EXHIBIT 4.14
COMPANY COPYRIGHT SECURITY AGREEMENT
COMPANY COPYRIGHT SECURITY AGREEMENT, dated as of December 11, 1997,
made by RBX CORPORATION, a Delaware corporation (the "Company"), in favor of
STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust company, as trustee
(in such capacity, the "Trustee") for the holders of the Notes (as hereinafter
defined) (the "Noteholders"), pursuant to the Indenture, dated as of December
11, 1997 (as amended, supplemented or otherwise modified from time to time,
the "Indenture"), among the Company, Xxxxxxxx Manufacturing Company, Inc.,
Xxxxxx-Xxxxx Rubber Custom Mixing Corp., Midwest Rubber Custom Mixing Corp.,
OleTex Inc., Rubatex Corporation, Universal Polymer & Rubber Inc., Universal
Rubber Company and Waltex Corporation as guarantors (the "Subsidiary
Guarantors"), and the Trustee.
WITNESSETH
WHEREAS, the Company will issue 12% Senior Secured Notes due 2003 in
the aggregate principal amount of $100,000,000 (the "Notes") pursuant to the
Indenture;
WHEREAS, it is a requirement of the Indenture that the Company shall
have executed and delivered the Company Security Agreement of even date
herewith (as amended, supplemented or otherwise modified from time to time,
the "Company Security Agreement") to the Trustee for the benefit of the
Trustee and the Noteholders;
WHEREAS, the Company owns, or is licensed to use, each of the
Copyrights and Copyright Licenses (each as hereinafter defined) described on
Schedule 1 hereto;
WHEREAS, pursuant to the terms of the Company Security Agreement the
Company has pledged and granted to the Trustee for the benefit of the Trustee
and the Noteholders, a security interest in all right, title and interest of
the Company in, to and under the Collateral (as hereinafter defined),
including the property described on Schedule 1 hereto, whether presently
existing or hereafter arising or acquired, and all Proceeds thereof,
including, without limitation, any and all causes of action which may exist by
reason of infringement thereof for the full term of the Copyrights, to secure
the payment of the Obligations (as hereinafter defined);
WHEREAS, for the convenience of reference and recordation, but with
no intention to supersede the terms of the Company Security Agreement, the
parties hereto have entered into this Copyright Security Agreement; and
WHEREAS, it is a further requirement of the Indenture that the
Company shall have executed and delivered this Copyright Security Agreement to
the Trustee for the benefit of the Trustee and the Noteholders.
NOW, THEREFORE, in consideration of the premises, the Company hereby
agrees with the Trustee, for the benefit of the Trustee and the Noteholders,
as follows:
1. Defined Terms.
(a) Unless otherwise defined herein, terms defined in the
Indenture and used herein shall have the meanings given to them in the
Indenture, and the following terms which are defined in the Uniform Commercial
Code in effect in the State of New York on
the date hereof are used herein as so defined: Accounts, Equipment, General
Intangibles, Inventory and Proceeds.
(b) The following terms shall have the following meanings:
"Closing Date": the date of the Indenture.
"Code": the Uniform Commercial Code as in effect from time to time
in the State of New York.
"Collateral": as defined in Section 2 of this Copyright Security
Agreement.
"Copyrights": all of the following to the extent that the Company
now or hereafter has any right, title or interest therein: (i) all United
States copyrights in all Works, whether published or unpublished, now existing
or hereafter created or acquired, including, without limitation, the
copyrights in the Works listed in Schedule 1 hereto, all registrations and
recordings thereof, and all applications in connection therewith, including,
without limitation, registrations, recordings and applications in the United
States Copyright Office, and (ii) all renewals thereof.
"Copyright Licenses": any agreement, whether written or oral,
naming the Company as licensor or licensee, granting any right under any
Copyright, including, without limitation, the agreements described in Schedule
1 hereto.
"Copyright Security Agreement": this Company Copyright Security
Agreement, as the same may be amended, supplemented or otherwise modified from
time to time.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Material Adverse Effect": a material adverse effect on (a) the
business, assets, operations, property or condition (financial or otherwise)
of the Company and the Subsidiary Guarantors, taken as a whole, (b) the
ability of the Company or any of the Subsidiary Guarantors to perform their
respective obligations under the Indenture, the Notes, the Subsidiary
Guarantees, the Registration Rights Agreement and the Collateral Documents,
(c) the validity or the enforceability of the Indenture, the Notes, the
Subsidiary Guarantees, the Registration Rights Agreement or the Collateral
Documents or (d) the rights or remedies of the Trustee, for the benefit of the
Trustee and the Noteholders, hereunder or thereunder.
"Obligations": as defined as "Company Obligations" in the
Indenture.
"RBX Parties": the Company, the Subsidiary Guarantors and any new
Subsidiary complying with Section 4.14 of the Indenture; individually, a "RBX
Party."
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"Requirement of Law": as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination or an
arbitrator or a court of other Governmental Authority, in each case applicable
to or binding upon such Person or any of its material property (including the
properties subject to the Mortgages and Deeds of Trust) or to which such
Person or any of its material property is subject.
"Work": any work that is subject to copyright protection pursuant
to Title 17 of the U.S. Code.
2. Security Interest.
2.1 Grant of Security Interest. As collateral security for the
prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations, the Company hereby
grants to the Trustee for the benefit of the Trustee and the Noteholders, and
their successors and assigns, a security interest in all of the following
property now owned or at any time hereafter acquired by the Company or in
which the Company now has or at any time in the future may acquire any right,
title or interest (collectively, the "Collateral"):
(1) all Copyrights;
(2) all Copyright Licenses;
(3) all General Intangibles relating to Copyrights and Copyright
Licenses; and
(4) to the extent not otherwise included, all Proceeds and
products of any and all of the foregoing.
to have and to hold, together with all rights, titles, interests, powers,
privileges and preferences pertaining or incidental thereto for the benefit of
the Noteholders.
2.2 No Assumption of Liability. The security interest in the
Collateral is granted as security only and shall not subject the Trustee to,
or in any way alter or modify, any obligation or liability of the Company or
the Subsidiary Guarantors with respect to or arising out of the Collateral.
3. Representation and Warranties. The Company hereby represents
and warrants that:
(1) Copyrights. Schedule 1 hereto includes all registered U.S.
Copyrights owned by the Company on the date hereof and all other Copyrights
and Copyright Licenses in Works owned by the Company as of the date hereof
which are material to the business of the Company and its Subsidiaries, taken
as a whole. To the best of the Company's knowledge, each Copyright is valid,
subsisting, unexpired, enforceable and has not been abandoned, except to the
extent that the failure to be valid, subsisting, unexpired or enforceable or
the abandonment thereof would not be reasonably likely to have a Material
Adverse Effect. Except as set forth in Schedule 1, none of such Copyrights is
the subject of
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any licensing or franchise agreement. No holding, decision or judgment has
been rendered by any Governmental Authority which would limit, cancel or
question the validity of any Copyright, except for such holdings, decisions or
judgments that would not be reasonably likely to have a Material Adverse
Effect. No action or proceeding is pending seeking to limit, cancel or
question the validity of any Copyright which, if adversely, determined, would
be reasonably likely to have a Material Adverse Effect.
(2) Chief Executive Office. As of the Closing Date, the
Company's chief executive office and chief place of business is located at
0000 XxxxxxXxxx Xxxxx, Xxxxxxx, XX 00000.
4. Covenants. The Company covenants and agrees with the Trustee
and the Noteholders that, from and after the date of this Copyright Security
Agreement until the payment in full or Legal Defeasance of all principal of,
interest on, premium, if any, and Liquidated Damages, if any, with respect to
the Notes and any other Obligations for the payment of money then due and
owing to any Noteholder or the Trustee under the Indenture or any Collateral
Document:
(1) Further Documentation. At any time and from time to time,
upon the written request of the Trustee, and at the sole expense of the
Company, the Company will promptly and duly execute and deliver such further
instruments and documents and take such further action as the Trustee may
reasonably request for the purpose of obtaining or preserving the full
benefits of this Copyright Security Agreement and of the rights and powers
herein granted.
(2) Indemnification.
(1) The Company agrees to pay, and to save the Trustee and
the Noteholders harmless from, any and all liabilities, costs and
expenses (including, without limitation, reasonable legal fees and
expenses) (i) with respect to, or resulting from, any delay or failure
by the Company in paying any and all excise, sales or other taxes
which may be payable or determined to be payable with respect to any
of the Collateral, (ii) with respect to, or resulting from, any delay
in complying or failure to comply with any Requirement of Law
applicable to any of the Collateral or (iii) in connection with any of
the transactions contemplated by this Copyright Security Agreement. In
any suit, proceeding or action brought by the Trustee or any
Noteholder for any sum owed, the Company will save, indemnify and keep
the Trustee and such Noteholder harmless from and against all expense,
loss or damage suffered by reason of any defense, setoff,
counterclaim, recoupment or reduction or liability whatsoever of the
account debtor or obligor thereunder, arising out of a material breach
by the Company of any obligation thereunder or arising out of any
other agreement, indebtedness or liability at any time owing to or in
favor of such account debtor or its successors from the Company. The
Trustee may have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel.
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The Company need not pay for any settlement made without its consent,
which consent shall not be unreasonably withheld.
(2) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The
Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on such Officers' Certificate or Opinion of
Counsel. The Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection from liability in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(3) Copyrights.
(1) The Company (either itself or through licensees)
will, to the extent consistent with its business judgment, (A) employ
the appropriate notice of copyright for each published Work subject to
copyright protection to the extent necessary to protect the Copyrights
relating to such Work and (B) not (and not permit any licensee or
sublicensee thereof to) do any act or knowingly omit to do any act
whereby any Copyright material to the business of the Company and its
Subsidiaries taken as a whole may become invalidated.
(2) The Company will notify the Trustee of any
determination by a court or tribunal in the country where a Copyright
is registered or copyright application is pending that the Company
does not own all right, title and interest to the registered copyright
or copyright application, or of any other determination of such court
or tribunal relating to any registered Copyright or copyright
application which would be reasonably likely to have a Material
Adverse Effect; provided that the Company has actual notice of such
determination.
(3) On the last Business Day of each calendar year of the
Company following the Closing Date (or, if the Trustee reasonably so
requests in writing, at such other times), the Company shall provide
to the Trustee a document confirming the Trustee's security interest
(for the benefit of the Trustee and the Noteholders) in the Copyright
with respect to each Work for which the Company has registered its
Copyright during such calendar year (or other applicable period), duly
executed and in proper form for filing in the U.S. Copyright Office or
other applicable United States Governmental Authority. Upon the
reasonable request of the Trustee, the Company shall execute and
deliver any and all additional agreements, instruments, documents, and
papers as the Trustee may reasonably request to evidence the Trustee's
security interest (for the benefit of the Trustee and the Noteholders)
in such Copyright and the Goodwill, Proceeds and General Intangibles,
if any, of the Company related thereto or represented thereby,
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and the Company hereby constitutes the Trustee its attorney-in-fact to
file all such writings for the purpose of so evidencing the Trustee's
security interest (and the Trustee agrees to notify the Company that
any such filing has been made, provided that any failure to so notify
the Company shall in no event invalidate any such actions by the
Trustee), all lawful acts of such attorney-in-fact being hereby
ratified and confirmed; such power being coupled with an interest is
irrevocable until the Obligations are paid in full and have been
terminated.
(4) The Company will take all reasonable and necessary steps,
as it shall deem appropriate under the circumstances in the exercise
of its reasonable business judgment, (A) to maintain and pursue each
application filed (and to obtain the relevant registration) and (B) to
maintain to the extent permitted by law each registration of each
Copyright owned by the Company, including, without limitation, in each
case where appropriate, filing of applications for renewal.
(5) The Company will promptly notify the Trustee of any
material infringement of any Copyright material to the business of the
Company and its Subsidiaries, taken as a whole, owned by it of which
it becomes aware and will take such action as it shall reasonably deem
appropriate under the circumstances to protect such Copyright.
5. Limitation on Duties Regarding Preservation of Collateral.
The Trustee's sole duty with respect to the custody, safekeeping and physical
preservation of the Collateral in its possession, under Section 9-207 of the
Code or otherwise, shall be to deal with it in the same manner as the Trustee
deals with similar property for its own account. Neither the Trustee, any
Noteholder, nor any of their respective directors, officers, employees or
agents shall be liable for failure to demand, collect or realize upon all or
any part of the Collateral or for any delay in doing so or shall be under any
obligation to sell or otherwise dispose of any Collateral upon the request of
the Company or any other Person.
6. Severability. Any provision of this Copyright Security
Agreement that is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
7. Section Headings. The section and subsection headings used
in this Copyright Security Agreement are for convenience of reference only and
are not to affect the construction hereof or be taken into consideration in
the interpretation hereof.
8. Amendments in Writing; No Waiver; Cumulative Remedies. (a)
None of the terms or provisions of this Copyright Security Agreement may be
waived, amended, supplemented or otherwise modified except by a written
instrument executed by the Company and the Trustee, provided that any
provision of this Copyright Security Agreement may be waived by the Trustee and
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the Noteholders in a letter or agreement executed by the Trustee or by telex
or facsimile transmission from the Trustee.
(b) Neither the Trustee nor any Noteholder shall by any
act (except by a written instrument pursuant to paragraph 8(a)
hereof), delay, indulgence, omission or otherwise be deemed to have
waived any right or remedy hereunder or to have acquiesced in any
Default or Event of Default or in any breach of any of the terms and
conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Trustee or any Noteholder, any right,
power or privilege hereunder shall operate as a waiver thereof. No
single or partial exercise of any right, power or privilege hereunder
shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Trustee or any
Noteholder of any right or remedy hereunder on any one occasion shall
not be construed as a bar to any right or remedy which the Trustee or
such Noteholder would otherwise have on any future occasion.
(c) The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not
exclusive of any other rights or remedies provided by law.
9. All notices, requests and demands to or upon the Trustee or
the Company to be effective shall be in writing (or by telex, fax or similar
electronic transfer confirmed in writing) and shall be deemed to have been
duly given or made (1) when delivered by hand or (2) if given by mail, three
days after deposited in the mails by certified mail, return receipt requested,
postage prepaid or (3) if by telex, fax or similar electronic transfer, when
sent and receipt has been confirmed, addressed as follows:
(1) if to the Trustee, at its address or transmission
number for notices provided in Section 13.02 of the Indenture; and
(2) if to the Company, at its address or transmission
number for notices provided in Section 13.02 of the Indenture.
The Trustee and the Company may change their addresses and transmission
numbers for notices by notice in the manner provided in this Section.
10. Successors and Assigns. This Copyright Security Agreement
shall be binding upon the successors and assigns of the Company and shall
inure to the benefit of the Trustee and the Noteholders and their successors
and assigns.
11. Submission To Jurisdiction; Waivers. The Company hereby
irrevocably and unconditionally:
(1) submits for itself and its property in any legal
action or proceeding relating to this Copyright Security Agreement,
the Company Security Agreement and the other Collateral Documents to
which it is a party, or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction
of the courts of the
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Xxxxx xx Xxx Xxxx, the courts of the United States of America for the
Southern District of New York, and appellate courts from any thereof;
(2) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(3) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Company at its address set forth in Section 13.02 of
the Indenture or at such other address of which the Trustee shall have
been notified pursuant thereto;
(4) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or
shall limit the right to xxx in any other jurisdiction; and
(5) waives, to the maximum extent not prohibited by law,
any right it may have to claim or recover in any legal action or
proceeding referred to in this Section 11 any special, exemplary,
punitive or consequential damages.
12. Acknowledgments. The Company hereby acknowledges that:
(1) it has been advised by counsel in the negotiation,
execution and delivery of this Copyright Security Agreement, the
Company Security Agreement and the other Collateral Documents to which
it is a party;
(2) neither the Trustee nor any Noteholder has any
fiduciary relationship with or duty to it or any other RBX Party
arising out of or in connection with this Copyright Security
Agreement, the Company Security Agreement or any of the other
Collateral Documents, and the relationship between the Trustee and
Noteholders, on one hand, and the RBX Parties, on the other hand, in
connection herewith or therewith is solely that of debtor and
creditor; and
(3) no joint venture is created hereby or by the other
Collateral Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Noteholders, the Trustee or the RBX
Parties.
13. WAIVER OF JURY TRIAL. THE COMPANY HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS COPYRIGHT SECURITY AGREEMENT OR ANY OTHER COLLATERAL DOCUMENT
AND FOR ANY COUNTERCLAIM THEREIN.
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14. GOVERNING LAW. THIS COPYRIGHT SECURITY AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PROVISIONS THEREOF.
15. Authority of Trustee. The Company acknowledges that the
rights and responsibilities of the Trustee under this Copyright Security
Agreement with respect to any action taken by the Trustee or the exercise or
non-exercise by the Trustee of any option, right, request, judgment or other
right or remedy provided for herein or resulting or arising out of this
Copyright Security Agreement shall, as between the Trustee and the
Noteholders, be governed by the Indenture, but, as between the Trustee and the
Company, the Trustee shall be conclusively presumed to be acting as agent for
the Noteholders with full and valid authority so to act or refrain from
acting, and the Company shall not be under any obligation, or entitlement, to
make any inquiry respecting such authority.
16. Incorporation of Company Security Agreement Provision. The
Company hereby acknowledges and affirms that the rights and remedies of the
Trustee with respect to the security interest in the Collateral made and
granted hereby are more fully set forth in the Company Security Agreement, the
terms and provisions of which are incorporated by reference herein as if fully
set forth herein. Nothing in this Copyright Security Agreement shall defer or
impair the attachment or perfection of any security interest in any collateral
covered by the Company Security Agreement which would attach or be perfected
pursuant to the terms thereof without action by the Company or any other
Person.
17. Release of Collateral and Termination.
(1) Upon the payment in full or Legal Defeasance of all
principal of, interest on, premium, if any, and Liquidated Damages, if
any, with respect to the Notes and all Obligations for the payment of
money then due and owing to any Noteholder or the Trustee under the
Indenture and the Collateral Documents, the Collateral shall be
released from the Liens created hereby, and this Copyright Security
Agreement and all obligations (other than those expressly stated to
survive such termination) of the Trustee and the Company hereunder
shall terminate, all without delivery of any instrument or performance
of any act by any party, and all rights to the Collateral shall revert
to the Company. Upon request of the Company following any such
termination, the Trustee shall deliver (at the sole cost and expense
of the Company) to the Company any Collateral held by the Trustee
hereunder, and execute and deliver (at the sole cost and expense of
the Company) to the Company such documents as the Company shall
reasonably request to evidence such termination.
(2) If any of the Collateral shall be sold, transferred
or otherwise disposed of by the Company in a transaction permitted by
the Indenture, then the Trustee shall execute and deliver to the
Company (at the sole cost and expense of the Company) all releases,
termination statements or other documents reasonably necessary for the
release of the Liens created hereby on such Collateral.
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18. Contradictory Provisions. In the event any one or more of
the provisions of this Copyright Security Agreement shall be found in a final
judgment of any New York State court or Federal court of the United States of
America sitting in New York City, and any appellate court from any thereof, to
contradict or otherwise limit any provision in the Indenture, the provision in
the Indenture shall control.
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IN WITNESS WHEREOF, the Company has caused this Copyright Security
Agreement to be duly executed and delivered as of the date first above
written. RBX CORPORATION
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
S-1
RBX CORPORATION
STATE OF )
: ss.:
COUNTY OF )
On the 11th day of December, 1997, before me personally came
_____________, to me personally known and known to me to be the person
described in and who executed the foregoing instrument as __________ of
___________, who, being by me duly sworn, did depose and say that he resides
at __________; that he is ____________ of ___________, one of the corporations
described in and which executed the foregoing instrument; that he knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that said instrument was signed and sealed on behalf of said
corporation by order of its Board of Directors; that he signed his name
thereof by like order; and that he acknowledged said instrument to be the free
act and deed of said corporation.
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Name:
[NOTARIAL SEAL]
S-2
COPYRIGHT AND COPYRIGHT LICENSES
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None
