AMENDMENT NO. 3 TO NOTE PURCHASE AGREEMENT
AMENDMENT NO. 3 to NOTE PURCHASE AGREEMENT (this "Amendment No.
3"), dated as of September [sic October] , 1994, among AAI
---
CORPORATION, a Maryland corporation (the "Company"), and PRINCIPAL
MUTUAL LIFE INSURANCE COMPANY and THE TRAVELERS INSURANCE COMPANY
(collectively, the "Purchasers").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Company and the Purchasers have heretofore entered
into a Note Purchase Agreement dated as of July 15, 1992 (the "Note
Purchase Agreement");
WHEREAS, the Company and the Purchasers have heretofore entered
into Amendment No. 1 to the Note Purchase Agreement dated as of July
15, 1993 (the "Amendment No. 1");
WHEREAS, the Company and the Purchasers have heretofore entered
into an Amendment to the Note Purchase Agreement dated as of December
30, 1993 (the "Amendment No. 2");
WHEREAS, the Company has requested that the Purchasers agree to
amend certain of the provisions and covenants contained in the Note
Purchase Agreement, as amended; and
WHEREAS, the Purchasers are willing to amend such provisions and
covenants upon the terms and conditions herein provided.
NOW, THEREFORE, in consideration of the mutual promises and
consideration set forth herein, the sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
Section 1. Definitions; References. Unless otherwise
------------------------
specifically defined herein, each term used herein which is defined in
the Note Purchase Agreement, as amended, shall have the meaning
assigned to such term in the Note Purchase Agreement, as amended.
Each reference to "hereof," "hereunder," "herein" and "hereby" and
each other similar reference to "this Agreement" and each other
similar reference contained in the Note Purchase Agreement or
Amendment No. 1 or Amendment No. 2, and each reference in the Notes to
"the Note Purchase Agreement" or "Amendment No. 1" or " Amendment No.
2," "thereunder," "thereof" or words of like import referring to the
Note Purchase Agreement and Amendment No. 1 and Amendment No. 2, shall
from and after the
date hereof refer to the Note Purchase Agreement as amended by
Amendment No. 1, Amendment No. 2 and this Amendment No. 3.
Section 1.1. Definitions. The following definitions are
------------
hereby amended, modified or added to the definitions set forth in the
Note Purchase Agreement, as amended:
"Accounts Credit Percentage": eighty percent
(80%) in the case of Eligible Accounts which did
not arise from progress billings, and fifty
percent (50%) in the case of Eligible Accounts
which arose from progress billings, or in either
case, such lesser percentage or percentages as
shall from time to time be established by the
Required Lenders, in the discretion of the
Required Lenders exercised in good faith, and
communicated to the Borrower in writing by the
Agent, with respect to Eligible Accounts, specific
Eligible Accounts or categories, types or
components of Eligible Accounts. Such less
percentage or percentages may be based upon
evaluations of risk by the Lenders or any other
factors deemed relevant by the Lenders, whether or
not such factors have theretofore been used,
contemplated or foreseen as a basis for adjusting
the Accounts Credit Percentage.
"Agent": as of the date of the Credit Agreement,
First Fidelity Bank, National Association in its
capacity as party to the Credit Agreement as
"Agent," and, after the date of the Credit
Agreement, the person from time to time, party to
the Credit Agreement as "Agent."
"Aggregate Borrowing Base Charge": at a
particular time, the sum of (a) the Aggregate
Loans Outstanding of all Lenders as at such time
and (b) L/C Exposure as at such time.
"Aggregate Loans Outstanding": as to any Lender
at a particular time, the aggregate principal
amount of the Revolving Credit Loans of such
Lender outstanding as at such time.
NYFS11...:\95\78495\0001\7120\EXH02894.E00
"Borrower": shall mean AAI Corporation, a
Maryland corporation.
"Borrower Pledge Agreement": shall mean, as the
same may be waived, amended, modified, extended,
renewed, supplemented or replaced from time to
time, that certain Pledge and Security Agreement
of even date herewith executed and delivered by
Borrower in favor of Collateral Agent.
"Borrower Security Agreement": shall mean, as the
same may be waived, amended, modified, extended,
renewed, supplemented or replaced from time to
time, that certain Security Agreement of even date
herewith executed and delivered by Borrower in
favor of Collateral Agent.
"Borrowing Base": at a particular time, the
product of (a) Eligible Accounts as at such time,
and (b) the Accounts Credit Percentage.
"Borrowing Base Certificate": a report or
schedule, certified by Borrower's Chief Financial
Officer, in form and content satisfactory to the
Required Lenders containing such information as
the Required Lenders may require from time to time
concerning the Borrowing Base, collections or
other proceeds of accounts of the Borrower or its
Subsidiaries and/or any other matter or matters as
the Required Lenders may require from time to
time, including with respect to accounts or
contracts of the Borrower or its Subsidiaries and
information concerning the cost to complete
contracts of the Borrower or its Subsidiaries.
"Collateral Agent": shall mean as of the date of
this Amendment No. 3, First Fidelity Bank,
National Association in its capacity as party to
the Intercreditor Agreement as "Collateral Agent,"
and, after the date of this Amendment No. 3, the
person from time to time, party to the
Intercreditor Agreement as "Collateral Agent."
"Collateral Agent Liens" shall mean, as the same
may be amended, waived, modified, extended,
renewed, supplemented or replaced from time to
time, all security interests, liens, assignments
and other encumbrances in or upon any property
(real, personal or mixed) granted in favor of
Collateral Agent pursuant to the Security
Documents.
"Credit Agreement": shall mean, as the same may
be amended, waived, modified, extended, renewed,
supplemented or replaced from time to time, that
certain Credit Agreement of even date herewith
among Agent, Borrower, Lenders and Issuing Bank.
"Collateral": shall mean the property, rights and
interests with are subject to the Collateral Agent
Liens.
"Eligible Accounts": shall mean at a particular
time, the aggregate amount, as at such time, of
accounts of the Borrower and Eligible Affiliates
which have been billed to the account debtors
thereon, which are payable in conformity with such
billings and which are, but only in the amounts
such accounts are, acceptable to the Agent as at
such time, in the discretion of the Agent
exercised in good faith, as a basis for extensions
of credit to the Borrower under this Agreement.
Except as otherwise agreed by the Agent from time
to time, Eligible Accounts shall not include: (a)
any account which has remained unpaid for ninety
(90) days or more after the billing thereof; (b)
any account due from any Person other than the
United States of America if fifty percent (50%) or
more of all of the accounts due to the Borrower
and Eligible Affiliates from such Person has
remained unpaid for ninety (90) days or more after
the billing thereof; (c) any account which arose
out of any contract with the United States of
America if fifty percent (50%) or more of the
total amount due under such contract has remained
unpaid for ninety (90) days or more after the
billing thereof; (d) any account which is not
lawfully owned by the Borrower or an Eligible Affiliate,
which has been assigned to the Borrower or an Eligible
Affiliate, which is subject to any Lien except for permitted
liens under the Credit Agreement, or in which the Borrower
or the Eligible Affiliate, as the case may be, does not have
the right and power to grant a security interest to the
Collateral Agent in conformity with the Borrower Security
Agreement, the Guarantor Security Agreement or the
applicable Subsidiary Security Agreement, as the case may
be, including any account the assignment of which is
prohibited, limited or conditioned under any underlying or
related contract; (e) any account with respect to which any
transaction giving rise to or relating to the account was
unlawful or not solicited and entered into in compliance
with Requirements of Law; (f) any account which is not valid
or enforceable or does not represent bona fide, undisputed
indebtedness to the Borrower or an Eligible Affiliate of
each obligor thereon; (g) any account in which the
Collateral Agent does not have a perfected first priority
security interest; (h) any account evidenced in whole or in
part by any instrument or chattel paper unless such
instrument or chattel paper has been delivered to the
Collateral Agent, together with such endorsements or
assignments as the Collateral Agent may reasonably require;
(i) any account to the extent that the account is subject to
any defense, set-off, counterclaim, credit, discount,
allowance, adjustment, deduction or reduction of any kind;
(j) any account to the extent that such account includes any
finance or similar charges on account of past due amounts;
(k) any account with respect to which any obligor thereon is
a Person of whom the Borrower or the Eligible Affiliate, as
the case may be, is or becomes any account debtor or obligor
by virtue of any obligation of the Borrower or such Eligible
Affiliate to such Person not relating to accounts due or to
become due from such Person to the Borrower or such Eligible
Affiliate; (l) any account to the
extent that any goods, the sale or lease of which gave rise
to the account, have been returned, rejected, lost or
damaged prior to acceptance of such goods by the purchaser
or lessee thereof; (m) any account which arose from the sale
of goods, if such sale was not an absolute sale or was a
sale on consignment, on approval or on a sale-or-return
basis, or if such sale is subject to any repurchase or
return agreement, or if such sale is subject to any other
term by reason of which the obligation of any obligor
thereon is contingent or conditional; (n) any account which
did not arise in the ordinary course of business of Borrower
or the Eligible Affiliate, as the case may be; (o) any
account which arose out of a contract with the United States
of America or any state, county, municipality or other
Governmental Authority, or any department or agency thereof,
to the extent that sums due or to become due in connection
therewith have not been duly assigned to the Agent in
accordance with the Federal Assignment of Claims Act and/or
any other applicable federal, state and local laws, rules
and regulations, relating to the assignment or payment of
such contract and sums; (p) any account with respect to
which any obligor thereon is insolvent (as defined in
Section 101 (32) of the United States Bankruptcy Code), is
unable to pay its debts as they mature, or is the subject of
any pending, imminent or threatened bankruptcy,
reorganization, insolvency, readjustment of debt,
trusteeship, receivership, dissolution or liquidation law,
statute or proceeding; (q) any account which arose out of a
contract which is subject to any bonding or other similar
arrangement as security for any obligations of the Borrower,
any of its Subsidiaries or any Guarantor in connection
with which any Lien has been granted, incurred or assumed
upon any property, assets or revenues, whether now owned or
hereafter acquired, of any of Borrower, any of its
Subsidiaries or any Guarantor; (r) any account with respect
to which any obligor
thereon is an Affiliate of the Borrower or any Other
Obligor; (s) any account with respect to which the principal
place of business of any obligor thereon is not located in
the United States of America, except to the extent that such
account is (i) secured by a letter of credit or bond
satisfactory to the Collateral Agent issued or confirmed by
a bank or provided by a surety which is satisfactory to the
Collateral Agent and which is organized under the laws of
the United sates or any state thereof or (ii) guaranteed by
the United States of America or any agency thereof on terms
and conditions satisfactory to the Collateral Agent; (t) any
account which arose out of a contract with the United States
of America or any other Governmental Authority to the extent
that (i) funds for the payment of such account have not been
appropriated by the United States of America or such other
Governmental Authority or (ii) the Collateral Agent is not
satisfied, in its discretion exercised in good faith, that
such account and contract is enforceable against the full
faith and credit of the United States of America or such
other Governmental Authority and that funds for the payment
of such account are available. Notwithstanding the
provisions of clause (s) of this definition, accounts of the
Borrower due from Marubun Corporation, a Japanese
corporation ("Marubun"), which otherwise qualify as Eligible
Accounts may constitute Eligible Accounts even though they
would otherwise be excluded by such clause (s), provided
that, except as otherwise agreed by the Agent from time to
time: (i) notwithstanding the provisions of clause (a) of
this definition, no account of the Borrower due from Marubun
shall constitute an Eligible Account if such account has
remained unpaid for thirty (30) days or more after the
billing thereof; (ii) notwithstanding the provisions of
clause (b) of this definition, no account of the Borrower
due from Marubun shall constitute an Eligible Account if
fifty percent (50%) or more of all of the accounts due the
Borrower
and Eligible Affiliates from such Person has remained unpaid
for thirty (30) days or more after the billing thereof; and
(iii) the product of (x) the Accounts Credit Percentage and
(y) the aggregate amount of accounts of the Borrower due
from Marubun constituting Eligible Accounts, shall not at
any time exceed Two Hundred Fifty Thousand Dollars
($250,000.00). The Agent may determine from time to time in
its discretion exercised in good faith and notwithstanding
any previous contrary determinations made by the Collateral
Agent, to exclude from or include in Eligible Accounts
specific accounts (including accounts due from Marubun),
categories or types of accounts (including accounts due from
Marubun), or specific components of accounts (including
accounts due from Marubun). Such determinations may be
based upon evaluations of risk by the Collateral Agent or
any other factors deemed relevant by the Collateral Agent,
whether or not such factors have theretofore been used,
contemplated or foreseen as a basis for limiting Eligible
Accounts. Any such determinations by the Collateral Agent
will be promptly communicated in writing to the Borrower.
"Eligible Affiliate": shall mean at a particular
time (a) each Eligible Borrower Subsidiary as at
such time and (b) Symtron, provided that the
Lender Guaranty is subsisting as at such time with
respect to Symtron, the Guarantor Security
Agreement is subsisting as at such time with
respect to Symtron and that the security interests
granted by Symtron pursuant to the Guarantor
Security Agreement are duly perfected as at such
time and subject only to permitted liens under the
Credit Agreement.
"Eligible Borrower Subsidiary": shall mean at a
particular time, a Subsidiary of the Borrower
which has executed and delivered to the Collateral
Agent a Subsidiary Guaranty subsisting as at such
time, a Subsidiary
Security Agreement subsisting as at such time, such
financing statements as may be required by the Agent and
such other documents and instruments as may be required
pursuant under the Credit Agreement or any Security
Documents, provided that the security interests granted by
such Subsidiary pursuant to such Subsidiary Security
Agreement are duly perfected as at such time and subject
only to permitted liens under the Credit Agreement.
"First Fidelity": shall mean First Fidelity Bank,
National Association.
"Governmental Authority": shall mean any nation
or government, any state or other political
subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or
administrative functions of or pertaining to
government, and any Person owned or controlled
directly or indirectly by any of the foregoing,
whether domestic or foreign.
"Guarantor Security Agreement": shall mean as
waived, amended, modified, extended, renewed,
supplemented or replaced from time to time, the
Security Agreement to be executed and delivered by
the Lender Guarantors (other than UIC) in favor of
the Collateral Agent, for the ratable benefit of
the Lenders, the Issuing Bank and the Noteholders,
pursuant to which each of the Lender Guarantors
(other than UIC) shall, among other things, grant
to the Collateral Agent a security interest in all
of its present and future accounts, chattel paper,
instruments, documents of title, general
intangibles, equipment, inventory and other
assets.
"Indemnified Letters of Credit": the collective
reference to letters of credit issued by Signet
Bank/Maryland for the account of the Borrower and
subject to the Issuing Bank L/C Indemnification
Agreement.
"Intercreditor Agreement": shall mean, as the
same may be amended, waived, modified, extended,
renewed, supplemented or replaced from time to
time, that certain Intercreditor Agreement of even
date herewith by and among The Travelers Insurance
Company, a Connecticut corporation, Principal
Mutual Life Insurance Company, an Iowa
corporation, First Fidelity Bank, National
Association in its capacity as Lender, in its
capacity as Agent, in its capacity as Issuing
Bank, and in its capacity (in such capacity,
"Collateral Agent") as grantee and beneficiary of
the Collateral Agent Liens, and the Bank of
Baltimore in its capacity as Lender.
"Issuing Bank": shall mean, as of the date of the
Credit Agreement, First Fidelity Bank, National
Association, in its capacity as party to the
Credit Agreement as "Issuing Bank," and, after the
date of the Credit Agreement, the person from time
to time party to the Credit Agreement as "Issuing
Bank."
"Issuing Bank L/C Indemnification Agreement": as
amended, modified, extended, renewed, supplemented
or replaced from time to time, a letter agreement
to be executed and delivered between the Issuing
Bank and Signet Bank/Maryland, satisfactory in
form and content to the Issuing Bank, pursuant to
which the Issuing Bank shall indemnify Signet
Bank/Maryland in connection with certain letters
of credit issued by Signet Bank/Maryland for the
account of the Borrower.
"L/C Aggregate Undrawn Amount": at a particular
date, the aggregate undrawn amount, as at such
date, of all Letters of Credit and all Indemnified
Letters of Credit issued and outstanding.
"L/C Agreements": shall mean, as amended,
modified, extended, renewed, supplemented or
replaced from time to time, applications and
reimbursement and other agreements in form
and content and executed by Persons satisfactory to the
Issuing Bank requesting issuance of one or more Letters of
Credit and setting forth reimbursement obligations and other
terms and conditions relating thereto.
"L/C Exposure": at a particular time, the sum of
(a) the L/C Aggregate Undrawn Amount as at such
time and (b) L/C Reimbursement Obligations as at
such time.
"L/C Reimbursement Obligations": at a particular
time, the aggregate amount of all drawings made
under Letters of Credit and Indemnified Letters of
Credit which, as at such time, have not been
reimbursed by the Borrower to the Issuing Bank or
Signet Bank/Maryland, as the case may be.
"Lenders": shall mean, as of the date of the
Credit Agreement, First Fidelity Bank, National
Association, and Bank of Baltimore, each in its
capacity as party to the Credit Agreement as a
"Lender," and, after the date of this Agreement,
all persons from time to time parties to the
Credit Agreement, as "Lenders."
"Lender Guarantors": shall mean, collectively,
the Guarantor, UIC-Del. Corporation, a Delaware
corporation, and the Restricted Subsidiaries.
"Lender Guaranty": shall mean, as the same may be
amended, waived, modified, extended, renewed,
supplemented or replaced from time to time, that
certain Guaranty of even date herewith executed
and delivered by Lender Guarantors in favor of
Agent, Lenders and Issuing Bank.
"Letter of Credit": shall mean, commercial and
standby letters of credit issued for the account
of the Borrower, for such purposes, in such
amounts, for the benefit of such Persons and
subject to such terms and conditions as may be
acceptable to the Issuing Bank and the Required
Lenders in
their discretion exercised in good faith (individually, as
amended, modified, extended, renewed, supplemented or
replaced from time to time, a "Letter of Credit," and
collectively, the "Letters of Credit").
"Lien": shall mean any mortgage, pledge,
hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other) or
preference, priority or other security agreement
or preferential arrangement of any kind or nature
whatsoever (including, without limitation, any
conditional sale or other title retention
agreement, any financing lease of any property
(real, personal or mixed) as in conformity with
generally accepted accounting principles would be
required to be capitalized on a balance sheet of
such Person having substantially the same economic
effect as any of the foregoing, and the filing of
any financing statement under the Uniform
Commercial Code or comparable law or any
jurisdiction in respect of any of the foregoing).
"Other Obligor": shall mean each of the Lender
Guarantors and each other Person other than the
Borrower that is now or hereafter primarily or
secondarily, or contingently or noncontingently,
liable for or obligated upon or in connection with
any obligations of Borrower to Agent, any Lender
or Issuing Bank, whether or not so liable, that
has granted any lien or security interest to the
Collateral Agent as security for any of such
obligations or any obligations of any other Person
in connection with any of such obligations.
"Person": an individual, partnership,
corporation, limited liability company, business
trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority
or other entity of whatever nature.
"Required Lenders": at a particular time, a
Lender or Lenders holding more than sixty percent
(60%) of the Aggregate Loans Outstanding of all
Lenders under the Credit Agreement as at such time
or, if no Lender has any Revolving Credit Loans
outstanding under the Credit Agreement from time
to time, a Lender or Lenders whose commitment
percentages as identified in the Credit Agreement
aggregate more than sixty percent (60%) as at such
time.
"Requirements of Law": shall mean as to any
Person, the certificate of incorporation and by-
laws or other organizational or governing
documents of such Person, and any law, treaty,
rule or regulation or determination of an
arbitrator or a court or other Governmental
Authority, in each case applicable to or binding
upon such Person or any of its property or to
which such Person or any of its property is
subject.
"Restricted Subsidiaries": mean (i) AAI
Engineering Support, Inc., a Maryland corporation,
AAI Microflite Simulation International
Corporation, a Maryland Corporation, AAI/ACL
Technologies, Inc., a Maryland corporation, Seti,
Inc., a Pennsylvania corporation, AAI Systems
Management, Inc., a Maryland corporation and AAI
California Carshell, Inc., a Maryland corporation;
(ii) any other Subsidiary with respect to which
the Company has notified the Noteholders that it
has been designated as such by the Board of
Directors of the Company or by an Executive
Officer of the Company who has been authorized by
such Board of Directors to make such designation;
and (iii) Symtron Systems, Inc., a New Jersey
corporation, a wholly owned subsidiary of UIC.
"Revolving Credit Loans": at a particular time
and from time to time the revolving credit loans
made by the Lender or Lenders to the Borrower
under Section 2.1 of the Credit Agreement.
"Revolving Credit Notes": shall mean the
promissory notes of the Borrower evidencing the
revolving credit loan or loans made under the
Credit Agreement, from time to time, appropriately
completed, as amended, modified, extended,
renewed, supplemented or replaced from time to
time, payable to the order of such Lender and
further evidencing the obligation of the Borrower
to pay with interest the aggregate loans
outstanding under the Credit Agreement to such
Lender from time to time.
"Security Documents": shall mean, as the same may
be amended, waived, modified, extended, renewed,
supplemented or replaced from time to time, that
certain Pledge and Security Agreement of even date
herewith executed and delivered by the Borrower in
favor of Collateral Agent, that certain Security
Agreement of even date herewith executed and
delivered by the Borrower in favor of the
Collateral Agent, that certain Security Agreement
of even date herewith executed and delivered by
the Restricted Subsidiaries, et al in favor of
Collateral Agent, that certain Deed of Trust and
Security Agreement of even date herewith executed
and delivered by the Borrower in favor of certain
trustees for the benefit of Collateral Agent, that
certain Assignment of Leases and Rents of even
date herewith executed and delivered by the
Borrower in favor of the Collateral Agent, that
certain Pledge and Security Agreement of even date
herewith executed and delivered by Guarantor in
favor of Collateral Agent, that certain Collateral
Assignment of Trademarks Agreement of even date
herewith executed and delivered by the Borrower in
favor of the Collateral Agent, that certain
Collateral Assignment of Patents of even date
herewith executed and delivered by the Borrower in
favor of the Collateral Agent, that certain
Collateral Assignment of Trademarks of even date
herewith executed and delivered by Symtron
Systems, Inc. in favor of the Collateral Agent,
that certain Collateral Assignment of
Patents of even date herewith executed and delivered by
Symtron Systems, Inc. in favor of Collateral Agent, that
certain Collateral Assignment of Trademarks of even date
herewith executed and delivered by AAI/ACL Technologies,
Inc. in favor of the Collateral Agent, that certain
Collateral Assignment of Copyrights of even date herewith
executed and delivered by AAI/ACL Technologies, Inc. in
favor of the Collateral Agent, and that certain Collateral
Assignment of Patents of even date herewith executed and
delivered by AAI/ACL Technologies, Inc. in favor of
Collateral Agent.
"Subsidiary": of a Person means (i) any
corporation or other entity of which securities or
other ownership interests having ordinary voting
power to elect a majority of the board of
directors or other persons performing similar
functions are at the time, directly or indirectly,
owned by such Person, or (ii) the management of
which is otherwise controlled, directly or
indirectly, through one or more intermediaries, by
such Person.
"Subsidiary Guaranty": shall mean as waived,
amended, modified, extended, renewed, supplemented
or replaced from time to time a guaranty in form
substantially similar to the Lender Guaranty, but
in form and content satisfactory to the Required
Lenders, pursuant to which a Subsidiary of the
Borrower shall, among other things guarantee
payment of the obligations of the Borrower to the
Agent, the Lenders and the Issuing Bank.
"Subsidiary Security Agreement": shall mean as
waived, amended, modified, extended, renewed,
supplemented or replaced from time to time, a
security agreement in form substantially similar
to the Guarantor Security Agreement, but in form
and content satisfactory to Required Lenders,
executed and delivered between the Agent and a
Subsidiary of Borrower pursuant to which such
Subsidiary shall, among other things, grant
to the Collateral Agent, for the ratable benefit of the
Lenders, the Issuing Bank and the Noteholders, a security
interest in all accounts, chattel paper documents of title,
general intangibles, instruments, equipment, inventory and
other assets of such Subsidiary.
"Symtron": shall mean Symtron Systems, Inc., a
New Jersey corporation."
Section 2. Amendment of Section 6.8. Restriction on Liens.
-----------------------------------------------
Subsections (vi), (vii) and (viii) be and hereby are added to Section
6.8 of the Note Purchase Agreement, as amended, as follows:
"(vi) Liens in favor of the Collateral Agent
created pursuant to the Security Documents
securing the obligations under the Credit
Agreement and the Revolving Credit Notes and under
this Agreement and the Notes.
(vii) Liens in favor of or for the benefit of
the Issuing Bank in or upon cash, cash equivalents
or other liquid assets pledged to the Issuing Bank
in connection with, or in or upon bills of lading
or other shipping or transportation documents,
warehouse receipts or similar rights arising in
connection with, the L/C Agreements or the
issuance and payment of drawings under Letters of
Credit.
(viii) Liens in favor of or for the benefit of
the Agent or any Lender in or upon cash, cash
equivalents, marketable securities or other liquid
assets and other rights relating to or in
connection with overnight investments or other
investments made or managed by the Agent or any
Lender for or on behalf of the Borrower, any of
its Subsidiaries or Symtron."
Section 3. Amendment of Section 6.11. Guaranties. Section
--------------------------------------
6.11 of the Note Purchase Agreement is amended to read in its entirety
as follows:
"Section 6.11. Guaranties. The Company will
----------
not, and will not permit any Restricted Subsidiary to, at
any time, make, suffer to exist or become liable with
respect to guarantees of obligations of any Person or
Persons in excess of an aggregate of $5,000,000.00, except
that the Restricted Subsidiaries shall be permitted to
guarantee the obligations of the Company under the Credit
Agreement, the Revolving Credit Notes and the Lender
Guaranty to the Lenders and to pledge their respective
Collateral as security for such obligations by executing and
delivering the Security Documents."
Section 4. Borrowing Base Certificate. The following new
--------------------------
subparagraph (c) be and hereby is added to Section 5.1, as follows:
"(c) The Company agrees to promptly deliver to
each of the Noteholders a copy of any Borrowing
Base Certificate that it shall hereafter deliver
to the Required Lenders in the Company's capacity
as Borrower under the Credit Agreement that states
that (a) the Aggregate Borrowing Base Charge
exceeds (b) the Borrowing Base, provided, however,
that the Company shall have no monetary liability,
whether direct, incidental, consequential or
otherwise, to any Noteholder or any other Person
on account of any failure of the Company to so
give such written notification to any Noteholder."
Section 5. No Other Amendment. Except as specifically set
------------------
forth herein, the Note Purchase Agreement shall remain in full force
and effect in accordance with its terms.
Section 6. Governing Law. This Amendment No. 3 shall be
-------------
governed by and construed in accordance with the laws of the State of
New York.
Section 7. Counterparts. This Amendment No. 3 may be
------------
executed in any number of counterparts and by different parties hereto
in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 3 to Note Purchase Agreement to be executed by their respective
officers thereunto duly authorized as of the date first above written.
AAI CORPORATION
By:
-----------------------------------
Name: Paul J. Michaud
---------------------------------
Title: Vice President, Chief Financial
--------------------------------
Officer and Treasurer
--------------------------------
PRINCIPAL MUTUAL LIFE INSURANCE COMPANY
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
THE TRAVELERS INSURANCE COMPANY
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------