TRAK INTERNATIONAL, INC.
000 XXXX XXXXXXX XXXXXX
XXXX XXXXXXXXXX, XXXXXXXXX 00000
AMENDED AND RESTATED
SUBORDINATED NOTE AGREEMENT
$2,000,000 15% Subordinated Note
Due February 28, 2004
HARBOUR GROUP INVESTMENTS III, L.P.
c/o Harbour Group III Management Co., L.P.
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
Notices to be addressed as above and
all payments to be credited (by Federal
funds wire transfer or other immediately
available funds) to Harbour Group Investments III, L.P.'s
Account No. __________________ at
Boatmen's Bank
Xxx Xxxxxxx'x Xxxxx
Xx. Xxxxx, XX 00000
ABA
Attn:
identifying each such payment as principal or interest with respect to the
15% Subordinated Note Due February 28, 2004 of TRAK International, Inc.
Gentlemen:
The undersigned, TRAK International, Inc., a Delaware corporation (the
"Company"), agrees with you as follows:
SECTION 1. DESCRIPTION OF NOTE AND COMMITMENT.
1.1. DESCRIPTION OF NOTE.
The Company will authorize the issue and exchange of its Amended
and Restated Subordinated Note in the principal amount of $2,000,000.00, to be
dated the date of issue, to bear interest from such date at a rate of 15% per
annum, compounding semiannually on the fifteenth day of each June and December
in
each year (commencing on the first of such dates after the date hereof) (each an
"Interest Date"), payable as provided in Section 2.3 hereof and at maturity, and
to pay interest on overdue principal (including overdue required prepayment of
principal) and (to the extent legally enforceable) on any overdue installment of
interest at the rate of 16% per annum after maturity, whether by acceleration or
otherwise, until paid, to be expressed to mature on February 28, 2004, and
otherwise to be substantially in the form attached hereto as Annex I. The
Amended and Restated Subordinated Note will be exchanged for the Company's 15%
Subordinated Note Due August 31, 2003 in the principal amount of $2,000,000.00,
dated August 16, 1995 (the "OLD SUBORDINATED NOTE") as provided in Section 1.2.
Interest on the Amended and Restated Subordinated Note shall be
computed on the basis of a 360-day year of twelve 30-day months.
The term "NOTE" as used in this Agreement shall mean and
include the amended and restated note in the principal amount of
$2,000,000.00 originally issued pursuant to this Agreement and all notes
issued in substitution or exchange for said note pursuant to this Agreement
and, where applicable, shall include the plural number as well as singular.
1.2. COMMITMENT AND CLOSING DATE.
Subject to the terms and conditions hereof and on the basis of
the representations and warranties hereinafter set forth, the Company agrees to
issue to you, in exchange for the Old Subordinated Note, and you agree to accept
from the Company in exchange for the Old Subordinated Note, on the Closing Date
hereinafter described, the Note in the principal amount of $2,000,000.00. The
closing will take place at the offices of Xxxxx, Xxxx & Fingersh, 000 X.
Xxxxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000-0000, at 10:00 A.M. Central
Time, on August 16, 1996 or such other date as shall be mutually agreed upon
(the "CLOSING DATE"). On the Closing Date, delivery of the Note will be made
against delivery of the Old Subordinated Note to the Company for cancellation.
The Note delivered to you on the Closing Date shall be registered in your name
and shall be substantially in the form attached hereto as Annex I.
SECTION 2. REPAYMENT OF NOTE.
2.1. REQUIRED PAYMENT.
The outstanding principal balance of this Note shall be due and
payable in a single installment on February 28, 2004.
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2.2. OPTIONAL PREPAYMENTS.
Except as prohibited by the terms of any of the Senior
Indebtedness, the Company may, at any time and from time to time, prepay the
outstanding Note, either in whole or in part, by payment of the principal amount
to be prepaid and accrued interest thereon to the date of such prepayment.
2.3. PAYMENTS IN KIND OF INTEREST.
Notwithstanding any other provisions of this Agreement or the
Note to the contrary, interest accrued on the principal amount of the Note from
time to time outstanding from the date of issue through and including the first
Interest Date, and thereafter from each Interest Date through and including the
next succeeding Interest Date, shall be added to the principal balance of the
Note and bear interest from the applicable Interest Date at the rate provided in
the Note.
2.4. DIRECT PAYMENT.
Notwithstanding anything to the contrary in this Agreement or the
Note, in the case the Note is owned by you or your nominee or owned by any other
institutional holder which has given written notice to the Company requesting
that the provisions of this Section shall apply, the Company will promptly and
punctually pay when due the principal thereof and premium, if any, and interest
thereon, without any presentment thereof, directly to you or such subsequent
holder at your address set forth at the beginning of this Agreement or at such
other address as you or such subsequent holder may from time to time designate
in writing to the Company or, if a bank account is designated for you at the
beginning of this Agreement or in any written notice to the Company from you or
any such subsequent holder, the Company will make such payments in immediately
available funds to such bank account, marked for attention as indicated, or in
such other manner or to such other account of yours or such holder in any bank
in the United States as you or any such subsequent holder may from time to time
direct in writing. The holder of the Note agrees that if this Section shall
apply, in the event it shall sell or transfer the Note (i) it will, prior to the
delivery of the Note (unless it has already done so), make a notation thereon of
all principal, if any, prepaid on the Note and will also note thereon the date
to which interest has been paid on the Note, and (ii) it will promptly notify
the Company of the name and address of the transferee of the Note. The Company
shall be entitled to presume conclusively that the original or such subsequent
institutional holder as shall have requested the provisions hereof to apply to
the Note remains the holder of the Note until (x) the Company shall have
received notice of the transfer of the Note, and of the name and address of the
transferee, or (y) the Note shall have been presented to the Company as evidence
of the transfer.
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SECTION 3. COMPANY COVENANTS.
The Company hereby covenants that, so long as the Note or any
portion thereof remains outstanding:
3.1. SENIOR INDEBTEDNESS.
The Company shall duly and punctually pay, observe and perform
each of its obligations under the terms of its Senior Indebtedness.
3.2. PERFORMANCE OF OBLIGATIONS.
The Company shall duly and punctually pay, observe and perform
each of its obligations set forth herein and under any material binding
agreement to which it may be obligated as the same may be at any time amended,
modified or supplemented and in effect, all in accordance with the terms thereof
other than contracts under which amounts to be received or paid by the Company
are not in the aggregate in excess of $50,000 or which are being contested in
good faith and for which the Company has reserved an amount at least equal to
the full amount of potential liability and damages.
SECTION 4. EVENTS OF DEFAULT AND REMEDIES THEREFOR.
4.1. EVENTS OF DEFAULT.
Any one or more of the following shall constitute an "Event of
Default" as the term is used herein:
(a) Default shall occur in the payment of interest on the
Note when the same shall have become due and such amount shall
remain unpaid for a period of five business days; or
(b) Default shall occur in the making of any required
payment on the Note as provided in Section 2.1; or
(c) The Company or any Significant Subsidiary becomes
insolvent or bankrupt, is generally not paying its debts as they
become due or makes an assignment for the benefit of creditors,
or the Company or any Significant Subsidiary causes or suffers an
order for relief to be entered with respect to it under
applicable Federal bankruptcy law or applies for or consents to
the appointment of a custodian, trustee or receiver for the
Company or such Significant Subsidiary or for the major part of
the property of either; or
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(d) A custodian, trustee or receiver is appointed for the
Company or any Significant Subsidiary or for the major part of
the property of either and is not discharged within 30 days after
such appointment; or
(e) Bankruptcy, reorganization, arrangement or insolvency
proceedings, or other proceedings for relief under any bankruptcy
or similar law or laws for the relief of debtors, are instituted
by or against the Company or any Significant Subsidiary and, if
instituted against the Company or any Significant Subsidiary, are
consented to or are not dismissed within 60 days after such
institution.
4.2. ACCELERATION OF MATURITY.
When any Event of Default described in paragraphs (a) or (b)
of Section 4.1 has happened and is continuing, the holder of the Note (or, if
more than one note has been issued in substitution or exchange for the Note, the
holder or holders of 25% or more of the principal amount of the notes at the
time outstanding) may, by notice in writing sent by registered or certified mail
to the Company, declare the entire principal and all interest accrued on the
Note to be, and the Note shall thereupon become, forthwith due and payable,
without any presentment, demand, protest or other notice of any kind, all of
which are hereby expressly waived, and the Company shall forthwith pay to the
holder of the Note the entire principal amount thereof, and interest accrued
thereon. When any Event of Default described in paragraphs (c), (d) or (e) of
Section 4.1 has occurred, then the Note shall immediately become due and payable
without presentment, demand or notice of any kind. Upon the Note becoming due
and payable as a result of any Event of Default as aforesaid, the Company will
forthwith pay to the holder of the Note the entire principal and interest
accrued on the Note. No course of dealing on the part of the Note holder nor
any delay or failure on the part of the Note holder to exercise any right shall
operate as a waiver of such right or otherwise prejudice such holder's rights,
powers and remedies. The Company further agrees, to the extent permitted by law
and whether any Event of Default is subsequently rescinded or annulled, to pay
to the holder of the Note reasonable costs and expenses incurred by it in the
collection of the Note upon any default hereunder or thereon, including
reasonable compensation to such holder's attorneys for all services rendered in
connection therewith.
4.3. RESCISSION OF ACCELERATION.
The provisions of Section 4.2 are subject to the condition that
if the principal of and accrued interest on the Note have been declared
immediately due and payable by reason of
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the occurrence of any Event of Default described in paragraphs (a) through
(j), inclusive, of Section 4.1, the holder of (or if more than one note has
been issued in substitution or exchange for the Note, the holder or holders
of 66-2/3% of aggregate principal amount of the notes then outstanding) may,
by written instrument filed with the Company, rescind and annul such
declaration and the consequences thereof, PROVIDED that at the time such
declaration is annulled and rescinded:
(a) no judgment or decree has been entered for the payment
of any monies due pursuant to the Note or this Agreement;
(b) all arrears of interest upon the Note, late charges,
and all other sums payable under the Note and under this
Agreement (except any principal or interest on such Note which
has become due and payable solely by reason of such declaration
under Section 4.2) shall have been duly paid; and
(c) each and every other Default and Event of Default shall
have been made good, cured or waived pursuant to Section 5.1;
and provided further, that no such rescission and annulment shall extend to or
affect any subsequent Default or Event of Default or impair any right consequent
thereto.
SECTION 5. AMENDMENTS, WAIVERS AND CONSENTS.
5.1. CONSENT REQUIRED.
Any term, covenant, agreement or condition of this Agreement may,
with the consent of the Company, be amended or compliance therewith may be
waived (either generally or in a particular instance and either retroactively or
prospectively), if the Company shall have obtained the consent in writing of the
holder of the Note (or, if more than one note has been issued in substitution or
exchange for the Note, the holder or holders of at least 66-2/3% in aggregate
principal amount of the notes then outstanding); provided that without the
written consent of the holder of the Note (or in the event there is more than
one note, all of the notes then outstanding), no such waiver, modification,
alteration or amendment shall be effective (i) which will change the time of
payment (including any prepayment required by Section 2.1) of the principal of
or the interest on any Note or reduce the principal amount thereof or change the
rate of interest thereon, or (ii) which will change any of the provisions of
Sections 2 or 4 or this Section 5.
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5.2. EFFECT OF AMENDMENT OR WAIVER.
Any such amendment or waiver shall be binding upon each future
holder of any Note and upon the Company, whether or not such Note shall have
been marked to indicate such amendment or waiver. No such amendment or waiver
shall extend to or affect any obligation not expressly amended or waived or
impair any right consequent thereon.
SECTION 6. INTERPRETATION OF AGREEMENT; DEFINITIONS.
6.1. DEFINITIONS.
Unless the context otherwise requires, the terms hereinafter set
forth when used herein shall have the following meanings and shall be equally
applicable to both the singular and plural forms of any of the terms herein
defined:
"AFFILIATE" shall mean any Person (other than a Subsidiary)
(i) which directly or indirectly through one or more
intermediaries controls, or is controlled by, or is under common
control with, the Company, (ii) which beneficially owns or holds
10% or more of the Voting Stock of the Company or (iii) 10% or
more of the Voting Stock (or in the case of a Person which is not
a corporation, 10% or more of the equity interest) of which is
beneficially owned or held by the Company or a Subsidiary. The
term "CONTROL" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of Voting
Stock, by contract or otherwise.
"CAPITALIZED LEASE" shall mean any lease the obligation for
Rentals with respect to which is required to be capitalized on a
balance sheet of the lessee in accordance with generally accepted
accounting principles.
"CAPITALIZED RENTALS" shall mean as of the date of any
determination the amount at which the aggregate Rentals due and
to become due under all Capitalized Leases under which the
Company or any Subsidiary is a lessee would be reflected as a
liability on a consolidated balance sheet of the Company and its
Subsidiaries.
"DEFAULT" shall mean any event or condition, the occurrence
of which would, with the lapse of time or the giving of notice,
or both, constitute an Event of Default as defined in Section
4.1.
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"GUARANTIES" by any Person shall mean all obligations (other
than endorsements in the ordinary course of business of
negotiable instruments for deposit or collection) of such Person
guaranteeing, or in effect guaranteeing, any Indebtedness,
dividend or other obligation, of any other Person (the "PRIMARY
OBLIGOR") in any manner, whether directly or indirectly,
including, without limitation, all obligations incurred through
an agreement, contingent or otherwise, by such Person: (i) to
purchase such Indebtedness or obligation or any property or
assets constituting security therefor, (ii) to advance or supply
funds (x) for the purchase or payment of such Indebtedness or
obligation, or (y) to maintain working capital or other balance
sheet condition or otherwise to advance or make available funds
for the purchase or payment of such Indebtedness or obligation,
(iii) to lease property or to purchase Securities or other
property or services primarily for the purpose of assuring the
owner of such Indebtedness or obligation of the ability of the
primary obligor to make payment of the Indebtedness or
obligation, or (iv) otherwise to assure the owner of the
Indebtedness or obligation of the primary obligor against loss in
respect thereof.
"INDEBTEDNESS" of any Person shall mean and include all
obligations of such Person which in accordance with generally
accepted accounting principles shall be classified upon a balance
sheet of such Person as liabilities of such Person, and in any
event shall include all (i) obligations of such Person for
borrowed money or which have been incurred in connection with the
acquisition of property or assets, (ii) obligations secured by
any lien or other charge upon property or assets owned by such
Person, even though such Person has not assumed or become liable
for the payment of such obligations, (iii) obligations created or
arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person,
notwithstanding the fact that the rights and remedies of the
seller, lender or lessor under such agreement in the event of
default are limited to repossession or sale of property,
(iv) Capitalized Rentals under any Capitalized Lease and (v) all
Guaranties of such Person.
"LIEN" means, with respect to any asset or property, any
mortgage, lien, pledge, charge, security interest or encumbrance
of any kind in respect of such asset or property.
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"NOTE" is defined in Section 1.1.
"PARTNERSHIP" shall mean Harbour Group Investments III, L.P.
"PERSON" shall mean an individual, partnership, corporation,
trust or unincorporated organization, and a government or agency
or political subdivision thereof.
"POST-PETITION INTEREST" means interest accruing in respect
of Senior Indebtedness after the commencement of any bankruptcy,
insolvency, receivership or similar proceeding by or against the
Company, at the rate applicable to such Senior Indebtedness
pursuant to the terms of the Senior Financing Agreements, whether
or not such interest is allowed as a claim enforceable against
the Company in any such proceeding.
"RENTALS" shall mean and include all fixed rents (including
as such all payments which the lessee is obligated to make to the
lessor on termination of the lease or surrender of the property)
payable by the Company or a Subsidiary, as lessee or sublessee
under a lease of real or personal property, but shall be
exclusive of any amounts required to be paid by the Company or a
Subsidiary (whether designated as rents or additional rents) on
account of maintenance, repairs, insurance, taxes and similar
charges. Fixed rents under any so-called, "percentage leases"
shall be computed solely on the basis of the minimum rents, if
any, required to be paid by the lessee regardless of sales volume
or gross revenues.
"SECURITY" shall have the same meaning as in Section 2(1) of
the Securities Act of 1933, as amended.
"SENIOR INDEBTEDNESS" of any Person shall mean (i) all
indebtedness of such Person for borrowed money or which has been
incurred in connection with the acquisition of assets or capital
stock by such Person, including without limitation all of such
Person's indebtedness, obligations and liabilities of every kind
and nature, whether now existing or hereafter arising, incurred
pursuant to (A) that certain Loan Agreement, dated as of
August 16, 1996, among Trak International, Inc., Lull Lift
Corporation, The Boatmen's National Bank of St. Louis, as agent
for itself and the other Lenders named therein (the "Agent"), and
the Lenders, as amended, modified, restated or replaced from time
to
9
time (together with all documents, certficates and agreements
executed in connection therewith, the "SENIOR CREDIT AGREEMENT"),
and (B) that certain Note Purchase Agreement, dated as of August
16, 1995, between Trak International, Inc. and The Minnesota
Mutual Life Insurance Company, as amended from time to time (the
"MIMLIC NOTE AGREEMENT") (the Senior Credit Agreement and the
MIMLIC Note Agreement are herein referred to collectively as the
"SENIOR FINANCING AGREEMENTS"), (ii) all Capitalized Rentals of
such Person, (iii) all Guaranties of such Person of obligations
of others of the type described in clauses (i) and (ii) above,
and (iv) all Post-Petition Interest in respect of any of the
foregoing; provided, however, that "Senior Indebtedness" shall
not include (a) Indebtedness evidenced by the Note and other
loans and guarantees made to the Company and/or its Subsidiaries
by the Partnership, or (b) Indebtedness that is expressly
subordinated in all respects to the Indebtedness described in
clause (a). "CONSOLIDATED" when used as a prefix to any Senior
Indebtedness shall mean the aggregate amount of all such Senior
Indebtedness of the Company and its Subsidiaries on a
consolidated basis eliminating inter-company items.
"SIGNIFICANT SUBSIDIARY" shall mean, with respect to a
Subsidiary of the Company, a Subsidiary having a book value of,
or generating revenues at least equal to, 10% of, respectively,
the total book value of or the total revenues generated by the
Company and all of its Subsidiaries.
"SUBSIDIARY" shall mean, as to any particular parent
corporation, any corporation of which more than 80% (by number of
votes) of each class of the Voting Stock shall be owned by such
parent corporation and/or one or more corporations which are
themselves subsidiaries of such parent corporation.
"VOTING STOCK" shall mean Securities of any class or
classes, the holders of which are ordinarily, in the absence of
contingencies, entitled to vote in the election of the corporate
directors (or Persons performing similar functions).
6.2. ACCOUNTING PRINCIPLES.
Where the character or amount of any asset or liability or item
of income or expense is required to be determined or any consolidation or
other accounting computation is required to be made for the purposes of this
Agreement, the same shall be done in accordance with generally accepted
10
accounting principles in effect on the date hereof, to the extent applicable,
except where such principles are inconsistent with the requirements of this
Agreement.
6.3. DIRECTLY OR INDIRECTLY.
Where any provision in this Agreement refers to action to be
taken by any Person, or which such Person is prohibited from taking, such
provision shall be applicable whether the action in question is taken directly
or indirectly by such Person.
SECTION 7. MISCELLANEOUS.
7.1. REGISTERED NOTE.
The Company shall cause to be kept at its principal office a
register for the registration and transfer of the Note (hereinafter called the
"Note Register"), and the Company will register or transfer or cause to be
registered or transferred, as hereinafter provided and under such reasonable
regulations as it may prescribe, the Note issued pursuant to this Agreement.
At any time and from time to time the registered holder of the
Note may transfer such Note upon surrender thereof at the principal office of
the Company duly endorsed or accompanied by a written instrument of transfer
duly executed by the registered holder of such Note or its attorney duly
authorized in writing.
The Person in whose name the Note shall be registered shall be
deemed and treated as the owner and holder thereof for all purposes of this
Agreement. Payment of or on account of the principal and interest on the Note
shall be made to or upon the written order of such registered holder.
7.2. EXCHANGE OF NOTE.
At any time, and from time to time, upon not less than ten days'
notice to that effect given by the holder of the Note initially delivered or of
any Note substituted therefor pursuant to Sections 7.1 or 7.3 or this Section
7.2, and, upon surrender of such Note at its office, the Company will deliver in
exchange therefor, without expense to the holder, except as set forth below, a
Note for the same aggregate principal amount as the then unpaid principal amount
of the Note so surrendered, dated as of the date to which interest has been paid
on the Note so surrendered or, if such surrender is prior to the payment of any
interest thereon, then dated as of the date of issue, payable to such Person or
Persons, or order, as may be designated by such holder, and otherwise of the
same form and tenor as the Note so surrendered for exchange. The Company may
require the payment of
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a sum sufficient to cover any stamp tax or governmental charge imposed upon such
exchange or transfer. All Notes shall be legended to state that the
indebtedness evidenced thereby is subordinated to the indebtedness described in
clause (i) of the definition of Senior Indebtedness pursuant to the applicable
subordination agreement.
7.3. LOSS, THEFT, ETC. OF NOTE
Upon receipt of evidence satisfactory to the Company of the loss,
theft, mutilation or destruction of the Note, and in the case of any such loss,
theft or destruction upon delivery of a bond of indemnity in such form and
amount as shall be reasonably satisfactory to the Company, or in the event of
such mutilation upon surrender and cancellation of the Note, the Company will
make and deliver without expense to the holder thereof, a new Note, of like
tenor, in lieu of such lost, stolen, destroyed or mutilated Note. If the
Partnership or any subsequent institutional holder is the owner of such lost,
stolen or destroyed Note, then the affidavit of an authorized officer of such
owner, setting forth the fact of loss, theft or destruction and of its ownership
of the Note at the time of such loss, theft or destruction shall be accepted as
satisfactory evidence thereof and no further indemnity shall be required as a
condition to the execution and delivery of a new Note other than the written
agreement of such owner to indemnify the Company.
7.4. EXPENSES, STAMP TAX INDEMNITY.
Whether the transactions herein contemplated shall be
consummated, the Company agrees to pay directly all of your reasonable
out-of-pocket expenses in connection with the preparation, execution and
delivery of this Agreement and the transactions contemplated hereby, including
but not limited to the reasonable charges and disbursements of your counsel,
duplicating and printing costs and charges for shipping the Note, adequately
insured to you at your home office or at such other place as you may designate,
and so long as you hold the Note, all such expenses relating to any amendment,
waivers or consents pursuant to the provisions hereof. The Company also agrees
that it will pay and save you harmless against any and all liability with
respect to stamp and other taxes, if any, which may be payable or which may be
determined to be payable in connection with the execution and delivery of this
Agreement or the Note, whether the Note is then outstanding. The Company agrees
to protect and indemnify you against any liability for any and all brokerage
fees and commissions payable or claimed to be payable to any Person in
connection with the transactions contemplated by this Agreement.
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7.5. POWERS AND RIGHTS NOT WAIVED; REMEDIES CUMULATIVE.
No delay or failure on the part of the holder of the Note in the
exercise of any power or right shall operate as a waiver thereof; nor shall any
single or partial exercise of the same preclude any other or further exercise
thereof, or the exercise of any other power or right, and the rights and
remedies of the holder of the Note are cumulative to and are not exclusive of
any rights or remedies any such holder would otherwise have, and no waiver or
consent, given or extended pursuant to Section 7 hereof, shall extend to or
affect any obligation or right not expressly waived or consented to.
7.6. NOTICES.
All communications provided for hereunder shall be in writing
and, if to you, delivered or mailed by registered or certified mail, addressed
to you at your address appearing at the beginning of this Agreement or such
other address as you or the subsequent holder of any Note initially issued to
you, may designate to the Company in writing, and if to the Company, delivered
or mailed by registered or certified mail to the Company at: TRAK
International, Inc., c/o Harbour Group Industries, Inc., 0000 Xxxxxxx
Xxxxxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Chief Executive Officer, or to
such other address as the Company may in writing designate to you or to a
subsequent holder of the Note initially issued to you.
7.7. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon the Company and its
successors and assigns and shall inure to your benefit and to the benefit of
your successors and assigns, including each successive holder or holders of the
Note, and if any subsequent holder of any Note shall have presented the same to
the Company for inspection, accompanied by a written designation of the address
to which notice in respect of the Note of such holder is to be given, then
wherever in this Agreement it is provided that notice shall be given to the
holder of the Note, the notice in respect of the Note so presented shall be
addressed to such holder at the address so given.
7.8. SURVIVAL OF COVENANTS AND REPRESENTATIONS.
All covenants, representations and warranties made by the Company
herein and in any certificates delivered pursuant hereto, whether in connection
with the Closing Date, shall survive the closing and the delivery of this
Agreement and the Note.
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7.9. SEVERABILITY.
Should any part of this Agreement for any reason be declared
invalid, such decision shall not affect the validity of any remaining portion,
which remaining portion shall remain in force and effect as if this Agreement
had been executed with the invalid portion thereof eliminated and it is hereby
declared the intention of the parties hereto that they would have executed the
remaining portion of this Agreement without including therein any such part,
parts, or portion which may, for any reason, be hereafter declared invalid.
7.10. GOVERNING LAW.
This Agreement and the Note issued and sold hereunder shall be
governed by and construed in accordance with Missouri law.
7.11. CAPTIONS.
The descriptive headings of the various Sections or parts of this
Agreement are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
7.12. LIMITATION ON INTEREST.
No provision of this Agreement or of the Note shall require the
payment or permit the collection of interest in excess of the maximum which is
permitted by law. If any such excess interest is provided for herein or in the
Note, or shall be adjudicated to be so provided for, then the Company shall not
be obligated to pay such interest in excess of the maximum permitted by law, and
the right to demand payment of any such excess interest is hereby waived, any
other provisions in this Agreement or in the Note to the contrary
notwithstanding.
7.13. STATEMENT PURSUANT TO Section 432.045 OF THE REVISED STATUTES OF
MISSOURI.
Oral agreements or commitments to loan money, extend credit or to
forbear from enforcing repayment of a debt including promises to extend or renew
such debts are not enforceable. To protect you and the Company from
misunderstanding or disappointment, any agreements we reach covering such
matters are contained in this writing, which is the complete and exclusive
statement of the agreement between us, except as we may later agree in writing
to modify it.
SECTION 8. [INTENTIONALLY DELETED]
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SECTION 9. EXECUTION; COUNTERPARTS.
The execution hereof by you shall constitute a contract between
us for the uses and purposes hereinabove set forth, and this Agreement may be
executed in any number of counterparts, each executed counterpart constituting
an original but all together only one agreement.
[signature page follows]
15
TRAK INTERNATIONAL, INC.
By:/s/ Xxxxx X. Xxxx
-----------------------
Name:
Title:
Accepted on August 16, 1996
HARBOUR GROUP INVESTMENTS III, L.P.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Name:
Title:
16
ANNEX I
FORM OF
TRAK INTERNATIONAL, INC.
Amended and Restated
15% Subordinated Note
Due February 28, 2004
No. R-2
$2,000,000.00 August , 1996
TRAK INTERNATIONAL, INC., a Delaware corporation (the "Company"), for
value received hereby promises to pay to
HARBOUR GROUP INVESTMENTS III, L.P.
or registered assigns
on the 28th day of February, 2004
the principal amount of
TWO MILLION DOLLARS
($2,000,000.00)
or such aggregate unpaid principal amount as shall be outstanding under this
Note, plus all interest accrued thereon. Interest (computed on the basis of a
360-day year of twelve 30-day months) shall accrue on the principal amount from
time to time remaining unpaid hereon at the rate of 15% per annum, compounding
semiannually on the fifteenth day of each June and December in each year
commencing on the first of such dates after the date hereof (each an "Interest
Date"), from the date hereof until maturity. Interest accrued on the principal
amount of the Note from time to time outstanding from the date of issue through
and including the first Interest Date, and thereafter from each Interest Date
through and including the next succeeding Interest Date, shall be added to the
principal balance of the Note and bear interest from the applicable Interest
Date at the rate provided in the Note. The Company agrees to pay interest on
overdue principal (including any overdue required prepayment of principal) and
(to the extent legally enforceable) on any overdue installment of interest at
the rate of 16% per annum after maturity, whether by acceleration or otherwise,
until paid. Both the principal hereof and interest hereon are payable at the
principal office of Harbour Group Investments III. L.P., 0000 Xxxxxxx Xxxxxxxxx,
Xx. Xxxxx, Xxxxxxxx 00000 in coin or currency
of the United States of America which at the time of payment shall be legal
tender for the payment of public and private debts.
This Amended and Restated Subordinated Note is issued under and
pursuant to the terms and provisions of that certain Amended and Restated
Subordinated Note Agreement dated August , 1996, entered into by Harbour
Group Investments III, L.P. ("Creditor") with the Company (the "Subordinated
Note Agreement") and SHALL BE SUBORDINATED AND INFERIOR IN RIGHT OF PAYMENT
TO THE COMPANY'S SENIOR INDEBTEDNESS AS DEFINED IN THE SUBORDINATED NOTE
AGREEMENT UPON THE TERMS AND CONDITIONS SET FORTH IN THAT CERTAIN
SUBORDINATION AGREEMENT OF EVEN DATE BETWEEN THE CREDITOR AND THE BOATMEN'S
NATIONAL BANK OF ST. LOUIS, AS AGENT FOR ITSELF AND OTHER LENDERS, AND THAT
CERTAIN SUBORDINATION AGREEMENT OF EVEN DATE BETWEEN THE CREDITOR AND THE
MINNESOTA MUTUAL LIFE INSURANCE COMPANY.
This Amended and Restated Subordinated Note may be declared due
prior to its expressed maturity date and certain optional prepayments may be
made thereon, all in the events, on the terms and in the manner and amounts as
provided in the Subordinated Note Agreement.
This Amended and Restated Subordinated Note is registered on the
books of the Company and is transferable only by surrender thereof at the
principal office of the Company duly endorsed or accompanied by a written
instrument of transfer duly executed by the registered holder of this
Subordinated Note or its attorney duly authorized in writing. Payment of or
on account of principal and interest on this Amended and Restated
Subordinated Note shall be made only to or upon the order in writing of the
registered holder.
Oral agreements or commitments to loan money, extend credit or to
forbear from enforcing repayment of a debt including promises to extend or
renew such debts are not enforceable. To protect the Creditor and the
Company from misunderstanding or disappointment, any agreements we reach
covering such matters are contained in this writing, which is the complete
and exclusive statement of the agreement between us, except as we may later
agree in writing to modify it.
TRAK INTERNATIONAL, INC.
By:
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Name:
Title:
