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EXHIBIT 10.09
AGREEMENT
AGREEMENT dated as of October 30, 1996 (this "Agreement") between
CANTRADE TRUST COMPANY LIMITED, in its capacity as trustee of The Carmel Trust,
a trust governed by the laws of Canada and established under a trust settlement
made August 17, 1977 ("Carmel"), and CSK AUTO, INC., an Arizona corporation
("CSK").
WHEREAS, CSK is a retailer of after-market automotive parts and
accessories and, as part of its expansion strategy, intends to relocate certain
of its existing stores and to open new stores; and
WHEREAS, CSK requires an entity or entities to purchase fee title to the
land required by such expansion strategy, and to finance the construction of
new and/or the renovation of existing stores and other improvements thereon,
and to lease such land and stores to CSK under operating leases; and
WHEREAS, Carmel is willing to cause its indirect subsidiary,
Transatlantic Finance, Ltd ("Transatlantic"), to cause one or more of its
affiliates (each a "Funding Company" and, collectively, the "Funding
Companies") to enter into agreements to invest in the acquisition and lease of
properties to CSK on a revolving basis in an aggregate amount outstanding at
any one time not to exceed $50,000,000 in accordance with the terms and
conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the parties hereto, CSK and
Carmel hereby agree as follows:
Capitalized terms used and not otherwise defined in this Agreement shall
have their respective meanings as defined in the form of lease agreement
attached hereto and made a part hereof as Exhibit A.
1. Land Purchases. (a) From time to time during the Funding Term
(as hereinafter defined), Carmel upon request by CSK shall cause Transatlantic
to cause a Funding Company to enter into contracts (each a "Contract") to
purchase fee title to parcel(s) of land (each parcel being "Land") for certain
purchase prices (each a "Purchase Price"), subject to the terms and conditions
of this Section 1. Each Contract and Purchase Price shall result from arms-
length negotiations between a Funding Company and the owner of the Land in
question. "Funding Term" means the period commencing on the date of this
Agreement and ending on the date that is the earliest of (i) April 30, 2004;
and, at (ii) the election of a Funding Company or CSK, (A) six (6) months after
the earlier of (1) the first public offering of any class of CSK's equity
securities (an "IPO") and (2) the material beneficial CSK Holdings, Ltd. and
the Purchaser therein (the "Stock Purchase Agreement"), provided that such
modification results in CSK's ability to fund the transactions contemplated by
this Agreement and (B) the date that the Original Investcorp Group (as
hereinafter defined) ceases to hold at least fifty percent (50%) of the shares
of voting stock of CSK Group, Ltd. held by such group on the date hereof; and
(iii) at the election of the Funding Companies, upon (A) the occurrence of any
default, beyond any applicable notice, grace or cure periods, by CSK with
respect to the payment of interest or principal under the Bank Facility,
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whether or not waived by the applicable lender, (B) the acceleration of the
Bank Facility, and (C) the occurrence under the Bank Facility of any of the
following events in connection with the curing of any default under such
facility: (x) an increase of the interest rate by one-half of one percent (
1/2%) or more (other than under the terms and provisions of the original Bank
Facility documents) or (y) the shortening of the maturity date by more than one
(1) year; and (iv) at the election of CSK with at least ninety (90) days prior
notice to the Funding Companies, any January 31, commencing on January 31,
1998. "Original Investcorp Group" shall have its meaning as defined in the
Stockholders' Agreement, dated as of October 30, 1996, among Carmel, CSK, CSK
Group, Ltd., CSK Holdings, Ltd. and the other shareholders that are signatories
thereto.
(b) A Funding Company shall be required to purchase a
particular parcel of Land if:
(i) (A) the Purchase Price for such Land and the total
cost of the proposed Project as set forth in the proposed Project Budget is
less than or equal to one hundred twenty percent (120%) of the average cost to
purchase and develop all of the real property that was purchased and fully
developed by CSK under sale-leaseback agreements, this Agreement or otherwise
during the then immediately preceding twelve (12) month period in the
Comparison Zone (as hereinafter defined), (B) the Purchase Price per square
foot for such Land is less than or equal to one hundred twenty percent (120%)
of the average per square foot purchase price previously paid by CSK for
comparable real property during the then immediately preceding twelve (12)
month period in the Comparison Zone, (C) the cost per square foot of the
proposed Project as set forth in the proposed Project Budget is less than or
equal to one hundred twenty percent (120%) of the average cost per square foot
previously paid by CSK for the construction of improvements on real property
owned by CSK during the then immediately preceding twelve (12) month period in
the Comparison Zone, (D) the Purchase Price for such Land is less than or equal
to the value set forth in the Appraisal (as hereinafter defined) of such Land,
and (E) the Purchase Price for such Land and the total cost of the proposed
Project as set forth in the proposed Project Budget is less than or equal to
the value set forth in the As Built Appraisal (as hereinafter defined) of such
Land with the proposed Project completed; "Comparison Zone" means: first, the
greater metropolitan market where such Land is located; second, if CSK has not
acquired any real property in such market, the region (defined as CSK uses such
term in the operation of the company) where such Land is located; and third, if
CSK has not acquired any real property in such region, those greater
metropolitan markets where CSK has acquired real property that have (y) per
square foot market prices for land and (z) per square foot construction costs
for buildings substantially similar to the type, size and quality of the
building contemplated by the proposed Project, that are substantially similar
to those of the greater metropolitan market where such Land is located,
(ii) (A) the square footage of the "footprint" of the
building contemplated by the proposed Project is less than or equal to twelve
thousand (12,000) square feet and greater than or equal to six thousand (6,000)
square feet, and (B) the size of such Land is less than or equal to fifty
thousand (50,000) square feet,
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(iii) (A) a Funding Company reasonably determines that
such Land is in a geographic location that would be acceptable to an
Institutional Investor (as hereinafter defined), without considering the
climate of the real estate market in general at such time or the geographic
concentration of CSK's then existing stores (by way of example and as a measure
against which to test whether such Land is acceptable, at least eighty percent
(80%) of the sites described on Schedule "A" annexed hereto would be so
acceptable to an Institutional Investor), and (B) such Land is zoned for
multiple uses and the proposed Project can be used for multiple purposes,
(iv) such Land is not subject to landmark, historic or
wetland designations, and is not located in an area identified by the Secretary
of Housing and Urban Development as an area having special flood hazards,
(v) a Funding Company reasonably determines that there
are no unusual or extraordinary circumstances involving or relating to, or
having an impact on, such Land which would make it imprudent to purchase such
Land, including (without limitation) being located near a dump site for
garbage, refuse, Hazardous Substances or other materials, or a nuclear or other
type of power plant,
(vi) (A) the Environmental Report (as hereinafter
defined) with respect to such Land evidences a state of affairs described in
clause (iv) of subsection (c) of this Section 1, and (B) such Land is in
compliance with all applicable Legal Requirements, (C) all licenses and
permits, and approvals of all governmental and quasi-governmental bodies and
agencies with respect to the proposed Project have been procured, and (D) such
Land has, or is zoned to have, at least five (5) parking spaces for every one
thousand (1,000) rentable square feet in the building to be constructed as part
of the Project on such Land,
(vii) (A) such Land is served by electric, gas, sewer,
water and all other utilities required for the use of the Premises (as
hereinafter defined) as contemplated by the respective Lease (as hereinafter
defined), and (B) such Land has direct access to all streets necessary to serve
the Premises for the use contemplated by the respective Lease, such streets
being completed and serviceable and dedicated and accepted by all applicable
governmental and quasi-governmental bodies and agencies,
(viii) (A) such Land does not have, and is not proposed to
have, a building that is "in line" in a shopping center as opposed to being
"out front on a major street," and (B) such Land is not subject to any
reciprocal easement agreements, unless such Land is a separate "pad" in a
shopping center,
(ix) such Land is not subject to any title exceptions
other than: (A) zoning and subdivision laws and regulations that are not
violated by the existing buildings and improvements erected thereon or that
will not be violated by the proposed Project, (B) consents for the erection of
any structures on, under or above the streets on which the Land abut, (C) real
estate taxes that are a lien, but not yet delinquent, (D) any grants prior to
the date of the respective Contract of licenses or easements for public
utilities that do not materially inhibit the proposed use of the Land as
contemplated by this Agreement or the respective Lease, (E) minor
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and immaterial tax map variations, (F) covenants, restrictions, easements and
reservations of record, if any, provided the same are not violated by the
existing buildings and improvements erected, or that will not be violated by
the proposed Project, on the Land, or their present or anticipated use, and (G)
any state of facts which an up-to-date survey of the Land would show, provided
such state of facts does not render title unmarketable or materially inhibit
the proposed use of the Land as contemplated by this Agreement or the
respective Lease, and
(x) (A) such Land is otherwise in compliance with all
of the terms and provisions of this Section 1, (B) all of the conditions
precedent to closing under the respective Contract have been satisfied, and (C)
all of the terms and conditions under the respective Lease to be satisfied by
the lessee as of the Interim Term Commencement Date thereunder have been
satisfied by CSK.
(c) Each request by CSK for a Funding Company to purchase Land
shall be accompanied by the following documents, each of which shall be, with
respect to such Land in question, up-to-date and otherwise in form, scope and
substance that are reasonably acceptable to a Funding Company, and prepared and
issued by people and/or entities that have been reasonably approved by a
Funding Company, and shall be prepared and issued at CSK's cost and expense:
(i) a title insurance report and commitment issued by a nationally recognized
title insurance company, with all recorded documents referenced therein annexed
thereto, (ii) a survey prepared by a licensed surveyor in accordance with the
then current Minimum Standard Detail Requirements and Classifications for
ALTA/ACSM Land Title Surveys as adopted by American Land Title Association and
American Congress on Surveying & Mapping, or such other standards as are
customary in the market in which the Land is located, provided that such other
standards, in a Funding Company's reasonable opinion, would be acceptable to an
Institutional Investor, (iii) an appraisal (without consideration of the
proposed Lease with respect to such Land, and without consideration for any
leases with respect to the comparable properties used in such appraisal)
prepared by a MAI appraiser (as qualified as set forth herein, an "Appraiser")
who shall have had at least ten (10) years' continuous experience in the
business of appraising commercial real estate in the city or town in which such
Land is located (each an "Appraisal"), which appraisal shall also, using such
standards and parameters set forth in this clause (iii), value such Land with
the proposed Project completed (each an "As Built Appraisal"), (iv) a phase I
environmental report, using a methodology and in scope, and prepared by an
environmental engineering firm, that is all reasonably acceptable to an
Institutional Investor and a Funding Company (each an "Environmental Report"),
showing that no Hazardous Substances are located on or adjacent to such Land in
violation of any Environmental Laws and that such Land conforms to all
applicable Environmental Laws, (v) the proposed Plans and Specifications for
the proposed Project, (vi) the proposed Project Budget, (vii) a demographics
report for the area surrounding such Land prepared by CSK setting forth sales
and other usual projections for the proposed store on such Land (each a
"Demographics Report"), (viii) a Secretary's Certificate of CSK certifying,
among other things, the approval of the Real Estate Committee of the Board of
Directors of CSK regarding CSK's request for a Funding Company to purchase such
Land, to fund the construction of the Project thereon, and to lease the same to
CSK pursuant to the terms and conditions of this Agreement, and (ix) such other
documents as a Funding Company reasonably determines may be requested by an
Institutional Investor.
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2. Lease; and Funding Company's Construction Funding. At the
closing of each Land purchase, a Funding Company, as landlord, and CSK, as
tenant, will enter into a triple net lease with respect to such Land, and the
buildings and improvements erected or to be erected thereon (such Land and the
buildings and improvements being hereinafter called the "Premises"),
substantially in the form of Exhibit "A" annexed hereto (each a "Lease" and,
collectively, the "Leases"). Among other things, each Lease shall provide for
(a) CSK's obligation, as a Funding Company's agent, to arrange for the
construction of the Project on the Land in question and (b) the Funding
Company's funding of the cost of such Project, which funding shall be subject
to the terms and conditions contained in this Agreement and the respective
Lease.
3. Funding Commitment; and Letter of Credit. Notwithstanding
anything to the contrary in this Agreement, any Lease, any Contract, or any
other document or agreement executed and delivered in connection with any of
the transactions contemplated herein:
(a) the aggregate amount funded, including without limitation
the use of any Backstop Amount, or any portion thereof, by all of the Funding
Companies for (i) all of the Purchase Prices, (ii) the construction of the
Projects on all of the Land purchased by the Funding Companies, (iii) real
estate taxes, assessments, water and sewer charges and all other expenses
arising out of the ownership or operation of each parcel of Land for the
respective periods commencing on the respective Interim Term Commencement Date
through the respective Basic Term Commencement Date (each a "Development
Period") and (iv) interest thereon during and as in effect on the first day of
the respective Development Periods at a rate per annum (the "Rate") equal to
The Chase Manhattan Bank, N.A. prime rate plus two (2%) percent (collectively,
the "Development Costs") shall not at any time exceed an amount equal to: (I)
$50,000,000, minus (II) the sum of (a) the aggregate Development Costs
previously paid under all of the Contracts and advanced under all of the Leases
during the Funding Term, which have not subsequently been repaid to the Funding
Companies in accordance with Section 5 of this Agreement, or replenished by the
Funding Companies' receipt of net proceeds from the sale or factoring of the
stream of rentals under any of the Leases, whether or not a Funding Company
remains the owner of the respective Premises, (b) the aggregate funds expended
by the Funding Companies under the self-help provisions of the Leases in order
to complete the construction of the Projects or otherwise and (c) the aggregate
amount which the Funding Companies deem necessary from time to time to complete
the construction of the Projects under the Leases, including (without
limitation) a reserve for interest (collectively, the "Funding Commitment");
and
(b) there shall be no obligation of any Funding Company to
advance any funds under the Funding Commitment to pay a Purchase Price for a
particular parcel of Land or to fund any costs for the construction of the
Project on such Land or any other Land on which construction of a Project has
not already commenced (i) unless CSK delivers to the Funding Company a schedule
that provides commercially reasonable evidence that the purchase of such Land
and the construction of such Project thereon will be completed on or before the
expiration of the Funding Term, (ii) in the case of a particular Purchase Price
or construction and/or renovation cost advance, if the same would exceed the
total amount of the Funding Commitment, (iii) if there is a default by CSK
under any of the Leases or any of the other Operative Documents, (iv) if there
is an uncured default by CSK under the Bank Facility, or the Series A CSK Notes
or the Series B CSK Notes (each as defined in the Stock Purchase Agreement), or
any high-yield
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subordinated debt substantially on the terms set forth on Exhibit E of the
Stock Purchase Agreement, whether or not such default is waived by the
applicable lender or holder thereof, and (v) if ten percent (10%) or more of
the Premises then owned by the Funding Companies from time to time, whether the
Projects thereon have been completed, are Non-Conforming Premises (as
hereinafter defined). Notwithstanding anything to the contrary in this
paragraph (b), the Funding Companies will continue to advance funds under the
Funding Commitment in accordance with the terms of this Agreement for the
completion of Projects for which actual construction has already commenced.
"Non-Conforming Premises" means any Premises where the actual costs for the
items set forth in its Project Budget exceeds the Project Budget by ten percent
(10%) or more; and
(c) on or before the first day of each and every month during
the Funding Term, the Funding Companies shall either (i) deliver to CSK a clean
irrevocable standby Letter of Credit (the "Letter of Credit") in an amount
equal to one hundred twenty percent (120%) of (A) the Revised Budgeted
Facilities Outstanding for the month in question, as the same may have been
further adjusted, less (B) the actual amount outstanding under the Funding
Commitment five (5) days prior to such month, or (ii) deposit, and cause to be
maintained, subject to the making of advances under the Funding Commitment
therefrom, the amount equal to clause (A) less clause (B) into a single purpose
account of one of the Funding Companies designated for this purpose; the amount
of any such Letter of Credit or deposit for a particular month being the
"Backstop Amount". The Backstop Amount shall be security for the Funding
Companies obligations to make advances under the Funding Commitment in
accordance with the terms and conditions of this Agreement, and shall be used
to make advances by the Funding Companies under this Agreement.
4. Funding Budget. CSK shall provide to the Funding Companies a
budget (a) on the date of this Agreement with respect to the period commencing
on such date and ending on the last day of its current fiscal year and (b) at
least sixty (60) days prior to the beginning of each fiscal year thereafter
with respect to such fiscal year, in each case indicating a good faith forecast
of the total amount of the Funding Commitment that it anticipates will be
outstanding during the period covered by such budget (each an "Original Annual
Budget"), which Original Annual Budget shall include a month by month breakdown
of such total amount (for each month, the "Original Budgeted Facilities
Outstanding"). At least fifteen (15) days prior to the first day of each and
every month during the Funding Term, CSK shall provide to the Funding Companies
a budget with respect to the immediately succeeding ninety (90) days (each a
"Rolling Quarterly Budget"), in each case adjusting (if necessary) each
Original Budgeted Facilities Outstanding during the period covered by such
Rolling Quarterly Budget; provided that (i) CSK may only adjust the Original
Budgeted Facilities Outstanding for the first and second months of such period,
as the same first appeared in a Rolling Quarterly Budget (each a "Revised
Budgeted Facilities Outstanding"), within a range (the "Range") from such
Revised Budgeted Facilities Outstanding having as its upper limit (i) the lower
of (A) one hundred twenty percent (120%) of such Revised Budgeted Facilities
Outstanding and (B) $4,000,000 in excess of such Revised Budgeted Facilities
Outstanding and having as its lower limit (ii) the higher of (A) eighty percent
(80%) of such Revised Budgeted Facilities Outstanding and (B) $4,000,000 less
than such Revised Budgeted Facilities Outstanding. In addition to such
adjustments under the Quarterly Rolling Budgets, CSK may increase any Original
Budgeted Facilities Outstanding or any Revised Budgeted Facility
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Outstanding within the Range (I) by up to $2,000,000 by giving a Funding
Company notice at least ten (10) days prior to the beginning of the month in
question and (II) by $2,000,000 or more by giving a Funding Company notice at
least thirty (30) days prior to the beginning of the month in question.
Notwithstanding anything to the contrary in this Section 4, the Original Budget
Facilities Outstanding for a particular month may never be increased to an
amount which is $10,000,000 over the highest Original Budgeted Facilities
Outstanding contained in the Original Annual Budget which includes the
particular month in question. The Funding Companies shall not be required to
fund any amounts in excess of the then unadvanced portion of the final budgeted
amount for the particular month in question. To the extent that CSK, on a
daily basis, calculated at the end of each day, uses less than the final
budgeted amount for a particular month, it shall owe the Funding Companies an
amount (the "Foregone Earnings") equal to the difference between the income
earned during such day by the Funding Companies on such final budgeted amount
not used by CSK and the income which would have been earned during such day had
such funds been invested throughout such day at the Rate. The sum of the
Foregone Earnings (if any) for a particular month shall be due and payable to
the Funding Company within ten (10) days after the close of the month in
question.
5. Exclusive Arrangement; Temporary Investment; and Resale of
Property. CSK hereby agrees to lease, relocate and develop all of its stores
pursuant to the terms and conditions of this Agreement, except (a) during any
period that the Funding Commitment is fully utilized, (b) for those specific
land purchases that a Funding Company rejects or otherwise does not close
pursuant to the terms and conditions of this Agreement and (c) for those stores
for which CSK, as lessee or sublessee, enters into leases or subleases,
respectively, directly with the owner or lessee, respectively, of the land in
question at the time CSK identified the same as a potential store location, or
with a Person under contract or holding an option to purchase the land in
question at such time as CSK identified such potential store location. CSK
acknowledges and agrees that the investments of the Funding Companies in the
Premises hereunder, and all of the related Leases entered into hereunder, are
intended as short term investments only, pending the sale of all of the
Premises (subject to the Leases) by the Funding Companies. The Funding
Companies have the exclusive right to sell each of the Premises for a period
commencing on the respective Interim Term Commencement Date and ending six (6)
months following the respective Basic Term Commencement Date (each an
"Exclusive Period"), such exclusivity with respect to a particular Premises
terminating at the end of the respective Exclusive Period; provided that such
exclusivity shall not be in effect during any period that there is $30,000,000
or more outstanding under the Funding Commitment. CSK agrees to give all leads
with respect to potential purchasers of the Premises during any Exclusive
Period to the Funding Companies and to use its best commercially reasonable
efforts to locate bona fide third party purchasers for each Premises that is
still owned by a Funding Company after the expiration of its Exclusive Period
on terms which are competitive with those available for similar transactions.
For a sale of a particular Premises after the Basic Term Commencement Date, CSK
hereby agrees to make those commercially reasonable changes to the respective
Lease for the respective Premises that may be required by any such third party
purchaser in order to make such Lease a so called "market lease" or as is
necessary to consummate such third party purchases, including, without
limitation, adjustments to Basic Rent and Additional Rent; provided that CSK
shall not be obligated to pay Basic Rent per annum in excess of the product of
(i) Development Costs for the Premises in question, and (ii) six percent
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(6%) over the thirty (30) year United States Treasury Xxxx rate in effect on
the Rate Determination Date. The sale price for each sale of a Premises to a
third party purchaser must be for at least an amount that is equal to the
Development Costs for the Premises in question.
6. Fees and Expenses. CSK shall pay to the Funding Companies on
demand all costs, expenses, fees and charges in connection with (a) reviewing,
processing, servicing, documenting and/or closing, as the case may be, each
parcel of Land proposed by CSK for purchase by a Funding Company, (b)
considering, making and/or administering each advance under the Funding
Commitment, (c) reviewing and monitoring, and/or otherwise in connection with,
the construction of each Project, and (d) the sale or transfer of any Premises
pursuant to Section 5 or otherwise, including, without limitation, the
reasonable fees and disbursements of the Funding Companies' attorneys and
construction managers, charges for Appraisals, fees and expenses relating to
examination of title, title insurance premiums, surveys, Environmental Reports
and Demographics Reports, documentary, transfer or other similar taxes and
revenue stamps, and all other costs, expenses, fees and charges which
Institutional Investors typically pass onto their borrowers; provided that CSK
shall not be obligated to pay the fees and disbursements of the Funding
Companies' architects, engineers and appraisers that review or otherwise
examine the Plans and Specifications, Appraisals, reports and other work
product of such professionals hired by CSK and approved by a Funding Company
pursuant to the terms and conditions of this Agreement.
7. Amendment and Modification. This Agreement may not be amended,
modified or changed except in a writing signed by the party against whom such
amendment, modification or the like is sought to be enforced. CSK and Carmel
hereby agree to amend this Agreement to the extent it becomes necessary to
either (a) conform the provisions that describe the mechanics and
administrative procedures of the transactions described herein to the actual
procedures which evolve as the transactions proceed or (b) satisfy the
reasonable requirements of investors which may take a participating interest or
otherwise invest in this transaction so as to conform the terms and conditions
of this Agreement to those generally required by major New York City
institutional lending and/or investment institutions (such as The Chase
Manhattan Bank, N.A.; each being an "Institutional Investor") for similar or
analogous transactions, including without limitation the provisions that
describe the mechanics and administrative procedures of the transactions
described in this Agreement; provided that the amendments contemplated by this
clause (b) shall not result in a material increase in costs or expenses to be
paid by CSK or any increase of CSK's economic obligations under this Agreement.
8. Waiver of Compliance; and Consents. Except as otherwise provided
in this Agreement, any failure of any of the parties to comply with any
obligation, covenant, agreement or condition herein may be waived by the party
entitled to the benefits thereof only by written instrument signed by the party
granting such waiver, but such waiver or failure to insist upon strict
compliance with such obligation, covenant, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any subsequent or other
failure. Whenever this Agreement requires or permits consent by or on behalf
of a party, such consent shall be given in writing in a manner consistent with
the requirements for a waiver of compliance as set forth in this Section 8.
9. Access to Premises and Records. At all reasonable times upon the
written request of a Funding Company and subject to confidentiality agreements
reasonably acceptable to CSK,
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CSK shall permit and shall cooperate in all respects with representatives
designated by a Funding Company, any proposed or actual investor in (whether
direct or indirect), assignee of or participant in this Agreement, and proposed
purchasers of any Premises to (a) have access to each of the Premises and the
books and records of CSK, (b) make copies of, or excerpts from, such books and
records and (c) discuss the accounts, assets, business, operations, properties
(including, without limitation, each of the Premises) or condition, financial
or otherwise, of CSK with their respective officers, directors, employees,
accountants, attorneys and agents so long as such representatives agree to be
bound by the terms and conditions of the respective confidentiality agreements.
Notwithstanding anything to the contrary in this Article 9, proposed purchasers
of less than ten (10) Premises shall only have access under clause (a) to the
specific Premises they propose to purchase, the books and records related to
such Premises and the financial information, reports and statements of CSK that
would be supplied or made available to such a purchaser as a lessor under a
Lease for such Premises in question.
10. Notices. Except as otherwise expressly provided, any notice,
request, demand or other communication permitted or required to be given under
this Agreement shall be in writing, shall be sent by one of the following means
to the addressee at the address designated by notice to the other parties,
effective upon actual receipt, and shall be deemed conclusively to have been
given: (a) on the first business day following the day timely deposited with
Federal Express (or other equivalent national overnight courier) or United
States Express Mail, with the cost of delivery prepaid or for the account of
the sender; (b) on the fifth business day following the day duly sent by
certified or registered United States mail, postage prepaid and return receipt
requested; or (c) when otherwise actually received by the addressee on a
business day (or on the next business day if received after the close of normal
business hours or on any non-business day).
11. Assignment. CSK shall not assign or in any manner transfer this
Agreement, including (without limitation) by operation of law, merger,
consolidation or other corporate action where the Original Investcorp Group
fails to continue to own at least fifty percent (50%) of the shares of voting
stock of CSK Group, Ltd. owned by such group on the date of this Agreement. It
shall be deemed an assignment or transfer of this Agreement if at any time the
Original Investcorp Group ceases to own fifty percent (50%) of the shares of
voting stock of CSK Group, Ltd. owned by such group on the date of this
Agreement. Carmel may transfer or assign up to $25,000,000 of its Funding
Commitment obligations under this Agreement or any interest therein, and, in
the case of any such assignment or transfer, Carmel shall only be released from
the portion of such obligations which is equal to the product of (a) the net
worth of the assignee or transferee, determined in accordance with GAAP, and
(b) twelve and one-half percent (12 1/2%); provided that such assignee or
transferee has total assets equal to or greater than eighty (80) times the
amount of the obligations proposed to be released. Each such release shall be
automatic and without the need for any action or consent by any party hereto.
If pursuant to the terms and conditions of this Agreement Carmel is released
from any of its obligations hereunder, CSK shall, after a written request by
Carmel, execute and deliver to Carmel a release from such obligations in form
and substance reasonably acceptable to Carmel. Furthermore, Carmel may assign,
transfer or sell participations up to an additional $15,000,000 of its Funding
Commitment obligations under this Agreement. Each assignee and transferee
shall have the right to further transfer or assign its interest. In no event
shall Carmel be released from liability hereunder with respect to such
$15,000,000. CSK agrees not to assert against any of such transferees,
assignees or participants
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any defense, claim, counterclaim or set-off that CSK may have against Carmel,
whether arising under this Agreement or otherwise; however, CSK may pursue any
of the same against Carmel. This Agreement shall be binding upon and inure to
the benefit of CSK and Carmel and their respective permitted successors and
assigns. Successors of Carmel shall include, without limitation, any person
acquiring, directly or indirectly, all or substantially all of the assets of
Carmel, whether by merger, consolidation, purchase, lease or otherwise, and
such successor shall thereafter be deemed "Carmel" for the purposes hereof.
12. Governing Law; and Service of Process. This Agreement shall be
governed by the laws of the State of New York applicable to agreements made and
to be performed entirely in New York, without regard to principles of conflicts
of law or choice of law. Carmel and CSK each irrevocably consents to the
jurisdiction and venue of any state or federal court situated in the City of
New York, waives any objection or defense to any such jurisdiction or venue as
an inconvenient forum, and consents to the service of any and all process in
any action or proceeding arising out of or relating to this Agreement by the
mailing of copies of such process to the other party at its address designated
by such party in accordance with Section 10.
13. Entire Agreement; and Counterparts. This Agreement embodies the
entire agreement and understanding of the parties hereto with respect to the
subject hereof. There are no restrictions, promises, representations,
warranties, covenants or undertakings other than those expressly set forth or
referred to herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such transactions. This
Agreement may have been executed in two or more counterpart copies of the
entire document or of signature pages to the document, each of which may be
executed by one or more of the parties hereto or thereto, but all of which,
when taken together, shall constitute a single agreement binding upon all of
the parties hereto or thereto, as applicable.
14. Section Headings. The descriptive headings herein are for
convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
CANTRADE TRUST COMPANY LIMITED,
IN ITS CAPACITY AS TRUSTEE OF THE CARMEL TRUST
By: /s/ XXXXXX XXXXX
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Xxxxxx Xxxxx
10
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CSK AUTO, INC.
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx Xxxxxx
Title: President
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