TWELFTH AMENDMENT TO AMENDED AND RESTATED REVOLVING AND TERM LOAN AGREEMENT
EXHIBIT
10.2(o)
TWELFTH AMENDMENT TO AMENDED
AND RESTATED
THIS TWELFTH AMENDMENT TO AMENDED AND
RESTATED REVOLVING AND TERM LOAN AGREEMENT (this "Amendment"), made and
effective as of the 22nd day of February, 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, and 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, (as heretofore amended, the "Loan Agreement"). On December
19, 2007, The Home Place, LLC was dissolved, and on December 20, 2007, BRC
Components, Inc. was dissolved. Each were heretofore “Borrowers”
under the Loan Agreement. The assets of each were distributed to
other Borrowers and they are accordingly no longer “Borrowers”
hereunder. On December 14, 2007, Cavalier Properties, Inc., merged
with and into Cavalier Real Estate Co., Inc., with Cavalier Real Estate Co.,
Inc. as the surviving corporation. 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 Loan Agreement to alter the
maximum principal amount of the Revolving Loan and to make certain other
revisions, all as herein set forth.
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Exhibit
“A” - 1
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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
Loan Agreement is hereby amended by changing the definition of “Borrowing Base”
in Schedule I to read in its entirety as follows:
“Borrowing Base” means
a principal amount equal to the lesser of (i) $17,500,000 or (ii) the Adjusted
Collateral Loan Value. The “Adjusted Collateral Loan Value means the
Collateral Loan Value reduced by (i) Lender’s outstanding liability with respect
to any Letters of Credit and (ii) the sum of $2,500,000.
2. The
Loan Agreement is hereby amended by changing the definition of “Collateral Loan
Value” in Schedule I to read in its entirety as follows:
"Collateral Loan
Value" means a principal amount equal to the sum of eighty percent (80%)
of the value of Eligible Accounts and the lesser of (i) the Inventory Cap and
(ii) fifty percent (50%) of the value of Eligible Inventory consisting of
finished goods and forty percent (40%) of Eligible Inventory consisting of raw
materials; all as determined by Lender from time to time in accordance with the
Agreement.
3. The
Loan Agreement is hereby amended by changing the definition of “Eligible
Inventory” in Schedule I to read in its entirety as follows:
"Eligible Inventory"
shall mean the Inventory of the Borrowers consisting of raw materials and
finished goods valued at the lesser of cost or current market value, all of
which Inventory is, at any given time, (a) not damaged or defective in any way;
(b) not sold or segregated for sale and reflected as an Account of any Borrower;
(c) not consigned Inventory; (d) not inventory-in-transit or located in a place
other than at the locations listed in Exhibit H; (e) not constituting packaging
materials and supplies; (f) not Inventory evidenced by negotiable warehouse
receipts or by non-negotiable warehouse receipts or documents of title which
have not been issued in the name of Lender; (g) not subject to a document of
title such as a warehouse receipt or xxxx of lading; (h) not work-in-process
Inventory; (i) not subject to any lien in favor of any Person other than Lender,
and (j) not Inventory otherwise deemed ineligible by Lender in its sole
discretion.
4. The
Loan Agreement is hereby amended by changing the definition of “Loan Termination
Date” in Schedule I to read in its entirety as follows:
"Loan Termination
Date" means (i) with respect to the Revolving Loan, the earlier of (A)
April 15, 2009 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.
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Exhibit
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5. The
Loan Agreement is hereby amended by changing the definition of “Revolving Loan
Commitment” in Schedule I to read in its entirety as follows:
“Revolving Loan
Commitment” means the Lender’s commitment to lend to Borrowers up to the
sum of $17,500,000,000 in principal amount outstanding from time to time
pursuant to Article II of the Agreement, and subject to the terms of the
Agreement; provided that under no circumstances shall the Revolving Loan
Commitment at any time exceed the Borrowing Base.
6. The
Loan Agreement is hereby amended by changing the definition of “Revolving Loan
Rate” in Schedule I to read in its entirety as follows:
"Revolving Rate" means
a variable per annum rate of interest determined as follows: (i) if the
Consolidated Tangible Net Worth of the Borrowers is greater than $62,000,000,
then the Revolving Rate shall be equal to the Prime Rate minus one-half percent (.5%);
(ii) if the Consolidated Tangible Net Worth of the Borrowers is greater than
$56,500,000 but less than or equal to $62,000,000, then the Revolving Rate shall
be equal to the Prime Rate; (iii) if the Consolidated Tangible Net Worth of the
Borrowers is greater $38,000,000 but less than or equal to $56,500,000, then the
Revolving Rate shall be equal to the Prime Rate plus three-quarters percent
(0.75%); and (iv) if the Consolidated Tangible Net Worth of the Borrowers is
equal to or less than $38,000,000, then the Revolving Rate shall be equal to the
Prime Rate plus one and
one-quarter percent (1.25%). The Revolving Rate will change to
reflect any change in the Prime Rate, as and when the Prime Rate
changes.
7. Schedule
I of the Loan Agreement is hereby amended by adding the following definition of
“Adjusted Net Earnings”:
“Adjusted Net Earnings” shall mean
with respect to any fiscal period, means the net earnings (or loss) after
provision for income taxes for such fiscal period of Borrower.
8.
Schedule I of the Loan Agreement is hereby amended by adding the following
definition of “Inventory Cap”:
“Inventory Cap” shall
mean the sum of $8,000,000, said sum being the maximum amount of Eligible
Inventory that can be counted in the Borrower Base.
9. The
definitions of Special Receivables and Temporary Advance Period in Schedule I of
the Loan Agreement are hereby deleted.
10. Section
2.9 of the Loan Agreement is hereby amended by adding the following subsection
“D”:
(D) Notwithstanding
the foregoing, the total aggregate principal amount of Letters of Credit
outstanding at any time shall not exceed $6,500,000.
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Exhibit
“A” - 3
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11. Section
7.3(A) of the Loan Agreement is hereby amended to read in its entirety as
follows:
7.3 Financial
Covenants.
(A) Cavalier
Homes will maintain at all times:
(1) A
ratio of Current Assets to Current Liabilities of not less than 1.1 to
1.0.
(2) A
ratio of Consolidated Liabilities to Consolidated Tangible Net Worth of not more
than 1.5 to 1.0.
(3) A
ratio of Consolidated Cash Flow (measured on an historical basis) to Debt
Service of not less than 1.35 to 1.00 in each fiscal year.
(4) Consolidated
Adjusted Net Earnings in each fiscal year of at least $100,000.
(5) Minimum
cash and cash equivalents of $5,000,000.
12. Pursuant
to the terms of the Real Property Security Documents, the sale of any of the
Real Estate Collateral requires payment in full of the indebtedness secured
thereby. Borrower and Lender agree that during such time as no Event
of Default has occurred and is continuing and notwithstanding such provisions,
Borrower shall be entitled to sell any of said collateral provided it gives
Lender thirty (30) days’ notice of the proposed sale and Lender receives at
least 75% of the gross proceeds of the sale for application to the principal
balance of Real Estate Loan.
13. Each
of the parties hereto consents to the removal of BRC Components, Inc., The Home
Place, LLC, and Cavalier Properties, Inc., as Borrowers hereunder.
14. Contemporaneously
herewith, Borrower is executing in favor of Bank a renewal Revolving Promissory
Note, which Note will hereafter evidence the indebtedness represented by the
Revolving Loan as provided in the Loan Agreement.
15. 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
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Exhibit
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binding
obligations of Borrower. In addition to the fees outlined in the
foregoing sentence, upon execution of this Amendment, Borrower shall pay to Bank
a facility fee of $43,750.00, which shall be deemed fully earned at the
execution of this Amendment and shall not be subject to rebate except as may be
required by any Applicable Law.
16. 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 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.
17. 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.
18. 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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Exhibit
“A” - 5
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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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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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Exhibit
“A” - 6
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CIS
FINANCIAL SERVICES, INC., an Alabama corporation
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By:
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/s/
XXXXXXX X. YORK
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Print
Name:
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Xxxxxxx
X. York
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Title:
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Secretary
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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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Exhibit
“A” - 7
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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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Exhibit
“A” - 8
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