005.238325.2
7
SECURITY AGREEMENT
THIS SECURITY AGREEMENT is made effective as of January 1, 2002, by and
between WILD HARE HOLDINGS, INC., a Florida corporation whose principal
business office is located at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxx,
Xxxxxxx 00000 ("Wild Hare"), and Excal Enterprises, Inc., a Delaware
corporation with an address of 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxx,
Xxxxxxx 00000 ("Excal"). In consideration of the mutual benefits contained
herein and to induce Excal to accept the credit of Wild Hare, the parties
hereto agree as follows:
1. Definitions. The following terms shall have the meanings indicated below
and shall be construed to have the broadest possible meanings permitted under
the Code:
"Agreement" means this Security Agreement as it is amended from time
to time.
"Account Debtor" means the person (whether a natural person,
corporation, unincorporated organization, trust, joint venture,
partnership or agency or political subdivision of any government)
who is obligated on an Account.
"Accounts" means all accounts receivable, including any rights of
payment for goods sold or leased or for services rendered which is
not evidenced by an instrument or chattel paper whether or not it has
been earned by performance and in addition includes all property
included in the definition of "accounts" as used in the Code.
"Code" means the Uniform Commercial Code as enacted by the State of
Florida as it shall be amended from time to time.
"Collateral" means all assets of Wild Hare, now owned or hereafter
acquired, including, but not limited to, those described on Exhibit A
hereto, and all parts, accessories, attachments additions, replacements,
accessions, substitutions, increases, profits, proceeds and products
thereof in any form and wherever located, together with all written or
electronically recorded records thereof, all computer programs
relating thereto and any and all other interests of any type or nature
therein as well as all other assets of the same class or classes
whether now owned or hereafter acquired by Wild Hare.
"Event of Default" shall have the meaning set forth in the Promissory
Note.
"Indebtedness" means all obligations and liabilities of Wild Hare to
Excal now existing or hereafter arising under the Promissory Note and
the full, complete and timely performance of any and all existing or
future obligations of Wild Hare under the Promissory Note.
"Permitted Encumbrances" means any liens or other interests in the
Collateral set forth on Exhibit B hereto, if any.
"Promissory Note" means that Secured Promissory Note given by Wild
Hare to Excal of even date herewith in the principal amount of
$663,541.75.
"Security Interest" means the security interest (as that term is
defined by the Code) granted by this Agreement.
2. Grant of Security Interest. Wild Hare hereby grants to Excal a
continuing and unconditional Security Interest in the Collateral to secure
the prompt, timely and complete repayment of the Indebtedness and the full,
complete and timely performance of any and all existing or future obligations
of Wild Hare incurred in any writing evidencing, describing or securing any
portion of the Indebtedness.
3. Warranties of Wild Hare. Wild Hare warrants and so long as this
Agreement continues in full force and effect shall be deemed to continuously
warrant to Excal (provided, however, in no event shall Wild Hare be liable for
punitive damages to the extent any representation or warranty hereunder shall
prove incorrect) that:
A. Good Title. Wild Hare is the owner of the Collateral free of all
security interests or other encumbrances or claims (including, without
limitation, any landlord's liens) except the Security Interest and
Permitted Encumbrances.
B. Power. Wild Hare has the full power and authority to enter into
this Agreement and this Agreement has been duly executed and is
enforceable in accordance with its terms except for such limits thereon
arising from bankruptcy and similar laws.
C. Use and Location of Collateral. The Collateral is used or acquired
for use primarily in Wild Hare's business operation and shall at all
times be maintained at one of Wild Hare's places of business as set forth
herein:
One Imeson Center
One Imeson Park Blvd., Building 100
Xxxxxxxxxxxx, Xxxxxxx 00000
D. Fixtures. Unless a legal description of certain real property is
included in Exhibit A attached hereto, setting forth the legal description
of the property on which any portion of the Collateral which is or may
become a fixture will be located, no portion of the Collateral will
become a fixture.
E. Location of Wild Hare. Wild Hare's place of business, or if Wild
Hare has more than one place of business, such Wild Hare's chief
executive office, is located at thataddress designated in the
introductory paragraph hereof,
F. Intangible Rights. Each Account constituting a portion of the
Collateral is genuine and enforceable in accordance with its terms except
for such limits thereon arising from bankruptcy and similar laws against
the Account Debtor thereof and the Account Debtor has no defense, setoff,
claim or counterclaim of a material nature against Wild Hare except as to
which Wild Hare will promptly notify Excal after Wild Hare learns
thereof.
G. No Defenses. Wild Hare has no defense, set-off or counterclaim
relating to any Indebtedness.
4. General Covenants of Wild Hare. So long as this Agreement has not been
terminated as provided hereafter, Wild Hare:
A. Title. Will defend the Collateral against the claim of all other
persons, subject to Permitted Encumbrances, if any;
B. No Encumbrances. Will keep the Collateral free of all security
interests or other interests and encumbrances, except the Security
Interest and Permitted Encumbrances, if any;
C. No Sale, Etc. Will not assign, deliver, sell, transfer, lease or
otherwise dispose of (including dispositions by operation of law),
outside of the ordinary course of business, any portion of the Collateral,
or any interest therein without the prior written consent of Excal;
D. Location of Collateral. Except in connection with sales in the
ordinary course of business, will keep the Collateral at the locations
specified in this Agreement and Wild Hare will not remove the Collateral
from any such location without the prior written consent of Excal;
E. Location of Wild Hare. Will notify Excal in writing 60 days in
advance of any change in Wild Hare's address (or the address of its
chief executive office if it has more than one address) from that
existing on the date hereof and will permit Excal or its agents to
inspect the Collateral at any time;
F. Care of Collateral. Will keep the Collateral in good repair and
will not use the Collateral in violation of any of the provisions of
this Agreement, or in violation of any applicable statute, regulation,
ordinance or any policy of insurance insuring the Collateral;
G. Financing Statements. Will execute and deliver to Excal such
financing statements and other documents, pay all costs including costs
of title searches and costs of filing financing statements and other
documents in any public offices requested by Excal and take such other
action as Excal may deem advisable to perfect the Security Interest
created by this Security Agreement;
H. Taxes. Will pay all taxes, assessments and other charges of every
nature which may be levied or assessed against the Collateral and will
make all required federal, state and local withholding payments with
respect to wages paid to employees of Wild Hare and its subsidiaries;
I. Accessions. Will prevent any part of the Collateral from becoming
an accession to or becoming commingled with other goods not covered by
this Agreement;
J. Fixtures. Unless the Collateral is specified above as a fixture,
will prevent the Collateral or any part of the Collateral from becoming
a fixture;
K. Preserve Rights. Will not take or permit to be taken any action
which might jeopardize or diminish any right of Wild Hare or Excal under
any Accounts;
L. Landlord's Liens. Will obtain subordination agreements satisfactory
to Excal from all lessors that might otherwise have superior liens on
any Collateral;
M. Documentary Tax. Will pay all documentary stamp-taxes and intangible
taxes and any penalties or interest with respect thereto, which may be
imposed upon Wild Hare, Excal, or this Agreement, or with respect to
any advances or loans by Excal to Wild Hare;
N. Further Assurances. Will take all other action reasonably requested
by Excal to effectuate the intent of this Agreement, to protect and
preserve the Collateral, and to protect, preserve and perfect the
Security Interest of Excal; including, without limitation, any action
required to comply with any laws or regulations governing the assignment
of government contracts.
5. Default. If an Event of Default shall occur and be continuing, Excal may
declare the Indebtedness or any portion or part thereof to be immediately due
and payable and thereupon such amount shall forthwith become due and payable
and Excal may take all of the actions or remedies specified in Section 6
hereof ("Remedies"), in the Promissory Note, or elsewhere herein; provided,
however, that the right of acceleration set forth herein does not in any way
limit any right which Excal has under any other instrument evidencing or
describing or securing any portion of the Indebtedness to demand immediate
payment thereof or to accelerate the maturity thereof or otherwise exercise
remedies with respect thereto, including, without limitation, its rights
under any instruments payable on demand, thereto.
6. Remedies. If an Event of Default shall have occurred and be continuing,
without waiving any of its rights under any other instrument evidencing or
describing or securing any portion of the Indebtedness, Excal shall have all
rights and remedies of a secured party under the Code of any applicable
jurisdiction and such other rights and remedies as may be available
hereunder, under other applicable law or pursuant to contract. If requested
by Excal, Wild Hare will promptly assemble the Collateral and make it
available to Excal at a place to be designated by Excal. Wild Hare agrees
that any notice by Excal of the sale or disposition of the Collateral or any
other intended action hereunder, whether required by the Code or otherwise,
shall constitute reasonable notice to Wild Hare if the notice is mailed to
Wild Hare by regular or certified mail, postage prepaid, at least ten days
before the action to be taken. Wild Hare also agrees to pay all costs and
expenses incurred by Excal in enforcing this Agreement and realizing upon any
Collateral (including reasonable attorneys' fees whether or not suit is
brought and whether or not incurred in connection with trial, appeals or
insolvency action) and the Borrower shall be liable for any deficiencies in
the event the proceeds of the disposition of the Collateral do not satisfy
the Indebtedness in full.
7. Miscellaneous Provisions.
A. Perfection. Wild Hare authorizes Excal at Wild Hare's expense to
file any financing statements relating to the Collateral (without Wild
Hare's signature thereon) which Excal deems appropriate and Wild Hare
appoints Excal as Wild Hare's attorney-in-fact to execute any such
financing statements in Wild Hare's name and to perform all other acts
which Excal deems appropriate to perfect and to continue perfection of
the Security Interest.
B. Right of Entry. Wild Hare hereby irrevocably consents to any lawful
act by Excal or its agents in entering upon any premises for the
purposes of either (i) inspecting the Collateral, or (ii) taking
possession of the Collateral after any Event of Default; and Wild Hare
hereby waives its right to assert against Excal or its agents any claim
based upon trespass or any similar cause of action for entering upon any
premises where the Collateral may be located.
C. Insurance Proceeds. Wild Hare authorizes Excal to collect and apply
against the Indebtedness any refund of insurance premiums or any
insurance proceeds payable on account of the loss or damage to any of
the Collateral and appoints Excal as Wild Hare's attorney-in-fact to
endorse any check or draft representing such proceeds or refund.
D. Right to Perform Obligation. Upon Wild Hare's failure to perform
any of its duties hereunder and five days notice of such failure from
Excal, Excal may, but it shall not be obligated to, perform any of such
duties and Wild Hare shall forthwith upon demand reimburse Excal for any
expenses incurred by Excal in so doing; provided that no notice shall be
required if in Excal's judgment such delay would materially jeopardize
or impair the value of its collateral.
E. No Waiver. No delay or omission by Excal in exercising any right
hereunder or with respect to any Indebtedness shall operate as a waiver
of that or any other right, and no single or partial exercise of any
right shall preclude Excal from any other or further exercise of the
right or the exercise of any other right or remedy. Excal may cure any
Default by Wild Hare in any reasonable manner without waiving the
Default so cured and without waiving any other prior or subsequent
Default by Wild Hare. All rights and remedies of Excal under this
Agreement and under the Uniform Commercial Code shall be deemed
cumulative.
F. Care of Collateral, Etc. Excal shall exercise reasonable care in
the custody and preservation of the Collateral to the extent required by
law and it shall be deemed to have exercised reasonable care if it takes
such action for that purpose as Wild Hare shall reasonably request in
writing; however, no omission to do any act not requested by Wild Hare
shall be deemed a failure to exercise reasonable care and no omission to
comply with any requests by Wild Hare shall of itself be deemed a
failure to exercise reasonable care. Excal shall have no obligation to
take and Wild Hare shall have the sole responsibility for taking any
steps to preserve rights against all prior parties to any instrument or
chattel paper in Excal's possession as Collateral or as proceeds of the
Collateral. Wild Hare waives notice of dishonor and protest of any
instrument constituting Collateral or proceeds of Collateral at any time
held by Excal on which Wild Hare is in any way liable and waives notice
of any other action taken by Excal.
G. Notification of Account Debtors. Before or after any Default, Excal
may notify any Account Debtor of the Security Interest and may also
direct such Account Debtor to make all payments on the Collateral to
Excal. All payments on and other proceeds from the Collateral received
by Excal directly or from Wild Hare shall be applied to the Indebtedness
in such order and manner and at such time as Excal shall in its sole
discretion determine. If Excal so notifies Wild Hare in writing, any
payments on or other proceeds of the Collateral received by Wild Hare
before or after notification to the Account Debtor shall be held by Wild
Hare in trust for Excal in the same medium in which received, shall not
be commingled with any assets of Wild Hare and shall be turned over to
Excal not later than the next business day following the day of their
receipt. Wild Hare shall also promptly notify Excal of the return to
or repossession by Wild Hare of goods underlying any Collateral.
H. Other Rights. Wild Hare acknowledges that its obligations hereunder
are absolute and unconditional and authorizes Excal without affecting
Wild Hare's obligations hereunder from time to time to take the
following actions, whether or not increasing the risk of loss to Wild
Hare:
(i) to renew, extend, increase, accelerate or otherwise change the
time for payment of the terms of or the interest on the obligations
evidenced by the Promissory Note or the Indebtedness or any part
thereof;
(ii) to take from any party and hold collateral (other than the
Collateral) for the payment of the Indebtedness or any part thereof,
and to exchange, enforce or release such collateral or any guaranty
of payment of the Indebtedness or any part thereof and to release or
substitute any such endorser or guarantor or any party who has given
any security interest in any collateral as security for the payment
of the Indebtedness or any part thereof or any party in any way
obligated to pay the Indebtedness or any part thereof; and
(iii) upon the occurrence of any Event of Default to direct the
manner of the disposition of the Collateral and any other collateral
and the enforcement of any endorsements or guaranties relating to
the Indebtedness or any part thereof as Excal in its sole discretion
may determine,
I. Enforcement. Excal may demand, collect and xxx for all amounts owed
pursuant to Accounts or for proceeds of any Collateral (either in Wild
Hare's name or Excal's name at the latter's option), with the right to
enforce, compromise, settle or discharge any such amounts. Wild Hare
appoints Excal as Wild Hare's attorney-in-fact to endorse Wild Hare's
name on all checks, commercial paper and other instruments pertaining to
Collateral or proceeds.
J. Assignment. The rights and benefits of Excal under this Agreement
shall, if Excal agrees, inure to any party acquiring an interest in the
Indebtedness or any part thereof.
K. Benefit. The terms "Excal," and "Wild Hare" as used in this
agreement include the heirs, personal representatives and successors or
assigns of those parties and this Agreement shall benefit and bind such
parties. If more than one person is named herein as Wild Hare, the
Obligation hereunder shall be joint and several.
L. Amendment. This Agreement may not be modified or amended nor shall
any provision of it be waived except in writing signed by Wild Hare and
by an authorized officer of Excal.
M. Governing Law. This Agreement shall be construed under the Florida
Uniform Commercial Code and any other applicable laws of Florida in
effect from time to time.
N. Term. This Agreement is a continuing agreement which shall remain
in force until Excal shall actually receive written notice of its
termination and thereafter until all of the Indebtedness contracted for
or created before receipt of the notice and any extensions or renewals
of that Indebtedness (whether made before or after receipt of the
notice), including without limitation all interest thereon both before
and after receipt of the notice, shall be paid in full and any
commitment of Excal to extend credit to Wild Hare shall have terminated.
Upon termination of the Agreement, Excal shall take all steps reasonably
requested (but at Wild Hare's cost) by Wild Hare to release its Security
Interest.
O. Notices. Notices required or permitted to be given hereunder shall
be given to the parties at the addresses set forth in the introductory
paragraphs hereto or at such other address as may be designated in
writing from time to time by one party to the other. Any such notices
or communications shall be deemed to be received upon the earlier of
actual receipt at the address provided or, if mailed, two business days
after mailing by first class mail.
X. Xxxxxx. All xxxxxx granted to Excal herein are coupled with an
interest and are irrevocable.
Q. No Usury. Notwithstanding anything herein or in any evidence of
Indebtedness, Wild Hare shall not be required to pay nor shall Excal be
entitled to charge any interest or charges in the nature of interest in
excess of that permitted by applicable law and if any such excess is
paid or charged, it shall be immediately repaid to Wild Hare, together
with interest on such excess amounts from the date charged at the
highest lawful rate in effect at the time of the overcharge. Wild Hare
hereby agrees that the right to require such refund is its exclusive
remedy with respect thereto.
R. Approvals. If this Agreement calls for the approval or consent of
Excal, such approval or consent may be given or withheld in the
discretion of Excal unless otherwise specified herein.
S. Venue. Wild Hare (a) consents to the personal jurisdiction of the
state and federal courts having jurisdiction in Hillsborough County,
Florida, (b) stipulates that the proper, exclusive, and convenient venue
for any legal proceeding arising out of this Agreement is Hillsborough
County, Florida, for state court proceedings, and the Middle District
of Florida for federal district court proceedings, and (c) waives any
defense, whether asserted by a motion or pleading, that Hillsborough
County, Florida, or the Middle District of Florida is an improper or
inconvenient venue.
T. Arbitration. In any mediation, arbitration, or legal proceeding
arising out of this Agreement, the losing party shall reimburse the
prevailing party, on demand, for all costs incurred by the prevailing
party in enforcing, defending, or prosecuting any claim arising out of
this Agreement, including all fees, costs and expenses of experts,
attorneys, witnesses, collection agents, and supersedeas bonds, whether
incurred before or after demand or commencement of legal proceedings,
and whether incurred pursuant to trial, appellate, mediation,
arbitration, bankruptcy, administrative or judgment-execution
proceedings.
TO THE EXTENT PERMITTED BY LAW, WILD HARE AGREES TO AND DOES HEREBY
WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY
EITHER WILD HARE OR EXCAL ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN
ANY WAY CONNECTED WITH THIS AGREEMENT OR ANY CLAIM OF DAMAGE RESULTING FROM
ANY ACT OR OMISSION OF WILD HARE OR EXCAL OR EITHER OF THEM IN ANY WAY
CONNECTED WITH THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have executed this instrument as
of the date first stated above.
WILD HARE HOLDINGS, INC.
By:
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Print Name:
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Title:
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EXCAL ENTERPRISES, INC.
By:
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Name:
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Title:
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SCHEDULE OF EXHIBITS
Exhibit Section Reference Title
A Definition of Description of
"Collateral" Collateral
B Definition of Permitted Encumbrances
"Permitted Encumbrances"
EXHIBIT A
Description Of Collateral
DEBTOR: WILD HARE HOLDINGS, INC.
SECURED PARTY: EXCAL ENTERPRISES, INC.
All of the Debtor's right, title and interest in and to the following
property and interests in property, whether now owned or hereafter acquired
or arising and wheresoever located:
1. all the Debtor's presently existing and hereafter arising or acquired
accounts, contract rights, chattel paper, instruments or documents including,
without limitation, all accounts receivable, margin accounts, futures
positions, book debts, notes, drafts, acceptances and other forms of
obligations now or hereafter owned or held by or payable to the Debtor
relating in any way to Inventory (as hereinafter defined) or arising from the
sale of Inventory or the rendering of services by the Debtor or howsoever
otherwise arising, including the right to payment of any interest or finance
charges with respect thereto; together with all merchandise represented by
any of the foregoing; all such merchandise that may be reclaimed or
repossessed or returned to the Debtor; all of the Debtor's rights as an
unpaid vendor, including stoppage in transit, reclamation, replevin, and
sequestration; all pledged assets and all letters of credit, guaranty claims,
liens, and security interests held by or granted to the Debtor to secure
payment of any of the foregoing; and all proceeds and products of any of the
foregoing; and all proceeds of insurance with respect thereto, including the
proceeds of any applicable credit insurance or fidelity bond, whether payable
in cash or in kind; and all customer lists, ledgers, books of account,
records, computer runs, and other computer prepared information relating to
any of the foregoing;
2. all of the Debtor's presently owned or hereafter acquired general
intangibles including, without limitation, all goodwill, choses in action,
causes of action, franchises, methods, sales literature, drawings,
specifications, corporate and other business records, descriptions, name
plates, catalogs, dealer contracts, supplier contracts, distributor
agreements, confidential information, consulting agreements, employment
agreements, engineering contracts, leasehold interests in real and personal
property, insurance policies (including business interruption insurance)
licenses, permits and such other assets which uniquely reflect the goodwill
of the business of the Debtor; deposit accounts, letters of credit, and
General Intangibles (as herein defined) relating to the other items of
personal property and interests in personal property and the real estate or
interests in real estate now owned or hereafter acquired by the Debtor in or
upon which a security interest, lien or mortgage is now or hereafter granted
to the Secured Party by the Debtor, including without limitation, rights to
refunds or indemnification; reversionary or other rights of the Debtor to
excess assets of any employee benefit plan or other plan for any employees of
the Debtor and any employees of any entity which is a member of a controlled
group or under common control with the Debtor, upon termination or amendment
thereof; proceeds of all of the foregoing, including without limitation,
insurance proceeds, including proceeds of business interruption insurance,
income tax refunds, and claims for tax or other refunds against any city,
county, state, or federal government, or any agency or authority or other
subdivision thereof (collectively, the "General Intangibles");
3. all inventory of every kind and description, now or at any time
hereafter owned by the Debtor or in the custody or possession, actual or
constructive, of the Debtor, wherever located, including, without limitation,
all merchandise, raw materials, parts, supplies, work-in-process and finished
goods intended for sale, together with all of the containers, packing,
packaging, shipping and similar materials related thereto, and including such
inventory as is temporarily out of the Debtor's custody or possession,
including inventory on the premises of others and items in transit, and
including any returns and repossessions upon any accounts relating to or
arising from the sale of Inventory, and all substitutions and replacements
therefor, and all additions and accessions thereto, and all ledgers, books of
account, records, computer printouts, computer runs, and other computer
prepared information relating to any of the foregoing, and any and all
proceeds of any of the foregoing, including, without limitation, proceeds of
insurance policies thereon (collectively, the "Inventory");
4. all of the Debtor's equipment and fixtures, including, without
limitation, all machinery, conveyors, machine tools, data processing and
computer equipment with software and peripheral equipment, and all
engineering, processing and manufacturing equipment, office machinery,
furniture, materials, handling equipment, tools, attachments, accessories,
automotive equipment, trailers, trucks, ships, vessels, airplanes, forklifts,
molds, dies, stamps, motor vehicles, rolling stock and other equipment of
every kind and nature, and fixtures not forming a part of the real estate
owned or leased by the Debtor, all whether now owned or hereafter acquired,
and wherever situated, together with all additions and accessions thereto,
replacements therefor, all parts therefor, all substitutes for any of the
foregoing, fuel therefor, and all manuals, drawings, instructions, warranties
and rights with respect thereto, and all products and proceeds thereof and
requisition or condemnation awards and insurance proceeds with respect
thereto;
5. all of the Debtor's now owned or hereafter acquired or developed
designs, patents, patent rights and applications therefor, trademarks and
registrations or applications therefor, trade names, inventions, copyrights
and all applications and registrations therefor, software or computer
programs, license rights, trade secrets, methods, processes, know-how,
drawings, specifications, descriptions, and all memoranda, notes, and records
with respect to any research and development, whether now owned or hereafter
acquired, and proceeds of all of the foregoing including, without limitation,
proceeds of insurance policies thereon;
6. all of the Debtor's deposit accounts (general or special) with any
financial institution with which the Debtor maintains deposits;
7. all of the Debtor's now owned or hereafter acquired monies, and any and
all other property and interests in property of the Debtor now or hereafter
coming into the actual possession, custody or control of the Secured Party or
any agent or affiliate of the Secured Party or any person now or from time
hereafter purchasing participation interests in the loans or advances made by
the Secured Party to the Debtor in any way or for any purpose (whether for
safekeeping, deposit, custody, pledge, transmission, collection or
otherwise);
8. all insurance policies relating to any of the foregoing, including
without limitation business interruption insurance;
9. all of the Debtor's books and records (including, without limitation,
customer lists, credit files, computer programs, printouts and other computer
materials and records) relating to any of the foregoing;
10. all accessions and additions to, substitutions for, products of and
replacements of any of the foregoing; and
11. all cash collections from, and all other cash and non-cash proceeds of,
any of the foregoing.
EXHIBIT B
Permitted Encumbrances
None.
