LOAN AND SECURITY AGREEMENT
$200,000 Salt Lake City, Utah
Date: October 6, 2000
FOR VALUE RECEIVED, the undersigned XXXXXX0XX.XXX, INC. a Delaware
corporation ("Company"), hereby promises to pay to HEADWATERS INCORPORATED, a
Delaware corporation ("Headwaters") and Xxxxxx Xxxxx ("Xxxxx"; Headwaters and
Xxxxx together, "Holder"), at such place as Headwaters and Xxxxx may reasonably
specify, in lawful money of the United States of America, the principal amount
of $200,000, payable $100,000 to Headwaters and $100,000 to Xxxxx, on April 4,
2001 (the "Maturity Date"), plus interest on the principal amount outstanding
from time to time hereunder at a rate equal to the lesser of (i) the maximum
lawful rate or (ii) ten percent (10%) per annum. Interest shall be due and
payable on the Maturity Date. Interest shall be computed on the basis of a 365
or 366-day year, as applicable.
1. Advances; Payments. On before the date of this Loan and Security
Agreement (the "Agreement") and subject to the accuracy of Company's
representations, Holder has or will deliver to Company in immediately available
funds the principal amount specified above.
All payments under this Agreement shall be applied first to
fees and expenses, then to interest and then to principal. Any principal or
interest payments on this Agreement outstanding after the occurrence and during
the continuance of a default under this Agreement shall bear interest at a rate
equal to the lesser of (i) the lawful legal rate or (ii) five percent (5%) above
the interest rate otherwise applicable under this Agreement.
2. Secured Agreement. To secure repayment of all obligations evidenced
by this Agreement and performance of all of Company's obligations hereunder,
Company grants Holder a security interest, (subject only to the Senior Liens
listed on Schedule 1 (the "Senior Liens") in all of Company's inventory,
accounts, equipment, cash, deposit accounts, securities, Intellectual Property
(as defined in Exhibit A hereto), chattel paper, general intangibles and
instruments, now existing or hereafter arising, and all proceeds thereof, as
such terms are defined in the Uniform Commercial Code (the "UCC"), whether now
owned or hereafter acquired, or any value received in exchange for any of the
foregoing (collectively, the "Collateral") as set forth in Exhibit A. Company
shall take such actions as Holder reasonably requests from time to time to
perfect or continue the second priority security interest granted hereunder
including, without limitation, filing UCC-1 financing statements in connection
therewith. Company, except in the ordinary course of business, shall not dispose
of or encumber all or any substantial part of the Collateral without prior
written consent of Holder.
3. Representations, Warranties and Covenants of Company.
(a) Corporate Existence and Authority. Company is and will
continue to be duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation or organization. Company is and
will continue to be qualified and licensed to do
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business in all jurisdictions in which any failure to do so would have a
material adverse effect on Company. Company has all requisite power to transact
the business it transacts and proposes to transact, to execute and deliver this
Agreement, and all other documents and agreements contemplated by this
Agreement, and to perform the provisions of this Agreement and to consummate the
transactions contemplated by this Agreement. The execution, delivery and
performance of this Agreement, and all other documents and agreements
contemplated by this Agreement, and the consummation of the transactions
contemplated by this Agreement, have been duly authorized and approved by
Company. This Agreement, and all other documents and agreements contemplated by
this Agreement have each been duly authorized, executed and delivered by, and
each is the valid and binding obligation of, Company enforceable against Company
in accordance with its terms, except as may be limited by applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws or by legal or
equitable principles relating to or limiting creditors' rights generally.
(b) No Conflicts. The consummation of the transactions
contemplated by this Agreement and the performance of the terms and provisions
of this Agreement, and any other documents or agreements contemplated by this
Agreement will not (i) contravene, result in any breach of, or constitute a
default under any indenture, mortgage, deed of trust, bank loan or credit
agreement, corporate charter, by-laws or other material agreement or instrument
to which Company is a party or by which Company or any of its properties or the
Collateral is bound, (ii) conflict with or result in a breach of any of the
terms, conditions or provisions of any order of any court, arbitrator or
Federal, State, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign (collectively,
"Governmental Person") applicable to Company or (iii) violate any material
provision of any statute or other rule or regulation of any Governmental Person
applicable to Company, which could have a material adverse effect on Company.
(c) Place of Business; Location of Collateral. The address set
forth in Section 8(c) of this Agreement is Company's chief executive office. The
Collateral is located at Company's chief executive office. Company will give
Holder prior written notice before opening any additional place of business,
changing its chief executive office, or moving any of the Collateral to a
location other than Company's chief executive office.
(d) Title to Collateral; Permitted Liens. Company is now, and
will at all times in the future be, the sole owner of all the Collateral, except
for items of equipment which are leased by Company and inventory on consignment.
The Collateral is subject to the Senior Liens. Holder now has, and will continue
to have, a perfected and enforceable security interest in all of the Collateral,
subject to the Senior Liens and the purchase money, consignor or lessor security
interests, and Company will at all times defend Holder and the Collateral
against all claims of others (subject to the rights of holders of the Senior
Liens and purchase money, consignor or lessor security interests in certain
equipment and inventory). So long as the loan is outstanding, none of the
Collateral now is or will be affixed to any real property in such a manner, or
with such intent, as to become a fixture. Company is not and will not become a
lessee under any real property lease pursuant to which the lessor may obtain any
rights in any of the Collateral and no such lease now prohibits, restrains,
impairs or will prohibit, restrain or impair Company's right to remove any
Collateral from the leased premises (subject to statutory rights of landlords).
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Whenever any Collateral is located upon premises in which any third party has an
interest (whether as owner, mortgagee, beneficiary under a deed of trust, lien
or otherwise), Company shall, whenever requested by Holder, use its best efforts
to cause such third party to execute and deliver to Holder, in form acceptable
to Holder, such waivers and subordinations as Holder shall specify, so as to
ensure that Holder's rights in the Collateral are, and will continue to be,
superior to the rights of any such third party. Company will keep in full force
and effect, and will comply with all the terms of, any lease of real property
where any of the Collateral now or in the future may be located.
(e) Maintenance of Collateral. Company will maintain the
Collateral in good working condition, ordinary wear and tear excepted, and
Company will not use the Collateral for any unlawful purposes. Company will
immediately advise Holder in writing of any material loss or damage to the
Collateral.
(f) Books and Records. Company has maintained and will
maintain at Company's chief executive office complete and accurate books and
records, comprising an accounting system in accordance with generally accepted
accounting principles.
(g) Financial Condition, Statements and Reports. All financial
statements now or in the future delivered to Holder have been, and will be,
prepared in conformity with generally accepted accounting principles and now and
in the future will completely and fairly reflect the financial condition of
Company, at the times and for the periods therein stated. Between the last date
covered by any such statement provided to Holder and the date hereof, there has
been no material adverse change in the financial condition or business of
Company.
(h) Compliance with Law. Company has complied, and will
comply, in all material respects, with all provisions of all applicable laws and
regulations, including, but not limited to, those relating to Company's
ownership of real or personal property, the conduct and licensing of Company's
business, and all environmental matters.
(i) Litigation. There is no material claim, suit, litigation,
proceeding or investigation pending or (to the best of Company's knowledge)
threatened by or against or affecting Company in any court or before any
governmental agency (or any basis therefor known to Company) which could
normally or reasonably be expected to result, either separately or in the
aggregate, in any material adverse change in the financial condition or business
of Company, or in any material impairment in the ability of Company to carry on
its business in substantially the same manner as it is now being conducted.
Company will promptly inform Holder in writing of any material claim,
proceeding, litigation or investigation in the future threatened or instituted
by or against Company.
(j) Use of Proceeds. All proceeds of the loan shall be used
solely for lawful business purposes.
(k) Intellectual Property. Company possesses all material
licenses, permits, franchises, authorizations, patents, copyrights, trademarks
and trade names and any other tangible
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or intangible or intellectual property rights, or rights thereto, required to
conduct its business substantially as now conducted, without actual knowledge of
conflict with the rights of others.
(l) Indebtedness. Except for the loan evidenced by this
Agreement, the loans secured by the Senior Liens and agreements entered into in
the ordinary course of business, Company has no outstanding indebtedness of any
kind (including contingent obligations, tax assessments and unusual forward or
long-term commitments).
(m) Disclosure. No representation or other statement made by
Company to Holder contains any untrue statement of a material fact or omits to
state a material fact necessary to make any statements made to Holder not
misleading.
(n) Performance. Company shall pay the principal of and
interest on the loan evidenced by this Agreement in the manner provided in this
Agreement. The obligation of Company described in the preceding sentence is
absolute and unconditional, irrespective of any tax or accounting treatment of
such obligation including without limitation any documentary stamp, transfer, ad
valorem or other taxes assessed by any jurisdiction in connection with this
transaction.
(o) Stay, Extension and Usury Laws. Company agrees (to the
extent it may lawfully do so) that it will not at any time insist upon, plead or
in any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law that would prohibit or forgive
Company from paying all or a portion of the principal of, finance fee, or
interest on the loan contemplated by this Agreement, wherever enacted, now or at
any time hereinafter in force, or that may materially affect the covenants or
the performance of this Agreement in any manner inconsistent with the provisions
of this Agreement. Company expressly waives all benefit or advantage of any such
law. If a court of competent jurisdiction prescribes that Company may not waive
its rights to take the benefit or advantage of any stay or extension law or any
usury law or other law in accordance with the prior sentence, then the
obligation to pay interest on the principal shall be reduced to the maximum
legal limit under applicable law governing the interest payable in connection
with this Agreement, and any amount of interest paid by Company that is deemed
illegal shall be deemed to have been a prepayment of principal on the loan.
(p) Taxes. Company shall make all necessary tax filings and
reports and pay prior to delinquency all taxes, assessments and governmental
levies that may be imposed upon Company, except as contested in good faith and
by appropriate proceedings.
(q) Limitations on Indebtedness. Without Holder's prior
written consent, Company shall not, directly or indirectly, create, incur,
assume, suffer to exist or otherwise in any manner become liable or commit to
become liable for any indebtedness other than Company's obligations set forth on
Schedule 1, to Holder under this Agreement and indebtedness incurred in the
ordinary course of business not in excess of $50,000 in the aggregate.
(r) Insurance. Company shall maintain insurance with
responsible and reputable insurance companies or associations in such amounts
and covering such risks as is
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usually carried by companies engaged in similar businesses and owning similar
properties in the same general areas in which Company operates.
(s) Reports. Company will provide Holder with quarterly
company-prepared financial statements within 35 days after the end of each month
and such additional financial and other information as Holder may reasonably
request from time to time.
(t) Insurance. Company will maintain insurance on the
Collateral that includes a Lender's loss payable endorsement in favor of Holder
as an additional loss payee. Company will maintain insurance in a form
acceptable to Holder relating to the Collateral and Company's business in
amounts and of a type that are customary to businesses similar to Company's.
(u) Consolidation. Company will not merge or consolidate with
any person or entity, or make any investments, or dispose of any substantial
portion of its assets without Holder's prior written consent, unless such
merger, consolidation, or disposal shall result in the payment in full of all
debt, including without limitation any principal and interest outstanding
pursuant to this Agreement, owed by Company to Holder.
4. Prepayments.
(a) Optional. Company may, from time to time, prepay the loan
evidenced hereby, in whole or in part, so long as each partial prepayment of
principal is equal to or greater than $50,000, paid one-half to Headwaters and
one-half to Xxxxx, and Company has given Holder two (2) or more business days'
written notice of such optional prepayment. Any such optional prepayment of
principal shall be without premium or penalty. Each prepayment of principal
under this Section shall be accompanied by all interest then accrued and unpaid
on the principal so prepaid. Any principal prepaid pursuant to this Section
shall be in addition to, and not in lieu of, all payments otherwise required to
be paid under this Agreement at the time of such prepayment.
(b) Mandatory. Unless otherwise agreed to by Holder, Company
shall prepay the loan to the extent of the net institutional financing proceeds
actually received by Company. In the event that Company completes any financing
transaction whatsoever from and after the date of this Agreement which is
non-institutional financing, including without limitation any public or private
placements of debt or equity, Company shall prepay the loan from the first $1
million raised.
5. Optional Conversion.
(a) At Holder's option, the outstanding principal balance and
all accrued interest shall be convertible, without the payment of any additional
consideration by the Holder and at the option of the Holder, into the Company's
preferred or common stock (the "Securities") pursuant to the terms of this
Section. In the event the Holder elects to convert, Company shall issue the
Securities to Holder as issued in a Company private placement of its Securities
in which the Company raises more than $500,000 in the aggregate after the date
hereof by converting
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outstanding principal balance and all accrued interest under the loan evidenced
by this Agreement into such Securities at a price per share that is equal to the
average price per share paid by all third party investors in such financing. The
outstanding principal shall continue to accrue interest, and Company shall be
obligated to pay such interest, according to the terms and conditions of this
Agreement until the Conversion Date (as defined below).
(b) In order for the Holder to convert all amounts owing under
this Agreement into Securities, Holder shall deliver a written notice to Company
that the Holder elects to convert. Any conversion made at the election of the
Holder shall be deemed to have been made immediately prior to the close of
business on the date Company is deemed to have received such notice, and the
Holder or its nominee or nominees entitled to receive the Securities shall be
treated for all such purposes as the record holder or holders of such Securities
on such date (the "Conversion Date"). Company shall have no obligation to issue
any fractional shares upon conversion. Any fractional shares shall be rounded up
to the nearest whole share.
6. Fees and Expenses. Company shall pay all costs and expenses,
including reasonable attorney's fees of Holder's counsel, incurred in the
preparation of this Agreement and the other documents executed in connection
with this Agreement. Company shall also have delivered to Headwaters and Xxxxx
warrants to purchase stock, in form reasonably acceptable to Holder ("Warrants",
together with the Agreement and any other documents delivered in connection with
this Agreement, the "Loan Documents"). Company shall pay all reasonable and
actual costs that Holder incurs in enforcing this Agreement or exercising any
rights with respect to the Collateral, including without limitation reasonable
attorneys' fees and expenses.
7. Events of Default; Remedies.
(a) Events of Default Defined; Acceleration of Maturity. If
any of the following events ("Events of Default") shall occur and be continuing
(for any reason whatsoever and whether it shall be voluntary or involuntary or
by operation of law or otherwise):
(i) default shall be made in the payment of the
principal of, or interest on, the loan when and as the same shall become due and
payable, whether at stated maturity, by acceleration, upon a mandatory
prepayment due date or otherwise; or
(ii) default shall be made in the performance or
observance of any covenant, agreement or condition contained in this Agreement
or in any of the other Loan Documents, and such default shall have continued for
a period of five (5) business days following receipt of written notice of such
default, provided however, that failure by any party to give notice of such
default shall not relieve Company from any liability under this Section; or
(iii) Company shall (1) apply for or consent to the
appointment of, or the taking of possession by, a receiver, custodian, trustee
or liquidator of itself or of all or a substantial part of its property and
assets, (2) be generally unable to pay its debts as such debts become due, (3)
make a general assignment for the benefit of its creditors, (4) commence a
voluntary case under the United States Bankruptcy Code or similar law or
regulation (as now or hereafter in effect), (5) file a petition seeking to take
advantage of any other law providing for the
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relief of debtors, (6) fail to controvert in a timely or appropriate manner, or
acquiesce in writing to, any petition filed against it in an involuntary case
under the United States Bankruptcy Code or other law or regulation, (7)
dissolve, (8) take any corporate action under any applicable law analogous to
any of the foregoing, or (9) take any corporate action for the purpose of
effecting any of the foregoing; or
(iv) a proceeding or case shall be commenced, without
the application or consent of Company in any court of competent jurisdiction,
seeking (1) the liquidation, reorganization, dissolution, winding up or
composition or readjustment of its debts, (2) the appointment of a trustee,
receiver, custodian, liquidator or the like of it or for all or any substantial
part of its assets, or (3) similar relief in respect of Company, under any law
providing for the relief of debtors, and such proceeding or case shall continue
undismissed, or unstayed and in effect, for a period of sixty (60) days; or an
order for relief shall be entered in an involuntary case under the United States
Bankruptcy Code or other similar law or regulation, against Company; or action
under the laws of any jurisdiction affecting Company analogous to any of the
foregoing shall be taken with respect to Company and shall continue unstayed and
in effect for any period of sixty (60) days; or
(v) final judgment for the payment of money shall be
rendered by a court of competent jurisdiction against Company and Company shall
not discharge the same or provide for its discharge in accordance with its
terms, or procure a stay of execution thereof within sixty (60) days from the
date of entry thereof and within said period of sixty (60) days, or such longer
period during which execution of such judgment shall have been stayed, appeal
therefrom and cause the execution thereof to be stayed during such appeal, and
such judgment together with all other such judgments shall exceed in the
aggregate $100,000; or
(vi) any representation or warranty made by Company
in this Agreement, or any other documents or agreements contemplated hereby and
thereby or in any certificate or other instrument delivered hereunder or
pursuant hereto or in connection with any provision hereof shall be false or
incorrect in any material respect on the date as of which made;
then (x) upon the occurrence of any Event of Default described in Section
7(a)(iii) or (iv), the unpaid principal amount of the loan, together with the
interest accrued thereon and all other amounts payable by Company under this
Agreement, shall automatically become immediately due and payable, without
presentment, demand, protest or other requirements of any kind, all of which are
hereby expressly waived by Company or (y) upon the occurrence of any other Event
of Default, Holder may, by notice to Company indicating the Event or Events of
Default, declare the unpaid principal amount of the loan to be, and the same
shall forthwith become, due and payable, together with the interest accrued
thereon and all other amounts payable by Company hereunder. Failure by the
Holder to indicate any Event of Default in any one notice shall not preclude the
Holder from indicating such omitted Event or Events of Default in future notices
and shall not relieve Company of any liability under this Agreement, nor
constitute a waiver of Holder's rights under this Agreement.
(b) Suits for Enforcement. If any Event of Default shall have
occurred and be continuing, Holder may proceed to protect and enforce its rights
against Company, either by suit
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in equity or by action at law, or both, whether for the specific performance of
any covenant or agreement contained in this Agreement or in aid of the exercise
of any power granted in this Agreement, or Holder may proceed to enforce the
payment by Company of all sums due under this Agreement or to enforce any other
legal or equitable right of Holder including without limitation all rights of a
secured party under the UCC.
Company covenants that, if it shall default in the making of
any payment due hereunder or in the performance or observance of any agreement
contained in this Agreement, it will pay to Holder such further amounts, to the
extent lawful, to cover any reasonable costs and expenses of collection or of
otherwise enforcing Holder's rights, including without limitation the reasonable
counsel fees and costs and expenses incurred in connection with any
restructuring, negotiation, refinancing, workout, bankruptcy or other similar
transaction or proceeding. The obligations set forth in this paragraph shall
survive the payment in full of the loan.
(c) Remedies Cumulative. No remedy herein conferred upon
Holder is intended to be exclusive of any other remedy and each and every such
remedy shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute or
otherwise.
(d) Remedies Not Waived. No course of dealing between Company
and any other person and no delay or failure in exercising any rights hereunder
or under the loan in respect thereof shall operate as a waiver of Holder's
rights.
8. Miscellaneous.
(a) Reliance on and Survival of Representations. All
representations, warranties, covenants and agreements of Company herein shall be
deemed to be material and to have been relied upon by Holder and shall survive
the execution and delivery of this Agreement and of the securities, for so long
as the loan remains outstanding.
(b) Successors and Assigns. This Agreement shall bind and
inure to the benefit of and be enforceable by Company, Headwaters, Xxxxx and
each of their respective successors and assigns, and, in addition, shall inure
to the benefit of and be enforceable by each person who shall from time to time
be a holder of the loan. Holder shall be permitted to transfer the securities in
accordance with their terms and in accordance with applicable restrictions under
applicable federal and state securities laws.
(c) Notices. All notices and other communications provided for
in this Agreement shall be in writing and delivered by registered or certified
mail, postage prepaid, or delivered by overnight courier (for next business day
delivery) or telecopied, addressed as follows, or at such other address as any
of the parties hereto may hereafter designate by notice to the other parties
given in accordance with this Section:
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1) if to Company:
XxxxxX0xx.xxx, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: President
Telephone:
Telecopy:
2) if to Holder:
HEADWATERS INCORPORATED
00000 X. Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: CFO
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
and to:
Xxxxxx Xxxxx
0000 Xxxx Xxxxxxxx
Xxxxxxx Xxxxx, XX 00000
Telephone:
Telecopy:
Any such notice or communication shall be deemed to have been
duly given on the fifth day after being so mailed, the next business day after
delivery by overnight courier, when received when sent by telecopy or upon
receipt when delivered personally.
(d) Counterparts. This Agreement may be executed in three
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. Signatures may be
exchanged by telecopy, with original signatures to follow. Each of the parties
hereto agrees that it will be bound by its own telecopied signature and that it
accepts the telecopied signatures of the other parties to this Agreement. The
original signature
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pages shall be forwarded to Headwaters and Headwaters will provide all of the
parties hereto with a copy of the entire Agreement.
(e) Amendments. This Agreement may only be amended by a
writing duly executed by the parties hereto.
(f) Severability. If any term or provision of this Agreement
or any other document executed in connection herewith shall be determined to be
illegal or unenforceable, all other terms and provisions hereof and thereof
shall nevertheless remain effective and shall be enforced to the fullest extent
permitted by applicable law.
(g) Governing Law; Submission to Process. THIS AGREEMENT AND
ALL AMENDMENTS, SUPPLEMENTS, WAIVERS AND CONSENTS RELATING HERETO OR THERETO
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
UTAH WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE COMPANY HEREBY
IRREVOCABLY SUBMITS ITSELF TO THE NON-EXCLUSIVE JURISDICTION OF THE SALT LAKE
CITY DISTRICT COURT FOR THE STATE OF UTAH OR THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH AND AGREES AND CONSENTS THAT SERVICE OF PROCESS MAY BE
MADE UPON IT IN ANY LEGAL PROCEEDINGS RELATING HERETO BY ANY MEANS ALLOWED UNDER
UTAH OR FEDERAL LAW. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH COURT AND ANY CLAIM
THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
(h) Entire Agreement. This Agreement contains the entire
Agreement of the parties hereto with respect to the transactions contemplated
hereby and supersedes all previous oral and written, and all previous
contemporaneous oral negotiations, commitments and understandings, including but
not limited to that Loan, Security, and Warrant Agreement by letter agreement
between the Company and Headwaters dated October 6, 2000 and that
__________________ between the Company and Xxxxx dated __________ 2000.
(i) Further Assurances. Company agrees promptly to execute and
deliver such documents and to take such other acts as are reasonably necessary
to effectuate the purposes of this Agreement.
(j) Headings. The headings contained herein are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
(k) Assignments and Participations. Company may not assign its
rights or obligations hereunder or under the loan without the prior written
consent of Holder. Holder may assign all or any portion of the loan or Warrants
without the prior consent of Company. Holder may sell or agree to sell to one or
more other persons a participation in all or any part of any of the loan or
Warrants without the prior consent of Company. Upon surrender of the loan or
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Warrants, Company shall execute and deliver one or more substitute notes,
warrants or other securities in such denominations and of a like aggregate
unpaid principal amount or other amount issued to Holder and/or to Holder's
designated transferee or transferees. Holder may furnish any information in the
possession of Holder concerning Company, or any of its respective subsidiaries,
from time to time to assignees and participants (including prospective assignees
and participants).
(l) Waivers; Indemnity. Company waives presentment and demand
for payment, notice of dishonor, protest of this Agreement, and shall pay all
costs of collection when incurred, including reasonable attorneys' fees, costs
and expenses. Company shall indemnify and hold harmless from any claim,
obligation or liability (including without limitation reasonable attorneys fees
and expenses) arising out of this Agreement or the transactions contemplated
under the Loan Documents.
(m) JURY WAIVER. HOLDER AND COMPANY EACH WAIVES ANY RIGHT TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF THE LOAN DOCUMENTS OR
ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the day and year set forth above.
XXXXXX0XX.XXX, INC.
a Delaware corporation
By: /s/ Xxxxx Xxxxxxx
-----------------------
Name: Xxxxx Xxxxxxx
Title: Chairman
HEADWATERS INCORPORATED
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
XXXXXX XXXXX
/s/ Xxxxxx Xxxxx
------------------------
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