Exhibit 99.5
EXECUTION COPY
TRI-PARTY CUSTODY AGREEMENT
BY AND AMONG
XXXXXX STORES LIQUIDATING TRUST
(Pledgor)
AND
CANADIAN IMPERIAL BANK OF COMMERCE
(Pledgee)
AND
UNITED STATES TRUST COMPANY OF NEW YORK
(Custodian)
TRI-PARTY CUSTODY AGREEMENT
THIS AGREEMENT (this "Agreement") is made and entered
into as of the date written below by and among Pledgor, Pledgee,
and Custodian as identified upon the signature page hereof.
R E C I T A L S
WHEREAS, Pledgor has executed a Master Pledge Agreement
dated as of December __, 1997 in favor of Pledgee (the "Pledge
Agreement") providing for the pledge and delivery of collateral
for security for the obligations of Pledgor under a certain
Master Agreement (the "Master Agreement"); and
WHEREAS, Custodian is authorized to hold securities and
properties and to utilize agents, correspondent banks or
affiliates where appropriate for the custody, retention,
safekeeping and processing of securities and properties, and to
use other means available to it for the custody, retention,
safekeeping and processing of securities and properties; and
WHEREAS, Custodian has agreed to act as custodian of
certain monies and securities on behalf of Pledgee as described
herein,
NOW THEREFORE, in consideration of the mutual promises
set forth herein and intending to be legally bound hereby, it is
agreed as follows:
1. DEFINITIONS
Unless otherwise defined herein, terms defined in the
Master Agreement or the Master Pledge Agreement will have such
defined meanings when used herein. In addition, as used in this
Agreement, the following terms will have the following meanings:
"Authorized Person". A person described on Exhibit C
hereto.
"Business Day" or "New York Banking Day". Any day on
which commercial banks are open for business in New York, New
York.
"Collateral". All securities, obligations and other
property (including cash) and all additions and substitutions
therefor, all of a type agreed to in writing (which may include a
Confirmation) by Pledgor and Pledgee, which are pledged to and
received by Pledgee under the Pledge Agreement, together with all
collections, income, distributions and claims in respect thereof,
all proceeds of any of the foregoing and all powers and rights of
the Pledgor now or hereafter acquired by the Pledgor, including
rights of enforcement, under any or all of the foregoing.
"Collateral Account". The account or accounts
described in Paragraph 4a. hereof as the Collateral Account.
"Collateral Securities". All securities comprising the
Collateral.
"UCC". The Uniform Commercial Code as in effect from
time to time in the State of New York.
2. SERVICES OF CUSTODIAN
a. Appointment of Custodian. Pledgor and Pledgee
hereby jointly appoint Custodian as custodian to hold in custody
all Collateral at any time transferred by Pledgor to Pledgee as
security for Pledgor's obligations to Pledgee under the Master
Agreement to the extent that such Collateral shall be delivered
by Pledgor or Pledgee to the Custodian. Custodian shall act as
agent of Pledgee with respect to such Collateral.
b. Acceptance of Custodian. Custodian accepts the
appointment and, subject to the terms and conditions of this
Agreement, agrees to receive Collateral in the manner specified
herein to be held hereunder, and to hold, release, or otherwise
dispose of such Collateral as hereinafter provided. Custodian
will act solely on the instructions of Pledgor and Pledgee as
specifically set forth under this Agreement.
c. Scope of Custodian's Duties. Custodian's duties
hereunder shall continue until altered in writing by the parties
hereto or until the termination of this Agreement. Custodian
undertakes to perform only those duties which are expressly set
forth in this Agreement and no covenant or obligation shall be
implied in this Agreement against Custodian. If Collateral shall
not be held or disposed of as required by the Pledge Agreement or
a collateral transaction shall not be completed for any reason
whatsoever (other than Custodian's failure to perform its
obligations hereunder) and Custodian shall request further
instructions as hereinafter provided, Custodian's duties to
Pledgor and Pledgee shall be limited to accepting new
instructions with respect to any transaction, holding Collateral
or transferring or delivering Collateral as hereinafter provided.
d. Authorization: Agents, Subcustodians, and
Securities Custody. Pledgor and Pledgee authorize Custodian to
utilize agents, subcustodians, depositories, correspondent banks
and affiliates (collectively, "Agents") to process deliveries in
and out of the Collateral Account and to hold Collateral and to
use any other means legally available to it for the retention,
processing or maintenance of Collateral; provided that the
representations and warranties of the Custodian would be true and
correct for such Agent and such Agent is able and does maintain
the Collateral in compliance with Paragraph 4 hereof. References
to "Custodian" hereunder shall be deemed to include other agents
of Custodian to the extent that such entities perform Custodian's
duties under this Agreement. Neither the appointment of any
other agent, subcustodian, depository, correspondent bank or
affiliate nor any other action taken pursuant to this Paragraph
2d. shall relieve Custodian of any of its obligations under this
Agreement.
Pledgor further authorizes Custodian to hold securities
constituting part of the Collateral in bulk or to hold such
securities registered in street name, or in the name of
Custodian's nominee or the nominee of its agents or affiliates,
in each case in negotiable form.
3. REPRESENTATIONS AND WARRANTIES
a. Representations of Pledgor and Pledgee. Pledgor
and Pledgee each represents and warrants to Custodian as of the
date hereof, as of each Purchase Date, and as of each Repurchase
Date, the following:
(i) It is duly organized and existing under the
laws of the jurisdiction of its organization with full power
and authority to execute and deliver this Agreement and to
perform all the duties and obligations to be performed by it
hereunder.
(ii) This Agreement has been duly authorized,
executed, and delivered, and the performance of all
transactions contemplated hereunder has been duly
authorized, in accordance with all requisite corporate
action, and this Agreement constitutes a valid, legal and
binding obligation enforceable in accordance with its terms,
except as may be limited by bankruptcy, insolvency or
similar laws, or by equitable principles relating to or
limiting creditors rights generally.
(iii) The execution, delivery, and performance of
this Agreement, and the performance of the transactions
contemplated hereunder, will not violate any agreement by
which it is bound or by which any of its assets are
affected, or its charter, by-laws, or any statute,
regulation, rule, order or judgment applicable to it.
(iv) It has the power and authority to enter into
the Master Agreement and the Pledge Agreement and to deliver
and transfer the Collateral to be delivered or transferred
by it hereunder.
(v) It is acting as principal in executing this
Agreement and will act as principal in all transactions
hereunder.
b. Representations of Custodian. Custodian
represents and warrants to Pledgor and Pledgee as of the date
hereof and as of each date on which any Collateral is held,
delivered to the Custodian or delivered out by the Custodian the
following:
(i) It is duly organized and existing under the
laws of the jurisdiction of its organization with full power
and authority to execute and deliver this Agreement and to
perform all the duties and obligations to be performed by it
hereunder.
(ii) This Agreement has been duly authorized,
executed, and delivered, and the performance of all
transactions contemplated hereunder has been duly
authorized, in accordance with all requisite corporate
action, and this Agreement constitutes a valid, legal and
binding obligation enforceable in accordance with its terms,
except as may be limited by bankruptcy, insolvency or
similar laws, or by equitable principles relating to or
limiting creditors' rights generally.
(iii) The execution, delivery, and performance of
this Agreement, and the performance of the transactions
contemplated hereunder, will not violate any agreement by
which it is bound or by which any of its assets are
affected, or its charter, by-laws, or any statute,
regulation, rule, order or judgment applicable to it.
(iv) It will maintain the Collateral Account as a
custody account and shall administer the Collateral Account
in the same manner it administers similar accounts
established for the same purpose, and it shall create and
maintain the books and records created in connection with
the Collateral Account in the State of New York. Custodian
in the ordinary course of its business maintains custody
accounts for customers with respect to cash and securities
(including those securities and instruments of the types
constituting Collateral as defined herein) and with respect
to securities held by it hereunder will be acting in that
capacity.
(v) It is a bank and trust company chartered
under the laws of the State of New York with its principal
office at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Custodian in the ordinary course of its business maintains
securities custody accounts for its customers and when
performing services pursuant to this Agreement, Custodian
shall be acting in that capacity. Custodian regularly
accepts in the course of its business securities such as
Collateral Securities as a custodial service for customers
and maintains accounts in the names of such customers
reflecting ownership of or interest in such securities.
Custodian shall administer the Collateral Account in the
same manner in which it administers similar accounts of
other customers established for the same purpose.
c. Continuing Warranties of Custodian. Custodian
shall promptly notify Pledgee and Pledgor if any of Custodian's
representations hereunder shall be or become untrue or misleading
in any material respect.
4. MAINTENANCE OF THE COLLATERAL ACCOUNT
a. The Collateral Account. Custodian shall maintain
such records and establish such accounts on its books as may be
required from time to time to receive, hold and account for all
cash and securities to be held as Collateral pursuant to this
Agreement.
b. Transfer of Collateral Securities to the
Collateral Account. Each security constituting part of the
Collateral shall be continuously maintained by Custodian in the
Collateral Account. Custodian shall continuously identify such
Collateral Securities as belonging to the Pledgee and identified
to the Collateral Account on Custodian's books and records.
Whenever any security constituting part of the Collateral is
transferred to the Custodian, the Custodian shall send to the
Pledgee a confirmation of such transfer and a certificate with
respect to such securities in the form of Exhibit E hereto. Upon
receipt of any securities by the Custodian from the Pledgor for
the benefit of the Pledgee, the Custodian shall immediately
notify the Pledgee of such receipt and the Custodian shall by
identify such securities as subject to Pledgee's interest. On
the first Business Day of each month on which Collateral is held,
Custodian shall forward to Pledgor and Pledgee a statement
identifying the securities held in the Collateral Account.
Custodian shall maintain cash in the Collateral Account in
immediately available funds.
c. Segregation of Assets. Custodian shall segregate
and separately account on its books and records for all cash and
securities held for customers, including the Collateral Account
from assets it holds in its individual capacity. Custodian shall
maintain and hold in custody cash and securities held in the
Collateral Account until: (i) it shall receive Pledgee's
instructions to deliver or transfer to Pledgee cash and
Collateral Securities, as provided in Paragraph 16 hereof; or
(ii) this Agreement is terminated.
d. Pledge by Custodian. The Collateral Account shall
not be subject to any security interest, lien or any right of
set-off by Custodian. Custodian shall not pledge, encumber,
hypothecate, transfer, dispose of, or otherwise grant any party
other than Pledgor and Pledgee an interest in, any cash or
securities held by Custodian as collateral pursuant to this
Agreement.
5. RECEIPT OF INSTRUCTIONS; PAYMENT OF MONIES; DELIVERY OF
SECURITIES
a. Terms of Instructions. If at any time, the terms
of Pledgor's instructions and Pledgee's instructions are not
identical, Custodian shall notify Pledgor and Pledgee, who shall
use their best efforts to provide new instructions as quickly as
possible. Except as provided in this Agreement with respect to a
Notice of Collection, in the event of such a conflict Custodian
shall take no action and shall wait for further instructions from
Pledgor and Pledgee for three (3) Business Days, after which time
the Custodian shall follow the instructions of Pledgee.
b. Cash Transfers. All payments of cash shall be
maintained in the Collateral Account or be credited to Pledgee,
as instructed by Pledgee, in immediately available funds and
effected by wire transfer to the appropriate account designated
in Exhibit B hereto.
c. Securities Transfers. All transfers of securities
to be transferred to the Collateral Account shall be effected by
Pledgee's transfer of the same to the account and at the location
and within the time periods designated in Exhibit A hereto. All
securities transferred to Custodian shall be in negotiable form.
d. Effect of Notice of Levy etc. Notwithstanding
anything in this Agreement to the contrary, Custodian shall not
be required to deliver or transfer cash or securities in
contravention of any notice of levy, seizure or similar notice or
order, or judgment, issued or directed by a governmental agency
or court, or officer thereof, having jurisdiction over Custodian
or its agent or affiliates, which on its face affects such cash
or securities. Custodian shall give Pledgor and Pledgee prompt
notice of any such notice or order.
e. Collateral Securities. Upon the transfer of
securities or cash to the Collateral Account, it is agreed by
Pledgee and Pledgor that the securities or cash held by Custodian
in the Collateral Account shall be subject to the pledge, lien,
and security interest granted by Pledgor to Pledgee.
6. [RESERVED]
7. CUSTODIAN STATEMENTS
Custodian shall provide Pledgor and Pledgee with semi-
monthly information statements reflecting cash and securities
positions in the Collateral Account as of the 1st and 15th day of
each month. Pledgor and Pledgee shall promptly review all such
information statements and shall promptly advise Custodian of any
error, omission, or inaccuracy in the cash transactions, cash
balances, securities deposits and withdrawals or securities
positions reported. Custodian shall undertake to correct any
errors, failures, or omissions that are reported to Custodian by
Pledgor or Pledgee. Any such corrections shall be reflected on
subsequent information statements.
8. CUSTODIAN FEES AND EXPENSES
Pledgor shall pay Custodian's fees and expenses
including reasonable legal fees incurred in connection with the
execution and delivery of this Agreement and thereafter for
services provided pursuant to this Agreement.
9. NO GUARANTY BY CUSTODIAN
PLEDGOR AND PLEDGEE SPECIFICALLY ACKNOWLEDGE THAT
CUSTODIAN IS NOT GUARANTEEING PERFORMANCE OF THE OBLIGATIONS OF
PLEDGOR OR PLEDGEE HEREUNDER, UNDER THE PLEDGE AGREEMENT OR
MASTER AGREEMENT OR WITH RESPECT TO ANY TRANSACTION OR ASSUMING
ANY LIABILITY WITH RESPECT TO THE PERFORMANCE OF PLEDGOR OR
PLEDGEE, NOR IS CUSTODIAN UNDERTAKING ANY CREDIT RISK ASSOCIATED
WITH THE TRANSACTIONS, WHICH LIABILITIES ARE THE RESPONSIBILITY
OF PLEDGOR AND PLEDGEE. FURTHER, EXCEPT AS MAY BE ARRANGED BY A
SEPARATE AGREEMENT, CUSTODIAN IS UNDER NO OBLIGATION TO UNDERTAKE
TO MAKE ANY CREDIT AVAILABLE TO EITHER PLEDGOR OR PLEDGEE TO
ENABLE EITHER OF THEM TO COMPLETE TRANSACTIONS.
10. FORCE MAJEURE
Any party to this Agreement (the "Obligor") shall not
be liable for any expense, loss, claim or damage (including
counsel fees) suffered by any other party to this Agreement
arising out of or caused by any delay in, or failure of,
performance by the Obligor, in whole or in part, arising out of,
or caused by, acts of God; interruption of, delay in, or loss
(partial or complete) of electrical power or communication
services provided to the Obligor by unaffiliated parties; act of
civil or military authority; sabotage; natural emergency;
epidemic; war or other government action; civil disturbance;
flood, earthquake, drought, fires or other catastrophe; strike or
other labor disturbance by employees or personnel of unaffiliated
Parties; government, judicial, or self regulatory organization
order, rule, or regulation adopted or entered after the date
hereof; or riot; provided, however, that such expenses, losses,
claims or damages do not arise from circumstances within the
Obligor's control. For purposes of this Paragraph 10, Obligor,
with respect to Custodian, shall be deemed to include affiliates.
Nothing in this Paragraph 10 shall be read to affect the
indemnity provided in Paragraph 12 hereof.
11. CONCERNING THE CUSTODIAN
a. Intermediary. With respect to all securities
delivered or transferred by Custodian hereunder, Custodian shall
be deemed an "intermediary" within the meaning of Section 8-
306(3) of the UCC and, except as expressly provided in Paragraph
3b. hereof, the only warranty given by Custodian shall be the
warranty provided in Section 8-306(3) of the UCC.
x. Xxxxx in Receiving Cash or Securities. Custodian
shall not be liable for any expense, loss, claim or damage
(including counsel fees) that Pledgor, Pledgee or any other
third-party may suffer by reason of any delay Pledgor, Pledgee or
Custodian may experience in obtaining cash or securities from, or
by reason of any action or omission to act on the part of, any
depository, clearing agent, transfer agent, issuer, securities
broker or dealer, any other party, or the FRBNY securities wire
transfer system, or in obtaining cash from any bank, including
the FRBNY, clearing agent, or other party, unless such expense,
loss, claim or damage arose by reason of a delay in obtaining
cash, or securities from, or by reason of gross negligence or
willful misconduct on the part of, Custodian.
c. Forgery; False Data. Custodian shall not be
liable for any expense, loss, claim or damage (including counsel
fees) Pledgor, Pledgee or any other third-party may suffer by
reason of any failure of signature by an Authorized Person on or
inaccuracy, incompleteness or falsity of any notice or
instruction or any other written instrument or inaccuracy,
incompleteness or falsity of data transmitted by computer tape or
terminal or other computer facilities, if Custodian shall have
reasonably believed that such instructions, instrument or data
was for the account or benefit of Pledgor or Pledgee or that the
writing was signed by, or the data was transmitted by, an
Authorized Person.
d. No Duty of Inquiry. Without limiting the
generality of the foregoing, Custodian shall be under no
obligation to inquire into, and shall not be liable for:
(i) the title, validity or genuineness of any
security;
(ii) the legality of the purchase or delivery or
transfer of any security or the propriety of the price at
which the same are acquired or sold;
(iii) the due authority of any Authorized Person to
act on behalf of Pledgor or Pledgee with respect to cash or
securities held in the Collateral Account; or
(iv) the due authority of Pledgor to deliver cash
or any security delivered to Pledgee or Custodian pursuant
to this Agreement.
e. Price Data. Custodian shall not be liable for any
expense, loss, claim or damage (including counsel fees) Pledgor,
Pledgee or any third person may suffer by reason of any error in,
or any inaccuracy of, any price received from the Pledgor or any
other pricing source. Custodian shall have no duty to inquire
into the appropriateness or relative change of any price nor
shall Custodian be required to determine volatility factors with
respect to any price.
f. Limitation of Liability. Custodian shall use
reasonable care in performing its obligations hereunder.
Custodian shall be liable to Pledgor and Pledgee as their
interests may appear for the negligent loss of securities and
cash from the Collateral Account by reason of robbery, burglary
or theft by it or its employees, agents or delegates.
Notwithstanding any other provision of this Agreement, Pledgor
and Pledgee agree that Custodian's liability hereunder shall be
limited to the direct damages resulting from Custodian's breach
of this Agreement, and in no event shall Custodian be liable for
special, consequential or incidental damages incurred or suffered
by Pledgor or Pledgee.
12. INDEMNIFICATION
Pledgor agrees to release, indemnify and hold harmless,
Custodian, its directors, officers, employees or agents (the
"Indemnified Parties") for all costs, losses, expenses, damages,
liabilities or claims, including reasonable fees and expenses of
counsel, which any of them may sustain or incur or which may be
asserted against any of them (i) relating to those areas of
liability expressly disclaimed or restricted in this Agreement or
(ii) by reason of or as a result of any action taken or omitted
by them in connection with operating under this Agreement or
resulting from any actual or alleged breach of this Agreement by
Pledgor or Pledgee (including costs and expenses of the
Indemnified Parties' defense of or participation in regulatory
investigations, administrative proceedings or other legal
proceedings), except those losses and damages, including
counsel's fees and expenses, arising out of the gross negligence
or willful misconduct of the Indemnified Party. Any Indemnified
Party that is made a defending party in an action, claim or
administration proceeding, the expense of the defense of which is
covered by this Paragraph 12, shall so notify Pledgor
immediately. Pledgor shall have the right at its election to
take over the defense or settlement of such action, claim or
administrative proceeding by giving prompt notice to the
Indemnified Party that it will do so. If Pledgor makes such
election, it may conduct the defense of such action, claim or
administrative proceeding through counsel of its choice and the
Indemnified Party shall be bound by the result of Pledgor's
defense or settlement of the action, claim or administrative
proceeding.
13. CONTINUING DISPUTES
In the event of any dispute between or conflicting
claims by Pledgor and Pledgee and any other party, except
Custodian, with respect to securities or cash in the Collateral
Account, Custodian may decline to comply with any and all claims,
demands or instructions with respect to such Collateral
Securities or cash so long as such dispute or conflict shall
continue, and Custodian shall not be liable for failure to act or
to comply with such claims, demands or instructions. Custodian
shall be entitled to refuse to act or comply until either (i)
such conflicting or adverse claims or demands shall have been
determined in a court of competent jurisdiction or settled by
agreement between the conflicting parties and Custodian shall
have received evidence satisfactory to it of the same, or (ii)
Custodian shall have received security or an indemnity
satisfactory to it sufficient to hold it harmless from and
against any and all losses or damages, including counsel's fees
and expenses, which it may incur by reason of taking any action.
14. FORM OF INSTRUCTIONS
Instructions shall be in writing and effective from the
time they are actually received by an Authorized Person of
Custodian from an Authorized Person of the instructing party or
from a person reasonably believed by Custodian to be an
Authorized Person of the instructing party by mail, by telecopy
or other facsimile machine, or any other means designated by the
Custodian.
15. TERMINATION
Any of the parties hereto may terminate this Agreement
by giving to the other parties a notice in writing specifying the
date of such termination, which shall be not less than ninety
days after the date of giving of such notice, except that if any
of the representations made by Custodian hereunder have become
untrue or misleading in any material respect, Pledgor and Pledgee
may terminate this Agreement immediately; provided, however, that
no termination of this Agreement shall be effective until a
successor custodian (reasonably acceptable to Pledgee) has
accepted the duties of Custodian. Custodian shall remain liable
for its representations and warranties hereunder after
termination of this Agreement. Custodian shall deliver any
securities or cash remaining in the Collateral Account on
termination of this Agreement to a successor custodian designated
in written instructions from Pledgor and Pledgee.
16. NOTICE OF COLLECTION
a. Delivery of Notice of Collection. If Pledgee
shall elect to demand collection of all or any part of the
Collateral, it shall deliver a Notice of Collection to Custodian
and the Pledgor. Such notice of Collection shall only be given
to the Custodian after three New York Banking Days' written
notice to Pledgor as required by Section 7 of the Pledge
Agreement and shall recite the satisfaction such notice
requirement. Custodian shall notify the Pledgor of the receipt
of a Notice of Collection but shall have no further obligation or
duty to inquire into the nature or validity of the failure to pay
any Obligation or portion thereof by Pledgee set forth in the
Notice of Collection.
b. Effect of Pledgee's Notice of Collection. From
and after receipt of a Notice of Collection from Pledgee
hereunder, Custodian shall continue to hold all securities and
cash in the Collateral Account unless it shall receive
instructions from Pledgee to transfer all or any part of the
Collateral Securities and cash in the Collateral Account.
c. Further Assurances. If Custodian receives a
Notice of Collection from the Pledgee, Custodian shall continue
to provide custody services with respect to securities and cash
held in the Collateral Account for a period not to exceed 90 days
but shall not be required to provide additional services unless
Pledgee gives Custodian assurances that Pledgee shall pay
Custodian's fees or Pledgor undertakes to pay Custodian's fees
for such additional services.
17. MISCELLANEOUS
a. Authorized Personnel. Exhibit C hereto contains
the names, titles and specimen signatures of those individuals
authorized to act on behalf of Pledgor and Pledgee and the
purposes for which each is authorized. It is understood that
certain designated persons may be Authorized Persons for limited
purposes set forth in Exhibit C hereto. Pledgor and Pledgee
agree to furnish to all parties a written notice if any such
individual authorized by either of them ceases to be authorized
or if other or additional authorized individuals are appointed
and authorized. Upon receipt and acknowledgment of a notice from
Pledgor or Pledgee that an individual is no longer an Authorized
Person, Custodian shall cease accepting instructions from such
person as soon as practicable thereafter.
b. Notices. Any notice authorized or required by
this Agreement shall be sufficiently given if addressed to the
receiving party and hand delivered or sent by mail, telecopy or
other facsimile machine to the receiving party, to the other
party to this Agreement. Any such notice shall be addressed to
the individuals at the addresses set forth on Exhibit D hereto or
to such other person or persons as the receiving party may from
time to time designate to the other parties in writing and shall
become effective upon receipt.
c. Amendments. Except as otherwise expressly
provided in this Agreement, this Agreement may not be amended or
modified in any manner except by a written agreement executed by
all the parties by an Authorized Person of each party. No waiver
or acceptance of performance other than as provided herein on the
part of any party shall constitute a waiver or acceptance of such
performance in the future.
d. Binding Agreement. This Agreement shall extend to
and shall be binding upon the parties hereto, and their
respective successors and assigns (including any trustees,
conservators or other officers of the court in any bankruptcy or
insolvency proceeding); provided, however, that this Agreement
shall not be assignable by any party without the written consent
of the other parties hereto and any such assignment shall be null
and void. If any provision of this Agreement shall be
inconsistent or conflict with any provision of the Master
Agreement or the Master Pledge Agreement, the provisions of this
Agreement shall control.
e. Survival. All releases and indemnifications
provided in this Agreement shall survive the termination of this
Agreement.
f. Applicable Law. This Agreement shall be construed
in accordance with the laws of the State of New York without
giving effect to the conflict of law principals thereof.
g. Headings and References. The headings and
captions in this Agreement are for reference only and shall not
affect the construction or interpretation of any of its
provisions. Except as expressly provided herein, all references
to Paragraphs, Subparagraphs and Exhibits refer to the
Paragraphs, Subparagraphs and Exhibits of this Agreement.
h. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be
an original, but such counterparts shall, together, constitute
only one Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective corporate officers,
thereunto duly authorized, as of the 31st day of December, 1997.
Pledgor: XXXXXX STORES LIQUIDATING TRUST
By: /s/ Xxxxxxxxx X. Xxxxxx
Name: Xxxxxxxxx X. Xxxxxx
Title: Manager and Chief Executive Officer
Pledgee: CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Vice President
Custodian: UNITED STATES TRUST COMPANY OF NEW
YORK
By: /s/ Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx Xxxxxxx
Title: Assistant Vice President
EXHIBIT A
TRANSFER OR DELIVERY OF SECURITIES - Procedures
CUSTODIAN'S ACCOUNT
Location:
Account Designation:
Timing for deliveries:
The foregoing may be amended from time to time by
agreement of Pledgee and Custodian.
PLEDGOR'S ACCOUNT
Location:
Account Designation:
Timing for deliveries:
The foregoing may be amended from time to time by
agreement of Pledgor and Custodian.
EXHIBIT B
DESCRIPTION OF ACCOUNTS
CASH
A. The Collateral Account
ABA:
Name:
A/C:
A/C Name:
B. Pledgor's Delivery Instructions
ABA:
Name:
A/C:
A/C Name:
C. Pledgee's Delivery Instruction
ABA:
Name:
For Credit of:
DDA Account No.:
Reference:
Trust A/C:
Branch:
Attention:
EXHIBIT C
AUTHORIZED PERSONS
PLEDGOR
[SEE ATTACHED]
I, , a Secretary of _______________
(the "Corporation"), a corporation duly incorporated under the
laws of the State of _________, do hereby certify that the titles
and specimen signatures of the persons listed below are true and
correct:
NAME SIGNATURE
IN WITNESS WHEREOF, I set my hand and placed the seal
of the Corporation this day of , 1993
[PLEDGOR]
[Secretary]
EXHIBIT C
(Continued)
AUTHORIZED PERSONS
PLEDGEE
Signature Name Official Title
EXHIBIT C
(continued)
AUTHORIZED PERSONS
CUSTODIAN
Name, Title, Purpose Specimen
1.
Corporate Trust Officer
2.
Assistant Vice President
3.
Assistant Vice President
4.
Vice President
The information hereon may be amended or deleted unilaterally by
the party designating the Authorized Persons by notice in writing
to the other parties hereto.
EXHIBIT D
NOTICES
TO PLEDGEE:
Name:
Title:
Address:
Telephone:
Fax No.:
TO PLEDGOR:
Name:
Title:
Address:
Telephone:
Fax No.:
TO CUSTODIAN:
Name:
Title:
Address:
Telephone:
Fax No.:
EXHIBIT E
CERTIFICATE OF THE CUSTODIAN
This Certificate is submitted by _______________ (the
"Custodian") in connection with the securities listed in the
attached Exhibit 1 (the "Securities").
The Custodian by its duly authorized officer hereby
certifies and confirms to ________________ (the "Pledgee") that:
(1) The Securities are being and will be held in the
[COLLATERAL ACCOUNT] of the Custodian (or its nominee).
(2) The Custodian has by book entry or otherwise
identified on its records that the Securities are being held, and
will continuously be held, in a segregated non-fungible account
at the Custodian in favor of the Pledgee, and has confirmed to
the Pledgee that it has made such identification.
(3) The Custodian in the ordinary course of its
business maintains security accounts for its customers, regularly
accepts [Describe Collateral Securities] as a custodial service
for customers and maintains accounts in the names of such
customers reflecting ownership of or interest in such securities.
(4) The Custodian has credited the Collateral
Securities to the account of the Pledgee in good faith and
without notice of any adverse claim to the Collateral Securities.
DATE: ________________________
[CUSTODIAN]
By:
Title:
