Exhibit 99.3
EXECUTION COPY
December 31, 1997
SECURED TERM NOTE
Reference is made to the ISDA Master Agreement (as modified
by the Schedule thereto) executed by Xxxxxxxx and Xxxxxx (the
"Master Agreement") and dated as of November 19, 1997.
Capitalized terms used and not defined herein shall have the
meanings specified therefor in the Master Agreement.
Canadian Imperial Bank of Commerce (the "Lender"), New York
Agency, hereby agrees to lend to Xxxxxx Stores Liquidating Trust
("Borrower") an amount not exceeding $55,300,000 (the "Maximum
Loan Commitment Amount") on any Business Day (the "Draw Date")
occurring during the period (the "Commitment Period") beginning
on the date hereof (the "Commitment Start Date") and ending
September 3, 1999 (the "Commitment Termination Date"), or if the
Commitment Termination Date is not a Business Day, the next
succeeding Business Day. The Borrower may elect to borrow an
amount (the "Principal") up to the Maximum Loan Commitment Amount
by providing the Lender with a notice substantially in the form
of Exhibit A hereto (the "Draw Notice") not later than three (3)
Business Days prior to the Draw Date.
The Lender is only required to lend monies hereunder during
the Commitment Period and the Draw Date shall be the later of the
Draw Date specified on the Draw Notice or the date that is three
(3) Business Days after the Lender's actual receipt of the Draw
Notice.
Upon receipt of the Principal from the Lender, the Borrower
shall pay to the order of the Lender the Principal on December 3,
1999 (the "Maturity Date") and accrued and unpaid interest on the
Principal ("Interest," and together with the Principal, the
"Loan") on the Maturity Date and each 3rd day of each March,
June, September and December after the Draw Date and prior to the
Maturity Date (each such day, an "Interest Payment Date"),
beginning on the first Interest Payment Date immediately
following the Draw Date.
Interest shall accrue on the outstanding principal amount of
the Loan from the date hereof through and including the date the
Loan is paid in full (whether by acceleration, at stated maturity
or otherwise) at a floating rate per annum equal to three month
USD-LIBOR-BBA plus 0.35%, which rate shall be reset quarterly on
the relevant principal amount of the Loan on the basis of the
actual number of days elapsed during the relevant quarterly
period divided by 360. Accrued interest shall be compounded
quarterly and is payable quarterly on each Interest Payment Date
and on the Maturity Date in lawful money of the United States of
America, in same day funds, to Lender at the following account or
other such address as Lender may designate to Borrower in
writing: Chase Manhattan Bank N.Y. for the account of Canadian
Imperial Bank of Commerce, Toronto, Account Number 000-000-000,
ABA Number 000-000-000, Attention: Financial Products.
Principal shall be due and payable, not later than 12:00 noon
Eastern Time on the Maturity Date and shall be payable in lawful
money of the United States of America, in same day funds, to
Lender at the following account or other such address as Lender
may designate to Borrower in writing: Chase Manhattan Bank N.Y.
for the account of Canadian Imperial Bank of Commerce, Toronto,
Account Number 000-000-000, ABA Number 000-000-000, Attention:
Financial Products.
Whenever any payment to be made under this Note would be due
on a day which is not a Business Day such payment shall be made
on the next succeeding Business Day and such extension of time
shall in such case be included in the computation of interest.
As used herein "Business Day" means a day other than a Saturday
or Sunday or a day which is a public holiday or other day on
which banks in New York are required or authorized to remain
closed.
This Note is secured by the pledge of stock and the rights
of the Borrower under the Master Agreement, each as provided in
the Collateral Pledge Agreement dated as of December 31, 1997
between Borrower and Lender (the "Pledge Agreement").
This Note may not be prepaid.
Borrower represents and warrants as follows:
(a) Borrower is authorized and has the capacity to execute,
deliver and perform this Note.
(b) Xxxxxxxx's execution, delivery and performance of this
Note and the Pledge Agreement do not conflict with, or
constitute a breach of or default under, any provision of
any material agreement to which Borrower is a party or by
which Borrower is bound. Borrower is not in default under
any agreement to which it is a party or by which it is
bound, which default could have a material adverse effect on
Borrower.
(c) This Note and the Pledge Agreement constitute the
legal, valid and binding obligations of Borrower,
enforceable against Borrower in accordance with their
respective terms.
(d) There are no actions or proceedings pending by or
against Borrower before any court or administrative agency
in which an adverse decision could have a material adverse
effect on Borrower, its ability to perform its obligations
hereunder or under the Pledge Agreement or on the stock
pledged as collateral pursuant to the Pledge Agreement.
Borrower does not have any knowledge that any such actions
or proceedings are threatened.
(e) No representation, warranty or other statement made by
Borrower in any certificate or written statement furnished
to Lender (including with respect to any financial
information) contains any untrue statement of a material
fact or omits to state a material fact necessary in order to
make the statements contained in such certificates or
statements not misleading.
(f) None of the proceeds of the Loan will be used for the
purpose of purchasing or carrying "margin stock" within the
meaning of Regulation U of the Board of Governors of the
Federal Reserve Board.
Any one or more of the following events shall constitute an
"Acceleration Event" hereunder:
(a) Borrower shall fail to pay any amount when due
hereunder;
(b) Borrower shall fail to perform any obligation under
this Note or the Pledge Agreement or there is a Pledgor
Default under (and as defined in) the Pledge Agreement;
(c) An Event of Default or a Termination Event shall occur
under the Master Agreement or an Early Termination Date
shall be designated for any other reason under any
Confirmation executed by Borrower and Lender under the
Master Agreement;
(d) Borrower shall become insolvent, or generally fail to
pay its debts as such debts become due, or Borrower shall
admit in writing its inability to pay its debts generally,
or make a general assignment for the benefit of creditors,
or any proceeding shall be instituted by or against Borrower
seeking an order for relief or to adjudicate Borrower a
bankrupt or insolvent, or any other proceeding shall be
instituted with respect to Borrower under any law relating
to bankruptcy, insolvency or relief of debtors, or seeking
the appointment of a receiver, trustee or other similar
official for Borrower or any substantial part of Borrower's
property; or
(e) Any material misrepresentation or material misstatement
exists now or hereafter in any warranty or representation
set forth herein or in any certificate delivered to Lender
by Borrower.
Upon the occurrence of an Acceleration Event described in
paragraph (d) above, the Loan and all interest and other amounts
payable hereunder shall be forthwith due and payable and upon the
occurrence of any other Acceleration Event the Lender may,
without notice to Borrower, declare the Loan and all interest and
other amounts payable hereunder to be forthwith due and payable,
whereupon the Loan, all such interest and all such amounts shall
become and be due and payable.
Borrower waives presentment, demand, protest, notice of
protest, notice of dishonor, notice of nonpayment, and any and
all other notices and demands in connection with the delivery,
acceptance, performance, default or enforcement of this Note. No
delay by the Lender in exercising any power or right hereunder
shall operate as a waiver of any power or right.
Xxxxxxxx promises to pay on demand all costs and expenses,
including reasonable attorney's fees, incurred in the
preparation, collection and enforcement of this Note and the
Pledge Agreement.
Xxxxxxxx acknowledges and agrees that Xxxxxx may apply and
Set-Off against any amounts which Borrower may owe Lender
hereunder (whether in respect of principal, interest or
otherwise), any amounts that Lender may owe Borrower under the
Master Agreement (including any Transaction executed thereunder).
Xxxxxx acknowledges and agrees that Borrower may apply and Set-
Off against any amounts which Lender may owe Borrower under the
Master Agreement (including any Transaction executed thereunder)
any amounts that Borrower may owe Lender hereunder (whether in
respect of principal, interest or otherwise).
This Note shall be governed by and construed in accordance
with the laws of the State of New York.
XXXXXX STORES LIQUIDATING TRUST
By: /s/ Xxxxxxxxx X. Xxxxxx
Name: Xxxxxxxxx X. Xxxxxx
Title: Manager and Chief
Executive Officer
RECEIVED AND AGREED BY:
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Vice President
EXHIBIT A
Reference is made to the Secured Term Note (the "Note")
executed by Xxxxxx Xxxxxx Liquidating Trust ("Borrower") and
received and agreed to by Canadian Imperial Bank of Commerce, New
York Agency (the "Lender"), on December 31, 1997.
Pursuant to the terms of the Note, the Borrower hereby
exercises its right to receive from the Lender a loan in the
amount of $_____________________ (the "Principal") [Note: Amount
may not exceed the Maximum Loan Commitment Amount] on
________________________ (the "Draw Date"). We acknowledge and
agree that, upon receipt of the Principal, we will be required to
make the payments of principal and interest on the Loan (as
defined in the Note) in accordance with the terms of the Note.
We understand that the actual Draw Date shall be the
later of (i) the Draw Date requested above and (ii) the date
which is three (3) Business Days after the Lender's actual
receipt of this Draw Notice.
XXXXXX STORES LIQUIDATING TRUST
By:
Title:
