SIXTH AMENDMENT TO AMENDED AND RESTATED
---------------------------------------
REVOLVING AND TERM LOAN AGREEMENT
---------------------------------
THIS SIXTH AMENDMENT TO AMENDED AND RESTATED REVOLVING AND TERM LOAN
AGREEMENT (this "Amendment"), made and effective as of the 26th day of October,
2004, is by and among CAVALIER HOMES, INC., a Delaware corporation, CAVALIER
PROPERTIES, INC., a Delaware corporation, CAVALIER HOME BUILDERS, LLC, a
Delaware limited liability company, CAVALIER REAL ESTATE CO., INC., a Delaware
corporation, QUALITY HOUSING SUPPLY, LLC, a Delaware limited liability company,
QUALITY CERTIFIED INSURANCE SERVICES, INC., an Alabama corporation, CIS
FINANCIAL SERVICES, INC., an Alabama corporation f/k/a "Cavalier Acceptance
Corporation", BRC COMPONENTS, INC., an Alabama corporation, THE HOME PLACE, LLC,
an Alabama limited liability company, and RIDGE POINTE MANUFACTURING, LLC, an
Alabama limited liability company (individually, a "Borrower" and collectively,
the "Borrowers"), and FIRST COMMERCIAL BANK, an Alabama state banking
corporation (the "Lender").
RECITALS:
A. The Lender and the Borrowers, either by original execution or
subsequent assumption, are parties to that certain Amended and Restated
Revolving and Term Loan Agreement dated as of March 31, 2000, as amended by that
certain First Amendment to Amended and Restated Revolving and Term Loan
Agreement dated as of September 29, 2000, as further amended by that certain
Second Amendment to Amended and Restated Revolving and Term Loan Agreement dated
as of May 4, 2001, as further amended by that certain Third Amendment to Amended
and Restated Revolving and Term Loan Agreement entered into during June 2002, as
further amended by that certain Fourth Amendment to Amended and Restated
Revolving and Term Loan Agreement dated as of October 25, 2002, and as further
amended by that certain Fifth Amendment to Amended and Restated Revolving and
Term Loan Agreement entered into as of August 6, 2003 (as heretofore amended,
the "Loan Agreement"). Unless otherwise defined herein or unless the context
shall expressly indicate otherwise, all capitalized terms which are used herein
shall have their respective meanings given to them in the Loan Agreement.
B. The Lender and the Borrowers have agreed to amend the Agreement in
certain respects as herein set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby
agree, each with the other, as follows:
1. The definition of "Loan Termination Date" contained in Schedule I of
the Agreement is hereby amended to read in its entirety as follows:
"Loan Termination Date" means (i) with respect to the Revolving Loan,
the earlier of (A) April 15, 2007 or (B) the date at which the maturity
of the Revolving Note may be accelerated pursuant to Section 9.2 of the
Agreement; and (ii) with respect to any Term Loan, the earlier of (A)
the maturity date of the applicable Term Note or (B) the date to which
the maturity of the applicable Term Note may be accelerated pursuant to
Section 9.2 of the Agreement.
2. Section 7.3(J) of the Loan Agreement is hereby amended to read in its
entirety as follows:
(J) Other than any Consolidated Entity, neither Cavalier Homes
nor any Consolidated Entity will form any Subsidiary, or Controlled
Partnership, or make any investment in or make any loan in the nature
of any indebtedness to any Person, which in the aggregate exceeds
$3,000,000. The limit established by this subsection shall be
calculated based solely on the initial investment and shall not take
into account any increase in the amount at which the investment is
carried on the books of Cavalier Homes or any Consolidated Entity as a
result of appreciation in the value of the initial investment.
3. Section 7.3(A)(4) of the Loan Agreement is hereby amended to read in
its entirety as follows:
(4) A ratio of Consolidated Cash Flow (measured on a historical
basis) to Debt Service of not less than (i) 1.35 to 1.00 for the fiscal
year ending on December 31, 2005, and (ii) 1.50 to 1.00 for the fiscal
year ending on December 31, 2006, and for each fiscal year thereafter.
4. As a condition to entering into this Agreement, Borrower shall pay to
Lender a Commitment Fee for the Revolving Loan in the amount of $15,000.00,
which fee shall be in addition to all other principal, interest, and other fees
and charges due hereunder, which fee shall be deemed fully earned by Lender upon
execution of this Amendment, and which fee shall not be subject to rebate or
refund except as may be required by applicable law.
5. As a condition to the effectiveness of this Amendment: (i) Borrower
shall pay directly or reimburse Lender for all fees, expenses and out-out-pocket
costs incurred by the Lender, any and all filing fees, recording fees or taxes,
documentary stamp or intangibles taxes, and reasonable expenses and fees of
Lender's legal counsel, incurred in connection with the preparation, amendment,
modification or enforcement of this Amendment and all other documents executed
and delivered in connection herewith; (ii) Borrower shall execute and deliver to
Lender all further documents and perform all other acts which Lender reasonably
deems necessary or appropriate to perfect or protect its security for the
Obligations; and (iii) Borrower shall have delivered to Lender such other
documentation, if any, as may be requested by Lender to satisfy Lender that this
Amendment, and all other documents and instruments executed by Borrower in
connection with this Amendment or in furtherance hereof, have each been duly
authorized, executed and delivered on behalf of Borrower, and constitute valid
and binding obligations of Borrower
6. Except as otherwise expressly set forth in this Amendment, all
Collateral described in any agreement providing security for any Obligation of
the Borrowers, or any of them, shall remain subject to the liens, pledges,
security interests and assignments of any such agreements as security for the
Obligations, and all other indebtedness described therein; nothing contained in
this Amendment shall be construed to constitute a novation of any of the
indebtedness evidenced by the Notes, as amended, or to release, satisfy,
discharge or otherwise affect or impair in any manner whatsoever (a) the
validity or enforceability of any of the indebtedness evidenced by the Notes, as
amended; (b) the liens, pledges, security interests, assignments and conveyances
effected by the Agreement, the Security Documents and any other agreement
securing any of the Notes, as amended, or the priority thereof; (c) the
liability of any maker, endorser, surety, guarantor or other Person that may now
or hereafter be liable under or on account of any of the Notes, as amended, or
any agreement securing any or all of the Notes, as amended; or (d) any other
security or instrument now or hereafter held by Lender as security for or as
evidence of any of the above-described indebtedness. Without in any way limiting
the foregoing, each Borrower acknowledges and agrees that the indebtedness
evidenced by each of the Notes, as amended, is and shall remain secured by the
Collateral described in the Agreement and in the Security Documents.
7. Borrowers, jointly and severally, hereby represent and warrant to
Lender that (i) the officers of each Borrower executing this Amendment have been
duly authorized to do so and such Amendment and the Agreement are valid and
binding upon each Borrower which is a party thereto in every respect,
enforceable in accordance with their terms, (ii) each and every representation
and warranty set forth in Article VI of the Agreement is true and correct as of
the date hereof, (iii) no Event of Default, nor any event that, upon notice or
lapse of time or both, would constitute an Event of Default, has occurred and
is continuing, and (iv) as of the date hereof, it has no defenses or offsets
with respect to the Obligations, as herein modified.
8. Unless otherwise expressly modified or amended hereby, all terms and
conditions of the Agreement as heretofore amended shall remain in full force and
effect, and the same, as amended hereby, are hereby ratified and confirmed in
all respects. This Amendment shall inure to and be binding upon and enforceable
by Borrowers and Lender and their respective successors and assigns. This
Amendment may be executed in one or more counterparts, each of which when
executed and delivered shall constitute an original. All such counterparts shall
together be deemed to be one and the same instrument. The parties agree that any
facsimile signature of any party on any counterpart original of this Amendment
shall be deemed to be an original signature of such party for all purposes and
shall fully bind the party whose facsimile signature appears on the counterpart
original. Time is of the essence in the performance of each and every term,
covenant, condition and agreement set forth herein.
[No further text this page; Signature page follows.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
properly executed and delivered as of the day and year first above written.
BORROWERS:
CAVALIER HOMES, INC., a Delaware
corporation
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Print Name: Xxxxxxx X. Xxxxxx
----------------------------
Title: Vice-President
----------------------------------
CAVALIER PROPERTIES, INC., a Delaware
corporation
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Print Name: Xxxxxxx X. Xxxxxx
--------------------------------
Title: President
-------------------------------------
CAVALIER HOME BUILDERS, LLC, a
Delaware limited liability company
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Print Name: Xxxxxxx X. Xxxxxx
--------------------------------
Title: President
-------------------------------------
CAVALIER REAL ESTATE CO., INC., a
Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Print Name: Xxxxxxx X. Xxxxxx
--------------------------------
Title: President
-------------------------------------
QUALITY HOUSING SUPPLY, LLC, a
Delaware limited liability company
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Print Name: Xxxxxxx X. Xxxxxx
--------------------------------
Title: Vice-President
-------------------------------------
QUALITY CERTIFIED INSURANCE
SERVICES, INC., an Alabama corporation
By: /s/ June X. Xxxxxx
----------------------------------------
Print Name: June X. Xxxxxx
--------------------------------
Title: Secretary
-------------------------------------
CIS FINANCIAL SERVICES, INC., an
Alabama corporation
By: /s/ June X. Xxxxxx
----------------------------------------
Print Name: June X. Xxxxxx
--------------------------------
Title: Secretary
-------------------------------------
BRC COMPONENTS, INC., an Alabama corporation
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Print Name: Xxxxxxx X. Xxxxxx
--------------------------------
Title: Secretary
-------------------------------------
THE HOME PLACE, LLC, an Alabama
limited liability company
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Print Name: Xxxxxxx X. Xxxxxx
--------------------------------
Title: Vice-President
-------------------------------------
RIDGE POINTE MANUFACTURING, LLC,
an Alabama limited liability company
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Print Name: Xxxxxxx X. Xxxxxx
--------------------------------
Title: Manager
-------------------------------------
LENDER:
FIRST COMMERCIAL BANK, an Alabama
banking corporation
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Print Name: Xxxxx X. Xxxxxxxx
--------------------------------
Title: Senior Vice-President
-------------------------------------
