EX-10.21
MAKER: Jeff Bust
PAYEE: Grove Worldwide LLC
PROMISSORY NOTE
$375,000 June 27, 1998
FOR VALUE RECEIVED, Jeff Bust ("Maker"), promises to pay to the
order of Grove Worldwide LLC (collectively with all subsequent holders of this
Note, "Payee"), at 201 Main Street, Suite 2600, Fort Worth, Texas 76102, or at
such other address or addresses as payee may from time to time designate in
writing, in lawful money of the United States of America, an amount equal to
Three Hundred and Seventy-Five Thousand dollars ($375,000) (the "Principal
Amount"), together with interest on the unpaid Principal Amount owing hereunder
from time to time at the rate per annum equal to the lesser of (1) or (2) below:
(1) a varying rate per annum equal to the prevailing designated
prime or base rate of Wells Fargo Bank, N.A., or its successor, as published or
announced by such bank from time to time (the "Prime Rate"), with adjustments
in such varying rate to be made on the same date as any change in the Prime
Rate (the "Applicable Rate"); or
(2) the maximum lawful rate (the "Maximum Rate") which may be
contracted for, charged, taken, received, or reserved by Payee in accordance
with New York law from time to time in effect except to the extent federal law
permits Payee to contract for, charge, take, receive, or reserve a greater
amount of interest, due credit being given for all charges made in connection
with the loan evidenced hereby that may be treated as interest under applicable
law.
Interest will be based on a 365-day year.
Notwithstanding anything in this Note to the contrary, if at any
time the Applicable Rate, together with all fees and charges, if any,
contracted for, charged, received, taken, or reserved by Payee in connection
with the loan evidenced hereby that may be treated as interest under applicable
law (collectively, the "Charges"), computed over the full term of this Note,
exceeds the Maximum Rate, then the rate of interest payable hereunder, together
with all Charges, will be limited to the Maximum Rate. If, however, the Maximum
Rate from time to time subsequently increases, then the interest charged on the
unpaid Principal Amount will remain equal to the Maximum Rate, and any
subsequent reduction in the Applicable Rate will not reduce the rate borne by
this Note, until the total amount of interest earned hereunder, together with
all Charges, equals the total amount of interest that would have accrued at the
Applicable Rate if the Applicable Rate had at all times been in effect.
Moreover, if at maturity or final payment of this Note the total amount of
interest paid or accrued under the foregoing provisions is less than the total
amount of interest that would have accrued if the Applicable Rate had at all
times been in effect, Maker agrees to pay to Payee, to the
2
extent allowed by then-applicable law, an amount equal to the difference
between (a) the lesser of (i) the amount of interest that would have been
accrued on this Note if the Maximum Rate had at all times been in effect, and
(ii) the amount of interest that would have accrued if the Applicable Rate had
at all times been in effect, and (b) the amount of interest actually accrued
under this Note.
This Note evidences the loan, between the Maker and the Payee for
the purchase by Maker of a membership interest (the "Equity") in Grove
Investors LLC, a Delaware limited liability company ("Investors"). So much of
the Principal Amount as is required for Maker's purchase of the Equity shall be
advanced by Payee directly to Investors, which will sell the Equity to Maker in
an amount that corresponds to Payee's advance. Maker authorizes and directs
Payee to make the advance to Investors and further authorizes Investors to
evidence the sale of the Equity in such manner with respect to the advance made
by Payee under this Note. Such advance will be deemed to have been received by
Maker upon Maker's receipt of the Equity and thereafter paid to Investors as
the purchase price for the Equity.
This Note is secured by Maker's pledge of: (i) Maker's membership
interest in Investors (the "Pledged Equity"), as more fully set forth in that
certain Pledge Agreement (the "Pledge Agreement") dated as of the date hereof
by and between Maker and Payee; and (ii) such other assets or documents as are
at any time given as security for or relating to this Note (the Pledge
Agreement and all other security documents are collectively referred to as the
"Security Instruments," and the Pledged Equity and any other assets that are at
any time pledged as security for this Note are collectively referred to as the
"Collateral").
This Note is due and payable as follows:
(A) At the time of, and to the extent of the after-tax proceeds of,
all distributions respecting and proceeds and payments on, from, or in
connection with the Collateral and any other amounts to which Maker becomes
entitled with respect to the Collateral (such amounts to be paid to Payee as
provided below). For this purpose, after-tax proceeds shall be computed by
taking into account income taxes attributable to Maker's ownership or
disposition of the Collateral (including income tax liability attributable to
Maker's distributive share of taxable income of Investors) and by assuming that
Maker will pay taxes at the maximum federal income tax rate and the maximum
state income tax rate for the state in which the Pledgor pays income taxes with
respect to such ownership or disposition of the Collateral, taking into account
the deductibility of state income taxes for federal income tax purposes.
(B) At the time of and to the extent of (i) proceeds from
Investors' redemption of the Pledged Equity (such amounts to be paid to Payee
as provided below) and (ii) other proceeds arising out of the sale or other
disposition of all or any portion of the Pledged Equity.
3
(C) If a bonus is payable under the Short Term Incentive Plan to
the Maker in a year, fifty percent of the after tax proceeds of such bonus
calculated at the highest marginal tax rate applicable to the Maker is due.
(D) Unless sooner paid under this Note, any unpaid Principal Amount
and all unpaid interest accrued thereon is finally due and payable on the tenth
anniversary of the date hereof.
Maker hereby acknowledges that, except as expressly provided above,
all distributions, redemptions and other payments in respect of the Collateral
payable by Investors to Maker will be paid directly to Payee as payments under
this Note. Maker hereby directs and authorizes Investors to pay the foregoing
amounts directly to Payee to be applied against this Note. By signing below
Investors agrees to make all such payments directly to Payee unless otherwise
notified in writing to the contrary by Payee. The parties hereto acknowledge
and agree that such amounts will be deemed to have been distributed to Maker
and thereafter paid by Maker to Payee as payment under this Note.
Time is of the essence in this Note.
If Maker does not pay this Note as and when due to Payee, then this
Note will bear interest until paid at the Default Rate (as defined below).
Maker may at any time prepay all or from time to time any portion
of this Note without premium or penalty upon at least two days written notice
to the Payee. All payments on this Note will, at the option of Payee, be
applied first to pay unpaid accrued interest and any remainder will be applied
to reduce the Principal Amount.
Except as otherwise specifically provided, Maker: (i) waives grace,
presentment and demand for payment, protest and notice of protest, notice of
intent to accelerate maturity, notice of acceleration of maturity, notice of
nonpayment, and all other notices of any nature, filing of suit, and diligence
in collecting this Note or enforcing any of the Collateral for it; (ii) agrees
that the amount due hereunder must be paid without set-off, counterclaim,
abatement, suspension or diminution; and (iii) agrees that Payee will not be
required first to file suit or exhaust its remedies against Maker, any
guarantor, or others liable or to become liable on this Note to enforce payment
of this Note. No extension or postponement of time for paying this Note or any
installment hereof affects the liability of Maker under this Note.
Any of the following is a "Default" under this Note:
(a) Maker fails to perform or observe any provision of this Note,
the Pledge Agreement, or any other Security Instrument.
4
(b) Maker commences a voluntary case under Title 11 of the United
States Code as from time to time in effect (the "Bankruptcy Code").
(c) Maker seeks relief as a debtor under any applicable law, other
than the Bankruptcy Code, of any jurisdiction relating to the liquidation
or reorganization of debtors or to the modification or alteration of the
rights of creditors or consents to or acquiesces in such relief.
(d) Maker has entered against him any order by a court of competent
jurisdiction finding him to be bankrupt or insolvent, or assuming custody
of, or appointing a receiver or other custodian for, all or a substantial
part of his property.
(e) Maker makes an assignment for the benefit of, or enters into a
composition with, his creditors, or appoints or consents to the
appointment of a receiver or other custodian for all or a substantial part
of his property.
(f) A court having jurisdiction enters a decree or order for relief
in respect of Maker in an involuntary case under the Bankruptcy Code or
under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect, which decree or order is not stayed; or any other
similar relief is granted under any applicable federal or state law.
(g) An involuntary case is commenced against Maker under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or
similar law now or hereafter in effect; or a decree or order of a court
having jurisdiction for the appointment of a receiver, liquidator,
sequestrator, trustee, custodian, or other officer having similar powers
over Maker, or over all or a substantial part of his property, has been
entered; or the involuntary appointment of an interim receiver, trustee,
or other custodian of Maker for all or a substantial part of his property
has occurred; or a warrant of attachment, execution, or similar process
has been issued against any substantial part of Maker's property, and any
such event described in this clause (g) continues for 60 days unless
dismissed, bonded or discharged.
If a Default occurs, then and in each and every such case the unpaid
Principal Amount and all accrued interest will automatically become due and
payable without presentation, presentment, protest, or further demand or notice
of any kind, all of which Maker expressly waives. Payee way proceed to enforce
payment of all or part of such amount in a commercially reasonable manner. Payee
will also be entitled to exercise any and all other rights, remedies, and
recourses now or later existing in equity
5
or at law. All remedies under this Note and the Security Instruments are
cumulative, not exclusive.
Upon Default under this Note, or under any of the Security
Instruments, at Payee's option all amounts then due and payable under this Note
or the Security Instruments will bear interest from the date the Default occurs
at a rate of interest per annum (the "Default Rate") equal to the lesser of (a)
4% over the Applicable Rate, and (b) the Maximum Rate.
Maker agrees to pay all costs of collection hereof when incurred,
including reasonable attorneys' fees of the Payee, whether or not any action is
instituted to enforce this Note.
Maker and Payee at all times intend to comply with the applicable
law now or hereafter governing the terms of this Note and the interest payable
on this Note. If the applicable law is ever revised, repealed, or judicially
interpreted so as to render any provision of this Note invalid, or so as to
render usurious any amount called for under this Note or under any of the
Security Instruments or contracted for, charged, taken, reserved, or received
with respect to the loan evidenced by this Note, or if Payee's exercise of its
rights to accelerate the maturity of this Note, or if any prepayment by Maker
results in Maker's having paid any interest in excess of that permitted by law,
then it is Maker's and Payee's express intent that all excess amounts
previously collected by Payee be credited on the Principal Amount of this Note
(or, if the Note has been paid in full, refunded to Maker). This Note and the
Security Instruments immediately will then be deemed reformed and the amounts
later collectible hereunder and thereunder reduced without the need to execute
any new document, so as to comply with the then-applicable law, but so as to
permit the recovery of the greatest amount otherwise called for hereunder and
thereunder.
All sums paid or agreed to be paid to Payee for the use,
forbearance, or detention of this indebtedness evidenced by this note will, to
the extent permitted by applicable law, be amortized, prorated, allocated, and
spread throughout the full term of this Note until paid in full so that the
rate or amount of interest on account of such indebtedness does not exceed the
applicable usury ceiling for so long as any amount is outstanding.
THIS NOTE MUST BE GOVERNED BY AND CONSTRUED ACCORDING TO NEW YORK
LAW EXCEPT AS APPLICABLE FEDERAL LAW PERMITS PAYEE TO CONTRACT FOR, CHARGE,
TAKE, RECEIVE, OR RESERVE A GREATER AMOUNT OF INTEREST.
Any suit, action, proceeding, controversy or claim arising out of
or relating to this Note or a Default must be brought in a court of appropriate
jurisdiction in New York City, New York. Maker hereby submits and consents to
the jurisdiction of such court for any such suit, action or proceeding and
irrevocably waives: (i) any
6
objection that he now has or may later have to the venue of such court, and
(ii) any objection that any such suit, action, or proceeding brought in such
court has been brought in an inconvenient forum.
THIS PROMISSORY NOTE REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
Maker has duly executed this Note effective as of the date first
above written.
"MAKER"
/s/ Jeff Bust
----------------------------------
JEFF BUST
"PAYEE"
/s/ Salvatore J. Bonanno
----------------------------------
GROVE WORLDWIDE LLC
By: /s/ Salvatore J. Bonanno
----------------------------------
Title: CEO
----------------------------------
(Payee's signature is added solely to
acknowledge the statement in the next to
the last paragraph above that this is
the final written agreement between the
parties.)
Acknowledged and agreed to for the
limited purposes stated herein by:
GROVE INVESTORS LLC, a
Delaware limited liability company
By: /s/ Salvatore J. Bonanno
--------------------------
Title: CEO
-----------------------