EXHIBIT M
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Agreement") dated as of September 25, 1996,
is among GIBRALTAR PACKAGING GROUP, INC. (the "Company"), RIDGEPAK CORPORATION,
STANDARD PACKAGING AND PRINTING CO., NIEMAND HOLDINGS, INC., NIEMAND INDUSTRIES,
INC., GB LABELS, INC., such other persons or entities which from time to time
become parties hereto (collectively, including the Company, the "Debtors" and
individually each a "Debtor") and XXXXXX TRUST AND SAVINGS BANK in its capacity
as agent for the Banks referred to below (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, the Company has entered into a Credit Agreement dated as of
September 25, 1996 (as amended or otherwise modified from time to time, the
"Credit Agreement") with various financial institutions (collectively the
"Banks" and individually each a "Bank") and the Agent, pursuant to which the
Banks have agreed to make loans to, and issue letters of credit for the account
of, the Company;
WHEREAS, each of the other Debtors has executed and delivered a guaranty
(the "Guaranty") of the obligations of the Company under the Credit Agreement;
and
WHEREAS, the obligations of the Company under the Credit Agreement and the
obligations of each other Debtor under the Guaranty are to be secured pursuant
to this Agreement;
NOW, THEREFORE, for and in consideration of any loan, advance or other
financial accommodation heretofore or hereafter made to the Company by the Banks
or any of them, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
I. Definitions. When used herein, (a) the terms Certificated Security,
Chattel Paper, Deposit Account, Document, Equipment, Financial Asset, Fixture,
Goods, Inventory, Instrument, Investment Property, Security and Uncertificated
Security shall have the respective meanings assigned to such terms in the
Uniform Commercial Code (as defined below) and (b) the following terms have the
following meanings (such definitions to be applicable to both the singular and
plural forms of such terms):
Account Debtor means the party who is obligated on or under any Account
Receivable, Contract Right or General Intangible.
Account Receivable means, with respect to any Debtor, any right of such
Debtor to payment for goods sold or leased or for services rendered.
Agent - see Preamble.
Assignee Deposit Account - see Section 4.
Collateral means, with respect to any Debtor, all property and rights of
such Debtor in which a security interest is granted hereunder.
Commitments has the meaning assigned to such term in the Credit Agreement.
Computer Hardware and Software means, with respect to any Debtor, (i) all
computer and other electronic data processing hardware, whether now owned,
licensed or leased or hereafter acquired by such Debtor, including, without
limitation, all integrated computer systems, central processing units, memory
units, display terminals, printers, features, computer elements, card readers,
tape drives, hard and soft disk drives, cables, electrical supply hardware,
generators, power equalizers, accessories and all peripheral devices and other
related computer hardware; (ii) all software programs, whether now owned,
licensed or leased or hereafter acquired by such Debtor, designed for use on the
computers and electronic data processing hardware described in clause (i) above,
including, without limitation, all operating system software, utilities and
application programs in whatsoever form (source code and object code in magnetic
tape, disk or hard copy format or any other listings whatsoever); (iii) all
firmware associated therewith, whether now owned, licensed or leased or
hereafter acquired by such Debtor; and (iv) all documentation for such hardware,
software and firmware described in the preceding clauses (i), (ii) and (iii)
above, whether now owned, licensed or leased or hereafter acquired by such
Debtor, including, without limitation, flow charts, logic diagrams, manuals,
specifications, training materials, charts and pseudo codes.
Contract Right means, with respect to any Debtor, any right of such Debtor
to payment under a contract for the sale or lease of goods or the rendering of
services, which right is at the time not yet earned by performance.
Default means the occurrence of any of the following events: (a) any
Unmatured Event of Default under Section 12.1.4 of the Credit Agreement; (b) any
Event of Default; or (c) any warranty of any Debtor herein is untrue or
misleading in any material respect.
Event of Default has the meaning assigned to such term in
-2-
the Credit Agreement.
General Intangibles means, with respect to any Debtor, all of such Debtor's
"general intangibles" as defined in Uniform Commercial Code as in effect in
Illinois on the date hereof and, in any event, includes (without limitation) all
of such Debtor's trademarks, trade names, patents, copyrights, trade secrets,
customer lists, inventions, designs, software programs, mask works, goodwill,
registrations, licenses, franchises, tax refund claims, guarantee claims,
security interests and rights to indemnification.
Guarantors has the meaning assigned to such term in the Credit Agreement.
Intellectual Property shall mean all past, present and future: trade
secrets and other proprietary information; trademarks, service marks, business
names, designs, logos, indicia, and/or other source and/or business identifiers
and the goodwill of the business relating thereto and all registrations or
applications for registrations which have heretofore been or may hereafter be
issued thereon throughout the world; copyrights (including, without limitation,
copyrights for computer programs) and copyright registrations or applications
for registrations which have heretofore been or may hereafter be issued
throughout the world and all tangible property embodying the copyrights;
unpatented inventions (whether or not patentable); patent applications and
patents; industrial designs, industrial design applications and registered
industrial designs; license agreements related to any of the foregoing set forth
in this definition and income therefrom; books, records, writings, computer
tapes or disks, flow diagrams, specification sheets, source codes, object codes
and other physical manifestations, embodiments or incorporations of any of the
foregoing set forth in this definition; the right to xxx for all past, present
and future infringements of any of the foregoing set forth in this definition;
and all common law and other rights throughout the world in and to all of the
foregoing set forth in this definition.
Liabilities means, as to each Debtor, all obligations (monetary or
otherwise) of such Debtor under the Credit Agreement, any Note, the Guaranty,
any other Loan Document or any document or instrument (including any agreement
entered into with any Bank or any affiliate thereof relating to any Hedging
Obligation (as defined in the Credit Agreement)) executed in connection
therewith, howsoever created, arising or evidenced, whether direct or indirect,
absolute or contingent, now or hereafter existing, or due or to become due.
Loan Document has the meaning assigned to such term in the Credit
Agreement.
-3-
Non-Tangible Collateral shall mean, with respect to any Debtor,
collectively, such Debtor's Accounts Receivable, Contract Rights and General
Intangibles.
Notes has the meaning assigned to such term in the Credit Agreement.
Permitted Liens - see Section 3.
Subsidiary has the meaning assigned to such term in the Credit Agreement.
Trademark - see Section 3.
Uniform Commercial Code shall mean the Uniform Commercial Code as in effect
in the State of Illinois on the date of this Agreement; provided, however, as
used in Section 8 hereof, "Uniform Commercial Code" shall mean the Uniform
Commercial Code as in effect from time to time in the applicable jurisdiction.
Unmatured Event of Default has the meaning assigned to such term in the
Credit Agreement.
Terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement.
2. Grant of Security Interest. As security for the payment of all
Liabilities, each Debtor hereby assigns to the Agent for the benefit of the
Banks, and grants to the Agent for the benefit of the Banks a continuing
security interest in, the following, whether now or hereafter existing or
acquired:
All of such Debtor's:
(i) Accounts Receivable;
(ii) Certificated Securities;
(iii) Chattel Paper;
(iv) Computer Hardware and Software and all rights with
respect thereto, including, without limitation, any and
all licenses, options, warranties, service contracts,
program services, test rights, maintenance rights,
support rights, improvement rights, renewal rights and
indemnifications, and any substitutions, replacements,
additions or model conversions of any of the foregoing;
(v) Contract Rights;
-4-
(vi) Deposit Accounts;
(vii) Documents;
(viii) Financial Assets;
(ix) General Intangibles (including, without limitation, any
rights of such Debtor arising from time to time to
receive payment under a billing to a person or other
entity representing such person's or entity's obligation
to reimburse such Debtor for indebtedness paid or to be
paid by such Debtor for the account of such person or
entity);
(x) Goods (including, without limitation, all its Equipment,
Fixtures and Inventory), and together with all
accessions, additions, attachments, improvements,
substitutions and replacements thereto and therefor;
(xi) Instruments;
(xii) Intellectual Property;
(xiii) Investment Property;
(xiv) money (of every jurisdiction whatsoever);
(xv) Uncertificated Securities;
(xvi) to the extent not included in the foregoing, other
personal property of any kind or description;
together with all books, records, writings, data bases, information and
other property relating to, used or useful in connection with,
evidencing, embodying, incorporating or referring to any of the
foregoing, and all proceeds, products, offspring, rents, issues,
profits and returns of and from any of the foregoing.
3. Warranties. Each Debtor warrants that: (i) no financing statement (other
than any which may have been filed on behalf of the Agent or which may have been
filed with respect to liens and claims expressly permitted by the Credit
Agreement ("Permitted Liens")) covering any of the Collateral is on file in any
public office; (ii) such Debtor is and will be the lawful owner of all
Collateral (or, in the case of any Collateral which is licensed or leased by
such Debtor, such Debtor is the lawful lessee or licensee of such Collateral),
free of all liens and claims whatsoever, other than the security interest
hereunder and Permitted Liens, with full power and authority to execute this
Agreement and perform such Debtor's obligations hereunder, and to
-5-
subject the Collateral to the security interest hereunder; (iii) all information
with respect to Collateral and Account Debtors set forth in any schedule,
certificate or other writing at any time heretofore or hereafter furnished by
such Debtor to the Agent or any Bank, and all other written information
heretofore or hereafter furnished by such Debtor to the Agent or any Bank, is
and will be true and correct as of the date furnished; (iv) such Debtor's chief
executive office and principal place of business are as set forth on Schedule I
hereto (and such Debtor has not maintained its chief executive office and
principal place of business at any other location at any time after July 1,
1996); (v) each other location where such Debtor maintains a place of business
is set forth on Schedule II hereto; (vi) such Debtor is not now known and during
the five years preceding the date hereof has not previously been known by any
trade name except as previously disclosed to the Banks in writing prior to the
date hereof; (vii) during the five years preceding the date hereof, such Debtor
has not been known by any legal name different from the one set forth on the
signature page of this Agreement except as previously disclosed to the Banks in
writing prior to the date hereof, nor has such Debtor been the subject of any
merger or other corporate reorganization except as previously disclosed to the
Banks in writing prior to the date hereof; (viii) Schedule III hereto contains a
complete listing of all of such Debtor's Intellectual Property which is subject
to registration statutes; (ix) such Debtor is a corporation duly organized,
validly existing and in good standing under the laws of the state of its
incorporation; (x) the execution and delivery of this Agreement and the
performance by such Debtor of its obligations hereunder are within such Debtor's
corporate powers, have been duly authorized by all necessary corporate action,
have received all necessary governmental approval (if any shall be required),
and do not and will not contravene or conflict with any provision of law or of
the charter or by-laws of such Debtor or of any material agreement, indenture,
instrument or other document, or any material judgment, order or decree, which
is binding upon such Debtor; (xi) this Agreement is a legal, valid and binding
obligation of such Debtor, enforceable in accordance with its terms, except that
the enforceability of this Agreement may be limited by bankruptcy, insolvency,
fraudulent conveyance, fraudulent transfer, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights generally
and by general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law); and (xii) such Debtor is in compliance
with the requirements of all applicable laws (including, without limitation, the
provisions of the Fair Labor Standards Act), rules, regulations and orders of
every governmental authority, the non-compliance with which would materially
adversely affect the business, properties, assets, operations or condition
(financial or otherwise) of the Company and its Subsidiaries taken as a whole or
the value of the Collateral or the worth of
-6-
the Collateral as collateral security; (xiii) to the knowledge of such Debtor,
all of such Debtor's Intellectual Property remains in existence and none has
been adjudged invalid or unenforceable, in whole or in part; (xiv) to the best
of such Debtor's knowledge, all of such Debtor's Intellectual Property is valid
and enforceable and, in the case of the patents and patent applications included
in such Debtor's Intellectual Property, such Debtor has notified the Banks in
writing of all prior uses (including public uses and sales) of which it is
aware; (xv) except to the extent that the Agent shall consent in writing (which
consent shall not be unreasonably withheld), such Debtor (either itself or
through licensees) will, unless such Debtor shall reasonably determine that a
trademark which (or an application for which) is included as part of the
Intellectual Property (any "Trademark") is of negligible economic value to such
Debtor, (A) continue to use each Trademark on each and every trademark class of
goods applicable to its current line as reflected in its current catalogs,
brochures and price lists in order to maintain each Trademark in full force free
from any claim of abandonment for non-use, (B) maintain as in the past the
quality of products and services offered under each Trademark, (C) employ each
Trademark with the appropriate notice of application or registration, (D) not
use any Trademark except for the uses for which registration or application for
registration of such Trademark has been made, and (E) not (and not permit any
licensee or sublicensee thereof to) abandon any Trademark or do any act or
knowingly omit to do any act whereby any Trademark may become invalidated or
abandoned; and (xvi) unless such Debtor shall reasonably determine that a
patent, patent application or Trademark is of negligible economic value to such
Debtor, such Debtor shall use its best efforts to maintain all registrations of
such Intellectual Property in full force and effect by, without limitation,
preparing and filing in a timely manner and with the appropriate offices all
necessary applications for renewal or to extend the term thereof and all
documents required to be filed therewith.
4. Collections, etc. Until such time as the Agent shall notify such Debtor
of the revocation of such power and authority, each Debtor (a) may, in the
ordinary course of its business, at its own expense, sell, lease or furnish
under contracts of service any of the Inventory normally held by such Debtor for
such purpose, use and consume, in the ordinary course of its business, any raw
materials, work in process or materials normally held by such Debtor for such
purpose, and use, in the ordinary course of its business (but subject to the
terms of the Credit Agreement), the cash proceeds of Collateral and other money
which constitutes Collateral, (b) will, at its own expense, endeavor to collect,
as and when due, all amounts due under any of the Non-Tangible Collateral,
including the taking of such action with respect to such collection as the Agent
may reasonably request or, in the absence of such request, as such
-7-
Debtor may deem advisable, and (c) may grant, in the ordinary course of
business, to any party obligated on any of the Non-Tangible Collateral, any
rebate, refund or allowance to which such party may be lawfully entitled, and
may accept, in connection therewith, the return of Goods, the sale or lease of
which shall have given rise to such Non-Tangible Collateral. The Agent, however,
may, at any time that a Default exists, whether before or after any revocation
of such power and authority or the maturity of any of the Liabilities, notify
any parties obligated on any of the Non-Tangible Collateral to make payment to
the Agent of any amounts due or to become due thereunder and enforce collection
of any of the Non-Tangible Collateral by suit or otherwise and surrender,
release or exchange all or any part thereof, or compromise or extend or renew
for any period (whether or not longer than the original period) any indebtedness
thereunder or evidenced thereby. Upon request of the Agent during the existence
of a Default, each Debtor will, at its own expense, notify any parties obligated
on any of the Non-Tangible Collateral to make payment to the Agent of any
amounts due or to become due thereunder.
Upon request by the Agent during the existence of a Default, each Debtor
will forthwith, upon receipt, transmit and deliver to the Agent, in the form
received, all cash, checks, drafts and other instruments or writings for the
payment of money (properly endorsed, where required, so that such items may be
collected by the Agent) which may be received by such Debtor at any time in full
or partial payment or otherwise as proceeds of any of the Collateral. Except as
the Agent may otherwise consent in writing, any such items which may be so
received by any Debtor will not be commingled with any other of its funds or
property, but will be held separate and apart from its own funds or property and
upon express trust for the Agent until delivery is made to the Agent. Each
Debtor will comply with the terms and conditions of any consent given by the
Agent pursuant to the foregoing sentence.
During the existence of a Default, all items or amounts which are delivered
by any Debtor to the Agent on account of partial or full payment or otherwise as
proceeds of any of the Collateral shall be deposited to the credit of a deposit
account (each an "Assignee Deposit Account") of such Debtor with the Agent, as
security for payment of the Liabilities. No Debtor shall have any right to
withdraw any funds deposited in the applicable Assignee Deposit Account. The
Agent may, from time to time, in its discretion, and shall upon request of the
applicable Debtor made not more than once in any week, apply all or any of the
then balance, representing collected funds, in the Assignee Deposit Account,
toward payment of the Liabilities, whether or not then due, in such order of
application as the Agent may determine, and the Agent may, from time to time, in
its discretion, release all or any of such balance to the applicable
-8-
Debtor.
If and to the extent that a perfected security interest hereunder in any
Collateral shall cease to be perfected for any reason whatsoever (including,
without limitation, release of all or any balance in any Assignee Deposit
Account or use or disposition by any Debtor of any proceeds of Collateral), then
such Collateral (referred to in this paragraph as "released Collateral") shall
be deemed thereby released from the security interest hereunder in exchange, as
of the time of such release, for any other Collateral of equivalent value in
which a perfected security interest hereunder is being obtained
contemporaneously or has been most recently obtained, but only to the extent
such other Collateral does not represent either (a) Collateral in exchange for
which any previously released Collateral shall have been deemed released, or (b)
Collateral of equivalent value to any loan or advance (otherwise than by renewal
or extension) from the Agent to the Company in which Collateral a perfected
security interest hereunder shall have been obtained contemporaneously with or
most recently prior to such loan or advance.
The Agent is authorized to endorse, in the name of the applicable Debtor,
any item, howsoever received by the Agent, representing any payment on or other
proceeds of any of the Collateral.
5. Certificates, Schedules and Reports. Each Debtor will from time to time,
as the Agent may request, deliver to the Agent such schedules, certificates and
reports respecting all or any of the Collateral at the time subject to the
security interest hereunder, and the items or amounts received by such Debtor in
full or partial payment of any of the Collateral, as the Agent may reasonably
request. Any such schedule, certificate or report shall be executed by a duly
authorized officer of such Debtor and shall be in such form and detail as the
Agent may specify. Each Debtor shall immediately notify the Agent of the
occurrence of any event causing any loss or depreciation in the value of its
Inventory or other Goods which is material to the Company and its Subsidiaries
taken as a whole, and such notice shall specify the amount of such loss or
depreciation.
6. Agreements of the Debtors. Each Debtor (a) will, upon request of the
Agent, execute such financing statements and other documents (and pay the cost
of filing or recording the same in all public offices reasonably deemed
appropriate by the Agent) and do such other acts and things (including, without
limitation, delivery to the Agent of any Instruments or Certificated Securities
which constitute Collateral), all as the Agent may from time to time reasonably
request, to establish and maintain a valid security interest in the Collateral
(free of all other liens, claims and rights of third parties whatsoever, other
than Permitted Liens) to secure the payment of the Liabilities; (b)
-9-
will keep all its Inventory at, and will not maintain any place of business at
any location other than, its address(es) shown on Schedules I and II hereto or
at such other addresses of which such Debtor shall have given the Agent not less
than 10 days' prior written notice; (c) will keep its records concerning the
Non-Tangible Collateral in such a manner as will enable the Agent or its
designees to determine at any time the status of the Non-Tangible Collateral;
(d) will furnish the Agent such information concerning such Debtor, the
Collateral and the Account Debtors as the Agent may from time to time reasonably
request; (e) will permit the Agent and its designees, from time to time, on
reasonable notice and at reasonable times and intervals during normal business
hours (or at any time without notice during the existence of a Default) to
inspect such Debtor's Inventory and other Goods, and to inspect, audit and make
copies of and extracts from all records and all other papers in the possession
of such Debtor pertaining to the Collateral and the Account Debtors, and will,
upon request of the Agent during the existence of a Default, deliver to the
Agent all of such records and papers; (f) will, upon request of the Agent, stamp
on its records concerning the Collateral and add on all Chattel Paper
constituting a portion of the Collateral, a notation, in form satisfactory to
the Agent, of the security interest of the Agent hereunder; (g) except for the
sale or lease of Inventory in the ordinary course of its business and sales of
Equipment which is no longer useful in its business or which is being replaced
by similar Equipment, will not sell, lease, assign or create or permit to exist
any lien on or security interest in any Collateral other than Permitted Liens
and liens and security interests in favor of the Agent; (h) without limiting the
provisions of Section 10.3 of the Credit Agreement, will at all times keep all
its Inventory and other Goods insured under policies maintained with reputable,
financially sound insurance companies against loss, damage, theft and other
risks to such extent as is customarily maintained by companies similarly
situated, and cause all such policies to provide that loss thereunder shall be
payable to the Agent as its interest may appear (it being understood that (A) so
long as no Default shall be existing, the Agent shall deliver any proceeds of
such insurance which may be received by it to such Debtor and (B) whenever a
Default shall be existing, the Agent may apply any proceeds of such insurance
which may be received by it toward payment of the Liabilities, whether or not
due, in such order of application as the Agent may determine) and such policies
or certificates thereof shall, if the Agent so requests, be deposited with or
furnished to the Agent; (i) will take such actions as are reasonably necessary
to keep its Inventory in good repair and condition, ordinary wear and tear
excepted; (j) will take such actions as are reasonably necessary to keep its
Equipment in good repair and condition and in good working or running order,
ordinary wear and tear excepted; (k) will promptly pay when due all license
fees, registration fees, taxes,
-10-
assessments and other charges which may be levied upon or assessed against the
ownership, operation, possession, maintenance or use of its Equipment and other
Goods (as applicable); provided, however, that such Debtor shall not be required
to pay any such fee, tax, assessment or other charge if the validity thereof is
being contested by such Debtor in good faith by appropriate proceedings, so long
as forfeiture of any substantial part of its Equipment or other Goods will not
result from the failure of such Debtor to pay any such fee, tax, assessment or
other charge during the period of such contest; (l) will, upon request of the
Agent, cause to be noted on the applicable certificate, in the event any of its
Equipment is covered by a certificate of title, the security interest of the
Agent in the Equipment covered thereby and deliver all such certificates to the
Agent or its designees; (m) will take all steps reasonably necessary to protect,
preserve and maintain all of its rights in the Collateral; (n) will keep all of
the tangible Collateral in the United States; and (o) will reimburse the Agent
for all expenses, including reasonable attorneys' fees and legal expenses,
incurred by the Agent in seeking to collect or enforce any rights in respect of
such Debtor's Collateral.
Any expenses incurred in protecting, preserving and maintaining any
Collateral shall be borne by the applicable Debtor. Whenever a Default shall be
existing, the Agent shall have the right to bring suit to enforce any or all of
the Intellectual Property or licenses thereunder, in which event the applicable
Debtor shall at the request of the Agent do any and all lawful acts and execute
any and all proper documents required by the Agent in aid of such enforcement
and such Debtor shall promptly, upon demand, reimburse and indemnify the Agent
for all costs and expenses, including reasonable attorneys' fees and legal
expenses, incurred by the Agent in the exercise of its rights under this Section
6. Notwithstanding the foregoing, the Agent shall have no obligations or
liabilities regarding the Collateral or any thereof by reason of, or arising out
of, this Agreement.
7. Default. Whenever a Default shall be existing, the Agent may exercise
from time to time any rights and remedies available to it under applicable law.
Each Debtor agrees, in case of Default, (i) to assemble, at its expense, all its
Inventory and other Goods (other than Fixtures) at a convenient place or places
acceptable to the Agent, and (ii) at the Agent's request, to execute all such
documents and do all such other things which may be necessary or desirable in
order to enable the Agent or its nominee to be registered as owner of the
Intellectual Property with any competent registration authority. Any
notification of intended disposition of any of the Collateral required by law
shall be deemed reasonably and properly given if given at least five days before
such disposition. Any proceeds of any disposition by the Agent of any
-11-
of the Collateral may be applied by the Agent to payment of expenses in
connection with the Collateral, including audit fees and reasonable attorneys'
fees and legal expenses, and any balance of such proceeds may be applied by the
Agent toward the payment of such of the Liabilities, and in such order of
application, as the Agent may from time to time elect.
8. General. The Agent shall be deemed to have exercised reasonable care in
the custody and preservation of any of the Collateral in its possession if it
takes such action for that purpose as any applicable Debtor requests in writing,
but failure of the Agent to comply with any such request shall not of itself be
deemed a failure to exercise reasonable care, and no failure of the Agent to
preserve or protect any rights with respect to such Collateral against prior
parties, or to do any act with respect to the preservation of such Collateral
not so requested by any Debtor, shall be deemed a failure to exercise reasonable
care in the custody or preservation of such Collateral.
Any notice from the Agent to any Debtor, if mailed, shall be deemed given
five days after the date mailed, postage prepaid, addressed to such Debtor
either at such Debtor's address shown on Schedule I hereto or at such other
address as such Debtor shall have specified in writing to the Agent as its
address for notices hereunder.
Each of the Debtors agrees to pay all expenses (including reasonable
attorney's fees and legal expenses) paid or incurred by the Agent or any Bank in
endeavoring to collect the Liabilities of such Debtor, or any part thereof, and
in enforcing this Agreement against such Debtor, and such obligations will
themselves be Liabilities.
No delay on the part of the Agent in the exercise of any right or remedy
shall operate as a waiver thereof, and no single or partial exercise by the
Agent of any right or remedy shall preclude other or further exercise thereof or
the exercise of any other right or remedy.
This Security Agreement shall remain in full force and effect until all
Liabilities have been paid in full and all Commitments have terminated. If at
any time all or any part of any payment theretofore applied by the Agent or any
Bank to any of the Liabilities is or must be rescinded or returned by the Agent
or such Bank for any reason whatsoever (including, without limitation, the
insolvency, bankruptcy or reorganization of any Debtor), such Liabilities shall,
for the purposes of this Agreement, to the extent that such payment is or must
be rescinded or returned, be deemed to have continued in existence,
notwithstanding such application by the Agent or such Bank, and this Agreement
shall continue to be effective or be reinstated, as the case may be, as to such
Liabilities, all as though such
-12-
application by the Agent or such Bank had not been made.
This Agreement has been delivered at Chicago, Illinois, and shall be
construed in accordance with and governed by the internal laws of the State of
Illinois, subject, however, to the applicability of the Uniform Commercial Code
of any jurisdiction in which any Goods of any Debtor may be located at any given
time. Whenever possible, each provision of this Agreement shall be interpreted
in such manner as to be effective and valid under applicable law, but if any
provision of this Agreement shall be prohibited by or invalid under applicable
law, such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
The rights and privileges of the Agent hereunder shall inure to the benefit
of its successors and assigns.
This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, and each such counterpart
shall be deemed to be an original, but all such counterparts shall together
constitute one and the same Agreement. At any time after the date of this
Agreement, one or more additional persons or entities may become parties hereto
by executing and delivering a counterpart to the Agent of this Agreement.
Immediately upon such execution and delivery (and without any further action),
each such additional person or entity will become a party to, and will be bound
by all the terms of, this Agreement.
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS; PROVIDED, HOWEVER, THAT
ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE
BROUGHT, AT THE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH DEBTOR HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS
AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE. EACH DEBTOR FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, TO THE ADDRESS SET FORTH ON SCHEDULE I HERETO (OR SUCH OTHER ADDRESS AS
IT SHALL HAVE SPECIFIED IN WRITING TO THE AGENT AS ITS ADDRESS FOR NOTICES
HEREUNDER) OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF ILLINOIS. EACH
DEBTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE
OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM
THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
-13-
INCONVENIENT FORUM. TO THE EXTENT THAT ANY DEBTOR HAS OR HEREAFTER MAY ACQUIRE
ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER
THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, SUCH DEBTOR
HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
EACH OF EACH DEBTOR, THE AGENT AND (BY ACCEPTING THE BENEFITS HEREOF) EACH
BANK HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO
ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT, ANY NOTE, ANY OTHER LOAN
DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH
MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING
FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE FOREGOING,
AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND
NOT BEFORE A JURY.
SIGNATURES BEGIN ON THE NEXT PAGE
-14-
IN WITNESS WHEREOF, this Agreement has been duly executed as of the day and
year first above written.
GIBRALTAR PACKAGING GROUP, INC.
By: /s/ W E Rose
Title: President
RIDGEPAK CORPORATION
By: /s/ W E Rose
Title: President
STANDARD PACKAGING AND PRINTING CO.
By: /s/ W E Rose
Title: CEO
NIEMAND HOLDINGS, INC.
By: /s/ W E Rose
Title: President
NIEMAND INDUSTRIES, INC.
By: /s/ W E Rose
Title: Vice President
-15-
GB LABELS, INC.
By: /s/ W E Rose
Title: Senior Vice President
XXXXXX TRUST AND SAVINGS BANK,
as Agent for the Banks
By: /s/ Xxxx X. Xxxxxx
Title: Vice President
-16-
SCHEDULE I
TO SECURITY AGREEMENT
CHIEF EXECUTIVE OFFICES
Gibraltar Packaging Group, Inc.
000 Xxxxxxxxx Xxx.
Xxxxxxxx, XX 00000
(Fairfield County)
RidgePak Corporation
0000 Xxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
(Xxxxx County)
Standard Packaging and Printing Corp.
XXX 00 Xxxx
Xx. Xxxxxx, XX 00000
(Xxxxxxxxxx County)
GB Labels, Inc.
0000 X. Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
(Alamance County)
Niemand Industries, Inc.
0000 X. Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
(Perry County)
Niemand Holdings, Inc.
000 Xxxxxxxxx Xxx.
Xxxxxxxx, XX 00000
(Fairfield County)
SCHEDULE II
TO SECURITY AGREEMENT
ADDRESSES
Company Address
Gibraltar Packaging Group, Inc. 000 Xxxxxxxxx Xxx.
Xxxxxxxx, XX 00000
(Fairfield County)
RidgePak Corporation
dba Flashfold Carton Co. 0000 Xxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
(Xxxxx County)
0000 Xxxxxx Xxxxxx
0000 Xxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
(Xxxxx County)
000 Xxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
(Xxxxx County)
0000 Xxxxxxxx
Xx. Xxxxx, XX 00000
(Xxxxx County)
0000 Xxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
(Xxxxx County)
Standard Packaging and
Printing Corp. XXX 00 Xxxx
Xx. Xxxxxx, XX 00000
(Xxxxxxxxxx County)
000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
(Stanly County)
GB Labels, Inc. 0000 X. Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
(Alamance County)
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
(Alamance County)
Niemand Industries, Inc. 0000 X. Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
(Perry County)
000 Xxxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
(Westchester County)
000 Xxxxxx Xxxx
000 Xxxxxx Xxxx
000 Xxxxxx Xxxx
000 Xxxxxxxxx Xxxx
000 Xxxxxxxxx Xxxx
000 Xxxxxxxxx Xxxx
000 Xxxxxxxxx Xxxx
Xxxxxx, XX 00000
(Perry County)
Gibraltar Packaging Group, Inc.
dba Great Plains Packaging 0000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
(Xxxxx County)
000 Xxxx Xxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
(Xxxxx County)
0000 X. Xxxxxxxxxx
Xxxxxxxx, XX 00000
(Xxxxx County)
-2-
SCHEDULE III
TO SECURITY AGREEMENT
INTELLECTUAL PROPERTY
The following patents have been issued to Niemand Industries, Inc. by
the U.S. Patent and Trademark Office:
Registration No. Date Product
4,608,107 August 26, 1986 High temperature probe xxxxx cover
4,674,520 June 23, 1987 Powder drum
5,282,789 February 1, 1994 Disposable medicine applicator
