TERM
OF THIS AGREEMENT.
"CASUALTY OR CONDEMNATION EVENT" MEANS, WITH RESPECT TO ANY PROPERTY OF
BORROWER, ANY LOSS OF, DAMAGE TO OR CONDEMNATION OR OTHER TAKING OF, SUCH
PROPERTY FOR WHICH BORROWER IS ENTITLED TO RECEIVE, OR RECEIVES, INSURANCE
PROCEEDS, CONDEMNATION PROCEEDS OR OTHER SIMILAR PROCEEDS OR AWARDS.
3
"CHANGE IN CONTROL" MEANS AN EVENT OR SERIES OF EVENTS BY WHICH (A) (I) ANY
PERSON OR GROUP OF PERSONS ACTING IN CONCERT OR OTHER GROUP SHALL, AS A RESULT
OF A TENDER OR EXCHANGE OFFER, OPEN MARKET PURCHASES, PRIVATELY NEGOTIATED
PURCHASES OR 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.
"CLOSING" MEANS THE TIME AND PLACE OF ACTUAL EXECUTION AND DELIVERY OF THIS
AGREEMENT AND, EXCEPT AS WAIVED BY BANK, THE OTHER DOCUMENTS, INSTRUMENTS AND
THINGS REQUIRED BY SECTION 6.1 HEREOF.
"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 WACHOVIA DOCUMENTS), AND
INCLUDING THE FOLLOWING:
(A)
ALL AMOUNTS THAT MAY BE OWING FROM TIME TO TIME
BY BANK TO BORROWER IN ANY CAPACITY, INCLUDING, WITHOUT LIMITATION, ANY BALANCE
OR SHARE BELONGING TO BORROWER, OF ANY DEPOSIT ACCOUNTS OR OTHER ACCOUNT WITH
BANK;
(B)
THE PLEDGED COLLATERAL;
(C)
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;
4
(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;
(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