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EXHIBIT 10.38
SEVENTH MODIFICATION AGREEMENT
BY THIS SEVENTH MODIFICATION AGREEMENT (the "Agreement"), made and
entered into as of the 1st day of November, 1999, BANK ONE, ARIZONA, NA, a
national banking association, as administrative agent for the Banks (as
hereinafter defined) (the "Administrative Agent"), and SIMULA, INC., an Arizona
corporation (the "Company"), all present and future Subsidiaries of the Company
(with the Company, the "Borrower"), in consideration of the mutual covenants
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, hereby confirm and agree as
follows:
RECITALS:
A. Borrower, the Administrative Agent, the Issuing Bank and the "Banks"
named therein entered into that Senior Credit Agreement dated November 6, 1998
to provide financial accommodations to the Borrower as provided therein (as
modified from time to time, including without limitation by that Modification
Agreement dated as of February 12, 1999, that Second Modification Agreement
dated as of April 28, 1999, that Third Modification Agreement dated as of June
23, 1999, that Fourth Modification Agreement dated July 29, 1999, that Fifth
Modification Agreement dated September 29, 1999 and that Sixth Modification
Agreement dated October 19, 1999, the "Senior Credit Agreement").
B. Borrower and the Administrative Agent, with the consent of the Banks
and the Issuing Bank, desire to modify the Senior Credit Agreement as set forth
herein.
C. All undefined capitalized terms used herein shall have the meaning
given them in the Senior Credit Agreement.
AGREEMENT:
SECTION 1. ACCURACY OF RECITALS.
Borrower acknowledges the accuracy of the Recitals.
SECTION 2. MODIFICATIONS OF LOAN DOCUMENTS; OTHER AGREEMENTS.
2.1 The following definitions in Section 1.1 of the Senior Credit
Agreement are hereby amended to read as follows:
"CCAC" means Coach and Car Equipment Corp., fka Coach and Car
Acquisition Corp., a Nevada corporation.
"CCAC Note": See Section 4.1(d).
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"CCAC Security Agreement": See Section 4.1(d).
"Coach" means CCEC Capital Corp., fka Coach and Car Equipment
Corporation, an Arizona corporation.
"Sale Security Agreement": See Section 4.1(d).
2.2 Section 1.1 of the Senior Credit Agreement is hereby amended by the
deletion of the following definitions:
CCAC Pledge Agreement.
2.3 Section 4.1(d) of the Senior Credit Agreement is hereby amended to
read as follows:
(e) So long as any Loan is outstanding, Borrower shall cause
such Loan and Borrower's obligations under this Senior Credit Agreement
to be secured at all times by a valid and effective security agreement
(the "Sale Security Agreement"), granting the Administrative Agent for
the benefit of the Banks and the Issuing Bank a valid and enforceable
security interest in Coach's right, title and interest in (i) those two
promissory notes (together, the "CCAC Note") in the original principal
amounts of $1,996,000 and $8,118,008, respectively, dated as of October
21, 1999 delivered by CCAC to Coach to refinance its payment for the
purchase by CCAC of the Discontinued Operations, (ii) that security
agreement delivered by CCAC to Coach dated October 21, 1999, granting
Coach a security interest in the assets of Coach purchased by CCAC,
(iii) that pledge and proxy security agreement delivered by CAC Pledgor
to Coach, pledging to Coach all stock owned by CAC Pledgor in CCAC and
Beacon Industries Inc., a Nevada corporation, and (iv) such other
documents delivered to Coach to secure and/or guarantee CCAC's
obligations to Coach under the CCAC Note ((ii), (iii) and (iv)
collectively, the "CCAC Security Agreement").
2.4 Section 4.1(e) of the Senior Credit Agreement is hereby deleted.
2.5 Each of the Loan Documents is modified to provide that it shall be
a default or an event of default thereunder if Borrower shall fail to comply
with any of the covenants of Borrower herein or if any representation or
warranty by Borrower herein or by any guarantor in any related Consent and
Agreement of Guarantors is materially incomplete, incorrect, or misleading as of
the date hereof.
2.6 Each reference in the Credit Documents to any of the Credit
Documents is hereby amended to be a reference to such document as modified
herein.
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SECTION 3. RATIFICATION OF CREDIT DOCUMENTS AND COLLATERAL.
The Credit Documents are ratified and affirmed by Borrower and shall
remain in full force and effect as modified herein. Any property or rights to or
interests in property granted as security in the Credit Documents shall remain
as security for the Loans and the obligations of Borrower in the Credit
Documents.
SECTION 4. BORROWER REPRESENTATIONS AND WARRANTIES.
Company and each Co-Borrower to the extent applicable represents and
warrants to the Banks:
4.1 No default or event of default under any of the Credit Documents as
modified herein, nor any event, that, with the giving of notice or the passage
of time or both, would be a default or an event of default under the Credit
Documents as modified herein has occurred and is continuing.
4.2 There has been no material adverse change in the financial
condition of Borrower or any other person whose financial statement has been
delivered to the Banks in connection with the Loans from the most recent
financial statement received by the Banks.
4.3 Each and all representations and warranties of Borrower in the
Credit Documents are accurate on the date hereof.
4.4 Borrower has no claims, counterclaims, defenses, or set-offs with
respect to the Loans or the Credit Documents as modified herein.
4.5 The Credit Documents as modified herein are the legal, valid, and
binding obligation of Borrower, enforceable against Borrower in accordance with
their terms.
4.6 Borrower is validly existing under the laws of the State of its
formation or organization and has the requisite power and authority to execute
and deliver this Agreement and to perform the Credit Documents as modified
herein. The execution and delivery of this Agreement and the performance of the
Credit Documents as modified herein have been duly authorized by all requisite
action by or on behalf of Borrower. This Agreement has been duly executed and
delivered on behalf of Borrower.
SECTION 5. BORROWER COVENANTS.
Borrower covenants with the Banks:
5.1 Borrower shall execute, deliver, and provide to the Administrative
Agent such additional agreements, documents, and instruments as reasonably
required by the Banks to effectuate the intent of this Agreement.
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5.2 Borrower fully, finally, and absolutely and forever releases and
discharges the Administrative Agent and the Banks and their present and former
directors, shareholders, officers, employees, agents, representatives,
successors and assigns, and their separate and respective heirs, personal
representatives, successors and assigns, from any and all actions, causes of
action, claims, debts, damages, demands, liabilities, obligations, and suits, of
whatever kind or nature, in law or equity of Borrower, whether now known or
unknown to Borrower, and whether contingent or matured, (i) in respect of the
Loans, the Credit Documents, or the actions or omissions of the Administrative
Agent or the Banks in respect of the Loans or the Credit Documents and (ii)
arising from events occurring prior to the date of this Agreement.
SECTION 6. CONDITIONS PRECEDENT.
The agreements of the Banks and the Administrative Agent and the
modifications contained herein shall not be binding upon the Banks until the
Banks have executed and delivered this Agreement and the Administrative Agent
has received, at Borrower's expense, all of the following, all of which shall be
in form and content satisfactory to the Administrative Agent and shall be
subject to approval by the Administrative Agent:
6.1 An original of this Agreement fully executed by the Borrower and
all Guarantors;
6.2 An original of the Sale Security Agreement fully executed by Coach,
together with the two original CCAC Notes fully endorsed to the Administrative
Agent, a copy of the CCAC Security Agreement, and an assignment by Coach to the
Administrative Agent of the UCC-1 Financing Statement delivered by CCAC to
Coach.
6.3 Originals of fully executed Assignments Separate from Certificate
together with the original stock certificates as to CCAC and Beacon Industries
Inc.
6.4 Such resolutions or authorizations and such other documents as the
Administrative Agent may require relating to the existence and good standing of
each Borrower and Guarantor the authority of any person executing this Agreement
or other documents on behalf of each Borrower and Guarantor; and
6.5 Payment of all the internal and external costs and expenses
incurred by the Administrative Agent and the Banks in connection with this
Agreement (including, without limitation, inside and outside attorneys,
appraisal, appraisal review, processing, title, filing, and recording costs,
expenses, and fees).
SECTION 7. INTEGRATION, ENTIRE AGREEMENT, CHANGE, DISCHARGE, TERMINATION, OR
WAIVER.
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The Credit Documents as modified herein contain the complete
understanding and agreement of Borrower and the Banks in respect of the Loans
and supersede all prior representations, warranties, agreements, arrangements,
understandings, and negotiations. No provision of the Credit Documents as
modified herein may be changed, discharged, supplemented, terminated, or waived
except in a writing signed by the parties thereto.
SECTION 8. BINDING EFFECT.
The Credit Documents as modified herein shall be binding upon and shall
inure to the benefit of Borrower and the Banks and their successors and assigns
and the executors, legal administrators, personal representatives, heirs,
devisees, and beneficiaries of Borrower; provided, however, Borrower may not
assign any of its right or delegate any of its obligation under the Credit
Documents and any purported assignment or delegation shall be void.
SECTION 9. CHOICE OF LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Arizona, without giving effect to conflicts of law
principles.
SECTION 10. COUNTERPART EXECUTION.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which together shall constitute one
and the same document. Signature pages may be detached from the counterparts and
attached to a single copy of this Agreement to physically form one document.
DATED as of the date first above stated.
SIMULA, INC., an Arizona corporation
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Its: Treasurer
COMPANY
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SIMULA SAFETY SYSTEMS, INC., formerly
known as Simula Government Products, Inc., an
Arizona corporation
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxxx
Its: Assistant Treasurer
SIMULA AUTOMOTIVE SAFETY DEVICES,
INC., an Arizona corporation, a/k/a ASD-Simula
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Its: Treasurer
SIMULA TRANSPORTATION EQUIPMENT
CORPORATION, an Arizona corporation
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Its: Assistant Treasurer
AIRLINE INTERIORS, INC., an Arizona
corporation
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Its: Assistant Treasurer
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ARTCRAFT INDUSTRIES CORP., an Arizona
corporation
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Its: Assistant Treasurer
COACH AND CAR EQUIPMENT
CORPORATION, an Arizona corporation
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Its: Assistant Treasurer
VIATECH, INC., a Delaware corporation
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Its: Assistant Treasurer
SIMULA TECHNOLOGIES, INC., an Arizona
corporation
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxxx
Its: Treasurer
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SIMULA AUTOMOTIVE SAFETY DEVICES
LIMITED, a company organized under the laws of
the United Kingdom
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxxx
Its: Assistant Treasurer
INTERNATIONAL CENTER FOR SAFETY
EDUCATION, INC., an Arizona corporation
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Its: Treasurer
INTAERO, LTD., an Arizona corporation
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Its: Assistant Treasurer
CO-BORROWERS
BANK ONE, ARIZONA, NA, a national banking
association
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Vice President
ADMINISTRATIVE AGENT
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CONSENT AND AGREEMENT OF GUARANTORS
With respect to the Seventh Modification Agreement, dated November 1,
1999 ("Agreement"), between SIMULA, INC., an Arizona corporation (the
"Company"), all present and future Subsidiaries of the Company (with the
Company, the "Borrower") and BANK ONE, ARIZONA, NA, a national banking
association as administrative agent for the Banks (as defined in the Agreement)
("Administrative Agent"), the undersigned (individually and, if more than one,
collectively "Guarantor") agrees for the benefit of the Banks as follows:
1. Guarantor acknowledges (i) receiving a copy of and reading the Agreement,
(ii) the accuracy of the Recitals in the Agreement, and (iii) the effectiveness
of (A) the Continuing Guarantees as modified herein, and (B) any other
agreements, documents, or instruments securing or otherwise relating to the
Continuing Guarantees, (including, without limitation, any arbitration
resolution and any environmental certification and indemnity agreement
previously executed and delivered by the undersigned), as modified herein. The
Continuing Guarantees and such other agreements, documents, and instruments, as
modified herein, are referred to individually and collectively as the "Guarantor
Documents."
2. Guarantor consents to the modification of the Credit Documents and all other
matters in the Agreement.
3. Guarantor fully, finally, and forever releases and discharges the Banks and
the Administrative Agent and their successors, assigns, directors, officers,
employees, agents, and representatives from any and all actions, causes of
action, claims, debts, demands, liabilities, obligations, and suits of whatever
kind or nature, in law or equity, that Guarantor has or in the future may have,
whether known or unknown, (i) in respect of the Loans, the Credit Documents, the
Guarantor Documents, or the actions or omissions of the Banks and the
Administrative Agent in respect of the Loans, the Credit Documents, or the
Guarantor Documents and (ii) arising from events occurring prior to the date
hereof.
4. Guarantor agrees that all references, if any, to the Notes, the Senior Credit
Agreement, the Security Documents, and the Credit Documents in the Guarantor
Documents shall be deemed to refer to such agreements, documents, and
instruments as modified by the Agreement.
5. Guarantor reaffirms the Guarantor Documents and agrees that the Guarantor
Documents continue in full force and effect and remain unchanged, except as
specifically modified by this Consent and Agreement of Guarantors. Any property
or rights to or interests in property granted as security in the Guarantor
Documents shall remain as security for the Continuing Guarantees and the
obligations of Guarantor in the Continuing Guarantees.
6. Guarantor agrees that the Credit Documents, as modified by the Agreement, and
the Guarantor Documents, as modified by this Consent and Agreement of
Guarantors, are the legal,
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valid, and binding obligations of Borrower and the undersigned, respectively,
enforceable in accordance with their terms against Borrower and the undersigned,
respectively.
7. Guarantor agrees that Guarantor has no claims, counterclaims, defenses, or
offsets with respect to the enforcement against Guarantor of the Guarantor
Documents.
8. Guarantor represents and warrants that there has been no material adverse
change in the financial condition of any Guarantor from the most recent
financial statement received by Lender.
9. Guarantor agrees that this Consent and Agreement of Guarantors may be
executed in one or more counterparts, each of which shall be deemed an original
and all of which together shall constitute one and the same document. Signature
and acknowledgement pages may be detached from the counterparts and attached to
a single copy of this Consent and Agreement of Guarantors to physically form one
document.
DATED as of the date of the Agreement.
SIMULA SAFETY SYSTEMS, INC., formerly
known as Simula Government Products, Inc., an
Arizona corporation
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Its: Assistant Treasurer
SIMULA AUTOMOTIVE SAFETY DEVICES,
INC., an Arizona corporation, a/k/a ASD-Simula
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Its: Treasurer
SIMULA TRANSPORTATION EQUIPMENT
CORPORATION, an Arizona corporation
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By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Its: Assistant Treasurer
AIRLINE INTERIORS, INC., an Arizona
corporation
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxx
Its: Assistant Treasurer
ARTCRAFT INDUSTRIES CORP., an Arizona
corporation
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Its: Assistant Treasurer
COACH AND CAR EQUIPMENT
CORPORATION, an Arizona corporation
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Its: Assistant Treasurer
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VIATECH, INC., a Delaware corporation
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Its: Assistant Treasurer
SIMULA TECHNOLOGIES, INC., an Arizona
corporation
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxx
Its: Treasurer
SIMULA AUTOMOTIVE SAFETY DEVICES
LIMITED, a company organized under the laws of
the United Kingdom
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Its: Assistant Treasurer
INTERNATIONAL CENTER FOR SAFETY
EDUCATION, INC., an Arizona corporation
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Its: Treasurer
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INTAERO, LTD., an Arizona corporation
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Its: Assistant Treasurer
GUARANTOR
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CONSENT OF THE BANKS
Re: Simula, Inc. and its Subsidiaries
The undersigned:
(a) is a Bank named in that Senior Credit Agreement dated November 6, 1998
between Simula, Inc. and its Subsidiaries (the "Borrower"), Bank One, Arizona,
NA, a national banking association, as administrative agent for the Banks (the
"Administrative Agent"), the Issuing Bank, and the Banks; and
(b) consents to that Seventh Modification Agreement dated November 1, 1999
entered into between the Borrower and the Administrative Agent.
BANK ONE, ARIZONA, NA, a national banking
association
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Vice President
"Issuing Bank" and "Bank"
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CONSENT OF THE BANKS
Re: Simula, Inc. and its Subsidiaries
The undersigned:
(a) is a Bank named in that Senior Credit Agreement dated November 6, 1998
between Simula, Inc. and its Subsidiaries (the "Borrower"), Bank One, Arizona,
NA, a national banking association, as administrative agent for the Banks (the
"Administrative Agent"), the Issuing Bank, and the Banks; and
(b) consents to that Seventh Modification Agreement dated November 1, 1999
entered into between the Borrower and the Administrative Agent.
IMPERIAL BANK, California banking corporation,
successor by merger to IMPERIAL BANK
ARIZONA, an Arizona banking corporation
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Its: Senior Vice President
"Bank"
