Exhibit 10.2
LC ACCOUNT AGREEMENT
This LC ACCOUNT AGREEMENT (the "Agreement") is dated as of February 2,
1998, and made between XXXXXXXX'X, INC., a Tennessee corporation (the "Pledgor")
and NATIONSBANK, N.A., as Agent (in such capacity herein and together with any
successors in such capacity, the "Agent") for the Lenders (the "Lenders") party
to the Credit Agreement referenced below.
RECITALS
WHEREAS, Pledgor, the Lenders, the Co-Agents (as defined therein) and the
Agent have entered into a Credit Agreement dated as of the date hereof (said
Credit Agreement, as it may hereafter be amended, amended and restated,
supplemented or otherwise modified from time to time in accordance with the
terms thereof and in effect, hereinafter referred to as the "Credit Agreement");
WHEREAS, as a condition precedent to the Lenders' obligations to make the
Loans or the Issuing Bank's obligation to issue Letters of Credit (as such terms
are defined in the Credit Agreement), the Pledgor is required to execute and
deliver to the Agent a copy of this Agreement on or before the Effective Time
(defined below);
NOW, THEREFORE, in consideration of the foregoing and the agreements,
provisions and covenants contained herein, the Pledgor and the Agent hereby
agree as follows:
Section 1. Capitalized terms used in this Agreement shall have the
following meanings:
"Cash Account" means the cash collateral account established and maintained
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pursuant to Section 2 hereof.
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"Collateral" means (a) all funds from time to time on deposit in the Cash
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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 Pledgor 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.
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"Investments" means those investments, if any, made by the Agent pursuant
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to Section 5 hereof.
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"Secured Obligations" means (i) all Obligations of the Pledgor now existing
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or hereafter arising under or in respect of the Credit Agreement or the Notes
(including, without limitation, the Pledgor's obligations 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 agreements
related to the Credit Agreement or the Notes; and (ii) without duplication, all
obligations of the Pledgor 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.
Capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Credit Agreement.
Section 2. Cash Account; Cash Collateralization of Letters of Credit.
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(i) At such time as there shall be deposited with the Agent funds
pursuant to this Agreement, the Agent shall establish and maintain at its
offices at Independence Center, 15th Floor, 101 North Xxxxx Street,
Charlotte, North Carolina, in the name of the Agent and under the sole
dominion and control of the Agent, a cash collateral account for the
Pledgor designated as NationsBank/Xxxxxxxx'x Cash Collateral Account (the
"Cash Account").
(ii) In accordance with Article IX of the Credit Agreement, in the
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event that an Event of Default has occurred and is continuing and Pledgor
is required to pay to Agent an amount equal to the maximum amount remaining
undrawn, unpaid or at any time that may become payable under the Letters of
Credit, or at the request of the Agent and election of the Pledgor such
amounts have previously been paid to the Agent for such purpose of being
cash collateral hereunder the Agent shall, upon the later to occur of
receipt of any such amounts and the occurrence and continuation of an Event
of Default, exercise the remedies set forth in Section 12 hereof. Any such
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amounts received by the Agent pursuant to Article IX of the Credit
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Agreement shall be deposited in the Cash Account. Upon a drawing under the
Letters of Credit in respect of which any amounts described above have been
deposited in the Cash Account, the Agent shall apply such amounts to
reimburse the Agent for the amount of such drawing. In the event the
Pledgor's Letters of Credit are cancelled or expire or in the event of any
permanent reduction in the maximum amount available at any time for drawing
under such Letters of Credit (collectively, the "Maximum Available
Amount"), the Agent shall apply the amount then in the Cash Account
designated to reimburse the Agent for any drawings under the Letters of
Credit less the Maximum Available Amount immediately after such
cancellation, expiration or reduction, if any, first, to the cash
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collateralization of the Letters of Credit if the Pledgor has failed to pay
all or a portion of the maximum amounts described above and, second, (a) so
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long as no Event of Default has occurred and is continuing and so long as
no application of the Collateral shall be made within 25 days of the
expiration of the Pledgor's Letters of Credit then the Agent shall return
to the Pledgor such excess amount not applied to drawings and other amounts
owing with respect to Letters of Credit and (b) otherwise, the payment in
full of the outstanding Secured Obligations.
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(iii) Any interest received in respect of Investments of any amounts
deposited in the Cash Account pursuant to clause (ii) of this Section 2
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shall be delivered by the Agent to the Pledgor on the last Business Day of
each calendar month or, if earlier, upon cancellation or expiration of or
drawing of the Maximum Available Amount for drawing under the Letters of
Credit, as the case may be, in respect of which such amounts were so
deposited; provided, however, that the Agent shall not deliver to the
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Pledgor any such interest received in respect of Investments of any amounts
deposited in the Cash Account pursuant to this Section 2 if an Event of
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Default has occurred and is continuing or unless all outstanding Secured
Obligations have been indefeasibly paid in full in cash.
Section 3. Pledge; Security for Secured Obligations. The Pledgor hereby
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grants and pledges to the Agent (for itself and on behalf of the Lenders) a
first priority lien and security interest in, the Collateral, 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.
Section 4. Delivery of Collateral. All certificates or instruments, if
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any, representing or evidencing the Collateral shall be delivered to and held by
the Agent pursuant hereto and shall be a suitable form for transfer by delivery,
or shall be accompanied by duly executed instruments of transfer or assignment
in blank, all in form and substance reasonably satisfactory to the Agent. In
the event any Collateral is not evidenced by a certificate, a notation,
reflecting title in the name of the Agent or the security interest of the Agent,
shall be made in the records of the issuer of such Collateral or in such other
appropriate records as the Agent may require, all in form and substance
reasonably satisfactory to the Agent. The Agent shall have the right, at any
time and without notice to the Pledgor, to transfer to or to register in the
name of the Agent or any of its nominees any or all of the Collateral. In
addition, the Agent shall have the right at any time to exchange certificates
or instruments representing or evidencing Collateral for certificates or
instruments of smaller or larger denominations.
Section 5. Investing of Amounts in the Cash Account; Amounts held by the
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Agent. Cash held by the Agent in the Cash Account shall not be invested or
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reinvested except as provided in this Section 5.
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(i) Except as otherwise provided in Section 12 hereof and provided
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that the lien and security interest in favor of the Lenders remains
perfected, any funds on deposit in the Cash Account shall be invested by
the Agent so long as no Default or Event of Default shall have occurred and
be continuing, in cash equivalents.
(ii) 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 the Pledgor 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 Pledgor hereby agrees 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 securities constituting part
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of the Collateral and the net proceeds of the sale or payment of any such
securities shall be held in the Cash Account by the Agent.
Section 6. Representations and Warranties. In addition to its
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representations and warranties made pursuant to Article VI of the Credit
Agreement, the Pledgor represents and warrants to the Agent (for itself and on
behalf of the Lenders), that the following statements are true, correct and
complete:
(i) At the time the Pledgor delivers the Collateral (or any portion
thereof) to the Agent, the Pledgor 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
(ii) 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.
Section 7. Further Assurances. The Pledgor agrees that at any time and
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from time to time, at its expense, it 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 the Collateral.
Section 8. Transfers and Other Liens. The Pledgor agrees that it will not
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(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.
Section 9. The Agent Appointed Attorney-in Fact. The Pledgor hereby
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appoints the Agent as its attorney-in-fact, with full authority in the place and
stead of the Pledgor and in the name of the Pledgor or otherwise, from time to
time during the continuance of an Event of Default in the Agent's reasonable
discretion to take any action and to execute any instrument which the Agent may
reasonably deem necessary or advisable to accomplish the purposes of this
Agreement, including, without limitation, to receive, endorse and collect all
instruments made payable to the Pledgor 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 Pledgor.
Section 10. The Agent May Perform. If the Pledgor fails to perform any
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agreement contained herein, after notice to the Pledgor, 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 the Pledgor under Section
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13 hereof.
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Section 11. Standard of Care; No Responsibility For Certain Matters. In
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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 Collateral), (c) the collection of any
proceeds, (d) any loss resulting from Investments made pursuant to Section 5
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hereof, or (e) determining (x) the correctness of any statement or calculation
made by the Pledgor in any written or telex (tested or otherwise) instructions,
or (y) whether any deposit in the Cash Account is proper.
Section 12. Remedies upon Default; Application of Proceeds. If any Event
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of Default shall have occurred and be continuing:
(i) The Agent may 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
applicable Uniform Commercial Code (the "Code") as in effect at that time,
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. The Pledgor agrees that, to the extent notice of sale shall be
required by law, at least ten (10) days' notice to the Pledgor 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 in
accordance with the provisions of Section 2 hereof, any cash held by the
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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 cash collateralize
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the Pledgor's Letters of Credit and thereafter to pay the Secured
Obligations.
Section 13. Expenses. In addition to any payments of expenses of the
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Agent pursuant to the Credit Agreement or any Loan Document, the Pledgor agrees
to pay promptly to the Agent all the reasonable costs 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 Pledgor to perform or observe any of the provisions hereof.
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Section 14. No Delay's Waiver, etc. No delay or failure on the part of
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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. The
remedies herein provided are to the fullest extent permitted by law cumulative
and are not exclusive of any remedies provided by law.
Section 15. Amendments, Etc. No amendment, modification, termination or
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waiver of any provision of this Agreement, or consent to any departure by the
Pledgor therefrom, shall in any event be effective without the written
concurrence of the Agent.
Section 16. Notices. Except as otherwise specifically provided herein,
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all notices which are to be sent to the Pledgor or the Agent shall be given in
accordance with the Credit Agreement.
Section 17. Continuing Security Interest; Termination. This Agreement
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shall create a continuing security interest in the Collateral and shall (a)
remain in full force and effect until all Secured Obligations shall have been
indefeasibly paid in full in cash, the Revolving Credit 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 the
Pledgor, its successors and assigns, and (c) inure to the benefit of the Agent,
the Lenders 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 and cancellation or expiration of the
Letters of Credit and termination or expiration of all Revolving Credit
Commitments and other obligations of the Agent and any Lender to make any Loan
and the occurrence of the Revolving Credit Termination Date, the Pledgor shall
be entitled to the return, upon its request and at its expense, of such of its
Collateral as shall not have been sold or otherwise applied pursuant to the
terms hereof.
Section 18. GOVERNING LAW; TERMS. THIS AGREEMENT SHALL BE GOVERNED BY,
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AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
GEORGIA WITHOUT REGARD TO ANY OTHERWISE APPLICABLE PRINCIPLES OF CONFLICTS OF
LAWS, EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY
INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR
COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF
GEORGIA. UNLESS OTHERWISE DEFINED HEREIN OR IN THE CREDIT AGREEMENT, TERMS
DEFINED IN ARTICLE 9 OF THE CODE ARE USED HEREIN AS THEREIN DEFINED.
Section 19. CONSENT TO JURISDICTION. ALL JUDICIAL PROCEEDINGS BROUGHT
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AGAINST ANY PLEDGOR WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN ANY STATE
OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF GEORGIA AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, THE
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PLEDGOR ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS, AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION
WITH THIS AGREEMENT SUBJECT TO RIGHT OF APPEAL. NOTHING HEREIN SHALL AFFECT THE
RIGHT OF THE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE PLEDGOR IN THE
COURTS OF ANY OTHER JURISDICTION.
Section 20. Successors and Assigns. Whenever in this Agreement any of the
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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 Pledgor or by and on behalf of the Agent shall bind and
inure to the benefit of the successors and assigns of the Pledgor, the Agent and
the Lenders.
Section 21. Execution in Counterparts. This Agreement may be executed in
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any number of counterparts and by the different parties on separate counterparts
and each such counterpart shall for all purposes be deemed an original, but all
such counterparts shall together constitute but one and the same Agreement. The
Pledgor and the Agent hereby acknowledge receipt of a true, correct, and
complete counterpart of this Agreement.
Section 22. Severability. Any provision of this Agreement which is
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prohibited or unenforceable in any jurisdiction shall, as to such provision and
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Agreement
or affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 23. Headings. The section headings in this Agreement are inserted
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for convenience of reference and shall not be considered a part of this
Agreement or used in its interpretation.
[signatures follow]
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IN WITNESS WHEREOF, the Pledgor and the Agent have caused this Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
XXXXXXXX'X, INC.
ATTEST:
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------- By: /s/ Xxxxx X. Xxxxxx
Executive Vice President and ---------------------------------
----------------------------- Name: Xxxxx X. Xxxxxx
Chief Financial Officer ------------------------------
Title: Vice President and Treasurer
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NATIONSBANK, N.A. , as Agent for the
Lenders
By: /s/ Xxxx XxXxxxx
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Name: Xxxx XxXxxxx
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Title: Vice President
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