EXHIBIT 10.10 (j)
LOAN AGREEMENT
THIS LOAN AGREEMENT is dated as of March 1, 2002 by and among:
PERRY, XXXXXX, XXXXXX, BREATHITT REGIONAL
INDUSTRIAL AUTHORITY, INC.
A Kentucky non-profit corporation
000 Xxxxx Xxxx Xxxx
Xxxxxx, Xxxxxxxx 00000 (the "Authority")
AMERICAN WOODMARK CORPORATION
A Virginia corporation
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000 (the "Borrower")
Recitals
This Loan Agreement (the "Loan Agreement") provides for a loan in the
amount of FOUR HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($450,000.00) from the
Authority to the Borrower, in accordance with the terms and conditions of that
certain Multi-County Local Government Economic Development Fund Grant (the
"LGEDF Grant"), approved by the Kentucky Economic Development Finance Authority
("KEDFA') at its October 25, 2001, board meeting, and made to the Authority in
its capacity as a regional industrial authority.
SECTION 1
Definitions
As used in this Agreement:
"Accountant" shall mean the certified public accountant or firm of
certified public accountants acting as the Borrower's accountant.
An "Affiliate" of, or a Person "Affiliated" with, a specified Person, is a
Person that directly or indirectly through one or more intermediaries, controls,
is controlled by, or is under common control with, the Person specified.
"Certificate of Occupancy" shall mean such certificate(s) as may be
required by any federal, state or local jurisdiction to authorize the public
occupancy of the industrial facility to be constructed by Borrower on Xxx # 000
xx xxx Xxxxxxxxxx Xxxxxxxx Xxxxxxxxxx Xxxx for the purposes specified in the
Grant Agreement by and between the Authority, the Borrower and KEDFA dated as of
February 13, 2002.
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"DCCD" shall mean the Department for Coal County Development, Cabinet
for Economic Development of the Commonwealth of Kentucky
"Event of Default" shall mean the happening of any one or more of the
events which constitute an event of default under Section 6 of this Loan
Agreement.
"Grant Agreement" shall mean that certain LGEDF Grant Agreement by and
between the Authority, the Borrower and KEDFA dated as of February 13, 2002, the
terms and conditions of which are incorporated herein by reference, and an
executed copy of which is attached hereto as Exhibit "C."
"Industrial Facility" shall mean that industrial or manufacturing plant
and related improvements to be constructed by Borrower on Xxx # 000 xx xxx
Xxxxxxxxxx Xxxxxxxxxx Xxxx for the purposes specified in the Grant Agreement by
and between the Authority, the Borrower and KEDFA dated as of February 13, 2002,
all as more fully specified in Exhibit "D" attached hereto, and with such
material modifications, if any, as may be approved by the Authority and the DCCD
from time to time.
"Loan" shall mean the loan in the principal amount of FOUR HUNDRED FIFTY
THOUSAND AND NO/100 DOLLARS ($450,000.00), from the Authority to the Borrower
provided in Section 2 of this Loan Agreement, as evidenced by the Note attached
as Exhibit "A" to this Agreement.
"Loan Documents" shall mean this Loan Agreement, the Note, the Mortgage
and all other instruments or agreements related thereto.
"Mortgage" shall mean the first mortgage given to the Authority by
Borrower on the Property, attached hereto as Exhibit "B" to this Loan Agreement.
"Note" shall mean the promissory note attached as Exhibit "A" to this
Agreement, and shall include any renewal, replacement, extension or novation
thereof.
"Person" shall mean any person, firm, trust, corporation or business
organization.
"Project Site" shall mean the 30 (plus/minus) acres of real property
generally located in the Coalfields Regional Industrial Park, Perry County,
Kentucky, together with all improvements and fixtures attached thereto, being
the same property described and set forth in the Mortgage attached hereto as
Exhibit "B".
"Property" shall mean the real property described in the Mortgage,
together with the Industrial Facility and all other improvements or fixtures
attached thereto.
"Security Instruments" shall mean the Mortgage and all other instruments
and rights securing the Note or Loan.
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SECTION 2
The Loan
The Authority agrees to grant the Borrower the Loan in accordance with
the terms and conditions of the Loan Documents, as follows:
2.1 Amount. The principal amount of the Loan shall be FOUR HUNDRED FIFTY
THOUSAND AND NO/100 DOLLARS ($450,000.00), as evidenced by the Note attached
hereto and made a part hereof as Exhibit "A".
2.2 Interest. The Authority and the Borrower acknowledge that this Loan
is intended to be a NON-INTEREST BEARING loan obligation so long as the Borrower
shall faithfully perform its obligations hereunder to construct an industrial
facility on the Property. Upon the occurrence of any Event of Default by the
Borrower, interest shall commence to accrue at the annual rate of TWO PERCENT
(2.00%) on the principal amount of the Loan from the time of said Event of
Default until the Loan is finally collected or has been fully repaid.
2.3 Installments of Principal and Interest. There shall be no
requirement of repayment of this Loan so long as the Borrower shall faithfully
perform its obligations hereunder to construct an industrial facility on the
Property. Upon the Borrower's completion of the building and its receipt of a
bona fide certificate of occupancy from each governmental authority having
jurisdiction thereof, the Loan shall be deemed satisfied and paid in full. Upon
the occurrence of any Event of Default, and provided such Event of Default shall
not thereafter be timely cured as provided herein, then this Loan shall become
immediately due and payable with interest as herein provided.
SECTION 3
Security
The Note and the Loan evidenced thereby are and shall be secured by and
entitled to the benefits of all of the following:
3.1 Mortgage Interest in Real Property. The Note and Loan shall be
secured by the first lien created pursuant to the Mortgage, attached hereto and
made a part hereof as Exhibit "B" and incorporated herein by reference.
3.2 Condemnation Awards. As part security for the payment of the Note
and Loan and the performance of the Borrower's obligations under this Loan
Agreement, the Borrower hereby assigns to the Authority all judgments, awards of
damages or settlements hereafter made resulting from condemnation proceedings or
in lieu of any taking of the Property or any part thereof under the power of
eminent domain, or for any damage, whether caused by such taking or otherwise,
to the Property or the improvements thereon or any part thereof, or to any
streets appurtenant thereto, including any award for change of grade of streets.
In the Event of a Default then outstanding, the Authority may apply all such
sums or any part thereof so received after the payment of all of its expenses,
including costs and attorneys' fees, to payment of the Note in such manner as it
may elect or, at its option, the entire amount or any part thereof so received
may be released to the Borrower or other party entitled thereto as their
interests may appear. Provided that no default shall then have occurred, the
Borrower may retain and be under no obligation to turn over any of the
condemnation proceeds to the Authority.
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SECTION 4
General Covenants
The Borrower agrees that, until the building and other improvements
contemplated to be constructed by this Loan Agreement are completed and the
Certificate of Occupancy is delivered to the Authority, or until the principal
of and all interest on the Note shall have been paid in full in the Event of
Default, the Borrower shall perform, observe and comply with each of the
following:
4.1 Insurance. The Borrower shall maintain insurance as follows:
(a) Liability Insurance. The Borrower, at its own cost and
expense, shall procure, maintain and carry in full force and effect general
liability, public liability and workers' compensation liability insurance with
respect to their actions and operations to such extent, in such amounts and with
such deductibles as are commonly carried by prudent businesses similarly
situated, but in any event not less than $1,000,000.00 combined single limit per
occurrence, or the amount of coverage per person and per occurrence. The
Borrower, at its own cost and expense, shall procure, maintain and carry in full
force and effect property damage insurance in the amount of at least
$1,000,000.00. Without limiting the foregoing, such insurance shall (i) insure
against any liability for loss, injury, damage or claims caused by or arising
out of or in connection with the operation of Borrower's business including
injury to or death of the Borrower's employees, agents or any other persons and
damage to or destruction of public or private property, and (ii) the Authority
shall be listed on the policy as an additional insured.
(b) Physical Damage and Builders Risk Insurance. The Borrower,
at its own cost and expense, shall insure all of its properties to such extent,
against such hazards (including, without limitation, fire, theft, extended
coverage, vandalism and malicious mischief) in the amount of coverage and with
such deductibles as are commonly carried by prudent businesses similarly
situated, and in any event the amount of coverage with respect to the Property
shall be the full insurable value of the Property on the basis of replacement
cost, either without co-insurance requirements, or with coverage adequate to
avoid co-insurance penalty. The Borrower, or its contractors and subcontractors,
shall secure comprehensive builders risk insurance for the Property during the
construction of the Industrial Facility in an amount equal to the full insurable
value of the Property plus the improvements on the basis of replacement cost,
either without co-insurance requirements, or with coverage adequate to avoid
co-insurance penalty. In no event shall the amount of the insurance called for
by this Subsection 4.1(b) be less than $450,000.00 during any phase of the
construction of the Industrial Facility. Without limiting the foregoing, such
insurance shall contain a standard mortgagee endorsement in favor of the
Authority.
(c) Flood Insurance. The Borrower, at its own cost and expense,
shall insure the Property by a policy of flood insurance in the maximum amount
available if the Property is in an area which has been, or is at any time during
the term of this Loan Agreement, identified by the Secretary of Housing and
Urban Development (or a like successor agency) as having special flood or mud
slide hazards, and in which area the sale of flood insurance has been made
available under The National Flood Insurance Act of 1968. Without limiting the
foregoing, such insurance shall (i) name the Authority as an additional insured,
and expressly provide that all of the provisions thereof shall operate in the
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same manner as if there were a separate policy covering the Authority, and (ii)
provide for payment of the proceeds as provided in the Mortgage. If the Property
is not in the area identified as having special flood or mud slide hazards,
Borrower shall provide evidence of same in the form of an engineer's certificate
to the Authority and, upon so doing, shall be considered to have sufficiently
complied with this section.
(d) General Insurance Requirements.
(i) All insurance which the Borrower is required to
maintain shall be satisfactory to the Authority in form, amount and insurer.
Such insurance shall provide that any loss thereunder shall be payable
notwithstanding any action, inaction, breach of warranty or condition, breach of
declarations, misrepresentations or negligence of the Borrower. Each policy
shall contain an agreement by the insurer that, notwithstanding lapse of a
policy for any reason, or right of cancellation by the insurer or any
cancellation by the Borrower, such policy shall continue in full force for the
benefit of the Authority for at least thirty (30) days after written notice
thereof to the Authority, except that such notice shall be ten (10) days for
non-payment of premium, and no alteration in any such policy shall be made
except upon thirty (30) days written notice of such proposed alteration to the
Authority and written approval by the Authority. The Borrower shall provide the
Authority with certificates evidencing its due compliance with the requirements
of this Section 4.
(ii) Prior to the expiration date of any policy of
insurance maintained pursuant to this Loan Agreement, the Borrower shall provide
the Authority with a certificate of insurance evidencing the acquisition of a
new policy, or an extension or renewal of an existing policy, evidencing the
Borrower's due compliance with this Section.
(iii) If the Borrower falls to acquire any policy of
insurance to renew or replace any such policy at least ten (10) days prior to
the expiration thereof, or fails to keep any such policy in full force and
effect, the Authority shall have the option, but not the obligation to pay the
premiums on any such policy of insurance or to take out new insurance in amount,
type, coverage and terms satisfactory to the Authority. Any amounts paid
therefor by the Authority shall be immediately due and payable to the Authority
by the Borrower upon demand. No exercise by the Authority of such option shall
in any way affect the provisions of this Loan Agreement, including the provision
that failure by the Borrower to maintain the prescribed insurance shall
constitute an Event of Default.
4.2 Mergers, Sales, Transfers, Redemptions and Other Dispositions of
Assets or Dissolution. Borrower shall not, without the prior written consent of
the Authority and the DCCD (which consent shall not be unreasonably withheld):
(a) Sell, transfer or otherwise dispose of all or substantially
all of its assets;
(b) Liquidate or dissolve or take any action with a view toward
liquidation or dissolution;
(c) Lease as lessor, sell or otherwise transfer or dispose of all
or any portion of its fixed assets, machinery and equipment having a value in
excess of $250,000.00, other than obsolete equipment no longer usable in its
business;
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(d) Substantially cease Borrower's business operations; or,
(e) Enter into any agreement for the assumption of the Loan.
4.3 Financial Statements and Business Records. The Borrower shall keep
true and complete financial records in accordance with generally accepted
accounting principles consistently applied, and keep business records in
accordance with good business practices in the industry. Upon the Authority's
request and at reasonable times and places, the Borrower shall make its business
records available to the Authority for inspection. During the term of the Loan,
the Borrower shall furnish to the Authority Borrower's audited annual financial
statement, including, without limitation, balance sheets, statement of profit
and loss, and application of funds, prepared by Ernst & Young, LLP, or another
accounting firm reasonably satisfactory to the Authority.
4.4 Liens on Real Property. The Borrower shall not incur, create, assume
or suffer to exist any mortgage, pledge, lien, charge or other encumbrance of
any nature whatsoever on any of the real property described in the Mortgage
except (a) the first mortgage granted to Authority, to be recorded in the Perry
County Clerk's Office (b) liens for real property taxes and assessments not yet
due and payable and with respect to which no enforcement action is being taken
or pursued, or if so taken or pursued, as to which the Borrower is contesting
the same in good faith and having posted a bond protecting against the same in
such form and amount and with such parties as may be approved by the Authority;
or in lien of the bond, having paid the amount in question prior to contesting
the claim, thereby holding harmless the Authority, county and the Commonwealth;
(c) easements, restrictions and stipulations of record as to use, improvement
and occupancy of the Property; and (d) governmental laws and regulations
affecting the Property.
4.5 Designation of Agent. The Borrower shall at all times be available
to accept service or have a properly designated agent to accept service of
process who is a resident of or has offices in the Commonwealth of Kentucky. The
Borrower shall notify the Authority of any change in the name or address of such
agent.
4.6 Taxes and Other Obligations. The Borrower shall pay, before any of
them becomes in arrears, all taxes, assessments, governmental charges, levies
and any other claims (for example, for labor, materials, or supplies) which, if
unpaid, might become a lien or charge upon the Property or any other of the
Borrower's property, unless the Borrower is contesting the same in good faith
and has posted a bond protecting the same in such form and amount and with such
parties as may be approved by the Authority, or in lieu of the bond, having paid
the amount in question prior to contesting the claim, thereby holding harmless
the Authority, county and the Commonwealth.
4.7 Use of Loan Proceeds. The proceeds of the Loan shall be used to
reimburse costs incurred in the acquisition of the Property from the Authority
and for no other purpose unless expressly approved, in writing, by the Authority
and by the DCCD.
4.8 Properties. The Borrower shall maintain the Industrial Facility and
any improvements to the Property and its other buildings and other fixed assets
in good condition, subject only to normal wear and tear, and make all necessary
and proper repairs, renewals and replacements, and shall comply with
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all material provisions of leases and other material agreements in order to
prevent loss or forfeiture.
4.9 Title Search and Opinion.
(a) At its own expense, at or before the time the Loan is
disbursed, the Borrower shall provide to the Authority a title opinion letter
detailing a title search on the Property to be performed by Borrower's attorney,
stating that Borrower has a good, marketable and unencumbered fee simple title
to the Property, subject only to such exceptions as may have been reviewed and
accepted by the Authority. In lieu thereof, and at the discretion of the
Borrower, the Borrower may furnish the Authority with a mortgagee's policy of
title insurance from a title insurance company qualified to do business in the
Commonwealth of Kentucky and upon such terms and conditions and subject to such
exceptions as the Authority in its reasonable discretion may approve.
(b) As soon as practicable after closing, Borrower's attorney shall
provide a supplemental title opinion letter or, at the discretion of the
Borrower, a supplemental endorsement from a title insurance company approved by
the Authority reflecting that the Mortgage of the Authority has been filed of
record and constitutes a first and prior lien against the Property.
(c) The Borrower shall furnish evidence satisfactory to the
Authority that payment in full has been made for all labor and materials
furnished in connection with the constructing of any improvements on the
Property and all other services and work related thereto, and that no claim,
lien or other right exists with reference to such labor and materials.
4.10 Corporate Existence. The Borrower shall preserve its corporate
existence and shall be and remain qualified to do business in Kentucky and in
all states in which it is required to be so qualified.
4.11 Compliance with Law. The Borrower shall comply in all material
respects with all valid and applicable statutes, rules and regulations of the
United States of America, of the States thereof and their counties,
municipalities and other subdivisions and of any other jurisdiction applicable
to them, and the provisions of licenses issued to it, except where (1)
noncompliance in no way affects or impairs the security granted herein by
Borrower to the Authority, or (2) the same shall be currently contested in good
faith by appropriate proceedings, timely instituted, which shall operate to stay
any order with respect to noncompliance.
4.12 No Change in Ownership or Control. The Borrower shall not cause or
permit any material change in Management of the Borrower without prior written
notice to and written consent of the Authority, which consent shall not be
unreasonably withheld. For purposes of this section, "Management of the
Borrower" shall mean the Chairman of the Board, President, and Chief Financial
Officer.
4.13 Construction of the Industrial Facility. The Borrower shall
promptly undertake and diligently complete all work, including all labor,
materials and professional services not herein nor elsewhere expressly
undertaken in writing by the Authority, required for the construction of the
Industrial Facility. All of the work to be prosecuted by the Borrower shall be
performed in compliance with the general specifications provided in Exhibit "D"
attached hereto, subject to such material modifications as may be hereinafter
approved by the Authority and by DCCD, and the work shall be performed in a
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workmanlike manner, in accordance with laws and regulations of governmental
entities then in force, and on such timetable and pursuant to the terms of such
construction agreements and professional service agreements as the Authority and
the DCCD may in their reasonable discretion approve.
4.14 Project Completion. Borrower shall provide a Certificate of
Occupancy showing that the improvements are complete and ready for occupancy by
Borrower upon completion of the project.
SECTION 5
Representations and Warranties
The Borrower hereby represents and warrants to the Authority as follows
(which warranties and representations shall be deemed to survive the execution
of this Loan Agreement):
5.1 Existence. The Borrower is a duly organized and validly existing
corporation under the laws of the Commonwealth of Virginia, qualified to do
business in Kentucky.
5.2 Right to Act. The Borrower has the legal power, capacity and right
to execute and deliver all of the Loan Documents, and to observe and perform all
of the provisions of the Loan Documents. The Borrower's execution and delivery
of the Loan Documents and its performance or observance of the provisions of the
Loan Documents do not and will not violate any existing provisions in Borrower's
Articles of Incorporation or By-Laws or any law applicable to Borrower or
otherwise constitute a default or a violation under, or result in the imposition
of any lien under, or conflict with, or result in any breach of any of the
provisions of, any existing material contract or other obligation binding
Borrower, with or without the passage of time or the giving of notice or both.
The officer executing and delivering the Loan Documents on behalf of the
Borrower has been duly authorized to do so, and the Loan Documents referred to
herein are legal, valid and binding obligations of the Borrower enforceable in
accordance with their respective terms.
5.3 Litigation and Taxes. No litigation or proceeding involving the
Borrower is pending or threatened in any court or administrative agency, except
as disclosed in Counsel's Opinion as required by ss.8.5 herein. Said litigation,
if determined adversely to Borrower, will not have a material adverse impact on
Borrower's financial condition or otherwise impair its ability to honor the
commitments made herein. The Borrower is not in default in the payment of any
tax, nor is any assessment threatened in respect thereof (other than the
assessment of ad valorem property taxes not yet due and payable), and Borrower
has timely filed all federal, state and local tax returns and has paid all taxes
required to be paid therewith.
5.4 Financial Statements. Any of the Borrower's financial statements,
heretofore furnished to the Authority, are true and complete, have been prepared
in accordance with generally accepted accounting principles, omit no material
contingent liabilities of any kind that are not disclosed or otherwise reflected
therein, and fairly present their respective financial conditions as of their
dates and the results of the Borrower's operations for the fiscal period then
ending. Since the date of their preparation, there has been no material adverse
change in the Borrower's financial condition, property or business.
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5.5 Default. No Event of Default exists under this Loan Agreement, nor
will any such default begin to exist immediately after the execution and
delivery hereof.
5.6 No Liens on the Property. The Borrower owns good and marketable
title to the Property described in the Mortgage, and the Property is free from
any mortgages, liens, charges or other encumbrances of any nature whatsoever
except those liens set forth and described in Section 4.4 herein.
5.7 Hazardous Materials.
(a) Borrower represents and warrants that it has no actual knowledge
that any Hazardous Materials exist on, under or about the Property or have been
transported to or from the Property or used, generated, manufactured, stored or
disposed of on, under or about the Property, except in full compliance with
applicable laws, and the Property is not in violation of any federal, state or
local law, ordinance or regulation relating to industrial hygiene or the
environmental conditions on, under or about the Property, including, without
limitation, soil and groundwater conditions. Hazardous Materials shall include:
(i) oil, flammable substances, explosives, radioactive materials, hazardous
wastes or substances, toxic wastes or substances or any other materials or
pollutants which pose a hazard to the Property or to persons on or about the
Property, cause the Property to be in violation of any local, state or federal
law or regulation, or are defined as or included in the definition of "hazardous
substances", "hazardous wastes", "hazardous materials", or "toxic substances" or
words of similar import under any applicable local, state or federal law or
under the regulations adopted or publications promulgated pursuant thereto,
including, but not limited to: (A) the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. 9601, et seq.; (B)
the Hazardous Materials Transportation Act, as amended, 49 U.S.C. 1801, et seq.;
(C) the Resource Conservation and Recovery Act, as amended, 42 U.S.C. 6901, et
seq.; and (D) regulations adopted and publications promulgated pursuant to the
aforesaid laws; (ii) asbestos in any form which is or could become friable, urea
formaldehyde foam insulation, transformers or other equipment which contain
dielectric fluid containing levels of polychlorinated biphenyl in excess of
fifty (50) parts per million; and (iii) any other chemical, material or
substances, exposure to which is prohibited, limited or regulated by any
governmental authority or may or could pose a hazard to the health and safety of
the occupants of the Property or the owners and/or occupants of property
adjacent to or surrounding the Property.
(b) Borrower shall, at its sole cost and expense, prevent the
imposition of any lien against the Property for the cleanup of any Hazardous
Material, and shall comply and cause (i) all tenants under any lease or
occupancy agreement affecting any portion of the Property, and (ii) any other
person or entity on or occupying the Property, to comply with all federal, state
and local laws, regulations, rules ordinances and policies concerning the
environment, health and safety and relating to the use, handling, production,
disposal, discharge and storage of Hazardous Materials in, or about the
Property.
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(c) Borrower shall promptly take any and all necessary remedial
action in response to the presence, storage, use, disposal, transportation or
discharge of any Hazardous Materials on, under or about the Property. In the
event Borrower undertakes any remedial action with respect to any Hazardous
Materials on, under or about the property, Borrower shall immediately notify
Authority of any such remedial action, and shall conduct and complete such
remedial action (A) in compliance with all applicable federal, state and local
laws, regulations, rules, ordinances and policies, (B) to the satisfaction of
Authority, and (C) in accordance with the orders and directives of all federal,
state and local governmental authorities.
(d) Borrower shall protect, indemnify and hold Authority, its
directors, officers, employees and agents, and any successors to Authority's
interest in the Property, harmless from and against any and all claims,
proceedings, lawsuits, liabilities, damages, losses, fines, penalties,
judgments, awards, costs and expenses (including, without limitation, attorney
fees and costs and expenses of investigation) which arise out of or relate in
any way to any use, handling, production, transportation, disposal or storage of
any Hazardous Materials in the course of Borrower's business operations,
including, without limitation: (i) all foreseeable and all unforeseeable
consequential damages directly or indirectly arising out of (A) the use,
generation, storage, discharge or disposal of Hazardous Materials by Borrower,
or any person or entity on or about the Property under the control of Borrower,
or (B) any residual contamination affecting any natural resource or the
environment, and (ii) the costs of any required or necessary repair, cleanup, or
detoxification of the Property and the preparation of any closure or other
required plans (all such costs, damages, and expenses referred to in this
Paragraph (d) hereafter referred to as "Expenses"). In addition, Borrower agrees
that in the event any Hazardous Material is caused to be removed from the
Property by Borrower, Authority, or any other person or entity, the number
assigned by the Environmental Protection Agency to such Hazardous Material shall
be solely in the name of Borrower and Borrower shall assume any and all
liability for such removed Hazardous Material. In the event Authority pays any
Expenses, such Expenses shall be additional indebtedness secured hereby and
shall become immediately due and payable without notice and with interest
thereon at the default rate specified in the Note.
(e) Borrower shall pay or reimburse Authority for any and all
loss, cost, damage and expenses (including, without limitation, attorneys' fees
and costs incurred in the investigation, defense and settlement of claims) that
Authority may incur as a result of or in connection with the assertion against
Authority of any claims relating to the presence or removal of any hazardous
material, or compliance with any federal, state or local laws, rules,
regulations or order relating thereto, and the amount(s) thereof shall be
additional indebtedness secured hereby and by the Security Instruments and shall
become immediately due and payable without notice and with interest thereon at
the default rate specified in the Note.
SECTION 6
Events of Default
Each of the following shall constitute an Event of Default under this
Loan Agreement:
6.1 Covenants and Agreement. If the Borrower violates, fails or omit to
performs or observe any covenant, agreement, condition or other provision
contained or referred to in, or any default occurs under, the Loan Documents,
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and such failure or omission shall not have been fully corrected within thirty
(30) days (or such xxxxxxx xxxxx period as may be provided in the particular
instrument for the particular default) after the Authority has given written
notice thereof to the Borrower.
6.2 Compliance with Grant Agreement. If the Borrower violates, fails or
omit to performs or observe any covenant, agreement, condition or other
provision contained or referred to in, or any default Occurs under, the Grant
Agreement, and such failure or omission shall not have been fully corrected
within any applicable time period allowed thereunder for curing such defaults.
6.3 Accuracy of Statements. If any representation, warranty or other
statement of fact contained herein, or in any of the other Loan Documents or in
any writing, certificate, report or statement at any time furnished to the
Authority pursuant to or in connection with this Loan Agreement or otherwise
shall be materially false or misleading in any respect or shall omit a material
fact whether or not made with knowledge of same.
6.4 Adverse Financial Change. If there should be any material adverse
change in the financial condition of the Borrower, as determined in the
Authority's reasonable discretion, from its financial condition as shown on any
financial statement supplied to the Authority as referred to in subsections 4.3
or 5.4 hereof, and such adverse change is not fully corrected to the Authority's
satisfaction within ten (10) days after written notice with respect thereto from
the Authority.
6.5 Dissolution or Termination of Existence. If the Borrower or any
person, firm or corporation affiliated with Borrower takes any action that is
intended to result in Borrower's termination, dissolution or liquidation.
6.7 Solvency.
(a) If the Borrower shall (i) be adjudicated bankrupt, (ii) admit
in writing its inability to pay its debts generally as they become due, (iii)
make a general assignment for the benefit of creditors, or (iv) file a petition,
or admit (by answer, default or otherwise) the material allegations of any
petition filed against him or it, in bankruptcy under the federal bankruptcy
laws (as in effect on the date this Loan Agreement, or as they may be amended
from time to time), or under any other law for the relief of debtors, or for the
discharge, arrangement or compromise of their debts.
(b) If a petition shall have been filed against the Borrower in
proceedings under the federal bankruptcy laws (in effect on the day of this Loan
Agreement, or as they may be amended from time to time) or under any other laws
for the relief of debtors, or for the discharge, arrangement or compromise of
their debts, or any order shall be entered by any court of competent
jurisdiction appointing a receiver trustee or liquidator of all or part of
Borrower's assets, and such petition or order is not dismissed or stayed within
thirty (30) consecutive days after entry thereof.
6.8 Other Defaults. If any event would give another Person the right to
accelerate payments of indebtedness or to proceed against the Property.
-11-
SECTION 7
Remedies Upon Default
Notwithstanding any contrary provisions or inference herein or
elsewhere:
7.1 Rights Under Security Instruments. If any Event of Default shall
occur, the Authority shall also have the rights and remedies granted it under
any and all of the Loan Documents and Security Instruments securing or intended
to secure the Loan and the Note.
7.2 Exercise of Remedies. The rights and remedies of the Authority shall
be deemed to be cumulative and shall be in addition to all those rights and
remedies afforded to the Authority at law or in equity. Any exercise of any
rights or remedies shall not be deemed to be an election of that right or remedy
to the exclusion of any other right or remedy.
SECTION 8
Conditions Precedent
The Authority's obligation to make a Loan shall be conditioned upon the
fulfillment of the following conditions prior to the making of such Loan:
8.1 Representations, Warranties and Covenants. Each and every
representation, warranty and covenant made by or on behalf of the Borrower in
its application to the DCCD or relating to any of the Loan Documents or
instruments or transactions contemplated thereby shall be true, complete and
correct on and as of the date the Loan is made.
8.2 No Defaults. There shall exist no Event of Default and no event
which, with the giving of any notice or the passage of any period of time,
constitutes an Event of Default.
8.3 Compliance. The Borrower shall have observed or complied with all
provisions of this Loan Agreement.
8.4 Recordings. The Mortgage and any other documents or instruments as
the Authority may request have been executed and delivered by the Borrower and
filed or recorded in such public offices as the Authority may request to secure
the Loan.
8.5 Counsel Opinion. The Borrower shall have delivered to the Authority
an opinion of the Borrower's counsel in form and substance satisfactory to the
Authority and its counsel with respect to such matters as the Authority may
reasonably require, in a form substantially similar to Exhibit "E" attached
hereto.
SECTION 9
Interpretation
9.1 No Waivers; Multiple Exercise of Rights. No course of dealing in
respect of, nor any omission or delay in the exercise of, any right, power,
remedy or privilege by the Authority shall operate as a waiver thereof, nor
shall any right, power, remedy or privilege of the Authority be exclusive of any
other right, power, remedy or privilege referred to herein or in any related
document now or hereafter available at law, in equity, in bankruptcy, by statute
or otherwise. Each such right, power, remedy or privilege may be exercised by
-12-
the Authority, and as often and in such order as the Authority may deem
expedient.
9.2 Time of the Essence. Time shall be of the essence in the performance
of all the Borrower's obligations under the Loan Documents and the other
instruments related hereto.
9.3 Binding Effect. The provisions of this Loan Agreement shall bind and
benefit the Borrower and the Authority and their respective successors, heirs
and assigns, including each subsequent holder, if any, of the Note.
9.4 Headings. The headings used in this Loan Agreement are for reference
only, and shall not be considered in the interpretation or construction of this
Loan Agreement.
9.5 Governing Law. The Loan Documents and the respective rights and
obligations of the parties hereto shall be construed in accordance with and
governed by the laws of the Commonwealth of Kentucky.
9.6 Complete Agreement. This Loan Agreement and the other instruments
referred to herein, including without limitation the Grant Agreement, contain
the entire agreement of the parties pertaining to its subject matter and
supersede all prior written and oral agreements pertaining hereto.
9.7 No Assignments or Modifications. The Borrower may not assign its
rights and obligations under this Loan Agreement to any other party. This Loan
Agreement may be modified only in a writing executed by the Authority and the
Borrower.
9.8 Severability. If any part, term or provision of this Loan Agreement
is held by any court to be unenforceable or prohibited by any law applicable to
this Loan Agreement, the rights and obligations of the parties shall be
construed and enforced with that part, term or provision limited so as to make
it enforceable to the greatest extent allowed by law, or, if it is totally
unenforceable, as if this Loan Agreement did not contain that particular part,
term or provision.
SECTION 10
Notices
Any notice required or permitted to be given under this Loan Agreement
shall be in writing and shall be deemed sufficiently given for all purposes if
sent by registered mail, postage pre-paid and return receipt requested,
addressed to the intended recipient at (a) the address set forth in the preamble
to this Loan Agreement, or (b) such other address which any party hereto may
specify by written notice to the other parties hereto.
SECTION 11
Survival of Covenants, Agreements, Warranties and Representations
All covenants, agreements, warranties and representations made by the
Borrower herein shall survive the making of the Loan and the execution and
delivery of the Loan Documents and all Security Instruments until the Loan is
forgiven or repaid in full, including all interest, if any.
-13-
SECTION 12
Fees and Expenses
If any Event of Default shall occur under the Loan Documents or the
Security Instruments, the Borrower shall pay to the Authority, to the extent
allowable by applicable law, such amounts as shall be sufficient to reimburse
the Authority fully for all of its costs and expenses incurred in enforcing its
rights and remedies under the Loan Documents or Security Instruments, including
without limitation the Authority's reasonable attorneys' fees and court costs.
Such amounts shall be deemed evidenced by the Note and secured by all the
Security Instruments.
SECTION 13
Miscellaneous Provisions
13.1 Term of Loan Agreement. The term of this Loan Agreement shall
commence as of the date hereof, and continue until the first date on which the
Loan is forgiven or until the Loan is repaid and all accrued but unpaid interest
thereon, if any, shall have been paid in full, and the Borrower shall have
performed all its other obligations hereunder.
13.2 Further Assurances. The Borrower shall sign such other documents or
instruments as the Authority may request from time to time to more fully create,
perfect, continue, maintain or terminate the rights and security interests
intended to be granted or created pursuant to the Loan Documents or the Security
Instruments.
13.3 Incorporation by Reference. All exhibits, schedules, annexes or
other attachments to this Loan Agreement are incorporated into the Loan
Agreement as if set out in full in the first place that reference is made
thereto.
13.4 Multiple Counterparts. This Loan Agreement may be signed by each
party upon a separate copy, and in such case one counterpart of this Loan
Agreement shall consist of a sufficient number of such copies to reflect the
signature of each party.
13.5 Waivers by the Borrower. The Borrower hereby waives, to the extent
permitted by applicable law, (a) all presentments, demands for performance,
notices of nonperformance, protests, notices of protest and notices of dishonor
in connection with the Note; (b) any requirement of diligence or promptness on
the part of the Authority in enforcement of its rights under the provisions of
the Loan Documents or the Security Instruments; and (c) any requirement of
marshaling assets or proceeding against persons or assets in any particular
order.
-14-
IN WITNESS WHEREOF, the Authority and the Borrower have executed this
Loan Agreement as of the day, month and year first above written.
PERRY, XXXXXX, XXXXXX, BREATHITT REGIONAL
INDUSTRIAL AUTHORITY, INC.
By: Xx Xxxxxx
Title: Chairman
AMERICAN WOODMARK CORPORATION
By: Xxxx X Xxxxxx
Title: Sr. Vice President
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STATE OF KENTUCKY )
)ss
COUNTY OF Perry )
I hereby certify that the foregoing Loan Agreement was duly subscribed, sworn to
And acknowledged before me by Xx Xxxxxx as Chairman of the PERRY, XXXXXX,
XXXXXX, BREATHITT REGIONAL INDUSTRIAL AUTHORITY, INC., on this the 12 day of
February, 2002.
Notary Public
My commission expires 11/25/2002
STATE OF Virginia )
)ss
CITY OF Winchester )
I hereby certify that the foregoing Loan Agreement was duly subscribed,
sworn to and acknowledged before me by Xxxxx X. Xxxxxx of AMERICAN WOODMARK
CORPORATION, on this the 1st day of March, 2002.
Notary Public
My commission expires 12/31/2003
-16-
List of Exhibits
EXHIBIT A Non-Interest Bearing Promissory Note
EXHIBIT B Mortgage
EXHIBIT C Grant Agreement
EXHIBIT D General Specifications for Industrial Facility
EXHIBIT E Counsel Opinion Letter
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NON-INTEREST BEARING PROMISSORY NOTE
$450,000.00 ,200
Hazard, Kentucky
FOR VALUE RECEIVED, AMERICAN WOODMARK CORPORATION, a Virginia
corporation, 0000 Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx, 00000 ("Borrower"),
promises to pay to the order of PERRY, XXXXXX, XXXXXX, BREATHITT REGIONAL
INDUSTRIAL AUTHORITY, INC. at its principal office at 000 Xxxxx Xxxx Xxxx,
Xxxxxx, Xxxxxxxx, 00000 (the "Authority"), the principal sum of FOUR HUNDRED
FIFTY THOUSAND AND NO/100 DOLLARS ($450,000.00) and, in the case of an Event of
Default, with interest as hereinafter provided until the entire principal
balance of and all accrued interest on this Note has been paid in full.
This Note shall be forgiveable so long as the Borrower shall faithfully
perform its obligations pursuant to a loan agreement (the "Loan Agreement") of
even date herewith by and among the Authority and the Borrower which requires
Borrower to construct an Industrial Facility on certain Property known as Xxx #
000 xx xxx Xxxxxxxxxx Xxxxxxxxxx Xxxx in Perry County, Kentucky. Any terms
defined in the Loan Agreement and not otherwise defined herein shall have the
same meaning herein as in the Loan Agreement. Upon the Borrower's completion of
the Industrial Facility and its receipt and tender to the Authority of a bona
fide Certificate of Occupancy from each governmental authority having
jurisdiction thereof, the Loan shall be deemed satisfied and paid in full.
However, unless earlier paid in full or otherwise satisfied through Borrower's
performance, and provided the same has not been previously accelerated by the
Authority due to default by the Borrower, this Note shall become due and
payable, together with all accrued interest, if any, at the offices of the
Authority in Hazard, Kentucky on December 31, 2004.
The Authority and the Borrower acknowledge that this Loan is intended to
be a NONINTEREST BEARING NOTE so long as the Borrower shall faithfully comply
with its obligations hereunder and under the Loan Agreement. Upon the occurrence
of any Event of Default by the Borrower, interest shall commence to accrue at
the annual rate of TWO PERCENT (2.00%) on the principal amount of the Loan from
the time of said Event of Default until the Loan has been finally collected or
has been fully repaid.
The occurrence of an "Event of Default" (as defined in the Loan
Agreement) shall constitute a default under this Note. Upon any Event of
Default, the principal of this Note shall commence to accrue interest at the
annual rate of TWO PERCENT (2.00%). The holder of this Note may also, at its
option, declare the entire unpaid balance of, and all accrued interest on, this
Note to be immediately due and payable.
This Note is secured by a mortgage ("Mortgage") on certain Property more
particularly described therein. The holder of this Note is entitled to the
rights and security in such Mortgage, more fully described therein and in the
Loan Agreement. The holder hereof assents to the provisions of the Loan
Agreement.
Failure of the holder of this Note to exercise any of its rights and
remedies shall not constitute a waiver of any provision of this Note or of the
Loan Agreement, or of any of such holder's fights and remedies, nor shall it
Exhibit A
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prevent the holder from exercising any rights or remedies with respect to the
subsequent happening of the same or similar occurrences. All remedies of the
holder hereof shall be cumulative to the greatest extent permitted by law. Time
shall be of the essence in the payment of all payments of interest and principal
on this Note.
If there is any default under this Note, and this Note is placed in the
hands of an attorney for collection, or is collected through any court,
including any bankruptcy court, the Borrower promises to pay to the order of the
holder hereof such holder's reasonable attorney's fees and court costs incurred
in collecting or attempting to collect or securing or attempting to secure this
Note or enforcing the holder's rights with respect to any collateral securing
this Note, to the extent allowed by the laws of the Commonwealth of Kentucky, or
any state in which any collateral for this Note is situated and to the extent
such fees and costs are actually paid or agreed to be paid by the holder of this
Note, except such fees as are paid to a salaried employee of the holder of this
Note.
This Note has been delivered in, and shall be governed by and construed
in accordance with, the laws of the Commonwealth of Kentucky.
Except as provided herein, the Borrower of this Note waives presentment,
demand, notice of dishonor, protest, notice of protest, notice of nonpayment or
nonacceptance and any other notice and all due diligence or promptness that may
otherwise be required by law, and all exemptions to which the Borrower now or
hereafter may be entitled under the laws of the Commonwealth of Kentucky, or of
the United States of America or any state thereof. The holder of this Note may,
with or without notice to any party, and without affecting the obligations of
any maker, surety, guarantor, endorser, accommodation party or any other party
to this Note, and without limitation, (1) extend the time for payment of either
principal or interest from time to time, (2) release or discharge any one or
more parties liable on this Note, (3) suspend the right to enforce this Note
with respect to any persons, (4) change, exchange or release any property in
which the Authority has any interest securing this Note, and (5) suspend the
right to enforce against any such collateral.
IN WITNESS WHEREOF, the Borrower has executed this Note on the day and
year first above written.
BORROWER:
AMERICAN WOODMARK CORPORATION
By:.
Title:
-2-
MORTGAGE
THIS MORTGAGE is executed by the hereinafter named Mortgagor this __ day
of, 200_, by and among
AMERICAN WOODMARK CORPORATION
A Virginia corporation
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx, 00000
("Mortgagor")
and
PERRY, XXXXXX, XXXXXX, BREATHITT
REGIONAL INDUSTRIAL AUTHORITY, INC.,
A Kentucky non-profit corporation
000 Xxxxx Xxxx Xxxx
Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxx, 00000
("Mortgagee")
For the purpose of securing the payment of the indebtedness herein
mentioned and securing the fulfillment of all the covenants and conditions
hereinafter contained, Mortgagor hereby conveys in FEE SIMPLE to Mortgagee with
covenant of GENERAL WARRANTY the Property located in Perry County, Kentucky,
more particularly described on Exhibit "A" attached hereto and made a part
hereof,
TOGETHER with the buildings and improvements erected thereon, or
hereafter erected thereon, and the rights, privileges and appurtenances thereto
belonging or in any way appertaining, and all goods and other tangible personal
property, moveable or immoveable, which are or are to become fixtures,
including, but not limited to, all heating, plumbing, air conditioning and
lighting fixtures and appliances now or hereafter on or affixed to the property,
whether now owned or hereafter acquired by Mortgagor; and
TOGETHER with all materials intended for construction, re-construction,
alteration and repair of such buildings and improvements now or hereafter
erected thereon, all of which materials shall be deemed to be included within
said buildings and improvements immediately upon the delivery thereof to the
Property, and
TOGETHER with all accounts, contracts, permits, licenses, waivers, or
consents now or hereafter dealing with, affecting or concerning the Property,
including, without limitation, all rights accruing to Mortgagor from any and all
contracts with ail contractors, architects, engineers or subcontractors relating
to the construction or renovation of improvements on or upon the Property,
including performance and/or materialmen's bonds; and
TOGETHER with all rights of Mortgagor in and to any and all contracts
with utility companies, whether now existing or hereafter entered into, for the
providing of service to the Property, including all fees or refunds; and
EXHIBIT B
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TOGETHER with all licenses, permits and/or operating permits issued in
favor of, for the account of, or granted to Mortgagor by any division or
department of the Commonwealth of Kentucky, or by any other government or quasi
governmental authority having the power and authority to issue any such permits
and licenses in connection with the Property, whether now existing or hereafter
acquired by Mortgagor; and
TOGETHER with all insurance awards and proceeds arising out of damage to
said Property, and all awards and other compensation heretofore or hereafter to
be made to Mortgagor for any taking by eminent domain, either permanent or
temporary, of all or any part of said Property or buildings or improvements or
any interest therein, or easement or appurtenance thereof, including severance
and consequential damage and change in grade of streets, which said awards and
compensation are hereby assigned to Mortgagee, and
TOGETHER with all of Mortgagor's rights, title and interest in any and
all leases, tenant contracts, rental agreements, management contracts, operating
agreements, and any and all rents, deposits and accounts receivable which are
now due or may hereafter become due by reason of the renting and/or leasing of
the Property and the improvements thereon, whether such renting and/or leasing
is with respect to periods prior to or after this date; and
TOGETHER with all rights, privileges, rights of way, easements and
appurtenances in any way associated with the Property;
whether now owned or hereafter acquired by Mortgagor; and all cash and non-cash
proceeds of all of the above, and all renewals or replacements thereof or
articles in substitution therefor, and all general intangibles (including choses
in action) which may relate to any of the foregoing or to the Property
generally, and this Mortgage is hereby deemed to be as well a security agreement
pursuant to Article 9 of KRS Chapter 355 for the purpose of creating a security
interest in any personal property securing the indebtedness and the Mortgagee is
authorized to perfect the same by electronic or other filing as maybe allowed by
law;
TO HAVE AND TO HOLD the same unto Mortgagee, its successors and assigns
forever.
Mortgagor is justly indebted to Mortgagee for borrowed money in the
principal sum of FOUR HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($450,000.00),
evidenced by a promissory note (the "Note") of even date herewith, with interest
thereon as provided therein, executed and delivered by Mortgagor to the order of
Mortgagee, with principal and interest payable as stated therein, and with other
provisions and obligations, all of which are incorporated herein by reference.
The Note bears a final maturity date of December 31, 2004.
This Mortgage is delivered pursuant to a loan agreement (the "Loan
Agreement") of even date herewith by and among the Mortgagor and the Mortgagee
which requires Mortgagor to construct an Industrial Facility on certain Property
known as Xxx # 000 xx xxx Xxxxxxxxxx Xxxxxxxxxx Xxxx in Perry County, Kentucky.
Any terms defined in the Loan Agreement and not otherwise defined herein shall
have the same meaning herein as in the Loan Agreement.
-2-
Mortgagor covenants lawful seisin of the Property, full right and power
to mortgage and convey the same, and that the same is free from all liens and
encumbrances except (i) this first mortgage in favor of the Authority; (ii)
restrictions and stipulations of record as to use, improvement and occupancy of
the Property; (iii) governmental laws and regulations affecting the Property;
and, (iv) liens for real property taxes and assessments not yet due and payable.
Mortgagor further covenants that it has good and marketable title to the same
and that this Mortgage is and shall be a valid first lien against the Property.
Mortgagor, in order to more fully protect the security of this Mortgage,
covenants and agrees as follows:
1. To pay the Note and interest thereon when due.
2. To pay, when due, all taxes and assessments of every type and nature
levied or assessed against the Property or any interest therein or any part
thereof, and any claim, lien or encumbrance against the Property which may be or
become prior to the lien of this Mortgage, and if requested by Mortgagee, to
deliver or exhibit receipts therefor to Mortgagee at least fifteen (15) days
before the same shall become delinquent.
3. To keep the improvements now existing or hereafter erected on the
Property insured according to the terms and conditions of the Loan Agreement. In
the event of loss, Mortgagor shall give immediate notice by certified mail,
return receipt requested, to Mortgagee, and Mortgagee may make proof of loss if
not made promptly by Mortgagor; and the insurance proceeds, or any part thereof,
shall be applied to the Mortgagee or the Mortgagor as provided in the Loan
Agreement. In the event of foreclosure of this Mortgage, or other transfer of
title to the Property in extinguishment of the debt secured hereby, all right,
title and interest of Mortgagor in and to any insurance policies then in force
shall pass to the purchaser or grantee.
4. Mortgagor represents and warrants that no Hazardous Materials exist
on, under or about the Property or, to the best of Mortgagor's knowledge after
diligent inquiry, have been transported to or from the Property or used,
generated, manufactured, stored or disposed of on, under or about the Property,
except in full compliance with any applicable laws, and the Property is not in
violation of any federal, state or local law, ordinance or regulation relating
to industrial hygiene or the environmental conditions on, under or about the
Property, including, without limitation, soil and groundwater conditions, as
more particularly set forth in the Loan Agreement, the terms of which are
incorporated herein by reference.
5. That Mortgagor: (a) will maintain the Property in good condition and
repair; Co) will not commit or suffer waste thereof; (c) will comply with all
laws, ordinances, regulations, covenants, conditions and restrictions affecting
the Property, and will not suffer or permit any violation thereof; and (d) will
not remove, demolish or alter the design or structural character of any building
now or hereafter erected on the Property unless Mortgagee shall first consent
thereto in writing.
6. If Mortgagor falls to maintain the insurance provided for herein or
to keep the policy or policies therefor deposited with Mortgagee, or to pay the
cost thereof, or to pay taxes and assessments, or to promptly make repairs and
replacements, then Mortgagee may, at its option, procure and pay for such
insurance, pay such taxes or assessments, or cause such repairs or replacements
to be effected, and the money so advanced by Mortgagee, with interest thereon at
-3-
the maximum legal rate of interest, payable monthly, shall be paid by Mortgagor
to Mortgagee on demand, and such advances shall be secured by this Mortgage and
the lien therefor shall be deemed equal in dignity to the lien securing the
other indebtedness hereby secured.
7. If Mortgagor fails: (a) to construct the Industrial Facility as
provided in the Loan Agreement or to pay the principal or interest, if any,
provided for in the Note when the same shall be due, thereby constituting an
Event of Default under the Loan Agreement; or (b) to pay taxes or assessments
when due; or (c) to keep the improvements now existing or hereafter erected on
the Property insured against loss or damage as provided herein or to pay the
premiums for such insurance when they become due; or (d) to keep the Property in
good condition and repair; or (e) to keep or perform any covenant or stipulation
of this Mortgage; or (If) if proceedings are instituted involving title to the
Property or any part thereof, including the foreclosure of any mortgage or any
other lien against the Property; or (g) if Mortgagor is adjudged bankrupt in
either voluntary or involuntary proceedings; then in any of such case, Mortgagee
may declare the whole indebtedness secured hereby to be at once due and payable,
and forthwith proceed to collect the same and to enforce this Mortgage by suit
or otherwise; and in any of such cases Mortgagee may enter on the Property,
collect the rents, issues and profits therefrom, and after paying all expenses
of such conditions, and a reasonable compensation for itself, apply the money
collected to the satisfaction of the indebtedness hereby secured. In any of such
events of default herein mentioned, Mortgagee may, at its option, apply to any
court of competent jurisdiction for the appointment of a receiver of the
Property to manage the same and to collect the rents, issues and profits
therefrom, and after deducting the costs and expenses of such receivership and a
reasonable compensation for the receiver's services, apply the remainder of such
rent, issues and profits so received to the satisfaction of the indebtedness
hereby secured. It is further agreed that the grounds for the appointment of a
receiver herein set out shall be in addition to and not in limitation of the
statutory remedy of receivership and may be invoked either in aid of or without
proceeding for the foreclosure and sale of the Property. Mortgagor agrees to pay
for the foreclosure and sale of the Property. Mortgagor agrees to pay to
Mortgagee reasonable attorney fees incurred by Mortgagee in the event of a
default hereunder to the extent such fees are actually paid or agreed to be paid
by Mortgagee, except such fees as are paid by Mortgagee to a salaried employee
of Mortgagee. This Mortgage shall secure payment to Mortgagee by Mortgagor of
such fees.
8. No delay by Mortgagee in the exercise of any of its rights or
remedies hereunder, or otherwise afforded by law, shall operate as a waiver
thereof, or preclude the exercise thereof during the continuance of any default
hereunder. An express waiver of any obligation of Mortgagor shall not at any
time thereafter be held to be a waiver of any of the terms or conditions of this
Mortgage except as specified in the express waiver, and that only for the time
and to the extent stated in the express waiver.
9. With respect to all or any part of the Property, or any legal or
equitable interest therein, the Mortgagor, or any successor in interest to the
Mortgagor, shall not (i) sell, (ii) convey, (iii) transfer, (iv) lease for more
than one year, except as specifically permitted in the Loan Agreement, (v) lease
with option to purchase, or (vi) enter into a contract for deed or bond for deed
(all of the foregoing being hereinafter referred to as "Transfer" or
"Transferred") without the prior written consent of Mortgagee. Such consent may
be conditioned on such modifications of this Mortgage and the indebtedness which
it secures as Mortgagee may deem necessary at the time of such consent,
-4-
including, without limitation, changing the interest rate applicable to said
loan for the remaining term of the loan, and the proposed purchaser or
transferee of the Property meeting the then existing standards of credit and
financial responsibility required of Mortgagor by Mortgagee. If the Property is
Transferred with written consent of Mortgagee, the purchaser or transferee shall
assume the balance then owing on the indebtedness and all of the obligations
relating thereto (including any modifications that may be conditions for
Mortgagee's consent to the Transfer) and shall pay to Mortgagee such transfer
fee as is required by Mortgagee at the time of the Transfer. The Mortgagee may
declare the entire debt secured hereby immediately due and payable and enforce
this Mortgage, without notice to Mortgagor, in the event the Property is
Transferred without the written consent of Mortgagee or the purchaser declines
to assume the indebtedness secured by this Mortgage as herein provided. If title
to the Property or any part thereof or any interest therein is Transferred with
or without Mortgagee's written consent, such Transfer shall not operate to
release, discharge, modify, change or affect the original liability of Mortgagor
or any subsequent persons who become obligated by reason of the assumption of
the debt secured, either in whole or in part.
10. Without affecting the liability of Mortgagor or any subsequent
persons who may become obligated (except any person expressly released in
writing) to pay any indebtedness secured hereby or to perform any obligation
contained herein, and without affecting the rights of Mortgagee with respect to
any security not expressly released in writing, Mortgagee may, at the time and
from time to time, either before or after the maturity of the Note, and without
notice or consent: (i) release any person liable for payment of all or any part
of the indebtedness or for performance of any obligations; (ii) make any
agreement extending the time or otherwise altering the terms of payment of all
or any part of the indebtedness, or modifying or waiving any obligation, or
subordinating, modifying or otherwise dealing with the lien or charge thereof;
(iii) exercise or refrain from exercising or waive any right Mortgagee may have;
(iv) accept additional security of any kind; and (v) release or otherwise deal
with any property, real or personal, securing the indebtedness, including all or
any part of the Property mortgaged hereby.
11. As further security for payment of the indebtedness and performance
of the obligations, covenants and agreements secured hereby, Mortgagor hereby
transfers, sets over and assigns to Mortgagee all judgments, awards of damages
and settlements hereafter made as a result of or in lieu of any taking of the
Property or any part thereof under the power of eminent domain, or for any
damage (whether caused by such taking or otherwise) to the Property or the
improvements thereon or any part thereof, including any award for change of
grade of streets. Mortgagee may apply all such sums or any part thereof so
received on the indebtedness secured hereby in such manner as it elects or, at
its option, the entire amount or any part thereof so received may be released.
12. In the event of the enactment of or change in (including, without
limitation, a change in interpretation of) any applicable law subjecting
Mortgagee to any tax or changing the basis of taxation of mortgages, Deeds of
Trust, or other liens or debts secured thereby, or the manner of collection of
such taxes, in each such case, so as to affect this Mortgage, the indebtedness
evidenced by the Note or Mortgage, and the result is to increase the taxes
imposed upon or the cost to Mortgagee of maintaining the indebtedness, or to
reduce the amount of any payments receivable hereunder, then, and any such
event, Mortgagor shall, on demand, pay to Mortgagee additional amounts to
compensate for such increased costs or reduced amounts, provided that if any
-5-
such payment or reimbursement shall be unlawful or would constitute usury or
render the indebtedness wholly or partially usurious under applicable law, then
Mortgagee may, at its option, declare the indebtedness immediately due and
payable or require Mortgagor to pay or reimburse Mortgagee for payment of the
lawful and non-usurious portion thereof.
13. Mortgagor shall assign to Mortgagee any and all present and/or future
leases of all or any part of the Property should Mortgagee, at its sole option,
request such assignment or assignments.
14. Mortgagor agrees that no additional mortgage, lien or equity position
other than those set forth hereinabove shall be placed or allowed to exist on
the Property without the prior written approval of Mortgagee, which approval
shall not be unreasonably withheld.
15. This Mortgage is made to secure a loan for the purpose of erecting or
adding to a building and otherwise improving real property.
16. Anything in this Mortgage to the contrary notwithstanding, it is
understood and agreed by the parties hereto that this loan is made pursuant to
the terms of the Loan Agreement, the terms of which are hereby incorporated by
reference. Any Event of Default under the terms of the Loan Agreement shall
constitute a default under this Mortgage and shall entitle Mortgagee to all the
rights and remedies set forth herein. If a conflict should arise between the
provisions of this Mortgage and the provisions of the Loan Agreement, the Loan
Agreement shall prevail.
17. Any agreement hereafter made by Mortgagor and Mortgagee pursuant to
this Mortgage shall be superior to the rights of the holder of any intervening
lien or encumbrance.
18. This Mortgage shall secure all renewal notes executed in lien of the
Note and also any extensions of the Note.
PROVIDED, HOWEVER, that if Mortgagor faithfully performs its obligations
under the terms of the Loan Agreement or otherwise pays in full the indebtedness
secured hereby and performs all the covenants and stipulations hereof, Mortgagee
shall immediately release this Mortgage on the request of and at the cost of
Mortgagor, and this Mortgage shall be null and void.
The covenants herein contained shall bind, and the benefits and
advantages shall inure to, the respective heirs, executors, administrators,
successors, and assigns of the parties hereto, and wherever used, the singular
number shall include the plural, and the use of any gender shall include all
genders.
-6-
IN WITNESS WHEREOF, Mortgagor has executed this Mortgage on the above date.
MORTGAGOR:
AMERICAN WOODMARK CORPORATION
By:
Title:
COMMONWEALTH OF KENTUCKY)
)SS
COUNTY OF )
The foregoing instrument was signed, sworn to and acknowledged before me on
this the __ day of , 200.__, by in his capacity as
of American Woodmark Corporation, a Virginia corporation,
for and on behalf of said corporation.
XXXXXX XXXXXX, XXXXX XX XXXXX, XX
My Commission expires:
-7-
EXHIBIT "A"
Coalfields Lot #105
A Certain Parcel of Land Located in Perry County Kentucky in the Perry,
Xxxxxx, Xxxxxx, Breathitt Regional Industrial Authority Inc. (Coalfields
Industrial Park), Being Lot #105 and More Particularly Described as Follows:
Beginning on an iron pin w/cap set at the intersection of Coalfields
Industrial Boulevard (Adopted County Road) and Woodmark Way (Proposed), said
point has a coordinate value based on the Coalfields Industrial Park Coordinate
System of N: 384132.285, E: 2718524.408; Thence with the West right of way of
Coalfields Industrial Boulevard, 50' from and parallel to the center of said
road S 00?31'19"W 436.78' to an iron pin w/cap set; Thence S 00?09'32" E 318.08
to an iron pin w/cap set; Thence S 00?00'05" E 23.28' to an iron pin w/cap set;
Thence severing the lands of the Grantor (D.B. 271 pg. 425, parcel # 1) xxx Xxxx
1647.75' to an iron pin w/cap, stamped Xxxxxxxxx Xxxxxxxx 2736, found at a
common corner to the Grantor and ANR Coal Co., LLC (D.B. 208 pg. 266, and M.B.
28 pg. 337); Thence with said line N 83?10'53'W 147.78' to an iron pin w/cap set
at the South East corner of the proposed Woodmark Way; Thence with the East
right of way of said road 37.5' from and parallel to the center of said road due
North 732.07' to an iron pin w/cap set; Thence with a curve to the right with an
arc length of 58.90', a radius of 37.5', a chord bearing of N 45?00'00"E, and a
chord length of 53.03' to an iron pin w/cap set; Thence continuing with the
South right of way of said road due East 1760.09' to the Beginning.
Containing 1,395,073.0 Sq. Ft. or 32.0265 Acres as Surveyed by Xxx Xxxxxx
P.L.S #1904 of Xxx Xxxxxx & Assoc. Inc. On 11-23-01.
SOURCE OF TITLE: Being a portion of Parcel No. 1 (surface and mineral
rights) of the property conveyed from Coastal Coal Company, LLC, to Mortgagee by
deed dated September 30, 1998, and recorded in Deed Book 271, page 425 of record
in the Perry County Clerk's Office and that same property conveyed to Mortgagor
by Mortgagee by deed dated 200 , and recorded in Deed
Book , page of record in the Perry County Clerk's Office.
-1-
STATE OF KENTUCKY )
)ss
COUNTY OF PERRY )
I, Haven King, Clerk of Perry County, do hereby certify that the
foregoing Mortgage was on the day of ., 200 , lodged
in my office for record and that it, the foregoing, and this my certificate have
been duly recorded in my said office in Mortgage Book __, page
Witness my hand on this the __ day of ,200
HAVEN KING, CLERK
By:_ D.C.
This instrument was prepared by the law
firm of Xxxxxx, Xxxxxxx & Clemons,
Hazard, Kentucky.
Attorney
-2-
EXHIBIT "D"
GENERAL SPECIFICATIONS FOR THE INDUSTRIAL FACILITY
The Industrial Facility will consist of an approximately 218,000 square foot
masonry and steel framed primary structure with several outbuildings and
appurtenant facilities generally as depicted on the drawing attached hereto.
EXHIBIT "E"
February__,2002
Xx Xxxxxx, Chairman
Perry-Xxxxxx-Xxxxxx-Breathitt
Regional Industrial Authority, Inc.
000 Xxxxx Xxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Re: $450,000.00 Loan from the Perry-Xxxxxx-Xxxxxx-Breathitt
Regional Industrial Authority ("Authority) to American
Woodmark Corporation, in accordance with that certain
Multi-County Local Government Development Fund ("LGEDF") Grant
Dear Chairman Xxxxxx:
We have acted as special Virginia counsel for American Woodmark
Corporation (the "Company"), a Virginia corporation, in connection with the
$450,000.00 loan from the Authority to the Company, in accordance with the terms
and conditions of the LGEDF Grant. In delivering the opinions set forth herein,
we have examined originals (or copies thereof, certified to our satisfaction) of
such organizational documents of the Company and other documents, records,
papers, certificates and public records as we have deemed relevant and necessary
in order to express the opinions set forth herein. In addition, we have relied
on the representations and warranties of the Company contained in the Loan
Documents (as hereinafter defined).
In delivering the opinions set forth herein, we have also reviewed the
following documents and instruments executed by the Company in connection with
the Loan and the Grant, (collectively, the "Loan Documents"):
1. That certain Grant Agreement by and among KEDFA, the Authority
and the Company dated as of ,2002;
2. That certain Loan Agreement between the Company and the
Authority dated , 2002; and
3. That certain Promissory Note executed by the Company dated .,
2002.
-1-
Xx Xxxxxx, Chairman
Perry-Xxxxxx-Xxxxxx-Breathitt
Regional Industrial Authority, Inc.
February, 2002
Page 2
In the course of our examination of the documents, we have assumed the
genuineness of all signatures, other than the signatures of the officials of the
Company, the authenticity of all documents submitted to us as originals, and the
conformity to the original documents of all documents submitted to us as copies.
Based on the foregoing, it is our opinion that:
1. The Company is a validly existing Virginia corporation;
2. The Company has the requisite corporate power to execute and deliver
the Loan Documents, and to observe and perform the provisions of the Loan
Documents;
3. The execution and delivery of the Loan Documents by the Company and the
performance and/or observance thereby of the provisions of the Loan Documents,
does not and will not (i) violate any Virginia law, statute, court, decision,
rule, order or regulation applicable to the Company or (ii) to our knowledge,
constitute a default or a violation under, result in the imposition of any lien
under, or conflict with, or result in any breach of any of the provisions of,
any existing material contract or other material obligation binding upon the
Company and known to us;
4. The officers of the Company who executed the Loan Documents are duly
authorized to execute and deliver the Loan Documents on behalf of the Company,
and the Loan Documents are the legal, valid and binding obligations of the
Company and are enforceable against the Company in accordance with their
respective terms and conditions, (a) except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium, arrangement or other similar laws now or hereafter in effect
relating to or affecting enforcement of creditors' rights generally (including,
without limitation, the effect of statutory or other laws regarding fraudulent
transfers or preferential transfers or distributions), (b) except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law) and the effect of
judicial decisions which have held that certain provisions are unenforceable
where their enforcement would violate the implied covenant of good faith and
fair dealing or would be commercially unreasonable, and (c) except that we
express no opinion as to the legality, validity, binding nature or
enforceability of (i) any provision providing for the payment of fees or the
payment or reimbursement of costs and expenses for claims, losses or liabilities
in excess of a reasonable amount determined by a court or other tribunal, (ii)
any broadly stated waivers, including, without limitation, waivers of
presentment, demand, protest or notice, any waivers that are found by a court to
be against public policy or any waivers that are ineffective pursuant to
statutes and judicial decisions, or (iii) any provision that requires or relates
to the payment of interest at a rate or in an amount, after the maturity or
-2-
Xx Xxxxxx, Chairman
Perry-Xxxxxx-Xxxxxx-Breathitt
Regional Industrial Authority, Inc.
February __, 2002
Page 3
after or upon acceleration of the liabilities evidenced thereby, or after or
during the continuation of any default, unmatured default or other circumstance,
that a court would determine in the circumstances under applicable law to be
commercially unreasonable or a penalty or a forfeiture; and
5. To our knowledge, there is no litigation or proceeding involving the
Company pending or threatened in any Virginia court or administrative agency,
the outcome of which could be reasonably expected to materially and adversely
affect the ability of the Company to meet its obligations under the Loan
Documents.
We are licensed to practice law in the Commonwealth of Virginia and do
not purport to express any opinion concerning the laws of any jurisdiction other
than the Commonwealth of Virginia. To the extent that any of the Loan Documents
are governed by the laws of the State of Kentucky, we have, with your
permission, assumed that such laws conform to the laws of the Commonwealth of
Virginia.
When reference is made in the opinion expressed herein to "knowledge" or
to what is "known to us," or a similar phrase, it means the current actual
knowledge attributable to our representation of the Company in connection with
the Loan Documents of only those partners and associates who have had a
significant involvement with negotiation or preparation of this letter. However,
except as otherwise indicated, we have not undertaken any independent
investigation to determine the accuracy of any factual information of statements
referred to in the preceding paragraph, and no inference that we have any
knowledge of any matters pertaining to such information or statements should be
drawn from our representation of the Company.
No one other than you shall be entitled to rely on the opinions
expressed herein. This opinion is not intended to be used in any transaction
other than the one described above. This opinion is being delivered to you with
the understanding that neither it nor its contents may be published,
communicated or otherwise made available, in whole or in part, to any other
person or entity without, in each instance, our specific prior written consent.
Sincerely yours,
-3-
EXHIBIT 10.10 (j) 2
DEED OF CONVEYANCE
This DEED OF CONVEYANCE, made and entered into this 12th day of March,
2002, by and between PERRY, XXXXXX, XXXXXX, BREATHITT REGIONAL INDUSTRIAL
AUTHORITY, INC., with offices at 000 Xxxxx Xxxx Xxxx, Xxxxxx, Xxxxxxxx 00000,
party of the first part ("Grantor"), and AMERICAN WOODMARK CORPORATION, with
offices at 0000 Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, party of the second
part ("Grantee").
WITNESSETH:
That said Grantor, for and in consideration of the sum of Four Hundred
Fifty Thousand Dollars and No Cents ($450,000.00), as evidenced by a Promissory
Note of even date herewith and forgiveable or otherwise payable in accordance
with the terms thereof and pursuant to a Loan Agreement also of even date
herewith, the receipt and adequacy of which consideration is hereby
acknowledged, has bargained and sold and by these presents does hereby bargain,
sell, grant and convey unto the Grantee, its successors and assigns, all of its
right, title and interest, including both the surface and certain mineral rights
(excluding oil and gas and appurtenant rights hereinafter described) on Xxx Xx.
000 xx xxx Xxxxxxxxxx Xxxxxxxxxx Xxxx on the Hollybush Branch and the Right Fork
of the Rockhouse Fork of Tenmile Creek of Lost Creek of Troublesome Creek and
Xxxxx Xxxxxx Branch of Grapevine Creek of the North Fork of the Kentucky River
in Perry County, Kentucky, and more particularly described and bounded as
follows:
-4-
Metes and Bounds Description
Coalfields Lot # 105
A Certain Parcel of Land Located in Perry County Kentucky in the Perry,
Xxxxxx, Xxxxxx, Breathitt Regional Industrial Authority Inc. (Coalfields
Regional Industrial Park), Being Lot #105 and More Particularly Described as
Follows:
Beginning on an iron pin w/cap set at the intersection of Coalfields
Industrial Boulevard (Adopted County Road) and Woodmark Way (Proposed), said
point has a coordinate value based on the Coalfields Industrial Park Coordinate
System of N: 384132.285, E: 2718524.408; Thence with the West right of way of
Coalfields Industrial Boulevard, 50' from and parallel to the center of said
road S 00(degree)31'19"W 436.78' to an iron pin w/cap set; Thence S
00(degree)09'32" E 318.08 to an iron pin w/cap set; Thence S 00(degree)00'05" E
23.28' to an iron pin w/cap set; Thence severing the lands of the Grantor (D.B.
271 pg. 425, parcel # 1) xxx Xxxx 1647.75' to an iron pin w/cap, stamped
Xxxxxxxxx Xxxxxxxx 2736, found at a common corner to the Grantor and ANR Coal
Co., LLC (D.B. 208 pg. 266, and M.B. 28 pg. 337); Thence with said line N
83(degree)10'53"W 147.78' to an iron pin w/cap set at the South East corner of
the proposed Woodmark Way; Thence with the East right of way of said road 37.5'
from and parallel to the center of said road due North 732.07' to an iron pin
w/cap set; Thence with a curve to the right with an arc length of 58.90', a
radius of 37.5', a chord bearing of N 45(degree)00'00"E, and a chord length of
53.03' to an iron pin w/cap set; Thence continuing with the South right of way
of said road due East 1760.09' to the Beginning.
Containing 1,395,073.0 Sq. Ft. or 32.0265 Acres as Surveyed by Xxx Xxxxxx
P.L.S #1904 of Xxx Xxxxxx & Assoc. Inc. On 11-23-01.
SOURCE OF TITLE: Being a portion of Parcel No. 1 (surface and mineral
rights) of the property conveyed from COASTAL COAL COMPANY, LLC, to Grantor by
deed dated September 30, 1998, and recorded in Deed Book 271, page 425 of record
in the Perry County Clerk's Office.
EXCEPTION NO. 1
This conveyance is subject to those certain rights of access to future
utility services and to those reservations of easement or access rights in favor
of Coastal Coal Company, LLC and Mountain Properties, Inc., and the lessees,
licensees, successors and assigns of each, for ingress and egress to that
property denoted as Coastal Coal Company LLC's tract #'s PE-239 and PE-
-5-
241 which are contained in Deed Book 271, page 425 and Deed Book 271, page
419 in the Perry County Clerk's Office.
EXCEPTION NO. 2
This conveyance is expressly made subject to those rights and
privileges reserved and excepted for development of certain oil and gas reserves
by Coastal Coal Company, LLC in the Deed of Conveyance dated September 30, 1998
recorded at Deed Book 271, page 425 in the Perry County Clerk's Office,
including (i) those rights granted to Kentucky West Virginia Gas Company by
Virginia, Iron, Coal & Coke Company by deed dated April 17, 1939, and of record
at Deed Book 72, page 311, records of the Perry County Clerk's Office; and (ii)
those rights and privileges granted to the Hazard-Perry County Airport Board by
VICC Land Company and Kentucky-West Virginia Gas Company by deed dated April 29,
1980, and of record at Deed Book 182, page 644, records of the Perry County
Clerk's Office.
EXCEPTION NO. 3
This conveyance is made subject to a continuing right of entry under
mining permits issued pursuant to state and federal law and certain residual
leasehold rights with respect to reclamation obligations under certain mining
permits issued under state and federal law that survived the expiration or
termination of the Indian Head Mining, Inc. and River Coal Company, Inc.
Consolidated and Amended Lease Agreement dated November 11, 1977, which was
assigned to Pro-Land, Inc. on January 25, 1983, and such rights as pertain to
the use of the lease area for ingress and egress pursuant to that certain
Surface Lease dated May 1, 1987 between Apache Mining Company d/b/a Enterprise
Coal Company and Pro-Land, Inc., as the same may have been modified by
unrecorded Agreement dated September 30, 1998 among Grantor, Coastal Coal
Company, LLC, Pro-Land, Inc. d/b/a Xxxx Coal Company and Xxxxxx Resources, Inc.
-6-
EXCEPTION NO. 4
Ingress and egress to and from the properties is subject to those rights
of access and for utility easements granted by Enterprise Coal Company the Perry
County Fiscal Court by Deed of Conveyance dated October 11, 1993 recorded at
Deed Book 243, page 719 and Deed of Correction dated September 21, 1994 recorded
at Deed Book 252, page 201, and by Coastal Coal Company, LLC to the Perry County
Fiscal Court by Right of Way Deed dated December 22, 1998 recorded at Deed Book
272, page 676, and by the Grantor to the Perry County Fiscal Court by Right of
Way Deed dated January 15, 2002 recorded at Deed Book 291, page 229, all of
record in the Perry County Clerk's Office.
EXCEPTION NO. 5
This conveyance is made subject to the terms of those certain
Declarations of Covenants, Conditions and Restrictions between Grantor and the
Kentucky Economic Development Finance Authority dated October 7, 1998 recorded
at Deed Book 271, page 439 in the Perry County Clerk's Office.
EXCEPTION NO. 6
There is hereby excepted all existing conditions, covenants, easements,
exceptions, reservations, restrictions and rights-of-way of whatever nature, if
any, whether or not of record in the Perry County Clerk's Office or otherwise,
and to any state of facts that an accurate survey may reveal, and the conveyance
is expressly subject to all city, county, municipal and state zoning laws and
other ordinances, regulations, and restrictions, including statutes and other
laws of municipal, county or other governmental authorities applicable to, and
enforceable against, the property described herein.
MISCELLANEOUS PROVISIONS
1. All real estate and/or ad valorem taxes, if any, assessed against the
land herein conveyed for the current tax year assessed as of January 1, 2002
shall be prorated between Grantor and Grantee.
-7-
TO HAVE AND TO HOLD the same, together with the appurtenances thereunto
belonging unto the Grantee, its successors and assigns forever, with covenants
of General Warranty.
IN TESTIMONY WHEREOF, witness the signatures of the Grantor on this the
day and year first above written.
GRANTOR:
PERRY, XXXXXX, XXXXXX, BREATHITT
REGIONAL INDUSTRIAL AUTHORITY, INC.
By: Xx Xxxxxx, Chairman
CERTIFICATE OF PARTIES
We, PERRY, XXXXXX, XXXXXX, BREATHITT REGIONAL INDUSTRIAL AUTHORITY, INC.,
by its duly authorized Chairman, Xx Xxxxxx, Grantor, and AMERICAN WOODMARK
CORPORATION, by its duly authorized officer, Xxxx Xxxxxx, Grantee, do hereby
swear and/or affirm, pursuant to KRS Chapter 382, that the fair market value of
the above stated property is Four Hundred Fifty Thousand Dollars and No
Cents($450,000.00).
GRANTOR:
PERRY, XXXXXX, XXXXXX, BREATHITT
REGIONAL INDUSTRIAL AUTHORITY, INC.
By: Xx Xxxxxx, Chairman
GRANTEE:
AMERICAN WOODMARK CORPORATION
By: Xxxxx Xxxxxx
Its: Sr. Vice President
-8-
STATE OF KENTUCKY )
)ss
COUNTY OF Perry )
I hereby certify that the foregoing Deed and Certificate of the Parties
was duly subscribed, sworn to and acknowledged before me by Xx Xxxxxx as
Chairman of the PERRY, XXXXXX, XXXXXX, BREATHITT REGIONAL INDUSTRIAL AUTHORITY,
INC., on 00xx.xxx of February. 2002.
Notary Public
My commission expires 11/25/02.
STATE OF Virginia )
CITY OF Winchester )
I hereby certify that the foregoing Certificate of the Parties was duly
subscribed, sworn to and acknowledged before me by Xxxxx X Xxxxxx of AMERICAN
WOODMARK CORPORATION, on this 1/st/ day of March, 2002.
Xxxxxx Xxxxxx
Notary Public'
My commission expires
Xxxxxx Xxxxxx
Notary Public, State of Virginia
My Commission Expires December 31, 0000
-0-
XXXXX XX XXXXXXXX )
)SS
COUNTY OF PERRY )
I, Haven King, Clerk of Perry County, do hereby certify that the
foregoing Deed of Conveyance was on the 12th day of March,2002, lodged in my
office for record and that it, the foregoing, and this my certificate have been
duly recorded in my said office in Deed Book 292, page 127.
Witness my hand on this the 12th day of March,2002.
HAVEN KING, CLERK
By: Xxxxxxx Xxx Xxxxxx D.C.
This instrument prepared by the law
firm of Xxxxxx, Xxxxxxx & Clemons,
Hazard, Kentucky.
Xxxx X. Xxxxxxx
Attorney
-10-
EXHIBIT 10.10 (j) 3
MORTGAGE
THIS MORTGAGE is executed by the hereinafter named Mortgagor this 12th
day of March,2002, by and among
AMERICAN WOODMARK CORPORATION
A Virginia corporation
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx, 00000
("Mortgagor")
and
PERRY, XXXXXX, XXXXXX, BREATHITT
REGIONAL INDUSTRIAL AUTHORITY, INC.,
A Kentucky non-profit corporation
000 Xxxxx Xxxx Xxxx
Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxx, 00000
("Mortgagee")
For the purpose of securing the payment of the indebtedness herein
mentioned and securing the fulfillment of all the covenants and conditions
hereinafter contained, Mortgagor hereby conveys in FEE SIMPLE to Mortgagee with
covenant of GENERAL WARRANTY the Property located in Perry County, Kentucky,
more particularly described on Exhibit "A" attached hereto and made a part
hereof,
TOGETHER with the buildings and improvements erected thereon, or
hereafter erected thereon, and the rights, privileges and appurtenances thereto
belonging or in any way appertaining, and all goods and other tangible personal
property, moveable or immoveable, which are or are to become fixtures,
including, but not limited to, all heating, plumbing, air conditioning and
lighting fixtures and appliances now or hereafter on or affixed to the property,
whether now owned or hereafter acquired by Mortgagor; and
TOGETHER with all materials intended for construction, re-construction,
alteration and repair of such buildings and improvements now or hereafter
erected thereon, all of which materials shall be deemed to be included within
said buildings and improvements immediately upon the delivery thereof to the
Property, and
TOGETHER with all accounts, contracts, permits, licenses, waivers, or
consents now or hereafter dealing with, affecting or concerning the Property,
including, without limitation, all rights accruing to Mortgagor from any and all
contracts with ail contractors, architects, engineers or subcontractors relating
to the construction or renovation of improvements on or upon the Property,
including performance and/or materialmen's bonds; and
TOGETHER with all rights of Mortgagor in and to any and all contracts
with utility companies, whether now existing or hereafter entered into, for the
providing of service to the Property, including all fees or refunds; and
-11-
TOGETHER with all licenses, permits and/or operating permits issued in
favor of, for the account of, or granted to Mortgagor by any division or
department of the Commonwealth of Kentucky, or by any other government or quasi
governmental authority having the power and authority to issue any such permits
and licenses in connection with the Property, whether now existing or hereafter
acquired by Mortgagor; and
TOGETHER with all insurance awards and proceeds arising out of damage to
said Property, and all awards and other compensation heretofore or hereafter to
be made to Mortgagor for any taking by eminent domain, either permanent or
temporary, of all or any part of said Property or buildings or improvements or
any interest therein, or easement or appurtenance thereof, including severance
and consequential damage and change in grade of streets, which said awards and
compensation are hereby assigned to Mortgagee, and
TOGETHER with all of Mortgagor's rights, title and interest in any and
all leases, tenant contracts, rental agreements, management contracts, operating
agreements, and any and all rents, deposits and accounts receivable which are
now due or may hereafter become due by reason of the renting and/or leasing of
the Property and the improvements thereon, whether such renting and/or leasing
is with respect to periods prior to or after this date; and
TOGETHER with all rights, privileges, rights of way, easements and
appurtenances in any way associated with the Property;
whether now owned or hereafter acquired by Mortgagor; and all cash and non-cash
proceeds of all of the above, and all renewals or replacements thereof or
articles in substitution therefor, and all general intangibles (including choses
in action) which may relate to any of the foregoing or to the Property
generally, and this Mortgage is hereby deemed to be as well a security agreement
pursuant to Article 9 of KRS Chapter 355 for the purpose of creating a security
interest in any personal property securing the indebtedness and the Mortgagee is
authorized to perfect the same by electronic or other filing as maybe allowed by
law;
TO HAVE AND TO HOLD the same unto Mortgagee, its successors and assigns
forever.
Mortgagor is justly indebted to Mortgagee for borrowed money in the
principal sum of FOUR HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($450,000.00),
evidenced by a promissory note (the "Note") of even date herewith, with interest
thereon as provided therein, executed and delivered by Mortgagor to the order of
Mortgagee, with principal and interest payable as stated therein, and with other
provisions and obligations, all of which are incorporated herein by reference.
The Note bears a final maturity date of December 31, 2004.
This Mortgage is delivered pursuant to a loan agreement (the "Loan
Agreement") of even date herewith by and among the Mortgagor and the Mortgagee
which requires Mortgagor to construct an Industrial Facility on certain Property
known as Xxx # 000 xx xxx Xxxxxxxxxx Xxxxxxxxxx Xxxx in Perry County, Kentucky.
Any terms defined in the Loan Agreement and not otherwise defined herein shall
have the same meaning herein as in the Loan Agreement.
-12-
Mortgagor covenants lawful seisin of the Property, full right and power
to mortgage and convey the same, and that the same is free from all liens and
encumbrances except (i) this first mortgage in favor of the Authority; (ii)
restrictions and stipulations of record as to use, improvement and occupancy of
the Property; (iii) governmental laws and regulations affecting the Property;
and, (iv) liens for real property taxes and assessments not yet due and payable.
Mortgagor further covenants that it has good and marketable title to the same
and that this Mortgage is and shall be a valid first lien against the Property.
Mortgagor, in order to more fully protect the security of this Mortgage,
covenants and agrees as follows:
1. To pay the Note and interest thereon when due.
2. To pay, when due, all taxes and assessments of every type and nature
levied or assessed against the Property or any interest therein or any part
thereof, and any claim, lien or encumbrance against the Property which may be or
become prior to the lien of this Mortgage, and if requested by Mortgagee, to
deliver or exhibit receipts therefor to Mortgagee at least fifteen (15) days
before the same shall become delinquent.
3. To keep the improvements now existing or hereafter erected on the
Property insured according to the terms and conditions of the Loan Agreement. In
the event of loss, Mortgagor shall give immediate notice by certified mail,
return receipt requested, to Mortgagee, and Mortgagee may make proof of loss if
not made promptly by Mortgagor; and the insurance proceeds, or any part thereof,
shall be applied to the Mortgagee or the Mortgagor as provided in the Loan
Agreement. In the event of foreclosure of this Mortgage, or other transfer of
title to the Property in extinguishment of the debt secured hereby, all right,
title and interest of Mortgagor in and to any insurance policies then in force
shall pass to the purchaser or grantee.
4. Mortgagor represents and warrants that no Hazardous Materials exist
on, under or about the Property or, to the best of Mortgagor's knowledge after
diligent inquiry, have been transported to or from the Property or used,
generated, manufactured, stored or disposed of on, under or about the Property,
except in full compliance with any applicable laws, and the Property is not in
violation of any federal, state or local law, ordinance or regulation relating
to industrial hygiene or the environmental conditions on, under or about the
Property, including, without limitation, soil and groundwater conditions, as
more particularly set forth in the Loan Agreement, the terms of which are
incorporated herein by reference.
5. That Mortgagor: (a) will maintain the Property in good condition and
repair; Co) will not commit or suffer waste thereof; (c) will comply with all
laws, ordinances, regulations, covenants, conditions and restrictions affecting
the Property, and will not suffer or permit any violation thereof; and (d) will
not remove, demolish or alter the design or structural character of any building
now or hereafter erected on the Property unless Mortgagee shall first consent
thereto in writing.
6. If Mortgagor falls to maintain the insurance provided for herein or
to keep the policy or policies therefor deposited with Mortgagee, or to pay the
cost thereof, or to pay taxes and assessments, or to promptly make repairs and
replacements, then Mortgagee may, at its option, procure and pay for such
insurance, pay such taxes or assessments, or cause such repairs or replacements
to be effected, and the money so advanced by Mortgagee, with interest thereon at
-13-
the maximum legal rate of interest, payable monthly, shall be paid by Mortgagor
to Mortgagee on demand, and such advances shall be secured by this Mortgage and
the lien therefor shall be deemed equal in dignity to the lien securing the
other indebtedness hereby secured.
7. If Mortgagor fails: (a) to construct the Industrial Facility as
provided in the Loan Agreement or to pay the principal or interest, if any,
provided for in the Note when the same shall be due, thereby constituting an
Event of Default under the Loan Agreement; or (b) to pay taxes or assessments
when due; or (c) to keep the improvements now existing or hereafter erected on
the Property insured against loss or damage as provided herein or to pay the
premiums for such insurance when they become due; or (d) to keep the Property in
good condition and repair; or (e) to keep or perform any covenant or stipulation
of this Mortgage; or (If) if proceedings are instituted involving title to the
Property or any part thereof, including the foreclosure of any mortgage or any
other lien against the Property; or (g) if Mortgagor is adjudged bankrupt in
either voluntary or involuntary proceedings; then in any of such case, Mortgagee
may declare the whole indebtedness secured hereby to be at once due and payable,
and forthwith proceed to collect the same and to enforce this Mortgage by suit
or otherwise; and in any of such cases Mortgagee may enter on the Property,
collect the rents, issues and profits therefrom, and after paying all expenses
of such conditions, and a reasonable compensation for itself, apply the money
collected to the satisfaction of the indebtedness hereby secured. In any of such
events of default herein mentioned, Mortgagee may, at its option, apply to any
court of competent jurisdiction for the appointment of a receiver of the
Property to manage the same and to collect the rents, issues and profits
therefrom, and after deducting the costs and expenses of such receivership and a
reasonable compensation for the receiver's services, apply the remainder of such
rent, issues and profits so received to the satisfaction of the indebtedness
hereby secured. It is further agreed that the grounds for the appointment of a
receiver herein set out shall be in addition to and not in limitation of the
statutory remedy of receivership and may be invoked either in aid of or without
proceeding for the foreclosure and sale of the Property. Mortgagor agrees to pay
for the foreclosure and sale of the Property. Mortgagor agrees to pay to
Mortgagee reasonable attorney fees incurred by Mortgagee in the event of a
default hereunder to the extent such fees are actually paid or agreed to be paid
by Mortgagee, except such fees as are paid by Mortgagee to a salaried employee
of Mortgagee. This Mortgage shall secure payment to Mortgagee by Mortgagor of
such fees.
8. No delay by Mortgagee in the exercise of any of its rights or
remedies hereunder, or otherwise afforded by law, shall operate as a waiver
thereof, or preclude the exercise thereof during the continuance of any default
hereunder. An express waiver of any obligation of Mortgagor shall not at any
time thereafter be held to be a waiver of any of the terms or conditions of this
Mortgage except as specified in the express waiver, and that only for the time
and to the extent stated in the express waiver.
9. With respect to all or any part of the Property, or any legal or
equitable interest therein, the Mortgagor, or any successor in interest to the
Mortgagor, shall not (i) sell, (ii) convey, (iii) transfer, (iv) lease for more
than one year, except as specifically permitted in the Loan Agreement, (v) lease
with option to purchase, or (vi) enter into a contract for deed or bond for deed
(all of the foregoing being hereinafter referred to as "Transfer" or
"Transferred") without the prior written consent of Mortgagee. Such consent may
be conditioned on such modifications of this Mortgage and the indebtedness which
it secures as Mortgagee may deem necessary at the time of such consent,
-14-
including, without limitation, changing the interest rate applicable to said
loan for the remaining term of the loan, and the proposed purchaser or
transferee of the Property meeting the then existing standards of credit and
financial responsibility required of Mortgagor by Mortgagee. If the Property is
Transferred with written consent of Mortgagee, the purchaser or transferee shall
assume the balance then owing on the indebtedness and all of the obligations
relating thereto (including any modifications that may be conditions for
Mortgagee's consent to the Transfer) and shall pay to Mortgagee such transfer
fee as is required by Mortgagee at the time of the Transfer. The Mortgagee may
declare the entire debt secured hereby immediately due and payable and enforce
this Mortgage, without notice to Mortgagor, in the event the Property is
Transferred without the written consent of Mortgagee or the purchaser declines
to assume the indebtedness secured by this Mortgage as herein provided. If title
to the Property or any part thereof or any interest therein is Transferred with
or without Mortgagee's written consent, such Transfer shall not operate to
release, discharge, modify, change or affect the original liability of Mortgagor
or any subsequent persons who become obligated by reason of the assumption of
the debt secured, either in whole or in part.
10. Without affecting the liability of Mortgagor or any subsequent
persons who may become obligated (except any person expressly released in
writing) to pay any indebtedness secured hereby or to perform any obligation
contained herein, and without affecting the rights of Mortgagee with respect to
any security not expressly released in writing, Mortgagee may, at the time and
from time to time, either before or after the maturity of the Note, and without
notice or consent: (i) release any person liable for payment of all or any part
of the indebtedness or for performance of any obligations; (ii) make any
agreement extending the time or otherwise altering the terms of payment of all
or any part of the indebtedness, or modifying or waiving any obligation, or
subordinating, modifying or otherwise dealing with the lien or charge thereof;
(iii) exercise or refrain from exercising or waive any right Mortgagee may have;
(iv) accept additional security of any kind; and (v) release or otherwise deal
with any property, real or personal, securing the indebtedness, including all or
any part of the Property mortgaged hereby.
11. As further security for payment of the indebtedness and performance
of the obligations, covenants and agreements secured hereby, Mortgagor hereby
transfers, sets over and assigns to Mortgagee all judgments, awards of damages
and settlements hereafter made as a result of or in lieu of any taking of the
Property or any part thereof under the power of eminent domain, or for any
damage (whether caused by such taking or otherwise) to the Property or the
improvements thereon or any part thereof, including any award for change of
grade of streets. Mortgagee may apply all such sums or any part thereof so
received on the indebtedness secured hereby in such manner as it elects or, at
its option, the entire amount or any part thereof so received may be released.
12. In the event of the enactment of or change in (including, without
limitation, a change in interpretation of) any applicable law subjecting
Mortgagee to any tax or changing the basis of taxation of mortgages, Deeds of
Trust, or other liens or debts secured thereby, or the manner of collection of
such taxes, in each such case, so as to affect this Mortgage, the indebtedness
evidenced by the Note or Mortgage, and the result is to increase the taxes
imposed upon or the cost to Mortgagee of maintaining the indebtedness, or to
reduce the amount of any payments receivable hereunder, then, and any such
event, Mortgagor shall, on demand, pay to Mortgagee additional amounts to
compensate for such increased costs or reduced amounts, provided that if any
-15-
such payment or reimbursement shall be unlawful or would constitute usury or
render the indebtedness wholly or partially usurious under applicable law, then
Mortgagee may, at its option, declare the indebtedness immediately due and
payable or require Mortgagor to pay or reimburse Mortgagee for payment of the
lawful and non-usurious portion thereof.
13. Mortgagor shall assign to Mortgagee any and all present and/or
future leases of all or any part of the Property should Mortgagee, at its sole
option, request such assignment or assignments.
14. Mortgagor agrees that no additional mortgage, lien or equity
position other than those set forth hereinabove shall be placed or allowed to
exist on the Property without the prior written approval of Mortgagee, which
approval shall not be unreasonably withheld.
15. This Mortgage is made to secure a loan for the purpose of erecting
or adding to a building and otherwise improving real property.
16. Anything in this Mortgage to the contrary notwithstanding, it is
understood and agreed by the parties hereto that this loan is made pursuant to
the terms of the Loan Agreement, the terms of which are hereby incorporated by
reference. Any Event of Default under the terms of the Loan Agreement shall
constitute a default under this Mortgage and shall entitle Mortgagee to all the
rights and remedies set forth herein. If a conflict should arise between the
provisions of this Mortgage and the provisions of the Loan Agreement, the Loan
Agreement shall prevail.
17. Any agreement hereafter made by Mortgagor and Mortgagee pursuant to
this Mortgage shall be superior to the rights of the holder of any intervening
lien or encumbrance.
18. This Mortgage shall secure all renewal notes executed in lien of
the Note and also any extensions of the Note.
PROVIDED, HOWEVER, that if Mortgagor faithfully performs its obligations
under the terms of the Loan Agreement or otherwise pays in full the indebtedness
secured hereby and performs all the covenants and stipulations hereof, Mortgagee
shall immediately release this Mortgage on the request of and at the cost of
Mortgagor, and this Mortgage shall be null and void.
The covenants herein contained shall bind, and the benefits and
advantages shall inure to, the respective heirs, executors, administrators,
successors, and assigns of the parties hereto, and wherever used, the singular
number shall include the plural, and the use of any gender shall include all
genders.
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IN WITNESS WHEREOF, Mortgagor has executed this Mortgage on the above date.
MORTGAGOR:
AMERICAN WOODMARK CORPORATION
By: Xxxxx X. Xxxxxx
Title: Sr. Vice. President
COMMONWEALTH OF Virginia)
)SS
CITY OF Winchester )
The foregoing instrument was signed, sworn to and acknowledged before me
on this the 1st day of March, 2002, by Xxxxx X. Xxxxxx in his capacity as Senior
Vice President, Manufacturing of American Woodmark Corporation, a Virginia
corporation, for and on behalf of said corporation.
NOTARY PUBLIC, STATE AT LARGE
My Commission expires:
-00-
XXXXXXX "X"
Xxxxxxxxxx Lot #105
A Certain Parcel of Land Located in Perry County Kentucky in the Perry,
Xxxxxx, Xxxxxx, Breathitt Regional Industrial Authority Inc. (Coalfields
Industrial Park), Being Lot #105 and More Particularly Described as Follows:
Beginning on an iron pin w/cap set at the intersection of Coalfields
Industrial Boulevard (Adopted County Road) and Woodmark Way (Proposed), said
point has a coordinate value based on the Coalfields Industrial Park Coordinate
System of N: 384132.285, E: 2718524.408; Thence with the West right of way of
Coalfields Industrial Boulevard, 50' from and parallel to the center of said
road S 00?31'19"W 436.78' to an iron pin w/cap set; Thence S 00?09'32" E 318.08
to an iron pin w/cap set; Thence S 00?00'05" E 23.28' to an iron pin w/cap set;
Thence severing the lands of the Grantor (D.B. 271 pg. 425, parcel # 1) xxx Xxxx
1647.75' to an iron pin w/cap, stamped Xxxxxxxxx Xxxxxxxx 2736, found at a
common corner to the Grantor and ANR Coal Co., LLC (D.B. 208 pg. 266, and M.B.
28 pg. 337); Thence with said line N 83?10'53'W 147.78' to an iron pin w/cap set
at the South East corner of the proposed Woodmark Way; Thence with the East
right of way of said road 37.5' from and parallel to the center of said road due
North 732.07' to an iron pin w/cap set; Thence with a curve to the right with an
arc length of 58.90', a radius of 37.5', a chord bearing of N 45?00'00"E, and a
chord length of 53.03' to an iron pin w/cap set; Thence continuing with the
South right of way of said road due East 1760.09' to the Beginning.
Containing 1,395,073.0 Sq. Ft. or 32.0265 Acres as Surveyed by Xxx Xxxxxx
P.L.S #1904 of Xxx Xxxxxx & Assoc. Inc. On 11-23-01.
SOURCE OF TITLE: Being a portion of Parcel No. 1 (surface and mineral
rights) of the property conveyed from Coastal Coal Company, LLC, to Mortgagee by
deed dated September 30, 1998, and recorded in Deed Book 271, page 425 of record
in the Perry County Clerk's Office and that same property conveyed to Mortgagor
by Mortgagee by deed dated March 12, 2002, and recorded in Deed Book 292, page
127 of record in the Perry County Clerk's Office.
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STATE OF KENTUCKY )
)ss
COUNTY OF PERRY )
I, Haven King, Clerk of Perry County, do hereby certify that the
foregoing Mortgage was on the 12th day of March, 2002, lodged in my office for
record and that it, the foregoing, and this my certificate have been duly
recorded in my said office in Mortgage Book 183, page 162.
Witness my hand on this the 12th day of March,2002.
HAVEN KING, CLERK
By: D.C.
This instrument was prepared by the law
firm of Xxxxxx, Xxxxxxx & Clemons,
Hazard, Kentucky.
Attorney
-19-
EXHIBIT 10.10 (j) 4
ASSIGNMENT
This assignment is entered into this 1st day of March, 2002 by and
between PERRY, XXXXXX, XXXXXX, BREATHITT REGIONAL INDUSTRIAL AUTHORITY, INC.,
("AUTHORITY") a Kentucky non-profit corporation, with address at 000 Xxxxx Xxxx
Xxxx, Xxxxxx, Xxxxxxxx 00000 and AMERICAN WOODMARK CORPORATION ("COMPANY") a
Virginia corporation, with an address of 0000 Xxxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000.
WITNESSETH:
WHEREAS, the Authority, the Company, and the Kentucky Economic
Development Finance Authority ("KEDFA") have entered into an agreement, by and
through the Grant Agreement, Loan Documents and Supporting Documents, setting
forth the rights, responsibilities and obligations of the parties thereto
relating to the acquisition of property and the construction of a facility for
the location of an cabinet manufacturing facility on property located in the
Coalfields Regional Industrial Park and more particularly described on Exhibit
"A" attached herewith ("Property"); and
WHEREAS, it is the intention of the parties that the Company shall
acquire the Property and construct a facility to attract and locate an cabinet
manufacturing facility firm which shall create and provide opportunities for
full-time employment for the residents of the region; and
WHEREAS, on October 24, 2001, KEDFA approved a Local Government Economic
Development Fund ("LGEDF") grant to the Authority totaling $8,000,000.00, a
portion of which was to be utilized for eligible costs related to the location
of the Company to the Coalfields Regional Industrial Park; and
WHEREAS, pursuant to the agreement between the Authority and the Company
the purchase price of the property is for $450,000.00; and
WHEREAS, it is the intention of the parties that $450,000.00 of the
funding provided by the LGEDF grant to the Authority be provided by the
Authority to the Company for purchase of the property; and
WHEREAS, it is the parties' desire to enter into this assignment to allow
the Company to assign it's right, title and interest to Authority without the
requirement of the payment of the $450,000.00 to the Company by Authority and
then the return to the Authority of the same amount of funds by the Company for
the purchase of the property;
NOW THEREFORE, in consideration of the foregoing, the parties hereto
agree as follows:
1. The Authority and the Company, by virtue of this assignment
agreement, agree that $450,000.00 of the LGEDF grant awarded to the Authority
shall and is hereby assigned by the Authority to the Company for purchase of the
property located at the Coalfields Regional Industrial Park to be utilized for
the development of a cabinet manufacturing facility.
2. The Authority and the Company further agree that simultaneously the
funds assigned by the Authority to the Company in Paragraph 1 above are assigned
back to the Authority from the Company to be applied towards the purchase of the
property in the Coalfields Regional Industrial Park to fulfill
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the requirements of the agreement executed between the parties for purchase of
the property in the amount of $450,000.00.
IN WITNESS HEREOF, the Parties have each caused this Assignment agreement
to be executed by their duly authorized officers and delivered as of the date
first above written.
PERRY, XXXXXX, XXXXXX, BREATHITT
REGIONAL INDUSTRIAL AUTHORITY, INC.,
a Kentucky Regional Industrial Authority, non-Profit Corporation
By: Xx Xxxxxx Date: 2/13/02
Xx Xxxxxx, Chairman
AMERICAN WOODMARK CORPORATION,
a Virginia corporation
Date: Xxxxx X. Xxxxxx Date: 3/1/02
Xxxxx X. Xxxxxx
Xx. Vice President
-21-
EXHIBIT 10.10 (j) 5
NON-INTEREST BEARING PROMISSORY NOTE
$450,000.00 March 1,2002
Hazard, Kentucky
FOR VALUE RECEIVED, AMERICAN WOODMARK CORPORATION, a Virginia
corporation, 0000 Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx, 00000 ("Borrower"),
promises to pay to the order of PERRY, XXXXXX, XXXXXX, BREATHITT REGIONAL
INDUSTRIAL AUTHORITY, INC. at its principal office at 000 Xxxxx Xxxx Xxxx,
Xxxxxx, Xxxxxxxx, 00000 (the "Authority"), the principal sum of FOUR HUNDRED
FIFTY THOUSAND AND NO/100 DOLLARS ($450,000.00) and, in the case of an Event of
Default, with interest as hereinafter provided until the entire principal
balance of and all accrued interest on this Note has been paid in full.
This Note shall be forgiveable so long as the Borrower shall faithfully
perform its obligations pursuant to a loan agreement (the "Loan Agreement") of
even date herewith by and among the Authority and the Borrower which requires
Borrower to construct an Industrial Facility on certain Property known as Xxx #
000 xx xxx Xxxxxxxxxx Xxxxxxxxxx Xxxx in Perry County, Kentucky. Any terms
defined in the Loan Agreement and not otherwise defined herein shall have the
same meaning herein as in the Loan Agreement. Upon the Borrower's completion of
the Industrial Facility and its receipt and tender to the Authority of a bona
fide Certificate of Occupancy from each governmental authority having
jurisdiction thereof, the Loan shall be deemed satisfied and paid in full.
However, unless earlier paid in full or otherwise satisfied through Borrower's
performance, and provided the same has not been previously accelerated by the
Authority due to default by the Borrower, this Note shall become due and
payable, together with all accrued interest, if any, at the offices of the
Authority in Hazard, Kentucky on December 31, 2004.
The Authority and the Borrower acknowledge that this Loan is intended to
be a NONINTEREST BEARING NOTE so long as the Borrower shall faithfully comply
with its obligations hereunder and under the Loan Agreement. Upon the occurrence
of any Event of Default by the Borrower, interest shall commence to accrue at
the annual rate of TWO PERCENT (2.00%) on the principal amount of the Loan from
the time of said Event of Default until the Loan has been finally collected or
has been fully repaid.
The occurrence of an "Event of Default" (as defined in the Loan
Agreement) shall constitute a default under this Note. Upon any Event of
Default, the principal of this Note shall commence to accrue interest at the
annual rate of TWO PERCENT (2.00%). The holder of this Note may also, at its
option, declare the entire unpaid balance of, and all accrued interest on, this
Note to be immediately due and payable.
This Note is secured by a mortgage ("Mortgage") on certain Property more
particularly described therein. The holder of this Note is entitled to the
rights and security in such Mortgage, more fully described therein and in the
Loan Agreement. The holder hereof assents to the provisions of the Loan
Agreement.
Failure of the holder of this Note to exercise any of its rights and
remedies shall not constitute a waiver of any provision of this Note or of the
Loan Agreement, or of any of such holder's fights and remedies, nor shall it
-22-
prevent the holder from exercising any rights or remedies with respect to the
subsequent happening of the same or similar occurrences. All remedies of the
holder hereof shall be cumulative to the greatest extent permitted by law. Time
shall be of the essence in the payment of all payments of interest and principal
on this Note.
If there is any default under this Note, and this Note is placed in the
hands of an attorney for collection, or is collected through any court,
including any bankruptcy court, the Borrower promises to pay to the order of the
holder hereof such holder's reasonable attorney's fees and court costs incurred
in collecting or attempting to collect or securing or attempting to secure this
Note or enforcing the holder's rights with respect to any collateral securing
this Note, to the extent allowed by the laws of the Commonwealth of Kentucky, or
any state in which any collateral for this Note is situated and to the extent
such fees and costs are actually paid or agreed to be paid by the holder of this
Note, except such fees as are paid to a salaried employee of the holder of this
Note.
This Note has been delivered in, and shall be governed by and construed
in accordance with, the laws of the Commonwealth of Kentucky.
Except as provided herein, the Borrower of this Note waives presentment,
demand, notice of dishonor, protest, notice of protest, notice of nonpayment or
nonacceptance and any other notice and all due diligence or promptness that may
otherwise be required by law, and all exemptions to which the Borrower now or
hereafter may be entitled under the laws of the Commonwealth of Kentucky, or of
the United States of America or any state thereof. The holder of this Note may,
with or without notice to any party, and without affecting the obligations of
any maker, surety, guarantor, endorser, accommodation party or any other party
to this Note, and without limitation, (1) extend the time for payment of either
principal or interest from time to time, (2) release or discharge any one or
more parties liable on this Note, (3) suspend the right to enforce this Note
with respect to any persons, (4) change, exchange or release any property in
which the Authority has any interest securing this Note, and (5) suspend the
right to enforce against any such collateral.
IN WITNESS WHEREOF, the Borrower has executed this Note on the day and
year first above written.
BORROWER:
AMERICAN WOODMARK CORPORATION
By: Xxxxx X. Xxxxxx
Title: Sr. Vice President
-23-
EXHIBIT 10.10 (j) 6
McGuireWoods LLP
One Xxxxx Center
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Phone: 000.000.0000
Fax: 000.000.0000
www. xxxxxxxxxxxx.xxx
March 6, 2002
Xx Xxxxxx, Chairman
Perry-Xxxxxx-Xxxxxx-Breathitt
Regional Industrial Authority, Inc.
000 Xxxxx Xxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Re: $450,000.00 Loan from the Perry-Xxxxxx-Xxxxxx-Breathitt Regional Industrial
Authority ("Authority") to American Woodmark Corporation, in accordance with
that certain Multi-County Local Government Development Fund ("LGEDF") Grant
Dear Chairman Xxxxxx:
We have acted as special Virginia counsel for American Woodmark
Corporation (the "Company"), a Virginia corporation, in connection with the
$450,000.00 loan from the Authority to the Company, in accordance with the terms
and conditions of the LGEDF Grant. In delivering the opinions set forth herein,
we have examined originals (or copies thereof, certified to our satisfaction) of
such organizational documents of the Company and other documents, records,
papers, certificates and public records as we have deemed relevant and necessary
in order to express the opinions set forth herein. In addition, we have relied
on the representations and warranties of the Company contained in the Loan
Documents (as hereinafter defined).
In delivering the opinions set forth herein, we have also reviewed the
following documents and instruments executed by the Company in connection with
the Loan and the Grant (collectively, the "Loan Documents"):
1. That certain Grant Agreement by and among Kentucky Economic
Development Finance Authority, the Authority and the Company dated as of
February 13, 2002;
2. That certain Loan Agreement between the Company and the Authority
dated March 1, 2002; and
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Xx Xxxxxx, Chairman
Perry-Xxxxxx-Xxxxxx-Breathitt
Regional Industrial Authority, Inc.
March 6, 2002
Page 2, 2002.
3. That certain Promissory Note executed by the Company dated March 1,
2002.
In the course of our examination of the documents, we have assumed the
genuineness of all signatures, other than the signatures of the officials of the
Company, the authenticity of all documents submitted to us as originals, and the
conformity to the original documents of all documents submitted to us as copies.
Based on the foregoing, it is our opinion that:
1. The Company is a validly existing Virginia corporation;
2. The Company has the requisite corporate power to execute and
deliver the Loan Documents, and to observe and perform the provisions of the
Loan Documents;
3. The execution and delivery of the Loan Documents by the Company and
the performance and/or observance thereby of the provisions of the Loan
Documents, does not and will not (i) violate any Virginia law, statute, court,
decision, rule, order or regulation applicable to the Company or (ii) to our
knowledge, constitute a default or a violation under, result in the imposition
of any lien under, or conflict with, or result in any breach of any of the
provisions of, any existing material contract or other material obligation
binding upon the Company and known to us;
4. The officers of the Company who executed the Loan Documents are
duly authorized to execute and deliver the Loan Documents on behalf of the
Company, and the Loan Documents are the legal, valid and binding obligations of
the Company and are enforceable against the Company in accordance with their
respective terms and conditions, (a) except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium, arrangement or other similar laws now or hereafter in effect
relating to or affecting enforcement of creditors' rights generally (including,
without limitation, the effect of statutory or other laws regarding fraudulent
transfers or preferential transfers or distributions), (b) except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law) and the effect of
judicial decisions which have held that certain provisions are unenforceable
where their enforcement would violate the implied covenant of good faith and
fair dealing or would be commercially unreasonable, and (c) except that we
express no opinion as to the legality, validity, binding nature or
enforceability of (i) any provision providing for the payment of fees or the
payment or reimbursement of costs and expenses for claims, losses or liabilities
in excess of a reasonable amount determined by a court or other tribunal, (ii)
any broadly stated waivers, including, without limitation, waivers of
presentment, demand, protest or
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Xx Xxxxxx, Chairman
Perry-Xxxxxx-Xxxxxx-Breathitt
Regional Industrial Authority, inc.
March 6, 2002
Page 3
notice, any waivers that are found by a court to be against public policy or any
waivers that are ineffective pursuant to statutes and judicial decisions, or
(iii) any provision that requires or relates to the payment of interest at a
rate or in an amount, after the maturity or after or upon acceleration of the
liabilities evidenced thereby, or after or during the continuation of any
default, unmatured default or other circumstance, that a court would determine
in the circumstances under applicable law to be commercially unreasonable or a
penalty or a forfeiture; and
5. To our knowledge, there is no litigation or proceeding involving the
Company pending or threatened in any Virginia court or administrative agency,
the outcome of which could be reasonably expected to materially and adversely
affect the ability of the Company to meet its obligations under the Loan
Documents.
We are licensed to practice law in the Commonwealth of Virginia and do
not purport to express any opinion concerning the laws of any jurisdiction other
than the Commonwealth of Virginia. To the extent that any of the Loan Documents
are governed by the laws of the State of Kentucky, we have, with your
permission, assumed that such laws conform to the laws of the Commonwealth of
Virginia.
When reference is made in the opinion expressed herein to "knowledge" or
to what is "known to us," or a similar phrase, it means the current actual
knowledge attributable to our representation of the Company in connection with
the Loan Documents of only those partners and associates who have had a
significant involvement with negotiation or preparation of this letter. However,
except as otherwise indicated, we have not undertaken any independent
investigation to determine the accuracy of any factual information of statements
referred to in the preceding paragraph, and no inference that we have any
knowledge of any matters pertaining to such information or statements should be
drawn from our representation of the Company.
No one other than you shall be entitled to rely on the opinions expressed
herein. This opinion is not intended to be used in any transaction other than
the one described above. This opinion is being delivered to you with the
understanding that neither it nor its contents may be published, communicated or
otherwise made available, in whole or in part, to any other person or entity
without, in each instance, our specific prior written consent.
Sincerely yours,
-26-
EXHIBIT 10.10 (j) 7
CERTIFICATE REGARDING HAZARDOUS SUBSTANCES
RE: Sale of Property on Ten Mile Creek in Perry
County, Kentucky by Perry, Xxxxxx, Xxxxxx, Breathitt, Regional
Industrial Authority, Inc.
In connection with the sale to American Woodmark Corporation (the
"Company") of certain property on Ten Mile Creek in Perry County, Kentucky by
the Perry, Xxxxxx, Xxxxxx, Breathitt, Regional Industrial Authority, Inc. (the
"Authority") of even date herewith, the Authority hereby certifies and covenants
to the Company as follows:
1. The Authority has no actual knowledge (a) of the presence of any
Hazardous Substances (as herein defined) on that certain real
property located in Perry County, Kentucky, described in Exhibit
"A" attached hereto and incorporated herein by reference (the
"Property"); (b) of any spills, releases, discharges, or disposal
of Hazardous Substances that have occurred or are presently
occurring on or onto the Property; or (c) of any spills, releases,
discharges or disposal of Hazardous Substances that have occurred
or are occurring off the Property as a result of any construction
on or operation and use of the Property.
2. In connection with the Authority's construction on or operation
and use of the Property, the Authority represents that, as of the
Date of this Certificate, it has no actual knowledge of any
failure to comply with all applicable local, state and federal
environmental laws, regulations, ordinances and administrative and
judicial orders relating to the generation, recycling, reuse,
sale, storage, handling, transport or disposal of any Hazardous
Substances on the Property.
3. The Authority agrees to indemnify and hold the Company harmless
from and against any and all claims, demands, damages, losses,
liens, liabilities, penalties, fines, lawsuits and other
proceedings, costs and expenses (including, without limitation
reasonable attorney's fees) arising directly or indirectly from,
or out of, or in any way connected with, (a) the presence of any
Hazardous Substances on the Property; (b) any violation or alleged
violation or any local, state or federal environmental law,
regulation, ordinance or administrative or judicial order relating
to Hazardous Substances on the Property, whether attributable to
events occurring before or after the Authority's acquisition of
the Property; provided, that such presence or Hazardous Substances
or such violations(s) shall result from an act or omission or
arise from or relate to the operations of the Authority upon the
Property; or (c) any material misrepresentation by the Authority
in the certifications or covenants contained herein. Provided,
however, that the Authority's indemnity obligation under this
paragraph shall apply only to such presence of Hazardous
Substances or violation(s) as are within the actual knowledge of
the Authority.
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4. This Certificate shall be binding upon the Authority and its
respective successors and assigns, and shall inure to the benefit
of and may be relied upon by the Company, its successors and
assigns.
5. As used in this Certificate, "Hazardous Substance" shall mean: Any
substance or material defined or designated as hazardous or toxic
waste, hazardous or toxic material, a hazardous or toxic
substance, or other similar term, by any federal, state or local
environmental statute, regulation, order or ordinance presently in
effect, including without limitation, asbestos in friable form and
petroleum products.
IN WITTNESS WHEREOF, the undersigned has executed and delivered this
Certificate to be effective as of February 7, 2002.
PERRY, XXXXXX, XXXXXX, BREATHITT, REGIONAL INDUSTRIAL AUTHORITY, INC.
By:
Its:
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Attachment A
MEETS AND BOUNDS DESCRIPTION
BEING A PARCEL OF LAND LOCATED IN PERRY COUNTY, KENTUCKY, IN THE PERRY,
XXXXXX, XXXXXX, BREATHITT REGIONAL INDUSTRIAL AUTHORITY INC., COALFIELDS
INDUSTRIAL PARK, DESIGNATED AS LOT #105 AND BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
BEGINNING ON AN IRON PIN W/CAP SET AT THE INTERSECTION OF COALFIELDS
INDUSTRIAL BOULEVARD (ADOPTED COUNTY ROAD) AND WOODMARK WAY (PROPOSED), SAID
POINT HAS A COORDINATE VALUE BASED ON THE COALFIELDS INDUSTRIAL PARK COORDINATE
SYSTEM OF N: 384132.285, E: 2718524.408;
THENCE WITH THE WEST RIGHT OF WAY OF COALFIELDS INDUSTRIAL BOULEVARD, 50'
FROM AND PARALLEL TO THE CENTER OF SAID ROAD S 00E31'19"W 436.78' TO AN IRON PIN
W\CAP SET; THENCE S 00E09'32" E 318.08' TO AN IRON PIN W\CAP SET; THENCE S
00E00'05"E 23.28' TO AN IRON PIN W\CAP SET;
THENCE SEVERING THE LANDS OF THE GRANTOR (D.B. 271 XX. 000, XXXXXXX #1)
XXX XXXX 1647,75' TO AN IRON PIN W\CAP, STAMPED XXXXXXXXX XXXXXXXX 2736, FOUND
AT A COMMON CORNER TO THE GRANTOR AND ANR COAL CO. LLC (D.B. 208 PG. 266, AND
M.B. 28 PG. 337);
THENCE WITH SAID LINE N 83E10'53'W 147.78'TO AN IRON PIN W\CAP SET AT THE
SOUTH EAST CORNER OF THE PROPOSED WOODMARK WAY.
THENCE WITH THE EAST RIGHT OF WAY OF SAID ROAD 37.5' FROM AND PARALLEL TO
THE CENTER OF SAID ROAD DUE NORTH 723 07' TO AN IRON PIN W\CAP SET; THENCE WITH
CURVE TO THE RIGHT WITH AN ARC LENGTH OF 58.90', A RADIUS OF 37.5', A CHORD
BEARING OF N 45E00'00"E, AND A CHORD LENGTH OF 53.03' TO AN IRON PIN W\CAP SET;
THENCE CONTINUING WITH THE SOUTH RIGHT OF WAY OF SAID ROAD DUE EAST 1760.09' TO
THE BEGINNIG.
CONTAINING 32.0265 ACRES OR 1395073.0 SQ. FT. AS SURVEYED BY XXX MLLLER
P.L.S. #1904 OF XXX XXXXXX & ASSOC, INC., ON 11-23-01, AND BEING A PART OF THE
PROPERTY DESCRIBED IN D.B. 271 XX. 000, XXXXXX #1 AS RECORDED IN THE RECORDS OF
THE PERRY COUNTY COURT CLERK'S OFFICE.
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