Exhibit 10.1
FIRST AMENDMENT TO FOURTH AMENDED
AND RESTATED SENIOR SECURED, SUPER-PRIORITY DEBTOR-IN-POSSESSION
CREDIT AGREEMENT AND WAIVER AND CONSENT OF LENDERS AND
AGENT
This FIRST AMENDMENT TO FOURTH AMENDED AND
RESTATED SENIOR SECURED, SUPER-PRIORITY DEBTOR-IN-POSSESSION CREDIT
AGREEMENT AND WAIVER AND CONSENT OF LENDERS AND AGENT (this
“ Waiver and Amendment ”) is dated as of
April 23, 2009, and entered into by and among FLEETWOOD
ENTERPRISES, INC. as debtor and debtor-in-possession (“
Fleetwood ”), FLEETWOOD HOLDINGS INC. (“
Holdings ”) as debtor and debtor-in-possession and
those Subsidiaries of Fleetwood and Holdings listed on the
signature pages hereof as debtors and debtors-in-possession
(collectively, “ Borrowers ”), the banks and
other financial institutions signatory hereto that are parties as
Lenders to the Credit Agreement referred to below (the “
Lenders ”), and BANK OF AMERICA, N.A. , as
administrative agent and collateral agent (in such capacity, the
“ Agent ”) for the Lenders.
RECITALS
WHEREAS
, Fleetwood, the Borrowers, the Lenders, and the
Agent have entered into that certain Fourth Amended and Restated
Senior Secured, Super-Priority Debtor-in-Possession Credit
Agreement dated as of April 1, 2009 (as amended, amended and
restated, extended, supplemented or otherwise modified from time to
time, the “ Credit Agreement ”).
Capitalized terms used herein but not otherwise defined shall have
their respective meanings as defined in the Credit
Agreement;
WHEREAS , on April 1, 2009, the United States
Bankruptcy Court for the Central District of California, Riverside
Division entered the Interim Order approving, among other things,
the entry by Fleetwood and the Borrowers of the Credit Agreement
and the extension of credit thereunder on an interim
basis;
WHEREAS , the term “Approved Budget” is
defined in the Credit Agreement as a weekly delivered rolling
13-week post-petition budget that is acceptable to the Agent and
the Required Lenders, the initial version of which was approved by
the Bankruptcy Court and attached as an exhibit to the Interim
Order; provided that any Approved Budget may be subsequently
amended, supplemented or replaced by the Borrowers with the
approval of the Agent and the Required Lenders and without further
approval of the Bankruptcy Court (with any such supplement that
solely adds an additional Measurement Period deemed acceptable if
no objection thereto is made by the Agent or the Required Lenders
within two (2) Business Days of receipt thereof);
WHEREAS , (a) Section 5.2(s) of
the Credit Agreement provides that by the end of the day four
(4) Business Days following the last day of each Measurement
Period, the Borrowers must deliver to the Agent a report (a “
Variance Report ”) stating whether the Borrowers are
in compliance with the conditions set forth in
Section 7.22 of the Credit Agreement together with
supporting detail reasonably acceptable to the Agent, which
supporting
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detail shall include, without limitation,
statements of weekly and cumulative variances for the applicable
six (6) Measurement Period testing period in any Line Item for
expenditures; (b) the Variance Reports delivered to the Agent
on April 9, 2009 and April 16, 2009 indicated that the
Borrowers were not in compliance with the covenants set forth in
Section 7.22(a) of the Credit Agreement with
respect to the Measurement Periods ended April 5, 2009 and
April 12, 2009, respectively; and (c) the Borrowers have
advised the Lenders that the failure to comply with
Section 7.22(a) of the Credit Agreement for the
Measurement Periods ended April 5, 2009 and April 12,
2009, respectively, was caused by a delay in receipt of a
receivable, the payment of which is initiated by the U.S. Army
Corps of Engineers and scheduled for receipt in April 2009
relating to Fleetwood’s military modular business in an
amount not less than $6,400,000, originally budgeted to be received
in the week ending April 5, 2009 (the “
April Military Housing Payment ”);
WHEREAS , the Borrowers have advised the Lenders that
the revised proposed Approved Budget, attached hereto as
Exhibit A , reflects the new projected date for receipt
of the April Military Housing Payment (on or prior to
April 17, 2009 (such date the “ Military Payment
Revised Date ”));
WHEREAS , the Borrowers have requested that the Agent
and the Required Lenders approve the proposed Approved Budget
attached hereto as Exhibit A , thereby causing such
proposed Approved Budget to become the Approved Budget;
WHEREAS
, the Borrowers have requested of the Agent and
the Lenders certain other waivers, consents and approvals under the
Credit Agreement;
WHEREAS , the Borrowers have requested the amendments to
the Credit Agreement as further set forth herein; and
WHEREAS , the Required Lenders and the Agent are willing
to give the waivers, consents and approvals requested by the Loan
Parties and the Lenders and the Agent are willing to agree to the
amendments to the Credit Agreement requested by the Borrowers, in
each case, on the terms and conditions set forth in this Waiver and
Amendment.
AGREEMENT
NOW THEREFORE ,
for and in consideration of the
premises and the mutual covenants and agreements set forth herein,
the receipt and sufficiency of which are hereby acknowledged,
Fleetwood, the Borrowers, the Lenders, and the Agent agree as
follows:
1.
WAIVER. Subject to the satisfaction
of the conditions set forth below under Section 5 , the
Lenders hereby waive any Default or Event of Default that may have
arisen solely from the failure of the Borrowers to comply with
Section 7.22(a) of the Credit Agreement for the
Measurement Periods ended April 5, 2009 and April 12,
2009 as well as any breaches of representations and warranties and
Defaults or Events of Default under any other Loan Documents
brought about solely by the aforementioned breach, in each case,
prior to the date hereof. For the avoidance of doubt, by the
foregoing waiver, the Lenders shall not have waived any requirement
for the Borrowers to comply with Section 7.22(a)
of the Credit Agreement, as the same shall be in effect upon
the amendment and restatement of the Approved Budget as consented
to by the Required Lenders pursuant to Section 2
below.
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2.
CONSENT. Subject to the satisfaction
of the conditions set forth below under Section 5 , the
Lenders hereby consent to and approve the proposed Approved Budget
attached hereto as Exhibit A and such proposed Approved
Budget shall therefore become the Approved Budget.
3.
AMENDMENTS TO THE CREDIT
AGREEMENT. Subject to the conditions and
upon the terms set forth in this Waiver and Amendment and in
reliance on the representations and warranties of Fleetwood and the
Borrowers set forth in this Waiver and Amendment, the Credit
Agreement is hereby amended as follows:
3.1
Amendment to
Section 7.22 .
Section 7.22 of the Credit Agreement shall be amended
by adding the following clause (c) after the existing clause
(b):
“(c)
Fleetwood Liquidity for any six consecutive Measurement Periods
shall not be less than eighty-five percent (85%) of the average
projected Fleetwood Liquidity as set forth in the Approved Budget
for such six consecutive Measurement Periods, in each case, tested
on a rolling six (6) consecutive Measurement Period basis;
provided that before the end of the Initial Testing Period,
the test shall be for all lesser number of Measurement Periods as
shall have been completed through the end of the applicable
Measurement Period; provided further that there shall be no
diminution in the percentage of projected cash receipts for any
tests during the Initial Testing Period.”
3.2
Amendments to Annex A
. Annex
A to the Credit Agreement shall be amended by adding the
following additional definitions in the appropriate alphabetical
order thereto:
“ Fleetwood Liquidity
” means, for any Measurement Period, the sum of (a) the
Availability as of the last day of such Measurement Period plus
(b) the Qualified Cash Equivalents held by the Loan Parties as
of the last day of such Measurement Period, and for multiple
Measurement Periods, the sum of the Fleetwood Liquidity amounts for
the Measurement Periods in the applicable testing period divided by
the number of Measurement Periods in such testing
period.
“ Qualified Cash
Equivalents ” means, as of any date for any Person, the
balance of cash and marketable securities (other than Borrowing
Base Cash Collateral) held by such Person in the United States on
such date, which cash and 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.
3.3
Amendment to Annex A
. Annex
A to the Credit Agreement shall be amended by amending and
restating clause (vii) of the definition of “Termination
Date” to read as follows:
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