LC ACCOUNT AGREEMENT
THIS LC ACCOUNT AGREEMENT (the "Agreement") is made and
entered into as of this 30th day of January, 1998 by and between
XXXXXX INDUSTRIES, INC., a Tennessee corporation ("Xxxxxx"),
XXXXXX INDUSTRIES TOWING EQUIPMENT INC., a Delaware corporation
("Xxxxxx Towing," and together with Xxxxxx, the "Pledgors" or the
"Borrower"), and NATIONSBANK OF TENNESSEE, NATIONAL ASSOCIATION,
a national banking association organized and existing under the
laws of the United States, as Agent (the "Agent") for each of the
financial institutions (the "Lenders," including any Lender in
its capacity as Issuing Bank, and collectively with the Agent,
the "Secured Parties") now or hereafter party to the Credit
Agreement (as defined below). All capitalized terms used but not
otherwise defined herein shall have the respective meanings
assigned thereto in either or both of the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Secured Parties have agreed to provide to the
Borrower a certain revolving credit facility with a letter of
credit sublimit and a swingline sublimit pursuant to the Credit
Agreement dated as of January 30, 1998 among the Borrower, the
Agent and the Lenders (as from time to time amended, revised,
modified, supplemented, or amended and restated the "Credit
Agreement"); and
WHEREAS, as a condition precedent to the Lenders'
obligations to make the Loans or to issue Letters of Credit, the
Pledgors are required to execute and deliver to the Agent a copy
of this Agreement on or before the Effective Time (as defined
herein);
WHEREAS, the Secured Parties are unwilling to enter into the
Loan Documents unless the Pledgors enter into this Agreement;
NOW, THEREFORE, in order to induce the Secured Parties to
enter into the Loan Documents and to make Loans and issue Letters
of Credit and in consideration of the premises and the mutual
agreements, provisions and covenants contained herein, the
Pledgors and the Agent hereby agree as follows:
1. DEFINITIONS. The following capitalized terms used in
this Agreement shall have the following meanings notwithstanding
any definition thereof in the Credit Agreement. Other
capitalized terms used but not defined herein shall have the
meanings therefor set forth in the Credit Agreement.
"Collateral" means (a) all funds from time to time on
deposit in the LC Account; (b) all Investments and all
certificates and instruments from time to time representing or
evidencing such Investments; (c) all notes, certificates of
deposit, checks and other instruments from time to time hereafter
delivered to or otherwise possessed by the Agent for or on behalf
of the Pledgors in substitution for or in addition to any or all
of the Collateral described in clause (a) or (b) above; (d) all
interest, dividends, cash, instruments and other property from
time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Collateral
described in clause (a), (b) or (c) above; and (e) to the extent
not covered by clauses (a) through (d) above, all proceeds of any
or all of the foregoing Collateral.
"Effective Time" means the Closing Date as defined in the
Credit Agreement.
"Investments" means those investments, if any, made by the
Agent pursuant to SECTION 5 hereof.
"LC Account" means the cash collateral account established
and maintained pursuant to SECTION 2 hereof.
"Secured Obligations" means (i) all Obligations of the
Pledgors now existing or hereafter arising under or in respect of
the Credit Agreement or the Notes (including, without limitation,
the Pledgors' obligation to pay principal and interest and all
other charges, fees, expenses, commissions, reimbursements,
indemnities and other payments related to or in respect of the
obligations contained in the Credit Agreement or the Notes) or
any documents or agreement related to the Credit Agreement or the
Notes; and (ii) without duplication, all obligations of the
Pledgors now or hereafter existing under or in respect of this
Agreement, including, without limitation, with respect to all
charges, fees, expenses, commissions, reimbursements, indemnities
and other payments related to or in respect of the obligations
contained in this Agreement.
2. LC ACCOUNT; CASH COLLATERALIZATION OF LETTERS OF
CREDIT.
(i) At any time, in the Agent's sole discretion, the
Agent shall establish and maintain at its offices at 000
Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx, in the name
of the Agent and under the sole dominion and control of the
Agent, a cash collateral account designated as Xxxxxx
Industries, Inc. Cash LC Account (the "LC Account").
(ii) (A) In accordance with ARTICLE X of the
Credit Agreement, in the event that an Event of Default has
occurred and is continuing and Pledgors are required to
deposit with the Agent an amount equal to the maximum amount
remaining undrawn or unpaid under the Letters of Credit, or
(B) as otherwise agreed by the parties hereto to provide
cash collateral for the undrawn amount of any Letter of
Credit other than after the occurrence and during the
continuation of an Event of Default, the Agent shall, upon
receipt of any such amounts, deposit such amounts into the
LC Account to be held pursuant to the terms of this
Agreement. Upon a drawing under the Letters of Credit in
respect of which any amounts described above have been
deposited in the LC Account, the Agent shall apply such
amounts to reimburse the Issuing Bank for the amount of such
drawing. In the event the Letters of Credit are canceled or
expire or in the event of any reduction in the maximum
amount available at any time for drawing under such Letters
of Credit (the "Maximum Available Amount"), the Agent shall
apply the amount then in the LC Account less the Maximum
Available Amount immediately after such cancellation,
expiration or reduction, first, to the cash
collateralization of the Letters of Credit if the Pledgors
have failed to pay all or a portion of the maximum amounts
described in the first sentence of this clause (ii), and
second, to the payment in full of the outstanding Secured
Obligations and third, the balance, if any, to the Pledgors
or as otherwise required by law.
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(iii) The Agent is hereby authorized to sell, and
shall sell, all or any designated part of the Collateral (A)
so long as no Default or Event of Default shall have
occurred and be continuing, upon the receipt of appropriate
written instructions from Pledgors, or (B) in any event if
such sale is necessary to permit the Agent to perform its
duties hereunder or under the Credit Agreement. The Agent
shall have no responsibility and the Pledgors hereby agree
to hold the Agent and the Lenders harmless for any loss in
the value of the Collateral resulting from a fluctuation in
interest rates or otherwise. The net proceeds of the sale
or payment of any such investment shall constitute part of
the Collateral and be held in the LC Account by the Agent.
3. PLEDGE; SECURITY FOR SECURED OBLIGATIONS. The Pledgors
hereby grant and pledge to the Agent, for itself and on behalf of
the Secured Parties, a first priority lien and security interest
in the Collateral now existing or hereafter arising or acquired,
as collateral security for the prompt payment in full when due,
whether at stated maturity, by acceleration or otherwise
(including, without limitation, the payment of interest and
other amounts which would accrue and become due but for the
filing of a petition in bankruptcy or the operation of the
automatic stay under Section 362(a) of the Bankruptcy Code), of
all Secured Obligations.
4. DELIVERY OF COLLATERAL. All certificates or
instruments, if any, representing or evidencing the Collateral
shall be delivered to the Agent for the benefit of the Secured
Parties in the form of immediately available funds.
5. INVESTING OF AMOUNTS IN THE LC ACCOUNT; AMOUNTS HELD BY
THE AGENT. Cash held by the Agent in the LC Account shall not be
invested or reinvested except as provided in this SECTION 5.
(i) Except as otherwise provided in SECTION 12 hereof
and provided that the lien and security interest in favor of
the Agent for the benefit of the Secured Parties remains
perfected and so long as no Event of Default shall have
occurred and be continuing, any funds on deposit in the LC
Account may, or upon the written request of Pledgors shall,
be invested by the Agent in cash equivalents.
(ii) The Agent shall have no responsibility and
the Pledgors hereby agree to hold the Agent and the Lenders
harmless for any loss in the value of the Collateral
resulting from a fluctuation in interest rates or otherwise.
Any interest on Investments permitted hereunder and the net
proceeds of the sale or payment of any such Investments
shall constitute part of the Collateral and be held in the
LC Account by the Agent.
6. REPRESENTATIONS AND WARRANTIES. In addition to its
representations and warranties made pursuant to ARTICLE VII of
the Credit Agreement, the Pledgors represent and warrant to the
Agent (for itself and as agent on behalf of the Secured Parties),
that the following statements are true, correct and complete:
(i) At the time the Pledgors deliver the Collateral
(or any portion thereof) to the Agent, the Pledgors will be
the legal and beneficial owner of the Collateral free and
clear of any Lien except for the lien and security interest
created by this Agreement; and
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(ii) At the time the LC Account has been created and
the Collateral deposited into the LC Account, the pledge and
assignment of the Collateral pursuant to this Agreement
creates a valid and perfected first priority security
interest in the Collateral, securing the payment of the
Secured Obligations.
7. FURTHER ASSURANCES. The Pledgors agree that at any
time and from time to time, at the Pledgors' expense, the
Pledgors will promptly execute and deliver to the Agent any
further instruments and documents, and take any further actions,
that may be necessary or that the Agent may reasonably request in
order to perfect and protect any security interest granted or
purported to be granted hereby or to enable the Agent to exercise
and enforce its rights and remedies hereunder with respect to any
Collateral.
8. TRANSFERS AND OTHER LIENS. Each of the Pledgors agree
that it will not (a) sell or otherwise dispose of any of the
Collateral, or (b) create or permit to exist any Lien upon or
with respect to any of the Collateral, except for the Lien and
security interest created by this Agreement and the Credit
Agreement.
9. THE AGENT APPOINTED ATTORNEY-IN FACT. Pledgors
hereby appoint the Agent as their attorney-in-fact for the
purposes of carrying out the provisions of this Agreement and
taking any action and executing any instrument which the Agent
may deem necessary or advisable to accomplish the purposes
hereof, which appointment is coupled with an interest and is
irrevocable; provided, that the Agent shall have and may exercise
rights under this power of attorney only upon the occurrence and
during the continuance of an Event of Default. Without limiting
the generality of the foregoing, upon the occurrence and during
the continuation of an Event of Default, the Agent shall have the
power to receive, endorse and collect all instruments made
payable to the Pledgors representing any payment, dividend or
other distribution in respect of the Collateral or any part
thereof and to give full discharge for the same. In performing
its functions and duties under this Agreement, the Agent shall
act solely for itself and as the agent of the Lenders and the
Agent has not assumed nor shall be deemed to have assumed any
obligation towards or relationship of agency or trust with or for
the Pledgors.
10. THE AGENT MAY PERFORM. If Pledgors fail to perform any
agreement contained herein, after notice to Pledgors, the Agent
may itself perform, or cause performance of, such agreement, and
the expenses of the Agent incurred in connection therewith shall
be payable by Pledgors under SECTION 13 hereof.
11. STANDARD OF CARE; NO RESPONSIBILITY FOR CERTAIN
MATTERS. In dealing with the Collateral in its possession, the
Agent shall exercise the same care which it would exercise in
dealing with similar collateral property pledged by others in
transactions of a similar nature, but it shall not be responsible
for (a) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters
relative to any Collateral, whether or not the Agent has or is
deemed to have knowledge of such matters, (b) taking any steps to
preserve rights against any parties with respect to any
Collateral (other than steps taken in accordance with the
standard of care set forth above to maintain possession of the
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Collateral), (c) the collection of any proceeds, (d) any loss
resulting from Investments made pursuant to SECTION 5 hereof, or
(e) determining (x) the correctness of any statement or
calculation made by the Pledgors in any written instructions, or
(y) whether any deposit in the LC Account is proper.
12. REMEDIES UPON ACCELERATION; APPLICATION OF PROCEEDS.
If the Borrower shall fail to perform any action required
hereunder or shall otherwise breach any term or provision hereof
(a "Default" hereunder) which Default shall not have been waived
in accordance with SECTION 12.6 of the Credit Agreement:
(i) The Agent may and shall at the request of the
Required Lenders or the Issuing Bank exercise in respect of
the Collateral, in addition to other rights and remedies
provided for herein otherwise available to it, all the
rights and remedies of a secured party on default under the
Uniform Commercial Code (the "Code") as applicable to the
Collateral, and the Agent may, without notice except as
specified below, sell the Collateral or any part thereof in
one or more parcels at public or private sale, at any
exchange or broker's board or at any of the Agent's offices
or elsewhere, for cash, on credit or for future delivery,
and at such price or prices, and upon such other terms as
the Agent may deem commercially reasonable. Pledgors agree
that, to the extent notice of sale shall be required by law,
at least ten (10) days' notice to Pledgors of the time and
place of any public sale or the time after which any private
sale is to be made shall constitute reasonable notification.
The Agent shall not be obligated to make any sale of the
Collateral regardless of notice of sale having been given.
The Agent may adjourn any public or private sale from time
to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made
at the time and place to which it was so adjourned.
(ii) In addition to the remedies set forth in part (i)
above and subject to the provisions of SECTION 2(ii)
hereof, any cash held by the Agent as Collateral and all
cash proceeds received by the Agent in respect of any sale
of, collection from, or other realization upon all or part
of the Collateral shall be applied (after payment of any
amounts payable to the Agent pursuant to SECTION 13 hereof)
by the Agent to pay the Secured Obligations pursuant to
SECTION 10.5 of the Credit Agreement.
13. EXPENSES. In addition to any payments of expenses of
the Agent pursuant to the Credit Agreement or the other Loan
Documents, the Pledgors agree to pay promptly to the Agent all
the costs and expenses, including reasonable attorneys fees and
expenses, which the Agent may incur in connection with (a) the
custody or preservation of, or the sale of, collection from, or
other realization upon, any of the Collateral, (b) the exercise
or enforcement of any of the rights of the Agent hereunder, or
(c) the failure by the Pledgors to perform or observe any of the
provisions hereof.
14. NO DELAYS; WAIVER, ETC. No delay or failure on the
part of the Agent in exercising, and no course of dealing with
respect to, any power or right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by the
Agent of any power or right hereunder preclude other or further
exercise thereof or the exercise of any other power or right.
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15. AMENDMENTS, ETC. No amendment, modification,
termination or waiver of any provision of this Agreement, or
consent to any departure by the Pledgors therefrom, shall in any
event be effective without the written concurrence of the Agent.
16. CONTINUING SECURITY INTEREST; TERMINATION. This
Agreement shall create a continuing security interest in the
Collateral and shall (a) remain in full force and effect until
all Secured Obligations (other than Secured Obligations in the
nature of continuing indemnities or expense reimbursement
obligations not yet due and payable) shall have been indefeasibly
paid in full in cash, the commitments or other obligations of the
Agent or any Lender to make any Loan under the Credit Agreement
shall have expired, the Letters of Credit shall have expired and
the Revolving Credit Termination Date shall have occurred, (b) be
binding upon each of the Pledgors, its successors and assigns,
and (c) inure to the benefit of the Agent, the Secured Parties
and their respective successors, transferees and assigns.
Without limiting the generality of the foregoing clause (c) and
subject to the provisions of the Credit Agreement, any Lender may
assign or otherwise transfer any Note held by it to any other
person or entity, and such other person or entity shall thereupon
become vested with all the benefits in respect thereof granted to
such Lender herein or otherwise. Upon the indefeasible payment
in full in cash of the Secured Obligations (other than Secured
Obligations in the nature of continuing indemnities or expense
reimbursement obligations not yet due and payable), and the
cancellation or expiration of the Letters of Credit and
termination or expiration of all commitments and other
obligations of the Agent and any Lender to make any Loan and the
occurrence of the Revolving Credit Termination Date, Pledgors
shall be entitled, subject to the provisions of SECTION 12
hereof, to the return, upon its request and at its expense, of
such of the Collateral as shall not have been sold or otherwise
applied pursuant to the terms hereof.
17. SUCCESSORS AND ASSIGNS. Whenever in this Agreement any
of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party and
all covenants, promises, and agreements by or on behalf of the
Pledgors or by and on behalf of the Agent shall bind and inure to
the benefit of the successors and assigns of the Pledgors, the
Agent and the Lenders.
18. ANTI-MARSHALLING PROVISIONS. The right is hereby given
by the Pledgors to the Agent, for the benefit of the Secured
Parties, to make releases (whether in whole or in part) of all or
any part of the Collateral agreeable to the Agent without notice
to, or the consent, approval or agreement of other parties and
interests, including junior lienors, which releases shall not
impair in any manner the validity of or priority of the Liens and
security interests in the remaining Collateral conferred under
such documents, nor release the Pledgors from personal liability
for the Secured Obligations hereby secured. Notwithstanding the
existence of any other security interest in the Collateral held
by the Agent, for the benefit of the Secured Parties, the Agent
shall have the right to determine the order in which any or all
of the Collateral shall be subjected to the remedies provided in
this Agreement. The proceeds realized upon the exercise of the
remedies provided herein shall be applied by the Agent, for the
benefit of the Secured Parties, in the manner provided in SECTION
10.5 of the Credit Agreement. Each of the Pledgors hereby waives
any and all right to require the marshalling of assets in
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connection with the exercise of any of the remedies permitted by
applicable law or provided herein.
19. ABSOLUTE RIGHTS AND OBLIGATIONS. All rights of the
Secured Parties, and all obligations of the Pledgors hereunder,
shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of the
Credit Agreement, any other Loan Document or any other
agreement or instrument relating to any of the Secured
Obligations;
(b) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Secured
Obligations, or any other amendment or waiver of or any
consent to any departure from the Credit Agreement, any
other Loan Document or any other agreement or instrument
relating to any of the Secured Obligations, including but
not limited to (i) an increase or decrease in the Secured
Obligations and (ii) an amendment of any Loan Document to
permit the Agent or the Lenders or any one or more of them
to extend further or additional credit to the Pledgors in
any form including credit by way of loan, purchase of
assets, guarantee or otherwise, which credit shall thereupon
be and become subject to the Credit Agreement and the other
Loan Documents as a Secured Obligation;
(c) any exchange, release or non-perfection of any
other collateral, or any release or amendment or waiver of
or consent to departure from any guaranty, for all or any of
the Secured Obligations; or
(d) any other circumstances (including without
limitation any statute of limitations) which might otherwise
constitute a defense available to, or a discharge of, the
Pledgors or any Guarantor.
20. ENTIRE AGREEMENT. This Agreement, together with the
Credit Agreement, the Guaranty Agreement and other Loan
Documents, constitutes and expresses the entire understanding
between the parties hereto with respect to the subject matter
hereof, and supersedes all prior agreements and understandings,
inducements, commitments or conditions, express or implied, oral
or written, except as herein contained. The express terms hereof
control and supersede any course of performance or usage of the
trade inconsistent with any of the terms hereof. Neither this
Agreement nor any portion or provision hereof may be changed,
altered, modified, supplemented, discharged, canceled, terminated
or amended orally or in any manner other than by an agreement, in
writing signed by the parties hereto.
21. FURTHER ASSURANCES. Each of the Pledgors agrees at its
own expense to do such further acts and things, and to execute
and deliver such additional conveyances, assignments, financing
statements, agreements and instruments, as the Agent may at any
time reasonably request in connection with the administration or
enforcement of this Agreement or related to the Collateral or any
part thereof or in order better to assure and confirm unto the
Agent its rights, powers and remedies for the benefit of the
Secured Parties hereunder. The Pledgors hereby consent and agree
that the issuers of or obligors in respect of the Collateral
shall be entitled to accept the provisions hereof as conclusive
evidence of the right of the Agent, on behalf of the Secured
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Parties, to exercise its rights hereunder with respect to the
Collateral, notwithstanding any other notice or direction to the
contrary heretofore or hereafter given by either of the Pledgors
or any other Person to any of such issuers or obligors.
22. BINDING AGREEMENT; ASSIGNMENT. This Agreement, and the
terms, covenants and conditions hereof, shall be binding upon and
inure to the benefit of the parties hereto, and to their
respective successors and assigns, except that the Pledgors shall
not be permitted to assign this Agreement or any interest herein
or in the Collateral, or any part thereof, or otherwise pledge,
encumber or grant any option with respect to the Collateral, or
any part thereof, or any cash or property held by the Agent as
Collateral under this Agreement. All references herein to the
Agent shall include any successor thereof, each Lender and any
other obligees from time to time of the Obligations.
23. SWAP AGREEMENTS. All obligations of the Borrower under
Swap Agreements shall be deemed to be Secured Obligations secured
hereby, and each Lender or affiliate of a Lender party to any
such Swap Agreement shall be deemed to be a Secured Party
hereunder.
24. SEVERABILITY. In case any Lien, security interest or
other right of any Secured Party or any provision hereof shall be
held to be invalid, illegal or unenforceable, such invalidity,
illegality or unenforceability shall not affect any other Lien,
security interest or other right granted hereby or provision
hereof.
25. COUNTERPARTS. This Agreement may be executed in any
number of counterparts and all the counterparts taken together
shall be deemed to constitute one and the same instrument.
26. INDEMNIFICATION. Without limitation of SECTION 12.9 of
the Credit Agreement or any other indemnification provision in
any Loan Document, the Pledgors hereby covenant and agree to pay,
indemnify, and hold the Secured Parties harmless from and against
any and all other out-of-pocket liabilities, costs, expenses or
disbursements of any kind or nature whatsoever arising in
connection with any claim or litigation by any Person resulting
from the execution, delivery, enforcement, performance and
administration of this Agreement or the Loan Documents, or the
transactions contemplated hereby or thereby, or in any respect
relating to the Collateral or any transaction pursuant to which
either of the Pledgors has incurred any Obligation (all the
foregoing, collectively, the "indemnified liabilities");
provided, however, that the Pledgors shall have no obligation
hereunder with respect to indemnified liabilities directly or
primarily arising from the willful misconduct or gross
negligence of the Agent or any Lender. The agreements in this
subsection shall survive repayment of all Secured Obligations,
termination or expiration of this Agreement and occurrence of the
Revolving Credit Termination Date.
27. REMEDIES CUMULATIVE. All remedies hereunder are
cumulative and are not exclusive of any other rights and remedies
of the Agent provided by law or under the Credit Agreement, the
other Loan Documents, or other applicable agreements or
instruments. The making of the Loans to and the issuance of
Letters of Credit for the benefit of the Borrower pursuant to the
Credit Agreement and the extension of the Revolving Credit
Facility to the Borrower pursuant to the Credit Agreement shall
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be conclusively presumed to have been made or extended,
respectively, in reliance upon the Pledgors' pledge of the
Collateral pursuant to the terms hereof.
28. NOTICES. Any notice required or permitted hereunder
shall be given, (a) with respect to the Pledgors, at the address
of the Borrower indicated in SECTION 12.2 of the Credit Agreement
and (b) with respect to the Agent or a Lender, at the Agent's
address indicated in SECTION 12.2 of the Credit Agreement. All
such notices shall be given and shall be effective as provided in
SECTION 12.2 of the Credit Agreement.
29. GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED,
IN SUCH STATE NOTWITHSTANDING ITS EXECUTION AND DELIVERY
OUTSIDE SUCH STATE.
(b) EACH OF THE PLEDGORS HEREBY EXPRESSLY AND
IRREVOCABLY AGREES AND CONSENTS THAT ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND
THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE INSTITUTED IN
ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY OF
XXXXXXXX, STATE OF TENNESSEE, UNITED STATES OF AMERICA OR
THE COUNTY OF MECKLENBURG, STATE OF NORTH CAROLINA, UNITED
STATES OF AMERICA, AND, BY THE EXECUTION AND DELIVERY OF
THIS AGREEMENT, EACH OF THE PLEDGORS EXPRESSLY WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
VENUE IN, OR TO THE EXERCISE OF JURISDICTION OVER IT AND ITS
PROPERTY BY, ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR
PROCEEDING, AND EACH OF THE PLEDGORS HEREBY IRREVOCABLY
SUBMITS GENERALLY AND UNCONDITIONALLY TO THE JURISDICTION OF
ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(c) EACH OF THE PLEDGORS AGREES THAT SERVICE OF
PROCESS MAY BE MADE BY PERSONAL SERVICE OF A COPY OF THE
SUMMONS AND COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH
SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR CERTIFIED
MAIL (POSTAGE PREPAID) TO THE ADDRESS OF THE BORROWER
PROVIDED IN SECTION 12.2 OF THE CREDIT AGREEMENT, OR BY ANY
OTHER METHOD OF SERVICE PROVIDED FOR UNDER THE APPLICABLE
LAWS IN EFFECT.
(d) NOTHING CONTAINED IN SUBSECTIONS (a) or (b) HEREOF
SHALL PRECLUDE ANY SECURED PARTY FROM BRINGING ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT AND ANY LOAN DOCUMENT IN THE COURTS OF ANY
JURISDICTION WHERE THE PLEDGORS OR ANY OF THE PLEDGORS'
PROPERTY OR ASSETS MAY BE FOUND OR LOCATED.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND
ANY RIGHTS OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR
ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED
OR THAT MAY IN THE FUTURE BE DELIVERED IN CONNECTION
THEREWITH, EACH PARTY HERETO HEREBY AGREES, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A
JURY AND HEREBY IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED
BY APPLICABLE LAW, ANY RIGHT SUCH PERSON MAY HAVE TO TRIAL
BY JURY IN ANY SUCH ACTION OR PROCEEDING.
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[Signature page follows.]
IN WITNESS WHEREOF, the undersigned Pledgors and the Agent
have caused this LC Account Agreement to be duly executed and
delivered by their respective officers thereunto duly authorized
as of the date first above written.
XXXXXX INDUSTRIES, INC.
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: President
XXXXXX INDUSTRIES TOWING
EQUIPMENT INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Vice President
NATIONSBANK OF TENNESSEE, NATIONAL
ASSOCIATION, as Agent for the Lenders
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Commercial Banking Officer
LC ACCOUNT AGREEMENT
SIGNATURE PAGE 1 OF 1
