FUNDING ESCROW AGREEMENT
between
EDISON BROTHERS STORES, INC.,
EDISON BROTHERS APPAREL STORES, INC.
and
MERCANTILE TRUST COMPANY, N.A.,
as Escrow Agent
dated as of
September 26, 1997
TABLE OF CONTENTS
Page
1. DEFINITIONS 1
2. APPOINTMENT OF ESCROW AGENT. 5
2.1. Appointment and Acceptance
5
3. FUNDING ESCROW ASSETS DEPOSITED WITH AND DELIVERED TO THE ESCROW
AGENT 5
3.1.Deposit into Funding Escrow of Funding Escrow Initial
Cash 5
3.2. Deposit into Funding Escrow of Funding Escrow
Properties Conveyance Documents 5
3.3. No Other Deposits
6
3.4. Other Items
6
4. PURPOSE AND OPERATION OF FUNDING ESCROW 6
4.1. Purpose
6
4.2. Operation
6
4.3. Funding Escrow Mortgages
7
4.4.Return of Funding Escrow Assets and Release of Funding
Escrow Mortgages 8
5. OTHER PROVISIONS AFFECTING THE ESCROW AGENT 8
5.1. Fees
8
5.2. Indemnification
8
5.3. Authorized Representative of the Company and EBAS
9
5.4. Instructions
9
5.5. Other Protections
9
5.6. Distribution Records
10
6. TERM AND TERMINATION 10
6.1. Term
10
6.2. Effect of Termination
10
7. MISCELLANEOUS 10
7.1. Notices
10
7.2. No Third Party Beneficiaries
12
7.3. Entire Agreement; Modifications
12
7.4. Governing Law
13
7.5. Severability
13
7.6. Headings
13
7.7. Plurals
13
7.8. Counterparts
13
7.9. Assignability
14
Annexes
Annex A - Fees and expenses of the Escrow Agent
Annex B - Names, positions and specimen signatures of persons
authorized to act for Edison Brothers Stores, Inc. and
Edison Brothers Apparel Stores, Inc.
Exhibit
Exhibit A - Funding Escrow Mortgages
FUNDING ESCROW AGREEMENT
FUNDING ESCROW AGREEMENT (this Agreement ) dated as of September
26, 1997 (the Effective Date ) between Edison Brothers Stores, Inc., a
Delaware corporation (the Company ), Edison Brothers Apparel Stores, Inc.,
a Missouri corporation ( EBAS ), and Mercantile Trust Company, N.A., as
escrow agent (the Escrow Agent ).
R E C I T A L S
WHEREAS, the Debtors' Amended Joint Plan of Reorganization Under
Chapter 11 of the Bankruptcy Code dated June 30, 1997 has been confirmed by
order (the Confirmation Order ), entered September 9, 1997, of the United
States Bankruptcy Court for the District of Delaware (as so confirmed, the
Plan ); and
WHEREAS, the Company and EBAS desire to establish, pursuant to
Section 1123(b)(3)(B) of the Bankruptcy Code, the Funding Escrow for the
benefit of the Reorganized Debtors and holders of New Notes, as provided in
Section 5.2 of the Plan;
NOW THEREFORE, in consideration of the premises and mutual
covenants and agreements herein contained, the Company, EBAS and the Escrow
Agent hereby agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms have the
respective meanings set forth below:
Agreement shall have the meaning assigned to such term in the
introductory paragraph hereto.
Bankruptcy Code shall mean title 11 of the United States Code, as
amended from time to time.
Business Day shall mean any day that is not a Saturday or Sunday or
a day on which banks are required or permitted to be closed in the State of
New York or the State of Missouri.
Cash shall have the meaning assigned to such term in the Plan.
Cash Equivalents shall mean:
(i) direct obligations of, and obligations fully guaranteed as to the
full and timely payment of principal and interest, if any, by, the United
States of America;
(ii) demand deposits, time deposits or certificates of deposit of any
depository institution or trust company incorporated under the laws of the
United States of America or any State thereof (or any domestic branch of a
foreign bank) and subject to supervision and examination by Federal or
State banking or depository institution authorities; provided, however,
that, at the time of the investment therein, the commercial paper or other
short-term unsecured debt obligations (other than such obligations the
rating of which is based on the credit of a person other than such
depository institution or trust company) thereof shall be rated A-1 by
Standard & Poor's or P-1 by Moody's;
(iii) commercial paper that, at the time of the investment
therein, is rated A-1 by Standard & Poor's or P-1 by Moody's;
(iv) bankers' acceptances issued by any depository institution or
trust company referred to in clause (ii) above;
(v) repurchase obligations with respect to any security that is a
direct obligation of, or fully guaranteed as to the full and timely payment
of principal and interest, if any, by, the United States of America or any
agency or instrumentality thereof the obligations of which are backed by
the full faith and credit of the United States of America, in either case
entered into with (A) a depository institution or trust company (acting as
principal) described in clause (ii) above or (B) a depository institution
or trust company whose commercial paper or other short term unsecured debt
obligations are rated A-1 by Standard & Poor's or P-1 by Moody's and
long term unsecured debt obligations are rated AAA by Standard & Poor's
or Aaa by Moody's; and
(vi) money market mutual funds registered under the Investment Company
Act of 1940, as amended, which invest solely in securities referred to in
clauses (i) through (v) above, have a rating, at the time of such
investment, from either Standard & Poor's or Moody's in the highest
investment category granted thereby and seek to maintain a net asset value
of $1.00 per unit (including funds for which the Indenture Trustee, the
Escrow Agent or any of their respective affiliates is investment manager or
advisor).
Company shall have the meaning assigned to such term in the
introductory paragraph hereto.
Confirmation Order shall have the meaning assigned to such term in
the recitals hereto.
Debtors shall mean, collectively, the Company, Edison Brothers
Apparel Stores, Inc., Edison Brothers Shoe Stores, Inc., Edison Paymaster,
Inc., Edison Brothers Redevelopment Corporation, Edbro Missouri Realty
Company, Inc., Edison Alabama Stores, Inc., Edison Arkansas Stores, Inc.,
Edison Colorado Stores, Inc., Edison Brothers Company, Edison Hawaii
Stores, Inc., Edison Illinois Stores, Inc., Edison Kansas Stores, Inc.,
Edison Kentucky Stores, Inc., Edison Louisiana Stores, Inc., Edison
Maryland Stores, Inc., Edison Massachusetts Stores, Inc., Edison Michigan
Stores, Inc., Edison Minnesota Stores, Inc., Edison Mississippi Stores,
Inc., Edison Nebraska Stores, Inc., Edison New Jersey Stores, Inc., Edison
New Mexico Stores, Inc., Edison New York Stores, Inc., Edison Ohio Stores,
Inc., Edison Oklahoma Stores, Inc., Edison Oregon Stores, Inc., Edison
Pennsylvania Stores, Inc., Edison Tennessee Stores, Inc., Edison Texas
Stores, Inc., Edison Utah Stores, Inc., Edbro Ohio Realty, Inc., EBSS-
Montana, Inc., EBSS-North Central, Inc., EBSS-Indiana, Inc., EBSS-Iowa,
Inc., EBSS-Kansas, Inc., EBSS-Wisconsin, Inc., EBSS-Northeast, Inc., EBSS-
South, Inc., EBSS-Mideast, Inc., EBSS-Michigan, Inc., EBSS-East, Inc., EBSS-
Ohio, Inc., EBSS-Pennsylvania, Inc., EBSS-Texas, Inc., EBSS-West, Inc.,
Edison Puerto Rico Stores, Inc., Ebscat, Inc., Edison Brothers Mall
Entertainment, Inc., Horizon Entertainment, Inc., Edison Brothers Stores
International, Inc., Edisur, Inc., EBS Holdings Corp., Xxxxxx Xxxxxxxx
Warehouse, Inc., Edbro California USG -- 2, Inc., Edbro Missouri USG -- 2,
Inc., Edbro California USG -- 1, Inc., Industrial Design, Inc., Xxxxxxx
Clothes, Inc., Z&Z Fashions, Ltd., Xxxxxxx-Rossville, Inc., Time-Out Family
Amusement Centers, Inc., Tofac of Puerto Rico, Inc., Sacha Shoes Ltd. and
Xxxxxx'x of California.
EBAS shall have the meaning assigned to such term in the
introductory paragraph hereto.
Effective Date shall have the meaning assigned to such term in the
introductory paragraph hereto.
Escrow Agent shall have the meaning assigned to such term in the
introductory paragraph hereto.
Funding Escrow shall mean the escrow of the Funding Escrow Assets by
the Company and EBAS with the Escrow Agent created, established and
governed by this Agreement.
Funding Escrow Assets shall mean, collectively, (1) the Funding
Escrow Initial Cash deposited by the Company with the Escrow Agent
hereunder on the Effective Date, (2) the Funding Escrow Properties
Conveyance Documents deposited by the Company and EBAS with the Escrow
Agent hereunder on the Effective Date, and (3) anything deposited in or
transferred to or earned by the Funding Escrow on or after the Effective
Date (including Funding Escrow Cash).
Funding Escrow Cash shall have the meaning assigned to such term in
Section 3.1 hereof.
Funding Escrow Initial Cash shall have the meaning assigned to such
term in Section 3.1 hereof.
Funding Escrow Mortgages shall mean the mortgages on the Funding
Escrow Properties in substantially the form attached hereto as Exhibit A,
as such form may be required to be modified to comply with applicable state
law.
Funding Escrow Properties shall mean the following properties owned
by the Debtors: (1) that certain parcel of land containing a five-story
building plus basement comprising the whole of Block 282 of the City of St.
Louis located at 0000 Xxxxx Xxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx; (2) that
certain parcel of land containing a four-story building plus basement
located in Xxxx County, Illinois at 000-000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx; (3) that certain parcel of land containing approximately 15.02
acres together with a building thereon containing approximately 309,444
square feet of ground floor space with accompanying parking facility and
truck areas located at 0000 Xxxxxxx Xxxx, Xxxx, Xxxxxxx; and (4) that
certain parcel of land in Princeton, Potaka County, Indiana, containing
approximately 41.19 acres together with a building thereon containing
approximately 369,000 square feet of ground floor space with accompanying
parking facility and truck areas located at U.S. 41 and Xxxxxxx 000,
Xxxxxxxxx, Xxxxxxx.
Funding Escrow Properties Conveyance Documents shall mean the
original deed (or a certified copy thereof) to each of the Funding Escrow
Properties.
Funding Escrow Trust Account shall have the meaning assigned to such
term in Section 3.1 hereof.
Indenture Trustee shall mean the Trustee under the New Notes
Indentures.
New Notes shall have the meaning assigned to such term in the Plan.
New Notes Indentures shall have the meaning assigned to such term in
the Plan.
Officer's Certificate shall mean a certificate of the Company and
EBAS signed by one of the authorized Company and EBAS officers listed on
Annex B attached hereto, as the same may be supplemented or modified
pursuant to Section 5.3 hereof.
Plan shall have the meaning assigned to such term in the recitals
hereto.
Reorganized Debtors shall have the meaning assigned to such term in
the Plan.
Termination Date shall have the meaning assigned to such term in
Section 6.1 hereof.
2. APPOINTMENT OF ESCROW AGENT.
2.1. Appointment and Acceptance. The Company and EBAS hereby appoint
the Escrow Agent to act as agent for the Company and EBAS in accordance
with the instructions set forth in this Agreement, and the Escrow Agent
hereby accepts such appointment.
3. FUNDING ESCROW ASSETS DEPOSITED WITH AND DELIVERED TO THE ESCROW
AGENT.
3.1. Deposit into Funding Escrow of Funding Escrow Initial Cash.
Pursuant to the Plan, on the Effective Date, the Company shall deposit (or
cause to be deposited) with the Escrow Agent, as part of the Funding
Escrow, by wire transfer of immediately available funds (to Mercantile Bank
of St. Louis, N.A.; ABA No. 000000000; Credit Account No. 476740-0172;
Attn: Xxxx X. Xxxxxx; For further credit to Account No. 00000000), Cash in
the amount of $17,624,076 (the Funding Escrow Initial Cash ). The Escrow
Agent shall hold the Funding Escrow Initial Cash and all other Cash or
other funds contained from time to time in the Funding Escrow, whether
derived from new deposits therein pursuant to the terms of this Agreement,
investment earnings on the amounts therein or otherwise (the Funding Escrow
Initial Cash and all such other Cash and funds, collectively, the Funding
Escrow Cash ) in a separate trust account (the Funding Escrow Trust
Account ) in its name for the benefit of the Reorganized Debtors and
holders of New Notes hereunder, previously established by it for such
purpose, until withdrawn for distribution in accordance with the terms of
this Agreement. The Escrow Agent shall invest the Funding Escrow Cash in
such Cash Equivalents as the Escrow Agent shall be directed from time to
time by the Company. All risk of loss on the Funding Escrow Cash so
invested shall be at the risk of the Company. The Company shall be
responsible for the payment of all taxes and the filing of all returns in
respect of any earnings on such Funding Escrow Cash.
3.2. Deposit into Funding Escrow of Funding Escrow Properties
Conveyance Documents. Pursuant to the Plan, on the Effective Date, the
Company and EBAS shall deposit (or cause to be deposited) with the Escrow
Agent, as part of the Funding Escrow, the Funding Escrow Properties
Conveyance Documents (except with respect to those Funding Escrow
Properties as to which the Debtors have, prior to the Effective Date,
entered into a contract to sell, sell and lease back or otherwise dispose
of). The Escrow Agent shall hold the Funding Escrow Properties Conveyance
Documents in the Funding Escrow, until returned to the Company or EBAS,
including for execution and delivery in connection with a sale, sale and
lease back or other disposition of the Funding Escrow Properties, in each
case in accordance with the terms of this Agreement.
3.3. No Other Deposits. Neither the Company nor EBAS has any
obligation to deposit with or transfer to the Escrow Agent any assets or
properties other than as set forth in Sections 3.1 and 3.2 hereof.
3.4. Other Items. The Company has delivered (or will shortly
hereafter deliver) to the Escrow Agent photocopies of the following
documents:
(1) the Debtors' Joint Disclosure Statement Pursuant
to Section 1125 of the Bankruptcy Code dated June 30, 1997
pertaining to the Plan;
(2) the Plan; and
(3) the Confirmation Order.
4. PURPOSE AND OPERATION OF FUNDING ESCROW.
4.1. Purpose. The purpose of the Funding Escrow shall be to prefund
the interest payments required to be paid by the Company under the terms of
the New Notes through and including July 31, 2000.
4.2. Operation. The Company shall have the right in its sole
discretion to, at any time and from time to time, pursuant to an Officer's
Certificate (which the Escrow Agent shall comply with):
(1) Transfer Funding Escrow Cash. Direct the Escrow Agent to
transfer to the Company or the Indenture Trustee for the benefit of the
holders of the New Notes in immediately available funds those amounts of
Funding Escrow Cash necessary to timely pay the interest payments required
to be paid by the Company under the terms of the New Notes through and
including July 31, 2000; provided, however, that after the occurrence and
during the continuation of an Event of Default under the New Notes
Indentures caused by the failure of the Company to pay interest on the New
Notes under the terms thereof through and including July 31, 2000, the
Escrow Agent shall, upon the written direction of the Indenture Trustee,
promptly distribute to the Indenture Trustee, for the benefit of the
holders of the New Notes, that amount of Funding Escrow Cash equal to the
lesser of (1) the interest payments required to be paid by the Company
under the terms of the New Notes through and including July 31, 2000 that
are then due and payable and (2) such Funding Escrow Cash;
(2) Dispose of Funding Escrow Properties. Direct the Escrow
Agent to deliver to the Company or EBAS any or all of the Funding Escrow
Properties Conveyance Documents and to release the related Funding Escrow
Mortgages to enable the Company or EBAS to sell, sell and lease back or
otherwise dispose of, on the terms established by the Company, any or all
of the Funding Escrow Properties; provided that the proceeds therefrom (net
of taxes, expenses and other costs) shall be transferred to the Escrow
Agent and the Escrow Agent shall deposit such proceeds in the Funding
Escrow (the Company and EBAS shall pay the taxes relating to and operating
costs of the Funding Escrow Properties, unless and until the Funding Escrow
Properties are sold, sold and leased back or otherwise disposed of);
(3) Use Funding Escrow Properties. Use the Funding Escrow
Properties for any purpose whatsoever for no cost or charge whatsoever at
all times during the existence of the Funding Escrow, unless and until such
Funding Escrow Properties so used are sold, sold and leased back or
otherwise disposed of pursuant to this Agreement; and
(4) Substitution. Substitute for all of the Funding Escrow
Properties Conveyance Documents and the Funding Escrow Mortgages applicable
to the Funding Escrow Properties in the Funding Escrow an amount of Cash
equal to $12,375,924 (in which case all Funding Escrow Mortgages shall be
released by the Escrow Agent); provided however, that if the Debtors have,
prior to the Effective Date, entered into a contract to sell, sell and
lease back or otherwise dispose of one or more of the Funding Escrow
Properties, the Cash proceeds thereof (or, if such Cash proceeds have not
been received prior to the Effective Date, the right to receive such Cash
proceeds) shall be transferred into the Funding Escrow and the $12,375,924
otherwise required for such substitution shall be reduced by an amount
equal to such proceeds.
4.3. Funding Escrow Mortgages. To secure the Company's interest
payment obligations under the terms of the New Notes through and including
July 31, 2000, the Company and EBAS shall grant to the Escrow Agent a
security interest in the Funding Escrow Properties pursuant to the Funding
Escrow Mortgages; provided, however, that if the Debtors have, prior to the
Effective Date, entered into a contract to sell, sell and lease back or
otherwise dispose of, one or more of the Funding Escrow Properties, no
Funding Escrow Mortgage shall be granted on any such Funding Escrow
Property; and provided further that, if such a sale, sale and lease back or
other disposition is not consummated within 60 days after the Effective
Date, such a Funding Escrow Mortgage shall be granted. Upon the
consummation by the Company or EBAS of a sale, sale and lease back or other
disposition of one or more of the Funding Escrow Properties, the related
Funding Escrow Mortgage shall be released. If the Escrow Agent forecloses
upon any of the Funding Escrow Properties under the terms of the Funding
Escrow Mortgages, the Escrow Agent shall promptly thereafter distribute to
the Indenture Trustee, for the benefit of the holders of the New Notes
under the New Notes Indentures, that amount of any Cash proceeds resulting
therefrom (net of all reasonable costs of and expenses incurred by the
Escrow Agent in connection therewith) equal to the lesser of (1) the
interest payments required to be paid by the Company under the terms of the
New Notes through and including July 31, 2000 that are then due and payable
and (2) such Cash proceeds. The maximum amount to be secured by the
Funding Escrow Mortgages shall not exceed in the aggregate $21,975,924.
4.4. Return of Funding Escrow Assets and Release of Funding Escrow
Mortgages. If all interest payments required to be paid by the Company
under the terms of the New Notes through and including July 31, 2000 have
been so paid by the Company, then (1) all Funding Escrow Assets remaining
after such payment shall be returned to the Company by the Escrow Agent,
free and clear of all claims, liens, encumbrances and contractually imposed
restrictions arising under or related to this Agreement and the Plan and
any documents or instruments relating thereto (including the release of the
related Funding Escrow Mortgages), as instructed by the Company, and (2)
the Escrow Agent shall release all Funding Escrow Mortgages.
5. OTHER PROVISIONS AFFECTING THE ESCROW AGENT.
5.1. Fees. For the Escrow Agent's services hereunder, the Company
shall pay the Escrow Agent the fees and shall reimburse the Escrow Agent
the expenses set forth on Annex A attached hereto.
5.2. Indemnification. The Company covenants and agrees to indemnify
the Escrow Agent and to hold the Escrow Agent harmless against any and all
losses, liabilities, costs, claims, damages or expenses, including
judgments, costs and reasonable attorney's fees, for anything done or
omitted by the Escrow Agent in the execution of the Escrow Agent's duties
and powers hereunder, except losses, liabilities, costs, claims, damages or
expenses incurred as a result of negligence, willful misconduct or bad
faith on the part of the Escrow Agent. With respect to any and all losses,
liabilities, costs, claims, damages or expenses, including judgments, costs
and reasonable attorney's fees, that may be incurred by the Company or any
of its subsidiaries or, to the extent not one of such subsidiaries, any of
the Reorganized Debtors, or any of their respective officers, directors or
employees, related to, arising out of or in connection with this Agreement
and the transactions contemplated hereby, the Funding Escrow Assets shall
be used, if so directed by the Company, to indemnify the Company and such
subsidiaries, Reorganized Debtors, officers, directors or employees
therefrom, except with respect to losses, liabilities, costs, claims,
damages or expenses incurred as a result of negligence, willful misconduct
or bad faith on the part of the Company or such subsidiaries, Reorganized
Debtors, officers, directors or employees, as the case may be.
5.3. Authorized Representative of the Company and EBAS. Set forth on
Annex B hereto is a list of the names, positions and specimen signatures of
the persons authorized to act for the Company and EBAS under this
Agreement. The Secretary or any Assistant Secretary of the Company and
EBAS shall, from time to time, if requested by the Escrow Agent, certify to
the Escrow Agent the names and signatures of any other persons authorized
to act for the Company and EBAS under this Agreement.
5.4. Instructions. Any instructions given to the Escrow Agent orally,
as permitted by any provision of this Agreement, shall be confirmed in
writing by the Company as soon as practicable.
5.5. Other Protections. As Escrow Agent for the Company hereunder,
the Escrow Agent:
(1) shall have no duties or obligations other than those specifically
set forth herein or in a written supplement hereto or amendment hereof
executed and delivered by the Company, EBAS and the Escrow Agent;
(2) shall not be obligated to take any legal action hereunder which
might, in the Escrow Agent's reasonable judgment and after consultation
with the Company, involve any expense or liability unless the Escrow Agent
has been furnished with reasonable indemnity;
(3) may rely on and be fully protected in acting upon any
certificate, instrument, opinion, notice, letter, telegram or other
document or security delivered to the Escrow Agent and reasonably believed
by the Escrow Agent to be genuine and correct and to have been signed by
the proper party or parties, and may take the statements made therein as
correct without any affirmative duty of investigation;
(4) shall not be liable for any recital or statement contained in any
documents other than those prepared by or on behalf of the Escrow Agent or
the Escrow Agent's counsel;
(5) shall not be responsible for any failure on the part of the
Company or EBAS to comply with any of its covenants and obligations
contained in the Plan;
(6) may rely on, and shall be protected in acting upon, the written
or oral (unless expressly required to be in writing hereunder) instructions
of the Company (and telephone instructions reasonably believed by the
Escrow Agent to be instructions of the Company) with respect to the Escrow
Agent's duties hereunder, and shall not be liable for any action taken,
suffered or omitted by the Escrow Agent hereunder, in accordance with any
such instructions; and
(7) may consult with counsel satisfactory to the Escrow Agent, and
the opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by the
Escrow Agent hereunder in good faith and in accordance with such opinion of
counsel.
5.6. Distribution Records. The Escrow Agent shall maintain a written
record of all distributions made by it hereunder and shall deliver to the
Company, as soon as practicable but in no event later than two Business
Days after request therefor by the Company, a complete copy of such
records.
6. TERM AND TERMINATION.
6.1. Term. This Agreement shall commence on the Effective Date and
shall remain in full force and effect until the Termination Date. As used
in this Agreement, the term Termination Date shall mean 30 days after the
date on which there are no longer any Funding Escrow Assets in the Funding
Escrow.
6.2. Effect of Termination. From and after the Termination Date, the
respective rights and duties of the Company, EBAS and the Escrow Agent
under this Agreement shall cease, provided that, notwithstanding anything
to the contrary set forth in this Agreement, Sections 5.1 and 5.2 hereof
shall survive any termination of this Agreement.
7. MISCELLANEOUS.
7.1. Notices. Any request, notice, direction, authorization, consent,
waiver, demand or other communication permitted or authorized by this
Agreement to be made upon, given or furnished to or filed with the Company,
EBAS or the Escrow Agent by the other party hereto shall be sufficient for
every purpose hereunder if in writing (including telecopy communication)
and telecopied or delivered by hand (including by courier service) or sent
by registered or certified mail, return receipt requested and postage
prepaid, as follows:
(1) If to the Company, to it at:
Edison Brothers Stores, Inc.
000 Xxxxx Xxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
or
(2) If to EBAS, to it at:
Edison Brothers Apparel Stores, Inc.
000 Xxxxx Xxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
or
(3) If to the Escrow Agent, to it at:
Mercantile Trust Company, N.A.
P. O. Xxx 000
Xxxx 00-0
Xx. Xxxxx, Xxxxxxxx 00000-0000
Attention: Xxxx Xxxxxx, Vice President
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Senior Attorney-Trust
Mercantile Bancorporation Inc.
One Mercantile Center
7th and Washington
Tram 00-0
Xx. Xxxxx, Xxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
or, in either case, such other address as shall have been set forth in a
notice delivered in accordance with this Section 7.1. All such
communications shall, when so telecopied or delivered by hand or sent by
registered or certified mail, be effective when telecopied with
confirmation of receipt or received by the addressee or three Business Days
after deposit in the United States mail, respectively. Any person that
telecopies any communication hereunder to any person shall, on the same
date as such telecopy is transmitted, also send, by first class mail,
postage prepaid and addressed to such person as specified above, an
original copy of the communication so transmitted. A copy of any notice
provided by one party to the other party hereunder shall also be provided
by the party providing such notice to the Indenture Trustee at the address
thereof set forth in the New Notes Indenture.
7.2. No Third Party Beneficiaries. This Agreement is for the benefit
of the parties hereto and nothing contained herein shall be construed to
give any third party any benefits or right hereunder, except that the
Indenture Trustee shall be a third-party beneficiary of this Agreement.
7.3. Entire Agreement; Modifications. This Agreement sets forth the
entire agreement of the parties hereto as to the subject matter hereof and
supersedes all previous agreements of the parties hereto with respect
thereto, whether written, oral or otherwise. This Agreement may not be
changed, modified or altered except by an agreement in writing executed and
delivered on behalf of the Company, EBAS and the Escrow Agent.
7.4. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without regard to the
provisions thereof relating to conflict of laws.
7.5. Severability. If any provision of this Agreement is prohibited
by law or otherwise determined to be invalid or unenforceable by a court of
competent jurisdiction, such prohibition shall not affect the validity of
the remaining provisions of this Agreement.
7.6. Headings. The descriptive headings of the several Articles and
Sections of this Agreement are inserted for convenience and shall not
control or affect the meaning or construction of any of the provisions
hereof.
7.7. Plurals. Whenever the context herein may require, the singular
form of nouns, pronouns and verbs shall include the plural and vice versa.
7.8. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall for all purposes be deemed to be an
original, and all such counterparts shall together constitute but one and
the same instrument.
7.9. Assignability. This Agreement may not be assigned by the Escrow
Agent without the prior written consent of the Company.
IN WITNESS WHEREOF, the Company, EBAS and the Escrow Agent have
caused this Agreement to be duly executed and delivered as of the day and
year first above written.
EDISON BROTHERS STORES, INC.
By:
Name: Xxxxx X. Xxxxxx, Xx.
Title: Executive Vice President and
Chief Financial Officer
EDISON BROTHERS APPAREL STORES, INC.
By:
Name: Xxxxx X. Xxxxxx, Xx.
Title: Vice President and Treasurer
MERCANTILE TRUST COMPANY, N.A.,
as Escrow Agent
By:
Name:
Title:
Annex A
Company/Escrow Agent Fee Agreement
Annex B
Names, positions and specimen signatures
of persons authorized to act for
Edison Brothers Stores, Inc.
Name and Position Specimen Signature
Xxxxx X. Xxxxxx, Xx.
Executive Vice President
and Chief Financial Officer
Xxxx X. Xxxxx,
Executive Vice President
General Counsel and Secretary
Names, positions and specimen signatures
of persons authorized to act for
Edison Brothers Apparel Stores, Inc.
Name and Position Specimen Signature
Xxxxx X. Xxxxxx, Xx.
Vice President and Treasurer
Xxxx X. Xxxxx,
Vice President and Secretary
Exhibit A
Funding Escrow Mortgages
