AMENDED AND RESTATED AGREEMENT FOR WHOLESALE FINANCING (Finished Goods – Shared Credit Facility) Among PALM HARBOR HOMES, INC., PALM HARBOR MANUFACTURING, L.P., PALM HARBOR HOMES I, L.P., and PALM HARBOR MARKETING, INC., as Borrowers, And TEXTRON...
AMENDED
AND RESTATED AGREEMENT FOR WHOLESALE FINANCING
(Finished
Goods – Shared Credit Facility)
Among
PALM
HARBOR HOMES, INC., PALM HARBOR MANUFACTURING, L.P., PALM HARBOR HOMES I, L.P.,
and PALM HARBOR MARKETING, INC., as Borrowers,
And
TEXTRON
FINANCIAL CORPORATION AND THE OTHER LENDERS NAMED OR TO BE NAMED HEREIN, as
Lenders,
And
TEXTRON
FINANCIAL CORPORATION, as Administrative Agent and
Arranger
Dated
as
of May 25, 2004
AMENDED
AND RESTATED AGREEMENT FOR WHOLESALE FINANCING
(Finished
Goods – Shared Credit Facility)
THIS
AGREEMENT FOR WHOLESALE FINANCING (Finished Goods – Shared Credit
Facility)
(as
amended from time to time, this “Agreement”)
is
made as of May 25, 2004, by and among PALM
HARBOR HOMES, INC.,
a
Florida corporation (“PHHI”),
PALM
HARBOR MANUFACTURING, L.P.,
a Texas
limited partnership (“PHMLP”),
PALM
HARBOR HOMES I, L.P.,
a Texas
limited partnership (“PHHLP”),
and
PALM
HARBOR MARKETING, INC.,
a
Nevada corporation (“PHMI”),
(PHHI, PHMLP, PHHLP and PHMI are sometimes collectively referred to herein
as
the “Borrowers”
and
individually as a “Borrower”);
TEXTRON
FINANCIAL CORPORATION,
a
Delaware corporation, as a lender (Textron Financial Corporation in its
individual capacity as a Lender is referred to herein as “Textron
Financial”),
each
of the other lenders listed or to be listed on the signature pages hereof
pursuant to Section 28 hereof (each individually referred to herein as a
“Lender”
and,
collectively, as the “Lenders”);
and
TEXTRON
FINANCIAL CORPORATION,
a
Delaware corporation, as agent for itself as a Lender and the other Lenders
(the
“Administrative
Agent”);
the
principal place of business of each Borrower and its notification address is
set
forth in Part 1 on the Schedule of Terms and Disclosures attached hereto.
RECITALS:
A.
WHEREAS,
PHHI
together with its wholly-owned subsidiary, PHMLP, manufactures manufactured
and
modular homes under the tradenames set forth in Part 2 on the Schedule of Terms
and Disclosures attached hereto (such manufactured homes are referred to herein,
individually, as a “Palm
Harbor Brand Manufactured Home”
and,
collectively, as “Palm
Harbor Brand Manufactured Homes;”
and
such modular homes are referred to herein, individually, as a “Palm
Harbor Brand Modular Home”
and,
collectively, as “Palm
Harbor Brand Modular Homes;”
and
Palm Harbor Brand Manufactured Homes and Palm Harbor Brand Modular Homes are
referred to herein, collectively, as “Palm
Harbor Brand Homes”);
B.
WHEREAS,
the
Borrowers, Textron Financial, certain other lenders and the Administrative
Agent
entered into an Agreement for Wholesale Financing (Finished Goods-Shared Credit
Facility), dated as of March 19, 2003 (as amended, the “Existing
Agreement for Wholesale Financing”);
C.
WHEREAS,
this
Agreement is intended by the parties hereto to amend and restate the Existing
Agreement for Wholesale Financing on the terms and conditions set forth below;
D.
WHEREAS,
Textron
Financial is agreeable to increasing its “core” commitment from $50,000,000
under the Existing Agreement for Wholesale Financing to $70,000,000 under this
Agreement;
E.
WHEREAS,
on the
date hereof, the existing loans and indebtedness outstanding under the Existing
Agreement for Wholesale Financing have been paid down to $70,000,000 and all
of
such existing loans and indebtedness under the Existing Agreement for Wholesale
Financing will continue to be outstanding and owing under this Agreement;
-1-
F.
WHEREAS,
each
Borrower requests that the Lenders extend advances under this Agreement to
such
Borrower from time to time in respect of Palm Harbor Brand Homes of such
Borrower (each funding by the Administrative Agent, as provided for below,
of a
request by a Borrower for an extension of credit in respect of Palm Harbor
Brand
Homes of such Borrower is referred to herein, individually, as an “Advance”
and,
collectively, as the “Advances;”
each
Lender’s funding of an Advance shall be in accordance with such Lender’s Pro
Rata Share thereof, as such term is defined below);
G.
WHEREAS,
the
aggregate outstanding principal amount of all Advances made to the Borrowers
under this Agreement will not exceed the total credit line of $70,000,000 (such
total credit line, as adjusted from time to time, the “Total
Credit Line”);
H.
WHEREAS,
the
aggregate outstanding principal amount of all Advances made to any Borrower
under this Agreement will not exceed such Borrower’s Sub-Limit (as such term is
defined below); and
I.
WHEREAS,
the
Total Credit Line will be divided into a senior component of $50,000,000 (the
“Senior
Component”)
and a
subordinate component of $20,000,000 (“Junior
Component”);
J.
WHEREAS,
Advances made by the Lenders will be allocated by Lenders first to the Junior
Component and then to the Senior Component and repayments of Advances may,
as
provided in Section 9 below and at the election of the Majority Lenders, be
allocated first to the Senior Component and then to the Junior Component of
the
Total Credit Line;
K.
WHEREAS,
Advances will be extended to PHHI under this Agreement, on the terms and
conditions hereinafter set forth, solely for purposes of financing or
refinancing, as the case may be, new Palm Harbor Brand- Homes completed and
ready or held for sale by PHHI in any State in the continental United States
of
America other than Texas; PHHI effects such sales (1) through its retail
locations set forth in Part 3 on the Schedule of Terms and Disclosures attached
hereto (individually, a “PHHI
Retail Location”
and,
collectively, the “PHHI
Retail Locations;”
such
retail locations shall include any additional retail locations added to Part
3
on the Schedule of Terms and Disclosures pursuant to Section 44 below and shall
not include any retail locations deleted from said Schedule pursuant to said
Section 44 and (2) by arranging the same directly from its manufacturing sites
set forth in Part 4 on the Schedule of Terms and Disclosures attached hereto
(individually, a “PHHI
Manufacturing Site”
and,
collectively, the “PHHI
Manufacturing Sites;”
such
manufacturing sites shall include any additional manufacturing sites added
to
Part 4 on the Schedule of Terms and Disclosures pursuant to Section 44 below
and
shall not include any manufacturing sites deleted from said Schedule pursuant
to
said Section 44; for the avoidance of doubt, Palm Harbor Brand Homes completed
and ready or held for sale in the State of Texas by PHHI (either at PHHI Retail
Stores in Texas or a Manufacturing Sites in Texas) will not be eligible for
Advances to be extended hereunder to PHHI; and
-2-
L.
WHEREAS,
Advances will be extended to PHMLP under this Agreement, on the terms and
conditions hereinafter set forth, solely for purposes of financing or
refinancing, as the case may be, new Palm Harbor Brand Homes completed and
ready
for sale by PHMLP in the State of Texas; PHMLP does not effect such sales in
Texas directly but rather supplies such Palm Harbor Brand Homes to PHHLP and
PHHLP sells the same to retail purchasers in Texas; the manufacturing sites
of
PHMLP in Texas are as set forth in Part 5 on the Schedule of Terms and
Disclosures attached hereto (individually, a “PHMLP
Manufacturing Site”
and,
collectively, the “PHMLP
Manufacturing Sites;”
such
manufacturing sites shall include any additional manufacturing sites added
to
Part 5 on the Schedule of Terms and Disclosures pursuant to Section 44 below
and
shall not include any manufacturing sites deleted from said Schedule pursuant
to
said Section 44; for the avoidance of doubt, Palm Harbor Brand Homes completed
and ready or held for sale in any state other than the State of Texas by PHMLP
will not be eligible for Advances to be extended hereunder to PHMLP; and
M.
WHEREAS,
Advances will be extended to PHHLP under this Agreement, on the terms and
conditions hereinafter set forth, for the purpose of financing its acquisition
of additional Palm Harbor Brand Homes from either PHHI or PHMLP for sale at
retail locations of PHHLP in the States of Arizona, Arkansas, Louisiana, New
Mexico, Oklahoma and Texas (such retail locations are referred to individually,
as a “PHHLP
Retail Location”
and,
collectively, as a “PHHLP
Retail Locations”);
and
N.
WHEREAS,
Advances will be extended to PHMI under this Agreement, on the terms and
conditions hereinafter set forth, for the purpose of financing its acquisition
of additional Palm Harbor Brand Homes from either PHHI or PHMLP for sale at
retail locations of PHMI in the State Florida (such retail locations are
referred to individually, as a “PHMI
Retail Location”
and,
collectively; as a “PHMI
Retail Locations”);
and
O.
WHEREAS,
PHHI
will be jointly and severally liable with PHMLP, PHHLP and PHMI for all
obligations of PHMLP, PHHLP and PHMI under this Agreement; PHMLP shall be
jointly and severally liable with PHHLP, PHHI and PHMI for all obligations
of
PHHLP, PHHI and PHMI under this Agreement; PHHLP shall be jointly and severally
liable with PHMLP, PHHI and PHMI for all obligations of PHMLP, PHHI and PHMI
under this Agreement; and PHMI shall be jointly and severally liable with PHMLP,
PHHI and PHHLP for all obligations of PHMLP, PHHI and PHHLP under this
Agreement; and
P.
WHEREAS,
PHHI
will grant to the Administrative Agent on behalf of the Lenders a security
interest in and to all of its inventory (including, without limitation, the
Palm
Harbor Brand Homes completed and ready and/or held for sale by PHHI) as security
for all of its obligations hereunder (including, without limitation, its
obligations in respect of the obligations of PHMLP, PHHLP and PHMI hereunder);
and
Q.
WHEREAS,
PHMLP
will grant to the Administrative Agent on behalf of the Lenders a security
interest in and to all of its inventory (including, without limitation, the
Palm
Harbor Brand Homes completed and ready and/or held for sale by PHMLP) as
security for all of its obligations hereunder (including, without limitation,
its obligations in respect of the obligations of PHHI, PHHLP and PHMI
hereunder); and
R.
WHEREAS,
PHHLP
will grant to the Administrative Agent on behalf of the Lenders a security
interest in and to all of its inventory (including, without limitation, the
Palm
Harbor Brand Homes acquired by it from PHHI or PHMLP) as security for all of
its
obligations hereunder (including, without limitation, its obligations in respect
of the obligations of PHMLP, PHHI and PHMI hereunder); and
-3-
S.
WHEREAS,
PHMI
will grant to the Administrative Agent on behalf of the Lenders a security
interest in and to all of its inventory (including, without limitation, the
Palm
Harbor Brand Homes acquired by it from PHHI or PHMLP) as security for all of
its
obligations hereunder (including, without limitation, its obligations in respect
of the obligations of PHMLP, PHHI and PHHLP hereunder); and
T.
WHEREAS,
the
Administrative Agent shall act as the collateral and funding and disbursing
agent on behalf of the Lenders; and
U.
WHEREAS,
Textron
Financial Corporation is the arranger in respect of the facility provided for
herein;
V.
WHEREAS,
capitalized terms used in this Agreement shall have the meanings assigned to
them in Definitions Appendix attached hereto.
NOW,
THEREFORE,
in
consideration of the premises and the agreements, provisions and covenants
herein contained, PHHI, PHMLP, PHHLP, PHMI, the Lenders and the Administrative
Agent agree as follows:
1. Extension
of Credit to PHHI.
Each of
the Lenders severally agrees, subject to the terms and conditions of this
Agreement, to make available to PHHI during the Term of this Agreement its
Pro
Rata Share of Advances requested from time to time by PHHI, the proceeds of
which will be used to pay for or otherwise refinance costs incurred by PHHI
in
connection with the manufacturing of units of Palm Harbor Brand Homes which
are
completed and ready for sale and/or being held for sale at one or more of the
PHHI Retail Locations not in the State of Texas or one or more of the PHHI
Manufacturing Sites not in the State of Texas (the proceeds of any such Advance
to be used to pay such costs shall not exceed 90% of the pro forma wholesale
invoice prices in respect thereof). It is hereby agreed that the pro forma
wholesale invoice price with respect to any unit of Palm Harbor Brand Homes
is
the price for such unit that would be shown on a wholesale invoice for such
unit
issued by PHHI in an arm’s-length transaction with an independent dealer
(excluding therefrom any rebates, credits or discounts in respect thereof);
PHHI
agrees to issue and deliver such pro forma wholesale invoices to the
Administrative Agent as set forth below (and to clearly ▇▇▇▇ such pro forma
wholesale invoices as “pro forma” invoices). PHHI understands and agrees that it
may request Advances hereunder only in accordance with the terms and conditions
hereof and only during the Term of this Agreement; no Advance may be requested
by PHHI hereunder if the funding thereof would, in accordance with the terms
of
this Agreement, be effected after the Term of this Agreement and no Lender
shall
be obligated to fund or cause to be funded any such Advance. No other Lender
shall be responsible or obligated to advance any portion of a requested Advance
that has not been funded by another Lender. No Lender shall be obligated to
fund
or cause to be funded an Advance requested by PHHI unless it shall have received
a “booking” approval from the Administrative Agent in respect thereof, as
provided for in Section 6 hereof. Anything contained herein to the contrary
notwithstanding, no Advance shall be funded by any Lender hereunder if, at
the
time of the making of the Advance, a Default or Event of Default shall exist.
Anything contained in this Section I notwithstanding, the outstanding advances
under the Existing Agreement for Wholesale Financing shall automatically be
deemed outstanding under this Agreement (at the advance rate or rates provided
for in the Existing Agreement for Wholesale Financing) and shall be allocated
first to the Junior Component of the Total Credit Line and then to the Senior
Component of the Total Credit Line.
-4-
2. Extension
of Credit to PHMLP.
Each of
the Lenders severally agrees, subject to the terms and conditions of this
Agreement, to make available to PHMLP during the Term of this Agreement its
Pro
Rata Share of Advances requested from time to time by PHMLP, the proceeds of
which will be used to pay for or otherwise refinance costs incurred by PHMLP
in
connection with its manufacturing of units of Palm Harbor Brand Homes which
are
completed and ready for sale and located at one or more of the PHMLP
Manufacturing Sites in the State of Texas (the proceeds of any such Advance
to
be used to pay such costs shall not exceed 90% of the pro forma wholesale
invoice prices in respect thereof). It is hereby agreed that the pro forma
wholesale invoice price with respect to any unit of Palm Harbor Brand Homes
is
the price for such unit that would be shown on a wholesale invoice for such
unit
issued by PHMLP in an arm’s-length transaction with an independent dealer
(excluding therefrom any rebates, credits or discounts in respect thereof);
PHMLP agrees to issue and deliver such pro forma wholesale invoices to the
Administrative Agent as set forth below (and to clearly ▇▇▇▇ such pro forma
wholesale invoices as “pro forma” invoices). PHMLP understands and agrees that
it may request Advances hereunder only in accordance with the terms and
conditions hereof and only during the Term of this Agreement; no Advance may
be
requested by PHMLP hereunder if the funding thereof would, in accordance with
the terms of this Agreement, be effected after the Term of this Agreement and
no
Lender shall be obligated to fund or cause to be funded any such Advance. No
other Lender shall be responsible or obligated to advance any portion of a
requested Advance that has not been funded by another Lender. No Lender shall
be
obligated to fund or cause to be funded an Advance requested by PHMLP unless
it
shall have received a “booking” approval from the Administrative Agent in
respect thereof, as provided for in Section 6 hereof. Anything contained herein
to the contrary notwithstanding, no Advance shall be funded by any Lender
hereunder if, at the time of the making of the Advance, a Default or Event
of
Default shall exist. Anything contained in this Section 2 notwithstanding,
the
outstanding advances under the Existing Agreement for Wholesale Financing shall
automatically be deemed outstanding under this Agreement (at the advance rate
or
rates provided for in the Existing Agreement for Wholesale Financing) and shall
be allocated first to the Junior Component of the Total Credit Line and then
to
the Senior Component of the Total Credit Line.
-5-
3. Extension
of Credit to PHHLP.
Each of
the Lenders severally agrees, subject to the terms and conditions of this
Agreement, to make available to PHHLP during the Term of this Agreement its
Pro
Rata Share of Advances requested from time to time by PHHLP, the proceeds of
which will be used to pay 90% of the original wholesale invoice price of an
unit
of Palm Harbor Brand Homes to be acquired by PHHLP from PHHI or PHMLP, which
unit is completed and ready to be held for sale at one of the PHHLP Retail
Locations. PHHLP hereby agrees to pay to PHHI or PHMLP, as the case may be,
any
portion of the wholesale invoice price of a unit of Palm Harbor Brand Homes
that
is not paid by the proceeds of Advances made hereunder; PHHLP shall provide
to
the Administrative Agent such evidence of such payment as the Administrative
Agent may reasonably request and the Administrative Agent may require such
evidence as a condition to advancing the proceeds of any such Advances. PHHLP,
PHMLP, and PHHI agree that the wholesale invoice price of a unit of Palm Harbor
Brand Homes being sold to PHHLP by PHHI or PHMLP shall be the wholesale invoice
price as would be shown on a wholesale invoice for such unit sold by PHHI or
PHMLP in an arm’s-length transaction with an independent dealer (excluding
therefrom any rebates, credits or discounts in respect thereof). PHHLP
understands and agrees that it may request Advances hereunder only in accordance
with the terms and conditions hereof and only during the Term of this Agreement;
no Advance may be requested by PHHLP hereunder if the funding thereof would,
in
accordance with the terms of this Agreement, be effected after the Term of
this
Agreement and no Lender shall be obligated to fund or cause to be funded any
such Advance. No other Lender shall be responsible or obligated to advance
any
portion of a requested Advance that has not been funded by another Lender.
No
Lender shall be obligated to fund or cause to be funded an Advance requested
by
PHHLP unless it shall have received a “booking” approval from the Administrative
Agent in respect thereof, as provided for in Section 6 hereof. Anything
contained herein to the contrary notwithstanding, no Advance shall be funded
by
any Lender hereunder if, at the time of the making of the Advance, a Default
or
Event of Default shall exist. Anything contained in this Section 3
notwithstanding, the outstanding advances under the Existing Agreement for
Wholesale Financing shall automatically be deemed outstanding under this
Agreement (at the advance rate or rates provided for in the Existing Agreement
for Wholesale Financing) and shall be allocated first to the Junior Component
of
the Total Credit Line and then to the Senior Component of the Total Credit
Line.
4. Extension
of Credit to PHMI.
Each of
the Lenders severally agrees, subject to the terms and conditions of this
Agreement, to make available to PHMI during the Term of this Agreement its
Pro
Rata Share of Advances requested from time to time by PHMI, the proceeds of
which will be used to pay no more than 90% of the original wholesale invoice
price of any unit of Palm Harbor Brand Homes to be acquired by PHMI from PHHI
or
PHMLP, which unit is completed and ready to be held for sale at one of the
PHMI
Retail Locations. PHMI hereby agrees to pay to PHHI or PHMLP, as the case may
be, any portion of the wholesale invoice price of a unit of Palm Harbor Brand
Homes that is not paid by the proceeds of Advances made hereunder; PHMI shall
provide to the Administrative Agent such evidence of such payment as the
Administrative Agent may reasonably request and the Administrative Agent may
require such evidence as a condition to advancing the proceeds of any such
Advances. PHMI, PHMLP, and PHHI agree that the original invoice cost of a unit
of Palm Harbor Brand Homes being sold to PHMI by PHHI or PHMLP shall be the
wholesale invoice price as would be shown on an invoice for such unit sold
by
PHHI or PHMLP in an arm’s-length transaction with an independent dealer
(excluding therefrom any rebates, credits or discounts in respect thereof).
PHMI
understands and agrees that it may request Advances hereunder only in accordance
with the terms and conditions hereof and only during the Term of this Agreement;
no Advance may be requested by PHMI hereunder if the funding thereof would,
in
accordance with the terms of this Agreement, be effected after the Term of
this
Agreement and no Lender shall be obligated to fund or cause to be funded any
such Advance. No other Lender shall be responsible or obligated to advance
any
portion of a requested Advance that has not been funded by another Lender.
No
Lender shall be obligated to fund or cause to be funded an Advance requested
by
PHMI unless it shall have received a “booking” approval from the Administrative
Agent in respect thereof, as provided for in Section 6 hereof. Anything
contained herein to the contrary notwithstanding, no Advance shall be funded
by
any Lender hereunder if, at the time of the making of the Advance, a Default
or
Event of Default shall exist. Anything contained in this Section 4
notwithstanding, the outstanding advances under the Existing Agreement for
Wholesale Financing shall automatically be deemed outstanding under this
Agreement (at the advance rate or rates provided for in the Existing Agreement
for Wholesale Financing) and shall be allocated first to the Junior Component
of
the Total Credit Line and then to the Senior Component of the Total Credit
Line.
-6-
5. Mechanics
and Terms of Advance Requests; Powers of Attorney.
A
Borrower shall make a request for an Advance by submitting, or causing to be
submitted, to the Administrative Agent a wholesale invoice for each Palm Harbor
Brand Home to be financed hereunder and the submission of such wholesale invoice
shall constitute the authority for the Administrative Agent to fund such
requested Advance and for the Lenders to advance their respective Pro Rata
Shares to the Administrative Agent in respect thereof and shall also be such
Borrower’s representation and warranty to the Lenders and Administrative Agent
that such wholesale invoice is true and correct, all of its representations
and
warranties hereunder are true and correct as of the date of the submission
of
such invoice, no Default or Event of Default exists as of the date of the
submission of such invoice or will exist as of the date of the funding of the
Advance being requested and that such Borrower has satisfied, or caused to
be
satisfied, all requirements under this Agreement in respect of the Advance
being
requested. Each Borrower shall submit wholesale invoices to the Administrative
Agent by facsimile or other electronic transmission or other appropriate means
of delivery such that each such wholesale invoice shall be dated the date on
which the Administrative Agent receives such wholesale invoice; the Borrowers
acknowledge that the Administrative Agent may in its sole discretion reject
wholesale invoices that do not comply with this sentence. In the case of Palm
Harbor Brand Homes to be financed hereunder by PHHI or PHMLP, the wholesale
invoices shall be pro forma invoices as if such Palm Harbor Brand Home were
being sold to an independent dealer and shall be accordingly marked. In the
case
of Palm Harbor Brand Homes to be financed hereunder by PHHLP or PHMI, the
wholesale invoices in respect thereof shall be the actual original wholesale
invoices used by PHHI or PHMLP to invoice PHHLP or PHMI, as the case may be.
No
Borrower shall make a request for nor receive more than one Advance funded
by
the Administrative Agent in respect of any Palm Harbor Brand Home and no
Borrower shall submit to the Administrative Agent more than one wholesale
invoice in respect of any unit of Palm Harbor Brand Homes (it being the
intention of the parties hereto that a unit of Palm Harbor Brand Home may be
financed by an Advance hereunder only once). Except as provided in Sections
1,
2, 3 and 4 above with respect to existing advances under the Existing Agreement
for Wholesale Financing, the aggregate amount of Advances extended by Lenders
with respect to any unit of Palm Harbor Brand Homes shall not exceed 90% of
the
wholesale invoice price in respect thereof. No Advance shall be made to PHHI
under Section I above if the Palm Harbor Brand Homes in respect thereof are
located or to be located at a PHHI Retail Location or a PHHI Manufacturing
Site
in Texas. No Advance shall be made to PHMLP under Section 2 above if the Palm
Harbor Brand Homes in respect thereof are located or to be located at location
other than a PHMLP Manufacturing Site in Texas. No Advance shall be made to
PHHLP under Section 3 above if the Palm Harbor Brand Homes in respect thereof
are located or to be located at a location other than a PHHLP Retail Location.
No Advance shall be made to PHMI under Section 4 above if the Palm Harbor Brand
Homes in respect thereof are located or to be located at a location other than
a
PHMI Retail Location.
-▇-
▇▇▇▇▇
hereby appoints PHHI as its agent and attorney-in-fact for all purposes under
this Agreement, including, but not limited to, making requests for Advances,
submitting or causing to be submitted wholesale price invoices, receiving
proceeds from Advances, receiving notices under this Agreement and other
communications from the Administrative Agent and/or the Lenders (including,
without limitation, billing statements), agreeing to amendments, modifications
or changes to this Agreement and agreeing to allocations of Sub-Limits; such
appointment is coupled with an interest and is irrevocable. Pursuant to this
power, the Administrative Agent is authorized by PHMLP to deal with PHHI on
all
matters regarding this Agreement pertaining to PHMLP and all decisions and
actions taken by PHHI on behalf of PHMLP with respect to such matters shall
be
in all cases binding upon and effective against PHMLP, and PHMLP hereby
represents and warrants to the Administrative Agent that PHHI has been fully
and
irrevocably authorized to act on behalf of PHMLP with respect to all such
matters herein.
PHHLP
hereby appoints PHHI as its agent and attorney-in-fact for all purposes under
this Agreement, including, but not limited to, making requests for Advances,
submitting or causing to be submitted wholesale price invoices, receiving
proceeds from Advances, receiving notices under this Agreement and other
communications from the Administrative Agent and/or the Lenders (including,
without limitation, billing statements), agreeing to amendments, modifications
or changes to this Agreement and agreeing to allocations of Sub-Limits; such
appointment is coupled with an interest and is irrevocable. Pursuant to this
power, the Administrative Agent is authorized by PHHLP to deal with PHHI on
all
matters regarding this Agreement pertaining to PHHLP and all decisions and
actions taken by PHHI on behalf of PHHLP with respect to such matters shall
be
in all cases binding upon and effective against PHHLP, and PHHLP hereby
represents and warrants to the Administrative Agent that PHHI has been fully
and
irrevocably authorized to act on behalf of PHHLP with respect to all such
matters herein.
PHMI
hereby appoints PHHI as its agent and attorney-in-fact for all purposes under
this Agreement, including, but not limited to, making requests for Advances,
submitting or causing to be submitted wholesale price invoices, receiving
proceeds from Advances, receiving notices under this Agreement and other
communications from the Administrative Agent and/or the Lenders (including,
without limitation, billing statements), agreeing to amendments, modifications
or changes to this Agreement and agreeing to allocations of Sub-Limits; such
appointment is coupled with an interest and is irrevocable. Pursuant to this
power, the Administrative Agent is authorized by PHMI to deal with PHHI on
all
matters regarding this Agreement pertaining to PHMI and all decisions and
actions taken by PHHI on behalf of PHMI with respect to such matters shall
be in
all cases binding upon and effective against PHMI, and PHMI hereby represents
and warrants to the Administrative Agent that PHHI has been fully and
irrevocably authorized to act on behalf of PHMI with respect to all such matters
herein.
-8-
6. Eligibility
of Units of Palm Harbor Brand Homes; Approvals from Administrative Agent;
Mechanics of Making and Funding Advances.
To be
eligible for an Advance in respect of a unit of Palm Harbor Brand Homes, such
unit must: (a) be adequately described on the wholesale invoice therefor and
such wholesale invoice must have been issued in the name of the Borrower on
whose behalf such Advance is being requested and delivered to and received
by
the Administrative Agent, (b) be approved by the Administrative Agent (and
the
wholesale invoice in respect thereof shall likewise be approved by the
Administrative Agent; such approval shall constitute a “booking” approval
hereunder), in each case in the Administrative Agent’s sole discretion (each
such “booking” approval shall be in such form or pursuant to such procedures as
the Administrative Agent may establish from time to time and shall, in any
case,
include (i) a brief description of the applicable unit, (ii) the wholesale
invoice price in respect thereof, (iii) the amount of the Advance to be made
in
respect thereof, which shall not exceed 90% of such wholesale invoice price
(except as expressly provided in Sections 1, 2, 3 and 4 above with respect
to
existing advances under the Existing Agreement for Wholesale Financing), (iv)
the Pro Rata Share of each Lender in respect of such Advance, (v) the date
on
which such Advance is to be funded (with respect to any Advance, the
“Funding
Date”),
which
shall be ten (10) days after the date on such wholesale invoice (or if such
date
is not a business day, on the next business day), (vi) the date on which such
“booking” approval is being issued (with respect to any Advance and the unit of
Palm Harbor Brands Home being financed thereby, the “Booking
Date”),
which
shall, unless otherwise determined by the Administrative Agent in its sole
discretion, be the date on such wholesale invoice (any exercise by the
Administrative Agent of such discretion notwithstanding, the “Booking Date” for
purposes of the commencement of the accrual of interest on any Advance, as
hereinafter provided, shall not be a date earlier than the date on the
applicable wholesale invoice associated with such Booking Date), and (vii)
the
amount of availability existing under the Total Credit Line and the applicable
Sub-Limit, if any, prior to giving effect to the making of the requested
Advance; the Administrative Agent may, in its sole discretion, batch requests
by
Borrowers and issue “booking” approvals in respect of such batched requests (the
Administrative Agent agrees that any batching undertaken by it will not impede
its expeditious handling of requests from Borrowers and the timely issuance
of
“booking” approvals in respect thereof); once issued, a “booking” approval shall
be communicated by the Administrative Agent to the requesting Borrower or
Borrowers and the Lenders), (c) be Collateral hereunder and be encumbered by
a
first priority security interest in favor of the Administrative Agent on behalf
of the Lenders and, with respect to units being acquired by PHHLP and/or PHMI
from either PHHI or PHMLP, shall be encumbered by a first priority purchase
money security interest in favor of the Administrative Agent on behalf of the
Lenders (and, with respect to such purchase money security interest, PHHLP
or
PHMI, as the case may be, shall have delivered to the Administrative Agent
or
its agent the original manufacturer statement of origin in respect of such
unit), and (d) not have been delivered into the possession of PHHLP or PHMI
in
the case of any Advance being made to such person prior to the issue of the
“booking” approval in respect thereof. Upon the delivery of the aforesaid
“booking” approval from the Administrative Agent to each of the Lenders, each of
the Lenders agrees (on a several and not joint basis) to fund or caused to
be
funded to the Administrative Agent their respective Pro Rata Share of the
requested Advance or Advances set forth in said “booking” approval on the
Funding Date in respect thereof set forth in said approval by delivering or
causing to be delivered immediately available funds to the Administrative Agent
as provided for in Part 7 on the Schedule of Terms and Disclosures attached
hereto (or as the Administrative Agent may otherwise instruct the Lenders in
writing reasonably in advance of any such funding). PHHI hereby instructs the
Administrative Agent to pay the proceeds of any Advance to be made to PHHI
on
the Funding Date in respect thereof as set forth in Part 8 on the Schedule
of
Terms and Disclosures attached hereto (or as PHHI may otherwise instruct the
Administrative Agent in writing reasonably in advance of the funding of any
such
Advance). PHMLP hereby instructs the Administrative Agent to pay the proceeds
of
any Advance to be made to PHMLP on the Funding Date in respect thereof as set
forth in Part 8 on the Schedule of Terms and Disclosures attached hereto (or
as
PHMLP may otherwise instruct the Administrative Agent in writing reasonably
in
advance of the funding of any such Advance). PHHLP hereby instructs the
Administrative Agent to pay the proceeds of any Advance to be made to it or
on
its behalf to PHHI or PHMLP, as the manufacturer of the unit of Palm Harbor
Brand Homes being financed by such Advance identified on the wholesale invoice
in respect thereof, on the Funding Date in respect thereof. PHMI hereby
instructs the Administrative Agent to pay the proceeds of any Advance to be
made
to it or on its behalf to PHHI or PHMLP, as the manufacturer of the unit of
Palm
Harbor Brand Homes being financed by such Advance identified on the wholesale
price invoice in respect thereof, on the Funding Date in respect thereof. The
Administrative Agent may assume that all wholesale invoices (and any
manufacturer’s statement of origin in respect thereof) delivered to it are
authentic and accurate and that they have been submitted by or on behalf of
a
Borrower and with such Borrower’s permission. The Pro Rata Shares of each
Advance funded by each Lender will be considered advanced on the Booking Date
for such Advance and interest and finance charges shall commence to accrue
thereon from and including such Booking Date notwithstanding that such Pro
Rata
Shares of such Advance will not be funded until the Funding Date in respect
thereof. Borrowers agree that the Administrative Agent may issue “booking”
approvals for wholesale invoices that are directly communicated from PHHI or
PHMLP to the Administrative Agent and extend Advances in respect thereof without
the need of any particular Borrower’s prior approval of such wholesale invoices
or the Advances made in respect thereof. The Administrative Agent recognizes
and
acknowledges that PHHI, as provided for in Section 5 above, may act on behalf
of
PHMLP, PHHLP and/or PHMI, as its attorney-in-fact, in connection with satisfying
any or all of the requirements set forth above in this Section 6 with respect
to
any requested Advance.
-9-
7. Shared
Credit Facility.
Anything contain herein to the contrary notwithstanding, the aggregate principal
amount of Advances outstanding hereunder shall not exceed, at any time, the
Total Credit Line. No Advance shall be funded hereunder by the Administrative
Agent or any Lender if, after giving effect to the extension of such Advance,
the aggregate principal amount of all Advances outstanding hereunder would
exceed the Total Credit Line. Anything contained herein to the contrary
notwithstanding, the aggregate principal amount of Advances made to PHHI under
Section I and outstanding hereunder shall not exceed, at any time, its
Sub-Limit, if applicable. No Advance shall be funded hereunder to PHHI by the
Administrative Agent or the Lenders if, after giving effect to the extension
of
such Advance, the aggregate principal amount of all Advances to PHHI outstanding
hereunder would exceed its Sub-Limit, if applicable. Anything contained herein
to the contrary notwithstanding, the aggregate principal amount of Advances
made
to PHMLP under Section 2 and outstanding hereunder shall not exceed, at any
time, its Sub-Limit, if applicable. No Advance shall be funded hereunder to
PHMLP by the Administrative Agent or the Lenders if, after giving effect to
the
extension of such Advance, the aggregate principal amount of all Advances to
PHMLP outstanding hereunder would exceed its Sub-Limit, if applicable. Anything
contained herein to the contrary notwithstanding, the aggregate principal amount
of Advances made to PHHLP under Section 3 and outstanding hereunder shall not
exceed, at any time, its Sub-Limit, if applicable. No Advance shall be funded
hereunder to PHHLP by the Administrative Agent or the Lenders if, after giving
effect to the extension of such Advance, the aggregate principal amount of
all
Advances to PHHLP outstanding hereunder would exceed its Sub-Limit, if
applicable. Anything contained herein to the contrary notwithstanding, the
aggregate principal amount of Advances made to PHMI under Section 4 hereof
and
outstanding hereunder shall not exceed, at any time, its Sub-Limit, if
applicable. No Advance shall be funded hereunder to PHMI by the Administrative
Agent if, after giving effect to the extension of such Advance, the aggregate
principal amount of all Advances to PHHI outstanding hereunder would exceed
its
Sub-Limit, if applicable. As referred to above in this Section 7, each Borrower
may have a Sub-Limit in respect of the total credit facility for inventory
financing being provided hereunder to such Borrower. Any such Sub-Limit shall
be
established by an agreement reached between the Administrative Agent (acting
at
the direction of the Majority Lenders) and such Borrower; if no such agreement
shall be reached, then there shall be no such Sub-Limit with respect to such
Borrower.
If
a
Sub-Limit for a Borrower shall be established by agreement, such Borrower,
from
time to time, may request inventory financing in excess of such Sub-Limit,
but
which, when aggregated with the aggregate principal amount of Advances then
outstanding, would not cause the Total Credit Line to be exceeded. Each Borrower
acknowledges that the Administrative Agent acting at the instruction of the
Majority Lenders may, in its and their sole discretion from time to time, elect
to honor such requests by permanently or temporarily increasing such requesting
Borrower’s Sub-Limit and simultaneously reducing the Sub-Limits of one or more
of the other Borrowers. Each Borrower agrees that it will benefit by the
increased flexibility in respect of its Sub-Limit being provided to it and
the
other Borrowers in this Section 7.
-10-
Anything
contained herein to the contrary notwithstanding, the Borrowers, the Lenders
and
the Administrative Agent agree that whenever the Administrative Agent is
considering issuing a “booking” approval or whenever the Lenders are preparing
to fund or cause to be funded an Advance pursuant to a “booking” approval, no
“booking” approval will be issued and no Advance shall be funded if, after
giving effect (without duplication) to all then pending “booking” approvals and
the funding of any then pending Advance or Advances, the Total Credit Line
or
any Sub-Limit would be exceeded.
8. Sale
of Palm Harbor Brand Homes.
Each of
the Borrowers represents and warrants that it is engaged in the business of
selling Palm Harbor Brand Homes. The Borrowers, the Administrative Agent and
the
Lenders intend for each of the Borrowers to sell the Palm Harbor Brand Homes
being financed hereunder, but only in the ordinary course of its business as
each such Borrower normally sells such inventory. Therefore, each of the
Borrowers may sell any unit of Palm Harbor Brand Homes financed hereunder
provided that: (a) no Default or Event of Default exists hereunder, (b) the
price obtained for such item of unit is not less than the unpaid principal
amount of the Advance attributable thereto, (c) the consideration obtained
for
the sale of such unit is cash or such other consideration as the Administrative
Agent (with the approval of the Majority Lenders) shall have approved in writing
and (d) such Borrower holds all of the proceeds of any such sale in trust for,
and promptly remits the unpaid Advance attributable to such unit to, the
Administrative Agent on behalf of the Lenders as provided for in Part 9 of
the
Schedule of Terms and Disclosures attached hereto and that the security interest
provided for herein in such proceeds shall continue in full force and effect
in
favor of Administrative Agent. Other than as provided for in this Section 8,
no
Borrower will sell rent, lease, or otherwise dispose of, or encumber or permit
to be encumbered (other than as provided for herein), any Palm Harbor Brand
Homes that have been financed hereunder.
9. Payment
Terms.
Each
Borrower promises to pay to the Administrative Agent on behalf of the Lenders
the outstanding principal amount of each Advance made hereunder to such
Borrower, together with interest and fees and finance charges in respect
thereof, in each case pursuant to terms and conditions set forth herein
(including, without limitation, the Schedule of Terms and Disclosures attached
hereto). The obligations of each Borrower owing hereunder to the Administrative
Agent and/or each Lender hereunder shall be evidenced by the manual or data
processing records maintained by the Administrative Agent on behalf of itself
and each such Lender and, absent manifest error, shall be binding on the
Borrowers and the Lenders.
Each
Borrower agrees that, with respect to each Advance obtained by it hereunder
in
respect of a unit of Palm Harbor Brand Manufactured Homes, it shall pay to
the
Administrative Agent on behalf of the Lenders on the date that is 360 days
after
the earlier of the Booking Date of such Advance or the “original wholesale
invoice” date in respect of such Advance if such Advance shall have been an
advance outstanding under the Existing Agreement for Wholesale Financing (the
“original wholesale invoice” date in respect of any such advance shall be the
date of the “original wholesale invoice” that supported such advance under the
Existing Agreement for Wholesale Financing) a curtailment equal to 10% of the
original wholesale invoice price in respect of such unit of Palm Harbor Brand
Manufactured Homes being financed by such Advance.
-11-
Each
Borrower agrees that, with respect to each Advance obtained by it hereunder
in
respect of a unit of Palm Harbor Brand Modular Homes, it shall pay to the
Administrative Agent on behalf of the Lenders (a) on the date that is 540 days
after the Booking Date of such Advance a curtailment equal to 5% of the original
wholesale invoice price in respect of such unit of Palm Harbor Brand Modular
Homes being financed by such Advance and (b) on the last day of each calendar
quarter occurring after such 540th day, further curtailments each equal to
5% of
the original wholesale invoice price in respect of such unit of Palm Harbor
Brand Modular Homes being financed by such Advance until the full principal
amount of such Advance shall have been paid in full.
Each
Borrower will immediately pay to the Administrative Agent on behalf of the
Lenders the outstanding principal indebtedness owed hereunder for each Advance
made to it in respect of a unit of Palm Harbor Brand Manufactured Homes on
the
earliest occurrence of any of the following events: (i) when such unit of Palm
Harbor Brand Manufactured Homes is lost, stolen or materially damaged; (ii)
when
such unit of Palm Harbor Brand Manufactured Homes is sold, transferred, rented,
leased, or otherwise disposed of, provided that, if such unit of Palm Harbor
Brand Manufactured Homes is sold pursuant to a Contract Pending, such sale
shall
not, for purposes of this subclause (ii), be deemed a “sale” until such Contract
Pending is consummated and closed unless (A) such Contract Pending is not
consummated and closed within 90 days of its being created or (B) such Contract
Pending is not an Eligible Contract Pending at its time of creation or ceases
at
any time thereafter to be an Eligible Contract Pending, in either of which
cases
such unit of Palm Harbor Brand Manufactured Homes shall be deemed to have been
immediately sold under this sub-clause (ii), and (iii) the date that is 540
days
after the earlier of the Booking Date of such Advance or the “original wholesale
invoice” date in respect of such Advance if such Advance shall have been an
advance outstanding under the Existing Agreement for Wholesale Financing (the
“original wholesale invoice” date in respect of any such advance shall be the
date of the “original wholesale invoice” that supported such advance under the
Existing Agreement for Wholesale Financing). Without limiting the foregoing,
(1)
if, at any time, the aggregate outstanding principal amount of Over 360-Day
Manufactured Home Advances exceeds 25% of the aggregate outstanding principal
amount of all Manufactured Home Advances (such excess amount is referred to
herein as the “Over
360-Day Excess Amount”),
the
Borrowers shall, upon receipt of a written demand from the Administrative Agent,
immediately prepay to the Administrative Agent on behalf of the Lenders such
Over 360-Day Excess Amount and (2) except with respect to any Advances hereunder
that were outstanding under the Existing Agreement for Wholesale Financing
and
which were made at a 100% advance rate under the Existing Agreement for
Wholesale Financing, if, at any time, the Administrative Agent reasonably
determines that the aggregate outstanding principal amount of all Manufactured
Home Advances exceeds 90% of the aggregate original wholesale invoice prices
of
the units of Palm Harbor Brand Manufactured Homes financed hereunder, the
Borrowers will immediately upon demand from the Administrative Agent pay to
the
Administrative Agent on behalf of the Lenders the difference between such
aggregate outstanding principal amount and 90% of such aggregate wholesale
invoice prices of such units.
-12-
Each
Borrower will immediately pay to the Administrative Agent on behalf of the
Lenders the outstanding principal indebtedness owed hereunder for each Advance
made to it in respect of a unit of Palm Harbor Brand Modular Homes on the
earliest occurrence of any of the following events: (aa) when such unit of
Palm
Harbor Brand Modular Homes is lost, stolen or materially damaged; (bb) when
such
unit of Palm Harbor Brand Modular Homes is sold, transferred, rented, leased,
or
otherwise disposed of or (cc) the date that is 1080 days after the Booking
Date
of such Advance.
If
any
Borrower from time to time is required to make immediate payment to the
Administrative Agent on behalf of the Lenders of any past due obligation
discovered during any audit performed under Section 21 below, or at any other
time, such Borrower agrees that acceptance of such payment by the Administrative
Agent shall not be construed to have waived or amended any of the terms
hereunder. The proceeds of any Palm Harbor Brand Home financed hereunder
received by any Borrower will be held by such Borrower in trust for the benefit
of the Administrative Agent and the Lenders, for application as provided in
this
Agreement. Each such Borrower will send all payments hereunder to the
Administrative Agent as provided for in Part 9 on the Schedule of Terms and
Disclosures. The Administrative Agent, on behalf of itself and the Lenders
and
for its record keeping purposes, shall, subject to written direction from the
Majority Lenders, apply payments received from a Borrower hereunder as follows:
(AA) first, to pay all unpaid fees and expenses owing to the Administrative
Agent, (BB) second, to pay interest, fees and other finance charges of such
Borrower, (CC) third, to pay the outstanding principal amount of Advances of
such Borrower, (DD) fourth, to pay the obligations of the other Borrowers
hereunder, regardless, in any case, of such Borrower’s or such other Borrowers’
instructions. The Administrative Agent shall, subject to direction from the
Majority Lenders, apply all payments of principal of Advances of a Borrower
in
respect of Palm Harbor Brand Manufactured Homes under sub-clause (CC) or (DD)
above as follows: first, in respect of curtailments, against the oldest
(earliest) wholesale invoices for Palm Harbor Brand Manufactured Homes financed
by such Advances hereunder and, in any event, second, to all other principal
payments of Advances of a Borrower in respect of Palm Harbor Brand Manufactured
Homes which are sold, lost, stolen, damaged, rented, leased, or otherwise
disposed of, as provided above, or unaccounted for under Section 21 hereof.
The
Administrative Agent shall, subject to direction from the Majority Lenders,
apply all payments of principal of Advances of a Borrower in respect of Palm
Harbor Brand Modular Homes under sub-clause (CC) or (DD) above as follows:
first, in respect of curtailments, against the oldest (earliest) wholesale
invoices for Palm Harbor Brand Modular Homes financed by such Advances hereunder
and, in any event, second, to all other principal payments of Advances of a
Borrower in respect of Palm Harbor Brand Modular Homes which are sold, lost,
stolen, damaged, rented, leased, or otherwise disposed of, as provided above,
or
unaccounted for under Section 21 hereof. Any third party discount, rebate,
bonus
or credit granted to any Borrower for any Palm Harbor Brand Homes financed
hereunder will not reduce the indebtedness of such Borrower owing hereunder
to
the Lenders (such indebtedness being reduced only when the Administrative Agent
on behalf of the Lenders has received payment therefor in cash).
-13-
Each
Borrower will: (x) pay the Administrative Agent on behalf of the Lenders even
if
any Palm Harbor Brand Homes financed hereunder is defective or fails to conform
to any warranties extended by any third party; (y) not assert against either
the
Administrative Agent or any Lender any claim or defense such Borrower has
against any third party; and (z) indemnify and hold each of the Administrative
Agent and the Lenders harmless against all claims and defenses asserted by
any
buyer of any Palm Harbor Brand Home financed hereunder relating to the condition
of, or any representations regarding, any of the same. Each Borrower waives
all
rights of offset and counterclaims such Borrower may have against anyone or
more
of the Administrative Agent and/or the Lenders.
Anything
contained herein to the contrary notwithstanding, if a Default or Event of
Default shall exist, the Administrative Agent on behalf of the Lenders may,
at
the discretion of the Majority Lenders and in such order as the Majority Lenders
shall determine in their sole discretion, apply the payments set forth in
subclauses (AA), (BB), (CC) and (DD) above first to the Senior Component of
the
Total Credit Line and then to the Junior Component of the Total Credit Line.
10. Calculation
of Charges and Fees.
Each
Borrower will pay finance charges to the Administrative Agent on behalf of
the
Lenders on the outstanding principal amount of the Advances in respect of Palm
Harbor Brand Manufactured Homes which have been made by the Lenders to or for
the benefit of such Borrower at the following rates: (a) with respect to each
such Advance that has been outstanding 540 days or less from the earlier of
the
Booking Date in respect thereof or the “original wholesale invoice” date in
respect thereof if such Advance shall have been an advance outstanding under
the
Existing Agreement for Wholesale Financing (the “original wholesale invoice”
date in respect of any such advance shall be the date of the “original wholesale
invoice” that supported such advance under the Existing Agreement for Wholesale
Financing), the per annum rate of interest equal to the Prime Rate from time
to
time in effect and (b) with respect to each such Advance that has been
outstanding for more than 540 days from the earlier of the Booking Date in
respect thereof or the “original wholesale invoice” date in respect thereof if
such Advance shall have been an advance outstanding under the Existing Agreement
for Wholesale Financing (the “original wholesale invoice” date in respect of any
such advance shall be the date of the “original wholesale invoice” that
supported such advance under the Existing Agreement for Wholesale Financing),
the per annum rate of interest equal to the sum of the Prime Rate from time
to
time in effect plus 3.00%.
Each
Borrower will pay finance charges to the Administrative Agent on behalf of
the
Lenders on the outstanding principal amount of the Advances in respect of Palm
Harbor Brand Modular Homes which have been made by the Lenders to or for the
benefit of such Borrower at the following rates: (i) with respect to each such
Advance that has been outstanding 1080 days or less from the Booking Date in
respect thereof, the per annum rate of interest equal to the Prime Rate from
time to time in effect and (ii) with respect to each such Advance that has
been
outstanding for more than 1080 days from the Booking Date in respect thereof,
the per annum rate of interest equal to the sum of the Prime Rate from time
to
time in effect plus 3.00%.
-14-
Interest
shall accrue on any past due principal, interest or other payment required
to be
paid hereunder on and after the due date thereof at a per annum rate of interest
equal to the sum of the Prime Rate from time to time in effect plus 3.00%.
The
finance charges based on the rates set forth above attributable to any Advance
will: (A) be computed based on a 360 day year; (B) have payments in respect
thereof recognized by the Administrative Agent in accordance with the
Administrative Agent’s payment recognition policy and the Administrative Agent
will apply payments received in accordance with the terms of this Agreement.
Borrower will also pay to the Administrative Agent $100 for each check returned
unpaid for insufficient funds (an “NSF
check”)
(such
$100 payment repays the Administrative Agent’s estimated administrative costs;
it does not waive the Default or Event of Default caused by the NSF check).
The
annual percentage rate of the finance charges relating to any Advance hereunder
will be calculated from the Booking Date of such Advance regardless of any
period during which any finance charge subsidy shall be paid or payable by
any
third party. Each Borrower acknowledges that the Administrative Agent and the
Lenders intend to strictly conform to the applicable usury laws governing this
Agreement. Regardless of any provision contained herein or in any other document
executed or delivered in connection herewith, neither the Administrative Agent
nor any Lender shall be deemed to have contracted for, charged or be entitled
to
receive, collect or apply as interest on this Agreement (whether termed interest
herein or deemed to be interest by judicial determination or operation of law),
any amount in excess of the maximum amount allowed by applicable law, and,
if
any Lender ever receives, collects or applies as interest any such excess,
such
amount which would be excessive interest will be applied first to the reduction
of the unpaid principal balances of Advances under this Agreement made by such
Lender, and, second, any remaining excess will be paid to the applicable
Borrower. In determining whether or not the interest paid or payable under
any
specific contingency exceeds the highest lawful rate, each Borrower,
Administrative Agent and the Lenders shall, to the maximum extent permitted
under applicable law: (A) characterize any non-principal payment (other than
payments which are expressly designated as interest payments hereunder) as
an
expense or fee rather than as interest; (B) exclude voluntary pre-payments
and
the effect thereof; and (C) spread the total amount of interest throughout
the
entire term of this Agreement and the Advances so that the interest rate is
uniform throughout such term.
11. Billing
Statement.
The
Administrative Agent will send each Borrower (c/o PHHI as their respective
attorney-in-fact) a monthly billing statement identifying all charges due on
such Borrower’s account hereunder. The Administrative Agent agrees, to the
extent practicable, to provide to PHHI a single unified monthly billing
statement for all Borrowers. The charges specified on each billing statement
will be: (a) due and payable in full immediately on receipt; and (b) an account
stated, unless the Administrative Agent receives such Borrower’s written
objection thereto within 15 days after it is received by such Borrower. If
the
Administrative Agent does not receive, by the 25th day of any given month,
payment of all finance charges accrued to a Borrower’s account maintained with
the Administrative Agent during the immediately preceding month, such Borrower
will (to the extent allowed by law) pay the Administrative Agent on behalf
of
the Lenders a late fee (“Late
Fee”)
equal
to the greater of $5 or 5% of the amount of such finance charges (payment of
the
Late Fee does not waive the Default or Event of Default caused by the late
payment thereof). The Administrative Agent may adjust the billing statement
at
any time to conform to applicable law and this Agreement. All payments hereunder
or pursuant to any monthly billing statement shall be made payable to the
Administrative Agent on behalf of itself and the Lenders and delivered to the
Administrative Agent as set forth in Part 9 of the Schedules of Terms and
Disclosures attached hereto (or as the Administrative Agent may otherwise
instruct the Borrowers in writing reasonably in advance of any such payment).
-15-
12. Joint
and Several Obligations.
Each
Borrower shall be jointly and severally liable hereunder with each other
Borrower for the obligations of each such other Borrower hereunder, each
Borrower shall be obligated and responsible for the performance of each other
Borrower under this Agreement, and a default by any Borrower hereunder shall
be
a default by each other Borrower hereunder. Each Borrower waives: (a) any right
of contribution from any other Borrower until all of the obligations have been
fully and finally paid; (b) any right to require the Administrative Agent or
any
Lender to institute any action or suit or to exhaust rights and remedies of
the
Administrative Agent or such Lender against any Collateral or any Borrower
before proceeding against such Borrower or any other Borrower; and (c) any
obligation of the Administrative Agent or any Lender to marshal any assets
in
favor of any Borrower. Each Borrower consents that the Administrative Agent
and
each Lender may, without in any manner affecting such Borrower’s joint and
several liability for any obligations hereunder: (i) extend in whole or in
part
(by renewal or otherwise), modify, accelerate, change or release any obligation
of any other Borrower; (ii) sell, release, surrender, modify, impair, exchange,
substitute or extend the duration or the time for the performance or payment
of
any and all Collateral or other property, of any nature and from whomsoever
received, held by the Administrative Agent or any Lender as security for the
payment or performance of any obligations to the Administrative Agent or any
Lender of any Borrower or any other obligations of any Borrower; and (iii)
settle, adjust or compromise any of claims of the Administrative Agent or any
Lender against any Borrower.
Each
Borrower is part of an integrated family of companies, and, accordingly each
Borrower desires to have the availability of one common credit facility instead
of separate credit facilities, and each Borrower has requested that the Lenders
extend such a common credit facility. Each Borrower acknowledges that the
Lenders will be lending against, and relying on a lien upon, its inventory
and
proceeds thereof and other collateral and credit enhancements even though the
proceeds of any particular Advance made hereunder may not be advanced directly
to such Borrower, and that such Borrower will nevertheless benefit by the making
of all such Advances by the Lenders and the availability of a single credit
facility of a size greater than each could independently warrant.
-16-
13. Grant
of Purchase Money Security Interest.
In
order to secure repayment of each Advance made by Lender to or for the benefit
of PHHLP the proceeds of which enabled PHHLP to acquire rights in or the use
of
a unit or units of Palm Harbor Brand Homes or to refinance indebtedness which
was itself used by PHHLP to acquire rights in or the use of such unit or units
of Palm Harbor Brand Homes and to also secure the payment of all finance charges
and interest accrued thereon and all fees, charges and expenses hereunder in
respect thereof as well as all other obligations of PHHLP hereunder or in any
other agreement entered into in connection herewith, PHHLP hereby grants to
the
Administrative Agent on behalf of the Lenders a security interest in such unit
or units of Palm Harbor Brand Homes (which the parties hereto intend to be
a
purchase money security interest) and all proceeds thereof (including, without
limitation, any Contracts Pending in respect thereof), to secure repayment
of
such Advance and all interest and finance charges accrued thereon and fees,
charges and expenses in respect thereof and other obligations of PHHLP hereunder
(collectively, the “PHHLP
Purchase Money Collateral”).
It is
intended by this Section 13 that inventory so acquired by PHHLP, together with
the proceeds thereof, will not serve as collateral for any other indebtedness
or
obligations other than as expressly provided for in this Agreement. PHHLP
acknowledges that the Administrative Agent on behalf of the Lenders shall be
entitled to a purchase money security interest in each of the aforesaid units
of
Palm Harbor Brand Homes and the proceeds thereof and such items are and shall
be
purchase-money collateral.
In
order
to secure repayment of each Advance made by Lender to or for the benefit of
PHMI
the proceeds of which enabled PHMI to acquire rights in or the use of a unit
or
units of Palm Harbor Brand Homes or to refinance indebtedness which was itself
used by PHMI to acquire rights in or the use of such unit or units of Palm
Harbor Brand Homes and to also secure the payment of all interest and finance
charges accrued thereon and all fees, charges and expenses hereunder in respect
thereof as well as all other obligations of PHMI hereunder or in any other
agreement entered into in connection herewith, PHMI hereby grants to the
Administrative Agent on behalf of the Lenders a security interest in such unit
or units of Palm Harbor Brand Homes (which the parties hereto intend to be
a
purchase money security interest) and all proceeds thereof (including, without
limitation, any Contracts Pending in respect thereof), to secure repayment
of
such Advance and all interest and finance charges accrued thereon and fees,
charges and expenses in respect thereof and other obligations of PHMI hereunder
(collectively, the “PHMI
Purchase Money Collateral”).
It is
intended by this Section 13 that inventory so acquired by PHMI, together with
the proceeds thereof, will not serve as collateral for any other indebtedness
or
obligations other than as expressly provided for in this Agreement. PHMI
acknowledges that the Administrative Agent on behalf of the Lenders shall be
entitled to a purchase money security interest in each of the aforesaid units
of
Palm Harbor Brand Homes and the proceeds thereof and such items are and shall
be
purchase-money collateral.
-17-
14. Grant
of Security Interest.
In
order to secure the payment and performance by PHHI of all present and future
indebtedness and obligations of PHHI hereunder or in any other agreement entered
into in connection herewith, whether direct or indirect, primary or secondary,
absolute or contingent, or otherwise, including but not limited to the Advances
owing from PHHI, the payment of all interest and finance charges accrued thereon
and all fees, charges and expenses hereunder in respect thereof, PHHI hereby
grants to the Administrative Agent on behalf of the Lenders a security interest
in all of its right, title and interest in and to (a) all of its inventory
(other than raw materials and work-in-process), wherever located, in which
PHHI
now or hereafter has rights, including, but not limited to, (i) all manufactured
homes and installed or related appliances or products; all present and future
attachments, accessories and accessions thereto; all spare parts, replacements,
substitutions and exchanges therefor; all trade-ins relating thereto; all
fixtures in respect thereof; and all instruments, accounts and chattel paper
relating thereto and (ii) all modular homes and installed or related components,
appliances or products; all present and future attachments, accessories and
accessions thereto; all spare parts, replacements, substitutions and exchanges
therefor; all fixtures in respect thereof; and all instruments, accounts and
chattel paper relating thereto; (b) all other accounts of PHHI; (c) all books
and records of PHHI relating to or referring to any of the foregoing; and (d)
all proceeds of any of the foregoing (collectively, the “PHHI
General Collateral”).
In
order
to secure the payment and performance by PHMLP of all present and future
indebtedness and obligations of PHMLP hereunder or in any other agreement
entered into in connection herewith, whether direct or indirect, primary or
secondary, absolute or contingent, or otherwise, including but not limited
to
the Advances owing from PHMLP, the payment of all interest and finance charges
accrued thereon and all fees, charges and expenses hereunder in respect thereof,
PHMLP hereby grants to the Administrative Agent on behalf of the Lenders a
security interest in all of its right, title and interest in and to (A) all
of
its inventory (other than raw materials and work-in-process), wherever located,
in which PHMLP now or hereafter has rights, including, but not limited to,
(1)
manufactured homes and installed or related appliances or products; all present
and future attachments, accessories and accessions thereto; all spare parts,
replacements, substitutions and exchanges therefor; all trade-ins relating
thereto; all fixtures in respect thereof; and all instruments, accounts and
chattel paper relating thereto and (2) all modular homes and installed or
related components, appliances or products; all present and future attachments,
accessories and accessions thereto; all spare parts, replacements, substitutions
and exchanges therefor; all fixtures in respect thereof; and all instruments,
accounts and chattel paper relating thereto; (B) all other accounts of PHMLP;
(C) all books and records of PHMLP relating to or referring to any of the
foregoing; and (D) all proceeds of any of the foregoing (collectively, the
“PHMLP
General Collateral”).
In
order
to secure the payment and performance by PHHLP of all present and future
indebtedness and obligations of PHHLP hereunder or in any other agreement
entered into in connection herewith, whether direct or indirect, primary or
secondary, absolute or contingent, or otherwise, including but not limited
to
the Advances owing from PHHLP, the payment of all interest and finance charges
accrued thereon and all fees, charges and expenses hereunder in respect thereof,
PHHLP hereby grants to the Administrative Agent on behalf of the Lenders a
security interest in all of its right, title and interest in and to (AA) all
of
its inventory (other than raw materials and work-in-process), wherever located,
in which PHHLP now or hereafter has rights, including, but not limited to,
(x)
manufactured homes and installed or related appliances or products; all present
and future attachments, accessories and accessions thereto; all spare parts,
replacements, substitutions and exchanges therefor; all trade-ins relating
thereto; all fixtures in respect thereof; and all instruments, accounts and
chattel paper relating thereto and (y) all modular homes and installed or
related components, appliances or products; all present and future attachments,
accessories and accessions thereto; all spare parts, replacements, substitutions
and exchanges therefor; all fixtures in respect thereof; and all instruments,
accounts and chattel paper relating thereto; (BB) all other accounts of PHHLP;
(CC) all books and records of PHHLP relating to or referring to any of the
foregoing; and (DD) all proceeds of any of the foregoing (collectively, the
“PHHLP
General Collateral”).
-18-
In
order
to secure the payment and performance by PHMI of all present and future
indebtedness and obligations of PHMI hereunder or in any other agreement entered
into in connection herewith, whether direct or indirect, primary or secondary,
absolute or contingent, or otherwise, including but not limited to the Advances
owing from PHMI, the payment of all interest and finance charges accrued thereon
and all fees, charges and expenses hereunder in respect thereof, PHMI hereby
grants to the Administrative Agent on behalf of the Lenders a security interest
in all of its right, title and interest in and to (AAA) all of its inventory
(other than raw materials and work-in-process), wherever located, in which
PHMI
now or hereafter has rights, including, but not limited to, (x) manufactured
homes and installed or related appliances or products; all present and future
attachments, accessories and accessions thereto; all spare parts, replacements,
substitutions and exchanges therefor; all trade-ins relating thereto; all
fixtures in respect thereof; and all instruments, accounts and chattel paper
relating thereto and (y) all modular homes and installed or related components,
appliances or products; all present and future attachments, accessories and
accessions thereto; all spare parts, replacements, substitutions and exchanges
therefor; all fixtures in respect thereof; and all instruments, accounts and
chattel paper relating thereto; (BBB) all other accounts of PHMI; (CCC) all
books and records of PHMI relating to or referring to any of the foregoing;
and
(DDD) all proceeds of any of the foregoing (collectively, the “PHMI
General Collateral”).
PHHLP
Purchase Money Collateral, PHMI Purchase Money Collateral, PHHI General
Collateral, PHMLP General Collateral, PHHLP General Collateral and PHMI General
Collateral are referred to herein, collectively, as the “Collateral.”
For
the avoidance of doubt, the Collateral shall secure all obligations of all
of
the Borrowers hereunder or in any other agreements entered into by anyone or
more of them in connection herewith. All of terms used in this Section 14 for
which meanings are provided in the Uniform Commercial Code of the applicable
state are used herein with such meanings. The Borrowers shall deliver all
original manufacturer statements of origin in respect of all Palm Harbor Brand
Homes constituting Collateral to the Administrative Agent.
-19-
Borrowers
shall, on or prior to the date hereof, deliver to the Administrative Agent
on
behalf of the Lenders, a cash deposit (the “Cash
Deposit”)
of
$10,000,000 to be held as additional Collateral and hereby grant to the
Administrative Agent on behalf of the Lenders a security interest in the Cash
Deposit and all interest, investments and proceeds in respect thereof to secure
the payment and performance by Borrowers of all present and future indebtedness
and obligations of Borrowers hereunder or in any other agreement entered into
in
connection herewith, whether direct or indirect, primary or secondary, absolute
or contingent, or otherwise, including but not limited to the Advances owing
from anyone or more of the Borrowers, the payment of all interest and finance
charges accrued thereon and all fees, charges and expenses hereunder in respect
thereof. The Cash Deposit shall be held by the Administrative Agent on behalf
of
the Lenders in an account owned by and under the control of the Administrative
Agent and may be commingled with other funds of the Administrative Agent. The
Borrowers shall have no access to the Cash Deposit or the right to direct any
investments thereof. The Administrative Agent is under no obligation to invest
any of the Cash Deposit but may do so in its sole discretion. The Borrowers
are
entitled to no proceeds or interest earned in respect of the investment of
the
Cash Deposit by the Administrative Agent (all of such proceeds to be retained
by
the Administrative Agent in consideration of its undertaking to pay interest
to
the Borrowers on the Cash Deposit as set forth in the next sentence). The
Administrative Agent agrees to pay to the Borrowers, quarterly in arrears for
so
long as no Event of Default shall exist, interest on the balance of the Cash
Deposit held by the Administrative Agent accrued at the Prime Rate from time
to
time in effect (based on the actual days that the Cash Deposit is held by the
Administrative Agent and a year of 365 days). When, at any time, the aggregate
outstanding amount of the Advances shall be less than $50,000,000 and provided
that no Default or Event of Default shall then exist, the Administrative Agent
shall pay to the Borrowers an amount of the Cash Deposit such that the remaining
balance of the Cash Deposit shall equal $5,000,000; such payment to be made
reasonably promptly after the aggregate outstanding amount of the Advances
shall
have decreased below the $50,000,000 threshold. Neither the Administrative
Agent
nor the Lenders shall be obligated to make any Advance to anyone or more of
the
Borrowers if, after giving effect thereto, the aggregate outstanding principal
balance of the Advances would exceed $50,000,000 unless the Cash Deposit being
held by the Administrative Agent equals $10,000,000. If the Administrative
Agent
and Lenders shall make Advances to anyone or more of the Borrowers such that
the
$50,000,000 threshold is exceeded without having the full $10,000,0000 as the
Cash Deposit, the Administrative Agent shall deliver a written demand to the
Borrowers to pay to the Administrative Agent sufficient moneys in immediately
available funds such that the Cash Deposit shall equal $10,000,000; the failure
of the Borrowers to do so within five (5) Business Days of receiving such
written demand shall constitute an immediate Event of Default. Any calculation
of the Cash Deposit for purposes of this Agreement shall exclude accrued
interest or investment gains or losses. For the avoidance of doubt, the
Administrative Agent shall have, with respect to the Cash Deposit, all of the
rights and remedies of a secured party under the Uniform Commercial Code of
the
State whose laws govern this Agreement and all of the rights and remedies
otherwise provided for under applicable law.
-20-
15. Collateral
Assurances.
Each
Borrower will execute and deliver all documents necessary to assist in
perfecting the security interests granted herein and will bear all costs of
recording and perfection, including, without limitation, the following: (a)
if
any Borrower shall at any time hold or acquire any promissory notes or tangible
chattel paper as proceeds of Collateral, such Borrower shall, if requested
by
the Administrative Agent at the direction of the Majority Lenders, forthwith
endorse, assign and deliver the same to the Administrative Agent, accompanied
by
such instruments of transfer or assignment duly executed in blank as the
Administrative Agent may from time to time specify, (b) if any Collateral is
at
any time in the possession of a bailee (other than inventory being shipped
or
transported by a Borrower in the ordinary course of business of such Borrower),
the applicable Borrower shall promptly notify the Administrative Agent thereof
and, at the request of the Administrative Agent as directed by the Majority
Lenders, shall promptly obtain an acknowledgement from the bailee, in form
and
substance satisfactory to the Administrative Agent, that the bailee holds such
Collateral for the benefit of the Administrative Agent, and that such bailee
agrees to comply, without further consent of such Borrower, with instructions
from the Administrative Agent as to such Collateral, (c) if any Borrower at
any
time holds or acquires an interest in any electronic chattel paper as proceeds
of Collateral, such Borrower shall promptly notify the Administrative Agent
thereof and, at the request of the Administrative Agent as directed by the
Majority Lenders, such Borrower shall take such action as the Administrative
Agent may reasonably request to vest in the Administrative Agent control of
such
electronic chattel paper, (d) the preparation and recordation of any fixture
filings with respect to any of the Collateral that the Administrative Agent
requests to be prepared and recorded (together with any costs or expenses in
respect of UCC and lien searches in respect thereof), (e) the preparation and
recordation of any Texas Inventory Finance Security Forms with the Texas
Department of Housing and Community Affairs that the Administrative requests
to
be prepared and recorded (together with all “TIFF” searches in respect thereof)
and (f) each Borrower further agrees, at the request of the Administrative
Agent
to, where appropriate, comply with any provision of any statute, regulation
or
treaty of the United States of America or any State thereof as to any Collateral
if compliance with such provision is a condition to attachment, perfection
or
priority of, or ability of the Administrative Agent to enforce, the
Administrative Agent’s security interest in such Collateral, to obtain
governmental and other third party waivers, consents and approvals in form
and
substance satisfactory to Administrative Agent, and to obtain waivers from
mortgagees and landlords in form and substance satisfactory to the
Administrative Agent.
Each
Borrower hereby irrevocably authorizes the Administrative Agent at any time
and
from time to time to file in any filing office in any Uniform Commercial Code
jurisdiction any initial financing statements and amendments thereto (including,
without limitation, any fixture filings and any Texas Inventory Finance Security
Forms to be filed with the Texas Department of Housing and Community Affairs)
that (aa) cover the Collateral, and (bb) provide any other information required
by part 5 of Article 9 of the Uniform Commercial Code of the State of Georgia,
or such other jurisdiction, for the sufficiency or filing office acceptance
of
any financing statement or amendment, including (i) whether such Borrower is
an
organization, the type of organization and any organizational identification
number issued to such Borrower and, (ii) in the case of a financing statement
filed as a fixture filing, a sufficient description of real property to which
the Collateral relates. Each Borrower agrees to furnish any such information
to
the Administrative Agent promptly upon the Administrative Agent’s request. Each
Borrower also ratifies its authorization for the Administrative Agent to have
filed in any Uniform Commercial Code jurisdiction any like initial financing
statements or amendments thereto if filed prior to the date hereof or filed
in
connection with the Existing Agreement for Wholesale Financing.
-21-
16. Inventory
Collateral to Remain Personal Property.
Each
Borrower agrees that the Palm Harbor Brand Homes financed under this Agreement
shall at all times remain personal property and shall not become affixed to
or
form a part of any real estate except as provided for in Part 10 of the Schedule
of Terms and Disclosures.
17. Affirmative
Undertakings, Warranties and Representations.
Each
Borrower warrants and represents to, and covenants and agrees with, the
Administrative Agent and each of the Lenders that: (a) such Borrower has good
title to all of the Collateral of such Borrower; (b) except as provided for
in
Part 14 on the Schedule of Terms and Disclosures attached hereto, the security
interest in the Collateral of such Borrower financed hereunder is not now and
will not become subordinate to the security interest, lien, encumbrance or
claim
of any other person; (c) such Borrower will deliver to the Administrative Agent
immediately upon each request for an Advance from such Borrower, and
Administrative Agent may retain, each original certificate of title or
manufacturer statement of origin issued for Palm Harbor Brand Homes of such
Borrower financed hereunder and such Borrower will deliver to the Administrative
Agent all original certificates of title and statements of origin in respect
of
any other Collateral of such Borrower; (d) such Borrower will at all times
be
duly organized, existing, and in good standing in its state of organization
and
will at all times be in good standing, qualified and licensed to do business
in
each state, county, or parish, in which the nature of its business or property
so requires; (e) such Borrower has the right and is duly authorized to enter
into this Agreement; (f) such Borrower’s execution of this Agreement does not
constitute a breach of any agreement to which such Borrower is now or hereafter
becomes bound; (g) there are no actions or proceedings pending or, to the best
of the knowledge of such Borrower, threatened against such Borrower which might
result in any material adverse change in such Borrower’s financial or business
condition; (h) such Borrower will maintain the Collateral of such Borrower
in
good condition and repair; (i) such Borrower has duly filed and will duly file
all tax returns required by law; (j) such Borrower has paid and will pay prior
to delinquency all taxes, levies, assessments and governmental charges of any
nature; (k) such Borrower will keep and maintain all of its books and records
pertaining to its Collateral at its principal place of business designated
in
this Agreement; (I) such Borrower will promptly supply the Administrative Agent
with such information concerning it as the Administrative Agent hereafter may
reasonably request; (m) all Collateral of such Borrower will be kept at such
Borrower’s principal place of business listed above, and such other locations,
if any, of which such Borrower has notified Administrative Agent in writing
or
as listed in Parts 3, 4 or 5 on the Schedule of Terms and Disclosures attached
hereto (which may be amended or modified by such Borrower by written notice(s)
to the Administrative Agent as provided for in Section 44 below); (n) such
Borrower will give the Administrative Agent thirty (30) days prior written
notice of any change in Borrower’s identity, name, form of business
organization, ownership, management, principal place of business, Collateral
locations or other business locations, and before moving any books and records
to any other location; (0) such Borrower will observe and perform all matters
required by any lease, license, concession or franchise forming part of its
Collateral in order to maintain all the rights of the Administrative Agent
thereunder; (p) such Borrower will advise the Administrative Agent of the
commencement of material legal proceedings against such Borrower with respect
to
which monetary damages, individually, in excess of $1,000,000 could be recovered
and/or have been prayed for; (q) such Borrower will comply with all applicable
laws and will conduct its business in a manner which preserves and protects
its
Collateral and the earnings and incomes thereof, (r) that each wholesale invoice
submitted to the Administrative Agent by such Borrower as a request for the
financing of a Palm Harbor Brand Home is true and correct and (s) Textron
Financial Corporation has acted as arranger in connection with the facility
provided for in this Agreement. PHMLP represents and warrants that it sells,
and
agrees that it will continue to sell, Palm Harbor Brand Homes manufactured
by it
principally through PHHLP rather than directly to consumers and that the
financing in respect of such Palm Harbor Brand Homes will be principally
obtained hereunder through PHHLP.
-22-
18. Negative
Covenants.
Subject
to Section 8 hereof with respect to Palm Harbor Brand Homes financed hereunder,
no Borrower will at any time (without the Majority Lenders’ prior written
consent, which consent will not be unreasonably withheld): (a) other than in
the
ordinary course of its business, sell, lease or otherwise dispose of or transfer
any of the Collateral; (b) other than in the ordinary course of its business,
rent, lease, demonstrate, consign, or use any of the Collateral; (c) pledge
or
encumber any of the Collateral (except as provided for hereunder); or (d) merge
or consolidate with another entity or otherwise change its legal structure
or
amalgamate.
19. Insurance.
Each
Borrower will immediately notify the Administrative Agent of any material loss,
theft or damage to any Collateral which, individually or in the aggregate
exceeds $1,000,000, provided that, with respect to any unit of Palm Harbor
Brand
Homes financed hereunder, each Borrower will give the Administrative Agent
prompt notice of any loss, theft or damage to such unit. Each Borrower will
keep
its respective Collateral insured for not less than the lesser of (a)
$50,000,000 and (b) its full insurable value under, in each case, an “all risk”
property insurance policy with a company acceptable to Administrative Agent,
naming Administrative Agent on behalf of the Lenders as a “lender loss-payee”
and containing standard lender’s loss payable and termination provisions. Each
Borrower will provide the Administrative Agent with written evidence of such
property insurance coverage and lender’s loss-payee endorsement. Each Borrower
hereby agrees that Administrative Agent may act as such Borrower’s
representative in making, adjusting and settling claims under or canceling
any
insurance policies covering the Collateral, and endorsing such Borrower’s name
on any drafts, checks or other instruments drawn by an insurer of the
Collateral. Notwithstanding the foregoing, each Borrower directs all insurers
to
pay all insurance proceeds solely to the order of Administrative Agent for
application to such Borrower’s indebtedness. The Administrative Agent may, at
its option, apply any such proceeds received by it as provided for hereunder
with respect to any disposed-of Palm Harbor Brand Homes under Section 9 above
or, if such proceeds do not relate to Palm Harbor Brand Homes financed
hereunder, as the Administrative Agent may be directed by the Majority Lenders
in their sole discretion. Each Borrower shall indemnify, save and hold harmless
each of the Administrative Agent and the Lenders in respect of all claims,
demands, suits and expenses on account of bodily injury, sickness or disease,
including death, sustained by any person or persons, injury to or the
destruction of property, and any and all other losses, accidents, claims, suits
and expenses whatsoever and howsoever arising or incurred in the course of
the
business activities carried on by such Borrower.
-23-
20. Financial
Statements.
Borrowers will deliver to Administrative Agent and to each Lender: (a) within
ninety (90) days after the end of each fiscal year of PHHI, a reasonably
detailed audited consolidated balance sheet as of the last day of such fiscal
year and a reasonably detailed audited consolidated income statement covering
Borrowers’ and their consolidated subsidiaries’ operations for such fiscal year,
in a form reasonably satisfactory to the Administrative Agent; (b) within
forty-five (45) days after the end of each of the fiscal quarters of PHHI,
a
reasonably detailed consolidated balance sheet as of the last day of such
quarter and a consolidated income statement covering Borrowers’ and their
consolidated subsidiaries’ operations for such quarter, in a form reasonably
satisfactory to the Administrative Agent; and (c) within ten (10) days after
request therefor by the Administrative Agent, any other report reasonably
requested by the Administrative Agent relating to the Collateral or the
financial condition of any Borrower, Each Borrower warrants and represents
to
the Administrative Agent and each of the Lenders that all financial statements
and information relating to the Borrowers or any consolidated subsidiary thereof
which have been or may hereafter be delivered by any Borrower are true and
correct and have been and will be prepared in accordance with generally accepted
accounting principles consistently applied and, with respect to such previously
delivered statements or information, there has been no material adverse change
in the financial or business condition of any of the Borrowers since the
submission to the Administrative Agent, either as of the date of delivery,
or,
if different, the date specified therein, and each Borrower acknowledges the
reliance of the Administrative Agent and the Lenders thereon.
21. Reviews.
Each
Borrower grants the Administrative Agent an irrevocable license to enter such
Borrower’s business locations during normal business hours without notice to
such Borrower to: (a) account for and inspect all Collateral of such Borrower;
(b) verify such Borrower’s compliance with this Agreement; and (c) examine and
copy such Borrower’s books and records related to the Collateral of such
Borrower. Each Borrower agrees to provide the Administrative Agent with such
information as the Administrative Agent reasonably requests to substantiate
such
Borrower’s wholesale invoice price determinations and to allow the
Administrative Agent reasonable access to such Borrowers’ books, records and
personnel from time to time during normal business hours to verify such
information. Without limiting the foregoing and in addition thereto, in order
to
assess each Borrower’s compliance with the provisions of this Agreement, the
Administrative Agent shall be entitled to audit or cause to be audited the
inventory (and any Contract Pendings in respect thereof) of such Borrower as
frequently as the Administrative Agent considers it prudent to do so (in each
case, an “Audit”).
During each calendar quarter for so long as this Agreement is in effect and
no
Default or Event of Default shall be in existence, the Administrative Agent
shall conduct Audits such that the Administrative Agent shall have reviewed
all
Palm Harbor Brand Homes financed hereunder (and any Contract Pendings in respect
thereof). If a Default or Event of Default shall exist, the Administrative
Agent
may, in its sole discretion, conduct Audits as frequently as it deems necessary.
Each Borrower shall cooperate fully with Administrative Agent in connection
with
each Audit and, if requested by the Administrative Agent, shall remit to
Administrative Agent an audit fee (the “Audit
Fee”)
for
each Audit conducted in the amount of $250 per location together with all other
out-of-pocket costs of the Administrative Agent in respect of such Audit. If,
as
a result of any Audit, it shall be determined by the Administrative Agent that
a
Palm Harbor Brand Home financed hereunder is not in the possession of a Borrower
on whose behalf an Advance was made hereunder and that is still outstanding
(other than with respect to a Contract Pending) or that a Contract Pending
in
respect of such unit is not an Eligible Contract Pending or has been outstanding
for more than 90 days and has not closed and been consummated, then such
Borrower shall immediately, upon receipt of a written demand therefor from
the
Administrative Agent, pay to the Administrative Agent for the benefit of the
Lenders the outstanding unpaid principal balance of such Advance. This
Agreement, as provided for in Section 9 above, is a “Pay-As-Sold” facility and,
at the election of the Administrative Agent, no payment as provided in the
preceding sentence shall remedy or cure any Default or Event of Default that
may
have arisen hereunder as a result of the sale or other disposition of a Palm
Harbor Brand Home financed hereunder without the outstanding principal balance
of the Advance allocated thereto having been paid in full.
-24-
22. Default.
22.1 Immediate
Default.
The
Borrowers will be in immediate default under this Agreement (and an Event of
Default shall exist hereunder at such time) if: (a) any Borrower fails to pay
any portion of such Borrower’s obligations hereunder when due and payable; (b)
any Borrower fails to pay any portion of such Borrower’s monetary obligations,
when due, under any other loan or inventory repurchase agreement between such
Borrower and a Lender, (c) any Borrower breaches any of the Financial Covenants;
(d) one or more money judgments in an aggregate amount of $1,000,000 or more
issues against anyone or more of the Borrowers, which judgments are not, within
90 days after the entry thereof, bonded, discharged in full or stayed pending
appeal, or are not discharged in full within 90 days after the expiration of
such stay; (e) an attachment, sale or seizure is issued or is executed against
any assets, reasonably valued (in the aggregate) at $1,000,000 or more, of
anyone or more of the Borrowers; (f) any Borrower shall cease existence as
a
corporation, partnership, limited liability company or trust, as applicable;
(g)
any Borrower ceases or suspends business; (h) any Borrower or any general
partner or member while a Borrower’s business is operated as a limited
partnership or a limited liability company, as applicable, makes a general
assignment for the benefit of creditors; (i) any Borrower or any general partner
or member while a Borrower’s business is operated as a limited partnership or a
limited liability company, as applicable, becomes insolvent or voluntarily
or
involuntarily becomes subject to the Federal Bankruptcy Code, any state
insolvency law or any similar law; (j) any receiver is appointed for any assets
of any Borrower or any general partner or member while a Borrower’s business is
operated as a limited partnership or a limited liability company, as applicable;
(k) there shall occur a material adverse change in the financial or other
condition or business prospects of the Borrowers, taken as a whole; (l) any
Borrower or CountryPlace Acceptance Corp., CountryPlace Acceptance GP, LLC,
CountryPlace LP, LLC, CountryPlace Funding, Inc. and/or CountryPlace Mortgage,
Ltd. or any subsidiary or affiliate thereof is in default (as principal or
as
guarantor or other surety and after the expiration of any applicable cure or
grace periods in respect thereof) in the payment of any indebtedness or other
amounts owing under or in respect of the warehouse and/or securitization
facility described on Part 15 of the Schedule of Terms and Disclosures attached
hereto (or any guaranties or repurchase agreements issued with respect thereto)
or any warehouse and/or securitization or similar facility which shall have
refinanced, directly or indirectly, such indebtedness or other amounts
(collectively, the “CountryPlace
Warehouse/Securitization Facility”);
(m)
any Borrower or CountryPlace Acceptance Corp., CountryPlace Acceptance GP,
LLC,
CountryPlace LP, LLC, CountryPlace Funding, Inc. and/or Country Place Mortgage,
Ltd. or any subsidiary or affiliate thereof is in default in the performance
of
or compliance with any term of the CountryPlace Warehouse/Securitization
Facility or any guaranty or repurchase agreement in respect thereof, or
compliance with any other agreement relating thereto, or any other conditions
of
default exist, and as a consequence of such default or condition either (i)
the
indebtedness or other amounts outstanding under the CountryPlace
Warehouse/Securitization Facility have become due and payable or have been
declared (or one or more Persons are entitled to declare such indebtedness
and
amounts to be) due and payable before their stated maturity or maturities or
before its or their regularly scheduled date or dates of payment or (ii) any
Borrower or CountryPlace Acceptance Corp., CountryPlace Acceptance GP, LLC,
CountryPlace LP, LLC, CountryPlace Funding, Inc. and/or CountryPlace Mortgage,
Ltd. or any subsidiary or affiliate thereof may be required to repurchase,
or
make unscheduled payments in respect of, or otherwise deliver additional
collateral or credit enhancements for, indebtedness or other amounts outstanding
under the CountryPlace Warehouse/Securitization Facility or any guaranties,
repurchase agreements or other agreements relating thereto (such repurchases,
unscheduled payments or delivery of additional collateral or credit enhancements
being as a consequence of a default or a condition of default rather than being
in the ordinary course of business); (n) any Borrower is in default (as
principal or as guarantor or other surety and after the expiration of any
applicable cure or grace periods in respect thereof) in the payment of any
indebtedness or other amounts owing under or in respect of the wholesale
financing facility described on Part 16 of the Schedule of Terms and Disclosures
attached hereto or any guaranties issued with respect thereto and any similar
facility which shall have refinanced, directly or indirectly, such indebtedness
or other amounts (collectively, the “Transamerica
Facility”);
and
(o) any Borrower is in default in the performance of or compliance with any
term
of the Transamerica Facility or any guaranty thereof, or compliance with any
other agreement relating thereto, or any other condition exists, and as a
consequence of such default or condition either (i) the indebtedness or other
amounts outstanding under the Transamerica Facility have become due and payable
or have been declared (or one or more Persons are entitled to declare such
indebtedness and amounts to be) due and payable before their stated maturity
or
maturities or before its or their regularly scheduled date or dates of payment.
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22.2 Default/Cure
Period.
The
Borrowers will be in default under this Agreement if any of the following occur
and shall continue for ninety (90) days after the sooner of the date that the
Administrative Agent sends notice of such breach to any Borrower or the date
on
which such breach becomes known to any officer of any Borrower (which knowledge
shall be immediately communicated to the Administrative Agent by such
Borrower)(an Event of Default will exist hereunder if such default continues
after said 90-day period): (a) except as expressly enumerated as an immediate
default in Section 22.1 above, any Borrower breaches to any material extent
any
terms, warranties or representations contained herein or in any other agreement
executed by such Borrower in connection herewith; (b) any representation,
statement, report or certificate made or delivered by any Borrower to
Administrative Agent or any Lender is not accurate in all material respects
when
made (each Borrower acknowledges and agrees that each such representation and
warranty shall be deemed restated at the time of and in connection with the
making of each Advance hereunder); (c) any Borrower abandons any Collateral;
(d)
except as expressly enumerated as an immediate default in Section
22.1
above,
any Borrower is or becomes in default in the payment of any debt owed to any
secured lender other than as provided for herein; (e) any Borrower loses any
franchise, permission, license or right to sell or deal in any Collateral which
is financed hereunder; or (f) any Borrower misrepresents such Borrower’s
financial condition or organizational structure.
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23. Rights
of Administrative Agent and Lenders Upon Default.
Upon
the occurrence of an Event of Default:
23.1 Acceleration.
At the
direction of the Majority Lenders, the Administrative Agent shall, at any time
and without notice or demand to any Borrower, take anyone or more of the
following actions as directed: (a) declare all or any part of the indebtedness
and obligations of anyone or more of the Borrowers hereunder immediately due
and
payable, together with all costs and expenses of the Administrative Agent’s and
Lenders’ collection activity, including, without limitation, all reasonable
attorneys’ fees, and, to the extent permitted by applicable law, a termination
fee in respect of such accelerated indebtedness and obligations as provided
for
in Section 27 below; (b) subject to Section 39 hereof, exercise any or all
rights under applicable law (including, without limitation, the right to
possess, transfer and dispose of the Collateral and to enforce the payment
of
any and all obligations (including, without limitation, any deficiency
obligations) of anyone or more of the Borrowers hereunder); and/or (c) terminate
the Commitments of the Lenders. Any action that the Administrative Agent may
be
directed to take under the immediately preceding sentence shall, in all
respects, be subject to Section 29 hereof. Each Lender may at any time, without
notice or demand to any Borrower but with reasonable prior written notice to
the
Administrative Agent, do anyone or more of the following: (i) subject to Section
29.11 hereof, declare all or any part of the indebtedness and obligations of
anyone or more of the Borrowers hereunder owing to such Lender to be immediately
due and payable, together with all costs and expenses of such Lender’s
collection activity, including, without limitation, all reasonable attorneys’
fees; (ii) subject to Section 29.11 and Section 39 hereof, exercise any or
all
rights under applicable law (but expressly excluding the right to foreclose
upon, possess, transfer and dispose of the Collateral); and/or (iii) terminate
the Commitment of such Lender.
23.2 Collateral
in Trust.
Each
Borrower will segregate and keep and hold its Collateral in trust for the
Administrative Agent on behalf of the Lenders, and keep such Collateral in
good
order and repair, and will not (unless expressly consented to in writing by
the
Administrative Agent at the direction of the Majority Lenders) sell, rent,
lease, consign, otherwise dispose of or use any such Collateral, nor further
encumber any such Collateral.
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23.3 Delivery
of Collateral.
Upon
Administrative Agent’s oral or written demand (at the direction of the Majority
Lenders), each Borrower will immediately deliver the Collateral of such Borrower
to the Administrative Agent, in good order and repair, at a place specified
by
the Administrative Agent, together with all related documents; or the
Administrative Agent may, in its sole discretion and without notice or demand
to
any Borrower, take immediate possession of the Collateral of such Borrower
together with all related documents. Each Borrower agrees that the
Administrative Agent may, by itself or through an agent, without notice to
any
person and without judicial process of any kind, enter into any premises or
upon
any land owned, leased or otherwise under the apparent control of such Borrower
where the Administrative Agent believes any of the Collateral of such Borrower
may be, and disassemble, render unusable and/or repossess all or any items
of
such Collateral. Each Borrower expressly waives all rights to possession of
its
Collateral after default and all claims for injuries suffered through or loss
caused by such entering and/or repossession by the Administrative Agent.
23.4 Default
Rate of Interest.
The
Administrative Agent, at the direction of the Majority Lenders, shall, without
any requirement of a notice to any Borrower, apply a default finance charge
to
each Borrower’s outstanding principal indebtedness hereunder equal to the per
annum rate of interest that is the sum of (a) the Prime Rate from time to time
in effect and (b) 3.00%, (but in any case not higher than the highest lawful
contract rate of interest permitted under applicable law).
23.5 Cumulative
Rights and Remedies.
The
Administrative Agent shall have all of the rights and remedies of a secured
party under the Uniform Commercial Code of the laws of the State governing
this
Agreement and any other applicable laws (including, without limitation, the
laws
of the State in which any of the Collateral is located). All of the
Administrative Agent’s and the Lenders’ rights and remedies are cumulative. The
failure of the Administrative Agent or any Lender to exercise any of its rights
or remedies hereunder will not waive any of such persons rights or remedies
as
to any past, current or future default.
23.6 Miscellaneous.
In
connection with the Administrative Agent’s exercise of its rights under this
Section 23 and Section 24 below, each Borrower (a) acknowledges that the
arbitration provisions of Section 39 below are not applicable to the exercise
of
the Administrative Agent’s rights and remedies under this Section 23 and in
Section 24 in respect of the Collateral, (b) irrevocably waives any right it
may
have to a judicial hearing in advance of the enforcement of any of the
Administrative Agent’s rights and remedies hereunder, including, without
limitation, its right to take immediate possession of the Collateral and to
exercise its rights and remedies with respect thereto following an Event of
Default and (c) irrevocably waives, to the extent it may lawfully do so, any
right it may have under any applicable valuation and exemption laws. Neither
the
Administrative Agent nor the Lenders shall be deemed to have waived any of
its
or their rights or remedies in respect of the obligations of anyone or more
of
the Borrowers hereunder or the Collateral unless such waiver shall be in writing
and signed by the Administrative Agent and the Lenders. No delay or omission
on
the part of the Administrative Agent or any Lender in exercising any right
or
remedy shall operate as a waiver of such right or remedy or any other right
or
remedy. Neither the Administrative Agent nor any Lender shall be required to
marshal any Collateral for, or other assurances of payment of, the obligations
of anyone or more of the Borrowers or to resort to such Collateral or other
assurances of payment in any particular order. Each Borrower hereby agrees,
to
the extent that it may lawfully do so, that it will not invoke any law relating
to the marshalling of collateral which might cause delay in or impede the
enforcement of the Administrative Agent’s rights and remedies under this
Agreement or under any other instrument related thereto and, to the extent
that
it lawfully may, each Borrower hereby irrevocably waives the benefits of all
such laws. Each Borrower shall pay to the Administrative Agent on demand any
and
all expenses, including attorneys’ fees and disbursements, incurred or paid by
the Administrative Agent in protecting, preserving or enforcing the
Administrative Agent’s rights and remedies under or in respect of any of the
Collateral. After deducting all of said expenses, the residue of any proceeds
of
collection or sale or other disposition of the Collateral shall, to the extent
actually received in cash, be applied to the payment of the obligations of
the
Borrowers hereunder in such order or preference as the Majority Lenders may
determine, proper allowance and provision being made for any such obligations
not then due and to the Senior Component and Junior Component of the Total
Credit Line. Upon the final payment and satisfaction in full of all of the
obligations of the Borrowers hereunder and after making any payments required
by
Sections 9-608(a)(1)(C) or 9-615(a)(3) of the Uniform Commercial Code of the
State whose laws govern this Agreement, any excess shall be returned to the
applicable Borrower. In the absence of final payment and satisfaction in full
of
all of such obligations, the Borrowers shall remain jointly and severally liable
for any deficiency.
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23.7 Certain
Other Remedies.
Administrative Agent shall have the right (to be exercised at the direction
of
the Majority Lenders after the occurrence of an Event of Default), and each
Borrower hereby irrevocably designates and appoints Administrative Agent and
its
designees as the attorney in fact of such Borrower, with power of substitution
(which appointment is coupled with an interest and irrevocable) and with power
and authority in such Borrower’s name, Administrative Agent’s name, or otherwise
and for the use and benefit of Administrative Agent (but at the cost and expense
of such Borrower), and with or without notice to such Borrower (a) to notify
account debtors obligated to make payments or other remittances on or with
respect to any account, chattel paper or general intangible constituting the
Collateral to make such payments and other remittances directly to
Administrative Agent, (b) to demand, collect, give receipt for, give renewals,
extensions, discharges and releases of, ▇▇▇ for, take control of, compromise,
settle, change the terms of, release, exchange, substitute, surrender, or
otherwise deal with any such accounts, chattel paper or general intangibles
or
with any account debtor in respect thereof, and (c) to, at the cost and expense
of such Borrower, make use of any place of business of such Borrower as may
be
necessary or desirable to administer, control, collect, sell or otherwise
dispose of any of such accounts, chattel paper or general intangibles.
Administrative Agent shall have the right (to be exercised at the direction
of
the Majority Lenders) to effect any offset against the Cash Deposit on behalf
of
anyone or more of the Lenders in respect of any and all indebtedness owing
by
anyone or more of the Borrowers to any of such Lenders.
24. Sale
of Collateral.
Each
Borrower agrees that if the Administrative Agent conducts a private sale of
any
Collateral of such Borrower consisting of Palm Harbor Brand Homes by requesting
bids from 10 or more dealers or distributors in that type of Collateral, any
sale by Administrative Agent of such Collateral in bulk or in parcels within
120
days of: (a) the Administrative Agent’s taking possession and control of such
Collateral; or (b) when the Administrative Agent is otherwise authorized to
sell
such Collateral, whichever occurs last, to the bidder submitting the highest
cash bid therefor, is a commercially reasonable sale of such Collateral under
the Uniform Commercial Code. Each Borrower further agrees that seven (7) days
prior written notice will be commercially reasonable notice of any public or
private sale. Each Borrower irrevocably waives any requirement that the
Administrative Agent retain possession and not dispose of any Collateral of
such
Borrower until after an arbitration hearing, arbitration award, confirmation,
trial or final judgment. If the Administrative Agent disposes of any such
Collateral other than as herein contemplated, the commercial reasonableness
of
such disposition will be determined in accordance with the laws of the State
governing this Agreement.
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25. Power
of Attorney.
Each
Borrower grants the Administrative Agent an irrevocable power of attorney,
which
shall become effective upon the occurrence of an Event of Default by any
Borrower (subject to any applicable cure period), to: execute or endorse on
such
Borrower’s behalf any checks, financing statements, instruments, Certificates of
Title and Statements of Origin pertaining to the Collateral of such Borrower;
supply any omitted information and correct errors in any documents between
or
among the Administrative Agent, the Lenders, the other Borrowers and such
Borrower; initiate and settle any insurance claim pertaining to the Collateral
of such Borrower; and do anything to preserve and protect the Collateral of
such
Borrower and the Administrative Agent’s rights and interest therein.
26. Information.
Neither
the Administrative Agent nor any of the Lenders may provide to any third party
any credit, financial or other information on any Borrower that such person
may
from time to time possess, except as such person may be required or reasonably
deem it appropriate to provide such information to any regulatory or
governmental authority or court or arbitrator, or in furtherance of the
enforcement of such person’s rights and remedies herein, or pursuant to
applicable law or regulation; provided, however, any such person may share
all
such information with its parent, subsidiary, affiliates and participants;
the
Administrative Agent may share any of such information with the Lenders and
any
prospective new lenders under Section 28.2; and the Lenders may share such
information with any prospective participant or assignee under Section 28.1
or
28.2 2 hereof. The Administrative Agent and the Lenders may obtain credit
references from any Borrower’s creditors.
27. Termination.
This
Agreement shall have a term of three (3) years from the date hereof (the
“Term”).
On
the last day of such Term (the “Maturity
Date”),
all
Commitments of the Lenders shall, if not previously terminated, terminate and
all obligations hereunder outstanding on such last day shall mature and
automatically become due and payable, including, without limitation, all
outstanding Advances, all accrued and unpaid interest and/or finance charges
and
all fees, costs and expenses. Borrowers agree to pay all such obligations so
maturing on the Maturity Date.
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Any
Borrower may terminate this Agreement in whole, but not in part, at any time
by
written notice received by the Administrative Agent; any such termination shall
be binding on all Borrowers. If any Borrower terminates this Agreement, such
Borrower agrees to give the Administrative Agent 180 days prior written notice
of such termination (and during such notice period, the Borrowers will continue
to pay all sums due under this Agreement, including, but not limited to the
payment of the fees set forth in Section 9 hereof and Advances may be requested
hereunder in accordance with the terms and conditions hereof except that the
issuance of “booking” approvals may be ceased by the Administrative Agent within
a reasonable period of time prior to the effective termination date of this
Agreement). No Borrower will be relieved from any obligation to the
Administrative Agent or any Lender arising out of Advances or approval
commitments made before the effective termination date of this Agreement. The
total outstanding balance due under this Agreement as of the effective date
of
termination will be due and payable upon the effective termination date of
this
Agreement (which shall include, without limitation, all unpaid principal in
respect of any outstanding Advances, all accrued and unpaid interest, finance
charges and fees in respect thereof and all costs and expenses to be paid by
any
Borrower hereunder) together with the following termination fees: (i) if the
effective date of termination shall occur on or prior to the first anniversary
of the date of this Agreement, a fee equal to 1.50% of the principal amount
of
Advances outstanding on the date on which notice of such termination was given
(or, if such termination arose out of an Event of Default, on the date on which
the obligations of the Borrowers are accelerated under Section 23 hereof),
(ii)
if the effective date of termination shall occur after the first anniversary
of
the date of this Agreement and on or prior to the second anniversary of the
date
of this Agreement, a fee equal to 1.00% of the principal amount of Advances
outstanding on the date on which notice of such termination was given (or,
if
such termination arose out of an Event of Default, on the date on which the
obligations of the Borrowers are accelerated under Section 23 hereof), and
(iii)
if the effective date of termination shall occur after the second anniversary
of
the date of this Agreement and on or prior to the Maturity Date, a fee equal
to
0.50% of the principal amount of Advances outstanding on the date on which
notice of such termination was given (or, if such termination arose out of
an
Event of Default, on the date on which the obligations of the Borrowers are
accelerated under Section 23 hereof). The Administrative Agent and the Lenders
will retain all of its or their respective rights, interests and remedies
hereunder until each Borrower has fully and finally paid all of such Borrower’s
obligations owing hereunder. All waivers set forth within this Agreement will
survive any termination of this Agreement.
28. Participating
Lenders and New Lenders.
28.1 Participations.
Each of
the Lenders shall have the right, without prior notice to any Borrower or the
approval of any Borrower, to designate one or more Participating Lenders and
to
grant to such Participating Lenders participations in such Lender’s Pro Rata
Share of anyone or more of the Advances and in respect of any interest, finance
charges and fees otherwise payable to such Lender hereunder on terms and
conditions satisfactory to such Lender. In the event that such Lender so
designates such a Participating Lender and grants such Participating Lender
a
participation in its Pro Rata Share of such Advance or Advances and such
interest, finance charges and fees, such Participating Lender shall communicate
and deal only with such Lender in respect to such Participating Lender’s
interest in such Advance or Advances or such interest, finance charges and
fees
and neither any Borrower nor the Administrative Agent shall be obligated to
communicate or deal with such Participating Lender. Nothing in this Section
28.1
shall relieve any Lender from its obligations, if any, hereunder.
28.2 Assignments.
Each
Lender shall have the right, at any time without the prior approval of any
Borrower or Administrative Agent, to sell, assign and transfer to any Eligible
Assignee (a) all or any part of its Pro Rata Share of any Advance or Advances
and any interest, finance charges and fees otherwise payable to such Lender
hereunder in respect thereof and/or (b) a ratable amount of its Commitment,
provided that
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(a) the
Borrowers and the Administrative Agent shall have been given reasonable prior
written notice thereof,
(b) no
such
sale, assignment or transfer shall, without the prior written consent of the
Borrowers, require any Borrower to file a registration statement with the
Securities and Exchange Commission or apply to qualify such sale, assignment
or
transfer under the securities laws of any state, and
(c) no
such
sale, assignment or transfer shall be effective unless and until an assignment
agreement effecting such sale, assignment or transfer, in form and substance
reasonably satisfactory to the Administrative Agent, shall have been accepted
by
the Administrative Agent, and
(d) no
such
sale, assignment or transfer shall be effected in an amount of less than
$1,000,000.
To
the
extent of any such assignment to an Eligible Assignee in accordance with the
requirements of this Section 28.2 that relates to both Advances and a ratable
portion of the assigning Lender’s Commitment, such assigning Lender shall be
relieved of any obligations with respect to its Pro Rata Shares of any Advance
or Advances being so assigned and the ratable amount of its Commitment being
reallocated to such Eligible Assignee. Upon such execution, deliver and
acceptance from and after the effective date specified in the aforesaid
assignment agreement, (i) the Eligible Assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such assignment agreement, shall have the rights
and
obligations of a Lender hereunder that corresponds to the portion of the Advance
or Advances so assigned and/or the portion of the Commitment being reallocated
to such Eligible Assignee and (ii) the assigning Lender thereunder shall, to
the
extent that rights and obligations hereunder have been assigned by it pursuant
to such assignment agreement, relinquish its rights and be released from its
obligations, if any, under this Agreement to the extent of the portion of such
Advance or Advances so assigned and/or the portion of its Commitment so
reallocated. The Commitments among the Lenders shall be modified to reflect
the
reallocation of the assigning Lender’s Commitment to the Eligible Assignee and
to reflect any portion of such Commitment retained by such assigning Lender.
The
Commitments of the Lenders and the allocation of the Total Credit Line in
respect thereof in the records of the Administrative Agent shall be binding
on
the Borrowers and Lenders absent manifest error.
29. The
Administrative Agent.
29.1 Appointment.
Textron
Financial Corporation is hereby appointed the Administrative Agent hereunder
and
each Lender hereby authorizes the Administrative Agent to act as its agent
in
accordance with the terms of this Agreement and any other agreements now or
hereafter executed in connection herewith. The Administrative Agent agrees
to
act upon the express conditions contained in this Agreement and any other
agreements now or hereafter executed in connection herewith. The provisions
of
this Section 29 are solely for the benefit of the Administrative Agent and
the
Lenders, and each of the Borrowers agrees it shall have no rights as a third
party beneficiary of any of the provisions of this Agreement or any such other
agreements. In performing its functions and duties under this Agreement and
any
other agreements now or hereafter executed in connection herewith, the
Administrative Agent shall act solely as an agent of the Lenders and does not
assume and shall not be deemed to have assumed any obligation towards or
relationship of agency or trust with or for any Borrower.
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29.2 Powers;
General Immunity.
(a) Duties
Specified.
Each
Lender irrevocably authorizes the Administrative Agent to take such action
on
such Lender’s behalf and to exercise such powers under this Agreement and under
any other agreements now or hereafter executed in connection herewith as are
specifically delegated to the Administrative Agent by the terms hereof or
thereof, together with such powers as are reasonably incidental thereto. The
Administrative Agent shall have only those duties and responsibilities that
are
expressly specified in this Agreement or in any other agreements now or
hereafter executed in connection herewith and it may perform such duties by
or
through its agents, sub-agents or employees (including, without limitation,
Textron Business Services, Inc.). The Administrative Agent shall not have,
by
reason of this Agreement or any other agreements now or hereafter executed
in
connection herewith, a fiduciary relationship in respect of any Lender; and
nothing in this Agreement or any of the other agreements now or hereafter
executed in connection herewith, expressed or implied, is intended to or shall
be so construed as to impose upon the Administrative Agent any obligations
in
respect of this Agreement or such other agreements as expressly set forth herein
or therein. It is expressly understood that the Administrative Agent’s role
hereunder and under any other agreements now or hereafter executed in connection
herewith will be primarily administrative in nature.
(b) No
Responsibility for Certain Matters.
The
Administrative Agent shall not be responsible to any Lender for the execution,
effectiveness, genuineness, validity, enforceability, collectibility or
sufficiency of this Agreement or any other agreements now or hereafter executed
in connection herewith or for any representations, warranties, recitals or
statements made herein or therein or made in any written or oral statements
or
in any financial or other statements, instruments, reports or certificates
or
any other documents furnished or made by the Administrative Agent to anyone
or
more of the Lenders or by or on behalf of any Borrower to the Administrative
Agent or any Lender in connection with this Agreement or any of such other
agreements and the transactions contemplated hereby or thereby or for the
financial condition or business affairs of any Borrower or any other person
liable for the payment of any obligations of any Borrower hereunder, nor shall
the Administrative Agent be required to ascertain or inquire as to the
performance or observance of any of the terms, conditions, provisions, covenants
or agreements contained in this Agreement or in any other agreements now or
hereafter executed in connection herewith or as to the use of the proceeds
of
any Advance or as to the existence or possible existence of any Default or
Event
of Default.
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(c) Exculpatory
Provisions.
Neither
the Administrative Agent nor any of its officers, directors, employees or agents
or sub-agents shall be liable to anyone or more of the Lenders for any action
taken or omitted by the Administrative Agent under or in connection with this
Agreement or any other agreements now or hereafter executed in connection
herewith except to the extent caused by the Administrative Agent’s gross
negligence or willful misconduct. If the Administrative Agent shall request
instructions from the Lenders or the Majority Lenders with respect to any act
or
action (including the failure to take an action) in connection with this
Agreement or any other agreements now or hereafter executed in connection
herewith, the Administrative Agent shall be entitled to refrain from such act
or
taking such action unless and until the Administrative Agent shall have received
instructions from the Lenders or the Majority Lenders, as the case may be.
Without prejudice to the generality of the foregoing, (i) the Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any communication, instrument or document believed by it to be genuine and
correct and to have been signed or sent by the proper person or persons, and
shall be entitled to rely and shall be protected in relying on opinions and
judgments of attorneys (who may be attorneys for any Borrower), accountants,
experts and other professional advisors selected by it; and (ii) no Lender
shall
have any right of action whatsoever against the Administrative Agent as a result
of the Administrative Agent’s acting or refraining from acting under this
Agreement or any other agreements now or hereafter executed in connection
herewith in accordance with the instructions of the Lenders or the Majority
Lenders, as the case may be. The Administrative Agent shall be entitled to
refrain from exercising any power, discretion or authority vested in it under
this Agreement or any other agreements now or hereafter executed in connection
herewith unless and until it has obtained the instructions of the Lenders or
the
Majority Lenders, as the case may be, and such indemnification and/or
reimbursement of costs, expenses and fees as it may reasonably request. The
Administrative Agent shall not be liable to any Lender with respect to its
failure to take any action hereunder or under any other agreements now or
hereafter executed in connection herewith directed by the Lenders or the
Majority Lenders, as the case may be, if such action would, in the good faith
opinion of the Administrative Agent, be unlawful or contrary to the terms and
provisions of this Agreement or any other agreements now or hereafter executed
in connection herewith, or would subject the Administrative Agent to liability
under any environmental protection law.
(d) Administrative
Agent Entitled to Act as Lender.
The
agency hereby created shall in no way impair or affect any of the rights and
powers of, or impose any duties or obligations upon, the Administrative Agent
in
its individual capacity as a Lender hereunder. With respect to its participating
in the Advances, the Administrative Agent shall have the same rights and powers
hereunder as any other lender and may exercise the same as though it were not
performing the duties and functions delegated to it hereunder, and the term
“Lender” or “Lenders” or any similar term shall, unless the context clearly
otherwise indicates, include the Administrative Agent in its individual
capacity. The Administrative Agent and its affiliates may lend money to, have
the rights set forth in Section 28 hereof, and generally engage in any kind
of
financial or other business with, anyone or more of the Borrowers or any
affiliate or dealer thereof as if it were not performing the duties specified
herein (including, without limitation, extending out-bound credit facilities
to
dealers of one or more of the Borrowers), and may accept fees and other
consideration from any Borrower or any affiliate or dealer thereof for services
in connection with this Agreement and otherwise without having to account for
the same to the other Lenders (including fees, finance charges and interest
in
respect of any out-bound credit facilities).
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(e) Advancing
of Own Funds.
The
Administrative Agent shall not be required to advance, expend or risk its own
funds or otherwise incur personal liability in the performance of its duties
or
in the exercise of any rights or remedies hereunder or under any other
agreements now or hereafter executed in connection herewith.
29.3 Representations
and Warranties; No Responsibility For Appraisal of
Creditworthiness.
Each
Lender represents and warrants that it has made its own independent
investigation of the financial condition and affairs of each of the Borrowers
in
connection with entering into this Agreement and the making of the Advances
hereunder and that it has made and shall continue to make its own appraisal
of
the creditworthiness of the Borrowers. The Administrative Agent shall not have
any duty or responsibility, either initially or on a continuing basis, to make
any such investigation or any such appraisal on behalf of the Lenders or to
provide any Lender with any credit or other information with respect thereto,
whether coming into its possession before the making of the Advances or at
any
time or times thereafter, and the Administrative Agent shall not have any
responsibility with respect to the accuracy of or the completeness of any
information provided, directly or indirectly, to the Lenders by any Borrower
or
any employee, officer, director or agent thereof.
29.4 Right
to Indemnity.
Subject
to the next sentence of this paragraph, each Lender, in proportion to its Pro
Rata Share, severally agrees to indemnify the Administrative Agent, to the
extent that the Administrative Agent shall not have been reimbursed by the
Borrowers, for and against any and all liabilities, obligations, losses, claims,
damages, penalties, actions, judgments, suits, costs, expenses (including,
without limitation, counsel fees and disbursements) or disbursements of any
kind
or nature whatsoever which may be imposed on, incurred by or asserted against
the Administrative Agent in performing its duties hereunder or under any other
agreements now or hereafter executed in connection herewith or otherwise in
its
capacity as the Administrative Agent in any way relating to or arising out
of
this Agreement or such other agreements, provided that no Lender shall be liable
for any portion of such liabilities, obligations, losses, claims, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Administrative Agent’s gross negligence or willful misconduct. If any
indemnity furnished to the Administrative Agent for any purpose in connection
with its performance of its duties hereunder or under any such other agreements
shall, in the opinion of the Administrative Agent, be insufficient or become
impaired, the Administrative Agent may call for additional indemnity and cease,
or not commence, to do the acts indemnified against until such additional
indemnity is furnished. The indemnification provided for in this Section 29.4
shall extend to and cover any employees, officers, directors, agents, co-agents,
and sub-agents of the Administrative Agent that have performed any duties for
or
on behalf of the Administrative Agent hereunder.
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29.5 Successor
the Administrative Agent.
The
Administrative Agent may resign at any time by giving 30 days’ prior written
notice thereof to the Lenders and PHHI, and the Administrative Agent may be
removed at any time with or without cause by an instrument or concurrent
instruments in writing delivered to PHHI and the Administrative Agent and signed
by the Majority Lenders. Upon any such notice of resignation or any such
removal, the Majority Lenders shall have the right, upon 5 business days’ notice
to PHHI, to appoint a successor to the Administrative Agent. Upon the acceptance
of any appointment as the Administrative Agent hereunder by a successor to
the
Administrative Agent, that successor to the Administrative Agent shall thereupon
succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring or removed Administrative Agent and the retiring or
removed Administrative Agent shall be discharged from its duties and obligations
under this Agreement. After any retiring or removed Administrative Agent’s
resignation or removal hereunder as the Administrative Agent, the provisions
of
this Section 29 shall inure to its benefit as to any actions taken or omitted
to
be taken by it while it was the Administrative Agent under this Agreement and
the other agreements now or hereafter executed in connection herewith.
29.6 Collateral
Documents.
Anything contained in this Agreement or in other agreements now or hereafter
executed in connection herewith, each Lender agrees that no Lender shall have
any right individually to realize upon any of the Collateral, it being
understood and agreed that all rights and remedies in respect of the Collateral
may be exercised solely by the Administrative Agent for the benefit of Lenders
in accordance with the terms thereof.
29.7 Designation
of Additional Administrative Agents.
Whenever the Administrative Agent shall deem it necessary or prudent in order
either to conform to any law of any jurisdiction in which all or any part of
the
Collateral shall be situated or to make any claim or bring any suit with respect
to the Collateral or any other agreements now or hereafter executed in
connection herewith, or in the event that the Administrative Agent shall have
been requested to do so by the Majority Lenders, or for any other reason in
the
discretion of the Administrative Agent, the Administrative Agent and, to the
extent necessary, each Borrower shall execute and deliver a supplemental
agreement or agreements and all other instruments and agreements necessary
or
proper to constitute a bank or trust company or one or more other persons
approved by the Administrative Agent, either to act as the Administrative Agent
or its agents, sub-agents or co-agents or as a separate trustee with respect
to
all or any part of the Collateral, in any such case with such powers and
protections of the Administrative Agent as may be provided in such supplemental
agreement and herein, and to vest in such bank, trust company or other person
as
such Administrative Agent, agent, sub-agent or co-agent or separate trustee,
as
the case may be, any property, title, right, or power of the Administrative
Agent deemed necessary or advisable by the Administrative Agent.
29.8 Payments.
(a) Notification
of Advance Request.
Each
submission of a wholesale invoice by a Borrower under Section 5 hereof shall
be
a request for an Advance in respect thereof. The Administrative Agent agrees
to
reasonably promptly review each such wholesale invoice and reasonably promptly
determine whether to reject or approve such wholesale invoice, as provided
for
in Section 6 hereof. If the Administrative Agent shall determine to issue a
“booking” approval in respect of such wholesale invoice, as provided for in
Section 6 hereof, it shall reasonably promptly send a copy of such “booking”
approval to each Lender. The Administrative Agent shall cause any such “booking”
approval to be sent to each Lender not later than one business day prior to
the
Funding Date in respect of the Advance identified in such approval. Subject
to
the second paragraph of this clause (a), each Lender agrees to fund to the
Administrative Agent (in immediately available funds) its Pro Rata Share of
the
Advance identified in such approval on the Funding Date in respect thereof.
The
Administrative Agent shall deliver to the applicable Borrower on the Funding
Date the immediately available funds received from the Lenders in respect of
any
wholesale invoice of such Borrower and the approval issued in respect thereof.
The Administrative Agent shall not be obligated to fund any portion of an
Advance for which one or more Lenders shall have failed under this paragraph
to
deliver their Pro Rata Share thereof (an “Unfunded
Portion of an Advance”).
The
Administrative Agent may request one or more other Lenders to fund any such
Unfunded Portion of an Advance but shall be under no obligation to do so and
no
such other Lender shall be under any obligation under this paragraph to fund
any
such Unfunded Portion of an Advance.
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For
so
long as Textron Financial Corporation shall be the Administrative Agent and
Textron Financial shall be a Lender and subject at all times to the terms and
conditions of this paragraph, Textron Financial agrees to fund to the
Administrative Agent the Pro Rata Share of each Lender other than Textron
Financial (each, an “Other
Lender”)
in
respect of each Advance identified in an applicable “booking” approval on the
Funding Date in respect thereof, provided that each such Advance is being made
by the Administrative Agent in accordance with the terms and conditions of
this
Agreement. With respect to each such Advance, each Other Lender agrees to
deliver to Textron Financial, as provided for in Part II on the Schedule of
Terms and Disclosures attached hereto, on the Settlement Date first occurring
after the Funding Date in respect of such Advance, its Pro Rata Share of such
Advance in immediately available funds (with respect to each Other Lender,
a
“Settlement
Date Funding Payment”).
Unless an Other Lender shall have affirmatively stated to both the
Administrative Agent and Textron Financial, in writing, at the time that such
Lender became a lender under this Agreement, that it does not desire this
paragraph to operate with respect to it, this paragraph shall automatically
operate with respect to each Other Lender and its Pro Rata Share of Advances
to
be funded hereunder. If an Other Lender shall fail to deliver to Textron
Financial on the applicable Settlement Date its Settlement Date Funding Payment
in respect of any Advance previously funded by Textron Financial under this
paragraph, (1) the funding accommodation being provided by Textron Financial
to
such non-funding Other Lender under this paragraph shall be automatically
withdrawn and Textron Financial shall not fund such non-funding Other Lender’s
Pro Rata Share of future Advances hereunder, (2) any and all voting and consent
rights of such non-funding Other Lender shall be automatically deemed withdrawn
and such non-funding Other Lender shall not constitute a “Lender” for voting or
consent purposes or be included in the calculation of “Majority Lenders”
hereunder, (3) such non-funding Other Lender shall owe Textron Financial
interest on its unfunded Settlement Date Funding Payment at 2.00% per annum
over
the interest rate otherwise applicable to the underlying Advance hereunder
for
the actual number of days its Settlement Date Funding Payment remains unfunded,
and (4) the Administrative Agent shall pay to Textron Financial all payments
in
respect of the Advance funded by Textron Financial for such non-funding Other
Lender until the Settlement Date Funding Payment of such non-funding Other
Lender and all interest accruing thereon as provided in subclause (3) above
shall have been paid in full and Textron Financial shall be further entitled
to
receive all Late Fees in respect thereof and any unused credit line fees that
would have otherwise been payable to such non-funding Other Lender until all
amounts owing under this sub-clause (4) have been paid in full. The rights
and
remedies under this paragraph are in addition to any other rights and remedies
that Textron Financial and the Administrative Agent or any other party may
have
against such non-funding Other Lender. With respect to any non-funding Other
Lender, the Administrative Agent may, at its option, notify such non-funding
Other Lender of its intention to replace such non-funding Other Lender with
a
substitute Lender (a “Substitute
Lender”).
If
the Administrative Agent obtains a Substitute Lender within 180 days following
notice of its intention to do so, the applicable non-funding Other Lender must
sell and assign all of its Pro Rata Shares of all of the Advances and any
interest, finance charges and fees related thereto together with the remainder
of its Commitment hereunder to such Substitute Lender for an amount equal to
the
principal balance of such Pro Rata Shares and all accrued interest, finance
charges and fees with respect thereto through the date of such sale and the
Administrative Agent may deduct from the proceeds thereof all payments owing
to
Textron Financial under this paragraph and pay the same to Textron Financial.
For the avoidance of doubt, once Textron Financial has funded an Other Lender’s
Pro Rata Share of an Advance hereunder in accordance with the terms and
conditions of this Agreement and the funding accommodation being provided by
Textron Financial to such Other Lender under this paragraph, such Other Lender
is obligated to pay to Textron Financial the related Settlement Date Funding
Payment on the applicable Settlement Date notwithstanding any insolvency,
bankruptcy, Default or Event of Default that may have arisen on or after the
applicable Funding Date and on, after or prior to the applicable Settlement
Date; it being the intention of Textron Financial, the Administrative Agent
and
the Other Lenders that the applicable Other Lender shall be irrevocably bound
to
pay to Textron Financial, without offset, counterclaim or deduction of any
kind,
the full amount of the Settlement Date Funding Payment on the applicable
Settlement Date. Without limiting any of the foregoing, until Textron Financial
shall have received from any Other Lender its Settlement Date Funding Payment
on
the applicable Settlement Date (y) all interest accrued under this Agreement
in
respect of the underlying Pro Rata Share of the Advance of such Other Lender
from the applicable Funding Date to the applicable Settlement Date shall belong
to Textron Financial and the Administrative Agent shall cause the same to be
paid to Textron Financial upon receipt thereof and such Other Lender shall
not
be entitled to any portion thereof and (z) any payments of principal received
by
the Administrative Agent in respect of the underlying Pro Rata Share of the
Advance of such Other Lender shall likewise be paid to Textron Financial and
the
Settlement Date Funding Payment shall be reduced on a dollar-for-dollar basis
in
respect thereof. The funding accommodations being provided in this paragraph
by
Textron Financial are for the sole benefit of the Other Lenders participating
in
such accommodation and there shall be no other third-party beneficiaries in
respect thereof, including, without limitation, the Borrowers or any Other
Lender that has elected not to, or is no longer eligible to, participate in
such
accommodation.
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(b) Distributions
to Lenders.
Subject
to the second paragraph of clause (a) above and the second paragraph of this
clause (b), the Administrative Agent shall distribute to each Lender, such
Lender’s Pro Rata Share of all payments received from any Borrower or from
proceeds of Collateral in respect of any Advance or Advances and all interest,
finance charges, fees and Late Fees in respect thereof by 11:00 a.m.
(Administrative Agent’s time) on the first business day after the Administrative
Agent’s receives good, collected funds in respect of such payments if such good,
collected funds are received prior to 12:00 p.m. (Administrative Agent’s time)
and by 11:00 a.m. (Administrative Agent’s time) on the second business day after
the Administrative Agent receives good, collected funds in respect of such
payments if such funds shall be received by the Administrative Agent after
12:00
p.m. (Administrative Agent’s time). No Lender shall be entitled to any share of
the following fees and/or expenses payable to the Administrative Agent
hereunder: any fees for NSF checks, any Audit Fees and other reimbursement
for
Audit costs and expenses, any indemnification payments to be paid to the
Administrative Agent and all other costs and expenses of the Administrative
Agent to be reimbursed by anyone or more of the Borrowers and/or the Lenders.
The Administrative Agent may deduct anyone or more of the aforesaid fees and
expenses payable to the Administrative Agent on a priority basis from any
payments or proceeds of Collateral otherwise payable or distributable to the
Lenders hereunder and pay the same to itself. The payment of all such fees
and
expenses shall be secured by a lien and security interest in and to the
Collateral and the Borrowers hereby grant the same to the Administrative Agent.
The Lenders shall be entitled to their respective Pro Rata Share of the fee
payable by the Borrowers to the Administrative Agent under the last paragraph
of
Section 10 hereof in respect of unused portion of the Total Credit Line. The
Administrative Agent may equitably adjust, in its sole and reasonable
determination, the Pro Rata Shares of any payment or fee to be shared among
the
Lenders to give effect to any Unfunded Portion of an Advance or Advances in
respect of any Lender or Lenders hereunder and any Lender or Lenders that may
have covered the same, in each case with respect to fundings effected under
the
first paragraph of clause (a) above.
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With
respect to each Other Lender subject to Textron Financial’s funding
accommodation set forth in the second paragraph of clause (a) above, each such
Other Lender hereby irrevocably directs the Administrative Agent to pay all
principal payments in respect of its Pro Rata Share of any Advance that would
otherwise be paid to it under the first paragraph of this clause (b) (with
respect to such Other Lender, its “Pro
Rata Principal Payments”)
to
Textron Financial. On each Settlement Date, Textron Financial shall remit to
each such Other Lender an amount equal to the Pro Rata Principal Payments paid
to it by the Administrative Agent since the last Settlement Date (or, in the
case of the first Settlement Date, since the date of this Agreement) together
with interest thereon calculated at the Prime Rate for the actual number of
days
such Pro Rata Principal Payments were held by Textron Financial (excluding
the
day on which such Pro Rata Principal Payments were delivered to the applicable
Other Lender). Any Pro Rata Principal Payments of an Other Lender received
by
Textron Financial from the Administrative Agent under this paragraph shall
be
held in trust by Textron Financial for such Other Lender but, in any case,
subject to the terms and conditions of this paragraph and the second paragraph
of clause (a) above, Textron Financial may invest, deposit, commingle or
otherwise deal with such Pro Rata Principal Payments in any manner that it
desires and all interest or other yields earned thereon shall be for the
exclusive benefit of Textron Financial and such Pro Rata Principal Payments
shall be subject to being applied by Textron Financial to satisfy any
obligations of such Other Lender to Textron Financial under the second paragraph
of clause (a) above if such Other Lender shall become a non-funding Other
Lender. If, for any reason, Textron Financial is required to return to the
Administrative Agent, pursuant to Section 29.9 hereof or otherwise, any amount
received from the Administrative Agent and paid to an Other Lender, such Other
Lender will, upon notice from Textron Financial, return to Textron Financial
the
amount which such Other Lender has received from Textron Financial (together
with all interest thereon paid to such Other Lender by Textron Financial and
such additional interest thereon as the Administrative Agent is required to
pay
to any Borrower or other person effecting such recovery). With respect to any
Settlement Date and any Other Lender, Textron Financial may net payments owing
to it from such Other Lender under the second paragraph of clause (a) above
against payments owing from it under this paragraph to such Other Lender and
either pay such net amount to such Other Lender or have such Other Lender pay
such net amount to it, as appropriate; in any case, Textron Financial will
send
to each Other Lender participating in the Textron Financial funding
accommodation set forth in the second paragraph of clause (a) above and this
paragraph one business day prior to each Settlement Date a statement showing
its
determination of payments owing from such Other Lender to Textron Financial
under the second paragraph of clause (a) above and its determination of payments
owing to such Other Lender from Textron Financial under this paragraph and
the
net amount due to or from Textron Financial, as the case may be. For the
avoidance of doubt, Textron Financial does not assume nor will it have any
liability or obligation whatsoever to any Other Lender for any Borrower’s
repayment of all or any part of any Advance or any interest, finance charges
or
fees thereon or related thereto. All payments to be made by Textron Financial
to
any Other Lender shall be made pursuant to written payment instructions
submitted to Textron Financial by such Other Lender reasonably in advance of
the
applicable date for such payments.
(c) Administrative
Agent’s Fee.
In
consideration of the undertakings of the Administrative Agent under this
Agreement, each of the Lenders hereby assigns to the Administrative Agent the
following: with respect to each Advance, the amount of interest that shall
have
accrued hereunder on such Advance from the Booking Date thereof to and including
the Funding Date thereof provided that such amount of interest shall have been
actually collected by the Administrative Agent from the Borrowers and/or the
Collateral. Each of the Lenders hereby authorizes the Administrative Agent
to
deduct, on a priority basis, such amount of interest from all payments or
collections hereunder and to pay the same to itself. Each of the Lenders
acknowledges and agrees that it has assigned and transferred such portion of
such interest to the Administrative Agent and that it shall have no right to
collect, receive and/or retain the same.
29.9 Return
of Payments.
(a) Anticipatory
Payments to Lenders.
If the
Administrative Agent determines in its sole discretion to pay an amount to
a
Lender under this Agreement in the belief or expectation that a related payment
has been or will be received by the Administrative Agent from anyone or more
of
the Borrowers and such related payment is not so received by the Administrative
Agent, then the Administrative Agent will be entitled to recover such amount
from such Lender on demand without set-off, counterclaim or deduction of any
kind.
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(b) Return
of Payments.
If the
Administrative Agent determines at any time that any amount received by the
Administrative Agent under this Agreement must be returned to any Borrower
or
paid to any other person pursuant to the Federal Bankruptcy Code or any other
applicable insolvency law or otherwise, then, notwithstanding any other term
or
condition of this Agreement, the Administrative Agent will not be required
to
distribute any portion thereof to any Lender. In addition, each Lender will
repay to Administrative Agent on demand any portion of such amount that
Administrative Agent has distributed to such Lender, together with interest
at
such rate, if any, as the Administrative Agent is required to pay to any
Borrower or such other person, without set-off, counterclaim or deduction of
any
kind, Any amount returned to any Borrower hereunder shall be automatically
reinstated as an obligation hereunder.
29.10 Dissemination
of Information.
The
Administrative Agent will use reasonable efforts to deliver to each Lender
a
copy of any notice of a Default or Event of Default or any notice of termination
received by the Administrative Agent from any Borrower. The Administrative
Agent
will use reasonable efforts to inform each Lender of any Default or Event of
Default of which a senior administrative officer of Administrative Agent has
actually become aware and will further inform each Lender of any action taken
by
the Administrative Agent following any such Default or Event of Default,
provided, however, that the Administrative Agent shall not be liable to any
Lender for any failure to do so, except to the extent that such failure is
attributable to the Administrative Agent’s gross negligence or willful
misconduct. The Administrative Agent agrees, upon the request of any Lender,
to
deliver any financial statements delivered to the Administrative Agent under
Section 20 hereof and any compliance certificate delivered to the Administrative
Agent under Section 37.3 hereof to the extent not delivered to such Lender.
29.11 Actions
in Concert.
Anything in this Agreement to the contrary notwithstanding, each Lender hereby
agrees with each other Lender that no Lender shall take any action to accelerate
the indebtedness and obligations owed to it hereunder or to protect or enforce
its rights arising out of this Agreement (including exercising any rights of
set-off) without first obtaining the prior written consent of the Administrative
Agent and the Majority Lenders, it being the intent of Lenders that any such
action to accelerate indebtedness hereunder or to protect or enforce rights
under this Agreement shall be taken in concert and at the direction or with
the
consent of the Administrative Agent.
29.12 Offsets.
In
addition to any rights now or hereafter granted under applicable law and not
by
way of limitation of any such rights, but subject in any case to Section 29.11
above, upon the occurrence and during the continuance of any Default or Event
of
Default, each Lender is hereby authorized at any time or from time to time,
to
set off and to appropriate and to apply any and all balances held by it at
any
of its offices for the account of any Borrower (regardless of whether such
balances are then due to such Borrower) and any other properties or assets
any
time held or owing by such Lender to or for the credit or for the account of
any
Borrower against and on account of any of the obligations which are not paid
when due hereunder owing to such Lender. Any Lender exercising a right to set
off or otherwise receiving any payment on account of the obligations owing
to it
in excess of its Pro Rata Share thereof shall purchase for cash (and the other
Lenders or holders shall sell) such participations in each such other Lender’s
or holder’s Pro Rata Share of the Advances as would be necessary to cause such
Lender to share the amount so set off or otherwise received with each other
Lender or holder in accordance with their respective Pro Rata Shares.
Notwithstanding the foregoing, if all or any portion of the set-off amount
or
payment otherwise received is thereafter recovered from the Lender that has
exercised the right of set-off, the purchase of participations by that Lender
shall be rescinded and the purchase price restored without interest.
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29.13 Protection
of Collateral.
The
Administrative Agent may, but shall not be obligated to, at any time and from
time to time take such actions as the Administrative Agent deems necessary
or
appropriate to protect the Administrative Agent’s liens and security interests
in and to preserve the Collateral. Each Borrower agrees to cooperate fully
with
all of Administrative Agent’s efforts to preserve the Collateral and
Administrative Agent’s liens and security interests therein. For the avoidance
of doubt, nothing in this Section 29.13 or otherwise in this Agreement shall
require, or be construed so as to require, the Administrative Agent to advance,
expend or risk its own funds or otherwise incur personal liability in the
performance of its duties or in the exercise of any rights or remedies
hereunder.
29.14 Performance
by Agent.
If any
Borrower fails to perform any agreement contained herein, the Administrative
Agent may, but shall not be obligated to, cause the performance of, such
agreement, and the expenses of Administrative Agent incurred in connection
therewith shall be payable by the Borrowers.
29.15 Fees
and Expenses.
Each of
the Borrowers agrees to promptly pay all reasonable costs and expenses of the
Administrative Agent incurred in its capacity hereunder as “Administrative
Agent” upon demand by the Administrative Agent and if not so paid all such costs
and expenses shall be included as additional indebtedness hereunder and shall
bear interest at the default rate provided for in Section 23.4 hereof. The
Borrowers shall pay to the Administrative Agent a fee of 1.05% of the principal
amount of the Advances outstanding from time to time hereunder; such fee to
be
calculated and paid on a quarterly basis in arrears based on the daily
outstanding principal balance of the Advances during each such quarter.
30. Binding
Effect.
No
Borrower can assign its interest in this Agreement without the prior written
consent of the Lenders and the Administrative Agent. In accordance with the
requirements of Sections 28.1 and 28.2 hereof, any Lender may assign or
participate its interests, in whole or in part, hereunder without any Borrower’s
consent. Notwithstanding the foregoing, no assignment of all of any Lender’s
interest in this Agreement shall be effective until PHHI receives written notice
of such assignment. This Agreement will protect and bind the respective heirs,
representatives, successors and assigns of the Borrowers, the Lenders and the
Administrative Agent.
31. Notices.
Except
as otherwise stated herein, all notices, arbitration claims, responses, requests
and documents will be sufficiently given or served if mailed or delivered:
(a)
to Borrowers at PHHI’s principal place of business specified in Part 1 on the
Schedule of Terms and Disclosures attached hereto or such other address as
PHHI
may hereafter specify in writing to the other parties hereto, (b) to
Administrative Agent as specified in Part 12 on the Schedule of Terms and
Disclosures attached hereto or such other address as the Administrative Agent
may hereafter specify in writing to the other parties hereto and (c) to the
Lenders as specified in Part 13 on the Schedule of Terms and Disclosures
attached hereto or such other address as the any such Lender may hereafter
specify in writing to the other parties hereto.
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32. NO
ORAL AGREEMENTS.
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM
ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBTS
ARE NOT ENFORCEABLE. TO PROTECT BORROWERS, THE ADMINISTRATIVE AGENT AND THE
LENDERS FROM MISUNDERSTANDING OR DISAPPOINTMENT, ALL AGREEMENTS COVERING SUCH
MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES, EXCEPT AS SPECIFICALLY PROVIDED
HEREIN OR AS THE PARTIES MAY LATER AGREE IN WRITING TO MODIFY IT. THERE ARE
NO
UNWRITTEN AGREEMENTS BETWEEN THE PARTIES.
33. Other
Waivers.
Each of
the Borrowers irrevocably waives notice of: each Lender’s acceptance of this
Agreement, presentment, demand, protest, nonpayment, nonperformance, and
dishonor. Each of the Borrowers, the Lenders and the Administrative Agent
irrevocably waives all rights to claim any punitive and/or exemplary damages.
34. Severability.
If any
provision of this Agreement or its application is invalid or unenforceable,
the
remainder of this Agreement will not be impaired or affected and will remain
binding and enforceable.
35. Receipt
of Agreement.
Each of
the Borrowers acknowledges that it has received a true and complete copy of
this
Agreement. Each of the Borrowers acknowledges that it has read and understood
this Agreement. Notwithstanding anything herein to the contrary: (a) the
Administrative Agent and each Lender may rely on any facsimile copy, electronic
data transmission or electronic data storage of this Agreement, billing
statement, invoice, financial statements or other reports, and (b) such
facsimile copy, electronic data transmission or electronic data storage will
be
deemed an original, and the best evidence thereof for all purposes, including,
without limitation, under this Agreement or any other agreement among the
Lenders, the Administrative Agent and the Borrowers, and for all evidentiary
purposes before any arbitrator, court or other adjudicatory authority.
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36. Miscellaneous.
Time is
of the essence regarding each Borrower’s performance of its obligations to the
Lenders and/or Administrative Agent hereunder notwithstanding any course of
dealing or custom on the Lenders’ and/or Administrative Agent’s part to grant
extensions of time. Each Borrower’s liability under this Agreement is direct and
unconditional and will not be affected by the release or nonperfection of any
security interest granted hereunder. The Lenders and/or the Administrative
Agent
will have the right to refrain from or postpone enforcement of this Agreement
or
any other agreements between or among the Administrative Agent, the Lenders
and
the Borrowers without prejudice and the failure to strictly enforce these
agreements will not be construed as having created a course of dealing between
or among the Administrative Agent, the Lenders and the Borrowers contrary to
the
specific terms of the agreements or as having modified, released or waived
the
same. The express terms of this Agreement will not be modified by any course
of
dealing, usage of trade, or custom of trade which may deviate from the terms
hereof. Except as provided in Sections 28.2, 28.3, and 44 or with respect to
any
ministerial corrections to the terms and provisions of this Agreement agreed
to,
in writing, among the Borrowers and Administrative Agent, this Agreement may
be
amended or modified or provisions waived only in a writing signed by the
Majority Lenders, the Administrative Agent and the Borrowers, provided that
no
such amendment or modification or waiver shall, without the prior written
consent of the affected Lender, reduce, waive, forgive, defer or postpone any
payment of principal, interest or fees hereunder to such Lender, reduce any
rate
of interest provided for herein, change the dollar amount of the Total Credit
Line allocated to such Lender or its Commitment, release any Borrower from
any
of its obligations hereunder to such Lender, or change the definition of “Total
Credit Line” or “Majority Lenders.” If any Borrower fails to pay any taxes, fees
or other obligations which may impair the Administrative Agent’s security
interest or lien in the Collateral, or fails to keep the Collateral insured,
the
Administrative Agent may, but shall not be required to, pay such taxes, fees
or
obligations and pay the cost to insure the Collateral, and the amounts paid
will
be: (a) an additional debt owed by Borrowers to the Administrative Agent, which
shall be subject to finance charges as provided herein; and (b) due and payable
immediately in full. Borrowers agree to pay all of the Administrative Agent’s
and Lenders’ reasonable attorneys’ fees and expenses incurred by them in
enforcing their respective rights hereunder. The Section titles used in this
Agreement are for convenience only and do not define or limit the contents
of
any Section. The recitals in this Agreement are hereby incorporated herein
and
made a part hereof.
37. Financial
Covenants.
37.1 Covenants.
(a) Operating
Cash Flow.
Borrowers covenant that Consolidated Net Cash Provided by Operating Activities,
as determined as of the end of and in respect of each fiscal year of the
Borrowers (commencing with the fiscal year of the Borrowers ending on March
31,
2005), will not be less than an amount which (i) shall be mutually agreeable
among Borrowers and Lenders and (ii) shall not be less than 80% of the projected
Consolidated Net Cash Provided by Operating Activities for the fiscal year
of
the Borrowers ending on March 31, 2005. Borrowers and Lenders agree that the
aforesaid amount shall be agreed upon on or prior to August 1, 2004 and this
Agreement shall be thereafter accordingly amended. Failure of Borrowers to
reach
an agreement with Lenders with respect to such amount on or prior to August
1,
2004 shall constitute an Event of Default hereunder at the election of the
Majority Lenders. Lenders and Borrowers agree to act in good faith and
reasonably with each other in determining the aforesaid amount.
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(b) Minimum
Liquidity.
Borrowers covenant that they will maintain as of the last day of each fiscal
quarter ending on or after June 30, 2004, a Liquidity Amount of not less than
$25,000,000.
(c) Minimum
Profitability.
Borrowers covenant that they will achieve as of the last day of each fiscal
quarter an aggregate consolidated net income after tax for such fiscal quarter
and the prior three (3) fiscal quarters as follows: (i) in respect of the first
fiscal quarter ending June 30, 2004, not less than $750,000, (ii) in respect
of
the second fiscal quarter ending September 30, 2004, not less than $2, 200,000,
(iii) in respect of the third fiscal quarter ending December 31, 2004, not
less
than $4,000,000 and (iv) in respect of the fiscal quarter ending March 31,
2005
and each fiscal quarter thereafter, not less than $4,000,000.
(d) Minimum
Inventory Turn.
Borrowers covenant that they will maintain as of the last day of each fiscal
quarter ending on or after June 30, 2004, a ratio of (a) Borrowers’ Cost of
Goods Sold, to (b) Average Inventory, for such fiscal quarter and the prior
three (3) fiscal quarters of not less than two and 75/100 to one (2.75:1).
(e) Minimum
Tangible Net Worth.
Borrowers covenant that they will maintain as of the last day of each fiscal
quarter ending on or after June 30, 2004, a Tangible Net Worth of not less
than
One Hundred Fifty Million Dollars ($150,000,000).
(f) Incurrence
of Additional Indebtedness.
The
Borrowers shall not, on or after May 1, 2004, borrow or incur any liability
in
respect of borrowed-money indebtedness (including, without limitation, loans,
notes, bonds or repurchase obligations in respect of any securitizations),
financing or capitalized leases, liabilities for the deferred purchase price
of
property (excluding accounts payable arising in the ordinary course of business
but including all liabilities created or arising under any conditional sale
or
other title retention agreement with respect to any such property), liabilities
in respect of letters of credit or similar instruments, liabilities in respect
of interest rate swaps or similar instruments or any guaranties in respect
of
any of the foregoing if the aggregate amount thereof (excluding any amounts
outstanding under this Agreement and without double-counting any of the
foregoing items) exceeds $75,000,000 unless the Majority Lenders shall have
(prior to the incurrence thereof) consented to the same, in writing (which
consent shall not be unreasonably withheld or delayed), provided that in no
case
shall any of the foregoing items be incurred if the same are secured by any
of
the Collateral (except pursuant to intercreditor agreements in form and
substance acceptable to the Majority Lenders) and provided further that none
of
such items shall be secured by assets of the Borrowers other than Collateral
if
the aggregate amount thereof shall exceed $25,000,000 (even if the total amount
of items incurred under this clause (e) shall be less than $75,000,000) unless
the Majority Lenders shall have (prior to the incurrence thereof) consented
to
the same, in writing (which consent shall not be unreasonably withheld or
delayed).
37.2 Certain
Definitions.
As used
in this Section 37, the following terms will have the meanings set forth below:
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Average
Inventory –
means
Borrowers’ average inventory determined in accordance with GAAP and reflected on
Borrowers’ consolidated financial statements.
Cost
of Goods Sold –
means
Borrowers’ consolidated cost of goods sold determined in accordance with GAAP
and reflected on Borrowers’ consolidated financial statements.
Consolidated
Net Cash Provided by Operating Activities –
means,
with respect to any fiscal year of the Borrowers and on a consolidated basis
for
all Borrowers, the net cash flow provided by operating activities as shown
on a
consolidated statement of cash flows for such Borrowers prepared in accordance
with GAAP. For the avoidance of doubt, net cash flow provided by operating
activities shall exclude cash flows from investing activities and cash flows
from financing activities.
Financial
Covenants –
means
the financial covenants set forth in this Section 37, as amended from time
to
time.
GAAP
–
means
generally accepted accounting principles consistently applied.
Intangibles
–
means
and includes general intangibles (as that term is defined in the Uniform
Commercial Code); accounts receivable and advances due from officers, directors,
members, owners, employees, stockholders and affiliates; leasehold improvements
net of depreciation; licenses; good will; prepaid expenses; escrow deposits;
covenants not to compete; the excess of cost over book value of acquired assets;
franchise fees; organizational costs; finance reserves held for recourse
obligations; capitalized research and development costs; and such other similar
items as the Majority Lenders may from time to time determine in their sole
discretion.
Liquidity
Amount –
means,
as of any date, the sum of (a) cash and cash equivalents as reflected as current
assets on the Borrowers’ consolidated financial statements (and whose use is for
short-term obligations only and not restricted by any agreement), (b) marketable
securities as reflected as current assets on the Borrowers’ consolidated
financial statements (whose disposition is not restricted by any agreement
or by
applicable law) and (c) the result of (i) the Total Credit Line minus (ii)
the
aggregate outstanding principal amount of the Advances plus (iii) the amount
of
the Cash Deposit held by Administrative Agent, provided that if a Default or
Event of Default shall exist, this clause (c) shall be deemed to be $0.
Person
–
shall
mean an individual, a partnership, a joint venture, a corporation, a trust,
a
limited liability company, an unincorporated organization, and a government
or
any department or agency thereof.
Subordinated
Debt –
means
all of Debt of the Borrowers which is subordinated to the payment of liabilities
of the Borrowers hereunder to the Lenders by an agreement in form and substance
satisfactory to the Majority Lenders. The Junior Component of the Total Credit
Line shall not constitute Subordinated Debt.
-45-
Tangible
Net Worth –
means
the consolidated book value of Borrowers’ assets less consolidated liabilities
(including as liabilities all reserves for contingencies and other potential
liabilities and all Subordinated Debt), excluding from such assets all
Intangibles.
37.3 Covenant
Compliance Certificate.
The
President or Chief Financial Officer of PHHI will certify to the Administrative
Agent and each of the Lenders by the 45th day after the end of each fiscal
quarter, 90th day after the end of each fiscal year end or more often if
requested by the Majority Lenders, that each of the Borrowers is in compliance
with the Financial Covenants as set forth in a form acceptable to the
Administrative Agent and the Majority Lenders.
37.4 Review
of Financial Covenants.
The
Administrative Agent will review the Financial Covenants annually (or more
frequently in the case of an Event of Default) to determine whether the
Financial Covenants are then appropriate or need to be revised and will make
recommendations to the Borrowers and the Majority Lenders. If, in the reasonable
determination of the Majority Lenders, such Financial Covenants need to be
revised, then the Borrowers and the Lenders will promptly attempt to reach
a
mutual agreement as to such revisions and shall appropriately amend this
Agreement.
38. Louisiana
Collateral/Confession of Judgment.
With
respect to Collateral of each Borrower located in the State of Louisiana, each
of the Borrowers agree as follows:
38.1 Confession
Of Judgment; Consent To Executory Process.
Each
Borrower confesses judgment up to the full amount of all obligations at any
time
owing from such Borrower hereunder. Each Borrower consents, agrees and
stipulates that, in the case of an Event of a Default in the payment or
performance of any such obligations, the Administrative Agent may, without
making demand and without notice of default (the same being expressly waived),
and in addition to all other available remedies, cause all or any portion of
the
Collateral to be seized and sold by executory process, without appraisement,
as
an entirety or in parcels as the Administrative Agent may determine.
38.2 Waivers.
Each
Borrower waives the benefit of:
(a) appraisement,
as provided in Articles 2332, 2336, 2723 and 2724 of the Louisiana Code of
Civil
Procedure (the “LCCP”)
and
all other laws conferring the same;
(b) the
demand and three (3) days delay required by Articles 2639 and 2721 of the LCCP;
(c) the
notice of seizure required by Articles 2293 and 2721 of the LCCP;
(d) the
three
(3) days delay required by Articles 2331 and 2722 of the LCCP; and
(e) all
other
provisions of Articles 2293, 2331, 2332, 2336, 2639, 2721, 2722, 2723 and 2724
of the LCCP and all provisions of all other Articles of the LCCP.
-46-
39. Binding
Arbitration.
39.1 Arbitrable
Claims.
Except
as otherwise specified below, all actions, disputes, claims and controversies
under common law, statutory law or in equity of any type or nature whatsoever
(including, without limitation, all torts, whether regarding negligence, breach
of fiduciary duty, restraint of trade, fraud, conversion, duress, interference,
wrongful replevin, wrongful sequestration, fraud in the inducement, usury or
any
other tort, all contract actions, whether regarding express or implied terms,
such as implied covenants of good faith, fair dealing, and the commercial
reasonableness of any Collateral disposition, or any other contract claim,
all
claims of deceptive trade practices or lender liability, and all claims
questioning the reasonableness or lawfulness of any act), whether arising before
or after the date of this Agreement, and whether directly or indirectly relating
to: (a) this Agreement and/or any amendments and addenda hereto, or the breach,
invalidity or termination hereof; (b) any act committed by any Lender or by
any
parent company, subsidiary or affiliated company of such Lender (as to any
Lender, the “Lender
Companies”),
or by
any employee, agent, officer or director of a Lender Company whether or not
arising within the scope and course of employment or other contractual
representation of the Lender Companies provided that such act arises under
a
relationship, transaction or dealing between such Lender and a Borrower
hereunder; (c) any act committed by the Administrative Agent or by any parent
company, subsidiary or affiliated company of the Administrative Agent (as the
“AA
Companies”),
or by
any employee, agent, officer or director of an AA Company whether or not arising
within the scope and course of employment or other contractual representation
of
the AA Companies provided that such act arises under a relationship, transaction
or dealing between the Administrative Agent and a Borrower hereunder; and/or
(d)
any other relationship, transaction or dealing between any Lender, the
Administrative Agent and any Borrower hereunder (collectively the “Disputes”),
will
be subject to and resolved by binding arbitration.
39.2 Administrative
Body.
All
arbitration hereunder will be conducted in accordance with the Commercial
Arbitration Rules of The American Arbitration Association (“AAA”).
If
the AAA is dissolved, disbanded or becomes subject to any state or federal
bankruptcy or insolvency proceeding, the parties will remain subject to binding
arbitration which will be conducted by a mutually agreeable arbitral forum.
The
parties agree that all arbitrator(s) selected will be attorneys with at least
five (5) years secured transactions experience. The arbitrator(s) will decide
if
any inconsistency exists between the rules of any applicable arbitral forum
and
the arbitration provisions contained herein. If such inconsistency exists,
the
arbitration provisions contained herein will control and supersede such rules.
The site of all arbitration proceedings will be in Chicago, Illinois.
39.3 Discovery.
Discovery permitted in any arbitration proceeding commenced hereunder is limited
as follows. No later than thirty (30) days after the filing of a claim for
arbitration, the parties will exchange detailed statements setting forth the
facts supporting the claim(s) and all defenses to be raised during the
arbitration, and a list of all exhibits and witnesses. No later than twenty-one
(21) days prior to the arbitration hearing, the parties will exchange a final
list of all exhibits and all witnesses, including any designation of any expert
witness(es) together with a summary of their testimony; a copy of all documents
and a detailed description of any property to be introduced at the hearing.
Under no circumstances will the use of interrogatories, requests for admission,
requests for the production of documents or the taking of depositions be
permitted. However, in the event of the designation of any expert witness(es),
the following will occur: (a) all information and documents relied upon by
the
expert witness(es) will be delivered to the opposing party, (b) the opposing
party will be permitted to depose the expert witness(es), (c) the opposing
party
will be permitted to designate rebuttal expert witness(es), and (d) the
arbitration hearing will be continued to the earliest possible date that enables
the foregoing limited discovery to be accomplished.
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39.4 Exemplary
or Punitive Damages.
The
Arbitraton(s) will not have the authority to award exemplary or punitive
damages.
39.5 Confidentiality
of Awards.
All
arbitration proceedings, including testimony or evidence at hearings, will
be
kept confidential, although any award or order rendered by the arbitrator(s)
pursuant to the terms of this Agreement may be entered as a judgment or order
in
any state or federal court and may be confirmed within the federal judicial
district which includes the residence of the party against whom such award
or
order was entered. This Agreement concerns transactions involving commerce
among
the several states. The Federal Arbitration Act, Title 9 U.S.C. Sections 1
et
seq., as amended (“FAA”)
will
govern all arbitration(s) and confirmation proceedings hereunder.
39.6 Prejudgment
and Provisional Remedies.
Nothing
herein will be construed to prevent Administrative Agent’s, any Lender’s or any
Borrower’s use of bankruptcy, receivership, injunction, repossession, replevin,
claim and delivery, sequestration, seizure, attachment, foreclosure, dation
and/or any other prejudgment or provisional action or remedy relating to any
Collateral for any current or future debt owed by either party to the other.
Any
such action or remedy will not waive Administrative Agent’s, any Lender’s or any
Borrower’s right to compel arbitration of any Dispute.
39.7 Attorneys’
Fees.
If the
Administrative Agent, any Lender or any Borrower brings any other action for
judicial relief with respect to any Dispute (other than those set forth in
Section 39.6), the party bringing such action will be liable for and immediately
pay all of the other parties’ costs and expenses (including reasonable
attorneys’ fees) incurred to stay or dismiss such action and remove or refer
such Dispute to arbitration. If the Administrative Agent, any Lender or any
Borrower brings or appeals an action to vacate or modify an arbitration award
and such party does not prevail, such party will pay all costs and expenses,
including reasonable attorneys’ fees, incurred by the other parties in defending
such action. Additionally, if any Borrower sues the Administrative Agent and/or
any Lender or institutes any arbitration claim or counterclaim against the
Administrative Agent or any Lender in which the Administrative Agent or such
Lender is the prevailing party, such Borrower will pay all material costs and
expenses (including reasonable attorneys’ fees) incurred by the Administrative
Agent or such Lender in the course of defending such action or proceeding.
39.8 Limitations.
Any
arbitration proceeding must be instituted: (a) with respect to any Dispute
for
the collection of any debt owed by any party hereto to any other party hereto,
within two (2) years after the date that the last payment was received by the
instituting party in respect thereof; and (b) with respect to any other Dispute,
within two (2) years after the date the incident giving rise thereto occurred,
whether or not any damage was sustained or capable of ascertainment or either
party knew of such incident. Failure to institute an arbitration proceeding
within such period will constitute an absolute bar and waiver to the institution
of any proceeding, whether arbitration or a court proceeding, with respect
to
such Dispute.
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39.9 Survival
After Termination.
The
agreement to arbitrate will survive the termination of this Agreement.
40. INVALIDITY/UNENFORCEABILITY
OF BINDING ARBITRATION.
IF THIS AGREEMENT IS FOUND TO BE NOT SUBJECT TO ARBITRATION, ANY LEGAL
PROCEEDING WITH RESPECT TO ANY DISPUTE WILL BE TRIED IN A COURT OF COMPETENT
JURISDICTION BY A JUDGE WITHOUT A JURY. BORROWERS, LENDERS AND ADMINISTRATIVE
AGENT WAIVE ANY RIGHT TO A JURY TRIAL IN ANY SUCH PROCEEDING.
41. Governing
Law.
Each
Borrower acknowledges and agrees that this and all other agreements by and
between such Borrower, the other Borrowers, the Administrative Agent and the
Lenders have been substantially negotiated, and will be substantially performed,
in the state of Georgia. Accordingly, each Borrower agrees that all Disputes
will be governed by, and construed in accordance with, the laws of such state,
except to the extent inconsistent with the provisions of the FAA which shall
control and govern all arbitration proceedings hereunder.
42. Intentionally
Omitted.
43. Subordination.
Each of
PHHI and PHMLP hereby subordinates and makes junior any lien or security
interest or reservation of rights or interests in its favor with respect to
any
units of Palm Harbor Brand Homes sold by it to PHHLP or PHMI and financed
hereunder to any lien or security interest that the Administrative Agent may
hold hereunder in any PHHLP Purchase Money Collateral, any PHHLP General
Collateral, any PHMI Purchase Money Collateral and/or any PHMI General
Collateral, including, without limitation, any lien or security interest or
reservation of rights or interest in favor of PHHI or PHMLP arising from the
failure of PHHLP or PHMI to timely pay in full the purchase price of any units
of Palm Harbor Brand Homes acquired from PHHI or PHMLP and financed hereunder.
Neither PHHI or PHMLP shall enforce or seek to enforce any such lien or security
interest or reservation of rights or interests or to otherwise exercise any
right or remedy available to either of them at law or equity with respect to
the
same for so long as this Agreement is in effect or any obligations of the
Borrowers remain outstanding.
44. Retail
Locations and Manufacturing Sites.
To the
extent that PHHI opens or closes any PHHI Retail Locations or PHHI Manufacturing
Sites, PHHI shall give notice of the same to the Administrative Agent and
Lenders and, provided that no Default or Event of Default shall exist, PHHI
and
the Administrative Agent are hereby authorized by the other Borrowers and the
Lenders to appropriately amend the Statement of Terms and Disclosures to reflect
the same. To the extent that PHMLP opens or closes any PHMLP Manufacturing
Sites, PHMLP shall give notice of the same to the Administrative Agent and
Lenders and, provided that no Default or Event of Default shall exist, PHMLP
and
the Administrative Agent are hereby authorized by the other Borrowers and the
Lenders to appropriately amend the Statement of Terms and Disclosures to reflect
the same.
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45. Conditions
Precedent to Effectiveness of this Agreement.
This
Agreement shall become effective upon the Administrative Agent’s written
confirmation to PHHI that all of the following conditions have been satisfied:
45.1 This
Agreement.
This
Agreement shall have been executed by each Borrower, the Administrative Agent,
and Textron Financial.
45.2 Corporate
Documents of PHHI and PHMI.
PHHI
and PHMI shall each have delivered to the Administrative Agent a certificate
of
each of PHHI’s Secretary and PHMI’s Secretary, respectively, certifying (i) that
attached thereto is a true and complete copy of the articles of organization
of
PHHI or PHMI, as applicable, as in effect on the date of such certificate;
(ii)
that attached thereto is a true and complete copy of the bylaws of PHHI or
PHMI,
as applicable, as in effect on the date of such certificate; (iii) that attached
thereto is a true and complete copy of all resolutions adopted by the board
of
directors and/or stockholders of PHHI or PHMI, as applicable, authorizing the
execution, delivery and performance of this Agreement and the other documents
being executed in connection therewith, and the consummation of the transactions
contemplated hereby and thereby, and that all such resolutions are in full
force
and effect on the date of such certificate and are all of the resolutions
adopted in connection with the transactions contemplated by this Agreement
and
the other documents; (iv) that attached thereto is a certificate issued by
the
Secretary of State of the State of Florida showing PHHI to be in good standing
in the State of Florida or a certificate issued by the Secretary of State of
the
State of Nevada showing PHMI to be in good standing in the State of Nevada,
as
applicable; and (v) to the incumbency and specimen signature of each officer
of
PHHI or PHMI, as applicable, executing this Agreement and any agreement,
document, certificate or instrument furnished pursuant hereto or thereto.
45.3 Organizational
Documents of PHMLP and PHHLP.
PHMLP
and PHHLP shall each have delivered to the Administrative Agent a partner’s
certificate for each of PHMLP and PHHLP certifying (i) that attached thereto
is
a true and complete copy of the limited partnership certificate of PHMLP or
PHHLP, as applicable, as in effect on the date of such certificate; (ii) that
attached thereto is a true and complete copy of the limited partnership
agreement of PHMLP or PHHLP, as applicable, as in effect on the date of such
certificate; (iii) that the general partner and/or partners of PHMPL or PHLLP,
as applicable, have adopted resolutions authorizing the execution, delivery
and
performance of this Agreement and the other financing documents, and the
consummation of the transactions contemplated hereby and thereby, and that
all
such resolutions are in full force and effect on the date of such certificate;
(iv) that attached thereto is a certificate issued by the Secretary of State
of
the State of Texas, showing PHMLP or PHHLP, as applicable, to be in good
standing in the State of Texas; and (v) to the incumbency and specimen signature
of each partner of PHMLP or PHHLP, as applicable, executing this Agreement
and
any agreement, document, certificate or instrument furnished pursuant thereto.
45.4 Legal
Opinions.
The
Administrative Agent shall have received from counsel to the Borrowers an
opinion or opinions reasonably satisfactory to it.
45.5 Representations
and Warranties.
All of
the representations and warranties made pursuant to or in connection with this
Agreement and the other financing documents shall be true, correct, and complete
in all respects and the Borrowers shall have delivered certificates to the
Administrative Agent in respect thereof.
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45.6 No
Material Adverse Change.
No
material adverse change in the business, properties, condition (financial or
otherwise), operations, results of operations, or prospects of any Borrower
shall have occurred.
45.7 Expenses.
The
Borrowers shall have paid all costs, expenses, and fees (including, without
limitation, attorneys’ fees) incurred by the Administrative Agent and Lenders in
connection with the preparation and closing of this Agreement.
45.8 Consents.
All
governmental approvals and all authorizations, consents, and approvals of third
parties required on the part of any Borrower in connection with the execution
and delivery of this Agreement and the other documents, and the consummation
of
the transactions contemplated hereby and thereby, shall have been obtained.
45.9 Financing
Statements.
All
filings of Uniform Commercial Code financing statements and all other filings
(including without limitation, UCC amendment statements, fixture filings, and
Texas Inventory Finance Security Forms) and actions necessary to perfect
Administrative Agent’s security interests in and to the Collateral shall have
been filed and confirmation thereof received.
45.10 Additional
Documents.
Administrative Agent shall have received such additional documents, agreements,
certifications, record and lien searches, insurance certificates and policies,
and opinions which Administrative Agent reasonably may deem necessary or
desirable.
45.11 Proceedings
Satisfactory.
All
actions taken in connection with the execution of this Agreement shall be
satisfactory to the Administrative Agent and the Lenders and their respective
counsel. Any inventory financier of any Borrower (other than an inventory
financier to be paid in full from the proceeds of the first Advance hereunder)
shall have entered into a intercreditor agreement or subordination agreement
with the Administrative Agent in form and substance satisfactory to the
Administrative Agent. The Administrative Agent shall have received
landlord/lienholder waivers in respect of each applicable PHHI Retail Location,
PHHI Manufacturing Site, PHMLP Manufacturing Site, PHHLP Retail Location, and
PHMI Retail Location.
45.12 Cash
Deposit.
The
Cash Deposit shall have been delivered to the Administrative Agent.
45.13 Fee.
The
Borrowers shall have paid to Textron Financial a closing fee of $210,000, which
shall be earned in full upon Textron Financial’s entering into this Agreement as
a Lender.
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Nothing
in this Section 45 shall replace or waive any conditions or requirements set
forth herein with respect to any Borrower requesting an Advance. Such conditions
and requirements are in addition thereto. Without limiting the scope of the
immediately preceding sentence, in connection with the first requested Advance
hereunder, the Borrowers shall cause all loans owing to National City Bank
and
Legacy Bank of Texas under the Existing Agreement for Wholesale Financing to
be
paid in full.
46. Junior
Component.
The
Lenders agree that the Junior Component shall be junior and subordinate to
the
Senior Component in terms of payment and liens as provided for herein and as
may
be provided for by the Majority Lenders from time to time.
[Signature
Page Follows]
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IN
WITNESS WHEREOF,
the
Administrative Agent, each of the Lenders set forth below and each of the
Borrowers have executed this Agreement as of the Date first set forth
hereinabove.
THIS
CONTRACT CONTAINS BINDING ARBITRATION, JURY WAIVER AND PUNITIVE DAMAGE WAIVER
PROVISIONS.
|
TEXTRON
FINANCIAL CORPORATION, as
Administrative
Agent
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By:
|
/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇
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|
Print
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
|
Title:
Group President
|
|
|
TEXTRON
FINANCIAL CORPORATION, as
Lender
|
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By:
|
/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇
|
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Print
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
|
Title:
Group President
|
|
|
PALM
HARBOR HOMES, INC.
|
|
|
By:
|
PALM
HARBOR G.P., INC.,
|
|
General
Partner
|
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By:
|
/s/
▇▇▇▇▇ ▇▇▇▇▇▇
|
|
Print
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
|
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Title:
President
|
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PALM
HARBOR MARKETING, INC.
|
|
|
By:
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/s/
▇▇▇▇▇ ▇▇▇▇▇▇
|
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Print
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
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Title:
President
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-53-
|
PALM
HARBOR MANUFACTURING, L.P.
|
|
|
By:
|
PALM
HARBOR GenPar, LLC,
|
|
General
Partner
|
|
|
By:
|
/s/
▇▇▇▇▇ ▇▇▇▇▇▇
|
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Print
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
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Title:
President
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-54-
Definition
Appendix
AA
Companies –
Section
39.1 of this Agreement.
AAA
–
Section
39.2 of this Agreement.
Administrative
Agent –
first
paragraph of this Agreement.
Advance
–
recital
F of this Agreement.
Agreement
–
first
paragraph of this Agreement.
Audit
–
Section
21 of this Agreement.
Audit
Fees –
Section
21 of this Agreement.
Booking
Date –
Section
6 of this Agreement.
Borrower
–
first
paragraph of this Agreement.
Cash
Deposit –
Section
14 of this Agreement.
Collateral
–
Section
14 of this Agreement.
Commitment
–
means,
with respect to any Lender, the amount set forth underneath its signature hereto
or to any assignment, joinder or accession agreement, as the case may be,
provided that the amount of such Commitment shall be adjusted to give effect
to
any assignment or assumptions or reallocations of such Commitments permitted
under Section 28 hereof.
Contract
Pending or Contract Pending Receivable –
means
a
contract entered into between a retail purchaser and a Borrower for the sale
in
the ordinary course of business of a unit of Palm Harbor Brand Manufactured
Homes financed hereunder that provides for the following: (a) removal of such
unit from such Borrower's manufacturing or retail location and the delivery
of
such unit to the location of the retail purchaser and (b) the closing of the
purchase transaction together with the delivery of title to such unit to such
retail purchaser on a date after the actual delivery of such unit to such retail
purchaser.
CountryPlace
Warehouse/Securitization Facility –
Section
22 of this Agreement.
Default
–
means
an event or condition the occurrence of which would, with the lapse of time
or
the giving of notice or both, become an Event of Default.
Disputes
–
Section
39.1 of this Agreement.
Eligible
Assignee –
means
(a) any
Lender that is a signatory hereto or any parent, affiliate or subsidiary of
any
such Lender,
-55-
(b) any
commercial bank organized under the laws of the United States of America or
any
state thereof that has combined capital and surplus of at least
$100,000,000,
(c) any
savings and loan association or savings bank organized under the laws of the
United States of America or any state thereof that has combined capital and
surplus of at least $100,000,000, and
(d) any
other
trust or entity organized under the laws of the United States of America or
any
state thereof that (i) is an “accredited investor” (as defined in Regulation D
under the Securities Act of 1933, as amended), (ii) is a commercial finance
company, insurance company or other financial institution that regularly makes
commercial loans in the ordinary course of its business or (iii) has combined
capital and equity of at least $100,000,000.
Eligible
Contract Pending –
means
any Contract Pending with respect to which the Borrowers shall have supplied
to
the Administrative Agent sufficient information so as to allow the
Administrative Agent to verify the existence and validity of such Contract
Pending at the time of its creation and at any other time thereafter and with
respect to which said Borrowers shall have used their respective best efforts
to
insure that all payments thereunder will be made directly to the Administrative
Agent.
Existing
Agreement for Wholesale Financing –
recital
B of this Agreement.
Event
of Default –
means
an event or condition set forth in Section 22.1 or Section 22.2 hereof, after
giving effect to any lapse of time, cure or grace period or the giving of any
notice required, in each case by said Sections, to expire or be given.
FAA
–
Section
39.5 of this Agreement.
Financial
Covenants –
Section
37 of this Agreement.
Funding
Date –
Section
6 of this Agreement.
Junior
Component –
recital
I of this Agreement.
Late
Fee –
Section
11 of this Agreement.
LCCP
–
Section
38.2(a) of this Agreement
Lender
–
first
paragraph of this Agreement.
Lender
Companies – Section
39.1 of this Agreement.
Majority
Lenders –
means
Lenders whose Pro Rata Shares aggregate more than 67% of all Pro Rata Shares
(with Pro Rata Shares being calculated pursuant to the proviso set forth in
the
definition thereof) and (ii) for so long as no payment obligations of any
Borrower shall be outstanding hereunder, Lenders whose Commitments aggregate
more than 67% of all Pro Rata Shares being calculated without giving effect
to
the aforesaid proviso.
-56-
Manufactured
Home Advance –
means
any Advance hereunder in respect of a unit of Palm Harbor Brand Manufactured
Homes.
Maturity
Date –
Section
27 of this Agreement.
NSF
check –
Section
10 of this Agreement.
Other
Lender –
Section
29.8(a) of this Agreement.
Over
360-Day Manufactured Home Advance –
means
any Manufactured Home Advance which has been outstanding for more than 360
days
after the Booking Date in respect thereof or after the “original wholesale
invoice” date in respect of such Advance if such Advance shall have been an
advance outstanding under the Existing Agreement for Wholesale Financing (the
“original wholesale invoice” date in respect of any such advance shall be the
date of the “original wholesale invoice” that supported such advance under the
Existing Agreement for Wholesale Financing).
Over
360-Day Excess Amount –
Section
9 of this Agreement.
Palm
Harbor Brand Homes –
recital
A of this Agreement.
Palm
Harbor Brand Manufactured Homes –
recital
A of this Agreement.
Palm
Harbor Brand Modular Homes –
recital
A of this Agreement.
Participating
Lender –
means
any person which (a) shall have been granted the right by a Lender to
participate in such Lender’s Pro Rata Share of an Advance or Advances hereunder
and any charges and fees in respect thereof and (b) shall have entered into
a
participation agreement with such Lender which shall provide, inter alia, that
such Participating Lender shall communicate and deal only with such Lender
with
respect to such Participating Lender’s interest in such Advance or Advances and
such charges and fees.
PHHI
–
first
paragraph of this Agreement.
PHHI
General Collateral –
Section
14 of this Agreement.
PHHI
Manufacturing Site –
recital
K of this Agreement.
PHHI
Retail Location –
recital
K of this Agreement.
PHHLP
–
first
paragraph of this Agreement
PHHLP
General Collateral – Section
14 of this Agreement.
PHHLP
Purchase Money Collateral –
Section
13 of this Agreement.
-57-
PHHLP
Retail Location –
recital
N of this Agreement.
PHMLP
General Collateral –
Section
14 of this Agreement.
PHMLP
Manufacturing Site –
recital
L of this Agreement.
PHMLP
–
first
paragraph of this Agreement.
PHMI
–
first
paragraph of this Agreement
PHMI
General Collateral –
Section
14 of this Agreement.
PHMI
Purchase Money Collateral –
Section
13 of this Agreement.
PHMI
Retail Location –
recital
N of this Agreement.
Prime
Rate –
means,
for any month, the highest prime rate of interest announced during such month
by
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank or such other money center bank as the Administrative
Agent
shall select from time to time.
Pro
Rata Principal Payments –
Section
29.8(b) of this Agreement.
Pro
Rata Share
–
means,
with respect to any Lender at any time, a fraction determined as follows: the
amount of the Commitment of such Lender under this Agreement (as such Commitment
may be affected by Sections 28.2 and 28.3 hereof) at such time divided by the
Total Credit Line determined at such time, provided that, with respect to any
distribution of any payments received by the Administrative Agent from any
Borrower or from proceeds of Collateral in respect of any Advance or Advances
and all interest, finance charges Late Fees and fees in respect thereof, “Pro
Rata Share” shall be determined as follows: the portion of the aggregate amount
of the obligations of the Borrowers hereunder owing to such Lender divided
by
the aggregate amount of the obligations of the Borrowers hereunder owing to
all
of the Lenders. Absent manifest error, the records of the Administrative Agent
shall be binding on the Borrowers and Lenders with respect to any Lender’s
allocated amount of the Total Credit Line and its respective Commitment. The
foregoing shall be subject to adjustment as provided for in Sections 27 and
28
of this Agreement.
Senior
Component –
recital
I of this Agreement.
Settlement
Date –
means
(a) the first business day of each month that this Agreement is in effect and
(b) the fifteenth (15th) day of each month that this Agreement is in effect
(or
the next succeeding business day if the 15th day of the month is not a business
day), provided that Textron Financial may, in its sole discretion and at any
time or times, establish settlement dates that are more frequent than those
provided for in clauses (a) and (b) above.
Settlement
Date Funding Payment –
Section
29.8(a) of this Agreement.
-58-
Sub-Limit
–
means,
with respect to any Borrower, such amount of the Total Credit Line as may be
agreed to among the Borrowers and the Administrative Agent (acting at the
instruction of the Majority Lenders).
Substitute
Lender –
Section
29.8(a) of this Agreement.
Term
–
Section
27 of this Agreement.
Textron
Financial –
first
paragraph of this Agreement.
Total
Credit Line –
recital
G of this Agreement.
Transamerica
Facility –
Section
22 of this Agreement.
Unfunded
Portion of an Advance –
Section
29.8(a) of this Agreement.
-59-
Schedule
of Terms and Disclosures:
Part
1:
Principal Place of Business and Notification Addresses for Borrowers
Principal
Place of Business
Palm
Harbor Homes
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Notification
Addresses for Borrowers
Palm
Harbor Homes, Inc.
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Palm
Harbor Homes I, LP
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Palm
Harbor Homes Manufacturing, LP
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Palm
Harbor Marketing, Inc.
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Part
2:
Trade and Brand Names of Manufactured Homes:
|
Palm
Harbor Homes
|
Masterpiece
Homes
|
|
Country
Place Homes
|
Keystone
|
|
RiverBend
|
Part
3:
PHHI Retail Locations
See
attached address list.
-60-
Part
4:
PHHI Manufacturing Sites
|
Plant
02
Palm
Harbor Homes
▇▇▇
▇. ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
Plant
20
Palm
Harbor Homes
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|
Plant
06/09
Palm
Harbor Homes
▇▇▇
▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
|
Plant
23
Palm
Harbor Homes
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
|
Plant
▇▇
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇,
▇▇ ▇▇▇▇▇
|
Plant
32
Palm
Harbor Homes
▇▇▇▇▇
▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|
Plant
18
Palm
Harbor Homes Masterpiece Housing
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
Plant
33
Palm
Harbor Homes
▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
|
Plant
19
Palm
Harbor Homes
11
▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇.
▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
Part
5:
PHMLP Manufacturing Sites
|
Plant
05/07
Palm
Harbor Homes
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
Plant
17
Palm
Harbor Homes
▇▇▇
▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|
Plant
15
Masterpiece
Housing
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇.
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
Plant
22
Palm
Harbor Homes
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇,
▇▇ ▇▇▇▇▇
|
Part
6:
Intentionally Omitted
-61-
Part
7:
Wiring Instructions for Lenders to Wire Funds to Administrative Agent
Bank
One
Chicago,
IL
ABA
▇▇▇▇▇▇▇▇▇
Acct
5262542
TFC
Floorplan
Part
8:
Wiring Instruction for Administrative Agent to Wire Funds to Borrowers:
|
Bank
Name/City:
|
▇▇
▇▇▇▇▇▇ Chase
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
214-965-2021
|
|
Bank
ABA (Routing) No.:
|
▇▇▇▇▇▇▇▇▇
|
|
Account
Name:
|
Palm
Harbor Homes I, LP
|
|
Account
No.:
|
08805222658
|
Part
9:
Wiring Instructions for Borrowers to Wire Funds to Administrative Agent:
Bank
One
Chicago,
IL
ABA
▇▇▇▇▇▇▇▇▇
Acct
5262542
TFC
Floorplan
Part
10:
Permission for Palm Harbor Brand homes financed under this Agreement to become
Fixtures:
See
attached listing of locations
Part
11:
Wiring instruction for Other Lenders to Wire Funds to Textron Financial:
Bank
One
Chicago,
IL
ABA
▇▇▇▇▇▇▇▇▇
Acct
5262542
TFC
Floorplan
Part
12:
Address of Administrative Agent:
Textron
Financial Corporation
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
▇.▇.
▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
-62-
Part
13:
Addresses of Lenders
Textron
Financial Corporation
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
(P)
▇▇▇-▇▇▇-▇▇▇▇
(F)
▇▇▇-▇▇▇-▇▇▇▇
Part
14:
Other Lienholders
|
Secured
Party
|
Type
of Lien
|
Collateral
|
||
|
Chase
Manhattan Bank (formerly held by Mellon Bank)
|
Real
Estate
|
Millersburg
Plant
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
|
||
|
Transamerica
|
UCC
– 1
|
Inventory,
accounts, accounts receivable, cash, general intangibles, contract
right,
chattel paper, instruments, documents, equipment, goods and all proceeds
thereof
|
||
|
Textron
|
|
UCC
– 1
|
|
Inventory,
accounts, accounts receivable, cash, general intangibles, contract
right,
chattel paper, instruments, documents, equipment, goods and all proceeds
thereof
|
Part
15:
CountryPlace Warehouse Facility
See
Attached
Part
16:
Transamerica Facility
See
Attached
-63-