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EXHIBIT 10.22
FIRST AMENDMENT TO DISTRIBUTION AGREEMENT
First Amendment to Distribution Agreement dated as of April 18, 1997 by
and between The TJX Companies, Inc., a Delaware corporation (f/k/a Zayre
Corp.)("TJX"), and Waban Inc., a Delaware corporation ("Waban"). TJX and Waban
are referred to collectively herein as the "Parties."
WHEREAS, the Parties are signatories to a Distribution Agreement dated
as of May 1, 1989 (the "Distribution Agreement") pursuant to which, among other
things, Waban agreed to indemnify TJX for certain Waban Liabilities.
WHEREAS, Waban has stated its intention of consummating a transaction
providing for (i) the transfer by Waban of the assets of its BJ's Wholesale Club
division to a newly-formed subsidiary, BJ's Wholesale Club, Inc. ("BJ's"), and
(ii) the subsequent transfer, through a special dividend (the "Distribution"),
of the stock of BJ's to the stockholders of Waban (the "Spinoff").
WHEREAS, the Parties desire to modify the Distribution Agreement to
reflect the change in circumstances caused by the consummation of the Spinoff.
Now, therefore, in consideration of the premises and the mutual
promises and covenants contained herein, the Parties agree as follows.
1. Definitions. Capitalized terms not defined herein shall have the
meanings ascribed to them in the Distribution Agreement. Any references to Waban
shall be construed to include HomeBase, Inc. on and after the date on which the
Distribution is made to the stockholders of Waban (the "Effective Date").
1.01 "BJ's" shall have the meaning set forth in the recitals hereof.
1.02 "BJ's Lease" shall mean any lease or sub-lease of property ever
used in connection with the Waban Businesses for which TJX or any Affiliate
thereof may be liable as a tenant, surety, sub-lessee or guarantor, other than
(i) a HomeBase Lease and (ii) the Xxx Xxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx lease,
to the extent (and only to the extent) provided in the letter, dated April 18,
1997, from Xxxx X. Xxxxxx, counsel for Waban, to Xxx X. Xxxxxxx, counsel for
TJX.
1.03 "Distribution Agreement" shall have the meaning set forth in
the recitals hereof.
1.04 "HomeBase Lease" shall mean any of the leases or sub-leases of
property listed on the Schedule of Leases for
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which TJX or any Affiliate thereof may be liable as a tenant, sub-lessee, surety
or guarantor.
1.05 "Indemnification Agreement" shall have the meaning set forth in
section 4.02 hereof.
1.06 "Parties" shall have the meaning set forth in the recitals
hereof.
1.07 "Schedule of Leases" shall mean the schedule of leases
initialed by the parties, provided as of the date hereof and setting forth the
HomeBase Leases.
1.08 "Spinoff" shall have the meaning set forth in the recitals
hereof.
1.09 "TJX" shall have the meaning set forth in the recitals hereof.
1.10 "Waban" shall have the meaning set forth in the recitals
hereof.
2. Covenants Regarding Extension or Renewal of HomeBase Leases. Waban
hereby covenants that it shall not increase the amount of base rent scheduled to
come due under, extend the term of, or exercise any option to renew or extend
any HomeBase Lease without first securing from the Person holding the landlord's
interest and from any mortgagee with respect to the HomeBase Lease in question
(if the consent of such Person or mortgagee is required to release any Liability
of TJX and its Affiliates on such HomeBase Lease), a full and complete release
of Liability of TJX and its Affiliates on any such HomeBase Lease, in a form
reasonably satisfactory to TJX. Waban shall not transfer or assign any HomeBase
Lease unless the transferee or assignee shall execute and deliver an agreement
to be bound by terms equivalent to the terms of this section 2 (which would also
condition subsequent transfers or assignments upon an equivalent transfer
restriction) and Waban will be liable to TJX for any breach thereof.
3. Reporting Obligations and Access to Information. Waban shall provide
TJX with 30 days prior written notice of its intention to extend or renew,
transfer or assign any HomeBase Lease, and Waban shall provide TJX with any
document (including releases) executed in satisfaction of Waban's obligations
under section 2 hereof. Moreover, Waban shall afford TJX and its authorized
accountants, counsel and other designated representatives reasonable access
(including using reasonable efforts to give access to third parties possessing
Information) and duplicating rights during normal business hours to Information
within Waban's possession relating to the HomeBase Leases insofar as such access
is reasonably required by TJX.
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4. Reaffirmation.
4.01 Each Party hereby acknowledges and represents to each other
that the Distribution Agreement is presently, and upon giving effect to this
First Amendment will be, valid and enforceable in accordance with its terms, not
subject to any defenses, counterclaims or right of set-off whatsoever.
4.02 Except as modified by this First Amendment, the Distribution
Agreement shall remain in full force and effect in accordance with its terms.
The fact that BJ's has entered into an Indemnification Agreement dated as of
April 18, 1997 (the "Indemnification Agreement") shall not be used as a defense
(other than as a defense of payment if and to the extent that BJ's has paid such
Liability to a TJX Indemnitee pursuant to the Indemnification Agreement) by
Waban to any claim of TJX against Waban.
5. No Third-Party Beneficiaries. This First Amendment shall not confer
any rights or remedies upon any Person other than the Parties and their
respective successors and assigns.
6. Entire Agreement. This First Amendment (including the documents
referred to herein) constitutes the entire agreement among the Parties and
supersedes any prior understandings and agreements (other than the Distribution
Agreement and any other agreement between the parties that expressly so
provides), by or among the Parties, written or oral, to the extent they related
in any way to the subject matter hereof.
7. Succession and Assignment. This First Amendment shall be binding
upon and inure to the benefit of the Parties and their respective successors and
assigns.
8. Counterparts. This First Amendment is an agreement under seal and
may be executed in one or more counterparts, each of which shall be deemed an
original but all of which together will constitute one and the same instrument.
9. Headings. The section headings contained in this First Amendment are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this First Amendment.
10. Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
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If to TJX:
The TJX Companies, Inc.
000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Telecopy No.: (508) 390-2457
Attention: General Counsel
Copy to:
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxx X. Xxxxxxx, Esq.
If to Waban:
Waban Inc.
Xxx Xxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopy No.: (508) 651-6251
Attention: Treasurer
Copy to:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Esq.
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
Party may change the address to which notices, requests, demands, claims, and
other communications hereunder are to be delivered by giving the other Party
notice in the manner herein set forth.
11. Governing Law. This First Amendment shall be governed by and
construed in accordance with the domestic laws of the Commonwealth of
Massachusetts without giving effect to any choice or conflict of law provision
or rule (whether of the Commonwealth of Massachusetts or any other jurisdiction)
that would cause the
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application of the laws of any jurisdiction other than the Commonwealth of
Massachusetts.
12. Amendments and Waivers. No amendment of any provision of this First
Amendment shall be valid unless the same shall be in writing and signed by TJX
and Waban. No waiver by any Party of any default or breach of covenant
hereunder, whether intentional or not, shall be deemed to extend to any prior or
subsequent default or breach of covenant hereunder or affect in any way any
rights arising by virtue of any prior or subsequent such occurrence.
13. Severability. Any term or provision of this First Amendment that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
14. Expenses. Each Party will bear his or its own costs and expenses
(including legal fees and expenses) incurred in connection with this First
Amendment.
15. Construction. The Parties have participated jointly in the
negotiation and drafting of this First Amendment. In the event an ambiguity or
question of intent or interpretation arises, this First Amendment shall be
construed as if drafted jointly by the Parties and no presumption or burden of
proof shall arise favoring or disfavoring any Party by virtue of the authorship
of any of the provisions of this First Amendment.
16. Specific Performance. Each Party acknowledges and agrees that the
other Party would be damaged irreparably in the event any of the provisions of
this First Amendment are not performed in accordance with their specific terms
or otherwise are breached. Accordingly, each Party agrees that the other Party
shall be entitled to an injunction or injunctions to prevent breaches of the
provisions of this Agreement and to enforce specifically this First Amendment
and the terms and provisions hereof in any action instituted in any court of the
United States or any state thereof having jurisdiction over the Parties and the
matter, in addition to any other remedy to which they may be entitled, at law or
in equity.
17. Modifications to Indemnification Rights. Sections 7.4.2, 7.4.3, and
7.4.4 of the Distribution Agreement shall not apply to Third Party Claims
against TJX arising out of, or in any way relating to, HomeBase Leases.
18. Indemnification Agreement. Waban shall cause BJ's to execute the
Indemnification Agreement in the form attached hereto as Exhibit "A".
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19. Spinoff. Waban hereby covenants that the Spinoff will only be
effected by the transfer of the assets of the BJ's Wholesale Club division to
BJ's, and not to any other person or entity.
20. Further Assurances. Each Party to this First Amendment shall
execute such documents and take such further actions as may be reasonably
required or desirable to carry out the provisions hereof and of the Distribution
Agreement.
21. Authority. The Parties hereto represent and warrant to each other
that the signatories to this First Amendment are authorized to execute this
First Amendment; that each has full power and authority to enter into this First
Amendment; that this First Amendment is duly executed and delivered, and
constitutes a valid, binding agreement in accordance with its terms.
22. Effective Date. This First Amendment, and all of the rights and
obligations of the Parties hereunder, shall become effective upon the Effective
Date, and if the Effective Date does not occur by December 31, 1997, this First
Amendment shall be null and void.
23. Waiver of Jury Trial. THE PARTIES HERETO EACH WAIVE THEIR
RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF OR RELATED TO THIS FIRST AMENDMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE
BROUGHT BY A PARTY AGAINST THE OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT
CLAIMS, TORT CLAIMS, OR OTHERWISE. THE PARTIES HERETO EACH AGREE THAT ANY SUCH
CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT
LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO
A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION 23 AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE
THE VALIDITY OR ENFORCEABILITY OF THIS FIRST AMENDMENT OR ANY PROVISION HEREOF.
THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS FIRST AMENDMENT.
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IN WITNESS WHEREOF, the Parties hereto have executed this First
Amendment as of the date first above written.
THE TJX COMPANIES, INC.
By: /s/ Xxxxxx Xxxxxxxx
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Title: Executive Vice President
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WABAN INC.
By: /s/ Xxxxxx Xxxxxxxxxx
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Title: Senior Vice President and CFO
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