Contract
EXHIBIT 10.1
THIS
CREDIT AGREEMENT (this "Agreement") is entered into as of December 2, 2009 by
and between AMERICAN WOODMARK CORPORATION, a Virginia corporation ("Borrower"),
and XXXXX FARGO BANK, NATIONAL ASSOCIATION ("Bank").
Borrower
has requested that Bank extend credit to Borrower as described below, and Bank
has agreed to provide such credit to Borrower on the terms and conditions
contained herein.
ARTICLE
I
(a) Line of
Credit. Subject to the terms and conditions of this Agreement,
Bank hereby agrees to make advances to Borrower from time to time, not to exceed
at any time the aggregate principal amount of THIRTY-FIVE MILLION AND NO/100
DOLLARS ($35,000,000.00) ("Line of Credit"), the proceeds of which shall be used
to repay existing indebtedness of Borrower, to issue new and replacement letters
of credit for the account of Borrower and for working capital and general
business purposes. Borrower's obligation to repay advances under the
Line of Credit shall be evidenced by a Revolving Line of Credit Note dated of
even date herewith (as the same may have been modified or amended from time to
time, "Line of Credit Note"), all terms of which are incorporated herein by this
reference. Advances and availability under the Line of Credit shall be subject
to certain limitations more particularly set forth in the Security Agreement
(hereinafter defined).
(b) Letter of Credit
Subfeature. As a subfeature under the Line of Credit, Bank
agrees from time to time during the term thereof to issue or cause an affiliate
to issue one or more letters of credit for the account of Borrower (each, a
"Letter of Credit" and collectively, "Letters of Credit") and to extend or amend
outstanding Letters of Credit. The terms, form and substance of each
Letter of Credit and each such extension or amendment shall be subject to
approval by Bank, in its sole discretion. No Letter of Credit shall
have an expiration date subsequent to the maturity date of the Line of
Credit. The undrawn amount of all Letters of Credit shall be reserved
under the Line of Credit and shall not be available for borrowings
thereunder. Each Letter of Credit shall be subject to the additional
terms and conditions of the Letter of Credit agreements, applications and any
related documents required by Bank in connection with the issuance
thereof. Each drawing paid under a Letter of Credit shall be deemed
an advance under the Line of Credit and shall be repaid by Borrower in
accordance with the terms and conditions of this Agreement applicable to such
advances; provided however, that if advances under the Line of Credit are not
available, for any reason, at the time any drawing is paid, then Borrower shall
immediately pay to Bank the full amount drawn, together with interest thereon
from the date such drawing is paid to the date such amount is fully repaid by
Borrower, at the rate of interest applicable to advances under the Line of
Credit. In such event Borrower agrees that Bank, in its sole discretion, may
debit any account maintained by Borrower with Bank for the amount of any such
drawing.
(c) Borrowing and
Repayment. Borrower may from time to time during the term of
the Line of Credit borrow, partially or wholly repay its outstanding borrowings,
and reborrow, subject to all of the limitations, terms and conditions contained
herein or in the Line of Credit Note; provided however, that the total
outstanding borrowings under the Line of Credit shall not at any time exceed the
maximum principal amount available thereunder, as set forth above.
(a) Interest. The
outstanding principal balance of the Line of Credit and the amount of each
drawing under any Letter of Credit shall bear interest at a rate more
particularly set forth in the Line of Credit Note.
(b) Computation and
Payment. Interest shall be computed on the basis of a 360-day
year, actual days elapsed. Interest shall be payable at the times and place set
forth in the Line of Credit Note.
(c) Unused Commitment
Fee. Borrower shall pay to Bank a fee equal to one-quarter
percent (0.25%) per annum (computed on the basis of a 360-day year, actual days
elapsed) on the average daily unused amount of the Line of Credit (which unused
amount shall specifically exclude the aggregate face amount of all Letters of
Credit so that the fee shall not be paid for such aggregate face amount), which
fee shall be calculated on a quarterly basis by Bank and shall be due and
payable by Borrower in arrears.
(d) Letter of Credit
Fees. Borrower shall pay to Bank fees upon the issuance of
each Letter of Credit, upon the payment or negotiation of each drawing under any
Letter of Credit and upon the occurrence of any other activity with respect to
any Letter of Credit (including without limitation, the transfer, amendment or
cancellation of any Letter of Credit) determined in accordance with Bank's
standard fees and charges then in effect for such activity.
As
security for all indebtedness and other obligations of Borrower to Bank subject
to this Agreement, Borrower hereby grants to Bank a security interest in all
Borrower's Collateral as defined in and as more particularly described in (a)
that certain Security Agreement: Securities Account dated of even date herewith,
as the same may have been modified or amended from time to time and (b) that
certain Security Agreement: Specific Rights to Payment dated of even date
herewith, as the same may have been modified or amended from time to time
(collectively, "Security Agreement"). Borrower shall pay to Bank
immediately upon demand the full amount of all charges, costs and expenses (to
include fees paid to third parties but not allocated costs of Bank personnel),
expended or incurred by Bank in connection with any of the foregoing security,
including without limitation, financing statement filing fees.
ARTICLE
II
Borrower
makes the following representations and warranties to Bank, which
representations and warranties shall survive the execution of this Agreement and
shall continue in full force and effect until the full and final payment, and
satisfaction and discharge, of all obligations of Borrower to Bank subject to
this Agreement.
SECTION
2.1. LEGAL STATUS. Borrower is a corporation, duly
organized and existing and in good standing under the laws of the Commonwealth
of Virginia, and is qualified or licensed to do business (and is in good
standing as a foreign corporation, if applicable) in all jurisdictions in which
such qualification or licensing is required or in which the failure to so
qualify or to be so licensed could reasonably be expected to have a material
adverse effect on the financial condition or operation of Borrower.
ARTICLE
III
(a) Approval of Bank
Counsel. All legal matters incidental to the extension of
credit by Bank shall be satisfactory to Bank's counsel.
(b) Documentation. Bank
shall have received, in form and substance satisfactory to Bank, each of the
following, duly executed:
(i) This
Agreement and each promissory note or other instrument or document required
hereby, including, without limitation, the Line of Credit Note and the Security
Agreement;
(ii) A
Certificate of Incumbency;
(iii) Corporate
borrowing resolutions; and
(iv) Such
other documents as Bank may require under any other Section of this
Agreement.
(c) Financial
Condition. There shall have been no material adverse change,
as reasonably determined by Bank, since July 31, 2009 in the financial condition
or business of Borrower, nor any material decline, as reasonably determined by
Bank, since July 31, 2009 in the market value of any collateral required
hereunder or a substantial or material portion of the assets of
Borrower.
(d) Insurance. Borrower
shall have delivered to Bank evidence of insurance coverage on all Borrower's
property, in such amounts and covering such risks as are customarily carried by
companies engaged in similar businesses and owning similar properties in
localities where Borrower operates and issued by financially sound and reputable
insurance companies.
(e) Additional Due
Diligence. Bank shall have received any and all additional due
diligence information, as reasonably requested by Bank or its counsel, and all
such information shall have been deemed satisfactory in form and detail to Bank
or its counsel in its sole discretion.
(a) Representations and
Warranties. The representations and warranties of Borrower
contained herein and in each of the other Loan Documents shall be true on and as
of the date hereof and on the date of such extension of credit, with the same
effect as though such representations and warranties had been made on and as of
such date, except to the extent that such representations and warranties
specifically relate to an earlier date, in which case they shall be true on and
as of such earlier date.
(b) Events of
Default. No Event of Default (hereinafter defined), and no
condition, event or act which with the giving of notice or the passage of time
or both would constitute an Event of Default, shall have occurred and be
continuing as of the date hereof or on the date of such extension of
credit.
(c) Security Agreement
Limitations. All limitations on advances and availability
under the Line of Credit more particularly set forth in the Security Agreement
shall be satisfied as of the date hereof and on the date of such extension of
credit.
(d) Documentation. Bank
shall have received all additional documents which may be requested under
Section 4.3 hereof.
ARTICLE
IV
Borrower
covenants that so long as Bank remains committed to extend credit to Borrower
pursuant hereto, or any liabilities (whether direct or contingent, liquidated or
unliquidated) of Borrower to Bank under any of the Loan Documents remain
outstanding, and until payment in full of all obligations of Borrower subject
hereto, Borrower shall, unless Bank otherwise consents in writing:
(a) not
later than 120 days after the end of each fiscal year of Borrower, a
consolidated balance sheet of Borrower and its consolidated subsidiaries as of
the end of such fiscal year and the related consolidated statements of income or
operations, shareholders' equity and cash flows for such fiscal year, all
audited by a registered independent public accounting firm of nationally
recognized standing;
(b) not
later than 45 days after the end of each of the first three fiscal quarters of
each fiscal year of Borrower, a consolidated balance sheet of Borrower and its
consolidated subsidiaries as of the end of such fiscal quarter and the related
consolidated statements of income or operations, shareholders' equity and cash
flows for such fiscal quarter and for the portion of such fiscal year then
ended, all certified by the chief executive officer, chief financial officer,
treasurer, or corporate controller of Borrower as fairly presenting in all
material respects the financial condition, results of operations and cash flows
of Borrower and its consolidated subsidiaries in accordance with generally
accepted accounting principles, subject only to normal year-end audit
adjustments and the absence of footnotes;
(c) contemporaneously
with the reports described in the preceding Section 4.3(b), a report of
litigation pending, or to the best of Borrower's knowledge threatened, against
Borrower, provided such reports (i) have been certified as to their accuracy by
the chief executive officer, chief financial officer, treasurer, or corporate
controller of Borrower, and (ii) disclose, at a minimum, all claims in excess of
$500,000 or $1,500,000 in the aggregate;
(d) either
(i) such written and/or oral authorizations as may be necessary in order to
permit the Bank to obtain duplicate copies of brokerage statements and
statements of balances for the brokerage and deposit accounts secured by the
Security Agreement, or (ii) not later than 15 days after and as of the end of
each month, a brokerage statement and statement of balances for the brokerage
and deposit accounts secured by the Security Agreement;
(e) contemporaneously
with each annual and quarterly financial statement required hereby, a
certificate of the chief executive officer, chief financial officer, treasurer,
or corporate controller of Borrower that there exists no Event of Default nor
any condition, act or event which with the giving of notice or the passage of
time or both would constitute an Event of Default; and
(f) from
time to time such other information regarding the financial condition or
operation of Borrower or compliance with the Loan Documents as Bank may
reasonably request.
All
financial statements required to be delivered pursuant to Section 4.3(a) or (b)
may be delivered electronically and, if so delivered, shall be deemed to have
been delivered on the date (i) on which Borrower posts such documents, or
provides a link to such documents, on Borrower's website on the Internet at
xxx.xxxxxxxxxxxxxxxx.xxx
or (ii) on which such documents are posted on Borrower's behalf on an internet
or intranet website, if any, to which Bank has access (whether a commercial or
third party website or whether sponsored by Bank); provided that (A) Borrower
shall deliver paper copies of such documents to Bank if Bank so requests and (B)
Borrower shall notify Bank (by telecopier or electronic mail) of the posting of
such documents.
(a) Maintain
a ratio of Total Liabilities to Tangible Net Worth of not greater than 0.9 to
1.0 measured at the end of each fiscal quarter of Borrower, with "Total
Liabilities" defined as the aggregate of current liabilities and non-current
liabilities, direct or indirect, liquidated, contingent or otherwise, including
guaranties or endorsements, less subordinated debt (to the extent expressly
permitted by the Bank), and with "Tangible Net Worth" defined as the aggregate
of total stockholders' equity prior to accumulated and other comprehensive
income (but to include accumulated other comprehensive losses), less goodwill
and other assets treated, in accordance with generally accepted accounting
principles, as intangibles, plus subordinated debt (to the extent expressly
permitted by the Bank).
ARTICLE
V
Borrower
further covenants that so long as Bank remains committed to extend credit to
Borrower pursuant hereto, or any liabilities (whether direct or contingent,
liquidated or unliquidated) of Borrower to Bank under any of the Loan Documents
remain outstanding, and until payment in full of all obligations subject hereto,
Borrower will not, without Bank's prior written consent:
(a) any
indebtedness or liabilities of Borrower to Bank;
(b) any
indebtedness or liabilities of Borrower existing as of the date hereof and
described on Schedule
5.3 attached hereto and any renewals, refinancings and extensions
thereof, provided that (i) the amount of such indebtedness or liabilities is not
increased at the time of such renewal, refinancing or extension except by an
amount equal to a reasonable premium or other reasonable amount paid, and fees
and expenses reasonably incurred, in connection with such renewal, refinancing
or extension, and (ii) the terms of such renewal, refinancing or extension,
taken as a whole, are not less favorable to Borrower and its subsidiaries than
the terms of the indebtedness or liabilities being renewed, refinanced or
extended;
(c) any
indebtedness or liabilities (contingent or otherwise) existing or arising under
any rate swap, currency swap, option or other similar transaction (whether or
not governed by or subject to a master agreement), provided that (i) such
indebtedness or liabilities are (or were) entered into by Borrower in connection
with indebtedness or liabilities of Borrower permitted pursuant to clause (b)
above, (ii) such indebtedness or liabilities are (or were) entered into by
Borrower in the ordinary course of business for the purpose of directly
mitigating risks associated with liabilities, commitments, investments, assets,
or property held or reasonably anticipated by Borrower, or changes in the value
of securities issued by Borrower, and not for purposes of speculation or taking
a “market view;” and (iii) the related contract does not contain any provision
exonerating the non-defaulting party from its obligation to make payments on
outstanding transactions to the defaulting party;
(d) any
purchase money indebtedness or purchase money liabilities (including obligations
in respect of capital leases or synthetic leases) incurred after the date hereof
to finance the purchase of fixed assets and any renewals, refinancings and
extensions thereof; provided, however, that such indebtedness or liabilities
shall not exceed, at any one time, $3,000,000 in the aggregate; and
(e) any
indebtedness or liabilities not contemplated by the foregoing clauses in an
aggregate, committed principal amount not to exceed $1,000,000 at any one time
outstanding.
(a) loans,
advances or investments existing as of the date hereof and described on Schedule 5.6 attached
hereto;
(b) investments
in the form of cash or cash equivalents;
(c) loans
or advances made to employees of Borrower or any subsidiary of Borrower in the
ordinary course of business; provided, however, that such loans or advances
shall not exceed, at any one time, $500,000 in the aggregate;
(d) accounts
receivable or notes receivable arising from the grant of trade credit in the
ordinary course of business, and instruments received in satisfaction or partial
satisfaction thereof from financially troubled account debtors to the extent
reasonably necessary in order to prevent or limit loss;
(e) investments
arising as a result of dispositions permitted under Section 5.4(b);
and
(f) loans,
advances or investments not contemplated by the foregoing clauses in an
aggregate, committed principal amount not to exceed $1,000,000 at any one time
outstanding; provided, however, that Borrower shall promptly notify Bank of all
loans, advances or investments made by Borrower under this Section 5.6(f) of
which Borrower’s chief executive officer, chief financial officer or treasurer
has knowledge.
(a) any
mortgage, pledge, security interest or lien in favor of Bank;
(b) any
mortgage, pledge, security interest or lien existing as of the date hereof and
described on Schedule
5.8 attached hereto and any renewals, refinancings or extensions thereof,
provided that no additional property is made subject thereto;
(c) any
mortgage, pledge, security interest or lien (other than any lien imposed under
ERISA) for taxes, assessments or governmental charges or levies (i) not yet due
or (ii) (A) which Borrower is in good faith contesting or as to which a bona
fide dispute has arisen and (B) for which Borrower has made provision, in
accordance with generally accepted accounting principles, for eventual payment
thereof in the event Borrower is obligated to make such payment;
(d) statutory
landlord liens, liens of carriers, warehousemen, mechanics, materialmen and
suppliers and other liens imposed by law or pursuant to customary reservations
or retentions of title arising in the ordinary course of business, provided that
(i) such liens secure only amounts not yet due and payable, (ii) such liens are
unfiled and no other action has been taken to enforce such liens or (iii) such
liens secure amounts (A) which Borrower is in good faith contesting or as to
which a bona fide dispute has arisen and (B) for which Borrower has made
provision, in accordance with generally accepted accounting principles, for
eventual payment thereof in the event Borrower is obligated to make such
payment;
(e) pledges
or deposits in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other social security legislation
(other than any lien imposed under ERISA) and deposits in the ordinary course of
business securing liability insurance carriers under insurance or self-insurance
arrangements;
(f) deposits
to secure the performance of bids, trade contracts, operating leases, statutory
obligations, surety and appeal bonds, performance bonds and other similar
obligations incurred in the ordinary course of business;
(g) easements,
rights-of-way, restrictions and other similar encumbrances affecting real
property which do not materially detract from the value of the property subject
thereto or materially interfere with the ordinary conduct of the business of
Borrower;
(h) security
interests or liens securing judgments for the payment of money (or appeal or
other surety bonds relating to such judgments) not constituting an Event of
Default under Section 6.1(e);
(i) security
interests or liens securing indebtedness or liabilities permitted under Section
5.3(d); provided that (i) such security interests or liens do not at any time
encumber any property other than the property financed by such indebtedness or
liabilities and (ii) such security interests or liens attach to such property
concurrently with or within ninety days after the acquisition
thereof;
(j) security
interests or liens in favor of lessors relating to operating
leases;
(k) normal
and customary rights of setoff or similar rights or remedies with respect to
deposit accounts or other funds in favor of banks or other depository
institutions;
(l) liens
of a collection bank arising under Section 4-210 of the Uniform Commercial Code
on items in the course of collection; and
(m) any
mortgage, pledge, security interest or lien not contemplated by the foregoing
clauses, provided that (i) the aggregate principal amount secured by such
mortgage, pledge, security interest or lien shall not at any time exceed
$1,000,000 at any one time outstanding and (ii) no condition, event or act which
with the giving of notice or the passage of time or both would constitute an
Event of Default shall exist at the time of or would result from the creation,
incurrence or assumption of such mortgage, pledge, security interest or
lien.
Notwithstanding
anything contained herein to the contrary, no provision of this Section 5.8
shall permit Borrower to mortgage, pledge or grant or permit to exist a security
interest in, or lien upon, all or any portion of the brokerage and deposit
accounts secured by the Security Agreement.
ARTICLE
VI
SECTION
6.1. The occurrence of any of the following shall constitute an
"Event of Default" under this Agreement:
(a) Borrower
shall fail to pay (i) when due, any principal payable under any of the Loan
Documents, (ii) within five business days after the same becomes due, any
interest or fees payable under any of the Loan Documents or (ii) within seven
business days after the same becomes due, any other amounts payable under any of
the Loan Documents.
(b) Any
financial statement or certificate furnished by Borrower to Bank in connection
with, or any representation or warranty made by Borrower under, this Agreement
or any other Loan Document shall prove to be incorrect, false or misleading in
any material respect when furnished or made.
(c) Any
default by Borrower in the performance of or compliance with any obligation,
agreement or other provision contained herein or in any other Loan Document
(other than those referred to in subsections (a) and (b) above) and, with
respect to any default of a covenant contained in Article IV or any other
default which the Bank deems capable of cure in its sole discretion, such
default shall continue for thirty (30) days after the sooner of (i) that date on
which Borrower receives written notice of an Event of Default from Bank, or (ii)
that date on which a Responsible Officer receives notice of such default or
otherwise obtains knowledge of such default.
(d) Any
default by Borrower in the payment of any one or more obligations for borrowed
money in an aggregate amount in excess of $1,000,000 or any one or more defined
events of default under the terms of any contract or instrument (other than any
of the Loan Documents) governing any one or more obligations for borrowed money
pursuant to which Borrower has incurred any debt or other liability to any
person or entity, including Bank, in an aggregate amount in excess of
$1,000,000.
(e) The
filing of one or more notices of judgment liens against Borrower in an aggregate
amount in excess of $1,000,000; or the recording of any one or more abstracts of
judgment against Borrower in an aggregate amount in excess of $1,000,000 in any
county in which Borrower has an interest in real property; or the service of one
or more notices of levy and/or of writs of attachment or execution, or other
like processes, against the assets of Borrower in an aggregate amount in excess
of $1,000,000; or the entry of one or more judgments against Borrower in an
aggregate amount in excess of $1,000,000.
(f) Borrower
shall become insolvent, or shall suffer or consent to or apply for the
appointment of a receiver, trustee, custodian or liquidator of itself or any
material portion of its property, or shall generally fail to pay its debts as
they become due, or shall make a general assignment for the benefit of
creditors; Borrower shall file a voluntary petition in bankruptcy, or seeking
reorganization, in order to effect a plan or other arrangement with creditors or
any other relief under the Bankruptcy Reform Act, Title 11 of the United States
Code, as amended or recodified from time to time ("Bankruptcy Code"), or under
any state or federal law granting relief to debtors, whether now or hereafter in
effect; or any involuntary petition or proceeding pursuant to the Bankruptcy
Code or any other applicable state or federal law relating to bankruptcy,
reorganization or other relief for debtors is filed or commenced against
Borrower and such petition or proceeding continues undischarged or unstayed for
60 days, or Borrower shall file an answer admitting the jurisdiction of the
court and the material allegations of any such involuntary petition; or Borrower
shall be adjudicated a bankrupt, or an order for relief shall be entered against
Borrower by any court of competent jurisdiction under the Bankruptcy Code or any
other applicable state or federal law relating to bankruptcy, reorganization or
other relief for debtors; or Bank shall reasonably believe that one or more of
the foregoing events or circumstances is imminent.
(g) Any
impairment of the rights of Bank in any of the Collateral or Proceeds (as such
terms are defined in the Security Agreement) or the service of one or more
notices of levy and/or of writs of attachment or execution, or other like
processes against any Collateral or Proceeds.
(h) Any
event or series of events by which, during the 12 month period immediately
preceding any such determination, a majority of the members of the board of
directors of Borrower cease to be composed of individuals (i) who were members
of such board on the first day of such period, (ii) whose election or nomination
to such board was approved by individuals referred to in clause (i) above
constituting at the time of such election or nomination at least a majority of
such board, or (iii) whose election or nomination to such board was approved by
individuals referred to in clauses (i) and (ii) above constituting at the time
of such election or nomination at least a majority of such board (excluding, in
the case of both clause (ii) and clause (iii) above, any individual whose
initial nomination for, or assumption of office as, a member of such board
occurs as a result of an actual or threatened solicitation of proxies or
consents for the election or removal of one or more directors by any person or
group and not as a result of a solicitation for the election of one or more
directors by or on behalf of such board).
(i) The
dissolution or liquidation of Borrower; or Borrower or its directors shall take
action seeking to effect the dissolution or liquidation of
Borrower.
ARTICLE
VII
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BORROWER:
|
American
Woodmark Corporation
0000
Xxxxxxx Xxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxx Xxxxx
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BANK:
|
Xxxxx
Fargo Bank, National Association
0000
Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxx X. Xxxxxx
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or to
such other address as any party may designate by written notice to all other
parties. Each such notice, request and demand shall be deemed given
or made as follows: (a) if sent by hand delivery, upon delivery; (b)
if sent by mail, upon the earlier of the date of receipt or three (3) days after
deposit in the U.S. mail, first class and postage prepaid; and (c) if sent by
telecopy, upon receipt.
SECTION
7.10. GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the Commonwealth of
Virginia.
(a) Arbitration. The
parties hereto agree, upon demand by any party, to submit to binding arbitration
all claims, disputes and controversies between or among them (and their
respective employees, officers, directors, attorneys, and other agents), whether
in tort, contract or otherwise in any way arising out of or relating to (i) any
credit subject hereto, or any of the Loan Documents, and their negotiation,
execution, collateralization, administration, repayment, modification,
extension, substitution, formation, inducement, enforcement, default or
termination; or (ii) requests for additional credit.
(b) Governing
Rules. Any arbitration proceeding will (i) proceed in a
location in Virginia selected by the American Arbitration Association ("AAA");
(ii) be governed by the Federal Arbitration Act (Title 9 of the United States
Code), notwithstanding any conflicting choice of law provision in any of the
documents between the parties; and (iii) be conducted by the AAA, or such other
administrator as the parties shall mutually agree upon, in accordance with the
AAA‘s commercial dispute resolution procedures, unless the claim or counterclaim
is at least $1,000,000.00 exclusive of claimed interest, arbitration fees and
costs in which case the arbitration shall be conducted in accordance with the
AAA‘s optional procedures for large, complex commercial disputes (the commercial
dispute resolution procedures or the optional procedures for large, complex
commercial disputes to be referred to herein, as applicable, as the
"Rules"). If there is any inconsistency between the terms hereof and
the Rules, the terms and procedures set forth herein shall
control. Any party who fails or refuses to submit to arbitration
following a demand by any other party shall bear all costs and expenses incurred
by such other party in compelling arbitration of any dispute. Nothing contained
herein shall be deemed to be a waiver by any party that is a bank of the
protections afforded to it under 12 U.S.C. §91 or any similar applicable state
law.
(c) No Waiver of Provisional
Remedies, Self-Help and Foreclosure. The arbitration
requirement does not limit the right of any party to (i) foreclose against real
or personal property collateral; (ii) exercise self-help remedies relating to
collateral or proceeds of collateral such as setoff or repossession; or (iii)
obtain provisional or ancillary remedies such as replevin, injunctive relief,
attachment or the appointment of a receiver, before during or after the pendency
of any arbitration proceeding. This exclusion does not constitute a
waiver of the right or obligation of any party to submit any dispute to
arbitration or reference hereunder, including those arising from the exercise of
the actions detailed in sections (i), (ii) and (iii) of this
paragraph.
(d) Arbitrator Qualifications
and Powers. Any arbitration proceeding in which the amount in
controversy is $5,000,000.00 or less will be decided by a single arbitrator
selected according to the Rules, and who shall not render an award of greater
than $5,000,000.00. Any dispute in which the amount in controversy
exceeds $5,000,000.00 shall be decided by majority vote of a panel of three
arbitrators; provided however, that all three arbitrators must actively
participate in all hearings and deliberations. The arbitrator will be
a neutral attorney licensed in the Commonwealth of Virginia or a neutral retired
judge of the state or federal judiciary of Virginia, in either case with a
minimum of ten years experience in the substantive law applicable to the subject
matter of the dispute to be arbitrated. The arbitrator will determine
whether or not an issue is arbitratable and will give effect to the statutes of
limitation in determining any claim. In any arbitration proceeding the
arbitrator will decide (by documents only or with a hearing at the arbitrator's
discretion) any pre-hearing motions which are similar to motions to dismiss for
failure to state a claim or motions for summary adjudication. The
arbitrator shall resolve all disputes in accordance with the substantive law of
Virginia and may grant any remedy or relief that a court of such state could
order or grant within the scope hereof and such ancillary relief as is necessary
to make effective any award. The arbitrator shall also have the power
to award recovery of all costs and fees, to impose sanctions and to take such
other action as the arbitrator deems necessary to the same extent a judge could
pursuant to the Federal Rules of Civil Procedure, the Virginia Rules of Civil
Procedure or other applicable law. Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction. The
institution and maintenance of an action for judicial relief or pursuit of a
provisional or ancillary remedy shall not constitute a waiver of the right of
any party, including the plaintiff, to submit the controversy or claim to
arbitration if any other party contests such action for judicial
relief.
(e) Discovery. In
any arbitration proceeding, discovery will be permitted in accordance with the
Rules. All discovery shall be expressly limited to matters directly
relevant to the dispute being arbitrated and must be completed no later than 20
days before the hearing date. Any requests for an extension of the
discovery periods, or any discovery disputes, will be subject to final
determination by the arbitrator upon a showing that the request for discovery is
essential for the party's presentation and that no alternative means for
obtaining information is available.
(f) Class Proceedings and
Consolidations. No party hereto shall be entitled to join or
consolidate disputes by or against others in any arbitration, except parties who
have executed any Loan Document, or to include in any arbitration any dispute as
a representative or member of a class, or to act in any arbitration in the
interest of the general public or in a private attorney general
capacity.
(g) Payment Of Arbitration Costs
And Fees. The arbitrator shall award all costs and expenses of
the arbitration proceeding.
(h) Miscellaneous. To
the maximum extent practicable, the AAA, the arbitrators and the parties shall
take all action required to conclude any arbitration proceeding within 180 days
of the filing of the dispute with the AAA. No arbitrator or other party to an
arbitration proceeding may disclose the existence, content or results thereof,
except for disclosures of information by a party required in the ordinary course
of its business or by applicable law or regulation. If more than one
agreement for arbitration by or between the parties potentially applies to a
dispute, the arbitration provision most directly related to the Loan Documents
or the subject matter of the dispute shall control. This arbitration
provision shall survive termination, amendment or expiration of any of the Loan
Documents or any relationship between the parties.
[SIGNATURE
PAGES FOLLOW]
|
C-202_VA.DOC
(Rev. 05/09)
|
--
|
[SIGNATURE
PAGE]
BORROWER:
AMERICAN
WOODMARK CORPORATION, a Virginia corporation
|
|
By:
|
________________________(SEAL)
|
|
|
Xxxxxxxx
X. Xxxx,
|
|
|
Vice
President Finance and CFO
|
|
C-202_VA.DOC
(Rev. 05/09)
|
--
|
[SIGNATURE
PAGE]
BANK:
XXXXX
FARGO BANK, NATIONAL ASSOCIATION
By: ________________________(SEAL)
Name: ________________________
Title: ________________________
|
C-202_VA.DOC
(Rev. 05/09)
|
--
|
SCHEDULE
2.4
LITIGATION
None
|
C-202_VA.DOC
(Rev. 05/09)
|
--
|
SCHEDULE
2.11
ENVIRONMENTAL
MATTERS
|
1.
|
Claimant
|
Defendant
|
AWC
Exposure
|
Date of
Notice
|
Risk of
Loss
|
|
North
Carolina DEHNR
|
Seaboard
Group
|
Approximately
$84,000
|
03/26/91
|
Probable
|
|
|
Case
Description: Seaboard Chemical Corp. operated a waste
disposal site in North Carolina until 1990. When the North
Carolina Department of Environment, Health and Natural Resources refused
to renew their license, Seaboard went bankrupt and was financially unable
to close (reclaim) the site. North Carolina law dictates that
those participating in waste disposal have ultimate responsibility for
closure and clean-up of waste disposal sites. Because American
Woodmark disposed of hazardous waste at the Seaboard site from 1980-1988,
the company has responsibility for closing the
site.
|
|||||
|
2.
|
Claimant
|
Defendant
|
AWC
Exposure
|
Date of
Notice
|
Risk of
Loss
|
|
Virginia
DEQ
|
American
Woodmark Corporation
|
12/31/05
|
Remote
|
||
|
Case
Description: The Virginia Department of
Environmental Quality notified American Woodmark that the company
has a potential predicted exceedance of the National Ambient Air Quality
Standard. Because American Woodmark is a significant
contributor (one who contributes 80% of the exceedance), the company is
required to notify VDEQ of the corrective actions it will take to meet the
national standard.
|
|||||
|
3.
|
Claimant
|
Defendant
|
AWC
Exposure
|
Date of
Suit
|
Risk of
Loss
|
|
Xxxxxx
Services Site PRP Group
|
American
Woodmark Corporation
|
Unknown
|
05/05/06
|
Probable
|
|
|
Case
Description: The Xxxxxx Services Corp. Site (formerly
known as the Thermal Xxx Site), located in Rock Hill, South Carolina, is
environmentally contaminated. American Woodmark believed its
waste was being incinerated at the site but has no proof of
incineration. The company has shared responsibility to clean-up
the site.
|
|||||
|
C-202_VA.DOC
(Rev. 05/09)
|
--
|
|
4.
|
Claimant
|
Defendant
|
AWC
Exposure
|
Date of
Suit
|
Risk of
Loss
|
|||
|
LWD,
Inc. Site
|
EPA
|
$ | 45,000 |
Likely
|
||||
|
Case
Description: The LWD, Inc. Site is an environmental super fund
site. American Woodmark delivered paint waste to the site for
incineration. The Environmental Protection Agency has notified
American Woodmark that the company is required to share the cost of
cleaning up the site. The EPA has completed most of the site
clean-up.
|
||||||||
|
5.
|
Claimant
|
Defendant
|
AWC
Exposure
|
Date of
Suit
|
Risk of
Loss
|
|||
|
EPA
|
American
Woodmark Corporation
|
$ | 44,000 |
Unknown
|
||||
|
Case
Description: The Environmental Protection Agency has notified
American Woodmark that the hazardous waste storage container located at
the company's Hardy County facility is not an approved storage
container.
|
||||||||
|
C-202_VA.DOC
(Rev. 05/09)
|
--
|
SCHEDULE
5.3
OTHER
INDEBTEDNESS
|
1.
|
The
following letters of credit, issued by Bank of America, N.A. for the
account of Borrower:
|
|
BENEFICIARY
|
NUMBER
|
EXPIRY
DATE
|
AMOUNT
|
||||||
|
Lumbermens
Mutual Casualty Co., American Motorists Insurance Co., American
Manufacturers Mutual Insurance Co., American Protection Insurance
Co.
|
3053652 |
2/1/2010
|
$ | 80,000.00 | |||||
|
The
Travelers Indemnity Company/Credit Risk Management
|
3054907 |
3/1/2010
|
$ | 145,000.00 | |||||
|
XL
Specialty Insurance Company, Greenwich Insurance Company
|
3074321 |
3/1/2010
|
$ | 1,750,000.00 | |||||
|
XL
Specialty Insurance Company, Greenwich Insurance Company
|
3081226 |
3/1/2010
|
$ | 1,750,000.00 | |||||
|
2.
|
The
following notes or leases:
|
|
LENDER
|
TRANSACTION
|
ORIGINAL
BALANCE
|
BALANCE
AS OF 10/31/09
|
|||||||
|
The
Coal Fields Regional Industrial Authority (Perry, Xxxxxx, Xxxxxx,
Breathitt Regional Industrial Authority)
|
Note
|
$ | 6,000,000 | $ | 4,722,628 | |||||
|
West
Virginia Economic Development Authority
|
Note
|
$ | 1,000,000 | $ | 343,451 | |||||
|
West
Virginia Economic Development Authority
|
Lease
|
$ | 10,000,000 | $ | 8,450,760 | |||||
|
Maryland
Economic Development Corporation – State of Maryland
|
Note
|
$ | 1,484,320 | $ | 1,484,320 | |||||
|
County
Commissioner of Allegany County – State of Maryland
|
Note
|
$ | 750,000 | $ | 750,000 | |||||
|
The
Industrial Development Board of The City of Humboldt,
Tennessee
|
Lease
|
$ | 26,561,085 | $ | 20,322,289 | |||||
|
Xxxxxx'
Cabinet Corporation
|
Note
|
$ | 4,500,000 | $ | 4,500,000 | |||||
|
Xxxxxx'
Cabinet Corporation
|
Note
|
$ | 4,000,000 | $ | 4,000,000 | |||||
|
County
Commissioner of Xxxxxxx County – State of Maryland
|
Note
|
$ | 1,290,555 | $ | 1,290,555 | |||||
|
C-202_VA.DOC
(Rev. 05/09)
|
--
|
SCHEDULE
5.6
LOANS,
ADVANCES, INVESTMENTS
1. Xxxxxx'
Cabinet Corporation – 5,000 Shares
|
C-202_VA.DOC
(Rev. 05/09)
|
--
|
SCHEDULE
5.8
PLEDGE OF
ASSETS
|
1.
|
Bank
of America, N.A. (first lien on deposit account nos. 91000134059813 and
91000134059826 maintained by Borrower with Bank of America, N.A. and all
funds now or hereafter on deposit in such deposit
account)
|
|
2.
|
Maryland
Economic Development Corporation (first lien on real property located at
00000 Xxxxxx Xxxx Xxxxx, XX, Xxxxxxxxxx,
Xxxxxxxx 21502)
|
|
3.
|
County
Commissioners of Allegany County (second lien on real property located at
00000 Xxxxxx Xxxx Xxxxx, XX, Xxxxxxxxxx,
Xxxxxxxx 21502)
|
|
4.
|
West
Virginia Economic Development Authority (first lien on real property,
equipment, machinery and fixtures located at 117 Southfork Road,
Moorefield, West
Xxxxxxxx 26836)
|
|
5.
|
Coal
Fields Regional Industrial Authority, Inc. (first lien on real property
located at 000 Xxxxxxxx Xxx, Xxxxxxx,
Xxxxxxxx 41727)
|
|
6.
|
County
Commissioners of Xxxxxxx County (first lien on approximately 37 acres of
real property located at Xxxxxx’x Ridge Business Park, Xxxxxxx County,
Maryland)
|
6964069_7.DOC
|
C-202_VA.DOC
(Rev. 05/09)
|
--
|