EXHIBIT 10.8
AMENDED AND RESTATED PATENT 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 0000 Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 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 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
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 patents and applications
therefor described in Exhibit A hereto and made a part hereof; and
WHEREAS, Congress Financial Corporation ("Congress") and Debtor have
entered into 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 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 all of Debtor's interest in any patents 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,
those patents, applications, registrations and recordings described in Exhibit A
hereto, together with all rights and privileges arising under applicable law
with respect to Debtor's use of any patents and all reissues, divisions,
continuations, extensions and renewals thereof (all of the foregoing being
collectively referred to herein as the "Patents"); (ii) all present and future
inventions and improvements described and claimed therein; (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 xxx 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, all damages and payments or claims by
Debtor against third parties for past or future infringement of the Patents.
(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,
the
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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 Debtor 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 Agreement, 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 the 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 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 Patents as registered patents and to maintain 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, assignments, licenses, security
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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 Patents 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
Patent with 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, 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 patent, including any reissue, division, continuation,
continuation-in-part, or extension of any patent, file any patent application,
including any application for reissue or extension of any patent, or any
divisional, continuation, or continuation-in-part application 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 patent or new patentable
inventions used in the United States, any State thereof, any 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 Patent in favor of Secured Party.
(i) Debtor has not abandoned any of the Patents and Debtor will not do
any act, nor omit to do any act, whereby the Patents 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 Patents 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 Patents 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 Patents that would adversely affect in any material respect
the fair market value of the Patents or the benefits of this Agreement granted
to Secured Party, including, without limitation, the remedies of Secured Party
hereunder. There has been no judgment holding any of the Patents invalid or
unenforceable, in whole or part nor is the validity or enforceability of any of
the Patents presently being questioned in any litigation or proceeding to which
Debtor is a party. Debtor shall promptly notify Secured Party if Debtor (or any
affiliate or subsidiary thereof) learns of any use by any person of any other
process or product which infringes upon any Patent. 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 Patents.
(l) Debtor assumes all responsibility and liability arising from the
use of the Patents 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
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out of any alleged defect in any product manufactured, promoted, or sold by
Debtor (or any affiliate or subsidiary thereof) in connection with any Patent 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 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.
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 Patents for any purpose whatsoever.
Secured Party may make use of any Patents for the sale of goods, completion of
work-in-process or rendering of services or otherwise 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.
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(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 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 Patents (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 Patents against any other parties.
(e) Secured Party may first apply the proceeds actually received from
any such license, assignment, sale or other disposition of 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 to which the Patents relate and Debtor's customer
lists and other records relating to the Patents 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
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(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).
(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.
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(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 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") has granted to Congress a security
interest in, lien upon and pledge of, the Collateral as set forth in the Patent
Collateral Assignment and Security Agreement, dated April 20, 2001, between
Rubatex and Congress (the "Existing Congress Agreement"). Each of Xxxxxxxx
Manufacturing Company, Inc. ("Xxxxxxxx"), OleTex Inc. ("OleTex"), Midwest Rubber
Custom Mixing Corp. ("Midwest") and Xxxxxx-Xxxxx Rubber Custom Mixing Corp.
("Xxxxxx", and together with Xxxxxxxx, OleTex and Midwest and certain of their
affiliates, each an "Existing Entity" and, collectively, "Existing Entities")
have merged with and into Rubatex with Rubatex as the surviving corporation
pursuant to the Agreement of Merger, dated on or about the date hereof, by and
among Rubatex, Debtor and Existing Entities (the "Merger"). In connection with
the Merger, Rubatex has changed it corporate name to RBX Industries, Inc. (the
entity defined herein as "Debtor").
(b) Debtor hereby expressly assumes, adopts and ratifies the Existing
Congress Agreement and acknowledges, confirms and agrees that: a. Debtor is and
shall continue to be unconditionally liable in all respects for all of the
Obligations pursuant to the Existing Congress Agreement, without offset, defense
or counterclaim of any kind, nature or description whatsoever, b. 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, c. 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 Agreement 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, d. the agreements and
obligations of Debtor contained in the Existing Congress Agreement constitute
the legal, valid and binding obligations of Debtor enforceable against Debtor in
accordance with its respective terms, e. Secured Party is entitled to all of the
rights and remedies provided for in the Existing Congress Agreement and f. 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
Agreement.
(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 Agreement are
hereby replaced and superseded in their entirety by the
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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 and the security interests,
liens and other interests in the Collateral heretofore granted, pledged and/or
assigned by Debtor (including during the Chapter 11 Cases 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 Agreement, 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 Agreement 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.
0000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax No.: 000-000-0000
If to Secured Congress Financial Corporation, as Collateral Agent
Party: 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Portfolio Manager
Fax No:. 000-000-0000
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(b) All references to the term "Chapter 11 Cases" wherever used herein
shall mean the Chapter 11 Cases of Existing Debtor and certain of its affiliates
under the Bankruptcy Code referred to as In re RBX Corporation, et al., Case No.
0-00-00000 (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 if an Event of Default).
Any such waiver shall be enforceable only to the extent specifically set forth
therein. A waiver by Secured Party 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.
- 11 -
(f) In the event of any specific inconsistency between the terms,
covenants representations, warranties or other provisions of this Agreement and
those of the Confirmation Order (as such term is defined in the Loan Agreement),
the terms and provisions of the Confirmation Order shall govern with respect to
such specific inconsistency.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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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/ Xxxxxx X. Xxxxx
----------------------------------
Title:CRO and President
-------------------------------
CONGRESS FINANCIAL CORPORATION,
as Collateral Agent
By:/s/ Xxxxx X. Xxxxxx
-----------------------------------
Title:SVP
-------------------------------
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 22 day of August, 2001, before me personally came Xxxxxx X.
Xxxxx, 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/ Xxxxxx Xxx Xxxxxx
--------------------------------
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 22 day of August, 2001, before me personally came Xxxxx X.
Xxxxxx, 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/ Xxxxxx Xxx Xxxxxx
--------------------------------
Notary Public
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EXHIBIT A
TO
PATENT COLLATERAL ASSIGNMENT
AND SECURITY AGREEMENT
LIST OF PATENTS AND PATENT APPLICATIONS
================================================================================
Patent Registration Registration Expiration
Description Number Date Date
================================================================================
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
================================================================================
================================================================================
Patent Application/Serial Application
Application Number Date
================================================================================
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
================================================================================
- 15 -
EXHIBIT B
TO
PATENT COLLATERAL ASSIGNMENT
AND SECURITY AGREEMENT
LICENSES
NONE
- 16 -
EXHIBIT C
TO
PATENT 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 0000 Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 hereby
appoints and constitutes CONGRESS FINANCIAL CORPORATION, as collateral agent
(together with any successor or replacement collateral agent, "Secured Party"),
and each officer thereof, 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
patents 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
Patent 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:__________________________
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STATE OF NEW YORK )
) 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 is the _________ of RBX INDUSTRIES, INC., the corporation described in and
which executed the foregoing instrument; and that he signed his name thereto by
order of the Board of Directors of said corporation.
----------------------------------
Notary Public
- 18 -
