COVENANT NOT TO CONVEY AND NEGATIVE PLEDGE AGREEMENT
COVENANT NOT TO CONVEY
AND
NEGATIVE PLEDGE
AGREEMENT
THIS
COVENANT NOT TO CONVEY AND NEGATIVE PLEDGE AGREEMENT (this “Agreement”), is dated
as of February 22, 2010, and is made by and among (i) THE KEYW CORPORATION, a
Maryland corporation, THE KEYW HOLDING CORPORATION, a Maryland corporation,
INTEGRATED COMPUTER CONCEPTS, INCORPORATED, a Maryland corporation, S&H
ENTERPRISES OF CENTRAL MARYLAND, INC., a Maryland corporation, and THE ANALYSIS
GROUP, LLC, a Virginia limited liability company (collectively, the “Borrowers”) and (b)
BANK OF AMERICA, N.A., a national banking association the “Lender”).
Recitals
A. Pursuant
to a Credit and Security Agreement of even date herewith between the Borrowers
and the Lender (as the same may from time to time be amended, restated,
extended, supplemented or otherwise modified, the “Credit Agreement”),
the Lender has agreed to make available to the Borrowers certain committed and
uncommitted secured credit facilities in the aggregate amount not to exceed
$32,500,000 at any one time outstanding. Capitalized terms used in this
Agreement have the respective meanings assigned to them in the Credit
Agreement.
B. The
Borrowers will directly and indirectly benefit from the credit accommodations
provided by the Credit Agreement.
C. Pursuant
to the Credit Agreement, the Lender has agreed not to require the Borrowers to
provide a security interest in their personal property other than the Collateral
identified in the Credit Agreement (namely, the Borrowers’ Accounts, Deposit
Accounts at the Lender, and the proceeds and products thereof). In consideration
for such agreement, the Lender has required the Borrowers to execute this
Agreement in favor of the Lender.
NOW,
THEREFORE, in consideration of the foregoing, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Negative Pledge/Covenant Not
to Encumber. Each of the Borrowers agrees that it shall not, without the
Lender’s prior written consent, convey, or incur, create, assume, suffer or
permit to exist any lien (except for liens for taxes not yet due and payable,
liens otherwise arising by statute for amounts not yet due and payable or
payable without penalty), pledge, grant a security interest, or otherwise
encumber any assets now or hereafter owned by such Borrower (the “Property”), or enter
into any agreement, document, instrument or other arrangement (except with or in
favor of the Lender) with any Person which directly or indirectly prohibits or
has the effect of prohibiting the Borrower from creating Liens upon any of such
Property, other than Liens in favor of the Lender or other Permitted
Liens.
2. Representations and
Warranties. Each Borrower hereby represents and warrants to the
Lender that as of the date hereof: (a) the execution and delivery of this
Agreement and the performance by each of them and each of their respective
obligations hereunder are within its organizational powers, have been duly
authorized by all necessary organizational action, have received all necessary
governmental approvals (if any shall be required), and do not and will not
contravene or conflict with any provision of law or of its constituent
documents, or any material agreement binding upon or applicable to it or any of
its property, and (b) this Agreement is the legal, valid and binding obligation
of each, enforceable against each in accordance with its terms, except to the
extent such enforceability may be limited by general equitable principles or
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors rights generally.
3. Miscellaneous.
(a) This
Agreement shall be binding upon the Borrowers, the Lender, and their respective
successors and assigns, and shall inure to the benefit of the Lender, the
Borrowers and their respective successors and assigns.
(b) Time
is of the essence of this Agreement.
(c) No
amendment or waiver of any provision of this Agreement, nor consent to any
departure therefrom, shall be effective or binding upon the Lender unless the
Lender shall first have given its written consent thereto, or on any Borrower
until such Borrower shall have first given its written consent
thereto.
(d) This
Agreement may be executed in counterparts and each such counterpart shall
constitute an original and all such counterparts together shall constitute one
and the same instrument. This Agreement may be delivered by facsimile
transmission with the same effect as if originally executed counterparts were
personally delivered to each of the parties hereto.
(e) As
indicated in the recitals above, all terms used herein which are defined in the
Credit Agreement shall have the meanings given them therein, unless the terms
are specifically defined herein, sections headings herein are for convenience of
reference only and shall not limit or otherwise affect the meaning or
interpretation of this Agreement.
(f) The
Lender and the Borrowers are hereby authorized to demand specific performance of
the provisions of this Agreement, at any time when any other party hereto shall
have failed to comply with any provision hereof. Each party hereto hereby
irrevocably waives any defense based on the adequacy of a remedy at law that
might be asserted as a bar to such remedy of specific performance.
(g) Each
party hereto will, upon the written request of any other party hereto, from time
to time execute and deliver, or cause to be executed and delivered, such further
instruments and agreements and do or cause to be done such further acts as may
be reasonably necessary or proper to carry out more effectively the provisions
of this Agreement.
(h) This
Agreement shall be governed by, and construed and enforced in accordance with,
the laws of the State of Maryland.
[SIGNATURES
ON FOLLOWING PAGE]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly signed,
sealed and delivered, all as of the day and year first above
written.
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THE
KEYW HOLDING CORPORATION
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By:
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/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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(SEAL)
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Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title:
Chief Executive Officer
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THE
KEYW CORPORATION
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By:
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/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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(SEAL)
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Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title:
Chief Executive Officer
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INTEGRATED
COMPUTER CONCEPTS,
INCORPORATED
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By:
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/s/
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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(SEAL)
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Name:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title:
Chief Financial Officer
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S&H
ENTERPRISES OF
CENTRAL
MARYLAND, INC.
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By:
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/s/
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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(SEAL)
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Name:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title:
Chief Financial Officer
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THE
ANALYSIS GROUP, LLC
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By:
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/s/
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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(SEAL)
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Name:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title:
Chief Financial Officer
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BANK
OF AMERICA, N.A.,
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By:
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/s/
▇▇▇▇ ▇. ▇▇▇▇▇▇
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(SEAL)
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Name:
▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title:
Vice President
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