Exhibit 10.10(d)
SECOND AMENDMENT TO
DEED OF LEASE
THIS SECOND AMENDMENT TO DEED OF LEASE ("Second Amendment")
is dated as of November 20, 1998, between the WEST VIRGINIA ECONOMIC
DEVELOPMENT AUTHORITY, a West Virginia statutory corporation
(statutory successor to the West Virginia Industrial and Trade Jobs
Development Corporation pursuant to West Virginia code & 5C-3-3(c) and
then & 31-15-3(a)), as "Lessor," and AMERICAN WOODMARK CORPORATION, a
Virginia corporation, as "Lessee," and recites:
RECITALS
A. Lessor and Lessee are parties to a certain Deed of
Lease dated July 9,1987 covering certain "Property" located in South
Fork District, Hardy County, West Virginia, recorded in the office of
the Clerk of the County Commission of Hardy County, West Virginia, in
Deed Book 195, at page 208, and amended by the Amendment to Deed of
Lease dated March 30,1992, recorded in the office of the Clerk of the
County Commission of Hardy County, West Virginia, in Deed Book 217, at
page 484 (as amended, the "Lease").
B. The undersigned desire and intend hereby to make a
Second Amendment to the Lease as hereinafter set forth:
AMENDMENT:
NOW, THEREFORE, in consideration of those promises and other
good and valuable consideration, the receipt of which is hereby
acknowledged, the undersigned agree as follows:
1. Schedules B (BASIC RENT AND BASIC RENT PAYMENT DATES)
and C (Applicable Purchase Price) to the Lease are deleted
in their entirety and new Schedules B and C attached hereto
arc substituted therefor.
2. Section 24, (a) of the Lease is amended and restated
to read as
follows:
24. Security Deposit.
(a) Lessee shall maintain throughout the term of
the
Lease, as security for its performance under the Lease, an
irrevocable letter of credit issued by a bank acceptable to
Lessor in an amount equal to the lesser of (i) $1,164,175.25
or (ii) an amount equal to 20% of the value of the Lease as
evidences by Schedule B as of the first day of August each
year. The Letter of Credit shall provide that it is
available by draft at sight on the issuer when accompanied
by the signed statement of Lessor, in the form provided by
the Letter of Credit, certifying that either (i) the Lessee
has defaulted in payment under the Lease (specifying the
default and the amount owing, making demand for same and
specifying deposit or wire transfer information applicable
to Lessor) or (ii) the Lessee has failed to cause the Letter
of Credit to be extended or replaced (making demand for the
full amount of the Letter of Credit and specifying the
deposit or wire transfer information applicable to Lessor).
3. Lessee confirms all representations and warranties
made by
Lessee in the Lease.
4. Except as hereinafter set forth, the Lease shall
remain in full force and
effect and is hereby ratified and confirmed.
WITNESS the following duly authorized signatures and seats.
LESSOR:
WEST VIRGINIA ECONONUC
DEVELOPMENT AUTHORITY
By: Xxxxx X. Xxxxxx
Its: Executive Director
LESSEE:
AMERICAN WOODMARK CORPORATION
By: Xxxxx Xxxxx
Its: Treasurer
STATE OF WEST VIRGINIA,
COUNTY OF KANAWHA, to-wit:
The foregoing instrument was acknowledged before me this
20th day of November, 1998 by Xxxxx X. Xxxxxx, Executive Director of
the West Virginia Economic Development Authority, a West Virginia
statutory corporation, on behalf of the corporation.
My commission expires: July 26, 1999 .
Xxxxxx X. Xxxxxxx
NOTARY PUBLIC
STATE OF Virginia ,
COUNTY OF Xxxxxxxxx , to-wit:
The foregoing instrument was acknowledged before me this
23rd day of November, 1998, by Xxxxx Xxxxx, Treasurer of American
Woodmark Corporation, a Virginia corporation, on behalf of the
corporation.
My commission expires: April 30, 1999
Xxxxxx Xxx Xxxxx
NOTARY PUBLIC
[SEAL]
XXXXXX XXX XXXXX
NOTARY PUBLIC, STATE OF VIRGINIA
My Commission Expires April 30,
1999
SCHEDULE B
BASIC RENT AND BASIC RENT PAYMENT DATES
The Basic Rent Payment Dates shall be on the 1st day of each
February and August. After November 25, 1998, the Basic Rent shall be
payable, in seventeen (17) equal semi-annual payments of principal and
interest payable in advance on the first day of each six-month period
commencing February 1, 1999. Tenant shall pay Basic Rent in an
amount equal to the amount necessary to fully amortize a loan in the
principal amount of $5,275,599.41 (the "Investment") together with
(i) interest calculated on the principal amount of $3,775,599.41
("Primary Investment") at the rate of 5.0% per annum (the "Variable
Rate") and (ii) interest calculated on the principal amount of
$1,500,000.00 at the fixed rate of 6.18% per annum for the period
from (and including) November 25, 1998 over the remaining term of the
Lease. Thus, before any adjustment occurs as described below, each
installment of Basic Rent shall equal $390,102.02; provided however,
on November 25, 1998. Tenant shall pay Basic Rent in an amount equal
to $17,016.16 adjusting the Basic Rent Payment applicable to the
$1,500,000.00 investment at the rate of 6.18% per annum for the
period from (and including) November 25, 1998 to (and including)
January 31, 1999.
Either Lessor or Lessee may elect to adjust the Basic Rent as of
each successive fifth (5th) anniversary date of the first day of the
first full calendar month following the Commencement Date (an
"Adjustment Date," and the first possible Adjustment Date being August
1, 1992) by giving notice of election to adjust the Variable Rate
applied to the Primary Investment to the other within thirty (30) days
following each such Adjustment Date. If notice of election to adjust
is given by either Lessor or Lessee, the Basic Rent due on and after
the Adjustment Date (and until and unless further adjustment occurs on
a subsequent Adjustment Date) shall be that amount necessary to fully
amortize the purchase price applicable an the date before the
Adjustment Date as determined by reference to Schedule C (and
recognizing that Schedule C will be revised after each adjustment in
Basic Rent) together with (i) interest calculated on the outstanding
principal amount of the Primary investment at the "Adjusted Rate" (as
hereafter defined) per annum eye the then remaining Term
and (ii) interest calculated on the outsmarting principal amount of
the $1,500,000.00 investment continuing at the fixed rate of 6.18% per
annum over the remaining Term, all payable in advance on the first day
of each six-month period commending with the then current Adjustment
Date.
The Adjusted Rate shall equal the sum of (i) the product of
75% multiplied by the "Prime Rate" announced as such (or any
equivalent term hereafter utilized by such publications) by The Wall
Street Journal to be the Prime Rate (i.e. the base rate on corporate
loans at large U.S. money center commercial banks) as of the
Adjustment Date (or as of the first day following the Adjustment Date
on which The Wall Street Journal shall be published if not published
as of the Adjustment Date) plus (ii) 0.5% per annum. If the Prime Rate
is expressed as a "spread" or range of rates, the Prime Rate shall be
deemed to be the higher of the two interest rates quoted. Thus, for
examples if the Prime Rate shall be deemed to be the higher of the two
interest rates quoted. Thus, for example if the Prime Rate were 9% as
of the first Adjustment Date and either party elected to adjust the
Basic Rent, the Adjusted Rate would be 6.5% and the adjusted Basic
Rent as of the thirty-first Adjustment Date and thereafter until the
next adjustment would be $400,879.66 per six-month.
In no event shall the Adjusted Rate ever increase or
decrease, by more than 2% per annum from the Adjusted Rate theretofore
in effect (it being understood that until the first adjustment occurs,
the Adjustment Rate on the Primary Investment for purposes of this
sentence and the following sentence only shall be 6.875% per annum.
Thus, if the Basic Rent was adjusted as of each Adjustment Date and if
a maximum 2% per annum increase in the Adjusted Rate were to result as
of each Adjustment Date, the Adjusted Rate on the Primary Investment
would equal 12.875% per annum as of the last five years of the Term;
and if the Basic Rent was adjusted as of each Adjustment Date, the
Adjusted Rate on the Primary Investment would equal 0.875% per annum
as of the last five years of the Term.
SCHEDULE B
(continued)
If The Wall Street Journal ceases to be published or ceases
to be a source of quotation of the Prime Rate, then there shall be
substituted such other nationally published source as Lessor and
Lessee shall agree, or if they cannot agree, the matter may be
submitted by either party to binding arbitration in accordance with
the rules of the American Arbitration Association. Inasmuch as the
Adjusted Rate will be determined (if at all) after the relevant
Adjustment Rate when the adjusted level of Basic Rent takes effect,
until the adjusted amount of Basic Rent is finally determined, Lessee
shall pay Basic Rent on the Adjustment Date in the amount in effect
before the Adjustment Date. If, as a consequence of the adjustment,
the amount of Basic Rent increases, Lessee shall pay the amount of the
increase within thirty (30) days after notice from Lessor as to the
new amount. If, as a consequence at the adjustment, the amount of
Basic Rent decreases, the excess in Basic Rent paid by Lessee on the
Adjustment Date shall be reimbursed by Lessor to Lessee within thirty
(30) days after notice from Lessee as to the new amount.
SCHEDULE C
After Basic March 30, 1992
Rent Payment Amended Applicable November 20, 1998 Amended Applicable
Number Purchase Price Amendment Purchase Price
------ -------------- ------------ --------------
Prior to Closing $3,775,599.41
After Closing $3,775,599.41 1,500,000.00 5,275,509.41
24 3,594,643.39 1,431,693.99 5,026,237.38
25 3,409,163.46 1,361,074.23 4,770,217.69
26 3,219,046.64 1,288,375.42 4,507,421.95
27 3,024,176.69 1,213,430.21 4,237,606.90
28 2,824,435.10 1,136,169.19 3,960,604.29
29 2,610,699.96 1,056,520.81 3,676,220.77
30 2,409,848.45 974,411.29 3,384,257.75
*31 2,194,746.60 889,764.59 3,084,511.20
32 1,974,269.26 802,502.31 2,776,771.57
33 1,748,279.98 712,543.62 2,460,823.60
34 1,516,640.97 619,806.21 2,136,446.18
35 1,279,210.99 524,201.18 1,803,412.16
36 1,035,845.25 425,642.98 1,461,488.23
37 786,395.37 324,039.34 1,110,434.71
38 530,709.25 219,296.15 750,005.39
39 268,630.97 111,316.39 379,947.36
40 1.00 0.00 1.00
*The 31st Basic Rent due date is the final Adjustment Date and the
March 30, 992 Amended Applicable Purchase Prices set forth above
assume (as to the purchase prices applicable after Basic Rent Payment
Number 31) that no adjustment in Basic Rent has occurred.
If there is an adjustment in Basic Rent as described in Schedule B,
this Schedule C shall be likewise adjusted as to the purchase prices
applicable on and after the Adjustment Date relative to the March
30,1992 Amended Applicable Purchase Price so that the purchase price
schedule resulting will equal the unpaid principal balance from time
to time of a loan made on the relevant Adjustment Date in the amount
of the purchase price applicable to the day before such Adjustment
Date and amortized by level semi-annual payments of principal and
interest in the amount of the adjusted Basic Rent and first paid on
the Adjustment Date. Thus, in continuation of the example described
in Schedule B, if the adjusted Basic Rent as of the 31st Adjustment
Date were $400,879.66 the revised Schedule C would appear as follows:
Hypothetical Example of Revised Schedule C:
After Basic March 30, 1992
Rent Payment Amended Applicable November 20, 1998 Amended Applicable
Number Purchase Price Amendment Purchase Price
------ -------------- --------- --------------
*31 $ 2,202,042.81 $ 889,764.59 $ 3,091,807.41
32 1,987,485.65 802,502.31 2,789,987.86
33 1,766,955.19 712,543.62 2,478,498.80
34 1,537,225.08 619,805.21 2,157,030.29
35 1,301,061.24 524,201.18 1,825,262.42
36 1,057,222.08 425,642.96 1,482,865.07
37 805,458.15 324,038.34 1,129,497.49
38 545,511.89 219,296.15 764,808.04
39 277,117.38 111,316.39 388,433.77
40 1.00 0.00 1.00