EXHIBIT 10.31
Collateral Assignment of "Unencumbered" Customer Contracts
This is an agreement dated as of June 15, 2000, between Viisage Technology,
Inc., a Delaware corporation ("Viisage"), and Commerce Bank & Trust Company, a
Massachusetts trust company ("Commerce").
1. Circumstances of the agreement. On the date of this agreement Viisage
and Commerce have entered into a Loan Agreement ("Loan Agreement") pursuant to
which from time to time Commerce may advance to Viisage as much as $4,000,000
("Loan"). Viisage's obligations to Commerce in connection with the Loan are
secured by documents which include a Security Agreement (all assets) of even
date between Viisage and Commerce ("Security Agreement"). The collateral
transferred to Commerce through the Security Agreement includes Viisage's rights
and interests arising from various contracts between Viisage and its customers.
The purpose of this agreement is to supplement the Loan Agreement and the
Security Agreement with respect to such contracts.
2. Subjects of the agreement. The contracts which are the subject of this
agreement (collectively "Assigned Contracts") are (a) all of the contracts
listed on Exhibit A, attached, including all past, present and future
amendments, restatements, substitutions, replacements, renewals, and extensions
(collectively "Current Contracts") and (b) any and all future contracts between
Viisage and any current or future customers of Viisage if Viisage's performance
of such contracts is not financed by parties other than Commerce, together with
all future amendments, restatements, substitutions, replacements, renewals, and
extensions of such future contracts (collectively "Future Contracts").
3. Assignments. As security for all Viisage's present and future
obligations of payment, performance, and observance to Commerce ("Obligations"),
Viisage hereby assigns to Commerce: (a) all present and future rights and
interests of Viisage in, to, or otherwise arising under the Assigned Contracts,
including without implied limitation all of Viisage's rights to receive payments
pursuant to the Assigned Contracts; and (b) all products and proceeds (whether
cash or non-cash) from any of the foregoing. The rights and interests
transferred by Viisage to Commerce through this agreement ("Contract
Collateral") shall be co-extensive with the rights and interests transferred to
Commerce in the Assigned Contracts through the Security Agreement, and nothing
in this agreement shall be construed to limit or restrict Commerce's rights and
remedies under the Security Agreement. The term "Obligations" shall have the
same meaning in this agreement as in the Security Agreement.
4. Intercreditor agreement. Viisage's and Commerce's rights and duties
under this agreement are affected by a certain Intercreditor Agreement of even
date among Commerce, Lau Acquisition Corp., and Fleet Business Credit Corp.
("Intercreditor Agreement").
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5. Representations, warranties, covenants, and agreements. Subject to the
provisions of the Loan Agreement and the Intercreditor Agreement, and subject to
any written waiver which Commerce in its sole discretion may grant in the
future, Viisage represents, warrants, covenants, and agrees with Commerce as
follows.
A. Each of the Assigned Contracts (1) is and/or will be valid and binding
on all of the parties thereto, (2) is and/or will be in full force and effect,
and (3) has not been and/or will not be amended, modified, supplemented, or
terminated without prior written notice of at least ten (10) days to Commerce,
provided, however, that no such notice shall be required for routine
modifications and routine change orders made in the ordinary course of business.
B. Viisage has no knowledge of any material default on any of the Current
Contracts, and no party to any of the Current Contracts has asserted that any
other party is in default.
C. Viisage (1) has the unrestricted and unconditional right to assign the
Contract Collateral to Commerce as security for the Obligations and (2) has no
knowledge of any claim or assertion to the contrary, except to the extent, if
any, that Viisage's right to assign the Contract Collateral may be affected by
the rights of any surety which has issued a bond with respect to one or more of
the Assigned Contracts.
D. Without Commerce's prior express written consent, which Commerce may
withhold in its sole and absolute discretion, Viisage will not assign, encumber,
or otherwise in any manner transfer any interest in the Contract Collateral to
any third party until the Obligations have been paid and performed in full.
E. Viisage will not involuntarily suffer or involuntarily incur any legal
or equitable lien, attachment, or other seizure of any of its rights or
interests in the Assigned Contracts.
F. To the extent that any of the Assigned Contracts requires Viisage to
render a performance, Viisage will render such performance promptly and fully.
Viisage will notify Commerce promptly in writing of any assertion that Viisage
is in breach of any of its obligations under the Assigned Contracts.
G. Viisage will use its best efforts to compel the other parties to the
Assigned Contracts to perform and observe their duties and obligations under the
Assigned Contracts. Upon Commerce's request from time to time Viisage will
provide Commerce with all documents and information available to Viisage
concerning the performance and observance of such duties and obligations.
Viisage will notify Commerce promptly in writing of any material breach of such
duties and obligations.
H. No consents or approval are required for the transfer of the Contract
Collateral to Commerce, and any notices required for such transfer have been
given in a proper and timely manner.
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I. Viisage will indemnify and hold harmless Commerce against all claims
and demands asserted against Commerce, and all costs and expenses (including
reasonable legal fees) incurred by Commerce, as a consequence of this agreement.
J. From time to time upon Commerce's written request Viisage promptly
shall take all steps requested in good faith by Commerce to ensure that Commerce
enjoys all of the benefits and protections which this agreement purports to
afford Commerce, including without implied limitation the signing of financing
statements, notices, and such other documents as Commerce in good faith decides
advisable.
6. Miscellaneous. This agreement shall be construed as a supplement to
the Loan Agreement and the Security Agreement; all representations, warranties,
covenants, agreements, duties, and obligations of Viisage under this agreement,
and all rights and remedies of Commerce under this agreement, shall be
considered supplemental to those set forth in the Loan Agreement and the
Security Agreement or arising thereunder. Any default by or with respect to
Viisage under this agreement shall constitute an Event of Default under the Loan
Agreement.
Signed under seal as of June 15, 2000
Witnesses: Parties:
Viisage Technology, Inc.
By: /s/ Sean F. Mack
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Sean F. Mack,
Treasurer and Controller
Commerce Bank & Trust Company
By: /s/ Roger F. Allard
- ------------------------- -------------------------------
Roger F. Allard, Senior Vice
President
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Exhibit A
Current Contracts
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