exv10w1






Exhibit 10.1




			
	
	 	EXECUTION COPY






SEVENTH AMENDMENT AND WAIVER

TO AMENDED AND RESTATED CREDIT AGREEMENT




     THIS SEVENTH AMENDMENT AND WAIVER, dated as of September 2, 2009 (this “Amendment” or
this “Seventh Amendment”), to the Existing Credit Agreement (as defined below) is entered
into among CHAMPION HOME BUILDERS CO., a Michigan corporation (the “Borrower”), CHAMPION
ENTERPRISES, INC., a Michigan corporation (the “Parent”), certain of the Lenders (such
capitalized term and other capitalized terms used in this preamble and the recitals below to have
the meanings set forth in, or are defined by reference in Article I below), CREDIT SUISSE,
CAYMAN ISLANDS BRANCH, as the Administrative Agent (in such capacity, the “Administrative
Agent”), and, solely for purposes of Articles VI and VII, each Obligor
signatory hereto.



WITNESSETH:




     WHEREAS, the Borrower, the Parent, the Lenders and the Administrative Agent are all parties to
the Amended and Restated Credit Agreement, dated as of April 7, 2006 (as amended or otherwise
modified prior to the date hereof, the “Existing Credit Agreement” and, as amended by this
Amendment and as the same may be further amended, supplemented, amended and restated or otherwise
modified from time to time, the “Credit Agreement”); and



     WHEREAS, the Borrower has requested that the Lenders waive and amend certain provisions of the
Existing Credit Agreement and the Lenders are willing, but only on the terms and subject to the
conditions hereinafter set forth, to modify the Existing Credit Agreement, all as set forth below.



     NOW, THEREFORE, the parties hereto hereby covenant and agree as follows:



ARTICLE I




DEFINITIONS




     SECTION 1.1. Certain Definitions. The following terms when used in this Amendment
shall have the following meanings (such meanings to be equally applicable to the singular and
plural forms thereof):



     “Amendment” is defined in the preamble.



     “Borrower” is defined in the preamble.



     “Credit Agreement” is defined in the first recital.



     “Existing Credit Agreement” is defined in the first recital.



 









 





     “Seventh Amendment Effective Date” is defined in Article IV.



     SECTION 1.2. Other Definitions. Terms for which meanings are provided in the
Existing Credit Agreement are, unless otherwise defined herein or the context otherwise requires,
used in this Amendment with such meanings.



ARTICLE II




AMENDMENTS TO EXISTING CREDIT AGREEMENT




     Effective on (and subject to the occurrence of) the Seventh Amendment Effective Date, the
provisions of the Existing Credit Agreement referred to below are hereby amended in accordance with
this Article II. Except as expressly so amended, the Existing Credit Agreement shall
continue in full force and effect in accordance with its terms.



     SECTION 2.1. Amendments to Section 1.1. Section 1.1 of the Existing Credit Agreement
is hereby amended by inserting the following definitions in the appropriate alphabetical order:




     “Seventh Amendment” means the Seventh Amendment and
Waiver to Amended and Restated Credit Agreement, dated as of
September 2, 2009, among the Borrower, the Parent, certain other
Obligors, the Lenders party thereto and the Administrative Agent.




     “Seventh Amendment Effective Date” means the Seventh
Amendment Effective Date as that term is defined in Article IV of
the Seventh Amendment.



     SECTION 2.2. Amendment to Section 7.11. Section 7.11 of the Existing Credit
Agreement is hereby amended by replacing the amount “$15,000,000” appearing in the proviso thereof
with the amount “$2,000,000”.



ARTICLE III




LIMITED WAIVERS TO EXISTING CREDIT AGREEMENT




     Subject to the occurrence of the Seventh Amendment Effective Date, certain limited provisions
of the Existing Credit Agreement are hereby waived in accordance with this Article III. Except as
expressly so waived, the Existing Credit Agreement shall continue in full force and effect.



     SECTION 3.1. Limited Waivers as to Section 8.4(d) and (e). The Required Lenders
hereby waive, until October 12, 2009, the requirement that the Parent and the Borrower comply with
the provisions of Sections 8.4(d) and 8.4(e) of the Credit Agreement for the second Fiscal Quarter
of 2009.



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ARTICLE IV




CONDITIONS TO EFFECTIVENESS




     SECTION 4.1. Conditions to Effectiveness. This Amendment shall become effective upon
the prior or simultaneous satisfaction of each of the following conditions in a manner reasonably
satisfactory to the Administrative Agent (the date when all such conditions are so satisfied being
the “Seventh Amendment Effective Date”):



     SECTION 4.2. Counterparts. The Administrative Agent shall have received counterparts
hereof executed on behalf of the Borrower, each other Obligor, the Required Lenders and the
Administrative Agent.



     SECTION 4.3. Costs and Expenses, etc. The Administrative Agent shall have received
all fees, costs and expenses due and payable pursuant to Section 12.3 of the Existing Credit
Agreement (including without limitation the fees and expenses of Willkie Farr & Gallagher LLP,
special New York restructuring counsel to the Administrative Agent), if then invoiced.



     SECTION 4.4. Certificate of Authorized Officer. The Borrower shall have delivered a
certificate of an Authorized Officer, solely in his or her capacity as an Authorized Officer of the
Borrower and not in his or her individual capacity, certifying that, both immediately before and
after giving effect to this Amendment on the Seventh Amendment Effective Date, the statements set
forth in Article V hereof are true and correct.



     SECTION 4.5. Satisfactory Legal Form. The Administrative Agent and its counsel shall
have received all information, and such counterpart originals or such certified or other copies of
such materials, as the Administrative Agent or its counsel may reasonably request, and all legal
matters incident to the effectiveness of this Amendment shall be satisfactory to the Administrative
Agent and its counsel. All documents executed or submitted pursuant hereto or in connection
herewith shall be reasonably satisfactory in form and substance to the Administrative Agent and its
counsel.



ARTICLE V




REPRESENTATIONS AND WARRANTIES




     To induce the Lenders to enter into this Amendment, the Obligors represent and warrant to the
Lenders as set forth below.



     SECTION 5.1. Validity, etc. This Amendment and the Credit Agreement (after giving
effect to this Amendment) each constitutes the legal, valid and binding obligation of such
applicable Obligor enforceable in accordance with its terms subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors’ rights generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and fair dealing.



     SECTION 5.2. Representations and Warranties, etc. Both before and after giving
effect to this Amendment, the statements set forth in clause (a) of Section 5.3.1, and after giving
effect



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to this Amendment, the statements set forth in clause (b) of Section 5.3.1, in each case of
the Existing Credit Agreement, are true and correct.



ARTICLE VI




CONFIRMATIONS AND COVENANTS




     SECTION 6.1. Guarantees, Security Interest, Continued Effectiveness. Each Obligor
hereby reaffirms, as of the Seventh Amendment Effective Date, that immediately after giving effect
to this Amendment (a) the covenants and agreements made by such Obligor contained in each Loan
Document to which it is a party, (b) with respect to each Obligor party to a Guaranty, its
guarantee of payment of the Obligations pursuant to such Guaranty and (c) with respect to each
Obligor party to the Pledge and Security Agreement or a Mortgage, its pledges and other grants of
Liens in respect of the Obligations pursuant to any such Loan Document, in each case, as such
covenants, agreements and other provisions may be modified by this Amendment.



     SECTION 6.2. Validity, etc. Each Obligor (other than the Borrower) hereby represents
and warrants, as of the Seventh Amendment Effective Date, that immediately after giving effect to
the Amendment, each Loan Document, in each case as modified by this Amendment (where applicable and
whether directly or indirectly), to which it is a party continues to be a legal, valid and binding
obligation of such Obligor, enforceable against such party in accordance with its terms subject to
the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors’ rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied covenant of good faith and
fair dealing.



     SECTION 6.3. Representations and Warranties, etc. Each Obligor (other than the
Borrower) hereby represents and warrants, as of the Seventh Amendment Effective Date, that before
and after giving effect to the Amendment, the representations and warranties set forth in each Loan
Document to which such Obligor is a party are, in each case, true and correct (a) in the case of
representations and warranties not qualified by references to “materiality” or a Material Adverse
Effect, in all material respects and (b) otherwise, in all respects, in each case with the same
effect as if then made (unless stated to relate solely to an earlier date, in which case such
representations and warranties shall be true and correct in all material respects as of such
earlier date).



     SECTION 6.4. Restrictions on Permitted Actions. Each Obligor understands and agrees
that, notwithstanding the waiver granted pursuant to Article III hereof, the Borrower’s right to
obtain Borrowings pursuant to Article II of the Credit Agreement is suspended during the period
that the waiver under Article III hereof is in effect.



ARTICLE VII




MISCELLANEOUS




     SECTION 7.1. Cross-References. References in this Amendment to any Article or
Section are, unless otherwise specified, to such Article or Section of this Amendment.



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     SECTION 7.2. Loan Document Pursuant to Existing Credit Agreement. This Amendment is
a Loan Document executed pursuant to the Existing Credit Agreement and shall (unless otherwise
expressly indicated therein) be construed, administered and applied in accordance with all of the
terms and provisions of the Existing Credit Agreement, as amended hereby, including Articles X and
XII thereof.



     SECTION 7.3. Successors and Assigns. This Amendment shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns.



     SECTION 7.4. Counterparts. This Amendment may be executed by the parties hereto in
several counterparts, each of which when executed and delivered shall be an original and all of
which shall constitute together but one and the same agreement. Delivery of an executed
counterpart of a signature page to this Amendment by facsimile (or other electronic transmission)
shall be effective as delivery of a manually executed counterpart of this Amendment.



     SECTION 7.5. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK IN THE SAME MANNER AS PROVIDED FOR IN
THE CREDIT AGREEMENT.



     SECTION 7.6. Full Force and Effect; Limited Amendment. Except as expressly amended
hereby, all of the representations, warranties, terms, covenants, conditions and other provisions
of the Existing Credit Agreement and the Loan Documents shall remain unchanged and shall continue
to be, and shall remain, in full force and effect in accordance with their respective terms. The
amendments set forth herein shall be limited precisely as provided for herein to the provisions
expressly amended herein and shall not be deemed to be an amendment to, waiver of, consent to or
modification of any other term or provision of the Existing Credit Agreement or any other Loan
Document or of any transaction or further or future action on the part of any Obligor which would
require the consent of the Lenders under the Existing Credit Agreement or any of the Loan
Documents.



     SECTION 7.7. No Waiver. This Amendment is not, and shall not be deemed to be, a
waiver or a consent to any Event of Default, event with which the giving of notice or lapse of time
or both may result in an Event of Default, or other non-compliance now existing or hereafter
arising under the Credit Agreement and the other Loan Documents, except as expressly provided for
in Article III hereof.



     SECTION 7.8. Obligor Releases/Damages and Liability Limitations. Although each
Lender and the Administrative Agent each regards its conduct as proper and does not believe that
any Obligor has any claim, right, cause of action, offset or defense against such Lender, the
Administrative Agent, any Issuer or any other Lender Party (for purposes of this paragraph, defined
as, “each Lender, the Administrative Agent, any Issuer and each of their present or former
subsidiaries, affiliates, advisors, employees, attorneys, agents, officers, directors and
representatives and their respective predecessors, successors, transferees and assigns”) in
connection with the execution, delivery, performance and ongoing administration of, or the
transactions contemplated by, the Credit Agreement and the other Loan Documents, each



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Lender, the Administrative Agent and each Obligor agree to eliminate any possibility that any
past conduct, conditions, acts, omissions, events, circumstances or matters of any kind whatsoever
could impair or otherwise affect any rights, interests, contracts or remedies of the Lenders, the
Administrative Agent or any other Lender Party. Therefore, each Obligor, on behalf of itself and
its employees, agents, officers, directors, representatives, predecessors, successors, transferees
and assigns, unconditionally, freely, voluntarily and, after consultation with counsel and becoming
fully and adequately informed as to the relevant facts, circumstances and consequences, knowingly
releases, waives and forever discharges (and further agrees not to allege, claim or pursue) (a) any
and all liabilities, indebtedness and obligations, whether known or unknown, of any kind whatsoever
of any Lender Party to any Obligor, except for any obligations remaining to be respectively
performed by the Lenders as expressly set forth in this Amendment, the Credit Agreement and the
other Loan Documents, (b) any legal, equitable or other obligations of any kind whatsoever, whether
known or unknown, of any Lender Party to any Obligor (and any rights of any Obligor against any
Lender Party) other than any such obligations expressly set forth in this Amendment, the Credit
Agreement and the other Loan Documents, (c) any and all claims, whether known or unknown, under any
oral or implied agreement with (or obligation or undertaking of any kind whatsoever of) any Lender
Party which is different from or in addition to the express terms of this Amendment, the Credit
Agreement and the other Loan Documents and (d) all other claims, rights, causes of action,
counterclaims or defenses of any kind whatsoever, in contract or in tort, in law or in equity,
whether known or unknown, direct or derivative, which such Obligor or any predecessor, successor or
assign might otherwise have or may have against any Lender Party on account of any conduct,
condition, act, omission, event, contract, liability, obligation, demand, covenant, promise,
indebtedness, claim, right, cause of action, suit, damage, defense, circumstance or matter of any
kind whatsoever which existed, arose or occurred at any time prior to the Seventh Amendment
Effective Date. The Obligors further understand and agree that none of the Lenders, the
Administrative Agent, any Issuer or any other Lender Party shall at any time, whether heretofore,
on or as of the Seventh Amendment Effective Date or thereafter, be liable or responsible for any
special, consequential, punitive, incidental, exemplary or other similar damages or claims arising
in any way out of the Loan Documents, the transactions contemplated thereby or any action taken or
not taken in connection therewith. Each Lender Party hereby further agrees that the Administrative
Agent shall not have any liability or responsibility whatsoever, and shall be fully protected and
exculpated from and against, any action taken or not taken by it at the direction of the Required
Lenders.



[signature pages follow]





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     IN WITNESS WHEREOF, the parties hereto have executed and delivered this Seventh Amendment as
of the date first above written.



	 	 	 	 	 
	 	CHAMPION HOME BUILDERS CO.

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	CHAMPION ENTERPRISES, INC.

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Solely for purposes of Articles
VI and
VII, each of the undersigned Obligors:



CHAMPION ENTERPRISES MANAGEMENT CO.

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	CHAMPION RETAIL, INC.

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	HIGHLAND ACQUISITION CORP.

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Pages to Seventh Amendment and Waiver





 









 








	 	 	 	 	 
	 	HIGHLAND MANUFACTURING COMPANY LLC

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	HOMES OF MERIT, INC.

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	NEW ERA BUILDING SYSTEMS, INC.

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	NORTH AMERICAN HOUSING CORP.

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	REDMAN HOMES, INC.

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	SAN JOSE ADVANTAGE HOMES, INC.

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Pages to Seventh Amendment and Waiver





 









 








	 	 	 	 	 
	 	STAR FLEET, INC.

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	WESTERN HOMES CORPORATION

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Pages to Seventh Amendment and Waiver




 









 








	 	 	 	 	 
	 	CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as 

Administrative Agent

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as a Lender

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Pages to Seventh Amendment and Waiver




 









 








	 	 	 	 	 
	 	 	 
	 	
 	 
	 	[INSERT NAME OF LENDER] 	 
	 	 	 
	 	 	 
	 	By  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Pages to Seventh Amendment and Waiver