Guaranty of Payment Agreement - Trex Co. Inc. and Bank of America NA
GUARANTY OF PAYMENT AGREEMENT
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THIS GUARANTY OF PAYMENT AGREEMENT (this "Agreement") is made this 31st
day of January, 2001, by TREX COMPANY, INC., a corporation organized under the
laws of the State of Delaware (the "Guarantor") for the benefit of BANK OF
AMERICA, N. A., a national banking association (the "Lender").
RECITALS
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A. Trex Company, LLC, a corporation organized under the laws of the State
of Delaware (the "Borrower") has applied to the Lender for a revolving credit
facility in the maximum principal amount of $15,000,000 to be used by the
Borrower for working capital purposes (the "Loan"), which is to be advanced
pursuant to the terms of a Financing and Security Agreement of even date
herewith (as amended, modified, restated, substituted, extended and renewed at
any time and from time to time, the "Financing Agreement") by and between the
Borrower and the Lender.
B. All defined terms used in this Agreement and not defined herein shall
have the meaning given to such terms in the Financing Agreement.
C. The Guarantor has requested that the Lender enter into the Financing
Agreement with the Borrower and make the credit facility described in the
Financing Agreement available to the Borrower.
D. The Lender has required, as a condition to entering into the Financing
Agreement, that the Guarantor execute this Agreement as additional security for
the payment and performance of the Obligations.
NOW, THEREFORE, in order to induce the Lender to enter into the Financing
Agreement, the Guarantor covenants and agrees with the Lender as follows:
ARTICLE I
THE GUARANTY
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Section 1.1 Guaranty.
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The Guarantor hereby unconditionally and irrevocably guarantees to the
Lender:
(a) the due and punctual payment in full (and not merely the
collectibility) of the principal of the Obligations and the interest thereon, in
each case when due and payable, all according to the terms of any promissory
note evidencing all or any part of the Obligations and the other Financing
Documents (as that term is defined in the Financing Agreement);
(b) the due and punctual payment in full (and not merely the
collectibility) of all other sums and charges which may at any time be due and
payable in accordance with, or secured by, any promissory note evidencing all or
any part of the Obligations or any of the other Financing Documents;
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(c) the due and punctual performance of all of the other terms,
covenants and conditions contained in the Financing Documents; and
(d) all indebtedness, obligations and liabilities of any kind and
nature of the Borrower to the Lender, whether now existing or hereafter created
or arising, direct or indirect, matured or unmatured, and whether absolute or
contingent, joint, several or joint and several, and howsoever owned, held or
acquired.
Section 1.2 Guaranty Unconditional.
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The obligations and liabilities of the Guarantor under this Agreement shall
be absolute and unconditional, irrespective of the genuineness, validity,
priority, regularity or enforceability of the Financing Agreement, any
promissory note evidencing all or any part of the Obligations, or any of the
other Financing Documents or any other circumstance which might otherwise
constitute a legal or equitable discharge of a surety or guarantor. The
Guarantor expressly agrees that the Lender may, in its sole and absolute
discretion, without notice to or further assent of the Guarantor and without in
any way releasing, affecting or in any way impairing the obligations and
liabilities of the Guarantor hereunder:
(a) waive compliance with, or any defaults under, or grant any other
indulgences under or with respect to any of the Financing Documents;
(b) modify, amend, change or terminate any provisions of any of the
Financing Documents;
(c) grant extensions or renewals of or with respect to any promissory
note evidencing all or any part of the Obligations, any of the other
Financing Documents or any of the Obligations;
(d) effect any release, subordination, compromise or settlement in
connection with any promissory note evidencing all or any part of the
Obligations, any of the other Financing Documents, or any of the
Obligations;
(e) agree to the substitution, exchange, release or other disposition
of any collateral for the Obligations or to the subordination of any lien
or security interest therein;
(f) make advances for the purpose of performing any term, provision or
covenant contained in the Financing Agreement or any of the other Financing
Documents with respect to which the Borrower shall then be in default;
(g) make future advances to the Borrower pursuant to the Financing
Agreement or any of the other Financing Documents;
(h) assign, pledge, hypothecate or otherwise transfer the Financing
Agreement, any of the Financing Documents or this Agreement or any interest
therein;
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(i) deal in all respects with the Borrower as if this Agreement were
not in effect; and
(j) effect any release, compromise or settlement with another
guarantor.
Section 1.3 Guaranty Primary.
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The obligations and liabilities of the Guarantor under this Agreement shall
be primary, direct and immediate, shall not be subject to any counterclaim,
recoupment, setoff, reduction or defense based upon any claim that the Guarantor
may have against the Borrower, the Lender and/or any other guarantor and shall
not be conditional or contingent upon pursuit or enforcement by the Lender of
any remedies it may have against the Borrower with respect to any promissory
note evidencing all or any part of the Obligations or any of the other Financing
Documents, whether pursuant to the terms thereof or by operation of law.
Without limiting the generality of the foregoing, the Lender shall not be
required to make any demand upon the Borrower, or to pursue, enforce or exhaust
its remedies against the Borrower or any collateral either before, concurrently
with or after pursuing or enforcing its rights and remedies hereunder. Any one
or more successive or concurrent actions or proceedings may be brought against
the Guarantor under this Agreement, either in the same action, if any, brought
against the Borrower or in separate actions or proceedings, as often as the
Lender may deem expedient or advisable. Without limiting the foregoing, it is
specifically understood that any modification, limitation or discharge of any of
the liabilities or obligations of the Borrower, any other guarantor or any
obligor under any of the Financing Documents, arising out of, or by virtue of,
any bankruptcy, arrangement, reorganization or similar proceeding for relief of
debtors under federal or state law initiated by or against the Borrower or the
Guarantor or any obligor under any of the Financing Documents shall not modify,
limit, lessen, reduce, impair, discharge, or otherwise affect the liability of
the Guarantor hereunder in any manner whatsoever, and this Agreement shall
remain and continue in full force and effect. It is the intent and purpose of
this Agreement that the Guarantor shall and does hereby waive all rights and
benefits which might accrue to any other guarantor by reason of any such
proceeding, and the Guarantor agrees that it shall be liable for the full amount
of the obligations and liabilities under this Agreement, regardless of, and
irrespective to, any modification, limitation or discharge of the liability of
the Borrower, any other guarantor or any obligor under any of the Financing
Documents, that may result from any such proceedings.
Section 1.4 Certain Waivers by the Guarantor.
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The Guarantor hereby unconditionally, irrevocably and expressly waives:
(a) presentment and demand for payment of the principal of or interest
on any promissory note evidencing all or any part of the Obligations and
protest of non-payment;
(b) notice of acceptance of this Agreement and of presentment, demand
and protest thereof;
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(c) notice of any default hereunder or under the Financing Agreement,
or any of the other Financing Documents and notice of all indulgences;
(d) notice of any increase in the amount of any portion of or all of
the indebtedness guaranteed by this Agreement;
(e) demand for observance, performance or enforcement of any of the
terms or provisions of this Agreement, the Financing Agreement or any of
the other Financing Documents;
(f) all errors and omissions in connection with the Lender's
administration of all indebtedness guaranteed by this Agreement, except
errors and omissions resulting from acts of bad faith;
(g) any right or claim of right to cause a marshalling of the assets of
the Borrower;
(h) any act or omission of the Lender (except acts or omissions in bad
faith) which changes the scope of the Guarantor's risk hereunder; and
(i) all other notices and demands otherwise required by law which the
Guarantor may lawfully waive.
Section 1.5 Reimbursement for Expenses.
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In the event the Lender shall commence any action or proceeding for the
enforcement of this Agreement, then the Guarantor will reimburse the Lender,
promptly upon demand, for any and all reasonable expenses incurred by the Lender
in connection with such action or proceeding including, without limitation,
reasonable attorneys' fees together with interest thereon at the Post-Default
Rate.
Section 1.6 Events of Default.
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The occurrence of any one or more of the following events shall constitute
an "Event of Default" under the provisions of this Agreement (individually, an
"Event of Default" and collectively, the "Events of Default"):
(a) The failure of the Guarantor to pay any of the Obligations as and
when due and payable in accordance with the provisions of this Agreement.
(b) Any representation or warranty made in this Agreement or in any
report, statement, schedule, certificate, opinion (including any opinion of
counsel for the Guarantor), financial statement or other document furnished
in connection with this Agreement, shall prove to have been false or
misleading when made (or, if applicable, when reaffirmed) in any material
respect.
(c) The failure of the Guarantor to perform, observe or comply with any
covenant, condition or agreement contained in this Agreement.
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(d) A default shall occur under any of the other Financing Documents
and such default is not cured within any applicable grace period provided
therein.
(e) The Guarantor shall (i) apply for or consent to the appointment of
a receiver, trustee or liquidator of itself or any of its property, (ii)
admit in writing its inability to pay its debts as they mature, (iii) make
a general assignment for the benefit of creditors, (iv) be adjudicated a
bankrupt or insolvent, (v) file a voluntary petition in bankruptcy or a
petition or an answer seeking or consenting to reorganization or an
arrangement with creditors or to take advantage of any bankruptcy,
reorganization, insolvency, readjustment of debt, dissolution or
liquidation law or statute, or an answer admitting the material allegations
of a petition filed against it in any proceeding under any such law, or
take corporate action for the purposes of effecting any of the foregoing,
or (vi) by any act indicate its consent to, approval of or acquiescence in
any such proceeding or the appointment of any receiver of or trustee for
any of its property, or suffer any such receivership, trusteeship or
proceeding to continue undischarged for a period of ninety (90) days, or
(vii) by any act indicate its consent to, approval of or acquiescence in
any order, judgment or decree by any court of competent jurisdiction or any
Governmental Authority enjoining or otherwise prohibiting the operation of
a material portion of the Guarantor's business or the use or disposition of
a material portion of the Guarantor's assets.
(f) (i) An order for relief shall be entered in any involuntary case
brought against the Guarantor under the Bankruptcy Code, or (ii) any such
case shall be commenced against the Guarantor and shall not be dismissed
within ninety (90) days after the filing of the petition, or (iii) an
order, judgment or decree under any other Law is entered by any court of
competent jurisdiction or by any other Governmental Authority on the
application of a Governmental Authority or of a Person other than the
Guarantor (A) adjudicating the Guarantor bankrupt or insolvent, or (B)
appointing a receiver, trustee or liquidator of the Guarantor, or of a
material portion of the Guarantor's assets, or (C) enjoining, prohibiting
or otherwise limiting the operation of a material portion of the
Guarantor's business or the use or disposition of a material portion of the
Guarantor's assets, and such order, judgment or decree continues unstayed
and in effect for a period of thirty (30) days from the date entered.
(g) Unless adequately insured in the opinion of the Lender, the entry
of a final judgment for the payment of money involving more than $10,000
against the Guarantor, and the failure by the Guarantor to discharge the
same, or cause it to be discharged, within thirty (30) days from the date
of the order, decree or process under which or pursuant to which such
judgment was entered, or to secure a stay of execution pending appeal of
such judgment.
(h) If the Lender in its sole discretion determines in good faith that
a material adverse change has occurred in the financial condition of the
Guarantor.
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(i) If the Guarantor shall liquidate, dissolve or terminate its
existence or any change occurs in the management or control of the
Guarantor without the prior written consent of the Lender.
Section 1.7 Rescission of Election to Accelerate.
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In the event the Lender shall elect to accelerate the maturity of any
promissory note evidencing all or any part of the Obligations as to the
Guarantor pursuant to the provisions of this Agreement, such election may be
rescinded by written acknowledgment to that effect by the Lender; provided,
however, that the acceptance of a partial payment on account of any promissory
note evidencing all or any part of the Obligations shall not alone effect or
rescind such election.
Section 1.8 Subordination; Subrogation.
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In the event the Guarantor shall advance any sums to the Borrower, or in
the event the Borrower has heretofore or shall hereafter become indebted to the
Guarantor before the Obligations have been paid in full, all such advances and
indebtedness shall be subordinate in all respects to the Obligations (the
"Guarantor Subordinated Debt"). Any payment to the Guarantor on account of the
Guarantor Subordinated Debt shall be collected and received by the Lender or the
Guarantor in trust for the Lender and shall be paid over to the Lender on
account of the Obligations without impairing or releasing the obligations of the
Guarantor hereunder.
Without the prior written consent of the Lender, the Guarantor shall not
ask, demand, receive, accept, sue for, set off, collect or enforce the Guarantor
Subordinated Debt or any collateral and security therefor. The Guarantor
represents and warrants to the Lender that the Guarantor Subordinated Debt is
unsecured and agrees not to receive or accept any collateral or security
therefor without the prior written permission of the Lender. The Guarantor
shall not assign, transfer, hypothecate or dispose of the Guarantor Subordinated
Debt while this Agreement is in effect. In the event of any sale, receivership,
insolvency or bankruptcy proceeding, or assignment for the benefit of creditors,
or any proceeding by or against the Borrower for any relief under any bankruptcy
or insolvency law or other laws relating to the relief of debtors, readjustment
of indebtedness, reorganizations, compositions or extensions, then and in any
such event any payment or distribution of any kind or character, either in cash,
securities or other property, which shall be payable or deliverable upon, or
with respect to, all or any part of the Guarantor Subordinated Debt or otherwise
shall be paid or delivered directly to the Lender for application to the
obligations and liabilities of the Guarantor under this Agreement (whether due
or not due and in such order and manner as the Lender may determine in the
exercise of its sole discretion) until the obligations of the Guarantor
hereunder shall have been fully paid and satisfied. The Guarantor hereby
irrevocably authorizes and empowers the Lender to demand, sue for, collect and
receive every such payment or distribution on account of the Guarantor
Subordinated Debt and give acquittance therefor and to file claims and take such
other proceedings in the Lender's own name or in the name of the Guarantor or
otherwise, as the Lender may deem necessary or advisable to carry out the
provisions of this Agreement. The Guarantor hereby agrees to execute and
deliver to the Lender such powers of attorney, assignments, endorsements or
other instruments as may be requested by the Lender in order to enable the
Lender to enforce any and all claims upon, or with respect to, the Guarantor
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Subordinated Debt, and to collect and receive any and all payments or
distributions which may be payable or deliverable at any time upon or with
respect thereto.
So as to secure the performance by the Guarantor of the provisions of this
Agreement, the Guarantor assigns, pledges and grants to the Lender a security
interest in, and lien on, the Guarantor Subordinated Debt, all proceeds thereof
and all and any security and collateral therefor. Upon the request of the
Lender, the Guarantor shall endorse, assign and deliver to the Lender all notes,
instruments and agreements evidencing, securing, guarantying or made in
connection with the Guarantor Subordinated Debt.
Nothing contained in this Agreement shall be construed to give the
Guarantor any right of subrogation in or to the Obligations or any of the
Financing Documents, or all or any part of the interest of the Lender therein,
until the Obligations have been paid in full.
Section 1.9 Arbitration and Waiver of Jury Trial.
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(a) This paragraph concerns the resolution of any controversies or
claims between the Borrower and the Lender, whether arising in contract, tort or
by statute, including but not limited to controversies or claims that arise out
of or relate to: (i) this Agreement (including any renewals, extensions or
modifications); or (ii) any document related to this Agreement; (collectively a
"Claim").
(b) At the request of the Borrower or the Lender, any Claim shall be
resolved by binding arbitration in accordance with the Federal Arbitration Act
(Title 9, U. S. Code) (the "Act"). The Act will apply even though this Agreement
provides that it is governed by the law of a specified state.
(c) Arbitration proceedings will be determined in accordance with the
Act, the rules and procedures for the arbitration of financial services disputes
of J.A.M.S./Endispute or any successor thereof ("J.A.M.S."), and the terms of
this paragraph. In the event of any inconsistency, the terms of this paragraph
shall control.
(d) The arbitration shall be administered by J.A.M.S. and conducted in
any U. S. state where real or tangible personal property collateral for this
credit is located or if there is no such collateral, in the Commonwealth of
Virginia. All Claims shall be determined by one arbitrator; however, if Claims
exceed $5,000,000, upon the request of any party, the Claims shall be decided by
three arbitrators. All arbitration hearings shall commence within 90 days of the
demand for arbitration and close within 90 days of commencement and the award of
the arbitrator(s) shall be issued within 30 days of the close of the hearing.
However, the arbitrator(s), upon a showing of good cause, may extend the
commencement of the hearing for up to an additional 60 days. The arbitrator(s)
shall provide a concise written statement of reasons for the award. The
arbitration award may be submitted to any court having jurisdiction to be
confirmed and enforced.
(e) The arbitrator(s) will have the authority to decide whether any
Claim is barred by the statute of limitations and, if so, to dismiss the
arbitration on that basis. For purposes of the application of the statute of
limitations, the service on J.A.M.S. under applicable J.A.M.S. rules of a notice
of Claim is the equivalent of the filing of a lawsuit. Any dispute
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concerning this arbitration provision or whether a Claim is arbitrable shall be
determined by the arbitrator(s). The arbitrator(s) shall have the power to award
legal fees pursuant to the terms of this Agreement.
(f) This paragraph does not limit the right of the Borrower or the
Lender to: (i) exercise self-help remedies, such as but not limited to, setoff;
(ii) initiate judicial or nonjudicial foreclosure against any real or personal
property collateral; (iii) exercise any judicial or power of sale rights, or
(iv) act in a court of law to obtain an interim remedy, such as but not limited
to, injunctive relief, writ of possession or appointment of a receiver, or
additional or supplementary remedies.
(g) By agreeing to binding arbitration, the parties irrevocably and
voluntarily waive any right they may have to a trial by jury in respect of any
Claim. Furthermore, without intending in any way to limit this Agreement to
arbitrate, to the extent any Claim is not arbitrated, the parties irrevocably
and voluntarily waive any right they may have to a trial by jury in respect of
such Claim. This provision is a material inducement for the parties entering
into this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
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Section 2.1 Representations and Warranties.
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The Guarantor represents and warrants to the Lender as follows:
2.1.1 Good Standing.
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The Guarantor (a) is a corporation duly organized, existing
and in good standing under the laws of the jurisdiction of its organization, (b)
has the power to own its property and to carry on its business as now being
conducted, and (c) is duly qualified to do business and is in good standing in
each jurisdiction in which the character of the properties owned by it therein
or in which the transaction of its business makes such qualification necessary.
2.1.2 Power and Authority.
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The Guarantor has full power and authority to execute and
deliver this Agreement and the other Financing Documents to which it is a party
and to incur and perform the Obligations whether under this Agreement, the other
Financing Documents or otherwise, all of which have been duly authorized by all
proper and necessary action under the governing documents of the Guarantor. No
consent or approval of owners or any creditors of the Guarantor, and no consent,
approval, filing or registration with or notice to any Governmental Authority on
the part of the Guarantor, is required as a condition to the execution,
delivery, validity or enforceability of this Agreement or the other Financing
Documents or the performance by the Guarantor of the Obligations.
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2.1.3 Binding Agreements.
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This Agreement and the other Financing Documents executed and
delivered by the Guarantor have been properly executed and delivered and
constitute the valid and legally binding obligations of the Guarantor and are
fully enforceable against the Guarantor in accordance with their respective
terms.
2.1.4 No Conflicts.
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Neither the execution, delivery and performance of the terms
of this Agreement or of any of the other Financing Documents executed and
delivered by the Guarantor nor the consummation of the transactions contemplated
by this Agreement will conflict with, violate or be prevented by (a) the
Guarantor's charter or bylaws, (b) any existing mortgage, indenture, contract or
agreement binding on the Guarantor or affecting its property, or (c) any Laws.
2.1.5 Compliance with Laws.
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The Guarantor is not in violation of any applicable Laws
(including, without limitation, any Laws relating to employment practices, to
environmental, occupational and health standards and controls) or order, writ,
injunction, decree or demand of any court, arbitrator or any Governmental
Authority affecting the Guarantor or any of its properties, the violation of
which, considered in the aggregate, could materially adversely affect the
business, operations or properties of the Guarantor.
2.1.6 Litigation.
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There are no proceedings, actions or investigations pending
or, so far as the Guarantor knows, threatened before or by any court, arbitrator
or any Governmental Authority which, in any one case or in the aggregate, if
determined adversely to the interests of the Guarantor, would have a material
adverse effect on the business, properties, condition (financial or otherwise)
or operations, present or prospective, of the Guarantor.
2.1.7 Financial Condition.
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The financial statements of the Guarantor dated September 30,
2000, are complete and correct and fairly present the financial position of the
Guarantor and the results of its operations and transactions in its surplus
accounts as of the date and for the period referred to and have been prepared in
accordance with GAAP applied on a consistent basis throughout the period
involved. There are no liabilities, direct or indirect, fixed or contingent, of
the Guarantor as of the date of such financial statements that are not reflected
therein or in the notes thereto. There has been no adverse change in the
financial condition or operations of the Guarantor since the date of such
financial statements and to the Guarantor's knowledge no such adverse change is
pending or threatened. The Guarantor has not guaranteed the obligations of, or
made any investment in or advances to, any Person, except as disclosed in such
financial statements. The representations and warranties contained in this
Section shall also cover financial statements furnished from time to time to the
Lender pursuant to Section 3.3 (Financial Records; Inspection).
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2.1.8 Full Disclosure.
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The financial statements referred to in Section 2.1.9
(Financial Condition), the Financing Documents (including, without limitation,
this Agreement), and the statements, reports or certificates furnished by the
Guarantor in connection with the Financing Documents (a) do not contain any
untrue statement of a material fact and (b) when taken in their entirety, do not
omit any material fact necessary to make the statements contained therein not
misleading. There is no fact known to the Guarantor which the Guarantor has not
disclosed to the Lender in writing prior to the date of this Agreement which
materially and adversely affects or in the future could, in the reasonable
opinion of the Guarantor materially adversely affect the condition, financial or
other wise, results of operations, business, or assets of the Guarantor.
2.1.9 Financial Interest.
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The Guarantor has a financial interest in the Borrower and
will derive a benefit from the Loan extended to and the Obligations incurred by
the Borrower, and hereby waives any claim that the Lender violated the Equal
Credit Opportunity Act (15 U.S.C. 1691 et seq.) in connection with the Loan, any
of the Financing Documents or any of the other Obligations or security for any
obligation which is the subject thereto.
Section 2.2 Survival; Updates of Representations and Warranties.
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All representations and warranties contained in or made under or in
connection with this Agreement and the other Financing Documents shall survive
the Closing Date, the making of any advance under the Financing Agreement and
the incurring of any Obligations.
ARTICLE III
AFFIRMATIVE COVENANTS
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The Guarantor hereby covenants and agrees as follows:
Section 3.1 Existence.
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The Guarantor shall maintain its existence in good standing in the
jurisdiction in which it is organized and in each other jurisdiction where it is
required to register or qualify to do business if the failure to do so in such
other jurisdiction might have a material adverse effect on the ability of the
Guarantor to perform the Obligations, on the conduct of the Guarantor's
operations or on the Guarantor's financial condition.
Section 3.2 Further Assurances.
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The Guarantor will make, execute, acknowledge and deliver all and every
such further acts and assurances as the Lender shall from time to time require
for confirming or carrying out the intentions or facilitating the performance of
the terms of this Agreement.
Section 3.3 Financial Records; Inspection.
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The Guarantor will (a) maintain or cause to be maintained full, complete,
accurate and adequate records and books of account in accordance with generally
accepted accounting principles consistently applied; (b) permit the Lender and
its duly authorized agents, attorneys
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and accountants to inspect, examine, and copy its records and books of account
at all reasonable times; (c) provide to the Lender within ninety (90) days after
each calendar/fiscal year end, the Guarantor's financial statements certified by
the Guarantor to be true and correct, in such form and detail as may be
reasonably requested by the Lender; and (d) promptly deliver to the Lender such
other information with respect to the financial statements of the Guarantor as
the Lender may from time to time require.
Section 3.4 Estoppel Certificates.
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Within ten (10) days following any request of the Lender so to do, the
Guarantor will furnish the Lender and such other persons as the Lender may
direct with a written certificate, duly acknowledged stating in detail whether
or not any credits, offsets or defenses exist with respect to this Agreement.
ARTICLE IV
MISCELLANEOUS
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Section 4.1 Notices.
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All notices, requests and demands to or upon the parties to this Agreement
shall be in writing and shall be deemed to have been given or made when
delivered by hand on a Business Day, or two (2) days after the date when
deposited in the mail, postage prepaid by registered or certified mail, return
receipt requested, or when sent by overnight courier, on the Business Day next
following the day on which the notice is delivered to such overnight courier,
addressed as follows:
Guarantor: Trex Company, Inc.
___________________________
___________________________
Attention: _______________
Lender: Bank of America, N. A.
8600 Greensboro Drive, Suite 550
McLean, Virginia 22102
Attention: Elaine Eaton
By written notice, each party to this Agreement may change the address to
which notice is given to that party, provided that such changed notice shall
include a street address to which notices may be delivered by overnight courier
in the ordinary course on any Business Day.
Section 4.2 Amendments; Waivers.
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This Agreement may not be amended, modified, or changed in any respect
except by an agreement in writing signed by the Lender and the Guarantor. No
waiver of any provision of this Agreement, nor consent to any departure by the
Guarantor therefrom, shall in any event be effective unless the same shall be in
writing. No course of dealing between the Guarantor and the Lender and no act
or failure to act from time to time on the part of the Lender shall constitute
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a waiver, amendment or modification of any provision of this Agreement or any
right or remedy under this Agreement or under applicable Laws.
Without implying any limitation on the foregoing:
(a) Any waiver or consent shall be effective only in the specific
instance, for the terms and purpose for which given, subject to such
conditions as the Lender may specify in any such instrument.
(b) No waiver of any Default or Event of Default shall extend to any
subsequent or other Default or Event of Default, or impair any right
consequent thereto.
(c) No notice to or demand on the Guarantor in any case shall entitle
the Guarantor to any other or further notice or demand in the same, similar
or other circumstance.
(d) 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 Financing Documents, or to exercise any right, power
or remedy consequent upon a breach thereof, shall constitute a waiver,
amendment or modification 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 time or times.
(e) By accepting payment after the due date of any amount payable under
this Agreement or under any of the other Financing 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 any of
the other Financing Documents, or to declare a default for failure to
effect such prompt payment of any such other amount.
Section 4.3 Cumulative Remedies.
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The rights, powers and remedies provided in this Agreement and in the other
Financing Documents are cumulative, may be exercised concurrently or separately,
may be exercised from time to time and in such order as the Lender shall
determine and are in addition to, and not exclusive of, rights, powers and
remedies provided by existing or future applicable Laws. In order to entitle
the Lender to exercise any remedy reserved to it in this Agreement, it shall not
be necessary to give any notice, other than such notice as may be expressly
required in this Agreement. Without limiting the generality of the foregoing,
the Lender may:
(a) proceed against the Guarantor with or without proceeding against
the Borrower or any other Person who may be liable for all or any part of
the Obligations;
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(b) proceed against the Guarantor with or without proceeding under any
of the other Financing Documents or against any collateral and security for
all or any part of the Obligations;
(c) without reducing or impairing the obligation of the Guarantor and
without notice, release or compromise with any other Person liable for all
or any part of the Obligations under the Financing Documents or otherwise;
or
(d) without reducing or impairing the obligations of the Guarantor and
without notice thereof: (i) fail to perfect the Lien in any or all
collateral or to release any or all the collateral or to accept substitute
collateral, (ii) approve the making of advances under the credit facilities
under the Financing Agreement, (iii) waive any provision of this Agreement
or the other Financing Documents, (iv) exercise or fail to exercise rights
of set-off or other rights, or (v) accept partial payments or extend from
time to time the maturity of all or any part of the Obligations.
Section 4.4 Severability.
-------------
In case one or more provisions, or part thereof, contained in this
Agreement or in the other Financing Documents shall be invalid, illegal or
unenforceable in any respect under any Law, then without need for any further
agreement, notice or action:
(a) the validity, legality and enforceability of the remaining
provisions shall remain effective and binding on the parties thereto and
shall not be affected or impaired thereby;
(b) the obligation to be fulfilled shall be reduced to the limit of
such validity;
(c) if such provision or part thereof pertains to repayment of the
Obligations, then, at the sole and absolute discretion of the Lender, all
of the Obligations shall become immediately due and payable; and
(d) if the affected provision or part thereof does not pertain to
repayment of the Obligations, but operates or would prospectively operate
to invalidate this Agreement in whole or in part, then such provision or
part thereof only shall be void, and the remainder of this Agreement shall
remain operative and in full force and effect.
Section 4.5 Assignments by Lender.
----------------------
The Lender may, without notice to, or consent of, the Guarantor, sell,
assign or transfer to or participate with any Person or Persons all or any part
of the Obligations, and each such Person or Persons shall have the right to
enforce the provisions of this Agreement and any of the other Financing
Documents as fully as the Lender, provided that the Lender shall continue to
have the unimpaired right to enforce the provisions of this Agreement and any of
the other Financing Documents as to so much of the Obligations that the Lender
has not sold, assigned or transferred.
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In connection with the foregoing, the Lender shall have the right to disclose to
any such actual or potential purchaser, assignee, transferee or participant all
financial records, information, reports, financial statements and documents
obtained in connection with this Agreement and any of the other Financing
Documents or otherwise.
Section 4.6 Successors and Assigns.
-----------------------
This Agreement shall be binding upon the Guarantor and its successors and
assigns, and shall inure to the benefit of the Lender and its successors and
assigns.
Section 4.7 Continuing Agreements.
----------------------
All covenants, agreements, representations and warranties made by the
Guarantor in this Agreement and in any certificate delivered pursuant hereto
shall survive the making by the Lender of advances and other extensions of
credit under the Loan and the execution and delivery of each promissory note
evidencing all or any part of the Obligations, shall be binding upon the
Guarantor regardless of how long before or after the date hereof any of the
Obligations were or are incurred, and shall continue in full force and effect so
long as any of the Obligations are outstanding and unpaid. From time to time
upon the Lender's request, and as a condition of the release of any one or more
of the Security Documents, the Guarantor and other Persons obligated with
respect to the Obligations shall provide the Lender with such acknowledgments
and agreements as the Lender may require to the effect that there exists no
defenses, rights of setoff or recoupment, claims, counterclaims, actions or
causes of action of any kind or nature whatsoever against the Lender, its agents
and others, or to the extent there are, the same are waived and released.
Section 4.8 Enforcement Costs.
------------------
The Guarantor agrees to pay to the Lender on demand all reasonable
Enforcement Costs, together with interest thereon from the date incurred or
advanced until paid in full at a per annum rate of interest equal at all times
to the Post -Default Rate. Enforcement Costs shall be immediately due and
payable at the time advanced or incurred, whichever is earlier. Without
implying any limitation on the foregoing, the Guarantor agrees, as part of the
Enforcement Costs, to pay upon demand any and all stamp and other Taxes and fees
payable or determined to be payable in connection with the execution and
delivery of this Agreement and to save the Lender harmless from and against any
and all liabilities with respect to or resulting from any delay in paying or
omission to pay any Taxes or fees referred to in this Section. The provisions
of this Section shall survive the execution and delivery of this Agreement, the
repayment of the other Obligations and shall survive the termination of this
Agreement.
Section 4.9 Applicable Law.
---------------
As a material inducement to the Lender to enter into this Agreement, the
Guarantor acknowledges and agrees that the Financing Documents, including, this
Agreement, shall be governed by the Laws of the Commonwealth of Virginia, as if
each of the Financing Documents and this Agreement had each been executed,
delivered, administered and performed solely within the Commonwealth of Virginia
even though for the convenience and at the request of the Borrower, one or more
of the Financing Documents may be executed elsewhere. The Lender acknowledges,
however, that remedies under certain of the Financing Documents that relate to
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property outside the Commonwealth of Virginia may be subject to the laws of the
state in which the property is located.
Section 4.10 Duplicate Originals and Counterparts.
-------------------------------------
This Agreement may be executed in any number of duplicate originals or
counterparts, each of such duplicate originals or counterparts shall be deemed
to be an original and all taken together shall constitute but one and the same
instrument.
Section 4.11 Headings; Etc.
--------------
The headings in this Agreement are included herein for convenience only,
shall not constitute a part of this Agreement for any other purpose, and shall
not be deemed to affect the meaning or construction of any of the provisions
hereof. The above Recitals are part of this Agreement.
Section 4.12 No Partnership; Third Parties.
------------------------------
Nothing contained in this Agreement shall be construed in a manner to
create any relationship between the Guarantor and the Lender other than the
relationship of guarantor and lender and the Guarantor and the Lender shall not
be considered partners or co-venturers for any purpose. The terms and
provisions of this Agreement are for the benefit of the Lender and its
successors, assigns, endorsees and transferees and all persons claiming under or
through it and no other person shall have any right or cause of action on
account thereof. The Lender has no obligation to make any advance of any loan
provided for in the Financing Agreement or otherwise for the benefit of the
Guarantor; the Guarantor has no beneficial interest in the proceeds of any of
the loans or otherwise under the Obligations or rights or claims under the
Financing Agreement or any of the other Financing Documents. The obligations
and liabilities of the Guarantor shall in no manner be affected by the actual
use of the proceeds of the Loan or otherwise or whether the Lender waives any or
all of the conditions to advances set forth in the Financing Agreement or any of
the other Financing Documents.
Section 4.13 Entire Agreement.
-----------------
This Agreement is intended by the Lender and the Guarantor to be a
complete, exclusive and final expression of the agreements contained herein.
Neither the Lender nor the Guarantor shall hereafter have any rights under any
prior agreements pertaining to the matters addressed by this Agreement but shall
look solely to this Agreement for definition and determination of all of their
respective rights, liabilities and responsibilities under this Agreement.
Section 4.14 Consent to Jurisdiction.
------------------------
The Guarantor, irrevocably submits to the jurisdiction of any state or
federal court sitting in the Commonwealth of Virginia over any suit, action, or
proceeding arising out of or relating to this Agreement. The Guarantor
irrevocably waives, to the fullest extent permitted by law, any objection that
it may now or hereafter have to laying the venue of any such suit, action, or
proceeding brought in any such court and any claim that any such suit, action,
or proceeding brought in any such court has been brought in an inconvenient
forum. Final judgment in any such suit, action, or proceeding brought in any
such court shall be conclusive and binding upon the Guarantor and may be
enforced in any court to the jurisdiction of which the Guarantor is
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subject, by a suit upon such judgment provided that service of process is
effected upon the Guarantor in a manner specified in this Agreement or as
otherwise permitted by applicable law.
Section 4.15 WAIVER OF TRIAL BY JURY.
------------------------
THE GUARANTOR AND THE LENDER HEREBY JOINTLY AND SEVERALLY WAIVE TRIAL BY
JURY IN ANY ACTION OR PROCEEDING TO WHICH THE GUARANTOR AND THE LENDER MAY BE
PARTIES, ARISING OUT OF OR IN ANY WAY PERTAINING TO (A) THIS AGREEMENT, (B) ANY
OF THE FINANCING DOCUMENTS, OR (C) THE COLLA TERAL. THIS WAIVER CONSTITUTES A
WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALL PARTIES TO SUCH ACTIONS OR PRO
CEEDINGS, INCLUDING CLAIMS AGAINST PARTIES WHO ARE NOT PARTIES TO THIS
AGREEMENT.
This waiver is knowingly, willingly and voluntarily made by the Guarantor
and the Lender, and the Guarantor and the Lender hereby represent that no
representations of fact or opinion have been made by any individual to induce
this waiver of trial by jury or to in any way modify or nullify its effect. The
Guarantor and the Lender further represent that they have been represented in
the signing of this Agreement and in the making of this waiver by independent
legal counsel, selected of their own free will, and that they have had the
opportunity to discuss this waiver with counsel.
Section 4.16 Reinstatement.
--------------
If at any time any payment, or portion thereof, made by, or for the account
of, the Borrower or the Guarantor on account of any of the obligations and
liabilities arising hereunder or under any of the Financing Documents is set
aside by any court or trustee having jurisdiction as a voidable preference or
fraudulent conveyance or must otherwise be restored or returned by the Lender to
the Borrower or to the Guarantor under any insolvency, bankruptcy or other
federal and/or state laws or as a result of any dissolution, liquidation or
reorganization of the Borrower or upon, or as a result of, the appointment of
any receiver, intervenor or conservator of, or trustee, or similar officer for,
the Borrower or any substantial part of its properties or assets, the Guarantor
hereby agrees that this Agreement shall continue and remain in full force and
effect or be reinstated, as the case may be, all as though such payment(s) had
not been made.
Section 4.17 Complete and Final Expression of Agreement.
-------------------------------------------
This Agreement is intended by the Lender and the Guarantor to be a
complete, exclusive and final expression of the agreements contained herein. No
course of dealing, course of performance or trade usage, and no parol evidence
of any nature, shall be used to supplement or modify any terms of this
Agreement. The Lender and the Guarantor further agree that there are no
conditions to the full effectiveness of this Agreement, unless otherwise
expressly stated herein. The Guarantor has unconditionally delivered this
Agreement to the Lender, and failure to sign this or any other guarantee by any
other person shall not discharge the liability of the Guarantor hereunder.
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WITNESS the signature and seal of the Guarantor as of the day and year
first above written.
TREX COMPANY, INC.
By: /s/ Anthony J. Cavanna (SEAL)
------------------------------
Name: Anthony J. Cavanna
Title: Chief Financial Officer
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