EXHIBIT 10.42
THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE
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SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT OR AN EXEMPTION FROM REGISTRATION THEREUNDER. PRIOR TO ANY
SALE OR TRANSFER OF THIS INSTRUMENT, EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT COVERING SUCH SALE OR TRANSFER, THE
HOLDER HEREOF SHALL HAVE DELIVERED TO THE ISSUER HEREOF (THE "COMPANY") AN
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OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY TO THE EFFECT
THAT SUCH SALE OR TRANSFER IS EXEMPT FROM REGISTRATION UNDER THE ACT.
ALLIANCE LAUNDRY HOLDINGS
JUNIOR SUBORDINATED PROMISSORY NOTE
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________, 1998 $9,000,000
Alliance Laundry Holdings LLC (the "Company"), hereby promises to pay
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to the order of Raytheon Company ("Raytheon") or its permitted transferees
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pursuant to Section 6 below (the "Holder"), the principal amount of nine million
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dollars ($9,000,000), together with interest thereon calculated from the date
hereof (the "Date of Issuance") in accordance with the provisions of this Junior
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Subordinated Promissory Note (this "Note").
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This Note was issued pursuant to the Merger Agreement, dated as of
February 21, 1998, by and among the Company, Raytheon and RCL Acquisitions,
L.L.C. (the "Merger Agreement"). Except as defined in Section 9 hereof or
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unless otherwise indicated herein, capitalized terms used in this Note shall
have the same meanings as set forth in the Merger Agreement.
1. Payment and Capitalization of Interest. Interest shall accrue at
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the rate of nineteen percent (19%) per annum until the eighth anniversary of the
Date of Issuance and at a rate of thirteen percent (13%) per annum thereafter on
the unpaid principal amount of this Note (including any portion thereof which is
Capitalized Interest) outstanding from time to time, or (if less) at the highest
rate then permitted under applicable law. On each anniversary of the Date of
Issuance (a "Capitalization Date") on which any portion of the unpaid principal
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amount of this Note
remains outstanding, all accrued interest as of such date shall be capitalized
and made part of the unpaid principal amount hereunder as of such date (the
"Capitalized Interest"). Interest shall be computed on the basis of a 365-day
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year and the actual number of days elapsed. Any accrued interest which for any
reason has not theretofore been paid shall be paid in full on the Maturity Date
(as defined below).
2. Payment of Principal on Note.
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(a) Scheduled Payments. The Company shall pay the principal amount
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then outstanding (including any portion thereof which is Capitalized Interest),
together with all unpaid interest accrued hereon and any other amounts payable
hereunder, to the holder of this Note on August 21, 2009 (the "Maturity Date").
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(b) Prepayments. The Company may, at any time and from time to time
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without premium or penalty, respectively, prepay all or any portion of the
outstanding principal amount of this Note (including any portion thereof which
is Capitalized Interest). In addition, upon the earlier to occur of (i) a
Change of Control or (ii) the consummation of an IPO, the Company shall prepay,
without premium or penalty, all of the outstanding principal amount of the Note
(including any portion thereof which is Capitalized Interest). Any prepayment
pursuant to this Section 2(b) will be accompanied by a payment of accrued
interest on the portion being prepaid. A prepayment of less than all of the
outstanding principal amount of this Note shall not relieve the Company of its
obligation to make the scheduled payment on this Note on the Maturity Date
pursuant to Section 2(a) above.
3. Pro Rata Payment. In the event that this Note is subdivided and
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transferred to two or more holders in accordance with Section 6 hereof, then,
except as otherwise expressly provided in this Note, all payments to the holders
of this Note (whether for principal, interest or otherwise) shall be made pro
rata among such holders based upon the aggregate unpaid principal amount of this
Note held by each such holder. If any holder of this Note obtains any payment
(whether voluntary, involuntary, by application of offset or otherwise) of
principal, interest or other amount with respect to this Note in excess of such
holder's pro rata share of such payments obtained by all holders of this Note
(other than as expressly provided herein), by acceptance of this Note each such
holder agrees to purchase from the other holders of this Note a participation in
this Note held by them as is necessary to cause such holders to share the excess
payment ratably among each of them as provided in this Section 3.
4. Subordination.
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(a) Note Subordinated to Senior Indebtedness. The Company covenants
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and agrees, and the Holder by its acceptance hereof likewise covenants and
agrees, that to the extent and in the manner expressly set forth in this Section
4, all amounts payable with respect to this Note are expressly made subordinate
in priority and subject in right and priority of payment to the prior
performance and final payment in full, in cash or cash equivalents acceptable to
the holders of Senior Indebtedness, of all Senior Indebtedness. The provisions
of this Section 4 are intended to be
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for the benefit of, and shall be enforceable directly by, the holders of Senior
Indebtedness. Each of the Company on the one hand and the Holder, by its
acceptance hereof, on the other hand, acknowledges that certain holders of
Senior Indebtedness are relying upon the provisions of this Section 4, in
extending certain Senior Indebtedness to the Company.
(b) Subordination. No direct or indirect payment (in cash, property
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or securities or by set-off or otherwise) by or on behalf of the Company of any
amounts payable with respect to this Note, whether pursuant to the terms hereof
(including upon an acceleration) or otherwise, shall be made prior to the
payment in full, in cash or cash equivalents acceptable to the holders of Senior
Indebtedness, of all Senior Indebtedness. Notwithstanding the foregoing, unless
the Senior Indebtedness is in default and payment hereunder prohibited thereby,
amounts required to be paid pursuant to paragraph 2 hereof shall be permitted to
be paid by the Company to the holders of this Note.
(c) Priority and Payment Over of Proceeds Upon Bankruptcy or
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Dissolution. In the event of any dissolution or winding up or total or partial
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liquidation or reorganization of the Company, whether voluntary or involuntary,
or in bankruptcy, insolvency, receivership or other proceedings or upon any
assignment for the benefit of creditors or any other marshaling of the assets
and liabilities of the Company (collectively, a "Reorganization"), then, and
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irrespective of the treatment, validity or priority of any Senior Indebtedness
or this Note:
(i) all Senior Indebtedness shall first be paid in full, in cash or
cash equivalents acceptable to the holders of Senior Indebtedness, before
any direct or indirect payments or distributions (in cash, property or
securities or by set-off or otherwise) on or in respect of this Note,
except for payments or distributions on or in respect of this Note pursuant
to a plan of reorganization approved by the holders of Senior Indebtedness;
(ii) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, by set-off or
otherwise, to which the Holder would be entitled (including any payment or
distribution in respect of this Note by reason of any other indebtedness of
the Company being subordinated to this Note), but for the provisions of
this Section 4(c), shall be paid by the Company or any other person making
such payment or distribution, whether a debtor in possession, trustee in
bankruptcy, a receiver, custodian, conservator, or otherwise, directly to
the holders of Senior Indebtedness to the extent necessary to make payment
in full, in cash or cash equivalents acceptable to the holders of Senior
Indebtedness, of the Senior Indebtedness remaining unpaid, after giving
effect to any concurrent payment or distribution to or for the holders of
Senior Indebtedness, and the holders of Senior Indebtedness shall be
entitled to demand, sue for, collect, and receive every such payment or
distribution. The Holder irrevocably authorizes, empowers and directs all
trustees, receivers, custodians, conservators or any other persons having
authority over the property of the Company to effect all such payments and
deliveries to the holders of Senior Indebtedness; and
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(iii) The holders of Senior Indebtedness are hereby authorized, until
payment in full in cash of all Senior Indebtedness (A) to file an
appropriate claim for and on behalf of the Holder if the Holder does not
file, and there is not otherwise filed on behalf of the Holder, a proper
claim or proof of claim in the form required in any such Reorganization
prior to 30 days before the expiration of the time to file such claim, and
(B) to vote all claims in respect of this Note in any Reorganization for
and on behalf of the Holder if the Holder does not vote prior to 10 days
before the expiration of the time to vote such claims.
(d) Rights and Obligations of the Holder.
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(i) In the event that, notwithstanding the foregoing provisions
prohibiting such payment or distribution, the Holder shall have received
any payment or distribution of assets of the Company of any kind or
character in respect of this Note then, and in such event, (A) such payment
or distribution shall be segregated, and in any event, shall be deemed to
have been received by the Holder in trust for the benefit of, and as the
property of, the holders of Senior Indebtedness, until all Senior
Indebtedness is paid in full, in cash or cash equivalents acceptable to the
holders of Senior Indebtedness, and (B) promptly upon receipt of any such
payment (and in any event immediately upon demand by or any holder of
Senior Indebtedness), the Holder shall deliver the same in the form
received, together with any necessary endorsements to the holders of Senior
Indebtedness to the extent necessary to satisfy in full, in cash or cash
equivalents acceptable to the holders of Senior Indebtedness, the Senior
Indebtedness.
(ii) Notwithstanding any provision to the contrary contained herein or
in any agreement or instrument relating hereto, the Holder shall not,
without the prior written consent of the holders of Senior Indebtedness,
ask for, demand, accelerate the maturity of, sue for, take, receive, or
possess from the Company, by set-off, recoupment, foreclosure, or any other
manner, all or any payment of this Note, whether by the institution or
commencement of a bankruptcy case or other judicial action or any other
exercise or attempt to exercise any rights or remedies with respect to this
Note, whether hereunder or under any other agreement, document or
instrument executed in connection herewith.
(e) Rights of Holders of Senior Indebtedness Not To Be Impaired.
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(i) No right of any present or future holder of Senior Indebtedness to
enforce the subordination as herein provided shall at any time in any way
be prejudiced or impaired by any act or failure to act by the Holder or by
the Company, by any act or failure to act by any holder of Senior
Indebtedness, or by any noncompliance by the Company or by the Holder, with
the terms and provisions and covenants herein contained regardless of any
knowledge thereof such holder of Senior Indebtedness may have or otherwise
be charged with.
(ii) Without in any way limiting the generality of Section 4(e)(i)
above, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Holder, without incurring
responsibility to the Holder, and without
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impairing or releasing the subordination provided in this Note or the
obligations hereunder of the Holder to the holders of Senior Indebtedness,
do any one or more of the following: (A) change the manner, place, or terms
of payment or extend the time of payment of, or renew, restate or amend the
terms of, any Senior Indebtedness or any instrument evidencing Senior
Indebtedness or any agreement under which any Senior Indebtedness is
outstanding; (B) sell, exchange, release, or otherwise deal with any
collateral, or take additional property to secure any additional guaranties
of Senior Indebtedness; (C) release any person or entity liable in any
manner for the payment, performance or collection of Senior Indebtedness;
(D) exercise or refrain from exercising any right or waive any right or
claim against the Company or any other person or entity; or (E) sell,
assign or transfer all or any portion of, or grant participation interests
in, Senior Indebtedness.
(f) Subrogation. Until the payment in full, in cash or cash
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equivalents acceptable to the holders of Senior Indebtedness, of all Senior
Indebtedness, the Holder shall not assert any claim of subrogation with respect
to any Senior Indebtedness or the holders of Senior Indebtedness. Upon the
payment in full, in cash or cash equivalents acceptable to the holders of Senior
Indebtedness, of all Senior Indebtedness, the Holder shall be subrogated to the
rights of the holders of Senior Indebtedness to receive and retain payments and
distributions of cash and property on account of Senior Indebtedness, to the
extent of any payments or distributions on account of this Note that were
received and applied by the holders of Senior Indebtedness to the Senior
Indebtedness as a result of the provisions of this Section 4, until this Note
shall be paid in full. For purposes of such subrogation, no payments or
distributions to the holders of Senior Indebtedness by the Company, or payments
received by the Holder and paid over to the holders of Senior Indebtedness of
any cash or property which the Holder would have been entitled to receive and
apply on account of this Note but for the subordination provisions of this
Section 4, shall, as among the Company and its creditors other than the holders
of Senior Indebtedness and the Holder, be deemed to be a payment or distribution
by the Company to or on account of Senior Indebtedness.
(g) Obligations of the Company Unconditional. The provisions of
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Sections 4(a) through 4(f) above are solely for the purpose of defining the
relative rights of the holders of Senior Indebtedness, on the one hand, and the
Holder, on the other hand. Subject to the terms and conditions of this Section
4, (i) the obligations of the Company are absolute and unconditional to pay
amounts outstanding under this Note to the Holder, as and when the same shall
become due and payable in accordance with the terms hereof (other than an
acceleration or prepayment), (ii) nothing contained herein affects the relative
rights against the Company of the Holder and creditors of the Company other than
the holders of the Senior Indebtedness, and (iii) nothing contained herein
prevents the Holder from exercising all remedies hereunder or otherwise
permitted by applicable law.
(h) Notice to the Holder. The Company shall give prompt written
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notice to the Holder of any fact known to the Company which would prohibit the
making of any payment hereunder, but failure to give such notice shall not
affect the subordination provided for in this Section 4. Nothing contained in
this Section 4(h) shall limit the rights of the holders of Senior Indebtedness
to recover payments as contemplated by this Section 4.
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(i) Rights of Holders of the Senior Indebtedness. Any holder of the
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Senior Indebtedness in its capacity as such shall be entitled to all the rights
set forth in this Section 4, subject to the limitations set forth herein, with
respect to any Senior Indebtedness which may at any time be held by it, to the
same extent as any other holders of Senior Indebtedness, and nothing in this
Agreement shall deprive such holder of Senior Indebtedness of any of its rights
as a holder of Senior Indebtedness.
(j) Reinstatement. The provisions of this Section 4 shall continue to
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be effective or be reinstated and the Senior Indebtedness shall not be deemed to
be paid in full, if at any time any payment of any of the Senior Indebtedness is
rescinded or must otherwise be returned by the holders of Senior Indebtedness
upon the insolvency, bankruptcy or reorganization of the Company or otherwise,
all as though such payment had not been made.
(k) Attorney-in-Fact. Until the payment in full, in cash or cash
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equivalents acceptable to the holders of the Senior Indebtedness, of all Senior
Indebtedness, the Holder hereby irrevocably authorizes and empowers any agent of
the holders of Senior Indebtedness, at any time after the occurrence and during
the continuation of a default or an event of default under the documents
relating to such Senior Indebtedness or the circumstances set forth in Section
4(c), to collect and receive the proceeds of this Note and, subject to the
provisions of Section 4(c)(iii), to do any and all things relating thereto with
the same power and authority that the Holder might or could have done but for
the provisions of this Section 4. In connection therewith, the Holder hereby
irrevocably appoints any such agent as its lawful attorney-in-fact with full
power and authority for it and in its name to make, execute, and acknowledge,
publish, file, record, and swear to the execution, acknowledgment, filing,
and/or recordation, as applicable, of any and all documents as any such agent or
the other holders of Senior Indebtedness, in their sole discretion, shall deem
necessary, appropriate, or advisable with respect to the collection of the
Senior Indebtedness, this Note and the enforcement and administration of the
rights of holders of Senior Indebtedness under this Section 4. The Holder
hereby ratifies and confirms any and all acts or omissions which any such agent
may take or fail to take with respect to the administration, collection and
enforcement of this Note, and hereby remises, releases, and forever discharges
any such agent and the holders of Senior Indebtedness from any and all claims in
connection therewith, except those claims which arise as a result of the willful
misconduct of any such agent or any other holder of Senior Indebtedness. The
foregoing power of attorney is coupled with an interest and is irrevocable. The
net amount received by the holders of Senior Indebtedness (after deducting the
costs and expenses of collection and the exercise of any of their respective
rights under this Section 4), as proceeds of the payment or collection of this
Note shall be applied to the Senior Indebtedness then due, or thereafter to
become due, and the excess, if any, shall be remitted to the Holder.
5. Events of Default.
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(a) Definition. For purposes of this Note, an Event of Default shall
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be deemed to have occurred if:
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(i) The Company fails to pay when due the full amount of any principal
payment (including any portion thereof which is Capitalized Interest) or
accrued and unpaid interest; or
(ii) The Company makes an assignment for the benefit of creditors or
admits in writing its inability to pay its debts generally as they become
due; or an order, judgment or decree is entered adjudicating the Company
bankrupt or insolvent; or any order for relief with respect to the Company
is entered under the Federal Bankruptcy Code; or the Company petitions or
applies to any tribunal for the appointment of a custodian, trustee,
receiver or liquidator of the Company, or of any substantial part of the
assets of the Company, or commences any proceeding (other than a proceeding
for the voluntary liquidation and dissolution of any Subsidiary of the
Company) relating to the Company under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation
law of any jurisdiction; or any such petition or application is filed, or
any such proceeding is commenced, against the Company and either (A) the
Company by any act indicates its approval thereof, consent thereto or
acquiescence therein or (B) such petition, application or proceeding is not
dismissed within 60 days.
(b) Consequences of Events of Default.
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(i) If an Event of Default of the type described in Section 5(a)(i)
has occurred and continued for 5 days after written notice thereof is
delivered by the holder or holders of this Note to the Company, the
interest rate on this Note shall increase immediately by an increment of
two (2) percentage points to the extent permitted by law; provided however,
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that any increase of the interest rate resulting from the operation of this
subparagraph shall terminate and be readjusted to the original interest
rate as of the close of business on the date on which no Event of Default
exists.
(ii) If any Event of Default of the type described in Section 5(a)(i)
has occurred and continued for 5 days after written notice thereof is
delivered by the holder or holders of this Note to the Company, the holder
or holders of this Note representing a majority of the aggregate principal
amount of this Note then outstanding may, subject to Section 4, declare all
or any portion of the outstanding principal amount (including any portion
thereof which is Capitalized Interest) of this Note (together with all
accrued interest thereon and all other amounts due and payable with respect
thereto) to be immediately due and payable and may demand immediate payment
of all or any portion of the outstanding principal amount (including any
portion thereof which is Capitalized Interest) of this Note (together with
all such other amounts then due and payable) owned by such Holder.
(iii) If an Event of Default of the type described in Section 5(a)(ii)
has occurred, the aggregate principal amount (including any portion thereof
which is Capitalized Interest) of this Note (together with all accrued
interest thereon and all other amounts due and payable with respect
thereto) shall become immediately due and payable without any action on the
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part of the Holder, and the Company shall immediately pay to the Holder all
amounts due and payable with respect to this Note.
(iv) Subject to Section 4 hereof, each Holder shall also have any
other rights which such Holder may have been afforded under any contract or
agreement at any time and any other rights which such Holder may have
pursuant to applicable law.
(v) The Company hereby waives diligence, presentment, protest and
demand and notice of protest and demand, dishonor and nonpayment of this
Note, and expressly agrees that this Note, or any payment hereunder, may be
extended from time to time and that the Holder hereof may accept security
for this Note or release security for this Note, all without in any way
affecting the liability of the Company hereunder.
6. Transfer Restrictions. The Holder agrees not to sell, transfer,
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assign, pledge or otherwise dispose of any interest in this Note without the
prior written consent of the Company, which consent will not be unreasonably
withheld. Any transfer or attempted transfer of any interest in this Note in
violation of the preceding sentence shall be void, and the Company shall not
record such transfer on its books and records or treat any purported transferee
of such interest as the owner of such interest for any purpose.
7. Distributions. Except for Distributions (as defined in the LLC
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Agreement) pursuant to Section 4.1(c) of the LLC Agreement, the Company shall
not make any Distributions without the consent of the Holder.
8. Amendment and Waiver. Except as otherwise expressly provided
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herein, the provisions of this Note may be amended and the Company may take any
action herein prohibited, or omit to perform any act herein required to be
performed by it, only if the Company has obtained the written consent of the
holder or holders of a majority of the aggregate principal amount (plus all
accrued but unpaid interest) of this Note then outstanding.
9. Definitions. For purposes of this Note, the following
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capitalized terms have the following meaning.
"Affiliate" of any Person means any Person that directly or indirectly
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controls, is controlled by, or is under common control with the Person in
question.
"Bain Group" means Bain/RCL, L.L.C., and each of its respective
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Affiliates and successors.
"Business Day" means any day other than Saturday or Sunday or a public
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holiday under the laws of the State of New York or other day on which banking
institutions are authorized or obligated to close in the State of New York as of
the date of determination.
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"Change in Control" shall mean the first to occur of (i) the
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occurrence of a Liquidity Event or (ii) (a) the Company (or its successor as a
result of merger, consolidation, reorganization or sale) becoming a reporting
company under the Securities Exchange Act of 1934 as a result of the
registration of its common equity securities thereunder and (B) the members of
the Bain Group and their affiliates collectively ceasing to own at least 50% of
the aggregate number of Common Units that they own on the date hereof (as
adjusted for a dividend or split or exchange or in connection with a combination
of units, recapitalization, merger, consolidation or other reorganization).
"Common Units" shall have the meaning assigned to it in the LLC
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Agreement.
"Independent Third Party" shall have the meaning assigned to it in the
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LLC Agreement.
"IPO" shall have the meaning assigned to it in the LLC Agreement.
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"Liquidity Event" means (a) any sale to an Independent Third Party of
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all or substantially all (as defined in the Model Business Corporation Act) of
the assets of the Company and its Subsidiaries on a consolidated basis in one
transaction or series of related transactions, (b) any sale to an Independent
Third Party of all or substantially all of the Common Units held directly or
indirectly by the Bain Group (or a transaction having a similar effect as
contemplated by Section 12.7 of the LLC Agreement) in one transaction or series
of related transactions but excluding any sales of Common Units in a Public Sale
(as defined in the Securityholders Agreement) or (c) a merger or consolidation
or other transaction which accomplishes one of the foregoing.
"LLC Agreement" means that certain Amended and Restated Limited
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Liability Company Agreement of the Company, dated as of the date hereof.
"Person" means an individual, a partnership, a corporation, a limited
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liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Senior Indebtedness" means all indebtedness of the Company and/or any
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of its Subsidiaries (other than the indebtedness evidenced by this Note);
provided that any indebtedness which by its terms is expressly junior to this
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Note shall not have the rights extended to holders of Senior Indebtedness.
"Subsidiaries" shall mean, with respect to any Person, any
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corporation, partnership, limited liability company, association or other
business entity of which (i) if a corporation, a majority of the total voting
power of shares of stock entitled (irrespective of whether, at the time, stock
of any other class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a partnership,
limited liability company, association or other business entity, a majority of
the partnership or other similar
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ownership interest thereof is at the time owned or controlled, directly or
indirectly, by any Person or one or more Subsidiaries of that Person or a
combination thereof.
10. Cancellation. After all principal (including any portion thereof
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which is Capitalized Interest) and accrued interest at any time owed on this
Note has been paid in full, this Note shall be surrendered to the Company for
cancellation and shall not be reissued.
11. Payment Procedures.
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(a) Place of Payment. Payments of principal and interest are to be
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delivered to the Holder at such address or to the attention of such other person
as specified by the Holder by prior written notice to the Company.
(b) Form of Payment. Unless otherwise indicated herein, any payment
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made hereunder shall be made by cashier's or certified check or wire transfer of
funds to the Holder.
(c) Expenses. The Company shall pay and hold the Holder harmless
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against liability for the payment of fees and expenses incurred with respect to
the successful enforcement of rights.
(d) Business Day. If any payment on this Note shall become due on a
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day which is not a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in computing interest in connection with payment.
12. Replacement. Upon receipt of evidence reasonably satisfactory to
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the Company of the mutilation, destruction, loss or theft of this Note and the
ownership thereof, and, in the case of any such mutilation, upon surrender and
cancellation of this Note, the Company shall, upon the written request of the
Holder, execute and deliver in replacement thereof a new Note in the same form,
in the same original principal amount and dated the same date as the Note so
mutilated, destroyed, lost or stolen, and such Note so mutilated, destroyed,
lost or stolen shall then be deemed no longer outstanding hereunder.
13. Usury Laws. It is the intention of the Company and the Holder to
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conform strictly to all applicable usury laws now or hereafter in force, and any
interest payable under this Note shall be subject to reduction to the amount not
in excess of the maximum legal amount allowed under the applicable usury laws as
now or hereafter construed by the courts having jurisdiction over such matters.
If the maturity of this Note is accelerated by reason of an election by the
Holder resulting from an Event of Default, voluntary prepayment by the Company
or otherwise, then earned interest may never include more than the maximum
amount permitted by law, computed from the date hereof until payment, and any
interest in excess of the maximum amount permitted by law shall be cancelled
automatically and, if theretofore paid, shall at the option of the Holder either
be rebated to the Company or credited on the principal amount of this Note, or
if this Note has been paid, then the excess shall be rebated to the Company.
The aggregate of all interest (whether designated as interest, service charges,
points or otherwise) contracted for, chargeable, or receivable under this
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Note shall under no circumstances exceed the maximum legal rate upon the unpaid
principal balance of this Note remaining unpaid from time to time. If such
interest does exceed the maximum legal rate, it shall be deemed a mistake and
such excess shall be cancelled automatically and, if theretofore paid, rebated
to the Company or credited on the principal amount of this Note, or if this Note
has been repaid, then such excess shall be rebated to the Company.
14. Governing Law. This Note shall be governed by and construed in
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accordance with the domestic laws of the State of Massachusetts, without giving
effect to any choice of law or conflict of law provision or rule (whether of the
State of Massachusetts or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of
Massachusetts.
* * * * *
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IN WITNESS WHEREOF, Alliance Laundry Holdings LLC has executed and
deliv ered this Junior Subordinated Promissory Note as of the date above.
ALLIANCE LAUNDRY HOLDINGS LLC
By: __________________________________
Its: _________________________________
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