EXHIBIT 10.37
PERFORMANCE UNDERTAKING
This Performance Undertaking (this "Undertaking"), dated as of September
28, 2001, is executed by Nordstrom, Inc., a Washington corporation (the
"Provider"), in favor of Bank One, NA (Main Office Chicago), a national banking
association ("Bank One" or "Agent"), as Agent (together with its successors and
assigns, "Recipient").
RECITALS
1. Nordstrom fsb (formerly Nordstrom National Credit Bank), a federal
savings bank association ("Transferor"), and Wells Fargo Bank West, National
Association (formerly Norwest Bank Colorado, National Association), a national
banking association ("Wells Fargo"), have entered into a Master Pooling and
Servicing Agreement, dated as of August 14, 1996, as amended by the First Amend-
ment thereto, dated as of March 1, 2000 (as so amended and as further amended,
restated, supplemented or otherwise modified from time to time, the
"Agreement"), pursuant to which Transferor, subject to the terms and conditions
contained therein, sold its right, title and interest in certain of its accounts
receivable to the Nordstrom Credit Card Master Trust, a Colorado common law
trust (the "Trust"), for which Wells Fargo acts as trustee.
2. Nordstrom Credit, Inc., a Colorado corporation ("NCI"), the
Transferor and Wells Fargo have entered into a Series 1996-A Supplement, dated
as of August 14, 1996, as amended by the First Amendment thereto, dated as of
December 23, 1997, by the Second Amendment thereto, dated as of February 28,
1999, and by the Third Amendment thereto, dated as of September 28, 2001 (as so
amended and as further amended, restated, supplemented or otherwise modified
from time to time, the "Series Supplement"), which supplements the Agreement.
Pursuant to the Series Supplement and the Agreement, NCI, subject to the terms
and conditions contained therein, makes certain representations, warranties and
covenants, including agreeing to pay certain costs, fees and other amounts, all
for the benefit of the Certificateholders (as defined in the Agreement),
including Falcon Asset Securitization Corporation, a Delaware corporation
("Falcon").
3. Each of Transferor and NCI is a Subsidiary of Provider and Provider
has and will continue to receive substantial direct and indirect benefits from
the sale of accounts receivable by Transferor to the Trust pursuant to the
Agreement (which benefits are hereby acknowledged).
4. As an inducement for Falcon to accept assignment of the Certificates
issued by the Trust and for Bank One to become agent, each pursuant to the
Assignment Agreement, dated as of September 28, 2001, among Enterprise Funding
Corporation, Bank of America, National Association (formerly NationsBank, N.A.),
Falcon, Recipient, Transferor, NCI and Wells Fargo, Provider has agreed to
guaranty the due and punctual performance by (i) Transferor of its obligations,
individually and in its capacity as Servicer, under the Agreement, the Transfer
and Administration Agreement (as hereinafter defined) and the Series Supplement
and (ii) NCI of its obligations under the Series Supplement and the Agreement.
5. Provider wishes to guaranty the due and punctual performance by (i)
Transferor of its obligations, individually and in its capacity as Servicer,
under the Agreement, the Transfer and Administration Agreement and the Series
Supplement and (ii) NCI of its obligations under the Series Supplement and the
Agreement, each as provided herein.
AGREEMENT
NOW, THEREFORE, Provider hereby agrees as follows:
Section 1. Definitions. Capitalized terms used herein and not
defined herein shall have the respective meanings assigned thereto in the
Transfer and Administration Agreement. In addition:
"Obligations" means, collectively, (i) all covenants, agreements, terms,
conditions and indemnities to be performed and observed by Transferor,
individually and in its capacity as Servicer, under and pursuant to the
Agreement, the Transfer and Administration Agreement, the Series Supplement and
each other document executed and delivered by Transferor pursuant to the
Agreement, the Transfer and Administration Agreement or the Series Supplement,
as each such agreement is in effect on the date of this Undertaking, including,
without limitation, the due and punctual payment of all sums which are or may
become due and owing by Transferor or Servicer under the Agreement, the Transfer
and Administration Agreement or the Series Supplement, whether for fees,
expenses (including counsel fees), indemnified amounts or otherwise, whether
upon any termination or for any other reason (including amounts that would
become due but for the operation of the discretionary stay under Section
11(c)(12) of the Federal Deposit Insurance Act, 12 U.S.C. Section 1821(a)(12),
as amended) and (ii) all covenants, agreements, terms, conditions and
indemnities to be performed and observed by NCI under and pursuant to the Agree-
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ment, the Series Supplement and each other document executed and delivered by
NCI pursuant to the Agreement or the Series Supplement, as each such agreement
is in effect on the date of this Undertaking, including, without limitation, the
due and punctual payment of all sums which are or may become due and owing by
NCI under the Agreement or the Series Supplement, whether for fees, expenses
(including counsel fees), indemnified amounts or otherwise, whether upon any
termination or for any other reason (including amounts that would become due but
for the operation of the automatic stay under Section 362(a) of the Bankruptcy
Code, 11 U.S.C. Section 362(a), as amended).
As used herein, "Transfer and Administration Agreement" means the
Amended and Restated Transfer and Administration Agreement, dated as of Septem-
ber 28, 2001, by and among Transferor, the Bank Investors party thereto from
time to time, Falcon and Bank One, as amended, restated or otherwise modified
from time to time.
Section 2. Guaranty of Performance of Obligations. Provider hereby
guarantees to Recipient, the full and punctual payment and performance by each
of Transferor and NCI of its respective Obligations. This Undertaking is an
absolute, unconditional and continuing guaranty of the full and punctual
performance of all of the Obligations of (i) Transferor under the Agreement, the
Transfer and Administration Agreement, the Series Supplement and each other
document executed and delivered by Transferor pursuant thereto and (ii) NCI
under the Agreement, the Series Supplement and each other document executed
and delivered by NCI pursuant thereto. This Undertaking is in no way conditioned
upon any requirement that Recipient first attempt to collect any amounts owing
by Transferor or NCI to Recipient, the Bank Investors or from any other Person
or resort to any collateral security, any balance of any deposit account or
credit on the books of Recipient or any Bank Investor in favor of Transferor,
NCI or any other Person or other means of obtaining payment. Should Transferor
or NCI default in the payment or performance of any of its respective
Obligations, Recipient (or its assigns) may, upon three Business Days' written
notice to Provider, cause the immediate performance by Provider of such
Obligations and cause any payment Obligations to become forthwith due and
payable to Recipient (or its assigns), without demand or notice of any nature
(other than as expressly provided herein), all of which are hereby expressly
waived by Provider. Notwithstanding the foregoing, (i) Provider is not obligated
to make any payments in respect of its obligations under this Undertaking to the
extent that such payments exceed, in the aggregate, $200,000,000; (ii) this
Undertaking is not a guarantee of the payment by an Obligor or collection of any
of the Receivables
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(as defined in the Agreement); and (iii) Provider shall not be responsible for
any Obligations to the extent the failure to perform such Obligations by
Transferor or NCI results from Receivables being uncollectible on account of the
insolvency, bankruptcy or lack of creditworthiness of the related Obligor (as
defined in the Agreement); provided, that nothing herein shall relieve
Transferor from performing in full its Obligations as Servicer or Provider of
its undertaking hereunder with respect to the full performance of such duties.
Any payment by the Provider hereunder shall discharge all of the Provider's
liability for the amounts so paid.
Section 3. Provider's Further Agreements to Pay. Provider further
agrees, as the principal obligor and not as a guarantor only, to pay to
Recipient (and its assigns), forthwith upon demand in funds immediately
available to Recipient, all reasonable costs and expenses (including court costs
and legal expenses) incurred or expended by Recipient in connection with the
enforcement of the Obligations and this Undertaking, together with interest on
amounts recoverable under this Undertaking from the time when such amounts
become due until payment, at a rate of interest (computed for the actual number
of days elapsed based on a 360 day year) equal to the Prime Rate (as defined in
the Series Supplement) plus 2% per annum, such rate of interest changing when
and as the Prime Rate changes.
Section 4. Waivers by Provider. To the extent permitted by law,
Provider waives notice of acceptance of this Undertaking, notice of any action
taken or omitted by Recipient (or its assigns) in reliance on this Undertaking,
and any requirement that Recipient (or its assigns) be diligent or prompt in
making demands under this Undertaking, giving notice of any Termination Event or
other default or omission by Transferor or NCI or asserting any other rights of
Recipient under this Undertaking. Provider warrants that it has adequate means
to obtain from Transferor and NCI, on a continuing basis, information concerning
the financial condition of Transferor and NCI, and that it is not relying on
Recipient to provide such information, now or in the future. To the extent
permitted by law, Provider also irrevocably waives all defenses (i) that at any
time may be available in respect of the Obligations by virtue of any statute of
limitations, valuation, stay, moratorium law or other similar law now or
hereafter in effect or (ii) that arise under the law of suretyship, including
impairment of collateral. Recipient (and its assigns) shall be at liberty,
without giving notice to or obtaining the assent of Provider (to the extent
permitted by law), and without relieving Provider of any liability under this
Undertaking (to the extent permitted by law), to deal with Transferor, NCI and
with each other party who now is or after the date hereof becomes liable in any
manner for any of the Obligations, in such manner as Recipient in its sole
discretion deems fit, and to this end
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Provider agrees, to the extent permitted by law, that the validity and
enforceability of this Undertaking, including without limitation, the provisions
of Section 7 hereof, shall not be impaired or affected by any of the following:
(a) any extension or renewal of, or indulgence with respect to, or substitutions
for, the Obligations or any part thereof or any agreement relating thereto at
any time; (b) any failure or omission to enforce any right, power or remedy with
respect to the Obligations or any part thereof or any agreement relating
thereto, or any collateral securing the Obligations or any part thereof; (c) any
waiver of any right, power or remedy or of any Termination Event or default
with respect to the Obligations or any part thereof or any agreement relating
thereto; (d) any release, surrender, compromise, settlement, waiver,
subordination or modification, with or without consideration, of any other
obligation of any person or entity with respect to the Obligations or any part
thereof; (e) the enforceability or validity of the Obligations or any part
thereof or the genuineness, enforceability or validity of any agreement
relating thereto or with respect to the Obligations or any part thereof; (f) the
application of payments received from any source to the payment of any payment
Obligations of Transferor or NCI or any part thereof or amounts which are not
covered by this Undertaking even though Recipient (or its assigns) might
lawfully have elected to apply such payments to any part or all of the payment
Obligations of Transferor or NCI or to amounts which are not covered by this
Undertaking; (g) the existence of any claim, setoff or other rights which
Provider may have at any time against Transferor or NCI in connection herewith
or any unrelated transaction; (h) subject to the last sentence of Section 2
hereof, any assignment or transfer of the Obligations or any part thereof; or
(i) any failure on the part of Transferor or NCI to perform or comply with any
term of the Agreement, the Transfer and Administration Agreement, the Series
Supplement or any other document executed in connection therewith or delivered
thereunder, all whether or not Provider shall have had notice or knowledge of
any act or omission referred to in the foregoing clauses (a) through (i) of this
Section 4.
Section 5. Unenforceability of Obligations Against Transferor or
NCI. To the extent permitted by law, notwithstanding (a) any change of ownership
of Transferor or NCI or the insolvency, bankruptcy or any other change in the
legal status of Transferor or NCI; (b) the change in or the imposition of any
law, decree, regulation or other governmental act which does or might impair,
delay or in any way affect the validity, enforceability or the payment when due
of the Obligations; (c) the failure of Transferor, NCI or Provider to maintain
in full force, validity or effect or to obtain or renew when required all
governmental and other approvals, licenses or consents required in connection
with the Obligations or this Undertaking, or to take any other action required
in connection with the performance of all
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obligations pursuant to the Obligations or this Undertaking; or (d) if any of
the moneys included in the Obligations have become irrecoverable from Transferor
or NCI for any other reason other than final payment in full of the payment
Obligations in accordance with their terms, this Undertaking shall nevertheless
be binding on Provider. This Undertaking shall be in addition to any other
guaranty or other security for the Obligations, and it shall not be rendered
unenforceable by the invalidity of any such other guaranty or security. In the
event that acceleration of the time for payment of any of the Obligations is
stayed upon the insolvency, bankruptcy or reorganization of Transferor or NCI or
for any other reason with respect to Transferor or NCI, all such amounts then
due and owing with respect to the Obligations under the terms of the
Agreement, the Transfer and Administration Agreement, the Series Supplement or
any other agreement evidencing, securing or otherwise executed in connection
with the Obligations, shall be immediately due and payable by Provider.
Section 6. Representations and Warranties. Provider hereby
represents and warrants to Recipient that:
(a) Existence and Standing. Provider is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has all corporate power and all governmental
licenses, authorizations, consents and approvals required to carry on its
business in each jurisdiction in which its business is conducted.
(b) Authorization, Execution and Delivery; Binding Effect.
Provider has the corporate power and authority and legal right to execute and
deliver this Undertaking, perform its obligations hereunder and consummate the
transactions herein contemplated. The execution and delivery by Provider of this
Undertaking, the performance of its obligations and consummation of the
transactions contemplated hereunder have been duly authorized by proper
corporate proceedings, and Provider has duly executed and delivered this
Undertaking. This Undertaking constitutes the legal, valid and binding
obligation of Provider enforceable against Provider in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws relating to or limiting creditors' rights
generally.
(c) No Conflict; Government Consent. The execution and delivery
by Provider of this Undertaking and the performance of its obligations hereunder
are within its corporate powers, have been duly authorized by all neces-
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sary corporate action, do not contravene or violate (i) its articles of
incorporation or by-laws, (ii) any law, rule or regulation applicable to it,
(iii) any restrictions under any agreement, contract or instrument to which it
or any of its Subsidiaries is a party or by which it, any of its Subsidiaries or
any of their respective property is bound, or (iv) any order, writ, judgment,
award, injunction or decree binding on or affecting it or any of its
Subsidiaries or any of their respective property and, do not result in the
creation or imposition of any Adverse Claim on assets of Provider or any of its
Subsidiaries.
(d) Financial Statements. The consolidated financial statements
of Provider and its consolidated Subsidiaries dated as of January 31, 2001
heretofore delivered to Recipient have been prepared in accordance with
generally accepted accounting principles consistently applied and fairly present
in all material respects the consolidated financial condition and results of
operations of Provider and its consolidated Subsidiaries as of such date and for
the period ended on such date. Since the later of (i) July 31, 2001 and (ii) the
last time this representation was made or deemed made, no event has occurred
which would or could reasonably be expected to have a material adverse effect on
the business, operations, properties or condition (financial or otherwise) of
Provider or the ability of Provider to perform its obligations hereunder.
(e) Taxes. Provider has filed all United States federal tax
returns and all other tax returns which are required to be filed and have paid
all taxes due pursuant to said returns or pursuant to any assessment received by
Provider or any of its Subsidiaries, except such taxes, if any, as are being
contested in good faith by appropriate proceedings by Provider or such
Subsidiary and as to which adequate reserves have been provided on the books of
Provider or such Subsidiary in accordance with general accepted accounting
principles. The United States income tax returns of Provider have been audited
by the Internal Revenue Service through the fiscal year ended January 31, 2001.
No federal or state tax liens have been filed and no claims are being asserted
with respect to any such taxes. The charges, accruals and reserves on the books
of Provider in respect of any taxes or other governmental charges are adequate.
(f) Litigation and Contingent Obligations. There are no actions,
suits or proceedings pending or, to the best of Provider's knowledge threat-
ened against or affecting Provider, any of its Subsidiaries or any of their
respective properties, in or before any court, arbitrator or other body, that
could reasonably be expected to have a material adverse effect on (i) the
business, properties, condition
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(financial or otherwise) or results of operations of Provider and its
Subsidiaries taken as a whole, (ii) the ability of Provider to perform its
obligations under this Undertaking, or (iii) the validity or enforceability of
any of this Undertaking or the rights or remedies of Recipient hereunder.
Provider is not default with respect to any order of any court, arbitrator or
governmental body and does not have any material contingent obligations not
provided for or disclosed in the financial statements referred to in Section
6(d).
Section 7. Subrogation; Subordination. Notwithstanding anything
to the contrary contained herein, to the extent permitted by law, Provider (a)
waives and agrees not to enforce or otherwise exercise any right of subrogation
to any of the rights of Recipient or any Bank Investor against Transferor or
NCI, (b) hereby waives all rights of subrogation (whether contractual, under
Section 509 of the United States Bankruptcy Code, at law or in equity or
otherwise) to the claims of Recipient and the Bank Investors against Transferor
or NCI and all contractual, statutory or legal or equitable rights of
contribution, reimbursement, indemnification and similar rights and "claims" (as
that term is defined in the United States Bankruptcy Code) which Provider
might now have or hereafter acquire against Transferor or NCI that arise from
the existence or performance of Provider's obligations hereunder, (c) will not
claim any setoff, recoupment or counterclaim against Transferor or NCI in
respect of any liability of Provider to Transferor or NCI and (d) waives any
benefit of and any right to participate in any collateral security which may be
held by Recipient or the Bank Investors. The payment of any amounts due with
respect to any indebtedness of Transferor or NCI now or hereafter owed to
Provider is hereby subordinated to the prior payment in full of all of the
Obligations. Provider agrees that, after the occurrence of any default in the
payment or performance of any of the Obligations, Provider will not demand,
sue for or otherwise attempt to collect any such indebtedness of Transferor or
NCI to Provider until all of the Obligations shall have been indefeasibly paid
and performed in full. If, notwithstanding the foregoing sentence, Provider
shall collect, enforce or receive any amounts in respect of such indebtedness
while any Obligations are still unperformed or outstanding, such amounts shall
be collected, enforced and received by Provider as trustee for Recipient (and
its assigns) and be paid over to Recipient (or its assigns) on account of the
Obligations without affecting in any manner the liability of Provider under the
other provisions of this Undertaking. The provisions of this Section 7 shall be
supplemental to and not in derogation of any rights and remedies of Recipient
under any separate subordination agreement which Recipient may at any time and
from time to time enter into with Provider.
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Section 8. Termination of Performance Undertaking. Provider's
obligations hereunder shall continue in full force and effect until all
Obligations are indefeasibly paid and satisfied in full and the Agreement, the
Transfer and Administration Agreement and the Series Supplement are
terminated, provided, that this Undertaking shall continue to be effective or
shall be reinstated, as the case may be, if at any time payment or other
satisfaction of any of the Obligations is rescinded or must otherwise be
restored or returned upon the bankruptcy, insolvency, or reorganization of
Transferor, NCI or otherwise, as though such payment had not been made or other
satisfaction occurred, whether or not Recipient (or its assigns) is in posses-
sion of this Undertaking. No invalidity, irregularity or unenforceability by
reason of the federal bankruptcy code or any insolvency or other similar law, or
any law or order of any government or agency thereof purporting to reduce, amend
or otherwise affect the Obligations shall impair, affect, be a defense to or
claim against the obligations of Provider under this Undertaking.
Section 9. Effect of Bankruptcy. This Undertaking shall survive the
insolvency of Transferor or NCI and the commencement of any case or proceeding
by or against Transferor or NCI under the federal bankruptcy code or other
federal, state or other applicable bankruptcy, insolvency or reorganization
statutes. No automatic stay under the federal bankruptcy code with respect to
Transferor or NCI or other federal, state or other applicable bankruptcy,
insolvency or reorganization statutes to which Transferor or NCI is subject
shall postpone the obligations of Provider under this Undertaking.
Section 10. Setoff. Regardless of the other means of obtaining
payment of any of the Obligations, Recipient (and its assigns) is hereby
authorized at any time and from time to time, without notice to Provider (any
such notice being expressly waived by Provider) and to the fullest extent
permitted by law, to set off and apply any deposits and other sums against the
obligations of Provider under this Undertaking, whether or not Recipient (or any
such assign) shall have made any demand under this Undertaking and although such
Obligations may be contingent or unmatured.
Section 11. Taxes. All payments to be made by Provider hereunder
shall be made free and clear of any deduction or withholding. If Provider is
required by law to make any deduction or withholding on account of tax or
otherwise from any such payment, the sum due from it in respect of such payment
shall be increased to the extent necessary to ensure that, after the making of
such deduction or with-
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holding, Recipient receives a net sum equal to the sum which they would have
received had no deduction or withholding been made.
Section 12. Further Assurances. Provider agrees that it will from
time to time, at the request of Recipient (or its assigns), provide information
relating to the business and affairs of Provider as Recipient may reasonably
request. Provider also agrees to do all such things and execute all such
documents as Recipient (or its assigns) may reasonably consider necessary or
desirable to give full effect to this Undertaking and to perfect and preserve
the rights and powers of Recipient hereunder.
Section 13. Successors and Assigns. This Undertaking shall be
binding upon Provider, its successors and permitted assigns, and shall inure to
the benefit of and be enforceable by Recipient and its successors and assigns.
Provider may not assign or transfer any of its obligations hereunder without the
prior written consent of Recipient. Without limiting the generality of the
foregoing sentence, Recipient may assign or otherwise transfer the Agreement,
Transfer and Administration Agreement, Series Supplement, any other documents
executed in connection therewith or delivered thereunder or any other agreement
or note held by them evidencing, securing or otherwise executed in connection
with the Obligations, or sell participations in any interest therein, to any
other entity or other person, and such other entity or other person shall
thereupon become vested, to the extent set forth in the agreement evidencing
such assignment, transfer or participation, with all the rights in respect
thereof granted to Recipient or the Bank Investors herein.
Section 14. Amendments and Waivers. No amendment or waiver of any
provision of this Undertaking nor consent to any departure by Provider there-
from shall be effective unless the same shall be in writing and signed by
Recipient and Provider. No failure on the part of Recipient to exercise, and no
delay in exercising, any right hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right hereunder preclude any other
or further exercise thereof or the exercise of any other right.
Section 15. Notices. All notices and other communications provided
for hereunder shall be made in writing and shall be addressed as follows: if to
Provider, at the address set forth beneath its signature hereto, and if to
Recipient, at the addresses set forth in Section 6.3 of the Transfer and
Administration Agreement, or at such other addresses as each of Provider or any
Recipient may designate in writing to the other. Each such notice or other
communication shall be effective
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(1) if given by telecopy, upon the receipt thereof, (2) if given by mail, three
(3) Business Days after the time such communication is deposited in the mail
with first class postage prepaid or (3) if given by any other means, when
received at the address specified in this Section 15.
SECTION 16. GOVERNING LAW. THIS UNDERTAKING SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF
THE GENERAL OBLIGATIONS LAWS BUT OTHERWISE WITHOUT REGARD TO ITS CONFLICT OF
LAW PROVISIONS), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 17. CONSENT TO JURISDICTION. EACH OF PROVIDER AND RECIPIENT
HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED
STATES FEDERAL OR ILLINOIS STATE COURT SITTING IN CHICAGO IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS UNDERTAKING, THE AGREEMENT, THE
SERIES SUPPLEMENT, THE TRANSFER AND ADMINISTRATION AGREEMENT OR ANY OTHER
DOCUMENT EXECUTED IN CONNECTION THEREWITH OR DELIVERED THEREUNDER AND EACH OF
PROVIDER AND RECIPIENT HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF
SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND
IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF
ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT
IS AN INCONVENIENT FORUM.
Section 18. Bankruptcy Petition. Provider hereby covenants and
agrees that, prior to the date that is one year and one day after the payment in
full of all outstanding Commercial Paper or other indebtedness of Falcon, it
will not institute against, or join any other Person in instituting against,
Falcon any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other similar proceeding under the laws of the United States or
any state of the United States.
Section 19. Miscellaneous. This Undertaking constitutes the entire
agreement of Provider with respect to the matters set forth herein. The rights
and
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remedies herein provided are cumulative and not exclusive of any remedies
provided by law or any other agreement, and this Undertaking shall be in
addition to any other guaranty of or collateral security for any of the
Obligations. The provisions of this Undertaking are severable, and in any action
or proceeding involving any state corporate law, or any state or federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of Provider hereunder would otherwise
be held or determined to be avoidable, invalid or unenforceable on account of
the amount of Provider's liability under this Undertaking, then, notwithstanding
any other provision of this Undertaking to the contrary, the amount of such
liability shall, without any further action by Provider or Recipient, be
automatically limited and reduced to the highest amount that is valid and
enforceable as determined in such action or proceeding. Any provisions of this
Undertaking which are prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. Unless otherwise
specified, references herein to "Section" shall mean a reference to sections of
this Undertaking.
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IN WITNESS WHEREOF, Provider has caused this Undertaking to be executed
and delivered as of the date first above written.
NORDSTROM, INC.
By: /s/ Robert E. Campbell
-------------------------------
Name: Robert E. Campbell
Title: V.P. Treasurer
Address: 1617 Sixth Avenue
Seattle, Washington 98101
(206) 628-2111
Attention: Treasurer