Exhibit 10.18
SUBORDINATED NOTE
$22,500,000.00 New York, New York
January 28, 1999
FOR VALUE RECEIVED, the undersigned, XXXXXX'X, INC., a New York
corporation ("Company"), hereby PROMISES TO PAY to ISETAN OF AMERICA INC., a
Delaware corporation ("Isetan"), or its registered assigns, at 000 Xxxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as the
holder (Isetan and any other holders being hereinafter referred to collectively
as "Holder") of this Note (the "Note") may designate from time to time in
writing, in lawful money of the United States of America and in immediately
available funds, the principal amount of TWENTY TWO MILLION FIVE HUNDRED
THOUSAND DOLLARS ($22,500,000) on the fifth anniversary of the date hereof (the
"Maturity Date"), together with interest on the unpaid principal amount of this
Note outstanding from time to time from the date hereof, at the rate provided
for herein. Any payments hereunder shall be subject to any applicable government
withholding.
1. INTEREST. (a) Company shall pay interest semi-annually to
Holder in arrears on February 15 and August 15 of each year, commencing on
August 15, 1999, and on the Maturity Date (each, an "Interest Payment Date"), at
a rate equal to ten percent (10%) per annum, based on a year of 360 days for the
actual number of days elapsed, and based on the amounts outstanding from time to
time under this Note; PROVIDED, HOWEVER, that interest payable on each of the
first four scheduled Interest Payment Dates shall either be paid in cash or, if
a majority of the independent directors (I.E., those directors who are not
affiliates of Bay Harbour Management L.C., Whippoorwill Associates, Inc., Isetan
or any other Affiliates (as defined in the Plan referred to below) of Company,
nor employees of Company) determine, with respect to any of such interest
payments, that it would be in the best interests of Company, based on all
factors deemed by them to be relevant (including, without limitation, Company's
cash flow, availability under the Credit Agreement (as defined below), scheduled
fixed payment obligations, and business plan requirements), then such interest
payment(s) ("Accrued Interest") shall accrue and be deemed added to the
principal amount due under this Note as of such Interest Payment Date. Prior to
any such election taking effect, Company shall provide Holder with a
certificate, signed by an officer of Company, certifying (i) that such election
has occurred, (ii) that the independent directors approving such election are
independent as defined above, and (iii) the resolutions of the Board of
Directors of Company authorizing such election. In the event that Company fails
to provide Holder with such certificate prior to the Interest Payment Date for
any interest payment with respect to which Company has made an election, such
interest payment shall be due and payable in cash on such Interest Payment Date.
Interest on any overdue principal and (to the extent permitted by law) any
overdue interest shall be paid or accrued, as the case may be, from the due date
thereof (whether by acceleration or otherwise) at a rate of twelve percent (12%)
per annum.
(b) If any payment on this Note becomes due and payable on a day
other than a business day, the maturity thereof shall be extended to the next
succeeding business day and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension. All
references in this Note to "business day" shall mean any day other than a
Saturday, Sunday or any day on which banking institutions in New York City are
required or authorized by law or by local proclamation to close.
2. EVENTS OF DEFAULT. The occurrence of any one or more of the
following events (regardless of the reason therefor) shall constitute an "Event
of Default" hereunder:
(a) Company shall fail to make any payment of principal of, or
interest on or any other amount owing in respect of, this Note when the same
becomes due and payable or declared due and payable in the case of principal or
5 days after such due date in the case of interest and other amounts.
(b) Any representation or statement made or deemed made by Company
in this Note, or by Barneys New York, Inc. ("BNY") in the Guarantee, dated as of
the date hereof and in favor of Isetan (as it may be amended, restated,
supplemented or otherwise modified from time to time in accordance with the
terms thereof, the "Guarantee"), shall prove to be incorrect or untrue when made
in any material respect.
(c) Any indebtedness for borrowed money or the deferred purchase
price of property, other than trade credit
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incurred in the ordinary course of business, of Company, BNY or any of their
significant subsidiaries (as defined in Regulation S-X of the Securities and
Exchange Commission) in an aggregate principal amount of at least $1,000,000
(or, in the case of an overadvance under the Credit Agreement (as defined
below), of an amount not to exceed $7,000,000 which remains outstanding for a
period of ten business days) shall not be paid when due or be declared to be due
and payable prior to its stated maturity or Company or BNY shall be dissolved.
(d) A case or proceeding shall have been commenced against
Company, BNY or any of their significant subsidiaries in a court having
competent jurisdiction seeking a decree or order in respect of Company, BNY or
any of their significant subsidiaries (i) under title 11 of the United States
Code, as now constituted or hereafter amended, or any other applicable federal,
state or foreign bankruptcy or other similar law, (ii) appointing a custodian,
receiver, liquidator, assignee, trustee or sequestrator (or similar official) of
Company or BNY, any of their significant subsidiaries or of any substantial part
of its or their properties, or (iii) ordering the winding-up or liquidation of
the affairs of Company, BNY, or any of their significant subsidiaries and such
case or proceeding shall remain undismissed or unstayed for sixty (60)
consecutive days or such court shall enter a decree or order granting the relief
sought in such case or proceeding.
(e) Company, BNY or any of their significant subsidiaries shall
(i) file a petition seeking relief under title 11 of the United States Code, as
now constituted or hereafter amended, or any other applicable federal, state or
foreign bankruptcy or other similar law, (ii) consent to the institution of
proceedings thereunder or to the filing of any such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee or sequestrator (or similar official) of Company, BNY or any
of their significant subsidiaries or of any substantial part of their respective
properties, (iii) fail generally to pay its debts as such debts become due, or
admit in writing its inability to pay its debts or make a general assignment for
the benefit of creditors, or (iv) take any corporate action in furtherance of
any such action.
(f) Any governmental authority or any court at the instance
thereof shall take possession of any
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substantial part of the property of, or assume control over the affairs or
operations of, Company, BNY or any of their significant subsidiaries.
(g) Failure by Company or BNY to perform or observe any other
covenant or agreement contained in this Note or the Guarantee, and such failure
remains unremedied for a period of thirty (30) days after written notice thereof
shall have been given to Company by Xxxxxx.
In the case of an Event of Default described in clauses (d) or (e)
above, the unpaid balance of this Note and all interest accrued thereon and any
accrued and unpaid fees and expenses due and payable hereunder shall
automatically (without any action on the part of Holder and without presentment,
demand, protest or notice of any kind, all of which are hereby expressly waived)
forthwith become due and payable, and, in the case of any other Event of
Default, then and in any such event, and at any time thereafter, if such or any
other Event of Default shall then be continuing, Holder may by notice to Company
declare this Note to be due and payable, whereupon the maturity of the then
unpaid balance of this Note shall be accelerated and the same, and all interest
accrued thereon and any accrued and unpaid fees and expenses due and payable
hereunder, shall forthwith become due and payable without presentment, demand,
protest or notice of any kind, all of which are hereby expressly waived.
Notwithstanding any other rights Holder may have under any applicable law and
hereunder, Company agrees that upon the occurrence and continuance of any Event
of Default, Holder shall have the right (but not the obligation) to apply
(including by way of setoff) any of the property of Company held by Holder or
thereafter coming into Holder's possession (including account balances) to a
reduction of the obligations of Company under this Note.
3. SUBORDINATION.
(a) NOTE SUBORDINATED TO SENIOR DEBT. Company covenants and
agrees, and Holder by its acceptance hereof likewise covenants and agrees, that
all payments of the principal of and interest on this Note and all expenses,
reimbursements and other amounts owing under this Note (collectively the
"Subordinated Debt") shall be subordinated in accordance with the provisions of
this Section 3 to the prior payment in full of all Senior Debt of Company. For
purposes of this Note, the term "Senior Debt" shall mean, collectively (i) the
Obligations (as defined in the Credit
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Agreement dated on or about the date hereof (the "Exit Facility")) among the
Company and certain of its affiliates, the financial institutions party thereto
(the "Lenders") and Citicorp USA, Inc., as agent for the Lenders (the
"Administrative Agent"), and all renewals, extensions, refundings and
refinancings thereof (the "Credit Agreement"), (ii) other indebtedness used for
general corporate purposes of Company and its subsidiaries designated as Senior
Debt, provided that the aggregate outstanding principal amount of the
indebtedness referred to in clauses (i) and (ii) above does not exceed
$150,000,000, and (iii) all premium, if any, interest (including, without
limitation, interest accruing at the rate provided for in the documents
evidencing such Senior Debt after the commencement of any proceedings of the
type referred to in Section 2(d) or 2(e) hereof, whether or not an allowed claim
in such proceeding) on the loans and other extensions of credit referred to in
clauses (i) and (ii), and all expenses, fees (including, without limitation,
attorneys fees), reimbursements, indemnities and other amounts owing pursuant to
the indebtedness referred to in clauses (i) and (ii).
(b) Upon any payment or distribution of assets of any kind or
character, whether in cash, property or securities, to creditors in any
bankruptcy, insolvency, liquidation or similar proceeding with respect to
Company, all amounts due or to become due under or with respect to all Senior
Debt shall first be paid in full, in cash, before any payment is made on account
of the Subordinated Debt. Upon any dissolution, winding-up, liquidation or
reorganization of Company, any payment or distribution of assets of Company of
any kind or character, whether in cash, property or securities, to which any
holder of Subordinated Debt would be entitled, except for the provisions hereof,
shall be paid by Company or other person making such payment or distribution, or
by the holders of the Subordinated Debt if received by them, directly to the
Administrative Agent (until the Credit Agreement has been terminated and then,
in such event, to holders of Senior Debt (pro rata on the basis of the
respective principal amount of Senior Debt held by them)), for application to
the payment of Senior Debt to the extent necessary to pay the Senior Debt in
full after giving effect to any substantially concurrent payment in cash to the
holders of such Senior Debt.
(c) No payment shall be made on account of Subordinated Debt if,
at the time of such payment or
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immediately after giving effect thereto: (i) a default has occurred in the
payment of any Senior Debt under any document or instrument governing or
evidencing such Senior Debt beyond the applicable grace period (a "Payment
Default") or (ii) a default (other than a Payment Default) has occurred and the
Administrative Agent (until Holder has received notice from the Administrative
Agent that the Credit Agreement has been terminated and then, in such event, any
holder of Senior Debt) has given written notice of such default (the "Default
Notice") to Holder and in either case, such Payment Default or other default, as
the case may be, shall not have been cured or waived in writing; PROVIDED,
HOWEVER, that payments on account of Subordinated Debt may be made hereunder
after the 150th day following the giving of the applicable Default Notice unless
a Payment Default has occurred and is continuing at such time. Only one such 150
day period may commence within any 360 consecutive day period.
(d) In the event that any holder of Subordinated Debt receives
payment of any portion of the Subordinated Debt at a time when such payment is
prohibited hereunder, such payment shall be held by such holder of Subordinated
Debt in trust for the benefit of the holders of Senior Debt, and shall be paid
over forthwith and delivered to the Administrative Agent (until Xxxxxx has
received notice from the Administrative Agent that the Credit Agreement has been
terminated and then, in such event, to the holders of Senior Debt remaining
unpaid) for application to the payment of the Senior Debt remaining unpaid to
the extent necessary to pay the Senior Debt in full after giving effect to any
substantially concurrent payment in cash to the holders of the Senior Debt.
Reference in this Section 3 to payment in full means payment in full in cash.
(e) No remedy may be exercised by any holder of Subordinated Debt
in connection with this Note until such holder has given to the Administrative
Agent (until the Credit Agreement has been terminated and then, in such event,
to each holder of Senior Debt that has provided Holder with its address for
notice purposes) 10 business days prior written notice of its intention to
exercise such remedy.
(f) No right of any holder of Senior Debt to enforce the
subordination provisions provided in this Section 3 shall at any time in any way
be prejudiced or impaired by any act or failure to act on the part of Company
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or by any noncompliance by Company with terms, provisions and covenants of this
Note or any other agreement regardless of any knowledge thereof which any such
holder may have or be otherwise charged with. Without in any way limiting the
generality of the foregoing paragraph, the holders of Senior Debt, or any of
them, may, at any time and from time to time, without the consent of or notice
to Holder, without incurring any liabilities to Holder and without impairing or
releasing the subordination and other benefits provided in this Note or the
obligations of Holder to the holders of Senior Debt, even if any right of
reimbursement or subrogation or other right or remedy of Holder is affected,
impaired or extinguished thereby, do any of the following:
(i) change the manner, place or terms of payment or change or
extend the time of payment of, or renew, exchange, amend, increase
(subject to the $150,000,000 indebtedness limitation set forth in the
definition of "Senior Debt") or alter, the terms of any Senior Debt, any
security therefor or guaranty thereof or any liability of any obligor
thereon to such holder, or any liability incurred directly or indirectly
in respect thereof or otherwise amend, renew, exchange, extend, modify,
increase (subject to the $150,000,000 indebtedness limitation set forth in
the definition of "Senior Debt") or supplement in any manner any Senior
Debt or any instrument evidencing or securing the same;
(ii) sell, exchange, release, surrender, realize upon, enforce or
otherwise deal with in any manner and in any order any property pledged,
mortgaged or otherwise securing Senior Debt or any liability of any
obligor thereon, to such holder, or any liability incurred directly or
indirectly in respect thereof;
(iii) settle or compromise any Senior Debt or any other liability of
any obligor of the Senior Debt to such holder or any security therefor or
any liability incurred directly or indirectly in respect thereof and apply
any sums by whomsoever paid and however realized to any liability in any
manner or order; and
(iv) fail to take or to record or otherwise perfect, for any reason
or for no reason, any lien or security interest securing Senior Debt by
whomsoever granted, exercise or delay in or refrain from exercising any
right or remedy against any obligor or
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any guarantor or any other person, elect any remedy and otherwise deal
freely with any obligor and any security for the Senior Debt or any
liability of any obligor to such holder or any liability incurred directly
or indirectly in respect thereof.
(g) The provisions of this Section 3 may not be amended, modified
or supplemented without the consent of the Administrative Agent (until Xxxxxx
has received notice from the Administrative Agent that the Credit Agreement has
been terminated and then, in such event, without the consent of the holders of a
majority of the Senior Debt then outstanding).
(h) Upon the payment in full of all Senior Debt, Holder shall be
subrogated to the extent of the payments or distributions made to the holders
of, or otherwise applied to payment of, the Senior Debt pursuant to the
provisions of this Section 3 until this Note shall be paid in full; and for
purposes of such subrogation, no payments or distributions to holders of Senior
Debt of any cash, property or securities to which Holder would be entitled
except for the provisions of this Section 3, and no payment over pursuant to the
provisions of this Section 3 to holders of Senior Debt by Xxxxxx, shall, as
between Company, its creditors other than holders of Senior Debt and Holder, be
deemed to be payment by Company to or on account of Senior Debt, it being
understood that the provisions of this Section 3 are solely for the purpose of
defining the relative rights of the holders of Senior Debt, on the one hand, and
Holder, on the other hand.
(i) If any payment or distribution to which Holder would otherwise
have been entitled but for the provisions of this Section 3 shall have been
applied, pursuant to the provisions of this Section 3, to the payment of Senior
Debt, then and in such case, Holder shall be entitled to receive from the
holders of Senior Debt any payments or distributions received by such holders of
Senior Debt in excess of the amount sufficient to pay all Senior Debt in full in
cash.
(j) Nothing contained in this Note is intended to or shall impair,
as between Company and Holder, the obligations of Company, which are absolute
and unconditional, to pay to Holder the principal of (premium, if any), and
interest on, this Note as and when the same shall become due and payable in
accordance with its terms,
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or is intended to or shall affect the relative rights of Xxxxxx and creditors of
Company other than the holders of Senior Debt, and except as otherwise provided
in Section 3, nothing herein shall prevent Holder from exercising all remedies
otherwise permitted by applicable law upon the occurrence of an Event of Default
under this Note. The failure to make a payment on account of principal of, or
interest on, this Note by reason of any provision of this Section 3 shall not be
construed as preventing the occurrence of an Event of Default hereunder.
(k) Holder shall be entitled to all rights set forth in this
Section 3 with respect to any Senior Debt which may at any time be held by it,
to the same extent as any other holder of Senior Debt, and nothing in this Note
shall deprive Holder of any of its rights as such holder.
4. OPTIONAL PREPAYMENT. Company shall have the right at any time
or from time to time and without premium or penalty, to voluntarily prepay all
or any portion of this Note. Each prepayment shall be accompanied by the payment
of accrued and unpaid interest on the amount being prepaid, through the date of
prepayment.
5. REPRESENTATIONS AND WARRANTIES. Company represents and
warrants on the date hereof as follows:
(a) Company is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization having full
power and authority to conduct its business in each jurisdiction where it
presently conducts any material part of its business.
(b) The execution, delivery and performance by Company of this
Note are within the powers of Company, have been duly authorized by all
necessary action, have received all necessary governmental approvals and do not
contravene its organizational documents (if applicable) or any law, regulation
or contractual restriction binding on Company.
(c) This Note is the legal, valid and binding obligation of
Company and is enforceable against Company in accordance with its terms.
(d) No event has occurred and no condition exists which, upon or
at the time of execution and delivery of this Note would constitute an Event of
Default or would, with the
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giving of notice or lapse of time, or both, constitute an Event of Default.
6. COVENANTS. Company covenants that until all obligations of
Company hereunder shall have been paid in full in cash, with accrued interest in
cash:
(a) Each of Company and BNY shall, and shall cause each of their
subsidiaries to, at all times do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its existence and the
governmental rights, licenses, permits, and franchises material to the conduct
of their respective businesses; comply with all laws, rules, regulations and
governmental orders (whether federal, state or local) applicable to the
operation of such businesses whether now in effect or hereafter enacted
(including, without limitation, all applicable laws, rules, regulations and
governmental orders relating to environmental protection and to public and
employee health and safety) the lack of compliance with which would have a
material adverse effect on the business, assets, operations, or condition,
financial or otherwise, of Company, BNY and their subsidiaries taken as a whole
or on the ability of Company to perform its obligations under this Note or BNY
under the Guarantee; take all actions which may be required to obtain, preserve,
renew and extend all licenses, permits, franchises and other authorizations
which are material to the operation of such businesses; and at all times
maintain, preserve and protect all property material to the conduct of such
businesses and keep such property in good repair, working order and condition
and from time to time make, or cause to be made, all needful and proper repairs,
renewals, additions, improvements and replacements thereto necessary in order
that the business carried on in connection therewith may be properly conducted
at all times, subject to normal wear and tear; PROVIDED, HOWEVER, that the
foregoing shall in no way preclude Company or BNY from liquidating, dissolving,
merging, selling or transferring any subsidiary of Company and/or any and all of
the assets thereof.
(b) Company shall furnish Holder, within one hundred twenty (120)
days after the close of each fiscal year, with audited consolidated financial
statements of BNY and its subsidiaries, certified by independent certified
public accountants as of the end of such period, including a balance sheet and
related statements of earnings and cash flows for such fiscal year, in each case
setting forth in
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comparative form the figures for the previous year prepared in accordance with
generally accepted accounting principles consistently applied during the period
involved.
(c) Company shall furnish Holder, within sixty (60) days after the
close of each of the first three fiscal quarters of each year, with unaudited
consolidated financial statements of BNY and its subsidiaries, including a
balance sheet and related statements of earnings and cash flows for such fiscal
quarter and for the portion of the fiscal year then ending, in each case
prepared in accordance with generally accepted accounting principles
consistently applied during the period involved.
(d) Company and BNY shall not, from the date hereof, voluntarily
create or incur, or suffer to be created or incurred, or assume, or permit to
exist, any mortgage, lien, pledge, charge or encumbrance of any kind (a "Lien")
upon any of its respective properties or assets whether now owned or hereafter
acquired except for Liens (i) securing Senior Debt, (ii) which are Permitted
Encumbrances (as defined below), (iii) incurred in connection with the purchase
of property useful in the business of the Company or BNY, which Lien is created
when such property is purchased by the Company or BNY, as the case may be, and
which Xxxx does not extend to property other than such purchased property
(including, without limitation, reimbursement and all other obligations with
respect to surety bonds, letters of credit, bankers' acceptances, whether or not
matured, and obligations to trade creditors incurred in the ordinary course of
business), (iv) on real property or leases of real property, and (v) securing
the promissory notes issued to the Equipment Lessors pursuant to and as defined
in Company's Second Amended Joint Plan of Reorganization dated November 13, 1998
(the "Plan").
"Permitted Encumbrances" shall mean the following encumbrances: (a)
Liens for taxes or assessments or other governmental charges not yet due and
payable; (b) pledges or deposits securing obligations under workmen's
compensation, unemployment insurance, social security or public liability laws
or similar legislation; (c) pledges or deposits securing bids, tenders,
contracts (other than contracts for the payment of money) or leases to which
Company or BNY is a party as lessee made in the ordinary course of business; (d)
deposits securing statutory obligations of Company or BNY; (e) inchoate and
unperfected workers', mechanics', suppliers' or similar liens arising in the
ordinary course
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of business; (f) carriers', warehousemen's or other similar possessory liens
arising in the ordinary course of business; (g) deposits securing, or in lieu
of, surety, appeal or customs bonds in proceedings to which Company or BNY is a
party; (h) any attachment or judgment lien; and (i) zoning restrictions,
easements, licenses, or other restrictions on the use of any real estate or
other minor irregularities in title (including leasehold title) thereto, so long
as the same do not materially impair the use, value, or marketability of such
real estate.
(e) Company and BNY shall not enter into or be a party to any
transaction with any person or entity that, directly or indirectly, beneficially
owns or controls ten percent (10%) or more of the voting stock of BNY (an
"Affiliate"), except upon fair and reasonable terms that are no less favorable
to Company or BNY than would be obtained in a comparable arm's-length
transaction with a person or entity not an Affiliate.
(f) Company shall not sell, lease, transfer or assign to any
person or otherwise dispose of (whether in one transaction or a series of
related transactions) all or substantially all of its assets (whether now owned
or hereafter acquired).
(g) Except as expressly permitted by the Exit Facility, Company
shall not pay or make (i) any dividend or other distribution, direct or
indirect, on account of any shares of any class of Capital Stock (as defined in
the Exit Facility) of Company or BNY now or hereafter outstanding, except a
dividend payable solely in shares of that class of stock, (ii) any redemption,
retirement, sinking fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any shares of any class of Capital Stock of
Company or BNY now or hereafter outstanding, and (iii) any payment made to
redeem, purchase, repurchase or retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares of any class of
Capital Stock of Company or BNY now or hereafter outstanding.
7. SUCCESSORS AND ASSIGNS. (a) This Note shall inure to the
benefit of Isetan and its successors and registered assigns. Isetan and any
other Holder may assign to any party all or any part of, or any interest
(undivided or divided) in, its rights and benefits herein, and to the extent of
that assignment such assignee shall have the same
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rights and benefits against Company as it would have had if such assignee were
Isetan. Company will make payment in accordance with the terms of this Note to
the registered Holder listed on the books and records of Company. This Note and
the provisions hereof are binding upon successors of Company.
(b) Neither this Note nor any obligation hereunder shall be
assigned by Company to any person or entity and any attempted assignment shall
be null and void.
8. EXPENSES. The Company agrees to pay any and all reasonable
expenses (including, without limitation, reasonable legal fees and expenses)
incurred by Holder in connection with enforcement of this Note or the collection
of any sums due to Holder hereunder.
9. PRESENTMENT AND DEMAND. Demand, presentment, protest and
notice of nonpayment and protest are hereby waived by Company.
10. AMENDMENT AND NON-WAIVER. (a) This Note may not be amended
except by an agreement in writing signed by Company and the Holder hereof.
(b) To the extent permitted by law, no failure to exercise and no
delay on the part of Holder in exercising any power or right in connection with
this Note or available at law or in equity, shall operate as a waiver thereof,
and no single or partial exercise of any such rights or power, or any
abandonment or discontinuance of steps to enforce such a right or power, shall
preclude any other or further exercise thereof or the exercise of any other
right or power. No course of dealing among any Holder, Company or any other
person or entity shall operate as a waiver of any right of any Holder. No
modification or waiver of any provision of this Note and no consent to any
departure therefrom shall in any event be effective unless in writing and signed
by the party against whom enforcement thereof is to be sought, and then such
waiver or consent shall be effective only in the specific instance and for the
purpose for which given.
11. NOTICES. Except as otherwise provided herein, any notice,
demand, request, consent, approval, declaration, delivery or other communication
(including, without limitation, any registration of successors or permitted
assigns) hereunder to be made pursuant to the
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provisions of this Note shall be sufficiently given or made if in writing and
either delivered in person with receipt acknowledged or sent by registered or
certified mail, return receipt requested, postage prepaid, or by telecopy and
confirmed by telecopy answerback, addressed as follows:
(a) If to Isetan at
Isetan of America Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx Xxxxxxxx
Telecopy No: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx & Xxxx LLP
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxx, Esq.
Telecopy No: (000) 000-0000
(b) If to Company at
Barney's, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration, delivery or other communication hereunder shall
be deemed to have been duly given or served on the date on which personally
delivered, with receipt acknowledged, telecopied and confirmed by telecopy
answerback, or three (3) business days after the same shall have been deposited
in the United States mail. Failure or delay in delivering copies of any notice,
demand, request, consent, approval, declaration, delivery or other communication
to the person designated above to receive a copy shall in no way adversely
affect the effectiveness of such notice, demand, request, consent, approval,
declaration, delivery or other communication.
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12. SUBMISSION TO JURISDICTION; JURY WAIVER. (a) Company, Isetan
and any other Holder hereby irrevocably submit to the jurisdiction of any New
York State or Federal court sitting in New York City, and they hereby
irrevocably agree that any action may be heard and determined in such New York
State court or in such Federal court. Company, Isetan and any other Holder
hereby irrevocably waive, to the fullest extent they may effectively do so, the
defense of an inconvenient forum to the maintenance of any action in any
jurisdiction. Company, Isetan and any other Holder hereby irrevocably agree that
the summons and complaint or any other process in any action in any jurisdiction
may be served by mailing in accordance with the provision set forth in Section
11. Company, Isetan and any other Holder may also be served in any other manner
permitted by law, in which event their time to respond shall be the time
provided by law.
(b) EACH OF COMPANY, ISETAN AND ANY OTHER HOLDER HEREBY
IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY OBLIGATIONS UNDER THIS NOTE.
13. GOVERNING LAW. This Note shall be governed by and construed
and enforced in accordance with the laws of the State of New York applicable to
agreements made and to be wholly performed in such State and without giving
effect to the conflict of laws principles thereof.
14. PAYMENTS IN CASH. All payments hereunder shall be made by
Company in cash in lawful currency of the United States of America.
[signature page follows]
15
XXXXXX'X, INC.
By: /s/ Xxxxxx Xxxxxxx
----------------------------
Xxxxxx Xxxxxxx
Executive Vice President
and Chief Financial Officer
16
