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Exhibit 10.14
THIS NOTE IS SUBJECT TO A PROHIBITION ON TRANSFER
SUBORDINATED PROMISSORY NOTE
Cleveland, Ohio
$7,500,000 June 12, 1998
FOR VALUE RECEIVED, the undersigned, American Architectural
Products Corporation, a Delaware corporation ("AAPC"), promises to pay to the
order of Louisiana-Pacific Corporation, a Delaware corporation, ("L-P"), the
principal amount of SEVEN MILLION FIVE HUNDRED THOUSAND DOLLARS ($7,500,000),
together with interest (calculated on the basis of a year of 360 days and based
upon the number of days actually elapsed) on the daily unpaid principal balance
hereof from the date hereof at a rate per annum equal to the average LIBOR rate
over the term of the Note as reported in the daily edition of the Wall Street
Journal plus 1.5%. Interest shall accrue from the date hereof and the principal
balance hereof and all accrued but unpaid interest thereon shall be due and
payable within three (3) days of the closing of the first to occur of (i) an
AAPC common stock offering in an amount equal to or greater than 15,000,000, or
(ii) an AAPC high yield debt offering in an amount equal to or greater than
50,000,000, or in any event, no later than June 30, 1999. AAPC shall have the
right to prepay the principal amount of this Subordinated Promissory Note (this
"Note") with then accrued interest, in whole or in part, at any time, without
premium or penalty.
This Note is being delivered in accordance with SUBSECTIONS
3.1.2 and 4.3.1 of the Asset Purchase Agreement between L-P and Weather-Seal
Acquisition Corporation ("WAC"), dated as of June 5, 1998 (the "Purchase
Agreement"), and is subject to the terms and conditions of the Purchase
Agreement, including, without limitation, SECTION 10.8 of the Purchase
Agreement, which provides that neither AAPC nor WAC shall have any right to set
off Damages (as defined in the Purchase Agreement) against payments due under
this Note, and SECTION 10.1 of the Purchase Agreement which provides, among
other things, that WAC (as guaranteed by AAPC) shall indemnify L-P for any
Damages L-P may incur due to (i) any breach by AAPC of the terms of this Note,
or (ii) the collection of amounts owed under, or the enforcement of the terms
of, this Note.
If any amount of principal or interest payable hereunder is
not paid when due (whether at stated maturity, by acceleration or otherwise),
then the entire outstanding principal balance hereof, together with all overdue
interest, shall at the L-P's option (exercised then or thereafter) automatically
and immediately accrue interest until such default is cured, payable on demand,
at a rate per annum equal to the greater of (i) 5% per annum above the interest
rate otherwise in effect, or (ii) twelve (12)% per annum.
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No delay or omission on the part of L-P in exercising any
right or remedy hereunder or in connection herewith shall operate as a waiver of
such right or remedy or of any other right or remedy hereunder or in connection
herewith. Any waiver of L-P's rights or remedies hereunder or in connection
herewith must be in writing and signed by L-P. A waiver on any one occasion
shall not be construed as a bar to or waiver of any such right or remedy on a
future occasion.
AAPC represents that (i) it has legal power and right to
execute and deliver this Note and to perform and observe the provisions of this
Note; (ii) by executing and delivering this Note and by performing and observing
the provisions of this Note, AAPC will not violate any existing provision of its
certificate of incorporation or bylaws or any applicable law or violate or
otherwise become in default under any existing contract, including any
agreements for borrowed money or otherwise evidencing or relating to any
Indebtedness, or other obligations binding upon AAPC; (iii) the officer or
officers executing and delivering this Note on behalf of AAPC have been duly
authorized to do so; and (iv) this Note, when executed, is legally binding upon
AAPC in every respect. For purposed of this Note "Indebtedness" shall mean (i)
all obligations to repay borrowed money, direct or indirect, incurred, assumed,
or guaranteed, (ii) all obligations for the deferred purchase price of capital
assets excluding trade payables, (iii) all obligations under conditional sales
or other title retention agreements, and (iv) and all lease obligations which
have been or should be capitalized on the books of any person, corporation,
association, limited liability company, partnership, joint venture, or political
entity or subdivision.
AAPC shall be in default under this Note upon the occurrence
of any of the following events of default ("Events of Default"):
(a) AAPC shall fail to pay any principal of , or interest on,
this Note when the same becomes due and payable; or
(b) any representation or warranty made by AAPC (or any of its
officers) in the Purchase Agreement or in this Note shall prove to have been
incorrect in any material respect when made; or
(c) AAPC shall fail to perform or observe any term, covenant
or agreement contained in this Note on its part to be performed or observed; or
(d) AAPC shall fail to pay any principal of or premium or
interest on any Indebtedness which is outstanding in a principal amount of at
least $1,000,000 (or its equivalent, if in any other currency) in the aggregate
of AAPC when the same becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the agreement,
instrument or document relating to such Indebtedness; or any other event shall
occur or condition shall exist under any agreement, instrument or document
relating to any such Indebtedness and shall continue after the applicable grace
period, if any, specified in such agreement, instrument or document, if the
effect of such event or condition is to accelerate, or to permit the
acceleration of, the maturity of such Indebtedness; or any such Indebtedness
shall be declared to be due and payable, or required to be prepaid (other than
by a regularly scheduled required prepayment), redeemed, purchased or defeased,
or an offer to prepay, redeem, purchase or defease such Indebtedness shall be
required to be made, in each case prior to the stated maturity thereof; or
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(e) AAPC shall generally not pay its debts as such debts
become due, or shall admit in writing its inability to pay its debts generally,
or shall make a general assignment of the benefit of creditors; or any
proceeding shall be instituted by or against AAPC seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official for it or for any
substantial part of its property an, in the case of any such proceeding
instituted against it (but not instituted by it), either such proceeding shall
remain undismissed or unstayed for a period of 30 days, or any of the actions
sought in such proceeding (including, without limitation, the entry of an order
for relief against, or the appointment of a receiver, trustee, custodian or
other similar official for, it or for any substantial part of its property)
shall occur; or AAPC shall take any corporate action to authorize any of the
actions set for the in this subsection (e); or
(f) any judgment or order for the payment of money in excess
of $500,000 (or its equivalent, if in any other currency) shall be rendered
against AAPC and either (i) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order or (ii) there shall be any period of 30
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; or
(g) AAPC shall incur or suffer to exist any Indebtedness other
than the Senior Debt (as defined below); or
(h) AAPC shall transfer or attempt to transfer this Note in
contravention of the terms of this Note;
then, and in any such event, the L-P may, by notice to AAPC, declare this Note,
all interest theron and all other amounts payable under this Note to be
forthwith due and payable, whereupon this Note, all such interest and all such
amounts shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly
waived by AAPC; provided, however, that in the event of an actual or deemed
entry of an order for relief with respect to AAPC of the nature referred to in
clause (e) above, this Note, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which ware hereby expressly waived by
AAPC.
By its acceptance of this Note, L-P agrees that the payment of
the principal, interest and other sums due or to become due on this Note is
hereby expressly subordinated in right of payment to the prior payment in full
of (i) all amounts loaned to AAPC by Bank Boston, NA pursuant to that certain
Credit Agreement, dated June 9, 1998; and (ii) the Indebtedness represented by
AAPC's 11-3/4% Senior Notes due 2007 in the aggregate principal amount of
$125,000,000 (collectively, the "Senior Debt"). If an event occurs and is
continuing which is a default or an event of default, or which with notice or
lapse of time, or both, would become a default or event of default either in
payment of principal of, or interest on, Senior Debt when due, or which under
any agreement relating to Senior Debt would permit the holder thereof to cause
any part of such Senior Debt to become due prior to its stated maturity, whether
by prepayment, acceleration or otherwise, or in the event of any distribution of
the assets of AAPC
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upon any dissolution, winding up, total liquidation or reorganization of AAPC,
no payments of any kind may be made by AAPC with respect to any Indebtedness due
under this Note unless all amounts due on the Senior Debt shall have been paid
or provided for.
This Note shall bind AAPC and its successors and assigns, and
the benefits hereof shall inure to the benefit of L-P and its successors and
assigns. All references herein to the "AAPC" and "L-P" shall be deemed to apply
to AAPC and L-P, respectively, and to their respective successors and assigns.
THIS NOTE IS NOT TRANSFERABLE AND ANY PURPORTED TRANSFER IN
VIOLATION OF THIS PROVISION SHALL BE OF NO FORCE OR EFFECT.
AAPC waived presentment, demand, notice, protest, and all
other demands and notices in connection with delivery, acceptance, performance,
default, or enforcement of this Note. This Note is subject to and shall be
governed by and according to the laws of the State of Ohio.
AAPC hereby irrevocably and unconditionally (i) submits for
itself and its property in any legal action or proceeding relating to this Note,
or for recognition and enforcement of any judgment in respect therefor, to the
non-exclusive general jurisdiction of the courts of the State of Ohio, the
courts of the United States of America for the Northern District of Ohio and
appellate courts from any thereof; (ii) consents that any such action or
proceeding may be brought in such courts, and waives any objection that it may
now or hereafter have to the venue of any such action or proceeding in any such
court or that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same; (iii) agrees that service of process in
any such action or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form of mail),
postage prepaid, to AAPC at its address specified in the Purchase Agreement; and
(iv) agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the right to sue in
any other jurisdiction.
AAPC, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY RIGHT TO HAVE
A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT,
OR OTHERWISE, BETWEEN L-P AND AAPC ARISING OUT OF, IN CONNECTION WITH, RELATED
TO, OR INCIDENTAL TO THE RALATIONSHIP ESTABLISHED BETWEEN AAPC AND L-P IN
CONNECTION WITH THIS NOTE.
IN WITNESS WHEREOF, AAPC has duly executed and delivered this
Note on the date first above written.
AMERICAN ARCHITECTURAL PRODUCTS
CORPORATION
By: /s/ Joseph Dominijanni
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Name: Joseph Dominijanni
Title: Treasurer
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