EXHIBIT 10.4
COLLATERAL ASSIGNMENT AND
SECURITY AGREEMENT
FOR VALUE RECEIVED, INDIAN-XXXXXX, INC., a corporation
organized and existing under the laws of the State of Nevada ("DEBTOR"), hereby
GRANTS a security interest in and ASSIGNS to BANK ONE, NATIONAL ASSOCIATION
("SECURED PARTY") all of its rights, titles and interests, now owned by or
hereafter acquired by Debtor, in and to all of the following described personal
property, tangible and intangible, now owned and existing or hereafter acquired
or arising, and wheresoever located including, without limitation:
(1) Accounts and Accounts Receivable;
(2) General Intangibles;
(3) Documents;
(4) Instruments;
(5) Commercial Tort Claims;
(6) Investment Property;
(7) Letter of Credit Rights;
(8) all cash, Pledged Cash and all demand, time, savings,
passbook and like accounts and deposits maintained by Debtor with any bank,
savings and loan association, credit union or like organization, and any other
monies, and all "investment property" (as such term is defined in the UCC) of
Debtor;
(9) all property and interests in property of Debtor now
or hereafter coming into the actual possession, custody or control of Secured
Party or any of its agents (whether for safekeeping, deposit, custody, pledge,
transmission, collection or otherwise);
(10) all books and records (including, without limitation,
customer lists, credit files, computer programs, printouts and other computer
materials and records) of Debtor pertaining to any of the property described in
clauses (1) through (9), above;
(11) all additions, accessions, accessories, and
replacements of any of the property described in clauses (1) through (10),
above; and
(12) all products and Proceeds of all or any of the types
or items of property described in clauses (1) through (11), above.
(All of the above-described property is referred to herein
collectively as the "COLLATERAL.")
As used herein, the term: (a) "ACCOUNTS" shall mean all
accounts receivable and rights to payment of a monetary obligation, whether or
not earned by performance, (i) for property that has been or is to be sold,
leased, licensed, assigned or otherwise disposed of, (ii) for services rendered,
or to be rendered, or (iii) for a secondary obligation incurred, or to be
incurred, including, without limitation, all such Accounts as have been
purchased or acquired from Escalade, Incorporated, an Indiana corporation
("ESCALADE"), or from any of Escalade's wholly-owned subsidiaries organized and
existing in the United States of America (the "ESCALADE DOMESTIC SUBSIDIARIES"),
or from Escalade's Swiss subsidiary, Indian-Xxxxxx XX (the "SWISS SUBSIDIARY"),
and shall also mean and include, without limitation, all accounts receivable,
contract rights, book debts, notes, drafts and other obligations or indebtedness
owing to Debtor and/or Escalade and/or the Escalade Domestic Subsidiaries and/or
the Swiss Subsidiary arising from the sale, lease or exchange of goods or other
property by it and/or Escalade and/or the Escalade Domestic Subsidiaries and/or
the Swiss Subsidiary and/or the performance of services by it and all of
Debtor's rights in, to and under all purchase orders for goods, services or
other property, and all of Debtor's rights to any goods, services or other
property represented by any of the foregoing (including without limitation
returned or repossessed goods and unpaid sellers' rights of rescission,
replevin, reclamation and rights to stoppage in transit), in each case whether
now in existence or hereafter arising or acquired including, without limitation,
the right to receive the proceeds of said purchase orders and contracts and all
collateral security and guarantees of any kind given by any person or entity
with respect to any of the foregoing, and the term "ACCOUNT" shall mean any of
the Accounts; (b) "COMMERCIAL TORT CLAIMS" shall mean any claim of Debtor
arising in tort; (c) "CREDIT AGREEMENT" shall mean the Credit Agreement, dated
as of September 5, 2003, by and between Debtor and Secured Party, as the same
has been or hereafter may be amended, modified, supplemented, and/or restated
from time to time and at any time; (d) "DEFAULT RATE" shall have the meaning
ascribed to such term in the Credit Agreement or any promissory note issued
pursuant thereto; (e) "DOCUMENTS" shall mean all "documents" (as defined in the
UCC) or other receipts covering, evidencing or representing goods, now owned or
hereafter acquired by Debtor; (f) "GENERAL INTANGIBLES" shall mean all "general
intangibles" (as defined in the UCC) now owned or hereafter acquired by Debtor,
including, without limitation, (i) all obligations or indebtedness owing to
Debtor (other than Accounts) from whatever source arising, including, but not
limited to, indemnity and recourse claims, (ii) all tax refunds and all rights
or claims in respect of refunds for taxes paid, and (iii) all rights in respect
of any pension plan or similar arrangement maintained for employees of Debtor;
(g) "INSTRUMENTS" shall mean all "instruments", "chattel paper" or "letters of
credit" (each as defined in the UCC), now owned or hereafter acquired by Debtor;
(h) "INVESTMENT PROPERTY" shall mean all "investment property" (as defined in
the UCC) now owned or hereafter acquired by Debtor; (i) "LETTER OF CREDIT
RIGHTS" shall mean all rights to payment or performance under a letter of
credit, whether the beneficiary has demanded or is at the time entitled to
demand payment or performance, now owned or hereafter acquired by Debtor; (j)
"PROCEEDS" shall mean all "proceeds" (as defined in the UCC) of all or any of
the types or items of property described in (1) through (11) above, including
insurance proceeds and proceeds of all warranty and tort claims, and all
property of the types described in (1) through (11) above arising from or
received by Debtor in connection with the sale or disposition thereof; and (k)
"UCC" shall mean the Uniform Commercial Code as in effect on the date hereof in
the State of Indiana, Ind. Code Section 26-1-1-1 et seq., as the same may
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hereafter be amended. All capitalized terms used, but not defined, herein shall
have the meanings ascribed thereto in the Credit Agreement.
The assignment and security interest hereby granted to Secured
Party is given to secure the performance and payment when due of the
Indebtedness. As used herein, the term "INDEBTEDNESS" means (1) all
indebtedness, obligations and liabilities, and all renewals and extensions
thereof, now or hereafter owed by Debtor to Secured Party, now existing or
hereafter arising, evidenced by or arising under or pursuant to the Credit
Agreement, together any and all other indebtedness, obligations and liabilities
incurred by Debtor pursuant to any promissory note or guaranty executed and
delivered to Secured Party in connection therewith; (2) all extensions,
renewals, amendments, restatements or replacements of the foregoing, together
with all costs, expenses and reasonable attorneys' fees incurred by Secured
Party in the enforcement or collection of any of the foregoing, whether such
indebtedness, obligations and liabilities are direct, indirect, fixed,
contingent, liquidated, unliquidated, joint, several, joint and several, now
exist or hereafter arise; and (3) all costs and expenses incurred by Secured
Party to enforce this Security Agreement, including reasonable attorneys' fees.
Debtor represents and warrants to and agrees with Secured
Party as follows:
1. The Collateral.
(a) Title. Debtor has or will acquire, and will maintain
full and absolute title in Debtor to the Collateral, free of all claims,
assignments, security interests, liens and encumbrances other than the
assignment and security interest herein granted to Secured Party and claims,
assignments, liens, security interests and other encumbrances, if any, that are
permitted under the Credit Agreement (collectively, the "PERMITTED LIENS"), and
has good right to subject the Collateral to the assignment and security interest
granted by this Security Agreement. Debtor has and will maintain full possession
of all tangible personal property included in the Collateral and will defend the
Collateral against all adverse claims. Except with respect to Permitted Liens
and the security interest granted by this Security Agreement, no notice,
financing statement, mortgage, security agreement or similar or equivalent
document or instrument covering all or any part of the Collateral is on file or
of record in any jurisdiction in which such filing or recording would be
effective to perfect a lien or security interest on such Collateral. If any
Collateral is at any time in the possession or control of any warehouseman,
bailee, consignee or any of Debtor's agents or processors, Debtor shall notify
such warehouseman, bailee, consignee, agent or processor of the security
interests granted or created hereby and to hold all such Collateral for Secured
Party's account subject to Secured Party's instructions.
(b) Condition-Location. Debtor shall maintain the
Collateral in good condition, repair and operating order and shall not permit it
in any respect to be wasted, destroyed, or used in violation of law. Secured
Party, and its agents and representatives, may come upon Debtor's property to
examine and inspect the Collateral at any reasonable time or times, and for the
purpose of conducting appraisals of the Collateral. Debtor shall keep full and
accurate books and records relating to the Collateral. Unless Secured Party
otherwise consents, all business records constituting, relating to or evidencing
any of the Collateral shall be located at Debtor's chief executive office and
principal place of business located at 0000-X Xxxxxxxxxxx
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Xxxxx, Xxxxx 00, Xxx Xxxxx, XX 00000 ("DEBTOR'S CHIEF EXECUTIVE OFFICE"). All
Collateral is also located at Debtor's Chief Executive Office and at those
additional addresses set forth on the attached Schedule 1.
(c) Taxes
(d) and Assessments. Debtor shall promptly pay, as they
become due and payable, all taxes and assessments imposed upon the Collateral or
for its use or operation or upon this Security Agreement.
(e) Insurance. Debtor will maintain or will cause to be
maintained on its behalf policies of property and casualty insurance covering
the Collateral issued by fiscally sound and reputable insurers, which policies
of insurance shall be in such amounts, with such deductibles and against such
liabilities and hazards as customarily are maintained by other companies
operating similar businesses. All such policies of insurance shall be in form
and substance satisfactory to the Secured Party. Such policies of insurance
insuring all or any part of the Collateral shall (i) contain an endorsement
naming Secured Party as an additional insured and loss payee under a secured
lender's loss payable clause, and (ii) provide that the insurer will give
Secured Party thirty (30) days' prior written notice of the termination of such
policy. Debtor shall deliver to Secured Party the original (or a certified copy)
of each such policy of insurance, an appropriate certificate of insurance in
respect of each such policy, and evidence of the payment of all premiums
therefor when due. If Debtor at any time or times hereafter shall fail to obtain
or maintain or to cause to be maintained on its behalf any of the policies of
insurance required by this Security Agreement or to pay any premium in whole or
in part relating thereto, then Secured Party, without waiving or releasing any
Indebtedness or Event of Default, may at any time or times thereafter (but shall
be under no obligation to do so) obtain and maintain such policies of insurance
and pay such premiums and take any other action with respect thereto which
Secured Party deems advisable. After the occurrence of any Event of Default, and
so long as the Event of Default is continuing unremedied, Secured Party is
hereby appointed and authorized to act as attorney-in-fact for Debtor in making,
adjusting and settling claims under and canceling such insurance and endorsing
Debtor's name on any drafts drawn by insurers of the Collateral.
(f) Protection of Collateral. Debtor shall not, without
the prior written consent of Secured Party, sell, assign, transfer, or otherwise
dispose of any of the Collateral or any of Debtor's right, title or interest
therein, and shall not otherwise do or permit anything to be done or occur that
may impair the Collateral as security hereunder.
(g) Accounts. Each Account subject to the assignment to
and security interest of Secured Party: (i) is and will be free and clear from
setoffs or counterclaims, except to the extent that such setoffs or
counterclaims do not have a Materially Adverse Effect on Debtor's financial
condition; (ii) is not and will not be subject to any agreement wherein an
Account debtor on any Account may claim a deduction or discount except as
reflected on the document evidencing the Account; (iii) is and will be owned by
Debtor and Debtor shall have the right to subject such Account to the security
interest of Secured Party; and (iv) will not be sold, assigned or transferred to
any Person other than Secured Party, and Debtor will defend the same against any
Person claiming an interest in such Account adverse to the interest of Secured
Party. Upon
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request of Secured Party, Debtor will promptly notify (and Debtor hereby
authorizes Secured Party so to notify) each Account debtor in respect of any
Account or Instrument that such Collateral has been assigned to Secured Party,
and that any payments due or to become due in respect of such Collateral are to
be made directly to Secured Party, or its designee, and/or to one or more
lockbox accounts in accordance with instructions provided to such Account
debtors by Secured Party. Debtor has taken all actions necessary under the UCC
to perfect its interest in any Accounts purchased or otherwise acquired by it,
as against its assignors and creditors of its assignors.
(h) Name/Location. Debtor has not, during the six (6)
years preceding the date of this Security Agreement, been known as or used any
corporate, fictitious, or assumed name other than the name by which it is
identified in this Security Agreement. Debtor will not change (i) the location
of Debtor's Chief Executive Office; (ii) the location of any Collateral if such
change would cause the Lien and security interest of Secured Party in such
Collateral to lapse or cease to be perfected either immediately upon the
movement thereof or after the passage of time; or (iii) its name, identity or
corporate structure in any manner unless it shall have given Secured Party not
fewer than thirty (30) days' prior written notice thereof.
(i) Licenses, Patents, etc.. Debtor possesses adequate
assets, permits (including those required under applicable federal, state, and
local environmental health and safety statutes and regulations) licenses,
patents, patent applications, copyrights, trademarks, trademark registrations
and applications, and tradenames to continue to conduct its business as
presently conducted by it.
(j) Identifiers. Debtor's federal employer identification
number is 00-0000000. Debtor's organizational number issued by the State of
Nevada is 20567-03
2. Financing Statements, Certificates, Etc. Debtor will,
from time to time, at its expense, execute, deliver, file and record any
statement, assignment, instrument, document, agreement, notice or other paper
and take any other action, (including, without limitation, any filings of
financing or continuation statements under the UCC) that from time to time may
be necessary, or that Secured Party may reasonably request, in order to create,
preserve, perfect, confirm, validate, or protect the security interests granted
or created pursuant to this Security Agreement or to enable Secured Party to
obtain the full benefits of this Security Agreement, or to enable Secured Party
to exercise and enforce any of its rights, powers and remedies hereunder with
respect to any of the Collateral. To the extent necessary or desirable and
permitted by law, Debtor hereby authorizes Secured Party to prepare, execute and
file financing statements, amendments and continuation statements without
Debtor's signature appearing thereon. Debtor agrees that a carbon, photographic,
photostatic or other reproduction of this Security Agreement or of a financing
statement is sufficient as a financing statement. To the full extent permitted
by law, Debtor authorizes Secured Party and grants to Secured Party a power of
attorney (which is coupled with an interest and is irrevocable) to sign on
Debtor's behalf and file financing statements, continuation statements,
applications for certificates of title, notices, affidavits, and other documents
and any amendments thereto that Secured Party reasonably deems necessary or
desirable for the purpose of perfecting, protecting, and preserving the lien and
security interest of Secured Party in the Collateral. Debtor shall pay the
reasonable costs, fees, and expenses of, or incidental to, the perfection,
protection and preservation of Secured Party's Lien and security
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interest in the Collateral, including without limitation any costs of mailing
notices, recording or filing fees, recording taxes, stamp taxes, and certificate
of title application fees incurred in connection with the filing or recording of
all financing and continuation statements and other documents concerning the
Collateral.
At Debtor's cost and expense, Debtor shall:
(a) except as otherwise provided in (h) below, deliver to
Secured Party, immediately upon their receipt by or delivery to Debtor, all
notes or other instruments now or hereafter evidencing or securing any of the
Collateral and any guaranty or security therefor, together with appropriate
endorsements and assignments;
(b) upon request by Secured Party deliver to Secured
Party certified schedules, in such form as may be specified by Secured Party,
identifying the Collateral, or such part thereof as may be specified by Secured
Party, together with such supporting documents and information as Secured Party
reasonably may request;
(c) upon request by Secured Party, immediately deliver or
cause to be delivered to Secured Party, in due form for transfer (i.e., endorsed
in blank or accompanied by duly executed blank stock or bond powers), all
securities, instruments, and documents of title (subject to (e) below), if any,
at any time representing all or any of the Collateral;
(d) furnish or cause to be furnished to Secured Party
such appraisals, opinions of counsel regarding grants of valid and perfected
liens and security interests in favor of Secured Party in the Collateral, and
other documents with respect to the Collateral as Secured Party reasonably may
request from time to time;
(e) use all reasonable efforts to cause Secured Party's
Lien and security interest to be at all times duly noted on all certificates of
title issuable with respect to any of the Collateral and upon request by the
Secured Party after the occurrence of an Event of Default, forthwith deliver or
cause to be delivered to Secured Party each such certificate of title (except
for certificates of title issued with respect to Collateral that is subject to a
Permitted Lien that is prior to the lien and security interest of Secured Party
therein);
(f) acquire and maintain its property in a manner that
will enable such property to become subject to the Lien and security interest
granted under this Security Agreement;
(g) acquire and maintain the consent or approval of any
Person or entity whose consent or approval is required to the granting of a Lien
or security interest in any Collateral to the Secured Party; and
(h) upon request by Secured Party, cause all chattel
paper (as defined in the UCC) to be clearly stamped or marked to indicate that
such chattel paper is subject to an assignment and security interest in favor of
Secured Party or deliver such chattel paper to Secured Party, except for such
chattel paper that is subject to a Permitted Lien that is prior to the
assignment and security interest granted hereunder.
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3. General Covenants.
(a) Debtor agrees to pay promptly when due all taxes,
assessments and governmental charges upon or against the Collateral, or Debtor,
or for the property or operations of Debtor, in each case before the same become
delinquent and before penalties accrue thereon, unless and to the extent that
the same are diligently being contested in good faith by appropriate proceedings
and for which Debtor has established adequate reserves. Debtor shall give
written notice to Secured Party of all happenings and events adversely affecting
the Collateral or the value or amount thereof; including, without limitation,
the creation or assertion of any Lien or security interest against any of the
Collateral that is not a Permitted Lien.
(b) In the event Debtor fails to pay taxes, assessments,
costs and expenses which Debtor is required to pay or in the event Debtor fails
to keep the Collateral free from other assignments, security interests, Liens or
encumbrances not permitted under the terms of this Security Agreement, Secured
Party may make expenditures for any and all such purposes. All costs and
expenses of Secured Party in retaking, holding, preparing for sale and selling
or otherwise realizing upon any Collateral or enforcing any provisions hereof,
including reasonable attorneys' fees, shall constitute part of the Indebtedness,
and shall bear interest from the date incurred at the Default Rate.
(c) Debtor shall: (i) at all reasonable times allow
Secured Party and its agents or representatives to examine, inspect and/or make
abstracts from Debtor's books and records and to arrange for verification of
Collateral, under reasonable procedures, which in the case of Accounts may be
made directly with the Account debtors or by other methods; (ii) furnish to
Secured Party upon request additional statements of any Account, together with
all notes or other papers evidencing the same and any guaranty, security or
other information relating thereto; and (iii) Debtor will furnish or cause to be
furnished to Secured Party written reports of any changes that would be required
to be made to the Schedules to this Security Agreement in order for the
information contained in such Schedules to remain accurate, at or before the
time events requiring such changes occur.
(d) Debtor shall at all times and in all regards comply
with the terms and provisions of those certain Services Agreements dated as of
September 5, 2003, by and between Debtor and the respective Escalade Domestic
Subsidiaries.
4. Processing, Sale and Collections. Until the
occurrence of an Event of Default and receipt from Secured Party of written
notice of the revocation of Debtor's authority, Debtor, directly or through the
efforts of the Escalade Domestic Subsidiaries, acting pursuant to the Services
Agreements:
(a) will, at its own expense, endeavor to collect, as and
when due, all amounts due with respect to any Account, including the taking of
such action with respect to such collection as Secured Party may reasonably
request or, in the absence of such request, as Debtor may deem advisable; and
(b) may grant, in the ordinary course of business, to any
Account debtor, any rebate, refund or adjustment to which such Account debtor
may be lawfully entitled, and may
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accept, in connection therewith, the return of goods, the sale or lease of which
shall have given rise to the obligation of the Account debtor.
However, at any time before or after any revocation of such
authority or the maturity of any of the Indebtedness, Secured Party may notify
any Account debtor to make payment directly to Secured Party, or as Secured
Party may in its sole discretion direct, of any amounts due or to become due and
enforce the collection of any Account or contract right by suit or otherwise and
surrender, release or exchange all or any part thereof, or compromise or extend
or renew for any period (whether or not longer than the original period) any
indebtedness thereunder or evidenced thereby.
If requested by Secured Party, Debtor will note the security
interest of Secured Party on all records relative to the Collateral, including
without limitation any invoice that evidences an Account.
5. Performance by Secured Party of Debtor's Agreements.
Secured Party may, but shall have no duty to, perform any agreement of Debtor
hereunder which Debtor shall have failed to perform, and Debtor will forthwith
reimburse Secured Party for any payment made or any expense incurred by Secured
Party in connection with such performance. Such payments and expenses shall
constitute a part of the Indebtedness and shall bear interest at the Default
Rate from the date incurred by Secured Party.
6. Events of Default. The occurrence of each of the
following events shall constitute an Event of Default by Debtor under this
Security Agreement (referred to herein as an "EVENT OF DEFAULT"):
(a) The occurrence of any "Event of Default," as such
term is defined in the Credit Agreement; or
(b) Any breach by Debtor of any term, covenant or
provision of this Security Agreement.
7. General Authority. Debtor hereby irrevocably appoints
the Secured Party its true and lawful attorney, with full power of substitution,
in the name of Debtor, Secured Party, or otherwise, for the sole use and benefit
of Secured Party, but at Debtor's expense, to the extent permitted by law to
exercise, at any time and from time to time while an Event of Default has
occurred and is continuing, all or any of the following powers with respect to
all or any of the Collateral:
(a) to demand, xxx for, collect, receive and give
acquittance for any and all monies due or to become due thereon or by virtue
thereof;
(b) to settle, compromise, compound, prosecute or defend
any action or proceeding with respect thereto;
(c) to sell, transfer, assign or otherwise deal in or
with the same or the proceeds or avails thereof, as fully and effectually as if
Secured Party were the absolute owner thereof;
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(d) to extend the time of payment of any or all thereof
and to make any allowance and other adjustments with reference thereto; and
(e) to make all necessary or appropriate transfers of all
or any part of the Collateral in connection with any sale, lease or other
disposition thereof pursuant to this Security Agreement, and execute and deliver
any documents necessary or appropriate to effect, evidence or facilitate such
sale, lease or other disposition.
8. Remedies Upon Default. Time is of the essence of this
Security Agreement. Upon the occurrence of any Event of Default by Debtor under
this Security Agreement and at any time thereafter (such Event of Default not
previously having been cured), Secured Party shall be entitled, by written or
facsimile notice to Debtor, to declare all of the Indebtedness owed to it to be
immediately due and payable, whereupon the same shall become immediately due and
payable, without presentation, demand, protest, notice of protest, or other
notice of dishonor of any kind, all of which are hereby expressly waived. In
addition, upon the occurrence of any Event of Default and at any time thereafter
(such Event of Default having not previously been cured), Secured Party shall
have all the remedies of a secured party under the UCC and as otherwise provided
by applicable law, including but not limited to the following: Secured Party may
take possession of the Collateral and may use it after having done so. For
purposes of taking possession, Secured Party may enter upon any premises on
which the Collateral may be situated without legal process and remove the
Collateral. Debtor releases Secured Party from any claims arising from such
removal and shall hold Secured Party harmless from any liability resulting
therefrom. Secured Party may require Debtor to assemble the Collateral and make
it available at a place to be designated by Secured Party which is reasonably
convenient to all parties. Unless the Collateral threatens to decline speedily
in value or is of a type customarily sold on a recognized market, Secured Party
shall give Debtor at least ten (10) days' prior written notice of the time and
place of any public sale thereof or of the time after which any private sale or
any other intended disposition thereof is to be made. Upon any such sale Secured
Party shall have the right to deliver, assign and transfer to the purchaser
thereof the Collateral so sold. Each purchaser at any such sale shall hold the
Collateral so sold to it absolutely and free from any claim or right of
whatsoever kind, including any equity or right of redemption of Debtor which may
be waived, and Debtor, to the extent permitted by law, hereby specifically
waives all rights of redemption, stay or appraisal which it has or may have
under any law now existing or hereafter adopted. The notice (if any) of such
sale shall (1) in case of a public sale, state the time and place fixed for such
sale, and (2) in the case of a private sale, state the day after which such sale
may be consummated. Debtor agrees that such notice constitutes "reasonable
authenticated notification of disposition" within the meaning of Section 9-611
of the UCC. Any such public sale shall be held at such time or times within
ordinary business hours and at such place or places as Secured Party may fix in
the notice of such sale. At any such sale the Collateral may be sold in one lot
as an entirety or in separate parcels, as Secured Party may determine. Secured
Party shall not be obligated to make any such sale pursuant to any such notice.
Secured Party may, without notice or publication, adjourn any public or private
sale or cause the same to be adjourned from time to time by announcement at the
time and place fixed for the sale, and such sale may be made at any time or
place to which the same may be so adjourned. In case of any sale of all or any
part of the Collateral on credit or for future delivery, the Collateral so sold
may be retained by Secured Party until the selling price is paid by the
purchaser thereof, but Secured Party shall not incur any liability in case of
the failure of such
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purchaser to take up and pay for the Collateral so sold and, in case of any such
failure, such Collateral may again be sold upon like notice. Secured Party,
instead of exercising the power of sale herein conferred upon it, may proceed by
a suit or suits at law or in equity to foreclose its security interests and sell
the Collateral, or any portion thereof, under a judgment or decree of a court or
courts of competent jurisdiction. The expenses of retaking, holding, preparing
for sale, selling and the like, and reasonable attorneys' fees and expenses
incurred by Secured Party, may be paid from the proceeds of the disposition.
Secured Party may obtain the appointment of a receiver respecting the Collateral
upon such notice as may be required by applicable law and without notice if
permitted by such law, and may obtain immediate possession thereof in replevin.
Debtor hereby consents to the appointment of such receiver. Insofar as
Collateral shall consist of Accounts, insurance policies, instruments, chattel
paper, chooses in action or the like, Secured Party may demand, collect, receipt
for, settle, compromise, adjust, xxx for, foreclose or realize upon Collateral
as Secured Party may determine, whether or not the Indebtedness or Collateral
are then due and for the purpose of realizing Secured Party's rights therein,
Secured Party may receive, open and dispose of mail addressed to Debtor and
endorse notes, checks, drafts, money orders, documents of title or other
evidences of payment, shipment or storage or any form of Collateral on behalf of
and in the name of Debtor, as its attorney-in-fact. All remedies of Secured
Party shall be cumulative to the full extent provided by law. Pursuit by Secured
Party of certain judicial or other remedies shall not xxxxx nor bar resort to
other remedies with respect to the Collateral, and pursuit of certain remedies
with respect to all or some of the Collateral shall not bar other remedies with
respect to the Indebtedness or to other portions of the Collateral. Secured
Party may exercise its rights to the Collateral without resorting or regard to
other collateral or sources of security or reimbursement for the Indebtedness.
9. Nonwaiver-Expenses, Proceeds of Collateral. No waiver
by Secured Party of any of its rights shall be effective unless in writing, and
in no event shall it operate as a waiver of any other of its rights or of the
same rights on any future occasion.
Debtor shall pay to Secured Party on demand any and all
expenses, including reasonable attorneys' fees, incurred or paid by Secured
Party in perfecting, protecting or enforcing its rights upon or under the
Indebtedness or the Collateral. After deducting all of said expenses the residue
of any proceeds of collection or sale of the Collateral shall be applied to the
payment of the Indebtedness as Secured Party may determine, and Debtor shall
remain fully liable for any deficiency.
10. Limitation on Duty of Secured Party in Respect of
Collateral. Beyond the exercise of reasonable care in the custody thereof,
Secured Party shall have no duty as to any Collateral in its possession or
control or in the possession or control of any agent or bailee or any income
thereon or as to the preservation of rights against prior parties or any other
rights pertaining thereto. Secured Party shall be deemed to have exercised
reasonable care in the custody of the Collateral in its possession if the
Collateral is accorded treatment substantially equal to that which it accords
its own property, and shall not be liable or responsible for any loss or damage
to any of the Collateral, or for any diminution in the value thereof, by reason
of the act or omission of any warehouseman, carrier, forwarding agency,
consignee or other agent or bailee selected by Secured Party in good faith.
Secured Party shall not be responsible for the existence, genuineness or value
of any of the Collateral or for the validity, perfection, priority or
enforceability of the security interests granted or created hereunder in any of
the Collateral,
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whether impaired by operation of law or by reason of any action or omission to
act on its part hereunder. Secured Party shall have no duty to ascertain or
inquire as to the performance or observance of any of the terms of this Security
Agreement by Debtor.
11. Applicable Law-Definitions. Should applicable law
confer any rights or impose any duties inconsistent with or in addition to any
of the provisions of this Security Agreement, the affected provisions of this
Security Agreement shall be considered amended to conform to such law, but all
other provisions hereof shall remain in full force and effect without
modification. This Security Agreement shall be construed for all purposes under
the laws of the State of Indiana without reference to the conflicts of laws
rules or principles of any jurisdiction.
12. Successors in Interest. This Security Agreement shall
be binding upon and inure to the benefit of Debtor and Secured Party and their
respective successors, assigns and legal representatives. If at any time or
times by assignment or otherwise Secured Party transfers any of the Collateral,
such transfer shall carry with it Secured Party's power and rights under this
Security Agreement with respect to the Collateral transferred, and the
transferee shall become vested with said powers and rights whether or not they
are specifically referred to in the transfer. If and to the extent Secured Party
retains any other Collateral, Secured Party will continue to have the rights and
powers herein set forth with respect thereto.
13. This Security Agreement may be executed in any number
of counterparts, which taken together shall be considered as but one instrument,
and each of the parties agree that the facsimile signature of Debtor hereon
shall be deemed to have the same force and effect as an original, manual
signature and may be enforced by Secured Party accordingly.
14. Miscellaneous. DEBTOR HEREBY VOLUNTARILY, ABSOLUTELY,
IRREVOCABLY, KNOWINGLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO A TRIAL BY JURY
ON ANY CLAIM, COUNTERCLAIM, THIRD-PARTY CLAIM OR OTHERWISE, IN ANY LEGAL ACTION
OR PROCEEDING ARISING IN ANY WAY OUT OF OR WHICH IN ANY WAY INVOLVES ANY OF THE
RIGHTS, OBLIGATIONS OR REMEDIES OF ANY PARTY TO THIS SECURITY AGREEMENT OR ANY
DOCUMENT EXECUTED OR DELIVERED PURSUANT TO OR OTHERWISE IN CONNECTION WITH THIS
SECURITY AGREEMENT (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE). THIS
PROVISION IS A MATERIAL INDUCEMENT TO SECURED PARTY TO PROVIDE THE FINANCING
DESCRIBED IN THE CREDIT AGREEMENT. THE VALIDITY, INTERPRETATION AND ENFORCEMENT
OF THIS SECURITY AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE
OF INDIANA WITHOUT REGARD TO THE CONFLICTS OF LAWS RULES OR PRINCIPLES OF ANY
JURISDICTION. DEBTOR AGREES THAT THE COURTS OF THE STATE OF INDIANA LOCATED IN
INDIANAPOLIS, INDIANA, USA, AND THE FEDERAL COURTS LOCATED IN THE SOUTHERN
DISTRICT OF INDIANA, XXXXXX COUNTY, HAVE EXCLUSIVE JURISDICTION OVER ANY AND ALL
ACTIONS AND PROCEEDINGS INVOLVING THIS SECURITY AGREEMENT OR ANY OTHER AGREEMENT
MADE IN CONNECTION HEREWITH, AND DEBTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY
AGREES TO SUBMIT TO THE JURISDICTION OF SUCH COURTS FOR PURPOSES OF ANY SUCH
ACTION OR
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PROCEEDING. DEBTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION
THAT DEBTOR MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR
PROCEEDING, INCLUDING ANY CLAIM THAT SUCH COURT IS AN INCONVENIENT FORUM, AND
CONSENTS TO SERVICE OF PROCESS PROVIDED THE SAME IS IN ACCORDANCE WITH THE TERMS
HEREOF. FINAL JUDGMENT IN ANY SUCH PROCEEDING AFTER ALL APPEALS HAVE BEEN
EXHAUSTED OR WAIVED SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER
JURISDICTION BY SUIT ON THE JUDGMENT.
Executed and delivered by the duly authorized signatory of
Debtor as of this 5th day of September, 2003.
INDIAN-XXXXXX, INC., a corporation organized
and existing under the laws of the State of Nevada
By:_______________________________________________
(Printed Name and Title)
STATE OF______________________________)
) SS:
COUNTY OF_____________________________)
Before me, a Notary Public for said County and State,
personally appeared _________________, the _______________ of INDIAN-XXXXXX,
INC., a corporation organized and existing under the laws of Nevada, who being
duly sworn, acknowledged execution of the foregoing COLLATERAL ASSIGNMENT AND
SECURITY AGREEMENT for and on its behalf and stated that the representations
contained therein are true and correct.
Date:_________________________________ ____________________________________
(Signature)
____________________________________
(Printed Name), Notary Public
My Commission Expires:
______________________________________
My County of Residence:
______________________________________
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SCHEDULE I
Locations of Collateral
None, other than Debtor's Chief Executive Office
