SECOND AMENDMENT TO DEBTOR-IN-POSSESSION CREDIT AGREEMENT
Exhibit 10.1
EXECUTION COPY
SECOND AMENDMENT
TO DEBTOR-IN-POSSESSION CREDIT AGREEMENT
TO DEBTOR-IN-POSSESSION CREDIT AGREEMENT
THIS SECOND AMENDMENT TO DEBTOR-IN-POSSESSION CREDIT AGREEMENT, dated as of January 8, 2010
(this “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
AG, CAYMAN ISLANDS BRANCH, as the Administrative Agent (in such capacity, the “Administrative
Agent”), and each Obligor signatory hereto.
WITNESSETH:
WHEREAS, the Borrower, the Parent, the Lenders and Credit Suisse AG, Cayman Islands Branch, as
the Administrative Agent, are all parties to the Debtor-in-Possession Credit Agreement, dated as of
November 15, 2009 (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 “DIP Credit
Agreement”);
WHEREAS, the Debtors (all capitalized terms being used herein as defined in Article I
below), the other Obligors, the Administrative Agent and the Lenders desire to amend certain
provisions of the Existing Credit Agreement and 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):
“Administrative Agent” is defined in the preamble.
“Amendment” is defined in the preamble.
“Authorized Actions” is defined in Article VI.
“Borrower” is defined in the preamble.
“DIP Credit Agreement” is defined in the first recital.
“Existing Credit Agreement” is defined in the first recital.
“Second Amendment Effective Date” is defined in Article III.
“Parent” is defined in the preamble.
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 Second 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:
“‘Second Amendment’ means the Second Amendment to Debtor-in-Possession Credit
Agreement, dated as of January 8, 2010, to this Agreement, among the Borrower, the Parent,
the Obligors, the Lenders party thereto and the Administrative Agent.
‘Second Amendment Effective Date’ means the Second Amendment Effective Date as
that term is defined in Article III of the Second Amendment.”
SECTION 2.2. Amendment to Article V.
SECTION 2.2.1. Clause (b) of the second sentence of Section 5.1.17 of the Existing
Credit Agreement is hereby amended by deleting the words “the earlier of (i) seventy-five (75) days
from the Petition Date and (ii) sixty (60) days from the appointment of a Committee (and in the
event that no Committee is appointed, any party in interest (other than the Borrower and the
Guarantors))” appearing therein and inserting in their place the words “February 12, 2010.”
SECTION 2.3. Amendments to Article VII.
SECTION 2.3.1. Section 7.18(a)(i) of the Existing Credit Agreement is hereby amended
by deleting the words “by no later than January 8, 2010” appearing therein and inserting in their
place the words “by no later than January 15, 2010.”
SECTION 2.3.2. Section 7.18(a)(ii) of the Existing Credit Agreement is hereby amended
by deleting the words “by no later than sixty (60) days from the Petition Date” appearing therein
and inserting in their place the words “by no later than January 28, 2010.”
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SECTION 2.3.3. Section 7.18(a)(iii) of the Existing Credit Agreement is hereby
amended by deleting the words “by no later than ninety (90) days from the Petition Date” appearing
therein and inserting in their place the words “by no later than March 1, 2010.”
SECTION 2.3.4. Section 7.18(a)(iv) of the Existing Credit Agreement is hereby amended
by deleting the words “by no later than one hundred (100) days from the Petition Date” appearing
therein and inserting in their place the words “by no later than March 3, 2010.”
SECTION 2.3.5. Section 7.18(a)(v) of the Existing Credit Agreement is hereby amended
by deleting the words “by no later than one hundred and ten (110) days from the Petition Date”
appearing therein and inserting in their place the words “by no later than March 18, 2010.”
ARTICLE III
CONDITIONS TO EFFECTIVENESS
SECTION 3.1. 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 “Second Amendment Effective Date”):
SECTION 3.2. 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 3.3. 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 Second Amendment Effective Date, the statements set
forth in Article IV hereof are true and correct.
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.
SECTION 3.5. 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 Xxxxxxx Xxxx & Xxxxxxxxx
LLP, special counsel to the Administrative Agent), if then invoiced and to the extent such payment
is in compliance with the applicable provisions of the Interim Order.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Amendment, the Borrower and each other Obligor
represent and warrant to the Lenders as set forth below.
SECTION 4.1. Validity, etc. This Amendment and the DIP Credit Agreement (after
giving effect to this Amendment) each constitutes the legal, valid and binding obligation of the
Borrower and such applicable Obligors 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 4.2. Representations and Warranties, etc. Both before and after giving
effect to this Amendment, the statements set forth in clause (a) of Section 5.2.1, and
after giving effect to this Amendment, the statements set forth in clause (b) of Section
5.2.1, in each case of the Existing Credit Agreement, are true and correct.
ARTICLE V
CONFIRMATIONS AND COVENANTS
SECTION 5.1. Guarantees, Security Interest, Continued Effectiveness. Each Obligor
hereby reaffirms, as of the Second 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 5.2. Validity, etc. Each Obligor (other than the Borrower) hereby represents
and warrants, as of the Second 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 5.3. Representations and Warranties, etc. Each Obligor (other than the
Borrower) hereby represents and warrants, as of the Second Amendment Effective Date, that before
and after giving effect to this 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
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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).
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.
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 and modified hereby, including
Articles X and XII 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 IN THE SAME MANNER AS PROVIDED FOR IN
THE DIP CREDIT AGREEMENT.
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
amendment and modifications s set forth herein shall be limited precisely as provided for herein to
the provisions expressly amended or modified 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 any Lenders, the Administrative Agent, or the DIP
Letter of Credit Issuer under the Existing Credit Agreement or any of the Loan Documents.
SECTION 6.7. 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
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time or both may result in an Event of Default, or other non-compliance now existing or
hereafter arising under the DIP Credit Agreement and the other Loan Documents, except as expressly
provided for in Article II hereof.
SECTION 6.8. Approval of DIP Budget. Pursuant to Section 7.17 of the
Existing Credit Agreement, the Required Lenders hereby approve and consent to the updated DIP
Budget, dated December 2009, a summary of which is attached hereto as Exhibit A.
SECTION 6.9. 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, the DIP Letter of Credit Issuer or any other Lender Party (for purposes of
this paragraph, defined as, “each Lender, the Administrative Agent, DIP Letter of Credit 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 DIP Credit Agreement and the other Loan Documents,
each 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 DIP 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 DIP 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 DIP 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 Second Amendment
Effective Date. The Obligors further understand and agree that none of the Lenders, the
Administrative Agent, DIP Letter of Credit Issuer or any other Lender Party shall at any time,
whether heretofore, on or as of the Second 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
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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, or authorized by, the Required Lenders, including any such action
authorized hereunder, or any action taken in connection therewith (“Authorized Actions”).
Section 10.3 of the DIP Credit Agreement shall apply to this Amendment and all Authorized
Actions, except that it is understood and agreed that all Authorized Actions shall be deemed not to
constitute gross negligence or willful misconduct.
[signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Second Amendment
as of the date first above written.
| CHAMPION HOME BUILDERS CO. |
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| By | ||||
| Name: | ||||
| Title: | ||||
| CHAMPION ENTERPRISES, INC. |
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| By | ||||
| Name: | ||||
| Title: | ||||
| CHAMPION ENTERPRISES MANAGEMENT CO. |
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| By | ||||
| Name: | ||||
| Title: | ||||
| CHAMPION RETAIL, INC. |
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| By | ||||
| Name: | ||||
| Title: | ||||
Signature Pages to Second Amendment to DIP Credit Agreement
| HIGHLAND ACQUISITION CORP. |
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| By | ||||
| Name: | ||||
| Title: | ||||
| HIGHLAND MANUFACTURING COMPANY LLC |
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| By | ||||
| Name: | ||||
| Title: | ||||
| HOMES OF MERIT, INC. |
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| By | ||||
| Name: | ||||
| Title: | ||||
| NEW ERA BUILDING SYSTEMS, INC. |
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| By | ||||
| Name: | ||||
| Title: | ||||
| NORTH AMERICAN HOUSING CORP. |
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| By | ||||
| Name: | ||||
| Title: | ||||
Signature Pages to Second Amendment to DIP Credit Agreement
| XXXXXX HOMES, INC. |
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| By | ||||
| Name: | ||||
| Title: | ||||
| SAN XXXX ADVANTAGE HOMES, INC. |
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| By | ||||
| Name: | ||||
| Title: | ||||
| STAR FLEET, INC. |
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| By | ||||
| Name: | ||||
| Title: | ||||
| WESTERN HOMES CORPORATION |
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| By | ||||
| Name: | ||||
| Title: | ||||
Signature Pages to Second Amendment to DIP Credit Agreement
| CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as Administrative Agent |
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| By | ||||
| Name: | ||||
| Title: | ||||
| CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as a Lender |
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| By | ||||
| Name: | ||||
| Title: | ||||
Signature Pages to Second Amendment to DIP Credit Agreement
| [INSERT NAME OF LENDER] | ||||
| By | ||||
| Name: | ||||
| Title: | ||||
Signature Pages to Second Amendment to DIP Credit Agreement
