MORTGAGE
THIS MORTGAGE (herein called "Mortgage") is made as of the 28th day of
January, 2004, by and between (i) ROBCOR, LLC, a Kentucky limited liability
company, with a mailing address of 0000 Xxxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx
00000 (hereinafter referred to as the "Borrower"), and (ii) COMMUNITY TRUST
BANK, INC., a Kentucky banking corporation, having its office and principal
place of business at 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 (the
"Bank").
INTRODUCTION
A. Pursuant to the terms of that certain Loan Agreement of even date
herewith by and between Borrower and Bank (the "Loan Agreement"), the Bank
agreed to make a term loan to the Borrower in the face principal amount of Four
Hundred Ten Thousand Seven Hundred and No/100 Dollars ($410,700.00) (the
"Loan"), as evidenced by that certain Term Note of even date herewith made by
Borrowers payable to the order of the Bank in the face principal amount of
$410,700.00 (the "Note") to refinance the indebtedness encumbering certain real
estate located at 000-000 Xxxx Xxx Xxxxxxx, located in Lexington, Fayette
County, Kentucky, which is more fully described on Exhibit A, attached hereto
and incorporated herein by reference (referred to herein collectively as the
"Property").
B. The Borrower desires to xxxxx x xxxx to the Bank as security for
payment of the Note and for other obligations more fully described herein,
pursuant to the terms of this Mortgage.
C. The maturity date of the Note is January 28, 2009, which shall be the
maturity date of this Mortgage.
GRANTING CLAUSES
NOW, THEREFORE, in consideration of the Loan and for other good and
valuable consideration, the receipt and sufficiency of which Borrower hereby
acknowledges, and to secure (i) payment of the Note and all extensions, renewals
and modifications thereof, (ii) all obligations of the Borrower hereunder,
under the Loan Agreement, and under the "Loan Documents", as that term is
defined in the "Loan Agreement"; and (iii) all other obligations, whether now
existing or hereafter arising, of the Borrower to the Bank (collectively, the
"Secured Obligations"), Borrower does hereby irrevocably grant, bargain and
sell, convey and confirm, mortgage, transfer and assign to the Bank, all the
following described property whether now owned or held or hereafter acquired by
Borrower:
(a) That certain parcel of real property located in Lexington, Fayette
County, Kentucky more particularly described on Exhibit "A" attached hereto and
made a part hereof (the "Real Property").
(b) All leases, subleases and licenses now existing or hereafter made of
all or any part of the Real Property, and the rents, revenues, avails and
receivables therefrom, security and other
deposits thereunder, any award made hereafter to Borrower in any court
proceeding involving any lessee, sublessee or licensee or in any bankruptcy,
insolvency, reorganization or similar proceeding in any court, and any payment
made by any lessee, sublessee or licensee in place of rent for any such
property.
(c) All of the estate, title and interest of Borrower in and, to all
buildings, structures, streets, parking lots, sidewalks, curbs, utility
distribution systems, lighting and other improvements of every kind and nature
whatsoever now or hereafter constructed or located in or about the Real Property
and all gas and electric fixtures, radiators, heaters, machinery, ranges, and
motors, plumbing and heating fixtures, carpeting and other floor coverings, fire
extinguishers and any other safety equipment required by governmental regulation
or law, water heaters, mirrors, air conditioning apparatus, window screens,
awnings and storm sashes, which are or shall be attached to said buildings,
structures or improvements and all other furnishings, furniture, fixtures,
machinery, equipment, appliances, building supplies and materials, and personal
property of every kind and nature whatsoever now or hereafter owned by Borrower
and located in, on or about, or used or intended to be used with or in
connection with the construction, use, operation or enjoyment of the Real
Property and all improvements thereto and also including all extensions,
additions, improvements, betterments, after-acquired property, renewals,
replacements and substitutions, or proceeds from a permitted sale of any of the
foregoing, and all the right, title and interest of Borrower in any such
furnishings, furniture, fixtures, machinery, equipment, appliances and personal
property subject to or covered by any prior security agreement, conditional
sales contract, chattel mortgage or similar lien or claim, together with the
benefit of any deposits or payments now or hereafter made by Borrower or on
behalf of Borrower (all of the foregoing is collectively referred to herein as
the "Improvements"). The location of the Improvements is the location of the
Real Property.
(d) All (i) easements, tenements, privileges, advantages, accessions,
hereditaments and appurtenances belonging, benefiting or in any way appertaining
to the Real Property and other property described in these granting clauses and
all Improvements now or hereafter located thereon, and the rents, issues and
profits thereof, and (ii) the reversions, remainders, earnings, revenues, rents,
issues and profits thereof.
(e) All proceeds derived from any taking by condemnation or eminent domain
or similar proceedings or transfer in place or in anticipation thereof, and all
insurance proceeds from insurance policies resulting from damage to or
destruction of, all or any part of the properties described in these granting
clauses and all Borrower's right title and interest in all contracts or
agreements to sell all or any portion of the Real Property or improvements.
TO HAVE AND TO HOLD all such Real Property, the Improvements and all other
property and rights described in the above granting clauses (collectively herein
called the "Mortgaged Property") unto the Bank, its successors and assigns,
forever. The lien of this Mortgage shall be a first and prior lien on, and
security interest in, the Mortgaged Property for the benefit of the Bank to
secure the Secured Obligations including the compliance by Borrower with all the
terms,
-2-
covenants and conditions of, and its obligations hereunder, under the Note, the
Loan Agreement, and the other Loan Documents.
PROVIDED, HOWEVER, that if Borrower shall pay or cause to be paid to the
Bank all amounts due and payable under the Note, and the other Secured
Obligations and the lending obligations of the Bank are terminated, then and
thereafter, Bank, upon receipt of a written request from Borrower, shall, at the
expense of Borrower, release and discharge the lien of this Mortgage of record.
THIS MORTGAGE FURTHER STATES, and Borrower hereby covenants and agrees
with the Bank as follows:
1. Definitions. The terms defined in this Section shall have the meanings
stated in this Section for all purposes of this Mortgage, except as otherwise
expressly provided or unless the context clearly otherwise requires. Other terms
are defined elsewhere in this Mortgage
1.1 "Buildings" means the buildings or other structures now or
hereafter located on the Real Property and all replacements or substitutions
therefor and enlargements, alterations or additions thereto.
1.2 "Default Rate" shall have the same meaning as given it in the
Note.
1.3 "Event of Default" means any event described in Section 11 of
this Mortgage.
1.4 "Impositions" means all taxes, assessments (including, without
limitation, all assessments for public improvements or benefits, whether or not
commenced or completed prior to the date hereof and whether or not to be
completed while this Mortgage remains in effect), ground rents, water, sewer or
other rents, rates and charges, excises, levies, license fees, sales, use or
privilege taxes or license fees, permit fees, inspection fees and other
authorization fees and other charges (other than any income, excess profits or
franchise taxes of Borrower determined on the basis of its general income or
revenues), in each case whether general or special, ordinary or extraordinary,
or foreseen or unforeseen, of every character (including all penalties or
interest thereon), which at any time while this Mortgage remains in effect may
be assessed, levied, confirmed or imposed on or in respect of or be a lien upon
(a) the Mortgaged Property or any part thereof or any rent or other income
therefrom or any estate, right or interest therein, or (b) any occupancy, use or
possession of the Mortgaged Property or any part thereof.
1.5 "Insurance Requirements" means all provisions of any insurance
policy covering or applicable to the Mortgaged Property or any part thereof, all
requirements of the issuer of any such policy, and all orders, rules,
regulations and other requirements of the National Board of Fire Underwriters
(or any other body exercising similar functions) applicable to or affecting the
Mortgaged Property or any part thereof or any use or condition of the Mortgaged
Property or any part thereof.
-3-
1.6 "Legal Requirements" means all laws, statutes, codes, acts,
ordinances, orders, judgments, decrees, injunctions, rules, regulations,
permits, licenses, authorizations, directions and requirements of any and all
governments, departments, commissions, boards, courts, authorities, agencies,
officials and officers, whether foreseen or unforeseen, ordinary or
extraordinary, which now or at any time hereafter may be applicable to the
Mortgaged Property or any part thereof, or any of the adjoining sidewalks,
curbs, vaults and vault space, if any, streets or ways, or any use or condition
of the Mortgaged Property or any part thereof.
1.7 "Mortgaged Property" means all of the property and rights
described in the granting clauses of this Mortgage.
1.8 "Permitted Encumbrances" means only the charges, encumbrances,
easements, reservations, restrictions, encroachments, and other defects
affecting the Mortgaged Property on the date of this Mortgage which have been
approved by the Bank and allowed pursuant to the terms of the Loan Agreement.
1.9 "Real Property" means those certain parcels of real property
owned by Borrower, located in Lexington, Fayette County, Kentucky, and more
particularly described on Exhibit "A" attached hereto and made a part hereof.
1.10 "Taking" means (a) any taking while this Mortgage remains in
effect of any interest in any of the Mortgaged Property as the result of the
exercise of the power of condemnation or eminent domain, or (b) any sale or
other transfer of any such interest, which may be made by Borrower only with the
prior written consent of Bank, in lieu of the impending exercise of the power of
condemnation or eminent domain, to any person legally empowered to exercise such
power, or (c) a change of grade affecting the Real Property or any part thereof
1.11 "Total Taking" has the meaning set forth in Section 10.6
hereof.
2. Warranties. (a) Borrower warrants and represents to Bank that it has
taken all action necessary (i) to make the Secured Obligations the valid,
binding and legal obligation of Borrower, (ii) to make this Mortgage a valid,
binding and legal instrument for the security of the Secured Obligations in
accordance with their respective terms, and (iii) to authorize, in accordance
with all applicable requirements, the execution and delivery of this Mortgage.
(b) Borrower further warrants and represents to the Bank that at the time
of the execution and delivery of this Mortgage and at all times thereafter,
Borrower has and shall have good and marketable fee simple title to all of the
Mortgaged Property, subject only to the Permitted Encumbrances, and is lawfully
and indefeasibly seized of the entire estate and property hereby conveyed and
has full right and power to grant, convey and mortgage all of the same to the
Bank.
-4-
(c) Borrower warrants generally, and with covenants of general warranty
and against encumbrances other than the Permitted Encumbrances, and shall defend
the title to the Mortgaged Property to the Bank against all claims and demands
whatsoever by any person or entity, at law, in equity or otherwise.
3. Further Assurances. Borrower, at its expense, shall deliver and record
and cause to be delivered and recorded all such further assurances as the Bank
shall require to assure and confirm the Mortgaged Property as security for the
Secured Obligations, and Borrower shall execute and deliver to the Bank all
mortgages, assignments, and the like as may be requested by the Bank in
connection therewith, and Borrower will pay all filing and recording fees,
taxes, charges and the like in connection therewith.
4. Payment. Borrower shall pay all amounts due or to become due on the
Secured Obligations at the dates and place and in the manner provided in the
documents and instruments evidencing the Secured Obligations.
5. Payment of Impositions. Subject to the terms of Section 8.2 hereof,
Borrower will duly and punctually pay or cause to be paid in full all
Impositions before any fine, penalty, interest or cost may be added thereto for
non-payment thereof, even if any such Imposition may otherwise at the option of
Borrower be paid in installments. Borrower will furnish to the Bank, promptly
upon the Bank's request, official receipts for, or other satisfactory evidence
of, payment of all Impositions in accordance with the terms hereof
6. Maintenance and Repair. Borrower shall cause the construction of any
Improvements and related site work to be performed in a good and workmanlike
manner in accordance with plans and specifications approved by the Bank in
writing prior to the commencement of any such improvement and in all respects in
compliance with all applicable laws, rules, permits, requirements and
regulations of any governmental agency or authority having or exercising
jurisdiction over the Mortgaged Property or such improvements.
7. Sale of Mortgaged Property by Borrower. Any conveyance of the whole or
any part of, or interest in, the Mortgaged Property, whether by deed, contract,
or otherwise, or lease of the same or in the event of any transfer or conveyance
of an ownership interest in Borrower, without the Bank's prior written consent,
shall be deemed to increase the risk of the Bank, and Bank may declare the
entire unpaid balance of the Secured Obligations to be immediately due and
payable. The execution and delivery by the Borrower of any joint venture
agreement, partnership agreement, declaration of trust, option agreement or
other instrument under which any other person or corporation may become
entitled, directly or indirectly, to the possession or enjoyment of the
Mortgaged Property, or the income or other benefits derived or to be derived
therefrom, shall in each case be deemed to be a conveyance or assignment of the
Borrower's interest in the Mortgaged Property for the purposes of this Section,
and shall require the prior written consent of the Bank.
-5-
8. Compliance with Legal and Insurance Requirements.
8.1 Proper Compliance. Subject to Section 8.2 hereof, Borrower, at
its expense, shall promptly and timely comply with all Legal Requirements and
Insurance Requirements, whether or not compliance therewith shall require
structural changes in any of the Improvements or interfere with the use and
enjoyment of any of the Mortgaged Property, and shall procure, maintain and
comply with all permits, licenses and other authorizations required for any use
of the Mortgaged Property or any part thereof as contemplated or as then being
made, and for the proper erection, installation, operation and maintenance of
any Improvements, whether now or in the future.
8.2 Permitted Contests. Borrower, at its expense, may contest, or
cause to be contested, by appropriate legal or other proceedings conducted in
good faith and in a timely fashion, the amount, validity and/or application, in
whole or in part, of any Imposition or Legal Requirement.
9. Liens and Restrictions
9.2 Restrictions. Borrower covenants and agrees that it shall not
enter into, impose upon or grant any covenants, restrictions or easements
relating to the Mortgaged Property or any portion thereof without the prior
written consent of the Bank, which consent shall not be unreasonably withheld.
In any event all such covenants, restrictions and easements shall be subordinate
to the lien in favor of the Bank created hereby. Borrower further covenants and
agrees not to subdivide or record any plat or commit to any development plan
relating to the Mortgaged Property or any portion thereof, without the prior
written consent of the Bank, or amend or modify any existing plat or development
plan without the prior written consent of the Bank.
10. Insurance.
10.1 Risks to be Insured. Borrower, at its expense, shall maintain
with insurers approved by the Bank (a) builder's risk insurance, (b) insurance
with respect to any completed Improvements against loss or damage by fire,
earthquake, and casualty and against such other risks as are included in
coverage of the type now known as extended coverage, in amounts sufficient to
prevent Borrower or the Bank from becoming co-insurers under the applicable
policies, and in any event in an amount equal to the full replacement value
thereof, and in no event less than $6,000,000.00, (c) comprehensive general
public liability insurance against claims for personal
-6-
injury, death or property damage, occurring on, in or about the Mortgaged
Property or relating in any way to the Mortgaged Property, with combined, single
limits of not less than $1,000,000.00 in respect of any one occurrence, (d)
where required by law, appropriate worker's compensation insurance or other
insurance against liability arising from the claim of workers in respect of any
work on or about the Mortgaged Property and (e) such other insurance with
respect to the Mortgaged Property, in such amounts and against such insurable
hazards as the Bank from time to time may require in its discretion by written
notice to Borrower.
10.2 Policy Provisions. All insurance maintained by Borrower
pursuant to Section 10.1 hereof, (a) shall name the Bank as insured and loss
payee as its interest may appear, (b) shall provide that the proceeds for all
losses, except in the case of public liability insurance, be payable to the Bank
for application as provided in this Mortgage, (c) shall provide that no
cancellation, reduction in amount, amendment or change in coverage or terms
thereof shall be effective until at least thirty (30) days after receipt by the
Bank of written notice thereof from the insurer, and (d) shall be satisfactory
in all other respects to the Bank. All such insurance may be maintained under
blanket policies carried by Borrower and covering the Mortgaged Property and
other property or assets owned by Borrower and not subject to the lien of this
Mortgage, provided that any such policy shall provide that the full face amount
(or sub-limit) thereof shall be applicable to the Mortgaged Property and shall,
in all other respects, comply with all the requirements of Sections 10.1 and
10.2 hereof.
10.3 Delivery of Policies and Other Provisions. Borrower will
deliver to the Bank the original or certified copies of all policies and all
renewals (at least thirty (30) days prior to the expiration date of the policy
being renewed) evidencing all insurance required to be maintained under Section
10.1 hereof and, if required by any supervisory authority having jurisdiction
over the Bank, the originals of all policies evidencing such insurance, together
with proof of payment of all premiums therefor for at least six (6) months in
advance from the issue date or renewal date thereof, as the case may be. In the
event Borrower shall fail to effect or maintain any insurance required to be
effected or maintained pursuant to the provisions of Section 10.1 and 10.2
hereof, and in addition to constituting an Event of Default hereunder, Borrower
will indemnify the Bank against damage, loss or liability resulting from all
risks against which such insurance should have been effected or maintained
pursuant to the terms of this Mortgage.
10.4 Notice of Damage, Destruction or Taking. In case of any
material damage to or destruction of the Mortgaged Property, any Improvements or
any part thereof, or in case of any Taking, Borrower shall promptly give written
notice thereof to the Bank. In case of any Taking or any damage or destruction,
Borrower and the Bank may appear in such proceedings or negotiations and be
represented by their respective counsel for the purpose of protecting their
respective interests hereunder, and Borrower will pay all costs, fees and
expenses incurred by the Bank in connection with any Taking or any such damage
or destruction and in seeking and obtaining any award or payment on account
thereof, including but not limited to the Bank's attorneys' fees and appraiser's
fees and court costs. All awards and payments on account of any partial Taking
(less the actual costs, fees and expenses incurred in the collection thereof,
for which the person incurring same shall
-7-
be reimbursed from such award and payment) shall be payable to the Bank for
application to the Secured Obligations in such order and in such amounts as the
Bank shall determine in the exercise of its sole discretion. In case of any
damage to or destruction of the Mortgaged Property or any part thereof, Bank
shall make the net amount of all insurance proceeds actually received by the
Bank available for the restoration of the improvements affected by such loss or
damage, subject to the following conditions:
(i) No Event of Default hereunder shall then be in existence;
(ii) The Bank shall first be given satisfactory proof that such
Improvements have been fully restored as nearly as practicable to the general
utility thereof prior to such damage or destruction, or that by application of
such proceeds they will be so fully restored, free and clear of all liens,
except the Permitted Encumbrances and this Mortgage, and the Improvements can be
fully reconstructed and completed within a reasonable time as determined by
Bank;
(iii) If such proceeds shall be insufficient to restore the
Improvements fully, Borrower shall furnish and deposit with Bank security
satisfactory to the Bank in its sole discretion to assure that funds will be
available when required for such purpose;
(iv) If Borrower shall fail within a reasonable time so to restore
the Improvements, the Bank, at its sole option, (a) may restore the Improvements
with such proceeds and awards for and on behalf of Borrower, and may do any act
or thing as agent of Borrowers necessary or appropriate to that end, or (b) may
apply such proceeds to the payment of the Secured Obligations in such order as
the Bank may elect, in its sole discretion;
(v) Bank shall hold the proceeds in escrow and disburse the funds in
accordance with a construction draw schedule acceptable to Bank, subject to (a)
Bank's approval of the plans, specifications and contracts for such repair or
restoration, and there being sufficient funds for such repair or restoration,
(b) receipt of evidence reasonably satisfactory to Bank that the amounts to be
disbursed are due and owing for work performed for such repair or restoration,
(c) receipt of paid invoices and lien waivers satisfactory to Bank for amounts
then to be paid; and (d) such other conditions as may be established by the Bank
from time to time; and
(vi) The excess of insurance proceeds over the amount necessary to
complete restoration of the affected Improvements as nearly as practicable to
their general value and utility prior to the damage or destruction thereof shall
be applied by the Bank, at its sole option, to the Secured Obligations, in such
order as the Bank may elect in its sole discretion.
In the event any of the above conditions are not satisfied or if Borrower
elects not to repair such damage or restore such Improvements, and the Bank does
not elect to restore the Improvements, all such insurance proceeds shall be
applied at Bank's sole option to the Secured Obligations in such order as Bank
may elect in its sole discretion.
-8-
10.5 Restoration. In case of any material damage to or destruction
of the Mortgaged Property or any part thereof, or in case of any Taking other
than a Total Taking, Borrower, at its sole cost and expense, will commence
promptly and complete or will cause the prompt commencement and completion of,
with due diligence, whether or not the insurance proceeds for such damage or
destruction or the award for such Taking shall be sufficient for such purpose,
the replacement, repair or restoration of the Mortgaged Property as nearly as
practicable to the value and general utility thereof immediately prior to such
damage, destruction or Taking.
10.6 Total Taking. In case of (a) a Taking of all of the Mortgaged
Property, or (b) a Taking of less than all of the Mortgaged Property which, in
the good faith judgment of Borrower, renders uneconomical for business use the
portion of such Mortgaged Property remaining after such Taking, even if it would
be restored pursuant to Section 10.5 hereof (any such Taking being herein
referred to as a "Total Taking"), or in any other instance where Borrower shall
not commence and diligently pursue restoration of the Mortgaged Property or any
Improvements after a Taking or any damage or destruction, then Borrower, within
sixty (60) days after such Total Taking, Taking or damage or destruction, as the
case may be, Bank will apply any proceeds that either would otherwise be
entitled to retain or obtain to the prepayment of the Secured Obligations in
such order as the Bank may elect in its sole discretion.
10.7 Application of Proceeds After Default. If and so long as an
Event of Default shall have occurred and be continuing hereunder, the Bank may
hold all net awards payable on account of any Taking and all insurance proceeds
on account of any damage to or destruction of any portion of the Mortgaged
Property as part of the Mortgaged Property and may, at its sole option, apply
the same to the Secured Obligations in such order as the Bank may elect in its
sole discretion.
10.8 Security Interest. Borrower hereby grants the Bank a first and
prior security interest in and lien on all funds at any time held by the Bank
pursuant to this Section 10 to secure the Secured Obligations.
11. Defaults. Each of the following events shall constitute an "Event of
Default" under this Mortgage:
(a) If any installment of interest or principal under the Note or any
other Secured Obligation is not paid in full when the same shall become due and
payable and such failure continues beyond any applicable grace period;
(b) The Borrower shall fail to observe or perform any one or more of the
other terms, covenants or other obligations on the part of Borrower set forth in
this Mortgage and such default (excluding defaults relating to the covenants
contained in Sections 7 and 10.1 hereof, for which there shall be no notice or
cure period) is not fully cured within fifteen (15) days after Bank has given
written notice thereof to Borrower.
-9-
(c) Any representation or warranty of Borrower set forth in this Mortgage,
or any document executed in connection with the Loan shall prove to be incorrect
or misleading in any material respect.
(d) Any "Event of Default" under the Loan Agreement or any of the other
Loan Documents.
12. Remedies Upon an Event of Default. If any Event of Default shall have
occurred and be continuing, then, at the Bank's sole election, (a) the Bank may
proceed to protect and enforce its rights by an action at law, in equity or
other appropriate proceeding, whether for the specific performance of any
agreement contained herein, or for an injunction against the violation of any of
the terms, conditions or provisions hereof, or in aid of the exercise of any
power granted hereby or by law, (b) the Bank may at any time or from time to
time proceed at law or in equity or otherwise to enforce the lien and security
interest of this Mortgage as against all or any part of the Mortgaged Property,
as the Bank may elect in the exercise of its sole discretion, (c) the Bank may
declare the entire amount of the Note or other Secured Obligations (or any of
them) and all interest thereon, or, at its option, any part of the foregoing, to
be accelerated and immediately due and payable, without further demand or
notice, and/or (d) the Bank may pursue all other rights and remedies available
to Bank hereunder or at law or in equity. The Bank shall also be entitled as a
matter of right, to the extent permitted by law, without regard to the adequacy
of the security for the Note and other Indebtedness, to the immediate
appointment of a receiver for the Mortgaged Property and of the rents thereof,
by a court with proper jurisdiction with all such other powers as the court(s)
making such appointment shall confer, and the Bank, or any of its agents or
employees, may serve as such receiver. Borrower shall deliver to the receiver
appointed, or the Bank if it takes possession of the Mortgaged Property or any
part thereof, all original plans and specifications for the Mortgaged Property,
records, books, security deposits, leases, agreements, and all other materials
whatsoever relating to the construction or operation of the Mortgaged Property.
All remedies hereunder shall be cumulative to the greatest extent permitted by
law. If any Event of Default hereunder shall occur, Borrower will pay to the
Bank such further amount as shall be sufficient to reimburse the Bank fully for
all costs and expenses of collection of the Secured Obligations and enforcement
of any security for the Secured Obligations, including without limitation,
Bank's fees and expenses for enforcing this Mortgage or any rights hereunder,
its reasonable attorneys', accountants' and appraisers' fees and expenses, court
costs, and any taxes, and fees or governmental charges incident to such
enforcement of rights and collection.
13. Right of Bank to Perform Borrower's Covenants. If Borrower shall fail
to make any payment or perform any act required to be made or performed by it
hereunder, including, but without limitation, the payment of all Impositions and
premiums for insurance referred to herein, the Bank, upon five (5) business days
prior written notice to Borrower (or without notice in the event of a situation
which, in Bank's sole discretion, requires immediate action), and without
waiving or releasing any obligation of Borrower or curing any default or Event
of Default hereunder, may (but shall be under no obligation to) at any time
thereafter make such payment or perform such act for the account and at the
expense of Borrower and may enter upon any or all of the Mortgaged Property
-10-
and take all such actions as, in the Bank's sole opinion, may be necessary or
appropriate therefor or in connection therewith to protect the Bank's interest
in the Mortgaged Property. No such entry and no such action shall be deemed an
eviction of Borrower. All sums so paid by the Bank and all costs and expenses
(including, without limitation, its reasonable attorneys' fees and expenses) so
incurred by the Bank, together with interest thereon at the Default Rate set
forth in the Note from the date of payment by the Bank, shall be secured by this
Mortgage, and shall be paid by Borrower to the Bank on demand. The Bank shall
not be liable to Borrower for or as a result of any actions taken or not taken
pursuant to the terms of this Section 13.
14. Waivers and Modifications. The Bank may (i) extend the time for
payment of the Note (or any of them) or Secured Obligations, (or any of them) or
any part thereof, or any interest thereon, (ii) waive, modify or amend any of
the terms, covenants or conditions contained in any loan document, in whole or
in part, at the request of Borrower or of any person having an interest in the
Mortgaged Property or any part thereof, (iii) accept one or more Notes in
replacement or substitution of the Note, (iv) release and/or consent to the
release of all or any part of the Mortgaged Property from the lien of this
Mortgage, (v) take or release other security, (vi) release any party primarily
or secondarily liable on the Secured Obligations or hereunder or on such other
security, (vii) grant extensions, renewals or indulgences therein or herein,
(viii) apply to the payment of the principal and interest of the Secured
Obligations any part or all of the proceeds obtained by sale or otherwise as
provided herein, without resort or regard to other security, or resort to any
one or more of the securities or remedies which the Bank may have and which in
its absolute discretion it may pursue for the payment of all or any part of the
Secured Obligations, in such order and in such manner as it may determine, all
without in any way releasing Borrower or any party primarily or secondarily
liable from any of the terms, covenants or conditions of this Mortgage, or any
other document, and without releasing the unreleased Mortgaged Property from the
lien of this Mortgage. None of the foregoing waivers, consents or modifications
shall be effective unless in writing signed by Bank, and, in any event, shall be
strictly construed.
15. Notices, Demands and Requests. All notices, demands or requests
provided for or permitted to be given pursuant hereto must be in writing and
shall be deemed to have been properly given or served by depositing in the
United States Mail, postpaid and registered or certified return receipt
requested, or delivered to a national overnight carrier, delivered the next
business day, and addressed to the addresses below:
If to Bank: Community Trust Bank, Inc.
Attn: Manager, Commercial Loan Department
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
If to Borrower: Robcor, LLC
Attn: Xxxx Xxxxx 0000
Xxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
-11-
All notices, demands and requests shall be effective upon being deposited in the
United States Mail or with the overnight carrier in accordance herewith.
16. Applicable Law. The Note and this Mortgage shall be governed by and
construed in accordance with the laws of the Commonwealth of Kentucky.
17. Successors and Assigns. The terms and conditions agreed to by Borrower
and the covenants of Borrower herein shall be binding upon the personal
representatives, successors and assigns of Borrower.
18. Miscellaneous. Whenever used herein the singular shall include the
plural and the plural the singular. The use herein of any gender shall include
all genders. The Section headings used herein are for convenience only and shall
not be deemed to restrict or modify the terms and provisions of any Section
hereof All Exhibits to this Mortgage are incorporated herein in full by
reference above the signature of Borrower to this Mortgage.
19. Time of Essence. Time shall be of the essence in the performance of
all Borrower's covenants and agreements set forth in this Mortgage.
20. Severability. The invalidity or unenforceability of any provision of
this Mortgage in general or in or to any particular circumstance shall not
affect the validity or enforceability of any one or more of the other provisions
of this Mortgage or the validity of such provision as applied to any other
circumstance. The parties agree that this Mortgage and all of the provisions
hereof shall be interpreted so as to give effect and validity to all of the
provisions hereof to the fullest extent permitted by law.
IN WITNESS WHEREOF, Borrower has caused this Mortgage to be duly executed
on its behalf as of the day, month and year first above written.
ROBCOR, LLC, a Kentucky limited liability company
BY:
---------------------------------------------
XXXX XXXXX, Member
BY:
---------------------------------------------
XXXXX XXXXX, Member
("Borrower")
-00-
XXXXXXXXXXXX XX XXXXXXXX )
) SS:
COUNTY OF FAYETTE )
The foregoing instrument was acknowledged before me this 28th day of
January, 2004 by Xxxx Xxxxx and Xxxxx Xxxxx, as the members of Robcor, LLC, a
Kentucky limited liability company, on behalf of the limited liability company.
My commission expires: _________________________________________.
------------------------------------
NOTARY PUBLIC, KENTUCKY,
STATE AT LARGE
THIS INSTRUMENT PREPARED BY:
------------------------------------
XXXXX X. XXXXXXX
XXXXX X. XXXXXXX, P.S.C.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
(000) 000-0000
GAH/040358gh
-13-
EXHIBIT "A"
Being all of parcels 2-A and 3-A of Tract "C" Blue Sky
Industrial Estate Subdivision, as shown by plat thereof
of record in Plat Book 25, Page 37, Fayette County
Clerk's Office, as further reflected on a Consolidation
Record Plat of a portion of said Blue Sky Industrial
Estates Tract "C", dated August 30, 1974, said two
tracts containing in the aggregate 3.996 acres of land;
being further described as all of Lots AA, BB, CC, DD,
EE, FF, GG, HH, II, JJ, KK, and LL as shown by amended
record plat of a portion of Blue Sky Industrial Estates,
Tract "C", Parcels 2-A & 3-A, appearing of record in
Plat Cabinet B, Slide 453 (erroneously referred to in
chain of title as Plat Cabinet B, Slide 435 and in the
previous deed as Plat Cabinet B, Slide 354), in the
aforesaid clerk's office.
BEING the same property conveyed to Robcor. LLC, a
Kentucky limited liability company, by BFI Waste Systems
of North America, Inc., a Delaware corporation, through
deed dated March 20, 2003, of record in Deed Book 2350,
Page 508, in the Fayette County Clerk's Office.
GAH/040359gh
LOAN AGREEMENT
THIS LOAN AGREEMENT (herein this "Loan Agreement") is made, entered into
and effective as of the 28th day of January, 2004, by and among (i) COMMUNITY
TRUST BANK, INC., a Kentucky banking corporation, having a mailing address of
000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 (the "Bank") (ii) ROBCOR, LLC,
a Kentucky limited liability company, with a mailing address of 0000 Xxxxxxxxxx
Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000 (the "Borrower"), and (iii) XXXX XXXXX and
XXXXX XXXXX both individual residents of Kentucky, with a mailing address of
0000 Xxxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000 (collectively, the
"Guarantors", whether one or more).
R E C I T A L S:
A. Borrower desires to obtain from the Bank a term loan in the maximum
principal amount of $410,700.00 (the "Loan") to refinance certain commercial
property located in Lexington, Fayette County, Kentucky, which is more fully
described on Exhibit A, attached hereto and incorporated herein by reference
(referred to herein collectively as the "Property").
B. The Bank desires to grant to the Borrower the Loan upon the terms and
conditions set forth or referred to herein.
C. In order to induce the Bank to enter into this Loan Agreement, without
which inducement the Bank would be unwilling to take the actions described
herein, and in consideration of the benefits it will receive therefrom, the
Guarantor is willing and desires to unconditionally guaranty all obligations of
the Borrower and to make the agreements set forth or referred to herein.
NOW, THEREFORE, in consideration of the Recitals and the mutual covenants
and agreements set forth herein and for other good and valuable consideration,
the receipt of which is hereby acknowledged, the parties hereby agree as
follows:
1. Definitions. The following terms shall have the meanings set forth below.
Other terms used herein are defined elsewhere in this Loan Agreement.
a. "Bank" means Community Trust Bank, N.A., a national banking
association, or any successor holder of the Note.
b. "Borrower" means Robcor, LLC, a Kentucky limited liability company.
c. "Borrowing Rate" means the Prime Rate in effect from time to time
plus one-quarter of one percent (0.25%), calculated on the basis of
an assumed 360-day year for the actual number of days elapsed;
provided that during the term of the Loan, the Borrowing Rate shall
be no greater than 6.25% per annum calculated on the basis of an
assumed 360-day year for the actual number of days elapsed.
d. "Business Days" means all calendar days excluding Saturdays,
Sundays, legal holidays of the United States Government and other
days on which the Bank is not open for the regular conduct of its
business.
e. "Closing" means the date on which the disbursement of the proceeds
of the Loan occurs, unless otherwise agreed in writing by the Bank
and Borrower.
f. "Closing Fees" means all amounts necessary to pay all costs, charges
and expenses incurred by Bank or Borrower in connection with making
the Loan, including, but not limited to, title search charges, title
insurance premiums, tax and lien search charges, recording fees,
escrow fees, appraisal fees, inspection and cost analysis fees, real
property taxes and assessments, permit fees, deposits for utilities,
brokers' fees, insurance premiums, survey and engineering fees, and
attorneys fees and expenses.
g. "Event of Default" means the occurrence or happening of any one of
the matters set forth in Section 8 hereof.
h. "Improvements" means the commercial properties described in the
Recitals and all other site improvements located within the
Property, and all other buildings, structures, utilities, signs and
fixtures now or hereafter located on the Property.
i. "Indebtedness" means the Note and also all other indebtedness and/or
other obligations of the Borrower to the Bank of any nature
whatsoever, whether debt, lease, contract or otherwise, whether
joint, several or joint and several, and whether represented by a
note or other instrument, or otherwise, now existing or hereafter
acquired or arising either directly or indirectly by assignment or
otherwise or pursuant to a guaranty.
j. "Guarantors" means Xxxx Xxxxx and Xxxxx Xxxxx, both individual
residents of Kentucky.
k. "Loan Documents" means this Loan Agreement, the Note, the Security
Instruments and all other instruments, documents or agreements
related to any of the foregoing. Any reference herein to the Loan
Documents or any particular Loan Document shall be deemed a
reference to such Loan Document or Loan Documents as the same may be
amended or modified from time to time by the parties thereto.
l. "Loan" shall have the meaning set out in Recital A.
m. "Note" shall have the meaning set out in Section 2.
n. "Person" or "party" means any individual, sole proprietorship,
partnership, joint venture, trust, limited liability company,
unincorporated organization, association,
2
corporation, other entity or group, institution, party or government
(whether federal, state, county, city, municipal or other) or agency
or division thereof.
o. "Possible Default" means an event, condition, or thing which, with
the lapse of any applicable grace period or the giving of notice, or
both, would constitute an Event of Default.
p. "Prime Rate" means at any time the interest rate per annum most
recently quoted or the highest of any range quoted from time to time
by The Wall Street Journal ("WSJ") as the "Prime Rate" or base rate
on corporate loans in effect at large U.S. money center commercial
banks. In the event the WSJ ceases to publish a "Prime Rate," the
"Prime Rate" shall be the interest rate designated and announced
from time to time by the Bank as its "Prime Rate" in effect at its
principal office, although such rate may not be the lowest rate
available at that particular time on loans of a similar nature.
q. "Property" means the real property, Improvements and all rights
appurtenant thereto described on Exhibit A attached hereto and
incorporated herein by this reference.
r. "Security Instruments" means all of the instruments and rights
securing the Indebtedness as referred to in Section 4 hereof and
otherwise.
s. Except as otherwise provided herein, all accounting terms used
herein shall be defined in accordance with generally accepted
accounting principles.
t. As used herein, any gender includes all other genders, and the
singular includes the plural and the plural includes the singular.
2. Amount. The Bank hereby agrees to make the Loan to the Borrower in the
maximum total amount of $410,700.00, which shall be disbursed upon the
execution of this Loan Agreement and the fulfillment of all conditions
precedent set forth herein or established by the Bank at the time of
execution of this Loan Agreement to be used to refinance the Property. The
Loan is evidenced by, shall bear interest at the rate established in, and
shall be payable and otherwise be made on the terms set forth in the Term
Note in the face principal amount of $410,700.00 made by Borrower to the
order of the Bank, executed contemporaneously herewith, as such Note may
hereafter be amended, modified, extended or renewed (herein the "Note"),
and on the terms established in this Loan Agreement. All payments on the
Note shall be made to the holder of the Note in immediately available
funds.
3. Term. The maturity date of the Note (herein the "Maturity Date"), at which
time all principal and accrued but unpaid interest on the Note shall be
due and payable, unless earlier payable pursuant to the terms of this Loan
Agreement or otherwise, is January 28, 2009. The Note may be prepaid at
any time without premium or penalty.
3
4. Security for the Indebtedness. The Indebtedness, including that evidenced
by the Note, is and shall be secured by and entitled to the benefits of
all the following:
a. Mortgage. The Mortgage (herein the "Mortgage") of even date herewith
from the Borrower granting to Bank a first and superior lien on the
Property and all Improvements located thereon to secure the
Indebtedness.
b. Right of Offset. The right of offset specified in Section 9c.
hereof.
c. Security Agreement. The Security Agreement (herein the "Security
Agreement") of even date herewith from the Borrower to the Bank
granting the Bank a first and prior security interest in all items
of Borrower's furniture, fixtures, and equipment to be located on
the Property, as more fully described therein.
d. Guaranty. The unconditional guaranty of the Guarantor as set forth
herein, in the Note and by separate agreement executed
contemporaneously therewith.
d. Financing Statement and Fixture Filing. The Financing Statement(s)
and Fixture Filing(s) executed and delivered by the Borrower to the
Bank contemporaneously with the execution of this Loan Agreement.
e. Assignment of Leases and Rents. That certain Assignment of Leases
and Rents, covering the Property and Improvements, of even date
herewith, whereby all leases, rents and profits from the Property
and Improvements are assigned to the Bank.
f. Other Security. Other security and instruments, if any, granted by
Borrower or any other person or entity to Bank, whether of even date
herewith or hereafter or heretofore so granted, to secure the Note
or any other Indebtedness.
5. Conditions Precedent. The Bank's obligations under this Loan Agreement,
shall be subject to the fulfillment to Bank's satisfaction prior to or at
the Closing of each of the following Conditions Precedent ("Conditions
Precedent") unless such condition or conditions shall be waived by Bank in
writing, in the sole discretion of the Bank:
a. Resolutions and Approvals. The Borrower shall furnish certified
copies of all consents, resolutions and approvals as may be required
by the Bank, evidencing approval of the execution of the Loan
Documents and the performance of all obligations contained therein
all in form and substance acceptable to the Bank. The Borrower shall
also furnish copies of the Borrower's Certificates of Existence from
the State of Kentucky Secretary of State's Office, recorded Articles
of Organization, and Operating Agreement.
b. Legal Opinion. The Bank shall have received a favorable written
opinion of Borrower's counsel acceptable to the Bank, dated and
effective as of the Closing, addressed to the Bank rendering the
opinions required by the Bank, with only
4
such modifications, exceptions, assumptions and qualifications as
shall be acceptable to the Bank.
c. Loan Documents. All the Loan Documents, and such other documents or
instruments as the Bank may reasonably require, shall have been duly
executed and delivered, and those instruments required to be
recorded in any public office are properly recorded.
d. Representations, Warranties and Covenants. All representations and
warranties of the Borrower contained herein shall be true and
correct and Borrower shall be in compliance with all covenants
contained in this Loan Agreement.
e. Title Insurance. A mortgagee title insurance policy (hereinbefore
described as the "Title Policy") from a title company satisfactory
to the Bank, in a form and with such endorsements as are required by
the Bank, showing the Mortgage as a first priority lien on 100% of
fee simple interest in the Property subject only to such exceptions
as the Bank may approve in its sole discretion.
f. Survey. A current property survey revealing no adverse matters not
acceptable to the Bank, certified by a licensed engineer and
surveyor approved by the Bank showing all easements, appurtenances,
encroachments and containing a legal description of the Property, as
well as a plot plan. The survey shall be sufficient in all respects
to have any general survey exception removed from the Title Policy.
The Bank shall also be supplied with a surveyor's certificate in a
form and substance acceptable to the Bank.
g. Taxpayer ID Number. An Internal Revenue Service taxpayer
identification number shall be provided for Borrower.
h. Appraisal. The Bank shall have obtained an acceptable appraisal of
the Property and Improvements from an appraiser acceptable to the
Bank in an amount satisfactory to the Bank.
i. (Intentionally Deleted)
j. Certificate Regarding Hazardous Substances. The Borrower shall
deliver to the Bank a certificate regarding hazardous substances by
which the Borrower shall agree to, among other things, indemnify the
Bank for any losses associated with the environmental condition of
the Property.
k. Other Conditions. Such other pre-conditions as the Bank may
reasonably establish.
6. Affirmative Covenants. The Borrower agrees that until the principal of,
and all interest on, the Note shall have been paid in full and this Loan
Agreement terminated, the Borrower shall perform and observe all the
following provisions:
5
a. Casualty and Liability Insurance. The Borrower shall:
1. Maintain, or cause to be maintained, fire, earthquake,
property damage and public liability insurance on the Property
and Improvements, naming the Bank as first mortgagee, loss
payee and additional insured, by standard mortgagee
endorsement, which insurance shall be in a form and in an
amount satisfactory to the Bank and with an insurer
satisfactory to the Bank. If required, the Borrower shall also
obtain adequate workers compensation insurance. The original
of each insurance policy required hereunder shall be delivered
to the Bank at or prior to the Closing. Each insurance policy
required by this Section shall contain an affirmative
statement by the insurer agreeing to give written notice to
the Bank at least thirty (30) days prior to cancellation or
amendment of such policy for any reason whatsoever. The
Borrower shall also furnish to the Bank (i) evidence that the
Property is not in a floodplain or (ii) flood insurance in an
amount and form satisfactory to the Bank
2. At or prior to the Closing and thereafter within ten (10) days
after written request by the Bank, furnish to the Bank full
information concerning such insurance described above and
promptly effect such additional insurance to protect against
additional risks and/or in additional amounts as the Bank may
request from time to time, with the Bank named as a mortgagee,
loss payee and an additional insured on all policies in effect
at Closing or thereafter.
b. Money Obligations. The Borrower shall pay in full:
1. Prior in each case to the date when penalties would attach,
all taxes, assessments and governmental charges and levies
(except only those so long as, and to the extent that, the
same shall be contested in good faith by appropriate and
timely legal proceedings and as to which the enforcement of
any lien or right of execution against property of the
Borrower is stayed), and
2. All its debts, obligations and liabilities on or prior to
their respective due dates for which it becomes legally liable
or to which any or all of its properties become legally
subject.
c. Financial Statements. The Borrower shall furnish to the Bank the
following:
1. As to the Borrower, (i) within 15 days after filing each
calendar year, a copy of the signed income tax returns of the
Borrower, and (ii) within 120 days after the end of each
calendar year, annual financial statements of Borrower for the
previous year, consisting of a balance sheet, income
statement, statement of changes in cash and the like, compiled
by a firm of
6
independent public accountants acceptable to the Bank, all of
which shall be certified by an authorized officer of the
Borrower, as applicable as being true, correct and accurate.
2. The Borrower shall furnish or cause to be furnished to Bank
within ten (10) days of a request by the Bank, such further
data and information relating to the financial affairs, assets
and liabilities of Borrower as Bank may from time to time
request.
d. Financial Records. The Borrower shall:
1. At all times keep true and complete financial records in
accordance with generally accepted accounting principles and
all financial statement required hereunder shall be prepared
in accordance with generally accepted accounting principles.
2. At all reasonable times, permit the Bank or its agents to
examine any or all of their financial records and to copy any
part or all of said records in any reasonable manner; and
3. Maintain the Borrower's books and records at the office of the
Borrower, or at such other reasonable place Borrower may
locate its records after notice to Bank.
e. Properties. The Borrower shall maintain its assets in good condition
and repair, subject only to normal wear and tear; and the Bank shall
have the right to inspect the same from time to time.
f. Legal Existence and Licenses. The Borrower shall preserve its legal
existence in good standing, and will maintain all permits, licenses
and other similar matters necessary or appropriate for the Property
and Improvements.
7. Representations and Warranties. The Borrower hereby represents and
warrants to the Bank as follows, which warranties and representations
shall be deemed to be continuing and shall survive the execution of this
Loan Agreement:
a. Existence and Licenses. Borrower is a duly organized, validly
existing limited liability company under the laws of the State of
Kentucky and shall maintain at all times, in full force and effect
all licenses and permits necessary or appropriate for its
businesses.
b. Right to Act. No registration with or approval of any governmental
agency of any kind is required for the due execution and delivery
of, or for the enforceability of, this Loan Agreement, the Note or
any of the Security Instruments or other Loan Documents except for
the recording in the appropriate public office of the Mortgage and
the Financing Statement(s). The Borrower has the legal power and
7
right to execute and deliver this Loan Agreement, the Note, the
Security Instruments and the other Loan Documents and to observe and
perform all of the provisions of such instruments and documents. The
Borrower's execution and delivery of this Loan Agreement, the Note
and Security Instruments or of any other writing relating to the
Loan, or the performance or observance by the Borrower of the
provisions of any of such instruments, do not violate or will
violate any law applicable to it or otherwise constitute a default
or violation under any existing contract or other obligation binding
upon it or its property, with or without the passage of time or the
giving of notice, or both. The persons or entities executing and
delivering this Loan Agreement, the Note, Security Instruments and
other Loan Documents on behalf of the Borrower have been duly
authorized to do so, and this Loan Agreement, the Note, the Security
Instruments and the other Loan Documents are legally binding upon
the Borrower, and are enforceable in accordance with their
respective terms.
c. Litigation and Taxes. No litigation or proceeding involving Borrower
is pending which may materially affect the properties or business of
the Borrower.
d. Financial Statements. The Borrower's financial statements,
heretofore furnished to the Bank, are true and complete, and fairly
present the Borrower's financial condition as of their dates. Since
the date of such statements, there has been no material adverse
change in the Borrower's financial condition, properties or
business.
e. Default. No Possible Default or Event of Default exists under this
Loan Agreement, nor will begin to exist immediately upon the
execution and delivery hereof.
f. Investment Company Act. The Borrower is not an "investment company"
or a company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
g. Regulation U. The Borrower is not engaged principally or as one of
its important activities in the business of extending credit for the
purpose of purchasing or carrying margin stock within the meaning of
Regulation U of the Board of Governors of the Federal Reserve
System.
h. Zoning. The Property is properly zoned for commercial purposes and
uses and for the use of the Property as commercial rental
properties. No state of facts exists which would render any portion
of the Property unavailable or unusable for the current use and
there exists no non-compliance with any applicable zoning, land use,
subdivision or environmental laws, regulations or ordinances
relative to the Property.
i. Environmental Matters. The Borrower hereby warrants and represents
to the Bank that to the best of its knowledge, the Property has not
been used for the
8
disposal or release of hazardous substances, as herein defined, or
petroleum, except the use of the Property for the dispensing of fuel
in accordance with applicable laws, and that during the course of
any prior investigation of, or construction on, the Property by the
Borrower no "hazardous substances" as defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), or petroleum were encountered, nor was there any
indication that any prior use of such property included the disposal
of petroleum or hazardous substances, as defined in CERCLA. Borrower
hereby agrees to indemnify and hold harmless the Bank from any and
all loss, cost, damage or expense (including reasonable attorneys'
fees) which may result from any of the aforesaid representations or
warranties being untrue at any time and for any liability which may
be incurred by the Bank under CERCLA or otherwise with respect to
the presence of hazardous substances or petroleum on the Property.
This indemnity shall survive the payment in full of the Loan and the
discharge and/or release of the Mortgage and shall also be set forth
in a separate Certificate Regarding Hazardous Substances to be
delivered to the Bank by the Borrower at the closing of the Loan.
8. Events of Default. Each of the following shall constitute an Event of
Default hereunder:
a. Payments. If any installment of principal or interest on the Note
shall not be paid in full punctually when due and payable and such
failure to pay continues for a period of ten (10) days, or if any
Event of Default occurs under this Loan Agreement or under any other
Loan Document.
b. Covenants and Agreements. If the Borrower or Guarantors shall
violate, fail or omit to perform or observe any covenant, agreement,
condition or other provision (other than referred to in Section 8a.
hereof) contained herein on the part of the Borrower to be
performed, and such failure or omission shall not have been fully
corrected to the complete satisfaction of the Bank within 15 days
(or such xxxxxxx xxxxx period as may be provided in the particular
instrument for the particular default) after the Bank has given
written notice thereof to the Borrower.
c. Failure to Pay Other Indebtedness. If the Borrower shall fail to pay
any material obligation it may legitimately have or be subject to
with respect to any Person within 15 days after the respective due
date or performance date thereof.
d. Accuracy of Statements. If any representation or warranty or other
statement of fact contained herein or in any of the Security
Instruments or in any writing, certificate, report or statement at
any time furnished to the Bank pursuant to or in connection with
this Loan Agreement or otherwise, shall be false or misleading in
any material respect or shall omit a material fact, whether or not
made with knowledge of same.
e. Judgments and Liens. If a final judgment or judgments for the
payment of money in excess of the sum of Fifty Thousand Dollars
($50,000.00) in the aggregate shall
9
be rendered against the Borrower, and such judgment or judgments
shall remain unsatisfied and in effect and shall not have been
discharged within thirty (30) consecutive days after the entry
thereof and execution thereon shall not have been stayed pending
appeal, or if so stayed, ten (10) days after the expiration of such
stay.
f. Solvency and Other Matters. If the Borrower shall (a) discontinue
business, or (b) make a general assignment for the benefit of its
creditors, or (c) apply for or consent to the appointment of a
custodian, receiver, trustee or liquidator of all or a substantial
part of its assets, or (d) be adjudicated insolvent, or have an
Order for Relief entered as to it in any bankruptcy proceeding, or
(e) file a voluntary petition in bankruptcy, be subject to an
involuntary petition in bankruptcy, or file a petition or an answer
seeking a composition, reorganization or an arrangement with
creditors or seeking to take advantage of any other law (whether
federal or state) relating to relief for debtors, or admit (by
answer, default or otherwise) the material allegations of any
petition filed against it in any bankruptcy, reorganization,
composition, insolvency or other proceeding (whether federal or
state) relating to relief for debtors, or (f) suffer or permit to
continue unstayed and in effect for ninety (90) consecutive days any
judgment, decree or order entered by a court or governmental agency
of competent jurisdiction, which assumes control of the Borrower or
approves a petition seeking a reorganization, composition or
arrangement of the Borrower or any other judicial modification of
the rights of any of its creditors, or appoints a custodian,
receiver, trustee or liquidator for the Borrower or for all or a
substantial part of any of its business or assets, or (g) be
enjoined or restrained from conducting all or a material part of any
of its business as now conducted and the same is not dismissed and
dissolved within ninety (90) days after the entry thereof.
9. Remedies Upon Default. Notwithstanding any contrary provision or inference
herein or elsewhere:
a. Optional Acceleration. If any Event of Default referred to in
Sections 8a. through 8e. hereof shall occur, the Bank, in its
absolute discretion, without further notice to the Borrower, may
declare all amounts of principal and interest evidenced by the Note
and all other Indebtedness, to be, whereupon the same shall be,
accelerated and immediately due and payable in full, all without any
presentment, demand or notice of any kind, all of which are hereby
expressly waived by the Borrower.
b. Automatic Acceleration. If any Event of Default referred to in
Section 8f. hereof shall occur, all of the Indebtedness including
that evidenced by the Note shall thereupon become accelerated and
immediately due and payable in full, all without presentment, demand
or notice of any kind, all of which are hereby expressly waived by
the Borrower.
10
c. Offsets. If any Event of Default shall occur or begin to exist, the
Bank shall have the right then, or at any time thereafter, to set
off against, and to appropriate and apply toward the payment of the
Indebtedness (in such order as the Bank may select in its sole
discretion), including but not limited to, the indebtedness
evidenced by the Note, whether or not such Indebtedness shall then
have matured or be due and payable and whether or not the Bank has
declared the Note and/or other Indebtedness to be in default and
immediately due, any and all deposit balances and other sums and
indebtedness and other property then held or owed by the Bank to or
for the credit or account of the Borrower, and in and on all of
which the Borrower hereby grants the Bank a first security interest,
lien and pledge to secure all the Indebtedness, all without notice
to or demand upon the Borrower or any other person, all such notices
and demands being hereby expressly waived.
d. Rights Under Security Instruments. If any Event of Default shall
occur, the Bank shall also have all rights and remedies granted it
under any and all of the Security Instruments securing or intended
to secure the Indebtedness.
e. Rights Cumulative. All of the rights and remedies of the Bank upon
occurrence of an Event of Default or Possible Default hereunder
shall be cumulative to the greatest extent permitted by law and
shall be in addition to all those rights and remedies afforded the
Bank at law or equity.
10. Interpretation. No course of dealing in respect of, nor any omission or
delay in the exercise of, any right, power, remedy or privilege by the
Bank shall operate as a waiver thereof, nor shall any right, power, remedy
or privilege of the Bank be exclusive of any other right, power, remedy or
privilege referred to herein or in any related document or 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
the Bank, either independently or concurrently with others, and as often
and in such order as the Bank may deem expedient. No waiver or consent
granted by the Bank in respect to this Loan Agreement, the Indebtedness or
any Security Instrument or related writing shall be binding upon the Bank,
unless specifically granted in writing by a duly authorized officer of the
Bank, which writing shall be strictly construed. Time shall be of the
essence in the performance of all the Borrower's obligations under this
Loan Agreement, the Note, the Security Instruments and the other Loan
Documents or other instruments related hereto. The provisions of this Loan
Agreement shall bind and benefit the Borrower and the Bank and their
respective successors, heirs, personal representatives and assigns,
including each subsequent holder, if any, of the Note or any other
Indebtedness. The several captions, section and subsection numbers and
index of this Loan Agreement are inserted for convenience only and shall
be ignored in interpreting the provisions of this Loan Agreement except
for purposes of reference to other parts of the Loan Agreement. This Loan
Agreement and the related writings 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. This Loan
Agreement and the other instruments referred to herein contain the entire
agreement of the parties pertaining to its subject matter and
11
supersede all prior written and oral agreements pertaining hereto. The
Borrower may not assign any of its rights under this Loan Agreement to any
other party. This Loan Agreement may be modified only in writing executed
by the Bank and Borrower. The invalidity or unenforceability, whether in
general or in any particular circumstance, of any provision of this Loan
Agreement, shall not affect its validity or enforceability in any other
circumstance, or any other provision hereof. The parties hereto hereby
agree that this Loan Agreement shall be so interpreted to give effect and
validity to all the provisions hereof to the fullest extent permitted by
law.
11. Notices. All notices required or permitted to be given hereunder shall be
given in writing and personally delivered or sent by registered or
certified U. S. mail, return receipt requested, postage prepaid, addressed
as follows (or to such other address as to which any party hereof shall
have given the other written notice):
If to Bank: Community Trust Bank, Inc.
Attn: Manager, Commercial Loan Department
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
If to Borrower: Robcor, LLC
Attn: Xx. Xxxx Xxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
If to Guarantors: Xxxx Xxxxx
Xxxxx Xxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
and shall be deemed given when actually delivered in person or when deposited in
the United States mails, in accordance with the foregoing, as applicable.
12. Survival of Covenants, Agreements, Warranties and Representations. All
covenants, agreements, warranties and representations made by the Borrower
herein shall survive the making of each disbursement hereunder and the
execution and delivery of the Note, this Loan Agreement and any and all
Security Instruments for the Note and other Indebtedness, and shall be
deemed to be continuing covenants, agreements, representations and
warranties at all times while any portion of the Indebtedness, including
the Note, remains unpaid.
13. Fees and Expenses. The Borrower shall pay all Closing Fees, including, but
not limited to, the attorney's fees and expenses of the Bank incurred in
preparing and revising this Loan Agreement, the Note and the Security
Instruments and all related documents and the filing and/or recording from
time to time of financing statements and/or other Security Instruments,
including all filing and/or recording fees and taxes and all note,
mortgage or security fees and/or taxes and also all other similar fees
and/or taxes. Further, in the event of any Event of Default under this
Loan Agreement, the Note or any
12
of the Security Instruments or any related instruments, the Borrower will
pay, to the extent allowable by applicable law, to the Bank such further
amounts as shall be sufficient to reimburse fully the Bank for all of its
costs and expenses of enforcing its rights and remedies under this Loan
Agreement, the Note and the Security Instruments, including without
limitation, the Bank's reasonable attorneys' fees, and appraisers' and
accountants' fees and court costs, and the same shall be deemed evidenced
hereby and secured by all the Security Instruments. All obligations
provided for in this Section shall survive termination or cancellation of
this Loan Agreement for any reason whatsoever.
14. JURY TRIAL WAIVER. BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES THE RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION BASED, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS LOAN AGREEMENT OR ANY OTHER LOAN DOCUMENT OR OUT OF ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER WRITTEN OR ORAL) OR
ACTIONS OF THE BORROWER OR THE BANK.
IN WITNESS WHEREOF, the parties hereto have executed this Loan Agreement
the day, month and year first above written.
ROBCOR, LLC, a Kentucky limited liability company
By: /s/ Xxxx Xxxxx
------------------------------------------
XXXX XXXXX, Member
/s/ Xxxxx Xxxxx
------------------------------------------
XXXXX XXXXX, Member
("Borrower")
COMMUNITY TRUST BANK, INC.
By: T. Xxxxx Xxxxxxxxxxx
------------------------------------------
Title: Vice-President
-----------------------------------
("Bank")
13
EXHIBIT "A"
Being all of parcels 2-A and 3-A of Tract "C" Blue Sky
Industrial Estate Subdivision, as shown by plat thereof
of record in Plat Book 25, Page 37, Fayette County
Clerk's Office, as further reflected on a Consolidation
Record Plat of a portion of said Blue Sky Industrial
Estates Tract "C", dated August 30, 1974, said two
tracts containing in the aggregate 3.996 acres of land;
being further described as all of Lots AA, BB, CC, DD,
EE, FF, GG, HH, II, JJ, KK, and LL as shown by amended
record plat of a portion of Blue Sky Industrial Estates,
Tract "C", Parcels 2-A & 3-A, appearing of record in
Plat Cabinet B, Slide 453 (erroneously referred to in
chain of title as Plat Cabinet B, Slide 435 and in the
previous deed as Plat Cabinet B, Slide 354), in the
aforesaid clerk's office.
BEING the same property conveyed to Robcor. LLC, a
Kentucky limited liability company, by BFI Waste Systems
of North America, Inc., a Delaware corporation, through
deed dated March 20, 2003, of record in Deed Book 2350,
Page 508, in the Fayette County Clerk's Office.
GAH/040359gh
TERM NOTE AND UNCONDITIONAL GUARANTY
$410,700.00 Lexington, Kentucky
January 28, 2004
FOR VALUE RECEIVED, the undersigned, ROBCOR, LLC, a Kentucky limited
liability company ( the "Maker"), hereby promises and agrees to pay to the order
of COMMUNITY TRUST BANK, INC., a Kentucky banking corporation, having a mailing
address of 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, its successors and
assigns (the "Bank"), the principal sum of Four Hundred Ten Thousand Seven
Hundred AND NO/100 DOLLARS ($410,700.00), or the amount actually disbursed and
outstanding hereon from time to time, together with all accrued interest thereon
computed and payable in the manner set forth below. The unpaid principal balance
of, and all accrued interest on, this Note, unless sooner paid, shall be due and
payable in full on January 28, 2009 (the "Maturity Date").
The indebtedness evidenced by this Note and the obligations created hereby
are secured by the "Security Instruments", as that term is defined in that
certain Loan Agreement of even date herewith (the "Loan Agreement") by and among
the Bank, the Maker, and the Guarantors, and such other and/or future security
granted the Bank by the Maker or others (collectively, the "Security
Instruments"). Further, this Note is the Note referred to in the Loan Agreement
and is entitled to all of the benefits thereof and security therefor. All terms
defined in the Loan Agreement, unless otherwise defined herein, shall have the
same meaning in this Note. The proceeds of this Note shall be used to refinance
various commercial properties located in Lexington, Fayette County, Kentucky.
From the date of this Note the outstanding principal balance of this Note,
as the same shall exist from time to time, shall bear interest at a daily
floating rate per annum equal to the Borrowing Rate established under the Loan
Agreement, calculated on the basis of an assumed 360-day year for the actual
number of days elapsed. The "Borrowing Rate" means, the Prime Rate in effect
from time to time calculated on the basis of an assumed 360-day year for the
actual number of days elapsed plus one-quarter of one percent (0.25%); provided
that the Borrowing Rate shall be no greater than 6.25% per annum. "Prime Rate"
means at any time the interest rate per annum most recently quoted or the
highest of any range quoted from time to time by The Wall Street Journal ("WSJ")
as the "Prime Rate" or base rate on corporate loans in effect at large U.S.
money center commercial banks. In the event the WSJ ceases to publish a "Prime
Rate," the "Prime Rate" shall be the interest rate designated and announced from
time to time by the Bank as its "Prime Rate" in effect at its principal office,
although such rate may not be the lowest rate available at that particular time
on loans of a similar nature.
Commencing February 28, 2004, and continuing on the 28th day of each
calendar month until the earlier of the Maturity Date or the date the principal
balance and all accrued but unpaid interest of this Note is paid in full, Maker
shall make monthly payments of principal and interest on this Note in an amount
sufficient to fully amortize the face amount of this Note over an amortization
period of twenty (20) years. Unless there is a change in the Borrowing Rate (as
set forth above), the monthly installment of principal and interest shall be
$2,544.00. All payments shall be applied to
accrued interest and principal as the Bank may elect. No partial prepayment of
this Note shall reduce or eliminate any payments required hereunder.
The Maker acknowledges that on the Maturity Date the entire outstanding
principal balance and all accrued but unpaid interest on this Note shall be due
and payable in full, notwithstanding anything herein that may be interpreted to
the contrary, resulting in a substantial balloon payment. The Maker further
acknowledges that the Bank has not agreed to extend the Maturity Date of this
Note or to refinance this Note.
If any installment of interest or principal on this Note is not paid by
the end of thirty (30) calendar days after the date it is due, the Bank may, at
any time thereafter, increase the interest rate applicable to the outstanding
principal balance of this Note to a rate which is two percent (2%) in excess of
the Interest Rate specified above otherwise applicable to the principal of this
Note (the "Default Rate"). In addition, if any installment of interest or
principal on this Note is not paid by the end of ten (10) calendar days after
the date it is due, the Makers shall pay to the Bank a late charge equal to 5%
of the payment missed. If any payment is made by check returned for
non-sufficient funds, the Maker shall pay to the Bank a service fee of $20.00
for each such returned item. The assessment or collection of Default Rate
interest, the late charge or any service fee shall not constitute a waiver of
any default resulting from any failure to timely pay any payment due pursuant to
this Note.
This Note may be prepaid in whole or in part at any time, without premium
or penalty. Any partial prepayment shall be applied first to accrued interest
due and owing on this Note, with the balance being applied to principal.
Provided, however, no partial prepayment shall postpone the due date of any
installment of interest due on this Note unless and until this Note is paid and
performed in full. The entire indebtedness evidenced by this Note shall, at the
option of the Bank, become immediately due and payable, should the Maker further
encumber, pledge, convey, transfer or assign any or all of its interest, legal
or equitable, in all or any portion of the property covered by the Mortgage of
even date granted by the Maker in favor of the Bank without the prior written
consent of the Bank or unless specifically allowed pursuant to the terms of the
Loan Agreement.
If (i) there is a default in the payment of principal and/or interest as
and when the same is or becomes due hereunder and the same continues for a
period of ten (10) days after such due date; (ii) the Maker fails in the timely
performance of any term, covenant or condition required to be kept, observed or
performed under this Note; or (iii) if any Event of Default occurs under the
Loan Agreement or any of the other "Loan Documents" as that term is defined in
the Loan Agreement; such occurrence, or the occurrence of more than one, shall
constitute an "Event of Default" under this Note. Upon the occurrence of any
Event of Default, the Bank or any subsequent holder of this Note may, without
notice or demand, declare all sums of principal and interest evidenced hereby to
be accelerated and immediately due and payable, and the Bank may thereupon
exercise all rights and remedies granted it by the Loan Agreement, the Security
Instruments, the other Loan Documents, or available to it in law or equity. Upon
any Event of Default under this Note, the Maker agrees to pay all costs of
collection, and/or costs relating to modifying or further securing the Note,
when incurred by the Bank, including, but not limited to, reasonable attorneys'
fees. If any suit or action
-2-
is instituted to enforce this Note, the Maker agrees to pay to the Bank, in
addition to the costs and disbursements otherwise allowed by law, such sums as
may be adjudged reasonable attorneys' fees, court costs, and all other expenses
in collecting or attempting to collect or securing or attempting to secure this
Note or in connection with any of the foregoing, provided the same is legally
allowed by the law of any state where the subject collateral or any part thereof
is situated, and under applicable federal law.
Failure of the Bank to exercise any of its rights and remedies shall not
constitute a waiver of the right to exercise the same at that or any other time.
All rights and remedies of the Bank following an Event of Default hereunder or
under any of the instruments referred to herein shall be cumulative to the
greatest extent permitted by law. Time shall be of the essence in the payment of
all installments of interest and principal on this Note and the performance of
the Maker's other joint and several obligations hereunder.
The Maker, and all endorsers or guarantors hereof and each of them, hereby
expressly waive presentment, demand, notice of dishonor, protest, notice of
protest and nonpayment and further waive all exemptions to which they may now or
hereafter be entitled under the laws of Kentucky or any other state or of the
United States, and further agree that the Bank or any subsequent holder hereof
shall have the right, without notice, to deal in any way, at any time, with the
Maker, endorsers, or guarantors hereof, and to grant the Maker hereof any
extension of time for payment of this Note, or any other indulgence or
forbearance whatsoever, and may release any security for the payment of this
Note, and/or modify the terms of any of the Security Instruments referred to
herein or otherwise securing or pertaining to this Note, and may release the
Maker, endorser or any guarantor of this Note from liability for payment hereof,
in every instance without the consent of the Maker, endorsers or guarantors
hereof and without in any manner affecting the liability of the Maker hereunder
or any guarantor or endorser hereof, and all without waiving any rights the Bank
or any subsequent holder of this Note may have hereunder or by virtue of the
laws of Kentucky or of any other state or of the United States. The liability of
the Maker and any guarantor hereunder and in connection herewith shall not in
any way be diminished, released, voided or adversely affected as a result of the
invalidity of any document relating to the loan evidenced hereby, including any
document or instrument purporting to secure the indebtedness evidenced by this
Note, or by the release of any or all of the security for the indebtedness
evidenced by this Note or as a result of the Bank not requiring any or all of
the Security Instruments to be executed or properly perfected and filed or as a
result of any other defect in the lien or security interest of the Bank on any
or all of the security for this Note even if through the fault or negligence of
the Bank. The Maker and each guarantor hereof acknowledges that the Bank may
perfect its security interest and/or lien on some, but not all of the collateral
described in the Security Instruments, and may or may not, at its sole option,
require any other or further security in connection herewith. The Maker and each
guarantor hereof hereby waive any and all claims and defenses arising out of, or
in any way relating to, such failure on the part of the Bank to perfect its
security interest in, and/or lien on, all, or any portion, of any collateral
intended to secure this Note. This Note is a full recourse joint and several
obligation of the Maker and each guarantor.
This Note shall be governed and construed in accordance with the laws of
the Commonwealth of Kentucky.
-3-
All payments due on this Note shall be paid to the Bank in immediately
available funds, at its principal place of business in Pikeville, Kentucky, or
to such other person or at such other address as the Bank or any subsequent
holder hereof may specify in writing from time to time.
The invalidity or unenforceability of any provision of this Note in
general or in any particular circumstance shall not affect the validity or
enforceability of any one or more of the other provisions of this Note or the
validity of such provision as applied to any other circumstance. The Maker
agrees that this Note and all provisions hereof shall be interpreted so as to
give effect and validity to all the provisions hereof to the fullest extent
permitted by law. Any references in this Note to the Loan Agreement, the
Security Instruments or any other document related to the loan evidenced hereby
shall be deemed to be references to such agreements, instruments and documents
as they now exist or are hereafter modified in writing by the parties thereto.
The undersigned, Xxxx Xxxxx and Xxxxx Xxxxx (hereinafter collectively
referred to as the "Guarantor"), hereby jointly and severally guarantees
unconditionally to the Bank the due and punctual payment of all sums due or to
become due under this Note, whether the same become due by virtue of an
acceleration following an Event of Default or otherwise. This is a joint and
several guaranty of payment and not of collection and the Guarantor does hereby
waive all guaranty and suretyship defenses. The unconditional joint and several
guaranty of the Guarantor is supplemented by the Guaranty Agreement attached to
this Note and incorporated herein by this reference.
IN WITNESS WHEREOF, the Maker and Guarantor have executed this Note on the
date first above written.
ROBCOR, LLC, a Kentucky limited liability company
BY:
------------------------------------------
XXXX XXXXX, Member
BY:
------------------------------------------
XXXXX XXXXX, Member
Address: 0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
("Maker")
----------------------------------------------
XXXX XXXXX, individually
----------------------------------------------
XXXXX XXXXX, individually
("Guarantor")
-4-
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "Guaranty") is made, entered into and
effective this 28th day of January, 2004, by and between (i) COMMUNITY TRUST
BANK, INC., a Kentucky banking corporation, having a mailing address of 000
Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 (the "Bank"), and (ii) XXXX XXXXX
and XXXXX XXXXX ( the "Guarantors", whether one or more).
RECITALS:
A. The Bank has agreed to extend a loan to ROBCOR, LLC, a Kentucky limited
liability company (the "Borrower"), in the principal amount of $410,700.00 (the
"Loan").
B. The Loan is evidenced by that certain Term Note and Unconditional
Guaranty of even date made jointly and severally by the Borrower and payable to
the order of the Bank in the face principal amount of $410,700.00 (the "Note"),
which Note is incorporated herein by reference.
C. In consideration of the substantial economic benefit of the Loan to the
Guarantors, the Guarantors have agreed to jointly and severally guaranty the
Borrower's obligations under the Note, pursuant to the terms and conditions of
this Guaranty.
NOW, THEREFORE, for and in consideration of the Recitals, and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the Guarantors hereby agree as follows:
1. Guaranty. The Guarantors do hereby personally, jointly and severally,
and absolutely guaranty unconditionally to the Bank (a) the due and punctual
payment of all installments of principal and/or interest now or in the future
due under the Note, as and when the same shall be due and payable thereunder in
accordance with its terms, and whether the same be declared due by the Bank
prior to its stated "Maturity Date," as such term is defined in the Note, by
virtue of an "Event of Default," thereunder, as such term is defined in the
Note, or under any of the "Security Instruments," as such term is defined in the
Note, or otherwise, (b) the due and punctual payment of all costs and expenses
incurred by the Bank in enforcing its rights and remedies under the Note, this
Guaranty, and/or any of the Security Instruments, including, without limitation,
the Bank's reasonable attorney's fees and court costs, and (c) the performance
by the Borrower of all covenants, agreements, and obligations, whether payment
or performance, of the Borrower under the Note and the Security Instruments (the
items described in (a) through (c) above are collectively referred to herein as
the "Obligations").
This is a joint and several guaranty of payment and not of collection and
shall in all respects be an absolute and unconditional guaranty, terminable only
upon the payment in full of the
-5-
Obligations. The joint and several liability of the Guarantors under this
Guaranty shall be direct and immediate and not conditional or contingent upon
the pursuit of any remedies against the Borrower or any other person, nor
against any security or liens available to the holder of the Note for payment.
If the Note is partially paid through the election of the Bank to pursue any of
its remedies or if the Note is otherwise partially paid, the Guarantors shall
remain jointly and severally liable for the entire unpaid principal balance of,
and all accrued but unpaid interest on, the Note and for the other Obligations.
2. Guarantors' Consent. The Guarantors consent and agree to each and every
of the following acts, events, and/or conditions, none of which shall in any
manner release, discharge, diminish, impair or affect the obligations or
liabilities of the Guarantors hereunder: (a) the whole or any part of the
security now or hereafter held for the Note may be exchanged, compromised,
surrendered, substituted or released from time to time; (b) the time or place of
payment of the Note or any other Obligation may be exchanged or extended, in
whole or in part, to a time certain or otherwise, and may be extended or renewed
for one or more periods (whether or not longer than the original period),
amended, or accelerated, in whole or in part; (c) the Borrower may be extended
further loans and be granted indulgences generally; (d) any of the provisions of
the Note or of any of the Security Instruments may be modified or waived; (e)
any party liable for the payment of the Note may be granted indulgences or
released; (f) neither the death, insolvency, bankruptcy, dissolution, nor
disability of the Borrower, any of the Guarantors, or any other guarantor shall
affect the obligations hereunder of the Guarantors; (g) no claim need be
asserted against the personal representative, guardian, trustee in bankruptcy or
receiver of any deceased, incompetent, bankrupt or insolvent Borrower, any of
the Guarantors or any other guarantor; (h) any deposit balance to the credit of
the Borrower, any of the Guarantors or any other party liable for payment of the
Note or liable upon any security therefor may be released from time to time in
whole or in part, at, before, or after the stated, extended or accelerated
maturity date of the Note. The undersigned Guarantors shall remain bound
hereunder, notwithstanding any such exchange, compromise, surrender,
substitution, extension, renewal, acceleration, modification, waiver,
indulgence, release or other action regarding the Note or the Security
Instruments, all of which may be effected without notice to or further consent
or agreement by any of the Guarantors. The consent of any of the Guarantors to
any of the foregoing actions in one or more instances shall not establish a
requirement for the consent of any Guarantor to any subsequent action or
actions.
3. Guarantors' Waivers. The Guarantors expressly waive: (a) notice of
acceptance of this Guaranty; (b) presentment and demand for payment of the Note;
(c) protest and notice of dishonor or default to any of the Guarantors or to any
other party with respect to the Note or any security for the Note; (d) demand
for payment under this Guaranty; (e) notice of disposition of any security for
the Note; (f) any right to require that an action be brought against the
Borrower or any other person prior to action against any of the Guarantors
hereunder; (g) any right to require that resort be had to any security for the
Note or to any balance of any deposit account or credit on the books of the
holder of the Note in favor of the Borrower or any other party prior to action
by Bank against any of the Guarantors hereunder; (h) notice of any advances or
other disbursements made under the Note or any other Security Instrument; (i)
all other notices to which the Guarantors may otherwise be entitled; and (j) all
suretyship and guarantor's defenses generally.
-6-
4. Treatment of Security and Security Instruments. The Note shall
constitute the primary, independent and continuing obligation of the Guarantors,
who shall be jointly and severally liable for payment of the debt evidenced by
the Note, the Security Instruments and/or any or all of the security for the
Note. The joint and several liability of the Guarantors hereunder and in
connection herewith shall not in any way be diminished, released, voided or
adversely affected as a result of (a) the Bank's not requiring any or all of the
Security Instruments to be executed or properly perfected and filed, (b) any
other defect in the lien or security interest of the Bank on any or all of the
collateral described in the Security Instruments or otherwise held as security
for the Note, even if through the fault or negligence of the Bank, (c) the
Bank's failure to perfect or to continue perfection in its security interest
and/or lien in or on anything serving as security for the Note or other
Obligations, (d) the Bank's failure to require any or all of the Security
Instruments to be executed and delivered, (e) the Bank's failure to keep any or
all of the Collateral properly insured, (f) the Bank's failure to properly care
for the Collateral, (g) the Bank's impairment of the Collateral in any manner
whatsoever, or (h) the Bank failing to require all documentation and/or
certificates described in the Loan Agreement relative to disbursements of the
proceeds of the Note.
5. Guarantors' Obligations Not Subject to Claims. The Guarantors'
Obligations shall not be subject to any counterclaim, setoff, deduction or
defense based upon any claim any of the Guarantors may have against the
Borrower, any other guarantor, or the Bank, and the obligations of the
Guarantors under this Guaranty shall remain in full force and effect without
regard to, and shall not be released, discharged or in any way modified or
affected by, any circumstance or condition (whether or not any of the Guarantors
shall have any knowledge or notice thereof), including, but not limited to, any
bankruptcy, insolvency, reorganization, arrangement, readjustment, composition,
liquidation or similar proceeding with respect to the Borrower or its properties
or its creditors, or any action taken by any trustee or receiver or by any court
in any such proceeding.
6. Acceleration of Guaranty Agreement. If any installment of principal
and/or interest on the Note and/or any of the other Obligations are not fully
paid when due (and following the lapse of any applicable grace period set forth
in the Note) and/or upon the occurrence of any other Event of Default in the
Note and/or the Security Instruments, the entire unpaid principal balance of and
all accrued and unpaid interest on the Note and the other Obligations shall, at
the sole option of the Bank, be deemed to be accelerated and immediately due and
payable in full for the purposes of this Guaranty and the joint and several
liability of the Guarantors hereunder.
7. Effect of Borrower's Bankruptcy, Etc. This Guaranty shall continue to
be effective or be reinstated, as the case may be, if at any time any payment
made under the Note or toward the satisfaction of any Obligation is rescinded or
must otherwise be returned by the Bank upon the insolvency, bankruptcy or
reorganization of the Borrower or otherwise, as though such payment had not been
made.
8. Jurisdiction and Venue. The Guarantors agree that any legal action or
proceeding against them arising out of this Guaranty may be brought in the
courts of the Commonwealth of Kentucky, including, but not limited to the Pike
Circuit Court, and hereby irrevocably consent and
-7-
submit to the jurisdiction of said courts. Nothing herein shall in any way be
deemed to limit the ability of the Bank to serve any writs, process or summons
in any other manner permitted by applicable law or to obtain jurisdiction over
the Guarantors in such other jurisdictions, and in such manner, as may be
permitted by applicable law. The Guarantors irrevocably waive any objection
which they either may now or hereafter have to the laying of the venue of any
suit, action or proceeding arising out of or in relation to this Guaranty
brought in the courts of the Commonwealth of Kentucky and also irrevocably waive
any claim that any such suit, action or proceeding brought in any one of those
courts has been brought in an inconvenient forum.
9. Waiver by Bank. No delay on the part of the Bank in the exercise of any
right or remedy shall operate as a waiver thereof, and no single or partial
exercise by the Bank of any right or remedy shall preclude other or future
exercises thereof, or the exercise of any right or remedy; nor shall any
modification or waiver of any of the provisions of this Guaranty be binding upon
the Bank except as expressly set forth in writing and duly signed and delivered
on behalf of the Bank.
10. Primary and Independent Obligation. The Obligations, including, but
not limited to the Note, shall constitute the primary and independent
obligations of the Guarantors, who shall be jointly and severally liable for the
Obligations, including, but not limited to, the payment of the debt evidenced by
the Note, notwithstanding the partial or total invalidity of any of the
Obligations, including, but not limited to, the Note.
11. Waiver of Rights. The Guarantors hereby fully and unconditionally
waive and release until the Bank shall have been irrevocably paid and the Note
discharged:
(a) Any and all rights of subrogation, contribution or reimbursement
with respect to or from the Borrower or the rights of the Bank in the event any
Guarantor is required to perform under this Guaranty; and
(b) Any and all rights to be subrogated, in whole or in part, to the
rights of the Bank arising out of or related to any of the Obligations between
the Bank and the Borrower (or any related instrument or document) or any secured
rights of the Bank in any assets of the Borrower which secure the indebtedness
of the Borrower to the Bank, in whole or in part, in the event any Guarantor
makes or is required to make any payment to the Bank pursuant hereto.
12. Subordination. The Guarantors do hereby agree that all debts,
obligations and liabilities of every kind and nature now or hereafter, if any,
owing to any and all of the Guarantors by the Borrower (the "Junior Debts") are
hereby fully and completely subordinated to the prior repayment of all of the
current and future indebtedness of the Borrower to the Bank, including, without
limitation, the Note (the "Senior Debt"). The Guarantors shall not seek, claim,
recover or accept any property, cash or other payments on account of the Junior
Debts from the Borrower or anyone on behalf of the Borrower until the Senior
Debt shall have been paid in full. The Guarantors hereby assign to the Bank all
of the Guarantors' rights to recover any property, cash or other payments on
account of the Junior Debts until the Senior Debt is paid in full and assign to
the Bank
-8-
the Guarantors' rights to administer and vote any claim of the Guarantors
against the Borrower in any bankruptcy or insolvency proceeding involving the
Borrower.
13. Heirs and Assigns. The provisions of this Guaranty shall be binding
upon the Guarantors and their heirs, personal representatives, successors and
assigns and shall inure to the benefit of the Bank and its successors, endorsees
and assigns.
14. Severability. The invalidity or unenforceability, whether in general
or in any particular circumstance, of any provision of this Guaranty, shall not
affect its validity or enforceability in any other circumstance, or any other
provision hereof. The Guarantors hereby agree that this Guaranty shall be so
interpreted to give effect and validity to all the provisions hereof to the
fullest extent permitted by law.
15. Time of the Essence. Time shall be of the essence in the performance
of all of the Guarantors' obligations under this Guaranty.
16. Governing Law. This Guaranty shall be construed in accordance with and
governed by the laws of the Commonwealth of Kentucky.
17. Guarantors' Maximum Liability. The maximum joint and several liability
of the Guarantors hereunder shall be $410,700.00. Notwithstanding the foregoing
maximum joint and several liability of the Guarantors, the Guarantors hereby
jointly and severally guaranty payment of interest accruing on the Obligations,
and all fees, charges and cost of collecting the Obligations, including
reasonable attorneys' fees. The date on which this Guaranty terminates shall be
March 1, 2010 (the "Termination Date"), which Termination Date shall not affect
the joint and several liability of the Guarantors with respect to (a)
Obligations created or incurred prior to the Termination Date or (b) extensions
or renewals of, interest accruing on, or fees, costs or expenses incurred with
respect to the Obligations on or after the Termination Date. The joint and
several liability of the Guarantors hereunder shall survive the payment in full
of the Note and other Obligations for a period of one year and one day after the
date the Note is paid in full and/or the Obligations are satisfied in full.
18. Counterparts. This Guaranty may be executed in several counterparts,
each of which shall be deemed an original and all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the Guarantors have executed this Guaranty as of the
day, month, and year first above written.
------------------------------------------------
XXXX XXXXX, individually
------------------------------------------------
XXXXX XXXXX, individually
("Guarantors")
GAH/040356gh
-9-
THIS LEASE, made and entered into this the 1st day of September, 2004, by
and between ROBCOR, LLC, a Kentucky Limited Liability Company (the "Landlord"),
with an address of Xxxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000; and INDUSTRIAL
MACHINERY SERVICES, LLC a Kentucky Limited Liability Company, with an address of
000 Xxxx Xxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxx 00000 ("Tenant") and Xxxxxx X. Xxxxx,
Xx., with an address of 000 Xxxx Xxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxx ("Xxxxx").
W I T N E S S E T H
The parties hereto agree as follows:
1. Demise and Use of Premises. Landlord hereby leases to Tenant and Tenant
hereby leases from Landlord the real property known as 000 Xxxx Xxx Xxxxxxx,
Xxxxxxxxx, Xxxxxxxx 00000 and more particularly described on Exhibit "A" hereto
(the "Premises"). Tenant shall use the Premises for the business of providing
machinery moving, relocating or installation services and shall use and occupy
the Premises in compliance with all applicable laws, statutes, ordinances, rules
and regulations of the federal, state, county and municipal authorities
applicable to the carrying on of said business. Landlord warrants that the
Premises are in compliance with all applicable laws, statutes, ordinances, rules
and regulations of the federal, state, county and municipal authorities
applicable to the Premises, including OSHA and any environmental laws, including
CERCLA. Landlord agrees to indemnify and hold Tenant harmless from any and all
costs (including attorneys fees) of any claims, actions or suits against Tenant
arising from any violation of such laws, statutes, ordinances, rules and
regulations applicable to the Premises which occurred prior to Tenant's
occupancy of Premises or which occur during Tenant's occupancy, but are not
caused by Tenant's action, inaction or omission.
2. Term. This Lease shall be for a term of five (5) years, beginning
September 1, 2004 and ending August 31, 2009. Prior to the beginning of the
Lease, Landlord agrees to have the exterior of the west side of the Premises
repaired. Tenant may terminate the Lease with six (6) months written notice to
the Landlord at the address set out above.
3. Rent. Tenant shall pay Landlord at Landlord's address set out above, or
at such other place as Landlord may designate in writing, the sum of Three
Thousand Five Hundred Dollars ($3,500.00) per month ("Rent"), due and payable in
advance on or before the fifth day of each and every month ("Due Date").
4. Utilities. Tenant shall be responsible for all utilities used in
connection with the Premises and shall be responsible for insuring the contents
of the Premises.
5. Taxes Insurance, and Expenses. Tenant shall be responsible for (a) all
real property taxes and governmental assessments on the Premises; (b) all
insurance in connection with the Premises; and (c) all maintenance, repair and
other costs in connection with the Premises, except as provided in Paragraphs 6
and 7 below. Tenant shall not suffer or permit any mechanic's liens to be filed
against the Premises and shall be responsible for its personal property taxes.
Landlord covenants that it has an adequate commercial insurance package in place
for the Premises which includes general liability, fire and extended coverages
with financially secure insurers. Tenant agrees to assume the cost of
maintaining the insurance package in place and Landlord hereby assigns to Tenant
all prepaid but unearned premiums to Tenant. Tenant shall have the right to add
itself as an additional insured to Landlord's commercial insurance package for
the Premises. Tenant agrees to maintain the fire and extended casualty coverage
currently in place for an amount not less than $600,000.00 during the term of
the Lease.
2
6. Surrender of Premises. Tenant agrees that upon termination of this
Lease, in any way, that it will yield up the Premises to Landlord in as good a
condition as when the same was entered upon by Tenant, ordinary wear and tear
and acts of God only excepted.
7. Indemnity. Except as otherwise provided herein, Tenant agrees to be
responsible for any damage to the Premises and all costs, losses, and claims
which may result from any use of the Premises, or any act done thereon by Tenant
or any person coming or being thereon by the license of Tenant, express or
implied, and will also indemnify and hold Landlord harmless from any liability
arising therefrom, including reasonable attorney's fees. Tenant further agrees
to carry and maintain general public liability insurance against claims for
injury, wrongful death or property damage occurring upon, in or about the
Premises, in amounts no less than $1,000,000.00, with reputable and financially
secure insurer(s). Tenant also agrees to add Robcor, LLC as an additional
insured on such policy.
8. Right of Entry. Landlord shall have the right to enter upon and inspect
the Premises upon forty-eight (48) hours notice to Tenant.
9. Signs. Landlord agrees that the Tenant shall be permitted to place a
sign on the building and the entrance door to its suite of offices and further
agrees that the name of the Tenant shall be placed on the bulletin board of said
Premises similar in size to the signs of the other tenants of the building.
10. Quiet Possession. Landlord agrees to turnover possession of the said
Premises to the Tenant upon the execution of this Lease. Landlord further
covenants that it is the lawful owner and is in possession of the Premises and
he has the good and lawful right to enter into the Lease with the Tenant for the
term and any extension thereof; that if Tenant discharges all of its liabilities
and complies with each and all the covenants, terms, conditions and provisions
hereof, then Tenant shall
3
have and enjoy during the term of this Lease, quiet and undisturbed possession
of the Premises for the use herein specified.
11. Improvements and Alterations. Tenant shall have the right from
time-to-time to make, at its own expense, any alterations to the then existing
improvements, or any part thereof, as in its opinion may be reasonably necessary
or desirable to the conduct, improvements or expansion of Tenant's business, so
long as it receives the written permission of the Landlord which shall not be
unreasonably withheld, and provided that the same shall conform with the
ordinances, statutes and laws of the Lexington-Fayette Urban County Government,
the Commonwealth of Kentucky and the United States Government.
12. Repairs. At its own expense, Landlord agrees to make all repairs to
the outside walls, interior window seals, and basic structure of the Premises so
that all leaks and water damage have been repaired to the satisfaction of the
Tenant. Thereafter, during the remaining term of the Lease, all additional
repairs shall be made by the Tenant. Landlord's obligation under this paragraph
shall not include any obligation to make repairs to the remodeling of the
Premises which is provided for in Section 11 above.
Tenant agrees to replace all light bulbs, flourescent tubing, HVAC filters
and agrees to maintain any equipment which Tenant causes to be installed on the
Premises. Tenant covenants that during the term of this Lease, it will be
responsible for and keep all parts of the Premises, improvements and
appurtenances thereto, in good, safe and tenable condition, and in good order
and repair, and will surrender all of the same to the Landlord upon the
termination of this Lease or any extension thereof, in as good a condition as
when received, ordinary wear and tear and acts of God excepted.
4
13. Casualty Loss. If during the term of this Lease or any renewal or
extension thereof, the Premises hereby leased shall be partially damaged by fire
or other casualty but not rendered untenable, the same shall be repaired with
all deliberate speed at the expense of the Landlord. If, however, during the
term of this Lease, said Premises shall be damaged by fire or other casualty so
that the Premises are rendered totally unfit for occupancy and cannot be
restored within ninety (90) days, then at the option of either the Landlord or
the Tenant, this Lease may be terminated from the date of such fire or other
casualty, by either party giving written notice to such effect within thirty
(30) days therefrom; and the rent shall be paid only for the portion of the
month prior to the date of such fire or other casualty and shall terminate upon
the date of same; and upon such termination, the Tenant shall immediately
surrender the Premises to the Landlord who may enter and repossess the said
Premises. In the event during the term of this Lease or any renewal or extension
thereof, said Premises shall be damaged by fire or other casualty so that said
Premises shall be rendered unfit for occupancy but can be restored within ninety
(90) days, then Landlord, at Landlord's own expense, shall promptly restore the
Premises to its former condition, and Tenant shall be excused from paying rent
for and during the term it is deprived of occupancy. If the Premises are
partially damaged and are not rendered untenable, and the Tenant desires to
remain in possession of the Premises under the terms of this Lease and while the
remainder is being repaired and restored to its prior condition, then the rent
to be paid by the Tenant shall be reduced on an equitable basis to the extent
the Tenant does not have full use of the Premises.
Landlord shall have no liability for any loss or injury to any personal
property of Tenant destroyed or damaged through casualty loss including, but not
limited to, any improvements, furniture, fixtures or equipment. Tenant may, at
its option, maintain insurance at its cost which protects Tenant's personal
property located on the demised premises from casualty loss.
5
14. Condemnation. If the whole or any part of the Premises shall be taken
under the power of eminent domain, then this Lease shall terminate as to the
part taken on the day when Tenant is required to yield possession thereof, and
Landlord shall make such repairs and alterations as may be necessary in order to
restore the part not taken to useful condition, and the rent shall be reduced
proportionately as to the portion of the Premises taken. If the portion of the
Premises is taken as to impair substantially the usefulness of the Premises for
the purpose for which the same are hereby leased, then either party may have the
option to terminate this Lease as of the date when the Tenant is required to
yield possession. All compensation awarded for such taking of the fee and
Landlord shall belong to and be the property of the Landlord.
15. Default. In the event the Tenant shall fail to keep and perform any of
the covenants of this Lease except for the nonpayment of rent, and such failure
continues for a period of thirty (30) days after written notice from the
Landlord to the Tenant stating in detail the nature of such default or breach,
and in the event the Tenant shall fail to remedy the default or breach stated in
said notice within the thirty (30) day period, then Landlord may enter upon the
Premises and repossess same, and thereupon this Lease, at the option of the
Landlord, may be terminated without prejudice, subject, however, to the right of
the Landlord to recover from the Tenant all rents due for the original term of
the Lease.
16. Non Payment of Rent. In the event the Tenant shall fail to pay any
installment of rent when due and said installment remains unpaid for a period of
fifteen (15) days after written notice from Landlord, the Landlord may enter
upon the Premises and repossess same without notice and, at Landlord's option,
may terminate this Lease.
17. Damage to Premises. Tenant shall not do or suffer any waste to the
building on the Premises and shall not overload the floors any more than they
are loaded at the time Tenant takes
6
possession of the Premises. Landlord shall provide the load limits for each
floor of the building to Tenant prior to the commencement of this Lease.
18. Assignment and Subletting. Tenant shall not assign, transfer or sublet
the Premises without the prior written consent of Landlord which consent shall
not be unreasonably withheld by the Landlord.
19. Sale Subject to Lease. Landlord agrees that the terms of this Lease,
and the estate created thereby shall continue in the event that Landlord shall
effect a bona fide sale and conveyance of the Premises to a third party.
20. Right of First Refusal. Tenant has a Right of First Refusal on the
Premises, which is set forth in Exhibit "B", attached hereto.
21. Xxxxx Guaranty. Xxxxx agrees that if he should cease to own a majority
of the ownership interest in the Tenant during the term hereof, he will enter
into a written guaranty agreement with the Landlord in which he will personally
guarantee the Tenant's performance of this Lease for the remaining term. The
terms of the written guaranty shall be in a form satisfactory to both the
Landlord and Tenant.
22. Entire Agreement. This Lease embodies the entire agreement between the
parties herein relative to the subject matter hereof and shall not be modified,
changed or altered in any respect, except in writing executed in the same manner
as this Lease by the parties hereto.
23. Choice of Law. This Lease shall be governed by the laws of the
Commonwealth of Kentucky, except for any conflicts of law provision. Any dispute
arising in any manner from this Lease or the alleged breach of the same shall be
resolved by arbitration at Lexington, Kentucky in accordance with the Rules for
Commercial Arbitration of the American Arbitration Association.
7
24. Binding Effect. This Lease shall be binding upon the parties hereto,
their respective heirs, successors, personal representatives or assigns.
25. Notices. All notices, requests, consents and other communications
hereunder shall be in writing, shall be addressed to the receiving party's
address set forth below or to such other address as a party may desigiate by
notice hereunder, and shall be either (i) delivered by hand, (ii) sent by
recognized overnight courier, (iii) made by telecopy or facsimile transmission,
or (iv) sent by registered or certified mail, return receipt requested, postage
prepaid,
If to the Tenant:
Industrial Machinery Services, LLC
000 Xxxx Xxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Xx.
Fax No.: (000) 000-0000
With a copy to:
Vimont & Xxxxx PLLC
000 X. Xxxx Xx., Xxx. 000
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
Fax No.: (000) 000-0000
If to the Landlord:
Xxxx Xxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
With a copy to:
Xxxxxxxx, Xxxxx & Xxxxx, PSC
000 X. Xxxx Xxxxxx
Xxxxxxxxxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxx, Esq.
Fax No.: (000) 000-0000
All notices, requests, consents and other communications hereunder shall
be deemed to have
8
been given (i) if by hand, at the time of the delivery thereof to the receiving
party at the address of such party set forth above, (ii) if sent by overnight
courier, on the next business day following the day such notice is delivered to
the courier service, (iii) if made by telecopy or facsimile transmission, at the
time that receipt thereof has been acknowledged by electronic confirmation or
otherwise or (iv) if sent by registered or certified mail, on the fifth business
day following the day such mailing is sent. The address of any party herein may
be changed at any time by written notice to the parties.
IN WITNESS WHEREOF, the parties hereto have set their hands this the day
and year first above written.
LANDLORD:
ROBCOR, LLC
BY: /s/ Xxxxxxx X. Xxxxx, member
------------------------------------
XXXXXXX X. XXXXX, Member
BY: /s/ V. Xxxxxxx Xxxxx
------------------------------------
V. XXXXXXX XXXXX, Member
TENANT:
INTERNATIONAL MACHINERY SERVICES, LLC
BY: /s/ Xxxxxx X. Xxxxx, Xx.
------------------------------------
XXXXXX X. XXXXX, XX., Member
/s/ Xxxxxx X. Xxxxx, Xx.
----------------------------------------
XXXXXX X. XXXXX, XX.
9
Exhibit "A"
Being all of parcels 2-A and 3-A of Tract "C" Blue Sky Industrial Estate
Subdivision, as shown by plat thereof of record in Plat Book 25, Page 37,
Fayette County Court Clerk's Office, as further reflected on a Consolidation
Record Plat of a portion of said Blue Sky Industrial Estates Tract "C" attached
hereto, and made a part hereof, dated August 30, 1974, said two tracts
containing in the aggregate 3.996 acres of land; being further described as all
of Lots AA, BB, CC, DD, EE, FF, GG, HH, II, JJ, KK and LL as shown by amended
record plat of a portion of Blue Sky Industrial Estates, Tract "C", Parcels 2-A
& 3-A, appearing of record in Plat Cabinet B, Slide 354 (erroneously referred to
in chain of title as Plat Cabinet B, Slide 435), in the aforesaid Clerk's
Office.
10
EXHIBIT "B"
THIS RIGHT OF FIRST REFUSAL, is effective as of the 1st day of September,
2004, by and between ROBCOR, LLC, a Kentucky Limited Liability Company with an
address of 0000 Xxxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000 ("Seller"), and
INDUSTRIAL MACHINERY SERVICES, LLC d/b/a INTERNATIONAL MACHINERY SERVICES, a
Kentucky Limited Liability Company, with an address of 000 Xxxx Xxx Xxxxxxx,
Xxxxxxxxx, Xxxxxxxx 00000 ("Buyer");
W I T N E S S E T H:
Notice is hereby given that Seller has granted Buyer a Right of First
Refusal as of the 1st day of September, 2004 ("the Right"). This Right is given
in conjunction with a Lease Agreement (the "Lease") executed by the parties on
the same date. The provisions of the Right are as follows:
1. Buyer shall have the right, for a period of five (5) years, to purchase
certain real property known as 000 Xxxx Xxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxx 00000,
which is more particularly described on Exhibit "A" attached hereto ("the
Premises"), including all buildings and improvements thereon owned by Seller,
for the price of $800,000. Said price is based on an appraisal conducted by X.
Xxxxx Toleman, MAI, SRPA, which is attached hereto as Exhibit "B",
2. If, during the term of this Right of First Refusal, Seller receives any
bona fide offer to purchase the Premises from a third party, Seller, before
making any sale or any agreement to sell, shall notify Buyer in writing of the
proposed purchaser, including the name of the proposed purchaser, the terms of
the purchase, and any other relevant information. Buyer, within thirty (30) days
after receipt of such notice, may exercise this right by written notice to
Sellor to that effect,
-1-
otherwise, Buyer's right of first refusal shall become null and void. Any sale
or transfer of the Premises, or spy part thereof, or of any premises of which
the Premises may be part shall be expressly made subject to all of the terms,
covenants and conditions of this Right.
3. If the buyer declines to exercise its Right but the Seller does not
consummate the sale which precipitated the notice to the Buyer within one
hundred (120) days of the original notice to Buyer, then this Right of First
Refusal shall be restored to the Buyer for the remaining term hereof.
4. All notices, requests, consents and other communications hereunder
shall be in writing, shall be addressed to the receiving party's address set
forth below or to such other address as a party may designate by notice
hereunder, and shall be either (i) delivered by hand, (ii) sent by recognized
overnight courier, (iii) made by telecopy or facsimile transmission, or (iv)
sent by registered or certified mail, return receipt requested, postage prepaid.
If to the Buyer:
Industrial Machinery Services, LLC
000 Xxxx Xxx Xxxxxxx
Xxxxxxxxx, XX 00000
Am: Xxxxxx X. Xxxxx, Xx.
Fax No.: (000) 000-0000
With a copy to;
Vimont & Xxxxx PLLC
000 X. Xxxx Xx., Xxx. 000
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
Fax No.: (000) 000-0000
-2-
If to the Seller:
Xxxx Xxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
With a copy to:
Xxxxxxxx, Xxxxx & Xxxxx, PSC
000 X. Xxxx Xxxxxx
Xxxxxxxxxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxx, Esq.
Fax No.: (000) 000-0000
All notices, requests, consents and other communications hereunder shall
be deemed to have been given (i) if by hand, at the time of the delivery thereof
to the receiving party at the address of such party set forth above, (ii) if
sent by overnight courier, on the next business day following the day such
notice is delivered to the courier service, (iii) if made by telecopy or
facsimile transmission, at the time that receipt thereof has been acknowledged
by electronic confirmation or otherwise, or (iv) if sent by registered or
certified mail, on the fifth business day following the day such mailing is
sent. The address of any party herein may be changed at any time by written
notice to the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Right of First
Refusal to be effective as of the day and year first above written.
ROBCOR, LLC
BY: /s/ Xxxxxxx X. Xxxxx, member
----------------------------------
XXXXXXX X. XXXXX, Member
BY: /s/ V. Xxxxxxx Xxxxx, member
----------------------------------
V. XXXXXXX XXXXX, Member
-3-
