OTHERWISE, HAVE BECOME, AFTER THE DATE HEREOF, THE "BENEFICIAL
OWNER" (WITHIN THE MEANING OF SUCH TERM UNDER RULE 13D-3 UNDER THE EXCHANGE ACT)
OF EQUITY INTERESTS OF BORROWER REPRESENTING VOTING POWER HAVING THE RIGHT TO
ELECT AT LEAST 50% OF THE MEMBERS OF THE GOVERNING BODY OF BORROWER; OR (II) THE
GOVERNING BODY OF KMG CHEMICALS SHALL CEASE TO CONSIST OF A MAJORITY OF THE
INDIVIDUALS WHO CONSTITUTED THE GOVERNING BODY OF KMG CHEMICALS AS OF THE DATE
HEREOF OR WHO SHALL HAVE BECOME A MEMBER THEREOF SUBSEQUENT TO THE DATE HEREOF
AFTER HAVING BEEN NOMINATED, OR OTHERWISE APPROVED IN WRITING, BY AT LEAST A
MAJORITY OF INDIVIDUALS WHO CONSTITUTE THE GOVERNING BODY OF KMG CHEMICALS AS OF
THE DATE HEREOF; OR (B) BORROWER SHALL CEASE TO OWN AT LEAST 99% OF THE EQUITY
INTERESTS AND VOTING POWER OF KMEX AND KMG ITALIA.
"CLOSING" MEANS THE TIME AND PLACE OF ACTUAL EXECUTION AND DELIVERY OF THIS
AGREEMENT, THE NOTES, AND EXCEPT AS WAIVED BY AGENT, THE OTHER DOCUMENTS,
INSTRUMENTS, AND THINGS REQUIRED BY SECTION 7.1 HEREOF.
"CLOSING BALANCE SHEET" MEANS AN UNAUDITED BALANCE SHEET OF THE BORROWER
CONSOLIDATED GROUP DATED AS OF THE TIME IMMEDIATELY FOLLOWING THE CLOSING, SUCH
BALANCE SHEET TO BE CALCULATED BASED UPON THE MOST RECENT FINANCIAL STATEMENTS
AVAILABLE TO THE BORROWER, BUT ON A PRO-FORMA BASIS AFTER TAKING INTO ACCOUNT
THE TRANSACTIONS THAT ARE TO OCCUR ON THE DATE OF CLOSING.
"CLOSING CERTIFICATES" MEANS CERTIFICATES OF EVEN DATE HEREWITH, SIGNED BY A
DULY AUTHORIZED REPRESENTATIVE OF EACH BORROWER.
"COLLATERAL" MEANS ALL OF THE ASSETS OF BORROWERS OF EVERY KIND, NATURE AND
DESCRIPTION, WHEREVER LOCATED, WHETHER NOW OWNED OR HEREAFTER ACQUIRED (OTHER
THAN THE EXCLUDED COLLATERAL AND INTERESTS IN ANY LENDER PARTY SWAP DOCUMENTS),
AND INCLUDING THE FOLLOWING:
5
(A)
ALL AMOUNTS THAT MAY BE OWING FROM TIME TO TIME BY ANY LENDER PARTY
TO BORROWER IN ANY CAPACITY, INCLUDING, WITHOUT LIMITATION, ANY BALANCE OR SHARE
BELONGING TO BORROWER, OF ANY DEPOSIT ACCOUNTS OR OTHER ACCOUNT WITH ANY LENDER
PARTY;
(B)
THE PLEDGED COLLATERAL;
(C)
THE MORTGAGED PROPERTY AND THE MORTGAGED PROPERTY DOCUMENTS;
(D)
ALL OF BORROWERS' ASSETS WHICH ARE OR MAY BE SUBJECT TO ARTICLE 9
OF THE UNIFORM COMMERCIAL CODE, TOGETHER WITH ALL REPLACEMENTS THEREFORE,
ADDITIONS AND ACCESSIONS THERETO, AND PROCEEDS (INCLUDING, BUT WITHOUT
LIMITATION, INSURANCE PROCEEDS) AND PRODUCTS THEREOF, INCLUDING, WITHOUT
LIMITATION, THE FOLLOWING:
(1)
ACCOUNTS;
(2)
CHATTEL PAPER;
(3)
COMMERCIAL TORT CLAIMS;
(4)
DEPOSIT ACCOUNTS;
(5)
DOCUMENTS;
(6)
EQUIPMENT;
(7)
GENERAL INTANGIBLES;
(8)
GOODS;
(9)
INSTRUMENTS;
(10)
INTELLECTUAL PROPERTY RIGHTS;
(11)
INVENTORY;
(12)
INVESTMENT PROPERTY;
(13)
LETTER-OF-CREDIT RIGHTS;
(14)
PAYMENT INTANGIBLES;
(15)
SOFTWARE;
(16)
SUPPORTING OBLIGATIONS;
(17)
RIGHTS AS SELLER OF GOODS AND RIGHTS TO RETURNED OR REPOSSESSED
GOODS;
6
(18)
ALL EXISTING AND FUTURE LEASES AND USE AGREEMENTS OF PERSONAL
PROPERTY ENTERED INTO BY BORROWER AS LESSOR WITH OTHER PERSONS AS LESSEES,
INCLUDING WITHOUT LIMITATION THE RIGHT TO RECEIVE AND COLLECT ALL RENTALS AND
OTHER MONIES, INCLUDING SECURITY DEPOSITS, AT ANY TIME PAYABLE UNDER SUCH LEASES
AND AGREEMENTS;
(19)
ANY