ELEVENTH AMENDMENT TO AMENDED AND RESTATED REVOLVING AND TERM LOAN AGREEMENT
ELEVENTH
AMENDMENT TO AMENDED AND RESTATED
THIS
ELEVENTH AMENDMENT TO AMENDED AND RESTATED REVOLVING AND TERM LOAN AGREEMENT
(this "Amendment"), made and effective as of the 26nd
day of June, 2007, 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, 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, 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 (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 Loan Agreement to provide
for
a temporary increase in availability and to make certain other revisions,
all 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:
1572986
v6
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) $25,000,000 or
(ii) the Collateral Loan Value or (iii) the Net Worth Loan Value, all as
determined by Lender from time to time in accordance with this Agreement;
except
that during the Temporary Advance Period, “Borrowing Base” shall mean a
principal amount equal to the lesser of (i) $30,000,000 or (ii) the Collateral
Loan Value, as determined by Lender from time to time in accordance with
the
Agreement
2. 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 $25,000,000 ($30,000,000 during the Temporary Advance Period)
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.
3. The
definition of “Eligible Accounts” contained in Schedule I of the Agreement is
hereby amended to read in its entirety as follows:
“Eligible
Accounts” shall include only Accounts arising in the ordinary course of
Borrowers’ business from the sale of goods or rendition of services which are
less than forty-five (45) days old as measured from the invoice date (150
days
in the case of the Special Receivables), and which Lender, in its sole credit
judgment deem to be Eligible Accounts.
4. Schedule
I of the Agreement is hereby amended by deleting the definition of “First
Temporary Advance Period” and “Second Temporary Advance Period” and adding the
following new definition of “Temporary Advance Period” and “Special
Receivables”:
“Special
Receivables” shall mean Accounts owed by the Mississippi Emergency
Management Agency in connection with the Mississippi Alternative Housing
Project.
“Temporary
Advance Period” shall mean the period beginning on June 1, 2007 and ending
on February 5, 2008.
5. Borrower
acknowledges and agrees that immediately upon the expiration of the Temporary
Advance Period, without further notice from or action by Bank, it will make
such
payments as shall be necessary to reduce the total outstanding principal
amount
of the Revolving Loan to no more than $25,000,000.
6. During
the Temporary Advance Period, Borrower will submit, in addition to other
reports
required by the Loan Agreement, a Borrowing Base Report in the form of Exhibit
“A”
2
hereto. The
report will be submitted no later than the twenty-fifth (25th) day
of each month
as of the end of the prior month.
7. 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.
8. 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
9. 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.
10. 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.
3
11. 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.]
4
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
PROPERTIES, 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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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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5
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CIS
FINANCIAL SERVICES, INC., an Alabama corporation
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By:
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/s/
XXXXXXX YORK
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Print
Name:
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Xxxxxxx
York
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Title:
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Secretary
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BRC
COMPONENTS, INC., an Alabama 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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Secretary
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THE
HOME PLACE, 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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Vice
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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6
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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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7
EXHIBIT
“A”
FORM
OF BORROWING BASE CERTIFICATE
BORROWING
BASE REPORT
(CONSOLIDATED)
First
Commercial Bank
000
Xxxxxx Xxxxx Xxxxxxx (Zip Code 35209)
P.
O. Box
11746 (Zip Code 35202-1746)
Birmingham,
Alabama
Attention:
Xxx Xxxxxxxx
Facsimile:
(000) 000-0000
Date
of
This Report: ______________________
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Re:
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Amended
and Restated Revolving and Term Loan Agreement to Cavalier
Homes, Inc. and the Other
Borrowers
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Ladies
and Gentlemen:
In
accordance with the Amended and Restated Revolving and Term Loan Agreement
dated
as of March 31, 2000, as amended from time to time, by and among the Borrowers
(as defined in the Loan Agreement hereinafter referred to) and First Commercial
Bank (the "Loan Agreement"), we provide the following information in support
of
the Borrowing Base.
1. The
Borrowing Base on the date of this Report is $___________, further reduced
by
outstanding letters of credit of $____________, to $__________, and is
calculated in accordance with the Loan Agreement as follows [select as
applicable, the lesser of (a) or (b)]:
(a) Collateral
Loan Value is $___________, calculated as follows:
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(i)
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Value
of Eligible Accounts = $_________x .80 = $_________ (excluding
Special Receivables)
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(ii)
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Value
of Special Receivables = $_________x .80 =
$_________
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(iii)
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Value
of Eligible Inventory = $_________x .50 =
$_________
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Total
of
(i), (ii) + (iii) = $______________
(b) Minimum
Borrowing Base during the Temporary Advance Period of $30,000,000.
2. The
summary aging of Special Receivables included in item 1 above and the
calculation of the related Collateral Loan Value is:
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1572986
v6
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Exhibit
“A” -
1
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Accounts
Receivable Aging periods (from invoice date)
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Addison
Plant
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Millen
Plant
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Winfield
Plant
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Total
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0
–
30 days
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0
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|||||||
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31
– 60 days
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0
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|||||||
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61
– 90 days
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0
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91
– 120 days
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0
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121
– 150 days
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0
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Total
Eligible
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0
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0
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0
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0
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Borrowing
Base Amount (80%)
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0
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0
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0
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0
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3. All
amounts and information set forth in this report or in any attachment are
true
and correct in all respects on and as of the date of this report.
4. Terms
capitalized herein have the same meaning as those in the Loan
Agreement.
The
undersigned officer certifies that the foregoing information is true, accurate
and complete.
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CAVALIER
HOMES, INC., for itself, and as agent for the other
Borrowers
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By:
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Its:
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Chief
Financial Officer
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| 1572986 v6 |
Exhibit
“A” - 2
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