees that there is no
defense, setoff or counterclaim of any kind, nature or description to the
obligations arising under such Collateral Agreements.
EACH PERSON LISTED ON SCHEDULE I
ATTACHED HERETO(1)
By:
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Name:
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Title:
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Schedule I
A-1 Champion GP, Inc.
A-1 Homes Group, L.P.
Alpine Homes, Inc.
AT Liquidating Corp. (f/k/a American Transport, Inc.)
Art Richter Insurance, Inc.
Auburn Champ, Inc.
Builders Credit Corporation
CAC Funding Corporation
Care Free Homes, Inc.
Champion Enterprises, Inc.
Champion Enterprises, Management Co.
Champion Financial Corporation
Champion GP, Inc.
Champion Home Builders Co.
Champion Home Communities, Inc.
Champion Motor Coach, Inc.
Champion Retail, Inc.
Chandeleur Homes, Inc.
CHI, Inc. (f/k/a Carnival Homes, Inc.)
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(1) Schedule I to list Parent and each Restricted Subsidiary of Borrower.
CRH Liquidating Corp. (f/k/a Crest Ridge Homes, Inc.)
Crestpointe Financial Services, Inc.
Dutch Housing, Inc.
FHA Liquidating Corp. (f/k/a Factory Homes Outlet, Inc.)
Fleming County Industries, Inc.
Gateway Acceptance Corp.
Gem Homes, Inc.
Genesis Home Centers, Limited Partnership
GM Liquidating Corp. (f/k/a Grand Manor, Inc.)
HH Liquidating L.P. (f/k/a Heartland Homes, L.P.)
HAF Liquidating Corp. (f/k/a Homes America Finance, Inc.)
HAA Liquidating Corp. (f/k/a Homes America of Arizona, Inc.)
HAC Liquidating Corp. (f/k/a Homes America of California, Inc.)
HAO Liquidating Corp. (f/k/a Homes America of Oklahoma, Inc.)
HAU Liquidating Corp. (f/k/a Homes America of Utah, Inc.)
HAW Liquidating Corp. (f/k/a Homes America of Wyoming, Inc.)
Homes of Kentuckiana, L.L.C.
Homes of Legend, Inc.
Homes of Merit, Inc.
I.D.A., Incorporated
Iseman Corp.
Lamplighter Homes, Inc.
Lamplighter Homes (Oregon), Inc.
Moduline Industries (Canada), Ltd.
Moduline International, Inc.
Prairie Ridge, Inc.
Redman Business Trust
Redman Homes Management Company, Inc.
Redman Homes, Inc.
Redman Industries, Inc.
Redman Investment, Inc.
Redman Management Services Business Trust
Redman Retail, Inc.
Regency Supply Company, Inc.
San Jose Advantage Homes, Inc.
Service Contract Corporation
Southern Showcase Finance, Inc.
Southern Showcase Housing, Inc.
Star Fleet, Inc.
The Okahumpka Corporation
Trading Post Mobile Homes, Inc.
USAMH Liquidating Corp. (f/k/a U.S.A. Mobile Homes, Incorporated)
Victory Investment Co.
Western Homes Corporation
WM Liquidating Corp. (f/k/a Whitworth Management, Inc.)