1
EXHIBIT 10.2
INDEMNITY, SUBROGATION AND CONTRIBUTION AGREEMENT
INDEMNITY, SUBROGATION and CONTRIBUTION AGREEMENT dated as of August
23, 2000, among Xxxx X. Xxxxxxx Company, a Georgia corporation (the "BORROWER"),
each Subsidiary a signatory hereto (the "GUARANTORS"), and SUNTRUST BANK, a
Georgia banking corporation, as administrative agent (in such capacity, the
"ADMINISTRATIVE Agent") for the Lenders (as defined in the Credit Agreement
referred to below).
Reference is made to (a) the Revolving Credit Agreement dated
as of August 23, 2000 (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 SunTrust Bank, as Administrative Agent,
swingline lender and issuing bank (in such capacity, the "ISSUING BANK"), and
(b) the Subsidiary Guarantee Agreement dated as August 23, 2000, among the
Guarantors and the Administrative Agent (as amended, supplemented or otherwise
modified from time to time, the "GUARANTEE AGREEMENT"). Capitalized terms used
herein and not defined herein shall have the meanings assigned to such terms in
the Credit Agreement.
The Lenders have agreed to make Loans to the Borrower, and the
Issuing Bank has agreed to issue Letters of Credit for the account of the
Borrower, pursuant to, and upon the terms and subject to the conditions
specified in, the Credit Agreement. The Guarantors have guaranteed such Loans
and the other Obligations (as defined in the Guarantee Agreement) of the
Borrower under the Credit Agreement pursuant to the Guarantee Agreement. The
obligations of the Lenders to make Loans and of the Issuing Bank to issue
Letters of Credit are conditioned on, among other things, the execution and
delivery by the Borrower and the Guarantors of an agreement in the form hereof.
Accordingly, the Borrower, each Guarantor and the
Administrative Agent agree as follows:
SECTION 1. Indemnity and Subrogation. In addition to all such
rights of indemnity and subrogation as the Guarantors may have under applicable
law (but subject to Section 3), the Borrower agrees that (a) in the event a
payment shall be made by any Guarantor under the Guarantee Agreement, the
Borrower shall indemnify such Guarantor for the full amount of such payment and
such Guarantor shall be subrogated to the rights of the person to whom such
payment shall have been made to the extent of such payment and (b) in the event
any assets of any Guarantor shall be sold pursuant to the Pledge Agreement, if
any, to satisfy a claim of any Lender or other secured party, the Borrower shall
indemnify such Guarantor in an amount equal to the greater of the book value of
the fair market value of the assets so sold.
SECTION 2. Contribution and Subrogation. Each Guarantor (a
"CONTRIBUTING GUARANTOR") agrees (subject to Section 3) that, in the event a
payment shall be made by any other Guarantor under the Guarantee Agreement or
assets of any other Guarantor shall be sold pursuant to the Pledge Agreement, if
any, to satisfy a claim of any Lender or other secured party,
2
and such other Guarantor (the "CLAIMING GUARANTOR") shall not have been fully
indemnified by the Borrower as provided in Section 1, the Contributing Guarantor
shall indemnify the Claiming Guarantor in an amount equal to the amount of such
payment or the greater of the book value or the fair market value of such
assets, as the case may be, in each case multiplied by a fraction of which the
numerator shall be the net worth of the Contributing Guarantor on the date
hereof and the denominator shall be the aggregate net worth of all the
Guarantors on the date hereof (or, in the case of any Guarantor becoming a party
hereto pursuant to Section 12, the date of the Supplement hereto executed and
delivered by such Guarantor). Any Contributing Guarantor making any payment to a
Claiming Guarantor pursuant to this Section 2 shall be subrogated to the rights
of such Claiming Guarantor under Section 1 to the extent of such payment.
SECTION 3. Subordination. Notwithstanding any provision of
this Agreement to the contrary, all rights of the Guarantors under Sections 1
and 2 and all other rights of indemnity, contribution or subrogation under
applicable law or otherwise shall be fully subordinated to the indefeasible
payment in full in cash of the Obligations. No failure on the part of the
Borrower or any Guarantor to make the payments required under applicable law or
otherwise shall in any respect limit the obligations and liabilities of any
Guarantor with respect to its obligations hereunder, and each Guarantor shall
remain liable for the full amount of the obligations of such Guarantor
hereunder.
SECTION 4. Termination. This Agreement shall survive and be in
full force and effect so long as any Obligation is outstanding and has not been
indefeasibly paid in full in cash, and so long as the LC Exposure has not been
reduced to zero or any of the Commitments under the Credit Agreement have not
been terminated, and shall continue to be effective or be reinstated, as the
case may be, if at any time payment, or any part thereof, of any Obligation is
rescinded or must otherwise be restored by any Lender or any Guarantor upon the
bankruptcy or reorganization of the Borrower, any Guarantor or otherwise.
SECTION 5. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
SECTION 6. No Waiver; Amendment. (a) No failure on the part of
the Administrative Agent or any Guarantor to exercise, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy by the Administrative Agent or any Guarantor preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
All remedies hereunder are cumulative and are not exclusive of any other
remedies provided by law. None of the Administrative Agent and the Guarantors
shall be deemed to have waived any rights hereunder unless such waiver shall be
in writing and signed by such parties.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to a written agreement entered into
between the Borrower, the
-2-
3
Guarantors and the Administrative Agent, with the prior written consent of the
Required Lenders (except as otherwise provided in the Credit Agreement).
SECTION 7. Notices. All communications and notices hereunder
shall be in writing and given as provided in the Guarantee Agreement and
addressed as specified therein.
SECTION 8. Binding Agreement; Assignments. 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 parties that are contained in
this Agreement shall bind and inure to the benefit of their respective
successors and assigns. Neither the Borrower nor any Guarantor may assign or
transfer any of its rights or obligations hereunder (and any such attempted
assignment or transfer shall be void) without the prior written consent of the
Required Lenders. Notwithstanding the foregoing, at the time any Guarantor is
released from its obligations under the Guarantee Agreement in accordance with
such Guarantee Agreement and the Credit Agreement, such Guarantor will cease to
have any rights or obligations under this Agreement.
SECTION 9. Survival of Agreement; Severability. (a) All
covenants and agreements made by the Borrower and each Guarantor herein and in
the certificates or other instruments prepared or delivered in connection with
this Agreement or the other Loan Documents shall be considered to have been
relied upon by the Administrative Agent, the Lenders and each Guarantor and
shall survive the making by the Lenders of the Loans and the issuance of the
Letters of Credit by the Issuing Bank, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loans or any
other fee or amount payable under the Credit Agreement or this Agreement or
under any of the other Loan Documents is outstanding and unpaid or the LC
Exposure does not equal zero and as long as the Commitments have not been
terminated.
(b) In case one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect, no
party hereto shall be required to comply with such provision for so long as such
provision is held to be invalid, illegal or unenforceable, but the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby. The parties 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.
SECTION 10. Counterparts. This Agreement 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 Agreement shall be effective with respect to
any Guarantor when a counterpart bearing the signature of such Guarantor shall
have been delivered to the Administrative Agent. Delivery of an executed
signature page to this Agreement by facsimile transmission shall be as effective
as delivery of a manually signed counterpart of this Agreement.
-3-
4
SECTION 11. Rules of Interpretation. The rules of
interpretation specified in Section 1.03 of the Credit Agreement shall be
applicable to this Agreement.
SECTION 12. Additional Guarantors. Pursuant to Section 5.10 of
the Credit Agreement, each Subsidiary Loan Party of the Borrower that was not in
existence or not such a Subsidiary Loan Party on the date of the Credit
Agreement is required to enter into the Guarantee Agreement as Guarantor upon
becoming such a Subsidiary Loan Party. Upon the execution and delivery, after
the date hereof, by the Administrative Agent and such Subsidiary of an
instrument in the form of Annex I hereto or of an assumption agreement
acceptable to the Administrative Agent, such Subsidiary shall become a Guarantor
hereunder with the same force and effect as if originally named as a Guarantor
hereunder. The execution and delivery of any instrument adding an additional
Guarantor as a party to this Agreement shall not require the consent of any
Guarantor hereunder. The rights and obligations of each Guarantor hereunder
shall remain in full force and effect notwithstanding the addition of any new
Guarantor as a party to this Agreement.
-4-
5
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized officers as of the date first
appearing above.
XXXX X. XXXXXXX COMPANY
By: /S/ XXXX XXXXXX
-------------------------------------
Name: Xxxx Xxxxxx
Title: Treasurer
XXXXXXX INTERNATIONAL COMPANY
XXXXXXX DATAPRINT, INC.
XXXX X. XXXXXXX COMPANY OF
PUERTO RICO
SCANTRON CORPORATION
SCANTRON QUALITY COMPUTERS, INC.
THE CHECK STORE, INC.
CENTRALIA HOLDING CORP.
VENUS FLYTRAP CORPORATION
By: /S/ XXXX X. XXXXXXX
-------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
SUNTRUST BANK, as Administrative Agent
By: /S/ XXXXX XXXXXX
-------------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
-5-
6
SCHEDULE I
TO THE INDEMNITY, SUBROGATION
AND CONTRIBUTION AGREEMENT
Guarantors Addresses:
1. Xxxxxxx International Company
c/o Xxxx X. Xxxxxxx Company
0000 Xxxxxx Xxxx,
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx
2. Xxxxxxx dataPRINT, Inc.
c/o Xxxx X. Xxxxxxx Company
0000 Xxxxxx Xxxx,
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx
3. Xxxx X. Xxxxxxx Company of Puerto Rico
c/o Xxxx X. Xxxxxxx Company
0000 Xxxxxx Xxxx,
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx
4. Scantron Corporation
c/o Xxxx X. Xxxxxxx Company
0000 Xxxxxx Xxxx,
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx
5. Scantron Quality Computers, Inc.
c/o Xxxx X. Xxxxxxx Company
0000 Xxxxxx Xxxx,
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx
Schedule I-1
7
6. The Check Store, Inc.
c/o Xxxx X. Xxxxxxx Company
0000 Xxxxxx Xxxx,
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx
7. Centralia Holding Corp
c/o Xxxx X. Xxxxxxx Company
0000 Xxxxxx Xxxx,
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx
8. Venus Flytrap Corporation
c/o Xxxx X. Xxxxxxx Company
0000 Xxxxxx Xxxx,
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx
Schedule I-2
