Contract
EXHIBIT 10.1
AMENDMENT TO REAL ESTATE
TERM NOTE
THIS AMENDMENT TO REAL ESTATE TERM
NOTE (this "Amendment"), made and effective as of the 30th day of
September, 2008, is by and among CAVALIER HOMES, 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, CIS FINANCIAL SERVICES, INC.,
an Alabama corporation f/k/a "Cavalier Acceptance Corporation", 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, Sixth Amendment to Amended and Restated
Revolving and Term Loan Agreement entered into as of October 26, 2004, Seventh
Amendment to Amended and Restated Revolving and Term Loan Agreement entered into
as of October 25, 2005, Eighth Amendment to Amended and Restated Revolving and
Term Loan Agreement entered into as of December 6, 2005, and Ninth Amendment to
Amended and Restated Revolving and Term Loan Agreement entered into as of May
23, 2006, Tenth Amendment to Amended and Restated Revolving and Term Loan
Agreement entered into as of February 21, 2007, and Eleventh Amendment to
Amended and Restated Revolving and Term Loan Agreement entered into as of June
26, 2007, and Twelfth Amendment to Amended and Restated Revolving and Term Loan
Agreement dated as of February 22, 2008 (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. Borrowers,
except for CIS Financial Services, Inc., (“CIS”) are parties to that certain
Real Estate Note executed in favor of First Commercial Bank dated as of August
6, 2003, (the “Term Note”) pursuant to which Borrower borrowed from Lender and
Lender loan to Borrowers the sum of $10,000,000. CIS has subsequently
been added as an obligor with respect to the obligations represented by the Term
Note and the Loan Agreement referenced therein. The outstanding
balance of the note is $2,580,461.53.
C. The
Lender and the Borrowers have agreed to amend the Term Note in order to change
the payment terms and the interest rate thereunder, all as herein set
forth.
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NOW, THEREFORE, for good and
valuable consideration and the mutual undertakings of the parties, 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 Agreement” contained in Section 1 of the Term Note is hereby
amended to read as provided in the Recitals hereto.
2. The Term
Note is hereby amended by changing the definition of “Fixed Rate” contained in
Section 1 thereof to read in its entirety as follows:
“Fixed
Rate” shall mean a fixed per annum rate of interest equal to seven
percent (7%).
3. Section
3(b) of the Term Note is hereby amended to provide as follows;
(b) Except
as otherwise provided herein, during the First Extension Term, the outstanding
principal balance hereof shall bear interest at a per annum rate equal to the
lesser of (i) the Fixed Rate, or (ii) the maximum rate allowed by applicable
law.
4. The
parties acknowledge that Bank has not heretofore communicated the interest rate
for the First Extension Term as provided in the Note and that accordingly the
Fixed Rate (prior to amendment hereby) has remained in force and effect during a
period extending beyond the Primary Term. The parties agree that
notwithstanding that fact, the modifications contained in Section 2 and 3 hereof
shall be effective at the commencement of the First Extension Term provided for
in the Term Note.
5. The
parties acknowledge and agree that the monthly installment payment of principal
and interest called for in Section 4(b) of the Term Note is and shall be
$32,400.00.
6. Borrower
agrees to 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. 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. Both Borrower and the individual
executing this Amendment on behalf of Borrower represents and warrants 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.
7. 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
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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 Loan 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 is and shall remain secured by the Collateral described in the Loan
Agreement and in the Security Documents.
8. 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 Loan 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 Loan 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.
9. Unless
otherwise expressly modified or amended hereby, all terms and conditions of the
Loan 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.]
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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.
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BORROWERS:
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CAVALIER
HOMES, INC., a Delaware corporation
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By:
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/s/
XXXXXXX X. XXXXXX
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Print
Name:
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Xxxxxxx
X. Xxxxxx
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Title:
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Vice
President
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CAVALIER
HOME BUILDERS, LLC, a Delaware limited liability
company
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By:
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/s/
XXXXXXX X. XXXXXX
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Print
Name:
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Xxxxxxx
X. Xxxxxx
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Title:
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Vice
President
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CAVALIER
REAL ESTATE CO., INC., a Delaware corporation
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By:
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/s/
XXXXXXX X. XXXXXX
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Print
Name:
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Xxxxxxx
X. Xxxxxx
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Title:
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President
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QUALITY
HOUSING SUPPLY, LLC, a Delaware limited liability
company
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By:
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/s/
XXXXXXX X. XXXXXX
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Print
Name:
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Xxxxxxx
X. Xxxxxx
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Title:
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Vice
President
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CIS
FINANCIAL SERVICES, INC., an Alabama corporation
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By:
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/s/
XXXXX XXXXXX
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Print
Name:
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Xxxxx
Xxxxxx
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Title:
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President
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RIDGE
POINTE MANUFACTURING, LLC, an Alabama limited liability
company
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By:
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/s/
XXXXXXX X. XXXXXX
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Print
Name:
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Xxxxxxx
X. Xxxxxx
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Title:
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Managing
Member
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LENDER:
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FIRST
COMMERCIAL BANK, an Alabama banking corporation
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By:
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/s/
XXXXX X. XXXXXXXX
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Print
Name:
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Xxxxx
X. Xxxxxxxx
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Title:
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Senior
Vice President
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