<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM 10-Q
----------------
(Mark One)
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE QUARTER ENDED OCTOBER 31, 1997. OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE TRANSITION FROM ________ TO ___________.
Commission file number: 1-9494
TIFFANY & CO.
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
<S> <C>
DELAWARE 13-3228013
(State of incorporation) (I.R.S. Employer Identification No.)
727 FIFTH AVE. NEW YORK, NY 10022
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (212) 755-8000
</TABLE>
Former name, former address and former fiscal year, if changed since last report
_________.
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X . No .
APPLICABLE ONLY TO CORPORATE ISSUERS: Indicate the number of shares outstanding
of each of the issuer's classes of common stock as of the latest practicable
date: Common Stock, $.01 par value, 35,116,295 shares outstanding at the close
of business on October 31, 1997.
<PAGE> 2
TIFFANY & CO. AND SUBSIDIARIES
INDEX TO FORM 10-Q
FOR THE QUARTER ENDED OCTOBER 31, 1997
<TABLE>
<CAPTION>
PART I - FINANCIAL INFORMATION Page
----
<S> <C>
Item 1. Financial Statements
Consolidated Balance Sheets - October 31, 1997 (Unaudited),
January 31, 1997 and October 31, 1996 (Unaudited) 3
Consolidated Statements of Earnings - for the three and nine
months ended October 31, 1997 and 1996 (Unaudited) 4
Consolidated Statements of Stockholders' Equity for the three
and nine months ended October 31, 1997 (Unaudited) 5
Consolidated Statements of Cash Flows - for
for the nine months ended October 31, 1997
and 1996 (Unaudited) 6
Notes to Consolidated Financial Statements
(Unaudited) 7-9
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations 10-14
PART II - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K 15
(a) Exhibits
(b) Reports on Form 8-K
</TABLE>
- 2 -
<PAGE> 3
PART I. FINANCIAL INFORMATION
Item 1. FINANCIAL STATEMENTS
TIFFANY & CO. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(in thousands, except per share amounts)
<TABLE>
<CAPTION>
October 31, January 31, October 31,
1997 1997 1996*
---- ---- -----
(Unaudited) (Unaudited)
<S> <C> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 24,483 $ 117,161 $ 19,794
Short-term investments 15,000 -- --
Accounts receivable, less allowances
of $6,736, $6,864 and $5,919 82,305 80,772 80,403
Inventories 415,371 335,389 389,910
Deferred income taxes 19,125 14,297 9,100
Prepaid expenses 30,848 21,364 28,843
--------- --------- ---------
Total current assets 587,132 568,983 528,050
Property and equipment, net 146,942 129,346 131,232
Deferred income taxes 9,223 10,259 7,575
Other assets, net 30,667 30,830 35,531
--------- --------- ---------
$ 773,964 $ 739,418 $ 702,388
========= ========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Short-term borrowings $ 65,196 $ 76,338 $ 74,218
Accounts payable and accrued liabilities 138,037 110,068 130,036
Income taxes payable 2,951 25,829 240
Merchandise and other customer credits 15,989 14,237 12,522
--------- --------- ---------
Total current liabilities 222,173 226,472 217,016
Reserve for product return 3,956 5,800 6,428
Long-term debt 93,080 92,675 95,340
Postretirement/employment benefit obligation 19,889 19,191 18,997
Other long-term liabilities 17,860 17,016 16,737
Commitments and contingencies
Stockholders' equity:
Common Stock, $.01 par value; authorized
60,000 shares, issued 35,116, 34,529 and 34,495 351 345 345
Additional paid-in capital 167,562 150,045 148,979
Retained earnings 262,038 237,959 203,918
Foreign currency translation adjustments (12,945) (10,085) (5,372)
--------- --------- ---------
Total stockholders' equity 417,006 378,264 347,870
--------- --------- ---------
$ 773,964 $ 739,418 $ 702,388
========= ========= =========
</TABLE>
* Reclassified for comparative purposes.
See notes to consolidated financial statements.
- 3 -
<PAGE> 4
TIFFANY & CO. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF EARNINGS
(Unaudited)
(in thousands, except per share amounts)
<TABLE>
<CAPTION>
For the For the
Three Months Ended Nine Months Ended
October 31, October 31,
------------------------- -------------------------
1997 1996 1997 1996
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net sales $233,074 $210,985 $649,922 $594,489
Cost of sales 106,195 96,701 300,162 279,957
-------- -------- -------- --------
Gross profit 126,879 114,284 349,760 314,532
Selling, general and administrative
expenses 105,033 95,183 291,263 265,483
Provision for uncollectible accounts 420 458 1,123 1,250
-------- -------- -------- --------
Earnings from operations 21,426 18,643 57,374 47,799
Other expenses, net 1,315 2,186 3,474 7,886
-------- -------- -------- --------
Earnings before income taxes 20,111 16,457 53,900 39,913
Provision for income taxes 8,648 7,110 23,177 17,243
-------- -------- -------- --------
Net earnings $ 11,463 $ 9,347 $ 30,723 $ 22,670
======== ======== ======== ========
Net earnings per share:
Primary $ 0.32 $ 0.26 $ 0.85 $ 0.65
======== ======== ======== ========
Fully diluted $ 0.32 $ 0.26 $ 0.85 $ 0.65
======== ======== ======== ========
Weighted average number of common shares:
Primary 36,286 35,845 36,179 34,654
Fully diluted 36,286 35,845 36,208 35,675
</TABLE>
See notes to consolidated financial statements.
- 4 -
<PAGE> 5
TIFFANY & CO. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
(Unaudited)
(in thousands)
<TABLE>
<CAPTION>
Foreign
Total Common Stock Additional Currency
Stockholders' ------------- Paid-In Retained Translation
Equity Shares Amount Capital Earnings Adjustments
------------- ------ ------ ---------- -------- -----------
<S> <C> <C> <C> <C> <C> <C>
BALANCES, January 31, 1997 $ 378,264 34,529 $345 $150,045 $ 237,959 $(10,085)
Issuance of Common Stock 1,800 50 1 1,799 -- --
Exercise of stock options 3,802 245 2 3,800 -- --
Tax benefit from exercise of
stock options 2,710 -- -- 2,710 -- --
Cash dividends on Common Stock (1,738) -- -- -- (1,738) --
Foreign currency translation
adjustments (3,049) -- -- -- -- (3,049)
Net earnings 8,880 -- -- -- 8,880 --
--------- ------ ---- -------- --------- --------
BALANCES, April 30, 1997 390,669 34,824 348 158,354 245,101 (13,134)
--------- ------ ---- -------- --------- --------
Exercise of stock options 3,649 203 2 3,647 -- --
Tax benefit from exercise of
stock options 2,580 -- -- 2,580 -- --
Cash dividends on Common Stock (2,448) -- -- -- (2,448) --
Foreign currency translation
adjustments 729 -- -- -- -- 729
Net earnings 10,380 -- -- -- 10,380 --
--------- ------ ---- -------- --------- --------
BALANCES, July 31, 1997 405,559 35,027 350 164,581 253,033 (12,405)
--------- ------ ---- -------- --------- ---------
Exercise of stock options 1,774 89 1 1,773 -- --
Tax benefit from exercise of
stock options 1,208 -- -- 1,208 -- --
Cash dividends on Common Stock (2,458) -- -- -- (2,458) --
Foreign currency translation
adjustments (540) -- -- -- -- (540)
Net earnings 11,463 -- -- -- 11,463 --
--------- ------ ---- -------- --------- --------
BALANCES, October 31, 1997 $ 417,006 35,116 $351 $167,562 $ 262,038 $(12,945)
========= ====== ==== ======== ========= ========
</TABLE>
See notes to consolidated financial statements
- 5 -
<PAGE> 6
TIFFANY & CO. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
(in thousands)
<TABLE>
<CAPTION>
For the
Nine Months Ended
October 31,
----------------------------
1997 1996*
---- -----
<S> <C> <C>
Cash Flows From Operating Activities:
Net earnings $ 30,723 $ 22,670
Adjustments to reconcile net earnings
to net cash used in operating activities:
Depreciation and amortization 16,774 15,502
Provision for uncollectible accounts 1,123 1,250
Reduction in reserve for product return (1,844) (4,810)
Provision for inventories 5,033 3,594
Deferred income taxes (3,753) 1,371
Provision for postretirement/employment benefits 698 966
Change in assets and in liabilities:
Accounts receivable (3,569) (3,624)
Inventories (87,210) (91,071)
Prepaid expenses (9,648) (9,168)
Other assets, net (954) (10,634)
Accounts payable 23,759 16,298
Accrued liabilities 5,893 9,353
Income taxes payable (22,839) (19,309)
Merchandise and other customer credits 1,752 1,468
Other long-term liabilities 1,800 645
--------- --------
Net cash used in operating activities (42,262) (65,499)
--------- --------
Cash Flows From Investing Activities:
Capital expenditures (33,988) (30,456)
Purchase of short-term investments (15,000) --
Proceeds from sale of fixed assets -- 26
Proceeds from lease incentives 851 1,590
--------- --------
Net cash used in investing activities (48,137) (28,840)
--------- --------
Cash Flows From Financing Activities:
Payments on short-term borrowings (11,353) (351)
Prepayment of long-term trade payable -- (25,432)
Proceeds from issuance of long-term debt -- 45,324
Proceeds from exercise of stock options 9,220 12,667
Tax benefit from exercise of stock options 6,498 4,534
Cash dividends on Common Stock (6,644) (4,575)
--------- --------
Net cash (used in) provided by financing activities (2,279) 32,167
--------- --------
Net decrease in cash and cash equivalents (92,678) (62,172)
Cash and cash equivalents at beginning of year 117,161 81,966
--------- --------
Cash and cash equivalents at end of nine months $ 24,483 $ 19,794
========= ========
Supplemental Disclosure of Cash Flow Information:
Cash paid during the nine months for:
Interest $ 4,872 $ 8,735
========= ========
Income taxes $ 43,282 $ 32,641
========= ========
Supplemental Schedule of Noncash Investing and
Financing Activities:
Conversion of Subordinated Debentures to Equity $ -- $ 48,343
========= ========
Issuance of Common Stock for the Employee Profit
Sharing and Retirement Savings Plan $ 1,800 $ 1,000
========= ========
</TABLE>
*Reclassified for comparative purposes
See notes to consolidated financial statements
- 6 -
<PAGE> 7
TIFFANY & CO. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
1. CONSOLIDATED FINANCIAL STATEMENTS
The accompanying consolidated financial statements include the accounts
of Tiffany & Co. and all majority-owned domestic and foreign
subsidiaries (the "Company"). All material intercompany balances and
transactions have been eliminated. The statements are without audit
and, in the opinion of management, include all adjustments (which
include only normal recurring adjustments including the adjustment
necessary as a result of the use of the LIFO method of inventory
valuation, which is based on assumptions as to inflation rates and
projected fiscal year-end inventory levels) necessary to present fairly
the Company's financial position as of October 31, 1997 and the results
of operations and cash flows for the interim periods presented. The
financial statements for January 31, 1997 are derived from the audited
financial statements which are included in the Company's report on Form
10-K, which should be read in connection with these financial
statements. In accordance with the rules of the Securities and Exchange
Commission, these financial statements do not include all disclosures
required by generally accepted accounting principles.
Since the Company's business is seasonal, with a higher proportion of
sales and income generated in the last quarter of the fiscal year, the
results of operations for the three and nine months ended October 31,
1997 and 1996 are not necessarily indicative of the results of the
entire fiscal year.
2. INVENTORIES
Inventories at October 31, 1997, January 31, 1997 and October 31, 1996
are summarized as follows:
<TABLE>
<CAPTION>
October 31, January 31, October 31,
(in thousands) 1997 1997 1996
-------------- ----------- ----------- -----------
<S> <C> <C> <C>
Finished goods $362,518 $286,109 $329,917
Raw Materials 55,722 47,969 53,640
Work-in-process 1,964 3,054 11,004
-------- -------- --------
420,042 337,132 394,561
Reserves (4,833) (1,743) (4,651)
-------- -------- --------
$415,371 $335,389 $389,910
======== ======== ========
</TABLE>
At October 31, 1997, January 31, 1997 and October 31, 1996,
$309,181,000, $249,904,000 and $289,403,000, respectively, of
inventories were valued using the LIFO method. The excess of current
cost over the LIFO inventory value was $17,927,000 at October 31, 1997,
$14,870,000 at January 31, 1997 and $14,649,000 at October 31, 1996.
The LIFO valuation method had the effect of decreasing net earnings by
$0.02 per share in each of the three month periods ended October 31,
1997 and 1996. The LIFO valuation method had the effect of decreasing
net earnings by $0.05 per share in each of the nine month periods ended
October 31, 1997 and 1996.
- 7 -
<PAGE> 8
3. EARNINGS PER SHARE
Primary earnings per common share is computed based on the weighted
average number of shares of common stock and common stock equivalents
outstanding during the period, including dilutive stock options. The
computation of fully diluted earnings per common share reflects the
assumed conversion of the 6-3/8% Convertible Subordinated Debentures
for the nine months ended October 31, 1996, which were converted or
redeemed during the period ended July 31, 1996.
4. FINANCIAL HEDGING INSTRUMENTS
In accordance with the Company's foreign currency hedging program, at
October 31, 1997 the Company had outstanding purchased put options
maturing at various dates through October 22, 1998, giving it the
right, but not the obligation, to sell yen 8,445,000,000 for dollars at
predetermined contract-exchange rates. The deferred unrealized gain on
the Company's purchased put options amounted to $1,771,000 at October
31, 1997. If the market yen-exchange rates at maturity are below the
contract rates, the Company will allow the options to expire.
To mitigate the exchange rate fluctuations related to intercompany
inventory purchases for the Company's business in Japan, the Company
enters into forward exchange yen contracts. At October 31, 1997, the
Company had $44,050,000 of such contracts outstanding, which will
mature at various dates through January 26, 1998. At October 31, 1996,
the Company had $13,636,000 of such contracts outstanding, which
subsequently matured on November 26, 1996.
5. ACCOUNTING STANDARDS
In February 1997, the Financial Accounting Standards Board ("FASB")
issued Statement of Financial Accounting Standards ("SFAS") No. 128,
"Earnings Per Share," ("SFAS No. 128") designed to improve the earnings
per share ("EPS") information provided in financial statements and to
replace the presentation of previously disclosed EPS with basic and
diluted EPS. This standard is effective for the Company's financial
statements for the fiscal year ending January 31, 1998. Based upon the
Company's current capital structure, the adoption of SFAS No. 128 is
not expected to have a material impact on the Company's reported EPS.
In February 1997, the FASB issued SFAS No. 129, "Disclosures of
Information About Capital Structure." SFAS No. 129 requires disclosure
concerning issued securities of all types, and applies to all issuers.
In June 1997, the FASB issued SFAS No. 130, "Reporting Comprehensive
Income" and SFAS No. 131, "Disclosure About Segments of an Enterprise
and Related Information." SFAS No. 130 establishes standards for
reporting and display of comprehensive income and its components
(revenues, expenses, gains and losses) in a full set of general-purpose
financial statements. SFAS No. 131 establishes accounting standards for
the reporting of information about operating segments by public
business enterprises in annual financial statements and requires those
enterprises to report selected information about operating segments in
interim financial reports to stockholders. SFAS No. 129 is effective
for the Company's financial statements for the fiscal year ending
January 31, 1998. SFAS No. 130 and No. 131 are effective for the
Company's financial statements for the fiscal year ending January 31,
1999. The adoption of these new accounting standards is not expected to
have a material effect on the Company's financial statements.
- 8 -
<PAGE> 9
6. SUBSEQUENT EVENTS
On November 20, 1997, the Company's Board of Directors declared a
quarterly dividend of $0.07 per common share. This dividend will be
paid on January 12, 1998 to stockholders of record on December 22,
1997.
On November 20, 1997, the Company's Board of Directors approved a
program under which the Company will repurchase up to $100,000,000 of
its outstanding Common Stock in the open market during the next three
years. The timing and actual number of shares purchased will depend on
a variety of factors such as price and other market conditions.
- 9 -
<PAGE> 10
PART I. FINANCIAL INFORMATION
Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
RESULTS OF OPERATIONS
OVERVIEW
The Company operates three channels of distribution: U.S. Retail includes retail
sales in Company-operated stores in the U.S., wholesale sales to independent
retailers in the U.S. and wholesale sales of fragrance products to independent
retailers in the Americas; Direct Marketing includes corporate
(business-to-business) and catalog sales in the U.S.; and International Retail
includes retail sales through Company-operated stores and boutiques, corporate
sales and wholesale sales to independent retailers and distributors in the
Asia-Pacific region, Europe, Canada, the Middle East and Latin America.
The Company's net sales rose 10% in the third quarter (three months ended
October 31, 1997) and 9% in the year-to-date (nine months ended October 31,
1997). This sales growth, combined with a higher operating margin and lower
interest expense, resulted in net earnings growth of 23% in the third quarter
and 36% in the year-to-date.
NET SALES BY CHANNEL OF DISTRIBUTION
<TABLE>
<CAPTION>
Three Months Nine Months
Ended October 31, Ended October 31,
-------------------------- --------------------------
(in thousands) 1997 1996 1997 1996
- -------------- -------- -------- -------- ---------
<S> <C> <C> <C> <C>
U.S. Retail $114,467 $ 99,715 $307,660 $272,610
Direct Marketing 24,651 22,546 62,375 63,572
International Retail 93,956 88,724 279,887 258,307
-------- -------- -------- --------
$233,074 $210,985 $649,922 $594,489
======== ======== ======== ========
</TABLE>
<TABLE>
<CAPTION>
Percentage of Net Sales
<S> <C> <C> <C> <C>
U.S. Retail 49% 47% 47% 46%
Direct Marketing 11 11 10 11
International Retail 40 42 43 43
--- --- --- ---
100% 100% 100% 100%
=== === === ===
</TABLE>
U.S. Retail sales rose 15% in the third quarter and 13% in the year-to-date.
Comparable store sales rose 11% in the third quarter and 9% in the year-to-date
due to increases in the number of transactions and the average transaction size.
Sales in the Company's flagship Fifth Avenue New York store rose 10% in the
third quarter and 7% in the year-to-date, while comparable branch store sales
rose 11% in both the third quarter and year-to-date. Spending by local-resident
customers (representing the largest portion of sales) increased, while spending
by foreign tourists declined.
- 10 -
<PAGE> 11
Strong performance in U.S. stores opened in the past year -- in Chevy Chase,
Maryland (May 1996), Bergen County, New Jersey (November 1996) and Palo Alto,
California (June 1997) -- also contributed to the U.S. Retail sales increases.
Direct Marketing sales increased 9% in the third quarter due to growth in
Corporate and Catalog division sales, but declined 2% in the year-to-date.
Corporate and Catalog sales had been adversely affected by the Company's
transition to its new Customer Service/Distribution Center in Parsippany, New
Jersey which began in early April 1997. The transition temporarily affected
order processing and shipping which led, in part, to the Company's decision to
delay catalog mailings in the second quarter. However, the Company returned to
previous production and backlog levels by the end of the second quarter.
Corporate sales rose 10% in the third quarter and 3% in the year-to-date. The
Corporate division continues to establish a sales presence in additional U.S.
markets in order to increase overall market penetration. Catalog sales rose 8%
in the third quarter but declined 10% in the year-to-date. The Company now
anticipates increasing its catalog circulation by approximately 5% to almost 22
million catalogs for Fiscal 1997.
International Retail sales rose 6% in the third quarter and 8% in the
year-to-date. In Japan, the Company's largest international market, total
local-currency retail sales rose 18% in the third quarter and 24% in the
year-to-date, due to comparable store sales growth of 14% in both periods, as
well as incremental sales from the Company's Tokyo flagship store that opened in
May 1996 and three new boutiques that opened in 1997.
The Company's reported sales and earnings results reflect either a
translation-related benefit from a strengthening Japanese yen or a detriment
from a strengthening U.S. dollar. When translated into U.S. dollars, total Japan
retail sales rose 10% in the third quarter and 13% in the year-to-date, as
yen-denominated sales growth was partially offset by the effect of a
strengthening dollar. The Company maintains a foreign currency hedging program
for merchandise purchase transactions initiated from Japan in order to reduce
the potentially negative impact on the Company's financial results of a
significant strengthening of the U.S. dollar. In the recent past, the hedging
program has achieved its objective by stabilizing product costs despite exchange
rate fluctuations.
Comparable store sales in local currencies in the Asia-Pacific region outside
Japan (representing less than 10% of total Company sales) declined 9% in the
third quarter, as a result of recent sales declines in Hong Kong and, to a
lesser extent, in other markets, largely due to reduced spending by Japanese
tourists. On a year-to-date basis, sales in that region were 5% above the prior
year. Comparable store sales in local currencies in Europe rose 13% and 22% in
the third quarter and year-to-date.
- 11 -
<PAGE> 12
GROSS MARGIN
Gross margins (gross profit as a percentage of net sales) of 54.4% and 53.8% in
1997's third quarter and year-to-date were higher than 54.2% and 52.9% in the
corresponding prior-year periods. The increases were largely due to a shift in
sales mix toward the Company's retail businesses. The Company's ongoing gross
margin and pricing strategy is to offset product-cost increases with higher
retail selling prices and, thereby, maintain gross margin at prior-year levels.
OPERATING EXPENSES
Selling, general and administrative expenses and the provision for uncollectible
accounts increased 10% in both the third quarter and year-to-date. The increases
were primarily due to incremental occupancy, staffing and marketing expenses
related to the Company's worldwide expansion program, as well as to
sales-related variable expenses and incremental expenses related to the new
customer service center. The ratio of operating expenses to net sales was 45.2%
in the third quarter and 45.0% in the year-to-date, compared with 45.3% and
44.9% in the corresponding prior-year periods. Management's ongoing objective is
to reduce the expense ratio by leveraging the Company's fixed-expense base.
EARNINGS FROM OPERATIONS
As a result of the above factors, earnings from operations rose 15% in the third
quarter and 20% in the year-to-date and also increased as a percentage of net
sales.
OTHER EXPENSES, NET
Other expenses, net declined in both the third quarter and year-to-date,
primarily due to lower net-interest expense related to lower net-debt levels
compared with the prior year. This was due to the conversion and redemption in
June 1996 of the Company's $50,000,000 principal amount 6-3/8% Convertible
Subordinated Debentures Due 2001, as well as internally-generated cash flows
that, in turn, resulted in higher interest income. On the basis of current
plans, interest rates and foreign currency exchange rates, management expects
interest expense on net-debt in the remainder of Fiscal 1997 to continue to be
below the prior year.
ACCOUNTING STANDARDS
In February 1997, the Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standards ("SFAS") No. 128, "Earnings Per
Share," ("SFAS No. 128") designed to improve the earnings per share ("EPS")
information provided in financial statements and to replace the presentation of
previously disclosed EPS with basic and diluted EPS. This standard is effective
for the Company's financial statements for the fiscal year ending January 31,
1998. Based upon the Company's current capital structure, the adoption of SFAS
No. 128 is not expected to have a material impact on the Company's reported EPS.
In February 1997, the FASB issued SFAS No. 129, "Disclosures of Information
About Capital Structure." SFAS No. 129 requires disclosure concerning issued
- 12 -
<PAGE> 13
securities of all types and applies to all issuers. In June 1997, the FASB
issued SFAS No. 130, "Reporting Comprehensive Income," and SFAS No. 131,
"Disclosure About Segments of an Enterprise and Related Information." SFAS No.
130 establishes standards for reporting and display of comprehensive income and
its components (revenues, expenses, gains and losses) in a full set of
general-purpose financial statements. SFAS No. 131 establishes accounting
standards for the reporting of information about operating segments by
public business enterprises in annual financial statements and requires those
enterprises to report selected information about operating segments in interim
financial reports to stockholders. SFAS No. 129 is effective for the Company's
financial statements for the fiscal year ending January 31, 1998. SFAS No. 130
and No. 131 are effective for the Company's financial statements for the fiscal
year ending January 31, 1999. The adoption of these new accounting standards is
not expected to have a material effect on the Company's financial statements.
FINANCIAL CONDITION
LIQUIDITY AND CAPITAL RESOURCES
The Company's liquidity needs have been, and are expected to remain, primarily a
function of its seasonal working capital requirements which have increased due
to growth in the Company's business. Management believes that the Company's
financial condition at October 31, 1997 provides sufficient resources to support
current business activities and planned expansion. Working capital (current
assets minus current liabilities) and the corresponding current ratio (current
assets divided by current liabilities) were $364,959,000 and 2.6:1 at October
31, 1997, compared with $342,511,000 and 2.5:1 at January 31, 1997.
Inventories, which represented 54% of total assets at October 31, 1997,
increased 24% from January 31, 1997 and 7% from October 31, 1996, while
inventory turnover was maintained at 1.0 times. Higher inventories were required
to support sales growth, new stores and expanded product offerings, as well as
to support expected customer demand during the fourth quarter's holiday season.
The Company's ongoing objective is to improve inventory performance through:
refinement of worldwide replenishment systems; focus on the specialized
disciplines of product development, assortment planning and inventory
management; improved presentation and management of display inventories in each
store; assortment editing by product category; and a time-phased program of
improvements in warehouse management and supply-chain logistics.
Capital expenditures were $33,988,000 in Fiscal 1997's year-to-date, compared
with $30,456,000 in 1996. The increase was due to expenditures related to a
greater number of store openings and the relocation of an existing store. Based
on current plans, the Company expects that capital expenditures will be
approximately $55,000,000 in Fiscal 1997, compared with $39,884,000 in Fiscal
1996, largely due to an increased number of new store openings and relocations,
as well as expanded manufacturing facilities and investments in new systems.
- 13 -
<PAGE> 14
The Company's net cash outflow from operating activities of $42,262,000 in
1997's year-to-date was less than the outflow of $65,499,000 in the prior year,
largely resulting from increased net earnings, lower inventory purchases and
improvements in working capital levels. Net-debt (short-term borrowings plus
long-term debt minus the sum of cash and cash equivalents and short-term
investments) and the corresponding ratio of net-debt as a percentage of total
capital (net-debt plus stockholders' equity) was $118,793,000 and 22% at October
31, 1997, compared with $51,852,000 and 12% at January 31, 1997 and $149,764,000
and 30% at October 31, 1996.
The Company's sources of working capital are internally-generated cash flows and
borrowings available under a five-year, $130,000,000 multicurrency,
noncollateralized revolving credit facility which expires on June 30, 2002.
Management anticipates that internally-generated cash flows and funds available
under the revolving credit facility will be sufficient to support the Company's
planned worldwide business expansion, as well as seasonal working capital
increases typically required during the third and fourth quarters of the year.
SEASONALITY
The Company's business is seasonal in nature, with the fourth quarter typically
representing a proportionally greater percentage of annual sales, earnings from
operations and cash flow. Management expects such seasonality to continue.
RISK FACTORS
This document contains certain "forward looking statements" concerning the
Company's objectives and expectations with respect to retail prices, gross
margin, expenses, inventory performance, capital expenditures and cash flow. In
addition, management makes other forward-looking statements from time to time
concerning objectives and expectations for new store openings, sales, earnings
and cash flow. As a retailer, the Company's success in achieving its objectives
and expectations is partially dependent upon economic conditions and consumer
attitudes. However, certain assumptions are specific to the Company and/or the
markets in which it operates. The following assumptions, among others, are "risk
factors" which could affect the likelihood that the Company will achieve the
objectives and expectations communicated by management: (i) that new stores and
other sales locations can be leased or otherwise obtained on suitable lease
terms in desired markets and that construction can be completed on a timely
basis; (ii) that existing product supply arrangements, including license
agreements with third-party designers, will continue; (iii) that the market for
high-quality cut diamonds will provide continuity of supply and pricing; (iv)
that new systems for inventory management can be successfully integrated into
the Company's operations and that warehousing and distribution productivity can
be further improved to support the Company's worldwide distribution
requirements; and (v) that the exchange relationship between the Japanese yen
and the U.S. dollar will not substantially change during Fiscal 1997.
- 14 -
<PAGE> 15
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
10.116 Credit Agreement dated as of June 26, 1995 by and
among Registrant, Tiffany, Tiffany & Co.
International, The Bank of New York, as Issuing Bank
and as Swing Line Lender, The Bank of New York, as
Arranging Agent and The Bank of New York, as
Administrative Agent, restated through Amendment No.
5 dated as of November 20, 1997.
11 Statement re Computation of Per Share Earnings.
27 Financial Data Schedule (SEC/EDGAR only).
(b) Reports on Form 8-K
None.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
TIFFANY & CO.
(Registrant)
Date: December 10, 1997 By: /s/ James N. Fernandez
-------------------------------
James N. Fernandez
Senior Vice President - Finance
and Chief Financial Officer
(principal financial officer)
- 15 -
<PAGE> 16
EXHIBIT INDEX
Exhibit
Number
10.116 Credit Agreement dated as of June 26, 1995 by and among Registrant,
Tiffany, Tiffany & Co. International, The Bank of New York, as Issuing
Bank and as Swing Line Lender, The Bank of New York, as Arranging Agent
and The Bank of New York, as Administrative Agent, restated through
Amendment No. 5 dated as of November 20, 1997.
11 Statement re Computation of Per Share Earnings
27 Financial Data Schedule (submitted to SEC only)
<PAGE> 1
Exhibit 10.116
CREDIT AGREEMENT
by and among
TIFFANY & CO.,
TIFFANY AND COMPANY,
TIFFANY & CO. INTERNATIONAL,
THE SUBSIDIARY BORROWERS PARTY HERETO,
THE LENDERS PARTY HERETO,
THE BANK OF NEW YORK,
as Issuing Bank and as Swing Line Lender,
THE BANK OF NEW YORK,
as Arranging Agent,
and
THE BANK OF NEW YORK,
as Administrative Agent
--------------------------
$130,000,000
--------------------------
Dated as of June 26, 1995
As Amended
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION .................................................................. 1
1.1 Definitions ........................................................................................... 1
1.2 Principles of Construction ............................................................................ 36
2. AMOUNT AND TERMS OF LOANS AND LETTERS OF CREDIT ............................................................. 37
2.1 Loans ................................................................................................. 37
2.2 Minimum Amount of Each Borrowing ...................................................................... 41
2.3 Notice of Borrowing ................................................................................... 42
2.4 Disbursement of Funds ................................................................................. 44
2.5 Payments. ............................................................................................. 47
2.6 Conversions ........................................................................................... 49
2.7 Pro Rata Borrowings; Special Procedures and
Assumptions ........................................................................................... 50
2.8 Interest .............................................................................................. 52
2.9 Termination or Reduction of Aggregate Commitments,
Swing Line Commitment, Individual Currency
Commitments and Letter of Credit Commitment ........................................................... 55
2.10 Prepayments of the Loans ............................................................................. 57
2.11 Bid Loans; Procedure ................................................................................. 58
2.12 Negotiated Rate Loans; Procedure ..................................................................... 61
2.13 Taxes ................................................................................................ 62
2.14 Increased Costs, Illegality, etc. .................................................................... 66
2.15 Compensation ......................................................................................... 71
2.16 Change of Applicable Lending Office and Applicable
Payment Office ....................................................................................... 71
2.17 Survival of Certain Obligations ...................................................................... 72
2.18 Use of Proceeds ...................................................................................... 72
2.19 Letter of Credit Sub-Facility ........................................................................ 72
2.20 Letter of Credit Participation and Funding
Commitments .......................................................................................... 74
2.21 Absolute Obligation with respect to Letter of
Credit Payments ...................................................................................... 76
2.22 Increased Costs Based on Letters of Credit ........................................................... 76
2.23 Borrower Addenda ..................................................................................... 77
2.24 Records .............................................................................................. 78
2.25 Replacement of Lender ................................................................................ 79
3. FEES ........................................................................................................ 80
3.1 Facility Fee .......................................................................................... 80
3.2 Letter of Credit Commissions .......................................................................... 81
3.3 Administrative Agent's and Issuing Bank's Fees ........................................................ 81
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
4. REPRESENTATIONS AND WARRANTIES .............................................................................. 82
4.1 Subsidiaries; Capital Stock ........................................................................... 82
4.2 Existence and Power ................................................................................... 82
4.3 Authority ............................................................................................. 83
4.4 Binding Agreement ..................................................................................... 83
4.5 Litigation ............................................................................................ 83
4.6 No Conflicting Agreements ............................................................................. 84
4.7 Taxes ................................................................................................. 84
4.8 Compliance with Applicable Laws; Filings .............................................................. 85
4.9 Governmental Regulations .............................................................................. 85
4.10 Property ............................................................................................. 85
4.11 Federal Reserve Regulations; Use of Loan Proceeds .................................................... 86
4.12 No Misrepresentation ................................................................................. 86
4.13 Plans ................................................................................................ 86
4.14 Environmental Matters ................................................................................ 87
4.15 Financial Statements ................................................................................. 88
4.16 Franchises, Intellectual Property, Etc. .............................................................. 89
4.17 Labor Relations ...................................................................................... 89
5. CONDITIONS OF LENDING - LOANS ON THE FIRST BORROWING DATE ................................................... 89
5.1 Evidence of Corporate Action .......................................................................... 89
5.2 Guaranty .............................................................................................. 90
5.3 Approvals ............................................................................................. 90
5.4 Litigation ............................................................................................ 90
5.5 Approval of Special Counsel ........................................................................... 91
5.6 Opinion of Counsel to the Borrowers and the Parent .................................................... 91
5.7 Existing Indebtedness ................................................................................. 91
5.8 Payment of Fees ....................................................................................... 91
5.9 Other Documents ....................................................................................... 91
6. CONDITIONS OF LENDING - ALL LOANS AND LETTERS OF CREDIT ..................................................... 92
6.1 Compliance ............................................................................................ 92
6.2 Loan Closings ......................................................................................... 92
6.3 Borrowing or Letter of Credit Request ................................................................. 92
6.4 Other Documents ....................................................................................... 92
7. AFFIRMATIVE AND FINANCIAL COVENANTS ......................................................................... 92
7.1 Legal Existence ....................................................................................... 93
7.2 Taxes ................................................................................................. 93
7.3 Insurance ............................................................................................. 93
7.4 Performance of Obligations ............................................................................ 94
7.5 Condition of Property ................................................................................. 94
7.6 Observance of Legal Requirements ...................................................................... 94
7.7 Financial Statements and Other Information ............................................................ 95
7.8 Inspection ............................................................................................ 99
7.9 Authorizations ........................................................................................ 99
</TABLE>
- ii -
<PAGE> 4
<TABLE>
<S> <C>
7.10 Subsidiaries ........................................................................................ 100
7.11 Leverage Ratio ...................................................................................... 100
7.12 Interest Coverage Ratio ............................................................................. 100
8. NEGATIVE COVENANTS ......................................................................................... 100
8.1 Indebtedness ......................................................................................... 100
8.2 Interest Rate Protection Arrangements and Other
Hedging Arrangements ................................................................................. 101
8.3 Liens ................................................................................................ 102
8.4 Dispositions ......................................................................................... 103
8.5 Merger or Consolidation, Etc. ........................................................................ 103
8.6 Acquisitions ......................................................................................... 104
8.7 Investments .......................................................................................... 104
8.8 Restricted Payments .................................................................................. 105
8.9 Limitation on Upstream Dividends by Subsidiaries ..................................................... 105
8.10 Transactions with Affiliates ........................................................................ 105
9. DEFAULT .................................................................................................... 105
9.1 Events of Default .................................................................................... 105
10. THE ADMINISTRATIVE AGENT .................................................................................. 110
10.1 Appointment ......................................................................................... 110
10.2 Delegation of Duties ................................................................................ 110
10.3 Exculpatory Provisions .............................................................................. 110
10.4 Reliance by Administrative Agent .................................................................... 111
10.5 Notice of Default ................................................................................... 112
10.6 Non-Reliance ........................................................................................ 112
10.7 Indemnification ..................................................................................... 113
10.8 Administrative Agent in Its Individual Capacity ..................................................... 114
10.9 Successor Administrative Agent ...................................................................... 114
11. OTHER PROVISIONS .......................................................................................... 115
11.1 Amendments and Waivers .............................................................................. 115
11.2 Notices ............................................................................................. 118
11.3 No Waiver; Cumulative Remedies ...................................................................... 118
11.4 Survival of Representations and Warranties .......................................................... 119
11.5 Payment of Expenses and Taxes ....................................................................... 119
11.6 Determination of Dollar Equivalent .................................................................. 120
11.7 Assignments and Participations ...................................................................... 120
11.8 Counterparts ........................................................................................ 122
11.9 Adjustments; Set-off ................................................................................ 123
11.10 Indemnity .......................................................................................... 124
11.11 GOVERNING LAW ...................................................................................... 125
11.12 Severability ....................................................................................... 125
11.13 Integration ........................................................................................ 125
11.14 Judgment Currency .................................................................................. 126
</TABLE>
- iii -
<PAGE> 5
<TABLE>
<S> <C>
11.15 Confidentiality .................................................................................... 126
11.16 CONSENT TO JURISDICTION ............................................................................ 127
11.17 Service of Process ................................................................................. 127
11.18 No Limitation on Service or Suit ................................................................... 127
11.19 WAIVER OF TRIAL BY JURY ............................................................................ 128
11.20 International Banking Facilities ................................................................... 128
</TABLE>
- iv -
<PAGE> 6
EXHIBITS
Exhibit A-1 List of Commitments
Exhibit A-2 List of Individual Currency Commitments
<PAGE> 7
Credit Agreement, dated as of June 26, 1995, as amended by and among
Tiffany & Co., a Delaware corporation (the "Parent"), Tiffany and Company, a New
York corporation ("Tiffany"), Tiffany & Co. International, a Delaware
corporation ("Tiffany International"), each Subsidiary Borrower which is a
signatory hereto or becomes a party hereto pursuant to the provisions of Section
2.23, the Lenders party hereto, The Bank of New York ("BNY"), as Issuing Bank
and as Swing Line Lender, BNY, as Arranging Agent (in such capacity, the
"Arranging Agent") and BNY, as Administrative Agent (in such capacity, the
"Administrative Agent").
1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION
1.1 Definitions
When used herein, each of the following terms shall have the
meaning ascribed thereto unless the context hereof otherwise specifically
requires:
"ABR Advances": the Loans (or any portions thereof) at such
time as they (or such portions) are made and/or being maintained at a rate of
interest based upon the Alternate Base Rate; each an "ABR Advance".
"Accountants": Coopers & Lybrand, or such other firm of
independent certified public accountants of recognized national standing as
shall be selected by the Parent and reasonably satisfactory to the
Administrative Agent.
"Accumulated Funding Deficiency": as defined in Section 302 of
ERISA.
"Acquisition": with respect to any Person, the purchase or
other acquisition by such Person, by any means whatsoever (including by devise,
bequest, gift, through a dividend or otherwise), of (a) Stock of, or other
equity securities of, any other Person if, immediately thereafter, such other
Person would be either a consolidated subsidiary of such Person or otherwise
under the control of such Person, (b) any business, going concern or division or
segment thereof, or (c) the Property of any other Person other than in the
ordinary course of business, provided, however, that no acquisition of
substantially all of the assets, or any division or segment, of such other
Person shall be deemed to be in the ordinary course of business.
"Advance": an ABR Advance, a Eurodollar Advance, a Core
Currency Euro Advance or a Swing Line Negotiated Rate Advance, as the case may
be.
<PAGE> 8
"Adverse Tax Position": as defined in Section 2.13(g).
"Affiliate": with respect to any Person at any time and from
time to time, any other Person (other than a consolidated subsidiary of such
Person) which, at such time (a) controls such Person, or (b) is under common
control with such Person. The term "control", as used in this definition with
respect to any Person, means the power, whether direct, or indirect through one
or more intermediaries, to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities or
other interests, by contract or otherwise.
"Aggregate Commitments": on any date, the sum of all
Commitments on such date.
"Aggregate Credit Exposure": as of any date of determination,
the sum of (i) the outstanding principal amount (determined on the basis of the
Dollar Equivalent for each outstanding Alternate Currency Loan) of the Loans of
all Lenders plus (ii) an amount equal to the Letter of Credit Exposure.
"Agreement": this Credit Agreement, as the same may be
amended, supplemented or otherwise modified from time to time.
"Alternate Base Rate": on any date, a rate of interest per
annum equal to the higher of (i) the Federal Funds Rate in effect on such date
plus 1/2 of 1% or (ii) the BNY Rate in effect on such date.
"Alternate Currency": any Core Currency (other than Dollars)
or Non-Core Currency.
"Alternate Currency Bid Loan": each Bid Loan denominated in an
Alternate Currency.
"Alternate Currency Equivalent": with respect to any Alternate
Currency, on any date of determination thereof, the amount of such Alternate
Currency which could be purchased with the amount of Dollars involved in such
computation at the spot rate at which such Alternate Currency may be exchanged
into Dollars as set forth on such date on (i) Reuters pages MGTY, MGTX, SCNY or
BNMX or (ii) Dow Jones Telerate pages 262, 264, 265, 266 or 9993 (or any
successor pages) or, if such rate does not appear on such pages, at the spot
exchange rate therefor as determined by the Administrative Agent as of 11:00
A.M. (London time) on such date of determination thereof for delivery (x) in the
case of an exchange of Canadian Dollars into Dollars, one Business Day later and
(y) in all other
- 2 -
<PAGE> 9
cases, two Business Days later. In the event that, on any date of determination,
a spot rate for an individual Alternate Currency appears on both a page of
Reuters set forth above and a page of Dow Jones Telerate set forth above, the
Alternate Currency Equivalent of such Alternate Currency shall be the arithmetic
mean of such spot rates.
"Alternate Currency Loan": any Alternate Currency Revolving
Loan, Alternate Currency Bid Loan, Alternate Currency Negotiated Rate Loan,
Alternate Currency Swing Line Loan or Individual Currency Loan.
"Alternate Currency Negotiated Rate Loan": each Negotiated
Rate Loan denominated in an Alternate Currency.
"Alternate Currency Revolving Loan": each Revolving Loan
denominated in a Core Currency (other than Dollars).
"Alternate Currency Swing Line Loan": each Swing Line Loan
denominated in a Core Currency (other than Dollars).
"Applicable": with respect to Regulation D being applicable to
any determination of a Core Currency Euro Rate or an Individual Currency Rate,
that Regulation D reserves would be applicable to the Core Currency Euro Advance
or the Individual Currency Loan, as the case may be, as to which such interest
rate would apply (including by giving effect to the assumption that the
applicable Lender had funded such Core Currency Euro Advance or such Individual
Currency Loan, as the case may be, through the purchase of a Core Currency or a
Non-Core Currency, as the case may be, deposit by a subsidiary or affiliate of
such Lender in the London interbank market and the transfer thereof to such
Lender from such subsidiary or affiliate).
"Applicable Currency":
(a) With respect to any Revolving Loan or Swing Line Loan for
any applicable Borrower, Dollars and each Available Alternate Currency which is
a Core Currency as follows:
(i) in the case of Dollars: a Domestic Borrower,
(ii) in the case of French Francs: the French
Borrower,
(iii) in the case of German Marks: the German
Borrower,
- 3 -
<PAGE> 10
(iv) in the case of Japanese Yen: the Japanese
Borrower, and
(v) in the case of Sterling Pounds: the Sterling
Borrower.
(b) With respect to any Bid Loan, the Currency specified by
the applicable Borrower in its Bid Request for such Bid Loan.
(c) With respect to any Negotiated Rate Loan, the Currency
specified in the Negotiated Rate Confirmation for such Negotiated Rate Loan.
(d) With respect to any Individual Currency Loan for any
applicable Borrower, each Available Alternate Currency which is a Non-Core
Currency as follows:
(i) in the case of Australian Dollars: the Australian
Borrower,
(ii) in the case of Canadian Dollars: the Canadian
Borrower,
(iii) in the case of Hong Kong Dollars, the Hong Kong
Borrower,
(iv) in the case of Italian Lira: the Italian
Borrower,
(v) in the case of Korean Won: the Korean Borrower,
(vi) in the case of Malaysian Ringgit: the Malaysian
Borrower,
(vii) in the case of Mexican Pesos: the Mexican
Borrower,
(viii) in the case of Philippine Pesos: the
Philippine Borrower,
(ix) in the case of Singaporean Dollars: the
Singaporean Borrower,
(x) in the case of Swiss Francs: the Swiss Borrower,
(xi) in the case of New Taiwan Dollars: the Taiwanese
Borrower, and
- 4 -
<PAGE> 11
(xii) in the case of Thai Baht: the Thai Borrower.
"Applicable Lending Office": (i) as to any Lender, with
respect to Revolving Loans in any Core Currency, initially, the office, branch
or affiliate of such Lender designated as such Lender's lending office for
Revolving Loans in such Core Currency on Exhibit R, and thereafter, such other
office, branch or affiliate of such Lender through which it shall be making or
maintaining Revolving Loans in such Core Currency, as reported by such Lender to
the Administrative Agent and the Parent, (ii) as to the Swing Line Lender, with
respect to Swing Line Loans in any Core Currency, initially, the office, branch
or affiliate of such Lender designated as the Swing Line Lender's lending office
for such Swing Line Loans in such Core Currency on Exhibit R, and thereafter,
such other office, branch or affiliate of the Swing Line Lender through which it
shall be making or maintaining Swing Line Loans in such Core Currency, as
reported by the Swing Line Lender to the Administrative Agent and the Parent,
(iii) as to any Lender, with respect to any Bid Loan, the lending office, branch
or affiliate of such Lender designated as such Lender's lending office for such
Bid Loan in its Bid for such Bid Loan, (iv) as to any Lender, with respect to
Individual Currency Loans in any Non-Core Currency, initially, the office,
branch or affiliate of such Lender designated as such Lender's lending office
for such Individual Currency Loans in such Non-Core Currency on Exhibit R, and
thereafter, such other office, branch or affiliate of such Lender through which
it shall be making or maintaining Individual Currency Loans in such Non-Core
Currency, as reported by such Lender to the Administrative Agent and the Parent,
and (v) as to any Lender, with respect to any Negotiated Rate Loan, the lending
office, branch or affiliate of such Lender designated as such Lender's lending
office for such Negotiated Loan in the Negotiated Rate Confirmation for such
Negotiated Rate Loan.
"Applicable Margin": (i) with respect to the unpaid principal
amount of ABR Advances, the applicable percentage set forth below in the column
entitled "Applicable Margin for ABR Advances" and (ii) with respect to the
unpaid principal amount of Eurodollar Advances, Core Currency Euro Advances and
Individual Currency Loans, the applicable percentage set forth below in the
column entitled "Applicable Margin for Eurodollar/Core Currency Euro
Advances/Individual Currency Loans":
- 5 -
<PAGE> 12
<TABLE>
<CAPTION>
Applicable Margin
for Eurodollar
Applicable Advances/Core Currency
Margin for Euro Advances/Individual
Pricing Level ABR Advances Currency Loans
- ------------- ------------ ------------------------
<S> <C> <C>
Pricing Level I 0% 0.1550%
Pricing Level II 0% 0.1700%
Pricing Level III 0% 0.2100%
Pricing Level IV 0% 0.2250%
Pricing Level V 0% 0.3000%
Pricing Level VI 0% 0.3500%
</TABLE>
"Applicable Payment Office": in the case of:
(i) the Administrative Agent, (x) in respect of all Loans
(other than Alternate Currency Loans), Letters of
Credit designated in Dollars, fees and other amounts
owing under this Agreement, the office of the
Administrative Agent listed in Exhibit Q as its
"Domestic Payment Office", and (y) in respect of
Alternate Currency Loans and Letters of Credit
designated in Alternate Currencies, the office of the
Administrative Agent listed in Exhibit Q as its
payment office for the applicable Alternate Currency,
or such other office or offices as the Administrative
Agent may from time to time hereafter designate in
writing as such to the Parent, each Lender and each
Borrower;
(ii) the Swing Line Lender, in respect of each Swing Line
Loan, the office of the Swing Line Lender listed in
Exhibit R as the payment office for the applicable
Core Currency in which such Swing Line Loan is made
or such other office or offices as the Swing Line
Lender may from time to time hereafter designate in
writing as such to the Administrative Agent, the
Parent and each Swing Line Borrower;
(iii) any other Lender, (w) in respect of each Revolving
Loan, the office of such Lender listed in Exhibit R
as its payment office for the applicable Core
Currency or such other office or offices as such
Lender may from time to time hereafter designate in
writing as such to the Administrative Agent, the
Parent and each Borrower, (x) in respect of each
Individual Currency Loan, the office of such Lender
listed in
- 6 -
<PAGE> 13
Exhibit R as its payment office for the applicable
Non-Core Currency or such other office or offices as
such Lender may from time to time hereafter designate
in writing as such to the Administrative Agent, the
Parent and each Borrower, (y) in respect of each Bid
Loan, the office of such Lender listed in such
Lender's Bid for such Bid Loan, and (z) in respect of
each Negotiated Rate Loan, the office of such Lender
listed in the Negotiated Rate Confirmation for such
Negotiated Rate Loan; and
(iv) the Issuing Bank, in respect of each Letter of
Credit, the office of the Issuing Bank listed in
Exhibit R as the payment office for the applicable
Currency in which such Letter of Credit is issued or
such other office or offices as the Issuing Bank may
from time to time hereafter designate in writing as
such to the Administrative Agent and the Parent.
"Assignment and Acceptance Agreement": an assignment and
acceptance agreement executed by an assignor and an assignee pursuant to which
the assignor assigns to the assignee all or any portion of such assignor's
Loans, Commitment, Individual Currency Commitments and other rights and
obligations under the Loan Documents, substantially in the form of Exhibit D.
"Assignment Fee": as defined in Section 11.7(b).
"Australian Borrower": one or more of the following: Tiffany,
Tiffany International or a wholly-owned Subsidiary of the Parent which is
organized under the laws of, and has its principal office in, Australia and
which shall become a Borrower pursuant to Section 2.23 hereof.
"Australian Dollars": freely transferable lawful money of
Australia.
"Availability Percentage": with respect to any Lender at any
time, a percentage equal to a fraction (x) the numerator of which is
(A) the Commitment of such Lender, minus
(B) the sum of (I) the aggregate principal amount of all
Revolving Loans then outstanding from such Lender (determined on the
basis of the Dollar Equivalent for each outstanding Alternate Currency
Revolving Loan), plus (II) the aggregate principal amount of all
Individual
- 7 -
<PAGE> 14
Currency Loans then outstanding from such Lender (determined on the
basis of the Dollar Equivalent of each such Individual Currency Loan),
plus (III) the SL/LC Credit Exposure of such Lender, and
(y) the denominator of which is
(A) the Aggregate Commitments, minus
(B) the sum of (I) the outstanding principal balance of all
Revolving Loans (determined on the basis of the Dollar Equivalent for
each outstanding Alternate Currency Revolving Loan), plus (II) the
outstanding principal balance of all Individual Currency Loans
(determined on the basis of the Dollar Equivalent of each such
Individual Currency Loan), plus (III) the outstanding principal balance
of all Swing Line Loans, plus (IV) the Letter of Credit Exposure.
"Available Alternate Currency": each Alternate Currency except
to the extent that the Administrative Agent has given notice to the Parent
pursuant to Section 2.14(a) (which notice has not been rescinded by the
Administrative Agent) that one or more Alternate Currencies are no longer
available as determined by it in its sole discretion.
"Benefited Lender": as defined in Section 11.9.
"Bid": an offer by a Lender to a Borrower, in the form of
Exhibit H, to make a Bid Loan.
"Bid Accept/Reject Letter": a notification made by the
applicable Borrower pursuant to Section 2.11 in the form of Exhibit I.
"Bid Interest Period": as to any Bid Loan, the period
commencing on the date of such Bid Loan, and ending on the date requested in the
Bid Request with respect to such Bid Loan, which shall not be earlier than 7
days after the date of such Bid Loan or later than 180 days after the date of
such Bid Loan; provided, however, that (i) if any Bid Interest Period would end
on a day other than a Business Day, such Interest Period shall be extended to
the next succeeding Business Day, unless such next succeeding Business Day would
be a date on or after the Maturity Date in which case such Interest Period shall
end on the next preceding Business Day and (ii) no Borrower shall select a Bid
Interest Period which shall end after the Maturity Date.
"Bid Loan": each loan from a Lender to a Borrower pursuant to
Section 2.11.
- 8 -
<PAGE> 15
"Bid Loan Confirmation": a confirmation by the Administrative
Agent to a Lender of the acceptance by the applicable Borrower of any Bid (or
Portion thereof) made by such Lender, substantially in the form of Exhibit J.
"Bid Rate": as defined in Section 2.11(b).
"Bid Request": a request by a Borrower, in the form of Exhibit
F, for Bids.
"Bid Submission Deadline": as defined in Section 2.11(b).
"BNY Rate": a rate of interest per annum equal to the rate of
interest publicly announced in New York City by BNY from time to time as its
prime commercial lending rate, such rate to be adjusted automatically (without
notice) on the effective date of any change in such publicly announced rate.
"Borrower Addendum": an Addendum to this Agreement in the form
of Exhibit B pursuant to which a Subsidiary of the Parent may become a
Subsidiary Borrower pursuant to the provisions of Section 2.23.
"Borrowers": collectively, Tiffany, Tiffany International and
the Subsidiary Borrowers; each a "Borrower".
"Borrowing Date": (i) in respect of Revolving Loans, any
Business Day on which the Lenders shall make Revolving Loans to a Borrower
pursuant to a Notice of Borrowing or pursuant to a Mandatory Borrowing, (ii) in
respect of Bid Loans, any Business Day on which a Lender shall make a Bid Loan
to a Borrower pursuant to a Bid Request, (iii) in respect of Swing Line Loans,
any Business Day on which the Swing Line Lender shall make a Swing Line Loan to
a Swing Line Borrower pursuant to a Notice of Borrowing, (iv) in respect of
Negotiated Rate Loans, any Business Day on which a Lender shall make a
Negotiated Rate Loan to a Borrower pursuant to a Negotiated Rate Confirmation,
(v) in respect of Individual Currency Loans, any Business Day on which a Lender
shall make an Individual Currency Loan to a Borrower pursuant to a Notice of
Borrowing, and (vi) in respect of Letters of Credit, any Business Day on which
the Issuing Bank issues a Letter of Credit to a Letter of Credit Applicant
pursuant to a Letter of Credit Request.
"Borrowing/Issuance Period": as defined in Section 2.7(b)(ii).
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<PAGE> 16
"Business Day":
(i) for all purposes (other than as covered by clauses (ii)
and (iii) below), any day except Saturday, Sunday or a day which in New York
City is a legal holiday or a day on which banking institutions are authorized or
required by law or other government action to close,
(ii) with respect to all notices and determinations in
connection with, and payments of principal and interest on, a Eurodollar
Advance, a Core Currency Euro Advance or an Alternate Currency Swing Line Loan,
any day which is a Business Day described in clause (i) above, is a day for
trading by and between banks in the London interbank market and which is not a
legal holiday or a day on which banking institutions are authorized or required
by law or other government action to close in the country in which the principal
office of the applicable Borrower is located, and
(iii) with respect to all notices and determinations in
connection with, and payments of principal and interest on, an Alternate
Currency Bid Loan, an Alternate Currency Negotiated Rate Loan, an Individual
Currency Loan or a Letter of Credit designated in an Alternate Currency, any day
which is a Business Day described in clause (i) above, is a day for trading by
and between banks in the London interbank market and which is not a legal
holiday or a day on which banking institutions are authorized or required by law
or other government action to close in the country in which (x) the principal
office of the applicable Borrower is located and (y) the Applicable Lending
Office and Applicable Payment Office of the applicable Lender is located.
"Canadian Borrower": one or more of the following: Tiffany,
Tiffany International or a wholly-owned Subsidiary of the Parent which is
organized under the laws of, and has its principal office in, Canada and which
shall become a Borrower pursuant to Section 2.23 hereof.
"Canadian Dollars": freely transferable lawful money of
Canada.
"Change of Control": (i) any "Person" or "group" (as such
terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended from time to time, or any successor thereto, and the rules and
regulations issued thereunder, as from time to time in effect) is or shall
become the "beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5
thereunder), directly or indirectly, of more than 50%, on a fully diluted basis,
of the voting and economic interests of the Parent, or (ii) the Board of
Directors of the Parent shall cease to consist of a majority of Continuing
Directors.
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<PAGE> 17
"Code": the Internal Revenue Code of 1986, as the same may be
amended from time to time, or any successor thereto, and the rules and
regulations issued thereunder, as from time to time in effect.
"Commitment": with respect to each Lender, the amount set
forth opposite such Lender's name in Exhibit A-1 directly below the column
entitled "Commitment", as the same may be (x) reduced from time to time pursuant
to Section 2.9 or (y) adjusted from time to time as a result of assignments to
or from such Lender pursuant to Section 11.7 or increases pursuant to Section
11.1.
"Commitment Percentage": as to any Lender, the percentage set
forth opposite the name of such Lender in Exhibit A-1 under the heading
"Commitment Percentage", as such percentage may be (x) reduced from time to time
pursuant to Section 2.9 or (y) adjusted from time to time as a result of
assignments to or from such Lender of its Commitment pursuant to Section 11.7 or
increases in the Aggregate Commitments pursuant to Section 11.1.
"Commitment Period": the period from the Effective Date until
the Expiration Date.
"Compliance Certificate": a certificate in the form of Exhibit
M.
"Consolidated": the Parent and its Subsidiaries on a
consolidated basis in accordance with GAAP.
"Consolidated Capitalization": as of any date, total
stockholder's equity of the Parent and its Subsidiaries on a Consolidated basis
on such date (without giving effect to foreign currency translation adjustments,
except to the extent such adjustments are in excess of $10,000,000 (whether
positive or negative)) plus Total Debt on such date.
"Contingent Obligation": as to any Person (the "secondary
obligor"), any obligation of such secondary obligor (a) guaranteeing or in
effect guaranteeing any return on any Investment made by another Person, or (b)
guaranteeing or in effect guaranteeing any Indebtedness, lease, dividend or
other obligation ("primary obligations") of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including any
obligation of such secondary obligor, whether contingent, (i) to purchase any
such primary obligation or any Property constituting direct or indirect security
therefor, (ii) to advance or supply funds (A) for the purchase or payment of any
such primary obligation or (B) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency of the
primary
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<PAGE> 18
obligor, (iii) to purchase Property, securities or services primarily for the
purpose of assuring the beneficiary of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation, (iv)
otherwise to assure or hold harmless the beneficiary of such primary obligation
against loss in respect thereof, and (v) in respect of the Indebtedness of any
partnership in which such secondary obligor is a general partner, except to the
extent that such Indebtedness of such partnership is nonrecourse to such
secondary obligor and its separate Property; provided, however, that the term
"Contingent Obligation" shall not include (i) the indorsement of instruments for
deposit or collection in the ordinary course of business and (ii) guaranties by
the Parent or any Subsidiary of the Parent of the primary obligations of any
other Subsidiary of the Parent incurred in the ordinary course of business of
such other Subsidiary; and provided, further, that the amount of any such
Contingent Obligation shall be deemed to be the lower of (a) an amount equal to
the stated or determinable amount of such primary obligation and (b) the maximum
amount for which such secondary obligor may be liable pursuant to the terms of
the agreement embodying such Contingent Obligation unless such primary
obligation and the maximum amount for which such secondary obligor may be liable
are not stated or determinable, in which case the amount of such Contingent
Obligation shall be such secondary obligor's maximum reasonably anticipated
liability in respect thereof as determined by such secondary obligor in good
faith.
"Continuing Directors": the directors of the Parent on the
Effective Date and each other director, if such director's nomination for
election to the Board of Directors of the Parent is recommended by a majority of
the then Continuing Directors.
"Conversion Date": the date on which (i) a Eurodollar Advance
is converted to an ABR Advance, (ii) the date on which an ABR Advance is
converted to a Eurodollar Advance, (iii) the date on which a Eurodollar Advance
is converted to a new Eurodollar Advance and (iv) the date on which a Core
Currency Euro Advance is converted to a new Core Currency Euro Advance.
"Core Currencies": Dollars, French Francs, German Marks,
Japanese Yen and Sterling Pounds (each, a "Core Currency"), and such other
currencies as shall be requested by the Parent to be a Core Currency hereunder
subject to the approval of all of the Lenders in their sole and absolute
discretion.
"Core Currency Borrowers": with respect to Revolving Loans,
the Domestic Borrowers, the German Borrower,
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<PAGE> 19
the French Borrower, the Japanese Borrower and the Sterling Borrower; each a
"Core Currency Borrower".
"Core Currency Euro Advances": collectively, the Revolving
Loans (or any portions thereof) at such time as they (or such portions) are
maintained and/or being maintained in a Core Currency (other than Dollars) at a
rate of interest based upon a Core Currency Euro Rate; each a "Core Currency
Euro Advance".
"Core Currency Euro Rate": with respect to each day during
each Interest Period applicable to any Core Currency Euro Advance, a rate of
interest per annum determined by dividing (and then rounding to the nearest 1/16
of 1% or, if there is no nearest 1/16 of 1%, then to the next higher 1/16 of
1%):
(a) (i) the rate per annum that appears on page
3740 or 3750 of the Dow Jones Telerate Screen (or any successor page) for
deposits of the applicable Core Currency with a maturity comparable to such
Interest Period, determined as of 11:00 A.M. (London time) (x) on the date which
is two Business Days prior to the commencement of such Interest Period, in the
case of a Core Currency (other than Sterling Pounds) and (y) on the date of the
commencement of such Interest Period, in the case of Sterling Pounds or, if such
rate does not appear on page 3740 or 3750 of the Dow Jones Telerate Screen (or
any successor page) or (ii) the rate per annum equal to the offered quotation
notified to the Administrative Agent by the Reference Lender as the offered
quotation by first class banks in the London interbank market to the Reference
Lender for such Core Currency deposits of amounts in immediately available funds
comparable to the principal amount of such Core Currency Euro Advance of the
Reference Lender with a maturity comparable to such Interest Period determined
as of 11:00 A.M. (London time) (x) on the date which is two Business Days prior
to the commencement of such Interest Period, in the case of a Core Currency
(other than Sterling Pounds) and (y) on the date of the commencement of such
Interest Period, in the case of Sterling Pounds, by
(b) a number equal to 1.00 minus the aggregate of the
stated maximum rates in effect on such day (without duplication) of all reserve
requirements (including marginal, emergency, supplemental and special reserves)
and similar charges, expressed as a decimal, established by any Governmental
Authority, including those established by the Board of Governors of the Federal
Reserve System and any other banking authority to which BNY and other major
United States money center banks are subject in respect of eurocurrency funding
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<PAGE> 20
(currently referred to as "Eurocurrency liabilities" in Regulation D of the
Board of Governors of the Federal Reserve System) maintained by a member of the
Federal Reserve System with deposits exceeding $1 billion in respect of
eurodollar currency funding liabilities, to the extent Applicable; provided, in
the event that the Administrative Agent has made any determination pursuant to
Section 2.14(a)(i) in respect of such Core Currency Euro Advance, the Core
Currency Euro Rate determined pursuant to clause (a) of this definition shall
instead be the rate reported to the Administrative Agent by the Reference Lender
as the rate based on the all-in cost of funds of the Reference Lender to fund
such Core Currency Euro Advance with a maturity comparable to such Interest
Period.
"Credit Exposure": with respect to any Lender at any time, the
sum of (i) the outstanding principal balance of all Loans (other than Swing Line
Loans) then outstanding from such Lender (determined on the basis of the Dollar
Equivalent for each outstanding Alternate Currency Loan), plus (ii) the SL/LC
Credit Exposure of such Lender at such time.
"Credit Party": with respect to any Loan Document, any Person
(other than the Administrative Agent, the Issuing Bank, the Swing Line Lender or
any Lender) which, in accordance with the terms of such Loan Document, is or is
to be a party thereto.
"Currency": any Core Currency or Non-Core Currency.
"Default": any of the events specified in Section 9.1, whether
or not any requirement for the giving of notice, the lapse of time, or any other
condition, has been satisfied.
"Disposition": with respect to any Person, any sale,
assignment, transfer or other disposition by such Person, by any means, of
(a) the Stock of, or other equity interests of, any other Person,
(b) any business, operating entity, division or segment thereof,
or
(c) any other Property of such Person, other than sales of
inventory (other than in connection with bulk transfers).
"Dollar Bid Loan": a Bid Loan denominated in Dollars.
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<PAGE> 21
"Dollar Equivalent": on any date of determination thereof, the
amount of Dollars which could be purchased with the amount of the relevant
Alternate Currency involved in such computation at the spot rate at which
Dollars may be exchanged into such Alternate Currency as set forth on such date
on (i) Reuters pages MGTY, MGTX, SCNY or BNMX or (ii) Dow Jones Telerate pages
262, 264, 265, 266 or 9993 (or any successor pages) or, if such rate does not
appear on such pages, at the spot exchange rate therefor as determined by the
Administrative Agent as of 11:00 A.M. (London time) on such date of
determination thereof for delivery (x) in the case of an exchange of Dollars
into Canadian Dollars, one Business Day later and (y) in all other cases, two
Business Days later. In the event that, on any date of determination, a spot
rate for an individual Alternate Currency appears on both a page of Reuters set
forth above and a page of Dow Jones Telerate set forth above, the Dollar
Equivalent of such Alternate Currency shall be the arithmetic mean of such spot
rates.
"Dollar Loan": each Dollar Revolving Loan, Dollar Bid Loan,
Dollar Negotiated Rate Loan and Dollar Swing Line Loan.
"Dollar Negotiated Rate Loan": a Negotiated Rate Loan
denominated in Dollars.
"Dollar Reimbursement Amount": as defined in Section 2.19(d).
"Dollar Revolving Loan" and "Dollar Revolving Loans": as
defined in Section 2.1(b).
"Dollar Swing Line Loan" and "Dollar Swing Line Loans": as
defined in Section 2.1(c).
"Dollars": and "$": freely transferable lawful money of the
United States.
"Domestic Borrowers": Tiffany, Tiffany International and each
other Borrower which is a corporation organized under the laws of the United
States or any State thereof and which has its principal place of business in the
United States; each a "Domestic Borrower".
"EBIT": for any period, the net income of the Parent and its
Subsidiaries on a Consolidated basis for such period plus each of the following
with respect to the Parent and its Subsidiaries on a Consolidated basis to the
extent utilized in determining such net income: (a) Interest Expense and (b)
provision for taxes.
"Effective Date": June 30, 1995.
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<PAGE> 22
"Employee Benefit Plan": an employee benefit plan within the
meaning of Section 3(3) of ERISA maintained, sponsored or contributed to by the
Parent, any of its Subsidiaries or any ERISA Affiliate.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time, or any successor thereto, and the rules and
regulations issued thereunder, as from time to time in effect.
"ERISA Affiliate": when used with respect to an Employee
Benefit Plan, ERISA, the PBGC or a provision of the Code pertaining to employee
benefit plans, any Person that is a member of any group of organizations within
the meaning of Sections 414(b) or (c) of the Code or, solely with respect to
applicable provisions of the Code, Sections 414(m) or (o) of the Code, of which
the Parent or any of its Subsidiaries is a member.
"Euro Interest Period": with respect to any Eurodollar Advance
or Core Currency Euro Advance requested by any Borrower, the period commencing
on, as the case may be, the Borrowing Date or Conversion Date with respect to
such Advance and ending one, two, three or six months thereafter, as selected by
such Borrower in its irrevocable Notice of Borrowing or its irrevocable Notice
of Conversion, provided, however, that (i) if any Euro Interest Period would
otherwise end on a day which is not a Business Day, such Euro Interest Period
shall be extended to the next succeeding Business Day unless the result of such
extension would be to carry such Euro Interest Period into another calendar
month, in which event such Euro Interest Period shall end on the immediately
preceding Business Day, (ii) any Euro Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Euro Interest Period)
shall end on the last Business Day of a calendar month, and (iii) no Borrower
shall select a Euro Interest Period which shall end after the Maturity Date.
"Eurodollar Advances": collectively, the Revolving Loans (or
any portions thereof) at such time as they (or such portions) are made and/or
being maintained at a rate of interest based upon a Eurodollar Rate; each a
"Eurodollar Advance".
"Eurodollar Rate": with respect to each day during each
Interest Period applicable to any Eurodollar Advance, a rate of interest per
annum determined by dividing (and then rounding to the nearest 1/16 of 1% or, if
there is no nearest 1/16 of 1%, then to the next higher 1/16 of 1%):
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<PAGE> 23
(a) the rate per annum equal to the rate notified to the
Administrative Agent by the Reference Lender as the rate at which the Reference
Lender is offered Dollar deposits in the New York interbank market, for delivery
on the first day of such Interest Period, in an amount equal approximately to
such Eurodollar Advance for a period equal to such Interest Period, as quoted at
approximately 11:00 A.M. two Business Days prior to the first day of such
Interest Period, by
(b) a number equal to 1.00 minus the aggregate of the stated
maximum rates in effect on such day (without duplication) of all reserve
requirements (including marginal, emergency, supplemental and special reserves),
expressed as a decimal, established by the Board of Governors of the Federal
Reserve System and any other banking authority to which BNY and other major
United States money center banks are subject, in respect of eurocurrency funding
(currently referred to as "Eurocurrency liabilities" in Regulation D of the
Board of Governors of the Federal Reserve System) maintained by a member of the
Federal Reserve System with deposits exceeding $1 billion in respect of
eurodollar currency funding liabilities.
"Event of Default": any of the events specified in Section
9.1, provided that any requirement for the giving of notice, the lapse of time,
or any other condition has been satisfied.
"Excess Tax": as defined in Section 2.13(g).
"Expiration Date": the Business Day immediately preceding the
Maturity Date.
"Facility Fee": as defined in Section 3.1.
"Federal Funds Rate": for any day, a rate per annum (expressed
as a decimal, rounded upwards, if necessary, to the next higher 1/100 of 1%),
equal to the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers on such day, as published by the Federal Reserve Bank of New York
on the Business Day next succeeding such day, provided that (i) if the day for
which such rate is to be determined is not a Business Day, the Federal Funds
Rate for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (ii) if
such rate is not so published for any day which is a Business Day, the Federal
Funds Rate for such day shall be the average of the three rates quoted by
federal funds brokers to BNY on such day on such transactions received by BNY as
determined by BNY and reported to the Administrative Agent.
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<PAGE> 24
"Financial Officer": the chief financial officer, the
treasurer or the assistant treasurer of the Parent or such other officer thereof
as shall be reasonably satisfactory to the Administrative Agent.
"Financial Statements": as defined in Section 4.15.
"Fixed Charge Coverage Ratio": as of any date, the ratio of
(a) (i) EBIT in respect of the period comprised of the four consecutive fiscal
quarters ended immediately prior to such date in respect of which financial
statements have been delivered pursuant to Sections 7.7(a), 7.7(c) or 7.7(d)
plus (ii) Rent Expense for such period to (b) (i) Rent Expense for such period
plus (ii) Interest Expense for such period.
"Fixed Rate Loan": a Eurodollar Advance, a Core Currency Euro
Advance, a Swing Line Negotiated Rate Advance, a Negotiated Rate Loan, an
Individual Currency Loan or a Bid Loan.
"Foreign Pension Plan": any plan, fund (including any
superannuation fund) or other similar program established or maintained outside
of the United States by the Parent or any one or more of its Subsidiaries
primarily for the benefit of employees of the Parent or such Subsidiaries
residing outside of the United States, which plan, fund or other similar program
provides, or results in, retirement income, a deferral of income in
contemplation of retirement or payments to be made upon termination of
employment, and which plan is not subject to ERISA or the Code.
"French Borrower": one or more of the following: Tiffany,
Tiffany International or Societe Francaise Pour Le Developpement De La
Porcelaine D'Art (S.A.R.L.), a corporation organized under the laws of France
and whose principal office is located in France.
"French Francs": freely transferable lawful money of France.
"Funded Current Liability Percentage": as defined in Section
401(a)(29) of the Code.
"GAAP": generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and in the statements and
pronouncements of the Financial Accounting Standards Board or in such other
statement by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination. If at any time after the Effective Date any change in
GAAP
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<PAGE> 25
would affect the computation of any financial ratio or requirement set forth in
any Loan Document, and either the Required Lenders, the Parent or the
appropriate Borrowers shall so request, the Administrative Agent, the Lenders,
the Parent and such Borrowers shall negotiate in good faith to amend such ratio
or requirement to reflect such change in GAAP (subject to the approval of the
Required Lenders), provided that, until so amended, (i) such ratio or
requirement shall continue to be computed in accordance with GAAP prior to such
change therein and (ii) the Parent and such Borrowers shall provide to the
Administrative Agent and the Lenders financial statements and other documents
required under the Loan Documents or as reasonably requested thereunder setting
forth a reconciliation between calculations of such ratio or requirement made
before and after giving effect to such change in GAAP.
"German Borrower": one or more of the following: Tiffany,
Tiffany International or a wholly-owned Subsidiary of the Parent which is
organized under the laws of, and has its principal office in, Germany and which
shall become a Borrower pursuant to Section 2.23 hereof.
"German Marks": freely transferable lawful money of Germany.
"Governmental Authority": any foreign, federal, state,
municipal or other government, or any department, commission, board, bureau,
agency, public authority, instrumentality or other political subdivision
thereof, any central bank, or any court or arbitrator.
"Guaranty": as defined in Section 5.2.
"Hong Kong Borrower": one or more of the following: Tiffany,
Tiffany International or Tiffany & Co. of New York Limited, a corporation
organized under the laws of Hong Kong and whose principal office is located in
Hong Kong.
"Hong Kong Dollars": freely transferable lawful money of Hong
Kong.
"Indebtedness": as to any Person, at a particular time, all
items of such Person which constitute, without duplication, (a) indebtedness for
borrowed money or the deferred purchase price of Property (other than trade
payables and accrued expenses incurred in the ordinary course of business), (b)
indebtedness evidenced by notes, bonds, debentures or similar instruments, (c)
obligations with respect to any conditional sale or other title retention
agreement, (d) indebtedness arising under acceptance facilities and the amount
available to be drawn under all letters of credit issued for the account of such
Person and, without duplication, all
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<PAGE> 26
drafts drawn thereunder to the extent such Person shall not have reimbursed the
issuer in respect of the issuer's payment of such drafts, (e) liabilities
secured by any Lien on any Property owned by such Person even though such Person
shall not have assumed or otherwise become liable for the payment thereof (other
than carriers', warehousemen's, mechanics', repairmen's or other like
non-consensual Liens arising in the ordinary course of business), (f) that
portion of any obligation of such Person, as lessee, which in accordance with
GAAP is required to be capitalized on the balance sheet of such Person, and (g)
Contingent Obligations.
"Indemnified Person": as defined in Section 11.10.
"Indemnified Tax": as to any Person, any Tax, except (i) a Tax
on the Income imposed on such Person and (ii) any interest, fees or penalties
for late payment imposed on such Person, in each case under clauses (i) and (ii)
to the extent not attributable to the failure of the Parent or any of its
Subsidiaries to obtain any necessary approvals or consents of, or file or cause
to be filed any reports, applications, documents, instruments or information
required to be filed pursuant to any applicable law, rule, regulation or request
of, any Governmental Authority.
"Indemnified Tax Person": the Administrative Agent, the Swing
Line Lender, the Issuing Bank, or any Lender.
"Individual Currency Commitment": with respect to each Lender
and any Non-Core Currency, the amount set forth opposite such Lender's name in
Exhibit A-2 directly below the column entitled "Individual Currency Commitment"
in respect of such Non-Core Currency (determined on the basis of the Dollar
Equivalent for such Non-Core Currency), as the same may be (x) reduced from time
to time pursuant to Section 2.9 or (y) adjusted from time to time as a result of
assignments to or from such Lender pursuant to Section 11.7, provided, however,
that the aggregate amount of all of the Individual Currency Commitments of each
Lender (determined on the basis of the Dollar Equivalent for each applicable
Non-Core Currency) shall not exceed the amount of such Lender's Commitment.
"Individual Currency Interest Period": with respect to any
Individual Currency Loan requested by any Non-Core Currency Borrower, the period
commencing on the Borrowing Date with respect to such Individual Currency Loan
and ending one, two or three months thereafter, as selected by such Non-Core
Currency Borrower in its irrevocable Notice of Borrowing, provided, however,
that (i) if any Individual Currency Interest Period would otherwise end on a day
which is not a Business Day, such Individual Currency Interest Period shall be
extended to the next succeeding Business Day unless the result
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<PAGE> 27
of such extension would be to carry such Individual Currency Interest Period
into another calendar month, in which event such Individual Currency Interest
Period shall end on the immediately preceding Business Day, (ii) any Individual
Currency Interest Period that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Individual Currency Interest Period) shall end
on the last Business Day of a calendar month, and (iii) no Borrower shall select
an Individual Currency Interest Period which shall end after the Maturity Date.
"Individual Currency Loan" and "Individual Currency Loans": as
defined in Section 2.1(e).
"Individual Currency Rate": with respect to each day during
each Interest Period applicable to any Individual Currency Loan, a rate of
interest per annum determined by dividing (and then rounding to the nearest 1/16
of 1% or, if there is no nearest 1/16 of 1%, then to the next higher 1/16 of
1%):
(a) (i) if such Individual Currency Loan is
designated in Australian Dollars, Canadian Dollars, Hong Kong Dollars, Italian
Lira, Singaporean Dollars or Swiss Francs,
(A) with respect to Australian Dollars, the average
bid rate for bank bills of exchange that appears on page BBSY
on the Reuters Screen (Sydney) (or any successor page) for a
term equivalent to such Interest Period, determined as of
approximately 10:15 A.M. (Sydney time) on the first day of
such Interest Period,
(B) with respect to Canadian Dollars, the rate per
annum that appears on page CDOR on the Reuters Screen
(Toronto) (or any successor page) for deposits of Canadian
Dollars with a maturity comparable to such Interest Period,
determined as of approximately 11:00 A.M. (Toronto time) on
the date which is two Business Days prior to the commencement
of such Interest Period,
(C) with respect to Italian Lira, the rate per annum
that appears on page RIBO (London) on the Reuters Screen (or
any successor page) for deposits of Italian Lira with a
maturity comparable to such Interest Period, determined as of
approximately 11:00 A.M. (London time) on the date which is
two Business Days prior to the commencement of such Interest
Period,
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<PAGE> 28
(D) with respect to Swiss Francs, the rate per annum
that appears on page 3740 or 3750 of the Dow Jones Telerate
Screen (or any successor page) for deposits of Swiss Francs
with a maturity comparable to such Interest Period, determined
as of approximately 11:00 A.M. (London time) on the date which
is two Business Days prior to the commencement of such
Interest Period,
(E) with respect to Hong Kong Dollars, the rate per
annum that appears on page FWEN on the Reuters Screen (Hong
Kong) (or any successor page) for deposits of Hong Kong
Dollars with a maturity comparable to such Interest Period,
determined as of approximately 11:00 A.M. (Hong Kong time) on
the date which is two Business Days prior to the commencement
of such Interest Period,
(F) with respect to Singaporean Dollars, the rate per
annum that appears on page FWEO of the Reuters Screen
(Singapore) (or any successor page) for deposits of
Singaporean Dollars with a maturity comparable to such
Interest Period, determined as of approximately 11:00 A.M.
(Singapore time), on the date which is two Business Days prior
to the commencement of such Interest Period, or
(G) if such rate does not appear on such applicable
page of the Dow Jones Telerate Screen or Reuters Screen (or
any successor page), the rate per annum equal to the offered
quotation by first class banks in the London, Australian,
Canadian, Hong Kong or Singapore, as the case may be,
interbank market to the applicable Lender for such Non-Core
Currency deposits of amounts in immediately available funds
comparable to the principal amount of such Individual Currency
Loan with a maturity comparable to such Interest Period
determined as of approximately 11:00 A.M. (London, Sydney,
Toronto, Hong Kong or Singapore, as the case may be, time) on
the date which is two Business Days prior to the commencement
of such Interest Period or, in the case of Individual Currency
Loans designated in Australian Dollars, on the first day of
such Interest Period,
(ii) if such Individual Currency Loan is designated in any other Non-Core
Currency, a rate per annum equal to the offered quotation by first class banks
in the applicable interbank market to the applicable Lender for deposits of such
Non-Core Currency in amounts in immediately available funds comparable to the
principal amount of such Individual Currency Loan with
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<PAGE> 29
a maturity comparable to such Interest Period as determined by such Lender
on the date which is two Business Days prior to the commencement of such
Interest Period, adjusted for additional costs and local market conditions as
determined by such Lender, by
(b) a number equal to 1.00 minus the aggregate of the
stated maximum rates in effect on such day (without duplication) of all reserve
requirements (including marginal, emergency, supplemental and special reserves)
and similar charges, expressed as a decimal, established by any Governmental
Authority, including those established by the Board of Governors of the Federal
Reserve System and any other banking authority to which BNY and other major
United States money center banks are subject in respect of eurocurrency funding
(currently referred to as "Eurocurrency liabilities" in Regulation D of the
Board of Governors of the Federal Reserve System) maintained by a member of the
Federal Reserve System with deposits exceeding $1 billion in respect of
eurodollar currency funding liabilities, to the extent Applicable; provided, in
the event that the applicable Lender has made any determination pursuant to
Section 2.14(a)(iv) in respect of such Individual Currency Loan, the Individual
Currency Rate determined pursuant to clause (a) of this definition shall instead
be the rate based on the all-in cost of funds of the applicable Lender to fund
such Individual Currency Loan with a maturity comparable to such Interest
Period.
"Intellectual Property": all United States registered
trademarks, service marks, patents, and trade names.
"Intercompany Acquisition": an Acquisition by the Parent from
any of its Subsidiaries or an Acquisition by any Subsidiary of the Parent from
any other Subsidiary of the Parent.
"Intercompany Debt": (i) Indebtedness of the Parent to one or
more of the Subsidiaries of the Parent and (ii) demand Indebtedness of one or
more of the Subsidiaries of the Parent to the Parent or any one or more of the
other Subsidiaries of the Parent.
"Intercompany Disposition": a Disposition by the Parent or any
of its Subsidiaries to the Parent or any of its other Subsidiaries, provided
that such Disposition does not materially and adversely affect the interests of
the Lenders under the Loan Documents.
"Intercompany Lien": A Lien granted by the Parent or any of
its Subsidiaries to the Parent or any of its other Subsidiaries, provided that
such Lien does not materially and
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<PAGE> 30
adversely affect the interests of the Lenders under the Loan Documents.
"Interest Coverage Ratio": as of any date, the ratio of (a)
EBIT in respect of the period comprised of the four consecutive fiscal quarters
ended immediately prior to such date in respect of which financial statements
have been delivered pursuant to Sections 7.7(a), 7.7(c) or 7.7(d) to (b)
Interest Expense for such period.
"Interest Expense": for any period, the interest expense of
the Parent and its Subsidiaries on a Consolidated basis in respect of such
period.
"Interest Period": a Euro Interest Period, a Swing Line
Interest Period, a Negotiated Rate Interest Period, an Individual Currency
Interest Period or a Bid Interest Period, as the case may be.
"Interest Rate Protection Arrangement": any interest rate
swap, cap or collar arrangement or any other derivative product, in each case
designed to reduce exposure to interest rate fluctuations.
"Investments": as defined in Section 8.7.
"Invitation to Bid": an invitation to make Bids in the form of
Exhibit G.
"Issuing Bank": BNY.
"Italian Borrower": one or more of the following: Tiffany,
Tiffany International or Tiffany-Faraone S.P.A., a corporation organized under
the laws of Italy and whose principal office is located in Italy.
"Italian Lira": freely transferable lawful money of Italy.
"Japanese Borrower": one or more of the following: Tiffany,
Tiffany International, Tiffany Japan or a wholly-owned Subsidiary of the Parent
which is organized under the laws of, and has its principal office in, Japan and
which shall become a Borrower pursuant to Section 2.23 hereof.
"Japanese Yen": freely transferable lawful money of Japan.
"Judgment Currency": as defined in Section 11.14.
"Judgment Currency Conversion Date": as defined in Section
11.14.
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<PAGE> 31
"Korean Borrower": one or more of the following: Tiffany,
Tiffany International or a wholly-owned Subsidiary of the Parent which is
organized under the laws of, and has its principal office in, Korea and which
shall become a Borrower pursuant to Section 2.23 hereof.
"Korean Won": freely transferable lawful money of Korea.
"Lender": each financial institution listed on Exhibit A-1, as
well as any Person which becomes a "Lender" hereunder pursuant to Sections 11.7
or 11.1; it being understood and agreed, however, that for purposes of making
certain Alternate Currency Loans and issuing or participating in certain Letters
of Credit under this Agreement, certain of the Lenders have specifically
designated on Exhibit R certain of their branches, subsidiaries or affiliates
that will be responsible for making such Alternate Currency Loans and issuing or
participating in such Letters of Credit, or may make such a designation in an
Assignment and Acceptance Agreement entered into by any such Lender.
"Letter of Credit" and "Letters of Credit": as defined in
Section 2.19.
"Letter of Credit Applicants": collectively, Tiffany and
Tiffany International; each a "Letter of Credit Applicant".
"Letter of Credit Commissions": as defined in Section 3.2.
"Letter of Credit Commitment": (i) the commitment of the
Issuing Bank to issue Letters of Credit, provided that the Letter of Credit
Exposure shall not exceed $25,000,000 (determined on the basis of the Dollar
Equivalent for each outstanding Letter of Credit designated in an Alternate
Currency), and (ii) the commitment of the Lenders in respect of the Letter of
Credit Exposure as set forth in Section 2.20.
"Letter of Credit Exposure": at any date, the sum, without
duplication, of (i) the aggregate undrawn face amount (determined on the basis
of the Dollar Equivalent for each outstanding Letter of Credit designated in an
Alternate Currency) of the outstanding Letters of Credit at such date and (ii)
the aggregate unpaid reimbursement obligations in respect of the Letters of
Credit at such date (after giving effect to any Loans made on such date to pay
any such reimbursement obligations and determined on the basis of the Dollar
Equivalent for each such reimbursement obligation in respect of an outstanding
Letter of Credit designated in an Alternate Currency).
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<PAGE> 32
"Letter of Credit Request": a request in the form of Exhibit
L.
"Leverage Ratio": as of any date, the ratio of (a) Total Debt
on such date, to (b) Consolidated Capitalization as of such date.
"Lien": any mortgage, pledge, assignment, lien, charge,
encumbrance or security interest of any kind, or the interest of a vendor or
lessor under any conditional sale agreement, capital lease or other title
retention agreement.
"Loan": each Revolving Loan, each Individual Currency Loan,
each Negotiated Rate Loan, each Bid Loan and each Swing Line Loan.
"Loan Documents": this Agreement and the Guaranty.
"Malaysian Borrower": one or more of the following: Tiffany,
Tiffany International or a wholly-owned Subsidiary of the Parent which is
organized under the laws of, and has its principal office in, Malaysia and which
shall become a Borrower pursuant to Section 2.23 hereof.
"Malaysian Ringgit": freely transferable lawful money of
Malaysia.
"Mandatory Borrowing": as defined in Section 2.1(d).
"Margin Stock": any "margin stock", as said term is defined in
Regulation U of the Board of Governors of the Federal Reserve System, as the
same may be amended or supplemented from time to time.
"Material Adverse": with respect to any change or effect, a
material adverse change in, or effect on, as the case may be, (i) the financial
condition, operations, business, prospects or Property of the Parent and its
Subsidiaries taken as a whole, (ii) the ability of the Parent or any Borrower to
perform its obligations under any Loan Document, or (iii) the ability of the
Administrative Agent, the Issuing Bank, the Swing Line Lender or any Lender to
enforce any Loan Document.
"Maturity Date": June 30, 2002, or such earlier date on which
the Loans shall become due and payable, whether by acceleration or otherwise.
"Maximum Offer": as defined in Section 2.11(b).
"Maximum Request": as defined in Section 2.11(a).
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<PAGE> 33
"Mexican Borrower": one or more of the following: Tiffany,
Tiffany International or a wholly-owned Subsidiary of the Parent which is
organized under the laws of, and has its principal office in, Mexico and which
shall become a Borrower pursuant to Section 2.23 hereof.
"Mexican Pesos": freely transferable lawful money of Mexico.
"Moody's": Moody's Investors Service, Inc.
"Multiemployer Plan": a Pension Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
"Negotiated Rate": as defined in Section 2.12.
"Negotiated Rate Confirmation": as defined in Section 2.12.
"Negotiated Rate Confirmation Request": a request by a
Borrower and the Parent, in the form of Exhibit K, for confirmation by a Lender
of such Lender's agreement to make a Negotiated Rate Loan to such Borrower
pursuant to Section 2.12.
"Negotiated Rate Interest Period": as to any Negotiated Rate
Loan, the period commencing on the date of such Negotiated Rate Loan, and ending
on the applicable date specified in the Negotiated Rate Confirmation for such
Negotiated Rate Loan, which shall not be earlier than 7 days after the date of
such Negotiated Rate Loan or later than 180 days after the date of such
Negotiated Rate Loan; provided, however, that (i) if any Negotiated Rate
Interest Period would end on a day other than a Business Day, such Negotiated
Rate Interest Period shall be extended to the next succeeding Business Day,
unless such next succeeding Business Day would be a date on or after the
Maturity Date in which case such Negotiated Rate Interest Period shall end on
the next preceding Business Day and (ii) no Borrower shall select a Negotiated
Rate Interest Period which shall end after the Maturity Date.
"Negotiated Rate Loan": each loan from a Lender to a Borrower
pursuant to Section 2.12.
"New Taiwan Dollars": freely transferable lawful money of
Taiwan.
"Non-Core Currencies": Australian Dollars, Canadian Dollars,
Hong Kong Dollars, Italian Lira, Korean Won, Malaysian Ringgit, Mexican Pesos,
New Taiwan Dollars,
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<PAGE> 34
Philippine Pesos, Singaporean Dollars, Swiss Francs and Thai Baht; each a
"Non-Core Currency".
"Non-Core Currency Borrowers": with respect to Individual
Currency Loans, the Australian Borrower, the Canadian Borrower, the Hong Kong
Borrower, the Italian Borrower, the Korean Borrower, the Malaysian Borrower, the
Mexican Borrower, the Philippine Borrower, the Singaporean Borrower, the Swiss
Borrower, the Taiwanese Borrower and the Thai Borrower; each a "Non-Core
Currency Borrower".
"Non-Issuance Event": as defined in Section 2.19(a).
"Non-Swing Loan Event": as defined in Section 2.1(c).
"Notice of Borrowing": a request for Loans in the form of
Exhibit C signed by the Parent and the applicable Borrower.
"Notice of Conversion": a notice substantially in the form of
Exhibit E.
"Obligation Currency": as defined in Section 11.14.
"Other Hedging Arrangement": any foreign exchange contract,
currency swap arrangement, commodity arrangement or any other similar
arrangement, in each case designed to protect against fluctuations of currency
values.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any Governmental Authority
succeeding to the functions thereof.
"Pension Plan": at any time, any Employee Benefit Plan
(including a Multiemployer Plan) subject to Section 302 of ERISA or Section 412
of the Code, the funding requirements of which are, or at any time within the
six years immediately preceding the time in question, were in whole or in part,
the responsibility of the Parent, any of its Subsidiaries or an ERISA Affiliate.
"Person": any individual, firm, partnership, joint venture,
corporation, association, business enterprise, limited liability company, joint
stock company, unincorporated association, trust, Governmental Authority or any
other entity, whether acting in an individual capacity, and for the purpose of
the definition of "ERISA Affiliate", a trade or business.
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<PAGE> 35
"Philippine Borrower": one or more of the following: Tiffany,
Tiffany International or a wholly-owned Subsidiary of the Parent which is
organized under the laws of, and has its principal office in, the Philippines
and which shall become a Borrower pursuant to Section 2.23 hereof.
"Philippine Pesos": freely transferable lawful money of the
Philippines.
"Portion": as defined in Section 2.11(b).
"Pricing Level": any of Pricing Level I, Pricing Level II,
Pricing Level III, Pricing Level IV, Pricing Level V or Pricing Level VI.
"Pricing Level I": (a) if a Rating shall exist: any time when
the Rating of the Parent by (x) S&P is A or higher or (y) Moody's is A2 or
higher or (b) if no Rating shall exist: any time when the Fixed Charge Coverage
Ratio is 3.75:1.00 or higher and the Leverage Ratio is less than or equal to
0.40:1.00.
"Pricing Level II": (a) if a Rating shall exist: any time when
(i) the Rating of the Parent by (x) S&P is A- or higher or (y) Moody's is A3 or
higher and (ii) Pricing Level I does not apply or (b) if no Rating shall exist:
any time when the Fixed Charge Coverage Ratio is 3.00:1.00 or higher and Pricing
Level I does not apply.
"Pricing Level III": (a) if a Rating shall exist: any time
when (i) the Rating of the Parent by (x) S&P is BBB+ or higher or (y) Moody's is
Baa1 or higher and (ii) neither Pricing Level I nor Pricing Level II applies or
(b) if no Rating shall exist: any time when the Fixed Charge Coverage Ratio is
2.50:1.00 or higher and less than 3.00:1.00.
"Pricing Level IV": (a) if a Rating shall exist: any time when
(i) the Rating of the Parent by (x) S&P is BBB or higher or (y) Moody's is Baa2
or higher and (ii) none of Pricing Level I, Pricing Level II or Pricing Level
III applies or (b) if no Rating shall exist: any time when the Fixed Charge
Coverage Ratio is 2.25:1.00 or higher and less than 2.50:1.00.
"Pricing Level V": (a) if a Rating shall exist: any time when
(i) the Rating of the Parent by (x) S&P is BBB- or lower or (y) Moody's is Baa3
or lower and (ii) none of Pricing Level I, Pricing Level II, Pricing Level III
or Pricing Level IV applies or (b) if no Rating shall exist: any time when the
Fixed Charge Coverage Ratio is 1.75:1.00 or higher and less than 2.25:1.00.
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<PAGE> 36
"Pricing Level VI": (a) if a Rating shall exist: any time when
(i) the Rating of the Parent by (x) S&P is BB+ or lower or (y) Moody's is Ba1 or
lower and (ii) none of Pricing Level I, Pricing Level II, Pricing Level III,
Pricing Level IV or Pricing Level V applies or (b) if no Rating shall exist: any
time when the Fixed Charge Coverage Ratio is less than 1.75:1.00.
"Prohibited Transaction": with respect to any Pension Plan,
(a) any event set forth in Sections 4043(b) (other than a Reportable Event as to
which the 30 day notice requirement is waived by the PBGC under applicable
regulations), 4062(e) or 4063(a) of ERISA or the regulations thereunder, (b) an
event requiring the Parent, any of its Subsidiaries or any ERISA Affiliate to
provide security to a Pension Plan under Section 401(a)(29) of the Code, or (c)
failure to make any payment required by Section 412(m) of the Code.
"Property": in respect of any Person, all types of real,
personal, tangible, intangible or mixed property and all types of tangible or
intangible property owned or leased by such Person.
"Proportionate Share": as to any Subsidiary Borrower (a) if
such cost, expense or other amount is directly attributable to the Loans made to
such Subsidiary Borrower or any action taken or omitted to be taken by such
Subsidiary Borrower, 100% of such amount and (b) if such cost, expense or other
amount is not directly attributable to one or more specific Borrowers, such
amount multiplied by (i) if Loans are outstanding, the percentage equivalent of
a fraction the numerator of which is the principal amount of Loans outstanding
to such Subsidiary Borrower and the denominator of which is the aggregate amount
of Loans outstanding to all Borrowers and (ii) if no Loans are outstanding, the
percentage equivalent of a fraction the numerator of which is one and the
denominator of which is the number of Borrowers.
"Proposed Lender": as defined in Section 11.1(b).
"Quarterly Payment Date": each January 31, April 30, July 31
and October 31 of each year.
"Rating": the actual, or if no actual then the implied, senior
unsecured long term debt rating of the Parent, in either case as assigned by S&P
or Moody's, as the case may be.
"Reference Lender": BNY.
"Regulation D": Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in
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<PAGE> 37
effect and any successor to all or a portion thereof establishing reserve
requirements.
"Rent Expense": for any period, the rent expense of the Parent
and its Subsidiaries under all operating leases on a Consolidated basis in
respect of such period.
"Reportable Event": with respect to any Pension Plan, (a) any
event set forth in Sections 4043(c) (other than a Reportable Event as to which
the 30 day notice requirement is waived by the PBGC under applicable
regulations), 4062(e) or 4063(a) of ERISA or the regulations thereunder, (b) an
event requiring the Parent, any of its Subsidiaries or any ERISA Affiliate to
provide security to a Pension Plan under Section 401(a)(29) of the Code, or (c)
failure to make any payment required by Section 412(m) of the Code.
"Required Lenders": (i) at any time when no Loans are
outstanding, Lenders having Commitments or, if no Commitments then exist,
Lenders having Commitments on the last day on which Commitments did exist, equal
to at least 60% of the Aggregate Commitments, and (ii) at any time when Loans
are outstanding (x) if the Commitments then exist, Lenders having Commitments
equal to at least 60% of the Aggregate Commitments, and (y) if the Commitments
have been terminated or otherwise no longer exist, Lenders having Credit
Exposures equal to at least 60% of the Aggregate Credit Exposure.
"Required Payment": as defined in Section 2.13(a).
"Responsible Officer": the president, the chief financial
officer, the treasurer or the assistant treasurer of the Parent, Tiffany or
Tiffany International.
"Restricted Payment": with respect to any Person, any of the
following, whether direct or indirect: (a) the declaration or payment by such
Person of any dividend or distribution on any class of Stock of such Person,
other than a dividend payable solely in shares of that class of Stock to the
holders of such class, (b) the declaration or payment by such Person of any
distribution on any other type or class of equity interest or equity investment
in such Person, and (c) any redemption, retirement, purchase or acquisition of,
or sinking fund or other similar payment in respect of, any class of Stock of,
or other type or class of equity interest or equity investment in, such Person.
"Revolving Loan" and "Revolving Loans": as defined in Section
2.1(a).
"S&P": Standard & Poor's Ratings Service.
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<PAGE> 38
"SEC": the Securities and Exchange Commission or any
Governmental Authority succeeding to the functions thereof.
"Singaporean Borrower": one or more of the following: Tiffany,
Tiffany International or Tiffany & Co. Pte. Ltd., a corporation organized under
the laws of Singapore and whose principal office is located in Singapore.
"Singaporean Dollars": freely transferable lawful money of
Singapore.
"SL/LC Credit Exposure": with respect to any Lender at any
time, (i) the sum of (A) the outstanding principal balance of all Swing Line
Loans (determined on the basis of the Dollar Equivalent for each Alternate
Currency Swing Line Loan), plus (B) the Letter of Credit Exposure, multiplied by
(ii) the Availability Percentage of such Lender.
"Special Counsel": Emmet, Marvin & Martin, LLP, special
counsel to the Administrative Agent.
"Sterling Borrower": one or more of the following: Tiffany,
Tiffany International or Tiffany & Co., a corporation organized under the laws
of the United Kingdom and whose principal office is located in the United
Kingdom.
"Sterling Pounds": freely transferable lawful money of the
United Kingdom.
"Stock": any and all shares, rights, interests,
participations, warrants, options, rights of conversion or other equivalents
(however designated) of corporate stock.
"Subsidiary": with respect to any Person at any time and from
time to time, any corporation, association, partnership, limited liability
company, joint venture or other business entity of which such Person and/or any
Subsidiary of such Person, directly or indirectly at such time, either (a) in
respect of a corporation, owns or controls more than 50% of the outstanding
Stock having ordinary voting power to elect a majority of the board of directors
or similar managing body, irrespective of whether a class or classes shall or
might have voting power by reason of the happening of any contingency, or (b) in
respect of an association, partnership, limited liability company, joint venture
or other business entity, is entitled to share in more than 50% of the profits
and losses, however determined.
"Subsidiary Borrowers": collectively, the Domestic Borrowers
(other than Tiffany and Tiffany International), the
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<PAGE> 39
Australian Borrower, the Canadian Borrower, the French Borrower, the German
Borrower, the Hong Kong Borrower, the Italian Borrower, the Japanese Borrower,
the Korean Borrower, the Malaysian Borrower, the Mexican Borrower, the
Philippine Borrower, the Singaporean Borrower, the Sterling Borrower, the Swiss
Borrower, the Taiwanese Borrower and the Thai Borrower which are signatories
hereto on the Effective Date, and each other wholly-owned Subsidiary of the
Parent which becomes a party to this Agreement by the execution of a Borrower
Addendum pursuant to Section 2.23; each a "Subsidiary Borrower".
"Swing Line Borrowers": with respect to Swing Line Loans, the
Domestic Borrowers, the French Borrower, the German Borrower, the Japanese
Borrower and the Sterling Borrower; each a "Swing Line Borrower".
"Swing Line Commitment": an amount equal to $15,000,000, as
the same may be reduced from time to time pursuant to Section 2.9.
"Swing Line Commitment Period": the period from the Effective
Date to, but excluding, the Swing Line Termination Date.
"Swing Line Interest Period": (i) as to any Swing Line
Negotiated Rate Advance, the period commencing on the date of such Swing Line
Negotiated Rate Advance and ending on the date agreed to between the Parent, the
applicable Swing Line Borrower and the Swing Line Lender with respect to such
Swing Line Negotiated Rate Advance, and (ii) as to any Swing Line Loan made as
an ABR Advance, the period commencing on the date of such ABR Advance and ending
on the date set forth by the Parent and the applicable Swing Line Borrower in
the Notice of Borrowing with respect to such ABR Advance; provided, however,
that the last day of any Swing Line Interest Period shall not be earlier than
one day after the date of such Swing Line Negotiated Rate Advance or ABR
Advance, as the case may be, or later than 30 days after the date of such Swing
Line Negotiated Rate Advance or ABR Advance, as the case may be, and in no event
later than 30 days prior to the Expiration Date; and provided further, however,
that if any Swing Line Interest Period would end on a day other than a Business
Day, such Interest Period shall be extended to the next succeeding Business Day.
"Swing Line Lender": BNY.
"Swing Line Loan" and "Swing Line Loans": as defined in
Section 2.1(c).
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<PAGE> 40
"Swing Line Negotiated Rate": with respect to any Swing Line
Interest Period applicable to any Swing Line Negotiated Rate Advance, the rate
of interest per annum agreed to by the Parent, the applicable Swing Line
Borrower, and the Swing Line Lender with respect thereto in accordance with
Section 2.3(b).
"Swing Line Negotiated Rate Advances": collectively, the Swing
Line Loans (or any portions thereof) at such time as they (or such portions) are
made and/or being maintained at a rate of interest based on a Swing Line
Negotiated Rate; each a "Swing Line Negotiated Rate Advance".
"Swing Line Termination Date": the date which is 30 days prior
to the Expiration Date.
"Swiss Borrower": one or more of the following: Tiffany,
Tiffany International or Tiffany & Co. Watch Center S.A., a corporation
organized under the laws of Switzerland and whose principal office is located in
Switzerland.
"Swiss Francs": freely transferable lawful money of
Switzerland.
"Taiwanese Borrower": one or more of the following: Tiffany,
Tiffany International or a wholly-owned Subsidiary of the Parent which is
organized under the laws of, and has its principal office in, Taiwan and which
shall become a Borrower pursuant to Section 2.23 hereof.
"Tax": any present or future tax, levy, impost, duty, charge,
fee, deduction or withholding of any nature and whatever called, by a
Governmental Authority, on whomsoever and wherever imposed, levied, collected,
withheld or assessed.
"Tax on the Income": as to any Person, a Tax imposed by one of
the following jurisdictions or by any political subdivision or taxing authority
thereof: (i) the United States, (ii) the jurisdiction in which such Person is
organized, (iii) the jurisdiction in which such Person's principal office is
located, or (iv) in the case of each Lender or Swingline Lender, any
jurisdiction in which such Person is deemed to be doing business; which Tax is
an income tax or franchise tax imposed on all or part of the net income or net
profits of such Person or which Tax represents interest, fees, or penalties for
late payment of such an income tax or franchise tax.
"Termination Event": with respect to any Pension Plan, (a) a
Reportable Event, (b) the termination of a Pension Plan under Section 4041(c)
of ERISA, or the filing of a notice of intent to terminate a Pension Plan under
Section 4041(c) of
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<PAGE> 41
ERISA, or the treatment of a Pension Plan amendment as a termination under
Section 4041(e) of ERISA, (c) the institution of proceedings by the PBGC to
terminate a Pension Plan under Section 4042 of ERISA, or (d) the appointment of
a trustee to administer any Pension Plan under Section 4042 of ERISA.
"Thai Borrower": one or more of the following: Tiffany,
Tiffany International or a wholly-owned Subsidiary of the Parent which is
organized under the laws of, and has its principal office in, Thailand and which
shall become a Borrower pursuant to Section 2.23 hereof.
"Thai Baht": freely transferable lawful money of Thailand.
"Tiffany Japan": Tiffany & Co. Japan Inc., a Delaware
corporation.
"Total Debt": as of any date, all Indebtedness of the Parent
and its Subsidiaries on a Consolidated basis on such date.
"Unfunded Pension Liabilities": with respect to any Pension
Plan (other than a Multiemployer Plan), as of the last day of the fiscal year of
such Pension Plan preceding the time in question, the amount determined by
taking the accumulated benefit obligation, as disclosed in accordance with
Statement of Accounting Standards No. 87, "Employers' Accounting for Pensions",
over the fair market value of Pension Plan assets.
"United States": the United States of America (including the
States thereof and the District of Columbia).
"Upstream Dividends": as defined in Section 8.9.
"Unrecognized Retiree Welfare Liability": with respect to any
Employee Benefit Plan that provides postretirement benefits other than pension
benefits, the amount of the transition obligation, as determined in accordance
with Statement of Financial Accounting Standards No. 106, "Employers' Accounting
for Postretirement Benefits Other Than Pensions," as of the most recent
valuation date, that has not been recognized as an expense in the income
statement of the Parent and its Consolidated Subsidiaries, provided that (i)
prior to the date such Statement is applicable to the Parent, such amount shall
be based on an estimate made in good faith of the transition obligation, and
(ii) for purposes of determining the aggregate amount of the Unrecognized
Retiree Welfare Liability, Plans maintained by a Consolidated Subsidiary of the
Parent that is not otherwise an ERISA Affiliate shall be included.
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1.2 Principles of Construction
(a) All capitalized terms defined in this Agreement shall have
the meanings given such capitalized terms herein when used in the other Loan
Documents or any certificate, opinion or other document made or delivered
pursuant hereto or thereto, unless otherwise expressly provided therein.
(b) As used in the Loan Documents and in any certificate,
opinion or other document made or delivered pursuant thereto, accounting terms
not defined in Section 1.1, and accounting terms partly defined in Section 1.1
to the extent not defined, shall have the respective meanings given to them
under GAAP. Unless otherwise expressly provided herein, the word "fiscal" when
used herein shall refer to the relevant fiscal period of the Parent.
(c) The words "hereof", "herein", "hereto" and "hereunder" and
similar words when used in each Loan Document shall refer to such Loan Document
as a whole and not to any particular provision of such Loan Document, and
Section, schedule and exhibit references contained therein shall refer to
Sections thereof or schedules or exhibits thereto unless otherwise expressly
provided therein.
(d) All references herein to a time of day shall mean the then
applicable time in New York, New York, unless otherwise expressly provided
herein.
(e) Section headings have been inserted herein and in the
other Loan Documents for convenience only and shall not be construed to be a
part hereof or thereof. Unless the context otherwise requires, words in the
singular number include the plural, and words in the plural include the
singular.
(f) Whenever in any Loan Document or in any certificate or
other document made or delivered pursuant thereto, the terms thereof require
that a Person sign or execute the same or refer to the same as having been so
signed or executed, such terms shall mean that the same shall be, or was, duly
signed or executed by (i) in respect of any Person that is a corporation, any
duly authorized officer thereof, and (ii) in respect of any other Person (other
than an individual), any analogous counterpart thereof.
(g) The words "include" and "including", when used in each
Loan Document, shall mean that the same shall be included "without limitation",
unless otherwise specifically provided.
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2. AMOUNT AND TERMS OF LOANS AND LETTERS OF CREDIT
2.1 Loans
(a) Subject to the terms and conditions hereof, each Lender
severally agrees from time to time during the Commitment Period to make
revolving credit loans to one or more of the Core Currency Borrowers in the
respective Applicable Currencies (each a "Revolving Loan" and, as the context
may require, collectively with all other Revolving Loans of such Lender and with
the Revolving Loans of all other Lenders, the "Revolving Loans"), provided,
however, that immediately after giving effect thereto, (i) the Aggregate Credit
Exposure shall not exceed the Aggregate Commitments, and (ii) with respect to
each Lender, (I) the aggregate principal amount of all Revolving Loans then
outstanding from such Lender (determined on the basis of the Dollar Equivalent
for each outstanding Alternate Currency Revolving Loan), plus (II) the aggregate
principal amount of all Individual Currency Loans then outstanding from such
Lender (determined on the basis of the Dollar Equivalent of each such Individual
Currency Loan), plus (III) the SL/LC Credit Exposure of such Lender, shall not
exceed such Lender's Commitment. During the Commitment Period, the Core Currency
Borrowers may borrow, prepay in whole or in part and reborrow Revolving Loans
under the Aggregate Commitments, all in accordance with the terms and conditions
of this Agreement.
(b) Subject to the terms and conditions hereof, Revolving
Loans, (i) if to be made in Dollars (each a "Dollar Revolving Loan" and,
collectively, the "Dollar Revolving Loans"), shall be made to one or more
Domestic Borrowers and shall, at the option of such Domestic Borrowers, be
either ABR Advances or Eurodollar Advances, (ii) if to be made in French Francs,
shall be made to the French Borrower, (iii) if to be made in German Marks, shall
be made to the German Borrower, (iv) if to be made in Japanese Yen, shall be
made to the Japanese Borrower, and (v) if to be made in Sterling Pounds, shall
be made to the Sterling Borrower. The Revolving Loans, together with all accrued
and unpaid interest thereon, shall mature and be due and payable in the
Applicable Currency on the Maturity Date.
(c) Subject to and upon the terms and conditions set forth
herein, the Swing Line Lender in its individual capacity agrees to make at any
time and from time to time during the Swing Line Commitment Period, a loan or
loans (each a "Swing Line Loan" and, collectively, the "Swing Line Loans") to
one or more of the Swing Line Borrowers, which Swing Line Loans (i) shall, at
the option of the applicable Swing Line Borrower, be made and maintained as
Dollar Swing Line Loans or Alternate Currency Swing Line Loans in an Available
Alternate
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Currency, (ii) may be repaid and reborrowed in accordance with the provisions
hereof, (iii) shall not, immediately after giving effect thereto, result in the
Aggregate Credit Exposure exceeding the Aggregate Commitments, and (iv) shall
not, immediately after giving effect thereto, result in the aggregate
outstanding principal amount of all Swing Line Loans (determined on the basis of
the Dollar Equivalent for each outstanding Alternate Currency Swing Line Loan)
exceeding the Swing Line Commitment. The Swing Line Lender shall not be
obligated to make any Swing Line Loans at a time when any Lender (other than the
Swing Line Lender) shall be in default of its obligations under this Agreement
unless the Swing Line Lender has entered into arrangements satisfactory to it
and the Parent to eliminate the Swing Line Lender's risk with respect to each
defaulting Lender's participation in such Swing Line Loans. The Swing Line
Lender will not make a Swing Line Loan (i) if the Administrative Agent or any
Lender by notice to the Swing Line Lender, the Parent and the affected Swing
Line Borrower prior to the time such Swing Line Loan is to be made, shall have
determined that any of the applicable conditions set forth in Sections 5 and 6
have not been satisfied and such conditions remain unsatisfied as of the
requested time of making such Swing Line Loan or (ii) to the extent that
immediately after giving effect thereto the Aggregate Credit Exposure would
exceed the Aggregate Commitments (each a "Non-Swing Loan Event"). Swing Line
Loans shall mature and be due and payable on the earlier of, with respect to
each Swing Line Negotiated Rate Advance and Swing Line Loan maintained as an ABR
Advance, (x) the last day of the Swing Line Interest Period applicable thereto
and (y) the Maturity Date. Subject to the terms and conditions hereof, Swing
Line Loans, (i) if to be made in Dollars (each a "Dollar Swing Line Loan" and,
collectively, the "Dollar Swing Line Loans"), shall be made to one or more
Domestic Borrowers and shall be ABR Advances, (ii) if to be made in French
Francs, shall be made to the French Borrower, (iii) if to be made in German
Marks, shall be made to the German Borrower, (iv) if to be made in Japanese Yen,
shall be made to the Japanese Borrower, and (v) if to be made in Sterling
Pounds, shall be made to the Sterling Borrower.
(d) On any Business Day, the Swing Line Lender may, in its
sole discretion, give notice to the Lenders and the Parent (on behalf of all
Swing Line Borrowers) that its outstanding Swing Line Loans shall be funded with
a borrowing of Revolving Loans (provided that such notice shall be deemed to
have been automatically given upon the occurrence of a Default or an Event of
Default under Sections 9.1(g) or (h)), in which case one or more borrowings of
Revolving Loans constituting ABR Advances (or constituting one or more
Eurodollar Advances specified by the Parent in accordance with Section 2.3(a))
or Alternate Currency Revolving Loans with a one month Euro Interest Period (or
such other Euro Interest Period(s) specified
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by the Parent in accordance with Section 2.3(a)) in the Applicable Currency, as
the case may be (each such borrowing a "Mandatory Borrowing"), shall be made on
the fifth Business Day immediately succeeding such notice by all Lenders pro
rata based on each such Lender's Availability Percentage immediately prior
thereto but after giving effect to any prepayment of Revolving Loans, Individual
Currency Loans, or Swing Line Loans, or any payment of reimbursement obligations
in respect of the Letters of Credit, to be made simultaneously therewith, and
the proceeds thereof shall be applied directly to the Swing Line Lender to repay
the Swing Line Lender for such outstanding Swing Line Loans. Each Lender hereby
irrevocably agrees to make Revolving Loans in Dollars or the Applicable
Currency, as the case may be, pursuant to each Mandatory Borrowing in respect of
any Swing Line Loan in the amount and in the manner specified in the preceding
sentence and on the date specified in writing by the Swing Line Lender
notwithstanding (i) the amount of the Mandatory Borrowing may not comply with
the minimum amount for Loans otherwise required hereunder, (ii) whether any
conditions specified in Sections 5 and 6 are then satisfied, (iii) whether a
Default or an Event of Default then exists, (iv) the date of such Mandatory
Borrowing, (v) the aggregate principal amount of all Loans then outstanding
(determined on the basis of the Dollar Equivalent of each outstanding Alternate
Currency Loan), (vi) the Aggregate Credit Exposure at such time and (vii) the
amount of the Aggregate Commitments at such time, provided that no Non-Swing
Loan Event shall have occurred and be continuing with respect to such Swing Line
Loan. In the event that any Mandatory Borrowing cannot for any reason be made on
the date otherwise required above (including as a result of the commencement of
any proceeding referred to in Sections 9.1(g) or (h)) then each Lender hereby
agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing
would otherwise have occurred, but adjusted for any payments received from the
Parent or the applicable Swing Line Borrower on or after such date and prior to
such purchase) from the Swing Line Lender such assignments in each outstanding
Swing Line Loan as shall be necessary to cause the Lenders to share in each such
Swing Line Loan ratably based upon their respective Availability Percentages at
such time, provided that no Non-Swing Loan Event shall have occurred and be
continuing with respect to such Swing Line Loan, and provided further that all
interest payable on each such Swing Line Loan shall be for the account of the
Swing Line Lender until the date as of which the respective assignment therein
is purchased and, to the extent attributable to the purchased assignment, shall
be payable to the relevant Lender from and after such date. Each Lender agrees
promptly to indemnify the Swing Line Lender for any costs or expenses the Swing
Line Lender may incur as a result of the failure of such Lender to fulfill its
obligations under this Section 2.1(d).
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(e) Subject to the terms and conditions hereof, each Lender in
its individual capacity agrees to make at any time and from time to time during
the Commitment Period a loan or loans under one or more of its Individual
Currency Commitments (each an "Individual Currency Loan" and, as the context may
require, collectively with all other Individual Currency Loans of such Lender
and, as the context may require, with the Individual Currency Loans of all other
Lenders, the "Individual Currency Loans") to one or more of the applicable
Non-Core Currency Borrowers in the respective Applicable Currencies, provided,
however, that immediately after giving effect thereto:
(i) the Aggregate Credit Exposure shall not exceed the
Aggregate Commitments,
(ii) the Aggregate Credit Exposure attributable to all Loans
and Letters of Credit designated in Non-Core Currencies shall not
exceed $60,000,000,
(iii) with respect to any Applicable Currency, (x) the
aggregate principal amount of the Individual Currency Loans of such
Lender designated in such Applicable Currency shall not exceed such
Lender's Individual Currency Commitment for such Applicable Currency
and (y) the sum of the aggregate principal amount of the Individual
Currency Loans of all Lenders in such Applicable Currency and the
Letter of Credit Exposure attributable to all Letters of Credit issued
in such Applicable Currency (determined on the basis of the Dollar
Equivalent of each such Individual Currency Loan and each such Letter
of Credit) shall not exceed $5,000,000, and
(iv) with respect to each Lender (x) the aggregate principal
amount of all Individual Currency Loans then outstanding from such
Lender (determined on the basis of the Dollar Equivalent of each such
Individual Currency Loan), plus (y) the aggregate principal amount of
all Revolving Loans then outstanding from such Lender (determined on
the basis of the Dollar Equivalent for each outstanding Alternate
Currency Revolving Loan), plus (z) the SL/LC Credit Exposure of such
Lender, shall not exceed such Lender's Commitment.
During the Commitment Period, the Non-Core Currency Borrowers may borrow, prepay
in whole or in part and reborrow Individual Currency Loans under the Aggregate
Individual Currency Commitments, all in accordance with the terms and conditions
of this Agreement.
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(f) Subject to the terms and conditions hereof, Individual
Currency Loans, (i) if to be made in Australian Dollars, shall be made to the
Australian Borrower, (ii) if to be made in Canadian Dollars, shall be made to
the Canadian Borrower, (iii) if to be made in Hong Kong Dollars, shall be made
to the Hong Kong Borrower, (iv) if to be made in Italian Lira, shall be made to
the Italian Borrower, (v) if to be made in Korean Won, shall be made to the
Korean Borrower, (vi) if to be made in Malaysian Ringgit, shall be made to the
Malaysian Borrower, (vii) if to be made in Mexican Pesos, shall be made to the
Mexican Borrower, (viii) if to be made in Philippine Pesos, shall be made to the
Philippine Borrower, (ix) if to be made in Singaporean Dollars, shall be made to
the Singaporean Borrower, (x) if to be made in Swiss Francs, shall be made to
the Swiss Borrower, (xi) if to be made in New Taiwan Dollars, shall be made to
the Taiwanese Borrower, and (xii) if to be made in Thai Baht, shall be made to
the Thai Borrower. Each Individual Currency Loan shall be due and payable on the
earlier of (x) the last day of the Individual Currency Interest Period
applicable thereto and (y) the Maturity Date.
2.2 Minimum Amount of Each Borrowing
(a) The aggregate principal amount of each borrowing of
Revolving Loans shall not (x) in the case of Revolving Loans constituting ABR
Advances, be less than $500,000 or such amount and a whole multiple of $100,000
in excess thereof, and (y) in the case of Eurodollar Advances and Core Currency
Euro Advances, be less than $500,000 or such amount and a whole multiple of
$100,000 in excess thereof (or an amount in the applicable Alternate Currency
having a Dollar Equivalent of approximately $500,000 or such amount plus a whole
multiple of approximately $100,000 in excess thereof in the case of a borrowing
of Alternate Currency Revolving Loans), provided, in each case that Mandatory
Borrowings shall be made in the amounts required by Section 2.1(d).
(b) The aggregate principal amount of each borrowing of Swing
Line Loans shall not be less than $100,000 or such amount plus a multiple of
$50,000 in excess thereof (or an amount in the applicable Alternate Currency
having a Dollar Equivalent of approximately $100,000 or such amount plus a whole
multiple of approximately $50,000 in excess thereof in the case of a borrowing
of Alternate Currency Swing Line Loans).
(c) The aggregate principal amount of each borrowing of
Individual Currency Loans shall not be less than an amount in the applicable
Non-Core Alternate Currency having a Dollar Equivalent of approximately $100,000
or such amount
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plus a whole multiple of approximately $50,000 in excess thereof.
(d) At no time shall the aggregate outstanding number (whether
as a result of borrowings or conversions), of all (x) Eurodollar Advances exceed
5, (y) all Core Currency Euro Advances exceed 10 and (z) all Individual Currency
Loans exceed 18.
(e) The aggregate number of all Bid Requests shall not exceed
12 (or such other number as the Parent and the Administrative Agent shall agree
from time to time) in any fiscal quarter.
2.3 Notice of Borrowing
(a) Whenever a Borrower desires to borrow Loans hereunder
(excluding Swing Line Loans, Bid Loans, Negotiated Rate Loans, Individual
Currency Loans and Mandatory Borrowings), the Parent and such Borrower shall
give the Administrative Agent at its office set forth in Section 11.2 (i) no
later than 10:00 A.M. on the date that an ABR Advance is to be made written
notice (or telephonic notice promptly confirmed in writing) of each ABR Advance,
(ii) no later than 10:00 A.M. at least two Business Days' prior written notice
(or telephonic notice promptly confirmed in writing) of each Eurodollar Advance
and (iii) no later than 11:00 A.M. at least three Business Days' prior written
notice (or telephonic notice promptly confirmed in writing) of each Alternate
Currency Loan (other than an Individual Currency Loan) to be made hereunder,
provided that any such notice shall be deemed to have been given on a certain
day only if given before 10:00 A.M. on such day in the case of clauses (i) and
(ii) above and 11:00 A.M. on such day in the case of clause (iii) above. Each
such written notice or written confirmation of telephonic notice (each a "Notice
of Borrowing"), shall be irrevocable and shall be given by the Parent and the
applicable Borrower in the form of Exhibit C, appropriately completed to specify
(A) the name of such Borrower, (B) the date of such borrowing (which shall be a
Business Day), (C) the Applicable Currency for such Loans, (D) the aggregate
principal amount of the Loans to be made (stated in the Applicable Currency),
(E) in the case of Dollar Loans, whether the Loans being made are to be
initially maintained as ABR Advances or Eurodollar Advances and (F) in the case
of all Loans (other than ABR Advances), the initial Interest Period to be
applicable thereto. The Administrative Agent shall promptly give each Lender
notice of such proposed borrowing, of such Lender's proportionate share thereof
and of the other matters required by the immediately preceding sentence to be
specified in the Notice of Borrowing.
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(b) (i) Whenever a Swing Line Borrower desires to borrow Swing
Line Loans hereunder, the Parent and such Swing Line Borrower shall give the
Swing Line Lender a Notice of Borrowing (or telephonic notice promptly confirmed
by delivery of a Notice of Borrowing) at its office set forth in Section 11.2 no
later than (x) 1:00 P.M. on the requested Borrowing Date in respect of a Dollar
Swing Line Loan, (y) 10:00 A.M. at least one Business Day prior to the requested
Borrowing Date in respect of an Alternate Currency Swing Line Loan in Sterling
Pounds and (z) 10:00 A.M. at least two Business Days prior to the requested
Borrowing Date in respect of any other Alternate Currency Swing Line Loan,
provided, that any such notice shall be deemed to have been given on a certain
day only if given before 1:00 P.M. on such day in the case of clause (x) above
or 10:00 A.M. on such day in the case of clause (y) or (z) above. Each such
notice shall be irrevocable and specify in each case (A) the name of such Swing
Line Borrower, (B) the date of such incurrence (which shall be a Business Day)
(C) the Applicable Currency for such Swing Line Loans, (D) the aggregate
principal amount of such Swing Line Loans (stated in the Applicable Currency)
and (E) the requested amount and the requested Swing Line Interest Period and
maturity date with respect to each Swing Line Negotiated Rate Advance and Swing
Line Loan made as an ABR Advance. Upon receipt from the Parent and the
applicable Swing Line Borrower of a Notice of Borrowing which requests one or
more Swing Line Negotiated Rate Advances, the Swing Line Lender shall, following
discussion with the Parent regarding the proposed Swing Line Negotiated Rate for
such Swing Line Negotiated Rate Advance, confirm in writing to the Parent the
applicable Swing Line Negotiated Rate (x) 12:00 Noon one Business Day prior to
the requested Borrowing Date in the case of a Swing Line Negotiated Rate Advance
in Sterling Pounds and (y) 12:00 Noon two Business Days prior to the requested
Borrowing Date in the case of a Swing Line Negotiated Rate Advance in a Core
Currency (other than Dollars and Sterling Pounds).
(ii) Mandatory Borrowings shall be made upon the
notice specified in Section 2.1(d), with each Swing Line Borrower irrevocably
agreeing, by its borrowing of any Swing Line Loan, to the making of the
Mandatory Borrowings as set forth in Section 2.1(d).
(c) Whenever any Non-Core Currency Borrower desires to borrow
Individual Currency Loans hereunder, the Parent and such Non-Core Currency
Borrower shall give the applicable Lenders and the Administrative Agent at their
respective offices set forth in 11.2 a Notice of Borrowing (or telephonic notice
promptly confirmed by delivery of a Notice of Borrowing) no later than 11:00
A.M. at least three Business Days' prior to the requested Borrowing Date in
respect of such Individual Currency Loans, provided that any such notice shall
be
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deemed to have been given on a certain day only if given before 11:00 A.M. on
such day. Upon its receipt of any such Notice of Borrowing, the Administrative
Agent shall promptly confirm in writing its receipt of such Notice of Borrowing
to each applicable Lender; only upon receipt by such Lender of such written
confirmation from the Administrative Agent will such Notice of Borrowing become
effective. Each such notice of the Borrower shall be irrevocable and shall
specify (A) the name of such Non-Core Borrower, (B) the date of such borrowing
(which shall be a Business Day), (C) the Applicable Currency for such Individual
Currency Loans, (D) the aggregate principal amount of such Individual Currency
Loans (stated in the Applicable Currency), and (E) the Interest Period to be
applicable thereto.
(d) Without in any way limiting the obligation of any Borrower
to confirm in writing any telephonic notice of any incurrence of Loans, the
Administrative Agent or the Swing Line Lender (in the case of any borrowing of
Swing Line Loans), as the case may be, may act without liability upon the basis
of telephonic notice of such borrowing, believed by the Administrative Agent or
the Swing Line Lender, as the case may be, in good faith to be from such
Borrower prior to receipt of written confirmation.
2.4 Disbursement of Funds
(a) Revolving Loans and Swing Line Loans. No later than 12:00
Noon (local time in the city in which the proceeds of Loans (other than Bid
Loans, Negotiated Rate Loans and Individual Currency Loans) are to be made
available in accordance with the terms hereof) on the date specified in each
Notice of Borrowing (or no later than 5:00 P.M. (New York City time) on the date
specified for the borrowing of each Dollar Swing Line Loan and each Dollar
Revolving Loan), each Lender will make available its pro rata portion of the
Loans requested to be made on such date (or in the case of Swing Line Loans, the
Swing Line Lender shall make available the full amount thereof), in the
Applicable Currency. All such Loans shall be made available in immediately
available funds at the Applicable Payment Office of the Administrative Agent,
and the Administrative Agent will make available to the applicable Borrower at
such Applicable Payment Office, in the Applicable Currency, and in immediately
available funds, the aggregate of the amounts so made available by the Lenders
prior to 2:30 P.M. (local time in the city in which the proceeds of such Loans
are to be made available in accordance with the terms hereof) on such day (or
5:00 P.M. (New York City time) on such day for Dollar Swing Line Loans and
Dollar Revolving Loans), in each case to the extent of funds actually received
by the Administrative Agent.
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(b) Bid Loans. No later than 12:00 Noon (local time in the
city in which the proceeds of such Bid Loans are to be made available in
accordance with the terms hereof) on the relevant Borrowing Date, each Lender
whose Bid was accepted by the applicable Borrower shall make available the
proceeds of such Lender's Bid Loan(s) (x) in the case of Dollar Bid Loans, to
the Administrative Agent at its Applicable Payment Office and (y) in the case of
Alternate Currency Bid Loans, directly to such Borrower at such Lender's
Applicable Payment Office, in each case in immediately available funds in the
Applicable Currency. Notwithstanding the foregoing, upon the occurrence and
during the continuance of an Event of Default, if directed by the Required
Lenders and with the consent of the Administrative Agent, the proceeds of all
such Bid Loans shall be made available in immediately available funds at the
Applicable Payment Office of the Administrative Agent. All amounts made
available to the Administrative Agent on the applicable Borrowing Date pursuant
to the preceding two sentences will then be made available on such date to the
applicable Borrower by the Administrative Agent at the Applicable Payment Office
of the Administrative Agent to the extent of funds actually received by the
Administrative Agent no later than 2:30 P.M. (local time in the city in which
the proceeds of such loans are to be made available in accordance with the terms
hereof).
(c) Negotiated Rate Loans. No later than 12:00 Noon (local
time in the city in which the proceeds of such Negotiated Rate Loans are to be
made available in accordance with the terms hereof) on the relevant Borrowing
Date for each Negotiated Rate Loan, the applicable Lender shall make available
the proceeds of such Negotiated Rate Loan (x) in the case of Dollar Negotiated
Rate Loans, to the Administrative Agent at its Applicable Payment Office and (y)
in the case of Alternate Currency Negotiated Rate Loans, directly to the
applicable Borrower at such Lender's Applicable Payment Office, in each case in
immediately available funds in the Applicable Currency. Notwithstanding the
foregoing, upon the occurrence and during the continuance of an Event of
Default, if directed by the Required Lenders and with the consent of the
Administrative Agent, the proceeds of all such Negotiated Rate Loans shall be
made available in immediately available funds at the Applicable Payment Office
of the Administrative Agent. All amounts made available to the Administrative
Agent on the applicable Borrowing Date pursuant to the preceding two sentences
will then be made available on such date to the applicable Borrower by the
Administrative Agent at the Applicable Payment Office of the Administrative
Agent to the extent of funds actually received by the Administrative Agent no
later than 2:30 P.M. (local time in the city in which the proceeds of such loans
are to be made available in accordance with the terms hereof).
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(d) Individual Currency Loans. No later than 12:00 Noon (local
time in the city in which the proceeds of such Individual Currency Loans are to
be made available in accordance with the terms hereof) on the relevant Borrowing
Date for each Individual Currency Loan, the applicable Lender shall make
available the proceeds of such Individual Currency Loan directly to the
applicable Borrower at such Lender's Applicable Payment Office, in each case in
immediately available funds in the Applicable Currency. Notwithstanding the
foregoing, upon the occurrence and during the continuance of an Event of
Default, if directed by the Required Lenders and with the consent of the
Administrative Agent, the proceeds of all such Individual Currency Loans shall
be made available in immediately available funds at the Applicable Payment
Office of the Administrative Agent. All amounts made available to the
Administrative Agent on the applicable Borrowing Date pursuant to the preceding
two sentences will then be made available on such date to the applicable
Borrower by the Administrative Agent at the Applicable Payment Office of the
Administrative Agent to the extent of funds actually received by the
Administrative Agent no later than 2:30 P.M. (local time in the city in which
the proceeds of such loans are to be made available in accordance with the terms
hereof).
(e) Failure to Fund. Unless the Administrative Agent shall
have been notified by a Lender prior to the making of any Loans that such Lender
does not intend to make available to the Administrative Agent either (w) such
Lender's portion of the Loans (other than Bid Loans, Individual Currency Loans
and Negotiated Rate Loans) to be made on such date, (x) such Lender's Bid Loan
which is to be made available to the Administrative Agent, (y) such Lender's
Negotiated Rate Loan which is to be made available to the Administrative Agent
or (z) such Lender's Individual Currency Loan which is to be made available to
the Administrative Agent, the Administrative Agent may assume that such Lender
has made such amount available to the Administrative Agent on such Borrowing
Date and the Administrative Agent may, in reliance upon such assumption, make
available to the applicable Borrower a corresponding amount. If such
corresponding amount is not in fact made available to the Administrative Agent
by such Lender, the Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with all costs and
expenses incurred by the Administrative Agent in connection therewith. If such
Lender does not pay such corresponding amount forthwith upon the Administrative
Agent's demand therefor, the Administrative Agent shall promptly notify the
applicable Borrower. The Administrative Agent shall be entitled to recover on
demand from such Lender interest on such corresponding amount in respect of each
day from the date
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such corresponding amount was made available by the Administrative Agent to such
Borrower until the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to the Federal Funds Rate in
effect (or in the case of Alternate Currency Loans, at a rate based upon the
all-in cost of funds for the Applicable Currency) on each such day (as
determined by the Administrative Agent). If such corresponding amount is not
made available by such Lender to the Administrative Agent within one Business
Day after such Borrowing Date, the Administrative Agent shall also be entitled
to receive from the applicable Borrower such amount, together with (w) in the
case of a Loan (other than a Bid Loan, an Individual Currency Loan and a
Negotiated Rate Loan), the rate of interest applicable to such Loan as
determined pursuant to Section 2.8, (x) in the case of Bid Loan, the applicable
interest rate for such Bid Loan (or in the case of Alternate Currency Bid Loans,
at a rate based upon the all-in cost of funds for the Applicable Currency) (y)
in the case of a Negotiated Rate Loan, the applicable interest rate for such
Negotiated Rate Loan (or in the case of Alternate Currency Negotiated Rate
Loans, at a rate based upon the all-in cost of funds for the Applicable
Currency), or (z) in the case of an Individual Currency Loan, the applicable
rate based upon the all-in cost of funds for the Applicable Currency. Nothing in
this Section shall be deemed to relieve any Lender from its obligation to make
Loans hereunder or to prejudice any rights which the applicable Borrower may
have against any Lender as a result of any failure by such Lender to make Loans
hereunder.
(f) Borrower Accounts. Each Loan made to a Borrower shall be
made to its applicable payment account specified on Exhibit T or such other
account which it may from time to time specify by written notice to the
Administrative Agent and the Lenders.
2.5 Payments.
(a) Loans and Fees. Except as otherwise specifically provided
herein, each payment, including each prepayment, of principal and interest on
the Revolving Loans, the Individual Currency Loans, the Negotiated Rate Loans,
the Bid Loans, the Facility Fee and the Letter of Credit Commissions shall be
made by the Borrowers to the Administrative Agent at its Applicable Payment
Office in funds immediately available to the Administrative Agent at such office
by 12:00 Noon (local time in the city in which such Applicable Payment Office is
located) on the due date for such payment, provided, however, that unless an
Event of Default has occurred and is continuing and the Required Lenders have
directed the Administrative Agent and the Borrowers to the contrary, and the
Administrative Agent shall have consented thereto, each payment, including each
prepayment, of principal and interest on the
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Alternate Currency Bid Loans, the Alternate Currency Negotiated Rate Loans, and
the Individual Currency Loans shall be made directly by the applicable Borrower
to the applicable Lender at the Applicable Payment Office of such Lender by
12:00 Noon (local time in the city in which such Lender's Applicable Payment
Office is located). Promptly upon receipt by the Administrative Agent of
payments made to it pursuant to this Section 2.5(a), the Administrative Agent
shall remit such payment in like funds as received to the Lenders (x) (i) in the
case of the Facility Fee, according to the Commitment Percentage of each Lender,
and (ii) in the case of the Letter of Credit Commissions, the average daily
Availability Percentage of each Lender for the period in respect of which such
payment was made and (y) pro rata according to the aggregate outstanding
principal balance of the Revolving Loans, the applicable Individual Currency
Loans, the applicable Negotiated Rate Loans or the applicable Bid Loans, as the
case may be, of each Lender, in the case of principal and interest thereon. The
Parent and each Lender shall promptly notify the Administrative Agent of the
date and amount of each direct payment made by a Borrower to such Lender in
respect of each Alternate Currency Bid Loan, each Alternate Currency Negotiated
Rate Loan and each Individual Currency Loan pursuant to this Section 2.5(a).
(b) Swing Line Loans. Each payment, including each prepayment,
of principal and interest on the Swing Line Loans shall be made by the
applicable Swing Loan Borrower to the Administrative Agent at its Applicable
Payment Office in funds immediately available to the Administrative Agent at
such office by 12:00 Noon (local time in the city in which such Applicable
Payment Office is located) on the due date for such payment and, promptly upon
receipt thereof by the Administrative Agent, shall be remitted by the
Administrative Agent in like funds as received, to the Swing Line Lender.
(c) Late Payments. The failure of any of the Borrowers to make
any such payment by the time required above in this Section 2.5 shall not
constitute a default hereunder, provided that such payment is made on such due
date, but any such payment made after 12:00 Noon (local time in the city in
which such Applicable Payment Office is located) on such due date shall be
deemed to have been made on the next Business Day for the purpose of calculating
interest on amounts outstanding on the applicable Loans.
(d) Alternate Currencies. The principal of and interest on
each Alternate Currency Loan shall be paid only in the Applicable Currency for
such Alternate Currency Loan.
(e) Payments Due on Days Which are Not Business Days. If any
payment hereunder shall be due and payable on a
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day which is not a Business Day, the due date thereof (except as otherwise
provided herein) shall be extended to the next Business Day and with respect to
payments in respect of principal and interest shall be payable at the applicable
rate specified herein during such extension.
2.6 Conversions
(a) Each applicable Borrower shall have the option to convert
on any Business Day all or a portion of the outstanding principal amount of ABR
Advances (other than ABR Advances constituting Swing Line Loans), Eurodollar
Advances or Core Currency Euro Advances into (i) in the case of an ABR Advance,
one or more Eurodollar Advances, (ii) in the case of a Eurodollar Advance, one
or more ABR Advances or one or more new Eurodollar Advances and (iii) in the
case of a Core Currency Euro Advance, one or more new Core Currency Euro
Advances of the same Core Currency, provided that (A) except as otherwise
provided in Section 2.14(b), Eurodollar Advances may be converted into ABR
Advances or new Eurodollar Advances only on the last day of the Interest Period
applicable to the Eurodollar Advances being converted, (B) except as otherwise
provided in Section 2.14(b), Core Currency Euro Advances may be converted into
new Core Currency Euro Advances only on the last day of the Interest Period
applicable to the Core Currency Euro Advances being converted, (C) the
outstanding principal amount of the new Eurodollar Advances having the same
Interest Period or the new Core Currency Euro Advances having the same Interest
Period shall be in an amount equal to $500,000 or such amount plus a whole
multiple of $100,000 in excess thereof (or an amount in the applicable Alternate
Currency having a Dollar Equivalent of approximately $500,000 or such amount
plus a whole multiple of approximately $100,000 in excess thereof in the case of
such Core Currency Euro Advances), (D) the outstanding principal amount of the
new ABR Advances shall be in an amount equal to $500,000 or such amount plus a
whole multiple of $100,000 in excess thereof, (E) ABR Advances or Eurodollar
Advances may not be converted into Eurodollar Advances if any Default or Event
of Default is in existence on the date of the conversion and the Administrative
Agent or the Required Lenders have determined that such a conversion is not
appropriate, and (F) no conversion pursuant to this Section shall result in a
greater number of Eurodollar Advances or Core Currency Euro Advances than is
permitted under Section 2.2(d).
(b) Each such conversion shall be effected by the applicable
Borrower by giving the Administrative Agent, at its office set forth in Section
11.2 prior to 10:00 A.M. in the case of Dollar Loans, at least two Business Days
prior written notice and, in the case of Core Currency Euro Advances, at least
three Business Days prior written notice (each a "Notice
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of Conversion"), specifying the ABR Advances, the Eurodollar Advances or the
Core Currency Euro Advances to be so converted, the date of such conversion
(which shall be a Business Day) and, if to be converted into Eurodollar Advances
or Core Currency Euro Advances, the Interest Period to be applicable thereto.
The Administrative Agent shall give each Lender prompt notice of any such
proposed conversion affecting any of its Loans.
(c) If with respect to the expiration of an existing Interest
Period for a Eurodollar Advance or a Core Currency Euro Advance the applicable
Borrower has failed to deliver a Notice of Conversion with respect thereto, such
Borrower shall be deemed to have elected (i) if a Eurodollar Advance, to convert
such Eurodollar Advance to an ABR Advance and (ii) if a Core Currency Euro
Advance, to convert such Core Currency Euro Advance to a new Core Currency Euro
Advance with a one month Interest Period, in either case effective as of the
expiration date of such existing Interest Period.
2.7 Pro Rata Borrowings; Special Procedures and Assumptions
(a) Pro Rata Borrowings. In connection with each borrowing of
Revolving Loans, each Lender shall make available an amount equal to the
aggregate amount of such Revolving Loans, multiplied by such Lender's
Availability Percentage calculated in accordance with Section 2.7(b). It is
understood that no Lender shall be responsible for any default by any other
Lender of its obligation to make Loans hereunder and that each Lender shall be
obligated to make the Loans provided to be made by it hereunder, regardless of
the failure of any other Lender to make its Loans hereunder.
(b) Special Procedures and Assumptions. Notwithstanding
anything to the contrary contained herein:
(i) all Notices of Borrowing and all Letter of Credit Requests
to be delivered to the Administrative Agent on the same day shall be
delivered to the Administrative Agent at the same time;
(ii) with respect to any Loans (other than a Bid Loan or a
Negotiated Rate Loan) or Letters of Credit requested pursuant to one or
more Notices of Borrowing or Letter of Credit Requests delivered to the
Agent on the same day, during the period commencing on the date of such
delivery to the Administrative Agent and ending on the Borrowing Date
of the last such Loan or the date of issuance of the last such Letter
of Credit to be made or issued pursuant to such Notices of Borrowing or
Letter of Credit Requests (the "Borrowing/Issuance Period"):
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(A) no additional Loan (other than a Bid Loan or a
Negotiated Rate Loan) shall be requested to be made and no
additional Letter of Credit shall be requested to be issued;
(B) no Loan (other than a Bid Loan or a Negotiated
Rate Loan) shall be voluntarily prepaid; and
(C) neither the Aggregate Commitments, the Swing Line
Commitment, any Individual Currency Commitment of any Lender,
nor the Letter of Credit Commitment shall be voluntarily
reduced;
(iii) for purposes of calculating the Availability Percentage
for any Revolving Loans requested to be made during any
Borrowing/Issuance Period:
(A) any payment of any Revolving Loan, Individual
Currency Loan, Swing Line Loan or reimbursement obligation in
respect of a Letter of Credit which is scheduled to be made
during such Borrowing/Issuance Period shall be deemed to have
been made immediately prior to the commencement of such
Borrowing/Issuance Period;
(B) any Letter of Credit which is scheduled to expire
or otherwise terminate during such Borrowing/Issuance Period
shall be deemed to have expired or otherwise terminated
immediately prior to the commencement of such
Borrowing/Issuance Period;
(C) any Individual Currency Loans which are to be
made during such Borrowing/Issuance Period shall be deemed to
have been made immediately prior to the making of any
Revolving Loans or Swing Line Loans, or the issuance of any
Letters of Credit, during such Borrowing/Issuance Period; and
(D) any Revolving Loans, Swing Line Loans and Letters
of Credit which are to be made or issued during such
Borrowing/Issuance Period shall be deemed to have been made
and issued simultaneously; and
(iv) the Availability Percentage during any Borrowing/Issuance
Period shall be determined by the Administrative Agent in accordance
with this Section 2.7(b) on the first day of such Borrowing/Issuance
Period and shall continue in effect through the last day of such
Borrowing/Issuance Period.
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2.8 Interest
(a) Each Domestic Borrower agrees to pay interest in respect
of the unpaid principal amount of each ABR Advance made to such Domestic
Borrower from the date thereof until the conversion or maturity (whether by
acceleration or otherwise) of such ABR Advance, at a rate per annum which shall
be equal to the sum of the Applicable Margin plus the Alternate Base Rate in
effect from time to time.
(b) Each Domestic Borrower agrees to pay interest in respect
of the unpaid principal amount of each Eurodollar Advance made to such Domestic
Borrower from the date thereof until the conversion or maturity (whether by
acceleration or otherwise) of such Eurodollar Advance, at a rate per annum which
shall, during each Interest Period applicable thereto, be equal to the sum of
the Applicable Margin plus the Eurodollar Rate for such Interest Period.
(c) Each Borrower agrees to pay interest in respect of the
unpaid principal amount of each Core Currency Euro Advance made to such Borrower
from the date thereof until the conversion or maturity (whether by acceleration
or otherwise) of such Core Currency Euro Advance at a rate per annum which
shall, during each Interest Period applicable thereto, be equal to the sum of
the Applicable Margin plus the Core Currency Euro Rate for such Interest Period.
(d) Each Non-Core Currency Borrower agrees to pay interest in
respect of the unpaid principal amount of each Individual Currency Loan made to
such Non-Core Currency Borrower from the date thereof until the maturity
(whether by acceleration or otherwise) of such Individual Currency Loan at a
rate per annum which shall, during the Interest Period applicable thereto, be
equal to the sum of the Applicable Margin plus the Individual Currency Rate for
such Interest Period.
(e) Each Swing Line Borrower agrees to pay interest in respect
of the unpaid principal amount of each Swing Line Negotiated Rate Advance made
to such Swing Line Borrower from the date thereof until the maturity (whether by
acceleration or otherwise) of such Swing Line Negotiated Rate Advance at a rate
per annum which shall, during the Interest Period applicable thereto, be equal
to the Swing Line Negotiated Rate for such Interest Period.
(f) Each Borrower agrees to pay interest in respect of the
unpaid principal amount of each Bid Loan made to such Borrower from the date
thereof until the maturity (whether by acceleration or otherwise) of such Bid
Loan at a rate per annum which shall, during the Interest Period applicable
thereto, be equal to the Bid Rate for such Interest Period.
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(g) Each Borrower agrees to pay interest in respect of the
unpaid principal amount of each Negotiated Rate Loan made to such Borrower from
the date thereof until the maturity (whether by acceleration or otherwise) of
such Negotiated Rate Loan at a rate per annum which shall, during the Interest
Period applicable thereto, be equal to the Negotiated Rate for such Interest
Period.
(h) Overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan shall, in each case, bear interest at a
rate per annum equal to the rate which is 2% in excess of the rate applicable to
such Loan (or in the case of a Dollar Bid Loan or a Dollar Negotiated Rate Loan,
2% in excess of the Alternate Base Rate, or in the case of an Alternate Currency
Bid Loan, an Alternate Currency Swing Line Loan, an Alternate Currency
Negotiated Rate Loan, an Individual Currency Loan or a Letter of Credit
designated in an Alternate Currency, 2% in excess of the all-in rate determined
by the applicable Lender, Issuing Bank or Swing Line Lender, as the case may be,
as its cost of funds in the Applicable Currency or, in the case of such Letter
of Credit, the applicable Currency) until paid in full (whether before of after
the entry of a judgment thereon). If all or any portion of any reimbursement
obligation in respect of a Letter of Credit designated in Dollars shall not be
paid when due (whether at the stated maturity thereof, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum equal to
the Alternate Base Rate plus 2%, from the date of such nonpayment until paid in
full (whether before or after the entry of a judgment thereon). Any other
overdue amount payable hereunder shall, to the extent permitted by law, bear
interest at a rate per annum equal to the Alternate Base Rate plus 2% until paid
in full (whether before or after the entry of a judgment thereon). All such
interest shall be payable on demand.
(i) Accrued (and theretofore unpaid) interest shall be payable
(i) in respect of each ABR Advance constituting a Revolving Loan, quarterly in
arrears on each Quarterly Payment Date, (ii) in respect of each Eurodollar
Advance and each Core Currency Euro Advance, on the last day of each Interest
Period applicable thereto and, in the case of an Interest Period in excess of
three months, on each date occurring at three month intervals after the first
day of such Interest Period, (iii) in respect of each Bid Loan, Negotiated Rate
Loan, Individual Currency Loan, Swing Line Negotiated Rate Advance and ABR
Advance made as a Swing Loan, on the last day of the Interest Period applicable
thereto, and (iv) in respect of each Loan, on any repayment or prepayment (on
the amount repaid or prepaid), at maturity (whether by acceleration or
otherwise) and, after such maturity, on demand.
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(j) The Administrative Agent shall determine the respective
interest rate for each Interest Period applicable to a Eurodollar Advance or
Core Currency Euro Advance for which such determination is being made and shall
promptly notify the applicable Borrower and the Lenders thereof.
(k) Interest on all Loans shall be calculated on the basis of
a 360 day year for the actual number of days elapsed except that interest on ABR
Advances to the extent based on the BNY Rate, interest on Core Currency Euro
Advances in Sterling Pounds and interest on Individual Currency Loans designated
in Australian Dollars, Canadian Dollars, Italian Lira and New Taiwan Dollars
shall be calculated on the basis of a 365 or 366-day year (as the case may be).
Any change in the interest rate on the Loans resulting from a change in the
Alternate Base Rate or the Federal Funds Rate shall become effective as of the
opening of business on the day on which such change shall become effective. The
Administrative Agent shall, as soon as practicable, notify the Parent (on behalf
of all Borrowers) and the Lenders of the effective date and the amount of each
change in the BNY Rate, but any failure so to notify shall not in any manner
affect the obligation of the Borrowers to pay interest on the Loans in the
amounts and on the dates required. Each determination of (i) the Alternate Base
Rate, a Eurodollar Rate or a Core Currency Euro Rate by the Administrative
Agent, (ii) an Individual Currency Rate by the applicable Lender, and (iii) an
all-in cost of funds rate or any rate based thereon by the Administrative Agent
or the Reference Lender, or such applicable Lender, as the case may be, in each
case pursuant to this Agreement shall be conclusive and binding on all parties
hereto absent manifest error. The Borrowers acknowledge that to the extent
interest payable on ABR Advances is based on the BNY Rate, such Rate is only one
of the bases for computing interest on loans made by the Lenders, and by basing
interest payable on ABR Advances on the BNY Rate, the Lenders have not committed
to charge, and the Borrowers have not in any way bargained for, interest based
on a lower or the lowest rate at which the Lenders may now or in the future make
loans to other borrowers.
(l) Decreases in the Applicable Margin resulting from a change
in Pricing Levels I, II, III, IV, V and/or VI as a result of a change in the
Rating of the Parent by Moody's or S&P shall become effective upon the delivery
by the Parent to the Administrative Agent of a certificate of a Responsible
Officer certifying as to a change in the Rating of the Parent by Moody's or
S&P. Increases in the Applicable Margin as a result of a change in the Rating
of the Parent by Moody's or S&P shall become effective on the effective date of
any downgrade in the Rating of the Parent by Moody's or S&P.
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At any time when there shall be no Rating of the Parent by Moody's or S&P,
changes in the Applicable Margin resulting from a change in Pricing Levels I,
II, III, IV and/or V shall be based on the Fixed Charge Coverage Ratio set forth
in the most recently delivered Compliance Certificate provided by the Parent
pursuant to Section 7.7(f). Changes in the Applicable Margin resulting from a
change in Pricing Levels I, II, III, IV and/or V shall become effective three
Business days following the delivery of a new Compliance Certificate pursuant to
Section 7.7(f) evidencing a change in the Fixed Charge Coverage Ratio. If the
Parent shall fail to deliver a Compliance Certificate within 45 days after the
end of any of the first three fiscal quarters (or within 90 days after the end
of the last fiscal quarter), as required by Section 7.7(f), the Fixed Charge
Coverage Ratio from and including the 46th day (or 91st day, in the case of the
last quarter) after the end of such fiscal quarter to the third Business Day
following the delivery by the Parent to the Administrative Agent of a Compliance
Certificate shall be conclusively presumed to be less than 1.75:1.00.
(m) If the Reference Lender shall for any reason no longer be
a Lender, it shall thereupon cease to be the Reference Lender. The
Administrative Agent shall, by notice to the Borrowers and the Lenders,
designate another Lender as the Reference Lender so that there shall at all
times be at least one Reference Lender. The Reference Lender shall use its best
efforts to furnish quotations of rates to the Administrative Agent on a timely
basis as contemplated hereby.
2.9 Termination or Reduction of Aggregate Commitments, Swing Line
Commitment, Individual Currency Commitments and Letter of Credit Commitment
(a) Voluntary Reductions. The Parent shall have the right,
upon at least three Business Days' prior written notice to the Administrative
Agent, at any time to terminate the Aggregate Commitments or the Letter of
Credit Commitment or from time to time to reduce permanently the Aggregate
Commitments or the Letter of Credit Commitment, provided, however, that any such
reduction shall be in the amount of $10,000,000 or such amount plus a whole
multiple of $1,000,000 in excess thereof.
(b) Swing Line Commitment. The Parent shall have the right,
upon at least three Business Days' prior written notice to the Administrative
Agent and the Swing Line Lender, at any time, to reduce permanently the Swing
Line Commitment in whole at any time, or in part from time to time, to an amount
not less than the aggregate principal balance of the Swing Line Loans then
outstanding (after giving effect to any
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contemporaneous prepayment thereof) without premium or penalty, provided that
each partial reduction of the Swing Line Commitment shall be in an amount equal
to $10,000,000 or such amount plus a whole multiple of $1,000,000 in excess
thereof.
(c) Individual Currency Commitments. The Parent shall have the
right, upon at least three Business Days' prior written notice to the
Administrative Agent and the applicable Lender, at any time, to reduce
permanently any Individual Currency Commitment of such Lender in whole at any
time, or in part from time to time, to an amount not less than the aggregate
principal balance of the Individual Currency Loans of such Lender then
outstanding under such Individual Currency Commitment (after giving effect to
any contemporaneous prepayment thereof) without premium or penalty provided that
each partial reduction of such Individual Currency Commitment shall be in an
amount in the applicable Non-Core Currency having a Dollar Equivalent of
approximately $1,000,000 or such amount plus a whole multiple of approximately
$1,000,000 in excess thereof.
(d) In General. Each reduction of the Aggregate Commitments
shall be applied pro rata according to the Commitment Percentage of each Lender,
and each reduction in the Letter of Credit Commitment shall be applied pro rata
according to the Availability Percentage of each Lender at the time of such
reduction. Simultaneously with each reduction of the Aggregate Commitments under
this Section, the Borrowers shall pay the Facility Fee accrued on the amount by
which the Aggregate Commitments have been reduced. Simultaneously with each
reduction of the Aggregate Commitments, the Swing Line Commitment and the
Individual Currency Commitments, the Borrowers shall prepay the Loans as
required by Section 2.10. The Aggregate Commitments shall not be reduced below
an amount equal to the Aggregate Credit Exposure (after giving effect to any
prepayment of the Loans made simultaneously with such reduction of the Aggregate
Commitments). The Aggregate Commitments shall not be reduced to the extent,
immediately after giving effect thereto, the Commitment of any Lender would
exceed the sum of (I) the aggregate principal amount of all Revolving Loans then
outstanding from such Lender (determined on the basis of the Dollar Equivalent
for each outstanding Alternate Currency Revolving Loan), plus (II) the aggregate
principal amount of all Individual Currency Loans then outstanding from such
Lender (determined on the basis of the Dollar Equivalent of each such Individual
Currency Loan), plus (III) the SL/LC Credit Exposure of such Lender. The Letter
of Credit Commitment shall not be reduced below an amount equal to the Letter of
Credit Exposure.
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2.10 Prepayments of the Loans
(a) Voluntary Prepayments. Each Borrower may, at its option,
prepay the Loans made to such Borrower without premium or penalty, (x) in the
case of Revolving Loans and Swing Loans, in full at any time or in part from
time to time, and (y) in the case of Negotiated Rate Loans, Bid Loans and
Individual Currency Loans, in full at any time, in each case by notifying the
Administrative Agent in writing at least three Business Days prior to the
proposed prepayment date, identifying the Loans to be prepaid as Revolving
Loans, Swing Line Loans, Negotiated Rate Loans, Bid Loans or Individual Currency
Loans and specifying whether the Loans to be prepaid consist of ABR Advances,
Eurodollar Advances, Core Currency Euro Advances or Swing Line Negotiated Rate
Advances, or a combination thereof, the amount to be prepaid and the date of
prepayment. Such notice shall be irrevocable and the amount specified in such
notice shall be due and payable on the date specified, together with accrued
interest to the date of such payment on the amount prepaid. Upon receipt of such
notice, the Administrative Agent shall promptly notify each Lender thereof in
the case of Revolving Loans, the Swing Line Lender in the case of Swing Loans
and the applicable Lender or Lenders in the case of Bid Loans, Negotiated Rate
Loans and Individual Currency Loans. Each partial prepayment of ABR Advances
pursuant to this subsection shall be in an aggregate principal amount of
$100,000 or such amount plus a whole multiple of $50,000 in excess thereof, or,
if less, the outstanding principal balance of the ABR Advances. After giving
effect to any partial prepayment with respect to Eurodollar Advances or Core
Currency Euro Advances which were made (whether as the result of a borrowing or
a conversion) on the same date and which had the same Interest Period, the
outstanding principal amount of such Eurodollar Advances or Core Currency Euro
Advances shall equal (subject to Section 2.6) $500,000 or such amount plus a
whole multiple of $100,000 in excess thereof (or the Alternate Currency
Equivalent of approximately $500,000 or such amount plus a whole multiple of
approximately $100,000 in excess thereof in the case of a prepayment of Core
Currency Euro Advances).
(b) Mandatory Prepayments of Loans.
(i) Subject to clause (ii) below with respect to
Swing Line Loans and clause (iii) below with respect to the Individual Currency
Loans of each Lender, simultaneously with each reduction of the Aggregate
Commitments under Section 2.9, the Borrowers shall prepay the Loans by the
amount, if any, by which the Aggregate Credit Exposure exceeds the amount of the
Aggregate Commitments as so reduced.
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(ii) Simultaneously with each reduction of the
Swing Line Commitment under Section 2.9, the Swing Line Borrowers shall prepay
the Swing Line Loans by the amount, if any, by which the outstanding principal
balance of the Swing Line Loans (determined on the basis of the Dollar
Equivalent for each outstanding Alternate Currency Swing Line Loan) exceeds the
amount of the Swing Line Commitment as so reduced.
(iii) Simultaneously with each reduction of the
Individual Currency Commitment of any Lender under Section 2.9, the applicable
Non-Core Currency Borrower shall prepay the Individual Currency Loans made by
such Lender to such Non-Core Currency Borrower under such Individual Currency
Commitment by the amount, if any, by which the outstanding principal balance of
such Individual Currency Loans exceeds the amount of such Individual Currency
Commitment as so reduced.
(iv) If on any date that the Dollar Equivalent is
required to be calculated pursuant to Section 11.6 the Aggregate Credit Exposure
shall exceed the Aggregate Commitments, the Borrowers shall prepay the Loans in
an aggregate principal amount such that immediately after giving effect thereto,
the Aggregate Credit Exposure shall not exceed the Aggregate Commitments.
(v) If on any date that the Dollar Equivalent is
required to be calculated pursuant to Section 11.6 the Aggregate Credit Exposure
attributable to all Loans and Letters of Credit designated in Non-Core
Currencies shall exceed $60,000,000, the Borrowers shall prepay such Loans in an
aggregate principal amount such that immediately after giving effect thereto,
the Aggregate Credit Exposure attributable to all Loans and Letters of Credit
designated in Non-Core Currencies shall not exceed $60,000,000.
(c) In General. If any prepayment is made in respect of any
Eurodollar Advance, Core Currency Euro Advance, Swing Line Negotiated Rate
Advance, Individual Currency Loan, Negotiated Rate Loan or Bid Loan, in whole or
in part, prior to the last day of the Interest Period applicable thereto, the
applicable Borrower agrees to indemnify the Lenders in accordance with Section
2.15.
2.11 Bid Loans; Procedure
(a) Each Borrower may make Bid Requests by 12:00 Noon (i) at
least two Business Days prior to the proposed Borrowing Date for one or more Bid
Loans. Each Bid Request shall be given to the Administrative Agent (which shall
promptly on the same day give notice thereof to each Lender by facsimile of an
Invitation to Bid if the Bid Request is not rejected pursuant to this Section),
shall be by telephone (confirmed in
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writing promptly on the same day by the delivery of a Bid Request signed by the
applicable Borrower), and shall specify (i) the proposed Borrowing Date, which
shall be a Business Day, (ii) the aggregate amount of the requested Bid Loans
(the "Maximum Request") which shall not (A) exceed an amount which, on the
proposed Borrowing Date, and after giving effect to the proposed Bid Loans,
would result in (x) the Aggregate Credit Exposure exceeding the Aggregate
Commitments or (y) the Aggregate Credit Exposure attributable to all Loans and
Letters of Credit designated in Non-Core Currencies exceeding $60,000,000, or
(B) with respect to each Bid Loan be less than $500,000 or such amount plus a
whole multiple of $100,000 in excess thereof (or approximately the Dollar
Equivalent thereof in the case of Alternate Currency Bid Loans), (iii) the Bid
Interest Period(s) (up to three Bid Interest Periods may be requested pursuant
to each Bid Request) therefor and the last day of each such Interest Period and
(iv) the Applicable Currency for each Bid Loan. A Bid Request that does not
conform substantially to the form of Exhibit F shall be rejected, and the
Administrative Agent shall promptly notify the applicable Borrower of such
rejection.
(b) Each Lender in its sole discretion may (but is not
obligated to) submit one or more Bids to the Administrative Agent and the Parent
not later than 9:30 A.M. (i) one Business Day prior to the proposed Borrowing
Date specified in such Bid Request in the case of a Bid Loan (such 9:30 A.M.
time on such Business Days each being herein called a "Bid Submission
Deadline"), by fax or in writing, and thereby irrevocably offer to make all or
any part (any such part referred to as a "Portion") of any Bid Loan described in
the relevant Bid Request, at a rate of interest per annum (each a "Bid Rate")
specified therein, in an aggregate principal amount of not less than $500,000 or
such amount plus a whole multiple of $100,000 in excess thereof (or
approximately the Dollar Equivalent thereof in the case of Alternate Currency
Bid Loans), provided that Bids submitted by the Administrative Agent may only be
submitted if the Administrative Agent notifies the Parent and the applicable
Borrower of the terms of its Bid not later than fifteen minutes prior to the Bid
Submission Deadline. Multiple Bids may be delivered to and by the Administrative
Agent. The aggregate Portions of Bid Loans for any or all Interest Periods
offered by each Lender in its Bid may exceed the Maximum Request contained in
the relevant Bid Request, provided that each Bid shall set forth the maximum
aggregate amount of the Bid Loans offered thereby which the applicable Borrower
may accept (the "Maximum Offer"), which Maximum Offer shall not exceed the
Maximum Request.
(c) The Administrative Agent shall promptly give notice by
telephone (promptly confirmed in writing) to the Parent and the applicable
Borrower of all Bids received by the
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Administrative Agent which comply in all material respects with this Section
prior to the Bid Submission Deadline. The applicable Borrower shall, in its sole
discretion but subject to Section 2.11(d), irrevocably accept or reject any such
Bid (or any Portion thereof) not later than 10:30 A.M. one Business Day prior to
the proposed Borrowing Date by notice to the Administrative Agent by telephone
(confirmed in writing in the form of a Bid Accept/Reject Letter promptly the
same day). Promptly on the day of the Bid Submission Deadline, the
Administrative Agent will give notice in the form of a Bid Loan Confirmation to
each Lender that submitted a Bid as to the extent, if any, that such Lender's
Bid shall have been accepted. If the Administrative Agent fails to receive
notice from the applicable Borrower of its acceptance or rejection of any Bids
at or prior to 10:30 A.M. on the applicable day, all such Bids shall be deemed
to have been rejected by the applicable Borrower, and the Administrative Agent
will give to each Lender which submitted a Bid notice of such rejection by
telephone on such day.
(d) If the applicable Borrower accepts a Portion of a proposed
Bid Loan for a single Interest Period at the Bid Rate provided therefor in a
Lender's Bid, such Portion shall be in a principal amount of $500,000 or such
amount plus a whole multiple of $100,000 in excess thereof (or approximately the
Dollar Equivalent thereof in the case of Alternate Currency Bid Loans), subject
to such lesser allocation as may be made pursuant to the provisions of this
subsection. The aggregate principal amount of Bid Loans accepted by the
applicable Borrower following Bids responding to a Bid Request shall not exceed
the Maximum Request. The aggregate principal amount of Bid Loans accepted by the
applicable Borrower pursuant to a Lender's Bid shall not exceed the Maximum
Offer therein contained. If the applicable Borrower accepts any Bid Loans or
Portion offered in any Bid, the applicable Borrower must accept Bids (and Bid
Loans and Portions thereby offered) based exclusively upon the successively
lowest Bid Rates within each Interest Period and no other criteria. If two or
more Lenders submit Bids with identical Bid Rates for the same Bid Interest
Period and the applicable Borrower accepts any thereof, the applicable Borrower
shall, subject to the first three sentences of this subsection, accept all such
Bids as nearly as possible in proportion to the amounts of such Lender's
respective Bids with identical Bid Rates for such Bid Interest Period, provided,
that if the amount of Bid Loans to be so allocated is not sufficient to enable
each such Lender to make such Bid Loan (or Portions thereof) in an aggregate
principal amount of $500,000 or such amount plus a whole multiple of $100,000 in
excess thereof (or the Dollar Equivalent thereof in the case of Alternate
Currency Bid Loans), the applicable Borrower shall round the Bid Loans (or
Portions thereof) allocated to such Lender or Lenders as the applicable
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Borrower shall select as necessary to a minimum of $500,000 or such amount plus
a whole multiple of $100,000 in excess thereof (or the Dollar Equivalent thereof
in the case of Alternate Currency Bid Loans).
(e) Each Lender which makes a Bid Loan shall notify the
Administrative Agent promptly of the making thereof (unless the proceeds of such
Bid Loan were advanced to the Administrative Agent).
(f) All notices required by this Section shall be given in
accordance with Section 11.2.
(g) Each Bid Loan shall be due and payable on the earlier of
(x) the last day of the Interest Period applicable thereto and (y) the Maturity
Date.
2.12 Negotiated Rate Loans; Procedure
(a) If at any time any Borrower, any Lender and the Parent
shall have agreed that such Lender shall make a Negotiated Rate Loan to such
Borrower, such Borrower and the Parent shall promptly execute and deliver to
such Lender a Negotiated Rate Confirmation Request, specifying (i) the proposed
Borrowing Date, which shall be a Business Day, (ii) the aggregate amount of the
requested Negotiated Rate Loan which shall not (A) exceed an amount which, on
the proposed Borrowing Date, and after giving effect to the proposed Negotiated
Rate Loan, would result in (x) the Aggregate Credit Exposure exceeding the
Aggregate Commitments or (y) the Aggregate Credit Exposure attributable to all
Loans and Letters of Credit designated in Non-Core Currencies exceeding
$60,000,000, or (B) be less than $100,000 or such amount plus a whole multiple
of $50,000 in excess thereof (or approximately the Dollar Equivalent thereof in
the case of Alternate Currency Negotiated Rate Loans), (iii) the applicable rate
of interest therefor (the "Negotiated Rate"), (iv) the Negotiated Rate Interest
Period therefor and the last day of such Negotiated Rate Interest Period, and
(v) the Applicable Currency therefor. If such Negotiated Rate Confirmation
Request is in all respects satisfactory to such Lender, it shall promptly sign a
copy thereof and deliver a copy thereof to such Borrower, the Parent and the
Administrative Agent (the "Negotiated Rate Confirmation").
(b) Each Lender which makes a Negotiated Rate Loan shall
notify the Administrative Agent promptly of the making thereof (unless the
proceeds of such Negotiated Rate Loan were advanced to the Administrative
Agent).
(c) All notices required by this Section shall be given in
accordance with Section 11.2.
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(d) Each Negotiated Rate Loan shall be due and payable on the
earlier of (x) the last day of the Interest Period applicable thereto and (y)
the Maturity Date.
2.13 Taxes
(a) Payments to Be Free and Clear. All payments by each
Borrower under the Loan Documents shall be made free and clear of, and without
any deduction or withholding for, any Indemnified Tax. If any Credit Party or
any other Person is required by any law, rule, regulation, order, directive,
treaty or guideline to make any deduction or withholding (which deduction or
withholding would constitute an Indemnified Tax) from any amount required to be
paid by any Credit Party to or on behalf of any Indemnified Tax Person under any
Loan Document (each a "Required Payment"):
(i) such Credit Party shall notify the Administrative
Agent and such Indemnified Tax Person of any such requirement or any change in
any such requirement as soon as such Credit Party becomes aware of it;
(ii) such Credit Party shall pay such Indemnified Tax
before the date on which penalties attach thereto, such payment to be made (if
the liability to pay is imposed on such Credit Party) for its own account or (if
the liability is imposed on such Indemnified Tax Person) on behalf of and in the
name of such Indemnified Tax Person;
(iii) such Credit Party shall pay to such Indemnified
Tax Person an additional amount such that such Indemnified Tax Person shall
receive on the due date therefor an amount equal to the Required Payment had no
such deduction or withholding been required; and
(iv) such Credit Party shall, within 30 days after
paying such Indemnified Tax, deliver to the Administrative Agent and the
applicable Indemnified Tax Person satisfactory evidence of such payment to the
relevant Governmental Authority.
(b) Other Indemnified Taxes. If an Indemnified Tax Person or
any affiliate thereof is required by any law, rule, regulation, order,
directive, treaty or guideline to pay any Indemnified Tax (excluding an
Indemnified Tax which is subject to Section 2.13(a)) with respect to any sum
paid or payable by any Credit Party to such Indemnified Tax Person under the
Loan Documents:
(i) such Indemnified Tax Person shall notify such
Credit Party of any such payment of Indemnified Tax; and
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(ii) such Credit Party shall pay to such Indemnified
Tax Person the amount of such Indemnified Tax within 5 days of such notice.
(c) Tax on Indemnified Taxes. If any amounts are payable by a
Credit Party in respect of Indemnified Taxes pursuant to Section 2.13(a) or (b),
such Credit Party agrees to pay to the applicable Indemnified Tax Person, within
5 Business Days of written request therefor, an amount equal to all Taxes
imposed with respect to such amounts as such Indemnified Tax Person shall
determine in good faith are payable by such Indemnified Tax Person or any
affiliate thereof in respect of such amounts and in respect of any amounts paid
to or on behalf of such Indemnified Tax Person pursuant to this clause (c).
(d) Exception for Existing Taxes. No amount shall be required
to be paid to any Indemnified Tax Person under Section 2.13(a)(iii) or (b) with
respect to an Indemnified Tax to the extent that such Indemnified Tax would have
been required to have been paid under any law, rule, regulation, order,
directive, treaty or guideline in effect on the Effective Date.
(e) U.S. Tax Certificates. Each Lender that is organized under
the laws of any jurisdiction other than the United States or any political
subdivision thereof shall deliver to the Administrative Agent for transmission
to the Parent, on or prior to the first Borrowing Date (in the case of each
Lender listed on the signature pages hereof) or on the effective date of the
Assignment and Acceptance Agreement or master assignment and acceptance
agreement pursuant to which it becomes a Lender in accordance with Section 11.1
or 11.7, (in the case of each other Lender), and at such other times as may be
necessary in the determination of the Parent, any Credit Party or the
Administrative Agent (each in the reasonable exercise of its discretion), such
certificates, documents or other evidence, properly completed and duly executed
by such Lender (including, without limitation, Internal Revenue Service Form
1001 or Form 4224) to establish that such Lender is not subject to deduction or
withholding of United States federal income tax under Section 1441 or 1442 of
the Code or otherwise (or under any comparable provisions of any successor
statute) with respect to any payments to such Lender of principal, interest,
fees or other amounts payable under the Loan Documents. No Credit Party shall be
required to pay any additional amount to any such Lender under Section
2.13(a)(iii) if such Lender shall have failed to satisfy the requirements of the
immediately preceding sentence; provided that if such Lender shall have
satisfied such requirements on the first Borrowing Date (in the case of each
Lender listed on the signature pages hereof) or on the effective date of the
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Assignment and Acceptance Agreement or master assignment and acceptance
agreement pursuant to which it became a Lender (in the case of each other
Lender), nothing in this subsection shall relieve any Credit Party of its
obligation to pay any additional amounts pursuant to Section 2.13(a)(iii) in the
event that, as a result of any change in applicable law (including, without
limitation, any change in the interpretation thereof), such Lender is no longer
properly entitled to deliver certificates, documents or other evidence at a
subsequent date establishing the fact that such Lender is not subject to
withholding as described in the immediately preceding sentence.
(f) Other Tax Certificates. Each Indemnified Tax Person agrees to
use reasonable efforts to deliver to any Credit Party, promptly upon any request
therefor from time to time by such Credit Party, such forms, documents and
information as may be required by applicable law, regulation or treaty from time
to time and to file all appropriate forms to obtain a certificate or other
appropriate documents from the appropriate Governmental Authorities to establish
that payments made in respect of any Alternate Currency Loan or Letter of Credit
designated in an Alternate Currency by such Credit Party can be made without (or
at a reduced rate of) withholding of Taxes, provided, however, that if such
Indemnified Tax Person is or becomes unable by virtue of any applicable law,
regulation or treaty, to establish such exemption or reduction, such Credit
Party shall nonetheless remain obligated under Subsection 2.13(a) to pay the
amounts described therein, and provided further, that no Indemnified Tax Person
shall be required to take any action hereunder which, in the sole discretion of
such Indemnified Tax Person, would cause such Indemnified Tax Person or any
affiliate thereof to suffer a material economic, legal or regulatory
disadvantage.
(g) Adverse Tax Position.
(i) An "Excess Tax" shall be the excess of (x) the Tax
imposed, levied, collected, withheld or assessed by any Governmental Authority
without the United States from which a payment is made by or on behalf of a
Credit Party subject to an Adverse Tax Position or in which such Credit Party or
an affiliate has an office or is deemed to be doing business, over (y) the Tax
which would be imposed, levied, collected, withheld or assessed by such
Governmental Authority, but for the existence of such Adverse Tax Position.
(ii) An "Adverse Tax Position" with respect to a Credit Party
shall mean a position resulting from the lack of adequate capitalization or
other similar condition with respect to such Credit Party which, under
applicable law or
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applicable treaty, results in higher Taxes on payments under the Loan Documents
than would otherwise be imposed.
(iii) All payments by each Borrower under the Loan Documents
shall be made free and clear of, and without any deduction or withholding for,
any Excess Tax. If any Credit Party or any other Person is required by any law,
rule, regulation, order, directive, treaty or guideline to make any deduction or
withholding on account of any Tax from any Required Payment with respect to any
Indemnified Tax Person and if all or a portion of such Tax represents Excess
Tax:
(A) such Credit Party shall notify the Administrative
Agent and such Indemnified Tax Person of any such requirement or change in any
such requirement as soon as such Credit Party becomes aware of it;
(B) such Credit Party shall pay such Excess Tax before
the date on which penalties attach thereto, such payment to be made (if the
liability to pay is imposed on such Credit Party) for its own account or (if the
liability is imposed on such Indemnified Tax Person) on behalf of and in the
name of such Indemnified Tax Person;
(C) such Credit Party shall pay to such Indemnified
Tax Person an additional amount such that such Indemnified Tax Person shall
receive on the due date therefor an amount equal to the Required Payment had no
such deduction or withholding been required with respect to such Excess Tax; and
(D) such Credit Party shall, within 30 days after paying
such Excess Tax, deliver to the Administrative Agent and the applicable
Indemnified Tax Person satisfactory evidence of such payment to the relevant
Governmental Authority.
(iv) If an Indemnified Tax Person or any affiliate thereof is
required by any law, rule, regulation, order, directive, treaty or guideline to
pay any Excess Tax (excluding Excess Tax which is subject to Section
2.13(g)(iii)) with respect to any sum paid or payable by any Credit Party to
such Indemnified Tax Person under the Loan Documents:
(A) such Indemnified Tax Person shall notify such Credit
Party of any such payment of Excess Tax; and
(B) such Credit Party shall pay to such Indemnified
Tax Person the amount of such Excess Tax within 5 Business Days of such notice.
(v) If any amounts are payable by a Credit Party in respect of
Excess Tax pursuant to Section
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2.13(g)(iii) or (iv) such Credit Party agrees to pay to the applicable
Indemnified Tax Person, within 5 days of written request therefor, an amount
equal to all Taxes imposed with respect to such amounts as such Indemnified Tax
Person shall determine are payable by such Indemnified Tax Person or any
affiliate thereof in respect of such amounts and in respect of any amounts paid
to or on behalf of such Indemnified Tax Person pursuant to this clause (v).
2.14 Increased Costs, Illegality, etc.
(a) In the event that any Lender with respect to clauses (ii) and
(iii) below or the Administrative Agent, the Reference Lender, or the applicable
Lender, as the case may be, with respect to clauses (i) and (iv) below shall
have determined (which determination shall, absent manifest error, be final and
conclusive and binding upon all parties hereto):
(i) on the second Business Day immediately preceding the
making of any requested Eurodollar Advance, Core Currency Euro Advance or
Individual Currency Loan that, by reason of any changes arising after the
Effective Date affecting the applicable interbank market, adequate and
fair means do not exist for ascertaining the applicable interest rate on
the basis provided for in the definition of the Eurodollar Rate, the Core
Currency Euro Rate or the Individual Currency Rate, as the case may be; or
(ii) at any time that such Lender has incurred increased costs
or reductions in the amounts received or receivable hereunder with respect
to any Fixed Rate Loan, in each case by an amount such Lender deems to be
material, because of any change since the Effective Date (or in the case
of any Bid Loan, subsequent to acceptance by a Borrower of such Bid Loan,
and in the case of any Negotiated Rate Loan, subsequent to the date of
such Lender's execution of the Negotiated Rate Confirmation for such
Negotiated Rate Loan) in any law, rule, regulation, order or guideline
applicable to such Lender or the compliance by such Lender with any
request (whether or not having the force of law) from any Governmental
Authority made subsequent to the Effective Date (or in the case of any Bid
Loan, subsequent to acceptance by a Borrower of such Bid Loan, and, in the
case of any Negotiated Rate Loan, subsequent to the date of such Lender's
execution of the Negotiated Rate Confirmation for such Negotiated Rate
Loan) or in the interpretation or administration thereof and including the
introduction of any new law, rule, regulation, order, guideline or
request, such as, for example, but not limited to: (A) a change in the
basis of taxation of payment to any Lender of the
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principal of or interest on such Fixed Rate Loan or any other amounts
payable hereunder (except for changes in the rate of tax on, or determined
by reference to, the Tax on the Income of such Lender), or (B) a change in
official reserve (including any marginal, emergency, supplemental, special
or other reserve) or similar requirements (except to the extent included
in the computation of the respective Eurodollar Rate, the Core Currency
Euro Rate, Swing Line Negotiated Rate, Negotiated Rate, Individual
Currency Rate or Bid Rate, as the case may be), or any special deposit,
assessment or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (or its Applicable
Lending Office); or
(iii) at any time that the making or continuance of any Fixed
Rate Loan has been made (x) unlawful by any law, rule, regulation or order
or (y) impossible by compliance by any Lender in good faith with any
governmental directive or request (whether or not having the force of
law); or
(iv) at any time that any Core Currency (other than Dollars)
or any Non-Core Currency, as the case may be, is not available in
sufficient amounts, as determined in good faith by the Reference Lender in
the case of such Core Currency, and by the applicable Lender in the case
of such Non-Core Currency, to fund any borrowing of Alternate Currency
Loans in such Core Currency or such Non-Core Currency, as the case may be;
then, and in any such event, such Lender, in the case of clause (ii) or (iii)
above, or the Administrative Agent, the Reference Lender or the applicable
Lender, as the case may be, in the case of clause (i) or (iv) above, shall
promptly give notice (by telephone confirmed in writing) to the Parent (on
behalf of all Borrowers) and, except for the Administrative Agent, to the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Lenders). Thereafter (w) in
the case of clause (i) above, (A) in the event that Eurodollar Advances, Core
Currency Euro Advances or Individual Currency Loans are so affected, Eurodollar
Advances, Core Currency Euro Advances or Individual Currency Loans from such
applicable Lender, as the case may be, shall no longer be available until such
time as the Administrative Agent, the Reference Lender or such applicable
Lender, as the case may be, notifies the Parent and the Lenders that the
circumstances giving rise to such notice by the Administrative Agent, the
Reference Lender or such applicable Lender, as the case may be, no longer exist,
and any Notice of Borrowing or Notice of Conversion given by any Borrower with
respect to Eurodollar Advances, Core Currency Euro
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Advances or Individual Currency Loans to be made by such applicable Lender, as
the case may be, which have not yet been incurred (including by way of
conversion) shall be deemed rescinded by the applicable Borrower and (B) in the
event that any Core Currency Euro Advance or Individual Currency Loan is so
affected, the interest rate for such Core Currency Euro Advance or such
Individual Currency Loan, as the case may be, shall be determined on the basis
provided in the proviso to the definition of Core Currency Euro Rate or
Individual Currency Rate, as the case may be, (x) in the case of clause (ii)
above, the applicable Borrower shall pay to such Lender, within 3 days of
written demand therefor, such additional amounts (in the form of an increased
rate of, or a different method of calculating, interest or otherwise as such
Lender in its reasonable discretion shall determine) as shall be required to
compensate such Lender for such increased costs or reductions in amounts
received or receivable hereunder (a written notice as to the additional amounts
owed to such Lender, showing the basis for the calculation thereof, submitted to
such applicable Borrower by such Lender in good faith shall, absent manifest
error, be final and conclusive and binding on all the parties hereto), (y) in
the case of clause (iii) above, the applicable Borrower shall take one of the
actions specified in Section 2.14(b) and (z) in the case of clause (iv) above,
Core Currency Euro Advances in the affected Core Currency or Individual Currency
Loans from the applicable Lender in the affected Non-Core Currency, as the case
may be, shall no longer be available until such time as the Reference Lender or
such applicable Lender, as the case may be, notifies the Parent (on behalf of
all Borrowers), the Administrative Agent and the Lenders that the circumstances
giving rise to the notice referred to above by the Reference Lender or such
applicable Lender, as the case may be, to the Parent (on behalf of all
Borrowers) and the Administrative Agent no longer exists, and any Notice of
Borrowing given by the affected Borrower with respect to such Core Currency Euro
Advances or such Individual Currency Loans, as the case may be, which have not
yet been incurred shall be deemed rescinded by such affected Borrower. Each of
the Administrative Agent, the Reference Lender and the Lenders agree that if it
gives notice to any Borrower of any of the events described in clause (i), (iii)
or (iv) above, it shall promptly notify the Parent (on behalf of all Borrowers)
and, in the case of any such Lender and the Reference Lender, the Administrative
Agent, if such event ceases to exist. If any such event described in clause
(iii) above with respect to Eurodollar Advances, Core Currency Euro Advances or
Individual Currency Loans ceases to exist as to a Lender, the obligations of
such Lender, as the case may be, to make Eurodollar Advances, Core Currency Euro
Advances or Individual Currency Loans and to convert Eurodollar Advances to new
Eurodollar Advances or convert Core Currency Euro Advances
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to new Core Currency Euro Advances on the terms and conditions contained herein
shall be reinstated.
(b) At any time that any Fixed Rate Loan is affected by the
circumstances described in Section 2.14(a)(ii) or (iii), the applicable Borrower
may (and in the case of an affected Fixed Rate Loan by the circumstances
described in Section 2.14(a)(iii) shall) either (x) if the affected Fixed Rate
Loan is then being made initially or pursuant to a conversion, cancel the
respective borrowing or conversion by giving the Administrative Agent telephonic
notice (confirmed in writing) on the same date that the Parent was notified by
the affected Lender or the Administrative Agent pursuant to Section 2.14(a)(ii)
or (iii) or (y) if the affected Fixed Rate Loan is then outstanding, upon at
least three Business Days' written notice to the Administrative Agent and the
affected Lender, (A) in the case of a Eurodollar Advance, require the affected
Lender to convert such Eurodollar Advance into an ABR Advance as of the end of
the Interest Period then applicable to such Eurodollar Advance or, if earlier,
as soon as practicable within the time required by law and (B) in the case of a
Core Currency Euro Advance, Swing Line Negotiated Rate Advance, Negotiated Rate
Loan, Individual Currency Loan or Bid Loan, take such action as the affected
Lender may reasonably request with a view to minimizing the obligations of such
Borrower under Section 2.15.
(c) If any Lender determines that after the Effective Date the
introduction of or any change in any applicable law, rule, regulation, order,
guideline, directive or compliance by such Lender or any corporation controlling
such Lender with any request (whether or not having the force of law) from any
Governmental Authority concerning capital adequacy, or any change in
interpretation or administration thereof by any Governmental Authority, in each
case made subsequent to the date hereof, will have the effect of reducing the
rate of return on the capital required to be maintained by such Lender or any
corporation controlling such Lender based on the existence of such Lender's
Commitment or Individual Currency Commitments hereunder or its obligations under
the Loan Documents to a level below that which such Lender or such corporation
could have achieved but for such application or compliance (taking into account
such Lender's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then each of the Borrowers to
the extent of its Proportionate Share and the Parent severally agrees to pay
such to such Lender, within 3 Business Days of its written demand therefor, such
additional amounts as shall be required to compensate such Lender or such other
corporation for the increased cost to such Lender or such other corporation or
the reduction in the rate of return to such Lender or such other corporation as
a result of such reduction. In
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determining such additional amounts, each Lender will act reasonably and in good
faith and will use averaging and attribution methods which are reasonable,
provided that such Lender's reasonable good faith determination of compensation
owing under this Section 2.14(c) shall, absent manifest error, be final and
conclusive and binding on all the parties hereto. Each Lender, upon determining
that any additional amounts will be payable pursuant to this Section 2.14(c),
will give prompt written notice thereof to the Parent (on behalf of all
Borrowers), which notice shall show the basis for calculation of such additional
amounts.
(d) Each Lender shall notify the Parent (on behalf of all
Borrowers) of any event occurring after the Effective Date entitling such Lender
to compensation under this Section 2.14 as promptly as practicable, but in any
event within 120 days after the officer having primary responsibility for this
Agreement obtains actual knowledge thereof, provided that no such notice shall
be required if such Lender has determined not to seek compensation under this
Section 2.14 as a result of such event. Each Lender will furnish to each
Borrower a certificate setting forth the basis and amount of each request by
such Lender for compensation under this Section 2.14. Determinations and
allocations by any Lender for purposes of this Section 2.14 on its costs or rate
of return of maintaining Loans or its obligation to make Loans, or on amounts
receivable by it in respect of Loans, and of the amounts required to compensate
such Lender under this Section 2.14 shall be prima facie evidence of such
determinations and allocations.
(e) Notwithstanding the foregoing, no Lender shall be entitled to
any compensation described in Section 2.14 unless, at the time it requests such
compensation, it is the policy or general practice of such Lender to request
compensation for comparable costs in similar circumstances under comparable
provisions of other credit agreements for comparable customers unless specific
facts or circumstances applicable to any Borrower or the transactions
contemplated by the Loan Documents would alter such policy or general practice,
provided that nothing in this Section 2.14(e) shall preclude a Lender from
waiving the collection of similar costs from one or more of its other customers.
(f) If any Lender fails to give the notice described in Section
2.14(d) within 90 days after it obtains such actual knowledge of the event
required to be described in such notice, such Lender shall, with respect to any
compensation that would otherwise be owing to such Lender under this Section
2.14, only be entitled to payment for increased costs incurred from and after
the date that such Lender does give such notice.
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2.15 Compensation
Each Borrower shall compensate each Lender, within 3 days of its
written demand therefor (which demand shall set forth the basis for requesting
such compensation), for all reasonable losses, expenses and liabilities,
including any loss, expense or liability (including those related to currency
exchange) incurred by reason of the liquidation or reemployment of deposits or
other funds required by such Lender to fund its Fixed Rate Loans but excluding
any loss of anticipated profit which such Lender may sustain: (i) if for any
reason, a borrowing of, or conversion from or into a Fixed Rate Loan does not
occur on a date specified therefor in a Notice of Borrowing, a Notice of
Conversion, a Negotiated Rate Confirmation or a Bid accepted by a Borrower; (ii)
if any repayment (including any repayment made pursuant to Section 2.10 or as a
result of an acceleration of the Loans pursuant to Section 9) or conversion of
any of such Borrower's Fixed Rate Loans occurs on a date which is not the last
day of an Interest Period with respect thereto; (iii) if any prepayment of any
of such Borrower's Fixed Rate Loans is not made on any date specified in a
notice of prepayment given by such Borrower; or (iv) as a consequence of (x) any
other default by such Borrower to repay its Loans when required by the terms of
this Agreement or (y) any election made pursuant to Section 2.14(b) or 11.1(b).
2.16 Change of Applicable Lending Office and Applicable Payment Office
(a) With respect to any Loan of any Lender or any Letter of
Credit, such Lender agrees that on the occurrence of any event giving rise to
the operation of Section 2.13, Section 2.14(a)(ii) or (iii), Section 2.14(c),
Section 2.14(d) or Section 2.22 with respect to such Loan or such Letter of
Credit, it will, if requested by the applicable Borrower, use reasonable efforts
(subject to overall policy considerations of such Lender) to designate another
Applicable Lending Office or Applicable Payment Office, as the case may be, for
such Loan or such Letter of Credit affected by such event, provided that such
designation is made on such terms that such Lender and its Applicable Lending
Office or Applicable Payment Office, as the case may be, suffer no economic,
legal or regulatory disadvantage, with the object of avoiding the consequence of
the event giving rise to the operation of such Section. Nothing in this Section
shall affect or postpone any of the obligations of any Borrower or the right of
any Lender provided in Sections 2.13, 2.14, 2.15 and 2.22.
(b) Each Lender shall have the right at any time and from time to
time to transfer any of its Loans to a different office, provided that such
Lender shall promptly notify
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the Administrative Agent and the Parent (on behalf of all Borrowers) of any such
change of office. Such office shall thereupon become such Lender's Applicable
Lending Office for such Loan provided, however, that no such Lender shall be
entitled to receive any greater amount under Section 2.13, Section 2.14(a)(ii)
or (iii), Section 2.14(c) or Section 2.22 as a result of a transfer of any such
Loans to a different office of such Lender than it would be entitled to
immediately prior thereto unless such claim would have arisen even if such
transfer had not occurred.
2.17 Survival of Certain Obligations
The obligations of the Borrowers under Sections 2.13, 2.14, 2.15,
2.22, 11.5 and 11.10 shall survive the termination of the Aggregate Commitments,
the Swing Line Commitment, the Individual Currency Commitments, the Letter of
Credit Commitment the payment of the Loans, the reimbursement obligations in
respect of the Letters of Credit and all other amounts payable under the Loan
Documents.
2.18 Use of Proceeds
The proceeds of the Loans shall be used to refinance the
Indebtedness set forth on Schedule 5.8 and for general corporate purposes of the
Parent and its Subsidiaries. The uses to which the proceeds of the Loans are put
shall conform with the provisions of Section 4.11.
2.19 Letter of Credit Sub-Facility
(a) Subject to the terms and conditions of this Agreement, the
Issuing Bank agrees, in reliance on the agreement of the other Lenders set forth
in Section 2.20, to issue standby letters of credit in Core Currencies (the
"Letters of Credit"; each a "Letter of Credit") during the Commitment Period for
the account of one or more of the Letter of Credit Applicants, provided,
however, that, at the request of any Letter of Credit Applicant, the Issuing
Bank may, in its sole discretion, issue one or more Letters of Credit for the
account of such Letter of Credit Applicant in one or more Non-Core Currencies.
The Letter of Credit Exposure at any one time outstanding shall not exceed the
lesser of (i) the amount of the Letter of Credit Commitment and (ii) the excess,
if any, of the sum of the Aggregate Commitments over the sum of the aggregate
outstanding principal amount of all Loans (determined on the basis of the Dollar
Equivalent for each outstanding Alternate Currency Loan). The Letter of Credit
Exposure at any one time outstanding attributable to all Letters of Credit
issued in Non-Core Currencies shall not exceed the
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excess, if any, of $60,000,000 over the Aggregate Credit Exposure at such time
attributable to all Loans designated in Non-Core Currencies. The sum of the
aggregate principal amount of the Individual Currency Loans of all Lenders at
any one time outstanding in any Non-Core Currency and the Letter of Credit
Exposure at such time attributable to all Letters of Credit issued in such
Non-Core Currency (determined on the basis of the Dollar Equivalent of each such
Individual Currency Loan and each such Letter of Credit) shall not exceed
$5,000,000. Each Letter of Credit shall have an expiration date which shall not
exceed the earlier of (x) twelve months from the date of issuance thereof and
(y) 30 days immediately preceding the Maturity Date. No Letter of Credit shall
be issued, and no amendment to any Letter of Credit shall be issued which would
increase the stated amount or extend the expiration date of such Letter of
Credit, (i) if the Administrative Agent or any Lender by notice to the
Administrative Agent and the applicable Letter of Credit Applicant and the
Parent no later than 1:00 P.M. one Business Day prior to the requested date of
issuance of such Letter of Credit or amendment, shall have determined that any
of the applicable conditions set forth in Sections 5 and 6 have not been
satisfied and such conditions remain unsatisfied as of the requested time of
issuing such Letter of Credit or amendment or (ii) to the extent that
immediately after giving effect thereto the Aggregate Credit Exposure would
exceed the Aggregate Commitments (each a "Non-Issuance Event").
(b) Each Letter of Credit shall be issued for the account of the
applicable Letter of Credit Applicant for general corporate purposes of such
Letter of Credit Applicant and its Subsidiaries. Such Letter of Credit Applicant
and the Parent shall give the Administrative Agent a Letter of Credit Request
for the issuance of such Letter of Credit by 11:00 A.M. three Business Days
prior to the requested date of issuance. Such Letter of Credit Request shall be
executed by such Letter of Credit Applicant and the Parent, and shall specify
(i) the beneficiary of such Letter of Credit and the obligations of such Letter
of Credit Applicant or any of its Subsidiaries, as the case may be, in respect
of which such Letter of Credit is to be issued, (ii) such Letter of Credit
Applicant's proposal as to the conditions under which a drawing may be made
under such Letter of Credit and the documentation to be required in respect
thereof, (iii) the maximum amount to be available under such Letter of Credit,
(iv) the requested date of issuance and (v) the applicable Currency. Upon
receipt of such Letter of Credit Request from such Letter of Credit Applicant
and the Parent, the Administrative Agent shall promptly notify the Issuing Bank
and each other Lender thereof. Each Letter of Credit shall be in form and
substance reasonably satisfactory to the Issuing Bank, and adequate and fair
means in the sole discretion of the Issuing Bank shall
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exist for the issuance thereof, with such provisions with respect to the
conditions under which a drawing may be made thereunder and the documentation
required in respect of such drawing as the Issuing Bank shall reasonably require
and as may be acceptable to such Letter of Credit Applicant and the Parent. Such
Letter of Credit shall be used solely for the purposes described therein and
herein. The Issuing Bank shall, on the proposed date of issuance and subject to
the other terms and conditions of this Agreement, issue such Letter of Credit.
(c) Each payment by the Issuing Bank of a draft drawn under a
Letter of Credit designated in a Core Currency shall give rise to an obligation
on the part of the applicable Letter of Credit Applicant to reimburse the
Issuing Bank immediately for the amount thereof at its Applicable Payment Office
in such Core Currency.
(d) Each payment by the Issuing Bank of a draft drawn under a
Letter of Credit designated in a Non-Core Currency shall give rise to an
obligation on the part of the applicable Letter of Credit Applicant to reimburse
the Issuing Bank immediately for the amount thereof in Dollars, at such office
as the Issuing Bank shall designate to the Administrative Agent, the Parent and
such Letter of Credit Applicant, in an amount based upon the all-in cost of
funds in Dollars of the Issuing Bank to fund such draft (each a "Dollar
Reimbursement Amount"). In connection with each obligation of a Letter of Credit
Applicant to pay a Dollar Reimbursement Amount under this Section 2.19(d), the
Issuing Bank shall deliver to such Letter of Credit Applicant, the Parent and
the Administrative Agent a written statement setting forth such Dollar
Reimbursement Amount. The Issuing Bank's determination of such Dollar
Reimbursement Amount shall be conclusive absent manifest error.
2.20 Letter of Credit Participation and Funding Commitments
(a) Each Lender hereby unconditionally and irrevocably, severally
for itself only and without any notice to or the taking of any action by such
Lender, takes from time to time an undivided participating interest in the
obligations of the Issuing Bank under and in connection with each Letter of
Credit in an amount equal to such Lender's Availability Percentage at such time
of the amount of such Letter of Credit. Each Lender from time to time shall be
liable to the Issuing Bank for its Availability Percentage at such time of the
unreimbursed amount of any draft drawn and honored under each Letter of Credit.
Each Lender from time to time shall also be liable for an amount equal to the
product of its Availability Percentage at such time and any amounts paid by the
applicable
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Letter of Credit Applicant pursuant to Section 2.21 that are subsequently
rescinded or avoided, or must otherwise be restored or returned. Such
liabilities shall be unconditional and without regard to the occurrence of any
Default or Event of Default or the compliance by the Parent and the Borrowers
with any of their respective obligations under the Loan Documents or any other
circumstances.
(b) The Administrative Agent will promptly notify each Lender
(which notice shall be promptly confirmed in writing) of the date and the amount
of any draft presented under any Letter of Credit with respect to which full
reimbursement of payment is not made by the applicable Letter of Credit
Applicant as provided in Sections 2.19(c) or 2.19(d), as the case may be, and
forthwith upon receipt of such notice, and provided that no Non-Issuance Event
shall have occurred and be continuing with respect to such Letter of Credit,
such Lender (other than the Issuing Bank in its capacity as a Lender) shall make
available to the Administrative Agent for the account of the Issuing Bank its
Availability Percentage at such time of the amount of such unreimbursed draft
or, if such Letter of Credit is designated in a Non-Core Currency, the
applicable Dollar Reimbursement Amount, at the Applicable Payment Office of the
Administrative Agent in the applicable Core Currency or, if such Letter of
Credit is designated in a Non-Core Currency, at the applicable office designated
by the Administrative Agent pursuant to Section 2.19(d) in Dollars, and, in each
case, in immediately available funds. The Administrative Agent shall distribute
the payments made by each Lender (other than the Issuing Bank in its capacity as
a Lender) pursuant to the immediately preceding sentence to the Issuing Bank
promptly upon receipt thereof in like funds as received. Each Lender shall
indemnify and hold harmless the Administrative Agent and the Issuing Bank from
and against any and all losses, liabilities (including liabilities for
penalties), actions, suits, judgments, demands, costs and expenses (including
reasonable attorneys' fees and expenses) resulting from any failure on the part
of such Lender to provide, or from any delay in providing, the Administrative
Agent with such Lender's Availability Percentage of the amount of any payment
made by the Issuing Bank under a Letter of Credit in accordance with this clause
(b) above (except in respect of losses, liabilities or other obligations
suffered by the Issuing Bank resulting from the gross negligence or willful
misconduct of the Issuing Bank or the Administrative Agent, as the case may be).
If a Lender does not make available to the Administrative Agent when due such
Lender's Availability Percentage at such time of any unreimbursed payment made
by the Issuing Bank under a Letter of Credit (other than payments made by the
Issuing Bank by reason of its gross negligence or
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willful misconduct), such Lender shall be required to pay interest to the
Administrative Agent for the account of the Issuing Bank on such Lender's
Availability Percentage at such time of such payment at a rate of interest per
annum equal to the Federal Funds Rate (or, in the case of any Letter of Credit
designated in a Core Currency (other than Dollars), at a rate based upon the
all-in cost of funds for the applicable Non-Core Currency) from the date such
Lender's payment is due until the date such payment is received by the
Administrative Agent. The Administrative Agent shall distribute such interest
payments to the Issuing Bank upon receipt thereof in like funds as received.
(c) Whenever the Administrative Agent or the Issuing Bank is
reimbursed by any Letter of Credit Applicant, for the account of the Issuing
Bank, for any payment under a Letter of Credit and such payment relates to an
amount previously paid by a Lender in respect of its Availability Percentage of
the amount of such payment under such Letter of Credit, the Administrative Agent
or the Issuing Bank, as the case may be, will promptly pay over such payment to
such Lender.
2.21 Absolute Obligation with respect to Letter of Credit Payments
The obligation of each Letter of Credit Applicant to reimburse the
Administrative Agent for the account of the Issuing Bank in respect of each
Letter of Credit issued for the account of such Letter of Credit Applicant for
each payment under or in respect of such Letter of Credit shall be absolute and
unconditional under any and all circumstances and irrespective of any set-off,
counterclaim or defense to payment which such Letter of Credit Applicant or any
of its Subsidiaries may have or have had against the beneficiary of such Letter
of Credit, the Administrative Agent, the Issuing Bank, as issuer of such Letter
of Credit, any Lender, the Swing Line Lender or any other Person, including any
defense based on the failure of any drawing to conform to the terms of such
Letter of Credit, any drawing document proving to be forged, fraudulent or
invalid, or the legality, validity, regularity or enforceability of such Letter
of Credit.
2.22 Increased Costs Based on Letters of Credit
Without limiting the provisions of Section 2.14, if any law, rule,
regulation, order, guideline or request or any change in the interpretation or
application thereof by any Governmental Authority charged with the
administration thereof or GAAP shall either (a) impose, modify or make
applicable any reserve, special deposit, assessment or similar requirement
against any Letter of Credit issued or participated in by any Lender, or (b)
impose on the Administrative Agent, the Issuing
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Bank or such Lender, as the case may be, any other condition regarding such
Letter of Credit (except for imposition of, or changes in the rate of, the Tax
on the Income of the Administrative Agent, the Issuing Bank or such Lender, as
the case may be) and the result of any event referred to in clause (a) or (b)
above shall be to increase the cost to the Issuing Bank (or any successor
thereto as issuer of such Letter of Credit) of issuing or maintaining such
Letter of Credit or the cost to any Lender of its obligations pursuant to
Section 2.20, or the cost to the Administrative Agent of performing its
functions hereunder with respect to such Letter of Credit, in any case by an
amount which the Administrative Agent, the Issuing Bank or such Lender, as the
case may be, deems material, then, upon demand by the Administrative Agent, the
Issuing Bank or such Lender, as the case may be, the applicable Letter of Credit
Applicant shall immediately pay to the Administrative Agent, the Issuing Bank or
such Lender, as the case may be, from time to time as specified by the
Administrative Agent, the Issuing Bank or such Lender, as the case may be,
additional amounts which shall be sufficient to compensate the Administrative
Agent, the Issuing Bank or such Lender, as the case may be, for such increased
cost. A statement in reasonable detail as to such increased cost incurred by the
Administrative Agent, the Issuing Bank or such Lender, as the case may be, as a
result of any event mentioned in clauses (a) or (b) above, submitted by the
Administrative Agent, the Issuing Bank or such Lender, as the case may be, to
such Letter of Credit Applicant shall be conclusive, absent manifest error, as
to the amount thereof.
2.23 Borrower Addenda
Provided that no Default or Event of Default has occurred and is
continuing, the Parent may direct that any of its wholly-owned Subsidiaries
which is not then a Borrower become a Borrower by submitting a Borrower Addendum
to the Administrative Agent with respect to such Subsidiary duly executed by
each of the Parent and such Subsidiary together with a certificate, dated the
date of such Borrower Addendum of the Secretary or Assistant Secretary of such
Subsidiary (i) attaching a true and complete copy of the resolutions of its
Board of Directors and of all documents evidencing other necessary corporate
action (in form and substance satisfactory to the Administrative Agent) taken by
it to authorize such Borrower Addendum, the Loan Documents and the transactions
contemplated thereby, (ii) attaching a true and complete copy of its certificate
of incorporation, by-laws or other organizational documents, (iii) setting forth
the incumbency of its
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officer or officers who may sign the Borrower Addendum, including therein a
signature specimen of such officer or officers, (iv) an opinion of foreign local
counsel to such Subsidiary in all respects reasonably satisfactory to the
Administrative Agent and (v) attaching a certificate of good standing (or
equivalent) issued by the jurisdiction of its incorporation. If any such
document is not in English, such document shall be accompanied by a certified
English translation thereof. Upon receipt of a Borrower Addendum and the
supporting documentation referred to above, the Administrative Agent shall
confirm such Borrower Addendum by signing a copy thereof and shall deliver a
copy thereof to the Parent and each Lender. Thereupon the Subsidiary which
executed such Borrower Addendum shall become a "Borrower" hereunder. In the
event that such additional Borrower is not a corporation organized under the
laws of a jurisdiction in which any other Borrower is organized (and whose
principal office is not located in a jurisdiction in which any other Borrower's
principal office is located), this Agreement and the other Loan Documents will
be deemed amended by adding definitions comparable to the definitions applicable
to each other Subsidiary Borrower, such definitions to be as set forth in the
applicable Borrower Addendum.
2.24 Records
(a) Lender's Records. Each Lender will note on its internal
records with respect to each Loan made by it (i) the date and amount of such
Loan, (ii) whether such Loan is a Revolving Loan, Swing Line Loan, Individual
Currency Loan, Negotiated Rate Loan or Bid Loan, (iii) the identity of the
Borrower to whom such Loan was made, (iv) the interest rate (other than in the
case of an ABR Advance), Individual Currency Rate, Negotiated Rate or Bid Rate
and Interest Period, if applicable, applicable to such Loan and (v) each payment
and prepayment of the principal thereof.
(b) Administrative Agent's Records. The Administrative Agent shall
keep records regarding the Loans, the Letters of Credit and this Agreement in
accordance with its customary procedures for agented credits.
(c) Prima Facie Evidence. The entries made in the records
maintained pursuant to subsections (a) and (b) above shall, to the extent not
prohibited by applicable law, be prima facie evidence of the existence and
amount of the obligations of the Parent and each Borrower recorded therein;
provided, however, that the failure of the Administrative Agent or any Lender,
as the case may be, to make any notation on its records shall not affect the
Parent's or the respective Borrower's obligations in respect of the Loans, the
Letters of Credit or the Loan Documents.
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2.25 Replacement of Lender
If (i) any Borrower is obligated to pay to any Lender any amount
under Section 2.13(a), (b) or (c) and such payment is attributable solely to any
change since the Effective Date (in the case of each Lender listed on the
signature pages hereof) or since the effective date of the Assignment and
Acceptance Agreement pursuant to which it became a Lender (in the case of each
other Lender) in any applicable law, rule, regulation, order, directive, treaty
or guideline (whether or not having the force of law) or in the interpretation
or administration thereof (including the introduction of any new law, rule,
regulation, order, directive, treaty or guideline), (ii) any Lender shall have
failed to make available a Loan on the date on which and in the amount in which
it was obligated to do so and shall not have cured such failure within three
Business Days or (iii) any Lender shall have demanded any payment under Section
2.14 or excused itself from funding a Loan pursuant to Section 2.14, the Company
shall have the right, in accordance with the requirements of Section 11.7(b), if
no Default or Event of Default shall exist to replace up to two such Lenders
(each a "Replaced Lender") with one or more other assignees (each, a
"Replacement Lender"), reasonably acceptable to the Swing Line Lender and the
Issuing Bank, provided that (I) at the time of any replacement pursuant to this
Section, the Replacement Lender shall enter into one or more Assignment and
Acceptance Agreements pursuant to Section 11.7(b) (with the Assignment Fee
payable pursuant to said Section 11.7(b) to be paid by the Replacement Lender)
pursuant to which the Replacement Lender shall acquire all of the Commitments
and outstanding Loans of, and in each case participations in Letters of Credit
by, the Replaced Lender and, in connection therewith, shall pay to (w) the
Replaced Lender in respect thereof an amount equal to the sum of (A) an amount
equal to the principal of, and all accrued interest on, all outstanding Loans of
the Replaced Lender, (B) an amount equal to all drawings on all Letters of
Credit that have been funded by (and not reimbursed to) such Replaced Lender,
together with all then unpaid interest with respect thereto at such time and (C)
an amount equal to all accrued, but theretofore unpaid, fees owing to the
Replaced Lender pursuant to Sections 3.1 and 3.2, (x) the Issuing Bank an amount
equal to such Replaced Lender's Commitment Percentage of all drawings (which at
such time remains an unpaid drawing) to the extent such amount was not
theretofore funded by such Replaced Lender, (y) the Swing Line Lender an amount
equal to such Replaced Lender's Commitment Percentage of any Mandatory Borrowing
to the extent such amount was not theretofore funded by such Replaced Lender and
(z) the Administrative Agent an amount equal to all amounts owed by such
Replaced Lender to the Administrative Agent under this Agreement, including,
without limitation, an amount equal to the principal
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of, and all accrued interest on, all outstanding Loans of the Replaced Lender, a
corresponding amount of which was made available by the Administrative Agent to
the applicable Borrower(s) pursuant to Section 2.4(e) and which has not been
repaid to the Administrative Agent by such Replaced Lender or the applicable
Borrower(s) and (II) all obligations of the Borrowers owing to the Replaced
Lender (other than those specifically described in clause (I) above in respect
of which the assignment purchase price has been, or is concurrently being, paid)
shall be paid in full to such Replaced Lender concurrently with such
replacement. Upon the execution of the respective Assignment and Acceptance
Agreements and the payment of amounts referred to in clauses (i) and (ii) of
this Section 2.25, the Replacement Lender shall become a Lender hereunder and
the Replaced Lender shall cease to constitute a Lender hereunder, except with
respect to indemnification provisions under this Agreement (including, without
limitation, Sections 2.13, 2.14, 2.15, 2.22, 11.5 and 11.10), which shall
survive as to such Replaced Lender.
3. FEES
3.1 Facility Fee
The Parent agrees to pay to the Administrative Agent, for the
account of the Lenders in accordance with each Lender's Commitment Percentage, a
fee (the "Facility Fee"), for each day from and after the Effective Date, equal
to the product of (x) the Aggregate Commitments in effect as at the end of such
day or, if no Commitments then exist, the Aggregate Commitments on the last day
on which Commitments did exist, and (y) the applicable percentage set forth
below based upon the Pricing Level in effect as at the end of such day:
<TABLE>
<CAPTION>
Facility Fee
Pricing Level Percentage
------------- ----------
<S> <C>
Pricing Level I 0.0700%
Pricing Level II 0.0800%
Pricing Level III 0.0900%
Pricing Level IV 0.1250%
Pricing Level V 0.1500%
Pricing Level VI 0.2500%
</TABLE>
The Facility Fee shall be (i) calculated on the basis of a 360-day
year for the actual number of days elapsed, (ii) payable quarterly in arrears on
each Quarterly Payment Date, commencing on the first such day following the
Effective Date, and on the date that the Aggregate Commitments shall
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expire or otherwise terminate (or in the event that the Aggregate Commitments
have expired or otherwise terminated, on the date that the Aggregate Credit
Exposure has been reduced to $0).
3.2 Letter of Credit Commissions
The Parent agrees to pay to the Administrative Agent, for the
account of the Lenders, commissions (the "Letter of Credit Commissions") with
respect to the issued and outstanding Letters of Credit, for each day from and
after the Effective Date, equal to, with respect to each Lender, the product of
(x) the Letter of Credit Exposure as at the end of such day and (y) the
Availability Percentage of such Lender as at the end of such day multiplied by
(z) the applicable percentage set forth below based upon the Pricing Level in
effect as at the end of such day:
<TABLE>
<CAPTION>
Letter of Credit
Pricing Level Commission Percentage
------------- ---------------------
<S> <C>
Pricing Level I 0.1550%
Pricing Level II 0.1700%
Pricing Level III 0.2100%
Pricing Level IV 0.2250%
Pricing Level V 0.3000%
Pricing Level VI 0.3500%
</TABLE>
The Letter of Credit Commissions shall be (i) calculated on the
basis of a 360-day year for the actual number of days elapsed, (ii) payable
quarterly in arrears on each Quarterly Payment Date and on the date that the
Letter of Credit Commitments shall expire and the Letter of Credit Exposure is
$0, and (iii) nonrefundable.
3.3 Administrative Agent's and Issuing Bank's Fees
(a) The Parent agrees to pay to the Administrative Agent, for its
own account, such other fees as have been agreed to in writing from time to time
by the Parent and the Administrative Agent.
(b) The Parent agrees to pay to the Issuing Bank, for its own
account, such other fees as have been agreed to in writing from time to time by
the Parent and the Issuing Bank.
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4. REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and the Lenders to enter into
this Agreement and to make the Loans, the Swing Line Lender to make the Swing
Line Loans and the Lenders to participate therein, and the Issuing Bank to issue
the Letters of Credit and the Lenders to participate therein, the Parent and the
Borrowers make the following representations and warranties to the
Administrative Agent, the Issuing Bank, the Swing Line Lender and the Lenders:
4.1 Subsidiaries; Capital Stock
As of the date of this Agreement, the Parent has only the
Subsidiaries set forth on, and the authorized, issued and outstanding capital
stock of the Parent and each such Subsidiary (or partnership or other interests,
as the case may be) is as set forth on, Schedule 4.1. The shares of, or
partnership or other interests in, each Subsidiary of the Parent are owned
beneficially and of record by the Parent or another Subsidiary of the Parent,
are free and clear of all Liens except as otherwise permitted by Section 8.3,
and are duly authorized, validly issued, fully paid and nonassessable except, in
the case of any Subsidiary organized under the laws of the State of New York,
for any liability that may arise under the provisions of Section 630 of the
Business Corporation Law of the State of New York. As of the date of this
Agreement, except as set forth on Schedule 4.1, (a) neither the Parent nor any
of its Subsidiaries has issued any securities convertible into, or options or
warrants for, any common or preferred equity securities thereof, (b) there are
no agreements, voting trusts or understandings binding upon the Parent or any of
its Subsidiaries with respect to the voting securities of the Parent or any of
its Subsidiaries or affecting in any manner the sale, pledge, assignment or
other disposition thereof, including any right of first refusal, option,
redemption, call or other right with respect thereto, whether similar or
dissimilar to any of the foregoing, and (c) the Parent owns, directly or
indirectly, all of the outstanding capital stock of each of its Subsidiaries.
4.2 Existence and Power
Each of the Parent and each of its Subsidiaries is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
formation, has all requisite power and authority to own its Property and to
carry on its business as now conducted, and is in good standing and authorized
to do business in each jurisdiction in which the failure so to qualify could
reasonably be expected to have a Material Adverse effect.
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4.3 Authority
Each of the Parent and each of its Subsidiaries has full power and
authority to enter into, execute, deliver and perform the terms of the Loan
Documents to which it is a party, all of which have been duly authorized by all
proper and necessary corporate or partnership action, as the case may be, and
are in full compliance with its certificate of incorporation and by-laws or
partnership agreement, as the case may be. No consent or approval of, or other
action by, shareholders of the Parent, any Borrower, any Governmental Authority
or any other Person, which has not already been obtained, is required to
authorize in respect of the Parent or any of its Subsidiaries, or is required in
connection with the execution, delivery and performance by the Parent and each
of its Subsidiaries of, the Loan Documents to which it is a party, or is
required as a condition to the enforceability against the Parent or such
Subsidiary of the Loan Documents to which it is a party.
4.4 Binding Agreement
The Loan Documents constitute the valid and legally binding
obligations of the Parent and each of its Subsidiaries to the extent the Parent
or such Subsidiary, as the case may be, is a party thereto, enforceable in
accordance with their respective terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
equitable principles relating to the availability of specific performance as a
remedy and except to the extent that indemnification obligations may be limited
by federal or state securities laws or public policy relating thereto.
4.5 Litigation
Except as set forth on Schedule 4.5, there are no actions, suits,
arbitration proceedings or claims (whether purportedly on behalf of the Parent,
any of its Subsidiaries or otherwise) pending or, to the knowledge of the Parent
and the Borrowers, threatened against the Parent or any of its Subsidiaries, or
maintained by the Parent or any of its Subsidiaries, or which may affect the
Property of the Parent or any of its Subsidiaries, at law or in equity, before
any Governmental Authority which could reasonably be expected to have a Material
Adverse effect. There are no proceedings pending or, to the knowledge of the
Parent and the Borrowers, threatened against the Parent or any of its
Subsidiaries (a) which call into question the validity or enforceability of, or
otherwise seek to invalidate any Loan Document, or (b) which
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might, individually or in the aggregate, materially and adversely affect any of
the transactions contemplated by any Loan Document.
4.6 No Conflicting Agreements
(n) Neither the Parent nor any of its Subsidiaries is in default
under any agreement to which it is a party or by which it or any of its Property
is bound the effect of which could reasonably be expected to have a Material
Adverse effect. No notice to, or filing with, any Governmental Authority is
required for the due execution, delivery and performance by the Parent or any of
its Subsidiaries of the Loan Documents to which it is a party (except those
notices or filings which have already been made).
(b) No provision of any statute, rule, regulation, judgment,
decree or order, or any existing material mortgage, indenture, contract or
agreement, in each case binding on the Parent or any of its Subsidiaries or
affecting the Property of the Parent or any of its Subsidiaries conflicts with,
or requires any consent which has not already been obtained under, or would in
any way prohibit the execution, delivery or performance by the Parent or any of
its Subsidiaries of the terms of, any Loan Document. The execution, delivery or
performance by the Parent and each of its Subsidiaries of the terms of each Loan
Document to which it is a party will not constitute a default under, or result
in the creation or imposition of, or obligation to create, any Lien upon the
Property of the Parent or any of its Subsidiaries pursuant to the terms of any
such mortgage, indenture, contract or agreement which defaults or Liens,
individually or in the aggregate, would have or result in a Material Adverse
effect.
4.7 Taxes
The Parent and each of its Subsidiaries has filed or caused to be
filed all tax returns, and has paid, or has made adequate provision for the
payment of, all taxes shown to be due and payable on said returns or in any
assessments made against them, the failure of which to file or pay could
reasonably be expected to have a Material Adverse effect, and no tax Liens have
been filed against the Parent or any of its Subsidiaries and no claims are being
asserted with respect to such taxes which are required by GAAP (as in effect on
the Effective Date) to be reflected in the Financial Statements and are not so
reflected therein. The charges, accruals and reserves on the books of the Parent
and each of its Subsidiaries with respect to all Federal, state, local, foreign
and other taxes are considered by the management of the Parent and the Borrowers
to be adequate, and neither the Parent nor any Borrower knows of any unpaid
assessment which is or might be
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due and payable against it or any of its Subsidiaries or any Property of the
Parent or any of its Subsidiaries, except such thereof as are being contested in
good faith and by appropriate proceedings diligently conducted, and for which
adequate reserves have been set aside in accordance with GAAP.
4.8 Compliance with Applicable Laws; Filings
Neither the Parent nor any of its Subsidiaries is in default with
respect to any judgment, order, writ, injunction, decree or decision of any
Governmental Authority which default could reasonably be expected to have a
Material Adverse effect. The Parent and each of its Subsidiaries is complying
with all applicable statutes, rules and regulations of all Governmental
Authorities, a violation of which could reasonably be expected to have a
Material Adverse effect. The Parent and each of its Subsidiaries has filed or
caused to be filed with all Governmental Authorities all reports, applications,
documents, instruments and information required to be filed pursuant to all
applicable laws, rules, regulations and requests which, if not so filed, could
reasonably be expected to have a Material Adverse effect. Each Borrower, prior
to each borrowing by it hereunder in any jurisdiction, has obtained all
necessary approvals and consents of, and has filed or caused to be filed all
reports, applications, documents, instruments and information required to be
filed pursuant to all applicable laws, rules, regulations and requests of, all
Governmental Authorities in connection with such borrowing in such jurisdiction.
4.9 Governmental Regulations
Neither the Parent nor any of its Subsidiaries nor any corporation
controlling the Parent or any of its Subsidiaries or under common control with
the Parent or any of its Subsidiaries is subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act, the Investment
Company Act of 1940, in each case as amended, or is subject to any statute or
regulation which regulates the incurrence of Indebtedness, including statutes or
regulations relative to common or contract carriers or to the sale of
electricity, gas, steam, water, telephone, telegraph or other public utility
services.
4.10 Property
Each of the Parent and each of its Subsidiaries has good and
marketable title to, or a valid leasehold interest in, all of its real Property,
and is the owner of, or has a valid lease of, all personal property, in each
case which is material to the Parent and its Subsidiaries taken as a whole,
subject to no Liens, except such Liens permitted by Section
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8.3. All leases of Property to each of the Parent and each of its Subsidiaries
are in full force and effect, the Parent or such Subsidiary enjoys quiet and
undisturbed possession under all leases of real property and neither the Parent
nor any of its Subsidiaries is in default beyond any applicable grace period of
any provision thereof, the effect of which could reasonably be expected to have
a Material Adverse effect.
4.11 Federal Reserve Regulations; Use of Loan Proceeds
Neither the Parent nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock. No part of
the proceeds of the Loans or any Letter of Credit will be used, directly or
indirectly, for a purpose which violates the provisions of Regulations G, T, U
or X of the Board of Governors of the Federal Reserve System, as amended.
Anything in this Agreement to the contrary notwithstanding, no Lender shall be
obligated to extend credit to the Parent or any of its Subsidiaries in violation
of any limitation or prohibition provided by any applicable law, regulation or
statute, including Regulation U of the Board of Governors of the Federal Reserve
System.
4.12 No Misrepresentation
No representation or warranty contained in any Loan Document and
no certificate, Financial Statement, other financial statement or written notice
furnished or to be furnished by the Parents or any of its Subsidiaries in
connection with the transactions contemplated hereby, contains or will contain,
as of its date, a misstatement of material fact, or omits or will omit to state,
as of its date, a material fact required to be stated in order to make the
statements therein contained not misleading in the light of the circumstances
under which made.
4.13 Plans
(a) Each Employee Benefit Plan of the Parent, each of its
Subsidiaries and each ERISA Affiliate is in compliance with ERISA and the Code,
where applicable, in all material respects. The amount of (a) all Unfunded
Pension Liabilities under the Pension Plans, excluding any Pension Plan which is
a Multiemployer Plan, does not exceed $2,000,000, and (b) the aggregate
Unrecognized Retiree Welfare Liability under all applicable Employee Benefit
Plans does not exceed $2,000,000. The Parent, each of its Subsidiaries and each
ERISA Affiliate have complied with the requirements of Section 515 of ERISA with
respect to each Pension Plan which is a Multiemployer Plan. The aggregate
potential annual withdrawal liability payments, as determined in accordance with
Title IV of ERISA,
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for which the Parent, each of its Subsidiaries and each ERISA Affiliate would
become obligated in the event of a complete or partial withdrawal from all
Pension Plans which are Multiemployer Plans does not exceed $2,000,000. The
Parent, each of its Subsidiaries and each ERISA Affiliate has made all
contributions or payments to or under each such Pension Plan required by law or
the terms of such Pension Plan or any contract or agreement where the failure to
make such contributions or payments could reasonably be expected to have a
Material Adverse effect. No liability to the PBGC has been, or is expected by
the Parent, any of its Subsidiaries or any ERISA Affiliate to be, incurred by
the Parent, any of its Subsidiaries or any ERISA Affiliate where such liability
could reasonably be expected to have a Material Adverse effect. Liability, as
referred to in this Section 4.13, includes any joint and several liability. Each
Employee Benefit Plan which is a group health plan within the meaning of Section
5000(b)(1) of the Code is in material compliance with the continuation of health
care coverage requirements of Section 4980B of the Code.
(b) All contributions required to be made with respect to each
Foreign Pension Plan have been timely made. Each Foreign Pension Plan has been
maintained in compliance with its terms and with the requirements of any and all
applicable laws, statutes, rules, regulations and orders and has been
maintained, where required, in good standing with applicable Governmental
Authorities. Neither the Parent nor any of its Subsidiaries has incurred any
obligation in connection with the termination of or withdrawal from any Foreign
Pension Plan. The present value of the accrued benefit liabilities (whether or
not vested) under each Foreign Pension Plan required to be funded, determined as
of the end of the most recently ended fiscal year on the basis of actuarial
assumptions, each of which is reasonable, did not exceed the current value of
the assets of such Foreign Pension Plan allocable to such benefit liabilities by
more than the foreign exchange equivalent (based on the applicable spot exchange
rate) of $2,000,000.
4.14 Environmental Matters
Neither the Parent nor any of its Subsidiaries (a) has received
written notice or otherwise learned of any claim, demand, action, event,
condition, report or investigation indicating or concerning any potential or
actual liability which individually or in the aggregate could reasonably be
expected to have a Material Adverse effect, arising in connection with (i) any
non-compliance with or violation of the requirements of any applicable federal,
state, local or foreign environmental health or safety statute or regulation, or
(ii) the release or threatened release of any toxic or hazardous waste,
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substance or constituent, or other substance into the environment, (b) to the
best knowledge of the Parent and the Borrowers, has any threatened or actual
liability in connection with the release or threatened release of any toxic or
hazardous waste, substance or constituent, or other substance into the
environment which individually or in the aggregate could reasonably be expected
to have a Material Adverse effect, (c) has received notice of any federal,
state, local or foreign investigation evaluating whether any remedial action is
needed to respond to a release or threatened release of any toxic or hazardous
waste, substance or constituent or other substance into the environment for
which the Parent or any of its Subsidiaries is or would be liable, which
liability would reasonably be expected to have a Material Adverse effect, or (d)
has received notice that the Parent or any of its Subsidiaries is or may be
liable to any Person under the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, 42 U.S.C. Section 9601 et seq., or
any analogous state, local or foreign law, which liability would reasonably be
expected to have a Material Adverse effect. The Parent and each of its
Subsidiaries is in compliance with the financial responsibility requirements of
federal, state, local and foreign environmental laws to the extent applicable,
including those contained in 40 C.F.R., parts 264 and 265, subpart H, and any
analogous federal, state, local or foreign law, except in those cases in which
the failure so to comply would not reasonably be expected to have a Material
Adverse effect.
4.15 Financial Statements
The Parent has heretofore delivered to the Administrative Agent
and the Lenders copies of its Form 10-K for the fiscal year ended January 31,
1995, containing the audited Consolidated Balance Sheets of the Parent and its
Subsidiaries as of such date and the related Consolidated Statements of Income,
Stockholders' Equity and Cash Flows for the fiscal year then ended
(collectively, with the applicable related notes and schedules, the "Financial
Statements"). The Financial Statements fairly present the Consolidated financial
condition and results of the operations of the Parent and its Subsidiaries as of
the dates and for the periods indicated therein and have been prepared in
conformity with GAAP as then in effect subject, in the case of interim Financial
Statements, to normal year-end adjustments. Neither the Parent nor any of its
Subsidiaries has any obligation or liability of any kind (whether fixed,
accrued, contingent, unmatured or otherwise) which, in accordance with GAAP as
then in effect, should have been disclosed in the Financial Statements and was
not. Since January 31, 1995, there has been no Material Adverse change.
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4.16 Franchises, Intellectual Property, Etc.
Each of the Parent and each of its Subsidiaries possesses or has
the right to use all franchises, Intellectual Property, licenses and other
rights as are material and necessary for the conduct of its business, and with
respect to which it is in compliance, with no known conflict with the valid
rights of others which could reasonably be expected to have a Material Adverse
effect. No event has occurred which permits or, to the best knowledge of the
Parent and the Borrowers, after notice or the lapse of time or both, or any
other condition, could reasonably be expected to permit, the revocation or
termination of any such franchise, Intellectual Property, license or other right
which revocation or termination could reasonably be expected to have a Material
Adverse effect.
4.17 Labor Relations
Except as set forth on Schedule 4.17, neither the Parent nor any
of its Subsidiaries is a party to any collective bargaining agreement and, to
the best knowledge of the Parent and the Borrowers, no petition has been filed
or proceedings instituted by any employee or group of employees with any labor
relations board seeking recognition of a bargaining representative with respect
to the Parent or such Subsidiary. There are no material controversies pending
between the Parent or any of its Subsidiaries and any of their respective
employees, which could reasonably be expected to have a Material Adverse effect.
5. CONDITIONS OF LENDING - LOANS ON THE FIRST BORROWING DATE
In addition to the requirements set forth in Section 6, the obligation of
each Lender to make one or more Loans, the obligation of the Swing Line Lender
to make one or more Swing Line Loans and the obligation of the Issuing Bank to
issue one or more Letters of Credit, on the first Borrowing Date (which shall
not occur prior to the Effective Date) is subject to the fulfillment of the
following conditions prior to or simultaneously with the making of such Loans or
the issuance of such Letters of Credit:
5.1 Evidence of Corporate Action
The Administrative Agent shall have received a certificate,
dated the first Borrowing Date, of the Secretary or Assistant Secretary of each
Credit Party (i) attaching a true and complete copy of the resolutions of its
Board of Directors and of all documents evidencing all necessary corporate
action (in form and substance reasonably satisfactory to the
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Administrative Agent) taken by it to authorize the Loan Documents to which it is
a party and the transactions contemplated thereby, (ii) attaching a true and
complete copy of its organizational documents, (iii) setting forth the
incumbency of its officer(s) who may sign such Loan Documents, including therein
a signature specimen of such officer(s), and (iv) attaching a certificate of
good standing of the Secretary of State of the State of its incorporation and
each of the jurisdictions listed on Schedule 5.1, in each case to the extent
such certificate of good standing is available.
5.2 Guaranty
Each of the Parent, Tiffany, Tiffany International and Tiffany
Japan shall have delivered to the Administrative Agent a guaranty, dated as of
the date hereof, executed by such Credit Party and in the form of Exhibit N (as
the same may be amended, supplemented or otherwise modified from time to time,
the "Guaranty").
5.3 Approvals
The Administrative Agent shall have received evidence reasonably
satisfactory to it that all approvals and consents of all Governmental
Authorities, and all approvals and all consents of all other Persons, in each
case which are required to be obtained in connection with the consummation of
the transactions contemplated by the Loan Documents have been obtained and that
all required notices have been given, and the Administrative Agent shall have
received a certificate, in all respects reasonably satisfactory to the
Administrative Agent, of the Responsible Officer to the foregoing effect to the
best knowledge of such officer.
5.4 Litigation
There shall be no injunction, writ, preliminary restraining order
or other order of any nature issued by any Governmental Authority in any respect
affecting any Loan Document or any transaction contemplated by the Loan
Documents, and no action or proceeding by or before any Governmental Authority
shall have been commenced and be pending seeking to prevent or delay any of the
foregoing or challenging any term or provision thereof or seeking any damages in
connection therewith, and the Administrative Agent shall have received a
certificate, in all respects reasonably satisfactory to the Administrative
Agent, of the executive officers or analogous counterparts of the Parent to the
foregoing effect to the best knowledge of such officer.
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5.5 Approval of Special Counsel
All legal matters incident to the making of the Loans on the first
Borrowing Date shall be reasonably satisfactory to Special Counsel, and the
Administrative Agent shall have received from Special Counsel an opinion, dated
the first Borrowing Date, substantially in the form of Exhibit P.
5.6 Opinion of Counsel to the Borrowers and the Parent
(a) The Administrative Agent shall have received an opinion of
Scott A. Klion, Esq., Associate General Counsel to the Parent and counsel to the
Domestic Borrowers, dated the first Borrowing Date, substantially in the form of
Exhibit O-1.
(b) The Administrative Agent shall have received, in respect of
each Borrower which is not a Domestic Borrower, an opinion of local foreign
counsel, reasonably satisfactory to the Administrative Agent, to such Borrower,
dated the first Borrowing Date, substantially in the form of Exhibit O-2.
5.7 Existing Indebtedness
All Indebtedness set forth on Schedule 5.7 shall have been paid in
full, all Liens, if any, securing the same shall have been terminated, and the
Administrative Agent shall have received satisfactory evidence of the foregoing.
5.8 Payment of Fees
The Parent and the Borrowers shall have paid to the Issuing Bank,
the Swing Line Lender, the Administrative Agent, the Arranging Agent and the
Lenders all fees and all expenses which they shall have agreed to pay, to the
extent such fees and expenses shall have become payable on or prior to the first
Borrowing Date, and shall have paid the reasonable fees and disbursements of
Special Counsel in connection with such agreement to the extent billed therefor.
5.9 Other Documents
The Administrative Agent shall have received such other documents
(including financial statements and projections), each in form and substance
reasonably satisfactory to the Administrative Agent, as the Administrative Agent
shall reasonably require in connection with the making of the first Loans and
the issuance of the first Letters of Credit.
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6. CONDITIONS OF LENDING - ALL LOANS AND LETTERS OF CREDIT
The obligation of each Lender to make each Loan, the obligation of the
Swing Line Lender to make each Swing Line Loan and the obligation of the Issuing
Bank to issue each Letter of Credit is subject to the fulfillment of the
following conditions precedent:
6.1 Compliance
On each Borrowing Date, and after giving effect to the Loans to be
made, and the Letters of Credit to be issued, on such Borrowing Date, (a) there
shall exist no Default or Event of Default and (b) the representations and
warranties contained in this Agreement shall be true and correct with the same
effect as though such representations and warranties had been made on such
Borrowing Date except to the extent that any representation or warranty under
Section 4.1 expressly relates to an earlier date.
6.2 Loan Closings
All documents required by the provisions of this Agreement to have
been executed or delivered by each Credit Party to the Administrative Agent, the
Issuing Bank, the Swing Line Lender or any Lender on or before the applicable
Borrowing Date shall have been so executed or delivered on or before such
Borrowing Date.
6.3 Borrowing or Letter of Credit Request
The receipt by the Administrative Agent of a Notice of Borrowing,
in the case of such Loan, or a Letter of Credit Request, in the case of a Letter
of Credit, executed by the Parent and the applicable Borrower making such
request.
6.4 Other Documents
The Administrative Agent shall have received such other documents
(including financial statements and projections), each in form and substance
reasonably satisfactory to the Administrative Agent, as the Administrative Agent
shall reasonably require in connection with the making of the Loans and the
issuance of the Letters of Credit on such Borrowing Date.
7. AFFIRMATIVE AND FINANCIAL COVENANTS
The Parent agrees that, so long as any Loan Document is in effect, any
Loan, Letter of Credit or reimbursement obligation (contingent or otherwise) in
respect of any Letter of
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Credit remains outstanding and unpaid, or any other amount is owing under any
Loan Document to any Lender or the Administrative Agent, the Parent will:
7.1 Legal Existence
Except as may otherwise be permitted by Sections 8.4, 8.5 and 8.6,
maintain, and cause each of its Subsidiaries to maintain, (a) its corporate or
partnership existence, as the case may be, and (b) such existence in good
standing in the jurisdiction of its incorporation or formation and in each other
jurisdiction in which the failure so to do could reasonably be expected to have
a Material Adverse effect; provided however, that subject to Section 8, nothing
in this Section 7.1 shall prevent the abandonment or termination of the
corporate existence or good standing of any Subsidiary of the Parent (other than
Tiffany, Tiffany International and Tiffany Japan) in any jurisdiction if (i), in
the reasonable judgment of the Parent and such Subsidiary, such abandonment or
termination is in the best interest of the Parent and its Subsidiaries taken as
a whole and would not have a Material Adverse effect and (ii) such Subsidiary,
at the time of such abandonment or termination, has no obligations, contingent
or otherwise, under any Loan Documents to any Lender, the Swing Line Lender, the
Issuing Bank or the Administrative Agent.
7.2 Taxes
Pay and discharge when due, and cause each of its Subsidiaries so
to do, all taxes, assessments, governmental charges, license fees and levies
upon or with respect to the Parent and such Subsidiary, and upon the income,
profits and Property thereof unless, and only to the extent, that (a) such
taxes, assessments, governmental charges, license fees and levies shall be
contested in good faith and by appropriate proceedings diligently conducted by
the Parent or such Subsidiary, and (b) such reserve or other appropriate
provision as shall be required by GAAP shall have been made therefor.
7.3 Insurance
Maintain, and cause each of its Subsidiaries to maintain,
insurance with financially sound insurance carriers against at least such risks,
and in at least such amounts, as are usually insured against by similar
businesses, including business interruption, public liability (bodily injury and
property damage), fidelity, workers' compensation (where required) and property
insurance, upon request a detailed list of such insurance then in effect,
stating the names of the carriers thereof, the policy numbers, the insureds
thereunder, the amounts of insurance, dates of expiration thereof, and the
Property and risks covered thereby; except that the Parent or
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any of its Subsidiaries may effect workers' compensation or similar insurance in
respect of operations in any jurisdiction either through an insurance fund
operated by such jurisdiction or by causing to be maintained a system or systems
of self-insurance which is in accord with applicable laws and good business
practice.
7.4 Performance of Obligations
Pay and discharge promptly when due, and cause each of its
Subsidiaries so to do, all lawful Indebtedness, obligations and claims for
labor, materials and supplies or otherwise which, if unpaid, could reasonably be
expected to (a) have a Material Adverse effect, or (b) become a Lien on the
Property of the Parent or any of its Subsidiaries, except those Liens permitted
under Section 8.3, provided that neither the Parent nor such Subsidiary shall be
required to pay or discharge or cause to be paid or discharged any such
Indebtedness, obligation or claim so long as (i) the validity thereof shall be
contested in good faith and by appropriate proceedings diligently conducted by
the Parent or such Subsidiary, and (ii) such reserve or other appropriate
provision as shall be required by GAAP shall have been made therefor.
7.5 Condition of Property
Except for ordinary wear and tear, at all times, maintain, protect
and keep in good repair, working order and condition, all Property used in the
operation of its business (other than Property which is replaced with similar
Property), except (i) to the extent that the failure so to do would not,
individually or in the aggregate, have a Material Adverse effect, and cause each
of its Subsidiaries so to do and (ii) as permitted under Sections 8.3 and 8.4.
7.6 Observance of Legal Requirements
Observe and comply in all material respects, and cause each of its
Subsidiaries so to do, with all laws, ordinances, orders, judgments, rules,
regulations, certifications, franchises, permits, licenses, directions and
requirements of all Governmental Authorities, which now or at any time hereafter
may be applicable to it or to such Subsidiary, a violation of which could
reasonably be expected to have a Material Adverse effect.
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7.7 Financial Statements and Other Information
Maintain, and cause each of its Subsidiaries to maintain, a
standard system of accounting in accordance with GAAP, and furnish to each
Lender:
(a) As soon as available and, in any event, within 105 days after
the close of each fiscal year, a copy of (i) the Balance Sheet as of the end of
such fiscal year, of the Parent on a Consolidated basis, and (ii) the related
Statements of Income, Cash Flows and Shareholder's Equity for such fiscal year,
of the Parent on a Consolidated basis, setting forth in each case in comparative
form the corresponding figures in respect of the previous fiscal year, all in
reasonable detail, and accompanied by, in the case of such Consolidated
financial statements, a report of the Accountants, which report shall state that
(A) the Accountants audited such Consolidated financial statements, (B) such
audit was made in accordance with generally accepted auditing standards in
effect at the time and provides a reasonable basis for such opinion, and (C)
said Consolidated financial statements have been prepared in accordance with
GAAP;
(b) Simultaneously with the delivery of the certified statements
required by clause (a) above, copies of a certificate of such Accountants
stating that, in making the examination necessary for their audit of the
Consolidated financial statements of the Parent for such fiscal year, nothing
came to their attention of a financial or accounting nature that caused them to
believe that there shall have occurred any condition or event which would
constitute a Default or an Event of Default, or, if so, specifying in such
certificate all such Defaults and Events of Default and the nature and status
thereof;
(c) As soon as available, and in any event within 50 days after
the end of each of the first three fiscal quarters, and 105 days after the end
of the last fiscal quarter, of each fiscal year, a copy of (i) the Balance
Sheet, as of the end of such quarter, of the Parent on a Consolidated basis and
(ii) the related Statements of Income, Cash Flows and Shareholder's Equity, of
the Parent on a Consolidated basis for (x) such quarter, and (y) the period from
the beginning of the then current fiscal year to the end of such quarter, in
each case in comparative form with the prior fiscal year, all in reasonable
detail and prepared in accordance with GAAP (without footnotes and subject to
year-end adjustments), together with a certificate of the Responsible Officer,
which certificate shall state that all such financial statements fairly present
the financial condition and results of operations of the Parent and its
Subsidiaries and have been
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prepared in accordance with GAAP (but without footnotes and subject to year-end
adjustments);
(d) Notwithstanding anything to the contrary contained herein, the
Parent may satisfy its obligation to furnish (i) the Consolidated financial
statements referred to in clause (a) above by furnishing, as soon as available,
and in any event within 105 days after the end of the applicable fiscal year, a
copy of the annual audited Consolidated financial statements of the Parent and
its Subsidiaries prepared in conformity with GAAP and as filed with the SEC for
such fiscal year, and (ii) the Consolidated financial statements referred to in
clause (c) above by furnishing, as soon as available, and in any event within 50
days after the end of the applicable fiscal quarter, copies of the Consolidated
financial statements of the Parent and its Subsidiaries as filed with the SEC
for the applicable fiscal quarter;
(e) Simultaneously with the delivery of the financial statements
required by clauses (a), (c) and (d) above, a certificate of the Responsible
Officer certifying that to the best of his knowledge no condition or event has
occurred which would constitute a Default or an Event of Default, or if so,
specifying in such certificate all such violations, conditions and events and
the nature and status thereof;
(f) Within 50 days after the end of each of the first three fiscal
quarters, and within 105 days after the end of the last fiscal quarter, of each
fiscal year, a Compliance Certificate, as of the end of such fiscal quarter,
certified by the Responsible Officer;
(g) As soon as available, and in any event within two Business
Days after any downgrade or withdrawal by either S&P or Moody's of the senior
unsecured long term debt Rating assigned to the Parent, written notice to the
Administrative Agent and each Lender thereof, and the effective date thereof, in
each case certified by the Responsible Officer;
(h) Prompt written notice upon the Parent or any of its
Subsidiaries obtaining knowledge that: (i) any Indebtedness of the Parent or any
of its Subsidiaries in an aggregate amount in excess of $5,000,000 shall have
been declared or become due and payable prior to its stated maturity, or called
and not paid when due, or required to be purchased or otherwise acquired by the
Parent or any of its Subsidiaries prior to its stated maturity, and whether such
acceleration shall have been rescinded or annulled, or (ii) the holders of any
notes, or other evidence of Indebtedness, certificates or securities evidencing
any such Indebtedness, or any obligees with respect to any other Indebtedness of
the Parent or any of its Subsidiaries, have the right to declare Indebtedness in
an
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aggregate amount in excess of $5,000,000 due and payable prior to its stated
maturity or have the right to require the Parent or any of its Subsidiaries to
purchase or otherwise acquire any such Indebtedness prior to its stated maturity
and whether such right shall have been waived;
(i) Prompt written notice of: (i) any citation, summons, subpoena,
order to show cause or other order naming the Parent or any of its Subsidiaries
a party to any proceeding before any Governmental Authority which could
reasonably be expected to have a Material Adverse effect, and include with such
notice a copy of such citation, summons, subpoena, order to show cause or other
order, (ii) any lapse or other termination of any license, permit, franchise or
other authorization issued to the Parent or any of its Subsidiaries by any
Governmental Authority, (iii) any refusal by any Governmental Authority to renew
or extend any license, permit, franchise or other authorization, and (iv) any
dispute between the Parent or any of its Subsidiaries and any Governmental
Authority, which lapse, termination, refusal or dispute, referred to in clause
(ii), (iii) or (iv) above, could reasonably be expected to have a Material
Adverse effect;
(j) Promptly upon becoming available, copies of all regular,
periodic or special reports, schedules, proxy statements, registration
statements, 10-Ks, 10-Qs and 8-Ks which the Parent or any of its Subsidiaries
may now or hereafter be required to file with or deliver to any securities
exchange or the SEC, and copies of all material news releases sent to financial
analysts;
(k) Prompt written notice in the event that the Parent or any of
its Subsidiaries knows, or has reason to know, that (i) any Termination Event
with respect to a Pension Plan has occurred or will occur, (ii) any condition
exists with respect to a Pension Plan (other than a Multiemployer Plan) which
presents a material risk of termination of such Pension Plan by the PBGC,
imposition of an excise tax on the Parent, any of its Subsidiaries or any ERISA
Affiliate or the requirement that the Parent, any of its Subsidiaries or any
ERISA Affiliate provide security to any Pension Plan, (iii) the Parent, any of
its Subsidiaries or any ERISA Affiliate has applied for a waiver of the minimum
funding standard under Section 412 of the Code with respect to a Pension Plan,
(iv) the aggregate amount of the Unfunded Pension Liabilities under all Pension
Plans (other than Multiemployer Plans) has increased to an amount in excess of
$2,000,000, (v) the aggregate amount of Unrecognized Retiree Welfare Liability
under all applicable Employee Benefit Plans has increased to an amount in excess
of $2,000,000, (vi) the Parent, any of its Subsidiaries or any ERISA Affiliate
has engaged in a Prohibited Transaction with respect to an Employee Benefit
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Plan, (vii) the imposition of a tax upon the Parent or any of its Subsidiaries
under Section 4980B(a) of the Code, or (viii) the assessment of a civil penalty
under Section 502(c) of ERISA against the Parent or any of its Subsidiaries, or
(ix) any condition with respect to a Multiemployer Plan exists which presents a
risk of material liability to the Parent or any of its Subsidiaries or would
reasonably be expected to have a Material Adverse effect, in each case together
with a certificate of the Responsible Officer setting forth the details of such
event and the action which the Parent, such Subsidiary or such ERISA Affiliate
proposes to take with respect thereto, together with a copy of all notices and
filings with respect thereto;
(l) Prompt written notice in the event that the Parent, any of its
Subsidiaries or any ERISA Affiliate shall receive a demand letter from the PBGC
notifying the Parent, such Subsidiary or such ERISA Affiliate of any final
decision finding liability of the Parent, any of its Subsidiaries or any ERISA
Affiliate and the date by which such liability must be paid, together with a
copy of such letter and a certificate of the Responsible Officer setting forth
the action which the Parent, such Subsidiary or such ERISA Affiliate proposes to
take with respect thereto;
(m) Promptly upon the same becoming available, and in any event by
the date such amendment is adopted, a copy of any Pension Plan amendment that
the Parent, any of its Subsidiaries or any ERISA Affiliate proposes to adopt
which would require the posting of security under Section 401(a)(29) of the
Code, together with a certificate of the Responsible Officer setting forth the
reasons for the adoption of such amendment and the action which the Parent, such
Subsidiary or such ERISA Affiliate proposes to take with respect thereto;
(n) As soon as possible and in any event by the 10th day after any
required installment or other payment under Section 412 of the Code owed to a
Pension Plan by the Parent, any of its Subsidiaries or any ERISA Affiliate shall
have become due and owing and remain unpaid a copy of the notice of failure to
make required contributions provided to the PBGC by the Parent, any of its
Subsidiaries or any ERISA Affiliate under Section 412(n) of the Code, together
with a certificate of the Responsible Officer setting forth the action which the
Parent, such Subsidiary or such ERISA Affiliate proposes to take with respect
thereto;
(o) If the termination of any Pension Plan would result in the
imposition of any tax under Section 4980 of the Code, then as soon as possible,
but in no event less than 60 days before the due date of the tax, a certificate
of the Responsible Officer setting forth the estimated amount of the
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tax, any reversion, and the proposed use of the reversion (this Section 7.7(o)
shall apply to a transaction notwithstanding a reduction or complete elimination
of the tax because of the operation of either Sections 4980(d) or 420(a)(3)(A)
of the Code);
(p) Upon a Responsible Officer becoming aware thereof, prompt
written notice that a material contribution required to be made to any Foreign
Pension Plan has not been timely made, the failure of which would reasonably be
expected to have a Material Adverse effect;
(q) Upon a Responsible Officer becoming aware thereof, prompt
written notice of the occurrence of (i) each Default, (ii) each Event of
Default, and (iii) each Material Adverse change;
(r) Promptly upon receipt thereof, copies of all audit reports
relating to the Parent or any of its Subsidiaries submitted by the Accountants
in connection with each annual, interim or special audit of the books of the
Parent or any of its Subsidiaries; and
(s) Promptly upon request therefor, such other information and
reports regarding the business, condition (financial or otherwise), property or
prospects of the Parent and its Subsidiaries, as the Administrative Agent or any
Lender at any time or from time to time may reasonably request.
7.8 Inspection
At all reasonable times, upon reasonable prior notice, permit
representatives of the Administrative Agent or any Lender to visit the offices
of the Parent or each of its Subsidiaries, to examine the books and records
thereof and Accountants' reports relating thereto, and to make copies or
extracts therefrom, to discuss the affairs of the Parent or each of its
Subsidiaries with the respective officers thereof, and to examine and inspect
the Property of the Parent or each of its Subsidiaries and to meet and discuss
the affairs of the Parent and each of its Subsidiaries with the Accountants.
7.9 Authorizations
Maintain and cause each of its Subsidiaries to maintain, in full
force and effect, all copyrights, patents, trademarks, trade names, franchises,
licenses, permits, applications, reports, and other authorizations and rights,
as are necessary for the conduct from time to time of their businesses, except
to the extent the failure so to maintain such items, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse effect.
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7.10 Subsidiaries
(a) At all times maintain (directly or indirectly), beneficially
and of record, (i) at least 51% of the voting control of, and at least 51% of
the equity in, Tiffany & Co. K.K., and (ii) 100% of the voting control of, and
100% of the equity in, each other Subsidiary Borrower.
(b) Except as set forth on Schedule 4.1 or as may otherwise be
permitted by Sections 8.4, 8.5 and 8.6, at all times maintain (directly or
indirectly), beneficially and of record, 100% of the voting control of, and 100%
of the equity in, each of its other Subsidiaries.
7.11 Leverage Ratio
At all times have a Leverage Ratio not greater than 0.55:1.00.
7.12 Interest Coverage Ratio
At all times have an Interest Coverage Ratio greater than
2.50:1.00.
8. NEGATIVE COVENANTS
The Parent agrees that, so long as any Loan Document is in effect, any
Loan, Letter of Credit or reimbursement obligation (contingent or otherwise) in
respect of any Letter of Credit remains outstanding and unpaid, or any other
amount is owing under any Loan Document to any Lender, the Swing Line Lender or
the Administrative Agent, the Parent shall not, directly or indirectly:
8.1 Indebtedness
Create, incur, assume or suffer to exist any Indebtedness, or
permit any of its Subsidiaries so to do, except any one or more of the following
types of Indebtedness: (a) Indebtedness under the Loan Documents, (b)
Indebtedness of the Subsidiaries of the Parent in an aggregate principal amount
not in excess of $25,000,000 at any one time outstanding (i) in respect of
capital leases, (ii) secured by Liens on Property acquired by any such
Subsidiary after the date hereof provided that such Liens are in existence on
the date of such acquisition and were not placed on such Property in
contemplation of such acquisition, and (iii) other purchase money Indebtedness
of the Subsidiaries of the Parent, provided that, in each case under this clause
(b), the Lien securing such Indebtedness is permitted by Section 8.3, (c)
Indebtedness set forth on Schedule 8.1 and any refinancings, extensions and
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renewals thereof, (d) Indebtedness set forth on Schedule 5.7, provided that it
will be repaid in full simultaneously with the making of the Loans on the first
Borrowing Date, (e) Intercompany Debt, (f) other Indebtedness of the
Subsidiaries of the Parent in an aggregate principal amount at any one time
outstanding not to exceed the difference between (x) $35,000,000 and (y) the
outstanding principal amount of all Indebtedness under (b) above, provided that
immediately before and after giving effect to the creation, incurrence or
assumption of such Indebtedness no Default or Event of Default shall or would
exist, (g) Indebtedness of the Parent, provided that immediately before and
after giving effect to the creation, incurrence or assumption of such
Indebtedness no Default or Event of Default shall or would exist, (h)
Indebtedness in the form of a deferred payable of Tiffany to Mitsukoshi Limited
in the principal amount of 2.5 billion Japanese yen and (i) Indebtedness of
Tiffany Japan (which Indebtedness may be guaranteed by the Parent, Tiffany
and/or Tiffany International) up to a maximum principal amount in the aggregate
of 7.7 billion Japanese yen, which Indebtedness (including any such guaranty
thereof) (i) shall mature no earlier than June 30, 2001, (ii) shall not require
principal amortization, sinking fund or similar payments in excess of 25% of the
initial principal amount of such Indebtedness before June 30, 2001, (iii) shall
be unsecured and (iv) shall contain affirmative, financial and negative
covenants with respect to the Parent, Tiffany and Tiffany International no more
limiting or restrictive than those contained in this Agreement, provided that
immediately before and after giving effect to the incurrence of such
Indebtedness no Default or Event of Default shall or would exist and provided
further that Tiffany Japan shall immediately make available to Tiffany from the
proceeds of such Indebtedness an amount equal to the outstanding principal
amount of and accrued interest on the Indebtedness of Tiffany to Mitsukoshi
Limited referred to in clause (h) above to enable Tiffany immediately to repay
in full and cancel such Indebtedness.
8.2 Interest Rate Protection Arrangements and Other Hedging Arrangements
Create, incur, assume or suffer to exist any indebtedness under or
in respect of any Interest Rate Protection Arrangement or any Other Hedging
Arrangement, or permit any of its Subsidiaries so to do, except (i) foreign
currency purchased put options and forward exchange contracts intended to reduce
the risk on foreign currency denominated transactions and (ii) interest rate
swap agreements to modify the interest rate characteristics of up to
$100,000,000 notional principal amount of Indebtedness.
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8.3 Liens
Create, incur, assume or suffer to exist any Lien against or on
any Property now owned or hereafter acquired by the Parent or any of its
Subsidiaries, or permit any of its Subsidiaries so to do, except any one or more
of the following types of Liens: (a) Liens in connection with workers'
compensation, unemployment insurance or other social security obligations (which
phrase shall not be construed to refer to ERISA or the minimum funding
obligations under Section 412 of the Code), (b) Liens to secure the performance
of bids, tenders, letters of credit, contracts (other than contracts for the
payment of Indebtedness), leases, statutory obligations, surety, customs,
appeal, performance and payment bonds and other obligations of like nature, in
each such case arising in the ordinary course of business, (c) mechanics',
workmen's, carriers', warehousemen's, materialmen's, landlords', or other like
Liens arising in the ordinary course of business with respect to obligations
which are not due or which are being contested in good faith and by appropriate
proceedings diligently conducted, (d) Liens for taxes, assessments, fees or
governmental charges the payment of which is not required by Section 7.2, (e)
easements, rights of way, restrictions, leases of Property to others, easements
for installations of public utilities, title imperfections and restrictions,
zoning ordinances and other similar encumbrances affecting Property which in the
aggregate do not materially impair its use for the operation of the business of
the Parent or such Subsidiary, (f) Liens set forth on Schedule 8.3 and any
renewal thereof, (g) Liens under capital leases and Liens on Property
(including, in the event such Property constitutes capital stock of a newly
acquired Subsidiary of the Parent, Liens on the Property of such Subsidiary)
hereafter acquired and either existing on such Property when acquired, or
created contemporaneously with such acquisition, to secure the payment or
financing of the purchase price thereof, provided that such Liens attach only to
the Property so purchased or acquired and provided further that the Indebtedness
secured by such Liens is permitted by Section 8.1(b), (h) Liens created under
the Loan Documents, (i) statutory Liens in favor of lessors arising in
connection with Property leased to the Parent or any of its Subsidiaries, (j)
Liens of attachments, judgments or awards against the Parent or any of its
Subsidiaries with respect to which an appeal or proceeding for review shall be
pending or a stay of execution shall have been obtained, or which are otherwise
being contested in good faith and by appropriate proceedings diligently
conducted, and in respect of which adequate reserves shall have been established
in accordance with GAAP on the books of the Parent or such Subsidiary, and (k)
Intercompany Liens.
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8.4 Dispositions
Make any Disposition or permit any of its Subsidiaries so to do,
except any one or more of the following: (a) Dispositions of any Investments
permitted under Sections 8.7(a), (b), (c), (d) or (e), (b) Intercompany
Dispositions, (c) Dispositions in the ordinary course of business (including the
disposition of closed stores and the disposition of certain New Jersey
facilities in connection with the consolidation of such facilities' operations
into a new facility to be constructed and leased in Parsippany, New Jersey), and
(d) other Dispositions of Property having a fair market value which, when
aggregated with the fair market value of all other Dispositions of Property
(other than Dispositions described in the preceding clauses (a), (b) and (c)
made on and after the Effective Date, would not exceed $75,000,000 on a
Consolidated basis, provided, however, that immediately before and after giving
effect thereto, no Default or Event of Default shall or would exist.
8.5 Merger or Consolidation, Etc.
(a) Consolidate with, be acquired by, or merge into or with any
Person, or, except as permitted by Section 8.4, convey or otherwise transfer all
or substantially all of its Property, or permit any of its Subsidiaries so to
do, except that:
(i) any of its wholly-owned Subsidiaries (other than a
Borrower) may consolidate with or merge with any of its other Subsidiaries
(other than a Borrower), or convey or transfer all or substantially all of its
Property to any of its other wholly-owned Subsidiaries (other than a Borrower),
provided that (x) immediately before and after giving effect thereto no Default
or Event of Default shall or would exist and (y) the Administrative Agent shall
have received 15 Business Days' prior written notice thereof, and
(ii) any of its wholly-owned Subsidiaries may consolidate with
or merge with any Subsidiary Borrower, or convey or transfer all or
substantially all of its Property to any Subsidiary Borrower, provided that (w)
immediately before and after giving effect thereto no Default or Event of
Default shall or would exist, (x) such Subsidiary Borrower shall be the survivor
of such consolidation or merger, (y) the Administrative Agent shall have
received 15 Business Days' prior written notice of such consolidation, merger,
conveyance or transfer, and (z) the Administrative Agent shall have received
such documents, opinions and certificates as the Administrative Agent shall have
reasonably requested in connection therewith.
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8.6 Acquisitions
Make any Acquisition, or permit any of its Subsidiaries so to do,
except any one or more of the following: (a) Acquisitions of Investments
permitted by Section 8.7, (b) Intercompany Acquisitions permitted by Section
8.5, and (c) Acquisitions by the Parent or any of its Subsidiaries, provided
that (i) immediately before and after giving effect to each such Acquisition no
Default or Event of Default shall or would exist, (ii) immediately after giving
effect to each such Acquisition, all of the representations and warranties
contained in Section 4 shall be true and correct as if then made except to the
extent that any representation or warranty under Section 4.1 expressly relates
to an earlier date, and (iii) the aggregate consideration paid for all such
Acquisitions shall not exceed $50,000,000.
8.7 Investments
Any time hold, purchase, invest in or otherwise acquire any
derivative product or any interest therein or any debt security or Stock of, or
any other equity interest in, any Person, or make any loan or advance to, or
enter into any arrangement for the purpose of providing funds or credit to, or
make any other investment, whether by way of capital contribution or otherwise,
in any Person (all of which are sometimes referred to herein as "Investments"),
or permit any of its Subsidiaries so to do, except any one or more of the
following Investments: (a) Investments in short-term direct obligations of the
United States of America (and not the agencies or instrumentalities thereof),
(b) Investments in short-term debt securities of any issuer, provided that the
principal thereof and interest thereon is unconditionally guaranteed by the
United States of America (and not the agencies or instrumentalities thereof),
(c) Investments in short-term certificates of deposit, in Dollars, of any Lender
or any other depository institution chartered under the laws of the United
States of America or any State thereof the deposits of which are insured by the
Federal Deposit Insurance Corporation and which has capital and undivided
surplus of not less than $500,000,000, (d) Investments in commercial paper
having a commercial paper rating of not lower than (i) A-1 by S&P, or (ii) P-1
by Moody's, (e) Investments existing on the date hereof and set forth on
Schedule 8.7, (f) Investments in Intercompany Debt, (g) Investments in the
Parent or any Subsidiary or any Person who immediately thereafter becomes a
Subsidiary, (h) Investments from the net cash proceeds received from the
issuance of additional shares of the Parent's capital stock, (i) Acquisitions
permitted by Section 8.6, (j) Investments in short-term certificates of deposit
or similar instruments, in any Currency other than Dollars, of any bank which
has capital and undivided surplus of not less
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than the equivalent of $1,000,000,000, and (k) additional Investments in an
aggregate amount not exceeding $5,000,000 or the equivalent thereof.
8.8 Restricted Payments
Make any Restricted Payment or permit any of its Subsidiaries so
to do, except any one or more of the following Restricted Payments: (a) any
direct or indirect wholly-owned Subsidiary of the Parent may make dividends or
other distributions to the Parent or to any other direct or indirect
wholly-owned Subsidiary of the Parent, (b) the Parent may make regular
periodic dividends at a rate which is substantially consistent with past
practice, provided that immediately before and after giving effect thereto, no
Default or Event of Default shall or would exist, and (c) The Parent may from
time to time purchase up to $100,000,000 in aggregate amount of its Stock,
provided that immediately before and after giving effect thereto no Default or
Event of Default shall or would exist.
8.9 Limitation on Upstream Dividends by Subsidiaries
Permit, cause or suffer to exist, any of its Subsidiaries to enter
into or agree, or otherwise be or become subject, to any agreement, contract or
other arrangement (other than this Agreement) with any Person pursuant to the
terms of which (a) such Subsidiary is or would be prohibited from declaring or
paying any cash dividends on any class of its stock owned directly or indirectly
by the Parent or any of its other Subsidiaries or from making any other
distribution on account of any class of any such stock (herein referred to as
"Upstream Dividends"), or (b) the declaration or payment of Upstream Dividends
by a Subsidiary of the Parent to the Parent or another Subsidiary of the Parent,
on an annual or cumulative basis, is or would be otherwise limited or
restricted.
8.10 Transactions with Affiliates
Become, or permit any of its Subsidiaries to become, a party to
any material transaction with any Affiliate of the Parent on a basis less
favorable in any material respect than if such transaction were not with an
Affiliate of the Parent.
9. DEFAULT
9.1 Events of Default
The following shall each constitute an "Event of Default"
hereunder:
(a) The failure of any Borrower to make any principal payment on
any Loan or any reimbursement payment in respect of any Letter of Credit when
due and payable; or
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(b) The failure of any Borrower to make payment of any installment
of interest on any Loan or any fee or other amount payable under or in respect
of any Loan Document on the date when due and payable and such default shall
continue unremedied for a period of three Business Days after the same shall
have become due; or
(c) The failure of the Parent or any Borrower to observe or
perform any covenant or agreement contained in Section 2.18, 7.1(a), 7.11 or
7.12, or in Section 8; or
(d) The failure of the Parent or any Borrower to observe or
perform any other covenant or agreement contained in this Agreement, and such
failure shall have continued unremedied for a period of 30 days after any
Responsible Officer shall have become aware of such failure; or
(e) Any representation or warranty of any Credit Party (or of any
of its officers on its behalf) made in any Loan Document or in any certificate,
report, opinion (other than an opinion of counsel) or other document delivered
on or after the date hereof pursuant to any Loan Document, shall in any such
case prove to have been incorrect or misleading (whether because of misstatement
or omission) in any material respect when made; or
(f) (i) Liabilities and/or other obligations in an aggregate
amount in excess of $5,000,000 of the Parent or any of its Subsidiaries on a
Consolidated basis (other than the obligations hereunder and Intercompany Debt),
whether as principal, guarantor, surety or other obligor, for the payment or
purchase of any Indebtedness, (A) shall become or shall be declared to be due
and payable prior to the expressed maturity thereof (unless such acceleration
shall have thereafter been unconditionally rescinded or annulled prior to the
time that the Aggregate Commitment has been terminated or the Loans have become
or been declared due and payable), or (B) shall not be paid when due or within
any grace period for the payment or purchase thereof, or (ii) any holder of any
such obligations shall have the right to declare the Indebtedness evidenced
thereby due and payable or to require the purchase of the Indebtedness evidenced
thereby prior to its stated maturity (unless such right shall thereafter have
been unconditionally waived prior to the time such holder shall have declared
such Indebtedness due and payable or required the purchase of such
Indebtedness); or
(g) The Parent or any of its Subsidiaries shall (i) suspend or
discontinue its business (except as may otherwise be expressly permitted
herein), or (ii) make an assignment for the benefit of creditors, or (iii)
generally not be paying its debts as such debts become due, or (iv) admit in
writing its
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inability to pay its debts as they become due, or (v) file a voluntary petition
in bankruptcy, or (vi) become insolvent (however such insolvency shall be
evidenced), or (vii) file any petition or answer seeking for itself any
reorganization, arrangement, composition, readjustment of debt, liquidation or
dissolution or similar relief under any present or future statute, law or
regulation of any jurisdiction, or (viii) petition or apply to any tribunal for
any receiver, custodian or any trustee for any substantial part of its Property,
or (ix) be the subject of any such proceeding filed against it which remains
undismissed for a period of 45 days, or (x) file any answer admitting or not
contesting the material allegations of any such petition filed against it, or of
any order, judgment or decree approving such petition in any such proceeding, or
(xi) seek, approve, consent to, or acquiesce in any such proceeding, or in the
appointment of any trustee, receiver, custodian, liquidator, or fiscal agent for
it, or any substantial part of its Property, or an order is entered appointing
any such trustee, receiver, custodian, liquidator or fiscal agent and such order
remains unstayed and in effect for 45 days; or
(h) An order for relief is entered under the bankruptcy or
insolvency laws of any jurisdiction and continues unstayed and in effect for a
period of 60 days (i) adjudging the Parent or any of its Subsidiaries as
bankrupt or insolvent, or (ii) approving as properly filed a petition seeking
reorganization, liquidation, arrangement, adjustment or composition of, or in
respect of the Parent or any of its Subsidiaries under the bankruptcy or
insolvency laws of any jurisdiction, or (iii) appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or other similar official) of the
Parent or any of its Subsidiaries or of any substantial part of the Property of
any thereof, or (iv) ordering the winding up or liquidation of the affairs of
the Parent or any of its Subsidiaries and any such decree or order continues
unstayed and in effect for a period of 60 days; or
(i) Judgments or decrees in an aggregate amount in excess of
$5,000,000 on a Consolidated basis against the Parent or any of its Subsidiaries
(except to the extent covered by insurance, provided that each applicable
insurance company has expressly assumed responsibility with respect to the
applicable underlying claim) shall remain unpaid, unstayed on appeal,
undischarged, unbonded or undismissed for a period of 30 days; or
(j) A Change of Control shall occur; or
(k) Any license, franchise, permit, right, approval or agreement
of the Parent or any of its Subsidiaries to own
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or operate any Operating Entity owned or operated by the Parent or such
Subsidiary is not renewed, or is suspended or revoked, and the non-renewal,
suspension or revocation is irrevocable and not subject to appeal or challenge
and would have a Material Adverse effect; or
(l) (i) any Termination Event shall occur with respect to any
Pension Plan (other than a Multiemployer Plan); (ii) any Accumulated Funding
Deficiency in excess of $2,000,000, whether or not waived, shall exist with
respect to any Pension Plan (other than a Multiemployer Plan); (iii) any Person
shall engage in any Prohibited Transaction involving any Employee Benefit Plan
which would have a Material Adverse effect; (iv) the Parent, any of its
Subsidiaries or any ERISA Affiliate shall fail to pay when due an amount which
is payable by it to the PBGC or to a Pension Plan (including a Multiemployer
Plan) under Title IV of ERISA and such non-payment would have a Material Adverse
effect; (v) the imposition of any tax under Section 4980(B)(a) of the Code; (vi)
the assessment of a civil penalty with respect to any Employee Benefit Plan
under Section 502(c) of ERISA; (vii) any other event or condition shall occur or
exist with respect to an Employee Benefit Plan which would have a Material
Adverse effect; (viii) a contribution required to be made to a Foreign Pension
Plan has not been timely made which would have a Material Adverse effect; or
(ix) the Parent or any of its Subsidiaries has incurred or is likely to incur
liabilities pursuant to one or more Foreign Pension Plans which would have a
Material Adverse effect; or
(m) (i) Any Loan Document shall cease to be in full force and
effect, or an "Event of Default" shall have occurred under, and as such term is
defined therein, or (ii) the failure of any Credit Party to observe or perform
any obligation on its part to be observed or performed under any Loan Document,
and such failure shall have continued unremedied for a period of 30 days after
any Responsible Officer shall have become aware of such failure, or any Credit
Party shall disavow in writing any of its obligations thereunder.
Upon the occurrence of an Event of Default or at any time
thereafter during the continuance thereof, (a) if such event is an Event of
Default specified in clause (g) or (h) above, the Aggregate Commitments, the
Swing Line Commitment, the Individual Currency Commitments and the Letter of
Credit Commitment shall immediately and automatically terminate and the Loans,
all accrued and unpaid interest thereon, any reimbursement obligations owing or
contingently owing in respect of all outstanding Letters of Credit and all other
amounts owing under the Loan Documents shall immediately become due and payable,
and the Parent and the applicable Letter
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of Credit Applicants shall forthwith deposit an amount equal to the Letter of
Credit Exposure in a cash collateral account with and under the exclusive
control of the Administrative Agent, and the Administrative Agent may, and, upon
the direction of the Required Lenders shall, exercise any and all remedies and
other rights provided in the Loan Documents, and (b) if such event is any other
Event of Default, any or all of the following actions may be taken: (i) with the
consent of the Required Lenders, the Administrative Agent may, and upon the
direction of the Required Lenders shall, by notice to the Parent (on behalf of
all Borrowers), declare the Aggregate Commitments, the Swing Line Commitment,
the Individual Currency Commitments and the Letter of Credit Commitment to be
terminated forthwith, whereupon the Aggregate Commitments, the Swing Line
Commitment, the Individual Currency Commitments and the Letter of Credit
Commitment shall immediately terminate, and (ii) with the consent of the
Required Lenders, the Administrative Agent may, and upon the direction of the
Required Lenders shall, by notice of default to the Parent (on behalf of all
Borrowers), declare the Loans, all accrued and unpaid interest thereon, any
reimbursement obligations owing or contingently owing in respect of all
outstanding Letters of Credit and all other amounts owing under the Loan
Documents to be due and payable forthwith, whereupon the same shall immediately
become due and payable, and the Parent and the applicable Letter of Credit
Applicants shall forthwith deposit an amount equal to the Letter of Credit
Exposure in a cash collateral account with and under the exclusive control of
the Administrative Agent, and the Administrative Agent may, and upon the
direction of the Required Lenders shall, exercise any and all remedies and other
rights provided pursuant to the Loan Documents. Except as otherwise provided in
this Section, presentment, demand, protest and all other notices of any kind are
hereby expressly waived.
In the event that the Aggregate Commitments, the Swing Line
Commitment, the Individual Currency Commitments and the Letter of Credit
Commitment shall have been terminated or the Loans shall have been declared due
and payable pursuant to the provisions of this Section, any funds received by
the Administrative Agent and the Lenders from or on behalf of any Borrower shall
be applied by the Administrative Agent and the Lenders in liquidation of the
Loans and the obligations of the Credit Parties under the Loan Documents in the
following manner and order: (i) first, to the payment of interest on, and then
the principal portion of, any Loans which the Administrative Agent may have
advanced on behalf of any Lender for which the Administrative Agent has not then
been reimbursed by such Lender or the Credit Parties; (ii) second, to the
payment of any expenses due the Administrative Agent from the Credit Parties,
(iii) third, to reimburse the Administrative Agent and the Lenders for any
expenses (to the extent not paid pursuant
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to clause (ii) above due from the Parent and the Borrowers pursuant to the
provisions of Section 11.5; (iv) fourth, to the payment of accrued Facility
Fees, Letter of Credit Commissions and all other fees, expenses and amounts due
under or in respect of the Loan Documents (other than principal and interest on
the Loans and reimbursement obligations and interest thereon with respect to the
Letters of Credit); (v) fifth, to the payment of interest due on the Loans and
due on reimbursement obligations with respect to the Letters of Credit; (vi)
sixth, to the payment of principal outstanding on the Loans and reimbursement
obligations with respect to the Letters of Credit; and (vii) seventh, to the
payment of any other amounts owing to the Administrative Agent and the Lenders
under the Loan Documents.
10. THE ADMINISTRATIVE AGENT
10.1 Appointment
Each Lender hereby irrevocably designates and appoints BNY as the
Administrative Agent of such Lender under the Loan Documents and each such
Lender hereby irrevocably authorizes BNY, as the Administrative Agent for such
Lender, to take such action on its behalf under the provisions of the Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of the Loan Documents,
together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement or any
Loan Document, the Administrative Agent shall not have any duties or
responsibilities other than those expressly set forth herein or therein, or any
fiduciary relationship with the Issuing Bank, the Swing Line Lender or any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into the Loan Documents or otherwise
exist against the Administrative Agent.
10.2 Delegation of Duties
The Administrative Agent may execute any of its duties under the
Loan Documents by or through agents or attorneys-in-fact and shall be entitled
to rely upon the advice of counsel concerning all matters pertaining to such
duties.
10.3 Exculpatory Provisions
Neither the Administrative Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates shall be (i)
liable for any action lawfully taken
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or omitted to be taken by it or such Person under or in connection with the Loan
Documents (except the Administrative Agent for its own gross negligence or
willful misconduct), or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Credit
Parties or any officers of the Credit Parties contained in the Loan Documents or
in any certificate, report, statement or other document referred to or provided
for in, or received by the Administrative Agent under or in connection with, the
Loan Documents or for the value, validity, effectiveness, genuineness,
perfection, enforceability or sufficiency of any of the Loan Documents or for
any failure of the Credit Parties or any other Person to perform its obligations
hereunder or thereunder. The Administrative Agent shall not be under any
obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, the Loan
Documents, or to inspect the properties, books or records of the Credit Parties.
The Administrative Agent shall not be under any liability or responsibility
whatsoever, as Administrative Agent, to the Credit Parties or any other Person
as a consequence of any failure or delay in performance, or any breach, by any
Lender of any of its obligations under the Loan Documents.
10.4 Reliance by Administrative Agent
The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, opinion, letter, cablegram, telegram, fax, telex or
teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including
counsel to any of the Credit Parties), independent accountants and other experts
selected by the Administrative Agent. The Administrative Agent may treat each
Lender, or the Person designated in the last notice filed with it under this
Section, as the holder of all of the interests of such Lender in its Loans until
written notice of transfer, signed by such Lender (or the Person designated in
the last notice filed with the Administrative Agent) and by the Person
designated in such written notice of transfer, in form and substance
satisfactory to the Administrative Agent, shall have been filed with the
Administrative Agent. The Administrative Agent shall not be under any duty to
examine or pass upon the validity, effectiveness, enforceability, perfection or
genuineness of any of the Loan Documents or any instrument, document or
communication furnished pursuant hereto or thereto or in connection herewith or
therewith, and the Administrative Agent shall be entitled to assume that the
same are valid, effective and genuine, have been
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signed or sent by the proper parties and are what they purport to be. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under the Loan Documents unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under the Loan Documents in accordance with a request or direction of
the Required Lenders, and such request or direction and any action taken or
failure to act pursuant thereto shall be binding upon the Issuing Bank, the
Swing Line Lender and all of the Lenders and all future holders of the
Indebtedness of the Credit Parties under the Loan Documents.
10.5 Notice of Default
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default unless the
Administrative Agent has received written notice thereof from the Issuing Bank,
the Swing Line Lender, any Lender, or any Credit Parties. In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall
promptly give notice thereof to the Issuing Bank, the Swing Line Lender and the
Lenders. The Administrative Agent shall take such action with respect to such
Default or Event of Default as shall be directed by the Required Lenders,
provided, however, that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem to be in the best interests
of the Issuing Bank, the Swing Line Lender and the Lenders.
10.6 Non-Reliance
The Issuing Bank, the Swing Line Lender and each Lender expressly
acknowledges that neither the Administrative Agent nor any of its respective
officers, directors, employees, agents, attorneys-in-fact or affiliates has made
any representations or warranties to it and that no act by the Administrative
Agent hereinafter, including any review of the affairs of the Credit Parties,
shall be deemed to constitute any representation or warranty by the
Administrative Agent to the Issuing Bank, the Swing Line Lender or any Lender.
The Issuing Bank, the Swing Line Lender and each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own evaluation of and
investigation into the business, operations, Property, financial and other
condition and creditworthiness of the Credit Parties and
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made its own decision to enter into this Agreement. The Issuing Bank, the Swing
Line Lender and each Lender also represents that it will, independently and
without reliance upon the Administrative Agent, the Issuing Bank, the Swing Line
Lender or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit analysis,
evaluations and decisions in taking or not taking action under the Loan
Documents, and to make such investigation as it deems necessary to inform itself
as to the business, operations, Property, financial and other condition and
creditworthiness of the Credit Parties. Except for notices, reports and other
documents expressly required to be furnished to the Issuing Bank, the Swing Line
Lender and the Lenders by the Administrative Agent under the Loan Documents, the
Administrative Agent shall not have any duty or responsibility to provide the
Issuing Bank, the Swing Line Lender or any Lender with any credit or other
information concerning the business, operations, Property, financial and other
condition or creditworthiness of the Credit Parties which may come into the
possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
10.7 Indemnification
Each Lender agrees to indemnify and reimburse the Administrative
Agent in its capacity as such (to the extent not promptly reimbursed by the
Credit Parties and without limiting the obligation of the Credit Parties to do
so), pro rata according to (i) at any time when no Loans are outstanding, its
Commitment Percentage, or if no Commitments then exist, its Commitment
Percentage on the last day on which Commitments did exist, and (ii) at any time
when Loans are outstanding (x) if the Commitments then exist, its Commitment
Percentage or (y) if the Commitments have been terminated or otherwise no longer
exist, the percentage equal to the fraction (A) the numerator of which is the
Credit Exposure of such Lender and (B) the denominator of which is the Aggregate
Credit Exposure, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever including any amounts paid to the Lenders (through the
Administrative Agent) by the Credit Parties pursuant to the terms of the Loan
Documents, that are subsequently rescinded or avoided, or must otherwise be
restored or returned) which may at any time (including at any time following the
payment of the Loans or the reimbursement obligations hereunder with respect to
the Letters of Credit) be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of the Loan Documents
or any other documents contemplated by or referred to herein or the transactions
contemplated hereby or
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thereby or any action taken or omitted to be taken by the Administrative Agent
under or in connection with the foregoing; provided, however, that no Lender
shall be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements to the extent resulting from the finally adjudicated gross
negligence or willful misconduct of the Administrative Agent. Without limitation
of the foregoing, each Lender agrees to reimburse the Administrative Agent
promptly upon demand for its pro rata share (calculated as set forth in the
first sentence of this Section) of any unpaid costs and expenses (including
reasonable fees and expenses of counsel) payable by the Credit Parties under
Section 11.5, to the extent that the Administrative Agent has not been
reimbursed for such costs and expenses by the Credit Parties. The failure of any
Lender to reimburse the Administrative Agent promptly upon demand for its pro
rata share (as so calculated) of any amount required to be paid by the Lenders
to the Administrative Agent as provided in this Section shall not relieve any
other Lender of its obligation hereunder to reimburse the Administrative Agent
for its pro rata share (as so calculated) of such amount, but no Lender shall be
responsible for the failure of any other Lender to reimburse the Administrative
Agent for such other Lender's pro rata share (as so calculated) of such amount.
The agreements in this Section shall survive the payment of all amounts payable
under the Loan Documents.
10.8 Administrative Agent in Its Individual Capacity
BNY and its affiliates may make loans to, accept deposits from,
issue letters of credit for the account of, and generally engage in any kind of
business with, the Credit Parties or any of the Subsidiaries of the Parent as
though BNY were not the Issuing Bank, the Swing Line Lender or the
Administrative Agent hereunder. With respect to the Commitment, the Swing Line
Commitment, the Individual Currency Commitment and the Letter of Credit
Commitment of BNY and the Loans made by BNY, and the Letters of Credit issued by
BNY, BNY shall have the same rights and powers under the Loan Documents as any
Lender and may exercise the same as though it were not the Issuing Bank, the
Swing Line Lender or the Administrative Agent, and the terms "Lender" and
"Lenders" shall in each case include BNY.
10.9 Successor Administrative Agent
If at any time the Administrative Agent deems it advisable, in its
sole discretion, it may submit to each of the Issuing Bank, the Swing Line
Lender and each Lender a written notice of its resignation as Administrative
Agent under the Loan Documents, such resignation to be effective upon the
written acceptance of the duties of the Administrative
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Agent under the Loan Documents by a successor Administrative Agent appointed by
the Required Lenders, provided, however, that if no such appointment is made and
given within 30 days after the delivery of such notice of resignation, the
Administrative Agent shall have the right to appoint a successor Administrative
Agent. A successor Administrative Agent shall be a commercial bank organized
under the laws of the United States of America or any State thereof and having a
combined capital, surplus, and undivided profits of at least $500,000,000 and,
provided that no Default or Event of Default shall exist, shall be reasonably
satisfactory to the Parent. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent's rights, powers, privileges and
duties as Administrative Agent under the Loan Documents shall be terminated. The
Credit Parties, the Issuing Bank, the Swing Line Lender and the Lenders shall
execute such documents as shall be necessary to effect such appointment. After
any retiring Administrative Agent's resignation as Administrative Agent, the
provisions of the Loan Documents shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent under the
Loan Documents.
11. OTHER PROVISIONS
11.1 Amendments and Waivers
(a) With the written consent of the Required Lenders, the
Administrative Agent, the Parent and the other appropriate Credit Parties may,
from time to time, enter into written amendments, supplements or modifications
of any of the Loan Documents and, with the consent of the Required Lenders, the
Administrative Agent on behalf of the Issuing Bank, the Swing Line Lender and
the Lenders may execute and deliver to any such parties a written instrument
waiving or granting a consent to a departure from, on such terms and conditions
as the Administrative Agent may specify in such instrument, any of the
requirements of any of the Loan Documents or any Default or Event of Default and
its consequences; provided, however, that:
(i) no such amendment, supplement, modification, waiver or consent
shall increase or decrease the Commitment of any Lender without the consent of
such Lender, or increase or decrease any Individual Currency Commitment of any
Lender without the consent of such Lender;
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(ii) without the consent of all of the Lenders, (A) extend the
Maturity Date, (B) decrease the rate or extend the time of payment of interest
of, or extend the time of payment or forgive the principal amount of, or change
the pro rata allocation of payments under, any Loan or reimbursement obligation
with respect to any Letter of Credit, (C) decrease or extend the time of payment
of the Facility Fee or Letter of Credit Commissions, (D) change the provisions
of Sections 2.14, 11.1 or 11.7(a), (E) change the definition of Required
Lenders, (F) change the definition of Core Currencies so as to add any
additional currency as a Core Currency, (G) release the Guaranty, (H) change the
several nature of the obligations of the Lenders under the Loan Documents, or
(I) increase the Aggregate Commitments to an amount in excess of $160,000,000;
(iii) without the written consent of the Issuing Bank, no such
amendment, supplement, modification or waiver shall change the Letter of Credit
Commitment, change the amount or the time of payment of the Letter of Credit
Commissions, or change any other term or provision which relates to the Letter
of Credit Commitment or the Letters of Credit;
(iv) without the written consent of the Swing Line Lender, no such
amendment, supplement, modification or waiver shall change the Swing Line
Commitment, change the amount or the time of payment of the Swing Line Loans or
interest thereon or change any other term or provision which relates to the
Swing Line Commitment or the Swing Line Loans; and
(v) without the written consent of the Administrative Agent, no
such amendment, supplement, modification or waiver shall amend, modify or waive
any provision of Section 10 or otherwise change any of the rights or obligations
of the Administrative Agent under the Loan Documents.
(b) Notwithstanding anything to the contrary contained herein, the
Parent may at any time or from time to time, at the Parent's sole cost and
expense, request any Lender to increase its Commitment, or any other bank,
insurance company, pension fund, mutual fund or other financial institution
(each a "Proposed Lender"; each such Proposed Lender to be reasonably
satisfactory to the Swing Line Lender and the Issuing Bank) to provide a new
Commitment, by submitting a supplement to this Agreement to the Administrative
Agent, the Issuing Bank, the Swing Line Lender and the Credit Parties. If such
supplement is in all respects satisfactory to it, the Administrative Agent, the
Issuing Bank, the Swing Line Lender, the Parent, each other Credit Party and
such Lender or Proposed Lender, as the case may be, shall each execute a copy
thereof and deliver a copy thereof to the Administrative Agent, the Parent and
such Lender or
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such Proposed Lender, as the case may be. Upon execution and delivery of such
supplement, (i) in the case of such Lender, the amount of such Lender's
Commitment shall be increased to the amount set forth in such supplement, (ii)
in the case of such Proposed Lender, such Proposed Lender shall become a party
hereto and shall for all purposes of this Agreement and the other Loan Documents
be deemed a "Lender" with a Commitment and one or more Individual Currency
Commitments in the respective amounts set forth in such supplement and (iii) in
each case, the Commitments and the Commitment Percentages set forth in Exhibit
A-1 and the Individual Commitments set forth in Exhibit A-2 shall be adjusted
accordingly by the Administrative Agent and a new Exhibit A-1 and a new Exhibit
A-2 shall be distributed by the Administrative Agent to the Parent (on behalf of
all Borrowers) and each Lender; provided, however, that:
(x) immediately after giving effect thereto, the Aggregate
Commitments shall not exceed $160,000,000; and
(y) notwithstanding anything to the contrary contained in Section
11.7, if immediately after giving effect to the events described in Sections
11.1(b)(i) or 11.1(b)(ii), as the case may be, Revolving Loans shall or would be
outstanding, then such Lender or such Proposed Lender, as the case may be, shall
enter into a master assignment and acceptance agreement with the other Lenders
in all respects reasonably satisfactory to the other Lenders, pursuant to which
each other Lender shall sell, assign, transfer and negotiate to it a portion of
its Revolving Loans necessary to reflect the Commitments as adjusted in
accordance with Section 11.1(b)(iii).
(c) Any such amendment, supplement, modification or waiver
pursuant to this Section 11.1 shall be binding upon the parties to the
applicable agreement, all present and future Lenders and the Administrative
Agent. In the case of any waiver, the parties to the Loan Documents, the Issuing
Bank, the Swing Line Lender, the Lenders and the Administrative Agent shall be
restored to their former position and rights thereunder to the extent provided
for in such waiver, and any Default or Event of Default waived shall not extend
to any subsequent or other Default or Event of Default, or impair any right
consequent thereon. The Loan Documents may not be amended orally or by any
course of conduct.
(d) If any assignment made pursuant to subsection (b)(y) above
shall be made to any Proposed Lender and such Proposed Lender is not a U.S.
Person, such Proposed Lender shall furnish such certificates, documents or other
evidence to the Parent, the Borrowers, the Lenders and the Administrative Agent
as shall be required by Section 2.13(e) or 2.13(f).
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11.2 Notices
All notices and other communications under the Loan Documents
shall be given to the parties hereto at the following addresses:
(i) if to the Parent or a Borrower, at its Address for Notices set
forth on Exhibit S or as set forth on the applicable Borrower Addendum;
(ii) if to any Lender, at its Address for Notices set forth on
Exhibit R;
(iii) if to the Administrative Agent, at its Address for Notices
set forth on Exhibit Q;
(iv) if to the Swing Line Lender, at its Address for Notices set
forth on Exhibit R;
(v) if to the Issuing Bank, at its Address for Notices set forth
on Exhibit R;
or in any of the foregoing cases at such other address and/or to such other
Person as a party hereto may hereafter specify for that purpose by written
notice to the Parent, the Borrowers and the Administrative Agent. Such notices
and other communications will be effective only if and when given in writing,
and shall be deemed to have been given three (3) days after deposit in the mail,
designated as certified mail, return receipt requested, postage-prepaid, at the
applicable address specified above, or when delivered at the applicable address
specified above, or when sent by telecopy addressed to the party to which such
notice is directed at its address determined as provided above and receipt is
confirmed, except that any notice, request or demand by the Parent or any
Borrower to or upon the Administrative Agent, the Swing Line Lender, the Issuing
Bank or the Lenders pursuant to Sections 2.3, 2.6, 2.9, 2.10, 2.11, 2.12 or 2.19
shall not be effective until received. Any party to a Loan Document may rely on
signatures of the parties thereto which are transmitted by fax or other
electronic means as fully as if originally signed.
11.3 No Waiver; Cumulative Remedies
No failure to exercise and no delay in exercising, on the part of
the Administrative Agent, the Swing Line Lender, the Issuing Bank or any Lender,
any right, remedy, power or privilege under the Loan Documents shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege under the Loan Documents preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights,
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remedies, powers and privileges under the Loan Documents are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
11.4 Survival of Representations and Warranties
All representations and warranties made under the Loan Documents
and in any document, certificate or statement delivered pursuant thereto or in
connection therewith shall survive the execution and delivery thereof.
11.5 Payment of Expenses and Taxes
The Parent and each Borrower (to the extent of such other
Borrower's Proportionate Share of the amount at issue) severally agrees,
promptly upon presentation of a statement or invoice therefor, and whether any
Loan is made, or any Letter of Credit is issued (i) to pay or reimburse the
Administrative Agent for all of the Administrative Agent's out-of-pocket costs
and expenses reasonably incurred in connection with the preparation of the Loan
Documents and any amendment, supplement or modification (whether or not
executed) to the Loan Documents, any documents prepared in connection therewith
and the consummation of the transactions contemplated thereby, including the
reasonable fees and disbursements of Special Counsel, (ii) to pay or reimburse
the Administrative Agent, the Issuing Bank, the Swing Line Lender and the
Lenders for all of their respective costs and expenses, including reasonable
fees and disbursements of counsel, incurred in connection with (A) any Default
or Event of Default and any enforcement or collection proceedings resulting
therefrom or in connection with the negotiation of any restructuring or
"work-out" (whether consummated or not) of the obligations of the Parent and the
Borrowers under the Loan Documents and (B) the enforcement of this Section,
(iii) to pay, indemnify, and hold each Lender, the Swing Line Lender, the
Issuing Bank and the Administrative Agent harmless from and against, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other similar taxes, if
any, which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, the Loan Documents and any such other
documents, and (iv) to pay, indemnify and hold each Lender, the Swing Line
Lender, the Issuing Bank and the Administrative Agent and each of their
respective officers, directors and employees harmless from and against any and
all other liabilities, obligations, claims, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever (including reasonable counsel fees and disbursements) with
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respect to the enforcement and performance of the Loan Documents and the use of
the proceeds of the Loans and the Letters of Credit (all the foregoing,
collectively, the "indemnified liabilities"); provided, however, that neither
the Parent nor the Borrowers shall have any obligation hereunder to pay
indemnified liabilities to the Administrative Agent, the Swing Line Lender, the
Issuing Bank or any Lender arising from the finally adjudicated gross negligence
or willful misconduct of the Administrative Agent, the Swing Line Lender, the
Issuing Bank or such Lender or claims between one indemnified party and another
indemnified party. The agreements in this Section shall survive the termination
of the Aggregate Commitments, the Swing Line Commitment, the Letter of Credit
Commitment and the Individual Currency Commitments and the payment of all
amounts payable under the Loan Documents.
11.6 Determination of Dollar Equivalent
For purposes of the Loan Documents, the Dollar Equivalent of each
Alternate Currency Loan and each Letter of Credit designated in an Alternate
Currency shall be recalculated (i) on the first day of each Borrowing/Issuance
Period, (ii) on the date that the Agent shall have received a Bid Accept/Reject
Letter accepting a Bid or a Negotiated Rate Confirmation, (iii) on each date
that the Aggregate Commitments are, or the Swing Line Commitment or any
Individual Currency Commitment is, reduced and (iv) on the last Business Day of
each month unless the Dollar Equivalent was recalculated pursuant to clause (i),
(ii) or (iii) during such month. The Dollar Equivalent for each Alternate
Currency Loan and each Letter of Credit designated in an Alternate Currency
shall remain in effect until the same is recalculated by the Administrative
Agent as provided above and notice of such recalculation is received by the
Parent, it being understood that until such notice is received, the Dollar
Equivalent shall be that Dollar Equivalent. The Administrative Agent shall
promptly notify the Parent, the Issuing Bank, the Swing Line Lender and the
Lenders of each such determination of the Dollar Equivalent for each Alternate
Currency Loan and each Letter of Credit designated in an Alternate Currency.
11.7 Assignments and Participations
(a) This Agreement and the other Loan Documents shall be binding
upon and inure to the benefit of the Parent, the Borrowers, the Lenders, the
Swing Line Lender, the Issuing Bank, the Administrative Agent, and their
respective successors and assigns, except that neither the Parent nor the
Borrowers may assign, delegate or transfer any of their rights or obligations
under the Loan Documents without the prior written consent of the Administrative
Agent, the Issuing Bank, the Swing Line Lender and each Lender.
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(b) Except as provided in Section 11.1(b), each Lender shall have
the right at any time, upon written notice to the Administrative Agent of its
intent to do so, to sell, assign, transfer or negotiate all or any part of such
Lender's rights and obligations under the Loan Documents to one or more of its
affiliates, to one or more of the other Lenders (or to affiliates of such other
Lenders) or, with the prior written consent of the Parent, the Swing Line Lender
and the Issuing Bank (which consents shall not be unreasonably withheld), to
sell, assign, transfer or negotiate all or any part of such Lender's rights and
obligations under the Loan Documents to any other bank, insurance company,
pension fund, mutual fund or other financial institution, provided that (i) each
such sale, assignment, transfer or negotiation (other than sales, assignments,
transfers or negotiations (x) to affiliates of such Lender or (y) of a Lender's
entire interest) shall be in a minimum amount of $5,000,000, and (ii) there
shall be paid to the Administrative Agent by the assigning or assignee Lender a
fee (the "Assignment Fee") of $3,000. For each assignment, the parties to such
assignment shall execute and deliver to the Administrative Agent for its
acceptance and recording an Assignment and Acceptance Agreement. Upon such
execution, delivery, acceptance and recording by the Administrative Agent, from
and after the effective date specified in such Assignment and Acceptance
Agreement, the assignee thereunder shall be a party hereto and, to the extent
provided in such Assignment and Acceptance Agreement, the assignor Lender
thereunder shall be released from its obligations under the Loan Documents. Upon
any such sale, assignment or other transfer, the Commitments and the Commitment
Percentages set forth in Exhibit A-1, and the Individual Currency Commitments
set forth in Exhibit A-2, shall be adjusted accordingly by the Administrative
Agent and a new Exhibit A-1 and a new Exhibit A-2 shall be distributed by the
Administrative Agent to the Parent (on behalf of all Borrowers) and each Lender.
(c) Each Lender may grant participations in all or any part of its
rights and obligations under the Loan Documents to one or more of its
affiliates, to one or more of the other Lenders (or to affiliates of such other
Lenders) or to one or more other banks, insurance companies, pension funds,
mutual funds or other financial institutions, provided that (i) such Lender's
obligations under the Loan Documents shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties to the Loan Documents for
the performance of such obligations, (iii) the Borrowers, the Administrative
Agent, the Swing Line Lender, the Issuing Bank and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under the Loan Documents, (iv) no
sub-participations shall be permitted and (v) the voting rights of any holder of
any participation shall be limited to decisions
- 121 -
<PAGE> 128
that in accordance with Section 11.1 require the consent of all of the Lenders.
The Parent and the Borrowers acknowledge and agree that any such participant
shall for purposes of Sections 2.13, 2.14, 2.15, 2.22, 11.5 and 11.10, be deemed
to be a "Lender"; provided, however, neither the Parent nor the Borrowers shall,
at any time, be obligated to pay any participant in any interest of any Lender
hereunder any sum in excess of the sum which the Parent and the Borrowers would
have been obligated to pay to such Lender in respect of such interest had such
Lender not sold such participation.
(d) If any (i) assignment is made pursuant to subsection (b) above
or (ii) any participation is granted pursuant to subsection (c) above, shall be
made to any Person that is not a U.S. Person, such Person shall furnish such
certificates, documents or other evidence to the Parent, the Borrowers and the
Administrative Agent, in the case of clause (i) and to the Parent, the Borrowers
and the Lender which sold such participation in the case of clause (ii), as
shall be required by Section 2.13(e) or 2.13(f).
(e) No Lender shall, as between and among the Parent, the
Borrowers, the Administrative Agent, the Swing Line Lender, the Issuing Bank and
such Lender, be relieved of any of its obligations under the Loan Documents as a
result of any sale, assignment, transfer or negotiation of, or granting of
participations in, all or any part of its rights and obligations under the Loan
Documents, except that a Lender shall be relieved of its obligations under the
Loan Documents to the extent of any such sale, assignment, transfer, or
negotiation of all or any part of its obligations under the Loan Documents
pursuant to subsection (b) above.
(f) Notwithstanding anything to the contrary contained in this
Section, any Lender may at any time or from time to time assign all or any
portion of its rights under the Loan Documents to a Federal Reserve Bank,
provided that any such assignment shall not release such assignor from its
obligations thereunder.
11.8 Counterparts
Each of the Loan Documents may be executed by one or more of the
parties thereto on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
document. It shall not be necessary in making proof of any Loan Document to
produce or account for more than one counterpart signed by the party to be
charged. An executed counterpart of any Loan Document and of any amendment,
modification, consent or waiver thereto or thereof transmitted by fax shall be
deemed to be an originally executed counterpart. A copy of any Loan Document
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<PAGE> 129
signed by all the parties thereto shall be deposited with the Parent (on behalf
of all Borrowers) and the Administrative Agent. Any party to any Loan Document
may rely upon the signatures of any other party thereto which are transmitted by
fax or other electronic means to the same extent as if originally signed.
11.9 Adjustments; Set-off
(a) If any Lender (a "Benefited Lender") shall at any time receive
any payment of all or any part of its Loans, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in Section 9.1 (g)
or (h), or otherwise) in a greater proportion than any such payment to and
collateral received by any other Lender in respect of such other Lender's Loans,
or interest thereon, such Benefited Lender shall purchase for cash from each of
the other Lenders such portion of each such other Lender's Loans, and shall
provide each of such other Lenders with the benefits of any such collateral, or
the proceeds thereof, as shall be necessary to cause such Benefited Lender to
share the excess payment or benefits of such collateral or proceeds ratably with
each of the Lenders, provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such Benefited Lender,
such purchase shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without interest. The Borrowers agree that
each Lender so purchasing a portion of another Lender's Loans may exercise all
rights of payment (including rights of set-off, to the extent not prohibited by
law) with respect to such portion as fully as if such Lender were the direct
holder of such portion.
(b) In addition to any rights and remedies of the Lenders provided
by law, upon the occurrence of an Event of Default and the acceleration of the
obligations owing in connection with the Loan Documents, or at any time upon the
occurrence and during the continuance of an Event of Default, under Section
9.1(a), (b), (g) or (h), each Lender shall have the right, without prior notice
to the Parent or the Borrowers, any such notice being expressly waived by the
Parent and the Borrowers to the extent not prohibited by applicable law, to
set-off and apply against any indebtedness, whether matured or unmatured, of the
Parent or the Borrowers to such Lender, any amount owing from such Lender to the
Parent or the Borrowers, at, or at any time after, the happening of any of the
above-mentioned events. To the extent not prohibited by applicable law, the
aforesaid right of set-off may be exercised by such Lender against the Parent
and the Borrowers or against any trustee in bankruptcy, custodian, debtor in
possession, assignee for the benefit of creditors, receiver, or execution,
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<PAGE> 130
judgment or attachment creditor of the Parent or the Borrowers, or against
anyone else claiming through or against the Parent or the Borrowers or such
trustee in bankruptcy, custodian, debtor in possession, assignee for the benefit
of creditors, receiver, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of set-off shall not have been
exercised by such Lender prior to the making, filing or issuance, or service
upon such Lender of, or of notice of, any such petition, assignment for the
benefit of creditors, appointment or application for the appointment of a
receiver, or issuance of execution, subpoena, order or warrant. Each Lender
agrees promptly to notify the Parent, the Borrowers and the Administrative Agent
after any such set-off and application made by such Lender, provided that the
failure to give such notice shall not affect the validity of such set-off and
application. With respect to each Borrower, the right of set-off provided for in
this Section 11.9(b) shall be limited to the obligations of such Borrower with
respect to Loans made to it and to its Proportionate Share of other costs,
expenses and other amounts.
11.10 Indemnity
Each of the Borrowers to the extent of its Proportionate Share and
the Parent severally agree to indemnify and hold harmless the Administrative
Agent, the Swing Line Lender, the Issuing Bank and each Lender and their
respective affiliates, directors, officers, employees, attorneys and agents
(each an "Indemnified Person") with respect to each Indemnified Person's status
under the Loan Documents from and against any loss, cost, liability, damage or
expense (including the reasonable fees and disbursements of counsel of such
Indemnified Person, including all local counsel hired by any such counsel)
incurred by such Indemnified Person in investigating, preparing for, defending
against, or providing evidence, producing documents or taking any other action
in respect of, any commenced or threatened litigation, administrative proceeding
or investigation under any federal securities law or any other statute of any
jurisdiction, or any regulation, or at common law or otherwise, which is alleged
to arise out of or is based upon (i) any untrue statement or alleged untrue
statement of any material fact by the Parent or the Borrowers in any document or
schedule executed or filed with any Governmental Authority by or on behalf of
the Parent or the Borrowers; (ii) any omission or alleged omission to state any
material fact required to be stated in such document or schedule, or necessary
to make the statements made therein, in light of the circumstances under which
made, not misleading; (iii) any acts, practices or omissions or alleged acts,
practices or omissions of the Parent or the Borrowers or their respective agents
relating to the use of the proceeds of any or all borrowings made by the
Borrowers which are alleged to be in violation of
- 124 -
<PAGE> 131
Section 2.18, or in violation of any federal securities law or of any other
statute, regulation or other law of any jurisdiction applicable thereto; or (iv)
any acquisition or proposed acquisition by the Parent or the Borrowers of all or
a portion of the Stock, or all or a portion of the assets, of any Person whether
such Indemnified Person is a party thereto. The indemnity set forth herein shall
be in addition to any other obligations or liabilities of the Parent and the
Borrowers to each Indemnified Person under the Loan Documents or at common law
or otherwise, and shall survive any termination of the Loan Documents, the
expiration of the Commitments, the Letter of Credit Commitment, the Swing Line
Commitment, the Individual Currency Commitments, and the payment of all
indebtedness of the Parent and the Borrowers under the Loan Documents, provided
that the Parent and the Borrowers shall have no obligation under this Section to
an Indemnified Person with respect to any of the foregoing to the extent found
in a final judgment of a court having jurisdiction to have resulted out of the
gross negligence or wilful misconduct of such Indemnified Person or arising from
claims between one such Indemnified Person and another such Indemnified Person.
11.11 GOVERNING LAW
THE LOAN DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
THERETO SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK.
11.12 Severability
Every provision of this Agreement and the other Loan Documents is
intended to be severable, and if any term or provision hereof or thereof shall
be invalid, illegal or unenforceable for any reason, the validity, legality and
enforceability of the remaining provisions hereof or thereof shall not be
affected or impaired thereby, and any invalidity, illegality or unenforceability
in any jurisdiction shall not affect the validity, legality or enforceability of
any such term or provision in any other jurisdiction.
11.13 Integration
All exhibits to this Agreement and any other Loan Document shall
be deemed to be a part hereof or thereof, as the case may be. Except for
agreements between the Administrative Agent, the Swing Line Lender, the Issuing
Bank and the Parent with respect to certain fees, the Loan Documents embody the
entire agreement and understanding among the Parent, the Borrowers, the
Administrative Agent, the Swing Line Lender, the Issuing Bank and the Lenders
with respect to the subject
- 125 -
<PAGE> 132
matter thereof and supersede all prior agreements and understandings among the
Parent, the Borrowers, the Administrative Agent, the Swing Line Lender, the
Issuing Bank and the Lenders with respect to the subject matter thereof.
11.14 Judgment Currency
(a) Each Credit Party's obligations under the Loan Documents to
make payments in the Applicable Currency (the "Obligation Currency") shall not
be discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any currency other than the Obligation Currency,
except to the extent that, on the Business Day immediately following the date of
such tender or recovery, the Administrative Agent, the Swing Line Lender, the
Issuing Bank or the applicable Lender, as the case may be, may, in accordance
with normal banking procedures, purchase the Obligation Currency with such other
currency. If for the purpose of obtaining or enforcing judgment against any
Credit Party in any court or in any jurisdiction, it becomes necessary to
convert into any currency other than the Obligation Currency (such other
currency being hereinafter referred to as the "Judgment Currency") an amount due
in the Obligation Currency, the conversion shall be made at the rate of exchange
at which, in accordance with normal banking procedures in the relevant
jurisdiction, the Obligation Currency could be purchased with the Judgment
Currency as of the day immediately preceding the day on which the judgment is
given (such Business Day being hereinafter referred to as the "Judgment Currency
Conversion Date").
(b) If the amount of Obligation Currency purchased pursuant to the
last sentence of subsection (a) above is less than the sum originally due in the
Obligation Currency, the applicable Credit Party covenants and agrees to
indemnify the applicable recipient against such loss, and if the Obligation
Currency so purchased exceeds the sum originally due to such recipient, such
recipient agrees to remit to the applicable Credit Party such excess.
11.15 Confidentiality
Any information disclosed by any Credit Party to the
Administrative Agent or any of the Lenders shall be used solely for purposes of
the Loan Documents and not in any other manner detrimental to the Parent and, if
such information is not otherwise in the public domain, shall not be disclosed
by the Administrative Agent or such Lender to any other Person except (i) to its
independent accountants, legal counsel and affiliates (it being understood that
the Persons to whom such disclosure is made will be informed of the confidential
nature of such information and instructed to keep such information
- 126 -
<PAGE> 133
confidential), (ii) pursuant to statutory and regulatory requirements or the
request of bank examiners, (iii) pursuant to any mandatory court order, subpoena
or other legal process, (iv) to the Administrative Agent, the Issuing Bank, the
Swing Line Lender or any other Lender, (v) pursuant to any agreement heretofore
or hereafter made between such Lender and the Parent which permits such
disclosure, (vi) in connection with the exercise of any remedy under the Loan
Documents or (vii) subject to an agreement containing provisions substantially
the same as those of this Section, to any participant in or assignee of, or
prospective participant in or assignee of, any Loan, Letter of Credit
Commitment, Individual Currency Commitment or Commitment (it being understood
that prior to any such disclosures contemplated by clauses (ii) and (iii) above,
the Agent or such Lender shall, if practicable, give the Parent prior written
notice of such disclosure).
11.16 CONSENT TO JURISDICTION
EACH CREDIT PARTY HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF ANY NEW YORK STATE OR FEDERAL COURT SITTING IN THE CITY OF NEW
YORK OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE LOAN
DOCUMENTS. EACH CREDIT PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED OR NOT PROHIBITED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
11.17 Service of Process
Each Credit Party hereby irrevocably consents to the service of
process in any suit, action or proceeding by sending the same by certified mail,
return receipt requested or by overnight courier service, to the address of such
Credit Party set forth in Section 11.2.
11.18 No Limitation on Service or Suit
Nothing in the Loan Documents or any modification, waiver, consent
or amendment thereto shall affect the right of the Administrative Agent, the
Swing Line Lender, the Issuing Bank or any Lender to serve process in any manner
permitted by law or limit the right of the Administrative Agent, the Swing Line
Lender, the Issuing Bank or any Lender to bring proceedings against any Credit
Party in the courts of any jurisdiction or jurisdictions in which such Credit
Party may be served.
- 127 -
<PAGE> 134
11.19 WAIVER OF TRIAL BY JURY
EACH OF THE ADMINISTRATIVE AGENT, THE SWING LINE LENDER, THE
ISSUING BANK, THE LENDERS AND EACH CREDIT PARTY HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THE LOAN DOCUMENTS OR
THE TRANSACTIONS CONTEMPLATED THEREBY.
11.20 International Banking Facilities
The Parent and the Borrowers acknowledge that some or all of the
Lenders may, in connection with the Loan Documents, utilize an International
banking facility (as defined in Regulation D).
Each Borrower which is an entity located outside the United
States, understands that it is the policy of the Board of Governors of the
Federal Reserve System that deposits received by International banking
facilities may be used only to support the non-U.S. operations of a depositor
(or its foreign affiliates) located outside the United States and that
extensions of credit by International banking facilities may be used only to
finance the non-U.S. operations of a customer (or its foreign affiliates)
located outside the United States.
Each Borrower which is an entity located outside the United States
acknowledges that the proceeds of its borrowings hereunder from an International
banking facility will be used solely to finance its operations outside the
United States, or that of its foreign affiliates.
- 128 -
<PAGE> 135
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
TIFFANY & CO.,
a Delaware corporation
By: ________________________
Name: ________________________
Title: ________________________
TIFFANY AND COMPANY,
a New York corporation
By: ________________________
Name: ________________________
Title: ________________________
TIFFANY & CO. INTERNATIONAL,
a Delaware corporation
By: ________________________
Name: ________________________
Title: ________________________
SOCIETE FRANCAISE POUR LE
DEVELOPPMENT DE LA PORCELAINE D'ART
(S.A.R.L.), a French corporation
By: ________________________
Name: ________________________
Title: ________________________
TIFFANY & CO. OF NEW YORK LIMITED, a
Hong Kong corporation
By: ________________________
Name: ________________________
Title: ________________________
- 129 -
<PAGE> 136
TIFFANY-FARAONE S.P.A.,
an Italian corporation
By: ________________________
Name: ________________________
Title: ________________________
TIFFANY & CO. JAPAN INC.,
a Delaware corporation
By: ________________________
Name: ________________________
Title: ________________________
TIFFANY & CO. PTE. LTD.,
a Singapore corporation
By: ________________________
Name: ________________________
Title: ________________________
TIFFANY & CO.,
a United Kingdom corporation
By: ________________________
Name: ________________________
Title: ________________________
TIFFANY & CO. WATCH CENTER S.A.,
a Swiss corporation
By: ________________________
Name: ________________________
Title: ________________________
TIFFCO KOREA LTD.,
a Korean corporation
By: ________________________
Name: ________________________
Title: ________________________
- 130 -
<PAGE> 137
THE BANK OF NEW YORK, as the Swing Line
Lender, as the Issuing Bank, as a Lender, as
Arranging Agent and as Administrative Agent
By: ________________________
Name: ________________________
Title: ________________________
THE CHASE MANHATTAN BANK
By: ________________________
Name: ________________________
Title: ________________________
THE DAI-ICHI KANGYO BANK LIMITED
(NEW YORK BRANCH)
By: ________________________
Name: ________________________
Title: ________________________
THE FUJI BANK, LTD.
By: ________________________
Name: ________________________
Title: ________________________
- 131 -
<PAGE> 138
TIFFANY EXHIBIT A-1
LIST OF COMMITMENTS
<TABLE>
<CAPTION>
Commitment
Lender Commitment Percentage
- ------ ---------- ----------
<S> <C> <C>
The Bank of New York $ 36,250,000.00 27.884617%
The Chase Manhattan Bank 31,250,000.00 24.038461
The Dai-Ichi Kangyo Bank,
Limited (New York Branch) 31,250,000.00 24.038461
The Fuji Bank, Limited 31,250,000.00 24.038461
TOTAL $ 130,000,000 100%
=============== ==========
</TABLE>
- 10 -
<PAGE> 139
TIFFANY EXHIBIT A-2
LIST OF INDIVIDUAL CURRENCY COMMITMENTS
Australian Dollars
- ------------------
<TABLE>
<CAPTION>
Lender Individual Currency Commitment
------ ------------------------------
<S> <C>
Dai-Ichi Kangyo $3,000,000.00
Fuji Bank $3,000,000.00
</TABLE>
Canadian Dollars
- ----------------
<TABLE>
<CAPTION>
Lender Individual Currency Commitment
------ ------------------------------
<S> <C>
- -
Hong Kong Dollars
- -----------------
Lender Individual Currency Commitment
------ ------------------------------
<S> <C>
BNY $3,000,000.00
</TABLE>
Italian Lira
- ------------
<TABLE>
<CAPTION>
Lender Individual Currency Commitment
------ ------------------------------
<S> <C>
The Chase Manhattan Bank $5,000,000.00
</TABLE>
Korean Won
- ----------
<TABLE>
<CAPTION>
Lender Individual Currency Commitment
------ ------------------------------
<S> <C>
BNY $3,000,000.00
</TABLE>
Malaysian Ringgit
- -----------------
<TABLE>
<CAPTION>
Lender Individual Currency Commitment
------ ------------------------------
<S> <C>
- -
</TABLE>
- 11 -
<PAGE> 140
Mexican Pesos
- -------------
<TABLE>
<CAPTION>
Lender Individual Currency Commitment
------ ------------------------------
<S> <C>
- -
</TABLE>
New Taiwan Dollars
- ------------------
<TABLE>
<CAPTION>
Lender Individual Currency Commitment
------ ------------------------------
<S> <C>
BNY $3,000,000.00
</TABLE>
Philippine Pesos
- ----------------
<TABLE>
<CAPTION>
Lender Individual Currency Commitment
------ ------------------------------
<S> <C>
- -
</TABLE>
Singapore Dollars
- -----------------
<TABLE>
<CAPTION>
Lender Individual Currency Commitment
------ ------------------------------
<S> <C>
BNY $3,000,000.00
</TABLE>
Swiss Francs
- ------------
<TABLE>
<CAPTION>
Lender Individual Currency Commitment
------ ------------------------------
<S> <C>
The Chase Manhattan Bank $5,000,000.00
</TABLE>
Thai Baht
- ---------
<TABLE>
<CAPTION>
Lender Individual Currency Commitment
------ ------------------------------
<S> <C>
- -
</TABLE>
- 12 -
<PAGE> 1
Item 6. TIFFANY & CO. AND SUBSIDIARIES
EXHIBIT 11 STATEMENT RE COMPUTATION OF PER SHARE EARNINGS
(Unaudited)
(in thousands, except per share data)
<TABLE>
<CAPTION>
For the For the
Three Months Ended Nine Months Ended
October 31, October 31,
----------------------- -----------------------
1997 1996 1997 1996
------- ------- ------- -------
<S> <C> <C> <C> <C>
PRIMARY EARNINGS PER SHARE:
Net earnings on which primary
earnings per share are based $11,463 $ 9,347 $30,723 $22,670
======= ======= ======= =======
Weighted average number of
common shares 35,099 34,488 34,937 33,398
Add:
Weighted average effect of the
exercise of stock options 1,187 1,357 1,242 1,256
------- ------- ------- -------
Weighted average number of shares on
which primary earnings are based 36,286 35,845 36,179 34,654
======= ======= ======= =======
Primary net earnings per common share $ 0.32 $ 0.26 $ 0.85 $ 0.65
======= ======= ======= =======
FULLY DILUTED EARNINGS PER SHARE:
Net earnings on which primary earnings
per share are based $11,463 $ 9,347 $30,723 $22,670
Add:
Interest and fees on convertible
subordinated debt, net of
applicable income taxes -- -- -- 682
------- ------- ------- -------
Net earnings on which fully diluted
earnings per share are based $11,463 $ 9,347 $30,723 $23,352
======= ======= ======= =======
Weighted average number of common shares
on which fully diluted earnings are based 36,286 35,845 36,208 34,755
Add:
Shares assumed upon conversion
of convertible debt, using the
"if converted" method -- -- -- 920
------- ------- ------- -------
Weighted average number of shares
used in calculating fully diluted
earnings per share 36,286 35,845 36,208 35,675
======= ======= ======= =======
Fully diluted net earnings per common share $ 0.32 $ 0.26 $ 0.85 $ 0.65
======= ======= ======= =======
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> JAN-31-1998
<PERIOD-START> AUG-01-1997
<PERIOD-END> OCT-31-1997
<CASH> 24,483,000
<SECURITIES> 0
<RECEIVABLES> 89,041,000
<ALLOWANCES> (6,736,000)
<INVENTORY> 415,371,000
<CURRENT-ASSETS> 587,132,000
<PP&E> 238,423,000
<DEPRECIATION> (91,481,000)
<TOTAL-ASSETS> 773,964,000
<CURRENT-LIABILITIES> 222,173,000
<BONDS> 0
0
0
<COMMON> 351
<OTHER-SE> 416,655,000
<TOTAL-LIABILITY-AND-EQUITY> 773,964,000
<SALES> 233,074,000
<TOTAL-REVENUES> 233,074,000
<CGS> 106,195,000
<TOTAL-COSTS> 211,648,000
<OTHER-EXPENSES> 1,315,000
<LOSS-PROVISION> 420
<INTEREST-EXPENSE> 2,077,000
<INCOME-PRETAX> 20,111,000
<INCOME-TAX> 8,648,000
<INCOME-CONTINUING> 11,463,000
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 11,463,000
<EPS-PRIMARY> .32
<EPS-DILUTED> .32
</TABLE>
