EXHIBIT 10.52
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SECURITY AGREEMENT
(First and Prior Security Interest)
made and entered into by
PARIBAS PROPERTIES, INC.
and
MAIL-WELL I CORPORATION
as Debtors
and
BANQUE PARIBAS
as Agent for Secured Party
Dated: November 15, 1996
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Security Agreement (First)
TABLE OF CONTENTS
Page
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ARTICLE I - SECURITY INTEREST........................................... 2
Section 1.01. Creation of Security Interest....................... 2
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Section 1.02. Collateral.......................................... 2
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Section 1.03. Debtors Remain Liable............................... 2
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Section 1.04. Payment Obligations of Debtors...................... 2
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ARTICLE II - REPRESENTATIONS AND WARRANTIES............................. 3
Section 2.01. Representations and Warranties...................... 3
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(a) Valid Pledge........................................ 3
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(b) Ownership of Collateral............................. 3
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(c) No Violation of Law................................. 3
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(d) Valid Obligation of Debtors......................... 3
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(e) Consents and Approvals.............................. 3
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ARTICLE III - COVENANTS................................................. 4
Section 3.01. General Covenants of Debtors........................ 4
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Section 3.02. Rights of Secured Party............................. 5
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ARTICLE IV - EVENTS OF DEFAULT AND REMEDIES............................. 6
Section 4.01. Events of Default................................... 6
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Section 4.02. Acceleration of Secured Obligations................. 6
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Section 4.03. Sale of Collateral.................................. 6
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Section 4.04. Rights of a Secured Party........................... 6
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Section 4.05. Application of Collateral to Secured Obligations.... 7
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Section 4.06. Cumulative Remedies................................. 8
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Section 4.07. Resort to Other Security............................ 8
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Section 4.08. Nominee Owner....................................... 8
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Section 4.09. Waiver of Appraisement, Valuation, Etc.............. 8
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Section 4.10. Power of Attorney................................... 9
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ARTICLE V - ADDITIONAL AGREEMENTS.......................................10
Section 5.01. Payment of Secured Obligations......................10
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Section 5.02. No Waiver...........................................10
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Section 5.03. No Impairment of Rights.............................10
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Section 5.04. No Release or Impairment............................11
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Section 5.05. Security Agreement as Financing Statement...........11
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Section 5.06. Financing Statements................................11
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Security Agreement (First)
Section 5.07. Dealing with Successors.............................11
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Section 5.08. Subrogation.........................................11
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Section 5.09. Application of Security.............................12
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Section 5.10. Assignment by Secured Party.........................12
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Section 5.11. Performance by Secured Party........................12
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ARTICLE VI - MISCELLANEOUS..............................................12
Section 6.01. No Waiver; Cumulative Remedies......................12
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Section 6.02. Successors and Assigns..............................12
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Section 6.03. AMENDMENT; ENTIRE AGREEMENT.........................12
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Section 6.04. Notices.............................................13
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Section 6.05. GOVERNING LAW; VENUE; SERVICE OF PROCESS............13
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Section 6.06. Headings............................................13
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Section 6.07. Survival of Representations and Warranties..........13
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Section 6.08. Counterparts........................................14
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Section 6.09. Waiver of Bond......................................14
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Section 6.10. Severability........................................14
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Section 6.11. Construction........................................14
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Section 6.12. WAIVER OF JURY TRIAL................................14
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Section 6.13. No Liability of Secured Party.......................14
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Section 6.14. Secured Obligations Absolute........................15
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Section 6.15. Limitation on Liability.............................15
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Security Agreement (First)
SECURITY AGREEMENT
(First and Prior Security Interest)
THIS SECURITY AGREEMENT (this "Agreement"), made and entered into on this
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the 15th day of November, 1996, by PARIBAS PROPERTIES, INC., a Delaware
corporation (the "Lessor"), whose address is ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, 30th Floor, New
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York, New York 10019, MAIL-WELL I CORPORATION, a Delaware corporation (the
"Lessee"), whose address is ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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(the Lessor and the Lessee being collectively called "Debtors"), and BANQUE
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PARIBAS, a bank organized under the laws of France, as Agent for the benefit of
"Equity Lenders" (as that term is defined below) ("Secured Party"), whose
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address is ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H :
- - - - - - - - - -
Recitals:
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A. Pursuant to the provisions of a certain Participation Agreement, dated
of even date herewith (the "Participation Agreement"), among the Lessee, the
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subsidiaries of the Lessee that are parties thereto, the Lessor, Secured Party
and the various financial institutions that are parties thereto as Equity
Lenders (the "Equity Lenders") and as the Financing Lenders (the "Financing
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Lenders"), the Financing Lenders have agreed to make loans to the Lessor in the
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aggregate principal sum of $24,500,000 and the Equity Lenders have agreed to
make loans to the Lessor in the aggregate principal sum of $5,500,000, which
sums are to be used by the Lessor to purchase the Equipment (as defined below)
from the Lessee.
B. The Participation Agreement provides, among other things, that Debtors
will grant (i) to Secured Party, solely in its capacity as Agent for the benefit
of Equity Lenders, a first and prior security interest in and to the Equipment
as security for all of the debts, duties, liabilities and obligations of
Debtors, both jointly and severally, to the Equity Lenders under the Operative
Documents (the "Secured Obligations"), and (ii) to the Agent, solely in its
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capacity as Agent for the Financing Lenders, a second security interest in and
to the Equipment as security for all debts, duties, liabilities and obligations
of Debtors to the Financing Lenders under the Operative Documents pursuant to a
certain Security Agreement (Second and Subordinated Security Interest) the
"Second Security Agreement").
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C. Pursuant to the Participation Agreement, the Equipment has,
concurrently herewith, been acquired by the Lessor and leased by the Lessor to
the Lessee pursuant to a certain Master Lease (herein so called). The Master
Lease, and the rights of Lessor and the Lessee thereunder, are subject and
subordinate to the provisions of the Second Security Agreement and this
Agreement.
D. Debtors desire to hereby grant to Secured Party the first and prior
security interest provided for in the Participation Agreement. Unless otherwise
defined herein, the capitalized terms
Security Agreement (First)
used in this Agreement have the defined meanings given to them in Appendix A
attached to the Participation Agreement.
Agreements:
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NOW, THEREFORE, the parties hereto agree jointly and severally, as follows:
ARTICLE I
SECURITY INTEREST
Section 1.01. Creation of Security Interest. Debtors hereby grant a
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security interest to Secured Party in the Collateral described in Section 1.02
of this Agreement to secure and enforce the performance and payment of all
Secured Obligations, now or hereafter existing in favor of Secured Party, and
all substitutions, renewals, extensions, rearrangements and modifications
thereof.
Section 1.02. Collateral. The collateral (the "Collateral") consists of
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all of the Equipment, which is more particularly described on Schedule I,
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attached hereto, together with (i) all other items of equipment hereafter made
part of the Collateral hereunder, wherever located, whether now owned or
existing or hereafter owned, existing, acquired or arising, and whether in
Debtors', Secured Party's or any other person's or entity's possession or
control, (ii) all apparatus, accessories, replacements and substitutions
(including without limitation all Modifications and Substituted Equipment),
warranties, guaranties, contract rights, claims, intangible rights relating
thereto, (iii) all substitutions therefor, (iv) all general intangibles arising
therefrom or in connection therewith, (v) all proceeds therefrom, and (vi) all
other property which Debtors may hereafter become entitled to receive on account
of the Equipment (and in all of Debtors' respective rights, title and interests
in and with respect to the foregoing), and in the event Debtors receive any such
property, Debtors will, upon request by Secured Party, take such steps as are
necessary to perfect Secured Party's security interest hereunder.
Section 1.03. Debtors Remain Liable. Notwithstanding anything to the
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contrary contained herein, but subject to the limitation on liability provisions
of Section 6.15 hereof, (a) Debtors shall remain liable under the contracts,
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agreements, documents and instruments included in the Collateral to the same
extent as if this Agreement had not been executed, (b) the exercise by Secured
Party of any of its rights or remedies hereunder shall not release Debtors from
any of its duties or obligations under the contracts, agreements, documents and
instruments included in the Collateral, (c) Secured Party shall not become
liable for any indebtedness, liability or obligation under any of the contracts,
agreements, documents and instruments included in the Collateral by reason of
this Agreement, and (d) Secured Party shall not be obligated to perform any of
the obligations or duties of Debtors thereunder or to take any action to collect
or enforce any claim for payment assigned hereunder.
Section 1.04. Payment Obligations of Debtors. Debtors shall pay to
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Secured Party on demand all reasonable expenses and expenditures, including
attorneys' fees and other legal expenses
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Security Agreement (First)
incurred or paid by Secured Party in exercising or protecting its interests,
rights and remedies under this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.01. Representations and Warranties. Debtors severally and not
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jointly represent and warrant that:
(a) Valid Pledge. The Collateral is genuine, free from any
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restriction on transfer, and Debtors have duly granted to Secured Party, and
Secured Party shall continue to have, a valid, first priority security interest
in the Collateral in accordance with law.
(b) Ownership of Collateral. Debtors have the right to pledge the
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same and to transfer any interest therein; all consents required for the pledge
of the Collateral herein provided have been obtained; the Collateral is free and
clear from all security interests and encumbrances except the security interest
evidenced hereby and the security interest created by the Second Security
Agreement and the Master Lease (which other security interests are subject and
subordinate to the security interest granted by Debtors to Secured Party
hereunder and the first priority thereof); with the exception of the financing
statements filed pursuant to this Agreement and the Second Security Agreement,
to Debtors' knowledge there is no financing statement (or similar statement or
instrument of registration under the law of any jurisdiction) covering or
purporting to cover any interest of any kind in the Collateral or its proceeds
on file or registered in any public office (except for releases or terminations
of financing statements filed concurrently herewith); and Debtors will warrant
and forever defend the title to the Collateral and its proceeds against the
claims and demands of all persons whomsoever claiming or to claim the same or
any part thereof.
(c) No Violation of Law. The execution, delivery and performance by
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Debtors of this Agreement do not and will not contravene or violate any
provision of any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award presently in effect and applicable to Debtors or
the of Debtors, or result in a breach of or constitute a default (with or
without the giving of notice or the lapse of time or both) under any indenture
or loan, credit or other agreement to which Debtors is a party or by which
Debtors or any of Debtors' property may be bound or affected.
(d) Valid Obligation of Debtors. This Agreement constitutes the
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legal, valid and binding obligation of Debtors enforceable against Debtors in
accordance with its terms.
(e) Consents and Approvals. No authorization, consent, approval,
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license, order or exemption of, or filing or registration with, any court or
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, is or will be necessary to the valid execution, delivery or
performance by Debtors of this Agreement or to the enforcement hereof by Secured
Party.
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Secuirty Agreement (First)
ARTICLE III
COVENANTS
Section 3.01. General Covenants of Debtors. Debtors covenant and agree
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with Secured Party as follows:
(a) Debtors shall furnish to Secured Party such instruments as may be
required by Secured Party to assure the transferability of, and Secured Party's
perfected first priority interest in, the Collateral when and as often as may be
requested by Secured Party.
(b) Debtors will cause the Lessee to pay prior to delinquency all
Taxes in accordance with the Operative Documents.
(c) If the validity or priority of this Agreement or of any rights,
titles, security interests or other interests created or evidenced hereby shall
be challenged or endangered, or if any legal proceedings are instituted with
respect thereto, Debtors will give prompt written notice thereof to Secured
Party and, at Debtors' own cost and expense, will diligently endeavor to cure,
and shall cure, without prejudice to Secured Party's rights, title or interest,
any defect that may be developed or claimed, and will take all necessary and
proper steps for the defense of such legal proceedings, and Secured Party
(whether or not named as a party) is hereby authorized and empowered to take
such additional steps as in its judgment and discretion may be necessary or
proper for the defense of any such legal proceedings or the protection of the
validity or priority of this Agreement and the rights, titles, security
interests and other interests created or evidenced hereby, and all expenses so
incurred of every kind and character shall be a demand obligation owing by
Debtors.
(d) Debtors will, on request of Secured Party, (1) promptly correct
any defect, error or omission which may be discovered in the contents of this
Agreement or in any other instrument executed in connection herewith or in the
execution or acknowledgment thereof; (2) execute, acknowledge, deliver and
record or file such further instruments (including without limitation further
security agreements, financing statements and continuation statements) and do
such further acts as may be necessary, desirable or proper to carry out more
effectively the purposes of this Agreement and such other instruments and to
subject to the security interests hereof and thereof any property intended by
the terms hereof and thereof to be covered hereby and thereby, including
specifically, but without limitation, any renewals, additions, substitutions,
replacements or appurtenances to the then Collateral, and (3) execute,
acknowledge, deliver, procure and record or file any document or instrument
(including specifically any financing statement) reasonably deemed advisable by
Secured Party to protect the security interest hereunder against the rights or
interests of third persons, and Debtors will pay all costs connected with any of
the foregoing.
(e) Notwithstanding the security interest in proceeds granted herein,
Debtors will not, except in accordance with the terms of the Master Lease, sell,
exchange, lend, assign, transfer or otherwise dispose of all or any part of the
Collateral or any interest therein, or permit any of the foregoing, without the
prior written consent of Secured Party.
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Security Agreement (First)
(f) Debtors will pay all appraisal fees, filing fees, taxes, brokerage
fees and commissions, Uniform Commercial Code search fees, escrow fees,
attorneys' fees, and all other costs and expenses of every character incurred by
Debtors or Secured Party in connection with this Agreement or the Collateral and
will reimburse Secured Party for all such expenses incurred by it. Debtors shall
pay all expenses and reimburse Secured Party for any expenditures, including
attorneys' fees and legal expenses, incurred or expended in connection with
Secured Party's exercise of any of its rights and remedies hereunder or Secured
Party's protection of the Collateral and its security interest therein. Any
amount to be paid hereunder by Debtors to Secured Party shall be a demand
obligation owing by Debtors to Secured Party and shall bear interest from date
of expenditure until paid at the Default Rate.
(g) Debtors will not change their addresses, names, identities or
structures without notifying Secured Party of such change in writing at least
thirty (30) days prior to the effective date of such change, and unless Debtors
shall have taken such action, satisfactory to Secured Party, to have caused the
security interest of Secured Party in the Collateral to be at all times fully
perfected and at all times in full force and effect.
(h) Debtors shall account fully and faithfully for and, if Secured
Party so elects, shall promptly pay or turn over to Secured Party the proceeds
in whatever form received from disposition in any manner of any of the
Collateral, whether the Secured Obligations are mature or not, the order and
method of application to be in the sole discretion of Secured Party, except as
otherwise specifically authorized herein or in the other Operative Documents.
(i) Debtors shall furnish Secured Party all such information as
Secured Party may reasonably request with respect to the Collateral.
(j) Debtors shall keep each item of the Equipment at the location
specified on Schedule I hereto for such item and shall maintain the Equipment in
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the manner required by the Master Lease.
Section 3.02. Rights of Secured Party. The rights, remedies, powers and
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privileges of Secured Party hereunder shall be exercised by Secured Party upon
the written direction of the Required Equity Lenders. Debtors agree that, if
Debtors fail to perform any act or to take any action which hereunder Debtors
are required to perform or take, or to pay any money which hereunder Debtors are
required to pay, Secured Party, in Debtors' name or in its own name, may but
shall not be obligated to perform or cause to be performed such act or take such
action or pay such money, and any expenses so incurred by Secured Party, and any
money so paid by Secured Party, shall be a demand obligation owing by Debtors to
Secured Party and Secured Party, upon making such payment, shall be subrogated
to all of the rights of the Person, corporation or body politic receiving such
payment. Any amounts due and owing by Debtors to Secured Party pursuant to this
Agreement shall bear interest from the date such amount is expended by Secured
Party until paid at the Default Rate and shall be a part of the Secured
Obligations and shall be secured by this Agreement and by any other instrument
securing the Secured Obligations.
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Security Agreement (First)
ARTICLE IV
EVENTS OF DEFAULT AND REMEDIES
Section 4.01. Events of Default. Debtors shall be in default under this
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Agreement upon the happening of an Event of Default under the Operative
Documents, including, without limitation, Debtors breach of any of the
covenants, representations or warranties contained herein.
Section 4.02. Acceleration of Secured Obligations. Upon the occurrence of
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an Event of Default, and at any time thereafter, Secured Party shall have the
option of declaring, without notice to any Person, all Secured Obligations,
including without limitation principal and accrued interest, to be immediately
due and payable.
Section 4.03. Sale of Collateral. Upon the occurrence of an Event of
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Default, and at any time thereafter, Secured Party may, without notice except as
hereinafter provided, convert the Collateral to cash or sell the Collateral or
any part thereof at public or private sale for cash, upon credit, or for future
delivery, and at such price or prices as Secured Party may deem best, and
Secured Party may be the purchaser of any and all of the Collateral so sold and
may apply upon the purchase price therefor any Secured Obligations or any part
thereof and thereafter hold the same absolutely free from any right or claim of
whatsoever kind. Upon any such sale Secured Party shall have the right to
deliver, assign and transfer to the purchaser thereof the Collateral so sold.
Each purchaser at any such sale shall hold the Collateral sold absolutely free
from any claim or right of whatsoever kind, including any equity or right of
redemption, stay or appraisal which Debtors have or may have under any rule of
law or statute now existing or hereafter adopted. Secured Party shall give
Debtors ten (10) days written notice mailed to Debtors at the address set forth
herein (which shall satisfy any requirement of notice or reasonable notice in
any applicable statute) of Secured Party's intention to make any such public or
private sale. Such notice, in case of public sale, shall state the time and
place fixed for such sale. Any such public sale shall be held at such time or
times, within the ordinary business hours and at such place or places, as
Secured Party may fix in the notice of such sale. At any sale the Collateral
may be sold in one lot as an entirety or as separate items as Secured Party may
determine. Secured Party shall not be obligated to make any sale pursuant to
any such notice. Secured Party may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to time by
announcement at any time and place fixed for the sale, and such sale may be made
at any time or place to which the same may be so adjourned. In case of any sale
of all or any part of the Collateral on credit or for future delivery, the
Collateral so sold may be retained by Secured Party until the selling price is
paid by the purchaser thereof, but Secured Party shall incur no liability in
case of the failure of such purchaser to take up and pay for the Collateral so
sold, and in case of any such failure, such Collateral may again be sold upon
like notice. Each and every method of disposition described in this Section
shall constitute disposition in an commercially reasonable manner. Debtors
shall remain liable for any deficiency.
Section 4.04. Rights of a Secured Party. Upon the occurrence and during
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the continuance of an Event of Default, Secured Party shall have all the rights
of a secured party after default under the Uniform Commercial Code of Texas, and
in conjunction with, in addition to or in substitution
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Security Agreement (First)
for those rights and remedies and the rights and remedies provided for herein
and in the other Operative Documents:
(a) written notice mailed to Debtors as provided herein ten (10) days
prior to the date of public sale of the Collateral or prior to the date after
which private sale of the Collateral will be made shall constitute reasonable
notice;
(b) it shall not be necessary that the Collateral or any part thereof
be present at the location of such sale;
(c) prior to the application of the proceeds of any disposition of the
Collateral to the Secured Obligations, such proceeds shall be applied to the
expenses of retaking, holding, selling, and the like and the attorneys fees and
legal expenses incurred by Secured Party, Debtors to remain liable for any
deficiency;
(d) the sale by Secured Party of less than the whole of the Collateral
shall not exhaust the rights of Secured Party hereunder, and Secured Party is
specifically empowered to make successive sale or sales hereunder until the
whole of the Collateral shall be sold; and, if the proceeds of such sale of less
than the whole of the Collateral shall be less than the aggregate of the Secured
Obligations, this Agreement and the security interest created hereby shall
remain in full force and effect as to the unsold portion of the Collateral just
as though no sale had been made;
(e) in the event any sale hereunder is not completed or is defective
in the opinion of Secured Party, such sale shall not exhaust the rights of
Secured Party hereunder and Secured Party shall have the right to cause a
subsequent sale or sales to be made hereunder;
(f) all statements of fact or other recitals made in any ▇▇▇▇ of sale
or assignment or other instrument evidencing any foreclosure sale hereunder as
to nonpayment of the indebtedness or as to the occurrence of any default, or as
to Secured Party having declared all of such indebtedness to be due and payable,
or as to notice of time, place and terms of sale and the properties to be sold
having been duly given, as to any other act or thing having been duly done by
Secured Party, shall be taken as prima facie evidence of the truth of the facts
so stated and recited; and
(g) Secured Party may appoint or delegate any one or more Persons as
agent to perform any act or acts necessary or incident to any sale held by
Secured Party, including the sending of notices and the conduct of sale, but in
the name and on behalf of Secured Party.
Section 4.05. Application of Collateral to Secured Obligations. Upon the
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occurrence and during the continuance of an Event of Default, and at any time
thereafter, Secured Party shall have the right, with or without notice or
demand, to apply all or any part of the Collateral to the payment of any or all
of the Secured Obligations in such manner and order as Secured Party may in its
sole discretion elect. To facilitate the rights of Secured Party hereunder,
Debtors hereby authorize
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Security Agreement (First)
Secured Party, its officers, agents or assigns, after the occurrence and during
the continuance of an Event of Default:
(a) to collect all or any part of the Collateral without further
notice to or to further consent by Debtors, and Debtors hereby constitute and
appoint Secured Party the true and lawful attorney of Debtors with power of
substitution in the name of Debtors to take any of the actions described in the
following clauses (b), (c), and (d);
(b) to ask, demand, collect, receive, receipt for, ▇▇▇ for, compound
and give acquittance for any and all amounts which may be or become due or
payable under said Collateral;
(c) to execute any and all withdrawal receipts or other orders for the
payment of money drawn on said Collateral and to endorse the names of Debtors on
all commercial paper, drafts, checks and other instruments given in payment or
in part payment thereof;
(d) in its discretion to file any claim or take any other action or
proceeding, either in its own name or in the names of Debtors or otherwise,
which Secured Party may deem necessary or appropriate to protect and preserve
the right, title and interest of Secured Party hereunder.
Section 4.06. Cumulative Remedies. All remedies herein expressly provided
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for are cumulative of any and all other remedies existing at law or in equity
and are cumulative of any and all other remedies provided for in any other
instrument securing the payment of the Secured Obligations, or any part thereof,
or otherwise benefiting Secured Party or the Equity Lenders, and the resort to
any remedy provided for hereunder or under any such other instrument or provided
for by law shall not prevent the concurrent or subsequent employment of any
other appropriate remedy or remedies; but in no event shall Secured Party or the
Equity Lenders be obligated to exercise any remedy, which obligation Debtors
hereby unconditionally waive.
Section 4.07. Resort to Other Security. Upon the occurrence and during
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the continuance of an Event of Default, Secured Party may, but in no event shall
be obligated (which obligation, if any, Debtors hereby unconditionally waive)
resort to any security given by this Agreement or to any other security now
existing or hereafter given to secure the payment of the Secured Obligations, in
whole or in part, and in such portions and in such order as may seem best to
Secured Party in its sole and uncontrolled discretion, and any such action
shall not in anywise be considered as a waiver of any of the rights, benefits or
security interests evidenced by this Agreement.
Section 4.08. Nominee Owner. Upon the occurrence and during the
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continuance of an Event of Default, Secured Party may at any time cause any or
all of the Collateral to be transferred into its name or into the name or names
of any nominee or nominees of Secured Party.
Section 4.09. Waiver of Appraisement, Valuation, Etc. To the full extent
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Debtors may do so, Debtors agree that Debtors will not at any time insist upon,
plead, claim or take the benefit or advantage of any law now or hereafter in
force providing for any marshaling, appraisement,
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Security Agreement (First)
valuation, stay, extension or redemption, and Debtors, for Debtors, Debtors'
receivers, trustees, successors and assigns, and for any and all Persons ever
claiming any interest in the Collateral, to the extent permitted by law, hereby
waive and release all rights of redemption, valuation, appraisement, stay of
execution, notice of intention to mature or declare due the whole of the Secured
Obligations, and all rights to a marshaling of the assets of Debtors, including
the Collateral, or to a sale in inverse order of alienation in the event of
foreclosure of the security interest hereby created.
Section 4.10. Power of Attorney. Debtors hereby irrevocably constitute
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and appoint Secured Party and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the names of Debtors or in its own name, to take after
the occurrence and during the continuance of an Event of Default and from time
to time thereafter, any and all action and to execute any and all documents and
instruments which Secured Party at any time and from time to time deems
necessary or desirable to accomplish the purposes of this Agreement and, without
limiting the generality of the foregoing, Debtors hereby give Secured Party the
power and right on behalf of Debtors and in its own name to do any of the
following after the occurrence and during the continuance of an Event of Default
and from time to time thereafter, without notice to or the consent of Debtors:
(i) to demand, ▇▇▇ for, collect or receive, in the names of
Debtors or in its own name, any money or property at any time payable or
receivable on account of or in exchange for any of the Collateral and, in
connection therewith, endorse checks, notes, drafts, acceptances, money
orders, documents of title or any other instruments for the payment of
money under the Collateral or any policy of insurance;
(ii) to pay or discharge taxes, Liens or other encumbrances
levied or placed on or threatened against the Collateral;
(iii) (A) to direct account debtors and any other parties liable
for any payment with respect to the Collateral to make payment of any and
all monies due and to become due thereunder directly to Secured Party or as
Secured Party shall direct; (B) to receive payment of and receipt for any
and all monies, claims and other amounts due and to become due at any time
in respect of or arising out of any Collateral; (C) to sign and endorse any
invoices, freight or express bills, bills of lading, storage or warehouse
receipts, drafts against Debtors, assignments, verifications and notices in
connection with accounts and other documents relating to the Collateral;
(D) to commence and prosecute any suit, action or proceeding at law or in
equity in any court of competent jurisdiction to collect the Collateral or
any part thereof and to enforce any other right in respect of any
Collateral; (E) to defend any suit, action or proceeding brought against
Debtors with respect to any Collateral; (F) to settle, compromise or adjust
any suit, action or proceeding described above and, in connection
therewith, to give such discharges or releases as Secured Party may deem
appropriate; (G) to endorse Debtors' names on all applications, documents,
papers and instruments necessary or desirable in order for Secured Party to
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Security Agreement (First)
use any of the Collateral; (H) to make, settle, compromise or adjust any
claims under or pertaining to any of the Collateral (including claims under
any policy of insurance); and (I) to sell, transfer, pledge, convey, make
any agreement with respect to or otherwise deal with any of the Collateral
as fully and completely as though Secured Party were the absolute owner
thereof for all purposes, and to do, at Secured Party's option and Debtors'
expense, at any time, or from time to time, all acts and things which
Secured Party deems necessary to protect, preserve, maintain, or realize
upon the Collateral and Secured Party's security interest therein.
This power of attorney is a power coupled with an interest and shall be
irrevocable. Secured Party shall be under no duty to exercise or withhold the
exercise of any of the rights, powers, privileges and options expressly or
implicitly granted to Secured Party in this Agreement, and shall not be liable
for any failure to do so or any delay in doing so. Neither Secured Party nor
any Person designated by Secured Party shall be liable for any act or omission
or for any error of judgment or any mistake of fact or law. This power of
attorney is conferred on Secured Party solely to protect, preserve, maintain and
realize upon its security interest in the Collateral. Secured Party shall not
be responsible for any decline in the value of the Collateral and shall not be
required to take any steps to preserve rights against prior parties or to
protect, preserve or maintain any Lien given to secure the Collateral.
ARTICLE V
ADDITIONAL AGREEMENTS
Section 5.01. Payment of Secured Obligations. If all of the Secured
------------------------------
Obligations shall be paid as they become due and payable in good collected
funds, and if all of the covenants, warranties, undertakings and agreements made
in this Agreement and the other Operative Documents of Debtors and the Lessee
are kept and performed, in each such case, indefeasibly, then and in that event
only, all rights under this Agreement shall terminate and the Collateral shall
become free and clear of the security interest evidenced hereby, and such
security interest shall be released by Secured Party in due form at Debtors'
cost.
Section 5.02. No Waiver. Secured Party may waive any default without
---------
waiving any other prior or subsequent default. Secured Party may remedy any
default without waiving the default remedied. The failure by Secured Party to
exercise any right, power or remedy upon any default shall not be construed as a
waiver of such default or as a waiver of the right to exercise any such right,
power or remedy at a later date. No single or partial exercise by Secured Party
of any right, power or remedy hereunder shall exhaust the same or shall preclude
any other or further exercise thereof, and every such right, power or remedy
hereunder may be exercised at any time and from time to time. No modification
or waiver of any provision hereof nor consent to any departure by Debtors
herefrom shall in any event be effective unless the same shall be in writing and
signed by Secured Party and then such waiver or consent shall be effective only
in the specific instances, for the purpose for which given and to the extent
therein specified. No notice to nor demand on Debtors in any case shall of
itself entitle Debtors to any other or further notice of demand in similar or
other
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Security Agreement (First)
circumstances. Acceptance by Secured Party of any payment in an amount
less than the amount then due on any Secured Obligations shall be deemed an
acceptance on account only and shall not in any way affect the existence of a
default hereunder.
Section 5.03. No Impairment of Rights. Secured Party may at any time and
-----------------------
from time to time in writing (a) waive compliance by Debtors with any covenant
herein made by Debtors to the extent and in the manner specified in such
writing; (b) consent to Debtors' doing any act which hereunder Debtors are
prohibited from doing, or consent to Debtors' failing to do any act which
hereunder Debtors are required to do, to the extent and in the manner specified
in such writing; (c) release any part of the Collateral, or any interest
therein, from the security interest of this Agreement; or (d) release any party
liable, either directly or indirectly, for the Secured Obligations or for any
covenant herein or in any other instrument now or hereafter securing the payment
of the Secured Obligations without impairing or releasing the liability of any
other party. No such act shall in any way impair the rights of Secured Party
hereunder or impair or release the liability of any party except to the extent
specifically agreed by Secured Party in such writing.
Section 5.04. No Release or Impairment. The security interest and other
------------------------
rights of Secured Party hereunder shall not be impaired by any indulgence,
moratorium or release granted by Secured Party, including but not limited to (a)
any renewal, extension or modification which Secured Party may grant with
respect to any Secured Obligations; (b) any surrender, compromise, release,
renewal, extension, exchange or substitution which Secured Party may grant in
respect of any item of the Collateral, or any part thereof or any interest
therein, or (c) any release or indulgence granted to any indorser, guarantor or
surety of any Secured Obligations.
Section 5.05. Security Agreement as Financing Statement. A carbon,
-----------------------------------------
photographic or other reproduction of this Agreement or of any financing
statement relating to this Agreement shall be sufficient as a financing
statement.
Section 5.06. Financing Statements. Debtors will cause all financing
--------------------
statements and continuation statements relating hereto to be recorded, filed,
re-recorded and refiled in such manner and in such places as Secured Party may
request, and will pay all such recording, filing, re-recording and refiling
taxes, fees and other charges.
Section 5.07. Dealing with Successors. Without limiting the prohibition
-----------------------
set forth in Section 3.01(e) hereof, in the event the ownership of the
Collateral or any part thereof becomes vested in a Person other than Debtors,
Secured Party may, without notice to Debtors, deal with such successor or
successors in interest with reference to this Agreement and to the Secured
Obligations in the same manner as with Debtors, without in any way affecting or
discharging Debtors' liability hereunder or for the payment of the Secured
Obligations. No sale of the Collateral, no forbearance on the part of Secured
Party and no extension of the time for the payment of the Secured Obligations
given by Secured Party shall operate to release, discharge, modify, change or
affect, in whole or in part, the liability of Debtors, Borrower or any other
Person for the payment of the Secured Obligations, except as agreed in writing
by Secured Party.
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Security Agreement (First)
Section 5.08. Subrogation. To the extent that proceeds of the Secured
-----------
Obligations are used to pay indebtedness secured by any outstanding lien,
security interest, charge or prior encumbrance against the Collateral, such
proceeds have been advanced by Secured Party at Debtors' request and Secured
Party shall be subrogated to any and all rights, security interests and liens
owned by any owner or holder of such outstanding liens, security interests,
charges or encumbrances, irrespective of whether said liens, security interests,
charges or encumbrances are released.
Section 5.09. Application of Security. If any part of the Secured
-----------------------
Obligations cannot be lawfully secured by this Agreement, or if any part of the
Collateral cannot lawfully be subject to the security interest hereof to the
full extent of such indebtedness, then all payments made shall be applied on
said indebtedness first in discharge of that portion thereof which is not
secured by this Agreement.
Section 5.10. Assignment by Secured Party. Each Equity Lender may at any
---------------------------
time assign or otherwise transfer all or any portion of their rights and
obligations under this Agreement and the other Operative Documents (including,
without limitation, the Obligations) to any other Person, to the extent
permitted by, and upon the conditions contained in, Article XIII of the
Participation Agreement, and such Person shall thereupon become vested with all
the benefits thereof granted to Secured Party on behalf of the Equity Lenders,
herein or otherwise.
Section 5.11. Performance by Secured Party. If Debtors shall fail to
----------------------------
perform any covenant or agreement contained in this Agreement, Secured Party or
the Equity Lenders may perform or attempt to perform such covenant or agreement
on behalf of Debtors. In such event, Debtors shall, at the request of Secured
Party, promptly pay any amount expended by Secured Party in connection with such
performance or attempted performance to Secured Party, together with interest
thereon at the Default Rate from and including the date of such expenditure to
but excluding the date such expenditure is paid in full. Notwithstanding the
foregoing, it is expressly agreed that neither Secured Party or the Equity
Lenders shall not have any liability or responsibility for the performance of
any obligation of Debtors under this Agreement.
ARTICLE VI
MISCELLANEOUS
Section 6.01. No Waiver; Cumulative Remedies. No failure on the part of
------------------------------
Secured Party to exercise and no delay in exercising, and no course of dealing
with respect to, any right, power or privilege under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege under this Agreement preclude any other or further
exercise thereof or the exercise of any other right, power, or privilege. The
rights and remedies provided for in this Agreement are cumulative and not
exclusive of any rights and remedies provided by law.
Section 6.02. Successors and Assigns. This Agreement shall be binding
----------------------
upon and inure to the benefit of Debtors and Secured Party and their respective
heirs, successors and assigns, except
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Security Agreement (First)
that neither party hereto shall assign any of its rights or obligations under
this Agreement except as permitted by the Participation Agreement.
SECTION 6.03. AMENDMENT; ENTIRE AGREEMENT. EXCEPT AS PROVIDED IN THE
---------------------------
OTHER OPERATIVE DOCUMENTS, THIS AGREEMENT EMBODIES THE FINAL, ENTIRE AGREEMENT
AMONG THE PARTIES HERETO AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS,
AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL,
RELATING TO THE SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS
OF THE PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES
HERETO. The provisions of this Agreement may be amended or waived only by an
instrument in writing signed by the parties hereto.
Section 6.04. Notices. All notices and other communications provided for
-------
in this Agreement shall be given or made by telecopy or in writing and
telecopied, mailed by certified mail return receipt requested, or delivered to
the intended recipient at the "Address for Notices" specified below its name on
the signature pages hereof; or, as to any party at such other address as shall
be designated by such party in a notice to the other party given in accordance
with this Section 6.04. Except as otherwise provided in this Agreement, all
------------
such communications shall be deemed to have been duly given when transmitted by
telecopy or when personally delivered or, in the case of a mailed notice, three
Business Days after deposit in the mails, in each case given or addressed as
aforesaid; provided, however, that notices to Secured Party shall be deemed
-------- -------
given when received by Secured Party.
SECTION 6.05. GOVERNING LAW; VENUE; SERVICE OF PROCESS. THIS AGREEMENT
----------------------------------------
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS AND THE APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. THIS AGREEMENT
HAS BEEN ENTERED INTO IN ▇▇▇▇▇▇ COUNTY, TEXAS, AND SHALL BE PERFORMABLE FOR ALL
PURPOSES IN ▇▇▇▇▇▇ COUNTY, TEXAS. ANY ACTION OR PROCEEDING AGAINST DEBTORS
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE
BROUGHT IN ANY STATE OR FEDERAL COURT IN ▇▇▇▇▇▇ COUNTY, TEXAS. DEBTORS HEREBY
IRREVOCABLY (A) SUBMIT TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURTS, AND (B)
WAIVE ANY OBJECTION DEBTORS MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY
SUCH ACTION OR PROCEEDING BROUGHT IN SUCH COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM. DEBTORS AGREE THAT SERVICE OF PROCESS UPON THEM MAY BE MADE
BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, AT THEIR ADDRESSES
SPECIFIED OR DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 6.04 OF
------------
THIS AGREEMENT. NOTHING IN THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL
AFFECT THE RIGHT OF SECURED PARTY TO SERVE PROCESS IN ANY
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Security Agreement (First)
OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF SECURED PARTY TO BRING
ANY ACTION OR PROCEEDING AGAINST DEBTORS OR WITH RESPECT TO ANY OF THEIR
PROPERTY IN COURTS IN OTHER JURISDICTIONS. ANY ACTION OR PROCEEDING BY DEBTORS
AGAINST SECURED PARTY SHALL BE BROUGHT ONLY IN A COURT LOCATED IN ▇▇▇▇▇▇ COUNTY,
TEXAS.
Section 6.06. Headings. The headings, captions, and arrangements used in
--------
this Agreement are for convenience only and shall not affect the interpretation
of this Agreement.
Section 6.07. Survival of Representations and Warranties. All
------------------------------------------
representations and warranties made in this Agreement or in any certificate
delivered pursuant hereto shall survive the execution and delivery of this
Agreement, and no investigation by Secured Party shall affect the
representations and warranties or the right of Secured Party to rely upon them.
Section 6.08. Counterparts. This Agreement may be executed in any number
------------
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 6.09. Waiver of Bond. In the event Secured Party seeks to take
--------------
possession of any or all of the Collateral by judicial process, Debtors hereby
irrevocably waive any bonds and any surety or security relating thereto that may
be required by applicable law as an incident to such possession, and waives any
demand for possession prior to the commencement of any such suit or action.
Section 6.10. Severability. Any provision of this Agreement which is
------------
determined by a court of competent jurisdiction to be prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Agreement, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 6.11. Construction. Debtors and Secured Party acknowledge that
------------
each of them has had the benefit of legal counsel of its own choice and has been
afforded an opportunity to review this Agreement with its legal counsel and that
this Agreement shall be construed as if jointly drafted by Debtors and Secured
Party.
SECTION 6.12. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY
--------------------
APPLICABLE LAW, DEBTORS HEREBY IRREVOCABLY AND EXPRESSLY WAIVE ALL RIGHT TO A
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF SECURED PARTY IN THE
NEGOTIATION, ADMINISTRATION OR ENFORCEMENT THEREOF.
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Security Agreement (First)
Section 6.13. No Liability of Secured Party. Secured Party's duty with
-----------------------------
reference to the Collateral shall be solely to use reasonable care in the
custody and preservation of the Collateral in Secured Party's possession.
Secured Party shall not be responsible in any way for any depreciation in the
value of the Collateral, nor shall any duty or responsibility whatsoever rest
upon Secured Party to take necessary steps to preserve rights against prior
parties or to enforce collection of the Collateral by legal proceedings or
otherwise, the sole duty of Secured Party being to receive collections,
remittances and payments on such Collateral as and when made. In the event
Debtors instruct Secured Party, in writing or orally, to deliver any or all of
the Collateral to a broker or other third person, and Secured Party agrees to do
so, the following conditions shall be conclusively deemed to be a part of
Secured Party's agreement, whether or not they are specifically mentioned to
Debtors at the time of such agreement. Secured Party shall assume no
responsibility for checking the genuineness or authenticity of any Person
purporting to be a messenger, employee or representative of the broker or other
third person to whom Debtors have directed Secured Party to deliver the
Collateral, or the genuineness or authenticity of any document of instructions
delivered by any such Person. Debtors will be considered by requesting any such
delivery to have assumed all risk of loss as to the Collateral. Secured Party's
sole responsibility will be to deliver the Collateral to the Person purporting
to be the broker or other third person described by Debtors, or a messenger,
employee or representative thereof. Secured Party and Debtors hereby expressly
agree that the foregoing actions by Secured Party shall constitute reasonable
care.
Section 6.14. Secured Obligations Absolute. Debtors agree that the Secured
----------------------------
Obligations will be paid strictly and in accordance with the terms of the
Operative Documents regardless of any law, regulation or order now or hereafter
in effect in any jurisdiction affecting any such terms or the rights of Secured
Party with respect thereto. The grant of a first and prior security interest in
the Collateral to Secured Party hereunder, and the obligations of Debtors and
the rights and remedies of Secured Party under this Agreement, shall be absolute
and unconditional, irrespective of (i) any lack of validity or enforceability of
any provision of this or any other Operative Document or any other agreement,
document or instrument relating to any Operative Document, or avoidance or
subordination of any of the Secured Obligations; (ii) any limitation of
liability or recourse in any Operative Document; (iii) any other matter or
occurrence set forth in Section 3 of the Guaranty (all of which are incorporated
herein by reference); or (iv) any other circumstances which might otherwise
constitute a legal or equitable discharge or defense of a guarantor or surety.
Without limitation of the foregoing, Debtors hereby waive any and all rights to
which Debtors may otherwise have or be entitled to under any suretyship laws of
the State of Texas in effect from time to time, including, without limitation,
any rights pursuant to Rule 31 of the Texas Rules of Civil Procedure, Section
17.001 of the Texas Civil Practice and Remedies Code, and Chapter 34 of the
Texas Business and Commerce Code.
Section 6.15. Limitation on Liability. Notwithstanding anything to the
-----------------------
contrary contained herein or in any other Operative Document, Secured Party
covenants and agrees for itself, the Equity Lenders and their respective
successors and assigns, that it shall enforce payment of the Secured Obligations
solely from amounts payable to the Lessor by the Lessee under the Master Lease,
from the Collateral, and from other security held for the payment of the Secured
Obligations. It is
15
Security Agreement (First)
expressly understood and agreed that the provisions of this section are not
intended as a release or discharge of the Secured Obligations, or any portion
thereof, but only as a covenant that no deficiency, after applying the net
proceeds at foreclosure or other sale of any of the Collateral, shall ever be
asserted against the Lessor, its successors or assigns, for the payment of the
Secured Obligations, all of which shall remain in full force and effect;
provided, however, that Secured Party expressly reserves all other legal rights
and remedies against the Lessee, the Collateral and other security held and
parties liable for the repayment of the Secured Obligations, including the
right, if an Event of Default occurs, to foreclose the security interest
contained therein and to exercise all other rights and remedies available to
Secured Party hereunder and under the Uniform Commercial Code. The Lessee
confirms and agrees that the Lessor shall have no personal liability in the
performance of any obligations or the payment of any amounts to the Lessee
hereunder or under any of the other Operative Documents, and any such personal
liability is expressly waived.
[remainder of page intentionally left blank]
16
Security Agreement (First)
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first written above.
DEBTORS:
-------
PARIBAS PROPERTIES, INC.,
a Delaware corporation
By:
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
By:
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
17
Security Agreement (First)
MAIL-WELL I CORPORATION
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
18
Security Agreement (First)
SECURED PARTY:
-------------
BANQUE PARIBAS, as Agent for the Equity Lenders
By:
----------------------------------------
Pierre-▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, General Manager
By:
----------------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
19
Security Agreement (First)
SCHEDULE I
----------
Description and Locations of Equipment
--------------------------------------