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EXHIBIT 10.2.3
LOAN OUT AGREEMENT
This LOANOUT AGREEMENT, dated as of March 4, 1997 (the "Agreement"),
among APS Holding Corporation, a Delaware corporation (the "Company"), A.P.S.,
Inc., a Delaware corporation and a wholly owned subsidiary of the Company
("APS"), and ▇▇▇▇▇▇▇, Dubilier & Rice, Inc., a Delaware corporation ("CD&R").
WITNESSETH:
WHEREAS, CD&R provides financial advisory and management consulting
services to the Company, APS and its subsidiaries (the "Consulting
Arrangements"), and the Company, APS and CD&R are parties to an Indemnification
Agreement, dated as of November 22, 1989 (the "Indemnification Agreement"),
among the Company, APS, APS Acquisition Corporation, CD&R and The ▇▇▇▇▇▇▇ &
Dubilier Private Equity Fund IV Limited Partnership;
WHEREAS, the Company and APS desire to obtain the services of ▇▇.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, an employee of CD&R ("▇▇▇▇"), to perform the functions of
interim Chief Executive Officer of the Company, APS and its subsidiaries, and
CD&R is willing to make such services available to the Company, APS and such
subsidiaries upon and subject to the terms and conditions hereof; and
WHEREAS, this Agreement has been approved by the Board of Directors of
the Company and of APS, including a majority of the disinterested directors of
the Company and of APS;
NOW, THEREFORE, in consideration of the foregoing premises and the
respective agreements hereinafter set forth and the mutual benefits to be
derived herefrom, the parties hereto hereby agree as follows:
1. Services, etc.
CD&R shall make the services of ▇▇▇▇ available to the Company, APS and
its subsidiaries, and the Company, APS and its subsidiaries shall make use of
the services of ▇▇▇▇ to serve as interim Chief Executive Officer of each of
them, commencing and effective as of the date hereof, until the expiration of
the Term (as defined in Section 2 hereof). ▇▇▇▇ shall be available to render
such services on a part-
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time basis mutually agreeable to the Company, APS, CD&R and ▇▇▇▇. Without
limiting the foregoing, ▇▇▇▇ will continue to serve as an employee of CD&R and
may serve as an officer or director of CD&R or other corporations or entities
and devote such time to performing such services as ▇▇▇▇, in his sole
discretion, shall deem appropriate. The services of ▇▇▇▇ to be made available
to the Company, APS and its subsidiaries hereunder shall be deemed to be part
of the services provided by CD&R pursuant to the Consulting Arrangements. No
separate or additional consideration shall be payable hereunder for the
services of ▇▇▇▇, beyond that payable under the Consulting Arrangements.
2. Term.
(a) This Agreement shall be effective as of the date
hereof. The term of this Agreement (the "Term") shall commence on the date
hereof and shall terminate on the earliest to occur of (i) the termination of
the Consulting Arrangements, (ii) the date that is ten (10) business days
following delivery of written notice of such termination by any party hereto to
the other parties hereto, (iii) the election of a successor Chief Executive
Officer of the Company or of APS by the Board of Directors of the Company or of
APS, as applicable, in accordance with its by-laws and (iv) ▇▇▇▇'▇ death,
permanent disability or resignation from his employment with CD&R.
(b) The expiration of the Term shall not affect the
continuing effectiveness of the Consulting Arrangements or the Indemnification
Agreement, each of which shall continue to be in full force and effect and
enforceable in accordance with their respective terms. Without limiting the
foregoing, each of the Company and APS shall continue to, and to be obligated
to, pay and reimburse all fees, expenses and other amounts as and when due
under the Consulting Arrangements and the Indemnification Agreement and perform
all their other obligations thereunder.
3. Indemnification.
All performance by, and all actions or omissions of, CD&R or
▇▇▇▇ under or in respect of this Agreement shall be deemed to be pursuant to
the Consulting Arrangements, and each of CD&R and ▇▇▇▇ shall be entitled to
the benefits of the indemnification and other provisions of the Consulting
Arrangements and the Indemnification Agreement.
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4. Independent Contractor Status.
Each of CD&R, the Company and APS agree that the furnishing of
▇▇▇▇'▇ services hereunder by CD&R is solely as an independent contractor, with
CD&R retaining control over and responsibility for its own operations and
personnel, including ▇▇▇▇. Neither CD&R nor any of its directors, officers,
employees or agents (including ▇▇▇▇) shall, solely by virtue of this Agreement
or the arrangements hereunder, be considered employees, principals, partners,
co-ventures or agents of the Company, APS or any of its subsidiaries.
5. Notices.
Any notices or other communication required or permitted to be
given or made under this Agreement by one party to the other parties shall be
in writing an shall be deemed to have been duly given and to be effective (i)
on the date of delivery if delivered personally or (ii) when sent if sent by
prepaid telegram, or mailed first-class, postage prepaid, by registered or
certified mail or confirmed facsimile transmission, as follows (or to such
other address as shall be given in writing by one party to the other parties
in accordance herewith):
(a) If to the Company or APS, to it at:
15710 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
ATTN: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy:
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(b) If to CD&R, to it at:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇ ▇. ▇▇▇▇, III
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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With a copy to:
Debevoise & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
6. General.
(a) Entire Agreement. This Agreement, together with the Consulting
Arrangements and the Indemnification Agreement, (a) contain the complete and
entire understanding and agreement of CD&R, the Company and APS with respect to
the subject matter hereof and (b) supersede all prior and contemporaneous
understandings, conditions and agreements, oral or written, express or implied,
in respect of the subject matter hereof, including but not limited to in
respect of the furnishing of the services of ▇▇▇▇ in connection with the
subject matter hereof. There are no representations or warranties of ▇▇▇▇ or
CD&R in connection with this Agreement or the services to be made available
hereunder, except as expressly made and contained in this Agreement.
(b) Headings. The headings contained in this Agreement are for
purposes of convenience only and shall not affect the meaning or interpretation
of this Agreement.
(c) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which shall
together constitute one and the same instrument.
(d) Binding Effect; Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties to this Agreement and their
respective successors and assigns; provided that none of CD&R, the Company or
APS may assign any of its rights or obligations under this Agreement without
the express written consent of the other parties hereto.
(e) Governing Law. THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER, AND IS TO BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK. EACH OF THE COMPANY, APS AND CD&R HEREBY IRREVOCABLY
SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE
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COURTS OF THE STATE OF NEW YORK AND THE FEDERAL COURTS OF THE UNITED STATES OF
AMERICA LOCATED IN ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ SOLELY IN RESPECT OF
THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF THIS AGREEMENT, AND THE
PARTIES HERETO HEREBY IRREVOCABLY AGREE THAT (i) THE SOLE AND EXCLUSIVE
APPROPRIATE VENUE FOR ANY ACTION, SUIT OR PROCEEDING RELATING TO SUCH
INTERPRETATION AND ENFORCEMENT SHALL BE IN SUCH A COURT, (ii) ALL CLAIMS WITH
RESPECT TO SUCH PROVISIONS SHALL BE HEARD AND DETERMINED EXCLUSIVELY IN SUCH A
COURT, (iii) ANY SUCH COURT SHALL HAVE EXCLUSIVE JURISDICTION OVER THE PERSON
OF SUCH PARTIES AND OVER THE SUBJECT MATTER OF ANY DISPUTE RELATING TO SUCH
PROVISIONS AND (iv) EACH HEREBY WAIVES, AND AGREES NOT TO ASSERT, ANY AND ALL
OBJECTIONS AND DEFENSES BASED ON FORUM, VENUE OR PERSONAL OR SUBJECT MATTER
JURISDICTION AS THEY MAY RELATE TO SUCH AN ACTION, SUIT OR PROCEEDING BEFORE
SUCH A COURT IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION 6(e), PROVIDED
THAT ENFORCEMENT OF A JUDGMENT RENDERED BY SUCH A COURT MAY BE SOUGHT IN ANY
COURT OF COMPETENT JURISDICTION FOR THE ENFORCEMENT THEREOF. EACH OF THE
COMPANY, APS AND CD&R HEREBY CONSENT TO AND GRANT ANY SUCH COURT JURISDICTION
OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER OF ANY SUCH DISPUTE
AND AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH ANY SUCH
ACTION OR PROCEEDING IN THE MANNER PROVIDED IN SECTION 5, OR IN SUCH OTHER
MANNER AS MAY BE PERMITTED BY LAW, SHALL BE VALID AND SUFFICIENT SERVICE
THEREOF.
(f) Waiver of Jury Trial. Each party hereto acknowledges and agrees
that any controversy that may arise under this Agreement is likely to involve
complicated and difficult issues, and therefore it hereby irrevocably and
unconditionally waives any right it may have to a trial by jury in respect of
any litigation directly or indirectly arising out of or relating to this
Agreement, or the breach, termination or validity of this Agreement, or the
transactions contemplated by this Agreement. Each party certifies and
acknowledges that (i) no representative, agent or attorney of any other party
has represented, expressly or otherwise, that such other party would not, in
the event of litigation, seek to enforce the foregoing waiver, (ii) it
understands and has considered the implications of this waiver, (iii) it makes
this waiver voluntarily and (iv) it has been induced to enter into this
Agreement by, among other things, the mutual waivers and certifications
contained in this Section 6(f).
(g) Amendment; Waivers. No amendment, modification, supplement or
discharge of this Agreement, and no
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waiver hereunder, shall be valid or binding unless set forth in writing and
duly executed by the party against whom enforcement of the amendment,
modification, supplement, discharge or waiver is sought (and in the case of the
Company or APS, approved by resolution of the Board of Directors of the Company
or APS, as the case may be). Any such waiver shall constitute a waiver only
with respect to the specific matter described in such writing and shall in no
way impair the rights of the party granting such waiver in any other respect or
at any other time. Neither the waiver by any party hereto of a breach of or a
default under any of the provisions of this Agreement, nor the failure by any
party, on one or more occasions, to enforce any of the provisions of this
Agreement or to exercise any right or privilege hereunder, shall be construed
as a waiver of any other breach or default of a similar nature, or as a waiver
of any of such provisions, rights or privileges hereunder. The rights and
remedies herein provided are cumulative and are not exclusive of any rights or
remedies that any party may otherwise have at law or in equity or otherwise.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
APS HOLDING CORPORATION
By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
A.P.S., INC.
By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇, DUBILIER & RICE, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title:
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