exv10w1






Exhibit 10.1




EXECUTION COPY




FIFTH AMENDMENT AND WAIVER TO AMENDED AND RESTATED CREDIT AGREEMENT




     THIS FIFTH AMENDMENT AND WAIVER, dated as of May 20, 2009 (this “Amendment”), to the
Existing Credit Agreement (as defined below) is made by 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 shall have the meanings set forth in, or shall be defined
by reference provided 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.



W I T N E S S E T H:




     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 Parent and Borrower have requested that the Lenders modify certain provisions of
the Existing Credit Agreement and the Lenders are willing, on the terms and subject to the
conditions hereinafter set forth, to modify the Existing Credit Agreement 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.



     “Fifth Amendment Effective Date” is defined in Section 4.1.



 









 





     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 Fifth 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 2.1.1. Section 1.1 of the Existing Credit Agreement is hereby amended by inserting the
following definitions in the appropriate alphabetical order:




     “Fifth Amendment” means the Fifth Amendment and Waiver
to Amended and Restated Credit Agreement, dated as of May 20, 2009,
among the Borrower, the Parent, certain other Obligors, the Lenders
party thereto and the Administrative Agent.




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



ARTICLE III




WAIVER




     SECTION 3.1. Waiver to Section 8.6. On or before May 26, 2009, the Parent (or the
Borrower on behalf of the Parent) shall repay in full the entire outstanding principal amount of
the 2009 Notes, together with accrued and unpaid interest thereon; provided that the amount
of such repayment related to the outstanding principal amount of the 2009 Notes shall not exceed
$6,716,000. For purposes of such repayment, subclauses (i), (ii) and
(iii) of clause (d) of Section 8.6 of the Existing Credit Agreement are hereby
waived in their entirety so long as such payment is made on or before May 26, 2009.



     SECTION 3.2. Additional Waiver. The Required Lenders hereby waive (a) any Event of
Default that arose pursuant to Section 9.1.5 of the Existing Credit Agreement as a result of the
Borrower’s failure to make the payment of principal and accrued interest on the 2009 Notes due May
15, 2009, and (b) any other Event of Default caused directly as a result of such failure to pay the
2009 Notes on or before such date.



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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 “Fifth Amendment Effective Date”):



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



     SECTION 4.3. Costs and Expenses, etc. The Administrative Agent shall have received
for itself and for the account of each Lender, all fees, costs and expenses due and payable
pursuant to Sections 3.3 and 12.3 of the Existing Credit Agreement or otherwise payable pursuant to
any Loan Document (including without limitation the fees and expenses of Allen & Overy LLP, special
New York counsel to the Administrative Agent), if then invoiced, together with all other fees
separately agreed to by the Borrower and the Administrative Agent (or any of its Affiliates).



     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, subject to the terms of this
Amendment, both immediately before and after giving effect to this Amendment on the Fifth Amendment
Effective Date, the statements set forth in Sections 5.1 and 5.2 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 Borrower represents and warrants to
the Administrative Agent and 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 the Borrower
enforceable in accordance with its terms subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws relating to



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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. Subject to the terms of this
Amendment, immediately prior to giving effect to this Amendment the statements set forth in clauses
(a) and (b) of Section 5.3.1 of the Existing Credit Agreement are true and correct, and immediately
after giving effect to this Amendment the statements set forth in clauses (a) and (b) of Section
5.3.1 of the Credit Agreement are true and correct.



ARTICLE VI




CONFIRMATION




     SECTION 6.1. Guarantees, Security Interest, Continued Effectiveness. Each Obligor
hereby reaffirms, as of the Fifth Amendment Effective Date, that immediately after giving effect to
this Amendment (i) the covenants and agreements made by such Obligor contained in each Loan
Document to which it is a party, (ii) with respect to each Obligor party to a Guaranty, its
guarantee of payment of the Obligations pursuant to such Guaranty and (iii) 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 Fifth 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 Fifth 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 (i) in the case of
representations and warranties not qualified by references to “materiality” or a Material Adverse
Effect, in all material respects and (ii) 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).



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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.



     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 Article X
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.



     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 and other waivers and modifications set forth herein shall be limited precisely as
provided for herein to the provisions expressly amended herein or otherwise modified or waived
hereby 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. Except as expressly set forth in Section 3.2 of this
Amendment, 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.



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



	 	 	 	 	 	 	 
	 	 	CHAMPION HOME BUILDERS CO.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Title:
	 	 
	 
	 	 	 	 	 	 
	 	 	CHAMPION ENTERPRISES, INC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	Solely for purposes of Articles VI and VII, each of the undersigned Obligors:	 	 
	 
	 	 	 	 	 	 
	 	 	CHAMPION ENTERPRISES MANAGEMENT CO.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	CHAMPION RETAIL, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	HIGHLAND ACQUISITION CORP.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	HIGHLAND MANUFACTURING COMPANY LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	HOMES OF MERIT, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 






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	 	 	NEW ERA BUILDING SYSTEMS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	NORTH AMERICAN HOUSING CORP.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	REDMAN HOMES, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	SAN JOSE ADVANTAGE HOMES, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	STAR FLEET, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	WESTERN HOMES CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 






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	 	 	CREDIT SUISSE, CAYMAN ISLANDS 
BRANCH, as Administrative Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Title:
	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

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

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 






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	 	 	[INSERT NAME OF LENDER]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 







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