Exhibit 2.8
REVOLVING NOTE
$75,000,000 Chicago, Illinois
Dated as of: July 2, 2000
FOR VALUE RECEIVED, the undersigned, COACH INC., a Maryland
corporation (the "BORROWER"), promises to pay to the order of XXXX XXX
CORPORATION, a Maryland corporation (the "LENDER"), (i) on the "Maturity
Date" (as defined below), the principal amount of SEVENTY-FIVE MILLION
DOLLARS ($75,000,000) or, if less, the aggregate unpaid principal amount of
the advances made hereunder by the Lender to the Borrower prior to the
Maturity Date, (ii) interest on said principal amount at the rate or rates
herein specified, and (iii) any and all other sums which may be owing to the
Lender by the Borrower pursuant to this Note (this "NOTE"). All payments of
principal and interest in respect of this Note shall be made to the Lender in
lawful money of the United States of America in same day funds to the
Lender's account at such place as shall be designated in writing by the
Lender for such purpose from time to time.
The "MATURITY DATE" shall mean the date on which Xxxx Xxx Corporation
no longer owns greater than fifty percent (50%) of the outstanding capital
stock of the Borrower.
1. ADVANCES. From time to time, until the Maturity Date, the Lender
will make advances to the Borrower upon the Borrower's request; provided (i)
that no Event of Default or event that but for notice or the passage of time
would constitute an Event of Default has occurred and is continuing and all
representations and warranties contained in Section 7 hereof are true and
correct as of the date of such advance, and (ii) the requested advance does
not cause the aggregate of all the advances outstanding under this Note to
exceed the Commitment (as defined in Section 10 below) then in effect. Each
request for an advance shall be made on notice received by the Lender not
later than 12:00 noon (Wilmington, Delaware time) three Business Days (as
defined in Section 2 below) prior to the date the undersigned requests the
Lender to make such advance. Each request for an advance shall specify the
date of the requested advance, the amount thereof, and shall be irrevocable
and binding on the undersigned.
2. INTEREST. (a) The Borrower agrees to pay interest on the unpaid
principal amount of each advance made hereunder, from the date such advance
is made until such amount shall be paid in full, at a rate per annum equal to
the Applicable Margin (as defined below) PLUS the Stated Rate (as defined
below).
"APPLICABLE MARGIN" shall mean three-tenths of one percent (0.3%)
per annum.
"BUSINESS DAY" means a day of the year on which banks are not
required or authorized to close in Wilmington, Delaware, and if the
applicable Business Day relates to a determination of the Stated Rate
applicable to an advance under this Note, it also means a day on which
dealings are carried on in the London interbank market.
"STATED RATE" as used herein means for each successive one month
period during which amounts are outstanding hereunder, the rate of
interest per annum in effect on the Business Day immediately prior to
the first day of such one month period equal to the higher of (a) the
average rate at which one month dollar deposits are offered in the
London interbank market by prime banks as announced by Bloomberg on the
date of determination or, if Bloomberg News, Inc. or any successor shall
cease to announce such rates, the average of the rates at which one
month dollar deposits are offered on the page containing the London
interbank offered rates in US Dollars on the Reuters screen on the date
of determination, and (b) the Federal Reserve Statistics one month
non-financial H15 rate.
The Stated Rate and the interest rate payable hereunder shall be
determined by the Lender and invoiced to the Borrower on a monthly basis.
3. CALCULATION OF INTEREST. Interest on the indebtedness evidenced by
this Note shall be computed on the basis of the actual number of days elapsed
over a year of three hundred sixty (360) days.
4. PAYMENT OF INTEREST. Accrued and unpaid interest on the unpaid
principal balance of this Note shall be due and payable monthly in arrears,
commencing on the fifteenth day of period four (4) of fiscal year 2001 and on
the fifteenth day of each fiscal period thereafter, as well as on the
Maturity Date.
5. INTEREST AFTER MATURITY. The Borrower agrees to pay interest on
any amount of principal which is not paid when due (whether at the Maturity
Date, by acceleration or otherwise), from the due date thereof until such
amount is paid in full, payable on demand, at a rate per annum equal to 1%
plus the rate per annum otherwise applicable as set forth in Section 2 above.
6. Payments.
(a) DEPOSITS INTO COLLECTION ACCOUNTS. All account debtors of the
Borrower and its subsidiaries have been or will be directed, and the Borrower
agrees to continue to direct, or otherwise cause all such account debtors to
remit payments on accounts to an account controlled by the Lender (each, a
"COLLECTION ACCOUNT"). All amounts deposited in a Collection Account shall be
applied to the Obligations in accordance with the following paragraph. Pending
any direct deposit
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to a Collection Account or if the Borrower otherwise comes into possession of
any Item of Payment (as defined below), the Borrower will not commingle any
Items of Payment with any of its other funds or property, but will hold them
separate and apart therefrom in trust and for the account of the Lender. The
Lender is not, however, required to credit any Collection Account for the
amount attributable to any Item of Payment which is unsatisfactory to the
Lender in its commercially reasonable discretion. Borrower hereby
acknowledges that notwithstanding anything to the contrary herein after the
occurrence of an Event of Default, all amounts deposited in any Collection
Account may be applied to outstanding Obligations of the Borrower in any
manner the Lender elects.
(b) PAYMENTS BY THE BORROWER. Except as specifically provided
herein, all payments to be made by the Borrower shall be made without
set-off, recoupment or counterclaim. All payments by the Borrower shall be
made to the Lender at the Lender's payment office in Wilmington, Delaware,
and shall be made in U.S. dollars and in immediately available funds no later
than noon (Wilmington, Delaware time) on the dates specified herein. The
Lender may, and the Borrower hereby authorizes the Lender to, provide for
payment of any interest, fees or other Obligations by advancing the amount
thereof to Borrower as an advance hereunder. In addition, Xxxxxxxx authorizes
the Lender, and the Lender will, subject to the provisions of this Subsection
6(b), apply the whole or any part of any amounts deposited to the Collection
Account and any other amounts received by the Lender from the collections of
items of payment owing to the Borrower ("Items of Payment"), against the
principal and/or interest of the advances outstanding hereunder from time to
time and/or any other Obligations in the following order of application:
FIRST, to payment of amounts then due with respect to fees (including
attorneys' costs), charges and expenses for which Borrower is liable pursuant
to this Note; SECOND, to payments of amounts then due with respect to
interest on the advances outstanding hereunder; THIRD, to payments of amounts
then due with respect to principal of the advances outstanding hereunder, and
FOURTH, to the account maintained by the Lender as designated in writing by
the Lender (the "FUNDING ACCOUNT"), to the extent of any such excess,
PROVIDED, FURTHER, that no checks, drafts or other instruments received by
the Lender shall constitute final payment to the Lender unless and until such
Item of Payment has actually been collected. All items or amounts which are
delivered to the Lender by or on behalf of Borrower or any account debtor of
Borrower or any of its subsidiaries on account of partial or full payment
(including any items or amounts which may have been deposited into any
Collection Account may from time to time in the Lender's discretion), be
released to Borrower or may be applied by the Lender towards payment of the
Obligations, whether or not then due as provided in the preceding sentence.
Notwithstanding anything to the contrary herein, (i) all Items of Payment,
solely for the purposes of determining the occurrence of an Event of Default,
shall be deemed received upon actual receipt by the Lender unless the same is
subsequently dishonored for any reason whatsoever, (ii) for purposes of
determining whether there is availability for advances, all Items of Payment
shall be applied against the Obligations on the first Business Day after
receipt thereof by the Lender in the Collection Account and (iii) solely for
purposes of interest calculation
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hereunder, all Items of Payment shall be deemed to have been applied against
the Obligations on the same Business Day as receipt by the Lender of
available funds with respect thereto in any Collection Account. All amounts
on deposit in the Funding Account shall accrue interest at a rate per annum
equal to the Stated Rate MINUS two-tenths of one percent (0.2%) and be
payable as an offset against obligations of the Borrower hereunder or within
30 days of demand. All accounting terms shall have the meanings as determined
in accordance with generally accepted accounting principles consistently
applied.
(c) REQUIRED PREPAYMENTS. The Borrower shall pay the
outstanding principal of this Note, if any is outstanding, on the fifteenth
day of each fiscal period commencing in the first fiscal period occurring
after the fiscal period in which the Borrower consummates an initial public
offering of its securities pursuant to an underwritten offering registered
under the Securities Act of 1993, as amended, (an "IPO"), in an amount equal
to the lesser of (i) the "EXCESS CASH FLOW" (defined below) for the month
most recently ended and (ii) the outstanding principal amount of the advances
at such time. "EXCESS CASH FLOW" as used herein shall mean for any month of
determination for the Borrower and its subsidiaries on a consolidated basis,
the net income for such month PLUS amortization expenses for such month PLUS
without duplication, depreciation expense of the Borrower for such month PLUS
any decrease in working capital (excluding cash, cash equivalents and
interest-bearing debt), if any, as at the end of such month MINUS any
increase in working capital (excluding cash, cash equivalents and
interest-bearing debt), if any, as at the end of such month and MINUS any
non-financed capital expenditures incurred during such month to the extent
such capital expenditures do not exceed $35,000,000 in the aggregate for the
twelve consecutive months then ended. If at any time the aggregate principal
amount of the advances outstanding under this Note exceeds the Commitment (as
defined in Section 10 below) as then in effect, the Borrower shall
immediately pay to the Lender such excess.
(d) VOLUNTARY PREPAYMENTS. The Borrower shall have the right,
at any time and from time to time, upon three (3) Business Days' prior
written notice to the Lender to prepay the indebtedness evidenced by this
Note in whole or in part without premium or penalty but with accrued interest
to the date of prepayment on the amount prepaid.
(e) REVOLVING NATURE. Amounts repaid may be re-borrowed
subject to the terms and conditions hereof.
7. REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants to the Lender as follows:
(a) AUTHORIZATION, VALIDITY, AND ENFORCEABILITY OF THIS NOTE.
The Borrower has the corporate power and authority to execute, deliver and
perform this Note. Borrower has taken all
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necessary corporate action (including, without limitation, obtaining approval
of its stockholders, if necessary) to authorize its execution, delivery, and
performance of this Note. No consent, approval, or authorization of, or
declaration or filing with, any governmental authority, and no consent of any
other person, is required in connection with the Borrower's execution,
delivery and performance of this Note, except for those already duly
obtained. This Note has been duly executed and delivered by Xxxxxxxx, and
constitutes the legal, valid and binding obligation of Borrower, enforceable
against it in accordance with its terms. Borrower's execution, delivery, and
performance of this Note does not and will not conflict with, or constitute a
violation or breach of, or constitute a default under, or result in the
creation or imposition of any Lien upon the property of Borrower or any of
its subsidiaries by reason of the terms of (i) any contract, mortgage, Lien,
lease, agreement, indenture, or instrument to which Borrower or any of its
subsidiaries is a party or which is binding upon it or its property, (ii) any
judgment, law, statute, rule or governmental regulation applicable to
Borrower or any of its subsidiaries, or (iii) the Certificate of
Incorporation or By-laws of Borrower or any of its subsidiaries.
(b) ORGANIZATION AND QUALIFICATION. As of the date hereof,
each of the Borrower and its subsidiaries (i) is duly incorporated and
organized and validly existing in good standing under the laws of the
jurisdiction of its incorporation, (ii) is qualified to do business as a
foreign corporation and is in good standing in all jurisdictions where the
failure to so qualify to do business would have a material adverse effect on
Borrower's ability to collect its accounts or otherwise conduct its business
or own or lease property in such jurisdiction, and (iii) has all requisite
power and authority to conduct its business and to own its property.
8. COVENANTS OF BORROWER. So long as any of the obligations hereunder
shall remain unpaid (all such obligations, including without limitation,
principal, interest and expenses, collectively "Obligations"), the Borrower
will, and will cause each of its subsidiaries to, unless the Lender shall
otherwise consent in writing:
(a) Comply with all applicable laws, rules, regulations and
orders, such compliance to include, without limitation, paying before the
same become delinquent all taxes, assessments and governmental charges
imposed upon the Borrower or any of its subsidiaries or the Borrower's or its
subsidiaries' property, except to the extent contested in good faith and by
appropriate proceedings or would not have a material adverse effect on the
results of operations and financial condition of Borrower.
(b) Maintain as of the end of each fiscal quarter, with
respect to the Borrower and its subsidiaries on a consolidated basis and in
accordance with generally accepted accounting principles, a ratio that is
greater than 1.75 to 1.0 of (i) the sum of, without duplication, for the four
consecutive fiscal quarters then ended (1) net income, PLUS (2) interest
expense for such period,
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including all commissions, discounts, fees and other charges in connection
with standby letters of credit and similar instruments and all expenses
associated with interest rate hedging arrangements net of interest income, if
any, PLUS (3) provision for income taxes, PLUS (4) depreciation and
amortization expense and any non-cash extraordinary gains and losses and
non-cash restructuring charges, PLUS (5) aggregate minimum annual rental
payments payable during such period, over (ii) the sum of, without
duplication, for the four consecutive fiscal quarters then ended (1) interest
expense for such period, including all commissions, discounts, fees and other
charges in connection with standby letters of credit and similar instruments
and all expenses associated with interest rate hedging arrangements, net of
interest income, if any, PLUS (2) aggregate minimum annual rental payments
payable during such period.
(c) Not directly or indirectly, make, create, incur, assume or
suffer to exist any Lien (defined below) upon or with respect to any part of
its property, whether now owned or hereafter acquired, other than the
following ("PERMITTED LIENS"):
(i) Liens for taxes, fees, assessments or other
governmental charges which are not delinquent or remain payable
without penalty, provided that no notice of lien has been filed
or recorded under the Uniform Commercial Code;
(ii) Carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the
ordinary course of business which are not delinquent or remain
payable without penalty or which are being contested in good
faith and by appropriate proceedings, which proceedings have the
effect of preventing the forfeiture or sale of the property
subject thereto;
(iii) Liens (other than any Lien imposed by ERISA)
consisting of pledges or deposits required in the ordinary course
of business in connection with workers' compensation,
unemployment insurance and other social security legislation;
(iv) Easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business
which, in the aggregate, are not substantial in amount, and which
do not in any case materially detract from the value of the
property subject thereto or interfere with the ordinary conduct
of the businesses of the Borrower and its subsidiaries;
(v) Liens securing capital lease obligations on the assets
so acquired;
(vi) Liens on property existing when such property was
acquired by the Borrower or when the owner of such property
became a subsidiary of the Borrower,
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provided that such Liens were in existence prior to the
contemplation of the acquisition of such property or such owner
becoming a subsidiary of the Borrower;
(vii) Liens existing at the time of the IPO; and
(viii) Liens incurred in the ordinary course of business
of the Borrower with respect to security deposits, lease deposits
or other obligations that are not incurred in connection with the
borrowing of money.
"LIEN" as used herein means any security interest, mortgage, deed
of trust, pledge, hypothecation, assignment, charge or deposit
arrangement, encumbrance, lien (statutory or other) or preferential
arrangement of any kind or nature whatsoever in respect of any property
(including those created by, arising under or evidenced by any
conditional sale or other title retention agreement, the interest of a
lessor under a capital lease, any financing lease having substantially
the same economic effect as any of the foregoing, or the filing of any
financing statement naming the owner of the asset to which such lien
relates as debtor, under the Uniform Commercial Code or any comparable
law) and any contingent or other agreement to provide any of the
foregoing.
(d) Not incur or permit to exist any Lease Obligations
(defined below) except (i) the aggregate amount of Lease Obligations
reflected in or contemplated by Xxxxxxxx's Annual Operating Plan for fiscal
years 2001 and 2002 as approved by the Xxxx Xxx Corporation's Board of
Directors (or committee thereof), as the same may be amended with approval of
the Xxxx Xxx Corporation's Board of Directors (or committee thereof) or (ii)
otherwise as agreed to in writing by the Lender from time to time in its sole
discretion.
"LEASE OBLIGATIONS" of a person, as used herein, means for any
period of determination the rental commitments of such person for such
period under leases for real and/or personal property (net of rent from
subleases thereof, but including taxes, insurance, maintenance and
similar expenses which the lessee is obligated to pay under the terms of
said leases, except to the extent that such taxes, insurance,
maintenance and similar expenses are payable by sublessee), whether or
not the related lease obligations have been or should be, in accordance
with generally accepted accounting principles consistently applied,
capitalized on the balance sheet.
(e) Use the proceeds of the advances under this Note only for
general corporate purposes.
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(f) Not enter into any transaction of merger, reorganization,
or consolidation, or transfer, sell, assign, lease, or otherwise dispose of
all or any material part of its property, or wind up, liquidate or dissolve,
or agree to do any of the foregoing, except for sales of inventory in the
ordinary course of its business.
(g) Not (i) directly or indirectly declare or make, or incur
any liability to make, (A) any dividend or other distribution on account of
any class of stock of the Borrower, except a dividend solely payable in other
capital stock of the Borrower, or (B) any redemption, sinking fund or similar
payment for the acquisition of capital stock of the Borrower, except as may
be required to enable Xxxx Xxx Corporation to maintain its greater than 80%
ownership interest in Borrower prior to Borrower's spin-off from Xxxx Xxx
Corporation, or (ii) make any change in its capital structure which could
adversely affect the repayment of the obligations under this Note.
(h) Except as set forth below, not sell, transfer, distribute,
or pay any money or its property, including, but not limited to, any fees or
expenses of any nature (including, but not limited to, any fees or expenses
for management services), to any affiliate of the Borrower, or lend or
advance money or its property to any affiliate of the Borrower, or invest in
(by capital contribution or otherwise) or purchase or repurchase any stock or
indebtedness, or any of its property, of any affiliate of the Borrower, or
become liable on any guaranty of the indebtedness, dividends, or other
obligations of any affiliate of the Borrower except (i) reimbursement of
actual and reasonable out-of-pocket expenses incurred by employees or
directors of the Borrower in the ordinary course of the Borrower's business;
(ii) guaranties in favor of the Lender; and (iii) payments pursuant to any of
the agreements with Xxxx Xxx, effective as of July 2, 2000, relating to the
separation of the Coach business from the Xxxx Xxx business.
(i) Not directly or indirectly, enter into any arrangement
with any person providing for the Borrower to lease or rent property that the
Borrower has or will sell or otherwise transfer to such person.
9. REPORTING REQUIREMENTS. The Borrower shall provide the Lender with
the following:
(a) As soon as available, but not later than ninety (90) days
after the end of each fiscal year of Borrower, a copy of the audited
consolidated balance sheet of the Borrower and its subsidiaries as at the end
of such year and the related consolidated statements of income or operations,
stockholders' equity and cash flows for such year, setting forth in each case
in comparative form the figures for the previous fiscal year, and accompanied
by the opinion of a nationally-recognized independent public accounting firm
("INDEPENDENT AUDITOR") which report shall state that such financial
statements present fairly the financial position and the results of
operations of the Borrower and its subsidiaries for the periods indicated in
conformity with generally
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accepted accounting principles applied on a basis consistent with prior
years. Such opinion shall not be qualified or limited because of a restricted
or limited examination by the Independent Auditor of any material portion of
the Borrower's records;
(b) As soon as available, but not later than forty-five (45)
days after the end of each of the first three fiscal quarters of each fiscal
year of Borrower commencing with the first fiscal quarter ending after
consummation of the Borrower's IPO, a copy of the unaudited consolidated
balance sheet of the Borrower as of the end of such quarter and the related
consolidated statements of income, stockholders' equity and cash flows for
the period commencing on the first day and ending on the last day of such
quarter, and certified by either the President, Chief Financial Officer or
Treasurer of the Borrower (each a "RESPONSIBLE OFFICER") as fairly
presenting, in accordance with generally accepted accounting principles
(subject to ordinary, good faith year-end audit adjustments), the financial
position and the results of operations of the Borrower and its subsidiaries;
(c) Concurrently with the delivery of the financial statements
referred to above, a Compliance Certificate executed by a Responsible Officer
demonstrating in sufficient detail compliance with the financial covenant
contained in Section 8(b) hereof, a calculation of Excess Cash Flow for each
month during the fiscal quarter most recently ended and a representation that
no Event of Default or event that upon either notice or the passage would
constitute an Event of Default hereunder has occurred and is continuing; and
(d) Promptly, such additional information regarding the
business, financial or corporate affairs of the Borrower and its subsidiaries
as the Lender may from time to time reasonably request.
10. COMMITMENT AND FEES. The Borrower shall pay a facility fee to the
Lender that shall accrue from the date hereof until the Maturity Date and
shall be due and payable quarterly, in arrears, on the first Business Day of
each fiscal period commencing hereafter which fee shall be calculated on the
basis of a three hundred sixty-five (365) or three hundred and sixty-six
(366) day year (as applicable) for actual days elapsed and shall be equal to
ten-hundredths of one percent (0.10%) multiplied by the average daily amount
of the unused Commitment (as defined below) during the quarter just ended.
"COMMITMENT" as used herein means $75,000,000 or such lesser amount as
adjusted from time to time, at the Borrower's election pursuant to the
procedures specified below which amount represents the amount which the
Lender is willing to advance, subject to the terms and conditions of this
Note. The Borrower shall have the right, at any time and from time to time,
to terminate in whole or permanently reduce in part, without premium or
penalty, the amount of the Commitment in excess of the then outstanding
principal amount of all advances hereunder. The Borrower shall give written
notice to the Lender designating the date of such termination or reduction
not less than three (3) Business Days' prior to the date such termination or
reduction is to
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take effect, and the amount of any partial reduction of the Commitment shall
be in an aggregate minimum amount of One Million Dollars ($1,000,000) or
integral multiples of One Million Dollars ($1,000,000) in excess of that
amount.
11. EVENTS OF DEFAULT AND REMEDIES. If any one or more of the
following events ("EVENTS OF DEFAULT") shall occur and be continuing, to wit:
(a) The Borrower shall fail to pay when due any amount of
principal owing in respect of any of the indebtedness evidenced by this Note
or any other note or notes which may be given in renewal, substitution or
extension of all or any part of such indebtedness (each of which being an
"OTHER NOTE"); or
(b) The Borrower shall fail to pay any part of the interest on
this Note or any Other Note when due, whether at stated maturity, by
acceleration, by notice of prepayment or otherwise, within five (5) business
days after receipt of written notice from Lender of such failure; or
(c) The Borrower shall fail to comply with any covenants,
agreement or condition contained in this Note within thirty (30) days after
receipt of written notice from Lender of such failure; or
(d) Any representation or warranty made by the Borrower to the
Lender hereunder or in any information provided hereunder shall be inaccurate
or incomplete in any material respect when made; or
(e) The Borrower or any of its subsidiaries shall fail to pay
any principal of or premium or interest on any of their indebtedness (but
excluding indebtedness evidenced by this Note or by any Other Note), whether
by scheduled maturity, required prepayment, acceleration, demand or
otherwise, and such failure shall continue after the applicable grace period,
if any, specified in the agreement or instrument relating to such
indebtedness; or any other event shall occur or condition shall exist under
any agreement or instrument relating to any such indebtedness and shall
continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such
indebtedness; or any such indebtedness shall be declared to be due and
payable, or required to be prepaid (other than by a regularly scheduled
required prepayment), prior to the stated maturity thereof; and, in each case
above, the principal amount of such indebtedness is at least $5,000,000;
(f) The Borrower or any of its subsidiaries shall generally not
pay its debts as the same become due, or shall admit in writing its inability to
pay such debts generally, or shall make
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a general assignment for the benefit of creditors; or any proceeding shall be
instituted by or against it seeking to adjudicate it as a bankrupt or an
insolvent, or seeking liquidation, winding up, reorganization arrangement,
adjustment, protection, relief, or composition of its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the appointment of a receiver,
trustee, or other similar official for it or for any substantial part of its
property; and in the event of any proceeding being instituted against it,
such proceeding shall remain undismissed or unstayed for a period of sixty
(60) days or shall result in the entry of an order for relief, the
appointment of a trustee or receiver or other adverse result to it or it
shall take any action to authorized any of the actions set forth above in
this case; or
(g) One or more judgments or orders for the payment of money
in an amount in excess of $5,000,000 in the aggregate shall be rendered
against the Borrower or any of its subsidiaries and such judgments or orders
shall continue unsatisfied and in effect for a period of sixty (60)
consecutive days without being vacated, discharged, satisfied, or stayed or
bonded pending appeal; or
then, and in any such event, the Lender may, by notice to the Borrower, (1)
declare the Lender's obligation, if any, to make additional advances, if any,
under this Note to be terminated, whereupon the same shall forthwith
terminate; and (2) declare the Obligations to be forthwith due and payable in
full, whereupon the Obligations shall become and be forthwith due and payable
in full, without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived by the Borrower, PROVIDED, HOWEVER,
that upon the occurrence of any Event of Default of the kind described in
CLAUSE (f) above, the Lender's obligation, if any, to make additional
advances, if any, under this Note shall automatically be terminated and the
Obligations shall automatically become and be due and payable in full,
without presentment, demand, protest or any notice of any kind, all of which
are hereby expressly waived by the Borrower.
12. EXPENSES; INDEMNIFICATION. The Borrower agrees to pay on demand
all reasonable out-of-pocket costs and expenses incurred by the Lender in
connection with the enforcement (whether through legal proceeding,
negotiations or otherwise) of this Note, any Other Note and any other
documents executed and delivered by the Borrower in connection with this Note
(such costs and expenses to include, without limitation, the reasonable fees
and expenses of the Lender's outside legal counsel). The Borrower agrees to
indemnify and hold harmless the Lender and its directors, officers,
employees, agents, affiliates and advisors from and against any and all
claims, damages, losses, liabilities and expenses (including, without
limitation, fees and disbursements or counsel) which may be incurred by or
asserted against the Lender, or any such director, officer, employee, agent,
affiliate or advisor in connection with or arising out of any investigation,
litigation or proceeding related to or arising out of this Note, any Other
Note, or any other documents to be delivered or any transaction contemplated
hereby or thereby (but in any case excluding any such
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claims, damages, losses, liabilities or expenses incurred by reason of the
gross negligence or willful misconduct of the indemnitee). The obligations of
the Borrower under this paragraph shall survive the payment in full of the
indebtedness evidenced by this Note or by any Other Note.
13. AMENDMENTS, ETC. No amendment or waiver of any provision of this
Note, nor consent to any departure by the Borrower therefrom, shall in any
event be effective unless the same shall be in writing and signed by the
Lender, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
14. WAIVER OF PRESENTMENT, ETC. The Borrower hereby waives
presentment for payment, demand, notice of dishonor, notice of intent to
accelerate and protest of this Note.
15. GOVERNING LAW. This Note shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware applicable to
contracts made and to be performed within such State, without giving effect
to its conflicts of laws principles or rules.
16. CONSENT TO JURISDICTION; WAIVER OF VENUE OBJECTION; SERVICE OF
PROCESS. WITHOUT LIMITING THE RIGHT OF THE LENDER TO BRING ANY ACTION OR
PROCEEDING AGAINST THE BORROWER OR AGAINST PROPERTY OF THE BORROWER ARISING
OUT OF OR RELATING TO THIS NOTE (AN "ACTION") IN THE COURTS OF OTHER
JURISDICTIONS, THE BORROWER HEREBY IRREVOCABLY SUBMITS TO AND ACCEPTS THE
NONEXCLUSIVE JURISDICTION OF ANY DELAWARE STATE COURT OR ANY FEDERAL COURT
SITTING IN WILMINGTON, DELAWARE, AND THE BORROWER HEREBY IRREVOCABLY AGREES
THAT ANY ACTION MAY BE HEARD AND DETERMINED IN SUCH ILLINOIS STATE COURT OR
IN SUCH FEDERAL COURT. THE BORROWER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT THAT IT MAY EFFECTIVELY DO SO, ANY DEFENSE OR OBJECTION (INCLUDING,
WITHOUT LIMITATION, ANY DEFENSE OR OBJECTION TO VENUE BASED ON THE GROUNDS OF
FORUM NONCONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE MAINTENANCE
ANY ACTION IN ANY SUCH JURISDICTION. THE BORROWER HEREBY IRREVOCABLY AGREES
THAT THE SUMMONS AND COMPLAINT OR ANY OTHER PROCESS IN ANY ACTION IN ANY
JURISDICTION MAY BE SERVED BY MAILING (USING CERTIFIED OR REGISTERED MAIL,
POSTAGE PREPAID) TO THE NOTICE ADDRESS FOR THE BORROWER SPECIFIED BELOW OR BY
HAND DELIVERY TO A PERSON OF SUITABLE AGE AND DISCRETION AT SUCH ADDRESS.
SUCH SERVICE WILL BE COMPLETE ON THE DATE SUCH PROCESS IS SO MAILED OR
DELIVERED, AND THE BORROWER WILL HAVE THIRTY DAYS FROM SUCH COMPLETION OF
SERVICE IN WHICH TO RESPOND IN THE MANNER PROVIDED BY LAW. THE BORROWER MAY
ALSO BE SERVED IN ANY OTHER MANNER PERMITTED BY LAW,
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IN WHICH EVENT THE BORROWER'S TIME TO RESPOND SHALL BE THE TIME PROVIDED BY
LAW.
17. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY LAW, AND
AS SEPARATELY BARGAINED-FOR CONSIDERATION TO THE LENDER, THE BORROWER HEREBY
WAIVES ANY RIGHT TO TRIAL BY JURY (WHICH THE LENDER ALSO WAIVES) IN ANY
ACTION, SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR
RELATING TO THIS NOTE, ANY OTHER NOTE, THE OBLIGATIONS, OR THE LENDER'S
CONDUCT IN RESPECT OF ANY OF THE FOREGO ING.
18. MISCELLANEOUS. No failure on the part of the Lender to exercise,
and no delay in exercising, any right under this Note shall operate as a
waiver thereof; nor shall any partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
19. MAXIMUM INTEREST. Notwithstanding the foregoing paragraphs and
all other provisions of this Note, none of the terms and provisions of this
Note shall ever be construed to create a contract to pay to the Lender, for
the use, forbearance or detention of money, interest in excess of the maximum
amount of interest permitted to be charged by the Lender to the Borrower
under applicable state or federal law from time to time in effect, and the
Borrower shall never be required to pay interest in excess of such maximum
amount. If, for any reason interest is paid hereon in excess of such maximum
amount, then promptly upon any determination that such excess has been paid
the Lender will, at its option, either refund such excess to the undersigned
or apply such excess to the principal owing hereunder.
20. ENTIRE AGREEMENT. This Note constitutes the entire agreement of
the parties relative to its subject matter, and shall not be waived, modified
or supplemented, in whole or in part, except in a writing signed by the
parties. If any provision of this Note is held invalid or unenforceable by
any court of competent jurisdiction, the remaining provisions shall continue
in full force and effect.
[THE REMAINDER OF THE PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Borrower has executed this Note as of the date
first above written.
COACH, INC.
By: /s/ Xxxxx Xxxxx
---------------------------------------------
Name: Xxxxx Xxxxx
-------------------------------------------
Title: Executive Vice President, Chief
Operating Officer
------------------------------------------
Notice Address:
Coach, Inc.
000 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer or Chief
Operating Officer with copies to General Counsel
Telecopy: 000-000-0000
Telephone: 000-000-0000
Agreed and Accepted:
XXXX XXX CORPORATION
By: /s/ Xxxx X. XxXxxxxxxx
-------------------------------------
Name: Xxxx X. XxXxxxxxxx
Title: Senior Vice President
Notice Address:
Xxxx Xxx Corporation
Three First National Plaza
Chicago, Illinois 60602
Attn: General Counsel
Telecopy:
Telephone:
SCHEDULE I
PERMITTED LEASE OBLIGATIONS
