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EXHIBIT 10.3
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AMERICAN HOMESTAR CORPORATION
2000-A AMENDMENT AGREEMENT
dated as of April 28, 2000
to
Amended and Restated Note Purchase Agreements dated as of September 15, 1998
Re: $61,000,000 8.32% Senior Notes
Due July 10, 2007
and
Note Purchase Agreements dated as of September 15, 1998
Re: $46,000,000 7.25% Senior Notes, Series A
Due September 15, 2008
and
$5,000,000 7.14% Senior Notes, Series B
Due September 15, 2008
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TABLE OF CONTENTS
(Not a part of the Agreement)
TABLE OF CONTENTS
SECTION HEADING PAGE
SECTION 1. WAIVERS AND AMENDMENTS TO EXISTING NOTE
PURCHASE AGREEMENTS AND OUTSTANDING NOTES.................. 2
SECTION 2. CONDITIONS PRECEDENT....................................... 10
SECTION 3. REPRESENTATIONS AND WARRANTIES............................. 11
SECTION 4. MISCELLANEOUS.............................................. 11
Signature Pages............................................................. ▇▇
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▇▇▇▇-▇ AMENDMENT AGREEMENT
Re: Amended and Restated Note Purchase Agreements dated as of
September 15, 1998 and
Note Purchase Agreements dated as of September 15, 1998
Dated as of
April 28, 2000
To Each of the Noteholders
listed in Schedule I
to this 2000-A Amendment Agreement
Ladies and Gentlemen:
Reference is made to (i) the separate Amended and Restated Note
Purchase Agreements each dated as of September 15, 1998, as previously amended
and/or restated (the "Existing Amended and Restated Note Purchase Agreements")
between American Homestar Corporation, a Texas corporation (the "Company"), and
the Purchasers named on Schedule A attached thereto, respectively, under and
pursuant to which the Company issued, and there are currently outstanding
$61,000,000 aggregate principal amount of 8.32% Senior Notes due July 10, 2007
(the "Outstanding Amended and Restated Notes") and to (ii) the separate Note
Purchase Agreements each dated as of September 15, 1998, as previously amended
(the "Existing 1998 Note Purchase Agreements") between the Company and
Purchasers named on Schedule A attached thereto, respectively, under and
pursuant to which the Company issued, and there are currently outstanding
$46,000,000 aggregate principal amount of 7.25% Senior Notes, Series A, due
September 15, 2008 (the "Outstanding Series A 1998 Notes") and $5,000,000
aggregate principal amount of 7.14% Senior Notes, Series B, due September 15,
2008 (the "Outstanding Series B 1998 Notes" and together with the Outstanding
Series A 1998 Notes, the "Outstanding 1998 Notes"). The Outstanding Amended and
Restated Notes and the Outstanding 1998 Notes are sometimes hereinafter referred
to collectively as the "Outstanding Notes" and the Existing Amended and Restated
Note Purchase Agreements and Existing 1998 Note Purchase Agreements are
sometimes hereinafter referred to collectively as the "Existing Note Purchase
Agreements."
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company requests the amendment of certain
provisions of the Existing Note Purchase Agreements and Outstanding Notes as
hereinafter provided.
Upon your acceptance hereof in the manner hereinafter provided and upon
satisfaction of all conditions to the effectiveness hereof and receipt by the
Company of similar acceptances from all of the holders of the Outstanding Notes,
this 2000-A Amendment Agreement shall constitute a contract between us amending
the Existing Note Purchase Agreements and Outstanding Notes in the respects, but
only in the respects, hereinafter set forth:
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SECTION 1. WAIVERS AND AMENDMENTS TO EXISTING NOTE PURCHASE AGREEMENTS
AND OUTSTANDING NOTES.
Section 1.1. Upon satisfaction of the conditions set forth in Section 2
hereof, the Noteholders hereby waive compliance (from and after March 31, 2000
to and including September 29, 2000), and the effects of non-compliance (from
and after March 31, 2000 to and including September 29, 2000), by the Company
with Section 10.5 of the Existing Note Purchase Agreements to the extent that
the Fixed Charges Coverage Ratio is less than 1.25x. For the avoidance of doubt,
the Company specifically understands and acknowledges that the waiver set forth
above does not extend to any Default or Event of Default for the quarter ended
September 30, 2000.
The Noteholders hereby acknowledge and confirm the waiver set forth in
that certain waiver letter dated January 18, 2000 in respect of compliance from
and after December 31, 1999 to March 31, 2000 and the waiver set forth in that
certain waiver letter dated as of March 31, 2000 in respect of compliance from
and after March 31, 2000, and the effects of non-compliance from and after
December 31, 1999 to the 2000-A Amendment Effective Date, by the Company with
Section 10.5 of the Existing Note Purchase Agreements to the extent that the
Fixed Charge Coverage Ratio is less than 1.25x.
The Company understands and agrees that the waivers contained in this
Section 1.1 pertain only to the Defaults and Events of Default herein described
and only to the extent so described and not to any other Default or Event of
Default which may exist under, or any other matters arising in connection with,
the Existing Note Purchase Agreements or to any rights which the Noteholders
have arising by virtue of any such other actions or matters.
Section 1.2. Section 1.2 of each of the Existing Amended and Restated
Note Purchase Agreements shall be and is hereby amended and restated in its
entirety as follows:
"Section 1.2 Additional Interest. (a) Fixed Charges Coverage
Ratio. In addition to, and not in limitation or reduction of, any other
amounts paid or payable by the Company in respect of the Notes, in the
event the Fixed Charges Coverage Ratio determined in accordance with
Section 10.5 was less than 2.25 to 1.00 as of the end of any fiscal
quarter ending on or after September 30, 1999, the stated interest rate
payable on the Notes in respect of the next succeeding fiscal quarter
shall be increased in accordance with the following table and such
additional amounts arising therefrom shall be payable, with respect to
each Note, as additional interest on the Notes (and without limiting
the requirement of Section 10.5) on the scheduled interest payment date
at the end of said next succeeding fiscal quarter.
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ACTUAL FIXED CHARGE AMOUNT OF INTEREST
COVERAGE RATIO RATE INCREASE
------------------- ------------------
Between 2.00x and 2.24x .20% per annum
Between 1.99x and 1.65x .35% per annum
Between 1.64x and 1.35x .50% per annum
Less than 1.35x .60% per annum
No additional interest shall be payable in the event that the actual
Fixed Charges Coverage Ratio contemplated under Section 10.5 as of the
fiscal quarter ending immediately preceding an interest payment date
was greater than or equal to 2.25 to 1.00. In the event the Company
shall enter into an amendment hereto (reasonably satisfactory in form
and substance to the Required Holders) and at the expense of the
Company requiring that the Fixed Charges Coverage Ratio required under
Section 10.5 shall be at least 2.25 to 1.00, no additional interest
shall be payable under this paragraph with respect to any interest
payment date occurring subsequent to the first fiscal quarter end for
which such amendment is effective.
(b) Change in Reserve Requirement. If under applicable law or
regulation, the holder of any Note is required to post reserves at any
time and from time to time with respect to such Notes (the "Reserve
Requirement") greater than one percent (1%) of the outstanding
principal amounts of such Notes held by said holder (an "Increased
Requirement") other than solely by reason of a change in law or
regulation or a change in the interpretation or administration thereof
relating to the requirements to post such reserves, then the interest
rate on such Notes shall be increased by 1.25% per annum minus the
amount, if any, that the interest rate on such Notes has been increased
pursuant to Section 1.2(a). If during any time following an increase in
the interest rate on the Notes pursuant to this Section 1.2(b), the
Reserve Requirement is reduced to one percent (1%) or less of the
outstanding principal balance of the Notes (a "Decreased Requirement"),
the interest rate on the Notes shall be readjusted (but without
prejudice to any adjustment required by Section 1.2(a)) to the rate per
annum which would have been in effect had no adjustment been made
pursuant to this Section 1.2(b). Any upward or downward adjustment
required by this Section 1.2(b) in the rate of interest borne by the
Notes shall become effective concurrently with the effectiveness of any
Increased Requirement or Decreased Requirement, as the case may be. In
no event may the expressed interest rate on the Notes be increased by
more than 1.25% per annum pursuant to clauses (a) and (b) during any
period in which no Event of Default exists.
(c) Amendment Interest. Notwithstanding the foregoing clauses
(a) and (b) of this Section 1.2, the stated interest rate payable on
the Notes from April 1, 2000 to and including September 29, 2000 shall
be increased by 1.25% to an aggregate interest rate of 9.57% per annum
plus applicable interest payable upon an Event of Default and shall
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continue to bear interest after September 29, 2000 at such rate for any
and all periods during which (i) the Fixed Charges Coverage Ratio
determined in accordance with Section 10.5 is less than 2.25 to 1.00 or
(ii) any Event of Default shall exist and such additional amount shall
be payable, with respect to each Note, as additional interest on the
Notes on the next scheduled interest payment date. Such additional
interest is in replacement of the interest payable pursuant to clauses
(a) and (b) of this Section 1.2."
Section 1.3. Section 1.2 of each of the Existing 1998 Note Purchase
Agreements shall be and is hereby amended and restated in its entirety as
follows:
"Section 1.2 Additional Interest. (a) Fixed Charges Coverage
Ratio. In addition to, and not in limitation or reduction of, any other
amounts paid or payable by the Company in respect of the Notes, in the
event the Fixed Charges Coverage Ratio determined in accordance with
Section 10.5 was less than 2.25 to 1.00 as of the end of any fiscal
quarter ending on or after September 30, 1999, the stated interest rate
payable on the Notes in respect of the next succeeding fiscal quarter
shall be increased in accordance with the following table and such
additional amounts arising therefrom shall be payable, with respect to
each Note, as additional interest on the Notes (and without limiting
the requirement of Section 10.5) on the scheduled interest payment date
at the end of said next succeeding fiscal quarter.
ACTUAL FIXED CHARGE AMOUNT OF INTEREST
COVERAGE RATIO RATE INCREASE
------------------- ------------------
Between 2.00x and 2.24x .20% per annum
Between 1.99x and 1.65x .35% per annum
Between 1.64x and 1.35x .50% per annum
Less than 1.35x .60% per annum
No additional interest shall be payable in the event that the actual
Fixed Charges Coverage Ratio contemplated under Section 10.5 as of the
fiscal quarter ending immediately preceding an interest payment date
was greater than or equal to 2.25 to 1.00. In the event the Company
shall enter into an amendment hereto (reasonably satisfactory in form
and substance to the Required Holders) and at the expense of the
Company requiring that the Fixed Charges Coverage Ratio required under
Section 10.5 shall be at least 2.25 to 1.00, no additional interest
shall be payable under this paragraph with respect to any interest
payment date occurring subsequent to the first fiscal quarter end for
which such amendment is effective.
(b) Change in Reserve Requirement. If under applicable law or
regulation, the holder of any Note is required to post reserves at any
time and from time to time with respect to such Notes (the "Reserve
Requirement") greater than one percent (1%) of the outstanding
principal amounts of such Notes held by said holder (an "Increased
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Requirement") other than solely by reason of a change in law or
regulation or a change in the interpretation or administration thereof
relating to the requirements to post such reserves, then the interest
rate on such Notes shall be increased by 1.25% per annum minus the
amount, if any, that the interest rate on such Notes has been increased
pursuant to Section 1.2(a). If during any time following an increase in
the interest rate on the Notes pursuant to this Section 1.2(b), the
Reserve Requirement is reduced to one percent (1%) or less of the
outstanding principal balance of the Notes (a "Decreased Requirement"),
the interest rate on the Notes shall be readjusted (but without
prejudice to any adjustment required by Section 1.2(a)) to the rate per
annum which would have been in effect had no adjustment been made
pursuant to this Section 1.2(b). Any upward or downward adjustment
required by this Section 1.2(b) in the rate of interest borne by the
Notes shall become effective concurrently with the effectiveness of any
Increased Requirement or Decreased Requirement, as the case may be. In
no event may the expressed interest rate on the Notes be increased by
more than 1.25% per annum pursuant to clauses (a) and (b) during any
period in which no Event of Default exists.
(c) Amendment Interest. Notwithstanding the foregoing clauses
(a) and (b) of this Section 1.2, the stated interest rate payable on
the Notes from April 1, 2000 to and including September 29, 2000 shall
be increased by 1.25% to an aggregate amount of 8.5% per annum in
respect of the Series A Notes, and 8.39% per annum in respect of the
Series B Notes, plus applicable interest payable upon an Event of
Default and shall continue to bear interest after September 29, 2000 at
such rate for any and all periods during which (i) the Fixed Charges
Coverage Ratio determined in accordance with Section 10.5 is less than
2.25 to 1.00 or (ii) any Event of Default shall exist and such
additional amount shall be payable, with respect to each Note, as
additional interest on the Notes on the next scheduled interest payment
date. Such additional interest is in replacement of the interest
payable pursuant to clauses (a) and (b) of this Section 1.2."
Section 1.4. Section 7.1 of each of the Existing Note Purchase
Agreements shall be and is hereby amended to (i) delete "and" at the end of
clause (f) thereof, (ii) delete "." at the end of clause (g) thereof and replace
it with "; and" and (iii) add a new clause (h) thereto to read as follows:
"(h) Ordinary Course Transfers -- promptly, and in any event
within 15 days after the end of each monthly period, a monthly
statement setting forth Transfers made in the ordinary course of
business (and the consideration received) permitted pursuant to Section
10.3 (excluding sales of inventory held for sale made in the ordinary
course of business and such other Transfers to the extent that such
Transfers during such monthly period do not aggregate in excess of
$10,000)."
Section 1.5. Section 10.3 of each of the Existing Note Purchase
Agreements shall be and is hereby amended by adding at the end of such section
the following sentence:
"In addition to and not in limitation of the foregoing, (i) the Company
shall obtain (a) the written consent of the holders of at least 75% in
aggregate principal amount of the Notes then outstanding under the
Existing Note Purchase Agreements prior to the consummation
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of a Debt Offered Prepayment Application or (b) the written consent of
the holders of 100% in aggregate principal amount of the Notes
outstanding under the Existing Note Purchase Agreements prior to a
Property Reinvestment Application, in each case to which the Net
Proceeds Amount for any Asset Disposition is applied and (ii) if the
Company (x) Transfers (other than pursuant to an operating lease under
GAAP of idle plant facilities and underperforming company stores as
determined in good faith by Resolutions of the Board of Directors of
the Company) fixed assets or any business or division (including,
without limitation, 21st Century, provided that up to 50% of the net
cash proceeds thereof may be invested in 21st Century or in a joint
venture in respect of 21st Century by way of loans, participations or
otherwise) or (y) issues any debt securities for cash consideration
(excluding in all cases from this clause (y) debt securities issued by
the Company in the ordinary course of business), the Company shall
deposit 100% of the net cash proceeds of such Transfer or issuance with
the Collateral Agent and grant a security interest therein as
collateral to secure the Notes pursuant to the Security Agreement;
provided that this clause (ii) shall not apply to equipment, fixtures,
supplies or materials no longer required in the operation of the
business of the Company or obsolete or otherwise Transferred in the
ordinary course of business. To the extent that the net cash proceeds
from any Transfer or issuance set forth in clause (ii) of the previous
sentence are deposited in the Account, then, to the extent of such
deposit, such Transfer or issuance shall be excluded from any
calculation set forth in clause (c) above. `Net cash proceeds' shall be
the cash proceeds of a Transfer as aforesaid net of all ordinary and
reasonable out-of-pocket costs and expenses actually incurred by the
Company in connection with such Transfer and all indebtedness secured
by the property being so transferred and required by its terms to be
paid in connection with the consummation of such Transfer, and, in the
case of the disposition of 21st Century, any cash expenditures made in
connection with, or to facilitate, such disposition and, in the case of
any taxable gains that arise from such dispositions, tax on such
gains."
Section 1.6. Sections 10.4(a) and (b) of each of the Existing Note
Purchase Agreements shall be and are hereby amended as follows:
"(a) Total Senior Debt minus the amount of the Collateral
subject to the Security Agreement is less than (i) in the case of any
determination prior to or on September 29, 2000, the lesser of (A)
$200,000,000 and (B) 70% of Total Capitalization, (ii) in the case of
any determination after September 29, 2000 to and including June 29,
2001, 58% of Total Capitalization and (iii) in the case of any
determination on or after June 30, 2001, 56% of Total Capitalization,
(b) the sum of Total Senior Debt plus Total Subordinated Debt
minus the amount of the Collateral subject to the Security Agreement is
less than (i) in the case of any determination prior to or on September
29, 2000, the lesser of (A) $200,000,000 and (B) 70% of Total
Capitalization and (ii) in the case of any determination after
September 29, 2000, 65% of Total Capitalization,"
Section 1.7. Section 10.7 of each of the Existing Note Purchase
Agreements shall be and is hereby amended to add at the end of such section the
following sentence:
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"Notwithstanding the foregoing, the Company shall not be in default
under this Section 10.7 if the Company maintains Consolidated Net Worth
at not less than $90,000,000 in connection with any determination prior
to or on September 29, 2000."
Section 1.8. Section 10.9(f) of each of the Existing Note Purchase
Agreements shall be and is hereby amended and restated as follows:
"(f) Liens on property or assets of the Company or
any of its Restricted Subsidiaries securing Debt owing to the
Company or to another Restricted Subsidiary and Liens created
by the Security Agreement on the collateral provided for
therein and securing the obligations provided for therein;"
Section 1.9. Section 10 of each of the Existing Note Purchase
Agreements shall be and is hereby amended to add a new Section 10.11 as follows:
"Section 10.11. Earnings Before Interest and Taxes. The
Company will maintain positive Earnings Before Interest and Taxes for
the fiscal quarter ended as of June 30, 2000."
Section 1.10. Section 11 of each of the Existing Note Purchase
Agreements shall be and is hereby amended to (i) add "or in the Security
Agreement" after the term "herein" in the second line of clause (d) thereof,
(ii) delete "." at the end of clause (j) thereof and replace it with "; or" and
(iii) add a new clause (k) thereto to read as follows:
"(k) the Security Agreement or any Lien created thereby shall
cease to be in full force and effect (other than in accordance with the
Security Agreement), or such Lien shall cease to be a valid, first
priority perfected Lien on the Collateral, in each case for any reason,
including, without limitation, a determination of any Governmental
Authority that such agreement is invalid, void or unenforceable, or the
Company shall contest or deny in writing the validity, enforceability
or priority of any of its obligations thereunder or any Lien created
thereby on any of the Collateral."
Section 1.11. Section 12.2 of each of the Existing Note Purchase
Agreements shall be and is hereby amended to add "(including, without
limitation, the rights and remedies of such holder provided in the Security
Agreement)" before the "."
Section 1.12. Schedule B of each of the Existing Note Purchase
Agreements shall be amended to add the following new defined terms in the
appropriate alphabetical locations:
"'Account' is defined in the Security Agreement."
"'Collateral' is defined in the Security Agreement."
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"'Collateral Agent' means LaSalle Bank National
Association, or any successor thereof permitted by the
Security Agreement."
"'Earnings Before Interest and Taxes' means, with
respect to any period, Consolidated Net Income of the Company
and its Restricted Subsidiaries for such period plus all
amounts deducted in the computation thereof on account of (a)
Interest Charges for such period and (b) taxes imposed on or
measured by income or excess profits of the Company and its
Restricted Subsidiaries for such period."
"'Security Agreement' means the Security Agreement
between the Company and the Collateral Agent, substantially in
the form attached hereto as Exhibit 10.3."
Section 1.13. Schedule B of each of the Existing Amended and Restated
Note Purchase Agreements shall be amended to add the following new defined term
in the appropriate alphabetical location:
"'Existing Note Purchase Agreements' means this
Agreement, the Other Agreements and the separate Note Purchase
Agreements each dated as of September 15, 1998 between the
Company and the Purchasers named on Schedule A thereto,
respectively, in each case, as amended or modified."
Section 1.14. Schedule B of each of the Existing 1998 Note Purchase
Agreements shall be amended to add the following new defined term in the
appropriate alphabetical location:
"'Existing Note Purchase Agreements' means this
Agreement, the Other Agreements and the separate Amended and
Restated Note Purchase Agreements each dated as of September
15, 1998 between the Company and the Holders named on Schedule
A thereto, respectively, in each case, as amended or
modified."
Section 1.15. The following definitions contained in Schedule B of each
of the Existing Note Purchase Agreements shall be and are hereby amended and
restated in its entirety to read as follows:
"'Default Rate' means the rate of interest that is
the greater of (i) 2.0% per annum above the rate of interest
stated in clause (a) of the first paragraph of the Notes, as
adjusted pursuant to Section 1.2, or (ii) 2.0% over the rate
of interest publicly announced by Citibank, N.A. in New York,
New York, or any successor thereof, from time to time as its
"base" or "prime" rate."
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"'Debt Offered Prepayment Application' means, with
respect to any Asset Disposition, the offering, in writing, by
the Company of cash in an amount not exceeding the Net
Proceeds Amount with respect to such Asset Disposition to pay
the Notes under the Existing Note Purchase Agreements and any
interest and premium in respect thereof, provided that in
connection with any such Asset Disposition and payment of the
Notes, the Company shall have offered to prepay the Ratable
Portion in respect of each outstanding Note under the Existing
Note Purchase Agreements and shall have prepaid each holder of
each such Note that shall have accepted such offer of
prepayment in accordance with said Section 8.4 in a principal
amount which, when added to any accrued and unpaid interest
thereon and the Modified Make-Whole Amount, equals the Ratable
Portion for such Note. As used in this definition, "Ratable
Portion" for any Note means an amount equal to the product of
(x) the Net Proceeds Amount being so applied to the payment of
the Notes multiplied by (y) a fraction the numerator of which
is the outstanding principal amount of such Note and the
denominator of which is the aggregate principal amount of all
the Notes of the Company with respect to which such offer of
prepayment is made. For purposes of Section 10.3, a Net
Proceeds Amount shall be deemed applied to a Debt Offered
Prepayment Application upon the extension of the offer in
respect of such Debt Offered Prepayment Application, provided
that if the actual prepayments in respect thereof, if any, are
not made in accordance with the requirements of such offer or,
in any case, are not made within 365 days after the applicable
Asset Disposition, such application of such Net Proceeds
Amount will be deemed not to have been made."
Section 1.16. Clause (j) of the definition of the term "Restricted
Investments" contained in Schedule B of each of the Existing Note Purchase
Agreements shall be and is hereby amended and restated in its entirety as
follows:
"(x) Investments in 21st Century, or in a joint venture in
respect of 21st Century, in connection with the Transfer thereof, and
(y) such other Investments in 21st Century, provided that (i)
with respect to any such Investment made after the date of the Closing,
the aggregate amount of such Investment and all other Investments in
21st Century made after the date of Closing (valued as set forth below)
shall not, at the time of the making of each Investment, exceed 10% of
Consolidated Net Worth, determined at such time, and (ii) the proceeds
of such Investments are used by 21st Century to assist it in the
securitization of receivables generated from the sale of Manufactured
Homes by the Company, any Restricted Subsidiary or any franchise of the
Company or any Restricted Subsidiary."
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Section 1.17. Each of the Existing Note Purchase Agreements shall be
amended to add Exhibit 10.3 which is attached hereto as Exhibit D.
Section 1.18. The Noteholders hereby appoint LaSalle Bank National
Association to act as Collateral Agent for the exclusive benefit of the holders
of the Notes.
SECTION 2. CONDITIONS PRECEDENT.
Section 2.1. Conditions Precedent. This 2000-A Amendment Agreement
shall be effective as of April 28, 2000 (the "2000-A Amendment Effective Date")
when each of the following conditions shall have been satisfied:
(a) Each Noteholder and the Collateral Agent shall have
received this 2000-A Amendment Agreement, duly executed by the Company.
(b) The Required Holders in respect of each of the Existing
Note Purchase Agreements shall have consented to this 2000-A Amendment
Agreement as evidenced by their execution thereof; provided that the
amendments contained in Sections 1.2 and 1.3 of this 2000-A Amendment
Agreement shall be effective only as to each holder of Notes which has
consented hereto.
(c) The representations and warranties of the Company set
forth in Section 3 hereof are true and correct as of the date of the
execution and delivery of this 2000-A Amendment Agreement.
(d) Each Noteholder and the Collateral Agent shall have
received the Security Agreement substantially in the form attached
hereto as Exhibit D duly executed by the Company.
(e) Any consents or approvals from any holder or holders of
any outstanding Security of the Company or any Subsidiary and any
amendments of agreements pursuant to which any Securities may have been
issued which shall be necessary to permit the consummation of the
transactions contemplated hereby shall have been obtained and all such
consents or amendments shall be reasonably satisfactory in form and
substance to the Noteholders and their special counsel.
(f) The Company shall have paid, or have provided a
satisfactory retainer for, the fees and disbursements of the
Noteholders' special counsel, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, incurred in
connection with the negotiation, preparation, execution and delivery of
this 2000-A Amendment Agreement, as required by Section 15.1 of the
Existing Note Purchase Agreements.
(g) Counsel for the Company shall have delivered such legal
opinions to the Noteholders as the Noteholders may reasonably request
in respect of the due organization and the good standing of the Company
and the legality, validity and enforceability of this
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2000-A Amendment Agreement and the Outstanding Notes as amended hereby
and the Security Agreement.
SECTION 3. REPRESENTATIONS AND WARRANTIES.
Section 3.1. Representations and Warranties. The Company hereby
represents and warrants that as of the date hereof and as of the date of
execution and delivery of this 2000-A Amendment Agreement:
(a) This 2000-A Amendment Agreement, the Existing Note
Purchase Agreements and Outstanding Notes (as amended hereby) and the
Security Agreement are within the corporate powers of the Company, have
been duly authorized by all necessary corporate action on the part of
the Company, have been duly executed and delivered by the Company and
constitute legal, valid and binding obligations of the Company
enforceable in accordance with their respective terms.
(b) The Security Agreement (or financing statements or similar
notices thereof to the extent permitted or required by applicable law)
have been filed for record or recorded in all public offices wherein
such filing or recordation is necessary to perfect the security
interest granted by such Security Agreement in the collateral therein
described as against creditors of and purchasers from the Company and
the Security Agreement creates a valid and perfected first security
interest in such collateral effective as against creditors of and
purchasers from the Company subject only to encumbrances expressly
permitted by the terms of such Security Agreement.
(c) The Outstanding Amended and Restated Notes and the
Outstanding 1998 Notes held by the Noteholders are amended hereby as
set forth herein without regard to any exchange of Outstanding Notes
for New Notes.
(d) After giving effect to this 2000-A Amendment Agreement, no
Default or Event of Default has occurred and is continuing.
(e) The execution, delivery and performance of this 2000-A
Amendment Agreement and the Security Agreement by the Company does not
and will not result in a violation of or default under (A) the articles
of incorporation or bylaws of the Company, (B) any material agreement
to which the Company is a party or by which it is bound or to which the
Company or any of its properties is subject, (C) any order, writ,
injunction or decree binding on the Company, or (D) any statute,
regulation, rule or other law applicable to the Company.
SECTION 4. MISCELLANEOUS.
Section 4.1. Except as amended herein, all terms and provisions of the
Existing Note Purchase Agreements and the Outstanding Notes are hereby ratified,
confirmed and approved in all respects.
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Section 4.2. Any and all notices, requests, certificates and other
instruments, including the Outstanding Notes as amended hereby, may refer to the
"Note Purchase Agreements" without making specific reference to this 2000-A
Amendment Agreement, but nevertheless all such references shall be deemed to
include this 2000-A Amendment Agreement unless the context shall otherwise
require.
Section 4.3. This 2000-A Amendment Agreement and all covenants herein
contained shall be binding upon and inure to the benefit of the respective
successors and assigns of the parties hereunder. All covenants made by the
Company herein shall survive the closing and the delivery of this 2000-A
Amendment Agreement.
Section 4.4. This 2000-A Amendment Agreement shall be governed by and
construed in accordance with Illinois law.
Section 4.5. The capitalized terms used in this 2000-A Amendment
Agreement shall have the respective meanings specified in the related Existing
Note Purchase Agreements unless otherwise herein defined or the context hereof
shall otherwise require.
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The execution hereof by the respective Noteholders shall constitute a
contract among the Company and the Noteholders for the uses and purposes
hereinabove set forth. This 2000-A Amendment Agreement may be executed in any
number of counterparts, each executed counterpart constituting an original but
all together only one agreement. Counterpart signature pages are deemed to be
evidence of agreement to deliver original executed counterparts of such
signature pages as promptly as practicable thereafter.
AMERICAN HOMESTAR CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Its: Executive Vice President, CFO
-13-
16
This foregoing 2000-A Amendment Agreement is hereby accepted and agreed
to as of the date aforesaid.
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and Company
Incorporated, as Investment Adviser
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
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17
This foregoing 2000-A Amendment Agreement is hereby accepted and agreed
to as of the date aforesaid.
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Its: Authorized Signatory
By : /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------
Its: Authorized Signatory
-15-
18
This foregoing 2000-A Amendment Agreement is hereby accepted and agreed
to as of the date aforesaid.
ALLSTATE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Its: Authorized Signatory
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------
Its: Authorized Signatory
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19
This foregoing 2000-A Amendment Agreement is hereby accepted and agreed
to as of the date aforesaid.
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Its: Authorized Representative
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20
This foregoing 2000-A Amendment Agreement is hereby accepted and agreed
to as of the date aforesaid.
NORTHERN LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇ ▇. Wittach
--------------------
Its: Assistant Treasurer
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21
This foregoing 2000-A Amendment Agreement is hereby accepted and agreed
to as of the date aforesaid.
WASHINGTON SQUARE ADVISERS PRIVATE
PLACEMENT TRUST FUND
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------
Its: Senior Vice President
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22
This foregoing 2000-A Amendment Agreement is hereby accepted and agreed
to as of the date aforesaid.
RELIASTAR LIFE INSURANCE COMPANY OF
NEW YORK (FORMERLY RELIASTAR
BANKERS SECURITY LIFE INSURANCE
COMPANY)
By: /s/ ▇▇▇▇▇ ▇. Wittach
---------------------------
Its: Vice President, Investments
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23
This foregoing 2000-A Amendment Agreement is hereby accepted and agreed
to as of the date aforesaid.
GENERAL ELECTRIC CAPITAL ASSURANCE
COMPANY (FORMERLY GREAT NORTHERN
INSURED ANNUITY CORPORATION)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
Its: Investment Officer
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24
This foregoing 2000-A Amendment Agreement is hereby accepted and agreed
to as of the date aforesaid.
▇▇▇▇▇▇ INVESTORS LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Its: Chief Investment Officer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------
Its: Controller and Treasurer
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25
This foregoing 2000-A Amendment Agreement is hereby accepted and agreed
to as of the date aforesaid.
FEDERAL ▇▇▇▇▇▇ LIFE ASSURANCE COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Its: Chief Investment Officer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------
Its: Controller and Treasurer
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26
This foregoing 2000-A Amendment Agreement is hereby accepted and agreed
to as of the date aforesaid.
ZURICH LIFE INSURANCE COMPANY OF AMERICA
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Its: Chief Investment Officer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------
Its: Controller and Treasurer
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27
This foregoing 2000-A Amendment Agreement is hereby accepted and agreed
to as of the date aforesaid.
FIDELITY LIFE ASSOCIATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Its: Chief Investment Officer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------
Its: Controller and Treasurer
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28
This foregoing 2000-A Amendment Agreement is hereby accepted and agreed
to as of the date aforesaid.
AMERICAN BANKERS LIFE ASSURANCE
COMPANY OF FLORIDA
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------
Its: Director of Investments
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This foregoing 2000-A Amendment Agreement is hereby accepted and agreed
to as of the date aforesaid.
AMERICAN BANKERS LIFE INSURANCE
COMPANY INC. OF FLORIDA
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------
Its: Director of Investments
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This foregoing 2000-A Amendment Agreement is hereby accepted and agreed
to as of the date aforesaid.
BAYSTATE HEALTH SYSTEM, INC.
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and Company Incorporated,
as Investment Sub-Adviser
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
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This foregoing 2000-A Amendment Agreement is hereby accepted and agreed
to as of the date aforesaid.
C.M. LIFE INSURANCE COMPANY
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and Company Incorporated,
as Investment Sub-Adviser
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
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32
This foregoing 2000-A Amendment Agreement is hereby accepted and agreed
to as of the date aforesaid.
RELIASTAR LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇ ▇. Wittach
-------------------------
Its: Authorized Representative
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33
This foregoing 2000-A Amendment Agreement is hereby accepted and agreed
to as of the date aforesaid.
SECURITY CONNECTICUT LIFE INSURANCE
COMPANY
By: /s/ ▇▇▇▇▇ ▇. Wittach
--------------------
Its: Assistant Treasurer
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34
This foregoing 2000-A Amendment Agreement is hereby accepted and agreed
to as of the date aforesaid.
PROVIDENT MUTUAL LIFE INSURANCE
COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------
Its: Vice President
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OUTSTANDING PRINCIPAL
AMOUNT OF OUTSTANDING PRINCIPAL
OUTSTANDING AMENDED AMOUNT OF
AND RESTATED NOTES OUTSTANDING 1998
NAME OF HOLDER HELD AS OF NOTES HELD AS OF
OF NOTES APRIL 28, 2000 APRIL 28, 2000
MASSACHUSETTS MUTUAL LIFE INSURANCE $ 9,800,000 $ 7,750,000
COMPANY $ 4,200,000 $ 2,000,000
$ 1,500,000
BAYSTATE HEALTH SYSTEM, INC $ 500,000
CM LIFE INSURANCE COMPANY $ 250,000
ALLSTATE LIFE INSURANCE COMPANY $ 1,000,000
$ 3,000,000
$ 1,500,000
$ 3,000,000
$ 1,500,000
ALLSTATE INSURANCE COMPANY $ 5,000,000
THE NORTHWESTERN MUTUAL LIFE INSURANCE $10,000,000 $10,000,000
COMPANY
NORTHERN LIFE INSURANCE COMPANY $ 4,500,000 $ 2,000,000
WASHINGTON SQUARE ADVISERS PRIVATE $ 2,500,000
PLACEMENT TRUST FUND
RELIASTAR LIFE INSURANCE COMPANY OF NEW $ 1,000,000
YORK (FORMERLY RELIASTAR BANKERS
SECURITY LIFE INSURANCE COMPANY)
RELIASTAR LIFE INSURANCE COMPANY $ 1,000,000 $ 4,000,000
SECURITY CONNECTICUT LIFE INSURANCE $ 2,000,000
COMPANY
GENERAL ELECTRIC CAPITAL ASSURANCE $ 6,000,000
COMPANY (FORMERLY GREAT NORTHERN
INSURED ANNUITY CORPORATION)
▇▇▇▇▇▇ INVESTORS LIFE INSURANCE COMPANY $ 2,900,000 $ 6,900,000
FEDERAL ▇▇▇▇▇▇ LIFE ASSURANCE COMPANY $ 1,400,000 $ 3,400,000
ZURICH LIFE INSURANCE COMPANY OF $ 200,000 $ 500,000
AMERICA
FIDELITY LIFE ASSOCIATION $ 175,000 $ 1,200,000
$ 175,000
$ 150,000
AMERICAN BANKERS LIFE ASSURANCE $ 4,000,000
COMPANY OF FLORIDA
AMERICAN BANKERS LIFE INSURANCE $ 1,000,000
COMPANY INC. OF FLORIDA
PROVIDENT MUTUAL LIFE INSURANCE $ 3,000,000 $ 3,000,000
COMPANY
Schedule I
(to 2000-A Amendment Agreement)
I-1
36
EXHIBIT A
[FORM OF SECURITY AGREEMENT]
EXHIBIT 10.3
(to Note Purchase Agreement)