FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.1
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March 22, 2007
(this “Amendment”), to the Existing Credit Agreement (as defined below) is made by CHAMPION
HOME BUILDERS CO., a Michigan corporation (the “Borrower”), 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) and, solely for
purposes of Article V, each Obligor (other than the Borrower) signatory hereto.
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and Credit Suisse, Cayman Islands Branch, as 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”);
WHEREAS, the Borrower has requested that the Lenders amend 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.
“First Amendment Effective Date” is defined in Article III.
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 First 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. Amendment 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:
“First Amendment” means the First Amendment to Amended and Restated Credit
Agreement, dated as of March [22], 2007, among the Borrower and the Lenders party thereto.
“First Amendment Effective Date” means the First Amendment Effective Date as
that term is defined in Article III of the First Amendment.
SECTION 2.2. Amendment to Section 8.4.
(a) Clause (a) of Section 8.4 of the Existing Credit Agreement is hereby amended by
deleting the third row of the table set forth therein and inserting the following rows in lieu
thereof:
The first Fiscal Quarter of 2007 |
5.00:1 | |
The second and third Fiscal Quarters of 2007 |
3.25:1 |
(b) Clause (b) of Section 8.4 of the Existing Credit Agreement is hereby amended by
inserting the following proviso at the end thereof:
“; provided that, as of the last day of the first Fiscal Quarter of 2007
only, the Parent and the Borrower will not permit the Interest Coverage
Ratio to be less than 2.25:1”.
ARTICLE III
CONDITIONS TO EFFECTIVENESS
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This Amendment and the amendments contained herein shall become effective on the date (the
“First Amendment Effective Date”) when each of the conditions set forth in this Article
III shall have been fulfilled to the satisfaction of the Administrative Agent.
SECTION 3.1. Counterparts. The Administrative Agent shall have received counterparts
hereof executed on behalf of the Borrower, each other Obligor, and the Required Lenders.
SECTION 3.2. Amendment Fee. The Administrative Agent shall have received for the
account of each Lender (that has delivered its signature page in a manner and before the time set
forth below), an amendment fee in an amount equal to 0.10% of the sum of (i) the outstanding
principal amount of Loans owing to such Lender on the First Amendment Effective Date and, if
applicable, such Lender’s Synthetic Deposit Amount on the First Amendment Effective Date
plus (ii) such Lender’s Revolving Loan Percentage of the unused portion of the Revolving
Loan Commitment Amount (excluding outstanding Revolving Letter of Credit Outstandings) on the First
Amendment Effective Date, but payable only to each such Lender that has delivered (including by way
of facsimile or other electronic transmission) its executed signature page to this Amendment to the
attention of Xxxxxxxx Xxxx at Mayer, Brown, Xxxx & Maw, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
facsimile number: (000) 000-0000, at or prior to 5:00 p.m. (New York time) on March 22, 2007.
SECTION 3.3. Costs and Expenses, etc. The Administrative Agent shall have received
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, if then invoiced.
SECTION 3.4. 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 IV
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Amendment, the Borrower represents and warrants to
the Lenders as set forth below.
SECTION 4.1. Validity, etc. This Amendment 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 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.
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SECTION 4.2. Representations and Warranties, etc. Both before and after 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.
ARTICLE V
REAFFIRMATION
SECTION 5.1. Guarantees, Security Interest, etc. Each Obligor (other than the
Borrower) hereby reaffirms, as of the First Amendment Effective Date, that immediately after giving
effect to the 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 5.2. Validity, etc. Each Obligor (other than the Borrower) hereby represents
and warrants, as of the First Amendment Effective Date, that immediately after giving effect to the
Amendment, each Loan Document, in each case as modified by this Amendment (where applicable), 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 5.3. Representations and Warranties, etc. Each Obligor (other than the
Borrower) hereby represents and warrants, as of the First Amendment Effective Date, that both
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).
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. 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 6.2. 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 6.3. 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 6.4. 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 6.5. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
SECTION 6.6. 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.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment as of the
date first above written.
| CHAMPION HOME BUILDERS CO. | ||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Title: EVP/CFO/Treasurer | ||||
| Solely for purposes of Article V, each of the undersigned Obligors: | ||||
| CHAMPION ENTERPRISES, INC. | ||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Title: EVP/CFO/Treasurer | ||||
| CHAMPION ENTERPRISES MANAGEMENT CO. | ||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Title: President/CFO/Treasurer | ||||
| CHAMPION RETAIL, INC. | ||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Title: President/CFO/Treasurer | ||||
| DUTCH HOUSING, INC. | ||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Title: EVP/CFO | ||||
| HIGHLAND ACQUISITION CORP. | ||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Title: EVP/CFO/Treasurer | ||||
| HIGHLAND MANUFACTURING COMPANY LLC | ||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Title: EVP/CFO/Treasurer | ||||
| HOMES OF MERIT, INC. | ||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Title: EVP/CFO | ||||
| MODULINE INTERNATIONAL, INC. | ||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Title: EVP/CFO/Treasurer | ||||
| NEW ERA BUILDING SYSTEMS, INC. | ||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Title: EVP/CFO/Treasurer | ||||
| NORTH AMERICAN HOUSING CORP. | ||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Title: EVP/CFO | ||||
| XXXXXX HOMES, INC. | ||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Title: EVP/CFO/Treasurer | ||||
| XXXXXX INDUSTRIES, INC. | ||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Title: EVP/CFO/Treasurer | ||||
| SAN XXXX ADVANTAGE HOMES, INC. | ||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Title: EVP/CFO/Secretary | ||||
| STAR FLEET, INC. | ||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Title: EVP/CFO | ||||
| WESTERN HOMES CORPORATION | ||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Title: EVP/CFO | ||||
| LENDERS | ||||
| By: | /s/ | |||
| Title: | ||||
First Amendment to
Amended and Restated Credit Agreement
Amended and Restated Credit Agreement
