GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT is executed as of December 18, 1998,
by Cavalier Homes, Inc., a Delaware corporation (the "Guarantor") in favor of
First Commercial Bank, a banking corporation organized and existing under the
laws of the State of Alabama (the "Bank").
Recitals
A. The Bank has agreed to lend Lamraft L.P. (the "Borrower")
an amount not to exceed $2,000,000 in principal amount (the "Loan"), as
evidenced by the Borrower's promissory note (the "Note") of even date herewith
payable to the order of the Bank.
B. Because the Guarantor is a limited partner of the Borrower
and expects to benefit materially from the business of the Borrower that will be
made possible by the Loan, the Guarantor has requested the Bank to make the Loan
to the Borrower.
C. The Bank has required, as a condition to making the Loan to
the Borrower, the execution of this Agreement by the Guarantor.
Agreement
NOW, THEREFORE, in order to induce the Bank to make the Loan
to the Borrower pursuant to the Note, the Guarantor covenants and agrees with
the Bank as follows:
1. Guaranteed Payments. Subject to and limited by the
provisions of Section 1A hereof, the Guarantor hereby guarantees the due and
punctual payment to the Bank when and as the same shall become due and payable
(whether by acceleration or otherwise) of the following amounts (the "Guaranteed
Payments"):
(a) all amounts of principal becoming due and payable on the
Note in accordance with the terms thereof, whether at stated maturity
or as an installment or by required prepayment or notice of optional
prepayment or declaration of acceleration or otherwise;
(b) all amounts of interest becoming due and payable on the
Note in accordance with the terms thereof, including interest on any
overdue principal and (to the extent permitted by applicable law) on
any overdue interest;
(c) all other amounts payable by the Borrower under the Note;
(d) all amounts payable by the Borrower under the terms of any
mortgages, security agreements, pledge agreements or other documents
evidencing or securing the Loan (the "Security Documents"); and
(f) all Recovered Payments (as hereinafter defined in
Section 14).
The guaranty provided for in this Section 1 is an absolute,
unconditional, present and continuing guaranty of payment and not of
collectibility and is in no way conditioned upon or limited by any attempt to
collect from the Borrower or the exercise of any other remedies the Bank may
have against any other person, firm or corporation (including, without
limitation, any other guarantors and any other maker, endorser, surety of, or
other party to, any of the Loan Documents, as hereinafter defined, the Borrower
and such other persons, firms and corporations being hereinafter collectively
referred to as the "Obligors" and individually as an "Obligor") or the resort to
any other security, guaranty or collateral held by the Bank, or any other
action, occurrence or circumstance whatsoever. If any Guaranteed Payment is not
made when and as the same shall become due and payable, the Guarantor shall on
demand forthwith make such Guaranteed Payment, in immediately available funds in
lawful money of the United States, directly to the Bank at its address specified
in or pursuant to Section 13 of this Agreement. The Guarantor further agrees to
be bound by all of the terms and provisions appearing on the face of any
instrument or agreement now or hereafter evidencing, guaranteeing, securing or
in any other way relating to any of the Guaranteed Payments, including, without
limitation, the Note (all such instruments and agreements being hereinafter
collectively called the "Loan Documents"), and of any instrument or agreement
extending or renewing any such instrument or agreement (including any terms
waiving notice and agreeing to pay costs and expenses of collection in the event
of default) just as though the Guarantor had signed such instrument or
agreement; and that the Bank will not be required first to proceed against the
Borrower or resort to the security, guaranty or collateral, pledged or granted
to it by any instrument or agreement (including, without limitation, the Loan
Documents), or otherwise assigned or conveyed to it, but in case of default in
the payment of any of the Guaranteed Payments, the Bank may forthwith look to
the Guarantor for payment under the provisions hereof.
1A. Limitation of Obligations. Notwithstanding anything herein
to the contrary, the obligations of the Guarantor for the Guaranteed Payments
shall be limited to 24% of the Guaranteed Payments that are outstanding at the
time demand for payment thereof is made, without regard to or taking into
account any demand upon, or payment or contribution by, any other Obligor with
respect to such Guaranteed Payments.
2. Nature of Obligations. The obligations and liabilities of
the Guarantor under this Agreement are primary obligations of the Guarantor, are
continuing, absolute and unconditional, shall not be subject to any
counterclaim, recoupment, set-off, reduction or defense based upon any claim
that the Guarantor may have against the Borrower, the Bank, any of the Obligors
or any of their respective affiliates, and shall remain in full force and effect
until all of the Guaranteed Payments have been paid in full, without regard to,
and without being released, discharged, impaired, modified or in any way
affected by, the occurrence from time to time of any event, circumstance or
condition (whether or not the Guarantor shall have any knowledge or notice
thereof), including, without limitation, any one or more of the following,
whether or not with notice to, or consent of, the Guarantor:
(a) any term or provision of any instrument or agreement
(including, without limitation, the Loan Documents) applicable to the
Borrower or any of the Obligors;
(b) the invalidity or unenforceability of any such
instrument or agreement (including, without limitation, the Loan
Documents);
(c) the failure or refusal to give notice to the Guarantor of
the occurrence of any event of default under any such instrument or
agreement (including, without limitation, the Loan Documents);
(d) any modification, amendment or supplement (whether
material or otherwise) of any obligation, covenant or agreement
contained in any such instrument or agreement (including, without
limitation, the Loan Documents); provided, however, that if any such
modification, amendment or supplement increases the principal amount of
the Loan, the interest rate borne by the Loan, or any other charges
payable under the Loan Documents without the consent of the Guarantor,
the Guarantor shall not be liable for any portion of such increased
principal amount or charges or any amounts due because of such
increased interest rate;
(e) any assignment or transfer of any such instrument or
agreement (including, without limitation, the Loan Documents) or of any
interest thereunder;
(f) the compromise, settlement, release or termination of any
or all of the obligations, covenants or agreements of the Borrower, any
of the Obligors or any other party under any such instrument or
agreement (including, without limitation, the Loan Documents);
(g) any waiver of payment, performance or observance by the
Borrower, any of the Obligors or any other party of any of their
respective obligations, covenants or agreements under any such
instrument or agreement (including, without limitation, the Loan
Documents);
(h) any consent, extension, indulgence or other action or
inaction (including, without limitation, any lack of diligence or
failure to mitigate damages) under or in respect of any such instrument
or agreement (including, without limitation, the Loan Documents), or
any exercise or non-exercise of any right, remedy, power or privilege
under or in respect of any such instrument or agreement (including,
without limitation, the Loan Documents);
(i) the failure, omission, delay or lack of diligence on the
part of the Bank, or any assignee or successor thereto, to enforce,
assert or exercise any right, power, privilege or remedy conferred upon
the Bank by any such instrument or agreement (including, without
limitation, the Loan Documents);
(j) the extension of time for payment of the principal of, or
interest on, any of the Guaranteed Payments, or the extension of the
time for performance of any other obligations, covenants or agreements
under any such instrument or agreement (including, without limitation,
the Loan Documents) or under any renewals or extensions thereof or
successor agreements thereto;
(k) the furnishing or accepting of additional collateral,
guaranties or other security for any of the Guaranteed Payments or the
release, modification, substitution, nonexistence or invalidity of any
collateral, guaranties or other security for any of the Guaranteed
Payments;
(l) the death of, voluntary or involuntary liquidation or
dissolution of, sale or other disposition of all or substantially all
of the assets of, or the marshalling of assets and liabilities,
receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of,
or other similar proceeding affecting, the Borrower or any of the
Obligors or any of their respective assets, or any action taken by any
trustee or receiver or by any court in any such proceeding, or the
disaffirmance, rejection or postponement in any such proceeding of any
of the Borrower's, any Obligor's or any other party's obligations or
undertakings set forth in any such instrument or agreement (including,
without limitation, the Loan Documents);
(m) the failure of the Bank, in the event of the occurrence of
any of the events specified in subsection (l) above, to file a claim or
proof of claim or otherwise pursue any of its remedies in any
proceeding resulting from such event;
(n) the release or discharge (by operation of law or
otherwise) of the Borrower, any of the Obligors or any other party from
the performance or observance of any obligation, covenant, agreement,
undertaking or condition to be performed by the same under any such
instrument or agreement (including, without limitation, the Loan
Documents);
(o) any limitation on the liabilities or obligations of the
Borrower, any of the Obligors or any other party under any such
instrument or agreement (including, without limitation, the Loan
Documents), or any termination, cancellation, frustration, invalidity
or unenforceability, in whole or in part, of any such instrument or
agreement (including, without limitation, the Loan Documents) or any
limitation on the method or terms of payment thereunder that may now or
hereafter be caused or imposed in any manner whatsoever;
(p) any failure on the part of the Borrower, any of the
Obligors or any other party for any reason fully to perform or to
comply with any term of any such instrument or agreement (including,
without limitation, the Loan Documents);
(q) any claim whatsoever of the Guarantor against the
Borrower or any of the Obligors;
(r) any understanding or agreement that any other person, firm
or organization was or is to execute this Agreement, any of the Loan
Documents, or any other instrument or agreement evidencing or securing
any of the Guaranteed Payments; or
(s) any other matter that might otherwise be raised in
avoidance of, or in defense against an action to enforce, the
obligations of the Guarantor under this Agreement.
3. Waiver by Guarantor. The Guarantor unconditionally waives,
insofar as such Guarantor's obligations hereunder are concerned:
(a) notice of the execution and delivery of the Loan
Documents;
(b) notice of the Bank's acceptance of and reliance on this
Agreement or the making of the Loan to the Borrower;
(c) notice of any of the matters referred to in Section 2
of this Agreement;
(d) all notices required by statute, rule of law or otherwise
to preserve any rights against the Guarantor hereunder, including,
without limitation, any demand, proof or notice of non-payment of any
Guaranteed Payment by the Borrower or any of the Obligors and notice of
any failure on the part of the Borrower or any of the Obligors to
perform or comply with any term of any instrument or agreement
(including, without limitation, the Loan Documents) to which the
Borrower or any of the Obligors is a party;
(e) any right to the enforcement, assertion or exercise of any
right, power or remedy under or in respect of any such instrument or
agreement (including, without limitation, the Loan Documents); and
(f) any requirement that the Borrower, any of the Obligors or
any other person be joined as a party to any proceeding for the
enforcement of any term of any such instrument or agreement (including,
without limitation, the Loan Documents), any requirement of diligence
on the part of the Bank and any requirement on the part of the Bank to
mitigate any damages resulting from any non-payment of any Guaranteed
Payment or any default or event of default under any such agreement or
instrument (including, without limitation, the Loan Documents).
All waivers granted by the Guarantor hereunder, including, without limitation,
the waiver by the Guarantor of the rights of subrogation to any Lender's rights
against the Borrower and others as provided herein, shall be unconditional and
irrevocable irrespective of whether the Guaranteed Payments have been paid in
full by the Guarantor or any other party.
4. Subordination, Assignment, Agreement not to Enforce
Subrogation Rights.
(a) Subordination. Any interest of the Guarantor in any
collateral assigned to the Bank as security for the Guaranteed Payments
or any portion of them, whether now owned or hereafter acquired by the
Guarantor, is hereby subordinated to the interest of the Bank therein.
Any indebtedness of the Borrower to the Guarantor, whether presently
existing or hereafter incurred, is hereby subordinated to all
indebtedness of the Borrower to the Bank; provided, however, that so
long as no default or Event of Default has occurred and is continuing
with respect to the Loan, the Borrower may pay the Guarantor such
subordinated indebtedness when due and payable (but not in advance of
originally scheduled due dates). Any notes now or hereafter evidencing
indebtedness of the Borrower to the Guarantor shall, upon request of
the Bank, be marked with a legend that the same are subject to this
Agreement, and/or endorsed and delivered to the Bank.
(b) Assignment. Any indebtedness of the Borrower to the
Guarantor is hereby assigned to the Bank as security for the
performance of the Guarantor's obligations hereunder and for the
performance of the obligations of the Borrower to the Bank under the
Loan Documents. If the Bank so requests, any indebtedness of the
Borrower to the Guarantor shall be collected, enforced and received by
the Guarantor as trustee for the Bank, to be paid over to the Bank on
account of the indebtedness and obligations of the Borrower guaranteed
hereunder, but without reducing or affecting in any manner the
liability of the Guarantor under the provisions of this Agreement. The
Guarantor agrees to and the Bank is hereby authorized, in the name of
the Guarantor from time to time, to execute and file financing
statements, security instruments and other documents, and to take such
other action as the Bank deems necessary or appropriate to effect,
preserve and enforce its rights hereunder.
(c) Agreement Not to Enforce Subrogation Rights. So long as
any Guaranteed Payment remains unpaid and the possibility exists that
the Guarantor could be liable to the Bank for a Recovered Payment, the
Guarantor hereby agrees not to assert, enforce or attempt to enforce
any right (individually, a "Subrogation Right" and collectively the
"Subrogation Rights"), whether at law, in equity, or otherwise, that
the Guarantor now or hereafter may have (including without limitation
any right of indemnity, contribution, reimbursement, exoneration or
subrogation) to recover from the Borrower, or from any person, firm or
corporation that may now or hereafter have such a right to recover from
the Borrower, any amounts paid by the Guarantor to satisfy, in whole or
in part, the Guaranteed Payments or any Recovered Payment. If any
amount shall be paid to the Guarantor on account of the Subrogation
Rights at any time when all of the Guaranteed Payments shall not have
been paid in full, such amount shall be held by the Guarantor in trust
for the Bank, segregated from other funds of the Guarantor, and shall,
forthwith upon receipt by the Guarantor, be turned over to the Bank in
the exact form received by the Guarantor (duly endorsed by the
Guarantor to the Bank, if required by the Bank) to be applied against
the Guaranteed Payments, whether matured or unmatured, in such order as
the Bank may determine.
5. Enforcement Expenses. The Guarantor shall indemnify and
hold harmless the Bank against (a) 24% of the amount of any loss, liability or
expense, including reasonable attorneys' fees and disbursements and any other
fees and disbursements, that may result from any failure of the Borrower to make
any Guaranteed Payment when and as due and payable or that may be incurred by or
on behalf of the Bank in enforcing any obligation of the Borrower or any of the
Obligors (other than the Guarantor) to make any such Guaranteed Payment, and (b)
any loss, liability or expense, including reasonable attorneys' fees and
disbursements and any other fees and disbursements, that may be incurred by or
on behalf of the Bank in enforcing any obligation of the Guarantor hereunder;
provided however, that if this Agreement is subject to sec. 5-19-10 of the
Minicode, sec. 5-19-1 et seq., Code of Alabama 1975, attorneys' fees shall be
limited to 15% of the unpaid balance of the debt after default and referral to
an attorney not a salaried employee of the Bank.
6. Delay and Waiver by the Bank. No delay in the exercise of
or failure to exercise any right, remedy or power accruing upon any default or
failure of the Guarantor in the performance of any obligation under this
Agreement shall impair any such right, remedy or power or shall be construed to
be a waiver thereof, but any such right, remedy or power may be exercised from
time to time and as often as may be deemed by the Bank expedient. In order to
entitle the Bank to exercise any right, remedy or power reserved to it in this
Agreement, it shall not be necessary to give any notice to the Guarantor. If the
Guarantor should default in the performance of any obligation hereunder, and
such default should thereafter be waived by the Bank, such waiver shall be
limited to the particular default so waived. No waiver, amendment, release or
modification of this Agreement shall be established by conduct, custom or course
of dealing, but solely by an instrument in writing duly executed by an executive
officer of the Bank.
7. Consent to Jurisdiction, Waiver of Jury Trial. The
Guarantor irrevocably (a) waives the Guarantors right to a jury trial for any
controversy arising out of this Agreement or any transaction described herein;
(b) submits to the jurisdiction of any state or federal court sitting in
Birmingham, Alabama over any suit, action or proceeding arising out of or
relating to this Agreement; and (c) waives, to the fullest extent permitted by
law, any objection that the Guarantor may now or hereafter have to the laying of
the venue of any such suit, action or proceeding brought in any such court and
any claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum. Final judgment in any such suit, action
or proceeding brought in any such court shall be conclusive and binding upon the
Guarantor and may be enforced in any court to the jurisdiction of which the
Guarantor is subject, by a suit upon such judgment, provided that service of
process is effected upon the Guarantor in one of the manners specified in this
Section 7 or as otherwise permitted by law and provided, further that the
enforcement of such judgment has not been stayed by a court of competent
jurisdiction. The Guarantor hereby irrevocably designates and appoints
_______________ of __________________, _____________, Alabama, as such
Guarantor's authorized agent to accept and acknowledge on such Guarantor's
behalf service of any and all process that may be served in any suit, action or
proceeding of the nature referred to in this Section 7 in any state or federal
court sitting in the State of Alabama. If such agent shall cease so to act, the
Guarantor shall irrevocably designate and appoint without delay another such
agent in the State of Alabama satisfactory to the Bank and shall promptly
deliver to the Bank evidence in writing of such other agent's acceptance of such
appointment and its agreement that such appointment shall be irrevocable. The
Guarantor hereby consents to process being served in any suit, action or
proceeding of the nature referred to in this Section 7 by (a) the mailing of a
copy thereof by registered or certified mail, postage prepaid, return receipt
requested, to such Guarantor at the Guarantors address designated in or
pursuant to Section 13 hereof and (b) serving a copy thereof upon the agent, if
any, designated and appointed by such Guarantor as the Guarantor's agent for
service of process by or pursuant to this Section 7. The Guarantor irrevocably
agrees that such service (i) shall be deemed in every respect effective service
of process upon such Guarantor in any such suit, action or proceeding and (ii)
shall, to the fullest extent permitted by law, be taken and held to be valid
personal service upon such Guarantor. Nothing in this Section 7 shall affect the
right of the Bank to serve process in any manner otherwise permitted by law or
limit the right of the Bank otherwise to bring proceedings against the Guarantor
in the courts of any jurisdiction or jurisdictions.
8. Financial Condition. The Guarantor hereby agrees to provide
to the Bank the following:
(a) (i) if the Guarantor is a publicly held corporation, its
annual report to shareholders and its Form 10K each year as soon as the
same are available; or (ii) if the Guarantor is not a publicly held
corporation, within 90 days after the end of the Borrower's fiscal
year, the balance sheet of the Borrower as of the end of such year and
the related statements of income and changes in financial position of
the Borrower for such fiscal year, together with supporting schedules,
all on a comparative basis with the prior fiscal year, in reasonable
detail prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved, and
audited and certified by independent certified public accountants of
recognized standing selected by the Borrower and satisfactory to the
Lender (the form and substance of such audit and certification also to
be satisfactory to the Lender), showing the financial condition,
assets, liabilities and stockholders' equity of the Borrower at the
close of such year and the results of the operations of the Borrower
during such year; and
(b) as soon as practical, from time to time, such other
information regarding the financial condition of the Guarantor as the
Bank may reasonably request.
9. Intent. The purpose of this Agreement is to memorialize the
parties' understanding that, if the Borrower does not pay or otherwise fully
perform its obligations in a timely manner as provided in the Loan Documents,
the Guarantor will promptly pay the amount due and payable by the Borrower to
the Bank upon demand.
10. Consideration. In order to induce the Bank to make the
Loan, the Guarantor, who acknowledges that the Guarantor will benefit from the
Loan to the Borrower, has agreed to execute and deliver this Agreement on the
understanding that doing so is a condition precedent to the Bank's making the
Loan.
11. Guarantor's Warranty; Related Parties. The Guarantor
confirms and warrants that the Guarantor is limited partner of the Borrower, has
personal knowledge of and is familiar with the Borrower's business affairs,
books and records, has the ability to influence the Borrower's decision-making
process, and warrants that the Borrower is in sound financial condition and will
perform in accordance with the terms and conditions of the Loan Documents.
12. Reliance. The Guarantor acknowledges that in making the
Loan the Bank is relying primarily upon the covenants of the Guarantor contained
in this Agreement and the Limited Credit Guaranty Agreement dated July 15, 1997
and upon the guaranties of other guarantors, and undertakes to perform the
Guarantor's obligations hereunder promptly and in good faith. The Guarantor also
acknowledges that because of the primary reliance that the Bank places upon the
Guarantor's covenants contained herein and the guaranties of other Guarantors,
the Bank has not monitored, and will not in the future monitor, carefully the
progress of construction of such project being financed with the proceeds of the
Loan, the Bank may not secure payment of the Loan by a Deed of Trust on such
project or otherwise, and the Bank does not intend to conduct any physical
inspections of project. Any rights that the Bank has under the Loan Documents
with respect to the Borrower and/or such project shall inure only to the benefit
of the Bank and not to the benefit of the Guarantor, any other guarantor or any
other third parties.
13. Notices and Communications. All notices and other
communications hereunder shall be in writing and shall be effective when sent by
certified or registered mail, return receipt requested, by courier service or by
hand delivery: (a) if to the Guarantor, at Highway 00 Xxxxx Xxxxxxxx Xxxx,
Xxxxxxx, Xxxxxxx 00000 or at such other address as the Guarantor shall have
furnished to the Bank, or (b) if to the Bank, addressed to it at 000 Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, Attention: Xxxx X. Xxxxxxxxxx, or at
such other address as the Bank shall have furnished to the Guarantor.
14. Termination of Agreement. This Guaranty shall remain in
full force and effect until the Bank shall have terminated this Guaranty in a
writing signed by a duly authorized officer of the Bank; provided, however, that
regardless of whether this Guaranty shall have been terminated, this Guaranty
and the obligations of the Guarantor hereunder shall continue to be effective or
be automatically reinstated, as the case may be, any time payment of all or any
part of the Guaranteed Payments is recovered (individually, a "Recovered
Payment" and collectively, the "Recovered Payments") from the Bank as a result
of a preference or other claim made under any bankruptcy, insolvency,
dissolution, liquidation, reorganization, receivership or similar law or
otherwise.
15. Survival of Agreements, etc. All agreements,
representations and warranties of the Guarantor hereunder shall survive the
execution and delivery of this Agreement, any investigation at any time made by
or on behalf of the Bank, the acceptance of the Note by the Bank and any
disposition and payment of the Note.
16. Successors and Assigns. All covenants and agreements of
the Guarantor set forth in this Agreement shall bind the Guarantor and the
Guarantor's personal representatives, heirs, successors and assigns and shall
inure to the benefit of, and be enforceable by, the Bank and its successors and
assigns including, without limitation, any holder of the Note or any part
thereof.
17. No Oral Agreements. This written Agreement is the final
expression of the agreement between the parties hereto with respect to the
subject matter hereof, and this Agreement may not be contradicted by evidence of
any prior agreement between such parties. All previous oral agreements between
the parties hereto have been incorporated into this Agreement, and there is no
unwritten oral agreement in existence between the parties hereto.
18. Miscellaneous. Neither this Agreement nor any term hereof
may be terminated, amended, supplemented, waived, released or modified orally,
but only by an instrument in writing signed by the party against which the
enforcement of the termination, amendment, supplement, waiver, release or
modification is sought. This Agreement shall in all respects be governed by, and
construed and enforced in accordance with, the laws of the State of Alabama. If
any term of this Agreement or any obligation hereunder shall be held to be
invalid, illegal or unenforceable, the remainder of this Agreement and any other
application of such term shall not be affected thereby. The section headings of
this Agreement have been inserted for convenience only, and shall not modify,
define, limit or expand the express provisions hereof.
IN WITNESS WHEREOF, the Guarantor has caused this Agreement to
be executed by its duly authorized officer as of the date first above written.
CAVALIER HOMES, INC.
By /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
STATE OF ALABAMA )
)
JEFFERSON COUNTY )
I, the undersigned authority, a Notary Public in and for said County in
said State, hereby certify that Xxxxxxx X. Xxxxxx, whose name as Vice President
of Cavalier Homes, Inc., a corporation, is signed to the foregoing instrument
and who is known to me, acknowledged before me on this day that, being informed
of the contents of said instrument , he/she, as such officer and with full
authority, executed the same voluntarily for and as the act of said corporation.
Given under my hand and official seal this the 10th day of December, 1998.
/s/ Xxxxx Xxxxxxx Xxxxxxxx
---------------------------
Notary Public
[AFFIX SEAL]
My commission expires: August 5, 2000
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