DATED 12 FEBRUARY 1999
ARMOR HOLDINGS, INC.,
- and -
CANADIAN IMPERIAL BANK OF COMMERCE
----------------------------------------
SECURITY DEED
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CADWALADER
London
TABLE OF CONTENTS
CLAUSE HEADING PAGE NUMBER
1. DEFINITIONS AND INTERPRETATION............................................... 1
2. COVENANT TO PAY.............................................................. 3
3. CHARGES...................................................................... 3
4. COVENANTS BY THE CHARGOR..................................................... 4
5. DIVIDENDS AND VOTING RIGHTS.................................................. 6
6. FURTHER ASSURANCE............................................................ 7
7. REPRESENTATIONS AND WARRANTIES BY THE CHARGOR................................ 7
8. POWERS OF THE AGENT.......................................................... 8
9. APPOINTMENT OF RECEIVER...................................................... 9
10. POWER OF ATTORNEY............................................................ 11
11. PROTECTION OF PURCHASERS..................................................... 12
12. SET-OFF...................................................................... 12
13. CURRENCY..................................................................... 13
14. COSTS........................................................................ 13
15. APPLICATION.................................................................. 14
16. NOTICES...................................................................... 14
17. CONTINUING SECURITY, NEW ACCOUNTS AND NON-MERGER............................. 14
18. RELEASE AND DISCHARGE OF SECURITY............................................ 15
19. ASSIGNMENT................................................................... 15
20. MISCELLANEOUS................................................................ 16
21. PROVISIONS SEVERABLE......................................................... 16
22. THE AGENT'S DISCRETION AND ENFORCEMENT COSTS................................. 16
23. AMENDMENTS................................................................... 17
24. LAW AND JURISDICTION......................................................... 17
SCHEDULE 1 19
Description of Shares............................................................ 19
SCHEDULE 2 20
Form of Notice of Acceptance of Appointment as Process Agent..................... 20
THIS SECURITY DEED is made on the 12th day of February 1999.
BY:
(1) ARMOR HOLDINGS, INC., a Delaware corporation whose principal place of
business is at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ (the "CHARGOR")
IN FAVOUR OF:
(2) CANADIAN IMPERIAL BANK OF COMMERCE of ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ in its capacity as agent and trustee for the
Secured Parties (as defined below) (the "AGENT", which expression
shall include any assignee thereof or successor in title thereto in
relation to any of the Secured Obligations).
WHEREAS:
(A) By a credit agreement (the "CREDIT AGREEMENT") dated of even date
herewith between the Chargor, the Lenders (as defined below),
Nationsbank, N.A. (in its capacity as documentation agent) and the
Agent, the Lenders have agreed to make available certain facilities
on the terms and conditions contained in the Credit Agreement.
(B) It is a term of the Credit Agreement that the Chargor enters into this
Security Deed.
NOW THIS DEED WITNESSETH as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Security Deed the following words and expressions shall have
the respective meanings ascribed to them:
"BASE RATE" has the meaning ascribed to that term in the Credit Agreement;
"BORROWER PLEDGE AGREEMENT" has the meaning ascribed to that term in the Credit Agreement;
"BUSINESS DAY" has the meaning ascribed to that term in the Credit Agreement;
"CHARGED PROPERTY" means the property, assets and income of the
Chargor mortgaged, assigned or charged to the Agent (whether by way
of legal mortgage, assignment, fixed or floating charge) by or
pursuant to this Security Deed and each and every part thereof;
"ENGLISH SUBSIDIARY" means any direct Subsidiary of the Chargor that is incorporated in England
and Wales;
"EVENT OF DEFAULT" has the meaning ascribed to that term in the
Credit Agreement;
"ISSUERS" mean, from time to time, each of the companies listed as
such in Schedule 1 at such time and "ISSUER" shall be construed
accordingly;
"LENDERS" has the meaning ascribed to that term in the Credit
Agreement and "LENDER" shall be construed accordingly;
"RECEIVER" means an administrative receiver or a receiver appointed
pursuant to the provisions of this Security Deed or pursuant to any
applicable law and such expression shall include, without limitation,
a receiver and manager;
"SECURED OBLIGATIONS" means the actual, contingent, present and/or
future obligations and liabilities of the Chargor to the Secured
Parties under or pursuant to the Credit Agreement, the Borrower
Pledge Agreement, the Subsidiaries Pledge Agreement and this Security
Deed;
"SECURED PARTIES" means all and each of the Agent and the Lenders
and "SECURED PARTY" shall be construed accordingly;
"SHARES" means the shares which are from time to time listed or
described in Schedule 1 at such time (or would, but for the failure
of the Agent to amend Schedule 1 at the time and in the manner
provided herein, have been so listed or described) together with all
dividends or other distributions payable thereon and all allotments,
accretions, offers, rights, bonuses, benefits and advantages
whatsoever (whether by way of conversion, redemption, preference,
option or otherwise) which exist, accrue, are offered or arise in
respect thereof;
"SUBSIDIARIES PLEDGE AGREEMENT" has the meaning ascribed to that term
in the Credit Agreement;
"SUBSIDIARY" has the meaning ascribed to it by section 736 of the
Companies ▇▇▇ ▇▇▇▇ and "SUBSIDIARIES" shall be construed accordingly;
and
"VALUE ADDED TAX" means value added tax as provided for in the Value
Added Tax ▇▇▇ ▇▇▇▇ and legislation (or purported legislation and
whether delegated or otherwise) supplemental to that Act or in any
primary or secondary legislation promulgated by the European
Community to any official body or agency of the European Community,
and any tax similar or equivalent to value added tax imposed by any
country other than the United Kingdom and any similar or turnover tax
replacing or introduced in addition to any of the same.
1.2 Clause headings are for convenience of reference only and shall not
affect the construction of this Security Deed.
2
1.3 In this Security Deed (unless otherwise provided):
(a) references to Clauses and Schedules are to be construed as
references to the Clauses of, and Schedules to, this
Security Deed, as amended or varied from time to time and
references to sub-Clauses shall unless otherwise
specifically stated be construed as references to the
sub-Clauses of the Clause in which the reference appears;
(b) references to this Security Deed (or to any specified
provisions of this security Deed) or any other document
shall be construed as references to this security Deed,
that provision or that document as in force for the time
being and as amended, varied, novated or supplemented from
time to time in accordance with its terms or, as the case
may be, with the agreement of the relevant parties;
(c) words importing the singular shall include the plural and
vice versa;
(d) references to a person shall be construed so as to include
that person's permitted assigns, transferees or successors
in title and shall be construed as including references to
an individual, firm, partnership, joint venture, company,
corporation, unincorporated body of persons or any state or
any agency thereof,
(e) references to any statute or statutory provision include
any statute or statutory provision which amends, extends,
consolidates or replaces the same, or which has been
amended, extended, consolidated or replaced by the same,
and shall include any orders, regulations, instruments or
other subordinate legislation made under the relevant
statute;
(f) the words "OTHER" and "OTHERWISE" shall not be construed
ejusdem generis with any foregoing words where a wider
construction is possible; and
(g) the words "INCLUDING" and "IN PARTICULAR" shall be
construed as being by way of illustration or emphasis only
and shall not be construed as, nor shall they take effect
as, limiting the generality of any foregoing words.
2. COVENANT TO PAY
The Chargor covenants with the Agent and the other Secured Parties
that it will pay and discharge each of the Secured Obligations when
due to the Agent and the other Secured Parties.
3. CHARGES
3.1 The Chargor, with full title guarantee, hereby charges to the Agent
(as agent and trustee for the Secured Parties) as continuing security
for the payment of the Secured Obligations by way of first fixed
charge, the Shares.
3.2 The security constituted by or pursuant to this Security Deed shall
be in addition to and shall be independent of every ▇▇▇▇, note,
guarantee, mortgage, pledge or other security which the Agent may at
any time hold in respect of any of the Secured
3
Obligations and it is hereby declared that no prior security held
by the Agent over the Charged Property or any part thereof shall
merge in the security created hereby or pursuant hereto.
4. COVENANTS BY THE CHARGOR
4.1 The Chargor hereby covenants with the Agent that during the
continuance of this security the Chargor will:
(a) deposit with the Agent (unless the Agent shall otherwise
agree) only Shares which are fully paid and which it has a
good right to deposit and transfer free from any option,
lien, charge or encumbrance of any kind and in respect of
which it shall lodge:
(i) all share certificates and documents of title;
(ii) executed undated transfers of the Shares completed
in blank or duly executed and dated transfers in
favour of the Agent as agent and trustee of the
Secured Parties or its nominee or agent as the
Agent may direct; and
(iii) such other documents as the Agent may from time to
time require for perfecting the title of the
Secured Parties to the Shares including any bonus
or rights issue (duly executed by or signed on
behalf of the registered holder) or for vesting
or enabling the Chargor to vest the same in the
Agent or its nominees or in any purchaser to the
intent that the Agent may at any time without
notice present them for registration;
(b) duly and promptly pay all calls, instalments or other
payments which may be made or become due in respect of any
of the Shares as and when the same from time to time become
due (and if the Chargor does not do so, the Agent may make
such payments on behalf of the Chargor, in which event any
sums so paid shall be reimbursed on demand by the Chargor
to the Agent);
(c) comply promptly with any notice served on it under the
Companies ▇▇▇ ▇▇▇▇;
(d) not (without the prior consent in writing of the Agent or
except as provided herein);
(i) permit any person other than the Chargor or the
Agent (or its nominee or agent) to be registered
as holder of the Shares or any part thereof;
(ii) create or purport to create or permit to subsist
any mortgage, charge, lien or encumbrance (other
than in favour of the Agent) on or over the Shares
or any part thereof or interest therein; or
4
(iii) sell, transfer, grant any option over or otherwise
dispose of the Shares or any part thereof or
interest therein or attempt or agree so to do;
(e) not do or cause or permit to be done anything which may in
any way depreciate, jeopardise or otherwise prejudice the
rights of the Secured Parties in the Shares;
(f) if as a result of its ownership of the Shares, it becomes
entitled to receive, or shall receive any stock certificate
(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
reorganisation), option or rights whether in addition to,
in substitution for, as a conversion of, or in exchange for
any of the Shares or otherwise in respect thereof, the
Chargor shall accept the same on behalf of the Agent and
the Secured Parties, hold the same in trust for the Agent
and the Secured Parties and deliver the same forthwith to
the Agent in the exact form received, together with an
undated transfer thereof completed in blank or duly
executed and dated transfer forms in favour of the Agent as
agent and trustee of the Secured Parties or its nominee or
agent as the Agent may direct additional security for the
Secured Obligations. Any sums paid upon or in respect of
the Shares upon the liquidation, winding-up or other
dissolution of any of the Issuers shall be paid over to the
Agent to be held by it hereunder for the rateable benefit
of the Secured Parties as additional security for the
Secured Obligations, and in case any distribution of
capital shall be made on or in respect of the Shares or any
property shall be distributed upon or with respect to the
Shares pursuant to the recapitalisation or reclassification
of the capital of any of the Issuers or pursuant to the
reorganisation thereof, the property so distributed shall
be delivered to the Agent to be held by it for the benefit
of the Secured Parties, subject to the terms hereof, as
additional security for the Secured Obligations. If any
sums of money or property so paid or distributed in respect
of the Shares shall be received by the Chargor, the
Chargor shall, until such money or property is paid or
delivered to the Agent, hold such money or property in
trust for the Agent and the Secured Parties segregated
from other funds of the Chargor, as additional security for
the Secured Obligations;
(g) not, without the prior written consent of the Agent, vote
to enable, or take any other action to permit, any of the
Issuers to issue any shares of the same class as the Shares
or of any other class or other "equity security" (as
defined in section 94 of the Companies Act 1985); and
(h) if, at any time after the date hereof, the Chargor acquires
any shares of any class in an Issuer or if any company
becomes an English Subsidiary, in respect of sixty-five per
cent of the shares so acquired or of the shares held by the
Chargor in the English Subsidiary (as appropriate),
forthwith lodge the certificates and other documents
referred to in, and in accordance with, Clause 4.1(a)(i),
(ii) and (iii), whereupon Schedule 1 shall be amended by
the Agent to include appropriate details of such shares.
5
4.2 The Chargor hereby further covenants and agrees with the Agent that:
(a) the Agent and its nominees at the discretion of the Agent
may exercise in the name of the Chargor or otherwise at any
time whether before or after demand for payment and without
any further consent or authority on the part of the Agent
in respect of the Shares any voting rights and any powers
or rights which may be exercisable by the person in whose
name the Shares are registered or by the bearer thereof,
but such powers and rights shall be exercised subject to
the provisions of Clause 5,
(b) the Chargor will, if so requested by the Agent, transfer
all or any of the Shares to such nominees wheresoever
situate or agents as the Agent may select and the Chargor
agrees that the agent may hold all or any of such Shares in
any branch of the Agent or with any correspondents or other
agent whether in the United Kingdom or overseas and that
all the Shares shall be held at the expense, risk and
responsibility of the Chargor; and
(c) subject to Clause 9.7, the Chargor shall provide to the
Agent a copy of any report, accounts, circular or notice
received in respect of or in connection with any of the
Shares promptly following the receipt thereof by the
Chargor.
5. DIVIDENDS AND VOTING RIGHTS
Unless an Event of Default is subsisting:
(a) the voting rights, powers and other rights in respect of
the Shares:
(i) shall (if the Shares are registered in the name
of the Agent or its nominee) be exercised by it
in any manner (not being inconsistent with the
provisions of the Credit Agreement) which the
Chargor directs in writing; or
(ii) in any other case, shall be exercisable by the
Chargor in any manner (not being inconsistent with
the Credit Agreement); and
(b) all dividends, distributions, interest and other monies
paid in respect of the Shares:
(i) which are received by the Agent shall be paid
to the Chargor as soon as is reasonably
practical; or
(ii) which are received by the Chargor, may be
retained by the Chargor.
If an Event of Default is subsisting, the Agent may exercise all
voting rights, powers and other rights in respect of the Shares to
the exclusion of the Chargor and the Agent may receive and retain all
dividends, distributions, interest and other moneys paid in respect
of the Shares for application in or towards the Secured Obligations
(and if the Chargor receives any of such dividends, distributions,
interest or other
6
moneys, it shall hold them in trust for the Agent and forthwith pay
them to the Agent).
6. FURTHER ASSURANCE
The Chargor shall at any time, if and when required by the Agent,
execute such further legal or other charges or assignments in favour
of the Agent as the Agent shall from time to time reasonably require
over all or any of the Shares and all rights relating thereto both
present and future (including any bonus or substituted securities)
and such other transfers or documents as the Agent may from time to
time reasonably require for perfecting its title to the same or for
vesting or enabling it to vest the same in itself or its nominees or
in any purchaser as the Agent, acting reasonably, deems necessary or
desirable to secure the Secured Obligations or to facilitate the
realisation of the Shares or the exercise of the powers conferred on
the Agent; such further charges or assignments to be prepared by or
on behalf of the Agent at the cost of the Chargor and to contain an
immediate power of sale without notice, a clause excluding section 93
and the restrictions contained in section 103 of the Law of Property
▇▇▇ ▇▇▇▇ and such other clauses for the benefit of the Secured
parties as the Agent may reasonably require for the payment or
discharge of the Secured Obligations. Without prejudice to the
generality of the foregoing, such assignments, transfers, mortgages,
charges or other documents shall be in such form as the Agent, acting
reasonably, shall stipulate and may contain provisions such as are
herein contained or provisions to the like effect and/or such other
provisions of whatsoever kind as the Agent shall consider requisite
for the improvement or perfection of the security constituted by or
pursuant to this Security Deed PROVIDED THAT such assignments,
transfers, mortgages, charges or other documents shall (except to the
extent that the same relate to such perfection) be on the terms that
are no more onerous than those contained in this Security Deed. The
obligations of the Chargor under this Clause shall be in addition to
and not in substitution for the covenants for further assurance
deemed to be included herein by virtue of the Law of Property
(Miscellaneous Provisions) ▇▇▇ ▇▇▇▇.
7. REPRESENTATIONS AND WARRANTIES BY THE CHARGOR
The Chargor represents and warrants to the Secured Parties and
undertakes (which representation, warranty and undertaking (other
than that set out in Clause 7(d)) shall be deemed to be repeated on
each day that this Security Deed is subsisting) that:
(a) the Chargor is the sole, absolute and beneficial owner of
the Shares, that (save for the rights of the Secured
Parties hereunder) no person save the Chargor has any right
or interest of any sort whatsoever in or to the Shares and
that there are no agreements or arrangements (including any
restrictions on transfer or rights of pre-emption)
affecting the Shares in any way or which would or might in
any way ▇▇▇▇▇▇ or otherwise prejudice the rights of the
Chargor or any mortgagee of the Shares;
(b) the Shares are duly authorised, validly issued and fully
paid and there are no moneys or liabilities outstanding in
respect of any of the Shares;
(c) with respect to each Issuer the relevant number of shares
described in Schedule 1 comprise (when rounded-up to the
nearest whole per cent) no
7
less and no more than sixty-five per cent of the issued
share capital of each class thereof and, other than as
described in Schedule 1, there exist no shares of any other
class or any other equity security (as defined in section 96
of the Companies Act 1985) of any Issuer or English
Subsidiary;
(d) the Chargor has the necessary power to enter into this
Security Deed;
(e) The Chargor has the necessary power to perform its
obligations under this Security Deed;
(f) this Security Deed constitutes its legal, valid, binding and
enforceable obligations and is a security over all and every
part of the Charged Property effective in accordance with
its terms;
(g) this Security Deed does not and will not conflict with or
result in any breach or constitute a default under any
agreement, instrument or obligation to which the Chargor is
a party or by which it is bound; and
(h) all necessary authorisations and consents to enable or
entitle it to enter into this Security Deed have been
obtained and will remain in full force and effect at all
times during the subsistence of the security constituted by
this Security Deed.
8. POWERS OF THE AGENT
8.1 At any time after the occurrence of an Event of Default which Event
of Default is continuing, or if requested by the Chargor:
(a) the Agent and any nominee of the Agent wheresoever situate
may without further notice and without any of the
restrictions contained in section 103 of the Law of
Property ▇▇▇ ▇▇▇▇, whether or not it shall have appointed a
Receiver, in respect of all or any of the Shares exercise
all the powers and rights which may be exercisable by the
registered holder of the Shares and all other powers
conferred on mortgagees by the Law of Property ▇▇▇ ▇▇▇▇ as
hereby varied or extended and all the powers and
discretions conferred by this Security Deed; and
(b) any dividends, interest or other payments which may be
received or receivable by the Agent or by any nominee in
respect of any of the Shares may be applied by the Agent as
though they were proceeds of sale.
8.2 The restriction on the right of consolidating mortgage securities
contained in section 93 of the Law of Property Act 1925 shall not
apply to this Security Deed.
8.3 In exercising the power referred to in Clause 9 the Shares or any
part thereof may be sold or disposed of at such times in such manner
and generally on such terms and conditions and for such consideration
as the Agent may think fit. Any such sale or disposition may be for
cash, debentures or other obligations, shares, stock, securities or
other valuable consideration and be payable immediately by
instalments spread over such period as the Agent shall think fit. No
purchaser or other person shall be bound or concerned to see or
enquire whether the right of the Agent to exercise any
8
of the powers hereby conferred has arisen or not or be concerned with
notice to the contrary or with the propriety of the exercise of
purported exercise of such powers.
8.4 All money received by the Agent in the exercise of any powers
conferred by this Security Deed shall be applied, after payment of
all costs and expenses incurred in the exercise of such power and
after the discharge of all liabilities having priority thereto, in or
towards satisfaction of the Secured Obligations in such order as the
Agent in its absolute discretion may from time to time determine.
8.5 The Agent shall not be liable to account as mortgagee in possession
in respect of all or any of the Shares, save in the event of its
gross negligence or wilful default, and shall not be liable for any
loss upon realisation or for any neglect or default to present any
interest coupon or any bond or stock drawn for repayment or for any
failure to pay any call or instalment or to accept any offer or to
notify the Chargor or any such matter or for any negligence or
default by its nominees, correspondents or agents or for any other
loss of any natures whatsoever in connection with the Shares.
8.6 The Chargor hereby agrees fully to indemnify and hold harmless the
Agent and the other Secured Parties from and against all losses,
actions, claims, expenses, demands and liabilities whether in
contract, tort or otherwise:
(a) in respect of calls or other payments relating to the
Shares now or hereafter incurred by the Agent or any other
Secured Party (or any nominee or agent of any of them) or
by any officer or employee for whose liability, act or
omission it may be answerable; and
(b) occasioned by any breach by the Chargor of any of its
covenants or other obligations to the Agent or any other of
the Secured Parties. The Chargor shall indemnify the Agent
and the other Secured Parties on demand and shall pay
interest on the sums demanded from the date of demand to the
date of actual payment at the Base Rate (both before and
after judgment).
8.7 Save in the event of gross negligence or wilful default, neither the
Agent nor any other Secured Party shall have any liability or
responsibility to the Chargor for any action taken or omitted to be
taken by the Agent in relation to the Shares (including any Shares
which are at the time registered in the name of the Agent (or any
nominee or agent for the Agent)). In particular, the Agent shall have
no liability as a result of any failure to forward to the Chargor any
report, circular or other communication received by the Agent in
relation to any Shares or to accept or decline any offer made in
respect of any Shares or to make any payment in relation to any
Shares.
9. APPOINTMENT OF RECEIVER
9.1 At any time after the occurrence of an Event of Default which Event
of Default is continuing or if requested by the Chargor or after the
application to the court for an administration order in relation to
the Chargor under the Insolvency ▇▇▇ ▇▇▇▇, the Agent may appoint one
or more persons to be a Receiver or Receivers of the Charged Property
or any part thereof
9.2 Subject to section 45 of the Insolvency ▇▇▇ ▇▇▇▇, the Agent may
(i) remove any Receiver previously appointed hereunder, and
(ii) appoint another person or other persons as Receiver or
Receivers, either in the place of a Receiver so removed or
9
who has otherwise ceased to act or to act jointly with a Receiver or
Receivers previously appointed hereunder.
9.3 If at any time and by virtue of any such appointment(s) any two or
more persons shall hold office as Receivers of the same assets or
income, such Receivers may act jointly and/or severally so that each
one of such Receivers shall be entitled (unless the contrary shall be
stated in any of the deed(s) or other instrument(s) appointing them)
to exercise all the powers and discretions hereby conferred on
Receivers individually and to the exclusion of the other or others of
them.
9.4 Every such appointment or removal, and every delegation, appointment
or removal by the Agent in the exercise of any right to delegate its
powers or to remove delegates herein contained, may be made in
writing under the hand of any officer of the Agent.
9.5 Every Receiver shall have:
(a) all the powers conferred by the Law of Property ▇▇▇ ▇▇▇▇ on
mortgagees in possession and receivers appointed under that
Act;
(b) all the powers specified in Schedule 1 of the Insolvency ▇▇▇
▇▇▇▇ (whether or not such Receiver is an administrative
receiver within the meaning of the said Act); and
(c) all the powers of the Agent hereunder.
9.6 In making any sale or other disposal of any of the Charged Property
in the exercise of their respective powers, the Receiver or the Agent
may accept, as and by way of consideration for such sale or other
disposal, cash, shares, loan capital or other obligations, including
without limitation consideration fluctuating according to or
dependent upon profit or turnover and consideration the amount
whereof is to be determined by a third party. Any such consideration
may be receivable in a lump sum or by instalments.
9.7 All moneys received by any Receiver appointed under this Security
Deed shall be applied in the following order:
(a) in the payment of the costs, charges and expenses of and
incidental to the Receiver's appointment and the payment
of his remuneration;
(b) in the payment and discharge of any outgoings paid and
liabilities incurred by the Receiver in the exercise of any
of the powers of the Receiver;
(c) in providing for the matters (other than the remuneration of
the Receiver) specified in the first three paragraphs of
section 109(8) of the Law of Property ▇▇▇ ▇▇▇▇;
(d) in or towards payment of any debts or claims which are
required by law to be paid in preference to the Secured
Obligations but only to the extent to which such debts or
claims have such preference;
10
(e) in or towards the satisfaction of the Secured Obligations
in such order as the Agent may conclusively determine; and
(f) any surplus shall be paid to the Chargor or other person
entitled thereto.
The provisions of this Clause 10.7 and Clause 10.9 shall take effect
as and by way of variation and extension to the provisions of the
said section 109(8), which provisions as so varied and extended shall
be deemed incorporated herein.
9.8 Every Receiver shall be the agent of the Chargor which shall be
solely responsible for his acts and defaults and for the payment of
his remuneration.
9.9 Every Receiver shall be entitled to remuneration for his services at
a rate to be fixed by agreement between him and the Agent (or,
failing such agreement, to be conclusively fixed by the Agent)
commensurate with the work and responsibilities involved upon the
basis of charging from time to time adopted in accordance with his
current practice or the current practice of his firm and without
being limited to the maximum rate specified in section 109(6) of the
Law of Property ▇▇▇ ▇▇▇▇.
10 POWER OF ATTORNEY
10.1 The Chargor hereby irrevocably appoints the following, namely:
(a) the Agent;
(b) each and every person to whom the Agent shall from time to
time have delegated the exercise of the power of attorney
conferred by this Clause; and
(c) any Receiver appointed hereunder and for the time being
holding office as such,
jointly and also severally to be its attorney or attorneys and in its
name and otherwise on its behalf to do all acts and things and to
sign, seal, execute, deliver, perfect and do all deeds, instruments,
documents, acts and things which may be necessary or desirable for
carrying out any obligation imposed on the Chargor by or pursuant to
this Security Deed (including but not limited to the obligations of
the Chargor under Clause 6 and the statutory covenant referred to in
such Clause); for carrying any sale, lease or other dealing by the
Agent or such Receiver into effect; for getting in the Charged
Property, and generally for enabling the Agent and the Receiver to
exercise the respective powers conferred on them by or pursuant to
this Security Deed or by law. The Agent shall have full power to
delegate the power conferred on it by this Clause, but no such
delegation shall preclude the subsequent exercise of such power by
the Agent itself or preclude the Agent from making a subsequent
delegation thereof to some other person; any such delegation may be
revoked by the Agent at any time.
10.2 The power of attorney hereby granted is as regards the Agent, its
delegates and any such Receiver (and as the Chargor hereby
acknowledges) granted irrevocably and for value as part of the
security constituted by this Security Deed to secure proprietary
interests in and the performance of obligations owed to the
respective donees within
11
the meaning of the Powers of ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇.
10.3 The Chargor agrees to ratify and confirm anything an attorney shall
lawfully and properly do or purport to do under this Clause 11 and
all money expended by any such attorney shall be deemed to be
expenses named by the Agent under this Charge.
11. PROTECTION OF PURCHASERS
No purchaser or other person dealing with the Agent its delegate or
any Receiver appointed hereunder shall be bound to see or inquire
whether the right of the Agent or such Receiver to exercise any of
its or his powers has arisen or become exercisable or be concerned
with notice to the contrary, or be concerned to see whether any such
delegation by the Agent shall have lapsed for any reason or been
revoked.
12. SET-OFF
12.1 The Chargor hereby agrees that the Agent or any other Secured Party
may at any time without notice after demand or the occurrence of an
Event of Default, which Event of Default is continuing, and
notwithstanding any settlement of account or other matter whatsoever
combine or consolidate all or any of the Chargor's then existing
accounts (whether current, deposit, loan or of any other nature
whatsoever and whether subject to notice or not whether in sterling
or in any other currency including accounts in the name of the Agent
or such other Secured Party) wheresoever situate and set off or
transfer any sum standing to the credit of any one or more such
accounts in or towards satisfaction of any obligations or liabilities
of the Chargor to the Agent or such other Secured Party. Where such
combination set-off or transfer requires the conversion of one
currency into another such conversion shall be calculated at the then
prevailing spot rate of exchange of the Agent for purchasing the
currency in which the relevant Secured Obligation is denominated with
the currency in which the deposit or other sum is denominated.
12.2 All sums payable by the Chargor under this Security Deed shall be
paid without any set-off, counterclaim, withholding or deduction
whatsoever unless required by law in which event the Chargor will,
simultaneously with making the relevant payment under this Charge,
pay to the Agent such additional amount as will result in the receipt
by the Agent of the full amount which would otherwise have been
receivable and will supply the Agent promptly with evidence
satisfactory to the Agent that the Chargor has accounted to the
relevant authority for the sum withheld or deducted.
13. CURRENCY
13.1 All moneys received or held by the Agent or any other Secured Party
under this Security Deed may after an Event of Default has occurred,
and is continuing, be converted into such other currency as the Agent
considers necessary or desirable to cover the Secured Obligations in
the currency thereof at the then prevailing spot rate of exchange of
the Agent (as conclusively determined by the Agent) for purchasing
that other currency with the existing currency.
13.2 No payment to the Agent or any other Secured Party (whether under any
judgment or court order or otherwise) shall discharge the obligation
or liability of the Chargor in
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respect of which it was made unless and until the Agent or such other
Secured Party shall have received payment in full in the currency in
which such obligation or liability was incurred and, to the extent
that the amount of any such payment shall on actual conversion into
such currency fall short of such obligation or liability actual or
contingent expressed in that currency, the Agent or such other
Secured Party shall have a further separate cause of action against
the Chargor and shall be entitled to enforce this Charge to recover
the amount of the shortfall.
14. COSTS
The Chargor shall on demand and on a full indemnity basis pay to the
Agent the amount of all proper costs and expenses and other
liabilities (including legal and out-of-pocket expenses and any Value
Added Tax on such costs and expenses) which the Agent or any other
Secured Party properly incurs in connection with:
(a) the preparation, negotiation, execution and delivery of this
Security Deed;
(b) any stamping or payment of stamp duty reserve tax or
registration of this Security Deed or any transfer of the
Shares pursuant hereto;
(c) any actual or proposed amendment or waiver or consent under
or in connection with this Security Deed;
(d) any discharge or release of this Security Deed;
(e) the preservation or exercise (or attempted preservation or
exercise) of any rights under or in connection with and the
enforcement (or attempted enforcement) or this Security
Deed; or
(f) dealing with or obtaining advice about any other matter or
question arising out of or in connection with the exercise
of any rights under Clause 6,
together with any interest thereon at the Base Rate from the date of
demand (or if earlier the date or payment by the Agent or such other
Secured Party) until the date of payment by the Chargor whether
before or after judgment.
15. APPLICATION
The Chargor shall have no rights in respect of the application by the
Agent of any sums received, recovered or realised by the Agent under
this Security Deed.
16. NOTICES
16.1 Without prejudice to any other method of service of notices and
communications provided by law, a demand or notice under this
Security Deed shall be in writing signed by an officer or agent of
the Agent and may be served on the Chargor by hand, by post, by
facsimile transmission. Any such notice or communication shall be
sent to the address or number of the Chargor as set out below:
13
Address: Armor Holdings, Inc.,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
16.2 Any notice or other communication given by the Agent shall be deemed
to have been received:
(a) if sent by fax with a confirmed receipt of transmission
from the receiving machine, on the day on which it was
transmitted;
(b) in the case of a written notice given by hand, on the day
of the actual delivery; and
(c) if posted, on the third Business Day following the day on
which it was despatched by certified mail return receipt
requested,
provided that a notice given in accordance with (a) or (b) above but
received on a day which is not a Business Day or after normal
business hours in the place of receipt shall only be deemed to have
been received on the next Business Day.
16.3 Any notice given to the Agent shall be deemed to have been given only
on actual receipt.
17. CONTINUING SECURITY, NEW ACCOUNTS AND NON-MERGER
17.1 The security constituted by this Security Deed shall be continuing and
shall not be considered as satisfied or discharged by any intermediate
payment or settlement of the whole or any part of the Secured
Obligations or any matter or other thing whatsoever and shall be
binding until all the Secured Obligations have been unconditionally
and irrevocably paid and discharged in full to the satisfaction of the
Agent and the Secured Parties have ceased to have any obligation
whether actual or contingent to make any credit or accommodation
available to the Chargor.
17.2 If the Agent or any other Secured Party receives notice (whether
actual or otherwise) of any subsequent mortgage or charge affecting
all or any part of the Shares, the Agent may open a new account or
accounts with the Chargor and, if it does not open a new account, it
shall nevertheless be treated as if it had done so at the time when
the Agent or the other Secured Party received or was deemed to have
received notice and as from that time shall be credited or be treated
as having been credited to the new account and shall not operate to
reduce the amount secured by this Charge at the time when the Agent or
the other Secured Party received or was deemed to have received such
notice.
17.3 This Security Deed is in addition to and shall not merge with or
otherwise prejudice or affect any banker's lien, right to combine and
consolidate accounts, right or set-off or any other contractual or
other right or remedy or any guarantee, lien, pledge,
14
▇▇▇▇, note, mortgage or other security now or hereafter held by or
available to the Secured Parties.
18. RELEASE AND DISCHARGE OF SECURITY
18.1 Upon the irrevocable and unconditional payment or discharge in full of
the Secured Obligations, the Agent will or will procure that its
nominees or agents will (as the case may be) at the request and cost
of the Chargor release the Charged Property from the security created
hereunder.
18.2 Upon any release of the Shares neither the Agent nor any of the other
Secured Parties nor their nominees or agents (as the case may be)
shall be bound to release or transfer to the Chargor the identical
stock, shares or securities which were deposited with or transferred
to it or them and the Chargor shall accept shares and securities of
the same class and denomination or such other securities as then
represent the Shares.
19. ASSIGNMENT
19.1 The Secured Parties may assign or otherwise transfer the whole or any
part of the benefit of this Security Deed to any person to whom all
or any part of its rights, benefits and obligations under the Credit
Agreement are assigned or transferred in accordance with the
provisions of the Credit Agreement and the expression "the Secured
Parties" wherever used herein shall be deemed to include the
assignees and other successors, whether immediate or derivative, of
any Secured Party, who shall be entitled to enforce and proceed upon
this Security Deed in the same manner as if named herein. The Secured
Parties shall be entitled to disclose any information concerning the
Chargor to any such assignee or other successor or any participant or
proposed assignee, successor or participant.
19.2 The Agent on behalf of itself and each Secured Party agrees, for the
benefit of the Chargor, that save as required by law or by order of
any court or governmental authority having jurisdiction thereover
and/or where the party to whom the disclosure is made is made aware of
the confidential nature thereof and agrees in writing to be bound by
the terms of this Clause 19.2, no Secured Party shall disclose any
non-public information that is designated by the Chargor in writing
as confidential and is provided to it by the Chargor pursuant to this
Security Deed.
20. MISCELLANEOUS
20.1 The rights, powers and remedies provided in this Security Deed are
cumulative and to the extent that such exercise is lawful may be
exercised from time to time and as often as the Agent deems expedient
and are not, nor are they to be construed as, exclusive of any
rights, powers or remedies provided by law or otherwise.
20.2 No failure on the part of the Agent to exercise, or delay on its part
in exercising, any of its respective rights, powers and remedies
provided by this Security Deed or by law (collectively the "Rights")
shall operate as a waiver thereof, nor shall any single or partial
waiver of any of the Rights preclude any further or other exercise of
any of the Rights concerned or the exercise of any other of the
Rights.
15
20.3 The Chargor hereby agrees to indemnify the Secured Parties and any
Receiver against all losses, actions, claims, costs, charges,
expenses and liabilities incurred by the Secured Parties and by any
Receiver (including any substitute delegate attorney as aforesaid) in
relation to this Security Deed or the Secured Obligations (including,
without limitation, the costs, charges and expenses incurred in the
carrying of this Security Deed into effect or in the exercise of any
of the rights, remedies and powers conferred hereby or in the
perfection or enforcement of the security constituted hereby or
pursuant hereto or in the perfection or enforcement of any other
security for or guarantee in respect of the Secured Obligations) or
occasioned by any breach by the Chargor of any of its covenants or
obligations under this Security Deed. The Chargor shall so indemnify
the Secured Parties and any Receiver on demand and shall pay interest
on the sum demanded at the Base Rate from the date on which the same
was demanded by the Agent or any Receiver, as the case may be, and any
sum so demanded together with any interest, shall be a charge upon the
Charged Property in addition to the moneys hereby secured.
21. PROVISIONS SEVERABLE
Every provision contained in this Security Deed shall be severable
and distinct from every other such provision and if at any time any
one or more of such provisions is or becomes invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining such provisions shall not in any way be affected thereby.
22. THE AGENT'S DISCRETION AND ENFORCEMENT COSTS
22.1 Any liberty or power which may be exercised or any determination which
may be made hereunder by the Agent hereunder may be exercised or made
in the absolute and unfettered discretion of the Agent which shall
not be under any obligation to give reasons therefor.
22.2 The Chargor hereby covenants and agrees that it will, on demand, pay
to the Agent such amounts as the Agent may from time to time require
to compensate the Agent for its internal management and administrative
costs and expenses properly incurred in connection with the
enforcement of this Security Deed and the recovery of the Secured
Obligations.
22.3 A statement, certificate or determination of the Agent as to the
amount of the Secured Obligations or (without limitation) any other
matter provided for in this Security Deed shall (save in the case of
manifest error) be conclusive and binding upon the Chargor for all
purposes.
23. AMENDMENTS
No amendments or waiver of any provision of this Security Deed and no
consent to any departure by the Chargor therefrom shall in any event
be effective unless the same shall be in writing and signed or
approved in writing by the Agent and then such waiver or consent
shall be effective only in the specific instance, for the specific
purpose and upon the terms and conditions for which it was given.
24. LAW AND JURISDICTION
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24.1 This Security Deed is governed by and shall be construed in accordance
with English law.
24.2 The Chargor irrevocably agrees for the exclusive benefit of the
Secured Parties that the courts of England and of New York State shall
each have the non-exclusive jurisdiction to hear and determine any
suit, action or proceeding and to settle any dispute which may arise
out of or in connection with this Security Deed and for such purposes
irrevocably submits to the jurisdiction of such courts.
24.3 Nothing contained in this Clause shall limit the right of the Agent or
other Secured Party to take proceedings against the Chargor in any
other court of competent jurisdiction nor shall the taking of any such
proceedings in one or more jurisdictions preclude the taking of
proceedings in any other jurisdiction whether concurrently or not
(unless precluded by applicable law).
24.4 The Chargor irrevocably waives any objection which it may have now or
in the future to the courts of England or of the State of New York
being nominated for the purpose of this Clause on the ground of venue
of otherwise and agrees not to claim that any such court is not a
convenient or appropriate forum.
24.5 The Chargor authorises and appoints Armor Holdings Limited (the
"PROCESS AGENT"), a company incorporated in England and Wales with
registered number 3302926 and having its registered office at 5th
Floor, Egginton House, ▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ to
accept service of all legal process arising out of or connected with
this Security Deed and service on such person (or substitute) shall be
deemed to be service on the Chargor. The Chargor shall procure that on
or before the fifth Business Day following the date hereof the Process
Agent shall deliver a notice to the Agent accepting such appointment
in the form set out in Schedule 2. The Chargor shall not revoke any
such authority or appointment and shall at all times maintain an agent
for service of process in England and if any such agent ceases for any
reason to be an agent for this purpose shall forthwith appoint another
agent and advise the Agent accordingly.
17
IN WITNESS whereof the Chargor has executed this Security Deed as a deed with
the intention that it be delivered on the day and year first before written
SIGNED AND DELIVERED AS A DEED by )
---------------------------------------------
ARMOR HOLDINGS, INC., )
a company incorporated in Delaware by )
---------------------------------------------
)
being person(s) who, in accordance with )
the laws of that state is or are acting under )
the authority of ARMOR HOLDINGS, INC.,
SIGNED for and on behalf of )
---------------------------------------------
CANADIAN IMPERIAL BANK OF )
COMMERCE )
18
SCHEDULE 1
DESCRIPTION OF SHARES
ISSUER CLASS CERTIFICATE NO(S) NO. OF SHARES
Armor Holdings Limited Ordinary -3- 7,305,702
19
SCHEDULE 2
FORM OF NOTICE OF ACCEPTANCE OF
APPOINTMENT AS PROCESS AGENT
12 February 1999
[On Armor Holdings Limited headed notepaper]
To: Canadian Imperial Bank of Commerce
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇
RE: ACCEPTANCE OF SERVICE OF LEGAL SERVICE ON BEHALF OF ARMOR HOLDINGS, INC
---------------------------------------------------------------------------
We, Armor Holdings Limited whose registered office is at 5th Floor, Egginton
House, ▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, hereby give notice that we are
authorised to accept service of all legal process on Armor Holdings, Inc.
arising out of or in connection with a security deed dated as of 12 February
1999, between Armor Holdings, Inc. and Canadian Imperial Bank of Commerce, and
service of such legal process at our registered office specified above shall be
deemed to be service on Armor Holdings, Inc.
SIGNED for and on behalf of
ARMOR HOLDINGS LIMITED
by
[Director][Secretary]
20