EXISTING AND FUTURE LEASES AND USE AGREEMENTS OF PERSONAL
PROPERTY ENTERED INTO BY BORROWER AS LESSEE WITH OTHER PERSONS AS LESSORS,
INCLUDING WITHOUT LIMITATION THE LEASEHOLD INTEREST OF BORROWER IN SUCH
PROPERTY, AND ALL OPTIONS TO PURCHASE SUCH PROPERTY OR TO EXTEND ANY SUCH LEASE
OR AGREEMENT;
(20)
FIXTURES;
(21)
ALL MONEYS OF BORROWER AND ALL BANK ACCOUNTS, DEPOSIT ACCOUNTS,
LOCK BOXES AND OTHER ACCOUNTS IN WHICH SUCH MONEYS MAY AT ANY TIME BE ON DEPOSIT
OR HELD AND ALL INVESTMENTS OR SECURITIES IN WHICH SUCH MONEYS MAY AT ANY TIME
BE INVESTED AND ALL CERTIFICATES, INSTRUMENTS AND DOCUMENTS FROM TIME TO TIME
REPRESENTING OR EVIDENCING ANY OF THE SAME;
(22)
ALL CLAIMS OF BORROWER IN ANY PENDING LITIGATION AND/OR CLAIMS FOR
ANY INSURANCE PROCEEDS;
(23)
ALL RECORDS PERTAINING TO ANY OF THE COLLATERAL;
(E)
ANY AND ALL OTHER ASSETS OF ANY BORROWER PARTY OF ANY KIND,
NATURE, OR DESCRIPTION AND WHICH ARE INTENDED TO SERVE AS COLLATERAL FOR THE
LOANS UNDER ANY ONE OR MORE OF THE SECURITY DOCUMENTS; AND
(F)
ALL INTEREST, DIVIDENDS, PROCEEDS, PRODUCTS, RENTS, ROYALTIES,
ISSUES AND PROFITS OF ANY OF THE PROPERTY DESCRIBED ABOVE, INCLUDING, WITHOUT
LIMITATION, ALL MONIES DUE AND TO BECOME DUE WITH RESPECT TO SUCH PROPERTY,
TOGETHER WITH ALL RIGHT TO RECEIVE THE SAME, AND ALL NOTES, CERTIFICATES OF
DEPOSIT, CHECKS AND OTHER INSTRUMENTS AND PROPERTY FROM TIME TO TIME DELIVERED
TO OR OTHERWISE POSSESSED BY LENDER PARTY FOR OR ON BEHALF OF BORROWER PARTY IN
SUBSTITUTION FOR OR IN ADDITION TO ANY OF SAID PROPERTY.
"COLLATERAL AGENT" MEANS WACHOVIA, IN ITS CAPACITY AS COLLATERAL AGENT UNDER THE
INTERCREDITOR AGREEMENT, ITS SUCCESSORS AND ASSIGNS, AND UNLESS THE CONTEXT MAY
CLEARLY REQUIRE TO THE CONTRARY, ANY REFERENCE TO "COLLATERAL AGENT" IN ANY LOAN
DOCUMENT SHALL MEAN THE COLLATERAL AGENT IN ITS CAPACITY AS THE COLLATERAL
AGENT.
"COLLATERAL AGENT'S LIEN" MEANS THE LIENS GRANTED TO COLLATERAL AGENT BY ANY
BORROWER PARTY PURSUANT TO THIS AGREEMENT AND THE OTHER SECURITY DOCUMENTS.
"COLLATERAL REPORT" MEANS A FULLY COMPLETED AND DULY EXECUTED COLLATERAL REPORT
AND BORROWING BASE CERTIFICATE DELIVERED BY BORROWERS TO AGENT AND IN THE FORM
ATTACHED HERETO AS EXHIBIT "B".
"COMMITMENTS" MEANS THE REVOLVING LOAN COMMITMENT, THE SWING LINE LOAN
COMMITMENT, THE TERM LOAN COMMITMENT, AND THE LETTER OF CREDIT COMMITMENT.
7
"COMPLIANCE CERTIFICATE" MEANS A FULLY COMPLETED AND DULY EXECUTED CERTIFICATE
DELIVERED BY BORROWERS TO AGENT AND IN THE FORM ATTACHED HERETO AS EXHIBIT "C".
"CONSOLIDATED BASIS" MEANS THE CONSOLIDATION OF THE ASSETS, LIABILITIES, INCOME
AND LOSSES, AS APPLICABLE, OF THE BORROWER CONSOLIDATED GROUP; PROVIDED,
HOWEVER, THAT THERE SHALL BE EXCLUDED:
(A)
KMEX IF (I) THE GROSS REVENUES OF KMEX ARISING FROM SALES TO ANY
PERSON OTHER THAN BORROWERS FOR THE TRAILING TWELVE (12) MONTHS EXCEEDS
$2,000,000.00, OR (II) THE EQUITY OWNER'S EQUITY, AS REFLECTED ON KMEX'S BALANCE
SHEET, IS MORE THAN $5,000,000.00; AND
(B)
KMG ITALIA IF (I) THE EBIDA OF KMG ITALIA EXCEEDS 15% OF THE EBIDA
OF THE BORROWER CONSOLIDATED GROUP (INCLUDING KMG ITALIA), OR (II) THE TANGIBLE
NET WORTH