EXHIBIT 10.22
ACCOUNT CONTROL AGREEMENT
This ACCOUNT CONTROL AGREEMENT is entered into as of September 10,
2003 among XXXXX FARGO FOOTHILL, INC. ("Foothill") as Agent (as defined below),
with a place of business located at 0000 Xxxxxxxx Xxxxxx, Xxxxx 0000X, Xxxxx
Xxxxxx, XX 00000, Attn.: Business Finance Division Manager, Facsimile No.: (310)
453-7420, XXXXXX'X RESTAURANT GROUP, INC. ("Customer"), with a place of business
located at 0000 Xxx Xxxx Xxxx Xxxx, Xxxxx 000, New Hyde Park, New York 11042,
Attn.: Xxxxxx Xxxxxxx, Chief Financial Officer, Facsimile No.: 000-000-0000, and
CITIBANK, N.A. ("Depositary Institution"), with a place of business located at 0
Xxxxxxx Xxxx, Xxxxxxx, Xxx Xxxx 00000, Attn.: Xxxxxx Xxxx, Facsimile
No.:516-9379033.
RECITALS
A. Customer has:
(i) entered into a Loan and Security Agreement with Foothill
("Lender"), dated as of July 7, 2003 (the "Loan and Security Agreement")
pursuant to which Lender may from time to time make loans and advances and
provide other financial accommodations to the Customer and pursuant to
which Customer has granted Lender a security interest in all of the
Customer's right, title and interest in and to a deposit account maintained
by Depositary Institution for Customer; and
(ii) entered into an indenture, dated as of July 7, 2003 (the
"Indenture", and together with the Loan and Security Agreement, and the
Collateral Agreements (as defined in the Indenture) the "Debt Documents"),
with certain of its subsidiaries and The Bank of New York, as collateral
agent (in such capacity, the "Collateral Agent") and trustee (in such
capacity, the "Trustee") for the benefit of the Collateral Agent, the
Trustee and the holders of the notes issued from time to time under the
Indenture, which notes are secured by, among other things, all of the
Customer's right, title and interest in and to a deposit account maintained
by Depositary Institution for Customer.
B. Foothill has agreed to act as agent (in such capacity, "Agent")
for Lender, certain other lenders that may become parties to the Loan and
Security Agreement and for the Collateral Agent, for the benefit of the
Collateral Agent, the Trustee and the holders of the notes issued from time to
time under the Indenture, pursuant to the terms of the Intercreditor Agreement
(as defined therein).
C. The parties are entering into this agreement to perfect Agent's
security interests in and to the Account (as hereinafter defined) and to specify
certain rights and duties of the parties with respect to the Account.
AGREEMENT
1. THE ACCOUNT
Depositary Institution represents and warrants to Agent and to
Customer that:
(a) Depositary Institution maintains deposit account No.
000-000-000 for Customer (the "Account").
(b) Depositary Institution does not know of any claim to or
interest in the Account, except for claims and interests of the parties referred
to in this agreement.
2. CONTROL BY AGENT
During any period (the "Block Period) commencing on the date Agent
sends a notice (a "Block Notice") to Depositary Institution indicating that an
Event of Default has occurred and is continuing under any Debt Document and
continuing until Agent provides notice (the "Block Termination Notice") to
Depositary Institution that such Block Notice is terminated, Depositary
Institution will comply with all notifications it receives directing it to
transfer, redeem, or permit the withdrawal of any property in the Account (each
an "Account Related Order") originated by Agent without further consent by or
notification to Customer.
3. CUSTOMER'S RIGHTS IN ACCOUNT
Depositary Institution may comply with Account Related Orders
originated by Customer (and not by Agent) with respect to the Account other than
during a Block Period. During a Block Period, Depositary Institution will not
comply with Account Related Orders originated by Customer with respect to the
Account unless such Account Related Orders have been previously consented to in
writing by Agent, until Agent has notified Depositary Institution that the
notice delivered pursuant to Section 2 is no longer in effect.
4. PRIORITY OF AGENT'S SECURITY INTEREST
(a) Depositary Institution subordinates in favor of Agent any
security interest, lien, or right of setoff it may have, now or in the future,
against the Account or property in the Account, except that Depositary
Institution will retain its prior lien on property in the Account to secure
payment of normal bank charges and fees for the Account.
(b) Depositary Institution will not agree with any third
party that Depositary Institution will comply with Account Related Orders
originated by such third party.
5. STATEMENTS, CONFIRMATIONS, AND NOTICES OF ADVERSE CLAIMS; INQUIRIES
BY THIRD PARTIES
Depositary Institution will send copies of all statements and
confirmations for the Account simultaneously to Customer and Agent. Depositary
Institution will use reasonable efforts promptly to notify Agent and Customer if
any other person claims that it has a lien, encumbrance, adverse claim or other
property interest in property in the Account or that it is a violation of that
person's rights for anyone else to hold, transfer, or deal with such property.
If any third party requests that Depositary Institution enter into an agreement
to comply with Account Related Orders originated by such third party, or
inquires of Depositary Institution whether Depositary Institution has entered
into such an agreement with any other person or entity, or inquires of
Depositary Institution regarding the existence or non-existence of any adverse
claims or interests in or to the Account, Depositary Institution agrees that it
will use reasonable efforts promptly to advise such third party of the existence
of this agreement in favor of Agent.
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6. DEPOSITARY INSTITUTION'S RESPONSIBILITY
(a) Depositary Institution will not be liable to Agent for
complying with Account Related Orders from Customer that are permitted by
Section 3 hereof or that are previously approved in writing by Agent.
(b) Depositary Institution will not be liable to Customer for
complying with Account Related Orders originated by Agent during a Block Period,
even if Customer notifies Depositary Institution that Agent is not legally
entitled to issue the Account Related Order, unless:
(i) Depositary Institution takes the action after it
is served with an injunction, restraining order,
or other legal process enjoining it from doing so,
issued by a court of competent jurisdiction, and
had a reasonable opportunity to act on the
injunction, restraining order or other legal
process; or
(ii) Depositary Institution acts in collusion with
Agent in violating Customer's rights.
(c) This agreement does not create any obligation of
Depositary Institution except for those expressly set forth in this agreement.
In particular, Depositary Institution need not investigate whether Agent is
entitled, under any Debt Documents, to give an Account Related Order. Depositary
Institution may rely on notices and communications it believes given by the
appropriate party.
7. INDEMNITY
Customer will indemnify Depositary Institution, and its officers,
directors, employees, and agents, against claims, liabilities, and expenses
arising out of this agreement, including reasonable attorney fees and
disbursements, except to the extent the claims, liabilities, or expenses are
caused by Depositary Institution's gross negligence or willful misconduct. Agent
will indemnify Depositary Institution, and its officers, directors, employees,
and agents, against claims, liabilities, and expenses arising out of Account
Related Orders given by Agent to Depositary Institution under this agreement
(but not otherwise) or actions taken by Depositary Institution in compliance
with such notices or Account Related Orders (but not otherwise), including
reasonable attorney fees and disbursements, except to the extent the claims,
liabilities, or expenses are caused by Depositary Institution's gross negligence
or willful misconduct. Customer will indemnify Agent, and its officers,
directors, employees, and agents against claims, liabilities, and expenses
arising out of Agent's indemnity of Depositary Institution set forth in the
immediately preceding sentence, including reasonable attorney fees and
disbursements, except to the extent the claims, liabilities, or expenses are
caused by Agent's gross negligence or willful misconduct.
8. TERMINATION; SURVIVAL
(a) Agent may terminate this agreement by notice to
Depositary Institution and Customer. Depositary Institution may terminate this
agreement on 30 days' notice to Agent and Customer. Customer may not terminate
this agreement without the prior written consent of Agent, provided, however,
that this Agreement shall automatically terminate upon termination of the
Account, provided, further that the Account may not be terminated by the
Customer without the prior written consent of the Agent.
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(b) Upon written notice by Agent to Depositary Institution of
its assignment of all of its rights and obligations hereunder to Collateral
Agent, Collateral Agent shall be deemed to be the Agent from the date of
Depositary Institution's receipt of such notice.
(c) SECTIONS 6, "Depositary Institution's responsibility,"
and SECTION 7, "indemnity," will survive termination of this agreement.
9. GOVERNING LAW
This agreement will be governed by the laws of the State of New York.
Depositary Institution and Customer may not change the law governing the Account
without Agent's express written agreement.
10. AMENDMENTS
No amendments of, or waiver of a right under, this agreement will be
binding unless it is in writing and signed by the party to be charged.
11. SEVERABILITY
To the extent a provision of this agreement is unenforceable, this
agreement will be construed as if the unenforceable provision were omitted.
12. NOTICE TO DEPOSITARY INSTITUTION
This Agreement shall constitute notice of the security interest of
Agent in the funds deposited by Customer in the Account as collateral for any
and all obligations of Customer to Agent, for any and all obligations of certain
other parties to Agent, and, by executing this Agreement, Depositary Institution
acknowledges receipt of such notice to Depositary Institution of Agent's
security interest in the Account for the purposes of perfecting Agent's security
interest in the Account in accordance with Section 9-312 of the New York Uniform
Commercial Code.
13. SUCCESSORS AND ASSIGNS
A successor to or assignee of Agent's rights and obligations under the
security agreement between Agent and Customer will succeed to Agent's rights and
obligations under this agreement. In addition, Foothill may assign its rights
and obligations under this Agreement to Collateral Agent without the further
consent of the parties hereto.
14. NOTICES
A notice or other communication to a party under this agreement will
be in writing (except that Account Related Orders may be given orally), will be
sent to the party's address set forth above or to such other address as the
party may notify the other parties and will be effective on receipt.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
XXXXXX'X RESTAURANT GROUP,
a Delaware corporation
By /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: EVP & CFO
XXXXX FARGO FOOTHILL, INC.,
a California corporation
By /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Vice President
CITIBANK BANK, N.A.
By /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Financial Center Manager, VP
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