EXHIBIT 10.13
INDEMNIFICATION AGREEMENT
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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
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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
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7 hereof.
1.02 "BJ's" shall have the meaning set forth in the recitals hereof.
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1.03 "BJ's Control Period" shall have the meaning set forth in
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section 4 hereof.
1.04 "BJ's Lease" shall mean any lease or sub-lease of property ever
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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
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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
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(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
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out, or relating to, a BJ's Lease.
1.08 "Disabling Conduct" shall mean the conduct of a Person that
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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
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hereof.
1.10 "Distribution Agreement" shall have the meaning set forth in the
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recitals hereof.
1.11 "Effective Date" shall have the meaning set forth in the
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recitals hereof.
l.12 "First Amendment" shall mean the First Amendment to the
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Distribution Agreement, dated as of April 18, 1997.
1.13 "HomeBase Lease" shall mean any of the leases or sub-leases of
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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
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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) 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
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TJX or BJ's in satisfaction of any HomeBase Lease Liability.
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1.16 "HomeBase Third Party Claim" shall mean a Third Party Claim
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arising out of, or relating to, a HomeBase Lease.
1.17 "Liability" shall mean any and all debts, liabilities and
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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
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set forth in section 7 hereof.
1.19 "Parties" shall have the meaning set forth in the recitals
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hereof.
1.20 "Schedule of Leases" shall mean the schedule of leases initialed
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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
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section 6.01(d)(i) hereof.
1.22 "Specified Obligations" shall mean, in regard to any HomeBase
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Lease, (i) the base rent in regard to such HomeBase Lease, provided,
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however, that any such base rent in excess of the annual base rent set
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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 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
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hereof.
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1.24 "Third Party Claim" shall mean the assertion by a Person (other
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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.
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1.26 "TJX Control Period" shall have the meaning set forth in section
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5.04 hereof.
1.27 "TJX Indemnitees" shall mean TJX, its Affiliates and their
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directors, officers, employees, representatives, attorneys,
accountants, and agents.
1.28 "Waban" shall have the meaning set forth in the recitals hereof.
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2. Indemnification for Breach of First Amendment. BJ's shall indemnify
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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
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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
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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 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.
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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
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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
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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.
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
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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
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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
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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:
(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
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borrower rather than Waban) greater than 1.20 to 1.0; provided,
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however, that, in calculating the Fixed Charge Coverage Ratio,
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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 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
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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
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shall not be unreasonably withheld. BJ's shall be deemed to have
consented to such settlement agreement 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
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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
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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
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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
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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
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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
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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
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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
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inserted for convenience only and shall not affect in any way the meaning
or interpretation of this Agreement.
14. Notices. All notices, requests, demands, claims, and other
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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:
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The TJX Companies, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (508) 390-2457
Attention: General Counsel
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Copy to:
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▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
Citicorp Center
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
If to BJ's:
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BJ's Wholesale Club, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (508) 651-6251
Attention: Treasurer
Copy to:
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▇▇▇▇ 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.
15. Governing Law. This Agreement shall be governed by and construed in
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accordance with the domestic laws of the Commonwealth of Massachusetts
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without giving effect to any choice or conflict of law provision or rule
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(whether of the Commonwealth of Massachusetts or any other jurisdiction)
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that would cause the application of the laws of any jurisdiction other than
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the Commonwealth of Massachusetts.
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16. Amendments and Waivers. No amendment of any provision of this
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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.
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17. Severability. Any term or provision of this Agreement that is invalid
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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
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(including legal fees and expenses) incurred in connection with this
Agreement.
19. Construction. The Parties have participated jointly in the
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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
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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
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documents and take such further actions as may be reasonably required or
desirable to carry out the provisions hereof.
22. Authority. The Parties hereto represent and warrant to each other
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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
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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
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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
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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 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: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Title: Executive Vice President
---------------------------------
BJ'S WHOLESALE CLUB, INC.
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Title: Senior Vice President
---------------------------------
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