EXHIBIT 10.7
AMENDED AND RESTATED TRADEMARK COLLATERAL
ASSIGNMENT AND SECURITY AGREEMENT
THIS AGREEMENT ("Agreement"), dated August 27, 2001, is by and between
RBX INDUSTRIES, INC., a Delaware corporation ("Debtor"), with its chief
executive office at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and CONGRESS
FINANCIAL CORPORATION, a Delaware corporation, in its capacity as collateral
agent pursuant to the Collateral Agency Agreement (as hereinafter defined)
acting for and on behalf of Congress and the Note Trustee, each as hereinafter
defined (in such capacity, together with any successor or replacement collateral
agent, "Secured Party"), having an office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H :
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WHEREAS, Debtor has adopted, used and is using, and is the owner of the
entire right, title, and interest in and to the trademarks, trade names, terms,
designs and applications therefor described in Exhibit A hereto and made a part
hereof; and
WHEREAS, Congress Financial Corporation ("Congress") and Debtor have
entered or are about to enter into financing arrangements pursuant to which
Congress may make loans and advances and provide other financial accommodations
to Debtor as set forth in the Amended and Restated Loan Agreement, dated of even
date herewith, by and among Congress, RBX Corporation ("RBX") and Debtor (as the
same now exists or may hereafter be amended, modified, supplemented, extended,
renewed, restated or replaced, the "Loan Agreement") and the other agreements,
documents and instruments referred to therein or at any time executed and/or
delivered in connection therewith or related thereto, including, but not limited
to, this Agreement (all of the foregoing, together with the Loan Agreement, as
the same now exist or may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced, being collectively referred to herein
as the "Congress Agreements"); and
WHEREAS, RBX, the parent corporation of Debtor, has issued its 12% Senior
Secured Notes due 2006 (the "Senior Notes") pursuant to the Indenture, dated of
even date herewith, by and among State Street Bank and Trust Company, in its
capacity as trustee for the holders of the Senior Notes (in such capacity, "Note
Trustee"), RBX, as Issuer and Debtor, as guarantor (as the same now exists or
may hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced, being referred to herein as the "Indenture"), and other agreements,
documents and instruments referred to therein or at any time executed and/or
delivered in connection therewith or related thereto (all of the foregoing,
together with the Indenture and the Senior Notes, as the same now exist or may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced, being collectively referred to herein as the "Note Agreements");
WHEREAS, Congress and the Note Trustee, on behalf of itself and the
holders of the Senior Notes (collectively, "Lenders") have authorized and
appointed Secured Party to act for
and on behalf of each of them as collateral agent as set forth in the
Intercreditor and Collateral Agency Agreement, dated of even date herewith, by
and among Note Trustee on behalf of the holders of the Senior Notes, Congress
and Secured Party, as acknowledged and agreed to by Debtor and RBX (as the same
now exists or may hereafter be amended, modified, supplemented, extended,
renewed, restated or replaced, the "Collateral Agency Agreement"); and
WHEREAS, in order to induce Secured Party and Lenders to enter into the
Congress Agreements and the Note Agreements (collectively, the "Financing
Agreements") and to make loans and advances and provide other financial
accommodations to Debtor pursuant thereto, Debtor has agreed to grant to Secured
Party certain collateral security as set forth herein;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Debtor hereby agrees as follows:
1. GRANT OF SECURITY INTEREST
(a) As collateral security for the prompt performance, observance
and indefeasible payment in full of all of the Obligations (as hereinafter
defined), Debtor hereby grants to Secured Party for the benefit of Lenders a
continuing security interest in and a general lien upon, and a conditional
assignment of, the following (being collectively referred to herein as the
"Collateral"): (i) all of Debtor's now existing or hereafter acquired right,
title, and interest in and to: (A) all of Debtor's trademarks, tradenames, trade
styles and service marks and all applications, registrations and recordings
relating to the foregoing as may at any time be filed in the United States
Patent and Trademark Office or in any similar office or agency of the United
States, any State thereof, any political subdivision thereof or in any other
country, including, without limitation, the trademarks, terms, designs and
applications described in Exhibit A hereto, together with all rights and
privileges arising under applicable law with respect to Debtor's use of any
trademarks, tradenames, trade styles and service marks, and all reissues,
extensions, continuation and renewals thereof (all of the foregoing being
collectively referred to herein as the "Trademarks"); and (B) all prints and
labels on which such trademarks, tradenames, tradestyles and service marks
appear, have appeared or will appear, and all designs and general intangibles of
a like nature; (ii) the goodwill of the business symbolized by each of the
Trademarks, including, without limitation, all customer lists and other records
relating to the distribution of products or services bearing the Trademarks;
(iii) all income, fees, royalties and other payments at any time due or payable
with respect thereto, including, without limitation, payments under all licenses
at any time entered into in connection therewith; (iv) the right to ▇▇▇ for
past, present and future infringements thereof; (v) all rights corresponding
thereto throughout the world; and (vi) any and all other proceeds of any of the
foregoing, including, without limitation, damages and payments or claims by
Debtor against third parties for past or future infringement of the Trademarks.
(b) Notwithstanding anything to the contrary set forth in Section
1(a) above, the Collateral described in such Section shall not include any
rights or interests in any contract, license or license agreement covering the
personal property described above, as such, if under the terms of such contract,
license or license agreement, or applicable law with respect thereto,
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the valid grant of a security interest or lien therein to Secured Party is
prohibited and such prohibition has not been or is not waived or the consent of
the other party to such contract, license or license agreement has not been or
is not otherwise obtained or under applicable law such prohibition cannot be
waived; provided, that, the foregoing exclusion shall in no way be construed (i)
to apply if any such prohibition is unenforceable under Sections 9-404, 9-405 or
9-406 of the UCC, the Confirmation Order (as such term is defined in the Loan
Agreement) or other applicable law or (ii) so as to limit, impair or otherwise
affect Secured Party's unconditional continuing security interests in and liens
upon any rights or interests of Debtor in or to monies due or to become due
under any such contract, license or license agreement (including any Receivables
(as such term is defined in the Loan Agreement)).
2. OBLIGATIONS SECURED
The security interest, lien and other interests granted to Secured Party
pursuant to this Agreement shall secure the prompt performance, observance and
payment in full of any and all obligations, liabilities and indebtedness of
every kind, nature and description owing by Debtor (as successor by merger to
Existing Debtors or otherwise) to Secured Party or any Lender, including
principal, interest, charges, fees, costs and expenses, however evidenced,
whether as principal, surety, endorser, guarantor or otherwise, to the extent
arising under this Agreement, the Existing Congress Agreements, the Loan
Agreement, the Indenture or the other Financing Agreements, whether now existing
or hereafter arising, whether arising before, during or after the initial or any
renewal term of the Loan Agreement, or before, during or after the confirmation
of any plan of reorganization in the Chapter 11 Cases, or after the commencement
of any case with respect to Debtor under the United States Bankruptcy Code or
any similar statute (including, without limitation, the payment of interest and
other amounts which would accrue and become due but for the commencement of such
case), whether direct or indirect, absolute or contingent, joint or several, due
or not due, primary or secondary, and liquidated or unliquidated (all of the
foregoing being collectively referred to herein as the "Obligations").
3. REPRESENTATIONS, WARRANTIES AND COVENANTS
Debtor hereby represents, warrants and covenants with and to Secured
Party the following (all of such representations, warranties and covenants being
continuing so long as any of the Obligations are outstanding):
(a) Debtor shall pay and perform, or cause to be paid and performed, all
of the Obligations according to their terms.
(b) All of the existing Collateral is valid and subsisting in full force
and effect, and Debtor owns the sole, full and clear title thereto, and the
right and power to grant the security interest and conditional assignment
granted hereunder. Debtor shall, at Debtor's expense, perform all acts and
execute all documents necessary to maintain the existence of the Collateral
consisting of registered Trademarks as registered trademarks and to maintain the
existence of all of the Collateral as valid and subsisting, including, without
limitation, the filing of any renewal affidavits and applications. The
Collateral is not subject to any liens, claims, mortgages,
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assignments, licenses, security interests or encumbrances of any nature
whatsoever, except: (i) the security interests granted hereunder and pursuant to
the other Security Agreements (as defined in the Loan Agreement), (ii) the
security interests permitted under the Loan Agreement, and (iii) the licenses
permitted under Section 3(e) below.
(c) Debtor shall not assign, sell, mortgage, lease, transfer, pledge,
hypothecate, grant a security interest in or lien upon, encumber, grant an
exclusive or non-exclusive license relating to the Collateral, or otherwise
dispose of any of the Collateral, in each case without the prior written consent
of Secured Party, except as otherwise permitted herein or in the Loan Agreement.
Nothing in this Agreement shall be deemed a consent by Secured Party to any such
action, except as such action is expressly permitted hereunder.
(d) Debtor shall, at Debtor's expense, promptly perform all acts and
execute all documents requested at any time by Secured Party to evidence,
perfect, maintain, record or enforce the security interest in and conditional
assignment of the Collateral granted hereunder or to otherwise further the
provisions of this Agreement. Debtor hereby authorizes Secured Party to execute
and file one or more financing statements (or similar documents) with respect to
the Collateral, signed only by Secured Party or as otherwise determined by
Secured Party. Debtor further authorizes Secured Party to have this Agreement or
any other similar security agreement filed with the Commissioner of Patents and
Trademarks or any other appropriate federal, state or government office.
(e) As of the date hereof, Debtor does not have any Trademarks
registered, or subject to pending applications, in the United States Patent and
Trademark Office or any similar office or agency in the United States, any State
thereof, any political subdivision thereof or in any other country, other than
those described in Exhibit A hereto and has not granted any licenses with
respect thereto other than as set forth in Exhibit B hereto.
(f) Debtor shall, concurrently with the execution and delivery of this
Agreement, execute and deliver to Secured Party five (5) originals of a Special
Power of Attorney in the form of Exhibit C annexed hereto for the implementation
of the assignment, sale or other disposition of the Collateral pursuant to
Secured Party's exercise of the rights and remedies granted to Secured Party
hereunder.
(g) Secured Party may, in its discretion, pay any amount or do any act
which Debtor fails to pay or do as required hereunder or as requested by Secured
Party to preserve, defend, protect, maintain, record or enforce the Obligations,
the Collateral, or the security interest and conditional assignment granted
hereunder, including, but not limited to, all filing or recording fees, court
costs, collection charges, attorneys' fees and legal expenses. Debtor shall be
liable to Lenders for any such payment, which payment shall be deemed an advance
by Lenders to Debtor, shall be payable on demand together with interest at the
highest rate then applicable to the Obligations set forth in the Loan Agreement
or the Indenture, as the case may be, and shall be part of the Obligations
secured hereby.
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(h) Debtor shall not file any application for the registration of a
Trademark with the United States Patent and Trademark Office or any similar
office or agency in the United States, unless Debtor has given Secured Party
thirty (30) days prior written notice of such action. If, after the date hereof,
Debtor shall (i) obtain any registered trademark or tradename, or apply for any
such registration in the United States Patent and Trademark Office or in any
similar office or agency in the United States, any State thereof, any political
subdivision thereof or in any other country, or (ii) become the owner of any
trademark registrations or applications for trademark registration used in the
United States or any State thereof, political subdivision thereof or in any
other country, the provisions of Section 1 hereof shall automatically apply
thereto. Upon the request of Secured Party, Debtor shall promptly execute and
deliver to Secured Party any and all assignments, agreements, instruments,
documents and such other papers as may be requested by Secured Party to evidence
the security interest in and conditional assignment of such Trademark in favor
of Secured Party.
(i) Debtor has not abandoned any of the Trademarks and Debtor will not do
any act, nor omit to do any act, whereby the Trademarks may become abandoned,
invalidated, unenforceable, avoided, or avoidable. Debtor shall notify Secured
Party immediately if it knows or has reason to know of any reason why any
application, registration, or recording with respect to the Trademarks may
become abandoned, canceled, invalidated, avoided, or avoidable.
(j) Debtor shall render any assistance, as Secured Party shall determine
is necessary, to Secured Party in any proceeding before the United States Patent
and Trademark Office, any federal or state court, or any similar office or
agency in the United States, any State thereof, any political subdivision
thereof or in any other country, to maintain such application and registration
of the Trademarks as Debtor's exclusive property and to protect Secured Party's
interest therein, including, without limitation, filing of renewals, affidavits
of use, affidavits of incontestability and opposition, interference, and
cancellation proceedings.
(k) No material infringement or unauthorized use presently is being made
of any of the Trademarks that would adversely affect in any material respect the
fair market value of the Collateral or the benefits of this Agreement granted to
Secured Party, including, without limitation, the validity, priority or
perfection of the security interest granted herein or the remedies of Secured
Party hereunder. Debtor shall promptly notify Secured Party if Debtor (or any
affiliate or subsidiary thereof) learns of any use by any person of any term or
design which infringes on any Trademark or is likely to cause confusion with any
Trademark. If requested by Secured Party, Debtor, at Debtor's expense, shall
join with Secured Party in such action as Secured Party, in Secured Party's
discretion, may deem advisable for the protection of Secured Party's interest in
and to the Trademarks.
(l) Debtor assumes all responsibility and liability arising from the use
of the Trademarks and Debtor hereby indemnifies and holds Secured Party and
Lenders harmless from and against any claim, suit, loss, damage, or expense
(including attorneys' fees and legal expenses) arising out of any alleged defect
in any product manufactured, promoted, or sold by Debtor (or any affiliate or
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subsidiary thereof) in connection with any Trademark or out of the manufacture,
promotion, labelling, sale or advertisement of any such product by Debtor (or
any affiliate or subsidiary thereof). The foregoing indemnity shall survive the
payment of the Obligations, the termination of this Agreement and the
termination or non-renewal of the Loan Agreement and the Indenture.
(m) Debtor shall promptly pay Secured Party and Lenders for any and all
expenditures made by Secured Party or any Lender pursuant to the provisions of
this Agreement or for the defense, protection or enforcement of the Obligations,
the Collateral, or the security interests and conditional assignment granted
hereunder, including, but not limited to, all filing or recording fees, court
costs, collection charges, travel expenses, and attorneys' fees and legal
expenses. Such expenditures shall be payable on demand, together with interest
at the rate then applicable to the Obligations set forth in the Loan Agreement
and shall be part of the Obligations secured hereby.
4. EVENTS OF DEFAULT
The occurrence or existence of any Event of Default under the Loan
Agreement or the Indenture is referred to herein individually as an "Event of
Default", and collectively as "Events of Default".
5. RIGHTS AND REMEDIES
At any time an Event of Default exists or has occurred and is continuing,
in addition to all other rights and remedies of Secured Party and Lenders,
whether provided under this Agreement, the Loan Agreement, the Indenture, the
other Financing Agreements, applicable law or otherwise, Secured Party shall
have the following rights and remedies which may be exercised without notice to,
or consent by, Debtor except as such notice or consent is expressly provided for
hereunder:
(a) Secured Party may require that neither Debtor nor any affiliate or
subsidiary of Debtor make any use of the Trademarks or any marks similar thereto
for any purpose whatsoever. Secured Party may make use of any Trademarks for the
sale of goods, completion of work-in-process or rendering of services in
connection with enforcing any other security interest granted to Secured Party
by Debtor or any subsidiary or affiliate of Debtor or for such other reason as
Secured Party may determine.
(b) Secured Party may grant such license or licenses relating to the
Collateral for such term or terms, on such conditions, and in such manner, as
Secured Party shall in its discretion deem appropriate. Such license or licenses
may be general, special or otherwise, and may be granted on an exclusive or
non-exclusive basis throughout all or any part of the United States of America,
its territories and possessions, and all foreign countries.
(c) Secured Party may assign, sell or otherwise dispose of the Collateral
or any part thereof, either with or without special conditions or stipulations
except that if notice to Debtor of intended disposition of Collateral is
required by law, the giving of five (5) days prior written notice to Debtor of
any proposed disposition shall be deemed reasonable notice thereof and
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Debtor waives any other notice with respect thereto. Secured Party shall have
the power to buy the Collateral or any part thereof, and Secured Party shall
also have the power to execute assurances and perform all other acts which
Secured Party may, in its discretion, deem appropriate or proper to complete
such assignment, sale, or disposition. In any such event, Debtor shall be liable
for any deficiency.
(d) In addition to the foregoing, in order to implement the assignment,
sale, or other disposition of any of the Collateral pursuant to the terms
hereof, Secured Party may at any time execute and deliver on behalf of Debtor,
pursuant to the authority granted in the Powers of Attorney described in Section
3(f) hereof, one or more instruments of assignment of the Trademarks (or any
application, registration, or recording relating thereto), in form suitable for
filing, recording, or registration. Debtor agrees to pay Secured Party on demand
all costs incurred in any such transfer of the Collateral, including, but not
limited to, any taxes, fees, and attorneys' fees and legal expenses. Debtor
agrees that Secured Party and Lenders have no obligation to preserve rights to
the Trademarks against any other parties.
(e) Secured Party may first apply the proceeds actually received from any
such license, assignment, sale or other disposition of any of the Collateral to
the costs and expenses thereof, including, without limitation, attorneys' fees
and all legal, travel and other expenses which may be incurred by Secured Party.
Thereafter, subject to the Collateral Agency Agreement, Secured Party may apply
any remaining proceeds to such of the Obligations as Secured Party may in its
discretion determine. Debtor shall remain liable to Lenders for any of the
Obligations remaining unpaid after the application of such proceeds, and Debtor
shall pay Secured Party on demand any such unpaid amount, together with interest
at the highest rate then applicable to the Obligations set forth in the Loan
Agreement or the Indenture, as the case may be.
(f) Debtor shall supply to Secured Party or to Secured Party's designee,
Debtor's knowledge and expertise relating to the manufacture and sale of the
products and services bearing the Trademarks and Debtor's customer lists and
other records relating to the Trademarks and the distribution thereof.
(g) Nothing contained herein shall be construed as requiring Secured
Party or any Lender to take any such action at any time. All of Secured Party's
and Lenders' rights and remedies, whether provided under this Agreement, the
other Financing Agreements, applicable law, or otherwise, shall be cumulative
and none is exclusive. Such rights and remedies may be enforced alternatively,
successively, or concurrently.
6. JURY TRIAL WAIVER; OTHER WAIVERS
AND CONSENTS; GOVERNING LAW
(a) The validity, interpretation and enforcement of this Agreement and
the other Financing Agreements and any dispute arising out of the relationship
between the parties hereto, whether in contract, tort, equity or otherwise,
shall be governed by the internal laws of the State of New York (without giving
effect to principles of conflicts of law).
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(b) Debtor and Secured Party irrevocably consent and submit to the
non-exclusive jurisdiction of the Supreme Court of the State of New York in New
York County and the United States District Court for the Southern District of
New York and waive any objection based on venue or forum non conveniens with
respect to any action instituted therein arising under this Agreement or any of
the other Financing Agreements or in any way connected or related or incidental
to the dealings of Debtor and Secured Party or any Lender in respect of this
Agreement or the other Financing Agreements or the transactions related hereto
or thereto, in each case whether now existing or thereafter arising, and whether
in contract, tort, equity or otherwise, and agree that any dispute with respect
to any such matters shall be heard only in the courts described above (except
that Secured Party shall have the right to bring any action or proceeding
against Debtor or its property in the courts of any other jurisdiction which
Secured Party deems necessary or appropriate in order to realize on the
Collateral or to otherwise enforce its rights against Debtor or its property).
(c) Debtor hereby waives personal service of any and all process upon it
and consents that all such service of process may be made by certified mail
(return receipt requested) directed to its address set forth herein and service
so made shall be deemed to be completed five (5) days after the same shall have
been so deposited in the U.S. mails, or, at Secured Party's option, by service
upon Debtor in any other manner provided under the rules of any such courts.
Within thirty (30) days after such service, Debtor shall appear in answer to
such process, failing which Debtor shall be deemed in default and judgment may
be entered by Secured Party against Debtor for the amount of the claim and other
relief requested.
(d) DEBTOR AND SECURED PARTY EACH HEREBY WAIVES ANY RIGHT TO TRIAL BY
JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING UNDER THIS
AGREEMENT OR ANY OF THE OTHER FINANCING AGREEMENTS OR (ii) IN ANY WAY CONNECTED
WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF DEBTOR AND SECURED PARTY OR ANY
LENDER IN RESPECT OF THIS AGREEMENT OR ANY OF THE OTHER FINANCING AGREEMENTS OR
THE TRANSACTIONS RELATED HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. DEBTOR
AND SECURED PARTY EACH HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND
THAT DEBTOR OR SECURED PARTY MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS
AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF DEBTOR AND
SECURED PARTY TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(e) Secured Party and Lenders shall not have any liability to Debtor
(whether in tort, contract, equity or otherwise) for losses suffered by Debtor
in connection with, arising out of, or in any way related to the transactions or
relationships contemplated by this Agreement, or any act, omission or event
occurring in connection herewith, unless it is determined by a final and
non-appealable judgment or court order binding on Secured Party or such Lender
that the losses were the result of acts or omissions constituting gross
negligence or willful misconduct. In any
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such litigation, Secured Party and Lenders shall be entitled to the benefit of
the rebuttable presumption that it acted in good faith and with the exercise of
ordinary care in the performance by it of the terms of this Agreement and the
other Financing Agreements.
7. ACKNOWLEDGMENT AND RESTATEMENT
(a) Rubatex Corporation ("Rubatex"), ▇▇▇▇▇▇▇▇ Manufacturing Company, Inc.
("▇▇▇▇▇▇▇▇"), OleTex Inc. ("OleTex"), Midwest Rubber Custom Mixing Corp.
("Midwest") and ▇▇▇▇▇▇-▇▇▇▇▇ Rubber Custom Mixing Corp. ("▇▇▇▇▇▇", and together
with Rubatex, ▇▇▇▇▇▇▇▇, OleTex and Midwest, each an "Existing Debtor" and,
collectively, "Existing Debtors") have each granted to Congress a security
interest in and lien upon the Collateral as set forth in the Trademark
Collateral Assignment and Security Agreement, each dated April 20, 2001, by and
between each Existing Debtor and Congress (collectively, the "Existing Congress
Agreements"). Each Existing Debtor (other than Rubatex) has merged with and into
Rubatex, with Rubatex as the surviving corporation, pursuant to the Agreement of
Merger, dated on or about the date herewith, by and among Debtor, each Existing
Debtor and certain of their affiliates (the "Mergers"). In connection with the
Mergers, Rubatex has changed it corporate name to RBX Industries, Inc. (the
entity defined herein as "Debtor"). Pursuant to the Mergers, Debtor has assumed
all of the obligations and liabilities of each Existing Debtor (other than
Rubatex) pursuant to the Existing Congress Agreements and otherwise and has
acquired all of the assets and properties of each Existing Debtor (other than
Rubatex), including, without limitation, the Collateral. Debtor has acquired
such assets and properties subject to the security interests in and liens upon
the Collateral granted to Congress pursuant to the Existing Congress Agreements,
which security interests and liens are and shall continue to be in full force
and effect.
(b) Debtor as the survivor of the Mergers hereby expressly assumes,
adopts and ratifies the Existing Congress Agreements and acknowledges, confirms
and agrees that: (i) Debtor as the survivor of the Mergers is and shall continue
to be unconditionally liable in all respects for all of the Obligations pursuant
to the Existing Congress Agreements, without offset, defense or counterclaim of
any kind, nature or description whatsoever, (ii) the security interest in and
lien upon the Collateral in favor of Congress and the perfection and priority
thereof shall continue upon the Collateral in all respects in full force and
effect, (iii) Secured Party has and shall continue to have security interests in
and liens upon all of the Collateral heretofore granted to Congress pursuant to
the Existing Congress Agreements to secure the Obligations, as well as any
Collateral granted hereunder or under the other Financing Agreements granted to
or held by Congress or Secured Party, (iv) the agreements and obligations of
Debtor contained in the Existing Congress Agreements constitute the legal, valid
and binding obligations of Debtor (as successor by merger to each Existing
Debtor (other than Rubatex)) enforceable against Debtor in accordance with its
respective terms, (v) Secured Party is entitled to all of the rights and
remedies provided for in the Existing Congress Agreements and (vi) the security
interests in and liens upon the Collateral of Secured Party are and shall be
deemed to be continuously granted and perfected from the earliest date of the
granting and perfection of such liens and security interests, whether hereunder,
under the other Financing Agreements or the Existing Congress Agreements.
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(c) Except as otherwise stated in Section 7(b) hereof and this Section
7(c), as of the date hereof, the terms, conditions, covenants, agreements,
representations and warranties set forth in the Existing Congress Agreements are
hereby replaced and superseded in their entirety by the terms, conditions,
covenants, agreements, representations and warranties set forth in this
Agreement and the other Financing Agreements, except that nothing contained
herein or in the other Financing Agreements shall impair or adversely affect the
continuation of the liability of Debtor for the Obligations heretofore incurred
during the Chapter 11 Cases (as successor by merger to the Existing Debtors
(other than Rubatex)) and the security interests, liens and other interests in
the Collateral heretofore granted, pledged and/or assigned by Existing Debtors
(including during the Chapter 11 Cases), as predecessors to Debtor or otherwise,
to Lenders or Secured Party. The amendment and restatement contained herein
shall not, in any manner, be construed to constitute payment of, or impair,
limit, cancel or extinguish, or constitute a novation in respect of, the
indebtedness and other obligations and liabilities of Debtor evidenced by or
arising under the Existing Congress Agreements, and the liens and security
interests securing such indebtedness and other obligations and liabilities,
which shall not in any manner be impaired, limited, terminated, waived or
released.
(d) Debtor, for itself and its successors and assigns, does hereby
remise, release, discharge and hold Lenders and Secured Party, and any of their
respective officers, directors, agents and employees and their respective
predecessors, successors and assigns harmless from all claims, demands, debts,
sums of money, accounts, damages, judgments, financial obligations, actions,
causes of action, suits at law or in equity, of any kind or nature whatsoever,
whether or not now existing or known, which Debtor or its respective successors
or assigns has had or may now or hereafter claim to have against Congress or
Secured Party or any of their respective officers, directors, agents and
employees and their respective predecessors, successors and assigns in any way
arising from or connected with the Existing Congress Agreements or the
arrangements set forth therein or transactions thereunder up to and including
the date hereof.
8. MISCELLANEOUS
(a) All notices, requests and demands hereunder shall be in writing and
deemed to have been given or made: if delivered in person, immediately upon
delivery; if by telex, telegram or facsimile transmission, immediately upon
sending and upon confirmation of receipt; if by nationally recognized overnight
courier service with instructions to deliver the next business day, one (1)
business day after sending; and if by certified mail, return receipt requested,
five (5) days after mailing. All notices, requests and demands upon the parties
are to be given to the following addresses or facsimile numbers (or to such
other address or facsimile number as any party may designate by notice in
accordance with this Section):
If to Debtor: RBX Industries, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
If to Secured Congress Financial Corporation, as Collateral Agent
- 10 -
Party: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Portfolio Manager
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
(b) All references to the term "Chapter 11 Cases" wherever used herein
shall mean the Chapter 11 Cases of Existing Debtors and certain of their
affiliates under the Bankruptcy Code referred to as In re RBX Corporation, et
al., Case No. ▇-▇▇-▇▇▇▇▇ (WRS), Jointly Administered, which were pending in the
United States Bankruptcy Court for the Western District of Virginia, Roanoke
Division. All references to the term "Bankruptcy Code" wherever used herein
shall mean the United States Bankruptcy Code, being Title 11 of the United
States Code, as the same now exists or may from time to time hereafter be
amended, modified, recodified or supplemented, together with all official rules,
regulations and interpretations thereunder or related thereto. All references to
the plural herein shall also mean the singular and to the singular shall also
mean the plural. All references to Debtor, Secured Party or any Lender pursuant
to the definitions set forth in the recitals hereto, or to any other person
herein, shall include their respective successors and assigns. The words
"hereof," "herein," "hereunder," "this Agreement" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not any
particular provision of this Agreement and as this Agreement now exists or may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced. An Event of Default shall exist or continue or be continuing until
such Event of Default is waived in accordance with Section 8(e) hereof or is
cured in a manner satisfactory to Secured Party. All references to the term
"Person" or "person" herein shall mean any individual, sole proprietorship,
partnership, corporation (including, without limitation, any corporation which
elects subchapter S status under the Internal Revenue Code of 1986, as amended),
limited liability company, limited liability partnership, business trust,
unincorporated association, joint stock company, trust, joint venture or other
entity or any government or any agency or instrumentality or political
subdivision thereof.
(c) This Agreement, the other Financing Agreements and any other document
referred to herein or therein shall be binding upon Debtor and its successors
and assigns and inure to the benefit of and be enforceable by Secured Party and
its successors and assigns.
(d) If any provision of this Agreement is held to be invalid or
unenforceable, such invalidity or unenforceability shall not invalidate this
Agreement as a whole, but this Agreement shall be construed as though it did not
contain the particular provision held to be invalid or unenforceable and the
rights and obligations of the parties shall be construed and enforced only to
such extent as shall be permitted by applicable law.
(e) Neither this Agreement nor any provision hereof shall be amended,
modified, waived or discharged orally or by course of conduct, but only by a
written agreement signed by an authorized officer of Secured Party. Secured
Party and Lenders shall not, by any act, delay, omission or otherwise be deemed
to have expressly or impliedly waived any of its rights, powers and/or remedies
unless such waiver shall be in writing and signed by an authorized officer of
Secured Party (and Lenders with respect to any waiver of an Event of Default).
Any such waiver shall be enforceable only to the extent specifically set forth
therein. A waiver by Secured Party
- 11 -
or any Lender of any right, power and/or remedy on any one occasion shall not be
construed as a bar to or waiver of any such right, power and/or remedy which
Secured Party or such Lender would otherwise have on any future occasion,
whether similar in kind or otherwise.
(f) In the event of any specific inconsistency between the terms,
covenants, representations, warranties or other provisions of this Agreement and
the Confirmation Order (as such term is defined in the Loan Agreement), the
terms of the Confirmation Order shall govern with respect to such specific
inconsistency.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
- 12 -
IN WITNESS WHEREOF, Debtor and Secured Party have executed this Agreement
as of the day and year first above written.
RBX INDUSTRIES, INC.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Title:CRO and President
---------------------------
CONGRESS FINANCIAL CORPORATION,
as Collateral Agent
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Title:SVP
---------------------------
- 13 -
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 22 day of August, 2001, before me personally came ▇▇▇▇▇▇ ▇.
▇▇▇▇▇, to me known, who being duly sworn, did depose and say, that he/she is the
CRO and President of RBX INDUSTRIES, INC., the corporation described in and
which executed the foregoing instrument; and that he/she signed his/her name
thereto by order of the Board of Directors of said corporation.
/s/ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
-----------------------------
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 22 day of August, 2001, before me personally came ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, to me known, who, being duly sworn, did depose and say, that he/she is
the SVP of CONGRESS FINANCIAL CORPORATION, the corporation described in and
which executed the foregoing instrument; and that he/she signed his/her name
thereto by order of the Board of Directors of said corporation.
/s/ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
------------------------------
Notary Public
- 14 -
EXHIBIT A
TO
AMENDED AND RESTATED TRADEMARK COLLATERAL
ASSIGNMENT AND SECURITY AGREEMENT
LIST OF TRADEMARKS AND TRADEMARK APPLICATIONS
================================================================================
Registration Registration Expiration
Trademark Number Date Date
================================================================================
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
================================================================================
================================================================================
Trademark Application/Serial Application
Application Number Date
================================================================================
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
================================================================================
A-1
EXHIBIT B
TO
AMENDED AND RESTATED TRADEMARK COLLATERAL
ASSIGNMENT AND SECURITY AGREEMENT
LIST OF LICENSES
NONE
B-1
EXHIBIT C
TO
AMENDED AND RESTATED TRADEMARK COLLATERAL
ASSIGNMENT AND SECURITY AGREEMENT
SPECIAL POWER OF ATTORNEY
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
KNOW ALL MEN BY THESE PRESENTS, that RBX INDUSTRIES, INC. ("Debtor"),
having an office at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ hereby
appoints and constitutes, severally, CONGRESS FINANCIAL CORPORATION, as
collateral agent (together with any successor or replacement collateral agent,
"Secured Party"), and each of its officers, its true and lawful attorney, with
full power of substitution and with full power and authority to perform the
following acts on behalf of Debtor:
1. Execution and delivery of any and all agreements, documents,
instrument of assignment, or other papers which Secured Party, in its
discretion, deems necessary or advisable for the purpose of assigning, selling,
or otherwise disposing of all right, title, and interest of Debtor in and to any
trademarks and all registrations, recordings, reissues, extensions, and renewals
thereof, or for the purpose of recording, registering and filing of, or
accomplishing any other formality with respect to the foregoing.
2. Execution and delivery of any and all documents, statements,
certificates or other papers which Secured Party, in its discretion, deems
necessary or advisable to further the purposes described in Subparagraph 1
hereof.
This Power of Attorney is made pursuant to an Amended and Restated
Trademark Collateral Assignment and Security Agreement, dated of even date
herewith, between Debtor and Secured Party (the "Security Agreement") and is
subject to the terms and provisions thereof. This Power of Attorney, being
coupled with an interest, is irrevocable until all "Obligations", as such term
is defined in the Security Agreement, are paid in full and the Security
Agreement is terminated in writing by Secured Party.
Dated: August __, 2001
RBX INDUSTRIES, INC.
By:
----------------------------
Title:
-------------------------
STATE OF NEW YORK )
C-1
) ss.:
COUNTY OF NEW YORK )
On this ____ day of August, 2001, before me personally came
___________________, to me known, who being duly sworn, did depose and say, that
he/she is the _________ of RBX INDUSTRIES, INC., the corporation described in
and which executed the foregoing instrument; and that he/she signed his/her name
thereto by order of the Board of Directors of said corporation.
----------------------------------
Notary Public
C-2