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Exhibit 10.8
COLLATERAL ASSIGNMENT AND SECURITY AGREEMENT
IN RESPECT OF STOCK PURCHASE AND REDEMPTION AGREEMENT
(Triton Systems, Inc.)
1. PARTIES. TRITON SYSTEMS, INC., a Mississippi corporation (the
"Assignor") hereby grants to THE FIRST NATIONAL BANK OF BOSTON, a
banking institution organized under the laws of the United States of
America, having an office at Xxx Xxxxxxx Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, its successors and assigns ("Lender"), a
continuing security interest in the "Assigned Contract" (as defined
herein) to secure the "Obligations" (as defined herein).
2. ASSIGNED CONTRACT. The term "Assigned Contract" shall mean all of the
contracts, undertakings and agreements and all of the Assignor's right,
title and interest therein, whether now owned or hereafter acquired,
and all proceeds thereof, in that certain agreement entitled Stock
Purchase and Redemption Agreement dated as of July 25, 1996, entered
into by and among the Assignor, Xxxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxx,
Xxxxx X. Xxxxx, Xx., and Summit.
3. LOAN AGREEMENT; DEFINED TERMS. The term "Obligations" shall have the
same meaning as contained in that certain credit agreement dated as of
September 26, 1996, between Lender and Assignor. Such credit agreement,
as may be amended, supplemented, modified or recast from time to time,
referred to herein as the "Loan Agreement." Capitalized terms not
otherwise defined herein shall have the meanings given them in the Loan
Agreement. This Collateral Assignment and Security Agreement is given
pursuant to the terms of the Loan Agreement.
4. COVENANTS, WARRANTIES AND REPRESENTATIONS. Assignor covenants with, and
warrants and represents to, Lender that:
(a) Assignor is and shall be the owner of the Assigned Contract
free and clear of all pledges, liens, security interests and
other encumbrances of every nature whatsoever except in favor
of Lender;
(b) Assignor has the full right, power and authority to assign,
and to grant the security interest in, the Assigned Contract
as herein provided;
(c) The execution, delivery and performance of this Collateral
Assignment by Assignor will not result in the violation of any
mortgage, indenture, material contract,
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instrument, agreement, judgment, decree, order, statute, rule
or regulation to which the Assignor is subject or by which it
or any of its property is bound;
(d) Assignor shall not make any other assignment of, or permit any
lien or encumbrance to exist with respect to, the Assigned
Contract except in favor of Lender, and Assignor shall not
transfer, assign, sell or exchange its interest in the
Assigned Contract;
(e) A true and complete executed counterpart or certified copy of
the Assigned Contract has been delivered to Lender;
(f) The Assigned Contract in existence is in full force and
effect, is valid and enforceable in accordance with its terms,
has not been modified, and no default exists thereunder on the
part of any party thereto.
(g) The Assigned Contract shall not be amended, modified or
changed in any material respect, or cancelled or terminated,
without the Lender's prior written consent in each instance;
(h) Assignor shall pay and perform all of its obligations under or
with respect to the Assigned Contract and not permit any
default by it to exist with respect thereto. Assignor shall
exercise all efforts necessary to enforce or secure
performance by any other party to the Assigned Contract; and
(i) Assignor specifically acknowledges and agrees that Lender
neither assumes nor shall have any responsibility for the
payment of any sums due under the Assigned Contract or the
performance of any obligations to be performed under or with
respect to the Assigned Contract by Assignor.
5. INDEMNIFICATION. The Assignor hereby agrees to indemnify and hold the
Lender harmless against and from all liability, loss, damage and
expense, including reasonable attorney's fees, which Lender may or
shall incur by reason of this Agreement, or by reason of any
commercially reasonable action taken in good faith by the Lender
hereunder, and against and from any and all claims and demands
whatsoever which may be asserted against the Lender by reason of any
alleged obligation or undertaking on its part to perform or discharge
any of the terms, covenants and conditions contained in the Assigned
Contract. Should the Lender incur any such liability, loss, damage or
expense, the amount thereof shall be payable by the Assignor to the
Lender immediately upon demand, or at the option of the Lender, the
Lender may reimburse itself therefor out of any receipts, rents, income
or profits of the Property collected by the Lender before the
application of such receipts, rents, income or profits to any other
Obligations.
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6. LENDER NOT OBLIGATED. Nothing contained herein shall operate to
obligate or be construed to obligate, the Lender to perform any of the
terms, covenants or conditions contained in the Assigned Contract or
otherwise to impose any obligation upon the Lender with respect to the
Assigned Contract. This Agreement shall not operate to place upon the
Lender any responsibility for the payment, performance or observance of
any obligation, requirement or condition under the Assigned Contract or
under any agreement in respect to any such Assigned Contract, and the
execution of this Agreement by the Assignor shall constitute conclusive
evidence that all responsibility for the payment, performance or
observance of any obligation, requirement or condition under the
Assigned Contract is and shall be that of the Assignor.
7. FURTHER ASSURANCES; UCC FILINGS. The Assignor agrees to execute and
deliver to the Lender, at any time or times during which this Agreement
shall be in effect, such further instruments as the Lender may deem
necessary to make effective this Agreement, the security interest
created hereby and the covenants of the Assignor herein contained. To
evidence such security interest, at the request of the Lender, the
Assignor shall, in a form satisfactory to the Lender, join with the
Lender in executing one or more financing statements, and any
continuation thereof, pursuant to the provisions of the Uniform
Commercial Code as enacted in Massachusetts, and shall pay the cost for
filing thereof.
8. NO WAIVER; CUMULATIVE RIGHTS. Failure of the Lender to avail itself of
any of the terms, covenants, and conditions of this Agreement for any
period of time or at any time or times, shall not be construed or
deemed to be a waiver of any of its rights hereunder. The rights and
remedies of the Lender under this instrument are cumulative and are not
in lieu of but are in addition to any other rights and remedies which
the Lender shall have under or by virtue of the Obligations and the
Loan Documents. The rights and remedies of the Lender hereunder may be
exercised from time to time and as often as such exercise is deemed
expedient by the Lender.
9. LENDER; RIGHT TO ASSIGN. The Assignor agrees that upon any sale or
transfer by the Lender of the Loan Documents and the indebtedness
evidenced thereby, the Lender may deliver to the purchaser or
transferee the Assigned Contract and may assign to such purchaser or
transferee the rights of Lender hereunder, who shall thereupon become
vested with all powers and rights given to the Lender in respect
thereto (and subject to the Lender's obligations hereunder). In no
event shall the Lender be liable with respect to, or on account of, the
Assigned Contract, except for the safekeeping of any instruments
delivered to Lender pursuant hereto, and the Lender shall specifically
have no obligation to enforce any rights against the applicable
contractor.
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10. COPIES OF DEFAULT NOTICES. Assignor agrees to provide Lender with
copies of any and all notices received by Assignor which allege, either
directly or indirectly, that Assignor is in default of or deficient in
the performance of the terms of the obligation of Assignor under any
Assigned Contract.
11. INTENTIONALLY DELETED.
12. NOTICES. Any notices given pursuant to this Agreement shall be given in
the manner provided for in the Loan Agreement.
13. SUCCESSORS AND ASSIGNS. All of the agreements, obligations,
undertakings, representations and warranties herein made by the
Assignor shall inure to the benefit of the Lender and Lender's
successors and assigns and shall bind the Assignor and its successors
and assigns.
14. CAPTIONS AND HEADINGS. Captions and headings in this Agree- ment are
intended solely for the convenience of the parties and shall not be
considered in the determination of the meaning of any provision hereof.
[END OF PAGE 4]
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Executed as a sealed instrument as of the 26th day of September, 1996.
TRITON SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: President
FIRST NATIONAL BANK OF BOSTON
By: /s/ Xxxxxxx X. X'Xxxxx
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Name: Xxxxxxx X. X'Xxxxx
Title: Managing Director
THE FOREGOING TERMS AND
ASSIGNMENT ARE CONSENTED TO:
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxx, Xx.
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Xxxxx X. Xxxxx, Xx.
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[NOTARY PAGE OF COLLATERAL ASSIGNMENT AND SECURITY AGREEMENT
IN RESPECT OF STOCK PURCHASE AND REDEMPTION AGREEMENT]
COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss. _____________, 1996
Then personally appeared the above-named _____________________ and
acknowledged the foregoing to be his free act and deed and the free act and deed
of Triton Systems, Inc., as aforesaid.
___________________________________
, Notary Public
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss. October 11, 1996
Then personally appeared before me the above named Xxxxxxx X. X'Xxxxx
and acknowledged the foregoing to be his free act and deed and the free act and
deed of The First National Bank of Boston, as aforesaid.
/s/ XxxxXxxxx Xxxxxxx
___________________________________
, Notary Public
My Commission Expires:
XXXXXXXXX XXXXXXX, Notary Public
My Commission Expires May 13, 0000
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XXXXX XX XXXXXXXXXXX
XXXXXXXX XXXXXX, ss. September 25, 1996
Then personally appeared the above-named Xxxxxx X. Xxxxxx, Xxxxx X.
Xxxxx, and Xxxxxx X. Xxxxxxxx of Long Beach, Mississippi and acknowledged the
foregoing instrument to be their free act and deed; before me.
/s/ [signature illegible]
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Notary Public
Print Name:
My commission expires: [illegible]
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