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EXHIBIT 10.23
EXHIBIT "A" TO
FIRST AMENDMENT TO
DISTRIBUTION AGREEMENT
INDEMNIFICATION AGREEMENT
Indemnification Agreement dated as of April 18, 1997 by and between The
TJX Companies, Inc., a Delaware corporation (f/k/a Zayre Corp.) ("TJX"), and
BJ's Wholesale Club, Inc., a Delaware corporation ("BJ's"). TJX and BJ's are
referred to collectively herein as the "Parties."
WHEREAS, Waban Inc. ("Waban") and TJX are signatories to a Distribution
Agreement, dated as of May 1, 1989 (as amended on April 18, 1997, the
"Distribution Agreement"), pursuant to which, among other things, Waban agreed
to indemnify TJX for certain Waban Liabilities (as defined in the Distribution
Agreement).
WHEREAS, Waban has stated its intention of consummating a transaction
providing for (i) the transfer by Waban of the assets of its BJ's Wholesale Club
division to BJ's, a newly-formed subsidiary of Waban, and (ii) the subsequent
transfer, through the declaration and distribution of a special dividend (the
"Distribution"), of the stock of BJ's to the stockholders of Waban (the
"Spinoff").
WHEREAS, the Parties desire to enter into this indemnification
agreement to provide for BJ's indemnification of TJX for certain Waban
Liabilities (as defined in the Distribution Agreement), effective upon the date
on which the Distribution is made to Waban's stockholders (the "Effective
Date").
Now, therefore, in consideration of the premises and the mutual
promises and covenants contained herein, the Parties agree as follows.
1. Definitions. Capitalized terms not defined herein shall have the
meanings ascribed to them in the Distribution Agreement.
Any references on or after the Effective Date to Waban shall be
construed to include HomeBase, Inc.
1.01 "Applicable Credits" shall have the meaning set forth in
section 7 hereof.
1.02 "BJ's" shall have the meaning set forth in the recitals hereof.
1.03 "BJ's Control Period" shall have the meaning set forth in
section 4 hereof.
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1.04 "BJ's Lease" shall mean any lease or sub-lease of property ever
used in connection with the Waban Businesses for which TJX or any Affiliate
thereof may be liable as a tenant, surety, sub-lessee or guarantor, other than
(i) a HomeBase Lease and (ii) the ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ lease,
to the extent (and only to the extent) provided in the letter, dated April 18,
1997, from ▇▇▇▇ ▇. ▇▇▇▇▇▇, counsel for Waban, to ▇▇▇ ▇. ▇▇▇▇▇▇▇, counsel for
TJX.
1.05 "BJ's Lease Liability" shall mean (i) any Liability arising in
connection with a BJ's Lease or a BJ's Third Party Claim and (ii) any Liability
arising in connection with a HomeBase Lease or a HomeBase Third Party Claim,
other than a HomeBase Lease Liability.
1.06 "BJ's Lease Liability Payment" shall mean an amount paid by
BJ's (or by TJX, if BJ's breaches its obligation, pursuant to sections 3 and
5.01 hereof, to make all payments on account of such Liabilities) in
satisfaction of a BJ's Lease Liability.
1.07 "BJ's Third Party Claim" shall mean a Third Party Claim arising
out, or relating to, a BJ's Lease.
1.08 "Disabling Conduct" shall mean the conduct of a Person that
constitutes fraud, self-dealing, willful violation of the law, bad faith or
gross negligence.
1.09 "Distribution" shall have the meaning set forth in the recitals
hereof.
1.10 "Distribution Agreement" shall have the meaning set forth in
the recitals hereof.
1.11 "Effective Date" shall have the meaning set forth in the
recitals hereof.
1.12 "First Amendment" shall mean the First Amendment to the
Distribution Agreement, dated as of April 18, 1997.
1.13 "HomeBase Lease" shall mean any of the leases or sub-leases of
property listed on the Schedule of Leases for which TJX or any Affiliate thereof
may be liable as a tenant, sub-lessee, surety or guarantor.
1.14 "HomeBase Lease Liability" shall mean (i) any Liability arising
under any HomeBase Lease, during the current term (without any extension or
renewals after the date hereof) of such HomeBase Lease as set forth on the
Schedule of Leases, for any of the Specified Obligations in regard to such
HomeBase Lease and (ii)
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any Liability arising by reason of any HomeBase Third Party Claim with respect
to any Liability described in clause (i) of this section 1.14.
1.15 "HomeBase Lease Liability Payment" shall mean any amount paid
by TJX or BJ's in satisfaction of any HomeBase Lease Liability.
1.16 "HomeBase Third Party Claim" shall mean a Third Party Claim
arising out of, or relating to, a HomeBase Lease.
1.17 "Liability" shall mean any and all debts, liabilities and
obligations, absolute or contingent, mature or unmatured, liquidated or
unliquidated, accrued or unaccrued, known or unknown, whenever arising (unless
otherwise specified in this Agreement), and all costs and expenses related
thereto, including, without limitation, (i) those debts, liabilities and
obligations arising under any law, rule, regulation, action, threatened action,
order or consent decree of any governmental entity or any award of any
arbitrator of any kind, and those arising under any contract, commitment or
undertaking, (ii) reasonable attorneys' and accountants' fees, (iii) fees paid
to real estate consultants and brokers, and (iv) amounts paid or incurred in
investigating, preparing or defending against Third Party Claims or settling or
mitigating such claims (including, without limitation, costs for repairs,
remodeling or any other modification to premises that are incurred in connection
with the letting of the premises).
1.18 "Net HomeBase Lease Liability Payments" shall have the meaning
set forth in section 7 hereof.
1.19 "Parties" shall have the meaning set forth in the recitals
hereof.
1.20 "Schedule of Leases" shall mean the schedule of leases
initialed by the parties, provided as of the date hereof and setting forth the
HomeBase Leases.
1.21 "Significant Subsidiary" shall have the meaning set forth in
section 6.01(d)(i) hereof.
1.22 "Specified Obligations" shall mean, in regard to any HomeBase
Lease, (i) the base rent in regard to such HomeBase Lease, provided, however,
that any such base rent in excess of the annual base rent set forth with respect
to such HomeBase Lease in the Schedule of Leases shall not constitute Specified
Obligations except to the extent, and then only to the extent, that the amount
of such excess results from the fact that the actual rate of adjustment in
minimum rent exceeds that reflected in the Schedule of Leases because the actual
rate of increase in the CPI (or similar inflation index) used to calculate such
increase under the
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current terms of such HomeBase Lease exceeds the 3% annual rate assumed in
developing the Schedule of Leases; and (ii) such amounts of common area
maintenance charges and property taxes and similar assessments as come due from
time to time under the terms of such HomeBase Lease as such terms are currently
in effect.
1.23 "Spinoff" shall have the meaning set forth in the recitals
hereof.
1.24 "Third Party Claim" shall mean the assertion by a Person (other
than Waban, TJX, BJ's or any of their Affiliates) of any claim or the
commencement by any such Person of any Action against any TJX Indemnitee.
1.25 "TJX" shall have the meaning set forth in the recitals hereof.
1.26 "TJX Control Period" shall have the meaning set forth in
section 5.04 hereof.
1.27 "TJX Indemnitees" shall mean TJX, its Affiliates and their
directors, officers, employees, representatives, attorneys, accountants, and
agents.
1.28 "Waban" shall have the meaning set forth in the recitals
hereof.
2. Indemnification for Breach of First Amendment. BJ's shall indemnify
and hold harmless the TJX Indemnitees for any and all Liability paid or
satisfied by the TJX Indemnitees arising out of the non-performance by Waban or
any assignee, for any reason (including bankruptcy), of the covenants contained
in section 2 of the First Amendment, as such covenants existed on the date
hereof, or any agreement entered into in accordance with said covenants.
3. Indemnification for BJ's Leases. BJ's shall indemnify and hold
harmless the TJX Indemnitees for one hundred percent (100%) of any BJ's Lease
Liability Payment.
4. Indemnification for HomeBase Leases. BJ's shall indemnify and hold
harmless the TJX Indemnitees for fifty percent (50%) of any Net HomeBase Lease
Liability Payment. Notwithstanding anything to the contrary contained in this
Agreement, BJ's shall indemnify and hold harmless the TJX Indemnitees for one
hundred percent (100%) of any HomeBase Lease Liability Payment that is made
either during or with respect to the period up to and including January 31, 2003
(the "BJ's Control Period"), net of an amount equal to the fair market value of
any benefit (such as by way of example, any rental income received by TJX or any
Affiliate thereof from a sublease with respect to the HomeBase Lease that is the
subject of the HomeBase Lease Liability Payment in question) that has inured
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to TJX or any Affiliate thereof during the BJ's Control Period (i) in regard to
the premises that are the subject of the HomeBase Lease as to which the HomeBase
Lease Liability Payment in question was made or (ii) by reason of any claim made
by TJX against any third party for reimbursement in whole or in part of the
HomeBase Lease Liability Payment in question.
5. Control of Third Party Claims and Payment Mechanism.
5.01 BJ's shall have control of the defense and settlement of all
BJ's Third Party Claims and shall be obligated to make all BJ's Lease Liability
Payments. TJX shall have the right, at its expense, to participate with BJ's in
the defense and settlement of such BJ's Third Party Claims.
5.02 During the BJ's Control Period, BJ's shall have the right to
control the defense and settlement of all HomeBase Third Party Claims, and shall
be obligated to make all HomeBase Lease Liability Payments with respect thereto.
During the BJ's Control Period, TJX shall have the right to participate, at its
expense, with BJ's in the defense and settlement of such HomeBase Third Party
Claims.
5.03 During the BJ's Control Period (unless TJX has exercised its
right to control under section 6 hereof), BJ's may defend against, and consent
to the entry of any judgment or enter into any settlement with respect to the
HomeBase Third Party Claims in any manner it may deem appropriate, and BJ's need
not obtain any consent from TJX in connection therewith, provided, however, that
any claim of TJX based on a Disabling Conduct on the part of BJ's in the
handling of the defense or settlement of such HomeBase Third Party Claims is
hereby expressly preserved.
5.04 From and after February 1, 2003 (the "TJX Control Period"), TJX
shall have the right to control the defense and settlement of all pending and
future HomeBase Third Party Claims. During the TJX Control Period, BJ's shall
have the right to participate, at its expense, with TJX on the defense and
settlement of such HomeBase Third Party Claims. During the TJX Control Period,
TJX shall provide BJ's with monthly statements (with reasonable supporting
documentation) of any HomeBase Lease Liability Payments and any Applicable
Credits during the month in question. Except for any HomeBase Lease Liability
Payment as to which TJX is one hundred percent (100%) indemnified pursuant to
(and subject to the potential netting called for by) the second sentence of
section 4 hereof (all of which such payments shall be 100% reimbursed by BJ's to
TJX after taking into account any netting called for by said sentence), BJ's
shall pay to TJX fifty percent (50%) of the Net HomeBase Lease Liability
Payments within fifteen (15) days of the receipt of such statement.
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5.05 During the TJX Control Period or, subject to section 6.03
hereof, after TJX has exercised its right to control pursuant to section 6.01
hereof, TJX may defend against, and consent to the entry of any judgment or
enter into any settlement with respect to any Third Party Claims as to which it
has control in any manner it may deem appropriate, and TJX need not obtain any
consent from BJ's in connection therewith, provided, however, that any claim of
BJ's based on a Disabling Conduct on the part of TJX in the handling of the
defense or settlement of such Third Party Claims is hereby expressly preserved.
5.06 TJX shall provide BJ's with written notice within ten (10)
business days after the receipt of a written BJ's Third Party Claim or HomeBase
Third Party Claim, provided that the failure of TJX to give such notice shall
not relieve BJ's of its obligations under this Agreement except to the extent
BJ's is materially prejudiced by such failure to give notice. Such notice shall
describe the Third Party Claim in reasonable detail. Thereafter, TJX shall
deliver to BJ's within five (5) business days after TJX's receipt thereof,
copies of all notices and documents (including court papers) received by TJX
relating to such Third Party Claim.
5.07 Both TJX and BJ's shall make available to the other any
personnel (to the extent that such tasks shall not unreasonably interfere with
the performance of such employee's responsibilities) and any books, records or
other documents within such Party's control or which it otherwise has the
ability to make available that are reasonably necessary or appropriate for the
defense, settlement or compromise, and shall otherwise cooperate in the defense,
settlement or compromise of any BJ's Third Party Claim or HomeBase Third Party
Claim, including pursuing any appeals of any judgments relating thereto.
5.08 During the BJ's Control Period, TJX shall assign, at BJ's
request, to the extent permitted to do so under the relevant lease or guaranty,
TJX's tenants' rights (if any) under the relevant lease or guaranty (including
such rights, if any, under TJX guaranties of HomeBase Leases) that would enable
BJ's, as sub-lessor, to enter into sub-leases with respect to the premises
covered by such HomeBase Leases.
6. Right of TJX To Control Third Party Claims Upon Occurrence of
Control Event
6.01 TJX shall have the right at any time following the occurrence
of a Control Event which is not cured within 30 days following written notice
thereof to BJ's by TJX to elect to control the defense and settlement of all
pending and future BJ's Third Party Claims or HomeBase Third Party Claims (or
both). Control Event shall mean the occurrence of any of the following events:
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(a) BJ's shall have failed to perform in a material respect any
of its obligations hereunder;
(b) (i) BJ's shall have failed to maintain at the end of any
fiscal quarter an actual or implied senior debt rating of at least B-
by Standard & Poors or B3 by Moodys and (ii) at the end of such
quarter, BJ's shall have failed to maintain on a consolidated basis as
of the end of such fiscal quarter a Fixed Charge Coverage Ratio (as
such term is defined in the Agreement, dated as of April 4, 1995,
between Waban, The First National Bank of Boston, and the other lenders
party thereto, without regard to any subsequent amendments, and
interpreting such term as if BJ's were the borrower rather than Waban)
greater than 1.20 to 1.0; provided, however, that, in calculating the
Fixed Charge Coverage Ratio, extraordinary items and HomeBase Lease
Liability Payments shall be excluded;
(c) BJ's or any of its subsidiaries shall have defaulted in the
payment of any obligation for borrowed money exceeding $10 million in
principal amount which has been accelerated and is beyond any grace
period provided with respect thereto; or
(d) any of the following bankruptcy events shall have occurred:
(i) any decree or order for relief in respect of BJ's or
any Significant Subsidiary (as defined in SEC Regulation SX) or any
other three subsidiaries is entered under any bankruptcy,
reorganization, compromise, arrangement, insolvency, readjustment of
debt, dissolution or liquidation or similar law (collectively, the
"Bankruptcy Law"), of any jurisdiction; or
(ii) BJ's or any Significant Subsidiary or any other three
subsidiaries petitions or applies to any tribunal for, or consents
to, the appointment of, or the taking of possession by, a trustee,
receiver, custodian, liquidator or similar official of BJ's or any
Significant Subsidiary or any other three subsidiaries, or of any
substantial part of the assets of BJ's or any Significant Subsidiary
or any other three subsidiaries, or commences a voluntary case under
the Bankruptcy Law of the United States or any similar proceedings
relating to BJ's or any Significant Subsidiary or any other three
subsidiaries under the Bankruptcy Law of any other jurisdiction; or
(iii) any petition or application referred to in clause (b)
above is filed, or any such proceedings are commenced, against BJ's,
any Significant Subsidiary or any other three subsidiaries and BJ's
or such
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Significant Subsidiary or such other three subsidiaries by any act
indicates its or their approval thereof or acquiescence therein, or
an order, judgment or decree is entered appointing any such trustee,
receiver, custodian, liquidator or similar official, or approving
the petition in any such proceedings, and such order, judgment or
decree remains unstayed and in effect for more than 60 days.
6.02 From and after the end of the fourth fiscal quarter beginning
from the date hereof, BJ's shall promptly report in writing to TJX any failure
at any time of BJ's to comply with any of the tests set forth in paragraphs (a)
through (d) of section 6.01 hereof. From and after the end of the fourth fiscal
quarter beginning from the date hereof, BJ's also shall furnish to TJX, within
45 days following the end of each fiscal quarter and within 90 days following
the end of each fiscal year, a certificate signed by the President or Chief
Financial Officer of BJ's certifying BJ's compliance (and, with respect to
paragraph (b) of section 6.01, specifying the applicable credit rating or
financial ratio for such fiscal quarter or fiscal year) as of the end of such
fiscal quarter or fiscal year with each of the tests set forth in paragraphs (a)
through (d) of section 6.01.
6.03 From and after the end of the fourth fiscal quarter beginning
from the date hereof, TJX shall promptly report in writing to BJ's any failure
at any time of TJX to comply with any of the tests set forth in paragraphs (a)
through (d) of section 6.01 hereof (as if such paragraphs applied to TJX). From
and after the end of the fourth fiscal quarter beginning from the date hereof,
TJX also shall furnish to BJ's, within 45 days following the end of each fiscal
quarter and within 90 days following the end of each fiscal year, a certificate
signed by the President or Chief Financial Officer of TJX certifying TJX's
compliance (and, with respect to paragraph (b) of section 6.01, specifying the
applicable credit rating or financial ratio for such fiscal quarter or fiscal
year) as of the end of such fiscal quarter or fiscal year with each of the tests
set forth in paragraphs (a) through (d) of section 6.01 (as if such paragraphs
applied to TJX).
6.04 After the exercise by TJX of its right to control the HomeBase
Third Party Claims pursuant to section 6.01 hereof, TJX shall provide BJ's
during the remainder of the BJ's Control Period with prior written notice of any
settlement agreement between TJX and the holder of a HomeBase Third Party Claim
pursuant to which more than three (3) months of Liability of a HomeBase Lease is
being extinguished. TJX shall not enter into any such settlement agreement
without the consent of BJ's; provided, however, that such consent shall not be
unreasonably withheld. BJ's shall be deemed to have consented to such settlement
agreement
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unless it notifies TJX in writing of its objection to such settlement agreement
within 10 days of receipt of such notice.
7. Calculation of Net HomeBase Lease Liability Payments. For purposes
of calculating the Net HomeBase Lease Liability Payments for which TJX is
entitled to partial reimbursement from BJ's pursuant to section 5.04 hereof, (a)
the "Applicable Credits" shall be an amount equal to the fair market value of
any benefit (such as by way of example, any rental income received by TJX or any
Affiliate thereof from a sublease with respect to a HomeBase Lease) that has
inured to TJX or any Affiliate thereof during the period covered by the monthly
statement in question (i) in regard to the premises that are the subject of the
HomeBase Leases that are covered by such monthly statement or (ii) by reason of
any claim made by TJX against any third party for reimbursement in whole or in
part of any HomeBase Lease Liability Payment; and (b) the "Net HomeBase Lease
Liability Payments" shall be the amount of the HomeBase Lease Liability Payments
during the month in question less the amount of any Applicable Credits during
such month.
8. No Set Off or Recoupment. The obligations of BJ's to indemnify the
TJX Indemnitees as provided for in this Agreement shall be absolute and not
subject to any set off or recoupment. Moreover, TJX shall have no obligation to
prosecute any claim or right of indemnification from Waban in order to be
entitled to indemnification from BJ's pursuant to the terms of this Agreement.
9. No Third-Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and assigns.
10. Entire Agreement. This Agreement (including the documents referred
to herein) constitutes the entire agreement among the Parties and supersedes any
prior understandings and agreements (unless such agreements expressly so
provide), by or among the Parties, written or oral, to the extent they relate in
any way to the subject matter hereof.
11. Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties and their respective successors and assigns.
12. Counterparts. This Agreement is an agreement under seal and may be
executed in one or more counterparts, each of which shall be deemed an original
but all of which together will constitute one and the same instrument.
13. Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
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14. Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to TJX:
The TJX Companies, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (508) 390-2457
Attention: General Counsel
Copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
Citicorp Center
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
If to BJ's:
BJ's Wholesale Club, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (508) 651-6251
Attention: Treasurer
Copy to:
▇▇▇▇ and ▇▇▇▇ LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
Party may change the address to which notices, requests, demands, claims, and
other communications hereunder are to be delivered by giving the other Party
notice in the manner herein set forth.
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15. Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the Commonwealth of Massachusetts without
giving effect to any choice or conflict of law provision or rule (whether of the
Commonwealth of Massachusetts or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the Commonwealth of
Massachusetts.
16. Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by the
Parties. No waiver by any Party of any default or breach of covenant hereunder,
whether intentional or not, shall be deemed to extend to any prior or subsequent
default or breach of covenant hereunder or affect in any way any rights arising
by virtue of any prior or subsequent such occurrence.
17. Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
18. Expenses. Each Party will bear his or its own costs and expenses
(including legal fees and expenses) incurred in connection with this Agreement.
19. Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any Party by virtue of the authorship of any of
the provisions of this Agreement.
20. Specific Performance. Each Party acknowledges and agrees that the
other Party would be damaged irreparably in the event any of the provisions of
this Agreement are not performed in accordance with their specific terms or
otherwise are breached. Accordingly, each Party agrees that the other Party
shall be entitled to an injunction or injunctions to prevent breaches of the
provisions of this Agreement and to enforce specifically this Agreement and the
terms and provisions hereof in any action instituted in any court of the United
States or any State thereof having jurisdiction over the Parties and the matter,
in addition to any other remedy to which they may be entitled, at law or in
equity.
21. Further Assurances. Each Party to this Agreement shall execute such
documents and take such further actions as may be reasonably required or
desirable to carry out the provisions hereof.
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22. Authority. The Parties hereto represent and warrant to each other
that the signatories to this Agreement are authorized to execute this Agreement;
that each has full power and authority to enter into this Agreement; that this
Agreement is duly executed and delivered, and constitutes a valid, binding
agreement in accordance with its terms.
23. Effective Date. This Agreement, and all of the rights and
obligations of the parties hereunder, shall become effective upon the Effective
Date, and if the Effective Date does not occur by December 31, 1997, this
Agreement shall be null and void.
24. Waiver of Jury Trial. THE PARTIES HERETO EACH WAIVE THEIR
RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY A
PARTY AGAINST THE OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT
CLAIMS, OR OTHERWISE. THE PARTIES HERETO EACH AGREE THAT ANY SUCH CLAIM OR CAUSE
OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE
FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY
JURY IS WAIVED BY OPERATION OF THIS SECTION 24 AS TO ANY ACTION, COUNTERCLAIM OR
OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT.
25. TJX Representation. TJX hereby represents that it has no Knowledge
of the existence of a lease or sub-lease of property that is (i) currently used
by the HomeBase division for which TJX or any Affiliate thereof may be liable as
a tenant, sub-lessee, surety or guarantor and (ii) not listed on the Schedule of
Leases. For the purposes of this Agreement, "Knowledge" shall mean the actual
present knowledge of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, without investigation; provided,
however, that the fact that ▇▇. ▇▇▇▇▇▇▇▇ may have executed a guaranty with
respect to such lease shall not be deemed to be actual knowledge of ▇▇. ▇▇▇▇▇▇▇▇
unless such guaranty was executed by ▇▇. ▇▇▇▇▇▇▇▇ on or after January 18, 1997.
26. Subrogation. In the event of any payment by BJ's to a TJX
Indemnitee in connection with any Third Party Claim, BJ's shall be subrogated to
and shall stand in the place of such TJX Indemnitee as to any events or
circumstances for which such TJX Indemnitee may have any right or claim relating
to such Third Party Claim against any claimant or plaintiff asserting such Third
Party Claim or as against any other Person; provided, however, that BJ's shall
have no such right of subrogation in regard to any HomeBase Lease Liability or
any BJ's Lease Liability if the TJX Indemnitees have not been fully discharged
and exonerated from any and all Liability in respect of the HomeBase Lease or
BJ's Lease in
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question. If BJ's is entitled to subrogation under this section 26, the TJX
Indemnitees shall cooperate with BJ's in a reasonable manner, at the cost and
expense of BJ's, in prosecuting any subrogated right or claim.
*****
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.
THE TJX COMPANIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Title: Executive Vice President
---------------------------------
BJ'S WHOLESALE CLUB, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Title: Senior Vice President
---------------------------------
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