Security Agreement
Security Agreement dated February 26, 1997 between Disc Graphics,
Inc., a Delaware corporation, 00 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000 (the
"Company") and KeyBank National Association, a national banking association with
offices at 0000 Xxxxx Xxxxxxx, Xxxxxxxxx, Xxx Xxxx 00000 (the "Secured Party").
Secured Party and the Company have entered into a Credit Agreement
pursuant to which the Company will receive Loans and other financial
accommodations from Secured Party. Under the Credit Agreement and loan and other
agreements between Secured Party and the Company, the Company will incur
Obligations to Secured Party. In addition, Secured Party will not extend credit
to the Company unless, among other conditions, the Company executes and delivers
this Agreement.
To induce Secured Party to extend credit to the Company on and after
the date hereof, the Company wishes to grant Secured Party a first priority
perfected security interest in all its assets, as provided herein, to secure the
payment and performance of all Obligations.
Accordingly, the parties agree as follows:
1. Definitions.
(a) Capitalized terms used herein and not otherwise defined herein
shall have the meanings given in the Credit Agreement.
(b) The following words and phrases shall have the meanings set forth
below:
(i) "Agreement" shall mean this Agreement as it may be amended
from time to time.
(ii) "Collateral" means all of the following:
(A) Equipment, Inventory and Receivables;
(B) All choses in action, causes of action, any rights
arising under any judgment, statute or rule, all corporate and business records,
customer lists, credit files, trademarks, trade styles, trade names, designs,
patents, copyrights, licenses, license agreements, and any applications for
patents or trademarks, and all amounts, claims and proceeds, including returned
or unearned premiums, which may become payable under any policy of insurance
maintained by the Company covering the Collateral;
(C) All other personal property of the Company, whether now
or hereafter existing or now owned or hereafter acquired and wherever located,
of every kind and description, tangible or intangible, including, without
limitation, the balance of every deposit account now or hereafter existing of
the Company with Secured Party, and all goods, equipment, furniture, general
intangibles, credits, claims, demands and any other obligations of any kind,
whether now or hereafter arising, of the Company; and
(D) Any and all additions and accessions to the foregoing
Collateral, all substitutions and replacements therefor and all products and
proceeds thereof.
(iii) "Credit Agreement" means the Credit Agreement between the
Company and Secured Party dated the date hereof, as it may be amended from time
to time.
(iv) "Equipment" shall mean all of the Company's machinery and
equipment wherever located, and all additions, accessions, substitutions,
replacements, parts and fuel to or for the same, and all products and proceeds
thereof, excluding, however, the Equipment listed on Exhibit 1 hereto.
(v) "Inventory" shall mean all goods now or hereafter owned by
the Company or in which the Company now or hereafter has an interest, intended
for sale, lease or other disposition by or consumption in the business of the
Company, of every kind and nature and wherever located, including without
limitation all raw materials, work in process, finished goods, goods consigned
to the Company to the extent of its interest therein as consignee, goods in
transit, materials and supplies of any kind, nature or description which are or
might be used in connection with the manufacture, packing, shipping,
advertising, selling or finishing of any such goods, all documents of title or
documents representing the same and all records, files and writings with respect
thereto.
(vi) "Obligations" shall mean all payment and performance
obligations, liabilities and indebtedness of the Company or any Subsidiary to
Secured Party, under the Notes, the Credit Agreement, any Loan Document or any
other agreement or instrument, whether now existing or hereafter created,
absolute or contingent, direct or indirect, due or not, whether
created directly or acquired by assignment or otherwise, including without
limitation reimbursement of Letters of Credit and the payment of performance of
all other loans, obligations, liabilities, and indebtedness of the Company or
any Subsidiary to Secured Party, and all fees, costs, expenses and indemnity
obligations hereunder or thereunder.
(vii) "Receivables" shall mean all right, title and interest of
the Company in all present and future accounts receivable, contract rights,
promissory notes, chattel paper, all tax refunds and rights to receive tax
refunds, bonds, rights of indemnification, contribution and subrogation, leases,
computer tapes, programs and software, deposits and claims against third parties
of every kind or nature, investment securities, notes, drafts, acceptances,
letters of credit and rights to receive proceeds of letters of credit,
instruments and deposit accounts, book accounts, credits and reserves and all
forms of obligations owing to the Company, together with all instruments, all
documents of title representing any of the foregoing, and all rights in any
merchandise or goods which any of the same may represent, all books, ledgers,
files and records with respect to any Collateral or security given to Secured
Party hereunder by the Company, together with all right, title, security and
guaranties with respect to each Receivable, including any right of stoppage in
transit.
(viii) "Uniform Commercial Code" means the Uniform Commercial
Code as in effect in New York State from time to time during the term of this
Agreement.
2. Security Interest.
(a) Grant of Security. As security for the Obligations, the Company
grants to Secured Party a first lien priority security interest in all of the
Company's right, title and interest, whether now existing or hereafter arising
or acquired, in and to the Collateral.
(b) Security for Obligations. This Agreement secures the payment or
performance of all now existing or hereafter arising Obligations to Secured
Party, whether primary or secondary, direct or indirect, absolute or contingent,
joint or several, secured or unsecured, due or not, liquidated or unliquidated,
arising by operation of law or otherwise.
(c) The Company Remains Liable. This Agreement shall not affect the
Company's liability to perform all of its obligations under the transactions
giving rise to the Obligations. The exercise by Secured Party of any of the
rights hereunder shall not release the Company from any of its obligations under
the transactions giving rise to the Obligations, which shall remain unchanged as
if this Agreement had not been executed. Secured Party shall not have any
obligation or liability under the transactions giving rise to the Obligations by
reason of this Agreement, nor shall Secured Party be required to perform any of
the obligations of the Company thereunder or to take any action to collect or
enforce any claim for payment assigned hereunder.
(d) Continuing Agreement. This Agreement shall create a continuing
security interest in the Collateral and shall remain in full force and effect
until payment in full of the Obligations.
3. The Company's Title; Liens and Encumbrances.
(a) The Company represents and warrants that the Company is, or to the
extent that this Agreement covers Collateral that is to be acquired after the
date hereof, will be, the owner of the Collateral, having good and
marketable title thereto, free from any and all Liens, except as permitted under
Section 9.02 of the Credit Agreement. The Company will not create or assume or
permit to exist any Lien on or against the Collateral except as created by this
Agreement or as permitted by the Credit Agreement. The Company shall notify
Secured Party promptly of any such other claim, lien, security interest or other
encumbrance made or asserted against the Collateral and will defend the
Collateral against any such claim, lien, security interest or other encumbrance.
(b) With respect to any personal property that the Company acquires
which is subject to a purchase money lien permitted under Section 9.02 of the
Credit Agreement, if the terms of such acquisition prohibit the Liens granted
hereby in favor of Secured Party, Secured Party shall execute and deliver such
instruments as the purchase money lender may reasonably require to waive or
release Secured Party's security interest in such item of personal property for
so long as the purchase money security interest is in effect.
4. Representations, Warranties and Covenants.
The Company represents and warrants to Secured Party as follows:
(a) The Company has no place of business, offices where the Company's
books of account and records are kept, or places where the Collateral is used,
stored or manufactured, except as set forth on Schedule I annexed hereto. The
Company shall at all times maintain its records as to the Collateral at its
chief place of business at the address referred to on Schedule I and at no
other. Except as permitted hereby, the Company shall not store, use or locate
any of the Collateral at any place other than as listed on Schedule I. The
Company shall not establish any new office or place of business, move its
principal office or move any of the Collateral to any location other than those
locations existing on the date hereof and listed on Schedule I unless in each
case the Company gives Secured Party 20 Banking Days prior notice of its
intention to do so, identifying the new location and providing such other
information as Secured Party deems reasonably necessary, and delivers to Secured
Party financing statements and such other documentation in form and substance
satisfactory to Secured Party to preserve its security interest in the
Collateral.
(b) The Company currently uses the business or trade names set forth
on Schedule I, and has not used any other trade names during the last five
years, except as set forth on Schedule I. The Company shall not make any changes
in, additions to, or deletions from the business or trade names used by the
Company for billing purposes, except in connection with any Acquisition
permitted under Section 9.07 of the Credit Agreement.
(c) The Collateral is now and will be used in the Company's business
and not for personal, family, household or farming use.
(d) The Company has paid and, except as provided in Section 8.10 of
the Credit Agreement, will continue to pay or otherwise provide for the payment
when due, of all taxes, assessments or contributions required by law which have
been or may be assessed or levied against the Company, whether with respect to
any of the Collateral, to any wages or salaries paid by the Company or
otherwise, and will deliver satisfactory proof of such payment to Secured Party
on demand.
(e) Assuming it has been duly executed by Secured Party and that
Secured Party has filed the forms UCC-1 referred to on Schedule I, the security
interests and liens granted to Secured Party under this Agreement hereof shall
constitute valid, perfected and first priority security interests in and to the
Collateral in each case enforceable against all third parties and securing the
payment of all Obligations purported to be secured thereby, subject only to the
Liens permitted pursuant to Section 9.02 of the Credit Agreement.
5. Perfection of Security Interest.
The Company shall execute all such financing statements pursuant to
the Uniform Commercial Code or other notices necessary or appropriate under
applicable law, including the Federal Assignment of Claims Act and any state
motor vehicles registration statute, as Secured Party may require, each in form
satisfactory to Secured Party. The Company also shall pay all filing or
recording costs with respect thereto, and all costs of filing or recording this
Agreement or any other agreement or document executed and delivered pursuant
hereto or to the Obligations (including the cost of all federal, state or local
mortgage, documentary, stamp or other taxes), in each case, in all public
offices where filing or recording is deemed by Secured Party to be
necessary or desirable. The Company authorizes Secured Party to (a) file any
Uniform Commercial Code financing statements or amendments thereto without the
signature of the Company or by signing of the Company's name to any such
financing statements as its attorney-in-fact, (b) file notices of assignment
pursuant to the Federal Assignment of Claims Act, (c) file applications for
certificates of title or (d) take all other action which Secured Party may deem
necessary or desirable to perfect or otherwise protect the liens and security
interests created hereunder and to obtain the benefits of this Agreement.
6. General Covenants.
The Company shall have the following obligations to Secured Party
until full payment and complete performance of all Obligations and termination
of this Agreement.
(a) Furnish Secured Party from time to time at Secured Party's request
with such statements and schedules further identifying and describing the
Collateral and all locations thereof in such detail as Secured Party may
reasonably require.
(b) Advise Secured Party promptly, in sufficient detail, of any
substantial change in the Collateral or of the occurrence of any event which
would effect the value of the Collateral or Secured Party's security interest
therein.
(c) Comply with all acts, rules, regulations and orders of any
legislative, administrative or judicial body or official applicable to the
Company or any Collateral or to the operation of the Company's business except
where the failure to comply (i) is non-material and (ii) has no effect on the
value of the Collateral or on the ability of Secured Party to exercise its
rights and remedies hereunder.
(d) Perform and observe all covenants, restrictions and conditions
contained in the Loan Documents and any other agreement or document executed in
connection with the Obligations as though the same were fully set forth in this
Agreement.
(e) Promptly execute and deliver to Secured Party such further
agreements or other instruments and take such further action from time to time
as Secured Party may deem necessary or appropriate to perfect, protect or
enforce its security interests in the Collateral or otherwise to effect the
intent of this Agreement.
(f) Keep or cause the Collateral to be kept in good working order and
marketable condition, ordinary wear and tear excepted.
(g) Insure the Collateral against loss or damage by fire or other
casualties, providing extended coverage for theft, burglary, bodily injury and
such other risks, with such companies and in such amounts, as Secured Party may
require from time to time.
(h) Use the Collateral for lawful purposes only in conformity with all
laws, rules and regulations.
(i) Allow Secured Party and its agents, (i) at all reasonable times
on reasonable notice, to inspect any of the Collateral and to examine and make
extracts from the Company's books and records relating to the Collateral and
(ii) once yearly at the Company's expense and, if requested, more frequently
at Secured Party's expense, to conduct an audit of the Collateral.
(j) Not assign, sell, mortgage, lease, transfer, pledge, grant a
security interest in or Lien upon, or otherwise dispose of or abandon any part
or all of the Collateral without the prior consent of Secured Party, except for
the sale from time to time in the ordinary course of business of the Company of
such items of Collateral as may constitute part of the business Inventory, and
except as provided in Sections 9.02 or 9.04 of the Credit Agreement.
(k) Cause each mortgagee of any real property owned by the Company and
each landlord of all real property leased by the Company to waive, by
instruments satisfactory in form and substance to Secured Party, any rights in
the Collateral, and to acknowledge the right of Secured Party to enter the
premises to remove Collateral.
(l) Not take or omit to take any action adversely affecting or
impairing the security interest in the Collateral in favor of Secured Party.
7. Assignment of Insurance.
At or prior to the date hereof, the Company shall deliver to Secured
Party certificates of the issuing companies with respect to all policies of
insurance maintained for or by the Company covering or in any manner relating to
the Collateral, in form and substance satisfactory to Secured Party, naming
Secured Party as an additional insured party as its interests may appear with
respect to liability coverage and as loss payee with respect to property,
casualty and extended insurance coverage, and indicating that no such policy
will be terminated or reduced in coverage or amount without at least 30 days
prior written notice from the insurer to Secured Party. The Company hereby
assigns to Secured Party all amounts, including returned or unearned premiums,
which may become payable under or in respect of any such policy of insurance,
and directs each insurance company issuing any such policy to make payment of
sums directly to Secured Party. The Company hereby appoints Secured Party as its
attorney-in-fact with authority to endorse any check or draft representing any
such payment and to execute any proof of claim, subrogation receipt and any
other document required by such insurance company in connection with such
payment, and upon the occurrence of any Event of Default, to cancel, assign or
surrender any such policies. All such sums received by Secured Party shall be
applied by Secured Party to satisfaction of the Obligations or, to the extent
that such sums represent unearned premiums in respect of any policy of insurance
on the Collateral refunded by reason of cancellation, toward payment for similar
insurance protecting the respective interests of the Company and Secured Party,
or as otherwise required by applicable law.
8. Fixtures.
Except to the extent that fixtures are included in the definition of
Collateral, it is the intent of the Company and Secured Party that none of the
Collateral is or shall be regarded as fixtures, as that term is used or defined
in Article 9 of the Uniform Commercial Code, and the Company represents and
warrants that it has not made and is not bound by any lease or other agreement
which is inconsistent with such intent. If any Collateral or any part thereof is
or becomes attached or affixed to any real estate, upon request the Company
shall furnish Secured Party with a disclaimer or subordination in form
satisfactory to Secured Party of the holder of any interest in the real estate
to which the Collateral is attached or affixed, together with the names and
addresses of the record owners of and all other persons having interest in such
real estate.
9. Collections.
(a) Except as provided herein, the Company may collect all checks,
drafts, cash or other remittances (i) in payment of any of its Receivables, (ii)
in payment of any Inventory sold, transferred, leased or otherwise disposed of
or (iii) in payment of or in account of its accounts, contracts, notes, drafts,
acceptances and all other forms of obligations relating to any of the
Receivables or Inventory so sold, transferred, or leased or otherwise disposed
of. All of the foregoing amounts so collected after the occurrence of an Event
of Default shall be held in trust by the Company for and as the property of
Secured Party, and shall not be commingled with other funds, money or property
of the Company.
(b) If requested by Secured Party upon or after an Event of Default
occurs, the Company will immediately following receipt of all such checks,
drafts, cash or other remittances in payment of any of its Receivable or in
payment for any Inventory sold, transferred, leased or otherwise disposed of,
deliver any such items to Secured Party accompanied by a remittance report in
form supplied or approved by Secured Party. The Company shall deliver such items
in the same form received, endorsed or otherwise assigned by the Company where
necessary to permit collection of such items.
(c) If requested by Secured Party upon or after an Event of Default
occurs, the Company will promptly notify Secured Party of the return or
rejection of any goods represented by any Receivables, and shall forthwith
account therefor to Secured Party in cash. Until such payment has been received
by Secured Party, the Company shall hold all such goods separate and apart, in
trust for and subject to Secured Party's security interest, and Secured Party is
authorized to sell, for the Company's account and at the Company's sole risk,
all or any part of such goods.
(d) In its discretion, upon or after an Event of Default occurs,
Secured Party may in its name or the Company's notify any account debtor or
obligor of any account, contract, instrument, chattel paper or general
intangible included in the Collateral to make payment to Secured Party.
(e) All of the foregoing remittances shall be applied and credited by
Secured Party in accordance with the provisions of Section 11(c) of this
Agreement.
10. Events of Default.
The occurrence of any one or more of the following events shall
constitute an event of default ("Event of Default") by the Company under this
Agreement:
(a) if a "Default" or "Event of Default" occurs under the Loan
Documents or the terms of any agreement executed in connection with the
Obligations;
(b) if at any time, acting in a commercially reasonable manner
following an audit of the Collateral, Secured Party considers the Obligations
insecure or any part of the Collateral unsafe, insecure or insufficient, and the
Company does not (i) within five Banking Days of notice, enter into written
agreement to furnish other collateral or make payment on account in the amount
necessary to reduce the Obligations to the extent Secured Party considers the
Obligations insecure or the Collateral unsafe, insecure or insufficient and (ii)
within 30 days of entering into such agreement, fulfill the obligations required
of it thereunder;
(c) if any obligor, guarantor of or any party to any of the
Obligations or the Collateral (the same, excluding the Company and the
Guarantors, collectively the "Obligors") defaults in the punctual payment of any
sum payable with respect to, or in the observance or performance of any of the
terms and conditions of any Obligations or of any other agreement between any
Obligor and Secured Party;
(d) if any warranty or representation made to Secured Party by or on
behalf of the Company, any Guarantor or any Obligor is false or misleading in
any material respect when made or, with respect to the Company, when deemed made
under the terms of the Credit Agreement;
(e) if there is any loss, theft, substantial damage to or destruction
of any Collateral, or the making or filing of any lien, levy, or execution on,
or seizure, attachment or garnishment of any of the Collateral;
(f) if any Obligor is dissolved or fails to maintain its existence in
good standing under the laws of the states of its formation and qualification;
(g) if any of the Obligors becomes insolvent (however defined or
evidenced), makes an assignment for the benefit of creditors, makes or send
notice of an intended bulk transfer, if there is convened a meeting of the
creditors or principal creditors of any of the Obligors or if a committee of
creditors is appointed for any of them;
(h) if there is filed by or against any of the Obligors any petition
for any relief under the bankruptcy laws of the United States now or hereafter
in effect or under any insolvency, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction now or hereafter in effect;
(i) if the usual business of any of the Obligors shall be terminated
or suspended;
(j) if any proceedings or procedure supplementary to or in
enforcement of any judgment is commenced against any Obligor or with respect to
any of their property; or
(k) if any petition or application to any court is filed by or against
any of the Obligors for the appointment of any receiver or trustee for any of
the Obligors or any part of the property of any of them.
11. Rights and Remedies.
(a) If any Event of Default occurs, Secured Party thereafter may, to
the extent permitted by applicable law, without notice to the Company, as to any
or all of the Collateral, by any available judicial procedure or without
judicial process, take possession of the Collateral and without liability for
trespass enter any premises where the Collateral may be located for the purpose
of taking possession of or removing the Collateral, and generally exercise any
rights afforded to a secured party under the Uniform Commercial Code or other
applicable law. Secured Party shall have the right to sell, otherwise dispose of
all or any part of the Collateral, whether in its then condition or after
further preparation or processing, either at public or private sale or at any
broker's board, in lots or in bulk, for cash or for credit, with or without
warranties or representations, and upon such terms and conditions, all as
Secured Party in its sole discretion may deem advisable, and Secured Party shall
have the right to purchase at any such sale. If any Collateral shall require
rebuilding, repairing, maintenance, preparation, or is in process or other
unfinished state, Secured Party may do so to put the Collateral in such saleable
or disposable form as it shall deem appropriate. At Secured Party's request, the
Company shall assemble the Collateral and make it available to Secured Party at
places which Secured Party shall select, whether at the Company's premises or
elsewhere, and make available to Secured Party, without rent, all of the
Company's premises and facilities for the purpose of Secured Party's taking
possession of, removing or putting the Collateral in saleable or disposable
form. If any of the Collateral consists of motor vehicles, Secured Party may use
the Company's license plates.
(b) Any sale, lease or other disposition of Collateral may be made
without demand for performance or notice of advertisement except that, where
applicable law requires reasonable notice of sale or other disposition, five
days notice by overnight courier or personal delivery, to the Company of the
place and time of any public sale or of the time at which any private sale or
other intended disposition is to be made, shall be deemed reasonable notice
thereof. Notwithstanding the foregoing, if any of the Collateral is perishable
and may be materially diminished in value during such five day period, Secured
Party shall provide the Company with such shorter notice as it deems reasonable
in the circumstances.
(c) The proceeds of any sale, lease or other disposition of the
Collateral shall be applied first to the expenses of retaking, storing,
processing and preparing for sale, selling and the like and to the reasonable
attorneys' fees and legal expenses incurred by Secured Party, next to
satisfaction of the Obligations, and then to the payment of any other amounts
required by applicable law, after which Secured Party shall account to the
Company for any surplus. If the proceeds are insufficient to pay all amounts to
which Secured Party is entitled, the Company shall be liable for the deficiency,
together with interest thereon, at the rate prescribed in the agreements giving
rise to the Obligations, and the reasonable fees of any attorneys employed by
Secured Party to collect such deficiency. The Company waives all claims, damages
and demands against Secured Party arising out of the repossession, removal,
retention or sale of the Collateral.
(d) Secured Party has no obligation to preserve rights to any
Collateral against prior parties, to proceed first against any Collateral or to
xxxxxxxx any collateral of any kind for the benefit of any other creditors of
the Company or any other Person. Upon the occurrence of an Event of Default and
as long as it continues, Secured Party shall have a license and right to use,
without charge, the Company's labels, patents, copyrights, and all its rights of
use of any name, trade secrets, trade names, trademarks and advertising matter,
or any property of a similar nature pertaining to the Collateral, in completing
production of, advertising for sale, and selling any Collateral, and the
Company's rights under all licenses and any franchise, sales or distribution
agreements shall inure to Secured Party's benefit.
12. Costs and Expenses.
The Company shall pay on demand any and all of Secured Party's fees,
costs and expenses, including the reasonable attorneys' fees and legal expenses,
paid or incurred in connection with the filing or recording of financing
statements and other documents in public offices (including all taxes in
connection therewith), the payment or discharge of any taxes, insurance
premiums, encumbrances or otherwise protecting, maintaining or preserving the
Collateral and Secured Party's security interest therein, or in defending or
prosecuting any actions or proceedings arising out of or related to the
transaction to which this Agreement relates. Until so paid, all such amounts
shall be added to the principal amount of the Obligations and shall bear
interest at the rate prescribed in the agreements giving rise to the
Obligations.
13. Power of Attorney.
(a) The Company authorizes Secured Party and does hereby make,
constitute and appoint Secured Party, and any officer or agent of Secured Party,
with full power of substitution, as the Company's true and lawful
attorney-in-fact, with power, in its own name or in the name of the Company (a)
to endorse any notes, checks, drafts, money orders, or other instruments of
payment (including payments payable under or in respect of any policy of
insurance) in respect of the Collateral that may come into possession of Secured
Party, (b) to sign and endorse any invoice, freight or express xxxx, xxxx of
lading, storage or warehouse receipts, drafts against debtors, assignments,
verifications and notices in connection with accounts, and other documents
relating to Collateral, (c) to pay or discharge any taxes, liens, security
interest or other encumbrances at any time levied or placed on or threatened
against the Collateral, (d) to demand, collect, receipt for, compromise, settle
and xxx for monies due in respect of the Collateral, (e) to receive, open and
dispose of all mail addressed to the Company and to notify the Post Office
authorities to change the address for delivery of mail addressed to the Company
to such address as Secured Party may designate and (f) generally to do all acts
and things which Secured Party deems necessary to protect, preserve and realize
upon the Collateral and Secured Party's security interest therein. The Company
hereby approves and ratifies all acts of said attorney or designee, who shall
not be liable for any acts of commission or omission, nor for any error or
judgment or mistake of fact or law except for its own gross negligence or wilful
misconduct. This power of attorney shall be irrevocable as long as any of the
Obligations shall be outstanding.
(b) Secured Party shall not exercise any rights under or take any
actions pursuant to the foregoing power of attorney unless an Event of Default
has occurred.
14. Notices.
All notices, consents, approvals and other communications required or
permitted to be given to a party under this Agreement shall be in writing and
shall be delivered personally to the party, sent by any national overnight
courier or mailed first class certified mail, return receipt requested, to the
party at the address indicated on page one, to the attention of Xxxxxx Xxxxx for
Secured Party and to the attention of Xxxxxxxx Xxxxxxxx for the Company. Any
item delivered in accordance with the provisions of this Section shall be deemed
to have been delivered (i) on the date of personal delivery, (ii) on the
business day following the date sent by overnight courier or (iii) on the fifth
day following the date on which it was so mailed, as the case may be.
15. Other Security.
Secured Party's rights and remedies hereunder shall not be diminished,
impaired or otherwise affected if the Obligations are now or hereafter secured
by property other than the Collateral, or by the guarantee, endorsement or
property of any other Person. Secured Party shall have the right in its sole
discretion to take any other action with respect thereto, concurrently with or
separately from any action hereunder.
16. Further Security.
The Company grants, pledges and assigns to Secured Party a continuing
lien on, security interest in and rights of set-off in all money, securities and
other property of the Company, and the proceeds thereof, actually or
constructively held or received by or for Secured Party or any Affiliate of
Secured Party. The Company authorizes Secured Party to deliver a copy of this
Agreement to give others notice of the Company's transfer of a security interest
in such property. Upon or after an Event of Default, Secured Party may from time
to time without notice apply all or part of such moneys, securities, property,
proceeds, deposits or credits to any of the Obligations in such amounts as
Secured Party may elect in its discretion, even though the Obligations may then
be contingent or unmatured, whether or not the Collateral is adequate security.
17. Miscellaneous.
(a) Beyond the safe custody thereof, Secured Party shall have no duty
as to the collection of any Collateral in its possession or control or in the
possession or control of any agent or nominee of Secured Party, or any income
thereon or as to the preservation of rights against prior parties or any other
rights pertaining thereto.
(b) No course of dealing between the Company and Secured Party, or
Secured Party's failure to exercise or delay in exercising any right, power or
privilege hereunder shall operate as a waiver thereof. Any single or partial
exercise of any right, power or privilege hereunder shall not preclude any other
or further exercise thereof or the exercise of any other right, power or
privilege.
(c) All of Secured Party's rights and remedies with respect to the
Collateral, whether established hereby or by any other agreements, instruments
or documents or by law, shall be cumulative and may be exercised singly or
concurrently.
(d) This Agreement may be amended or modified, and a provision hereof
may be waived, only by a writing signed by all of the parties hereto.
(e) The provisions of this Agreement are severable, and if any clause
or provision shall be held invalid or unenforceable in whole or in part in any
jurisdiction, then such invalidity or unenforceability shall affect only such
clause or provision, or part thereof, in such jurisdiction and shall not in any
manner affect such clause or provision in any other jurisdiction, or any other
clause or provision of this Agreement in any jurisdiction.
(f) The benefits of this Agreement shall inure to the benefit of the
successors and assigns of Secured Party. The rights and obligations of the
Company under this Agreement shall not be assigned or delegated without the
prior consent of Secured Party.
(g) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to its conflicts of laws
principles.
(h) The Company hereby irrevocably submits to the jurisdiction of any
New York State or United States Federal court sitting in Suffolk or Nassau
County over any action or proceeding arising out of or relating to this
Agreement, and the Company hereby irrevocably agrees that all claims in respect
of such action or proceeding may be heard and determined in such New York State
of Federal court. To the extent permitted by applicable law, the Company
irrevocably consents to the service of any and all process in any such action or
proceeding by the mailing (by certified or registered mail) of copies of such
process to it. The Company agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or any other manner provided by law. To the extent
permitted by applicable law, the Company waives any objection to venue in such
State of Federal Court and any objection to an action or proceeding in such
State of Federal Court on the basis of forum non conveniens. The Company agrees
that any action or proceeding brought against Secured Party shall be brought
only in New York State or United States Federal court sitting in Suffolk or
Nassau County.
(i) THE PARTIES WAIVE ANY RIGHT TO A JURY TRIAL.
(j) The Company shall indemnify Secured Party and hold it harmless
from and against any and all claims, damages, judgments, liabilities, costs and
expenses ("Loss") (including reasonable fees and disbursements of counsel) which
may be incurred by or asserted against Secured Party in connection with or
arising out of Secured Party's exercise of its rights or assertion of its
security interest under the provisions of this Agreement, any Loan Document or
any agreement relating to the Obligations which permit Secured Party to collect,
settle or adjust Receivables or to deal with Collateral in any way, except to
the extent that such Loss resulted from the gross negligence or without
misconduct of Secured Party. This indemnity includes Secured Party's activities
in connection with the realization, repossession, safeguarding, insuring or
other protection of Collateral or collecting, perfecting or protecting the
Secured Party's liens and security interests hereunder or under any Loan
Document.
IN WITNESS WHEREOF, the parties have executed this Agreement.
KeyBank National Association Disc Graphics, Inc.
By: By:
Name: Xxxxxx Xxxxx Name: Xxxxxx Xxxxxx
Title: Vice President Title: President and Chief
Executive Officer
SCHEDULE I
TO
DISC GRAPHICS, INC.
SECURITY AGREEMENT
Principal Office*
00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Other Offices Where Records Are Kept*
00 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000
0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000
Locations Where Collateral
Is Stored, Used or Located*
00 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000
000 Xxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx 00000
00 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000
0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000
Business and Trade Names
Used by Debtor
Current Names* Discontinued Names
--------------- ------------------
Disc Graphics Four Seasons Litho
* Forms UCC-1 shall be filed in all jurisdictions where Debtor has offices or
stores, uses or places Collateral, under each actual and trade name used by
Debtor.
