EXHIBIT 10.3
NOTE
$18,000,000 USD September 29, 2004
FOR VALUE RECEIVED, the undersigned, The Bombay Furniture Company of
Canada Inc. a corporation continued and existing under the laws of the Province
of Ontario ("Bombay Canada"), hereby promises to pay to the order of
TRANSCANADA ("Canadian Lender") at the Canadian Lender's office at Suite 000,
00 Xxxxxxxx Xxxxx Xxxxxxxxxxx, Xxxxxxx X0X 0X0;
(a) Prior to or on the Maturity Date the principal amount of EIGHTEEN
MILLION UNITED STATES DOLLARS ($18,000,000 USD) or, if less, the aggregate
unpaid principal amount of Canadian Advances (as defined in the Loan Agreement
as hereinafter defined) made by the Canadian Lender to Bombay Canada pursuant
to that certain Loan and Security Agreement, dated as of September 29, 2004 (as
amended, amended and restated or otherwise modified and in effect from time to
time, the "Loan Agreement"), among Bombay Canada, the other Borrowers (as
defined in the Loan Agreement), Canadian Lender and the other financial
institutions from time to time party thereto (collectively, the "Lenders") and
Xxxxx Fargo Retail Finance, LLC, as agent for the Lenders (the "Agent");
(b) The principal outstanding hereunder from time to time at the times
provided in the Loan Agreement; and
(c) Interest on the principal balance hereof from time to time
outstanding from the date hereof through and including the Maturity Date (as
defined in the Loan Agreement) at the times and at the rate provided in the
Loan Agreement.
All capitalized terms used in this Note and not otherwise defined herein
shall have the same meanings herein as in the Loan Agreement. This Note
evidences borrowings under and has been issued by Bombay Canada in accordance
with the terms of the Loan Agreement. The Canadian Lender and any holder
hereof is entitled to the benefits of the Loan Agreement and the other Loan
Documents, and may enforce the agreements of Bombay Canada contained therein,
and any holder hereof may exercise the respective remedies provided for thereby
or otherwise available in respect thereof, all in accordance with the
respective terms thereof.
Bombay Canada irrevocably authorizes the Canadian Lender to make or
cause to be made, at or about the time of each Advance or at the time of
receipt of any payment of principal of this Note, an appropriate notation on
the grid attached to this Note, or the continuation of such grid, or any other
similar record, including computer records, reflecting the making of such
Canadian Advances or (as the case may be) the receipt of such payment. The
outstanding amount of the Canadian Advances set forth on the grid attached to
this Note, or the continuation of such grid, or any other similar record,
including computer records, maintained by the Canadian Lender with respect to
any Canadian Advances shall be prima facie evidence of the principal amount
thereof owing and unpaid to the Canadian Lender, but the failure to record, or
any error in so recording, any such amount on any such grid, continuation or
other record shall not limit or otherwise affect the obligation of Bombay
Canada hereunder or under the Loan Agreement to make payments of principal of
and interest on this Note when due.
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Bombay Canada has the right in certain circumstances and the obligation
under certain other circumstances to prepay the whole or part of the principal
of this Note on the terms and conditions specified in the Loan Agreement.
If any one or more of the Events of Default shall occur, the entire
unpaid principal amount of this Note and all of the unpaid interest accrued
thereon may become or be declared due and payable in the manner and with the
effect provided in the Loan Agreement.
No delay or omission on the part of the Canadian Lender or any holder
hereof in exercising any right hereunder shall operate as a waiver of such
right or of any other rights of the Canadian Lender or such holder, nor shall
any delay, omission or waiver on any one occasion be deemed a bar or waiver of
the same or any other right on any further occasion.
Bombay Canada and every endorser and guarantor of this Note or the
obligation represented hereby (except for any notice expressly required
pursuant to the Loan Agreement) waive presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any extension
or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
THIS NOTE AND THE OBLIGATIONS OF BOMBAY CANADA HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW OTHER
THAN GENERAL OBLIGATIONS LAW {section}5-1401 AND {section}5-1402). BOMBAY
CANADA AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS NOTE MAY BE BROUGHT IN
ANY FEDERAL COURT IN THE STATE OF NEW YORK AND THE CONSENT TO THE NONEXCLUSIVE
JURISDICTION OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING
MADE UPON THE BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN {section}12 OF THE
LOAN AGREEMENT. BOMBAY CANADA HEREBY WAIVES ANY OBJECTION THAT THEY MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH
SUIT IS BROUGHT IN AN INCONVENIENT COURT.
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IN WITNESS WHEREOF, the undersigned has caused this Note to be signed in
its corporate name by its duly authorized officer as of the day and year first
above written.
THE BOMBAY FURNITURE COMPANY OF CANADA
INC.
By: /S/ XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Date Amount of Amount of Principal Balance of Principal Notation Made
Advance Paid or Prepaid Unpaid By:
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