Attached files
| file | filename |
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| 8-K - PALM HARBOR HOMES INC /FL/ | v170176_8k.htm |
| EX-99.2 - PALM HARBOR HOMES INC /FL/ | v170176_ex99-2.htm |
SEVENTH
AMENDMENT TO
AMENDED
AND RESTATED AGREEMENT FOR WHOLESALE FINANCING
(Finished
Goods - Shared Credit Facility)
This Seventh Amendment to Amended and
Restated Agreement for Wholesale Financing (“Amendment”) is made as of this 29th
day of December, 2009 by and among TEXTRON FINANCIAL CORPORATION, a Delaware
corporation (“Secured Party”), COUNTRYPLACE ACCEPTANCE CORPORATION, a Nevada
corporation (“CountryPlace”), PALM HARBOR HOMES, INC., a Florida corporation
(“PHHI”), PALM HARBOR MANUFACTURING, L.P., a Texas limited partnership (“PHM”
and together with PHHI, each a “Borrower” and together the
“Borrowers”).
WITNESSETH
THAT:
WHEREAS,
the Secured Party and Borrowers are parties to that certain Amended and Restated
Agreement for Wholesale Financing (Finished Goods - Shared Credit Facility),
dated May 25, 2004, as amended by that certain First Amendment to Amended and
Restated Agreement for Wholesale Financing (Finished Goods - Shared Credit
Facility), dated June 30, 2005, as further amended by that certain Second
Amendment to Amended and Restated Agreement for Wholesale Financing (Finished
Goods - Shared Credit Facility), dated January 19, 2006, as further amended by
that certain Third Amendment to Amended and Restated Agreement for Wholesale
Financing (Finished Goods - Shared Credit Facility), dated May 29, 2007, as
further amended by that certain Fourth Amendment to Amended and Restated
Agreement for Wholesale Financing (Finished Goods - Shared Credit Facility),
dated May 30, 2008, and as further amended by that certain Fifth Amendment to
Amended and Restated Agreement for Wholesale Financing (Finished Goods - Shared
Credit Facility), dated April 28, 2009, as further amended by that certain Sixth
Amendment to Amended and Restated Agreement for Wholesale Financing (Finished
Goods - Shared Credit Facility), dated June 4, 2009 (as so amended, the
“Agreement”);
WHEREAS, the Borrowers have requested
that the Secured Party amend the Agreement in certain respects and Secured Party
has agreed to so amend the Agreement, subject to the terms and conditions
hereof.
NOW THEREFORE, in consideration of the
premises and the mutual obligations hereinafter contained, and for other good
and valuable consideration, the receipt whereof is hereby acknowledged, the
parties hereto agree as follows:
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1.
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All
capitalized terms used and not otherwise defined herein shall have the
same meanings provided therefore in the
Agreement.
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2.
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The
Borrowers acknowledge and agree that the Events of Default set forth on
Exhibit A hereto have occurred and are continuing as of the date hereof
(the “Specified Events of Default”). In consideration of the
premises and the mutual obligations hereinafter contained, the Secured
Party waives such Specified Events of Default; provided, that such waiver
is limited to such Specified Events of Default and shall not be, or be
deemed to be, a waiver of any other Default or Event of Default, whether
presently or hereafter existing, or a consent to any matter prohibited by
the terms of the Agreement.
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3.
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The
first sentence of the last paragraph of Section 7 of the Agreement is
hereby amended by replacing such paragraph in its entirety with the
following:
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“Anything
contained herein to the contrary notwithstanding and except as set forth below,
no Advance shall be funded hereunder by the Administrative Agent or any Lender
when the Collateral Coverage is greater than point six to one (.6:1); provided, however,
that at any time on or before January 31, 2010, the Administrative Agent, acting
at the instruction of the Majority Lenders, may continue to make Advances if the
Collateral Coverage exceeds the ratio set forth above (any such Advance shall be
referred to herein as an “Overadvance”) so long as the amount of Advances
outstanding hereunder does not, and would not after giving effect to such
Overadvance, exceed the Total Credit Line.”
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4.
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Section
9 of the Agreement is hereby amended by adding the following new paragraph
at the end such Section 9:
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“If at
any time the aggregate principal amount of the outstanding Advances under this
Agreement exceeds the Total Credit Line, the Borrowers agree to immediately pay
to the Administrative Agent on behalf of the Lenders the amount of such excess
so that the aggregate principal amount of the outstanding Advances under this
Agreement no longer exceeds the Total Credit Line after giving effect to such
payment.”
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5.
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Section
10 of the Agreement is hereby amended by adding the following new
paragraph at the end of such Section
10:
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“Notwithstanding
the above, interest shall accrue on any Overadvance in an amount equal to the
rate that would otherwise apply to such Advance plus 2.00%.”
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6.
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Section
37.1 of the Agreement is hereby amended by adding the following new clause
(e) at the end of such Section
37.1:
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(e)
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Minimum
Finished Goods Inventory. Borrowers covenant that they
will maintain, as of December 31, 2009, Finished Goods Inventory of not
less than $68,000,000.
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7.
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The
definition of “Total Credit Line” under the Agreement is hereby amended by
replacing such definition in its entirety with the
following:
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Total Credit Line - means, (a)
$45,000,000 as of the date hereof through January 31, 2010 and (b) $40,000,000
thereafter until the Maturity Date.
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8.
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The
Definition Appendix is hereby amended by inserting as new definitions,
“Collateral Coverage,”
and “Finished
Goods Inventory, in the correct alphabetical order, and defined as
follows:
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Finished Goods Inventory -
means the Borrowers’ inventory of completed manufactured or modular homes (i.e.
the amount of “Finished Goods” as listed on Borrowers’ financial statements from
time to time).
Collateral Coverage - means,
as of any relevant date of determination, the ratio of (i) the aggregate
outstanding principal amount of Advances, to (ii) the aggregate invoice amount
of, without duplication, the Finished Goods Inventory.
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9.
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Notwithstanding
any other provision of this Amendment and without affecting in any manner
the rights of the Secured Party hereunder, it is understood and agreed
that this Amendment shall not become effective, and the Borrowers shall
have no rights under this Amendment, until Secured Party shall have
received as additional consideration for its agreements herein (a) duly
executed signature pages to this Amendment from the Borrowers and the
Secured Party, (b) a duly executed Pledge Agreement, in form and substance
attached hereto as Exhibit B, pursuant to which PHHI pledges its ownership
interests in Standard Casualty Company as additional collateral under the
Agreement, (c) delivery of the original stock certificates or other
certificated ownership interests of Standard Casualty Company together
with irrevocable proxies and stock powers and/or assignments, as
applicable, duly executed in blank, and (d) payment by Borrowers to
Secured Party of a waiver fee in the amount $4299.56. Borrowers
hereby acknowledge and agree that they are receiving significant
benefits as a result of the modifications contained herein, and the
pledge by PHHI of 100% of the equity of Standard will directly and
indirectly benefit the Borrowers and
Standard.
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10.
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Each
Borrower hereby represents and warrants
that:
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(a)
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the
execution, delivery and performance by such Borrower of this Amendment (i)
are within such Borrower’s power; (ii) have been duly authorized by all
necessary corporate, limited liability company or limited partnership
action; (iii) are not in contravention of any provision of such Borrower’s
certificate of incorporation or bylaws or other organizational documents;
(iv) do not violate any law or regulation, or any order or decree of any
governmental authority; (v) do not conflict with or result in the breach
or termination of, constitute a default under or accelerate any
performance required by, any indenture, mortgage, deed of trust, lease,
agreement or other instrument to which such Borrower or any of its
subsidiaries is a party or by which such Borrower or any such subsidiary
or any of their respective property is bound; (vi) do not result in the
creation or imposition of any lien or other security interest upon any of
the property of such Borrower or any of its subsidiaries other than those
in favor of Secured Party, pursuant to the Agreement; and (vii) do not
require the consent or approval of any governmental authority or any other
person or entity;
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(b)
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this
Amendment has been duly executed and delivered for the benefit of or on
behalf of each Borrower and constitutes a legal, valid and binding
obligation of each Borrower, enforceable against such Borrower in
accordance with its terms except as the enforceability hereof may be
limited by bankruptcy, insolvency, reorganization, moratorium and other
laws affecting creditors’ rights and remedies in general;
and
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(c)
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After
giving effect to this Amendment, the representations and warranties
contained in the Agreement are true and correct in all material respects
(provided that representations and warranties that speak as of
a specific date shall continue to speak as to that date) and no Default or
Event of Default has occurred and is continuing as of the date
hereof.
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11.
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From
the date hereof through January 31, 2010, without the consent of Secured
Party, CountryPlace hereby covenants and agrees that it shall not, and
each Borrower hereby covenants and agrees that it shall not permit
CountryPlace to, suffer or permit any of its subsidiaries to, directly or
indirectly, make, create, incur, assume or suffer to exist any pledge,
hypothecation, assignment, charge or deposit arrangement, encumbrance,
lien (statutory or otherwise) or preference, mortgage, deed of trust,
priority or other security interest or preferential treatment of any kind
or nature whatsoever (including those created by, arising under or
evidenced by any conditional sale or other title retention agreement, or
the filing of any financing statement naming the owner of the asset to
which such lien relates as debtor, under the UCC or any comparable law) or
permit any contingent or other agreement to provide any of the foregoing
on any of the assets or property of CountryPlace, except for (a) liens
existing as of the date hereof and set forth on Schedule 10 hereto,
including replacement liens on the property subject to such liens, (b)
liens for taxes, fees, assessments or other governmental charges or levies
which are not delinquent or remain payable without penalty or
which are being contested in good faith by appropriate proceedings for
which adequate reserves have been set aside on CountryPlace’s books (so
long as no foreclosure, distraint, sale or similar proceedings have been
commenced with respect thereto); (c) carriers' warehousemen's, mechanics',
landlords' materialmen's, repairmen's or similar liens incurred in the
ordinary course of business for sums not yet due or are being contested in
good faith by appropriate proceedings for which adequate reserves have
been set aside on CountryPlace’s books; (d) liens consisting of pledges or
deposits required in connection with workers' compensation, unemployment
insurance and other social security legislation or to secure the
performance of tenders, statutory obligations, surety, stay, customs and
appeals bonds, bids, leases, governmental contracts, trade contracts,
performance and return of money bonds and similar obligations
or to secure liability to insurance carriers which are not
overdue by more than 45 days; (e) easements, encroachments, covenants,
equitable servitudes, rights of way, zoning and other restrictions, minor
defects, or other similar encumbrances or municipal and zoning ordinances,
and liens on real property for general real estate taxes and assessments
which do not interfere with the conduct of business of CountryPlace and
which are not yet delinquent or are being contested in good faith by
appropriate proceedings for which adequate reserves have been set aside on
CountryPlace’s books; (f) liens arising from precautionary uniform
commercial code financing statements filed under any operating lease;
liens consisting of the interest of the lessee under any lease or sublease
granted to others by CountryPlace or any of its subsidiaries; (g)
customary rights of setoff, revocation, refund or chargeback under deposit
agreements or under the UCC of banks or other financial institutions where
CountryPlace or any of its subsidiaries maintain deposits; (h) liens
arising from the granting of a non-exclusive license to any person; (i)
liens attaching solely to earnest money deposits made by CountryPlace or
any of its subsidiaries in connection with any letter of intent or
purchase agreement; (j) liens deemed to exist in connection with
repurchase agreements and other similar investments; and (k) liens arising
under operation of law on insurance policies and proceeds thereof to
secure premiums thereunder; provided,
however, that notwithstanding the above, if an Event of Default occurs
prior to January 31, 2010, this covenant shall remain in effect until such
Event of Default has been cured or
waived.
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12.
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From
the date hereof through January 31, 2010, without the consent of Secured
Party, each Borrower hereby covenants and agrees that it shall not, nor
permit any of its subsidiaries to, pledge, encumber or hypothecate any
ownership in CountryPlace or its subsidiaries to any other person; provided,
however, that notwithstanding the above, if an Event of Default occurs
prior to January 31, 2010, this covenant shall remain in effect until such
Event of Default has been cured or
waived.
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13.
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Promptly
upon request by the Secured Party, the Borrowers shall take such
additional actions as the Secured Party may reasonably require from time
to time (other than with respect to CountryPlace) in order (i) to carry
out more effectively the purposes of the Agreement, (ii) to subject to the
liens created by the Agreement on any of the Borrowers’ properties, rights
or interests covered by the Agreement, (iii) to perfect and maintain the
validity, effectiveness and priority of the Agreement and the liens
intended to be created thereby, and (iv) to better assure, convey, grant,
assign, transfer, preserve, protect and confirm to the Secured Party the
rights granted or now or hereafter intended to be granted to the Secured
Party under the Agreement or under any other document executed in
connection therewith.
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14.
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As
amended hereby, all terms of the Agreement shall be and remain in full
force and effect and shall constitute the legal, valid, binding and
enforceable obligations of the Borrowers party thereto except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws affecting creditor's rights and remedies in
general.
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15.
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Each
Borrower consents to the execution and delivery of this Amendment by the
other Borrower and the consummation of the transactions described herein,
and ratifies and confirms the terms of the Agreement with respect to the
indebtedness now or hereafter outstanding under the Agreement as amended
hereby.
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16.
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Each
Borrower hereby acknowledges that, as of the date hereof, the security
interests and liens granted to Secured Party under the Agreement are in
full force and effect, are properly perfected (other than with respect to
fixtures of the Borrowers and the possession of the stock certificates of
CountryPlace and all direct subsidiaries of PHHI) and are enforceable in
accordance with the terms of the
Agreement.
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17.
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The
execution, delivery and effectiveness of this Amendment shall not, except
as expressly provided herein, operate as a waiver of any right, power or
remedy of the Secured Party under the Agreement, nor constitute a waiver
of any provision of the Agreement.
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18.
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This
Amendment shall be governed by, and construed in accordance with, the
internal laws of the State of Georgia and all applicable federal laws of
the United States of America.
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19.
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This
Amendment is not intended by the parties to be, and shall not be construed
to be, a novation of the Agreement or an accord and satisfaction in regard
thereto.
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20.
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The
Borrowers agree to pay on demand all costs and expenses of Secured Party
in connection with the preparation, execution and delivery of this
Amendment, including, without limitation, the reasonable fees and
out-of-pocket expenses of outside counsel for Secured Party with respect
thereto up to a maximum of $30,000 plus reasonable fees and expenses
related to any appraisal ordered by the Secured
Party.
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21.
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This
Amendment may be executed by one or more of the parties hereto in any
number of separate counterparts, each of which shall be deemed an original
and all of which, taken together, shall be deemed to constitute one and
the same instrument. Delivery of an executed counterpart of
this Amendment by facsimile transmission or electronic transmission by
“PDF” shall be as effective as delivery of a manually executed counterpart
hereof.
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22.
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This
Amendment shall be binding upon and inure to the benefit of the parties
hereto, their respective successors, successors-in-titles, and
assigns.
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23.
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This
Amendment sets forth the entire understanding of the parties with respect
to the matters set forth herein, and shall supersede any prior
negotiations or agreements, whether written or oral, with respect
thereto.
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24.
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In
consideration for the agreements of Secured Party hereunder, each of the
Borrowers, on behalf of itself and its successors, assigns and affiliates,
and any other person or entity claiming through it, hereby releases and
discharges Secured Party and its respective predecessors, successors,
assigns, directors, officers, members, agents, employees, representatives,
affiliates, and attorneys (collectively, the “Releasees”) of and from, and
hereby waive and covenant not to bring any action against the Releasees or
any of them regarding, any and all claims, rights, actions, demands,
injuries, damages, compensation, or causes of action of every kind and
nature, whether foreseen or unforeseen, contingent or actual, liquidated
or unliquidated, known or unknown, whether in tort or contract, which such
Borrower has against the Releasees or any of them, or which might or could
arise under state, federal, or local law, including common law, from the
beginning of the world up to the date hereof (the “Claims”). As a
consequence of this paragraph and for the purpose of implementing a
general, full and complete release and discharge of the Releasees and each
of them, each Borrower expressly acknowledges that its release is intended
to include, without limitation, Claims of which it is unaware or does not
expect to exist in its favor, and that this release contemplates the
release and discharge of any and all of the Claims. Each of the
Borrowers acknowledges and agrees that the possibility that unknown Claims
may exist, being known and understood by them, has been explicitly
considered and taken into account in its execution hereof, for the purpose
of implementing a full and complete release and discharge of the Releasees
and each of them.
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IN WITNESS WHEREOF, the parties hereto
have caused this Amendment to be executed by their duly authorized officer or
representative as of the effective date first above written.
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BORROWERS:
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SECURED
PARTY:
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PALM
HARBOR HOMES, INC.
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TEXTRON
FINANCIAL CORPORATION
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By:
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/s/ Larry Keener
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By:
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/s/ Henry Cruz
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Name:
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Larry Keener |
Name:
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Henry Cruz | ||
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Title:
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Chairman/CEO |
Title:
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Sr. Vice President - Special Assets | ||
PALM
HARBOR MANUFACTURING, L.P.
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By:
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Palm
Harbor GenPar, LLC
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Its:
General Partner
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By:
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/s/ Kelly Tacke
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Name:
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Kelly Tacke | |
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Title:
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Vice President | |
ACKNOWLEDGED
AND AGREED WITH RESPECT TO SECTION 11:
COUNTRYPLACE
ACCEPTANCE
CORPORATION
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By:
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/s/ Kelly
Tacke
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Name:
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Kelly Tacke |
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Title:
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Vice President |
6
SCHEDULE
10
CountryPlace
Existing Liens
Exhibit
A
Specified
Events of Default
1. Borrower’s
failure to pay the interest payment for the month of December, due on December
1, 2009.
2. Borrower’s
failure to deliver each certificate of title or manufacturer statement of origin
issued for Palm Harbor Brand Homes as required pursuant to Section 17(c) of the
Agreement.
3. Borrower’s
failure to make a payment with respect to curtailment amounts owed in the amount
of $1,646,686.
Exhibit
B
Pledge
Agreement