EX-10.28-1
R&W DRAFT
2/10/95
AMENDED AND RESTATED AGREEMENT REGARDING
STOCK AND OTHER MATTERS
THIS AMENDED AND RESTATED AGREEMENT REGARDING STOCK AND OTHER
MATTERS ("Agreement") is entered into as of February 14, 1995 by and between
GREAT DANE HOLDINGS INC., a Delaware corporation ("Holdings") and BANKAMERICA
BUSINESS CREDIT, INC., a Delaware corporation ("BABC"), as "Agent" under and
as defined in the Loan and Security Agreement referred to below.
PRELIMINARY STATEMENT
A. Great Dane Trailers, Inc., a Georgia corporation ("GDT"), is
the legal and beneficial owner of all of the issued and outstanding capital
stock of Great Dane Los Angeles, Inc., a Georgia corporation ("GDLA") and
Great Dane Trailers Tennessee, Inc., a Tennessee corporation ("GDTT") (GDT,
GDLA and GDTT are hereinafter sometimes collectively referred to as the
"Borrowers").
B. GDT, GDTT and certain other former subsidiaries of GDT
(collectively, the "Original Borrowers"), the financial institutions signa-
tory thereto (the "Lenders") and Security Pacific Business Credit ("SPBC"),
as agent for the Lenders, entered into that certain Loan and Security
Agreement dated as of March 21, 1990 (as amended or otherwise modified from
time to time, the "Original Loan Agreement") pursuant to which the Agent and
the Lenders agreed to make certain loans, extensions of credit and other
financial accommodations to the Original Borrowers.
C. Simultaneously with the execution and delivery of the Original
Loan Agreement, International Controls Corp., a Florida corporation ("ICC"),
and the legal and beneficial holder of all of the issued and outstanding
stock of GDT, entered into that certain Agreement Regarding Stock and Other
Matters (the "Original Stock Agreement"), pursuant to which ICC acknowledged,
among other things, that it derived direct and indirect economic benefit from
the financial accommodations made to the Original Borrowers under the
Original Loan Agreement.
D. In October, 1994, ICC was reincorporated in the State of
Delaware through a merger with its wholly-owned subsidiary, Holdings, with
Holdings being the surviving corporation.
E. As of February 14, 1995, SPBC, Lenders, Borrowers and BABC
entered into a Succession Agreement pursuant to which the Lenders have
appointed, and the Borrowers have consented to the appointment of, BABC as
successor Agent under the Original Loan Agreement and the other Loan
Documents (as defined in the Original Loan Agreement).
F. Simultaneously with the execution and delivery of this
Agreement, the Borrowers, the Lenders and BABC as Agent for the Lenders are
EX-10.28-2
entering into that certain Amended and Restated Loan and Security Agreement
dated as of even date herewith (as it may be amended or otherwise modified
from time to time, the "Loan Agreement") pursuant to which the Agent and
Lenders agree to make or renew, extend and amend, as applicable, certain
loans, extensions of credit and other financial accommodations to the
Borrowers. All capitalized terms used herein and not otherwise defined
herein are used herein as defined in the Loan Agreement.
G. Holdings will derive direct and indirect economic benefit from
the loans, extensions of credit and other financial accommodations made to
the Borrowers under the Loan Agreement.
NOW, THEREFORE, in consideration of the premises set forth above
and in order to induce the Agent and the Lenders to make loans and other
financial accommodations under the Loan Agreement, the parties hereby agree
as follows:
SECTION 1. REPRESENTATIONS AND WARRANTIES. Holdings hereby
represents and warrants to the Lenders and the Agent that:
1.1 AUTHORIZATION, VALIDITY AND ENFORCEABILITY. Holdings has the
corporate power and authority to execute, deliver and perform the Loan
Documents to which Holdings is a party. Holdings has taken all necessary
corporate action (including, without limitation, obtaining approval of its
stockholders, if necessary) to authorize its execution, delivery and
performance of the Loan Documents to which it is a party. No consent,
approval, or authorization of, or declaration or filing with, any Public
Authority and no consent of any other Person is required in connection with
the execution, delivery and performance by Holdings of the Loan Documents to
which Holdings is a party. The Loan Documents to which Holdings is a party
have been duly executed and delivered by Holdings and constitute the legal,
valid and binding obligations of Holdings enforceable against Holdings in
accordance with their respective terms. The execution, delivery and
performance by Holdings of the Loan Documents to which Holdings is a party
and, in the case of CLAUSE (a) below, the Loan Documents by each of the
Borrowers which is a party thereto, do not and will not conflict with, or
constitute a violation or breach of, or constitute a default under, or result
in the creation or imposition of any Lien upon the property of Holdings by
reason of the terms of (a) any contract, indenture, mortgage, lease,
agreement or instrument to which Holdings is a party or which is binding upon
Holdings, (b) any Requirements of Law applicable to Holdings or (c) the
Certificate or Articles of Incorporation or By-laws of Holdings.
1.2 ORGANIZATION AND QUALIFICATION. Holdings (a) is duly
incorporated and organized and validly existing in good standing under the
laws of the State of Delaware, (b) is qualified to do business as a foreign
corporation and is in good standing in Florida and Michigan which are the
only jurisdictions in which qualification is necessary in order for Holdings
to own or lease its property and conduct its business and (c) has all
requisite power and authority to conduct its business and to own its
property.
1.3 RESTRICTIVE AGREEMENTS. Holdings is not a party to any
contract or agreement which restricts Holdings' or any of the Borrowers'
ability to execute, deliver and perform the Loan Documents to which Holdings
or any Borrower is a party, or which restricts the Borrowers' ability to
repay the Obligations or which could reasonably be expected to have a
Material Adverse Effect.
EX-10.28-3
1.4 TAXES. Holdings and its Subsidiaries have filed all tax
returns and other reports which Holdings and its Subsidiaries were required
by law to file on or prior to the Closing Date and have paid all taxes,
assessments, fees and other governmental charges, and penalties and interest,
if any, against any of them or their respective property, income, or
franchise, that are due and payable as shown on such return except for such
taxes, assessments, fees and other governmental charges, and penalties and
interest which are being contested in good faith by appropriate proceedings
diligently pursued, and for which adequate reserves are maintained, and no
Lien, other than a Permitted Lien, results from such non-payment.
1.5 DISCLOSURE. Neither this Agreement nor any document or
statement furnished to the Agent or any of the Lenders by or on behalf of
Holdings contains any untrue statement of a material fact or omits to state
any material fact necessary in order to make the statements contained herein
or therein not materially misleading.
1.6 CAPITAL STOCK OF GDT.
(a) Holdings is the sole, direct, legal and beneficial owner
of the shares of capital stock of GDT set forth on SCHEDULE 1.6
attached hereto and the voting rights associated therewith. Such
shares constitute all of the issued and outstanding shares of
capital stock of GDT (such shares, together with any shares of GDT
hereafter acquired by Holdings, are hereinafter collectively
referred to as the "Restricted Shares");
(b) The Restricted Shares are free and clear of all Liens;
(c) The Restricted Shares have been duly authorized and
validly issued and are fully paid and nonassessable;
(d) There are no restrictions upon the voting rights
associated with any of the Restricted Shares; and
(e) There are no warrants or other rights or options issued
or outstanding in connection with any of the Restricted Shares.
SECTION 2. GENERAL COVENANTS. Holdings covenants and agrees that:
2.1 TRANSFERS AND LIENS. Holdings will not (a) sell, assign,
transfer, convey or otherwise dispose of, or grant any option with respect
to, any of the Restricted Shares, or enter into an agreement to do any of the
foregoing, without the prior written consent of the Agent and the Majority
Lenders; or (b) create or permit to exist any Lien with respect to all or any
part of the Restricted Shares, without the prior written consent of the Agent
and the Majority Lenders.
2.2 PERMITTED TRANSFERS AND LIENS. In the event any sale,
assignment, transfer, conveyance or other disposition under SECTION 2.1(a)
above is consented to by the Agent and the Majority Lenders, as a condition
to any such disposition, each transferee shall, prior to such disposition,
agree in writing to be bound by the terms of this Agreement.
2.3 LEGEND. Each certificate representing shares of the
Restricted Shares shall at all times contain a legend in the form of EXHIBIT
A attached hereto.
EX-10.28-4
2.4 INTERCOMPANY LOANS. Prior to or simultaneously with its
receipt, directly or indirectly, of the proceeds of any loan, advance or
other financial accommodation made for the purpose, directly or indirectly,
of financing any Redemption pursuant to a Tender Offer or an Exchange Offer,
Holdings will deliver or cause to be delivered to the Agent the following,
each in form and substance reasonably satisfactory to the Agent:
(a) written representations and warranties of Holdings to the
Lenders and the Agent to the effect that (1) as of the date of such
loan, advance or other financial accommodation and Redemption, each of
the Tender Offer Documents or Exchange Offer Documents, as applicable,
if required to be filed with the Securities and Exchange Commission
("SEC") or other securities authority complied in all material respects
with the provisions of the Securities Exchange Act and the rules and
regulations thereunder and all other Requirements of Law; and (2) the
Tender Offer Documents or Exchange Offer Documents, as applicable, as of
the time they were distributed to security holders and all times
subsequent thereto, did not and do not contain any untrue statement of
a material fact or omit to state any material fact necessary in order to
make the statements made therein, in light of the circumstances under
which they were made, not misleading; in each case together with the
written indemnity of Holdings for damages, costs and expenses incurred
by any Secured Creditor resulting from the breach, in any material
respect, of any such representation and warranty of Holdings; and
(b) a favorable opinion of counsel for Holdings addressed to the
Lenders and the Agent to the effect that (1) the representations,
warranties and indemnity referred to in SECTION 2.4(a) were duly
authorized, executed and delivered and are (subject to (x) customary
creditors' rights and equitable remedies exceptions and (y) with respect
to such indemnity, considerations of public policy) enforceable against
Holdings in accordance with their terms; (2) to such counsel's know-
ledge, no action has been taken by any competent authority which
restrains, prevents or imposes any material adverse condition upon, or
seeks to restrain, prevent or impose any material adverse condition
upon, such Tender Offer or Exchange Offer, as applicable; (3) the Tender
Offer Documents or Exchange Offer Documents, as applicable, if required
to be filed by Holdings with the SEC in connection with the Tender Offer
or Exchange Offer, as applicable, and other relevant documents required
thereby (except for the financial and statistical data contained or
incorporated by reference therein, as to which such counsel expresses no
opinion) at all relevant times complied as to form in all material
respects with the applicable requirements of the Securities Exchange Act
and Securities Act and the rules and regulations thereunder; (4) such
Tender Offer Documents or Exchange Offer Documents, as applicable, if
required to be filed with the SEC, have been duly filed by Holdings with
the SEC; and (5) during the course of the preparation of the Tender
Offer Documents or Exchange Offer Documents, as applicable, such counsel
participated in conferences and discussions with various officers and
other representatives of Holdings and its Affiliates, at which the
contents of the Tender Offer Documents or Exchange Offer Documents, as
applicable, were discussed; although such counsel has made no special
investigation of representations made by officers and other
representatives of Holdings and its Affiliates and has not verified and
is not passing upon and assumes no responsibility for the accuracy,
completeness or fairness of the statements contained in the Tender Offer
Documents or Exchange Offer Documents, as applicable, based upon such
counsel's participation in such conferences and discussions, and relying
EX-10.28-5
as to materiality upon officers and other representatives of Holdings
and its Affiliates, such counsel advises the Lenders and Agent that no
facts have come to such counsel's attention which lead such counsel to
believe that, at any relevant time, the Tender Offer Documents or
Exchange Offer Documents, as applicable, contained any untrue statement
of a material fact or omitted to state any material fact necessary in
order to make the statements made therein, in light of the circumstances
under which they were made, not misleading (it being understood that
such counsel expresses no view with respect to the financial statements
and related notes, statistical and accounting data contained or incorpo-
rated by reference in the Tender Offer Documents or Exchange Offer
Documents, as applicable); and such opinion shall also cover such other
matters with respect to Holdings' corporate organization, existence,
good standing and related issues as the Agent may reasonably require;
and
(c) such other documents and instruments as the Agent may
reasonably require.
2.5 TRANSFER OF FUNDS. Holdings acknowledges and agrees that the
ability of Borrower to transfer any funds to Holdings, whether in a
Distribution or otherwise, is subject to the terms and provisions of the Loan
Agreement.
2.6 NOTICE; PROJECTIONS. In the event that any required sinking
fund payments due prior to the Termination Date are not paid in full by
February 14, 1996, Holdings shall, no later than February 15, 1996, deliver
to the Agent consolidated projected balance sheets, statements of income and
expenses, and statements of cash flow for Holdings and its Subsidiaries as at
the end of and for each month of 1996. In addition, in the event that
Holdings reasonably believes that it will not be able to make any required
sinking fund payment in any Fiscal Year, it shall notify the Agent of the
same promptly, and in no event later than the earlier of (a) two (2) months
(or, if earlier, the date on which such information is made available to
Holdings by its independent certified public accountants) prior to the first
day of such Fiscal Year or (b) in the event any sinking fund payment is due
or any other day other than August 1, nine (9) months prior to such date. In
the event such notice is given, Holdings shall, no later than February 15 of
the Fiscal Year during which it believes it will not be able to make the
sinking fund payment, deliver the same projected statements described in the
preceding sentence for such Fiscal Year.
SECTION 3. TAX COVENANTS.
Holdings covenants and agrees that:
Holdings shall not permit the Borrowers or any of their
Subsidiaries to file or consent to the filing of any consolidated tax return
with any Person (other than the Borrowers or any of their Subsidiaries or
such other Person as may be reasonably acceptable to the Lenders); PROVIDED,
HOWEVER, so long as the Borrowers and their Subsidiaries are members of an
"affiliated group" (as defined in Section 1504 of the Code) with Holdings
(the "Affiliated Group"), for all taxable years in which the Borrowers are a
member of the Affiliated Group and for which Holdings files consolidated
federal income tax returns and consolidated state income tax returns or state
income tax returns based on combined reporting where such returns are
required under or permitted under applicable state rules and regulations for
the Affiliated Group, the Borrowers may file consolidated tax returns with
EX-10.28-6
Holdings and pay to Holdings, the amount of the consolidated federal and the
state income tax liabilities of the Affiliated Group as set forth below:
(a) DETERMINATION OF FEDERAL INCOME TAX LIABILITY. For each
"Year" (as defined below) or part thereof with respect to which Holdings
files a consolidated federal income tax return and the Borrowers are members
of the Affiliated Group, the Borrowers have agreed to determine their
consolidated federal income tax liability for such Year as if the Borrowers
had filed their own separate consolidated federal income tax return, such
determination to include any benefit resulting from the carry-forward of
ordinary losses, capital losses and tax credits of the Borrowers (regardless
of whether such losses or credits have been utilized by the Affiliated Group
to offset taxable income or taxes of the Affiliated Group) from the current
or a prior year. For purposes of this SECTION 3(a) "Year" shall mean the
taxable year adopted by the Affiliated Group for federal income tax purposes.
(b) PAYMENT OF THE BORROWERS' TAX LIABILITY TO HOLDINGS. The
Borrowers may pay the lesser of (a) their federal income tax liability deter-
mined under SECTION 3(a) (or, until such time as final numbers are available,
estimates thereof) or (b) the amount of federal income tax expense Holdings
must pay in cash as shown on IRS form 1120 (or, until such time as final
numbers are available, estimates thereof), at such times as shall be
requested by Holdings, but not more frequently than quarterly; PROVIDED THAT,
with respect to the second quarter of any year the Borrowers may pay two
installments in accordance with their past practices. If, as a result of
estimated payments, the Borrowers pay to Holdings or directly to the taxing
authority for a Year an amount in excess of the lesser of (a) the amount
determined under SECTION 3(a) plus $100,000, or (b) the amount permitted to
be paid by this SECTION 3(b), Holdings shall refund to the Borrowers the
amount of such excess no later than the date upon which Holdings files the
consolidated federal income tax return for the Affiliated Group. Holdings
shall deliver such documents as the Agent shall reasonably require to
demonstrate compliance with this SECTION 3.
(c) FILING OF CONSOLIDATED RETURNS. Holdings shall be responsible
for the filing of all consolidated federal income tax returns for the
Affiliated Group and for the timely payment or collection of any tax or
refund in connection with such consolidated returns. Holdings shall also be
responsible for computing the Borrowers' federal income tax liability under
SECTION 3(a) and for giving timely notice to the Borrowers of any amounts
payable pursuant to this SECTION 3.
(d) STATE OR LOCAL INCOME TAX. For each Year with respect to
which Holdings files one or more state or local income tax returns requiring
the payment of a tax, whether on the basis of a unitary return or a single
return based upon a combined report, and the operations of the Borrowers are
included in such return or returns, Holdings shall compute the Borrowers'
state income tax liability in the manner provided in SECTION 3(a) and payment
shall be made in the manner provided in SECTION 3(b).
(e) ADJUSTMENTS TO THE BORROWERS' FEDERAL AND STATE INCOME TAX
LIABILITY.
(i) In the event that there is an increase or decrease in the
amount determined under SECTIONS 3(a) or 3(d) for any Year (whether by
amended return, examination by the IRS, carryback or net operating loss or
unused credits, or otherwise), (a) in the case of an increase in the tax
payable by the Borrowers, the Borrowers have agreed to promptly make a
EX-10.28-7
payment to Holdings in an amount equal to the lesser of (1) the amount of
such increase or (2) the cash amount payable by Holdings to the IRS or any
state or local taxing authority as a result of such increase (together with
interest and penalties imposed by the IRS or any state or local taxing
authority), and (b) in the case of a decrease in the tax payable by the
Borrowers, Holdings shall promptly make a payment to the Borrowers in an
amount equal to the lesser of (1) the amount of such decrease or (2) the cash
amount of the refund from the IRS or any state or local taxing authority
received by Holdings.
(ii) The Agent and a representative of the Borrowers shall have the
right to review any adjustments determined by a taxing authority which would
increase or decrease the amount determined under SECTION 3(a) or 3(d).
(f) REFUNDS. In the event the calculation under SECTION 3(a) or
3(d) reflects that the Borrowers would be entitled to a refund for such Year,
Holdings shall pay such amount to the Borrowers promptly but in any event no
later than the date upon which Holdings files the income tax return for the
Affiliated Group.
SECTION 4. ERISA. Holdings shall not, and shall not permit any
Related Company of any Borrower to, do any of the following to the extent
such act or failure to act would singly or in the aggregate, after taking
into account all other such acts or failures to act, have a Material Adverse
Effect:
(i) Engage in any prohibited transaction for which an exemp-
tion is not available or has not been previously obtained from the
DOL in connection with which any Borrower or any Related Company
could be subject to either a civil penalty assessed pursuant to
Section 502(i) of ERISA or tax imposed by Section 4975 of the Code;
(ii) Permit to exist any accumulated funding deficiency
(whether or not waived), as defined in Section 302 of ERISA and
Section 412 of the Code;
(iii) Fail to pay timely required contributions or
installments due with respect to any waived funding deficiency to
any Plan;
(iv) Fail to make any contribution or payment to any Multi-
employer Plan which Borrower or any Related Company may be required
to make under any agreement relating to such Multiemployer Plan, or
any law pertaining thereto;
(v) Terminate, or permit a Related Company to terminate, any
Benefit Plan which would result in any liability of any Borrower or
a Related Company under Title IV of ERISA;
(vi) Fail to pay any required installment under section (m)
of Section 412 of the Code or any other payment required under
Section 412 of the Code on or before the due date for such
installment or other payment; or
(vii) Amend any Benefit Plan resulting in an increase in
current liability for the plan year such that any Borrower or a
Related Company is required to provide security to such Plan under
Section 401(a)(29) of the Code.
EX-10.28-8
SECTION 5. TERM. This Agreement shall remain in full force and
effect until the later of (i) the payment in full and discharge of all
Obligations and (ii) the termination of all financing arrangements under and
in connection with the Loan Agreement (including, without limitation, any
refinancing thereof).
SECTION 6. GENERAL.
6.1 AMENDMENTS, WAIVERS AND CONSENTS. No amendment or waiver of
any provision of this Agreement or consent to any departure by Holdings
herefrom shall in any event be effective unless the same shall be in writing
and signed by the Agent and Majority Lenders, and then such amendment, waiver
or consent shall be effective only in the specific instance and for the
specific purpose given.
6.2 ADDRESSES FOR NOTICE. All notices and other communications
hereunder shall be given in the manner set forth in the Loan Agreement and,
in the case of the Agent, to its address set forth in the Loan Agreement or,
in the case of Holdings, to its address set forth below.
6.3 SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability, without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
6.4 SUCCESSORS. This Agreement shall be binding upon the parties
hereto and their respective successors (including, without limitation, a
receiver, transferor or debtor-in-possession of Holdings) and assigns, and
shall inure to the benefit of the successors and permitted assigns of the
Lenders; PROVIDED, HOWEVER, that Holdings shall not voluntarily assign or
transfer any of its rights or obligations hereunder without the prior written
consent of the Agent and the Majority Lenders.
6.5 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICT OF
LAWS PROVISIONS) AND DECISIONS OF THE STATE OF NEW YORK.
6.6 SECTION HEADINGS AND COUNTERPARTS. The section headings
herein are for convenience of reference only and shall not affect in any way
the interpretation of any of the provisions hereof. This Agreement and any
amendments, waivers, consents or supplements hereto may be executed in
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument.
6.7 (A) THE PARTIES HERETO AGREE TO THE EXCLUSIVE JURISDICTION OF
ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF NEW YORK
SITTING IN THE CITY AND COUNTY OF NEW YORK AND WAIVE ANY OBJECTION BASED ON
VENUE OR FORUM NON CONVENIENS WITH RESPECT TO ANY ACTION INSTITUTED THEREIN,
AND AGREE THAT ANY DISPUTE CONCERNING THE RELATIONSHIP AMONG THE PARTIES
HERETO OR THE CONDUCT OF ANY PARTY IN CONNECTION WITH THIS AGREEMENT OR
OTHERWISE SHALL BE HEARD ONLY IN THE COURTS DESCRIBED ABOVE.
(B) EACH OF THE BORROWERS AND HOLDINGS HEREBY WAIVES PERSONAL
SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF
PROCESS MAY BE MADE BY REGISTERED MAIL (RETURN RECEIPT REQUESTED) DIRECTED TO
EX-10.28-9
HOLDINGS OR SUCH BORROWER AT ITS ADDRESS FOR NOTICE DESIGNATED HEREIN AND
SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED FIVE (5) DAYS AFTER THE SAME
SHALL HAVE BEEN SO DEPOSITED IN THE U.S. MAILS, OR, AT THE AGENT'S OPTION BY
SERVICE UPON HUTTON INGRAM YUZEK GAINEN CARROLL & BERTOLOTTI, 250 PARK
AVENUE, 6TH FLOOR, NEW YORK, NEW YORK 10177, ATTENTION: PAULETTE KENDLER,
ESQ., WHICH HOLDINGS IRREVOCABLY APPOINTS AS ITS AGENT FOR THE PURPOSE OF
ACCEPTING SERVICE OF PROCESS WITHIN THE STATE OF NEW YORK. IN ADDITION, THE
AGENT AGREES PROMPTLY TO FORWARD BY REGISTERED MAIL ANY PROCESS SO SERVED
UPON SAID AGENT TO HOLDINGS, AS THE CASE MAY BE, AT ITS ADDRESS DESIGNATED
HEREIN. HOLDINGS HEREBY CONSENTS TO SERVICE OF PROCESS AS AFORESAID.
(C) EACH OF THE PARTIES HERETO HEREBY WAIVES ANY RIGHT TO TRIAL BY
JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING UNDER THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR (ii) IN ANY WAY CONNECTED
WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF
THEM IN RESPECT TO THIS AGREEMENT, IN CONNECTION HEREWITH OR IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT
OR TORT OR OTHERWISE. HOLDINGS AND THE AGENT EACH HEREBY AGREES AND CONSENTS
THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECLARED BY
COURT TRIAL WITHOUT A JURY AND THAT ANY OF THEM MAY FILE AN ORIGINAL COUNTER-
PART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(E) NOTHING IN THIS SECTION 6.7 SHALL AFFECT THE RIGHT OF THE
AGENT TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OF AFFECT
THE RIGHT OF THE AGENT TO BRING ANY ACTION OR PROCEEDING AGAINST HOLDINGS IN
THE COURTS OF ANY JURISDICTION.
EX-10.28-10
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly authorized as of
the date first written above.
GREAT DANE HOLDINGS INC.
2016 North Pitcher Street
Kalamazoo, Michigan 49007
Attention: President
Telecopier No.: 616/343-6823
By: /s/ Jay H. Harris
-------------------------------------
with a copy of any notice to:
Hutton Ingram Yuzek Gainen
Carroll & Bertolotti
250 Park Avenue, 6th Floor
New York, New York 10177
Attention: Paulette Kendler, Esq.
Telecopier No.: 212/907-9681
Agreed and Accepted as
of February 14, 1995:
BANKAMERICA BUSINESS
CREDIT, INC., as Agent
By: /s/ Ira Mermelstein
----------------------------
Vice President
EX-10.28-11
SCHEDULE 1.6
TO
AMENDED AND RESTATED AGREEMENT REGARDING
STOCK AND OTHER MATTERS
100 shares of no par value common stock of GDT evidenced by
certificate No. 1.
EX-10.28-12
EXHIBIT A
TO
AMENDED AND RESTATED AGREEMENT REGARDING
STOCK AND OTHER MATTERS
LEGEND FOR GREAT DANE TRAILERS, INC.
STOCK CERTIFICATE
"The shares represented by this certificate are subject to the terms and
provisions of an Amended and Restated Agreement Regarding Stock and Other
Matters, dated as of February 7, 1995, between Great Dane Holdings Inc., and
BankAmerica Business Credit, Inc., as Agent, a copy of which is on file with
the Secretary of the Company, and each holder of this certificate, by
acceptance of this certificate, agrees to be bound by the terms of said
Agreement."