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EXHIBIT 10.4(B)
SECURITY AGREEMENT
THIS SECURITY AGREEMENT is made and entered into as of the 28th day of
August, 1995, by ▇▇▇▇▇▇ INSTRUMENT CORPORATION, an Indiana corporation
(hereinafter called "Debtor"), whose chief executive office (or residence if
Debtor is an individual without an office) is located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., in favor of
BANK ONE, ARIZONA, NA, a national banking association, and its successors and
assigns (hereinafter called "Secured Party"), whose address is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Commercial Banking A593.
1. SECURITY INTEREST
Debtor hereby grants to Secured Party a security interest (hereinafter
called the "Security Interest") in all of Debtor's right, title and interest in
and to the following described personal property:
(a) All accounts, general intangibles, instruments, documents and
chattel paper (including all accounts receivable, notes, drafts, lease
agreements and security agreements), and all goods, if any, represented
thereby, whether now existing or hereafter acquired or created from time
to time in the course of Debtor's business;
(b) All inventory now owned or hereafter acquired, including all
goods held for sale or lease in Debtor's business, as now or hereafter
conducted, and all materials, work in process and finished goods used or
to be consumed in Debtor's business (whether or not the inventory is
represented by warehouse receipts or bills of lading or has been or may be
placed in transit or delivered to a public warehouse);
(c) All equipment now owned or hereafter acquired, including all
furniture, fixtures, furnishings, vehicles (whether titled or non-titled),
machinery, materials and supplies, wherever located, including but not
limited to such items described on the collateral schedule (if any)
attached hereto and by this reference made a part hereof, together with
all parts, accessories, attachments, additions thereto or replacements
therefor;
(d) All instruments, documents and chattel paper now held by or
hereafter delivered to Secured Party, together with all property rights
and security interests evidenced thereby, all increases thereof
(including, without limitation, stock dividends), all profits therefrom
and all transformations thereof, including but not limited to such items
described on the collateral schedule (if any)
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attached hereto and by this reference made a part hereof (all
hereinafter called the "Specific Collateral-in-Possession");
(e) The following specific items of personal property described on
Exhibit "1" attached hereto and by this reference incorporated herein;
together with (i) all policies or certificates of insurance covering any of the
foregoing property, and all awards, loss payments, proceeds and premium refunds
that may become payable with respect to such policies; (ii) all property of
Debtor that is now or may hereafter be in the possession or control of Secured
Party in any capacity, including without limitation all monies owed or that
become owed by Secured Party to Debtor and (iii) all proceeds of any of the
foregoing property, whether due or to become due from any sale, exchange or
other disposition thereof, whether cash or non-cash in nature, and whether
represented by checks, drafts, notes or other instruments for the payment of
money, including, without limitation, all property, whether cash or non-cash in
nature, derived from tort, contractual or other claims arising in connection
with any of the foregoing property. All property described above is hereinafter
called the "Collateral."
2. OBLIGATION SECURED
The Security Interest shall secure, in such order of priority as Secured
Party may elect:
(a) Payment of the sum of $4,000,000.00 according to the terms of
that Revolving Promissory Note of even date herewith, made by Debtor,
payable to the order of Secured Party, evidencing a revolving line of
credit, all or any part of which may be advanced to Debtor, repaid by
Debtor and readvanced to Debtor, from time to time, subject to the terms
and conditions thereof, with interest thereon, extension and other fees,
late charges, prepayment premiums and attorneys' fees, according to the
terms thereof, and all extensions, modifications, renewals or replacements
thereof (hereinafter called the "RLC Note");
(b) Payment of the sum of $4,200,000.00 with interest thereon,
extension and other fees, late charges, prepayment premiums and attorneys'
fees, according to the terms of that Promissory Note (Term Note) of even
date herewith, made by Debtor, payable to the order of Secured Party, and
all extensions, modifications, renewals or replacements thereof
(hereinafter called the "Term Note");
(c) Payment of the sum of $1,000,000.00 with interest thereon,
extension and other fees, late charges, prepayment premiums and attorneys'
fees, according to the terms of that Promissory Note (Term Note) of even
date herewith, made by Debtor, payable to the
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order of Secured Party, and all extensions, modifications, renewals or
replacements thereof (hereinafter called the "Acquisition Note") (the RLC
Note, the Term Note and the Acquisition Note are hereinafter severally and
collectively called the "Note");
(d) Payment, performance and observance by Debtor of each covenant,
condition, provision and agreement contained herein and of all monies
expended or advanced by Secured Party pursuant to the terms hereof, or to
preserve any right of Secured Party hereunder, or to protect or preserve
the Collateral or any part thereof;
(e) Payment, performance and observance by Debtor of each covenant,
condition, provision and agreement contained in that Loan Agreement of
even date herewith, by and between Debtor and Secured Party (hereinafter
called the "Loan Agreement") and in any other document or instrument
related to the indebtedness described in subparagraphs (a), (b) and (c)
above and of all monies expended or advanced by Secured Party pursuant to
the terms thereof or to preserve any right of Secured Party thereunder;
(f) Payment and performance of any and all other indebtedness,
obligations and liabilities of Debtor to Secured Party of every kind and
character, direct or indirect, absolute or contingent, due or to become
due, now existing or hereafter incurred, whether such indebtedness is from
time to time reduced and thereafter increased or entirely extinguished and
thereafter reincurred;
except if any portion of the Collateral is as of the date hereof intended to be
used primarily for personal, family or household purposes, that portion of the
Collateral shall secure only the Specified Obligation. All of the indebtedness
and obligations secured by this Agreement are hereinafter collectively called
the "Obligation."
3. USE; LOCATION; CONSTRUCTION
3.1 The Collateral is or will be used or produced primarily for business
(including a profession but excluding farming).
3.2 The Collateral will be kept at Debtor's address set forth at the
beginning of this Agreement and/or at the following location(s): (i) ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇; (ii) ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇; and (iii) ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
3.3 Debtor's records concerning the Collateral will be kept at Debtor's
address set forth at the beginning of this Agreement and/or at the following
location(s): (i) ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇; (ii) ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇; (iii) ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇,
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▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; and (iv) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇.
4. REPRESENTATIONS AND WARRANTIES OF DEBTOR
Debtor hereby represents and warrants that:
4.1 If Debtor is a corporation, limited liability company, partnership or
trust, it (i) is duly organized, validly existing and in good standing under the
laws of the state in which it is organized; (ii) is qualified to do business and
is in good standing under the laws of the state in which the Collateral is
located and in each state in which it is doing business; (iii) has full power
and authority to own its properties and assets and to carry on its businesses as
now conducted; and (iv) is fully authorized and permitted to execute and deliver
this Agreement and to enter into any transactions evidenced by any portion of
the Collateral. Subject to Debtor's obligations to Foothill Capital Corporation
("Foothill"), which obligations will be terminated prior to the initial advance
under the Note, the execution, delivery and performance by Debtor of this
Agreement and all other documents and instruments relating to the Obligation
will not result in any breach of the terms and conditions or constitute a
default under any agreement or instrument under which Debtor is a party or is
obligated. Debtor is not in default in the performance or observance of any
covenants, conditions or provisions of any such agreement or instrument.
4.2 Subject to security interests in favor of Foothill, which security
interests will be released prior to the initial advance under the Note, Debtor
is the owner of the Collateral free of all security interests or other
encumbrances except the Security Interest and no financing statement covering
the Collateral is filed or recorded in any public office, other than Permitted
Liens (as defined in the Loan Agreement).
4.3 The Collateral is, and is intended to be, used, produced or acquired
by Debtor for use primarily for the purpose marked in Section 3 above. The
address of Debtor set forth at the beginning of this Agreement is the chief
executive office of Debtor or Debtor's residence if Debtor is an individual
without an office. If a portion of the Collateral is or will become a fixture,
it will be affixed to real property covered by a mortgage executed by Debtor in
favor of Secured Party.
4.4 Each account, chattel paper or general intangible included in the
Collateral is genuine and enforceable in accordance with its terms against the
party named therein who is obligated to pay the same (hereinafter called
"Obligor"), and the security interests that are part of each item of chattel
paper included in the Collateral are valid, first and prior perfected security
interests. Each Obligor is solvent, and the amount that Debtor has represented
to Secured Party as owing by each Obligor is the amount actually and
unconditionally owing by that Obligor, without deduction except for normal cash
discounts where applicable; no Obligor has any defense, setoff, claim or
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counterclaim against Debtor that can be asserted against Secured Party whether
in any proceeding to enforce the Security Interest or otherwise. Each document,
instrument and chattel paper included in the Collateral is complete and regular
on its face and free from evidence of forgery or alteration. No default has
occurred in connection with any instrument, document or chattel paper included
in the Collateral, no payment in connection therewith is overdue and no
presentment, dishonor or protest has occurred in connection therewith.
5. COVENANTS OF DEBTOR
5.1 Debtor shall not sell, transfer, assign or otherwise dispose of any
Collateral or any interest therein (except as permitted herein), with an
aggregate value in excess of $50,000.00 during any fiscal year, without
obtaining the prior written consent of Secured Party and, after the initial
advance under the Note, shall keep the Collateral free of all security interests
or other encumbrances except the Security Interest and Permitted Liens. Although
proceeds of Collateral are covered by this Agreement, this shall not be
construed to mean that Secured Party consents to any sale of the Collateral.
5.2 Debtor shall keep and maintain the Collateral in good condition and
repair and shall not use the Collateral in violation of any provision of this
Agreement or any applicable statute, ordinance or regulation or any policy of
insurance insuring the Collateral.
5.3 Debtor shall provide and maintain insurance insuring the Collateral
against risks, with coverage and in form and amount satisfactory to Secured
Party. At Secured Party's request, Debtor shall deliver to Secured Party the
original policies of insurance containing endorsements naming Secured Party as a
loss payee.
5.4 Debtor shall pay when due all taxes, assessments and other charges
which may be levied or assessed against the Collateral; provided, that, upon
Notice to Secured Party, Debtor shall have the right to reasonably contest such
items in accordance with applicable law.
5.5 Debtor shall prevent any portion of the Collateral that is not a
fixture from being or becoming a fixture and shall prevent any portion of the
Collateral from being or becoming an accession to other goods that are not part
of the Collateral.
5.6 If the Collateral includes motor vehicles, Debtor shall provide
Secured Party with the license numbers of all titled vehicles, shall cause the
Security Interest to be shown as a valid first lien on the Certificate of Title
for all titled vehicles and shall deliver lien filing receipts to Secured Party
as evidence thereof.
5.7 Debtor, upon demand, shall promptly deliver to Secured Party all
instruments, documents and chattel paper included in the Collateral and all
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invoices, shipping or delivery records, purchase orders, contracts or other
items related to the Collateral. Debtor shall notify Secured Party immediately
of any default by any Obligor in the payment or performance of its obligations
with respect to any Collateral. Debtor, without Secured Party's prior written
consent, shall not make or agree to make any alteration, modification or
cancellation of, or substitution for, or credit, adjustment or allowance on, any
Collateral.
5.8 Debtor shall give Secured Party immediate written notice of any change
in the location of: (i) Debtor's chief executive office (or residence if Debtor
is an individual without an office); (ii) the Collateral or any part thereof; or
(iii) Debtor's records concerning the Collateral.
5.9 Secured Party or its agents may inspect the Collateral at reasonable
times and may enter into any premises where the Collateral is or may be located.
Debtor shall keep records concerning the Collateral in accordance with generally
accepted accounting principles and, upon the occurrence of an Event of Default,
shall ▇▇▇▇ its records and the Collateral to indicate the Security Interest.
Secured Party shall have free and complete access to Debtor's records and shall
have the right to make extracts therefrom or copies thereof. Upon request of
Secured Party from time to time, Debtor shall submit up-to-date schedules of the
items comprising the Collateral in such detail as Secured Party may require and
shall deliver to Secured Party confirming specific assignments of all accounts,
instruments, documents and chattel paper included in the Collateral.
5.10 Debtor, at its cost and expense, shall protect and defend this
Agreement, all of the rights of Secured Party hereunder, and the Collateral
against all claims and demands of other parties, including without limitation
defenses, setoffs, claims and counterclaims asserted by any Obligor against
Debtor and/or Secured Party. Debtor shall pay all claims and charges that in the
opinion of Secured Party might prejudice, imperil or otherwise affect the
Collateral or the Security Interest. Debtor shall promptly notify Secured Party
of any levy, distraint or other seizure by legal process or otherwise of any
part of the Collateral and of any threatened or filed claims or proceedings that
might in any way affect or impair the terms of this Agreement.
5.11 The Security Interest, at all times after the initial advance under
the Note, shall be perfected and shall be prior to any other interests in the
Collateral, other than Permitted Liens. Debtor shall act and perform as
necessary and shall execute and file all security agreements, financing
statements, continuation statements and other documents requested by Secured
Party to establish, maintain and continue the perfected Security Interest.
Debtor, on demand, shall promptly pay all costs and expenses of filing and
recording, including the costs of any searches, deemed necessary by Secured
Party from time to time to establish and determine the validity and the
continuing priority of the Security Interest.
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5.12 If Debtor shall fail to pay any taxes, assessments, expenses or
charges, to keep all of the Collateral free from other security interests,
encumbrances or claims, to keep the Collateral in good condition and repair, to
procure and maintain insurance thereon, or to perform otherwise as required
herein, Secured Party may, upon thirty (30) days notice to Debtor (unless
Secured Party determines an emergency exists in which case no notice shall be
required), advance the monies necessary to pay the same, to accomplish such
repairs, to procure and maintain such insurance or to so perform; Secured Party
is hereby authorized to enter upon any property in the possession or control of
Debtor for such purposes.
5.13 All rights, powers and remedies granted Secured Party herein, or
otherwise available to Secured Party, are for the sole benefit and protection of
Secured Party, and Secured Party may exercise any such right, power or remedy at
its option and in its sole and absolute discretion without any obligation to do
so. In addition, if under the terms hereof, Secured Party is given two or more
alternative courses of action, Secured Party may elect any alternative or
combination of alternatives at its option and in its sole and absolute
discretion. All monies advanced by Secured Party under the terms hereof and all
amounts paid, suffered or incurred by Secured Party in exercising any authority
granted herein, including reasonable attorneys' fees, shall be added to the
Obligation, shall be secured by the Security Interest, shall bear interest at
the highest rate payable on any of the Obligation until paid, and shall be due
and payable by Debtor to Secured Party immediately without demand.
6. NOTIFICATION AND PAYMENTS; COLLECTION OF COLLATERAL; USE OF COLLATERAL BY
DEBTOR
6.1 Secured Party, after the occurrence of any Event of Default, defined
below, and without notice to Debtor, may notify any or all Obligors of the
existence of the Security Interest and may direct the Obligors to make all
payments on the Collateral to Secured Party. Until Secured Party has notified
the Obligors to remit payments directly to it, Debtor, at Debtor's own cost and
expense, shall collect or cause to be collected the accounts and monies due
under the accounts, documents, instruments and general intangibles or pursuant
to the terms of the chattel paper. Secured Party shall not be liable or
responsible for any embezzlement, conversion, negligence or default by Debtor or
Debtor's agents with respect to such collections; all agents used in such
collections shall be agents of Debtor and not agents of Secured Party. Unless
Secured Party notifies Debtor in writing that it waives one or more of the
requirements set forth in this sentence, after the occurrence of any Event of
Default, any payments or other proceeds of Collateral received by Debtor, before
or after notification to Obligors, shall be held by Debtor in trust for Secured
Party in the same form in which received, shall not be commingled with any
assets of Debtor and shall be turned over to Secured Party not later than the
next business day following the day of receipt. All payments and other proceeds
of Collateral received by Secured Party directly or from Debtor shall be applied
to the Obligation in such order and manner and at such time as Secured Party, in
its sole discretion, shall
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determine. In addition, Debtor shall promptly notify Secured Party of the return
to or possession by Debtor of goods underlying any Collateral; Debtor shall hold
the same in trust for Secured Party and shall dispose of the same as Secured
Party directs.
6.2 Secured Party, before or after the occurrence of an Event of Default
and without notice to Debtor, may demand, collect and ▇▇▇ on the Collateral
(either in Debtor's or Secured Party's name), enforce, compromise, settle or
discharge the Collateral and endorse Debtor's name on any instruments,
documents, or chattel paper included in or pertaining to the Collateral; Debtor
hereby irrevocably appoints Secured Party its attorney in fact for all such
purposes.
6.3 Until the occurrence of an Event of Default, Debtor may: (i) use,
consume and sell any inventory included in the Collateral in any lawful manner
in the ordinary course of Debtor's business provided that all sales shall be at
commercially reasonable prices; and (ii) subject to Paragraphs 6.1 and 6.2
above, retain possession of any other Collateral and use it in any lawful manner
consistent with this Agreement.
7. COLLATERAL IN THE POSSESSION OF SECURED PARTY
7.1 Secured Party shall use such reasonable care in handling, preserving
and protecting the Collateral in its possession as it uses in handling similar
property for its own account. Secured Party, however, shall have no liability
for the loss, destruction or disappearance of any Collateral unless there is
affirmative proof of a lack of due care; the lack of due care shall not be
implied solely by virtue of any loss, destruction or disappearance.
7.2 Debtor shall be solely responsible for taking any and all actions to
preserve rights against all Obligors; Secured Party shall not be obligated to
take any such actions whether or not the Collateral is in Secured Party's
possession. Debtor waives presentment and protest with respect to any instrument
included in the Collateral on which Debtor is in any way liable and waives
notice of any action taken by Secured Party with respect to any instrument,
document or chattel paper included in any Collateral that is in the possession
of Secured Party.
8. EVENTS OF DEFAULT; REMEDIES
8.1 The occurrence of any of the following events or conditions shall
constitute and is hereby defined to be an "Event of Default":
(a) Any levy or execution upon, or judicial seizure of, any portion
of the Collateral or any other collateral or security for the Obligation.
(b) Any attachment or garnishment of, or the existence or filing of
any lien or encumbrance against, any portion of the
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Collateral or any other collateral or security for the Obligation that is
not removed and released within forty-five (45) days after its creation.
(c) The institution of any legal action or proceedings to enforce
any lien or encumbrance upon any portion of the Collateral or any other
collateral or security for the Obligation, that is not dismissed within
forty-five (45) days after its institution.
(d) The abandonment by Debtor of all or any part of the Collateral.
(e) The loss, theft or destruction of, or any substantial damage to,
any portion of the Collateral or any other collateral or security for the
Obligation, that is not adequately covered by insurance.
(f) The occurrence of any event of default under the Note, the Loan
Agreement or any other document or instrument executed or delivered in
connection with the Obligation and the expiration of any applicable notice
and cure period.
8.2 Secured Party, so far as may be lawful, may purchase all or any part
of the Collateral offered at any public or private sale made in the enforcement
of Secured Party's rights and remedies hereunder.
8.3 Any demand or notice of sale, disposition or other intended action
hereunder or in connection herewith, whether required by the Uniform Commercial
Code or otherwise, shall be deemed to be commercially reasonable and effective
if such demand or notice is given to Debtor at least five (5) days prior to such
sale, disposition or other intended action, in the manner provided herein for
the giving of notices.
8.4 Debtor shall pay all costs and expenses, including without
limitation costs of Uniform Commercial Code searches, court costs and reasonable
attorneys' fees, incurred by Secured Party in enforcing payment and performance
of the Obligation or in exercising the rights and remedies of Secured Party
hereunder. All such costs and expenses shall be secured by this Agreement and by
all deeds of trust and other lien and security documents securing the
Obligation. In the event of any court proceedings, court costs and attorneys'
fees shall be set by the court and not by jury and shall be included in any
judgment obtained by Secured Party or Debtor.
8.5 In addition to any remedies provided herein for an Event of Default,
Secured Party shall have all the rights and remedies afforded a secured party
under the Uniform Commercial Code and all other legal and equitable remedies
allowed under applicable law. No failure on the part of Secured Party to
exercise any of its rights hereunder arising upon any Event of Default shall be
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construed to prejudice its rights upon the occurrence of any other or subsequent
Event of Default. No delay on the part of Secured Party in exercising any such
rights shall be construed to preclude it from the exercise thereof at any time
while that Event of Default is continuing. Secured Party may enforce any one or
more rights or remedies hereunder successively or concurrently. By accepting
payment or performance of any of the Obligation after its due date, Secured
Party shall not thereby waive the agreement contained herein that time is of the
essence, nor shall Secured Party waive either its right to require prompt
payment or performance when due of the remainder of the Obligation or its right
to consider the failure to so pay or perform an Event of Default.
9. MISCELLANEOUS PROVISIONS
9.1 The acceptance of this Agreement by Secured Party shall not be
considered a waiver of or in any way to affect or impair any other security that
Secured Party may have, acquire simultaneously herewith, or hereafter acquire
for the payment or performance of the Obligation, nor shall the taking by
Secured Party at any time of any such additional security be construed as a
waiver of or in any way to affect or impair the Security Interest; Secured Party
may resort, for the payment or performance of the Obligation, to its several
securities therefor in such order and manner as it may determine.
9.2 Without notice or demand, without affecting the obligations of Debtor
hereunder or the personal liability of any person for payment or performance of
the Obligation, and without affecting the Security Interest or the priority
thereof, Secured Party, from time to time, may: (i) extend the time for payment
of all or any part of the Obligation, accept a renewal note therefor, reduce the
payments thereon, release any person liable for all or any part thereof, or
otherwise change the terms of all or any part of the Obligation; (ii) take and
hold other security for the payment or performance of the Obligation and
enforce, exchange, substitute, subordinate, waive or release any such security;
(iii) join in any extension or subordination agreement; or (iv) release any part
of the Collateral from the Security Interest.
9.3 Debtor waives and agrees not to assert: (i) any right to require
Secured Party to proceed against any guarantor, to proceed against or exhaust
any other security for the Obligation, to pursue any other remedy available to
Secured Party, or to pursue any remedy in any particular order or manner; (ii)
the benefits of any legal or equitable doctrine or principle of marshalling;
(iii) the benefits of any statute of limitations affecting the enforcement
hereof; (iv) demand, diligence, presentment for payment, protest and demand, and
notice of extension, dishonor, protest, demand and nonpayment, relating to the
Obligation; and (v) any benefit of, and any right to participate in, any other
security now or hereafter held by Secured Party.
9.4 The terms herein shall have the meanings in and be construed under the
Uniform Commercial Code. This Agreement shall be governed by and construed
according to the laws of the State of Arizona. Each provision of this Agreement
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shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be void or
invalid, the same shall not affect the remainder hereof which shall be effective
as though the void or invalid provision had not been contained herein.
9.5 No modification, rescission, waiver, release or amendment of any
provision of this Agreement shall be made except by a written agreement executed
by Debtor and a duly authorized officer of Secured Party.
9.6 This is a continuing Agreement which shall remain in full force and
effect until actual receipt by Secured Party of written notice of its revocation
as to future transactions and shall remain in full force and effect thereafter
until all of the Obligation incurred before the receipt of such notice, and all
of the Obligation incurred thereafter under commitments extended by Secured
Party before the receipt of such notice, shall have been paid and performed in
full.
9.7 No setoff or claim that Debtor now has or may in the future have
against Secured Party shall relieve Debtor from paying or performing the
Obligation.
9.8 Time is of the essence hereof. If more than one Debtor is named
herein, the word "Debtor" shall mean all and any one or more of them, severally
and collectively. All liability hereunder shall be joint and several. This
Agreement shall be binding upon, and shall inure to the benefit of, the parties
hereto and their heirs, personal representatives, successors and assigns. The
term "Secured Party" shall include not only the original Secured Party hereunder
but also any future owner and holder, including pledgees, of note or notes
evidencing the Obligation. The provisions hereof shall apply to the parties
according to the context thereof and without regard to the number or gender of
words or expressions used.
9.9 All notices required or permitted to be given hereunder shall be in
writing and may be given in person or by United States mail, by delivery service
or by electronic transmission. Any notice directed to a party to this Agreement
shall become effective upon the earliest of the following: (i) actual receipt by
that party; (ii) delivery to the designated address of that party, addressed to
that party; or (iii) if given by certified or registered United States mail,
twenty-four (24) hours after deposit with the United States Postal Service,
postage prepaid, addressed to that party at its designated address. The
designated address of a party shall be the address of that party shown at the
beginning of this Agreement or such other address as that party, from time to
time, may specify by notice to the other parties.
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9.10 A carbon, photographic or other reproduced copy of this Agreement
and/or any financing statement relating hereto shall be sufficient for filing
and/or recording as a financing statement.
IN WITNESS WHEREOF, these presents are executed as of the date indicated
above.
▇▇▇▇▇▇ INSTRUMENT CORPORATION, an
Indiana corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Vice President
DEBTOR
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13
EXHIBIT "1"
Specific Items of Personal Property