EXHIBIT 10.2
EXECUTION COPY
SENIOR SECURITY AGREEMENT, dated as of December 11, 1997, made among
RBX CORPORATION, a Delaware corporation (the "Borrower"), each subsidiary of
the Borrower listed on Schedule I hereto (each such subsidiary individually a
"Subsidiary Guarantor", and collectively, the "Subsidiary Guarantors"; the
Subsidiary Guarantors and the Borrower are referred to herein collectively as
the "Grantors") and THE CHASE MANHATTAN BANK, a New York banking corporation
("Chase"), as agent (in such capacity, the "Agent") for the Secured Parties
(as defined herein). Capitalized terms used but not defined herein shall have
the meanings assigned to such terms in the Credit Agreement.
W I T N E S S E T H :
WHEREAS, the Borrower is a party to a Credit Agreement dated as of
October 16, 1995 (as amended, supplemented or otherwise modified from time to
time, the "Existing Credit Agreement"), with a syndicate of lenders (the
"Existing Lenders") and Chase as agent;
WHEREAS, the Borrower intends to issue in an offering under Rule
144A of the Securities Act of 1933, as amended, up to $100,000,000 aggregate
principal amount of its New Notes, which will be secured (a) on a first
priority basis (subject to certain permitted exceptions) by the New Notes
Collateral and (b) on a second priority basis (subject to certain permitted
exceptions) by the Collateral;
WHEREAS, the proceeds of the New Notes will be used to repay in full
all amounts due and owing under the Existing Credit Agreement and all
obligations and security interests created thereunder shall be terminated no
later than the Closing Date;
WHEREAS, the Borrower is a party to a Credit Agreement dated as of
December 11, 1997 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among the Borrower, the lenders from time to
time party thereto (the "Lenders") and Chase, as agent for the Lenders (in
such capacity, the "Agent");
WHEREAS, it is a condition precedent to the obligation of the
Lenders to make their respective Loans to, and the Issuing Lender to issue
Letters of Credit for the account of, the Borrower under the Credit Agreement
that the Subsidiary Guarantors guarantee payment and performance of the
Borrower's obligations under the Credit Agreement, the Notes and the other
Loan Documents;
WHEREAS, in satisfaction of such condition, the Subsidiary
Guarantors have entered into a Guarantee Agreement of even date herewith (as
amended, supplemented or otherwise modified from time to time, the "Guarantee
Agreement") for the benefit of the Agent and the Lenders;
WHEREAS, it is a further condition precedent to the obligation of
the Lenders to make their respective Loans to, and the Issuing Lender to issue
Letters of Credit for the account of, the Borrower under the Credit Agreement
that the Grantors shall have executed and delivered this
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Senior Security Agreement to secure payment and performance of the Grantors'
obligations under the Credit Agreement, the Notes, the Guarantee Agreement and
the other Loan Documents; and
NOW, THEREFORE, in consideration of the premises and to induce the
Agent and the Lenders to enter into the Credit Agreement and to induce the
Lenders to make their respective Loans to, and the Issuing Lender to issue
letters of credit for the account of, the Borrower thereunder, the Grantors
hereby agree with the Agent, for the ratable benefit of the Lenders, as
follows:
1. Defined Terms.
1.1. Definitions. (a) Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given
to them in the Credit Agreement.
(b) The following terms shall have the following meanings:
"Account Debtor" shall mean any person who is or who may become obligated
to any Grantor under, with respect to or on account of an Account.
"Accounts" shall mean any and all rights, title and interest of any
Grantor to payment for goods and services sold or leased, including any such
right evidenced by chattel paper, whether due or to become due, whether or not
it has been earned by performance, and whether now or hereafter acquired or
arising in the future, including Accounts Receivable from Affiliates of the
Grantors.
"Accounts Receivable" shall mean all Accounts and all right, title and
interest in any returned goods, together with all rights, titles, securities
and guarantees with respect thereto, including any rights to stoppage in
transit, replevin, reclamation and resales, and all related security
interests, liens and pledges, whether voluntary or involuntary, in each case
whether now existing or owned or hereafter arising or acquired.
"Agreement": this Senior Security Agreement, as the same may be amended,
modified or otherwise supplemented from time to time.
"Code": the Uniform Commercial Code as from time to time in effect in
the State of New York.
"Collateral": as defined in Section 2 of this Agreement.
"General Intangibles" shall mean, in each case to the extent related to
Accounts Receivable or Inventory: all choses in action and causes of action
and all other assignable intangible personal property of any Grantor of every
kind and nature now owned or hereafter acquired by any Grantor, including
corporate or other business records, indemnification claims, contract rights,
any letter of credit, guarantee, claim, security interest or other security
held by or granted to any Grantor to secure payment by an Account Debtor of
any of the Accounts Receivable.
"Inventory" shall mean all goods of any Grantor, whether now owned or
hereafter acquired, held for sale or lease, or furnished or to be furnished by
any Grantor under contracts of service, or consumed in any Grantor's business,
including raw materials, intermediates, work in process, packaging materials,
finished goods, semi-finished inventory, scrap inventory, manufacturing
supplies and spare parts, and all such goods that have been returned to or
repossessed by or on behalf of any Grantor.
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"Obligations": the collective reference to the unpaid principal of and
premium, if any, and interest on (including, without limitation, interest
accruing at the then applicable rate provided in the Credit Agreement after
the maturity of the Loans and interest accruing at the then applicable rate
provided in the Credit Agreement after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Grantors, whether or not a claim for post-filing
or post-petition interest is allowed in such proceeding) the Notes and all
other obligations and liabilities of any Grantor to the Agent in connection
with the Credit Agreement, the Notes, the Letters of Credit, any Interest Rate
Agreement entered into with any Lender, this Agreement, the Guarantee
Agreement the other Loan Documents to which any Grantor is a party or any
other document made, delivered or given in connection therewith, in each case
whether on account of principal, interest, reimbursement obligations, amounts
payable in connection with the termination of any transaction entered into
pursuant to an Interest Rate Agreement entered into with any Lender, fees,
indemnities, costs, expenses or otherwise (including, without limitation, all
fees and disbursements of counsel to the Agent or any Lender that are required
to be paid by any Grantor pursuant to the terms of the Credit Agreement or
this Agreement or any other Loan Document).
"Proceeds" shall mean any consideration received form the sale, exchange,
license, lease of other disposition of any asset or property that constitutes
Collateral, any value received as a consequence of the possession of any
Collateral and any payment received from any insurer or other person or entity
as a result of the destruction, loss, theft, damage or other involuntary
conversion of whatever nature of any asset or property which constitutes
Collateral, and shall include (a) all cash and negotiable instruments received
by or held on behalf of the Collateral Agent pursuant to the Lockbox
Assignment Agreement and (b) any and all other amounts from time to time paid
or payable under or in connection with any of the Collateral.
1.2. Other Definitional Provisions. (a) The words "hereof,"
"herein" and "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, and section and paragraph references are to this
Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2. 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, each Grantor
hereby grants to the Agent for the ratable benefit of the Lenders a security
interest in all of the following property now owned or at any time hereafter
acquired by any Grantor or in which any Grantor now has or at any time in the
future may acquire any right, title or interest (collectively, the
"Collateral"):
(a) all Accounts Receivable;
(b) all Inventory;
(c) all General Intangibles; and
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(d) to the extent not otherwise included, all Proceeds and products
of any and all of the foregoing.
3. Representations and Warranties. The Grantors jointly and
severally represent and warrant to the Agent and the Secured Parties that:
3.1. Title; No Other Liens. Except for the security interest
granted to the Agent for the ratable benefit of the Lenders pursuant to this
Agreement and the other Liens permitted to exist on the Collateral pursuant to
the Credit Agreement, each Grantor owns each item of the Collateral free and
clear of any and all Liens or claims of others. No security agreement,
financing statement or other public notice with respect to all or any part of
the Collateral is on file or of record in any public office, except (a) such
as have been filed in favor of the Agent, for the ratable benefit of the
Lenders, pursuant to this Agreement or in connection with the Credit
Agreement, (b) as are permitted pursuant to the Credit Agreement or (c) for
which termination statements are delivered on or prior to the Closing Date.
3.2. Enforceable Obligation; Perfected, First Priority Liens. This
Agreement constitutes a legal, valid and binding obligation of each Grantor,
enforceable in accordance with it terms, except as enforcement may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of creditors' rights generally and by general
equitable principals (whether enforcement is sought by proceeding in law or in
equity). The security interests granted pursuant to this Agreement (a) upon
completion of the filings and other actions specified on Schedule 2 attached
hereto, will constitute valid and perfected (assuming, with respect to any
instruments, chattel paper and cash which constitutes Collateral, that the
Agent maintains continuous possession thereof) security interests in the
Collateral in favor of the Agent, for the ratable benefit of the Lenders, (b)
are prior to all other Liens on the Collateral in existence on the date hereof
other than Liens permitted by the Credit Agreement (assuming, with respect to
any instruments, chattel paper and cash which constitutes Collateral, that the
Agent maintains continuous possession thereof) enforceable as such against
all creditors of and purchasers from the Grantor (assuming, with respect to
any instruments, chattel paper and cash which constitutes Collateral, that the
Agent maintains continuous possession thereof) and against any owner or
purchaser of the real property where any of the Inventory is located and any
present or future creditor obtaining a Lien on such real property (except (i)
purchasers of goods in the ordinary course of business, (ii) a lien creditor
with respect to future advances to the extent set forth in Section 9-301(4) of
the Code, (iii) a lien, claim or encumbrance in favor of the United States of
America or any State, or any agency or instrumentality of either of them or
any other governmental entity, (iv) a perfected purchase money security
interest as such term is defined in Section 9-107 of the Code, (v) in the case
of goods, a consignor (assuming that such consignor has complied with the
appropriate provisions of Sections 2-326 and 9-114 of the Code) or lessor who
delivers such goods to any Grantor, (vi) any claim for wages, salary or other
compensation and (vii) the security interest of a collecting bank pursuant to
Section 4-208 of the Code) and except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity
or at law).
3.3. Accounts. The amount represented by each Grantor to the
Lenders from time to time as owing by each Account Debtor or by all Account
Debtors in respect of the Accounts will at such time be in all material
respects the correct amount actually owing by such Account Debtor or Debtors
thereunder, except to the extent that appropriate reserves therefor have been
established on the books of the Grantor in accordance with GAAP. No amount
payable to any Grantor under or in connection with any Accounts in excess of
$100,000 in the aggregate is evidenced by any instrument or chattel paper
which has not been delivered to the Agent. The place where each Grantor keeps
its records concerning the Accounts is (i) on the Closing Date, the
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locations listed on Schedule 5 hereto and/or (ii) thereafter, the location
referred to in clause (i) and such other locations as each Grantor shall have
notified to the Agent pursuant to Section 4.6 hereof.
3.4. Intentionally Omitted.
3.5. Inventory. The Inventory of each Grantor is kept at (i) on
the Closing Date, the locations listed on Schedule 3 hereto and (ii)
thereafter, the location referred to in clause (i) and/or such other locations
as the Grantor shall have notified the Agent pursuant to subsection 4.6
hereof.
3.6. Chief Executive Office. Each Grantor's chief executive office
is located at (i) on the Closing Date, the location specified on Schedule 4
hereto or (ii) thereafter, the location referred to in clause (i) or such
other locations as the Grantor shall have notified the Agent pursuant to
subsection 4.6 hereof. Each Grantor's chief place of business is located at
(a) on the Closing Date, at the location listed on Schedule 4 hereto or (b)
thereafter, the location referred to in clause (a) or such other locations as
the Grantor shall have notified the Agent pursuant to subsection 4.6 hereof.
3.7. Intentionally Omitted.
3.8. Power and Authority. Each Grantor has the corporate power and
authority and the legal right to execute and deliver, to perform its
obligations under, and to grant the security interest in the Collateral
pursuant to, this Agreement and has taken all necessary corporate action to
authorize its execution, delivery and performance of, and grant of the
security interest in the Collateral pursuant to, this Agreement.
3.9. Governmental Obligors. Except as provided on Schedule 6
hereto, none of the Obligors on any Accounts is a Governmental Authority,
except for any such Accounts that are not material in relation to the business
of any Grantor or its Subsidiaries, provided, that if after the date hereof
any additional Obligor is a Governmental Authority, the Grantor, as applicable
will give the Agent prompt written notice thereof and the Agent and the
Borrower shall supplement Schedule 6 hereto to reflect such Obligor.
3.10. No Violation. The execution, delivery and performance of
this Agreement will not violate any provision of any Requirement of Law
applicable to, or Contractual Obligation of any Grantor in any respect that,
in the aggregate for all such violations, could reasonably be expected to have
a Material Adverse Effect and will not result in the creation or imposition of
any Lien on any of the Collateral of any Grantor pursuant to any Requirement
of Law applicable to, or Contractual Obligation of any Grantor, except the
security interests created hereby.
3.11. No Consents Required. No consent or authorization of, filing
with, or other act by or in respect of, any arbitrator or Governmental
Authority and no consent of any other Person (including, without limitation,
any stockholder or creditor of any Grantor), is required in connection with
the execution, delivery, performance, validity or enforceability of this
Agreement, other than those which have been duly obtained or made and are in
full force and effect on the Closing Date and except for those the absence of
which, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
3.12. No Litigation. No litigation, investigation or proceeding of
or before any arbitrator or Governmental Authority is pending or, to the
knowledge of any Grantor, threatened by or against any Grantor or against any
of its properties or revenues (1) with respect to this
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Agreement or any of the transactions contemplated hereby or (2) which could
reasonably be expected to have a Material Adverse Effect.
Each Grantor agrees that the foregoing representations and
warranties shall be deemed to have been made by such Grantor on and as of the
Closing Date and on and as of each date on which an extension of credit is
made by the Lenders to the Borrower under the Credit Agreement, in each case
as though made on and as of each such date, except for (i) representations and
warranties expressly stated to relate to a specific date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date and (ii) changes in such representations and
warranties permitted by the Credit Agreement.
4. Covenants. Each Grantor covenants and agrees with the Agent and
the Lenders that, from and after the date of this Agreement until payment in
full of the Notes and all Reimbursement Obligations and any other amount then
due and owing to any Lender or the Agent, the termination of the Commitments
and the termination or expiration of all Letters of Credit:
4.1. Intentionally Omitted.
4.2. Maintenance of Records; Books and Records. Each Grantor will
keep and maintain at its own cost and expense satisfactory and complete
records of the Collateral, including, without limitation, a record of all
payments received and all credits granted with respect to the Accounts. Each
Grantor will xxxx its Accounts Receivable and books and records pertaining to
the Collateral to evidence this Agreement and the security interests granted
hereby. For the Agent's and the Lenders' further security, the Agent, for the
ratable benefit of the Lenders, shall have a security interest in all of the
Grantors' books and records pertaining to the Collateral, and each Grantor
shall at the request of the Agent turn over any such books and records to the
Agent or to its representatives for review upon reasonable advance notice
during normal business hours at the location where such books and records are
kept and provided that the Agent agrees that it shall not remove such books
and records unless an Event of Default shall have occurred and be continuing.
4.3. Insurance. Each Grantor will maintain with financially sound
and reputable insurance companies insurance on all property material to the
business of each Grantor, taken as a whole, in at least such amounts and
against at least such risks (but including in any event public liability,
product liability and business interruption) as are usually insured against in
the same general area by companies engaged in the same or a similar business;
and furnish to the Agent, upon written request, information in reasonable
detail as to the insurance carried, provided that the Grantor may implement
programs of self insurance in the ordinary course of business and in
accordance with industry standards for a company of similar size so long as
reserves are maintained in accordance with GAAP for the liabilities associated
therewith.
4.4. Payment of Obligations. Each Grantor will pay and discharge
or otherwise satisfy at or before maturity or before they become delinquent,
as the case may be, all taxes, assessments and governmental charges or levies
imposed upon the Collateral or in respect of income or profits therefrom, as
well as all claims of any kind (including, without limitation, claims for
labor, materials and supplies) against or with respect to the Collateral,
except that no such charge need be paid if (i) the amount or validity thereof
is currently being contested in good faith by appropriate proceedings and
reserves in conformity with GAAP with respect thereto have been provided on
the books of such Grantor or (ii) the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
4.5. Maintenance of Perfected Security Interest; Further
Documentation. (a) Each Grantor shall maintain the security interest created
by this Agreement as a perfected security
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interest to the extent required hereunder (subject only to Liens permitted
under the Credit Agreement) and shall defend such security interest against
claims and demands of all Persons whomsoever.
(b) At any time and from time to time, upon the written request of
the Agent, and at the sole expense of the Grantors, the Grantors or the Agent,
as the case may be, will promptly and duly execute and deliver such further
instruments and documents and take such further action as the Agent may
reasonably request for the purpose of obtaining or preserving the full
benefits of this Agreement and of the rights and powers herein granted to the
Agent, including, without limitation, the filing of any financing or
continuation statements under the Uniform Commercial Code in effect in any
jurisdiction with respect to the security interests created hereby.
4.6. Changes in Locations, Name, etc. Each Grantor will not:
(a) permit any of the Inventory to be kept at a location other
than those listed on Schedule 3 hereto, unless it shall have given the
Agent at least 45 days' prior written notice; or
(b) change the location of its chief executive office and chief
place of business from that specified in subsection 3.6, unless it
shall have given the Agent at least 45 days' prior written notice; or
(c) change its name, identity or corporate structure to such an
extent that any financing statement filed by the Agent in connection
with this Agreement would become seriously misleading, unless it shall
have given the Agent and the Lenders at least 45 days' prior written
notice of such change.
4.7. Further Identification of Collateral. Each Grantor will
furnish to the Agent and the Lenders from time to time statements and
schedules further identifying and describing the Collateral and such other
reports in connection with the Collateral as the Agent may reasonably request,
all in reasonable detail.
4.8. Notices. Each Grantor will advise the Agent and the Lenders
promptly, in reasonable detail, at their respective addresses set forth in the
Credit Agreement of:
(a) any Lien (other than security interests created hereby or
Liens permitted under the Credit Agreement) on, or claim asserted
against, any of the Collateral which could reasonably be expected to
have a Material Adverse Effect; and
(b) of the occurrence of any other event that could reasonably be
expected to have a Material Adverse Effect on the aggregate value of
the Collateral or on the security interests created hereby.
4.9. Indemnification. Each Grantor agrees to pay, and to save the
Agent and the Lenders harmless from, any and all liabilities, costs and
expenses (including, without limitation, legal fees and expenses) (1) with
respect to, or resulting from any delay 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, (2) with respect to, or resulting from, any delay in
complying with any Requirement of Law applicable to any of the Collateral and
(3) in connection with any of the transactions contemplated by this
Agreement. In any suit, proceeding or action brought by the Agent or any
Lender under any Account for any sum owing thereunder, or to enforce any
provisions of any Account, the Grantor will save, indemnify and keep the Agent
and such Lender harmless from and against all expense, loss or damage suffered
by reason of any defense, setoff,
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counterclaim, recoupment or reduction or liability whatsoever of the account
debtor or obligor thereunder, arising out of a material breach by the Grantor
of any obligation thereunder.
4.10. Right of Inspection. Upon reasonable advance notice to
the Grantor and at reasonable intervals, or at any time and from time to time
after the occurrence and during the continuance of an Event of Default, the
Agent and the Lenders shall have full and free access upon reasonable advance
notice and during normal business hours to all the books, correspondence and
records of each Grantor, and the Agent and the Lenders and their respective
representatives may examine the same, and to the extent necessary take
extracts therefrom and make photocopies thereof, and each Grantor agrees to
render to the Agent and the Lenders, at the Grantors' cost and expense, such
clerical and other assistance as may be reasonably requested with regard
thereto. The Agent and the Lenders and their respective representatives shall
also have the right upon reasonable advance notice to such Grantor to enter
during normal business hours into and upon any premises where any of the
Inventory of any Grantor is located for the purpose of inspecting the same,
observing its use or otherwise protecting its interests therein.
4.11. Compliance with Laws, etc. Each Grantor will comply in
all material respects with all Requirements of Law applicable to the
Collateral or any part thereof or to the operation of the Grantors' business,
except to the extent that the failure to so comply would not be reasonably
likely to materially adversely affect the Agent's or the Lenders' rights
hereunder, the priority of their Liens on the Collateral or the value of the
Collateral in each case taken as a whole.
4.12. Intentionally Omitted.
4.13. Limitations on Dispositions of Collateral. Without the
prior written consent of the Agent, none of the Grantors will sell, assign,
pledge, hypothecate, transfer, exchange or otherwise dispose of, or grant any
option with respect to, the Collateral, or attempt, offer or contract to do
so, except as permitted by the Credit Agreement or in a transaction otherwise
permitted by the Loan Documents.
4.14. Limitations on Modifications, Waivers, Extensions of
Agreements Giving Rise to Accounts. None of the Grantors will (i) amend,
modify, terminate or waive any provision of any agreement giving rise to an
Account in any manner which would reasonably be expected to materially
adversely affect the value of such Account or (ii) fail to exercise promptly
and diligently each and every material right which it may have under each
agreement giving rise to an Account (other than any right of termination),
unless, in the case of clause (i) or (ii), (A) in the reasonable business
judgment of such Grantor it is in the best economic interest of such Grantor
to amend, modify, terminate or waive such provision or to fail to exercise
such right, (B) such amendments, modifications, terminations and waivers and
such failures, in the aggregate, to exercise such right would not be
reasonably likely to have a Material Adverse Effect or (C) such amendments,
modifications, termination and waivers and such failures to exercise such
rights are permitted by the Loan Documents.
4.15. Intentionally Omitted.
4.16. Intentionally Omitted.
5. Rights of Agent and Lenders; Limitations on Agent's and Lenders'
Obligations.
5.1. Each Grantor Remains Liable under Accounts. Anything herein
to the contrary notwithstanding, each Grantor shall remain liable under each
of the Accounts to observe and perform, in all respects, all the conditions
and obligations to be observed and performed by it
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thereunder, all in accordance with the terms of any agreement giving rise to
each such Account. Neither the Agent nor any Lender shall have any obligation
or liability under any Account (or any agreement giving rise thereto) by
reason of or arising out of this Agreement or the receipt by the Agent or any
Lender of any payment relating to such Account pursuant hereto, nor shall the
Agent or any Lender be obligated in any manner to perform any of the
obligations of any Grantor under or pursuant to any Account (or any agreement
giving rise thereto), to make any payment, to make any inquiry as to the
nature or the sufficiency of any payment received by it or as to the
sufficiency of any performance by any party under any Account (or any
agreement giving rise thereto), to present or file any claim, to take any
action to enforce any performance or to collect the payment of any amounts
which may have been assigned to it or to which it may be entitled at any time
or times.
5.2. Analysis of Accounts. At any time and from time to time but
no more than twice annually (unless an Event of Default shall have occurred
and be continuing), the Agent shall have the right to make test verifications
of the Accounts in any manner and through any medium that it reasonably
considers advisable (including, without limitation, the right to contact any
account debtor with the consent of such Grantor (which consent shall not be
unreasonably withheld)), and such Grantor shall furnish all such assistance
and information as the Agent may reasonably require in connection with such
test verifications. At any time, and from time to time, upon the request of
the Agent and at the expense of such Grantor, at reasonable intervals such
Grantor shall cause independent public accountants or others satisfactory to
the Agent to furnish to the Agent reports showing reconciliations, aging and
test verifications of, and trial balances for, the Accounts.
5.3. Collections on Accounts. (a) The Agent hereby authorizes
each Grantor to collect the Accounts (and the Agent acknowledges that the
Grantor can collect Accounts in accordance with past practices); subject to
the terms and conditions in the Lockbox Assignment Agreement.
(b) If an Event of Default occurs and is continuing, at the Agent's
request, such Grantor shall deliver to the Agent all original and other
documents evidencing, and relating to, the agreements and transactions which
gave rise to the Accounts, including, without limitation, all original orders,
invoices and shipping receipts and the Agent shall exercise reasonable care
with respect to the custody of such documents.
5.4. Covenants. (a) Other than in the ordinary course of business
as generally conducted by each Grantor over a period of time, none of the
Grantors will grant any extension of the time of payment of any of the
Accounts, compromise, compound or settle the same for less than the full
amount thereof, release, wholly or partially, any Person liable for the
payment thereof, or allow any credit or discount whatsoever thereon.
(b) None of the Grantors will remove its books and records from its
chief executive office and chief place of business specified in subsection 3.6
unless it shall have given the Agent at least 30 days' prior written notice.
6. Remedies.
6.1. Notice to Account Debtors. Upon the request of the Agent at
any time after the occurrence and during the continuance of an Event of
Default, such Grantor shall notify account debtors on the Accounts that the
Accounts have been assigned to the Agent for the ratable benefit of the
Lenders and that payments in respect thereof shall be made directly to the
Agent.
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6.2. Proceeds to be Turned Over To Agent. In addition to the
rights of the Agent and the Lenders specified in subsection 5.3 with respect
to payments of Accounts, if an Event of Default shall occur and be continuing,
all Proceeds received by such Grantor consisting of cash, checks and other
near-cash items shall be held by such Grantor in trust for the Agent and the
Lenders, segregated from other funds of the Grantors, and shall, forthwith
upon receipt by such Grantor, be turned over to the Agent in the exact form
received by such Grantor (duly indorsed by such Grantor to the Agent, if
required) and held by the Agent in a collateral account maintained under the
sole dominion and control of the Agent. All Proceeds while held by the Agent
in a collateral account (or by such Grantor in trust for the Agent and the
Lenders) shall continue to be held as collateral security for all the
Obligations and shall not constitute payment thereof until applied as provided
in subsection 6.3.
6.3. Application of Proceeds. At such intervals as may be agreed
upon by the Grantors and the Agent, or, if an Event of Default shall have
occurred and be continuing, at any time at the Agent's election, the Agent may
apply all or any part of Proceeds held in any account subject to a Lockbox
Assignment Agreement in payment of the Obligations in such order as the
Required Lenders shall direct (the amounts so applied to be distributed among
the Lenders pro rata in accordance with the amounts of the Obligations owed to
them), and any part of such funds which the Required Lenders direct not so to
apply and which the Required Release Lenders deem not required as collateral
security for the Obligations shall be paid over from time to time by the Agent
to such Grantor or to whomsoever may be lawfully entitled to receive the
same. Any balance of such Proceeds remaining after the Obligations shall have
been paid in full and the Commitments shall have been terminated shall be paid
over to such Grantor or to whomsoever may be lawfully entitled to receive the
same.
6.4. Code Remedies. If an Event of Default shall occur and be
continuing, the Agent, on behalf of the Lenders may exercise, in addition to
all other rights and remedies granted to them in this 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 Code.
Without limiting the generality of the foregoing, the Agent, without demand of
performance or other demand, presentment, protest, advertisement or notice of
any kind (except any notice required by law referred to below) to or upon such
Grantor or any other Person (all and each of which demands, defenses,
advertisements and notices are hereby waived to the extent permitted by law),
may in such circumstances forthwith collect, receive, appropriate and realize
upon the Collateral, or any part thereof, and/or may forthwith sell, lease,
assign, give option or options to purchase, or otherwise dispose of and
deliver the Collateral or any part thereof (or contract to do any of the
foregoing), in one or more parcels at public or private sale or sales, at any
exchange, broker's board or office of the Agent or any Lender or elsewhere
upon such terms and conditions as it may deem advisable and at such prices as
it may deem best, for cash or on credit or for future delivery without
assumption of any credit risk; provided that any such disposition complies
with all mandatory legal requirements. The Agent or any Lender shall have the
right upon any such public sale or sales, and, to the extent permitted by law,
upon any such private sale or sales, to purchase the whole or any part of the
Collateral so sold, free of any right or equity of redemption in such Grantor,
which right or equity is hereby waived or released to the extent permitted by
law. Each Grantor further agrees, at the Agent's request, to assemble the
Collateral and make it available to the Agent at places which the Agent shall
reasonably select, whether at the Grantors' premises or elsewhere. The Agent
shall apply the net proceeds of any such collection, recovery, receipt,
appropriation, realization or sale, after deducting all reasonable costs and
expenses of every kind incurred therein or incidental to the care or
safekeeping of any of the Collateral or in any way relating to the Collateral
or the rights of the Agent and the Lenders hereunder, including, without
limitation, reasonable attorneys' fees and disbursements, to the payment in
whole or in part of the Obligations, in such order as is provided in the
Credit Agreement, and only after such application and after the payment by the
Agent of any other amount required by any provision of law,
11
including, without limitation, Section 9-504(1)(c) of the Code, need the Agent
account for the surplus, if any, to such Grantor. To the extent permitted by
applicable law, each Grantor waives all claims, damages and demands it may
acquire against the Agent or any Lender arising out of the exercise by them of
any rights hereunder other than arising out of their gross negligence or
willful misconduct. If any notice of a proposed sale or other disposition of
Collateral shall be required by law, such notice shall be deemed reasonable
and proper if given at least 10 days before such sale or other disposition in
accordance with Section 11.2 of the Credit Agreement.
6.5. Deficiency. Each Grantor shall remain liable for any
deficiency if the proceeds of any sale or other disposition of the Collateral
are insufficient to pay the Obligations and the fees and disbursements of any
attorneys employed by the Agent or any Lender to collect such deficiency.
7. Agent's Appointment as Attorney-in-Fact; Agent's Performance of
Grantor's Obligations.
7.1. Powers. Each Grantor hereby irrevocably constitutes and
appoints the 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 such Grantor and in the name of
such Grantor or in its own name, from time to time in the Agent's discretion,
to take any and all appropriate action and to execute any and all documents
and instruments which may be necessary or desirable to accomplish the purposes
of this Agreement, and, without limiting the generality of the foregoing, each
Grantor hereby gives the Agent the power and right, on behalf of such Grantor,
without notice to or assent by such Grantor, to do the following:
(a) at any time when any Event of Default shall have occurred
and be continuing, in the name of such Grantor or its own name, or
otherwise, to take possession of and indorse and collect any checks,
drafts, notes, acceptances or other instruments for the payment of
moneys due under any Account Receivable or General Intangible (to the
extent related to Inventory or Accounts Receivable) or with respect to
any other Collateral 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 the Agent for the purpose of collecting any and all
such moneys due under any Account Receivable, or General Intangible
(to the extent related to Inventory or Accounts Receivable) or with
respect to any other Collateral whenever payable;
(b) upon the occurrence and during the continuance of any Event
of Default, to pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral, to effect any repairs or any
insurance called for by the terms of this Agreement and to pay all or
any part of the premiums therefor and the costs thereof;
(c) to execute, in connection with the sale provided for in
subsection 6.4 hereof, any endorsements, assignments or other
instruments of conveyance or transfer with respect to the Collateral;
and
(d) upon the occurrence and during the continuance of any Event
of Default, (1) to direct any party liable for any payment under any
of the Collateral to make payment of any and all moneys due or to
become due thereunder directly to the Agent or as the Agent shall
direct; (2) to ask or demand for, collect, receive payment of and
receipt for, any and all moneys, claims and other amounts due or to
become due at any time in respect of or arising out of any Collateral;
(3) to sign and indorse any invoices, freight or express bills, bills
of lading, storage or warehouse receipts, drafts against debtors,
assignments, verifications, notices and other documents in connection
with any of the Collateral; (4) to commence and prosecute any suits,
actions or proceedings at law or in equity in any court
12
of competent jurisdiction to collect the Collateral or any Proceeds
thereof and to enforce any other right in respect of any Collateral;
(5) to defend any suit, action or proceeding brought against the
Grantor with respect to any Collateral; (6) to settle, compromise or
adjust any such suit, action or proceeding and, in connection
therewith, to give such discharges or releases as the Agent may deem
appropriate; and (7) generally, to sell, transfer, pledge and make any
agreement with respect to or otherwise deal with any of the Collateral
as fully and completely as though the Agent were the absolute owner
thereof for all purposes, and to do, at the Agent's option and the
Grantor's expense, at any time, or from time to time, all acts and
things which the Agent deems necessary to protect, preserve or realize
upon the Collateral and the Agent's and the Lenders' security
interests therein and to effect the intent of this Agreement, all as
fully and effectively as the Grantor might do.
7.2. Performance by Agent of Grantor's Obligations. If any Grantor
fails to perform or comply with any of its agreements contained herein, the
Agent, at its option, but without any obligation so to do, may perform or
comply, or otherwise cause performance or compliance, with such agreement.
7.3. Grantor's Reimbursement Obligation. The reasonable expenses
of the Agent incurred in connection with actions undertaken as provided in
this Section 7, together with interest thereon at a rate per annum equal to 2%
above the ABR, from the date of payment by the Agent to the date reimbursed by
such Grantor, shall be payable by such Grantor to the Agent on demand.
7.4. Ratification; Power Coupled With An Interest. Each Grantor
hereby ratifies all that said attorneys shall lawfully do or cause to be done
by virtue hereof. All powers, authorizations and agencies contained in this
Agreement are coupled with an interest and are irrevocable until the
Obligations are paid and performed in full, the Commitments are terminated and
the Letters of Credit have expired, terminated or been returned to the Issuing
Lender.
7.5. Additional Grantors. Upon execution and delivery by the Agent
and a Domestic Subsidiary of an instrument in the form of Annex 3 hereto, such
Domestic Subsidiary shall become a Grantor hereunder with the same force and
effect as if originally named as a Grantor herein and each of the schedules
hereto shall be amended such that such Grantor may make the representations
and warranties set forth in this Agreement. The execution and delivery of any
such instrument shall not require the consent of any Grantor hereunder. The
rights and obligations of each Grantor hereunder shall remain in full force
and effect notwithstanding the addition of any new Grantor as a party to this
Agreement.
8. Duty of Agent. The Agent'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 and with the same care as the Agent deals with
similar property for its own account. Neither the Agent, any Lender 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, except where such failure or delay
results from their gross negligence or willful misconduct, or shall be under
any obligation to sell or otherwise dispose of any Collateral upon the request
of any Grantor or any other Person or to take any other action whatsoever with
regard to the Collateral or any part thereof. The powers conferred on the
Agent and the Lenders hereunder are solely to protect the Agent's and the
Lenders' interests in the Collateral and shall not impose any duty upon the
Agent or any Lender to exercise any such powers. The Agent and the Lenders
shall be accountable only for amounts that they actually receive as a result
of the exercise of such powers, and neither they nor any of their officers,
directors, employees or agents shall be responsible to any Grantor for any act
or failure to act hereunder, except for their own gross negligence or willful
misconduct.
13
9. Execution of Financing Statements. Pursuant to Section 9-402 of
the Code, each Grantor authorizes the Agent to file financing statements with
respect to the Collateral without the signature of such Grantor in such form
and in such filing offices as the Agent reasonably determines appropriate to
perfect the security interests of the Agent under this Agreement. A carbon,
photographic or other reproduction of this Agreement shall be sufficient as a
financing statement for filing in any jurisdiction.
10. Authority of Agent. Each Grantor acknowledges that the rights
and responsibilities of the Agent under this Agreement with respect to any
action taken by the Agent or the exercise or non-exercise by the Agent of any
option, voting right, request, judgment or other right or remedy provided for
herein or resulting or arising out of this Agreement shall, as between the
Agent and the Lenders, be governed by the Credit Agreement and by such other
agreements with respect thereto as may exist from time to time among them,
but, as between the Agent and such Grantor, the Agent shall be conclusively
presumed to be acting as agent for the Lenders with full and valid authority
so to act or refrain from acting, and such Grantor shall be under no
obligation, or entitlement, to make any inquiry respecting such authority.
11. Intentionally Omitted.
12. Notices. All notices, requests and demands to or upon the
Agent or any Grantor 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:
(a) if to the Agent, at its address or transmission number for
notices provided in subsection 11.2 of the Credit Agreement; and
(b) if to any Grantor, at its address or transmission number for
notices provided in subsection 11.2 of the Credit Agreement.
The Agent and any Grantor may change their addresses and transmission numbers
for notices by notice in the manner provided in this Section.
13. Severability. Any provision of this Agreement which 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.
14. Amendments in Writing; No Waiver; Cumulative Remedies.
14.1. Amendments in Writing. None of the terms or provisions of
this Agreement may be waived, amended, supplemented or otherwise modified
except by a written instrument executed by any Grantor and the Agent, provided
that any provision of this Agreement may be waived by the Agent and the
Lenders in a letter or agreement executed by the Agent or by telex or
facsimile transmission from the Agent.
14.2. No Waiver by Course of Conduct. Neither the Agent nor any
Lender shall by any act (except by a written instrument pursuant to subsection
14.1(A) hereof), delay, indulgence, omission or otherwise be deemed to have
waived any right or remedy hereunder or to
14
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 Agent or any Lender, 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 Agent or any Lender of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or
remedy which the Agent or such Lender would otherwise have on any future
occasion.
14.3. Remedies Cumulative. 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.
15. Section Headings. The section and subsection headings used in
this Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation
hereof.
16. Successors and Assigns. This Agreement shall be binding upon
the successors and assigns of each Grantor and shall inure to the benefit of
the Agent and the Lenders and their successors and assigns.
17. Submission To Jurisdiction; Waivers. (a) Each Grantor hereby
irrevocably and unconditionally:
(1) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan 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 State of New York, 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 such Grantor at its address set forth in subsection 11.2
of the Credit Agreement or at such other address of which the Agent
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
(b) Each Grantor, the Agent and the Lenders hereby unconditionally
and irrevocably waive, to the maximum extent not prohibited by law, any right
they may have to claim or recover in any legal action or proceeding referred
to in this Section any special, exemplary, punitive or consequential damages.
18. Acknowledgments. Each Grantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Loan Documents to which
it is a party;
15
(b) neither the Agent nor any Lender has any fiduciary
relationship with or duty to it or any other Loan Party arising out of
or in connection with this Agreement or any of the other Loan
Documents, and the relationship between the Agent and Lenders, on one
hand, and the Loan Parties, on the other hand, in connection herewith
or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Loan Parties and
the Lenders.
19. WAIVERS OF JURY TRIAL. EACH GRANTOR, THE AGENT AND THE LENDERS
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION
OR PROCEEDING RELATING TO THIS SENIOR SECURITY AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
20. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
21. Release of Collateral and Termination. (a) At such time as the
Notes, all Reimbursement Obligations and any other amount then due and owing
to any Lender or the Agent under any Loan Document have been paid in full, the
Commitments have terminated and the Letters of Credit have expired, terminated
or been returned to the Issuing Lenders, the Collateral shall be released from
the Liens created hereby, and this Agreement and all obligations (other than
those expressly stated to survive such termination) of the Agent and each
Grantor 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 such Grantor. Upon request of any Grantor following any such
termination, the Agent shall deliver (at the sole cost and expense of such
Grantor) to such Grantor any Collateral held by the Agent hereunder, and
execute and deliver (at the sole cost and expense of such Grantor) to such
Grantor such documents as such Grantor shall reasonably request to evidence
such termination.
(b) If any of the Collateral shall be sold, transferred or
otherwise disposed of by any Grantor in a transaction permitted by the Credit
Agreement, then the Agent shall execute and deliver to such Grantor (at the
sole cost and expense of such Grantor) all releases, termination statements or
other documents reasonably necessary for the release of the Liens created
hereby on such Collateral.
22. Certain Issues Regarding Collateral. (a) Notwithstanding
anything to the contrary contained herein or in any other Loan Document
(including, but without limitation, any representation or warranty contained
herein or therein), the Agent shall not be granted a Lien on the date hereof
in (and until a Lien shall be granted therein, the term Collateral in this
Agreement shall exclude) the personal property of Rubatex Corporation located
in Conover, North Carolina. The Borrower hereby covenants and agrees that it
shall use its best efforts to obtain the requisite approvals to grant to the
Agent, for the benefit of the Lenders, a perfected Lien on such personal
property located in Conover, North Carolina as promptly as practicable
following the date hereof. Any failure by the Borrower to comply with the
terms of this Section 22 shall be deemed to constitute a Default hereunder.
From and after the date upon which each such Lien is granted pursuant to this
Section 22, the representations and warranties and other provisions of this
Agreement and other Loan Documents relating to such Lien shall be applicable
to the Borrower and its Subsidiaries without giving effect to any forbearance
or waiver provided by this Section 22.
16
In no event shall the Borrower or the Subsidiaries, as the case may be, be
required to provide the Agent with any Lien with respect to such personal
property at Conover, North Carolina if the requisite approval to grant such
Lien to the Agent is not obtained.
(b) Notwithstanding anything to the contrary herein or in any of
the Security Documents, the Agent and the Lenders agree that any Lien on any
personal property of Rubatex Corporation which is located on the real property
of Rubatex Corporation located in Conover, North Carolina cannot be
accelerated without the consent of the trustee under the Trust Indenture dated
as of September 1, 1985 between the Authority and the Trustee (as such term is
defined therein) other than in the event of the commencement by or against
Rubatex Corporation of a proceeding under the federal bankruptcy laws.
23. Contradictory Provisions. In the event any one or more of the
provisions of this 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 Credit Agreement (any such provision, a
"Contradictory Provision"), the provision in the Credit Agreement shall
control.
17
IN WITNESS WHEREOF, the parties hereto have caused this Senior Security
Agreement to be duly executed and delivered as of the date first above
written.
RBX CORPORATION,
By: /s/ Xxxxx Xxxxxx
------------------------------
Name: Xxxxx Xxxxxx
Title: President and Chief Executive Officer
THE SUBSIDIARY GUARANTORS LISTED
ON SCHEDULE I HERETO,
By: /s/ Xxxxx Xxxxxx
------------------------------
Name: Xxxxx Xxxxxx
Title: President and Chief Executive Officer
THE CHASE MANHATTAN BANK, as Agent,
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
Schedule 1
----------
SUBSIDIARY GUARANTORS
Xxxxxxxx Manufacturing Company, Inc.
Xxxxxx-Xxxxx Rubber Custom Mixing Corp.
Midwest Rubber Custom Mixing Corp.
Oletex Inc.
Rubatex Corporation
Universal Rubber Corporation
Universal Polymer & Rubber Inc.
Waltex Corporation
Schedule 2
----------
FILINGS AND OTHER ACTIONS
REQUIRED TO PERFECT SECURITY INTERESTS
Uniform Commercial Code Filings
-------------------------------
Schedule 3
----------
LOCATION OF INVENTORY
Xxxxxxxx Manufacturing Company, Inc.
0000 Xxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxx, XX 00000
Xxxxxx-Xxxxx Rubber Custom Mixing Corp.
Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Midwest Rubber Custom Mixing Corp.
000 Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxx, XX 00000
OleTex, Inc.
00000 Xxxxx Xxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
OleTex, Inc.
000 Xxxx 000xx Xxxxxx
Xxxxx Xxxxxxx, XX
Rubatex Corporation
000X Xxxxxxxxx
Xxxxxxx, XX 00000-0000
Rubatex Corporation
0000 Xxxxx Xxxxx
Xxxxxxxxx, XX
Rubatex Corporation
0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Rubatex Corporation
000 Xxxxx XxXxx Xxxxx Xxxx
Xxxxxxx, XX 00000
Rubatex Corporation
000 XX Xxxxx 00xx Xxxxxx
Xxxxxxx, XX
Rubatex Corporation
0000 Xxxxx 00xx
Xxxx, XX 00000-0000
2
Rubatex Corporation
353 and 0000 Xxxxx Xxxxxx
Xx. Xxxxx, XX 00000-0000
Rubatex Corporation
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Rubatex Corporation
Xxxxxxx 0, Xxxxx
X.X. Xxx 000
Xxxx, XX 00000
Rubatex Corporation
00000 Xxxxx Xxxxxx
Xxxxx Xx Xxxxxxx, XX 00000
Rubatex Corporation
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000
Rubatex Corporation
0000 Xxxxxxx Xxxxxx
Xxxx 00
Xxxxxx, XX 00000-0000
Universal Polymer and Rubber, Inc.
00000 X. Xxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Schedule 4
----------
CHIEF EXECUTIVE OFFICE AND CHIEF
PLACE OF BUSINESS OF EACH GRANTOR
Chief Executive Office for all Grantors
---------------------------------------
c/o RBX Corporation
0000 XxxxxxXxxx Xxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Chief Place of Business for each Grantor
----------------------------------------
RBX Corporation
0000 XxxxxxXxxx Xxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Rubatex Corporation
0000 XxxxxxXxxx Xxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Waltex Corporation
0000 XxxxxxXxxx Xxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Xxxxxxxx Manufacturing Company, Inc.
0000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
(000) 000-0000
Universal Rubber Corporation
Xxxxxxxx 0X & 00
Xxxxxxxxxxx, XX 00000
(000) 000-0000
OleTex Inc.
00000 X. Xxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
(000) 000-0000
Midwest Rubber Custom Mixing Corporation
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
(000) 000-0000
2
Xxxxxx-Xxxxx Custom Mixing Corporation
000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
(000) 000-0000
Universal Polymer & Rubber Inc.
00000 Xxxxx Xxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
(000) 000-0000
Schedule 5
----------
LOCATION OF RECORDS CONCERNING ACCOUNTS
RBX Corporation
Rubatex Corporation
Universal Rubber Corporation
Waltex Corporation
0000 Xxxxxx Xxxx Xxxxx, XX
Xxxxxxx, XX 00000
OleTex Inc.
00000 Xxxxx Xxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
Xxxxxxxx Manufacturing Co., Inc.
0000 Xxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxx, XX 00000
Universal Polymer & Rubber, Inc.
00000 X. Xxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Midwest Rubber Custom Mixing Corp.
000 Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxx, XX 00000
Xxxxxx-Xxxxx Rubber Corp.
Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Schedule 6
----------
GOVERNMENTAL OBLIGORS
Annex 2 to the
Senior Security Agreement
SUPPLEMENT NO. __ dated as of , to the
Senior Security Agreement dated as of December 11, 1997, among
RBX Corporation, a Delaware corporation (the "Borrower"), each
Subsidiary Guarantor listed on Schedule I thereto (such
Subsidiary Guarantor, individually, a "Subsidiary Guarantor"
and, collectively, the "Guarantors"; the Subsidiary Guarantors
and the Borrower are referred to collectively herein as the
"Grantors") and THE CHASE MANHATTAN BANK, a New York banking
corporation ("Chase"), as agent (the "Agent") for the Secured
Parties (as defined therein).
A. Reference is made to (a) the Credit Agreement dated as of December 11,
1997 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among RBX Corporation, a Delaware corporation (the
"Borrower"), the lenders from time to time party thereto (the "Lenders"), The
Chase Manhattan Bank, as agent (the "Agent") for the Lenders, (b) the
Guarantee Agreement dated as of December 11, 1997 (as amended, supplemented or
otherwise modified from time to time, the "Guarantee Agreement") among the
Subsidiary Guarantors (as defined therein) and the Agents, (c) the
Intercreditor Agreement dated as of December 11, 1997 (as amended,
supplemented or otherwise modified from time to time, the "Intercreditor
Agreement") among the Borrower, the Trustee and the Agent and (d) the Lockbox
Assignment Agreement dated as of December 11, 1997 (as amended, supplemented
or otherwise modified from time to time, the "Lockbox Assignment Agreement")
among the Borrower, the Domestic Subsidiaries listed on Schedule I thereto,
the Lockbox Bank (as defined therein) and the Agent.
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Senior Security Agreement and
the Credit Agreement.
C. The Grantors have entered into the Senior Security Agreement in order
to induce the Lenders to make Loans and the Issuing Bank to issue Letters of
Credit. Section 7.5 of Senior Security Agreement provides that additional
Subsidiaries may become Grantors under the Senior Security Agreement by
execution and delivery of an instrument in the form of this Supplement. The
undersigned Subsidiary (the "New Grantor") is executing this Supplement in
accordance with the requirements of the Credit Agreement to become a Grantor
under the Senior Security Agreement in order to induce the Lenders to make
additional Loans and the Issuing Bank to issue additional Letters of Credit
and as consideration for Loans previously made and Letters of Credit
previously issued.
Accordingly, the Agent and the New Grantor agree as follows:
2
SECTION 1. In accordance with Section 7.5 of the Senior Security
Agreement, the New Grantor by its signature below becomes a Grantor under the
Senior Security Agreement with the same force and effect as if originally
named therein as a Grantor and the New Grantor hereby (a) agrees to all the
terms and provisions of the Senior Security Agreement applicable to it as a
Grantor thereunder and (b) represents and warrants that the representations
and warranties made by it as a Grantor thereunder are true and correct on and
as of the date hereof. In furtherance of the foregoing, the New Grantor, as
security for the payment and performance in full of the Obligations (as
defined in the Senior Security Agreement), does hereby create and grant to the
Agent, its successors and assigns, for the benefit of the Secured Parties,
their successors and assigns, a security interest in and lien on all of the
New Grantor's right, title and interest in and to the Collateral (as defined
in the Senior Security Agreement) of the New Grantor. Each reference to a
"Grantor" in the Senior Security Agreement shall be deemed to include the New
Grantor. The Senior Security Agreement is hereby incorporated herein by
reference.
SECTION 2. The New Grantor represents and warrants to the Agent and the
other Secured Parties that this Supplement has been duly authorized, executed
and delivered by it and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms (assuming, with respect to
any instruments, chattel paper and cash which constitutes Collateral, that the
Agent maintains continuous possession thereof).
SECTION 3. This Supplement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute
a single contract. This Supplement shall become effective when the Agent shall
have received counterparts of this Supplement that, when taken together, bear
the signatures of the New Grantor and the Agent. Delivery of an executed
signature page to this Supplement by facsimile transmission shall be as
effective as delivery of a manually signed counterpart of this Supplement.
SECTION 4. The New Grantor hereby represents and warrants that (a) set
forth on Schedule I attached hereto is a true and correct schedule of the
location of any and all Collateral of the New Grantor and (b) set forth under
its signature hereto, is the true and correct location of the chief executive
office of the New Grantor.
SECTION 5. Except as expressly supplemented hereby, the Senior Security
Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions
contained herein and in the Senior Security Agreement shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
hereto shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect
of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
3
SECTION 8. All communications and notices hereunder shall be in writing
and given as provided in Section 12 of the Senior Security Agreement. All
communications and notices hereunder to the New Grantor shall be given to it
at the address set forth under its signature below.
SECTION 9. The New Grantor agrees to reimburse the Agent for its
reasonable and documented out-of-pocket expenses in connection with this
Supplement, including the reasonable and documented fees, other charges and
disbursements of counsel for the Agent.
4
IN WITNESS WHEREOF, the New Grantor and the Agent have duly executed this
Supplement to the Senior Security Agreement as of the day and year first above
written.
[Name Of New Grantor],
by
--------------------------------
Name:
Title:
Address:
THE CHASE MANHATTAN BANK, as Agent,
by
--------------------------------
Name:
Title:
SCHEDULE I
to Supplement No.___ to the
Senior Security Agreement
LOCATION OF COLLATERAL
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Description Location
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