EXHIBIT 10.44
TRADEMARK COLLATERAL SECURITY AGREEMENT
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THIS AGREEMENT is made as of the 5th day of December, 1996, by and
between StyroChem International, Inc. a corporation organized under the laws of
the State of Texas, having a mailing address at 0000 Xxxxx Xxxxxxxx Xxxxxx,
Xxxx Xxxxx, XX 00000, ("Styrochem"), and The Bank of New York Commercial
Corporation as administrative and collateral agent for Lenders (as hereafter
defined), having a mailing address at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (in such capacity, "Agent").
BACKGROUND
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Styrochem, WinCup Holdings, Inc., WinCup Holdings, L.P., Radnor
Holdings Corporation, and SP Acquisition Co., have entered into an Amended and
Restated Revolving Credit and Security Agreement dated as of the date hereof (as
amended and supplemented from time to time, the "Loan Agreement") with The Bank
of New York Commercial Corporation, ("BNYCC"), the various financial
institutions named therein or which hereafter become a party thereto
(collectively, "Lenders") and BNYCC, as administrative and collateral monitoring
agent (BNYCC in such capacity, the "Agent"). In order to induce Agent and
Lenders to execute and deliver the Loan Agreement, Styrochem agreed to execute
and deliver to Agent for the benefit of Lenders this Trademark Collateral
Security Agreement ("Security Agreement"). This Security Agreement, covering
Trademarks (as hereinafter defined), is being executed contemporaneously with
the Loan Agreement under which Agent for the benefit of Lenders is granted a
lien on and security interest in, inter alia, the Trademarks and the machinery,
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equipment formulations, manufacturing procedures, quality control procedures and
product specifications ("Other Assets") relating to products sold under the
Trademarks, whereby Agent on behalf of Lenders shall have the right to foreclose
simultaneously on the Trademarks and the Other Assets in the event of the
occurrence and continuance of a default hereunder or an Event of Default under
the Loan Agreement.
NOW, THEREFORE, in consideration of the premises, Styrochem and Agent
hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in
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the Loan Agreement shall have their defined meanings when used herein and the
following terms shall have the following meanings, unless the context otherwise
requires:
"Code" shall mean the Uniform Commercial Code as the same may
from time to time be in effect in the State of New York.
"Collateral" shall have the meaning assigned to it in Section 2
of this Security Agreement.
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"Licenses" shall mean the trademark license agreements of
Styrochem designated on Schedule I hereto, as any of the same may from time to
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time be amended or supplemented.
"Proceeds" shall have the meaning assigned to it under Section
9-306 of the Code, and in any event, shall include, but not be limited to (i)
any and all proceeds of any insurance, indemnity, warranty or guarantee payable
to Styrochem from time to time with respect to any of the Collateral, (ii) any
and all payments (in any form whatsoever) made or due and payable to Styrochem
from time to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the Collateral by any
governmental body, authority, bureau or agency (or any person acting under color
of governmental authority), and (iii) any and all other amounts from time to
time paid or payable under or in connection with any of the Collateral.
"Security Agreement" shall mean this Security Agreement, as the
same may from time to time be amended or supplemented.
"Trademarks" shall mean the U.S. registered trademarks and
pending applications shown in the attached Schedule A, and those trademarks
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which are hereafter adopted or acquired by Styrochem, and all right, title and
interest therein and thereto, and all registrations, applications, and
recordings thereof, including, without limitation, applications, registrations
and recordings in the United States Patent and Trademark Office or in any
similar office or agency of the United States, any State thereof, all whether
now owned or hereafter acquired by Styrochem.
2. Grant of Security Interest. As collateral security for the
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prompt payment of the Obligations, Styrochem hereby grants and conveys to Agent
for the benefit of Lenders a security interest in and to (a) the entire right,
title and interest of Styrochem in and to the Trademarks, including the
registrations and applications appurtenant thereto, listed in Schedule A hereto
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(as the same may be amended pursuant hereto from time to time), and in and to
any and all trademarks, and registrations and applications appurtenant thereto,
hereafter acquired or filed by Styrochem, including without limitation all
renewals thereof, all proceeds of infringement suits, the rights to xxx for
past, present and future infringements and all rights corresponding thereto in
the United States and the goodwill of the business to which each of the
Trademarks relates and (b) all of Styrochem's right, title and interest in, to
and under the following:
(i) all Licenses;
(ii) all Receivables, contract rights and General Intangibles
arising under or relating to each and every License (including, without
limitation, (A) all moneys due and to become
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due under any License, (B) any damages arising out of or for breach or default
in respect of any such License, (C) all other amounts from time to time paid or
payable under or in connection with any such License, and (D) the right of
Styrochem to terminate any such License or to perform and to exercise all
remedies thereunder); and
(iii) to the extent not otherwise included, all Proceeds and
products of any or all of the foregoing. All of the property referred to in this
paragraph 2 is hereinafter collectively called the "Collateral."
3. Representations and Warranties. Styrochem covenants and warrants
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that as of the date of this Security Agreement:
(a) The Trademarks are subsisting and have not been adjudged
invalid or unenforceable;
(b) To the best of Styrochem's knowledge, each of the Trademarks
is valid and enforceable;
(c) There is no outstanding claim that the use of any of the
Trademarks violates the rights of any third person;
(d) Styrochem is the sole and exclusive owner of the entire and
unencumbered right, title and interest in and to each of the Trademarks, free
and clear of any liens, charges and encumbrances, (including, without
limitation, pledges, assignments, licenses, registered user agreements and
covenants by Styrochem not to xxx third persons), except for the Licenses
referred to in Schedule I attached hereto;
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(e) Styrochem has the right to enter into this Security
Agreement and perform its terms;
(f) Styrochem has used, and will continue to use for the
duration of this Security Agreement, proper statutory notice, where appropriate,
in connection with its use of the Trademarks; and
(g) Styrochem has used, and will continue to use for the
duration of this Security Agreement, consistent standards of quality in its
manufacture of products sold under the Trademarks.
4. Right of Inspection. Styrochem hereby grants to Agent and its
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employees and agents the right to visit Styrochem's plants and facilities which
manufacture, inspect or store products sold under any of the Trademarks, and to
inspect the products and quality control relating thereto at reasonable times
during regular business hours. Styrochem shall use its best efforts to do any
and all acts required by Agent to ensure Styrochem's compliance with paragraph
3(g) above.
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5. New Trademarks. (a) If, before the Obligations shall have been
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paid in full, Styrochem shall obtain rights to any new trademarks, the
provisions of paragraph 2 shall automatically apply thereto and Styrochem shall
give Agent prompt written notice thereof. (b) Styrochem grants Agent a power-
of-attorney, irrevocable so long as the Loan Agreement is in existence, to
modify this Security Agreement by amending Schedule A to include any future
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trademarks, including trademark registrations or applications appurtenant
thereto covered by this Security Agreement.
6. Covenants. Styrochem covenants and agrees with Agent that from
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and after the date of this Security Agreement and until the Obligations are
fully satisfied:
(a) Further Documentation; Pledge of Instruments. At any time
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and from time to time, upon the written request of Agent, Styrochem will
promptly and duly execute and deliver any and all such further instruments and
documents and take such further action as Agent may reasonably deem desirable in
obtaining the full benefits of this Security Agreement and of the rights and
powers herein granted, including, without limitation, the filing of any
financing or continuation statements under the Code with respect to the liens
and security interests granted hereby. Styrochem also hereby authorizes Agent to
file any such financing or continuation statement without the signature of
Styrochem to the extent permitted by applicable law. If any amount payable under
or in connection with any of the Collateral shall be or become evidenced by any
promissory note or other instrument, such note or instrument shall be
immediately pledged to Agent hereunder, duly endorsed in a manner satisfactory
to Agent.
(b) Maintenance of Trademarks. Styrochem will not do any act,
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or omit to do any act, whereby the Trademarks or any registration or application
appurtenant thereto, may become abandoned, invalidated, unenforceable, avoided,
avoidable, or will otherwise diminish in value, and shall notify Agent
immediately if it knows of any reason or has reason to know of any ground under
which this result may occur. Styrochem shall take appropriate action at its
expense to halt the infringement of the Trademarks and shall properly exercise
its duty to control the nature and quality of the goods offered by any licensees
in connection with the Licenses set forth in Schedule I.
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(c) Indemnification. (A) Styrochem assumes all responsibility
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and liability arising from the use of the Trademarks, and Styrochem hereby
indemnifies and holds Agent and Lenders harmless from and against any claim,
suit, loss, damage or expense (including reasonable attorneys' fees) arising out
of Styrochem's operations of its business from the use of the Trademarks. (B)
In any suit, proceeding or action brought by Agent or any Lender under any
License for any sum owing thereunder, or to enforce any provisions of such
License, Styrochem will indemnify and keep Agent and Lenders harmless from
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and against all expense, loss or damage suffered by reason of any defense, set
off, counterclaim, recoupment or reduction or liability whatsoever of the
obligee thereunder, arising out of a breach of Styrochem of any obligation
thereunder or arising out of any other agreement, indebtedness or liability at
any time owing to or in favor of such obligee or its successors from Styrochem,
and all such obligations of Styrochem shall be and remain enforceable against
and only against Styrochem and shall not be enforceable against Agent or any
Lender.
(d) Limitation of Liens on Collateral. Styrochem will not
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create, or suffer to exist, and will defend the Collateral against and take such
other action as is necessary to remove any lien, security interest, encumbrance,
claim or right, in or to the Collateral, and will defend the right, title and
interest of Agent in and to any of Styrochem's rights under the Licenses and to
the Proceeds thereof against the claims and demands of all persons whomever.
(e) Limitations on Modifications of Licenses. Styrochem will
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not (i) amend, modify, terminate or waive any provision of any License in any
manner which might materially adversely affect the value of such License or the
Trademarks as Collateral, without the written consent of Agent, (ii) fail to
exercise promptly and diligently each and every material right which it may have
under each License (other than any right of termination), without the prior
written consent of Agent, or (iii) fail to deliver to Agent a copy of each
material demand, notice or document sent or received by it relating in any way
to any License or Trademark.
(f) Notices. Styrochem will advise Agent promptly, in
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reasonable detail (i) of any lien or claim made or asserted against any of the
Collateral, (ii) of any material change in the composition of the Collateral and
(iii) of the occurrence of any other event which would have a material adverse
effect on the value of any of the Collateral or on the security interests
created hereunder.
(g) Limitation on Further Uses of Trademarks. Styrochem will
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not assign, sell, mortgage, lease, transfer, pledge, hypothecate, grant a
security interest in or lien upon, encumber, grant an exclusive or non-exclusive
license, or otherwise dispose of any of the Collateral, without prior written
consent of Agent.
7. Agent's Appointment as Attorney-in-Fact.
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(a) Styrochem hereby irrevocably constitutes and appoints Agent
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
place and stead of Styrochem and in the name of Styrochem or in its own name,
from time to time in Agent's discretion, for the purposes of carrying out the
terms of this Security Agreement, to take any and all
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appropriate action and to execute any and all documents and instruments which
may be necessary or desirable to accomplish the purposes of this Security
Agreement and, without limiting the generality of the foregoing, hereby gives
Agent the power and right, on behalf of Styrochem, to do the following:
(i) Upon the occurrence and during the continuance of an
Event of Default, to ask, demand, collect, receive and give acquittances and
receipts for any and all moneys due and to become due under any License and, in
the name of Styrochem or its own name or otherwise, to take possession of and
endorse and collect any checks, drafts, notes, acceptances or other instruments
for the payment of moneys due under any License and to file any claim or to take
any other action or proceeding in any court of law or equity or otherwise deemed
appropriate by Agent for the purpose of collecting any and all such moneys due
under any License whenever payable;
(ii) To pay or discharge taxes, liens, security interests
or other encumbrances levied or placed on or threatened against the Collateral,
to effect any repairs or any insurance called for by the terms of this Security
Agreement and to pay all or any part of the premiums therefor and the costs
thereof; and
(iii) Upon the occurrence and during the continuance of an
Event of Default (A) to direct any party liable for any payment under any of the
Licenses to make payment of any and all moneys due and to become due thereunder
directly to Agent or as Agent shall direct; (B) to receive payment of and
receipt for any and all moneys, claims and other amounts due and to become due
at any time in respect of or arising out of any Collateral; (C) to commence and
prosecute any suits, actions or proceedings 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; (D) to defend any suit,
action or proceeding brought against Styrochem with respect to any Collateral;
(E) to settle, compromise, or adjust any suit, action or proceeding described
above and, in connection therewith, to give such discharges or releases as Agent
may deem appropriate; and (F) generally to sell, transfer, pledge, make any
agreement with respect to or otherwise deal with any of the Collateral as fully
and completely as though gent were the absolute owner thereof for all purposes,
and to do, at Agent's option all acts and things which Agent deems necessary to
protect, preserve or realize upon the Collateral and Agent's security interest
therein, in order to effect the intent of this Security Agreement, all as fully
and effectively as Styrochem might do.
This power of attorney is a power coupled with an interest and shall
be irrevocable. Notwithstanding the foregoing, Styrochem further agrees to
execute any additional documents which Agent may require in order to confirm
this power
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of attorney, or which Agent may deem necessary to enforce any of its rights
contained in this Security Agreement.
(b) The powers conferred on Agent hereunder are solely to
protect its interests in the Collateral and shall not impose any duty upon it to
exercise any such powers. Agent shall be accountable only for amounts that it
actually receives as a result of the exercise of such powers and neither it nor
any of its officers, directors, employees or agents shall be responsible to
Styrochem for any act or failure to act, except for its own gross (not mere)
negligence or willful misconduct.
(c) Styrochem also authorizes Agent to execute, in connection
with the sale provided for in paragraph 10(b) of this Security Agreement, any
endorsements, assignments or other instruments of conveyance or transfer with
respect to the Collateral.
8. Execution of Power of Attorney. Concurrently with the execution
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and delivery hereof, Styrochem is executing and delivering to Agent, in the form
of Schedule II hereto, ten (10) originals of a Power of Attorney for the
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implementation of the assignment, sale or other disposal of the Trademarks
pursuant to paragraph 7 hereof.
9. Performance by Agent of Styrochem's Obligations. If Styrochem
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fails to perform or comply with any of its agreements contained herein and
Agent, as provided for by the terms of this Security Agreement, shall itself
perform or comply, or otherwise cause performance or compliance, with such
agreement, the expenses of Agent incurred in connection with such performance or
compliance shall be payable by Styrochem to Agent on demand and shall constitute
Obligations secured hereby.
10. Remedies, Rights Upon Event of Default.
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(a) If an Event of Default shall occur and be continuing:
(i) All payments received by Styrochem under or in
connection with any of the Collateral shall be held by Styrochem in trust for
Lenders, shall be segregated from other funds of Styrochem and shall forthwith
upon receipt by Styrochem, be turned over to Agent, in the same form as received
by Styrochem (duly indorsed by Styrochem to Agent, if required); and
(ii) Any and all such payments so received by Agent
(whether from Styrochem or otherwise) may, in the sole dis cretion of Agent, be
held by Agent as collateral security for, and/or then or at any time thereafter
applied in whole or in part by Agent against all or any part of the Obligations
in such order as Agent shall elect. Any balance of such payments held by Agent
and remaining after payment in full of all the Obligations shall
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be paid over to Styrochem or to whomsoever may be lawfully entitled to receive
the same.
(b) If any Event of Default shall occur and be continuing, Agent
and Lenders may exercise in addition to all other rights and remedies granted to
them in this Security Agreement and in any other instrument or agreement
securing, evidencing or relating to the Obligations, all rights and remedies of
a secured party under the Uniform Commercial Code. Styrochem shall remain liable
for any deficiency if the proceeds of any sale or disposition of the Collateral
are insufficient to pay all amounts to which Lenders are entitled. Styrochem
shall also be liable for the reasonable fees of any attorneys employed by Agent
and Lenders to collect any such deficiency and also as to any reasonable
attorney's fees incurred by Agent and Lenders with respect to the collection of
any of the Obligations and the enforcement of any of Agent's and Lenders'
respective rights hereunder.
11. Termination. At such time as Styrochem shall completely pay in
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full all of the Obligations and the Loan Agreement is terminated, this Security
Agreement shall terminate and Agent shall execute and deliver to Styrochem all
such releases, deeds, assignments and other instruments as may be necessary or
proper to re-vest in Styrochem full title to the Trademarks, subject to any
disposition thereof which may have been made by Agent pursuant hereto.
12. Notices. Any notice to be given to Agent or Styrochem under this
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Agreement shall be given in the manner and to the parties designated in the Loan
Agreement.
13. No Waiver. No course of dealing between Styrochem, Agent or any
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Lender, nor any failure to exercise, nor any delay in exercising, on the part of
Agent or any Lender, any right, power or privilege hereunder or under the Loan
Agreement shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder or thereunder preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege.
14. Cumulative Remedies. All of Agent's and Lenders' rights and
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remedies with respect to the Collateral, whether established hereby or by the
Loan Agreement, or by any other agreements or by law, shall be cumulative and
may be exercised singularly or concurrently.
15. Severability. The provisions of this Security Agreement are
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severable, and if any clause or provision shall be held invalid and
unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof, in
such jurisdiction, and shall not in any manner affect such clause or provision
in any other jurisdiction, or any other clause or provision of this Agreement in
any jurisdiction.
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16. No Modification Except in Writing. This Security Agreement is
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subject to modification only by a writing signed by the parties, except as
provided in paragraphs 5 and 7.
17. Successors and Assigns. The benefits and burdens of this
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Security Agreement shall inure to the benefit of and be binding upon the
respective successors and permitted assigns of the parties.
18. Governing Law. The validity and interpretation of this Security
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Agreement and the rights and obligations of the parties shall be governed by the
laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal as of the day and year first above written.
STYROCHEM INTERNATIONAL, INC.
WITNESS:
[SIGNATURE APPEARS HERE] By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: President
THE BANK OF NEW YORK COMMERCIAL
CORPORATION, as Agent
WITNESS:
[SIGNATURE APPEARS HERE] By: [SIGNATURE APPEARS HERE]
-------------------------- --------------------------
Name:
Title:
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XXXXX XX Xxxxxxxxxxxx )
) ss.:
COUNTY OF Philadelphia )
On this 5th day of December, 1996, before me personally came Xxxxxxx X.
Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that he is
the President of StyroChem International, Inc., and which executed the foregoing
instrument; and that he signed his name thereto by order of the board of
directors of each corporation.
[SIGNATURE APPEARS HERE]
------------------------------
NOTARY PUBLIC
STATE OF New York )
) ss.:
COUNTY OF New York )
Before me, the undersigned, on this 5th day of December, 1996,
personally appeared Xxxx X. Peak, to me known personally, and who being
by me duly sworn, deposes and says that he is the Vice President of The
Bank of New York Commercial Corporation, and that said instrument was signed on
behalf of said corporation by authority of its Board of Directors, and he
acknowledged said instrument to be the free act and deed of said
corporation.
[SIGNATURE APPEARS HERE]
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NOTARY PUBLIC
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SCHEDULE A
Schedule A to a Trademark Collateral Security Agreement dated as of December
5, 1996, by and between StyroChem International, Inc. and THE BANK OF NEW YORK
COMMERCIAL CORPORATION, as Agent.
Reg. No. or Reg. or
Application No. Xxxx Filing Date
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1,998,140 STYROCHEM INTERNATIONAL 7/23/96
(CL.17)
1,983,030 STYROCHEM INTERNATIONAL 7/25/96
74/567,764 STYROCHEM (CL.17)
(Serial Number)
74/567,762 STYROCHEM
(Serial Number)
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SCHEDULE I
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LICENSES
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SCHEDULE II
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SPECIAL POWER OF ATTORNEY
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STATE OF __________ )
) ss.:
COUNTY OF _________ )
KNOW ALL MEN BY THESE PRESENTS, that STYROCHEM INTERNATIONAL INC, a
corporation organized under the laws of the State of Texas, with its principal
office at 0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxx Xxxxx, XX 00000, (hereafter called
"Styrochem"), pursuant to a Trademark Collateral Security Agreement, dated as of
the date hereof, (the "Security Agreement"), hereby appoints and constitutes THE
BANK OF NEW YORK COMMERCIAL CORPORATION, a New York corporation, with offices at
0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in its capacity as
administrative and collateral agent ("Agent") for itself and the various other
financial institutions named in and which hereafter become a party to that
certain Amended and Restated Revolving Credit and Security Agreement dated as of
the date hereof among Styrochem, The Bank of New York Commercial Corporation
("BNYCC"), the various financial institutions named therein and which hereafter
become a party thereto (collectively, "Lenders") and Agent, its true and lawful
attorney, with full power of substitution, and with full power and authority to
perform the following acts on behalf of Styrochem:
1. Assigning, selling or otherwise disposing of all right, title and
interest of Styrochem in and to the Trademarks listed on Schedule
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A of the Security Agreement, and including those trademarks which
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are added to the same subsequent hereto, and all registrations
and recordings thereof, and all pending applications therefor,
and for the purpose of the recording, registering and filing of,
or accomplishing any other formality with respect to the
foregoing, and to execute and deliver any and all agreements,
documents, instruments of assignment or other papers necessary or
advisable to effect such purpose;
2. To execute any and all documents, statements, certificates or
other papers necessary or advisable in order to obtain the
purposes described above as Agent may in its sole discretion
determine.
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This power of attorney is made pursuant to the Security Agreement
between Styrochem and Agent and may not be revoked until the payment in full of
all Obligations as defined in the Security Agreement.
STYROCHEM INTERNATIONAL, INC.
By:___________________________
Xxxxxxx X. Xxxxxxx
President
STATE OF __________ )
) ss.
COUNTY OF _________ )
On this _____ day of December, 1996, before me personally came Xxxxxxx
X. Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that he
is the President of StyroChem International, Inc., and which executed the
foregoing instrument; and that he signed his name thereto by order of the board
of directors of each corporation.
________________________________
NOTARY PUBLIC
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SCHEDULE III
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TRADEMARKS
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1. "STYROCHEM INTERNATIONAL", (CL. 17), Federal Trademark Registration
No. 1,998,140, entered on the Principal Register on July 23, 1996.
2. "STYROCHEM INTERNATIONAL", Federal Trademark Registration No.
1,983,030, entered on the Principal Register on June 25, 1996.
3. "STYROCHEM", (CL. 17), U.S. Trademark Application Serial No.
74/567,764; second request for extension of time to file statement of
use was dated August 26, 1996.
4. "STYROCHEM", U.S. Trademark Application Serial No. 74/567,762; second
request for extension of time to file statement of use dated August
26, 1996.
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