Exhibit 2.9
FORM OF SUBSTITUTE NOTE
$190,000,000 Chicago, Illinois
Dated as of: October __, 2000
FOR VALUE RECEIVED, the undersigned, COACH, INC., a Maryland
corporation (the "BORROWER"), promises to pay to the order of INTERNATIONAL
AFFILIATES & INVESTMENT INC., a Delaware corporation (the "LENDER"), (i) the
principal amount of ONE HUNDRED AND NINETY MILLION DOLLARS ($190,000,000), in
accordance with the terms of this Substitute Note (this "NOTE") and, in any
event by September 30, 2002 (the "MATURITY DATE"), (ii) interest on said
principal amount at the rates and times herein specified, and (iii) any and
all other sums which may be owing to the Lender by the Borrower pursuant to
the terms of 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 Wilmington Trust
Company, to the account specified by the Lender in writing, for the account
of Lender or at such other place as shall be designated in writing by the
Lender for such purpose.
1. INTEREST. The Borrower agrees to pay interest on the unpaid
principal amount of this Note outstanding from time to time, from the date
hereof 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" as used herein shall mean (a) for so long as
Xxxx Xxx Corporation owns greater than eighty percent (80%) of the
outstanding voting stock of the Borrower, three-tenths of one percent
(0.3%) per annum and (b) at all other times when the preceding clause
(a) does not apply, two and one-half percent (2.5%) per annum.
"BUSINESS DAY" as used herein shall mean 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 one month period
during which amounts are outstanding hereunder, the rate per annum in
effect on the Business Day immediately prior to the first day of each
such one month period equal to the average rate at which one month U.S.
dollar deposits are offered in the London interbank market by prime
banks as announced by Bloomberg News, Inc. 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 U.S. dollar deposits are offered on the page containing
the London interbank offered rates on the Reuters screen on the date of
determination.
The Stated Rate and the interest payable hereunder shall be
determined by the Lender and invoiced to the Borrower on a monthly basis.
2. 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.
3. 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 five (5) of fiscal year 2001 and on
the fifteenth day of each fiscal period thereafter, as well as on the
Maturity Date.
4. 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 required prepayment, 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 one percent (1%) PLUS the rate otherwise applicable as set
forth in Section 1 above.
5. PAYMENTS.
(a) In the event the Borrower consummates any underwritten
public offering of securities registered under the Securities Act of 1933, as
amended (an "IPO"), the Borrower shall pay the principal amount of this Note
in an amount equal to the total gross cash proceeds received by the Borrower
on account of such offering of securities (less customary underwriting fees
and discounts and reasonable expenses directly related to such offering),
such payment to be made within two (2) Business Days of the receipt of such
proceeds.
(b) The Borrower shall pay on the fifteenth day of each fiscal
period commencing in the first fiscal period occurring after the fiscal
period in which the Borrower's IPO is consummated, a principal amount of this
Note equal to the "EXCESS CASH FLOW" (defined below) for the month most
recently ended. "EXCESS CASH FLOW" as used herein shall mean for any month of
determination, for the Borrower and its subsidiaries on a consolidated basis,
net income for such month PLUS amortization expenses for such month PLUS
depreciation expense 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 MINUS any non-financed capital
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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 and MINUS any amounts outstanding under that
certain Revolving Note dated as of July 2, 2000 in the original principal
amount of $75,000,000 made by the Borrower in favor of Xxxx Xxx Corporation
(as amended, extended, substituted or replaced from time to time) at such
time, which amounts are required to be repaid with "EXCESS CASH FLOW" as
defined therein. All accounting terms shall have the meanings as determined
in accordance with generally accepted accounting principles consistently
applied.
6. 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.
7. COVENANTS OF BORROWER. So long as any of the obligations hereunder
(all such obligations, including, without limitation, principal, interest and
expenses collectively referred to herein as the "OBLIGATIONS") shall remain
unpaid, the Borrower will and will cause 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 its subsidiaries or their respective 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 or
financial position 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, 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 for such period.
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(c) Not directly or indirectly, make, create, incur, assume or
suffer to exist any "Liens" (as 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, 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.
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"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 Plans for fiscal
years 2001 and 2002, as approved by Xxxx Xxx Corporation's Board of Directors
(or committee thereof), as the same may be amended with approval of 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 determina tion 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 any 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) 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.
(f) 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 the date on which Xxxx Xxx
Corporation is no longer required to consolidate Borrower's results of
operations and financial position (determined in accordance with generally
accepted accounting
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principles consistently applied) or (ii) make any change in its capital
structure which could adversely affect the repayment of the obligations under
this Note.
(g) 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 Corporation relating to the separation of the
Borrower's business from the Xxxx Xxx Corporation business.
(h) 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.
8. 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 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
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 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
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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 in clauses (a) and (b) above, a Compliance Certificate executed
by a Responsible Officer demonstrat ing in sufficient detail compliance with
the financial covenant contained in Section 7(b) hereof, a calculation of
Excess Cash Flow for each month included in the fiscal quarter most recently
ended and a representation that no Event of Default or event that upon either
notice or the passage of time 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.
9. 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 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,
Borrower (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 of such Borrower to qualify to do
business would have a
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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.
10. 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 herein 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 of
the cases above, the principal amount of such indebtedness is at least
$5,000,000; or
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(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 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; 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;
then, and in any such event, the Lender may, by notice to the Borrower,
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 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.
11. 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 (other than the Borrower) 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 (other than the Borrower) 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 claims, damages, losses, liabilities or expenses incurred
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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 and any Other Note.
12. AMENDMENTS, ETC. No amendment or waiver of any provision of this
Note, nor consent to any departure by the Borrower therefrom, shall 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.
13. 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.
14. 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.
15. 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 DELAWARE 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.
16. 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.
17. 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.
18. STATUS. As of the date hereof, the indebtedness evidenced by that
certain Term Note dated as of _________, 2000 in the original principal
amount of $190,000,000 made payable by Xxxx Xxx Corporation to the Lender
(the "ORIGINAL NOTE") continues to be outstanding. Pursuant to the terms of
that certain Assumption and Assignment Agreement of even date herewith
executed among the Borrower, the Lender and Xxxx Xxx Corporation, (i) this
Note is intended to re-evidence the indebtedness outstanding under the
Original Note, is not a novation or repayment thereof and shall replace and
supersede the Original Note and (ii) Xxxx Xxx Corporation is released from
all obligations under or related to the Original Note or the letter agreement
executed in connection therewith.
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
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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.
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IN WITNESS WHEREOF, the Borrower has executed this Note as of the date
first above written.
COACH, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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:
INTERNATIONAL AFFILIATED INVESTMENT INC.
By:
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
Notice Address:
Playtex Apparel, Inc.
Xxxxxxx Street
Dover, Delaware 19903
Attn: Xxxxxx X. Xxxxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
