Exhibit 10.(i)(8) - 1
ISSUING AND PAYING AGENCY AGREEMENT
Dated as of August 17, 1992
Sakura Trust Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Issuance of Commercial Paper for
THE SOUTHLAND CORPORATION (THE "COMPANY")
Gentlemen:
You are hereby requested to act as issuing and paying agent on
behalf of the Company in connection with the sale from time to time of
unsecured short-term promissory notes known as commercial paper (the
"Commercial Paper Notes") of the Company and to act as issuing and paying
agent on behalf of ItoYokado Co., Ltd. (the "Guarantor") in connection with
the issuance of one or more guarantees (the "guarantees") to be affixed to
the Commercial Paper Notes. The Commercial Paper Notes may be issued in
either book-entry or certificated form. As such issuing and paying agent,
you shall be governed by the terms and conditions of this Issuing and
Paying Agency Agreement (this "Agreement").
The Company proposes to incur indebtedness by issuing Commercial
Paper Notes to be offered in the commercial paper market. The Company has
requested you to act as its agent for the issuance and delivery of the
Commercial Paper Notes. The Guarantor has requested you to act as its
agent for the issuance and delivery of the Guarantees. Promptly after each
issuance by you of a Commercial Paper Note with a Guarantee affixed
thereto, you shall notify the Company and the Guarantor of the Principal
amount, the amount of discount from the principal amount, the issue date
and the maturity date of the Commercial Paper Note to which it relates.
Upon presentment of such Commercial Paper Note to you on or after the
maturity date of the Commercial Paper Note, you shall make payment to the
holder of such Commercial Paper Note of the principal amount thereof as
provided herein.
During the period that this Agreement is in effect, the Company
will from time to time, deliver to you Commercial Paper Notes in
certificated form ("Certificated Notes") or a master note registered in the
name of Cede & Co. as nominee for The Depository Trust Company ("DTC"), or
a successor or nominee thereof (the "Master Note") which will represent
Commercial Paper Notes issued in book-entry from (the "Book-Entry Notes")
(said Cerificated Notes, Master Note and Book-Entry Notes individually
referred to as a "Note" and collectively referred to as the "Notes"). Each
Note and each Guarantee will be executed by manual or facsimile signature
of a duly authorized officer of the Company or the Guarantor, as the case
may be. Each Certificated Note (together with the related Guarantee) will
be in substantially the form attached hereto as Exhibit A and will be in
bearer form, but with the principal amount , issue date and maturity date
left blank. Each Note and Guarantee will bear the signature of an
Authorized Company Signatory (as hereinafter defined) or an Authorized
Guarantor Signatory ( as hereinafter defined), as the case may be. Any Note
or Guarantee bearing the signature of any person authorized to execute the
same on the date such signature is affixed thereto shall bind the Company
or the Guarantor, as the case may be, after the completion and
authentication thereof by you notwithstanding that any such person shall
have died or shall have otherwise ceased to hold his office on the date
such Note or Guarantee is countersigned or delivered by you. You agree to
make available, upon request of any holder of a Book-Entry Note, a copy
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of the Master Note ( and any attachments thereto) representing such Book-Entry
Note.
You will be furnished with an Incumbency Certificate on the date
hereof with respect to each officer of the Company whose signature appears on
the Notes, together with specimen signatures of such officers (each such
officer being herein referred to as an "Authorized Company Signatory"). You
will also be furnished with an Incumbency Certificate on the date hereof with
respect to each office of the Guarantor whose signature appears on the
Guarantees, together with specimen signatures of such officers (each such
officer being herein referred to as an "Authorized Guarantor Signatory").
Until you receive a subsequent Incumbency Certificate, you shall be entitled to
rely on the last Incumbency Certificate delivered to you. The Notes will be
numbered consecutively and may bear such other identification as the Company
may deem appropriate.
When any Notes together with the related Guarantees are delivered to
you, you will acknowledge receipt by returning a receipt to the Company and the
Guarantor. All Notes and Guarantees delivered to you shall be held by you for
the account of the Company and the Guarantor, in safekeeping in accordance with
your customary practice. You will immediately advise the Company and the
Guarantor of the loss, disappearance or theft of any blank Notes and Guarantees
held by you in safekeeping.
By an appropriate certificate of designation, you shall advise the
Company and the Guarantor, form time to time, of the names of your officers and
employees and the officers and employees of your agents ("Designated Persons")
who are authorized to receive instructions in respect of the Notes and the
Guarantees and to receipt for, complete, authenticated and deliver the Notes
and the Guarantees.
You are hereby authorized to act with respect to the Certificated
Notes upon written instructions received by you from any one of the Company's
authorized representatives ("Authorized Company Officers") (whose names shall
be specified by delivery to you of appropriate certificates of designation and
incumbency certificates) or from any employee of the Company designated to give
such instructions by writing executed by one of the Authorized Company Officers
("Designated Company Individuals"). Provided that you have received
instructions given pursuant to this paragraph prior to 1:00 p.m., New York City
time, a Designated Person will withdraw the necessary number of Certificated
Notes from safekeeping and, in accordance with such instructions, a Designated
Person shall:
(a) Complete each Certificated Note as to the principal amount,
issue and maturity date, which in no event shall be later than 270 days form
the issue date;
(b) If so directed, insert the name of the payee and strike-out the
word "BEARER" on the Certificated Note;
(c) Authenticate each Certificated Note by countersigning the same;
(d) Deliver each Certificated Note, at an address in the Borough of
Manhattan in The City of New York, to the Company's dealer(the "dealer") of
such Certicated Note or to the consignee thereof, as designated in such
instructions, by 2:30 p.m., New York City time, against payment of the Purchase
Price (as defined below) therefor as herein provided; and
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(e) Send a copy of each Certificated Note to the Company.
Instructions from the Company for the countersignature and
delivery by you of the Certificated Notes shall include the following
information: with respect to each Certicated Note, its issued date,
maturity date, principal amount (which will be in minimum denominations of
$100,000 and integral multiples of $1,000 in excess thereof), and amount of
discount form the principal amount, the party to whom delivery of such
Certificated Notes (the "Purchase Price") in collected funds, and if the
Certicated Note is not to be issued in bearer form, the name of the payee
and instructions to strike-out the word "BEARER" on the Certificated Note.
Each delivery of Certificated Notes shall be subject to the rules
of the New York Clearing House in effect at the time of delivery.
You are hereby authorized to act with respect to the Guarantees
upon written instructions received by you from any one of the Guarantor's
authorized representatives ("authorized Guarantor Officers")(whose names
shall be specified by delivery to you of appropriate certificates of
designation and incumbency certificates) or from any employee of the
Guarantor designated to give such instructions by writing executed by one
of the Authorized Guarantor Officers (Designated Guarantor Individuals").
The maximum aggregate principal amount of Notes which are
authenticated (and not canceled) by you at any one time pursuant to this
Agreement shall in no event exceed U.S. $400,000,000. In no even shall
Guarantees be affixed to Notes (or shall Notes be authenticated) if greater
than U.S. $400,000,.000 aggregate principal amount (or such lesser
aggregate principal amount as is notified by the Guarantor to you) of
authenticated Notes (which are not canceled) would be outstanding at anyone
time or if the Guarantor instructs you to no longer affix Guarantees to
Notes. Notwithstanding any contrary instructions received from the Company
or an Authorized Company Officer or Designated Company Individual, you
shall not complete, authenticate, issue or deliver any Notes, if the
issuance of such Notes would cause the aggregate principal amount of
outstanding Notes at any one time to exceed the authorized maximum
aggregate principal amount of U.S. $400,000,000 (or such lesser maximum
aggregate principal amount as is notified by the Guarantor to you) or if
the Guarantor instructs you to cease affixing Guarantees to Notes. All
notices and instructions from the Guarantor to you shall be in writing
(which may be by telex or facsimile transmission) and will be signed by an
Authorized Guarantor Officer or Designated Guarantor Individual.
In connection with the issuance of Book-Entry Notes, (I) you have
previously entered into a commercial paper certificate agreement (the
"Certificate Agreement") with DTC and (ii) you and the Company have jointly
executed a letter of representations (the "Representations Letter") with
DTC. The Company understands and acknowledges that a the execution of the
Certificate Agreement by you is a necessary prerequisite to the provision
of book-entry services under this Agreement and as such, the Company
agrees, (x) to be bound by the provisions of the Certificate Agreement and
(y) that the Certificate Agreement shall supplement the provisions of this
Agreement and (y) that the Certicate Agreement shall supplement the
provisions of this Agreement. A copy of the Certificate Agreement and the
Representations Letter are attached hereto as Exhibit B and Exhibit C,
respectively.
On each date that the Company desires to issue a Book Entry Note,
an Authorized Company Officer or Designated Company Individual shall
provide you with issuance instructions (the "Issuance Instructions")
specifying the issue date, maturity date, the principal amount, the amount
of discount form the principal amount, and the payee and the payee's
settlement bank which is a participant in the DTC book-entry commercial
paper program. Each
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Book-Entry Note shall have a principal amount of not less than $100,000 and
will mature no later than 270 days from the original issue date thereof.
If you receive the Issuance Instructions prior to 2:00 p.m., New York City
time, you will process, and if you receive the Issuance Instructions after
2:00 p.m., New York City time, you will use your best efforts to process,
such Issuance Instructions on the date of receipt of such Issuance
Instructions in accordance with and subject to (I) this Agreement, (ii) the
procedures set forth in the DTC Commercial Paper Issuing/Paying Agent
Manual (the "Manual"), (iii)the Rules of The Depository Trust Company,
including, without limitation, the DTC Same-Day Funds Settlement System
Rules (collectively, the "rules") and (iv) the terms and conditions of the
Certificate Agreement. Unless otherwise instructed by an Authorized
Company Officer or Designated Company Individual, each Book-Entry Note
delivery under this Agreement shall be made against payment as more fully
set forth in this Agreement. In the event of a conflict between the terms
of this Agreements and the terms of the Manual, the Certificate Agreement
or the Rules, the provisions of the Manual, the Certificate Agreement or
the Rules shall control.
No Note shall be delivered by you except against payment of the
Purchase Price therefor as provided in this paragraph. A Certificated Note
shall be deemed delivered against payment of the Purchase Price therefor
if, at the time you deliver such Certicated Note to the Dealer or to the
consignee thereof, you receive the receipt of the Dealer or the same day,
you will actually receive the Purchase Price of such Certificated Note from
the Purchase Price therefor upon credit to your account at DTC in
accordance with the provisions of the Manual and the Rules.
Should the delivery of Notes and the actual receipt by you of the
Purchase Price therefor not be completed simultaneously, you shall incur no
liability for the nonpayment of the Notes. In the event that you shall not
receive payment of the Purchase Price of any Note at the times and in the
manner specified above, you shall notify the Company and the Guarantor
promptly of such nonpayment and cancel such Note and the Guarantee affixed
thereto.
All proceeds of the sale of Notes issued by you as issuing and
paying agent hereunder shall be transferred by you promptly in immediately
available U.S. Dollar funds to an account of the Company maintained at a
bank in the continental United States of America or may be applied by you
to satisfy the payment of Notes at maturity, in either case as shall be
directed by an Authorized Company Officer or Designated Company Individual
form time to time by written notice.
You agree to provide the Company the means by which to
electronically access daily settlement information including the maturity
date of each Note and the aggregate principal amount of all Notes maturing
on any date on which Notes mature. Information transmitted by you to the
Company and by the Company to you by or through computer terminals or
similar devices shall be considered to be in writing for all purposes of
this Agreement. The Company will cause to be transferred to you by wire,
prior to 1:00 p.m. on such maturity date, an amount of immediately
available U.S. Dollar funds equal to the aggregate principal amount of all
Notes outstanding under which there may be made a demand for payment on
such maturity date in accordance with the terms thereof.
In the event that the Company fails to make such payment to you
at such time, you shall promptly demand such payment from each of the
Company and the Guarantor, specifying the issue date, maturity date and
principal amount of each such Note. The Guarantor will cause to be
transferred to you by wire, on demand,
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an amount in immediately available U.S. Dollar funds equal to the lesser of
the amount demanded by you and the amount then available form payment under
the terms of the Guarantees.
In the event that you shall receive payment under the Guarantees
form the Guarantor, all amount received from the Guarantor shall be
deposited into a non-interest bearing trust account (the "Trust Account")
maintained by you for the benefit of the holders of the Notes. Moneys on
deposit in the Trust Account shall be paid to the holders of the Notes in
accordance with the terms of this Agreement. Neither the Company nor the
Guarantor shall have any right to withdraw any moneys from the Trust
Account' provided, however, that if all Notes shall have been paid in full,
any amounts then remaining in the Trust Account shall be available for
withdrawal by the Guarantor.
You shall make payments of amounts received in accordance with
the terms of the Agreement from the Company or the Guarantor to the holders
of the Notes. You shall not have any obligation to make any payment on any
Note unless you shall have received and collected payment in immediately
available U.S. Dollar funds form or on behalf of the Company or the
Guarantor in an amount which is sufficient to make such payment in full.
Each Cerificated Note properly presented to you for payment on or
after the maturity date thereof shall be deemed a request by the holder of
such Certicated Note that you pay such funds to such holder. You shall pay
the principal amount of the Certificated Note, provided that you shall have
received from or on behalf of the Company, or the Guarantor immediately
available U.S. Dollar funds in an amount which is sufficient to make such
payment in full to the holder of such Certificated Note. Upon such
payment, you will ▇▇▇▇ such Certificated Note "paid" and cancel such
Certificated Note and the Guarantee affixed thereto. Within ten Business
Days after such payment, you will send by mail to the Company each such
canceled Certificated Note with such Canceled Guarantee.
The Company hereby warrants and represents to you, which shall be
a continuing warranty and representation, that (i) the Company's entering
into this Agreement, and your appointment as issuing and paying agent by
the Company, have been duly authorized by all necessary corporate action on
the part of the Company, (ii) all Notes delivered to you pursuant to this
Agreement, the Manual or the Rules are duly authorized, executed and
delivered by it to you, and (iii) the foregoing will not violate, breach or
contravene any law, rule, regulation, order, material contract or agreement
binding upon the Company.
The Guarantor hereby warrants and represents to you, which shall
be a continuing warranty and representation, that (i) the Guarantor's
entering into this Agreement has been duly authorized by all necessary
corporate action on the part of the Guarantor, (ii) the Guarantees have
been duly authorized, executed and delivered by the Guarantor, and (iii)
the foregoing will not violate, breach or contravene any lows, rule,
regulation, order, material contract or agreement binding upon the
Guarantor.
The Company agrees that you shall not be responsible for (i) the
validity, sufficiency or genuineness of any Note, (ii) the truth or
accuracy of any statement contained in any Note, whether or not the same is
in fact subsequently proven to be in any respect invalid, insufficient
fraudulent or forged or any statement contained therein shall prove in fact
to be untrue or inaccurate or (iii) the payment of the Purchase Price of
any Note. You shall notincur any liability to the Company or to any person
as a consequence of the inaccuracy of any information obtained by the
Company from you, electronically or otherwise, unless the furnishing of
such inaccurate information is directly attributable to your gross
negligence or willful misconduct. The Company shall idemnify and hold you
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and your respective officers, directors, employees and agents harmless
against and from all costs, expenses, losses, claims, damages and
liabilities (including reasonable attorney's fees and expenses) directly or
indirectly relating to, arising out of or in connection with, and you shall
not be liable for, (i) any action taken, omitted or suffered in good faith
in connection with this Agreement, and the Notes, including but not limited
to the safekeeping, completion, authentication, delivery and payment of the
Notes; (ii) compliance with any facsimile, telegraphic, telex, or written
instructions reasonably believed by you to have been received from
Authorized Company Officers or Designated Company Individuals or (iii) any
reliance on any Note. In the case of a Note payable to bearer, you may
treat the bearer of any such Note as the absolute owner of such note. You
may accept Notes which appear on their face to be in order without
responsibility for further investigation. The obligations of the Company
hereunder shall survive the termination of this Agreement and the payment
in full of all Notes.
The Guarantor agrees that you shall not be responsible for (i)
the validity, sufficiency or genuineness of any Guarantee or (ii) the truth
or accuracy of any statement contained in any Guarantee, whether or not the
same is in fact subsequently proven to be in any respect invalid,
insufficient, fraudulent or forged or any statement contained therein shall
prove in fact to be untrue or inaccurate. You shall not incur any
liability to the Guarantor or to any other person as a consequence of the
inaccuracy of any information obtained by the Guarantor from you,
electronically or otherwise, unless the furnishing of such inaccurate
information is directly attributable to your gross negligence or willful
misconduct. The Guarantor shall indemnify and hold you and your respective
officers, directors, employees and agents harmless against and from all
costs, expenses, losses, claims, damages and liabilities (including
reasonable attorney's fees and expenses) directly or indirectly relating
to, arising out of or in connection with, and you shall not be liable for,
(i) any action taken, omitted or suffered in good faith in connection with
this Agreement and the Guarantees, including but not limited to the
safekeeping, completion, authentication, delivery and payment of the
Guarantees, (ii) compliance with any facsimile, telegraphic, telex, or
written instructions reasonably believed by you to have been received from
Authorized Guarantor Officers or Designated Guarantor Individuals or (iii)
any reliance on any Guarantee. In the case of a Note and Guarantee payable
to bearer, you may treat the bearer of any such Note and Guarantee as the
absolute owner of such Note and Guarantee. You may accept Notes and
Guarantees which appear on their face to be in order without responsibility
for further investigation. The obligations of the Guarantor hereunder
shall survive the termination of this Agreement and the payment in full of
all Notes and Guarantees.
Your duties shall be limited to (i) completing the Certificated
Notes, authenticating the Certificated Notes, delivering the Cerificated
Notes with the Guarantee affixed thereto and sending a copy of the
Certified Notes to the Company, (ii) transmitting to DTC the issuance of
Book-Entry Notes, (iii) making payment for any Notes duly presented to you
for payment, (iv) making demand for payment from the Company and the
Guarantor for such Notes, and (v) applying funds received by you, all in
accordance with and subject to the terms and conditions of this Agreement
and, with respect to Book-Entry Notes, the Manual and the Rules. You shall
have no fiduciary or any other duties whatsoever to the holders of Notes,
except for your obligations to pay amounts on deposit in the Trust Account
to holders of the Notes as set forth in this Agreement. No implied
covenants, warranties, dutiesor obligations shall be read into this
Agreement against you.
Without limiting your rights, duties and obligations under this
Agreement, you may act through one or more agents when performing your
duties and obligations under this Agreement.
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No failure or delay on your part in exercising any right or
remedy hereunder shall operate as a waiver thereof. Your rights and
remedies hereunder are not exclusive of any rights or remedies provided by
law or in any other agreement between you and the Company or you and the
Guarantor.
The fees for your services hereunder shall be as mutually agreed
upon between the Company and you. The Company will pay your counsel's
reasonable fees and expenses.
This Agreement may be supplemented, modified or amended if such
supplement, modification or amendment is in writing, signed by both parties
hereto. No supplement, modification or amendment shall adversely affect
the rights of holders of the theretofore issued Notes which are unpaid at
the time.
You may at any time resign by giving written notice to the
Company and the Guarantor and the Guarantor of such intention, specifying
the date on which your desired resignation shall become effective;
provided, however, that such date shall not be less than the earlier of
three months after receipt of such notice by the Company and the Guarantor
or such time as a successor issuing and paying agent is appointed by the
Company. You may be removed for any reason or for no reason at any time by
the filing with you of an instrument in writing signed by the Company or
the Guarantor (with a copy to the Guarantor or the Company, as the case may
be) and specifying such removal and the date when such removal is intended
to become effective. Such removal shall take effect upon such date
provided above.
All notices, demands, instructions and other communications
required or permitted to be given to or made upon any party hereto shall be
in writing and shall be personally delivered or sent by registered or
certified mail (or registered or certified airmail if international),
postage prepaid, return receipt requested, or by Federal Express or other
courier, with confirmed delivery, or by prepaid telex, or by telecopier,
and shall be deemed to be given for purposes of this Agreement on the day
that such writing is delivered to or otherwise specified in a notice sent
or delivered in accordance with the foregoing provisions, notices, demands,
instructions and other communications shall be given to or made upon the
respective parties hereto at their respective addresses (or to their
respective telex or telecopier) indicated below:
If to you:
Sakura Trust Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telex:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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If to the Company:
The Southland Corporation Cityplace Center East
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Treasurer and Legal Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 1561717
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Guarantor:
Ito-Yokado Co., Ltd.
1-4, ▇▇▇▇▇▇▇▇▇ ▇-▇▇▇▇▇
▇▇▇▇▇▇-▇▇
▇▇▇▇▇ ▇▇▇
Telephone: ▇▇-▇-▇▇▇▇-▇▇▇▇
Telex: 23841
Telecopier: ▇▇-▇-▇▇▇▇-▇▇▇▇
If any day on which any notice, demand, instruction or other
communication is given by any party hereto is not a day (a "Business Day")
other that a Saturday, Sunday or other day on which banks in The City of
New York and Tokyo are authorized to remain closed, such notice, demand,
instruction or other communication shall be deemed to have been given on
the Business Day next succeeding such day which is not a Business Day. You
shall incur no liability to the Company or the Guarantor in acting
hereunder upon instructions contemplated hereby which you believed in good
faith to have been given by an Authorized Designated Guarantor Individual.
This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns; provided,
however, that no party hereto may assign any of its rights or obligations
hereunder except with the prior written consent of the other parties
hereto.
This Agreement may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each
of which counterparts, when so executed and delivered, shall be deemed to
be an original and all of which counterparts, taken together, shall
constitute one and the same Agreement.
This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York. Each of the Company and the
Guarantor agrees that all actions and proceedings relating directly or
indirectly to this Agreement shall, at your option, be litigated in any of
the New York State Supreme Court, New York County, the New York State
Supreme Court Appellate
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Division, First Department, and the Federal District Court of the Southern
District of New York, and that each such court is a convenient forum, and
each service of process upon the Company at the Company's address appearing
on your records, and services so made shall be deemed completed on the date
of certified receipt. Service of process upon the Company may also be sent
by Federal Express or any other public or private form of express delivery
service that can certify actual delivery, and in such event shall be deemed
to have been given on the date of certified receipt. Each of you, the
Company and the Guarantor waives any right to trial by jury in any action
or proceeding relating directly or indirectly to this Agreement. Each of
you, the Company and the Guarantor waives the right to assert in any action
or proceeding relating directly or indirectly to this Agreement. Each of
you, the Company and the Guarantor waives the right to assert in any action
or proceeding relating directly or indirectly to this Agreement any offsets
or counterclaims (other than counterclaims directly relating to this
Agreement) which you the Company or the Guarantor, as the case may be, may
have.
if the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
between you and us in accordance with its terms.
Very truly yours,
THE SOUTHLAND CORPORATION
By: __________________________ Name:
Title:
ITO-YOKADO CO., LTD.
By: __________________________ Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written
SAKURA TRUST COMPANY
By:/s/
Name: ▇▇▇▇▇ ▇▇▇▇
Title: President
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EXHIBIT 10.(i)(8) - 2
THE SOUTHLAND CORPORATION
Note Number ______________________
$________________
On ___________________________, for value received, The Southland Corporation
Promises To Pay To The Order Of
________________________________________________
The Sum of __________________________________________________________DOLLARS
Payable At
_____________________________________________________________________________
NOT VALID UNLESS COUNTERSIGNED BY
THE SOUTHLAND CORPORATION
New York, New York as This Note is issued in By:______________________
Issuing Agent New York, New York and
this Note shall be governed
by and construed in
accordance with the laws of the State of New York
without reference to the principles of conflict of
By:__________________ laws thereof.
Countersignature By:______________________
EXHIBIT 10.(i)(8) - 3
GUARANTEE
FOR VALUE RECEIVED Ito-Yokado Co., Ltd. (the "Guarantor"),hereby
unconditionally and irrevocably guarantees payment of theface amount of the
note (the "Note") of The Southland Corporation on the face hereof, when,
where and as the same shall become due and payable without any requirement
that the holder first proceed against The Southland Corporation.
The Guarantor waives notice of acceptance of this Guarantee and
notice of non-payment of the Note. The unconditional obligation of
the Guarantor hereunder will not be affected, impaired or released by
any extension of time for payment of the Note or by any other matter
or thing whatsoever which would release a guarantor.
The Guarantee shall be governed by and construed in
accordance with the laws of the State of New York,without reference
to the principles of conflict of laws thereof. The date of this Guarantee
is the date of the Note.
IN WITNESS WHEREOF, Ito-Yokado Co., Ltd. has caused this
Guarantee to be executed by its President and Chief Executive Officer
either manually or by facsimile signature.
Ito-Yokado Co., Ltd.
By:/s/
--------------------------▇▇▇▇▇▇▇▇▇
▇▇▇
President and Chief Executive Officer
EXHIBIT 10.(i)(8) - 4
INDEMNITY AND REIMBURSEMENT AGREEMENT
This Indemnity and Reimbursement Agreement (the "Agreement") made as
of this 17th day of August, 1992 by and between The Southland
Corporation, a corporation organized and existing under the laws of
Texas (the "Company"), and Ito-Yokado Co., Ltd., a Japanese corporation
organized and existing under the laws of Japan (the "Guarantor").
WHEREAS, the Company intends from time to time to issue unsecured
short-term promissory notes known as commercial paper notes (the
"Notes") of the Company pursuant to a program (the "Commercial Paper
Program") that includes a Commercial Paper Dealer Agreement dated as of
even date herewith between ▇▇▇▇▇▇▇ ▇▇▇▇▇ Money Markets, L.P. ("GSMM LP")
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Money Markets Inc. ("MLMMI") (each such firm a "Dealer"
and together the "Dealers"), on the one hand, and the Company and
the Guarantor, on the other hand (the "Dealer Agreement");
WHEREAS, in accordance with the Commercial Paper Program, the Company
has requested the Guarantor to, and the Guarantor is willing to,
guarantee the payment obligations of the Company under the Notes (the
"Obligations") pursuant to certain guarantees (the "Guarantees") to be
endorsed on the Master Note and the Book-Entry Notes, as such terms are
defined in the Issuing and Paying Agency Agreement dated as of even
date herewith between the Company and the Guarantor, on the one hand, and
the Sakura Trust Company, on the other hand (the "Issuing and Paying
Agency Agreement");
WHEREAS, the Guarantor is willing to execute the Guarantee pursuant
to the terms and subject to the conditions hereof.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for other good and valuable consideration, it is hereby agreed
as follows:
1. GUARANTEE.
The Company hereby requests and the Guarantor, at the request of
Company, agrees to execute the Guarantees as guarantor of the Obligations;
provided, however, that the obligations of the
-1-
Guarantor thereunder shall not extend to any indebtedness of the Company
in excess of U.S. $400,000,000, in the aggregate; that the Guarantor's
obligation to provide any Guarantee shall expire and terminate three (3)
years from the date hereof; and that such execution is subject to the
additional terms and conditions contained herein.
2. INDEMNITY.
(a) The Company shall reimburse any and all disbursements made by
the Guarantor in connection with, and shall at all times indemnify and hold
harmless the Guarantor from and against, all liability, loss and
expense, including fees and expenses of counsel, that the Guarantor may
incur
(i) by reason of entering into, performing, making any payment
pursuant to or being held liable under any Guarantee or otherwise in
connection with any Guarantee or the Obligations, including
without limitation any funding and other costs incurred by the
Guarantor (in an amount determined by the Guarantor in its
reasonable judgment) in connection with performance of its
payment and other obligations thereunder;
(ii) in connection with any payment required to be made by the
Guarantor in connection with a U.S. $60,000,000 committed line of
credit extended by Sakura Bank, Limited, New York Branch ("Sakura
Bank"), in favor of the Guarantor as support for the Notes (the "Backup
Line of Credit") as evidenced by an agreement dated of even date
herewith from Sakura Bank to the Guarantor (the "Backup Line Letter
Agreement"), including without limitation any commitment fees
thereunder, any interest or any drawdowns made thereunder, and any
funding costs incurred by the Guarantor (in an amount determined by
the Guarantor in its reasonable judgment) in connection with
performance of its repayment and other obligations thereunder to the
extent not paid directly by the Company pursuant to paragraph 7(b)
below;
(iii) in connection with the Dealer Agreement, including without
limitation reimbursement for any joint or several liability of the
Guarantor pursuant to section 11 thereof to the extent not paid
directly by the Company pursuant to paragraph 7(b) below;
(iv) in connection with the Issuing and Paying Agency Agreement
to the extent not paid directly by the Company pursuant to paragraph
7(b) below;
(v) otherwise in connection with the Commercial Paper Program to the
extent not paid directly by the Company pursuant to paragraph 7(b)
below; or
(vi) in defending or prosecuting any suit, action or other proceeding
brought in connection with any of the foregoing, or in obtaining or
attempting to obtain a release from liability in respect thereof to
the extent not paid directly by the Company pursuant to paragraph 7(b)
below.
-2-
The Company covenants that it will reimburse the Guarantor for, or
pay over to the Guarantor, all sums of money which the Guarantor shall pay
or become liable to pay by reason of any of the foregoing (collectively
the "Indemnified Losses" and each an "Indemnified Loss"), and will make
such payments to the Guarantor as soon as the Guarantor shall become
liable therefor, whether or not the Guarantor shall have paid out such
sums or any part thereof and whether or not any request, demand or
notice to the Company shall have been made with respect to the payment
of such sum, all of which are hereby expressly waived. The indemnity
provisions hereof shall survive any termination, cancellation or
expiration of this Agreement. Notwithstanding the foregoing, the Guarantor
hereby acknowledges and agrees that the indemnity obligations set forth in
this paragraph 2(a) are subject to the provisions of the Credit Agreement
dated as of November 5, 1987, as amended and restated through the
21st Amendment to the Credit Agreement (the "Credit Agreement"),
between the Company and the financial institutions named therein (the
"Banks"), pursuant to which the Company has agreed with the Banks that any
such indemnity obligations shall not be required or permitted to be paid
to the Guarantor until one year after the payment in full to the Banks of
the term loans and revolving credit loans under the Credit Agreement,
except principal payments under (i) above to the extent that the amount of
Notes outstanding exceeds U.S. $375,000,000.
(b) If any event shall have occurred or if any action shall have been
taken which will or may discharge or exonerate or in any manner whatsoever
affect the Obligations of the Company,including, without limitation, the
payment of any obligation under the Notes, or any obligation of the
Company under the Dealer Agreement, the Company shall forthwith give
notice to the Guarantor specifying such event, act or thing in
reasonable detail.
3. COMPROMISES.
The Guarantor shall have the right in its sole discretion to adjust,
settle or compromise any claim, suit or judgment in respect of any
Indemnified Loss, after notice to the Company, unless the Company desires
to litigate such claim, defend such suit or appeal such judgment and
simultaneously therewith deposits with the Guarantor collateral security
sufficient to pay any judgment rendered, with interest, costs and
expenses; and the right of the Guarantor to indemnification under this
Agreement shall extend to any money paid by the Guarantor in settlement
or compromise of any such claims, suits and judgments in good faith, after
notice to the Company.
4. LEGAL ACTIONS.
If any suit, action or other proceeding is brought by or against a
creditor, or any assignee of a creditor, of the Company in
connection with any Obligation guaranteed by the Guarantor, the
Guarantor shall have the right, at the expense of the Company, to
participate in or, at its election, assume the defense or prosecution of
such suit, action or proceeding, and in the latter event the Company
may employ counsel and participate therein at no cost or expense to the
Guarantor.If any suit, action or other proceeding is brought by the
Guarantor
-3-
against the Company for breach of its covenant of indemnity herein
contained, separate suits may be brought as causes of action accrue
without prejudice or bar to the bringing of subsequent suits on any
other cause or causes of action, whether theretofore or thereafter
accruing.
5. LIABILITY BETWEEN PARTIES.
As between the Company and the Guarantor, the former shall be primarily
liable for the payment of all of the Obligations guaranteed by the
Guarantor, and nothing contained in this agreement shall be construed
to waive, abridge or diminish any right or remedy which the Guarantor
might otherwise have against the Company.
6. EVIDENCE OF LIABILITY.
In the event of payment by the Guarantor of any sums of money by reason of
the Guarantee or in connection with any Indemnified Loss or any
reimbursement pursuant to section 7(b) hereof, the vouchers or other
evidence showing such payment shall be prima facie evidence against the
Company of the fact and amount of the liability of the Company to the
Guarantor hereunder.
7. FEES, CHARGES AND REIMBURSEMENT.
(a) The Company shall pay annually in arrears on each
anniversary date hereof to the Guarantor a guarantee fee (accruing
on a daily basis) at the rate of ONE HALF OF ONE PER CENTUM PER ANNUM
(0.5% p.a.) on the amount daily outstanding of the face value of the
Notes guaranteed by the Guarantor. The guarantee fee shall be computed on
the basis of a year of three hundred and sixty (360) days and for the
actual number of days elapsed. The guarantee fee shall be paid in
arrears in the currency in which the Obligations are paid. The rate
of the guarantee fee accruing after each successive anniversary date
hereof may be varied if agreed by the parties hereto.
(b) The Company shall pay all of the costs and expenses related
to the issuance of the Notes, including any costs for which the
Company and the Guarantor are jointly liable, including, but not
limited to, amounts owing under the Dealer Agreement and the Issuing and
Paying Agency Agreement, printing fees, legal fees and expenses of
Shearman & Sterling, fees and expenses of any rating agencies and
Depository Trust Company and fees and expenses (including commitment
fees) of Sakura Bank under the Backup Line Letter Agreement. The
Company will also reimburse the Guarantor on demand for all actual
expenses (including fees and expenses of counsel) reasonably incurred by
the Guarantor and not paid directly by the Company pursuant to the
preceding sentence in connection with negotiation with the Company;
preparation, execution, issuance, delivery, implementation and performance
of this Agreement, the Notes, the Guarantees, the Dealer Agreement, the
Issuing and Paying Agency Agreement, the Backup Line Letter Agreement
and any other documents or instruments contemplated in connection
herewith or therewith; and the investigation, preservation, exercise
and enforcement of any of its rights or remedies hereunder or
thereunder.
-4-
8. PAYMENT.
Except as the context otherwise requires or as otherwise expressly
provided herein, all payments to be made by the Company hereunder
shall be made to the Guarantor in such currency or currencies in
which the Guarantor shall have made or will make payments under or in
connection with any Guarantee, the Issuing and Paying Agency Agreement,
the Dealer Agreement, the Backup Line of Credit, the Backup Line Letter
Agreement or this Agreement to the account of the Guarantor, and about
which the Guarantor shall have notified the Company. All sums payable by
the Company hereunder shall be paid in full without set-off or
counterclaim and without deduction for any taxes, deductions, withholdings
or charges of any nature now or hereafter imposed by any taxing or other
authority whatsoever. If the Company shall at any time be compelled by
law to withhold or deduct such taxes, deductions, withholdings or charges
from any amounts payable to the Guarantor, the Company shall pay such
additional amount as shall be necessary to ensure that the Guarantor (after
payment of all such taxes, deductions, withholdings and charges) receives
a net amount equal to the full amount which the Guarantor would
have received had payment of any sums due and payable hereunder not
been subject to such taxes, deductions, withholdings or charges. The
Company shall promptly send to the Guarantor such documentary evidence
with respect to such payments as may be required from time to time by
the Guarantor.
9. FORBEARANCE OF NOTE ISSUANCE.
In the event that the Guarantor in its sole discretion requests
the Company to no longer issue Notes or to no longer affix the
Guarantor's endorsement to the Notes, the Company shall immediately
comply with such request until such time as the Guarantor may inform
the Company that it may resume such issuance or affixing. The Company
shall not issue any Notes, and shall cause Sakura Trust Company and
any other issuing agents not to complete, authenticate, issue or
deliver any Notes, including any Certificated Notes (as such term is
defined in the Issuing and Paying Agency Agreement), or process any
Issuance Instructions with respect to any Book-Entry Notes (as such
terms are defined in the Issuing and Paying Agency Agreement), and
shall not sell any Notes to any Dealer, if the issuance of such Notes
(including such Certificated Notes or Book-Entry Notes, as the case may
be) would cause the aggregate principal amount of Notes then outstanding
to exceed the amount of U.S. $400,000,000 less the amount of liability of
the Company then owed to the Guarantor under this Agreement.
10. RESORT TO BACKUP LINE OF CREDIT.
The Company acknowledges that it understands that the Guarantor
intends that the Backup Line of Credit is to be utilized solely as
a source of funding of final resort. Accordingly, the Company shall
not request resort to the Backup Line of Credit unless and until, in
its reasonable judgment exercised in good faith, the Company has used
its best efforts to secure funding in the marketplace to repay
outstanding Obligations, including efforts to issue additional
commercial
-5-
paper to repay such Obligations, and such efforts have not succeeded
to secure all necessary funding.
11. BENEFIT.
This Agreement shall be binding upon and shall inure to the benefit
of the parties and their respective legal representatives and
successors. Each party hereto may assign or delegate any of its rights or
obligations hereunder only with the prior written consent of the other
party.
12. MISCELLANEOUS.
(a) This Agreement constitutes a continuous undertaking of the
Company valid and in force and effect in respect of all its obligations
hereunder until the later of (i) payment in full by the Company of all of
the Obligations or (ii) full and complete discharge and satisfaction of
all of the Company's obligations hereunder.
(b) This Agreement shall be governed by and construed in accordance
with the laws of Japan. Each party agrees that any legal action or
proceeding with respect to this Agreement may be brought in the Tokyo
District Court and hereby accepts and consents to the non-exclusive
jurisdiction of such Court.
(c) All notices, demands, instructions and other communications
required or permitted to be given to or made upon any party hereto shall
be in writing and shall be personally delivered or sent by registered or
certified air mail, postage prepaid, return receipt requested, or by
Federal Express or other courier, with confirmed delivery, or by prepaid
telex, or by telecopier, and shall be deemed to be given for purposes of
this Agreement on the day that such writing is delivered to or received
by the intended recipient thereof in accordance with the provisions
hereof. Unless otherwise specified in a notice sent or delivered in
accordance with the foregoing provision, notices, demands, instructions
and other communications shall be given to or made upon the respective
parties hereto at their respective addresses (or to their respective
telex or telecopier) indicated below:
If to the Company:
The Southland Corporation
Cityplace Center East
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Treasurer and Legal Department
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Telex: 240859
Telecopier: (▇▇▇)▇▇▇-▇▇▇▇
-6-
If to the Guarantor:
Ito-Yokado Co., Ltd.
▇-▇, ▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ 105
Telephone: ▇▇-▇▇▇-▇▇▇▇
Telex: 23841
Telecopier: ▇▇-▇▇▇-▇▇▇▇
(d) The headings and captions herein are inserted for
convenience only and shall not affect the interpretation of this Agreement.
(e) This Agreement may be executed in any number of
counterparts, each of which shall be an original, and all of which
taken together shall constitute a single instrument. This Agreement
constitutes the entire agreement and understanding between the parties
hereto and supersedes any and all prior agreements and understandings,
oral or written, relating to the subject matter hereof.
In witness whereof the parties have caused this agreement to be
executed by their duly authorized representatives as of the date first
above written.
THE SOUTHLAND CORPORATION
----------------------
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Sr. Vice President
ITO-YOKADO CO., LTD.
------------------
By:
Title:
-7-
EXHIBIT 10.(i)(8) - 5
ITO-YOKADO CO., LTD.
1-4, SHIBAKOEN 4 CHOME MINATOKU, TOKYO 105
December 16, 1994
The Southland Corporation
Cityplace Center East
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Re: INDEMNITY AND REIMBURSEMENT AGREEMENT
Gentlemen:
Reference is made to the Indemnity and Reimbursement Agreement between
Ito-Yokado Co., Ltd. and The Southland Corporation dated as of August
17, 1992 (the "Agreement").
We have agreed that paragraph 2(a) of the Agreement is hereby amended
by deleting the last sentence thereof and replacing it with the
following sentence:
"Notwithstanding the foregoing, the Guarantor, hereby
acknowledgesand agrees that the indemnity or reimbursement
obligations set forth in this paragraph 2(a) are subject to the
provisions of the Credit Agreement dated as of July 31, 1987,
as amended and restated as of November 5, 1987, as further amended
and restated as of February 17, 1993, as further amended and restated
as of December 16, 1994 (as so amended and restated and as
further amended, restated, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among the Company, the
financial institutions from time to time party thereto at Senior
Lenders and Issuing Banks, Citicorp North America, Inc., as
Administrative Agent for the Senior Lenders and the Issuing Banks
and The Sakura Bank, Limited, New York Branch, as Co-Agent (such
Senior Lenders, Issuing Banks, Administrative Agent and Co-Agent
being referred to herein as the "Banks"), pursuant to which the
Company has agreed with the Banks that any such indemnity or
reimbursement obligations shall not be required or permitted
to be paid to the Guarantor other than (x) payments after the date
which is one year after payment in full in cash of the
"Obligations" and termination of the "Commitments" (in each case
as such terms are defined in the Credit Agreement) and (y) so
long as there does not exist an "Event of Default" or "Potential
Event of Default" and the "Revolving Loan Subfacility" (in each
case as such terms are defined in the Credit Agreement) does not
then equal zero, principal payments under clause (i) above made
solely with proceeds of subsequent issuances of Notes by the
Company."
The Southland Corporation
December 16, 1994
Page 2
If the foregoing is in accordance with your understanding of our
Agreement, please sign and return to us a counterpart hereof.
Very truly yours,
ITO-YOKADO CO., LTD.
By:____________________________________
Name:__________________________________
Title:_________________________________
CONFIRMED & ACCEPTED
as of the date first
above written
THE SOUTHLAND CORPORATION
By:___________________________________
Name:_________________________________
Title:________________________________
Tab 2
