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EXHIBIT 10.1.27
EXECUTION VERSION
SECURITY AGREEMENT, dated as of December 8, 1997, made by APS
HOLDING CORPORATION (the "Grantor"), in favor of THE CHASE MANHATTAN BANK, a
New York banking corporation, as agent (in such capacity, the "Agent") for the
several banks and other financial institutions (the "Lenders") from time to
time parties to the Amended and Restated Credit Agreement, dated as of January
25, 1996 (as the same may be amended, supplemented, waived or otherwise
modified from time to time, the "Credit Agreement"), among A.P.S., Inc., a
Delaware corporation (the "Borrower"), the Agent and the Lenders.
W I T N E S S E T H :
WHEREAS, the Borrower, the Lenders and the Agent are parties
to the Credit Agreement, pursuant to which the Lenders have severally agreed to
make Loans and provide other financial accommodations to the Borrower upon the
terms and subject to the conditions set forth therein;
WHEREAS, the Borrower has failed to comply with the
requirements of subsection 8.1 of the Credit Agreement at the last day of the
fiscal quarter ended October 25, 1997 (the "Existing Defaults") and, pursuant
to the Fifth Amendment and Waiver, dated as of October 25, 1997, to the Credit
Agreement, the Lenders have waived the Existing Defaults until December 31,
1997;
WHEREAS, the Borrower has requested that the Agent and the
Lenders enter into that certain Sixth Amendment, Waiver and Agreement, dated as
of December 8, 1997, to the Credit Agreement (the "Sixth Amendment and
Waiver"), pursuant to which the Lenders would, among other things, agree,
subject to the terms and conditions thereof, to forbear, until February 10,
1998 or the occurrence of certain other events, from the exercise of their
rights and remedies under the Loan Documents and applicable law with respect to
(i) the Existing Defaults following the expiration of the Fifth Amendment and
Waiver and (ii) any Default or Event of Default arising out of the failure of
the Borrower to comply with the requirements of subsection 8.1 of the Credit
Agreement at the last day of the fiscal quarter ending January 31, 1998
(together with the Existing Defaults, the "Covenant Defaults");
WHEREAS, in connection with, and as a condition precedent to,
the execution of the Credit Agreement, the Grantor executed and delivered to
the Agent the Amended and Restated Guarantee, dated as of January 25, 1996 (the
"Holding Guarantee"), pursuant to which, among other things, the Grantor
unconditionally and irrevocably guaranteed to the Agent, for the ratable
benefit of the Lenders, the prompt and complete payment and performance by the
Borrower when due and payable of the Obligations (as defined in the Holding
Guarantee);
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WHEREAS, pursuant to the Holding Guarantee, the Grantor agreed
to restrict its business to the activities described in subsections 10(b) and
(c) thereof, and the Grantor asserts that it is in compliance with said
subsections and, accordingly, does not, as of the date hereof, own any material
assets or property other than the Pledged Stock (as defined in the Holding
Stock Pledge Agreement); and
WHEREAS, it is nonetheless a condition precedent to the
effectiveness of the Sixth Amendment and Waiver that, in order to further
secure the Grantor's obligations under the Holding Guarantee, the Grantor shall
have executed and delivered this Security Agreement to the Agent for the
ratable benefit of the Lenders;
NOW, THEREFORE, in consideration of the premises contained
herein and to induce the Lenders to enter into the Sixth Amendment and Waiver,
the Grantor hereby agrees with the Agent, for the benefit of the Lenders, as
follows:
1. Defined Terms. (a) Unless otherwise defined herein,
capitalized terms which are defined in the Credit Agreement and used herein are
so used as so defined; the following terms are used herein as defined in the
Uniform Commercial Code in effect in the State of New York from time to time:
Accounts, Chattel Paper, Documents, Equipment, Farm Products, Fixtures, General
Intangibles, Instruments, Inventory, Investment Property and Proceeds; and the
following terms shall have the following meanings:
"Agreement": this Security Agreement, as the same may be
amended, supplemented, waived or otherwise modified from time to time.
"Code": the Uniform Commercial Code as from time to time in
effect in the State of New York.
"Collateral": as defined in Section 2 of this Agreement.
"Concentration Account": the cash collateral account
established at the office of Chemical Bank located at 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, in the name of the Agent, Account No.
323261655.
"Copyright Licenses": any written agreement, naming the
Grantor as licensor, granting any right under any Copyright.
"Copyrights": (i) all registered United States copyrights in
all Works, now existing or hereafter created or acquired, all
registrations and recordings thereof, and all applications in
connection therewith, including, without limitation, registrations,
recordings and applications in the United States Copyright Office, and
(ii) all renewals thereof.
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"General Fund Account": the general fund account established
at the office of Chemical Bank located at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, in the name of the Borrower, Account No. 323250343.
"Lockbox System": as defined in the Borrower Security
Agreement.
"Obligations": as defined in the Holding Guarantee.
"Patent License": any written agreement providing for the
grant by the Grantor of any right to manufacture, use or sell any
invention covered by a Patent.
"Patents": (a) all letters patent of the United States and
all reissues and extensions thereof and (b) all applications for
letters patent of the United States and all divisions, continuations
and continuations-in- part thereof.
"Secured Obligations": the collective reference to (a) the
Obligations and (b) all obligations and liabilities of the Grantor
which may arise under or in connection with this Agreement or any
other Loan Document to which the Grantor is a party, whether on
account of reimbursement obligations, fees, indemnities, costs,
expenses or otherwise (including, without limitation, all reasonable
fees and disbursements of counsel to the Agent or to the Lenders that
are required to be paid by the Grantor pursuant to the terms of this
Agreement or any other Loan Document), provided that anything herein
or in any other Loan Document to the contrary notwithstanding, the
maximum liability of the Grantor hereunder and under the Loan
Documents shall in no event exceed an amount which, under applicable
federal and state laws, including those relating to the insolvency of
debtors, would result in the avoidance or illegality of the
obligations of the Grantor hereunder and under the Loan Documents.
"Trademark License": any written agreement providing for the
grant by the Grantor of any right to use any Trademark, but excluding
the grant of any such right to any automotive parts store or warehouse
(i) to which the Grantor, the Borrower or any of its Subsidiaries
sells goods in connection with the Borrower's Big A(R) program or
which otherwise participates in the Borrower's Big A(R) program, (ii)
in connection with the Installers' Service Warehouse or Installers
Express programs or (iii) in connection with any other similar
programs that may have been or may be created by the Grantor, the
Borrower or any Restricted Subsidiary after January 25, 1996.
"Trademarks": (a) all United States trademarks, trade names,
corporate names, company names, business names, fictitious business
names, trade styles, service marks, logos and other source or business
identifiers, and the goodwill associated therewith, now existing or
hereafter
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adopted or acquired, all registrations and recordings thereof, and all
applications in connection therewith, whether in the United States
Patent and Trademark Office or in any similar office or agency of the
United States or any State thereof and (b) all renewals thereof.
"Work": any work which is subject to copyright protection
pursuant to Title 17 of the United States Code.
(b) The words "hereof," "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
section and paragraph references are to this Agreement unless otherwise
specified.
(c) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
2. Grant of Security Interest. As collateral security for
the prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Secured Obligations, the Grantor
hereby grants to the Agent for the ratable benefit of the Lenders a security
interest in all of the following property, if any, now owned or at any time
hereafter acquired by the Grantor or in which the Grantor now has or at any
time in the future may acquire any right, title or interest (collectively, the
"Collateral"):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Documents;
(iv) all Equipment (other than motor vehicles covered by
certificate of title statutes);
(v) all General Intangibles;
(vi) all Instruments (other than "Collateral" as defined in
the Note Pledge Agreement);
(vii) all Inventory;
(viii) all Investment Property (other than "Collateral" as
defined in the Holding Stock Pledge Agreement);
(ix) all Trademarks;
(x) all Trademark Licenses; and
(xi) to the extent not otherwise included, all Proceeds
and products of any and all of the foregoing;
provided, that (a) in the case of any Instrument or other contract or agreement
with or issued by Persons other than a Subsidiary of the Grantor that would
otherwise be included in the
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foregoing Collateral, the foregoing will not be deemed to grant a security
interest therein under this Agreement (and such Instrument or other contract or
agreement shall not be deemed to constitute a part of the Collateral) for so
long as the granting of a security interest pursuant to the terms hereof would
result in a breach, default or termination of such Instrument or other contract
or agreement and (b) in the case of any property (the "Prince-Oracle
Collateral") subject to the security interest granted to Prince-Oracle Auto
Parts and Equipment, Inc. ("Prince-Oracle") pursuant to the Security Agreement
(Purchase Money), dated March 1, 1993 (the "Prince-Oracle Security Agreement"),
between Prince- Oracle and Big A Auto Parts, Inc., the foregoing will not be
deemed to grant a security interest therein under this Agreement (and such
Prince-Oracle Collateral shall not be deemed to constitute a part of the
Collateral) until such time as, and only to the extent that, such Prince-Oracle
Collateral ceases to be subject to the security interest granted pursuant to
the Prince-Oracle Security Agreement. The Grantor shall use its reasonable
best efforts to cause each Instrument entered into, created or made after the
Effective Date and owned by it to be subject to the Lien and security interest
created pursuant to this Agreement.
3. Rights of Agent and Lenders; Limitations on Agent's and
Lenders' Obligations.
(a) No Liability of Agent or Lenders under Accounts. Neither
the Agent nor any Lender shall have any obligation or liability under any
Account (or any agreement giving rise thereto) by reason of or arising out of
this Agreement or the receipt by the Agent or any such Lender of any payment
relating to such Account pursuant hereto, nor shall the Agent or any Lender be
obligated in any manner to perform any of the obligations of the Grantor under
or pursuant to any Account (or any agreement giving rise thereto), to make any
payment, to make any inquiry as to the nature or the sufficiency of any payment
received by it or as to the sufficiency of any performance by any party under
any Account (or any agreement giving rise thereto), to present or file any
claim, to take any action to enforce any performance or to collect the payment
of any amounts which may have been assigned to it or to which it may be
entitled at any time or times.
(b) Notice to Account Debtors. Upon the request of the Agent
at any time after the occurrence and during the continuance of an Event of
Default, the Grantor shall notify the account debtors on the Accounts then
owned by it that such Accounts have been assigned to the Agent for the ratable
benefit of the Lenders and that payments in respect thereof shall be made
directly to the Agent. At any time and from time to time after the occurrence
and during the continuance of an Event of Default, the Agent may in its own
name or in the name of others communicate with account debtors on such Accounts
to verify with them to its satisfaction the existence, amount and terms of such
Accounts.
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(c) Analysis of Accounts. At any time that the Grantor shall
own any Accounts and from time to time, the Agent shall have the right, upon
reasonable advance notice to the Grantor and at reasonable intervals, to make
test verifications of the Accounts then owned by it in any manner and through
any medium that it reasonably considers advisable, and the Grantor shall
furnish all such assistance and information as the Agent may reasonably require
in connection therewith. At any time that the Grantor shall own any Accounts
and from time to time, upon the Agent's reasonable request, at reasonable
intervals and, in the event that such request is made in connection with the
annual audit of the Grantor's financial statements by independent public
accountants, at the reasonable expense of the Grantor, the Grantor shall cause
Coopers & Xxxxxxx, or other independent public accountants or others reasonably
satisfactory to the Agent, to furnish to the Agent reports showing
reconciliations, aging and test verifications of, and trial balances for, the
Accounts then owned by the Grantor.
(d) Collections on Accounts. If required by the Agent at any
time when an Event of Default has occurred and is continuing, any payments of
Accounts then owned by the Grantor, when collected by the Grantor, shall be
forthwith (and, in any event, within two Business Days of receipt by the
Grantor) deposited or otherwise transferred by the Grantor in or to the
Concentration Account maintained by the Agent, subject to withdrawal by the
Agent for the account of the Lenders only, as hereinafter provided. Until so
turned over, all such payments shall be held by the Grantor in trust for the
benefit of the Agent and the Lenders, segregated from other funds of the
Grantor. All Proceeds constituting collections of Accounts while held by the
Agent (or by the Grantor in trust for the benefit of the Agent and the Lenders)
shall continue to be collateral security for all of the Secured Obligations and
shall not constitute payment thereof until applied as hereinafter provided. At
any time when an Event of Default has occurred and is continuing, the Agent
shall hold all or any part of the funds on deposit in the Concentration Account
on account of the Secured Obligations (whether matured or unmatured) and may
apply such funds from time to time to the Secured Obligations then due and
owing, and any part of such funds which the Agent does not so apply shall be
paid over from time to time by the Agent to the Grantor or to whomsoever may be
lawfully entitled to receive the same. At any time when an Event of Default
has occurred and is continuing, at the Agent's request, the Grantor shall
deliver to the Agent all original and other documents evidencing, and relating
to, the agreements and transactions which gave rise to the Accounts then owned
by the Grantor, including, without limitation, all statements relating to such
Accounts.
(e) Lockbox System; Concentration Account. (i) The Proceeds
of all Accounts, if any, owned by the Grantor (except as permitted under
subsection 8.19 of the Credit Agreement) shall be deposited into the Lockbox
System in accordance with the Lockbox Agreements. Without the prior consent of
the Agent, the Grantor shall not, in a manner materially adverse to the
Lenders, change
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the general instructions given to account debtors on or prior to the date
hereof in respect of payment on Accounts to be deposited in the Lockbox System.
Until the Agent shall have advised the Grantor to the contrary, the Grantor
shall, and the Agent hereby authorizes the Grantor to, enforce and collect all
amounts owing on the Accounts, if any, owned by the Grantor, for the benefit
and on behalf of the Agent and the Lenders; provided, however, that such
privilege shall automatically be suspended upon the occurrence of an Event of
Default specified in Section 9(f) of the Credit Agreement and may at the option
of the Agent be terminated upon the occurrence and during the continuance of
any other Event of Default.
(ii) All Proceeds of Accounts which have been received on any
Business Day through the Lockbox System will be transferred into the
Concentration Account on such Business Day to the extent required by the
applicable Lockbox Agreement. All Proceeds received on any Business Day by the
Agent pursuant to paragraph (e) above will be transferred into the
Concentration Account on such Business Day. The Concentration Account is, and
shall remain, under the sole dominion and control of the Agent. The Grantor
acknowledges and agrees that (A) the Grantor has no right of withdrawal from
the Concentration Account, (B) the funds on deposit in the Concentration
Account shall continue to be collateral security for all of the Secured
Obligations and (C) upon the occurrence and during the continuance of an Event
of Default, at the Agent's election, the funds on deposit in the Concentration
Account shall be applied as provided in paragraph (e) above. So long as no
Event of Default has occurred and is continuing (other than any Covenant
Default during the Sixth Amendment Period), the Agent shall cause the amounts
on deposit in the Concentration Account to be applied or held in accordance
with subsection 8.19(c) of the Credit Agreement.
4. Representations and Warranties. The Grantor (I) hereby
represents and warrants that (A) the Grantor does not conduct, transact or
otherwise engage, and has not committed to conduct, transact or otherwise
engage, in any business or operations other than as permitted by subsections
10(b) and (c) of the Holding Guarantee and (B) except as set forth on Schedule
1 hereto, as of the date hereof, the Grantor does not own any Accounts or any
other material Collateral and (II) without limiting the foregoing
representations and warranties or the acknowledgements in Section 20 hereof,
hereby represents and warrants as follows:
(a) Title; No Other Liens. Except for the Lien granted
to the Agent for the ratable benefit of the Lenders pursuant to this
Agreement and the other Liens permitted to exist on the Collateral
pursuant to the Loan Documents, if and when the Grantor acquires any
Collateral, it will own each item of such Collateral free and clear of
any and all Liens. No security agreement, financing statement or
other public notice similar in effect with respect to all or any part
of such Collateral is on file or of record in any public office,
except such as may have been filed in favor
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of the Agent, for the ratable benefit of the Lenders, pursuant to this
Agreement, or as may be permitted pursuant to the Loan Documents.
(b) Perfected Liens. (i) If and when the Grantor
acquires any Collateral, this Agreement will be effective to create,
as collateral security for the Secured Obligations, valid and
enforceable Liens on such Collateral in favor of the Agent, for the
ratable benefit of the Lenders.
(ii) Except with regard to (A) Liens in Equipment
constituting Fixtures, (B) Liens upon the Trademarks and Trademark
Licenses, which Liens, to the extent not otherwise perfected by the
filing of Uniform Commercial Code financing statements, would, or in
the case of Trademark Licenses may, be perfected upon filing and
acceptance thereof in the United States Patent and Trademark Office
and in appropriate offices under applicable State trademark laws and
(C) Liens on uncertificated securities, upon filing of the financing
statement to be delivered to the Agent by the Grantor promptly after
the date hereof in the jurisdiction listed on Schedule 2 hereto (which
financing statement will be in proper form for filing in such
jurisdiction) (and the making of filings in any other jurisdiction as
may be necessary under any Requirement of Law after the date hereof)
and the delivery to, and continuing possession by, the Agent of all
Instruments, Chattel Paper and Documents, if any, a security interest
in which is perfected by possession, the Liens created pursuant to
this Agreement will constitute valid and perfected Liens on the
Collateral, if any, in favor of the Agent, for the ratable benefit of
the Lenders, which Liens will be prior to all other Liens on such
Collateral, except Liens permitted to exist on such Collateral
pursuant to the Credit Agreement or the other Loan Documents, and
which Liens will be enforceable as such against all creditors of and
purchasers (except, with respect to goods only, buyers in the ordinary
course of business to the extent provided in Section 9-307(1) of the
Code) from the Grantor and against any owner or purchaser of the real
property where any of the Equipment, if any, is located and any
present or future creditor obtaining a Lien on such real property,
except for enforcement against landlords and their mortgagees with
respect to prior claims in Equipment constituting Fixtures, and except
as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law).
(c) Accounts. The amount represented by the Grantor to
the Lenders from time to time as owing by each account debtor or by
all account debtors in respect of the Accounts, if any, will at such
time be the correct amount, in all material respects, actually owing
by such account debtor or debtors thereunder, except to the extent
that appropriate reserves therefor have been established on the books
of the
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Grantor and/or any of its Subsidiaries in accordance with GAAP. The
places where the Grantor will keep its records, if any, concerning the
Accounts are 15710 Xxxx X. Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxx 00000- 2347, 00000 Xxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000, 0000
Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000 and 0000 Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxx 00000, or such other location or locations of which the
Grantor shall have provided prior written notice to the Agent pursuant
to Section 5(p).
(d) Consents. If and when the Grantor acquires any
Account, such Account will be in full force and effect and will
constitute a valid and legally enforceable obligation of the Grantor
and (to the knowledge of the Grantor) each other party thereto except
as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement
of creditor's rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law) and
except to the extent the failure of any such Account to be in full
force and effect or valid or legally enforceable would not be
reasonably expected, in the aggregate, to have a material adverse
effect on the value of the Collateral (as defined in the Credit
Agreement). No consent or authorization of, filing with or other act
by or in respect of any Governmental Authority will have been required
in connection with the execution, delivery, performance, validity or
enforceability of any Account (if and when such Account is acquired by
the Grantor) by any party thereto other than those which will have
been duly obtained, made or performed and will be in full force and
effect and those the failure of which to make or obtain will not be
reasonably expected, in the aggregate, to have a material adverse
effect on the value of the Collateral (as defined in the Credit
Agreement). If and when the Grantor acquires any Account, neither the
Grantor nor (to the knowledge of the Grantor) any other party to such
Account will be in default in the performance or observance of any of
the terms thereof, except for such defaults as will not reasonably be
expected, in the aggregate, to have a material adverse effect on the
value of the Collateral (as defined in the Credit Agreement). The
right, title and interest of the Grantor in, to and under each such
Account will not be subject to any defense, offset, counterclaim or
claim which would be reasonably expected, either individually or in
the aggregate, to have a material adverse effect on the value of the
Collateral (as defined in the Credit Agreement).
(e) Location of Tangible Property. Any Inventory or
Equipment owned by the Grantor shall be kept at the locations listed
on Schedule 1 hereto and/or such other locations of which the Grantor
shall provide written notice to the Agent pursuant to Section 5(p).
(f) Chief Executive Office. The Grantor's chief executive
office and chief place of business is located at
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15710 Xxxx X. Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000-0000
or such other location of which the Grantor shall have provided
written notice to the Agent pursuant to Section 5(p).
(g) Farm Products. None of the Collateral constitutes, or
will be the Proceeds of, Farm Products.
(h) Governmental Obligors. None of the Obligors on any
Accounts will be a Governmental Authority, except for any such
Accounts that are not material in relation to the business of the
Grantor and its Subsidiaries, taken as a whole.
(i) Prince-Oracle Collateral. The Prince-Oracle
Collateral is not subject to any security interest other than the
security interest granted pursuant to the Prince-Oracle Security
Agreement or as may be permitted pursuant to the Loan Documents.
The Grantor agrees that the foregoing representations and
warranties shall be deemed to have been made by the Grantor on and as of each
date on which an Extension of Credit is made by the Lenders to the Borrower
under the Credit Agreement, in each case as though made on and as of each such
date (or, if any such representation or warranty is expressly stated to have
been made as of a specific date, as of such specific date).
5. Covenants. The Grantor covenants and agrees with the
Agent and the Lenders, and, with respect to Section 5(a), the Agent covenants
and agrees with the Grantor, that, from and after the date of this Agreement
until the payment in full of the Notes, the Reimbursement Obligations and the
other Obligations then due and owing, the termination of the Commitments and
the expiration, termination or return to the Issuing Lender of the Letters of
Credit:
(a) Further Documentation; Pledge of Instruments and
Chattel Paper. At any time after the Grantor shall have acquired any
material Collateral and from time to time, upon the written request of
the Agent or the Grantor, as the case may be, and at the sole expense
of the Grantor, the Grantor or the Agent, as the case may be, will
promptly and duly execute and deliver such further instruments and
documents and take such further action as the Agent or the Grantor may
reasonably request for the purpose of obtaining or preserving the full
benefits of this Agreement and of the rights and powers herein
granted, including, without limitation, the filing of any financing or
continuation statements under the Uniform Commercial Code in effect in
any jurisdiction with respect to the Liens created hereby. The
Grantor also hereby authorizes the Agent to file any such financing or
continuation statement without the signature of the Grantor to the
extent permitted by applicable law. A carbon, photographic or other
reproduction of this Agreement shall be sufficient as a
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financing statement for filing in any jurisdiction. The Agent agrees
to notify the Grantor and the Grantor agrees to notify the Agent of
any financing or continuation statement filed by it pursuant to this
Section 5(a), provided that any failure to give any such notice shall
not affect the validity or effectiveness of any such filing. If any
amount payable under or in connection with any of the Collateral shall
be or become evidenced by any Instrument or Chattel Paper, such
Instrument or Chattel Paper shall be promptly delivered to the Agent,
duly indorsed in a manner satisfactory to the Agent, to be held as
Collateral pursuant to this Agreement. The Grantor shall not permit
any other Person to possess any such Collateral at any time other than
in connection with a transaction permitted under subsection 8.15 of
the Credit Agreement.
(b) Indemnification. The Grantor agrees to pay, and to
save the Agent and the Lenders harmless from, any and all liabilities
and reasonable costs and expenses (including, without limitation,
reasonable legal fees and expenses) (i) with respect to, or resulting
from, any delay by the Grantor in paying, any and all excise, sales or
other similar taxes which may be payable or determined to be payable
with respect to any of the Collateral, (ii) with respect to, or
resulting from, any delay by the Grantor in complying with any
material Requirement of Law applicable to any of the Collateral or
(iii) in connection with any of the transactions contemplated by this
Agreement, provided that such indemnity shall not, as to the Agent or
any Lender, be available to the extent that such liabilities, costs
and expenses resulted from the gross negligence or willful misconduct
of the Agent or any Lender. In any suit, proceeding or action brought
by the Agent or any Lender under any Account for any sum owing
thereunder, or to enforce any provisions of any Account, the Grantor
will save, indemnify and keep the Agent and such Lender harmless from
and against all expense, loss or damage suffered by reason of any
defense, setoff, counterclaim, recoupment or reduction or liability
whatsoever of the account debtor or obligor thereunder, arising out of
a material breach by the Grantor of any obligation thereunder.
(c) Maintenance of Records. The Grantor will keep and
maintain at its own cost and expense reasonably satisfactory and
complete records of the Collateral, if any, including, without
limitation, a record of all payments received and all credits granted
with respect to the Accounts, if any. For the Agent's and the
Lenders' further security, the Agent, for the ratable benefit of the
Lenders, shall have a security interest in all of the Grantor's books
and records, if any, pertaining to the Collateral, and the Grantor
shall
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permit the Agent or its representatives to review such books and
records upon reasonable advance notice during normal business hours at
the location where such books and records are kept and at the
reasonable request of the Agent.
(d) Right of Inspection. Upon reasonable advance notice
to the Grantor and at reasonable intervals, or at any time and from
time to time after the occurrence and during the continuance of an
Event of Default, the Agent and the Lenders shall have reasonable
access during normal business hours to all the books, correspondence
and records of the Grantor, and the Agent and the Lenders and their
respective representatives may examine the same, and to the extent
reasonable take extracts therefrom and make photocopies thereof, and
the Grantor agrees to render to the Agent and the Lenders, at the
Grantor's reasonable cost and expense, such clerical and other
assistance as may be reasonably requested with regard thereto. If the
Grantor owns any Inventory or Equipment, the Agent and the Lenders and
their respective representatives shall also have the right upon
reasonable advance notice to the Grantor to enter during normal
business hours into and upon any premises where any of the Inventory
or Equipment is located for the purpose of inspecting the same,
observing its use or otherwise protecting its interests therein.
(e) Compliance with Laws, etc. The Grantor will comply
in all material respects with all Requirements of Law applicable to
the Collateral, if any, or any part thereof, except to the extent that
the failure to so comply would not be reasonably expected to
materially adversely affect in the aggregate the Agent's or the
Lenders' rights hereunder, the priority of their Liens on the
Collateral or the value of the Collateral.
(f) Compliance with Contractual Obligations. The Grantor
will perform and comply in all material respects with all its
Contractual Obligations relating to the Collateral, if any, unless (i)
such performance or compliance is fully excused by breach by the other
party or parties thereto or (ii) such failure to comply or perform
would not be reasonably expected in the aggregate to have a material
adverse effect on the value of the Collateral (as defined in the
Credit Agreement).
(g) Payment of Obligations. The Grantor will pay
promptly when due all taxes, assessments and governmental charges or
levies imposed upon the Collateral, if any, as well as all claims of
any kind (including, without limitation, claims for labor, materials
and supplies) against or with respect to the Collateral, except that
no such tax, assessment, charge or levy need be paid if (i) the
validity thereof is being contested in good faith by appropriate
proceedings diligently conducted and (ii) such tax, assessment, charge
or levy is adequately reserved
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against on the Grantor's or any of its Subsidiaries' books in
accordance with GAAP.
(h) Limitation on Liens on Collateral and Prince-Oracle
Collateral. The Grantor will not create, incur or permit to exist,
will defend the Collateral, if any, and the Prince-Oracle Collateral
against, and will take such other action as is reasonably necessary to
remove, any Lien or material adverse claim on or to any of the
Collateral, other than the Liens created hereby and other than as
permitted pursuant to the Loan Documents, and will defend the right,
title and interest of the Agent and the Lenders in and to any of the
Collateral against the claims and demands of all Persons whomsoever.
(i) Limitations on Dispositions of Collateral. Without
the prior written consent of the Agent, the Grantor will not sell,
assign, transfer, exchange or otherwise dispose of, or grant any
option with respect to, the Collateral, if any, or attempt, offer or
contract to do so, except as permitted by this Agreement or the Credit
Agreement.
(j) Limitations on Modifications, Waivers, Extensions of
Licenses and Accounts. If the Grantor owns any Accounts, it will not,
except in the ordinary course of business, amend, modify, terminate or
waive any provision of any agreement giving rise to a material Account
in any manner which would reasonably be expected to materially
adversely affect the value of such Account as Collateral.
(k) Limitations on Discounts, Compromises, Extensions of
Accounts. At any time the Grantor owns any Accounts, the Grantor will
not, except in the ordinary course of business, grant any extension of
the time of payment of any material Account owned by it, compromise,
compound or settle the same for less than the full amount thereof,
release, wholly or partially, any Person liable for the payment
thereof, or allow any credit or discount whatsoever thereon, unless
such extensions, compromises, compoundings, settlements, releases,
credits or discounts are permitted by the Loan Documents.
(l) Maintenance of Equipment. The Grantor will maintain
each material item of Equipment, if any, in good operating condition,
ordinary wear and tear and immaterial impairments of value and damage
by the elements excepted, and will provide all maintenance, service
and repairs necessary for such purpose, except to the extent that the
failure to do any of the foregoing would not be reasonably expected to
have a Material Adverse Effect.
(m) Maintenance of Insurance. If the Grantor acquires
any material Collateral, the Grantor will maintain, with financially
sound and reputable insurance companies, (i) insurance (including
property insurance) in at least such
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amounts and against at least such risks (but including in any event
public liability, product liability and business interruption where
obtainable) as are usually insured against in the same general area by
companies engaged in the same or a similar business; and furnish to
the Agent, upon written request, information in reasonable detail as
to the insurance carried and (ii) insurance policies relating to the
Inventory and Equipment, if any, (A) insuring such Inventory and
Equipment against loss by fire, explosion, theft and such other
casualties as are usually insured against by companies engaged in the
same or a similar business, (B) insuring the Grantor, the Agent and
the Lenders against liability for personal injury and property damage
relating to such Inventory and Equipment, (C) providing that no
cancellation, material reduction in amount or material change in
coverage thereof shall be effective until at least 15 days after
receipt by the Agent of written notice thereof, (D) naming the Agent
and the Lenders as insured parties and (E) being otherwise reasonably
satisfactory in all material respects to the Agent.
(n) Identification of Collateral. The Grantor will
furnish to the Agent and the Lenders from time to time such statements
and schedules identifying and describing the Collateral, if any, and
such other reports in connection with the Collateral, as the Agent may
reasonably request, all in reasonable detail.
(o) Notices. The Grantor will advise the Agent and the
Lenders promptly, in reasonable detail, at their respective addresses
set forth in the Credit Agreement, (i) of any Lien (other than Liens
created hereby or permitted under the Loan Documents) on, or material
adverse claim asserted against, any of the Collateral and (ii) of the
occurrence of any other event which would reasonably be expected in
the aggregate to have a material adverse effect on the aggregate value
of the Collateral, if any, or the Liens created hereunder.
(p) Changes in Locations, Name, etc. The Grantor will
not (i) change the location of its chief executive office/chief place
of business from that specified in Section 4(f) or remove its books
and records from the locations specified in Section 4(c), (ii) permit
any of its Inventory or Equipment to be kept at a location other than
those listed on Schedule 1 hereto, unless such Inventory or Equipment
is conveyed, sold, leased, transferred, assigned or otherwise disposed
of as permitted by subsection 8.6 of the Credit Agreement or (iii)
change its name, identity or corporate structure to such an extent
that any financing statement filed by the Agent in connection with
this Agreement would become seriously misleading, unless the Grantor
shall have complied with the following:
(A) with respect to clauses (i) and (iii) above, the
Grantor (x) shall have given the Agent at least 30
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days' prior written notice thereof and (y) prior to effecting
any such change, shall have taken such actions as may be
necessary or, upon the reasonable request of the Agent,
advisable to continue the perfection and priority of the Liens
granted pursuant hereto, and
(B) with respect to clause (ii) above, the Grantor
(x) shall have given the Agent at least fifteen days' prior
written notice of the intended location thereof and (y) prior
to keeping any Inventory or Equipment at such location, shall
have taken such actions as may be necessary or, upon the
reasonable request of the Agent, advisable to perfect the
Liens granted pursuant hereto with respect to such Inventory
or Equipment (it being agreed that, at the Agent's option, (I)
the Agent shall prepare and file any UCC-1 or UCC-3 financing
statements required to be filed to perfect such Liens and, in
such event, the Grantor shall promptly provide to the Agent
all information required in connection with such filings or
(II) the Grantor shall prepare and file any UCC-1 or UCC-3
financing statements required to be filed to perfect such
Liens and, in such event, shall promptly upon receipt of the
acknowledgement copy for such filing, forward the original of
such acknowledgement copy (together with all attachments to
such filing) to the Agent together with a certificate in form
attached hereto as Exhibit A, duly completed and executed by
the Grantor);
provided in each case under clauses (A)(y) and (B)(y), that
the Agent shall have taken all actions required by Section
5(a) hereof in connection with such actions of the Grantor.
(q) Patents, Trademarks and Copyrights. The Grantor does not
own, as of the date hereof, and will not at any time in the future
acquire any right, title or interest in or to any Patent, Trademark,
Trademark License or Copyright other than with respect to computer
software or hardware licenses or other licenses of copyrights granted
to the Grantor in the ordinary course of business.
6. Agent's Appointment as Attorney-in-Fact.
(a) Powers. The Grantor hereby irrevocably constitutes
and appoints the Agent and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of the Grantor and in the name of
the Grantor or in its own name, from time to time in the Agent's discretion,
for the purpose of carrying out the terms of this Agreement, to take any and
all appropriate action and to execute any and all documents and instruments
which may be necessary or desirable to accomplish the purposes of this
Agreement, and, without limiting
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the generality of the foregoing, the Grantor hereby gives the Agent the power
and right, on behalf of the Grantor, without notice to or assent by the
Grantor, to do the following at any time when any Event of Default shall have
occurred and be continuing, and to the extent permitted by law:
(i) in the name of the Grantor or its own name, or
otherwise, to take possession of and indorse and collect any checks,
drafts, notes, acceptances or other instruments for the payment of
moneys due under any Account, Instrument or General Intangible (to the
extent that the foregoing constitute Collateral) or with respect to
any other Collateral and to file any claim or to take any other action
or institute any proceeding in any court of law or equity or otherwise
deemed appropriate by the Agent for the purpose of collecting any and
all such moneys due under any such Account, Instrument or General
Intangible or with respect to any such other Collateral whenever
payable;
(ii) to pay or discharge taxes and Liens levied or placed
on the Collateral, other than Liens permitted under this Agreement or
the other Loan Documents, to effect any repairs or any insurance
called for by the terms of this Agreement and to pay all or any part
of the premiums therefor and the costs thereof; and
(iii) upon the occurrence and during the continuance of any
Event of Default (A) to direct any party liable for any payment under
any of the Collateral to make payment of any and all moneys due or to
become due thereunder directly to the Agent or as the Agent shall
direct; (B) to ask for, or demand, collect, receive payment of and
receipt for, any and all moneys, claims and other amounts due or to
become due at any time in respect of or arising out of any Collateral;
(C) to sign and indorse any invoices, freight or express bills, bills
of lading, storage or warehouse receipts, drafts against debtors,
assignments, verifications, notices and other documents in connection
with any of the Collateral; (D) to commence and prosecute any suits,
actions or proceedings at law or in equity in any court of competent
jurisdiction to collect the Collateral or any thereof and to enforce
any other right in respect of any Collateral; (E) to defend any suit,
action or proceeding brought against the Grantor with respect to any
of the Collateral; (F) to settle, compromise or adjust any suit,
action or proceeding described in clause (E) above and, in connection
therewith, to give such discharges or releases as the Agent may deem
appropriate; (G) to assign any Trademark (along with the goodwill of
the business to which any such Trademark pertains), for such term or
terms, on such conditions, and in such manner, as the Agent shall in
its sole discretion determine; and (H) generally, to sell, transfer,
pledge and make any agreement with respect to or otherwise deal with
any of the Collateral as fully and completely as though the Agent were
the absolute owner thereof for all purposes, and to do, at the Agent's
option and the Grantor's expense, at
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any time, or from time to time, all acts and things which the Agent
deems necessary to protect, preserve or realize upon the Collateral
and the Agent's and the Lenders' Liens thereon and to effect the
intent of this Agreement, all as fully and effectively as the Grantor
might do.
The Grantor hereby ratifies all that said attorneys shall lawfully do or cause
to be done by virtue hereof. This power of attorney is a power coupled with an
interest and shall be irrevocable until payment in full of the Notes, the
Reimbursement Obligations and the other Obligations then due and owing, the
termination of the Commitments and the expiration, termination or return to the
Issuing Lender of the Letters of Credit.
(b) Other Powers. The Grantor also authorizes the Agent,
from time to time if an Event of Default shall have occurred and be continuing,
to execute, in connection with any sale provided for in Section 9 hereof, any
endorsements, assignments or other instruments of conveyance or transfer with
respect to the Collateral.
(c) No Duty on the Part of Agent or Lenders. The powers
conferred on the Agent and the Lenders hereunder are solely to protect the
Agent's and the Lenders' interests in the Collateral (if any) and shall not
impose any duty upon the Agent or any Lender to exercise any such powers. The
Agent and the Lenders shall be accountable only for amounts that they actually
receive as a result of the exercise of such powers, and neither they nor any of
their officers, directors, employees or agents shall be responsible to the
Grantor for any act or failure to act hereunder, except for their own gross
negligence or willful misconduct.
7. Performance by Agent of Grantor's Obligations. If the
Grantor fails to perform or comply with any of its agreements contained herein
and the Agent, as provided for by the terms of this Agreement, shall itself
perform or comply, or otherwise cause performance or compliance, with such
agreement, the reasonable expenses of the Agent incurred in connection with
such performance or compliance, together with interest thereon at a rate per
annum 2% above the rate applicable to ABR Loans, shall be payable by the
Grantor to the Agent on demand and shall constitute Secured Obligations secured
hereby.
8. Proceeds. It is agreed that if an Event of Default shall
occur and be continuing, (a) all Proceeds of any Collateral received by the
Grantor consisting of cash, checks and other near-cash items shall be held by
the Grantor in trust for the Agent and the Lenders, segregated from other funds
of the Grantor, and at the request of the Agent shall, forthwith upon receipt
by the Grantor, be turned over to the Agent in the exact form received by the
Grantor (duly indorsed by the Grantor to the Agent, if required), and (b) any
and all such Proceeds received by the Agent (whether from the Grantor or
otherwise) may, in the sole discretion of the Agent, be held by the Agent for
the ratable benefit of the Lenders as collateral security for the
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Secured Obligations (whether matured or unmatured), and/or then or at any time
thereafter may be applied by the Agent against, the Secured Obligations then
due and owing. Any balance of such Proceeds remaining after the payment in
full of the Notes, the Reimbursement Obligations and the other Obligations then
due and owing, the termination of the Commitments and the expiration,
termination or return to the Issuing Lender of the Letters of Credit shall be
paid over to the Grantor or to whomsoever may be lawfully entitled to receive
the same.
9. Remedies. If an Event of Default shall occur and be
continuing, the Agent, on behalf of the Lenders, may exercise all rights and
remedies of a secured party under the Code, and, to the extent permitted by
law, all other rights and remedies granted to them in this Agreement and in any
other instrument or agreement securing, evidencing or relating to the
Obligations. Without limiting the generality of the foregoing, the Agent,
without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law referred
to below) to or upon the Grantor or any other Person (all and each of which
demands, defenses, advertisements and notices are hereby waived), may in such
circumstances, to the extent permitted by law, forthwith collect, receive,
appropriate and realize upon the Collateral or any part thereof, and/or may
forthwith sell, lease, assign, give option or options to purchase, or otherwise
dispose of and deliver the Collateral or any part thereof (or contract to do
any of the foregoing), in one or more parcels at public or private sale or
sales, at any exchange, broker's board or office of the Agent or any Lender or
elsewhere upon such terms and conditions as it may deem advisable and at such
prices as it may deem best, for cash or on credit or for future delivery
without assumption of any credit risk. The Agent or any Lender shall have the
right, to the extent permitted by law, upon any such sale or sales, to purchase
the whole or any part of the Collateral so sold, free of any right or equity of
redemption in the Grantor, which right or equity is hereby waived or released.
The Grantor further agrees, at the Agent's request, upon the occurrence and
during the continuance of an Event of Default, to assemble the Collateral and
make it available to the Agent at places which the Agent shall reasonably
select, whether at the Grantor's premises or elsewhere. The Agent shall apply
the net proceeds of any such collection, recovery, receipt, appropriation,
realization or sale, after deducting all reasonable costs and expenses of every
kind incurred therein or incidental to the care or safekeeping of any of the
Collateral or in any way relating to the Collateral or the rights of the Agent
and the Lenders hereunder, including, without limitation, reasonable attorneys'
fees and disbursements, to the payment in whole or in part of the Secured
Obligations then due and owing, and only after such application and after the
payment by the Agent of any other amount required by any provision of law,
including, without limitation, Section 9-504(1)(c) of the Code, need the Agent
account for the surplus, if any, to the Grantor. To the extent permitted by
applicable law, the Grantor waives all claims, damages and demands it may
acquire against the Agent or any Lender arising out of the repossession,
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retention or sale of the Collateral, other than any such claims, damages and
demands that may arise from the gross negligence or willful misconduct of any
of them. If any notice of a proposed sale or other disposition of Collateral
shall be required by law, such notice shall be deemed reasonable and proper if
given at least 10 days before such sale or other disposition. The Grantor
shall remain liable for any deficiency if the proceeds of any sale or other
disposition of the Collateral are insufficient to pay the then outstanding
Secured Obligations, including the reasonable fees and disbursements of any
attorneys employed by the Agent or any Lender to collect such deficiency.
10. Limitation on Duties Regarding Preservation of
Collateral. The Agent's sole duty with respect to the custody, safekeeping and
physical preservation of the Collateral in its possession, under Section 9-207
of the Code or otherwise, shall be to deal with it in the same manner as the
Agent deals with similar property for its own account. Neither the Agent, any
Lender, nor any of their respective directors, officers, employees or agents
shall be liable for failure to demand, collect or realize upon all or any part
of the Collateral or for any delay in doing so or shall be under any obligation
to sell or otherwise dispose of any Collateral upon the request of the Grantor
or any other Person.
11. Powers Coupled with an Interest. All authorizations and
agencies herein contained with respect to the Collateral are powers coupled
with an interest and are irrevocable until payment in full of the Notes, the
Reimbursement Obligations and the other Obligations then due and owing, the
termination of the Commitments and the expiration, termination or return to the
Issuing Lender of the Letters of Credit.
12. 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, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
13. Section Headings. The Section headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation
hereof.
14. No Waiver; Cumulative Remedies. Neither the Agent nor
any Lender shall by any act (except by a written instrument pursuant to Section
15 hereof), delay, indulgence, omission or otherwise be deemed to have waived
any right or remedy hereunder or to have acquiesced in any Default or Event of
Default or in any breach of any of the terms and conditions hereof. No failure
to exercise, nor any delay in exercising, on the part of the Agent or any
Lender, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any
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other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Agent or any Lender of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or
remedy which the Agent or such Lender would otherwise have on any future
occasion. The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any rights or
remedies provided by law.
15. Waivers and Amendments; Successors and Assigns. None of
the terms or provisions of this Agreement may be waived, amended, supplemented
or otherwise modified except by a written instrument executed by the Grantor
and the Agent, provided that any provision of this Agreement for the benefit of
the Agent and/or the Lenders may be waived by the Agent in a written letter or
agreement executed by the Agent or by telex or facsimile transmission from the
Agent. This Agreement shall be binding upon the successors and assigns of the
Grantor and shall inure to the benefit of the Agent and the Lenders and their
respective successors and assigns, except that the Grantor may not assign,
transfer or delegate any of its rights or obligations under this Agreement
without the prior written consent of the Agent.
16. Notices. All notices, requests and demands to or upon
the Agent or the Grantor to be effective shall be in writing (including by
telecopy), and unless otherwise provided herein, shall be deemed to have been
duly given or made when delivered by hand or three days after being deposited
in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed, in the case of the Agent, as set forth in the Credit
Agreement, and, in the case of the Grantor, as set forth below its signature
below. The Agent and the Grantor may change their addresses and transmission
numbers for notices by notice in the manner provided in this Section.
17. Authority of Agent. The Grantor acknowledges that the
rights and responsibilities of the Agent under this Agreement with respect to
any action taken by the Agent or the exercise or non-exercise by the Agent of
any option, voting right, request, judgment or other right or remedy provided
for herein or resulting or arising out of this Agreement shall, as between the
Agent and the Lenders, be governed by the Loan Documents and by such other
agreements with respect thereto as may exist from time to time among them, but,
as between the Agent and the Grantor, the Agent shall be conclusively presumed
to be acting as agent for the Lenders with full and valid authority so to act
or refrain from acting, and the Grantor shall not be under any obligation to
make any inquiry respecting such authority.
18. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
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19. Release of Collateral and Termination. (a) At such time
as the payment in full of the Notes, the Reimbursement Obligations and the
other Obligations then due and owing shall have occurred, the Commitments have
been terminated and the Letters of Credit have expired, terminated or been
returned to the Issuing Lender, the Collateral (if any) shall be released from
the Liens created hereby, and this Agreement and all obligations (other than
those expressly stated to survive such termination) of the Agent and the
Grantor hereunder shall terminate, all without delivery of any instrument or
performance of any act by any party, and all rights to the Collateral shall
revert to the Grantor. Upon request of the Grantor following any such
termination, the Agent shall deliver (at the sole cost and expense of the
Grantor) to the Grantor any Collateral held by the Agent hereunder, and execute
and deliver (at the sole cost and expense of the Grantor) to the Grantor such
documents as the Grantor shall reasonably request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or
otherwise disposed of by the Grantor in a transaction permitted by the Credit
Agreement or the Holding Guarantee, then the Agent shall execute and deliver to
the Grantor (at the sole cost and expense of the Grantor) all releases or other
documents reasonably necessary or desirable for the release of the Liens
created hereby on such Collateral.
20. No Effect on Holding Guarantee; Conflicts. (a) The
Grantor acknowledges that nothing in this Agreement shall be deemed to be, or
construed as, an amendment or waiver by the Agent or the Lenders of any
provisions of the Holding Guarantee, including, without limitation, the
restrictions in subsections 10(b) and (c) thereof regarding the Grantor's
permitted business activities or right to own assets or property, and the
Grantor hereby acknowledges that the Holding Guarantee remains in full force
and effect in accordance with its terms and conditions.
(b) In the event of a conflict between any provision of this
Agreement or the obligations of the Grantor under this Agreement in respect of
the collateral described in this paragraph with any provision of, or obligation
in respect of such collateral under, in the case of "Collateral" (as
defined in the Note Pledge Agreement), the Note Pledge Agreement or, in the
case of the "Pledged Collateral" (as defined in the Holding Stock Pledge
Agreement"), the Holding Stock Pledge Agreement, the provisions of the Note
Pledge Agreement or the Holding Stock Pledge Agreement, as the case may be,
shall govern.
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IN WITNESS WHEREOF, the Grantor has caused this Agreement to
be duly executed and delivered as of the date first above written.
APS HOLDING CORPORATION
By
------------------------------
Title:
Address for Notices:
00000 Xxxx X. Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000
Attention: Chief Financial Officer
Telecopy: (000) 000-0000
ACKNOWLEDGED AND AGREED AS OF
THE DATE HEREOF BY:
THE CHASE MANHATTAN BANK, as Agent
By
----------------------------------
Title:
23
Schedule 1
COLLATERAL
None
24
Schedule 2
UCC FILING OFFICES
Texas Secretary of State
25
Exhibit A
FORM OF FINANCING STATEMENT REPORT
TO: The Chase Manhattan Bank
Lien Perfection Department
000 Xxxxxxx Xxxxxxxxxx
Xxxxxxx, Xxx Xxxx 00000
FROM: APS Holding Corporation
DATE: ____________________, 199__
================================================================================
ATTACHED ARE UNIFORM COMMERCIAL CODE FILINGS RELATING TO THE FOLLOWING LOAN:
Name of Debtor: APS Holding Loan Facility: A.P.S.,
Corporation Inc.
----------------------------------------------------------------------
----------------------------------------------------------------------
Description of Enclosures:
----------------------------------------------------------------------
Contacts and Telephone Numbers:
----------------------------------------------------------------------
COMPLETE THE FOLLOWING GRID FOR EACH UCC FILING:
================================================================================
Name of Debtor: APS Holding Corporation
--------------------------------------------------------------------------------
Name of Secured Party:
--------------------------------------------------------------------------------
Type of Filing:
--------------------------------------------------------------------------------
Filing Date:
--------------------------------------------------------------------------------
File Number:
--------------------------------------------------------------------------------
Jurisdiction:
--------------------------------------------------------------------------------
Security Document: [Title] dated ___________, 199__
================================================================================
26
The undersigned hereby certifies that the above described
information is true and correct as of the date hereof.
APS HOLDING CORPORATION
By:
-------------------------------
Name:
Title:
