EXHIBIT 2.3
LOAN AND SECURITY AGREEMENT
THIS LOAN AGREEMENT (this "AGREEMENT") is made as of this ____ day of
June, 2003 by and between XXXXXXXX CHALLENGE FORESTS FUNDING USA LIMITED, a New
Zealand corporation (the "LENDER"), and AMERICAN WOOD MOULDING, L.L.C., a
Delaware limited liability company (the "BORROWER").
WITNESSETH:
The Borrower has requested that the Lender make a loan to Borrower in
the principal amount of SIX MILLION and No/100 DOLLARS ($6,000,000.00) and
provide a letter of credit in the principal amount of THREE MILLION and No/100
DOLLARS ($3,000,000) and the Lender is willing to accommodate the Borrower upon
and subject to the terms, conditions, and provisions of this Agreement.
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
SECTION 1. Definitions.
All accounting terms not specifically defined herein shall have the
meanings assigned to them as determined by generally acceptable accounting
principles, consistently applied. Unless the context otherwise requires, when
used herein, the following terms shall have the following meanings:
1.1. "ACQUISITION" is defined in Section 5.1 hereof.
1.2. "COLLATERAL" has the meaning set forth in Section 2.4 hereof.
1.3. "EVENTS OF DEFAULT" means those events set forth in Section 6
hereof.
1.4. "EXPENSE PAYMENT" means a payment advanced by the Lender
pursuant to the provisions of Section 5.11 hereof, each such payment being
called an "Expense Payment" and collectively the "Expense Payments".
1.5. "XXXXXXXX LETTER OF CREDIT" means that certain letter of
credit provided, or to be provided, by the Lender to LaSalle Business Credit,
LLC, a Delaware limited liability company, successor-in-interest to LaSalle
Business Credit, Inc., or its designee (any such party, including any of their
successors and/or assigns, hereinafter "LASALLE") in the aggregate amount
not to exceed Three Million Dollars ($3,000,000.00), in form and substance
acceptable to LaSalle, and provided in connection with the Acquisition.
1.6. "LIABILITIES" means the obligation of the Borrower to pay (a)
the unpaid principal amount of the Note, plus all accrued and unpaid interest
thereon, (b) all unpaid Expense Payments, (c) all unpaid Liquidation Costs, (d)
any Xxxxxxxx Letter of Credit Reimbursement Obligations and (e) all other
charges, interest, and expenses chargeable by the Lender to the Borrower under
this Agreement and any of the other Loan Documents.
1.7. "LIEN" means any mortgage, deed of trust, pledge, security
interest, assignment, encumbrance, lien, or charge of any kind, including,
without limitation, any conditional sale or other title retention agreement, any
lease in the nature thereof, and the filing of or agreement to give any
financing statement under the Uniform Commercial Code of any jurisdiction.
1.8. "LIQUIDATION COSTS" means all expenses, charges, costs, and
fees (including without limitation attorneys' fees and expenses) of any nature
whatsoever advanced, paid or incurred by or on behalf of the Lender in
connection with (a) the collection or enforcement of any of the Liabilities, and
(b) the collection or enforcement of any of the Loan Documents, and (c) any
costs incurred by the Lender as a result of an Event of Default.
1.9. "LOAN" means the loan in the principal amount of Six Million
Dollars ($6,000,000) to be made by the Lender to the Borrower pursuant to the
terms and conditions of this Agreement.
1.10. "LOAN DOCUMENTS" means, collectively, the Note, this
Agreement, and any other instrument, document, and agreement now and hereafter
evidencing, securing, guarantying, indemnifying, and given by the Borrower or
any third party in connection with the Loan or any of the other Liabilities
(including those documents set forth in Section 3 hereof) and any and all
amendments thereto and modifications thereof.
1.11. "NOTE" means that Promissory Note described in Section 2.02
hereof and any and all amendments thereto and modifications thereof.
1.12. "PERSON" includes a corporation, an association, a
partnership, an organization, a business, an individual, or a government or
political subdivision thereof or governmental agency.
1.13. "TAXES" means all taxes and assessments whether general or
special, ordinary or extraordinary, or foreseen or unforeseen, of every
character (including all penalties or interest thereon), which at any time may
be assessed, levied, confirmed, or imposed on the Borrower or any of its
properties or assets or any part thereof or in respect of any of its franchises,
businesses, income, or profits, and all claims for sums which by law have or
might become a lien or charge upon any of its properties or assets.
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SECTION 2. Loan to the Borrower.
2.1. Commitment. The Lender agrees, at the request of the Borrower,
and subject to and in accordance with the terms, conditions, and provisions of
this Agreement, to (a) make a loan to the Borrower on even date herewith in the
principal amount of $6,000,000.00 (the "LOAN"), and (b) provide the Xxxxxxxx
Letter of Credit to LaSalle, for the benefit of the Borrower. The commitment of
the Lender to make the Loan and provide the Xxxxxxxx Letter of Credit pursuant
to the provisions of this Agreement is herein called the "COMMITMENT".
2.2. Note. The Loan shall be evidenced by and repaid in accordance
with the terms of the Borrower's Promissory Note to the Lender, in form and
content satisfactory to the Lender, of even date herewith, duly executed by the
Borrower, and in the principal amount of the Loan (the "NOTE").
2.3. Xxxxxxxx Letter of Credit. The Lender hereby agrees to cause
the Xxxxxxxx Letter of Credit to be issued to LaSalle on behalf of the Borrower.
The Borrower irrevocably directs the Lender to pay without further investigation
any demand appearing to be validly made under the Xxxxxxxx Letter of Credit. The
Borrower's obligations under this clause are not to be impaired by any waiver or
time granted to or by the Lender, the invalidity of the Xxxxxxxx Letter of
Credit or any other circumstance which might impair such obligations. Upon any
draw or advance under the Xxxxxxxx Letter of Credit pursuant to its terms
(hereinafter a "PERMITTED ADVANCE"), and subject to the terms and conditions of
that certain Subordination Agreement of even date herewith between the Lender
and the Borrower for the benefit of LaSalle, the Borrower shall immediately,
upon notice thereof from the Lender, pay to the Lender the full amount of such
Permitted Advance (together with the amounts payable under the indemnity set out
below, the "XXXXXXXX LETTER OF CREDIT REIMBURSEMENT OBLIGATIONS"). Any portion
of any Permitted Advance which is not immediately paid upon such notice shall
bear interest at the rate payable under the Note at the relevant time until the
date paid. The Borrower further hereby agrees to indemnify and hold the Lender
harmless for any and all liabilities, losses and claims that the Lender may
suffer as a result of or as a consequence of the Xxxxxxxx Letter of Credit.
2.4. Grant of Security Interest. In order to secure the Borrower's
payment and performance of the Liabilities and Borrower's other obligations
existing under this Agreement, Borrower hereby pledges and assigns to Lender,
and grants to Lender a security interest in, and lien on, each item of property
of Borrower described below and in all cash and non-cash proceeds and products
of such property (collectively, the "Collateral"):
a. Cash and Accounts. All of Borrower's cash and accounts (as
such term is defined in the Maryland Uniform Commercial Code), including without
limitation, all accounts receivable, notes, notes receivable, drafts,
acceptances and similar instruments and documents, both now owned and hereafter
acquired, together with (i) all cash and non-cash proceeds thereof; and (ii) all
returned, rejected or repossessed goods, the sale or lease of which shall have
given or shall give rise to an account and all cash and non-cash proceeds and
products of all such goods.
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b. General Intangibles. All of Borrower's general intangibles
(as such term is defined in the Maryland Uniform Commercial Code), including
without limitation, all things in action, contractual rights, goodwill, literary
rights, rights to performance, copyrights, trademarks, servicemarks, patents,
judgments and awards, general and limited partnership interests, tax refunds,
insurance contracts and rights or claims with respect to taxes paid), both now
owned and hereafter acquired, together with all cash and non-cash proceeds and
products thereof.
c. All Equipment and Fixtures. All of Borrower's equipment (as
such term is defined in the Maryland Commercial Code) and fixtures, both now
owned and hereafter acquired, together with (i) all additions, parts, fittings,
accessories, special tools, attachments and accessions now and hereafter affixed
thereto and/or used in connection therewith; (ii) all replacements thereof and
substitutions therefor; and (iii) all cash and non-cash proceeds and products
thereof.
d. Inventory. All of Borrower's inventory (as such term is
defined in the Maryland Commercial Code), both now owned and hereafter acquired,
together with (i) all replacements thereof and substitutions therefor; and (ii)
all cash and non-cash proceeds and products thereof.
e. Real Property. All of Borrower's right, title and interest
in any lease of real property which the Borrower is the tenant or has a
possessory interest, whether now existing or hereafter acquired.
SECTION 3. Conditions of Lending. The obligation of the Lender to make
the Loan and issue the Xxxxxxxx Letter of Credit, is subject to the following
express conditions precedent:
3.1. Loan Documents. The Borrower shall have delivered to the
Lender the following:
A. Note and other Loan Documents. The executed Note and any
other Loan Documents.
B. Financing Statements. UCC-1 financing statements to be filed
with the Delaware Secretary of State, evidencing Lender's security interest in
the Collateral.
C. Borrower's Resolutions. A certified copy of resolutions of
the Borrower's members authorizing the execution, delivery, and performance of
this Agreement, the Note, and the other Loan Documents;
D. Borrower's Articles of Organization and Limited Liability
Company Agreement. A copy, certified by the Borrower's members, of the
Borrower's Articles of Organization, together with all amendments and additions
thereto, and the Borrower's Limited Liability Company Agreement, together with
all amendments and additions thereto;
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E. Incumbency Certificate. A certificate of the Borrower's
member's as to the incumbency and signatures of the officers of the Borrower
signing this Agreement, the Note, any other Loan Documents, and any other
documents to be delivered pursuant hereto;
F. Good Standing Certificate. A certificate, as of the most
recent date practicable, of the Maryland State Department of Assessments and
Taxation as to the good standing of the Borrower;
G. Authority to Borrow. An Authorization to Borrow signed by
all of the members of the Borrower as required by the Lender authorizing the
execution, delivery, and performance of this Agreement, the Note, and any of the
other Loan Documents;
H. Miscellaneous. Such other documents, instruments, opinions,
and agreements as the Lender and its counsel may require in their discretion.
3.2. Contemporaneous Closing of the Acquisition. Borrower has
entered into that certain Master Purchase Agreement, by and among Borrower,
Ornamental Mouldings, Inc. and certain other parties thereto (the "ORNAMENTAL
PURCHASE AGREEMENT") whereby Borrower and its wholly owned affiliates will
consummate the Acquisition (as defined in Section 5.1 herein). The obligation of
the Lender to make the Loan and issue the Xxxxxxxx Letter of Credit is subject
to all conditions to closing of the Acquisition under the Ornamental Purchase
Agreement other than the payment of the Purchase Price (as defined in the
Ornamental Loan Agreement) having been satisfied or otherwise waived as
permitted thereunder.
3.3. Lender's Counsel. All legal matters incident to this Agreement
shall be satisfactory to counsel for the Lender, and the Borrower shall have
reimbursed the Lender for the fees and expenses of Lender's counsel in
connection with the preparation of this Agreement and all matters incident
thereto.
SECTION 4. Representations and Warranties. To induce the Lender to make
the Loan and issue the Xxxxxxxx Letter of Credit hereunder, the Borrower hereby
makes the following representations and warranties to the Lender:
4.1. Good Standing. The Borrower (a) is a limited liability company
duly organized, existing, and in good standing under the laws of the State of
Delaware, and (b) has the power to own its property and to carry on its business
and is qualified to do business and is in good standing in each jurisdiction in
which the character of properties owned by it or the transaction of its business
makes such qualification necessary.
4.2. Authority. The Borrower has full power and authority to enter
into this Agreement, to make the borrowings hereunder, to execute and deliver
the Note and any other Loan Documents to which it is a party, and to perform and
comply with the terms, conditions, and agreements set forth herein and therein,
all of which have been duly authorized by all proper and necessary limited
liability company action of the Borrower. No further consent or approval
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of the members of the Borrower or of any governmental authority is required as a
condition to the validity of this Agreement, the Note, or any of the other Loan
Documents.
4.3. Binding Agreement. This Agreement constitutes, and the Note
and all of the other Loan Documents constitute, or will constitute when issued
and delivered for value received, the valid and legally binding obligations of
the Borrower enforceable in accordance with their respective terms.
4.4. Litigation. There are no proceedings pending or, so far as any
person signing below as or on behalf of the Borrower knows, threatened before
any court or administrative agency which will materially adversely affect the
financial condition or operations of the Borrower.
4.5. No Conflicting Agreements. There are no provisions of the
Borrower's Articles of Organization, nor the Borrower's Limited Liability
Company Agreement, and no provisions of any existing mortgage, deed of trust,
indenture, contract, lease, or agreement binding on the Borrower or affecting
its property which would conflict with or in any way prevent the execution,
delivery, or carrying out of the terms of this Agreement, the Note, or any of
the other Loan Documents.
4.6. Financial Condition. The Borrower's financial statements,
copies of which have been furnished to the Lender, were prepared in accordance
with generally accepted accounting principles consistently applied and are
complete and correct and fairly and accurately present the financial condition
of the Borrower as of their date and the results of its operations for the
period then ended. There has been no material adverse change in the financial
condition of the Borrower or the results of its operations since the date of
such financial statements.
4.7. Information. All information contained in any financial
statement, application, schedule, report, certificate, opinion, or any other
document given by the Borrower or by any other person in connection with the
Loan or with any of the Loan Documents is in all respects true and accurate, and
the Borrower or such other person has not omitted to state any material fact or
any fact necessary to make such information not misleading.
4.8. Assets and Properties. The Borrower has good and merchantable
title to all of its assets and properties, and there are no Liens outstanding
against any of such assets and properties, except for those certain liens for
the benefit of LaSalle which exist on such assets and properties as of the date
of this Agreement.
4.9. Taxes. All Taxes imposed upon the Borrower and its properties,
operations, and income have been paid and discharged prior to the date when any
interest or penalty would accrue for the nonpayment thereof except for those
Taxes being contested in good faith and by appropriate proceedings by the
Borrower.
4.10. Violation of Laws, etc. Neither the consummation of the Loan
nor the use, directly or indirectly, of all or any portion of the proceeds of
the Loan hereunder will violate or
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result in a violation of any provision of any applicable statute, regulation or
order of, or any restriction imposed by, the State of Maryland or the United
States of America or by any authorized official, board, department,
instrumentality, or agency thereof.
4.11. LaSalle's Indebtedness. As of June 23, 2003, the total
principal indebtedness due and outstanding by Borrower pursuant to the loans
originated by LaSalle is $36,532,856.17.
SECTION 5. Borrower's Covenants. Until payment in full of all of the
Liabilities:
5.1. Use of Loan Proceeds. The Borrower will use the proceeds of
the Loan only to fund, in part, the Borrower's direct acquisition or indirect
acquisition through is wholly owned subsidiaries, AWM Acquisition Corporation, a
Maryland corporation and 3078831 Nova Scotia Company, a Nova Scotia unlimited
liability company, of the following acquisitions (hereinafter, collectively, the
"ACQUISITION"): (a) the acquisition from OM Investments, Inc., a North Carolina
corporation ("OMI") of fifty percent (50%) of the outstanding membership
interests in Ornamental Mouldings, LLC, a Delaware limited liability company
("LLC I"), (b) the acquisition from Ornamental Investments, L.L.C., a North
Carolina limited liability company ("OI") of fifty percent (50%) of the
outstanding membership interests in Comanche Investments, LLC, a Delaware
limited liability company ("LLC II"), and (c) the acquisition from Ornamental
Holding Corporation, a North Carolina corporation ("HOLDINGS") of (i) one
outstanding Common Share of Ornamental Mouldings Company, a Nova Scotia
unlimited liability company ("NSULC") held by Holdings, (ii) 5,917 shares of the
outstanding Class B Shares of NSULC held by Holdings, (iii) 1,864 shares of the
outstanding Class D Shares of NSULC held by Holdings, and (iv) 20,002 shares of
the outstanding Class E Shares of NSULC held by 1260823 Ontario Limited, an
Ontario corporation.
5.2. Annual Financials. The Borrower will furnish to the Lender as
soon as available but in no event more than ninety (90) days after the end of
each fiscal year of the Borrower audited financial statements of the Borrower
prepared in accordance with generally accepted accounting principles, including
balance sheet, statement of income, statement of member equity, and statement of
changes in financial position.
5.3. Other Information. The Borrower will furnish to the Lender,
promptly from time to time, such information concerning the operations,
business, affairs, and financial condition of the Borrower as the Lender may
reasonably request.
5.4. Books, Records, and Inspections. The Borrower will at all
times (a) maintain complete and accurate books and records and (b) permit any
person designated by the lender to enter, examine, audit, and inspect all
properties, books, operations, and records of the Borrower at any reasonable
time and from time to time wherever such properties, books, and records are
located.
5.5. Litigation. The Borrower will promptly notify the Lender of
any litigation instituted or threatened against the Borrower which would not
otherwise be covered by
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applicable insurance, and of the entry of any judgment or lien against any of
the Borrower's assets or properties where the claims against the Borrower exceed
$100,000.00.
5.6. Preservation of Properties. The Borrower will at all times (a)
maintain its properties, whether owned or leased, in good operating condition,
and from time to time will make all proper repairs, renewals, replacements,
additions, and improvements thereto needed to maintain such properties in good
operating condition, (b) comply with the provisions of all material leases to
which it is a party or under which it occupies property so as to prevent any
loss or forfeiture thereof or thereunder, and (c) comply with all laws, rules,
regulations, and orders applicable to the properties or any part thereof;
provided, however, that nothing contained in this section shall require the
making of any repair, renewal, replacement, addition, or improvement of or to a
particular property or the continued maintenance of any property which would not
be required in the exercise of sound business judgment
5.7. Preservation of Assets. The Borrower shall not encumber,
hypothecate, pledge or otherwise transfer title and/or beneficial interest of
any assets of the Borrower outside the ordinary course of business, to any
person, corporation, partnership or any other entity by way of sale of corporate
shares, limited partnership interests, membership interests or any other manner
without the prior written consent of the Lender, except for those certain liens
for the benefit of LaSalle which exist on such assets as of the date of this
Agreement. Notwithstanding the foregoing to the contrary, the Borrower shall be
permitted to pledge to LaSalle its ownership interests in LLC I, LLC II, and
NSULC acquired as a result of the Acquisition, and its ownership interests in
any subsidiary entity created by the Borrower in connection with the
Acquisition..
5.8. Insurance. The Borrower will (a) at all times maintain with
well-rated and responsible insurance companies such insurance as is required by
applicable laws and such other insurance in such amounts, of such types, and
against such risks, hazards, liabilities, casualties, and contingencies as is
customarily maintained by companies similarly situated, and (b) file with the
Lender upon request a detailed list of the insurance then in effect and stating
the names of the insurance companies, the types, the amounts, and rates of the
insurance, dates of the expiration thereof and the properties and risks covered
thereby, and, within thirty (30) days after notice in writing from the Lender,
obtain such additional insurance as the Lender may reasonably request.
5.9. Taxes. Except to the extent that the validity or amount
thereof is being contested in good faith and by appropriate proceedings, the
Borrower will pay and discharge all Taxes prior to the date when any interest or
penalty would accrue for the nonpayment thereof.
5.10. Maintain Existence. The Borrower will at all times maintain in
full force and effect its limited liability company existence, rights,
privileges, and franchises and qualify and remain qualified in all jurisdictions
where qualification is required.
5.11. Compliance with Laws. The Borrower will at all times comply
with all applicable federal, state, and local laws, rules, and regulations, and
orders of any court or other governmental authority having jurisdiction.
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5.12. Expense Payments. If the Borrower shall fail to make any
payment or otherwise fail to perform, observe, or comply with any of the
conditions, covenants, terms, stipulations, or agreements contained herein, the
Lender, upon prior notice and demand upon the Borrower but without waiving or
releasing any obligation or any Event of Default, 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 the Borrower, and may enter upon any premises
of the Borrower for that purpose and take all such action thereon as the Lender
may consider necessary or appropriate for such purpose. All sums so paid or
advanced by the Lender (the "EXPENSE PAYMENTS"), together with interest thereon
from the date paid, advanced, or incurred until repaid in full at a per annum
rate of interest equal at all times to the then highest rate of interest charged
on the principal of any of the Liabilities, plus one percent (1%) per annum,
shall be paid by the Borrower to the Lender upon demand by the Lender.
SECTION 6. Events of Default. The occurrence of any one or more of the
following events (the "EVENTS OF DEFAULT") shall constitute an event of default
hereunder:
6.1. Failure to Pay Interest. If the Borrower shall fail to pay any
interest on any of the Liabilities, including, without limitation, the Note and
the Loan, when and as due and payable, and such failure shall remain uncured for
a period of five (5) days after the date of written notice from Lender to the
Borrower; or
6.2. Failure to Pay Principal, etc. If the Borrower shall fail to
pay the principal of any of the Liabilities, including, without limitation, the
Note and the Loan, or any of the other Liabilities when and as due and payable,
and such failure shall remain uncured for a period of five (5) days after the
date of written notice from Lender to the Borrower; or
6.3. Terms, Conditions, and Covenants of This Agreement. If the
Borrower shall fail to duly perform, comply with, or observe any of the other
terms, conditions, or covenants contained in this Agreement, and such failure
shall remain uncured for a period of thirty (30) days after the date of written
notice from Lender to the Borrower; or
6.4. Representations and Warranties. If any representation and
warranty or any statement or representation made in any report, opinion,
schedule, officer's certificate, or other certificate or any other information
given by the Borrower or furnished in connection with the Loan shall prove to be
false or incorrect in any material respect on the date as of which made and the
same shall remain uncured for a period of thirty (30) days after the date of
written notice from the Lender to the Borrower; or
6.5. Judgment against Borrower. If any judgment against the
Borrower or any attachment or other levy against the property of the Borrower
with respect to a claim remains unpaid, unstayed on appeal, undischarged,
unbonded, or undismissed for a period of thirty (30) days; or
6.6. Bankruptcy, Insolvency, etc. If the Borrower becomes insolvent
or generally does not pay its debts as they become due, or if a petition for
relief in a bankruptcy court is filed
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by the Borrower, or if the Borrower applies for, consents to, or acquiesces in
the appointment of a trustee, custodian, or receiver for the Borrower or any of
its assets and property, or makes a general assignment for the benefit of
creditors; or, in the absence of such application, consent, or acquiescence, a
trustee, custodian, or receiver is appointed for the Borrower or for a
substantial part of the assets and property of the Borrower and is not
discharged within (30) days; or any bankruptcy, reorganization, debt
arrangement, or other proceeding or case under any bankruptcy or insolvency law
or any dissolution or liquidation proceeding is instituted against the Borrower,
and if instituted against the Borrower is consented to or acquiesced in by the
Borrower or remains undismissed for sixty (60) days; or the Borrower takes any
action to authorize any of the actions described in this subsection; or
6.7. Default of Obligations to LaSalle. If the Borrower shall fail
to pay or perform any of its obligations to LaSalle in connection with the
Borrower's existing indebtedness to LaSalle, which failure would constitute an
event of default under the applicable documentation governing such
indebtedness,.
SECTION 7. Rights and Remedies. The occurrence or non-occurrence of an
Event of Default under this Agreement shall in no way affect or condition the
right of the Lender to demand payment at any time of any of the Liabilities
which are payable on demand regardless of whether or not such an Event of
Default has occurred. If any one or more Events of Default shall occur, then in
each and every such case, the Lender at its option may at any time thereafter
exercise and/or enforce any or all of the following rights and remedies:
7.1. Commitment. Terminate its Commitment.
7.2. Acceleration. Declare without notice to the Borrower all of
the Liabilities to be immediately due and payable, whereupon the same shall
become due and payable, together with accrued and unpaid interest thereon,
without presentment, demand, protest, or notice, all of which the Borrower
hereby waives. Further, the Lender reserves the right to require the Borrower to
pay amounts covering any potential liability of the Lender under the Xxxxxxxx
Letter of Credit. This payment would be held by the Lender in an interest
bearing account for application to reimburse the Lender for all future Xxxxxxxx
Letter of Credit reimbursement Obligations.
7.3. Exercise of Rights and Remedies. Exercise any rights and
remedies available to the Lender under this Agreement, the Note, the other Loan
Documents, and under applicable laws.
7.4. Liquidation Costs. The Borrower shall reimburse and pay to the
Lender upon demand all Liquidation Costs. All Liquidation Costs shall bear
interest payable by the Borrower to the Lender upon demand from the date
advanced or incurred until paid in full at a per annum rate of interest equal at
all times to the then highest rate of interest charged on the principal of any
of the Liabilities, plus one percent (1%) per annum.
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7.5. Remedies, etc., Cumulative. Each right, power, and remedy of
the Lender as provided for in this Agreement or in the other Loan Documents or
now or hereafter existing at law or in equity or by statute or otherwise shall
be cumulative and concurrent and shall be in addition to every other right,
power, or remedy provided for in this Agreement or in the other Loan Documents
or now or hereafter existing at law or in equity or by statute or otherwise, and
the exercise or beginning of the exercise by the Lender of any one or more of
such rights, powers, or remedies shall not preclude the simultaneous or later
exercise by the Lender of any or all such other rights, powers, or remedies.
7.6. No Waiver, etc. No failure or delay by the Lender to insist
upon the strict performance of any term, condition, covenant, or agreement of
this Agreement or of any of the other Loan Documents, or to exercise any right,
power, or remedy consequent upon a breach thereof, shall constitute a waiver of
any such term, condition, covenant, or agreement or of any such breach, or
preclude the Lender from exercising any such right, power, or remedy at any
later time or times. By accepting payment after the due date of any amount
payable under this Agreement, the Note, or any of the other Loan Documents, the
Lender shall not be deemed to waive the right either to require prompt payment
when due of all other amounts payable under this Agreement or under the Note or
under any of the other Loan Documents or to declare an Event of Default for
failure to effect such prompt payment of any such other amount.
SECTION 8. Miscellaneous.
8.1. Survival. All covenants, agreements, representations, and
warranties made herein and in any other instruments or documents delivered
pursuant hereto shall survive the execution and delivery of the Note and shall
continue in full force and effect so long as any of the Liabilities are
outstanding and unpaid.
8.2. Notices. All notices, demands, requests, consents, or
approvals required under this Agreement to be in writing shall be deemed to have
been properly given if and when (i) faxed, if to the Lender, to 00-0-000-0000
or, if to the Borrower, to 000-000-0000 or (ii) mailed by first class certified
mail, return receipt requested, postage prepaid, if to the Lender at Xxxxxxxx
Challenge Forests, 0 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, Xxx Xxxxxxx,
Attention: Chief Financial Officer and if to the Borrower at American Wood
Moulding, L.L.C., 0000 Xxx Xxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Chief
Financial Officer, or at such other address as the Borrower or the Lender, as
applicable, shall have furnished to the other in writing.
8.3. Change, etc. Neither this Agreement nor any term, condition,
representation, warranty, covenant, or agreement hereof may be changed, waived,
discharged, or terminated orally but only by an instrument in writing by the
party against whom such change, waiver, discharge, or termination is sought.
8.4. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Maryland.
11
8.5. Terms Binding. All of the terms, conditions, stipulations,
warranties, representations, and covenants of this Agreement shall apply to and
be binding upon, and shall inure to the benefit of, the Borrower and the Lender
and each of their respective successors, and assigns.
8.6. Gender, etc. Whenever used herein, the singular number shall
include the plural, the plural the singular, and the use of the masculine,
feminine, or neuter gender shall include an genders.
8.7. Headings. The section and subsection headings in this
Agreement are for convenience only and shall not limit or otherwise affect any
of the terms hereof.
8.8. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together shall
constitute one and the same instrument.
8.9. Consent to Jurisdiction. The Borrower hereby agrees and
consents that any action or proceeding arising out of or brought to enforce the
provisions of this Agreement and/ or any of the other Loan Documents may be
brought in any appropriate court in the State of Maryland or in any other court
having jurisdiction over the subject matter, all at the sole election of the
Lender, and by the execution of this Agreement the Borrower irrevocably consents
to the jurisdiction of each such court.
8.10. WAIVER OF JURY TRIAL. THE BORROWER AND THE LENDER HEREBY
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT WHICH ANY OF THEM MAY HAVE TO A
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR LITIGATION DIRECTLY OR INDIRECTLY
ARISING OUT OF OR UNDER OR IN CONNECTION WITH THIS LOAN AGREEMENT OR THE NOTE.
THIS WAIVER APPLIES TO ALL CLAIMS AGAINST ALL PARTIES TO SUCH ACTIONS AND
PROCEEDINGS, INCLUDING PARTIES WHO ARE NOT PARTIES TO THIS LOAN AGREEMENT. THIS
WAIVER IS KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY MADE BY THE BORROWER AND
LENDER, BOTH OF WHOM ACKNOWLEDGE THAT THEY HAVE SEPARATELY BEEN REPRESENTED IN
THE EXECUTION OF THIS LOAN AGREEMENT AND IN THE MAKING OF THIS WAIVER BY
SEPARATE INDEPENDENT LEGAL COUNSEL, SELECTED OF THEIR OWN FREE WILL, AND THAT
THEY HAVE HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH THEIR RESPECTIVE
COUNSEL. THE BORROWER AND LENDER FURTHER ACKNOWLEDGE THAT THEY HAVE READ AND
UNDERSTAND THE MEANING AND RAMIFICATIONS OF THIS WAIVER PROVISION.
8.11. Further Assurances and Corrective Instruments. The parties
hereto agree that they will, from time to time, execute and deliver, or cause to
be executed and delivered, such supplements hereto and such further instruments
as may reasonably be required for carrying out the intention of the parties to,
or facilitating the performance of, this Agreement.
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8.12. Estoppel Certificate. The Borrower will, upon not less than
ten (10) business days' request by the lender or any other party to this
transaction, execute, acknowledge, and deliver to such person a statement in
writing, certifying (a) that this Agreement is unmodified and in full force and
effect and the payments required by this Agreement to be paid by the Borrower
have been paid, and (b) the then unpaid principal balance of the Note; and
stating whether or not to the knowledge of the signer of such certificate any
party to any of the Loan Documents is in default in the performance of any
covenant, agreement, or condition contained therein and, if so, specifying each
such default of which the signer may have knowledge, it being intended that any
such statement delivered pursuant to this section may be relied upon by the
Lender and the other parties to this transaction.
8.13. Illegality. If fulfillment of any provision hereof or any
transaction related hereto or to the other Loan Documents at the time
performance of such provisions shall be due shall involve transcending the limit
of validity prescribed by law, then ipso facto, the obligation to be fulfilled
shall be reduced to the limit of such validity; and if any clause or provision
herein contained operates or would prospectively operate to invalidate this
Agreement in whole or in part, then such clause or provision only shall be void,
as though not herein contained, and the remainder of this Agreement shall remain
operative and in full force and effect; provided, however, that, if any such
provision pertains to the repayment of the Liabilities, the occurrence of any
such invalidity shall constitute an Event of Default.
8.14. Commercial Loan. The Borrower hereby represents and warrants
that the transaction described herein is a commercial loan within the meaning of
Section 12-101(c) and 12-103(e)(1)(ii) of the Commercial Law Article, Annotated
Code of Maryland.
8.15. Execution Under Seal. The Borrower and Lender hereby
acknowledge and agree that it is their intent that (a) this Agreement constitute
an agreement under seal, and (b) the twelve (12) year statute of limitations
period under Section 5-102 of the Courts & Judicial Proceedings Article,
Annotated Code of Maryland (the "COURTS ARTICLE") shall govern the limitations
periods under this Agreement rather than the three (3) year limitations period
under Section 5-101 of the Courts Article.
8.16. Subordination Agreement. The Liabilities, the remedies, the
enforcement provisions, any and all security interests granted in this Agreement
and all other obligations, terms and provisions of this Agreement are subject to
the terms and provisions of a certain Subordination Agreement dated of even date
herewith, executed by and between the Lender and LaSalle, and acknowledged by
the Borrower.
[SIGNATURES APPEAR ON THE FOLLOWING PAGES]
13
IN WITNESS WHEREOF, the Lender has caused this Loan Agreement to be
executed under seal as of the day and year first written above.
WITNESS/ATTEST: LENDER:
XXXXXXXX CHALLENGE FORESTS FUNDING
USA LIMITED
By: __________________________ (SEAL)
Name:
Title:
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
14
IN WITNESS WHEREOF, the Borrower has caused this Loan Agreement to be
executed under seal as of the day and year first written above.
WITNESS/ATTEST: BORROWER:
AMERICAN WOOD MOULDING, L.L.C., a
Delaware limited liability company
By: __________________________ (SEAL)
Name:
Title:
15
Page 12
Confidential Information only to those of its officers,
employees or professional advisers, on a "need to know" basis,
as is reasonably required for the implementation of this
deed).
14.10 CONSULTATION: In the event that the Beneficiary is required by
law or stock exchange reporting obligations to disclose
Confidential Information, such disclosure may be made only
after the Guarantor has been notified and, subject to timing
obligations imposed by law or the relevant stock exchange, has
been given every reasonable opportunity to consult with the
Beneficiary as to timing and the content of any such
disclosure. In consulting with the Guarantor, the Beneficiary
shall act in good faith and give reasonable consideration to
the Guarantor's requests.
14.11 THE BENEFICIARY'S SAFEGUARDS: If requested, the Beneficiary
will document to the reasonable satisfaction of the Guarantor
the internal safeguards it will put in place to meet its
confidentiality obligations under this clause 14.
Executed as a deed.
SIGNED by XXXXXXXX CHALLENGE
INDUSTRIES LIMITED by:
__________________________________________ __________________________________________
Full name of director/authorised signatory Signature of director/authorised signatory
__________________________________________ __________________________________________
Full name of director/authorised signatory Signature of director/authorised signatory
WITNESS:
(if other than two directors sign)
__________________________________________
Signature of witness
__________________________________________
Full name of witness
__________________________________________
Occupation of witness
__________________________________________
Address of witness
Page 13
SIGNED by UBS MANGAKAHIA FOREST
VENTURE LTD by:
__________________________________________ __________________________________________
Full name of director/authorised signatory Signature of director/authorised signatory
__________________________________________ __________________________________________
Full name of director/authorised signatory Signature of director/authorised signatory
WITNESS:
(if other than two directors sign)
__________________________________________
Signature of witness
__________________________________________
Full name of witness
__________________________________________
Occupation of witness
__________________________________________
Address of witness
