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Exhibit 10.2
LC Account Agreement, dated June 26, 1997, by and between Xxxxxxxx'x, Inc. and
NationsBank of Texas, National Association, as Agent.
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EXHIBIT 10.2
LC ACCOUNT AGREEMENT
This LC ACCOUNT AGREEMENT (the "Agreement") is dated as of June 26, 1997,
and made between XXXXXXXX'X, INC., a Tennessee corporation (the "Pledgor") and
NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION, 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 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 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 pursuant to Section 2 hereof.
"Collateral" means (a) all funds from time to time on deposit in the Cash
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.
"Investments" means those investments, if any, made by the Agent pursuant
to Section 5 hereof.
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"Secured Obligations" means (i) all obligations of the Pledgor now
existing 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 agreement
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.
(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 [NATIONSBANK PLAZA, 000 XXXX XXXXXX, XXXXXX,
XXXXX], 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 Account (the "Cash Account").
(ii) In accordance with Article IX of the Credit Agreement, in
the 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, the Agent shall, upon receipt of any such
amounts, exercise the remedies set forth in Section 12 hereof. Any such
amounts received by the Agent pursuant to Article IX of the Credit
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 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
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 long as no Event of Default is in existence 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 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.
(iii) Interest received in respect of Investments of any
amounts deposited the Cash Account pursuant to clause (ii) of this
Section 2 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
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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 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 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
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
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 a 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
AGENT. Cash held by the agent in a cash 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 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 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.
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SECTION 6. REPRESENTATIONS AND WARRANTIES. In addition to its
representations and warranties made pursuant to Article VI of the credit
agreement, the pledgor represents and warrants to the agent (for itself and as
agent 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
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 (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
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 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
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
13 hereof.
SECTION 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
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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 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 a
cash account is proper.
SECTION 12. REMEDIES UPON DEFAULT; APPLICATION OF PROCEEDS. If any event
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
subject to the provisions of Section 2 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 cash
collateralize the Pledgor's Letters of Credit and thereafter to pay the
Secured Obligations. Any surplus of such cash or cash proceeds held by
the Agent and remaining after payment in full of all Secured Obligations
shall be paid over to the Pledgor or to whomsoever may be lawfully
entitled to receive such surplus.
SECTION 13. EXPENSES. In addition to any payments of expenses of the
agent pursuant to the credit agreement or any loan document, the pledgor agrees
to pay promptly to the agent all the 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
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
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,
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
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,
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.
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SECTION 19. CONSENT TO JURISDICTION. ALL JUDICIAL PROCEEDINGS BROUGHT
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 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 AND
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
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
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
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
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/ Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
------------------------- ------------------------------------
Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
-----------------------------------
Title: Secretary
(SEAL) Assistant Secretary
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NATIONSBANK OF TEXAS, NATIONAL
ASSOCIATION, as Agent for the Lenders
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
