Exhibit 2.5
REAL ESTATE MATTERS AGREEMENT
between
XXXX XXX CORPORATION
and
COACH, INC.
TABLE OF CONTENTS
Page
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ARTICLE I PROPERTIES..............................................................1
Section 1.1 Leased Property...............................1
Section 1.2 Obtaining the Lease Consents..................1
Section 1.3 Properties....................................2
Section 1.4 Occupation by Coach...........................3
Section 1.5 Obligation to Complete........................4
Section 1.6 Form of Transfer..............................4
Section 1.7 Casualty; Lease Termination...................5
Section 1.8 Tenant's Fixtures and Fittings................5
Section 1.9 Relevant Lease Renewals; New Leases...........5
Section 1.10 Costs and Expenses............................6
ARTICLE II MISCELLANEOUS..........................................................6
Section 2.1 Limitation of Liability.......................6
Section 2.2 Entire Agreement..............................6
Section 2.3 Governing Law and Jurisdiction................6
Section 2.4 Termination...................................7
Section 2.5 Notices.......................................7
Section 2.6 Counterparts..................................8
Section 2.7 Binding Effect; Assignment....................8
Section 2.8 Severability..................................8
Section 2.9 Failure or Indulgence Not Waiver;
Remedies Cumulative.........................8
Section 2.10 Amendment.....................................9
Section 2.11 Authority.....................................9
Section 2.12 Interpretation................................9
Section 2.13 Dispute Resolution............................9
ARTICLE III DEFINITIONS..........................................................11
Section 3.1 AAA..........................................11
Section 3.2 Actual Completion Date.......................11
Section 3.3 Affiliated Group.............................11
Section 3.4 Ancillary Agreements.........................11
Section 3.5 Coach Business...............................11
Section 3.6 Coach Group..................................11
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Section 3.7 Dispute......................................11
Section 3.8 Dispute Resolution Commencement Date.........11
Section 3.9 Distribution.................................11
Section 3.10 Distribution Date............................12
Section 3.11 IPO..........................................12
Section 3.12 IPO Closing Date.............................12
Section 3.13 Landlord.....................................12
Section 3.14 Lease Consents...............................12
Section 3.15 Lease Indemnification and Reimbursement
Agreement..................................12
Section 3.16 Lease Requiring Consent......................12
Section 3.17 Leased Property or Leased Properties.........12
Section 3.18 Person.......................................12
Section 3.19 Property or Properties.......................12
Section 3.20 Relevant Lease...............................12
Section 3.21 Xxxx Xxx Group...............................13
Section 3.22 Separation...................................13
Section 3.23 Separation Agreement.........................13
Section 3.24 Separation Date..............................13
Section 3.25 Subsidiary...................................13
SCHEDULES
SCHEDULE 1
Leased Properties................................................................15
SCHEDULE 1.9
Excluded Leased Properties.......................................................16
SCHEDULE 2
Form Assignment for Leased Properties............................................17
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REAL ESTATE MATTERS AGREEMENT
This Real Estate Matters Agreement (this "Agreement") is
dated as of August 24, 2000 between Xxxx Xxx Corporation, a Maryland
corporation ("Xxxx Xxx"), and Coach, Inc., a Maryland corporation ("Coach").
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to such terms in Article III hereof.
RECITALS
WHEREAS, Xxxx Xxx has transferred or will transfer to Coach
effective as of the Separation Date, substantially all of the business and
assets of the Coach Business owned by Xxxx Xxx in accordance with the Master
Separation Agreement dated as of August 24, 2000 between Xxxx Xxx and Coach
(the "Separation Agreement").
WHEREAS, the parties desire to set forth certain agreements
regard ing real estate matters.
NOW, THEREFORE, in consideration of the foregoing and the
covenants and agreements set forth below, the parties hereto agree as follows:
ARTICLE I
PROPERTIES
Section 1.1 LEASED PROPERTY. Xxxx Xxx shall assign or cause its
applicable Subsidiary to assign, and Coach shall accept and assume, or cause
its applicable Subsidiary to accept and assume, Xxxx Xxx'x or its
Subsidiary's interest in the Leased Properties, subject to the other
provisions of this Agreement and (to the extent not inconsistent with the
provisions of this Agreement) the terms of the Separation Agreement and the
other Ancillary Agreements. Such assignment shall be completed on the later
of: (i) the Separation Date and (ii) the fifth business day after the
relevant Lease Consent has been granted.
Section 1.2 OBTAINING THE LEASE CONSENTS.
(a) Coach confirms that, with respect to each Lease Requiring
Consent, an application has been made or will be made by the Separation Date
to the
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relevant Landlord for the Lease Consents required with respect to the
transactions contemplated by this Agreement.
(b) Coach will use its commercially reasonable efforts to
obtain the Lease Consents required by each Lease Requiring Consent. Xxxx Xxx
shall cooperate as reasonably requested by Coach to obtain the Lease
Consents; PROVIDED, HOWEVER, that Xxxx Xxx shall not be required to commence
judicial proceedings for a declaration that a Lease Consent has been
improperly withheld or delayed, nor shall Xxxx Xxx be required to pay any
consideration to obtain the relevant Lease Consent.
(c) Coach and Xxxx Xxx will promptly satisfy or cause their
applicable Subsidiaries to satisfy the lawful and reasonable requirements of
the Landlord in obtaining the Lease Consents required by each Lease Requiring
Con sent. In addition, Coach and Xxxx Xxx will take or cause their applicable
Subsidiaries to take all reasonable and lawful steps to assist Coach in
obtaining the Lease Consents required by each Lease Requiring Consent,
including, without limitation:
(i) if required by the Landlord, Coach will enter into an
agreement with the relevant Landlord to assume, observe and perform the
tenant's obligations contained in the Lease Requiring Consent during the
remainder of the term of the Lease Requiring Consent; and
(ii) if required by the Landlord, Coach shall pro vide or
shall cause another Person (other than Xxxx Xxx) to provide a guarantee,
surety or other security (including, without limitation, a security
deposit), in an amount comparable to existing security depos its on
existing leases, for the obligations of Coach or its applicable
Subsidiary as tenant under the Lease Requiring Consent, and other wise
shall take all steps which are reasonably necessary and which Coach or
its applicable Subsidiary is reasonably capable of doing to meet the
lawful and reasonable requirements of the Landlord so as to ensure that
the Lease Consents are obtained.
Section 1.3 PROPERTIES.
(a) Coach and Xxxx Xxx shall use and continue to use all
commer cially reasonable efforts to obtain a release by the Landlord of any
and all of Xxxx Xxx'x obligations under all Relevant Leases, including,
without limitation, any
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guarantee, surety or other security which Xxxx Xxx or its Subsidiary has
provided to the Landlord with respect to any Properties and, if required,
Coach offering the same or equivalent (but not greater) security to the
Landlord in order to obtain such release, until all such releases are
obtained, but excluding the provision of any incentive payment to the
Landlord.
(b) If, with respect to any Properties, Xxxx Xxx and Coach are
unable to obtain a release by the Landlord of all of Xxxx Xxx'x obligations
under any Relevant Lease, including, without limitation, any guarantee,
surety or other security which Xxxx Xxx or its Subsidiary has provided to the
Landlord, Coach shall indem nify, defend, protect and hold harmless Xxxx Xxx
and its Subsidiary from and after the Separation Date against and shall
reimburse Xxxx Xxx for all losses, costs, claims, damages, or liabilities
incurred by Xxxx Xxx or its Subsidiary as a result of Coach's occupancy of
the Property which arise after the Separation Date with respect to such
Relevant Lease, guarantee, surety or other security pursuant to the terms of
the Lease Indemnification and Reimbursement Agreement.
Section 1.4 OCCUPATION BY COACH
(a) Subject to compliance with Section 1.4(b) below, in the
event that the Actual Completion Date for any Leased Property does not occur
on the Separation Date, the parties agree to use their respective
commercially reasonable efforts to allow Coach to occupy the relevant Leased
Property upon the terms and conditions contained in the Relevant Lease and
until the date for completion as provided in Section 1.1; PROVIDED, HOWEVER,
that if an enforcement action or forfei ture by the relevant Landlord due to
Coach's or its applicable Subsidiary's occupation of the Leased Property
constituting a breach of a Relevant Lease cannot, in the reasonable opinion
of Xxxx Xxx, be avoided other than by requiring Coach or its applicable
Subsidiary to promptly vacate the relevant Leased Property, Xxxx Xxx may by
notice to Coach promptly require Coach or its applicable Subsidiary to vacate
the relevant Leased Property on not less than ten (10) days prior written
notice. Coach will be responsible for all costs, expenses and liabilities
incurred by Xxxx Xxx or its applicable Subsidiary as a consequence of such
occupation. Neither Coach nor its applicable Subsidiary shall be entitled to
make any claim or demand against, or obtain reimbursement from, Xxxx Xxx or
its applicable Subsidiary with respect to any costs, losses, claims,
liabilities or damages incurred by Coach or its applicable Subsidiary as a
consequence of being obliged to vacate the Leased Property or in obtaining
alternative premises, including, without limitation, any enforcement action
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which a Landlord may take against Coach or its applicable Subsidiary, unless
due to the gross negligence or wilful misconduct of Xxxx Xxx.
(b) In the event that the Actual Completion Date for any
Leased Property does not occur on the Separation Date, whether or not Coach
or its applica ble Subsidiary occupies a Leased Property as provided in
Section 1.4(a) above, Coach shall, effective as of the Separation Date, (i)
pay or cause its applicable Subsidiary to pay all rents, service charges,
insurance premiums and other sums payable by Xxxx Xxx or its applicable
Subsidiary under any Relevant Lease, (ii) observe or cause its applicable
Subsidiary to observe the tenant's covenants, obliga tions and conditions
contained in any Relevant Lease and (iii) indemnify, defend, protect and hold
harmless Xxxx Xxx and its applicable Subsidiary from and against all losses,
costs, claims, damages and liabilities arising on account of any breach
thereof by Coach or its applicable Subsidiary.
(c) Xxxx Xxx shall use all reasonable efforts to promptly
deliver to Coach copies of all invoices, demands, notices and other
communications received by Xxxx Xxx or its applicable Subsidiary or agents in
connection with any of the matters applicable to the Properties or the
Relevant Leases and shall, at Coach's cost and upon Coach's request, take any
steps and pass on any objections which Coach or its applicable Subsidiary may
have in connection with any such matters. Coach shall promptly deliver to
Xxxx Xxx copies of all notices and other communications received by Coach or
its applicable Subsidiary or agents from any Landlord which allege any breach
or default of any Relevant Lease, which breach or default could reasonably be
expected to result in Xxxx Xxx incurring any liabilities, losses or expenses
under such Relevant Lease.
Section 1.5 OBLIGATION TO COMPLETE. If, at any time the relevant
Lease Consent is formally and unconditionally refused in writing, Xxxx Xxx
may by written notice to Coach elect to apply to the relevant Landlord for
consent to sublease all of the relevant Leased Property to Coach or its
applicable Subsidiary for the remainder of the Lease Requiring Consent term
at a rent equal to the rent from time to time under the Lease Requiring
Consent, but otherwise on substantially the same terms and conditions as the
Lease Requiring Consent. If Xxxx Xxx makes such an election, until such time
as the relevant Lease Consent is obtained and a sublease is com pleted, the
provisions of Section 1.4 will apply and, on the grant of the Lease Consent
required to sublease the Leased Property in question, Xxxx Xxx shall sublease
or cause its applicable Subsidiary to sublease to Coach or its applicable
Subsidiary the relevant Leased Property which sublease shall be for the term
and rent set forth in
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the Lease Requiring Consent and otherwise on the terms of the Lease Requiring
Consent.
Section 1.6 FORM OF TRANSFER. The assignment to Coach or its
applicable Subsidiary of each relevant Leased Property shall be (a) in
substantially the form attached as Schedule 2 hereto or (b) if any Landlord
so requires, in the form of assignment reasonably proposed by the relevant
Landlord, with such amendments which in the reasonable opinion of Xxxx Xxx
are necessary with respect to a particu lar Leased Property, including,
without limitation, in all cases where a relevant Landlord has required a
guarantor or surety to guarantee the obligations of Coach or its applicable
Subsidiary contained in the relevant Lease Consent or any other document
which Coach or its applicable Subsidiary is required to complete, the giving
by Coach or its applicable Subsidiary and any guarantor or surety of Coach's
or its applicable Subsidiary's obligations where required under the terms of
any of the Lease Consent or any covenant, condition, restriction, easement,
lease or other encumbrance to which the Leased Property is subject. Such
amendments shall be submitted to Xxxx Xxx for approval, which approval shall
not be unreasonably withheld or delayed.
Section 1.7 CASUALTY; LEASE TERMINATION. The parties hereto shall
grant and accept assignments, leases, subleases or licenses of the Leased
Properties as described in this Agreement, regardless of any casualty damage
or other change in the condition of the Leased Properties. In addition, in
the event that any Relevant Lease with respect to a Leased Property is
terminated prior to the Separation Date, (a) Xxxx Xxx or its applicable
Subsidiary shall not be required to assign, sublease or license such Leased
Property, (b) Coach or its applicable Subsidiary shall not be required to
accept an assignment, sublease or license of such Leased Property and (c)
neither party shall have any further liability with respect to such Leased
Property hereunder.
Section 1.8 TENANT'S FIXTURES AND FITTINGS. The provisions of the
Separa tion Agreement and the other Ancillary Agreements shall apply to any
trade fixtures and personal property located at each Leased Property.
Section 1.9 RELEVANT LEASE RENEWALS; NEW LEASES. Other than the
Relevant Leases with respect to the Properties specifically set forth in
Schedule 1.9 hereto, Xxxx Xxx shall have no obligations under and shall be
fully released from all liability under (a) any Relevant Lease that expires
or is subject to renewal on or after the Separation Date, such release to be
effective as of the date of such expiration or
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renewal, and (b) any new real property lease entered into in connection with
the Coach Business on or after the Separation Date, including, without
limitation, any obligation to provide a guarantee, surety or other security
in connection with such renewed Relevant Lease or any new lease. Coach will
use all commercially reason able efforts to execute the Relevant Leases set
forth in Schedule 1.9 hereto without any obligation on the part of or
guaranty by Xxxx Xxx; PROVIDED, HOWEVER, that in the event that Coach is
unable to enter into such Relevant Lease without Xxxx Xxx'x guarantee or
surety, Xxxx Xxx agrees to provide a guarantee or surety with respect to each
Relevant Lease listed on Schedule 1.9, so long as such guarantee or surety is
comparable in scope and no less favorable to Xxxx Xxx than any guarantee or
surety of Xxxx Xxx with respect to Relevant Leases in effect on the
Separation Date. If, after the Separation Date, any Relevant Lease will
automatically renew by its terms and will subject Xxxx Xxx to any continuing
obligations or liabilities upon such automatic renewal unless the Landlord
receives prior written notice to terminate any obligations or liabilities of
Xxxx Xxx, Coach shall give such prior written notice in a timely fashion.
Section 1.10 COSTS AND EXPENSES. Coach shall pay all reasonable costs
and expenses incurred in connection with obtaining the Lease Consents,
including, without limitation, Landlord's consent fees and attorneys' fees
and any costs and expenses relating to re-negotiation or renewal of any
Relevant Lease. Coach and Xxxx Xxx shall each be responsible for their own
internal fees, costs and expenses (e.g., salaries of personnel) incurred in
connection with this Agreement.
ARTICLE II
MISCELLANEOUS
Section 2.1 LIMITATION OF LIABILITY. IN NO EVENT SHALL ANY MEMBER OF
THE XXXX XXX GROUP OR COACH GROUP BE LIABLE TO ANY OTHER MEMBER OF THE XXXX
XXX GROUP OR COACH GROUP FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDEN
TAL OR PUNITIVE DAMAGES OR LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF
LIABILITY (INCLUDING NEGLIGENCE) ARISING IN ANY WAY OUT OF THIS AGREEMENT,
WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES; PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATIONS SHALL NOT LIMIT
EACH PARTY'S INDEMNIFICATION
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OBLIGATIONS FOR LIABILITIES TO THIRD PARTIES AS SET FORTH IN THE
INDEMNIFICATION AND INSURANCE MATTERS AGREEMENT.
Section 2.2 ENTIRE AGREEMENT. This Agreement, the Separation Agree
ment, the other Ancillary Agreements and the Exhibits and Schedules
referenced or attached hereto and thereto, constitute the entire agreement
between the parties with respect to the subject matter hereof and shall
supersede all prior written and oral and all contemporaneous oral agreements
and understandings with respect to the subject matter hereof.
Section 2.3 GOVERNING LAW AND JURISDICTION. This Agreement shall be
construed in accordance with and all Disputes hereunder shall be governed by
the laws of the State of Illinois, excluding its conflict of law rules. The
parties agree that the Circuit Court of Xxxx County, Illinois and/or the
United States District Court for the Northern District of Illinois shall have
exclusive jurisdiction over all actions between the parties for preliminary
relief in aid of arbitration pursuant to Section 2.13 herein, and non
exclusive jurisdiction over any action for enforcement of an arbitral award.
Section 2.4 TERMINATION. This Agreement, the Separation Agreement and
all Ancillary Agreements may be terminated at any time prior to the IPO
Closing Date by and in the sole discretion of Xxxx Xxx without the approval
of Coach and, if so terminated, all transactions taken in connection
therewith shall be void. This Agreement may be terminated at any time after
the IPO Closing Date and before the Distribution Date by mutual consent of
Xxxx Xxx and Coach. In the event of termina tion pursuant to this Section
2.4, no party shall have any liability of any kind to the other party.
Section 2.5 NOTICES. Notices, demands, offers requests or other
communi cations required or permitted to be given by either party pursuant to
the terms of this Agreement shall be given in writing to the respective
parties to the following addresses and facsimile numbers:
(a) if to Xxxx Xxx:
Xxxx Xxx Corporation
Three First National Plaza
00 Xxxx Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
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Attention: General Counsel
Facsimile No.: (000) 000-0000
(b) if to Coach:
Coach, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
or to such other address or facsimile number as the party to whom notice is
given may have previously furnished to the other in writing as provided
herein. Any notice involving non-performance, termination, or renewal shall
be sent by hand delivery, recognized overnight courier or, within the United
States, may also be sent via certified mail, return receipt requested. All
other notices may also be sent by facsimile, confirmed by first class mail.
All notices shall be deemed to have been given when received, if hand
delivered; when transmitted, if transmitted by facsimile or similar
electronic transmission method; one working day after it is sent, if sent by
recognized overnight courier; and three days after it is postmarked, if
mailed first class mail or certified mail, return receipt requested, with
postage prepaid.
Section 2.6 COUNTERPARTS. This Agreement, including the Schedules and
Exhibits hereto, and the other documents referred to herein, may be executed
in counterparts, each of which shall be deemed to be an original but all of
which shall constitute one and the same agreement.
Section 2.7 BINDING EFFECT; ASSIGNMENT. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
legal representatives and successors, and nothing in this Agreement, express
or implied, is intended to confer upon any other Person any rights or
remedies of any nature whatsoever under or by reason of this Agreement. This
Agreement may be enforced separately by each member of the Xxxx Xxx Group and
each member of the Coach Group. Neither party may assign this Agreement or
any rights or obligations hereunder, without the prior written consent of the
other party, and any such assign ment shall be void; PROVIDED, HOWEVER,
either party may assign this Agreement to a successor entity in conjunction
with such party's reincorporation.
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Section 2.8 SEVERABILITY. If any term or other provision of this
Agreement or the Schedules or Exhibits attached hereto is determined by a
court, administrative agency or arbitrator to be invalid, illegal or
incapable of being enforced by any rule of law or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal sub stance of the
transactions contemplated hereby is not affected in any manner materially
adverse to either party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner to the end that transactions contemplated hereby are fulfilled to the
fullest extent possible.
Section 2.9 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No
failure or delay on the part of either party hereto in the exercise of any
right hereun der shall impair such right or be construed to be a waiver of,
or acquiescence in, any breach of any representation, warranty or agreement
herein, nor shall any single or partial exercise of any such right preclude
other or further exercise thereof or of any other right. All rights and
remedies existing under this Agreement or the Exhibits or Schedules attached
hereto are cumulative to, and not exclusive of, any rights or remedies
otherwise available.
Section 2.10 AMENDMENT. No change or amendment will be made to this
Agreement or the Exhibits or Schedules attached hereto except by an
instrument in writing signed on behalf of each of the parties to such
agreement.
Section 2.11 AUTHORITY. Each of the parties hereto represents to the
other that (a) it has the corporate or other requisite power and authority to
execute, deliver and perform this Agreement, (b) the execution, delivery and
performance of this Agreement by it have been duly authorized by all
necessary corporate or other action, (c) it has duly and validly executed and
delivered this Agreement, and (d) this Agreement is a legal, valid and
binding obligation, enforceable against it in accor dance with its terms
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally and general equity
principles.
Section 2.12 INTERPRETATION. The headings contained in this
Agreement, in any Exhibit or Schedule hereto and in the table or contents to
this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement. Any capitalized term
used in any Schedule or Exhibit but not
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otherwise defined therein, shall have the meaning assigned to such term in
this Agreement. When a reference is made in this Agreement to an Article or a
Section, Exhibit or Schedule, such reference shall be to an Article or
Section of, or an Exhibit or Schedule to, this Agreement unless otherwise
indicated.
Section 2.13 DISPUTE RESOLUTION.
(a) Any dispute, controversy or claim arising out of or
relating to this Agreement or the Ancillary Agreements or the breach,
termination or validity thereof ("Dispute") which arises between the parties
shall first be negotiated between appropriate senior executives of each party
who shall have the authority to resolve the matter. Such executives shall
meet to attempt in good faith to negotiate a resolution of the Dispute prior
to pursuing other available remedies, within 10 days of receipt by a party of
notice of a dispute, which date of receipt shall be referred to herein as the
"Dispute Resolution Commencement Date." Discussions and corre spondence
relating to trying to resolve such Dispute shall be treated as confidential
information developed for the purpose of settlement and shall be exempt from
discovery or production and shall not be admissible in any subsequent
proceeding between the parties. If the senior executives are unable to
resolve the Dispute within thirty (30) days from the Dispute Resolution
Commencement Date, then, on the request of any party, the Dispute will be
mediated by a mediator appointed pursuant to the mediation rules of the
American Arbitration Association ("AAA"). Both parties will share the
administrative costs of the mediation and the mediator's fees and expenses
equally, and each party shall bear all of its other costs and expenses
related to the mediation, including but not limited to attorney's fees,
witness fees, and travel expenses. The mediation shall take place in Xxxx
County Illinois or in whatever alternative forum on which the parties may
agree.
(b) Any Dispute which the parties cannot resolve through media
tion within forty-five days of the appointment of the mediator, shall at the
request of any party be submitted to final and binding arbitration under the
then current Commercial Arbitration Rules of the AAA in Xxxx County,
Illinois. There shall be three (3) neutral arbitrators of whom Xxxx Xxx shall
appoint one and Coach shall appoint one within 30 days of the receipt by the
respondent of the demand for arbitration. The two arbitrators so appointed
shall select the chair of the arbitral tribunal within 30 days of the
appointment of the second arbitrator. If any arbitra tor is not appointed
within the time limit provided herein, such arbitrator shall be appointed by
the AAA by using a list striking and ranking procedure in accordance with the
Rules. Any arbitrator appointed by the AAA shall be a retired judge or a
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practicing attorney with no less than fifteen years of experience and an
experienced arbitrator. The prevailing party in such arbitration shall be
entitled to be awarded its expenses, including its share of administrative
and arbitrator fees and expenses and reasonable attorneys' and other
professional fees, incurred in connection with the arbitration (but excluding
any costs and fees associated with prior negotiation or mediation). The
decision of the arbitrators shall be final and binding on the parties and may
be enforced in any court of competent jurisdiction.
(c) By agreeing to arbitration, the parties do not intend to
deprive any court of its jurisdiction to issue a pre-arbitral injunction,
pre-arbitral attachment, or other order in aid of arbitration proceedings and
the enforcement of any award. Without prejudice to such provisional remedies
as may be available under the juris diction of a court, the arbitral tribunal
shall have full authority to grant provisional remedies or modify or vacate
any temporary or preliminary relief issued by a court, to issue an award for
temporary or permanent injunctive relief (including specific performance) and
to award damages for the failure of any party to respect the arbitral
tribunal's orders to that effect.
ARTICLE III
DEFINITIONS
Section 3.1 AAA. "AAA" has the meaning set forth in Section 2.13(a)
of this Agreement.
Section 3.2 ACTUAL COMPLETION DATE. "Actual Completion Date" means,
with respect to each Leased Property, the date upon which completion of the
assignment, lease or sublease of that Leased Property to Coach actually takes
place.
Section 3.3 AFFILIATED GROUP. "Affiliated Group" has the meaning set
forth in the Tax Sharing Agreement.
Section 3.4 ANCILLARY AGREEMENTS. "Ancillary Agreements" shall have
the meaning set forth in the Master Separation Agreement.
Section 3.5 COACH BUSINESS. "Coach Business" shall have the meaning
set forth in the Separation Agreement.
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Section 3.6 COACH GROUP. "Coach Group" means the Affiliated Group, or
similar group of entities as defined under corresponding provisions of the
laws of other jurisdictions, of which Coach will be the common parent
corporation immedi ately after the Distribution, and any corporation or other
entity which may become a member of such group from time to time.
Section 3.7 DISPUTE. "Dispute" has the meaning set forth in Section
2.13(a) of this Agreement.
Section 3.8 DISPUTE RESOLUTION COMMENCEMENT DATE. "Dispute Resolution
Commencement Date" has the meaning set forth in Section 2.13(a) of this
Agreement.
Section 3.9 DISTRIBUTION. A "Distribution" means the divestiture by
Xxxx Xxx of all or a significant portion of the shares of capital stock of
Coach owned by Xxxx Xxx, which divestiture may be effected by Xxxx Xxx as a
dividend, an exchange with existing Xxxx Xxx stockholders for shares of Xxxx
Xxx capital stock, a spin-off or otherwise, as a result of which Xxxx Xxx is
no longer required to consolidate Coach's results of operations and financial
position (determined in accordance with generally accepted accounting
principles consistently applied).
Section 3.10 DISTRIBUTION DATE. "Distribution Date" means the date on
which a Distribution is consummated.
Section 3.11 IPO. "IPO" means Coach's initial public offering of
common stock.
Section 3.12 IPO CLOSING DATE. "IPO Closing Date" has the meaning set
forth in the Separation Agreement.
Section 3.13 LANDLORD. "Landlord" means the landlord under any
Relevant Lease, and its successors and assigns, and includes the holder of
any other interest which is superior to the interest of the landlord under
any Relevant Lease.
Section 3.14 LEASE CONSENTS. "Lease Consents" means all consents,
waivers or amendments required from the Landlord or other third parties under
the Relevant Leases to assign the Relevant Leases to Coach or its applicable
Subsidiary.
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Section 3.15 LEASE INDEMNIFICATION AND REIMBURSEMENT AGREEMENT.
"Lease Indemnification and Reimbursement Agreement" shall mean that certain
Lease Indemnification and Reimbursement Agreement between Xxxx Xxx and Coach
dated as of the date hereof
Section 3.16 LEASE REQUIRING CONSENT. "Lease Requiring Consent"
means, with respect to each Leased Property, those Relevant Leases with
respect to which the Landlord's consent is required for assignment or
sublease to a third party (including Coach) or which prohibit assignments or
subleases.
Section 3.17 LEASED PROPERTY OR LEASED PROPERTIES. "Leased Property"
or "Leased Properties" means those leased properties contained in Schedule 1.
Section 3.18 PERSON. "Person" means an individual, a partnership, a
corporation, a limited liability company, an association, a joint stock
company, a trust, a joint venture, an unincorporated organization or a
governmental entity or any department, agency or political subdivision
thereof.
Section 3.19 PROPERTY OR PROPERTIES. "Property" or "Properties" means
the Leased Properties and those properties contained in Schedule 1.9.
Section 3.20 RELEVANT LEASE. "Relevant Lease" means, with respect to
each Property, the lease(s) or sublease(s) or license(s) under which Xxxx Xxx
or its applicable Subsidiary holds such Property and any other related
supplemental document.
Section 3.21 XXXX XXX GROUP. "Xxxx Xxx Group" means the Affiliated
Group, or similar group of entities as defined under corresponding provisions
of the laws of other jurisdictions, of which Xxxx Xxx is the common parent
corporation, and any corporation or other entity which may be, may have been
or may become a member of such group from time to time, but excluding any
member of the Coach Group.
Section 3.22 SEPARATION. "Separation" shall have the meaning set
forth in the Separation Agreement.
Section 3.23 SEPARATION AGREEMENT. "Separation Agreement" has the
meaning set forth in the preamble to this Agreement.
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Section 3.24 SEPARATION DATE. Unless otherwise provided in this Agree
ment, or in any agreement to be executed in connection with the Separation
Agree ment, the effective time and date of each transfer of property,
assumption of liability, license, undertaking, or agreement in connection
with the Separation shall be 12:01 a.m., Central Time, on the date that is
two days prior to the date on which the Registration Statement on Form S-1
effecting the IPO is declared effective, or such other date as may be fixed
by the Board of Directors of Xxxx Xxx (the "Separation Date").
Section 3.25 SUBSIDIARY. "Subsidiary" of any Person means a
corporation or other organization whether incorporated or unincorporated of
which at least a majority of the securities or interests having by the terms
thereof ordinary voting power to elect at least a majority of the board of
directors or others performing similar functions with respect to such
corporation or other organization is directly or indirectly owned or
controlled by such Person or by any one or more of its Subsid iaries, or by
such Person and one or more of its Subsidiaries; PROVIDED, HOWEVER, that no
Person that is not directly or indirectly wholly- owned by any other Person
shall be a Subsidiary of such other Person unless such other Person controls,
or has the right, power or ability to control, that Person. For purposes of
this Agreement, Coach shall be deemed not to be a subsidiary of Xxxx Xxx.
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IN WITNESS WHEREOF, each of the parties has caused this Real
Estate Matters Agreement to be executed on its behalf by its officers thereunto
duly authorized on the day and year first above written.
XXXX XXX CORPORATION
By:
---------------------------
Name:
Title:
COACH, INC.
By:
---------------------------
Name:
Title:
SCHEDULE 1
LEASED PROPERTIES
SCHEDULE 1.9
EXCLUDED LEASED PROPERTIES
SCHEDULE 2
FORM ASSIGNMENT FOR LEASED PROPERTIES
ASSIGNMENT AND ASSUMPTION OF LEASES
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (this "Agreement") made as
of the ____ day of ___________________, 2000, between COACH STORES, a
division of Xxxx Xxx Corporation, a Maryland corporation ("Assignor"), and
COACH, INC., a Maryland corporation ("Assignee").
WHEREAS, Assignor is the owner and holder of certain interests as
tenant under certain leases, tenancies and occupancy agreements
(collectively, the "Leases") encumbering various properties, including,
without limitation, the properties listed on SCHEDULE A attached hereto; and
WHEREAS, in furtherance of and pursuant to the terms of that certain
Real Estate Matters Agreement entered into as of October __, 2000, between
Xxxx Xxx Corporation ("Xxxx Xxx"), a Maryland corporation, and Assignee,
Assignor desires to assign and Assignee desires to assume the Leases.
NOW THEREFORE, in consideration of Ten ($10.00) Dollars and other
good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Assignor and Assignee agree as follows effective as
of the date hereof (the "Effective Date"):
1. Assignor hereby assigns, sets over and transfers to Assignee, its
successors and assigns, to have and to hold from and after the
date hereof, any and all of As xxxxxx'x right, title and interest
as tenant in and to the Leases, including, without limitation,
any and all of Assignor's right and interest in any security
deposited under the Leases, to have and to hold unto Assignee,
its successors and assigns.
2. Assignee hereby accepts the within assignment and assumes from
Assignor all of Assignor's responsibilities and obligations as
tenant, under and from the Leases, from and after the Effective
Date, and agrees to perform and comply with and to be bound by
all the terms, agreements, provisions and conditions of the
Leases.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
as of the date first above written.
COACH STORES, a Division of Xxxx Xxx COACH, INC., a Maryland corporation
Corporation, a Maryland corporation
By: By:
-------------------------------- -------------------------------
Name: Name:
------------------------------ -----------------------------
Title: Title:
----------------------------- -------------------------------
