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Exhibit 10(a)(vi)
EXECUTION COPY
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PARENT UNDERTAKING AGREEMENT
Dated as of December 30, 1997
among
THE XXXXX-XXXXXXX STORES CORP.
AS PARENT
and
BANKERS TRUST COMPANY
AS TRUSTEE
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TABLE OF CONTENTS
PRELIMINARY STATEMENTS........................................................................... 1
SECTION 1. Unconditional Guarantee.............................................................. 1
SECTION 2. Guaranty Absolute.................................................................... 2
SECTION 3. Waivers and Acknowledgments.......................................................... 3
SECTION 4. Subrogation.......................................................................... 4
SECTION 5. Representations and Warranties....................................................... 4
SECTION 6. Covenants............................................................................ 6
SECTION 7. Amendments, Etc...................................................................... 10
SECTION 8. Addresses for Notices................................................................ 11
SECTION 9. No Waiver; Remedies.................................................................. 11
SECTION 10. Indemnification...................................................................... 12
SECTION 11. Continuing Agreement................................................................. 12
SECTION 12. Governing Law........................................................................ 12
SECTION 13. Submission to Jurisdiction........................................................... 12
SECTION 14. Consent to Service of Process........................................................ 13
SECTION 15. Execution in Counterparts............................................................ 13
SECTION 16. Waiver of Jury Trial................................................................. 14
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PARENT UNDERTAKING AGREEMENT
PARENT UNDERTAKING AGREEMENT (this "AGREEMENT"), dated as of
December 30, 1997, made by THE XXXXX-XXXXXXX STORES CORP., INC., an Ohio
corporation (the "PARENT"), in favor of BANKERS TRUST COMPANY, a New York
banking corporation, not in its individual capacity but solely as Trustee (as
defined in the Pooling and Servicing Agreement referred to below) on behalf of
the Investor Certificateholders (as hereinafter defined).
PRELIMINARY STATEMENTS.
1. The Parent and its wholly owned subsidiary, The El-Bee Chargit
Corp., an Ohio corporation ("CHARGIT"), have entered into a Purchase Agreement
dated as of the date hereof (as it may hereafter be amended, supplemented or
otherwise modified from time to time, the "FIRST PURCHASE AGREEMENT").
Simultaneously, Chargit and The El-Bee Receivables Corporation, a Delaware
corporation (the "TRANSFEROR"), have entered into a separate Purchase Agreement
dated as of the date hereof (as it may hereafter be amended, supplemented or
otherwise modified from time to time, the "SECOND PURCHASE AGREEMENT" and,
together with the First Purchase Agreement, the "PURCHASE AGREEMENTS").
2. Chargit, as servicer, the Transferor and the Trustee have entered
into a Pooling and Servicing Agreement dated as of the date hereof (as it may
hereafter be amended, supplemented or otherwise modified from time to time, the
"POOLING AND SERVICING AGREEMENT"; terms defined in the Pooling and Servicing
Agreement are used herein as therein defined).
3. It is a condition precedent to the transfer of the Receivables to
the Trust and the issuance of the Certificates under the Pooling and Servicing
Agreement that the Parent shall have executed and delivered this Agreement.
NOW, THEREFORE, in consideration of the premises, and the
substantial direct and indirect benefits to the Parent from the financing
arrangements contemplated by the Transaction Documents and other good and
valuable consideration, the receipt of which is hereby acknowledged, and in
order to induce the Investor Certificateholders to make purchases of Investor
Certificates and to fund Increases, the Parent hereby agrees as follows:
SECTION 1. UNCONDITIONAL GUARANTEE. The Parent hereby
unconditionally and irrevocably guarantees the punctual payment and performance
when due by Chargit and the Transferor (Chargit and the Transferor are,
collectively, the "OBLIGATED PARTIES") of all of such Obligated Party's
respective covenants, agreements and undertakings now or hereafter existing
under each Transaction Document to which such Obligated Party is a party
(whether
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for Collections actually received or deemed to have been received, yield,
repurchase or indemnity payments, fees, expenses or otherwise, such covenants,
agreements, and other obligations being the "GUARANTEED OBLIGATIONS"), and
agrees to pay any and all reasonable expenses (including reasonable counsel
fees and expenses) incurred by the Trustee in enforcing any rights under this
Agreement. Without limiting the generality of the foregoing, the Parent's
liability shall extend to all amounts which constitute part of the Guaranteed
Obligations and would be owed by an Obligated Party but for the fact that such
Guaranteed Obligation is unenforceable or not allowable due to the existence of
a bankruptcy, reorganization or similar proceeding involving an Obligated
Party. In the event that any Obligated Party shall fail in any manner
whatsoever to perform or observe any of its Guaranteed Obligations when the
same shall be required to be performed, then the Parent will itself duly and
punctually perform or observe, or cause to be duly and punctually performed and
observed, such Guaranteed Obligation, and it shall not be a condition to the
accrual of the obligation of the Parent hereunder to perform or observe any
Guaranteed Obligation (or to cause the same to be performed or observed) that
the Trustee shall have first made any request of or demand upon or given any
notice to any Obligated Party or its respective successors or assigns, or have
instituted any action or proceedings against any Obligated Party or its
respective successors or assigns in respect thereof; PROVIDED, HOWEVER, that
nothing contained herein shall affect any requirements set forth in any
Transaction Document that notice be given or time elapse prior to the
occurrence of a Termination Event or a Trust Early Amortization Event. For the
avoidance of doubt, Guaranteed Obligations do not include any obligations of
Obligors with respect to any Accounts or Receivables.
SECTION 2. GUARANTY ABSOLUTE. The Parent guarantees that the
Guaranteed Obligations will be paid and performed strictly in accordance with
the terms of the Transaction Documents or any document delivered in connection
therewith, regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of any Beneficiary
with respect thereto. The obligations of the Parent under this Agreement are
independent of the Guaranteed Obligations and a separate action or actions may
be brought and prosecuted against the Parent to enforce this Agreement,
irrespective of whether any action is brought against any Obligated Party or
whether any Obligated Party is joined in any such action or actions. The
liability of the Parent under this Agreement shall be irrevocable, absolute and
unconditional irrespective of, and the Parent hereby irrevocably waives any
defenses it may now or hereafter have in any way relating to, any or all of the
following:
(a) any lack of validity or enforceability of any Transaction
Document or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations under
the Transaction Documents, or
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any other amendment or waiver of or any consent to departure from any
Transaction Document;
(c) any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of or consent
to departure from any other guaranty, for all or any of the Guaranteed
Obligations;
(d) any manner of application of collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of
sale or other disposition of any collateral for all or any of the
Guaranteed Obligations or any other obligations of any Obligated Party
under the Transaction Documents;
(e) any change, restructuring or termination of the corporate
structure or existence of any Obligated Party or any of its
Subsidiaries;
(f) any failure of any Beneficiary to disclose to the Parent
any information relating to the financial condition, operations,
properties or prospects of any Obligated Party now or in the future
known to any Beneficiary (the Parent waiving any duty on the part of
any Beneficiary to disclose such information); or
(g) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by any Beneficiary that might otherwise constitute a
defense available to, or a discharge of, the Parent or any other
guarantor or surety.
This Agreement shall continue to be effective or be reinstated, as the case may
be, if at any time (x) any payment in connection with any of the Guaranteed
Obligations is rescinded or must otherwise be returned by the Trustee, or (y)
any performance or satisfaction of any Guaranteed Obligation is rescinded or
otherwise invalidated, upon the insolvency, bankruptcy or reorganization of any
party to any Transaction Document, all as though payment had not been made or as
though such Guaranteed Obligation had not been performed or satisfied.
SECTION 3. WAIVERS AND ACKNOWLEDGMENTS. (a) The Parent hereby
waives promptness, diligence, notice of acceptance and any other notice with
respect to any of the Guaranteed Obligations and this Agreement and any
requirement that any Beneficiary protect, secure, perfect or insure any Lien or
any property subject thereto or exhaust any right or take any action against any
Obligated Party or any other Person or any collateral.
(b) The Parent hereby waives any right to revoke this
Agreement, and acknowledges that this Agreement is continuing in nature and
applies to all Guaranteed Obligations, whether existing now or in the future.
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(c) The Parent hereby agrees that the Beneficiaries shall have
no obligations, duties or other liabilities under or in connection with any Swap
Agreement (as defined under any Series Supplement).
SECTION 4. SUBROGATION. The Parent will not exercise any
rights that it may now or hereafter acquire against any Obligated Party that
arise from the existence, payment, performance or enforcement of the Parent's
obligations under this Agreement or any other Transaction Document, including,
without limitation, any right of subrogation, reimbursement, exoneration,
contribution or indemnification and any right to participate in any claim or
remedy of any Beneficiary against any Obligated Party or any collateral, whether
or not such claim, remedy or right arises in equity or under contract, statute
or common law, including, without limitation, the right to take or receive from
any Obligated Party, directly or indirectly, in cash or other property or by
set-off or in any other manner, payment or security on account of such claim,
remedy or right, unless and until all amounts in connection with the Guaranteed
Obligations and all other amounts payable under this Agreement shall have been
paid in full and the Trust shall have been terminated. If any amount shall be
paid to the Parent in violation of the preceding sentence at any time prior to
the later of (i) the payment in full of the Guaranteed Obligations and all other
amounts payable under this Agreement and (ii) termination of the Trust, such
amount shall be held in trust for the benefit of the Beneficiaries and shall
forthwith be paid to the Trustee to be credited and applied to the Guaranteed
Obligations, whether matured or unmatured, in accordance with the terms of the
Transaction Documents or to be held by the Trustee as collateral security for
any Guaranteed Obligations payable under this Agreement thereafter arising.
SECTION 5. REPRESENTATIONS AND WARRANTIES. The Parent hereby
represents and warrants as follows:
(a) DUE ORGANIZATION. The Parent (i) is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, (ii) is duly qualified and in good
standing as a foreign corporation in each other jurisdiction in which
it owns or leases property or in which the conduct of its business
requires it to so qualify or be licensed and (iii) has all requisite
corporate power and authority (including all governmental licenses,
permits and other approvals) to own or lease and operate its properties
and to carry on its business as now conducted and as proposed to be
conducted.
(b) CORPORATE POWERS AND NO CONFLICTS. The Parent's execution,
delivery and performance of this Agreement, and the consummation of the
transactions contemplated hereby, are within the Parent's corporate
powers, have been duly authorized by all necessary corporate action,
and do not (i) contravene or violate any
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Requirement of Law, (ii) conflict with, or result in any breach of, or
constitute a default under, any contract, loan agreement, indenture,
mortgage, deed of trust, lease or other instrument binding on or
affecting the Parent or any of its properties or (iii) result in or
require the creation or imposition of any Lien upon or with respect to
its properties. The Parent is not in violation of any Requirement of
Law or in breach of any such contract, loan agreement, indenture,
mortgage, deed of trust, lease or other instrument.
(c) NO CONSENTS. No authorization or approval or other action
by, and no notice to or filing with, any governmental authority or
regulatory body or any other third party is required by the Parent for
(i) the due execution, delivery or performance by the Parent of this
Agreement or the consummation of the other transactions contemplated
hereby, or (ii) the exercise by the Trustee of its rights or remedies
granted hereunder.
(d) ENFORCEABILITY. This Agreement constitutes a legal, valid
and binding obligation of the Parent, enforceable against it in
accordance with its terms (except as such enforceability may be limited
by Debtor Relief Laws). This Agreement is in full force and effect and
is not subject to any specific dispute, offset, counterclaim or defense
of the Parent.
(e) NO LITIGATION. There is no action, suit, investigation,
litigation, or proceeding affecting the Parent, pending or threatened,
before any Governmental Authority or arbitrator that (i) could have a
Material Adverse Effect, (ii) purports to affect the legality, validity
or enforceability of this Agreement or the consummation of the
transactions contemplated hereby or (iii) could adversely affect the
income tax attributes of the Trust.
(f) SUBSIDIARIES. All of the outstanding capital stock of each
Obligated Party is owned, directly or indirectly, by the Parent.
(g) ACCURACY OF INFORMATION. Each certificate, information,
exhibit, financial statement, document, book, record or report
furnished by a Responsible Officer of the Parent to the Trustee or
Enhancement Provider in connection with this Agreement is accurate in
all material respects as of its date and no such document contains any
misstatement of material fact.
(h) SOLVENCY. The Parent is, and after giving effect to its
obligations under this Agreement will be, Solvent.
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(i) INDEPENDENT CREDIT ANALYSIS. The Parent has, independently
and without reliance upon any Beneficiary and based on such documents
and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement, and the Parent has
established adequate means of obtaining from each Obligated Party on a
continuing basis information pertaining to, and is now and on a
continuing basis will be familiar with, the financial condition,
operations, properties and prospects of each Obligated Party.
(j) The consolidated balance sheet of the Parent and its
subsidiaries as at February 11, 1997, and the related consolidated
statement of operations and consolidated statements of cash flows
ending as of February 11, 1997, copies of which have been furnished to
the Program Agent, fairly present the financial condition of the Parent
and its Subsidiaries as at such date and the results of the operations
of the Parent and its Subsidiaries for the period ended on such date,
all in accordance with generally accepted accounting principles
consistently applied.
(k) CONDITIONS SATISFIED. There are no conditions precedent to
the effectiveness of this Agreement that have not been satisfied or
waived.
SECTION 6. COVENANTS. (a) So long as any Invested Amount shall remain
unpaid or any Liquidity Provider or any Enhancement Provider shall have any
commitment under any Transaction Document, the Parent will:
(i) COMPLIANCE WITH LAW. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all Requirements
of Law applicable to the Parent, its business and properties.
(ii) PRESERVATION OF LEGAL EXISTENCE. Preserve and maintain
its existence, legal structure, legal name, rights (charter and
statutory), franchises, permits, licenses, approvals, and privileges in
the jurisdiction of its formation, and qualify and remain qualified in
each jurisdiction where the failure to maintain such qualification
could have a Material Adverse Effect.
(iii) KEEPING OF BOOKS. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, which shall
be maintained or caused to be maintained by the Parent and shall be
separate and apart from those of any Affiliate of the Parent, in which
full and correct entries shall be made of all financial transactions
and the assets and business of the Parent and each such Subsidiary in
accordance with generally accepted accounting principles consistently
applied.
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(iv) VISITATION RIGHTS. At any reasonable time and from time
to time upon reasonable notice, permit the Trustee, the Program Agent,
any of the Investor Certificateholders or any Enhancement Provider, or
any agents or representatives thereof, to examine and make copies of
and abstracts from the records and books of account of, and to visit
the properties of, the Parent and any of its Subsidiaries and to
discuss the affairs, finances and accounts of the Parent and any of its
Subsidiaries with any of their officers or directors and to discuss the
affairs, finances and accounts of the Parent and any of its
Subsidiaries with their independent certified public accountants.
(v) PAYMENT OF TAXES, ETC. Pay promptly, and cause each of its
Subsidiaries to pay promptly when due all taxes, assessments and
governmental charges or levies imposed upon it or upon its property or
in respect of its income and profits therefrom, and any and (B) claims
of any kind except that no such amount, so long as such amount is not
material, need be paid if the charge or levy is being contested in good
faith through appropriate proceedings and as to which adequate reserves
are being maintained and no Lien with respect thereto has attached to
its property and become enforceable against its creditors.
(vi) REPORTING REQUIREMENTS.
(A) Within 30 days after the end of each fiscal
month, deliver to the Trustee, the Program Agent, each Rating
Agency and each Enhancement Provider the unaudited
consolidated balance sheet of the Parent and its Subsidiaries
as of the end of such month and the related consolidated
statements of operations and consolidated statements of cash
flows for that portion of the Fiscal Year ending as of the end
of such month setting forth in comparative form with respect
to the balance sheet and statements of income the results from
both the comparable period for the preceding Fiscal Year, and
the projected consolidated figures for the current period,
accompanied by the certification of the treasurer or
controller of the Parent stating (i) that all such financial
statements and (ii) the consolidated and consolidating
financial position, the consolidated and consolidating results
of operations and consolidated statements of cash flows of the
Parent and its Subsidiaries as at the end of such months and
for the periods then ended, are complete and correct (subject
to year-end audit adjustments).
(B) As soon as available and in any event within 45
days after the end of each fiscal quarter of the Parent and
its consolidated Subsidiaries for financial accounting
purposes ("FISCAL QUARTER") of each Fiscal Year, deliver to
the Trustee, the Program Agent, each Rating Agency and each
Enhancement Provider consolidated and consolidating balance
sheets of the Parent and its
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Subsidiaries as of the end of such quarter and consolidated
and consolidating statements of operations and retained
earnings and consolidated statements of cash flow of the
Parent and its Subsidiaries for the period commencing at the
end of the previous Fiscal Year and ending with the end of
such Fiscal Quarter, setting forth in comparative form the
results from the comparable period for the preceding Fiscal
Year all prepared in conformity with generally accepted
accounting principles (subject to year-end audit adjustments)
and certified by the treasurer or controller of the Parent as
fairly presenting the financial condition and results of
operations of the Parent and its Subsidiaries at such dates
and for such periods, together with (i) a schedule in form
satisfactory to the Trustee of the computations used by the
Parent in determining compliance with all financial covenants
contained herein, and (ii) a written discussion and analysis
by the management of the Parent of the financial statements
furnished in respect of such Fiscal Quarter;
(C) As soon as available and in any event within 90
days after the end of each Fiscal Year, deliver to the
Trustee, the Program Agent, each Rating Agency and each
Enhancement Provider consolidated balance sheets of the Parent
and its Subsidiaries as of the end of such year and
consolidated statements of operations and retained earnings
and consolidated statements of cash flow of the Parent and its
Subsidiaries and divisional operating results for such Fiscal
Year, setting forth in comparative form the results from the
preceding Fiscal Year, all prepared in conformity with
generally accepted accounting principles and certified, in the
case of such consolidated financial statements, without
qualification as to the scope of the audit by Deloitte and
Touche or other independent public accountants of recognized
national standing acceptable to the Majority in Interest,
together with (i) a certificate of such accounting firm
stating that the audit was conducted by such accounting firm
in accordance with generally accepted auditing standards, (ii)
a schedule in form satisfactory to the Trustee of the
computations used by such accountants in determining, as of
the end of such Fiscal Year, the Parent's compliance with all
financial covenants contained herein, and (iii) a written
discussion and analysis by the management of the Parent of the
financial statements furnished in respect of such Fiscal Year.
(D) Within one Business Day after a Responsible
Officer of the Parent obtains Knowledge of the occurrence of
any Early Amortization Event or Servicer Default or any event
which, with the giving of notice or lapse of time or both,
would constitute an Early Amortization Event or a Service
Default, notify the Trustee in writing of such occurrence;
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(E) As soon as possible and in any event (x) within
three Business Days after a Responsible Officer of the Parent
obtains Knowledge of the occurrence of any Early Amortization
Event or Servicer Default, or any event which, with the giving
of notice or lapse of time or both, would constitute an Early
Amortization Event or Servicer Default, furnish to the
Trustee, each Rating Agency and each Enhancement Provider the
written statement of a Responsible Officer of the Parent
setting forth details of such Early Amortization Event or
Servicer Default or such event and the action which the Parent
has taken and proposes to take with respect thereto, and (y)
within three Business Days after a Responsible Officer of the
Parent makes a determination that any other event, development
or information is reasonably likely, individually or in the
aggregate, to have a Material Adverse Effect, give written
notice thereof to the Trustee, each Rating Agency and each
Enhancement Provider;
(F) Promptly, from time to time, furnish to the
Trustee such other information, documents, records or reports
regarding the condition or operations, financial or otherwise,
of the Parent as the Trustee may from time to time reasonably
request; and
(G) As soon as possible and in any event within 30
days after a Responsible Officer of the Parent obtains
Knowledge that one of the following events has occurred or is
reasonably expected to occur, furnish to the Trustee, each
Rating Agency and each Enhancement Provider the written
statement of a Responsible Officer of the Parent setting forth
details of: (i) the occurrence of any Plan Event with respect
to any Plan or (ii) the withdrawal by the Transferor or any of
its ERISA Affiliates from, or the termination, reorganization
or insolvency of, any Multiemployer Plan.
(vii) MAINTENANCE OF INSURANCE. Maintain, and cause each of
its Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which the
Parent or such Subsidiary operates, including current commercial crime
insurance (including commercial fraud insurance) as is commercially
available at a cost that is not generally regarded as excessive by
industry standards, with coverage on all officers, employees or other
Persons acting in any capacity requiring such Persons to handle funds,
money, documents or papers relating to the Receivables and the related
Accounts.
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(viii) MAINTENANCE OF PROPERTIES, ETC. Maintain and preserve,
and cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used or useful in the conduct of its business in
good working order and condition, ordinary wear and tear excepted,
except to the extent that any failure to do so, individually or in the
aggregate, would not be reasonably likely to have a Material Adverse
Effect on the Parent's ability to perform its obligations hereunder.
(ix) GUARANTEES; INDEBTEDNESS; INVESTMENTS. Comply, and cause
each of its Subsidiaries to comply, with Sections 5.2, 7.2, 7.5 and
7.19 of the Credit Agreement.
(b) The Parent covenants and agrees that so long as any
promissory notes issued by any Investor (or any other securitization
company administered by Citicorp North America, Inc. or any of its
Affiliates) shall be outstanding or there shall not have elapsed one
year plus one day since the last day on which any such notes shall have
been outstanding, the Parent will not commence or institute, or join
any other Person in commencing or instituting, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or
other proceedings under any federal or state bankruptcy or similar law,
against the Transferor or any Investor or any successor to the
Transferor or any Investor (or such other company) which becomes a
party to any of the Transaction Documents.
SECTION 7. AMENDMENTS, ETC. (a) This Agreement may be amended
from time to time by the Parent and the Trustee, without the consent of any
Investor Certificateholder, (i) to cure any ambiguity, (ii) to correct or
supplement any provision herein which may be inconsistent with any other
provision herein or (iii) to add any other provisions with respect to matters or
questions arising under this Agreement which are not inconsistent with the
provisions of this Agreement; PROVIDED that any amendment pursuant to this
clause (a) shall not, as evidenced by an Opinion of Counsel, adversely affect in
any material respect the interests of any Investor Certificateholder.
(b) This Agreement may be amended from time to time by the
Parent and the Trustee, with the consent of a Majority in Interest of each
adversely affected Series, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Certificateholders; PROVIDED,
HOWEVER, that no such amendment shall (i) reduce in any manner the amount of, or
delay the timing of, any payment to be made hereunder without the consent of
each such Certificateholder or (ii) reduce the aforesaid percentage required to
consent to any such amendment without the consent of each Investor
Certificateholder. The Trustee may request an Officer's Certificate and Opinion
of Counsel with respect to an amendment entered into pursuant to this clause (b)
concerning compliance with the requirements of this Agreement. Any amendment to
be effected pursuant to this clause (b) shall be deemed to
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adversely affect all outstanding Series, other than any Series with respect to
which such action shall not, as evidenced by an Opinion of Counsel (which
counsel shall not be an employee of, or counsel for, the Parent or any Obligated
Party) addressed and delivered to the Trustee, adversely affect the interests of
any Investor Certificateholder of such Series.
(c) Promptly after the execution of any such amendment or
consent (other than an amendment pursuant to clause (a)), the Trustee shall
furnish written notification of the substance of such amendment to each Investor
Certificateholder.
(d) It shall not be necessary for the consent of Investor
Certificateholders to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Investor Certificateholders shall be subject to such
reasonable requirements as the Trustee may prescribe.
SECTION 8. ADDRESSES FOR NOTICES. All notices and other
communications provided for hereunder shall, unless otherwise stated herein, be
in writing (including telex and facsimile communication) and shall be personally
delivered or sent by certified mail, postage prepaid, or overnight courier or
facsimile, to the intended party at the address or facsimile number of such
party set forth below or at such other address or facsimile number as shall be
designated by such party in a written notice to the other parties hereto. All
such notices and communications shall be effective (a) if personally delivered,
when received, (b) if sent by certified mail, four Business Days after having
been deposited in the mail, postage prepaid, (c) if sent by overnight courier,
two Business Days after having been given to such courier, unless sooner
received by the addressee and (d) if transmitted by facsimile, when sent, upon
receipt confirmed by telephone or electronic means. Notices and communications
sent hereunder on a day that is not a Business Day shall be deemed to have been
sent on the following Business Day.
If to the Parent,
0000 Xx-Xxx Xxxx
Xxxxxx, Xxxx 00000
Tel: 000-000-0000
Fax: 000-000-0000
Attn: Sr. Vice President and Treasurer
If to the Trustee,
Bankers Trust Company
0 Xxxxxx Xxxxxx
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00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attn: Structured Finance Team
SECTION 9. NO WAIVER; REMEDIES. No failure on the part of any
Beneficiary to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 10. INDEMNIFICATION. Without limitation on any other
obligations of the Parent or remedies of the Trustee or the Investor
Certificateholders under this Agreement, the Parent shall, to the fullest extent
permitted by law, indemnify, defend and save and hold harmless the Trustee and
each Investor Certificateholder from and against, and shall pay on demand, any
and all losses, liabilities, damages, costs, expenses and charges (including the
reasonable fees and disbursements of the Trustee or such Investor
Certificateholder's legal counsel) suffered or incurred by the Trustee or such
Investor Certificateholder as a result of any failure of any Guaranteed
Obligations to be the legal, valid and binding obligations of the Parent
enforceable against the Parent in accordance with their terms.
SECTION 11. CONTINUING AGREEMENT. This Agreement is a
continuing guaranty and shall (a) remain in full force and effect until the
later of the payment in full in cash of the Guaranteed Obligations and all other
amounts payable under this Agreement (i) the payment of all other amounts
payable under this Agreement and the other Transaction Documents and (ii)
termination of the Trust, (b) be binding upon the Parent, its successors and
assigns and (c) inure to the benefit of, and be enforceable by, the Trustee and
its respective successors and permitted transferees and assigns.
SECTION 12. GOVERNING LAW. THIS AGREEMENT, INCLUDING THE
RIGHTS AND DUTIES OF THE PARTIES HERETO, SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 13. SUBMISSION TO JURISDICTION. (a) Each of the
parties hereto hereby irrevocably and unconditionally submits, for itself and
its property, to the nonexclusive jurisdiction of any New York State court or
federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
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that all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, such
federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that any party may otherwise
have to bring any action or proceeding relating to this Agreement or any of the
other Transaction Documents in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any of the
other Transaction Documents to which it is a party in any New York State or
federal court. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
SECTION 14. CONSENT TO SERVICE OF PROCESS. Each party to this
Agreement irrevocably consents to service or process by personal delivery,
certified mail, postage prepaid or overnight courier. Nothing in this Agreement
will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.
SECTION 15. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by the different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
Agreement. Delivery of an executed counterpart of a signature page of this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
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SECTION 16. WAIVER OF JURY TRIAL. The Parent hereby
irrevocably waives any right to a trial by jury in any action, proceeding or
counterclaim (whether based on contract, tort or otherwise) arising out of or
relating to this Agreement or any other Transaction Document or any amendment,
instrument, document or agreement delivered or which may in the future be
delivered in connection herewith or therewith or arising from any course of
conduct, course of dealing, statements (whether verbal or written), actions of
any of the parties hereto or any other relationship existing in connection with
this Agreement or any other Transaction Document, and agrees that any such
action or proceeding shall be tried before a court and not before a jury.
IN WITNESS WHEREOF, the Parent has caused this Agreement to be
duly executed and delivered by its respective officers thereunto duly authorized
as of the date first above written.
THE XXXXX-XXXXXXX STORES CORP.
By___________________________
Name:
Title:
AGREED AND ACCEPTED:
BANKERS TRUST COMPANY, not in
its individual capacity but solely
as Trustee
By ______________________________
Name:
Title:
