EXHIBIT 10.6
EXECUTION COPY
COLLATERAL AGREEMENT (this "Agreement"), dated as of August 12, 2003, by
and among ARMOR HOLDINGS, INC., a Delaware corporation (the "Borrower"), certain
of its Subsidiaries as identified on the signature pages hereto and any
Additional Grantor (as defined below) who may become party to this Agreement
(such Subsidiaries and Additional Grantors, collectively, with the Borrower, the
"Grantors"), in favor of BANK OF AMERICA, N.A., as Administrative Agent (in such
capacity, the "Administrative Agent") for the ratable benefit of the banks and
other financial institutions (the "Lenders") from time to time parties to the
Credit Agreement, dated as of August 12, 2003 (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
by and among the Borrower, the Lenders, the Administrative Agent, Wachovia Bank,
National Association, as Syndication Agent, and KeyBank National Association, as
Documentation Agent.
STATEMENT OF PURPOSE
Pursuant to the Credit Agreement, the Lenders have agreed to make certain
Credit Extensions to the Borrower upon the terms and subject to the conditions
set forth therein.
Pursuant to the terms of a Subsidiary Guaranty Agreement of even date,
certain Subsidiaries of the Borrower who are parties hereto have guaranteed
payment and performance of the Obligations of the Borrower.
It is a condition precedent to the obligation of the Lenders to make their
respective Credit Extensions to the Borrower under the Credit Agreement that the
Grantors shall have executed and delivered this Agreement to the Administrative
Agent, for the ratable benefit of itself and the Lenders.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, and to
induce the Administrative Agent and the Lenders to enter into the Credit
Agreement and to induce the Lenders to make their respective Credit Extensions
to the Borrower thereunder, each Grantor hereby agrees with the Administrative
Agent, for the ratable benefit of itself and the Lenders, as follows:
ARTICLE I.
DEFINED TERMS
1.01 TERMS DEFINED IN THE UNIFORM COMMERCIAL CODE.
(a) The following terms when used in this Agreement shall have the meanings
assigned to them in the UCC (as defined in Section 1.02 below) as in effect from
time to time: "Account", "Account Debtor", "Authenticate", "Certificated
Security", "Chattel Paper", "Commercial Tort Claim", "Deposit Account",
"Documents", "Electronic Chattel Paper", "Equipment", "Farm Products",
"Fixture", "General Intangible", "Instrument", "Inventory", "Investment Company
Security", "Investment Property", "Issuer", "Letter of Credit Rights",
"Proceeds", "Record", "Registered Organization", "Security", "Securities
Account", "Securities
Entitlement", "Securities Intermediary", "Supporting
Obligation", "Tangible Chattel Paper", and "Uncertificated Security".
(b) Terms defined in the UCC and not otherwise defined herein or in the
Credit Agreement shall have the meaning assigned in the UCC as in effect from
time to time.
1.02 DEFINITIONS. The following terms when used in this Agreement shall
have the meanings assigned to them below:
"Additional Grantor" means each Subsidiary of the Borrower which hereafter
becomes a Grantor pursuant to Section 7.15 hereof and Section 6.09 of the Credit
Agreement.
"Agreement" means this Collateral Agreement, as amended, restated,
supplemented or otherwise modified from time to time.
"Applicable Insolvency Laws" means all applicable Laws governing
bankruptcy, reorganization, arrangement, adjustment of debts, relief of debtors,
dissolution, insolvency, fraudulent transfers or conveyances or other similar
laws (including, without limitation, 11 U.S.C. Sections 547, 548 and 550 and
other "avoidance" provisions of Title 11 of the United States Code).
"Assignment Agreement" means each Assignment Agreement executed by any
Grantor with respect to any Material Government Contract to which such Grantor
is a party, substantially in the form of Exhibit A-1 attached hereto.
"Assignment of Claims Act" means the Assignment of Claims Act of 1940 (41
U.S.C. Section 15, 31 U.S.C. Section 3737, and 31 U.S.C. Section 3727),
including all amendments thereto and regulations promulgated thereunder.
"Collateral" has the meaning assigned thereto in Section 2.01.
"Collateral Account" means any collateral account established by the
Administrative Agent as provided in Section 5.02.
"Control" means the manner in which "control" is achieved under the UCC
with respect, to any Collateral for which the UCC specifies a method of
achieving "control".
"Controlled Depository" has the meaning assigned thereto in Section 4.06.
"Controlled Intermediary" has the meaning assigned thereto in Section 4.06.
"Copyrights" means collectively, all of the following of any Grantor: (a)
all copyrights, rights and interests in copyrights, works protectable by
copyright, copyright registrations and copyright applications anywhere in the
world, including, without limitation, those listed on Schedule 3.11 hereto, (b)
all reissues, extensions, continuations (in whole or in part) and renewals of
any of the foregoing, (c) all income, royalties, damages and payments now or
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hereafter due and/or payable under any of the foregoing or with respect to any
of the foregoing, including, without limitation, damages or payments for past or
future infringements of any of the foregoing, (d) the right to xxx for past,
present and future infringements of any of the foregoing and (e) all rights
corresponding to any of the foregoing throughout the world.
"Copyright Licenses" means any written agreement naming any Grantor as
licensor or licensee (other than any such agreement that by its terms prohibits
the granting of a security interest therein), including, without limitation,
those listed in Schedule 3.11, granting any right under any Copyright,
including, without limitation, the grant of rights to manufacture, distribute,
exploit and sell materials derived from any Copyright.
"Effective Endorsement and Assignment" means, with respect to any specific
type of Collateral, all such endorsements, assignments and other instruments of
transfer reasonably requested by the Administrative Agent with respect to the
Security Interest granted in such Collateral, and in each case, in form and
substance satisfactory to the Administrative Agent.
"Government Contract" means a contract between any Grantor and an agency,
department or instrumentality of the United States or any state, municipal or
local Governmental Authority located in the United States or all obligations of
any such Governmental Authority arising under any Account now or hereafter owing
by any such Governmental Authority, as account debtor, to any Grantor.
"Grantors" has the meaning set forth in the Preamble of this Agreement.
"Guarantors" means the collective reference to each Person executing a
Subsidiary Guaranty Agreement.
"Intellectual Property" means collectively, all of the following of any
Grantor: (a) all systems software, applications software and internet rights,
including, without limitation, screen displays and formats, internet domain
names, web sites (including web links), program structures, sequence and
organization, all documentation for such software, including, without
limitation, user manuals, flowcharts, programmer's notes, functional
specifications, and operations manuals, all formulas, processes, ideas and
know-how embodied in any of the foregoing, and all program materials,
flowcharts, notes and outlines created in connection with any of the foregoing,
whether or not patentable or copyrightable, (b) concepts, discoveries,
improvements and ideas, (c) any useful information relating to the items
described in clause (a) or (b), including know-how, technology, engineering
drawings, reports, design information, trade secrets, practices, laboratory
notebooks, specifications, test procedures, maintenance manuals, research,
development, manufacturing, marketing, merchandising, selling, purchasing and
accounting, (d) Patents and Patent Licenses, Copyrights and Copyright Licenses,
Trademarks and Trademark Licenses, and (e) other licenses to use any of the
items described in the foregoing clauses (a), (b), (c) and (d) or any other
similar items of such Grantor necessary for the conduct of its business.
"Issuer" means any issuer of any Investment Property or Partnership/LLC
Interests (including, without limitation, any Issuer as defined in the UCC).
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"Material Government Contracts" means each Government Contract which
produces revenues to the Borrower or any Subsidiary in an amount in excess of
$1,000,000 per annum.
"Notice of Assignment" means each Notice of Assignment executed by any
Grantor with respect to any Material Government Contract to which such Grantor
is a party, substantially in the form of Exhibit A-2.
"Obligations" means with respect to the Borrower, the meaning assigned
thereto in the Credit Agreement, and with respect to each Guarantor, the
obligations of such Guarantor under the Subsidiary Guaranty Agreement executed
by such Guarantor and with respect to all Grantors, all liabilities and
obligations of the Grantors hereunder and all liabilities and obligations of the
Grantors with respect to overdrafts, returned items and related liabilities and
all indemnification obligations now or hereafter owing by any Grantor to Bank of
America, N.A., any Affiliate thereof or the Administrative Agent arising from or
in connection with treasury, depositary or cash management services or in
connection with any automated clearinghouse transfer of funds for the benefit of
such Grantor.
"Partnership/LLC Interests" means, with respect to any Grantor, the entire
partnership, membership interest or limited liability company interest, as
applicable, of such Grantor in each partnership, limited partnership or limited
liability company owned thereby, including, without limitation, such Grantor's
capital account, its interest as a partner or member, as applicable, in the net
cash flow, net profit and net loss, and items of income, gain, loss, deduction
and credit of any such partnership, limited partnership or limited liability
company, as applicable, such Grantor's interest in all distributions made or to
be made by any such partnership, limited partnership or limited liability
company, as applicable, to such Grantor and all of the other economic rights,
titles and interests of such Grantor as a partner or member, as applicable, of
any such partnership, limited partnership or limited liability company, as
applicable, whether set forth in the partnership agreement or membership
agreement, as applicable, of such partnership, limited partnership or limited
liability company, as applicable, by separate agreement or otherwise.
"Patents" means collectively, all of the following of any Grantor: (a) all
patents, rights and interests in patents, patentable inventions and patent
applications anywhere in the world, including, without limitation, those listed
on Schedule 3.11 hereto, (b) all reissues, extensions, continuations (in whole
or in part) and renewals of any of the foregoing, (c) all income, royalties,
damages or payments now or hereafter due and/or payable under any of the
foregoing or with respect to any of the foregoing, including, without
limitation, damages or payments for past or future infringements of any of the
foregoing, (d) the right to xxx for past, present and future infringements of
any of the foregoing and (e) all rights corresponding to any of the foregoing
throughout the world.
"Patent License" means any agreement now or hereafter in existence, whether
written, implied or oral, providing for the grant by or to any Grantor of any
right to manufacture, use or sell any invention covered in whole or in part by a
Patent (other than any such agreement that by
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its terms prohibits the granting of a security interest therein), including,
without limitation, any of the foregoing referred to in Schedule 3.11 hereto.
"Perfection Certificate" means the perfection certificate dated as of even
date herewith, substantially in the form of Exhibit B attached hereto, and
otherwise in form and substance satisfactory to the Administrative Agent, and
duly certified by an officer, partner or member, as applicable, of each Grantor.
"Permitted Liens" means Liens permitted pursuant to Section 7.03 of the
Credit Agreement.
"Securities Act" means the Securities Act of 1933, including all amendments
thereto and regulations promulgated thereunder.
"Security Interests" means the security interests granted pursuant to
Article II, as well as all other security interests created or assigned as
additional security for the Obligations pursuant to the provisions of the Credit
Agreement.
"Subsidiary Guaranty Agreement" has the meaning assigned thereto in the
Credit Agreement.
"Subsidiary Issuer" means any Issuer of Investment Property or any
Partnership/LLC Interests, which is a direct or indirect Subsidiary of the
Borrower.
"Trademarks" means, collectively, all of the following of any Grantor: (a)
all trademarks, rights and interests in trademarks, trade names, corporate
names, company names, business names, fictitious business names, trade styles,
service marks, logos, other business identifiers, prints and labels on which any
of the foregoing have appeared or appear, whether registered or unregistered,
all registrations and recordings thereof, and all applications in connection
therewith (other than each application to register any trademark or service xxxx
xxxxx to the filing under applicable Law of a verified statement of use for such
xxxx) anywhere in the world, including, without limitation, those listed on
Schedule 3.11 hereto, (b) all reissues, extensions, continuations (in whole or
in part) and renewals of any of the foregoing, (c) all income, royalties,
damages and payments now or hereafter due and/or payable under any of the
foregoing or with respect to any of the foregoing, including, without
limitation, damages or payments for past or future infringements of any of the
foregoing, (d) the right to xxx for past, present and future infringements of
any of the foregoing and (e) all rights corresponding to any of the foregoing
(including the goodwill) throughout the world.
"Trademark License" means any agreement now or hereafter in existence,
whether written or oral, providing for the grant by or to any Grantor of any
right to use any Trademark (other than any such agreement that by its terms
prohibits the granting of a security interest therein), including, without
limitation, any of the foregoing referred to in Schedule 3.11.
"UCC" means the Uniform Commercial Code as in effect in the State of New
York, as amended or modified from time to time.
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"Vehicles" means all cars, trucks, trailers, construction and earth moving
equipment and other vehicles covered by a certificate of title under the laws of
any state, and all tires all other appurtenances to any of the foregoing.
1.03 OTHER DEFINITIONAL PROVISIONS. Terms defined in the Credit Agreement
and not otherwise defined herein shall have the meaning assigned thereto in the
Credit Agreement. The words "hereof," "herein", "hereto" 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 Schedule references are to this Agreement unless otherwise
specified. The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms. Where the
context requires, terms relating to the Collateral or any part thereof, when
used in relation to a Grantor, shall refer to such Grantor's Collateral or the
relevant part thereof.
ARTICLE II.
SECURITY INTEREST
2.01 GRANT OF SECURITY INTEREST. Each Grantor hereby grants, pledges and
collaterally assigns to the Administrative Agent, for the ratable benefit of
itself and the Lenders, a security interest in, all of such Grantor's right,
title and interest in the following property, now owned or at any time hereafter
acquired by such Grantor or in which such Grantor now has or at any time in the
future may acquire any right, title or interest, and wherever located or deemed
located (collectively, the "Collateral"), as collateral security for the prompt
and complete payment and performance when due (whether at the stated maturity,
by acceleration or otherwise) of the Obligations:
(a) all Accounts;
(b) all cash and currency;
(c) all Chattel Paper;
(d) all Deposit Accounts;
(e) all Documents;
(f) all Equipment;
(g) all Fixtures;
(h) all General Intangibles;
(i) all Instruments;
(j) all Intellectual Property;
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(k) all Inventory;
(l) all Investment Property;
(m) all Letter of Credit Rights;
(n) all Vehicles;
(o) all other personal property not otherwise described above;
(p) all books and records pertaining to the Collateral; and
(q) to the extent not otherwise included, all Proceeds and products
of any and all of the foregoing and all collateral security and Supporting
Obligations (as now or hereafter defined in the UCC) given by any Person with
respect to any of the foregoing;
provided that
(a) any Security Interest on any Capital Stock issued by any "first-tier"
Foreign Subsidiary of any Grantor shall be limited to (i) 65% of the outstanding
voting Capital Stock of such Foreign Subsidiary and 100% of the outstanding
nonvoting Capital Stock of such Foreign Subsidiary, if a Responsible Officer
shall have certified to the Administrative Agent and the Lenders that the pledge
of greater than 66-2/3% of the Capital Stock of such Foreign Subsidiary would
materially and adversely affect the tax position of such Subsidiary and of the
Borrower, or (ii) all of the Capital Stock of such Subsidiary, otherwise,
(b) the Grantors shall not be required to perfect the Security Interest on
any Capital Stock issued by any "first-tier" Foreign Subsidiary of any Grantor
pursuant to this Section 2.01 until March 31, 2004, and
(b) the Security Interest granted herein shall not extend to, and the term
"Collateral" shall not include, any rights under any lease, contract or
agreement (including, without limitation, any license for Intellectual Property)
to the extent that the granting of a security interest therein is specifically
prohibited in writing by, or would constitute an event of default under, any
agreement governing such right unless (i) such prohibition is not enforceable or
is otherwise ineffective under applicable Law or (ii) with respect to any
Government Contract, such prohibition is conditioned upon compliance with the
Assignment of Claims Act (or analogous state Applicable Law).
Notwithstanding any of the foregoing, such proviso shall not affect, limit,
restrict or impair the grant by any Grantor of a Security Interest in any
Account or any money or other amounts due and payable to any Grantor or to
become due and payable to any Grantor under any such lease, contract or
agreement.
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2.02 GRANTORS REMAIN LIABLE. Anything herein to the contrary
notwithstanding: (a) each Grantor shall remain liable under the contracts and
agreements included in the Collateral to the extent set forth therein to perform
all of its duties and obligations thereunder to the same extent as if this
Agreement had not been executed, (b) the exercise by Administrative Agent of any
of the rights hereunder shall not release any Grantor from any of its duties or
obligations under the contracts and agreements included in the Collateral, (c)
neither the Administrative Agent nor any Lender shall have any obligation or
liability under the contracts and agreements included in the Collateral by
reason of this Agreement, nor shall the Administrative Agent or any Lender be
obligated to perform any of the obligations or duties of any Grantor thereunder
or to take any action to collect or enforce any claim for payment assigned
hereunder, and (d) neither the Administrative Agent nor any Lender shall have
any liability in contract or tort for any Grantor's acts or omissions.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into the Credit
Agreement and to induce the Lenders to make their respective Credit Extensions
to the Borrower thereunder, each Grantor hereby represents and warrants to the
Administrative Agent and each Lender that:
3.01 EXISTENCE. Except as set forth on Schedule 5.03 to the Credit
Agreement, each Grantor is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, has the requisite power
and authority to own, lease and operate its properties and to carry on its
business as now being and hereafter proposed to be conducted and is duly
qualified and authorized to do business in each jurisdiction in which the
character of its properties or the nature of its business requires such
qualification and authorization.
3.02 AUTHORIZATION OF AGREEMENT; NO CONFLICT. Each Grantor has the right,
power and authority and has taken all necessary corporate and other action to
authorize the execution, delivery and performance of, this Agreement. This
Agreement has been duly executed and delivered by the duly authorized officers
of each Grantor and this Agreement constitutes the legal, valid and binding
obligation of the Grantors enforceable in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar state or federal debtor relief laws from time to time in
effect which affect the enforcement of creditors' rights in general and the
availability of equitable remedies. The execution, delivery and performance by
the Grantors of this Agreement will not, by the passage of time, the giving of
notice or otherwise, violate any material provision of any applicable Law or
Contractual Obligation and will not result in the creation or imposition of any
Lien, other than the Security Interests, upon or with respect to any property or
revenues of any Grantor.
3.03 CONSENTS. No approval, consent, exemption, authorization or other
action by, or notice to, or filing with, any Governmental Authority or any other
Person is necessary or required in connection with the execution, delivery or
performance by, or enforcement against any Grantor or any Subsidiary Issuer of
this Agreement, except (a) as may be required by laws affecting the offering and
sale of securities generally, (b) filings with the United States Copyright
Office and/or the United States Patent and Trademark Office and (c) filings
under the UCC and/or the Assignment of Claims Act.
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3.04 PERFECTED FIRST PRIORITY LIENS. Each financing statement naming any
Grantor as a debtor is in appropriate form for filing in the appropriate filing
offices of the states specified on Schedule 3.06. Except as set forth in Section
2.01, the Security Interests granted pursuant to this Agreement (a) constitute
valid perfected security interests in all of the Collateral in favor of the
Administrative Agent, for the ratable benefit of itself and the Lenders, as
collateral security for the Obligations, enforceable in accordance with the
terms hereof against all creditors of such Grantor and any Persons purporting to
purchase any Collateral from such Grantor and (b) are prior to all other Liens
on the Collateral in existence on the date hereof except for Permitted Liens.
3.05 TITLE, NO OTHER LIENS. Except for the Security Interests, each Grantor
owns each item of the Collateral free and clear of any and all Liens or claims
other than Permitted Liens. No financing statement under the UCC of any state
which names a Grantor as debtor or other public notice with respect to all or
any part of the Collateral is on file or of record in any public office, except
such as have been filed in favor of the Administrative Agent, for the ratable
benefit of itself and the Lenders, pursuant to this Agreement or in connection
with Permitted Liens. No Collateral is in the possession or Control of any
Person asserting any claim thereto or security interest therein, except that (a)
the Administrative Agent or its designee may have possession or Control of
Collateral as contemplated hereby, (b) a depositary bank may have Control of a
Deposit Account owned by a Grantor at such depositary bank and a Securities
Intermediary may have Control over a Securities Account owned by a Grantor at
such Securities Intermediary, in each case subject to the terms of any Deposit
Account control agreement or Securities Account control agreement, as applicable
and to the extent required by Section 4.06, in favor of the Administrative
Agent, and (c) a bailee, consignee or other Person may have possession of the
Collateral as contemplated by, and so long as, the applicable Grantors have
complied to the satisfaction of the Administrative Agent with the applicable
provisions of Section 4.06(c).
3.06 STATE OF ORGANIZATION; LOCATION OF INVENTORY, EQUIPMENT AND FIXTURES;
OTHER INFORMATION.
(a) The exact legal name of each Grantor is set forth on Schedule 3.06.
(b) Each Grantor is a Registered Organization organized under the laws of
the state identified on Schedule 3.06 under such Grantor's name. The taxpayer
identification number and Registered Organization number of each Grantor is set
forth on Schedule 3.06 under such Grantor's name.
(c) All Collateral consisting of Inventory, Equipment and Fixtures (whether
now owned of hereafter acquired) is (or will be) located at the locations
specified on Schedule 3.06, except as otherwise permitted hereunder.
(d) The mailing address, chief place of business, chief executive office
and office where each Grantor keeps its books and records relating to the
Accounts, Documents, General Intangibles, Instruments and Investment Property in
which it has any interest is located at the locations specified on Schedule 3.06
under such Grantor's name. No Grantor has any other
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places of business except those separately set forth on Schedule 3.06 under such
Grantor's name. No Grantor does business nor has done business during the past
five years under any trade name or fictitious business name except as disclosed
on Schedule 3.06 under such Grantor's name. Except as disclosed on Schedule 3.06
under such Grantors name, no Grantor has acquired assets from any Person, other
than assets acquired in the ordinary course of such Grantor's business, during
the past five years.
3.07 ACCOUNTS.
(a) Each existing Account constitutes, and each hereafter arising Account
will constitute, the legally valid and binding obligation of the applicable
Account Debtor. The amount represented by each Grantor to the Administrative
Agent as owing by each Account Debtor is, or will be, the correct amount
actually and unconditionally owing, except for normal cash discounts and
allowances where applicable. No Account Debtor has any defense, set-off, claim
or counterclaim against any Grantor that can be asserted against the
Administrative Agent, whether in any proceeding to enforce Administrative
Agent's rights in the Collateral or otherwise except defenses, setoffs, claims
or counterclaims that are not, in the aggregate, material to the value of the
Accounts. None of the Accounts is, nor will any hereafter arising Account be,
evidenced by a promissory note or other Instrument other than a check that has
not been pledged to the Administrative Agent in accordance with the terms
hereof.
(b) Schedule 3.07 sets forth a complete and accurate list of all Material
Government Contracts of the Grantors in effect as of the Closing Date. As of the
Closing Date, except as set forth in Schedule 3.07, each such Material
Government Contract is, and after giving effect to the consummation of the
transactions contemplated by the Loan Documents will be, in full force and
effect in accordance with the terms thereof. Neither the Borrower nor any other
Grantor (nor, to the knowledge of any Grantor, any other party thereto) is in
breach of or in default under any Material Government Contract. No notice of any
dispute, holdback, claim of set-off or other claim, suspension, debarment, cure
notice, show cause notice or notice of termination for default has been issued
by any Governmental Authority to any Grantor, and neither the Borrower nor any
other Grantor is a party to any pending, or to the Borrower's or any Grantor's
knowledge, threatened dispute, holdback, claim of set-off or other claim,
suspension, debarment, or termination for default issued by any Governmental
Authority.
3.08 CHATTEL PAPER. As of the date hereof, no Grantor holds any Chattel
Paper in the ordinary course of its business.
3.09 COMMERCIAL TORT CLAIMS. As of the date hereof, no Grantor owns any
Commercial Tort Claims.
3.10 DEPOSIT ACCOUNTS. As of the date hereof, all Deposit Accounts
(including, without limitation, cash management accounts that are Deposit
Accounts) owned by any Grantor are listed on Schedule 3.10.
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3.11 INTELLECTUAL PROPERTY.
(a) All material United States Copyright registrations, Copyright
applications, issued Patents, Trademark registrations and Trademark applications
owned by any Grantor in its own name on the date hereof is listed on Schedule
3.11.
(b) Except as set forth in Schedule 3.11 on the date hereof, none of the
Intellectual Property owned by any Grantor is the subject of any written
licensing or franchise agreement pursuant to which such Grantor is the licensor
or franchisor, except as could not reasonably be expected to have a Material
Adverse Effect.
3.12 INVENTORY. Collateral consisting of Inventory is of good and
merchantable quality, free from any defects. To the knowledge of each Grantor,
none of such Inventory is subject to any licensing, Patent, Trademark, trade
name or Copyright with any Person that restricts any Grantor's ability to
manufacture and/or sell such Inventory. The completion of the manufacturing
process of such Inventory by a Person other than the applicable Grantor would be
permitted under any contract to which such Grantor is a party or to which the
Inventory is subject.
3.13 INVESTMENT PROPERTY; PARTNERSHIP/LLC INTERESTS..
(a) As of the date hereof, all Investment Property (including, without
limitation, Securities Accounts and cash management accounts that are Investment
Property) and all Partnership/LLC Interests owned by any Grantor is listed on
Schedule 3.13.
(b) All Investment Property and all Partnership/LLC Interests issued by any
Subsidiary Issuer to any Grantor (i) have been duly and validly issued and, if
applicable, are fully paid and nonassessable, (ii) are beneficially owned as of
record by such Grantor and (ii) constitute all the issued and outstanding shares
of all classes of the capital stock of such Subsidiary Issuer issued to such
Grantor.
(c) None of the Partnership/LLC Interests (i) are traded on a Securities
exchange or in Securities markets, (ii) by their terms expressly provide that
they are Securities governed by Article 8 of the UCC or (iii) are Investment
Company Securities.
3.14 INSTRUMENTS. As of the date hereof, no Grantor holds any Instruments
or is named a payee of any promissory note or other evidence of indebtedness.
ARTICLE IV.
COVENANTS
Until the Obligations shall have been paid in full and the Commitments
terminated, unless consent has been obtained in the manner provided for in
Section 7.01, each Grantor covenants and agrees that:
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4.01 MAINTENANCE OF PERFECTED SECURITY INTEREST; FURTHER INFORMATION.
(a) Each Grantor shall maintain the Security Interest created by this
Agreement as a perfected Security Interest having at least the priority
described in Section 3.04 and shall defend such Security Interest against the
claims and demands of all Persons whomsoever.
(b) Each Grantor will furnish to the Administrative Agent and the Lenders
from time to time statements and schedules further identifying and describing
the assets and property of such Grantor and such other reports in connection
therewith as the Administrative Agent may reasonably request, all in reasonable
detail.
4.02 MAINTENANCE OF INSURANCE.
(a) Each Grantor will maintain, with financially sound and reputable
companies, insurance policies (i) insuring the Collateral against loss by fire,
explosion, theft, fraud and such other casualties, including business
interruption, as may be reasonably satisfactory to the Administrative Agent in
amounts and with deductibles at least as favorable as those generally maintained
by businesses of similar size engaged in similar activities and (ii) insuring
such Grantor and the Administrative Agent, for the ratable benefit of the
Lenders, against liability for hazards, risks and liability to persons and
property relating to the Collateral, in amounts and with deductibles at least as
favorable as those generally maintained by businesses of similar size engaged in
similar activities, such policies to be in such form and having such coverage as
may be reasonably satisfactory to the Administrative Agent and the Lenders.
(b) All such insurance shall (i) name the Administrative Agent for the
ratable benefit of itself and the Lenders as loss payee (to the extent covering
risk of loss or damage to tangible property) and as an additional insured as its
interests may appear (to the extent covering any other risk), (ii) provide that
no cancellation, material reduction in amount or material change in coverage
thereof shall be effective until at least thirty (30) days after receipt by the
Administrative Agent of written notice thereof and (iii) be reasonably
satisfactory in all other respects to the Administrative Agent.
(c) Upon the request of the Administrative Agent, each Grantor shall
deliver to the Administrative Agent and the Lenders periodic information from a
reputable insurance broker with respect to the insurance referred to in this
Section 4.02.
4.03 CHANGES IN LOCATIONS; CHANGES IN NAME OR STRUCTURE. No Grantor will,
except upon thirty (30) days' prior written notice to the Administrative Agent
and delivery to the Administrative Agent of (a) all additional financing
statements (executed if necessary for any particular filing jurisdiction) and
other instruments and documents reasonably requested by the Administrative Agent
to maintain the validity, perfection and priority of the Security Interests and
(b) if applicable, a written supplement to the Schedules of this Agreement:
(i) permit any Deposit Account to be held by or at a depositary bank other
than the depositary bank that held such Deposit Account as of the date hereof as
set forth on Schedule 3.10;
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(ii) permit any of the Inventory, Equipment or Fixtures to be kept at a
location other than those listed on Schedule 3.06, except as otherwise permitted
hereunder;
(iii) permit any Investment Property (other than Certificated Securities
delivered to the Administrative Agent pursuant to Section 4.05) to be held by a
Securities Intermediary other than the Securities Intermediary that held such
Investment Property as of the date hereof as set forth on Schedule 3.13;
(iv) change its jurisdiction of organization or the location of its chief
executive office from that identified on Schedule 3.06; or
(v) change its name, identity or corporate or organizational structure to
such an extent that any financing statement filed by the Administrative Agent in
connection with this Agreement would become misleading.
4.04 REQUIRED NOTIFICATIONS. Each Grantor shall promptly notify the
Administrative Agent, in writing, of: (a) any Lien (other than the Security
Interests or Permitted Liens) on any of the Collateral which would adversely
affect the ability of the Administrative Agent to exercise any of its remedies
hereunder, (b) the occurrence of any other event which could reasonably be
expected to have a Material Adverse Effect on the aggregate value of the
Collateral or on the Security Interests, (c) the acquisition or ownership by
such Grantor of any (i) Commercial Tort Claim, (ii) Deposit Account, (iii)
Investment Property after the date hereof and (d) the occurrence of any material
dispute, holdback, claim of set-off or other claim by the applicable
Governmental Authority under any Material Government Contract or receipt by any
Grantor of any notice of material suspension, debarment, cure notice, show cause
notice or notice of termination for default issued by any Governmental Authority
to any Grantor.
4.05 DELIVERY COVENANTS. Each Grantor will deliver and pledge to the
Administrative Agent, for the ratable benefit of itself and the Lenders, all
Certificated Securities, Partnership/LLC Interests evidenced by a certificate,
negotiable Documents, Instruments, and Tangible Chattel Paper owned or held by
such Grantor, in each case, together with an Effective Endorsement and
Assignment and all Supporting Obligations, as applicable, unless such delivery
and pledge has been waived in writing by the Administrative Agent.
4.06 CONTROL COVENANTS.
(a) Each Grantor shall instruct (and otherwise use its reasonable efforts)
to cause (i) each depositary bank holding a Deposit Account (other than (A) a
payroll account, (B) an employee benefit account and (C) a political action
account (in each case solely to the extent that such accounts are used solely
for payroll purposes, employee benefit purposes or political action purposes,
respectively)) owned by such Grantor and (ii) each Securities Intermediary
holding any Investment Property owned by such Grantor, to execute and deliver a
control agreement, sufficient to provide the Administrative Agent with Control
of such Deposit Account and such Investment Property and otherwise in form and
substance satisfactory to the Administrative Agent (any such depositary bank
executing and delivering any such control agreement, a
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"Controlled Depositary", and any such Securities Intermediary executing and
delivering any such control agreement, a "Controlled Intermediary"); provided
that, notwithstanding the foregoing, so long as no Default or Event of Default
has occurred and is continuing, no Grantor shall be required to obtain a control
agreement with respect to Deposit Accounts (other than the Collection Account)
with amounts on deposit that do not exceed $100,000 for any such Deposit Account
or $1,000,000, when aggregated with the amounts on deposit in all other Deposit
Accounts for which a control agreement has not be obtained (other than those
specified in clauses (i)(A) and (i)(B) of this Section 4.06(a)), at any time. In
the event any such depositary bank or Securities Intermediary refuses to execute
and deliver such control agreement within the period of ninety (90) days
following the Closing Date, the Administrative Agent, in its sole discretion,
may require the applicable Deposit Account and Investment Property to be
transferred to the Administrative Agent or a Controlled Depositary or Controlled
Intermediary, as applicable.
(b) Upon the request of the Administrative Agent, each Grantor will take
such actions and deliver all such agreements as are requested by the
Administrative Agent to provide the Administrative Agent with Control of all
Letter of Credit Rights and Electronic Chattel Paper owned or held by such
Grantor, including, without limitation, with respect to any such Electronic
Chattel Paper, by having the Administrative Agent identified as the assignee of
the Record(s) pertaining to the single authoritative copy thereof.
(c) If any Collateral (other than Collateral specifically subject to the
provisions of Section 4.06(a) and Section 4.06(b)) exceeding in value $100,000
in the aggregate (such Collateral exceeding such amount, the "Excess
Collateral") is at any time in the possession or control of any consignee,
warehouseman, bailee (other than a carrier transporting Inventory to a purchaser
in the ordinary course of business), processor, or any other third party, such
Grantor shall notify in writing such Person of the Security Interests created
hereby, shall use its commercially reasonable efforts to obtain such Person's
written agreement to hold all such Collateral for the Administrative Agent's
account subject to the Administrative Agent's instructions, and shall cause such
Person to issue and deliver to the Administrative Agent warehouse receipts,
bills of lading or any similar documents relating to such Collateral together
with an Effective Endorsement and Assignment; provided that if such Grantor is
not able to obtain such agreement and cause the delivery of such items, the
Administrative Agent, in its sole discretion, may require such Excess Collateral
to be moved to another location specified thereby. Further, each Grantor shall
perfect and protect such Grantor's ownership interests in all Inventory stored
with a consignee against creditors of the consignee by filing and maintaining
financing statements against the consignee reflecting the consignment
arrangement filed in all appropriate filing offices, providing any written
notices required to notify any prior creditors of the consignee of the
consignment arrangement, and taking such other actions as may be appropriate to
perfect and protect such Grantor's interests in such inventory under Section
2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwise.
All such financing statements filed pursuant to this Section 4.06(c) shall be
assigned, on the face thereof, to the Administrative Agent, for the ratable
benefit of itself and the other Lenders.
4.07 FILING COVENANTS. Pursuant to Section 9-509 of the UCC and any other
applicable Law, each Grantor authorizes the Administrative Agent to file or
record financing
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statements and other filing or recording documents or instruments with respect
to the Collateral without the signature of such Grantor in such form and in such
offices as the Administrative Agent determines appropriate to perfect the
Security Interests of the Administrative Agent under this Agreement. Such
financing statements may describe the Collateral in the same manner as described
herein or may contain an indication or description of Collateral that describes
such property in any other manner as the Administrative Agent may determine, in
its sole discretion, is necessary, advisable or prudent to ensure the perfection
of the Security Interest in the Collateral granted herein, including, without
limitation, describing such property as "all assets" or "all personal property."
Further, a photographic or other reproduction of this Agreement shall be
sufficient as a financing statement or other filing or recording document or
instrument for filing or recording in any jurisdiction. Grantor hereby
authorizes, ratifies and confirms all financing statements and other filing or
recording documents or instruments filed by Administrative Agent prior to the
date of this Agreement.
4.08 ACCOUNTS.
(a) Other than in the ordinary course of business consistent with its past
practice, no Grantor will (i) grant any extension of the time of payment of any
Account, (ii) compromise or settle any Account for less than the full amount
thereof, (iii) release, wholly or partially, any Account Debtor, (iv) allow any
credit or discount whatsoever on any Account or (v) amend, supplement or modify
any Account in any manner that could adversely affect the value thereof.
(b) Each Grantor will deliver to the Administrative Agent a copy of each
material demand, notice or document received by it that questions or calls into
doubt the validity or enforceability of any material Account.
(c) At any time and from time to time, upon the Administrative Agent's
reasonable request and at the expense of the relevant Grantor, such Grantor
shall cause independent public accountants or others satisfactory to the
Administrative Agent to furnish to the Administrative Agent reports showing
reconciliations, aging and test verifications of, and trial balances for, the
Accounts.
(d) Upon the occurrence of a Default or an Event of Default, at the sole
expense of the Grantors, each Grantor will promptly and duly execute and deliver
to the Administrative Agent (i) an Assignment Agreement and (ii) a Notice of
Assignment for each Material Government Contract, in each case duly executed by
such Grantor party to each Material Government Contract in compliance with the
Assignment of Claims Act (or analogous state applicable Law, if applicable), and
the Grantors agree to cause such Notices of Assignment to be acknowledged in
writing by the appropriate Governmental Authority.
(e) The Grantors shall provide the Administrative Agent with an updated
Schedule 3.07 upon the reasonable request of the Administrative Agent.
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4.09 INTELLECTUAL PROPERTY.
(a) Except as could not reasonably be expected to have a Material Adverse
Effect, each Grantor (either itself or through licensees) (i) will continue to
use each registered Trademark (owned by such Grantor) and Trademark for which an
application (owned by such Grantor) is pending, to the extent reasonably
necessary to maintain such Trademark in full force free from any claim of
abandonment for non-use, (ii) will maintain products and services offered under
such Trademark at a level substantially consistent with the quality of such
products and services as of the date hereof, (iii) will not (and not permit any
licensee or sublicensee thereof to) do any act or knowingly omit to do any act
whereby such Trademark could reasonably be expected to become invalidated or
impaired in any way, (iv) will not do any act, or knowingly omit to do any act,
whereby any issued Patent owned by such Grantor would reasonably be expected to
become forfeited, abandoned or dedicated to the public, (v) will not (and will
not permit any licensee or sublicensee thereof to) do any act or knowingly omit
to do any act whereby any registered Copyright owned by such Grantor or
Copyright for which an application is pending (owned by such Grantor) could
reasonably be expected to become invalidated or otherwise impaired and (vi) will
not (either itself or through licensees) do any act whereby any material portion
of the Copyrights may fall into the public domain.
(b) Each Grantor will notify the Administrative Agent and the Lenders
promptly if it knows, or has reason to know, that any application or
registration relating to any material Intellectual Property owned by such
Grantor may become forfeited, abandoned or dedicated to the public, or of any
adverse determination or development (including, without limitation, the
institution of, or any such determination or development in, any proceeding in
the United States Patent and Trademark Office, the United States Copyright
Office or any court or tribunal in any country) regarding such Grantor's
ownership of, or the validity of, any material Intellectual Property owned by
such Grantor or such Grantor's right to register the same or to own and maintain
the same.
(c) Whenever such Grantor, either by itself or through any agent, employee,
licensee or designee, shall file an application for the registration of any
Intellectual Property with the United States Patent and Trademark Office, the
United States Copyright Office or any similar office or agency in any other
country or any political subdivision thereof, such Grantor shall report such
filing to the Administrative Agent within five (5) Business Days after the last
day of the fiscal quarter in which such filing occurs. Upon request of the
Administrative Agent, such Grantor shall execute and deliver, and have recorded,
any and all agreements, instruments, documents, and papers as the Administrative
Agent may reasonably request to evidence the Administrative Agent's and the
Lenders' security interest in any material Copyright, Patent or Trademark and
the goodwill and General Intangibles of such Grantor relating thereto or
represented thereby.
(d) Each Grantor will take all reasonable and necessary steps, at such
Grantor's sole cost and expense, including, without limitation, in any
proceeding before the United States Patent and Trademark Office, the United
States Copyright Office or any similar office or agency in any other country or
any political subdivision thereof, to maintain and pursue each application (and
to obtain the relevant registration) and to maintain each registration of the
material
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Intellectual Property, including, without limitation, filing of applications for
renewal, affidavits of use and affidavits of incontestability.
(e) In the event that any material Intellectual Property owned by a Grantor
is infringed, misappropriated or diluted by a third party, the applicable
Grantor shall (i) at such Grantor's sole cost and expense, take such actions as
such Grantor shall reasonably deem appropriate under the circumstances to
protect such Intellectual Property and (ii) if such Intellectual Property is of
material economic value, promptly notify the Administrative Agent after it
learns of such infringement, misappropriation or dilution.
4.10 INVESTMENT PROPERTY; PARTNERSHIP/LLC INTERESTS.
(a) Without the prior written consent of the Administrative Agent, no
Grantor will (i) vote to enable, or take any other action to permit, any
Subsidiary Issuer to issue any Investment Property or Partnership/LLC Interests,
except for those additional Investment Property or Partnership/LLC Interests
that will be subject to the Security Interest granted herein in favor of the
Administrative Agent, or (ii) enter into any agreement or undertaking
restricting the right or ability of such Grantor or the Administrative Agent to
sell, assign or transfer any Investment Property or Partnership/LLC Interests or
Proceeds thereof. The Grantors will defend the right, title and interest of the
Administrative Agent in and to any Investment Property and Partnership/LLC
Interests against the claims and demands of all Persons whomsoever.
(b) If any Grantor shall become entitled to receive or shall receive (i)
any Certificated Securities (including, without limitation, any certificate
representing a stock dividend or a distribution in connection with any
reclassification, increase or reduction of capital or any certificate issued in
connection with any reorganization), option or rights in respect of the
ownership interests of any Issuer, whether in addition to, in substitution of,
as a conversion of, or in exchange for, any Investment Property, or otherwise in
respect thereof, or (ii) any sums paid upon or in respect of any Investment
Property upon the liquidation or dissolution of any Issuer, such Grantor shall
accept the same as the agent of the Administrative Agent and the Lenders, hold
the same in trust for the Administrative Agent and the Lenders, segregated from
other funds of such Grantor, and promptly deliver the same to the Administrative
Agent in accordance with the terms hereof.
4.11 EQUIPMENT. Each Grantor will maintain each item of Equipment in good
working order and condition (reasonable wear and tear and obsolescence
excepted), and in accordance with any manufacturer's manual, and will as quickly
as practicable provide all maintenance, service and repairs necessary for such
purpose and will promptly furnish to the Administrative Agent a statement
respecting any material loss or damage to any of the Equipment.
4.12 VEHICLES. Upon the request of the Administrative Agent upon the
occurrence and during the continuance of an Event of Default, all applications
for certificates of title or ownership indicating the Administrative Agent's
first priority Lien on the Vehicle covered by such certificate, and any other
necessary documentation, shall be filed in each office in each jurisdiction
which the Administrative Agent shall deem reasonably advisable to perfect its
Liens
17
on the Vehicles. Prior thereto, each certificate of title or ownership relating
to each Vehicle shall be maintained by the applicable Grantor in accordance with
Applicable Law to reflect the ownership interest of such Grantor.
4.13 FURTHER ASSURANCES. Upon the request of the Administrative Agent and
at the sole expense of the Grantors, each Grantor will promptly and duly execute
and deliver, and have recorded, such further instruments and documents and take
such further actions as the Administrative Agent 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, (i) with
respect to Material Government Contracts, Assignment Agreements and Notices of
Assignment, in form and substance the same as that set forth on Exhibit A-1 and
Exhibit A-2, respectively, in compliance with the Assignment of Claims Act (or
analogous state applicable Law) and (ii) all applications, certificates,
instruments, registration statements, and all other documents and papers the
Administrative Agent may reasonably request and as may be required by law in
connection with the obtaining of any consent, approval, registration,
qualification, or authorization of any Person deemed necessary or appropriate
for the effective exercise of any rights under this Agreement.
ARTICLE V.
REMEDIAL PROVISIONS
5.01 GENERAL REMEDIES. If an Event of Default shall occur and be
continuing, the Administrative Agent, on behalf of the Lenders, may exercise, in
addition to 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, all rights and remedies of a secured party under the UCC or any
other applicable Law. Without limiting the generality of the foregoing, the
Administrative 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 any Grantor or any other Person
(all and each of which demands, defenses, advertisements and notices are hereby
waived), may in such circumstances 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 Administrative 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 Administrative Agent may disclaim any
warranties of title, possession and quiet enjoyment. The Administrative Agent or
any Lender shall have the right upon any such public sale or sales, and, to the
extent permitted by law, upon any such private sale or sales, to purchase the
whole or any part of the Collateral so sold, free of any right or equity of
redemption in any Grantor, which right or equity is hereby waived and released.
Each Grantor further agrees, at the Administrative Agent's request, to assemble
the Collateral and make it available to the Administrative Agent at places which
the Administrative Agent shall reasonably select, whether at such Grantor's
premises or elsewhere. To the extent permitted by applicable Law, each Grantor
waives all claims, damages and demands it may acquire against the Administrative
Agent or any Lender arising out of the exercise by them of any rights hereunder
except to the
18
extent any such claims, damages, or demands result solely from the gross
negligence or willful misconduct of the Administrative Agent or any Lender, in
each case against whom such claim is asserted. 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 ten (10) days before such sale
or other disposition.
5.02 SPECIFIC REMEDIES.
(a) The Administrative Agent hereby authorizes each Grantor to collect such
Grantor's Accounts, under the Administrative Agent's direction and control;
provided that, the Administrative Agent may curtail or terminate such authority
at any time after the occurrence and during the continuance of an Event of
Default.
(b) Upon the occurrence and during the continuance of an Event of Default:
(i) the Administrative Agent may communicate with Account Debtors of
any Account subject to a Security Interest and upon the request of the
Administrative Agent, each Grantor shall notify (such notice to be in form
and substance satisfactory to the Administrative Agent) its Account Debtors
that such Accounts have been assigned to the Administrative Agent, for the
ratable benefit of itself and the Lenders;
(ii) each Grantor shall forward to the Administrative Agent, on the
last Business Day of each week, deposit slips related to all cash, money,
checks or any other similar items of payment received by the Grantor during
such week, and, if requested by the Administrative Agent, copies of such
checks or any other similar items of payment, together with a statement
showing the application of all payments on the Collateral during such week
and a collection report with regard thereto, in form and substance
satisfactory to the Administrative Agent;
(iii) whenever any Grantor shall receive any cash, money, checks or
any other similar items of payment relating to any Collateral (including
any Proceeds of any Collateral), such Grantor agrees that it will, within
one (1) Business Day of such receipt, deposit all such items of payment
into the Collateral Account or in a Deposit Account at a Controlled
Depositary. Until such Grantor shall deposit such cash, money, checks or
any other similar items of payment in the Collateral Account or in a
Deposit Account at a Controlled Depositary, such Grantor shall hold such
cash, money, checks or any other similar items of payment in trust for the
Administrative Agent and Lenders and as property of the Administrative
Agent and Lenders, separate from the other funds of such Grantor, and the
Administrative Agent shall have the right to transfer or direct the
transfer of the balance of each Deposit Account to the Collateral Account.
All such Collateral and Proceeds of Collateral received by the
Administrative Agent hereunder shall be held by the Administrative Agent in
the Collateral Account as collateral security for all the Obligations and
shall not constitute payment thereof until applied as provided in Section
5.04; and
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(iv) the Administrative Agent shall have the right to receive any and
all cash dividends, payments or distributions made in respect of any
Investment Property, or Partnership/LLC Interests or other Proceeds paid in
respect of any Investment Property, or Partnership/LLC Interests, and any
or all of any Investment Property, or Partnership/LLC Interests shall be
registered in the name of the Administrative Agent or its nominee, and the
Administrative Agent or its nominee may thereafter exercise (A) all voting,
corporate and other rights pertaining to such Investment Property, or
Partnership/LLC Interests at any meeting of shareholders, partners or
members of the relevant Issuers and (B) any and all rights of conversion,
exchange and subscription and any other rights, privileges or options
pertaining to such Investment Property, or Partnership/LLC Interests as if
it were the absolute owner thereof (including, without limitation, the
right to exchange at its discretion any and all of the Investment Property,
or Partnership/LLC Interests upon the merger, consolidation,
reorganization, recapitalization or other fundamental change in the
corporate, partnership or company structure of any Issuer or upon the
exercise by any Grantor or the Administrative Agent of any right, privilege
or option pertaining to such Investment Property, or Partnership/LLC
Interests, and in connection therewith, the right to deposit and deliver
any and all of the Investment Property, or Partnership/LLC Interests with
any committee, depositary, transfer agent, registrar or other designated
agency upon such terms and conditions as the Administrative Agent may
determine), all without liability except to account for property actually
received by it; but the Administrative Agent shall have no duty to any
Grantor to exercise any such right, privilege or option and the
Administrative Agent and the Lenders shall not be responsible for any
failure to do so or delay in so doing. In furtherance thereof, each Grantor
hereby authorizes and instructs each Issuer with respect to any Collateral
consisting of Investment Property and Partnership/LLC Interests to (i)
comply with any instruction received by it from the Administrative Agent in
writing that (A) states that an Event of Default has occurred and is
continuing and (B) is otherwise in accordance with the terms of this
Agreement, without any other or further instructions from such Grantor, and
each Grantor agrees that each Issuer shall be fully protected in so
complying, and (ii) except as otherwise expressly permitted hereby, pay any
dividends, distributions or other payments with respect to any Investment
Property, or Partnership/LLC Interests directly to the Administrative
Agent.
(c) Unless an Event of Default shall have occurred and be continuing and
the Administrative Agent shall have given notice to the relevant Grantor of the
Administrative Agent's intent to exercise its corresponding rights pursuant to
Section 5.02(b), each Grantor shall be permitted to receive all cash dividends,
payments or other distributions made in respect of any Investment Property and
Partnership/LLC Interests, in each case paid in the normal course of business of
the relevant Issuer and consistent with past practice, to the extent permitted
in the Credit Agreement, and to exercise all voting and other corporate, company
and partnership rights with respect to any Investment Property and
Partnership/LLC Interests; provided that, no vote shall be cast or other
corporate, company and partnership right exercised or other action taken which,
in the Administrative Agent's reasonable judgment, would impair the Collateral
or which would result in a Default or Event of Default under any provision of
the Credit Agreement, this Agreement or any other Loan Document.
20
5.03 APPLICATION OF PROCEEDS. At such intervals as may be agreed upon by
the Borrower and the Administrative Agent, or, if an Event of Default shall have
occurred and be continuing, at any time at the Administrative Agent's election,
the Administrative Agent may apply all or any part of the Collateral or any
Proceeds of the Collateral in payment in whole or in part of the Obligations
(after deducting all reasonable costs and expenses of every kind incurred in
connection therewith 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
Administrative Agent and the Lenders hereunder, including, without limitation,
reasonable attorneys' fees and disbursements) in accordance with Section 8.03 of
the Credit Agreement. Any balance of such Proceeds remaining after shall be paid
over to the Borrower, on behalf of the Grantors, or to whomsoever (if such
Person is not a Grantor) may be lawfully entitled to receive the same. Only
after (i) the payment by the Administrative Agent of any other amount required
by any provision of law, including, without limitation, Section 9-610 and
Section 9-615 of the UCC and (ii) the payment in full of the Obligations and the
termination of the Commitments, shall the Administrative Agent account for the
surplus, if any, to any Grantor, or to whomever may be lawfully entitled to
receive the same (if such Person is not a Grantor).
5.04 WAIVER, DEFICIENCY. Each Grantor hereby waives, to the extent
permitted by applicable Law, all rights of redemption, appraisement, valuation,
stay, extension or moratorium now or hereafter in force under any applicable Law
in order to prevent or delay the enforcement of this Agreement or the absolute
sale of the Collateral or any portion thereof. Each Grantor shall remain liable
for any deficiency if the proceeds of any sale or other disposition of the
Collateral are insufficient to pay its Obligations and the reasonable fees and
disbursements of any attorneys employed by the Administrative Agent or any
Lender to collect such deficiency.
ARTICLE VI.
THE ADMINISTRATIVE AGENT
6.01 ADMINISTRATIVE AGENT'S APPOINTMENT AS ATTORNEY-IN-FACT.
(a) Each Grantor hereby irrevocably constitutes and appoints the
Administrative 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 such Grantor and in the name of
such Grantor or in its own name, 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 the generality of the
foregoing, each Grantor hereby gives the Administrative Agent the power and
right, on behalf of such Grantor, without notice to or assent by such Grantor,
to do any or all of the following only upon the occurrence and continuation of
an Event of Default:
(i) in the name of such Grantor or its own name, or otherwise, take
possession of and indorse and collect any checks, drafts, notes, acceptances or
other instruments for the payment of moneys due under any Account or with
respect to any other Collateral and file any claim or take any other action or
proceeding in any court of law or equity or otherwise
21
deemed appropriate by the Administrative Agent for the purpose of collecting any
and all such moneys due under any Account or with respect to any other
Collateral whenever payable;
(ii) in the case of any Intellectual Property, execute and deliver, and
have recorded, any and all agreements, instruments, documents and papers as the
Administrative Agent may request to evidence the Administrative Agent's and the
Lenders' security interest in such Intellectual Property and the goodwill and
General Intangibles of such Grantor relating thereto or represented thereby;
(iii) pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral, effect any repairs or any insurance called
for by the terms of this Agreement and pay all or any part of the premiums
therefor and the costs thereof,
(iv) execute, in connection with any sale provided for in this
Agreement, any endorsements, assignments or other instruments of conveyance or
transfer with respect to the Collateral; and
(v) (A) 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 Administrative Agent or as the Administrative Agent shall
direct; (B) ask or demand for, collect, and 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) 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) 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 portion thereof and to enforce any
other right in respect of any Collateral; (E) defend any suit, action or
proceeding brought against such Grantor with respect to any Collateral; (F)
settle, compromise or adjust any such suit, action or proceeding and, in
connection therewith, give such discharges or releases as the Administrative
Agent may deem appropriate; (G) assign any Copyright, Patent or Trademark (along
with the goodwill of the business to which any such Copyright, Patent or
Trademark pertains), for such term or terms, on such conditions, and in such
manner, as the Administrative Agent shall in its sole discretion determine; and
(H) generally, 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
Administrative Agent were the absolute owner thereof for all purposes, and do,
at the Administrative Agent's option and such Grantor's expense, at any time, or
from time to time, all acts and things which the Administrative Agent deems
necessary to protect, preserve or realize upon the Collateral and the
Administrative Agent's and the Lenders' Security Interests therein and to effect
the intent of this Agreement, all as fully and effectively as such Grantor might
do.
(b) If any Grantor fails to perform or comply with any of its agreements
contained herein, the Administrative Agent, at its option, but without any
obligation so to do, may perform or comply, or otherwise cause performance or
compliance, with such agreement in accordance with the provisions of Section
6.01(a).
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(c) The reasonable expenses of the Administrative Agent incurred in
connection with actions taken pursuant to the terms of this Agreement, together
with interest thereon at a rate per annum equal to the highest rate per annum at
which interest would then be payable on any category of past due Base Rate Loans
under the Credit Agreement, from the date of payment by the Administrative Agent
to the date reimbursed by the relevant Grantor, shall be payable by such Grantor
to the Administrative Agent on demand.
(d) Each Grantor hereby ratifies all that said attorneys shall lawfully do
or cause to be done by virtue hereof in accordance with Section 6.01(a). All
powers, authorizations and agencies contained in this Agreement are coupled with
an interest and are irrevocable until this Agreement is terminated and the
Security Interests created hereby are released.
6.02 DUTY OF ADMINISTRATIVE AGENT. The Administrative 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 UCC or otherwise, shall
be to deal with it in the same manner as the Administrative Agent deals with
similar property for its own account. Neither the Administrative Agent, any
Lender nor any of their respective officers, directors, employees or agents
shall be liable for failure to demand, collect or realize upon any 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 any Grantor or any
other Person or to take any other action whatsoever with regard to the
Collateral or any part thereof. The powers conferred on the Administrative Agent
and the Lenders hereunder are solely to protect the Administrative Agent's and
the Lenders' interests in the Collateral and shall not impose any duty upon the
Administrative Agent or any Lender to exercise any such powers. The
Administrative 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 any Grantor for any act or failure to act hereunder, except for
their own gross negligence or willful misconduct.
6.03 AUTHORITY OF ADMINISTRATIVE AGENT. Each Grantor acknowledges that the
rights and responsibilities of the Administrative Agent under this Agreement
with respect to any action taken by the Administrative Agent or the exercise or
non-exercise by the Administrative 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 Administrative Agent and the
Lenders, be governed by the Credit Agreement and by such other agreements with
respect thereto as may exist from time to time among them, but, as between the
Administrative Agent and the Grantors, the Administrative 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 no Grantor shall be under any
obligation, or entitlement to make any inquiry respecting such authority.
ARTICLE VII.
MISCELLANEOUS
7.01 AMENDMENTS IN WRITING. None of the terms or provisions of this
Agreement may be waived, amended, supplemented or otherwise modified except in
accordance with Section 10.01 of the Credit Agreement.
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7.02 NOTICES. All notices, requests and demands to or upon the
Administrative Agent or any Grantor hereunder shall be effected in the manner
provided for in Section 10.02 of the Credit Agreement.
7.03 NO WAIVER BY COURSE OF CONDUCT, CUMULATIVE REMEDIES. Neither the
Administrative Agent nor any Lender shall by any act (except by a written
instrument pursuant to Section 7.01), 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. No failure to exercise, nor any delay in
exercising on the part of the Administrative 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
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Administrative 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 Administrative 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
other rights or remedies provided by law.
7.04 ENFORCEMENT EXPENSES, INDEMNIFICATION.
(a) Each Grantor agrees to pay or reimburse each Lender and the
Administrative Agent for all its reasonable costs and expenses incurred in
connection with enforcing or preserving any rights under this Agreement and the
other Loan Documents to which such Grantor is a party, (including, without
limitation, in connection with any workout, restructuring, bankruptcy or other
similar proceeding) including, without limitation, the reasonable fees and
disbursements of counsel to each Lender and of counsel to the Administrative
Agent.
(b) Each Grantor agrees to pay, and to save the Administrative Agent and
the Lenders harmless from, any and all liabilities with respect to, or resulting
from any delay in paying, any and all stamp, excise, sales or other taxes (in
each case, subject to Section 3.01 of the Credit Agreement) which may be payable
or determined to be payable with respect to any of the Collateral or in
connection with any of the transactions contemplated by this Agreement.
(c) Each Grantor agrees to pay, and to save the Administrative Agent and
the Lenders harmless from any and all liabilities, obligations, losses, damages,
penalties, costs and expenses in connection with actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with respect
to the execution, delivery, enforcement, performance and administration of this
Agreement to the extent any Grantor would be required to do so pursuant to
Section 10.05 of the Credit Agreement.
(d) The agreements in this Section 7.04 shall survive termination of the
Commitments and repayment of the Obligations and all other amounts payable under
the Credit Agreement and the other Loan Documents.
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7.05 WAIVER OF JURY TRIAL. Each party to this Agreement hereby expressly
waives any right to trial by jury of any claim, demand, action or cause of
action arising hereunder or in any way connected with or related or incidental
to the dealings of the parties hereto or any of them with respect to this
Agreement, or the transactions related thereto, in each case whether now
existing or hereafter arising, and whether founded in contract or tort or
otherwise; and each party hereby agrees and consents that any such claim,
demand, action or cause of action shall be decided by court trial without a
jury, and that any party to this Agreement may file an original counterpart or a
copy of this section with any court as written evidence of the consent of the
signatories hereto to the waiver of their right to trial by jury.
7.06 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
successors and assigns of each Grantor and shall inure to the benefit of each
Grantor (and shall bind all Persons who become bound as a Grantor to this
Collateral Agreement), the Administrative Agent and the Lenders and their
successors and assigns; provided that no Grantor may assign, transfer or
delegate any of its rights or obligations under this Agreement without the prior
written consent of the Administrative Agent (given in accordance with Section
7.01).
7.07 SET-OFF. Each Grantor hereby irrevocably authorizes the Administrative
Agent and each Lender at any time and from time to time pursuant to Section
10.09 of the Credit Agreement, without notice to such Grantor or any other
Grantor, any such notice being expressly waived by each Grantor, to set-off and
appropriate and apply any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by the
Administrative Agent or such Lender to or for the credit or the account of such
Grantor, or any part thereof in such amounts as the Administrative Agent or such
Lender may elect, against and on account of the obligations and liabilities of
such Grantor to the Administrative Agent or such Lender hereunder and claims of
every nature and description of the Administrative Agent or such Lender against
such Grantor, in any currency, whether arising hereunder, under the Credit
Agreement, any other Loan Document or otherwise, as the Administrative Agent or
such Lender may elect, whether or not the Administrative Agent or any Lender has
made any demand for payment and although such obligations, liabilities and
claims may be contingent or unmatured. The Administrative Agent and each Lender
shall notify such Grantor promptly of any such set-off and the application made
by the Administrative Agent or such Lender of the proceeds thereof; provided
that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of the Administrative Agent and each Lender
under this Section 7.07 are in addition to other rights and remedies (including,
without limitation, other rights of set-off) which the Administrative Agent or
such Lender may have.
7.08 COUNTERPARTS. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by
telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
7.09 SEVERABILITY. Any provision of this Agreement or any other Loan
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective only to the extent of such prohibition or
unenforceability without invalidating the
25
remainder of such provision or the remaining provisions hereof or thereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
7.10 SECTION HEADING. 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.
7.11 INTEGRATION. This Agreement and the other Loan Documents represent the
agreement of the Grantors, the Administrative Agent and the Lenders with respect
to the subject matter hereof and thereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to subject matter hereof and thereof not expressly set forth or
referred to herein or in the other Loan Documents.
7.12 GOVERNING LAW. This Agreement shall be governed by, construed,
interpreted and enforced in accordance with, the laws of the State of New York
(including Section 5-1401 and Section 5-1402 of the General Obligations Law of
the State of New York) without regard to the conflicts or choice of law
provisions of such state.
7.13 CONSENT TO JURISDICTION. Each Grantor hereby irrevocably consents to
the personal jurisdiction of the state and federal courts located in New York,
New York, in any action, claim or other proceeding arising out of any dispute in
connection with this Agreement, the Notes and the other Loan Documents, any
rights or obligations hereunder or thereunder, or the performance of such rights
and obligations. Each Grantor hereby irrevocably consents to the service of a
summons and complaint and other process in any action, claim or proceeding
brought by the Administrative Agent or any Lender in connection with this
Agreement, the Notes or the other Loan Documents, any rights or obligations
hereunder or thereunder, or the performance of such rights and obligations, on
behalf of itself or its property, in the manner specified in Section 10.02 of
the Credit Agreement. Nothing in this Section 7.13 shall affect the right of the
Administrative Agent or any Lender to serve legal process in any other manner
permitted by applicable Law or affect the right of the Administrative Agent or
any Lender to bring any action or proceeding against any Grantor or its
properties in the courts of any other jurisdictions.
7.14 ACKNOWLEDGEMENTS.
(a) Each Grantor hereby acknowledges that (i) it has been advised by
counsel in the negotiation, execution and delivery of this Agreement and the
other Loan Documents to which it is a party, (ii) neither the Administrative
Agent nor any Lender has any fiduciary relationship with or duty to any Grantor
arising out of or in connection with this Agreement or any of the other Loan
Documents, and the relationship between the Grantors, on the one hand, and the
Administrative Agent and Lenders, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor, and (iii) no joint venture is
created hereby or by the other Loan Documents or otherwise exists by virtue of
the transactions contemplated hereby or thereby among the Lenders or among the
Grantors and the Lenders.
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(b) Each Issuer party to this Agreement acknowledges receipt of a copy of
this Agreement and agrees to be bound thereby and to comply with the terms
thereof insofar as such terms are applicable to it. Each Issuer agrees to
provide such notices to the Administrative Agent as may be necessary to give
full effect to the provisions of this Agreement.
7.15 ADDITIONAL GRANTORS. Each Subsidiary of the Borrower that is required
to become a party to this Agreement pursuant to Section 6.09 of the Credit
Agreement shall become a Grantor for all purposes of this Agreement upon
execution and delivery by such Subsidiary of a Joinder Agreement in form and
substance satisfactory to the Administrative Agent.
7.16 RELEASES.
(a) At such time as the Obligations shall have been paid in full and the
Commitments have been terminated, the Collateral 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 Administrative Agent and
each 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 Grantors. At the request and sole expense of any Grantor following
any such termination, the Administrative Agent shall deliver to such Grantor any
Collateral held by the Administrative Agent hereunder, and execute and deliver
to such Grantor such documents as such Grantor shall reasonably request to
evidence such termination
(b) If any of the Collateral shall be sold, transferred or otherwise
disposed of by any Grantor in a transaction permitted by the Credit Agreement,
then the Administrative Agent, at the request and sole expense of such Grantor,
shall execute and deliver to such Grantor all releases or other documents
reasonably necessary or desirable for the release of the Liens created hereby on
such Collateral. In the event that all the capital stock of any Grantor shall be
sold, transferred or otherwise disposed of in a transaction permitted by the
Credit Agreement, then, at the request of the Borrower and at the expense of the
Grantors, such Grantor shall be released from its obligations hereunder;
provided that the Borrower shall have delivered to the Administrative Agent, at
least five (5) Business Days prior to the date of the proposed release, a
written request for release identifying the relevant Grantor and the terms of
the sale or other disposition in reasonable detail, including the price thereof,
together with a certification by the Borrower stating that such transaction is
in compliance with the Credit Agreement and the other Loan Documents.
[Signature Pages to Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Collateral
Agreement to be executed under seal by their duly authorized officers, all as of
the day and year first written above.
ARMOR HOLDINGS, INC., as Grantor
By:___________________________________
Name:______________________________
Title:_____________________________
911EP, INC.
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
AHI PROPERTIES I, INC.
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
ARMOR BRANDS, INC.
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
ARMORGROUP NORTH AMERICA, INC.
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
ARMORGROUP SERVICES, LLC
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
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ARMOR HOLDINGS FORENSICS, INC.
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
ARMOR HOLDINGS GP, LLC
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
ARMOR HOLDINGS LP, LLC
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
ARMOR HOLDINGS MOBILE SECURITY, L.L.C.
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
ARMOR HOLDINGS PAYROLL SERVICES, LLC
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
ARMOR HOLDINGS PRODUCTS, INC.
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
29
ARMOR HOLDINGS PROPERTIES, INC.
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
ARMOR SAFETY PRODUCTS COMPANY
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
B-SQUARE, INC.
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
BREAK-FREE ARMOR CORP.
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
BREAK-FREE, INC.
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
CASCO INTERNATIONAL, INC.
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
CDR INTERNATIONAL, INC.
By:____________________________________________
Name:__________________________________________
30
Title:_________________________________________
DEFENSE TECHNOLOGY CORPORATION OF AMERICA
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
IDENTICATOR, INC.
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
INTERNATIONAL TRAINING, INC.
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
ITI LIMITED PARTNERSHIP
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
MONADNOCK LIFETIME PRODUCTS, INC.
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
MONADNOCK LIFETIME PRODUCTS, INC.
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
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MONADNOCK POLICE TRAINING COUNCIL, INC.
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
NAP PROPERTIES, LTD., A CALIFORNIA
LIMITED PARTNERSHIP
By: NAP PROPERTY MANAGERS LLC,
its sole General Partner
By: ARMOR HOLDINGS PROPERTIES, INC.,
its sole Member
By:________________________________
Name:______________________________
Title:_____________________________
NAP PROPERTY MANAGERS, LLC
By: ARMOR HOLDINGS PROPERTIES, INC., its sole
Member
By:_______________________________________
Name:_____________________________________
Title:____________________________________
NETWORK AUDIT SYSTEMS, INC.
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
NEW TECHNOLOGIES ARMOR, INC.
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
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X'XXXX-XXXX & XXXXXXXXXX ARMORING
COMPANY, L.L.C.
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
O'GARA SECURITY ASSOCIATES, INC.
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
PARVUS CRISIS MANAGEMENT CORPORATION
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
PRO-TECH ARMORED PRODUCTS OF
MASSACHUSETTS, INC.
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
RAMTECH DEVELOPMENT CORP.
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
SAFARILAND GOVERNMENT SALES, INC.
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
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SAFARI LAND LTD., INC.
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
SPEEDFEED ACQUISITION CORP.
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
THE O'GARA COMPANY
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
THE PARVUS COMPANY
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
THE PARVUS INTERNATIONAL INFORMATION
COMPANY
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
U.S. DEFENSE SYSTEMS, LLC
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
34
BANK OF AMERICA, N.A., as Administrative Agent
By:____________________________________________
Name: Xxxxxxx Xxxxxxxx
Title: Vice President and Senior Agency Officer
35
