EXECUTION COPY
AMENDMENT NO. 2 TO NOTE PURCHASE AGREEMENT
This Amendment (this "AMENDMENT") is entered into and dated as of August
16, 1996 by and between TRAK International, Inc., a Delaware corporation (the
"COMPANY"), and The Minnesota Mutual Life Insurance Company (the "PURCHASER").
RECITALS
A. The Company and the Purchaser are party to that certain Note Purchase
Agreement dated as of August 16, 1995 (as amended, the "NOTE PURCHASE
AGREEMENT"). Unless otherwise specified herein, capitalized terms used in this
Amendment shall have the meanings ascribed to them by the Note Purchase
Agreement.
B. Contemporaneously herewith, the existing Senior Financing Agreement is
being replaced and refinanced (the "REFINANCING") in its entirety by that
certain Loan Agreement dated as of the date hereof among the Company and Lull
Lift Corporation ("LULL LIFT") as Borrowers and The Boatmen's National Bank of
St. Louis, as agent, and the lenders party thereto.
C. The Company and the Purchaser wish to amend the Note Purchase
Agreement on the terms and conditions set forth below, to, among other things,
accommodate the Refinancing and certain other transactions.
Now, therefore, in consideration of the mutual execution hereof and other
good and valuable consideration, the parties hereto agree as follows:
1. AMENDMENT TO NOTE PURCHASE AGREEMENT. Upon the "Effective Time" (as
defined below), the Note Purchase Agreement is hereby amended as follows:
(a) SECTION 4.1 of the Note Purchase Agreement is amended by deleting
such Section in its entirety and replacing it with the following:
"The Company shall pay, and there shall become due and payable,
on each of the dates set forth below, the principal amount of the
Notes set forth below opposite each such date (each a "REQUIRED
PRINCIPAL DATE"), as follows:
Date of Required Principal Payment Amount of Required Principal Payment
August 31, 2002 $1,250,000
February 28, 2003 $1,500,000
August 31, 2003 $1,250,000
February 28, 2004 $1,000,000 or such lesser amount as shall
be the outstanding balance of the Notes.
Each Required Principal Payment shall be made when due, together with
interest accrued thereon to the date of payment. The entire principal
of the Notes remaining outstanding on February 28, 2004, together with
interest accrued thereon, shall become due and payable on such date."
(b) SECTION 6.10 of the Note Purchase Agreement is amended by
deleting the words that appear after "except" through the end of the sentence
and inserting in lieu thereof the following: "with respect to (i) dividends or
transfers between the Company and Lull Lift, or from either or both of the
Company and Lull Lift to Holdings (but not from Holdings to its Shareholders),
(ii) dividends or distributions by any Subsidiary to the Company and (iii)
purchases by Holdings of its stock from terminated officers or employees of the
Company or Lull Lift."
(c) SECTION 6.11 of the Note Purchase Agreement is amended by (i)
deleting the word "and" appearing at the end of clause (g) thereof, (ii)
deleting the period at the end of end of clause (h) thereof and inserting ";"
in place thereof and (iii) inserting after clause (h)
the following new clauses (i), (j), (k) and (l):
"(i) the Junior Subordinated Debt evidenced by the Junior
Subordinated Note;
(j) Indebtedness permitted by Section 6.26(a) hereof;
(k) Indebtedness owing to the Company, Lull Lift or Holdings;
and."
(l) Indebtedness secured by Liens permitted by Section 15.5.5
of the Senior Financing Agreement as in effect on the Second
Amendment Date."
(d) SECTION 6.13 of the Note Purchase Agreement is amended by
deleting the references to "Installment Notes" appearing in clause (ii) of the
last sentence of such Section and replacing them with "Term 1 Advances or Term
2 Advances."
(e) SECTION 6.15 of the Note Purchase Agreement is amended by
deleting the word "and" appearing before clause (k) thereof and inserting at
the end of clause (k) the following: "and (l) other Contingent Obligations
permitted by Section 15.4 of the Senior Financing Agreement."
(f) SECTION 6.16 of the Note Purchase Agreement is amended by
deleting the word "and" appearing at the end of clause (e) thereof, (ii)
deleting the period at the end of end of clause (f) thereof and inserting ";"
in place thereof and (iii) inserting after clause (f) the following new clauses
(g) and (h):
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"(g) Liens permitted by Sections 15.5.5 and 15.5.7 of the Senior
Financing Agreement as in effect on Second Amendment Date; and
(h) Liens permitted by Section 6.26(a)."
(g) SECTION 6.17 of the Note Purchase Agreement is amended by
deleting such Section in its entirety and replacing it with the following:
"SECTION 6.17 CAPITAL EXPENDITURES.
The Company and its Subsidiaries shall not make Consolidated Capital
Expenditures which in the aggregate exceed: (i) $6,050,000 during the period
commencing with the Second Amendment Date and ending September 30, 1997; (ii)
$6,050,000 during fiscal year 1998; (iii) $9,680,000 during the period
commencing on the Second Amendment Date and ending September 30, 1998; or (iv)
$4,840,000 for fiscal year 1999 or any fiscal year thereafter, and such amounts
may not be carried over from period to period."
(h) Section 6.18 of the Note Purchase Agreement is amended by
deleting such Section in its entirety and replacing it with the following:
"SECTION 6.18 LEASE RENTALS.
Expenses incurred by the Company and its Subsidiaries as lessees under
leases of property (whether real, personal, tangible, intangible, or mixed
property), other than Capital Leases, shall not exceed $82,500 in the aggregate
during any fiscal year and the aggregate amount of all such expenses incurred
on a cumulative basis after the Second Amendment Date shall not exceed
$550,000."
(i) SECTION 6.19 of the Note Purchase Agreement is amended by (i)
adding the words "(b) payments of dividends and on Indebtedness permitted by
Section 6.10 and Section 6.11(k), respectively" after the second comma in line
7 of such Section and (ii) deleting "(b)" in line 7 of such Section and
replacing it with "(c)".
(j) SECTION 6.26 of the Note Purchase Agreement is amended by
deleting such Section in its entirety and replacing it with the following:
"SECTION 6.26 FINANCIAL COVENANTS. Subject to normal year-end and
closing audit adjustments for calculation or determination made in
accordance with Agreement Accounting Principles prior to the end of
their fiscal year, the Company and its Subsidiaries shall maintain, in
the aggregate for all Covered Persons on a consolidated basis, the
following:
(A) CAPITAL LEASES - The Company and its Subsidiaries shall not become
obligated as lessee(s) under any Capital Leases except Capital Leases existing
on the Second Amendment Date and disclosed in the Disclosure Schedule to the
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Senior Financing Agreement as in effect on the date hereof and Capital Leases
entered into by the Company and its Subsidiaries after the Second Amendment
Date for capital assets whose aggregate cost if purchased would not exceed
$27,500 in any fiscal year and $55,000 in the aggregate.
(B) MINIMUM CONSOLIDATED OPERATING CASH FLOW - Consolidated Operating Cash
Flow of the Company and its Subsidiaries as of each calculation date set forth
below, shall not be less than the amount set forth opposite such calculation
date:
Calculation Dates Minimum Operating Cash Flow
October 31, 1996 and the last day $2,610,000
of each month thereafter ending with
December 31, 1996.
January 31, 1997 and the last day of $7,020,000
each month thereafter ending with
March 31, 1997.
April 30, 1997 and the last day of each $13,410,000
month thereafter ending with June 30,
1997.
July 31, 1997 and the last day of each $17,820,000
month thereafter ending with September
30, 1997.
October 31, 1997 and the last day of each $19,260,000
month thereafter ending with September
30, 1998.
October 31, 1998 and the last day of each $19,800,000
month thereafter ending with September
30, 1999.
October 31, 1999 and the last day of each $20,700,000
month thereafter.
(C) FIXED CHARGE COVERAGE - The ratio of (a) Consolidated Operating Cash
Flow as of each calculation date set forth below to (b) Consolidated Fixed
Charges as of such calculation date, shall not be less than the ratio set forth
opposite such calculation date:
Calculation Dates Minimum Ratio
October 31, 1996 and the last day of each .99 to 1.00
month thereafter
(D) MINIMUM NET WORTH - Consolidated Net Worth shall at no time during any
fiscal period specified in the table below be less than the amount specified
for such period:
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Period Minimum Net Worth
Second Amendment Date through April 29, 1997 $9,900,000
April 30, 1997 through October 30, 1997 $11,790,000
October 31, 1997 through October 30, 1998 $14,400,000
October 31, 1998 and at any time thereafter $17,100,000
(E) CONSOLIDATED TOTAL FUNDED DEBT TO CONSOLIDATED OPERATING CASH FLOW -
The ratio of (a) Consolidated Total Funded Debt outstanding on each calculation
date set forth below on such calculation date, to (b) Consolidated Operating
Cash Flow (for periods less than twelve months from the Second Amendment Date,
annualized) as of such calculation date, shall not exceed the ratio set forth
opposite such calculation date:
Calculation Dates Maximum Ratio
April 30, 1997 and the last day of each 3.56 to 1.00
month thereafter ending with March 31, 1998
April 30, 1998 and the last day of each 3.11 to 1.00
month thereafter ending with September 30, 1998
October 31, 1998 and the last day of each 2.78 to 1.00
month thereafter ending with March 31, 1999
April 30, 1999 and the last day of each 2.23 to 1.00
month thereafter
(F) MINIMUM INTEREST COVERAGE - The ratio of (a) Consolidated Operating
Cash Flow as of each calculation date set forth below to (b) Consolidated
Interest Expense as of such calculation date, shall not be less than the ratio
set forth opposite such calculation date:
Calculation Dates Minimum Ratio
October 3, 1996 and the last day of each 2.07 to 1.00
month thereafter ending with March 31, 1997
April 30, 1997 and the last day of each 2.70 to 1.00
month thereafter ending with March 31, 1998
April 30, 1998 and the last day of each 2.97 to 1.00
month thereafter ending with September 30, 1999
October 31, 1999 and the last day of each 3.33 to 1.00
month thereafter
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(k) SECTION 7.1 of the Note Purchase Agreement is amended by (i)
deleting the words "or" at the end of clauses (i) and (j) thereof, (ii)
deleting the period at the end of clause (k) thereof and inserting "; " in
place thereof and (iii) adding new clauses (l) and (m) at the end of such
Section as follows:
"(l) HOLDINGS/LULL LIFT GUARANTEE -- the Holdings/Lull Lift
Guarantee shall fail to remain in full force or effect or any action
shall be taken to discontinue or to assert the invalidity or
unenforceability of the Holdings/Lull Lift Guarantee, or Holdings or
Lull Lift shall fail to comply with any of the terms or provisions of
the Holdings/Lull Lift Guarantee, or Holdings or Lull Lift denies that
it has any further liability under the Holdings/Lull Lift Guarantee or
gives notice to such effect; or
(m) SUBORDINATION AGREEMENT -- the Subordination Agreement shall
fail to remain in full force and effect or any action shall be taken
to discontinue or to assert the invalidity or unenforceability of the
Subordination Agreement, or the Junior Creditor shall fail to comply
with any term or provisions of the Subordination Agreement, or the
Junior Creditor denies that it has any further obligation under the
Subordination Agreement or gives notice to such effect."
(l) SECTION 8.11 of the Note Purchase Agreement is amended by
deleting such Section in its entirety and replacing it with the following:
"Section 8.11 Amendment of Subordination Provisions.
Notwithstanding anything contained in this Agreement or any other
Financing Document to the contrary, no provision of this Section 8 or
the Holdings/Lull Lift Guarantee may be amended without the prior
written consent of the Agent (or, if there shall be no agent for the
holders of the Senior Debt at such time, each holder of Senior Debt)."
(m) New definitions are added to SECTION 9.1 of the Note
Purchase Agreement in the appropriate alphabetical order as follows:
"'CONSOLIDATED' or 'CONSOLIDATED' when used in connection with
any calculation, means a calculation to be determined on a
consolidated basis for Holdings and all of its Subsidiaries (including
the Company and Lull Lift) in accordance with Agreement Accounting
Principles."
"COVERED PERSONS -- means the Company, Lull Lift, Holdings and
each of their Subsidiaries."
"CURRENT ASSETS -- means current assets as determined in
accordance with Agreement Accounting Principles."
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"CURRENT LIABILITIES -- means current liabilities as determined
in accordance with Agreement Accounting Principles, excluding amounts
outstanding under the Aggregate Revolving Loan."
"FIXED CHARGES -- means, as of any date of calculation, the sum
of (i) Interest Expense (excluding for this purpose all interest
accrued as an expense with respect to the Junior Subordinated Debt to
the extent it is on the consolidated books of the Company and the
other Covered Persons), (ii) the sum of all payments on Total Funded
Debt to be made during the calculation period ending on such date,
(iii) federal, state and local income taxes accrued during the
calculation period ending on such date, and (iv) all Capital
Expenditures incurred during the calculation period ending on such
date (provided, however, that the parenthetical at the end of the
first sentence in the definition of "Capital Expenditures" shall not
apply when calculating Capital Expenditures for purposes of
calculating Fixed Charges, i.e, only the amount of all payments
actually made in connection with all such Capital Leases during the
applicable calculation period need to be accounted for in calculating
Capital Expenditures for the purposes of calculating Fixed Charges).
For the purposes of calculating Fixed Charges under this Agreement,
the calculation period for Fixed Charges shall be deemed to be the
period from the Second Amendment Date through any date of calculation
on or prior to July 31, 1997, and thereafter the calculation period
shall be the twelve month period immediately prior to the date of
calculation and Fixed Charges shall be calculated on a trailing twelve
month basis; PROVIDED, HOWEVER, that each scheduled payment on the
first of the month of interest and principal on any of the Senior
Notes shall be deemed to have been made on the immediately preceding
day."
"HOLDINGS/LULL LIFT GUARANTEE -- means that certain Guarantee
dated as of the Second Amendment Date made by Holdings and Lull Lift
in favor of the Purchaser as it may be amended, supplemented, modified
or restated from time to time pursuant to the terms hereof and
thereof."
"INTEREST EXPENSE -- means, for any period of calculation, all
interest accrued as an expense in accordance with Agreement Accounting
Principles on Total Funded Debt during such period."
"JUNIOR CREDITOR -- means collectively Harbour Group Investments
III, L.P., a Delaware limited partnership, and The Boatmen's National
Bank of St. Louis, a national banking association, together with any
of their respective successors and assigns."
"LULL LIFT -- means Lull Lift Corporation, a Delaware
corporation, together with any successors and assigns."
"NET INCOME -- means, for any period of calculation, "net income"
as determined in accordance with Agreement Accounting Principles."
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"OPERATING CASH FLOW -- means, as of any date of calculation, an
amount equal to the sum of (i) Net Income, (ii) federal, state and
local income tax expense, (iii) Interest Expense (including for this
purpose interest accrued with respect to the Junior Subordinated Debt
to the extent it is on the consolidated books of the Company and the
other Covered Persons), (iv) depreciation and amortization expense,
(v) losses on the sale or other disposition of assets, and (vi)
extraordinary losses, minus (a) gains on the sale or other disposition
of assets, and (b) extraordinary gains, all calculated for the
calculation period ending on such calculation date. For the purposes
of calculating Operating Cash Flow, the calculation period for
Operating Cash Flow shall be deemed to be the period from the Second
Amendment Date through any date of calculation on or prior to July 31,
1997 and thereafter the calculation period shall be the twelve month
period immediately prior to the date of calculation and Operating Cash
Flow shall be calculated on a trailing twelve month basis."
"SECOND AMENDMENT DATE -- means August 16, 1996."
"SUBORDINATION AGREEMENT -- means collectively that certain
Subordination Agreement dated as of the Second Amendment Date, by and
between the Purchaser and Harbour Group Investments III, L.P. and that
certain Subordination Agreement dated as of the Second Amendment Date,
by and between the Purchaser and The Boatmen's National Bank of St.
Louis."
"TERM 1 ADVANCES -- shall have the meaning ascribed thereto in
the Senior Financing Agreement."
"TERM 2 ADVANCES -- shall have the meaning ascribed thereto in
the Senior Financing Agreement."
"TOTAL ASSETS -- means the sum of all assets as presented in the
balance sheet in the Company's and Lull Lift's most recent
consolidated financial statements."
"TOTAL FUNDED DEBT -- means, as of any time, the sum of the
aggregate outstanding principal balance of the Company's Indebtedness
and its respective Subsidiaries' Indebtedness (including, without
limitation, the outstanding principal balance of the Senior Notes
and the Subordinated Debt) at such time, but excluding the outstanding
principal balance of the Junior Subordinated Note. For the purposes
of calculating Total Funded Debt under this Agreement, each scheduled
payment on the first of the month of interest and principal on the
Senior Indebtedness shall be deemed to have been made on the
immediately preceding day."
"TOTAL LIABILITIES -- means the sum of all liabilities as
presented in the balance sheet in the Company's and Lull Lift's most
recent consolidated financial statements."
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(n) The definition of "AGENT" in SECTION 9.1 of the Note
Purchase Agreement is amended by deleting "Firstar Financial Services, a
division of Firstar Bank Milwaukee, N.A." appearing in such Section and
replacing it with "The Boatmen's National Bank of St. Louis."
(o) The definition of "AGGREGATE REVOLVING CREDIT COMMITMENT" in
SECTION 9.1 of the Note Purchase Agreement is amended by deleting such
definition in its entirety and replacing it with the following:
"AGGREGATE REVOLVING CREDIT COMMITMENT -- shall have the meaning
ascribed to the term 'Aggregate Revolving Commitment' in the Senior
Financing Agreement."
(p) The definition of "AGREEMENT ACCOUNTING PRINCIPLES" in
SECTION 9.1 of the Note Purchase Agreement is amended by deleting such
definition in its entirety and replacing it with the following:
"AGREEMENT ACCOUNTING PRINCIPLES -- means generally accepted
accounting principles as in effect from time to time, applied in a
manner consistent with those in preparing the financial statements
referred to in Section 2.2(a)."
(q) The definition of "CAPITAL EXPENDITURE" in SECTION 9.1 of
the Note Purchase Agreement is amended by deleting such definition in its
entirety and replacing it with the following:
"CAPITAL EXPENDITURE -- means an expenditure for an asset that
must be depreciated or amortized under Agreement Accounting
Principles, for goodwill, or for any asset that under Agreement
Accounting Principles must be treated as a capital asset, including,
without limitation, payments under Capital Leases, the amount of which
must be recorded as an amortizable asset, but not including any such
expenditures to the extent made from insurance or condemnation
proceeds in the manner described in Section 6.3.4.3 of the Senior
Financing Agreement (the full amount of the payments so capitalized
under Agreement Accounting Principles to be made thereunder by the
Company and Lull Lift shall be taken into account in the calculation
period such Capital Lease is entered into)."
(r) The definition of "CHANGE IN CONTROL" in SECTION 9.1 of the
Note Purchase Agreement is amended (i) by substituting the words "Company
and Lull Lift" for the word "Company" in lines 5, 9 and 11 of such
definition and (ii) inserting the phase "other than pursuant to the Senior
Financing Documents" after the word "Liens" each time such word appears in
such definition.
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(s) The definition of "FINANCING DOCUMENTS" in SECTION 9.1 of
the Note Purchase Agreement is amended by adding the words "Holdings/Lull
Lift Guarantee" after the word "Notes" appearing in such definition.
(t) The definitions of "INSTALLMENT NOTES" and "LINE OF CREDIT"
in SECTION 9.1 of the Note Purchase Agreement are hereby deleted in its
entirety.
(u) The definition of "JUNIOR SUBORDINATED NOTE" in SECTION 9.1
of the Note Purchase Agreement is amended by deleting such definition in
its entirety and replacing it with the following:
"JUNIOR SUBORDINATED NOTE -- means collectively that certain
promissory note of the Company dated as of the Second Amendment Date in
the principal amount of $2,000,000 in favor of Harbour Group Investments
III, L.P. and that certain promissory note of Holdings dated as of the
Second Amendment Date in the principal amount of $14,000,000 in favor of
The Xxxxxxx'x National Bank of St. Louis."
(v) The definition of "MAXIMUM SENIOR DEBT AMOUNT" in SECTION
9.1 of the Note Purchase Agreement is amended by deleting such definition
in its entirety and replacing it with the following:
"MAXIMUM SENIOR DEBT AMOUNT -- means the sum of (a) the
difference of (i) Eighty-Five Million Dollars ($85,000,000) principal
amount of Senior Debt MINUS (ii) on a dollar-for dollar basis, any and
all amounts of principal repaid by the Company or any other Person on
the Term 1 Advances or Term 2 Advances PLUS (b) up to Eight Million
Five Hundred Thousand Dollars ($8,500,000) in interest, fees, rate
hedging obligations, expenses and other obligations owing to the
Agent or the Senior Lenders in connection with the Senior Financing
Documents."
(w) The definition of "NET WORTH" -- in SECTION 9.1 of the Note
Purchase Agreement is amended by deleting such definition in its entirety
and replacing it with the following:
"NET WORTH means, as of any date, Total Assets MINUS Total
Liabilities."
(x) The definition of "SENIOR FINANCING AGREEMENT" in SECTION
9.1 of the Note Purchase Agreement is amended by deleting such definition
in its entirety and replacing it with the following:
"SENIOR FINANCING AGREEMENT -- means (i) that certain Loan
Agreement dated as of the Second Amendment Date among the Company,
Lull Lift, the Agent and the Senior Lenders, as such agreement is
amended, supplemented, modified or restated from time to time and (ii)
each agreement pursuant to which any Refunding Debt shall be issued
and any amendment, supplement, modification or restatement thereof."
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(y) The definition of "SENIOR FINANCING DOCUMENTS" in SECTION
9.1 of the Note Purchase Agreement is amended by deleting the phrase "the
Installment Notes," appearing in such Section.
(z) The definition of "SENIOR LENDERS" in SECTION 9.1 of the
Note Purchase Agreement is amended by deleting "Firstar Financial Services,
a division of Firstar Bank Milwaukee, N.A.", appearing in such Section and
replacing it with "The Boatmen's National Bank of St. Louis."
(aa) The definition of "SUBSIDIARY" in SECTION 9.1 of the Note
Purchase Agreement is amended by adding the following sentence at the end
thereof; "Notwithstanding the foregoing, (i) Lull Lift and its Subsidiaries
shall be deemed to be Subsidiaries of the Company for purposes of this
Agreement and (ii) the distributors of the Company listed on Section 12.18
to Schedule 12 to the Senior Financing Agreement shall not be deemed to be
Subsidiaries of the Company."
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants that:
(a) The execution, delivery and performance by the Company of
this Amendment have been duly authorized by all necessary corporate
action. This Amendment is a legal, valid and binding obligation of
the Company enforceable against the Company in accordance with its
terms, except as the enforcement thereof may be subject to (i) the
effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights generally and
(ii) general principles of equity (regardless of whether such
enforcement is sought in a proceeding in equity or at law);
(b) The execution, delivery and performance by Holdings and Lull
Lift of the Holdings/Lull Lift Guarantee has been duly authorized by
all necessary corporate action and that the Holdings/Lull Lift
Guarantee is a legal, valid and binding obligation of Holdings and
Lull Lift, and is enforceable against Holdings and Lull Lift in
accordance with its terms, except as the enforcement thereof may be
subject to (i) the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors' rights
generally and (ii) general principles of equity (regardless of whether
such enforcement is sought in a proceeding in equity or at law);
(c) The execution, delivery and performance by Harbour Group
Investments III, L.P. of the Subordination Agreement to which it is a
party has been duly authorized by all necessary partnership action
and that such Subordination Agreement is the legal, valid and binding
obligation of, and is enforceable against Harbour Group Investments
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III, L.P. in accordance with its terms, except as the enforcement
thereof may be subject to (i) the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally and (ii) general principles of equity
(regardless of whether such enforcement is sought in a proceeding in
equity or at law);
(d) The execution, delivery and performance of this Amendment,
the Holdings/Lull Lift Guarantee and the Subordination Agreement to
which Harbour Group Investments III, L.P. is a party, and the
consummation of the transactions contemplated thereby, do not conflict
with or breach any term of any material contract, loan agreement,
indenture or other agreement or instrument to which the Company,
Holdings, Lull Lift, or Harbour Group Investments III, L.P. is a
party or is subject;
(e) As of the Effective Time (as defined below), after giving
effect to the consummation of the Transaction Documents and the Senior
Financing Documents, each of the Company, Holdings and Lull Lift is
Solvent;
(f) After giving effect to this Amendment, no Default or
Unmatured Default has occurred and is continuing; and
(g) Each of the representations and warranties of the Company
and Lull Lift contained in the Senior Financing Agreement (as defined
above) is true and correct in all material respects on and as of the
date hereof as if made on the date hereof.
3. EFFECTIVE TIME. Section 1 of this Amendment shall become
effective (the "EFFECTIVE TIME") upon the receipt by the Purchaser of the
following documents in form and substance satisfactory to the Purchaser and its
counsel:
(a) this Amendment duly executed by the Company;
(b) the Holdings/Lull Lift Guarantee duly executed by Holdings
and Lull Lift;
(c) the Subordination Agreement duly executed by the Junior
Creditor;
(d) an opinion of counsel in form and substance satisfactory to
the Purchaser;
(e) a certificate of the Secretary or Assistant Secretary from
each of Holdings and Lull Lift in substantially the form of
Exhibit D2 to the Note Purchase Agreement;
(f) a solvency certificate from each of the Company, Holdings
and Lull Lift;
(g) a copy of the executed Senior Financing Documents, the terms
of which shall be reasonably satisfactory to the Purchaser;
(h) a copy of the executed Junior Subordinated Note,
satisfactory to the Purchaser;
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(i) the Initial Financial Statements (as defined in the Senior
Financing Agreement);
(j) the Historical Financial Statements (as defined in the
Senior Financing Agreement);
(k) a copy of the executed Acquisition Documents (as defined in
the Senior Financing Agreement);
(l) the Acquisition (as defined in the Senior Financing
Agreement) shall have been consummated and the initial
funding under the Senior Financing Agreement shall have
occurred; and
(m) such other documents as the Purchaser or its counsel may
reasonably request.
4. REFERENCE TO AND EFFECT UPON THE NOTE PURCHASE AGREEMENT.
(a) Except as specifically amended above, the Note Purchase
Agreement and the Notes shall remain in full force and effect and are
hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of the
Purchaser under the Note Purchase Agreement or the Notes, nor constitute a
waiver of any provision of the Note Purchase Agreement or the Notes, except
as specifically set forth herein. Upon the effectiveness of this
Amendment, each reference in the Note Purchase Agreement to "this
Agreement", "hereunder", "hereof", "herein" or words of similar import
shall mean and be a reference to the Note Purchase Agreement as amended
hereby.
5. COSTS AND EXPENSES. The Company hereby affirms its obligation
under SECTION 10.6 of the Note Purchase Agreement to reimburse the Purchaser
for all reasonable costs, internal counsel charges and out-of-pocket expenses
paid or incurred by the Purchaser in connection with the preparation,
negotiation, execution and delivery of this Amendment, including but not
limited to the reasonable attorneys' fees and time charges of attorneys for the
Purchaser with respect thereto.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF
LAWS PROVISIONS) OF THE STATE OF WISCONSIN.
7. HEADINGS. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purposes.
8. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which when so executed shall be deemed an original but
all such counterparts shall constitute one and the same instrument.
[signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date and year first above written.
TRAK INTERNATIONAL, INC.
By:/s/ Xxxxx X. Xxxx
----------------------------------------------
Its:/s/ Vice President and Assistant Secretary
----------------------------------------------
THE MINNESOTA MUTUAL LIFE INSURANCE COMPANY
By:/s/ Xxxxxxxxx Xxxxxxxxx
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Its:Second Vice President
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