Exhibit 99
Report on Form 10-Q
GUARANTY AGREEMENT
by and among
TIFFANY & CO.,
TIFFANY AND COMPANY,
TIFFANY & CO. INTERNATIONAL,
TIFFANY & CO. JAPAN INC.,
EACH OF THE OTHER GUARANTORS PARTY HERETO
and
THE BANK OF NEW YORK, AS ADMINISTRATIVE AGENT
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Dated as of November 5, 2001
TABLE OF CONTENTS
Page
ARTICLE 1. GUARANTY; FRAUDULENT TRANSFER, ETC.; CONTRIBUTION......................................................1
Section 1.1 Guaranty.....................................................................................1
Section 1.2 Guaranty of Payment..........................................................................2
Section 1.3 Fraudulent Transfer..........................................................................2
Section 1.4 Contributions................................................................................3
ARTICLE 2. OBLIGATIONS NOT WAIVED.................................................................................3
ARTICLE 3. SECURITY...............................................................................................3
ARTICLE 4. NO DISCHARGE OR DIMINISHMENT OF GUARANTY...............................................................4
ARTICLE 5. DEFENSES OF BORROWERS WAIVED...........................................................................4
ARTICLE 6. AGREEMENT TO PAY; SUBORDINATION........................................................................4
ARTICLE 7. INFORMATION............................................................................................5
ARTICLE 8. REPRESENTATIONS AND WARRANTIES.........................................................................5
ARTICLE 9. TERMINATION............................................................................................5
ARTICLE 10. BINDING EFFECT; SEVERAL AGREEMENT; ASSIGNMENTS........................................................5
ARTICLE 11. WAIVERS; AMENDMENT....................................................................................6
Section 11.1 No Waiver...................................................................................6
Section 11.2 Amendments, etc.............................................................................6
ARTICLE 12. NOTICES...............................................................................................7
ARTICLE 13. SURVIVAL OF AGREEMENT; SEVERABILITY...................................................................7
Section 13.1 Survival of Agreement.......................................................................7
Section 13.2 Severability................................................................................7
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ARTICLE 14. ADDITIONAL GUARANTORS.................................................................................7
ARTICLE 15. RIGHT OF SETOFF.......................................................................................7
ARTICLE 16. GOVERNING LAW; JURISDICTION; VENUE; WAIVER OF JURY TRIAL..............................................8
Section 16.1 GOVERNING LAW...............................................................................8
Section 16.2 Consent to Jurisdiction.....................................................................8
Section 16.3 Waiver of Objection to Venue................................................................8
Section 16.4 Consent to Service of Process...............................................................8
Section 16.5 WAIVER OF JURY TRIAL........................................................................9
ARTICLE 17. MISCELLANEOUS.........................................................................................9
Section 17.1 Headings....................................................................................9
Section 17.2 Counterparts................................................................................9
Section 17.3 Rules of Interpretation.....................................................................9
Section 17.4 Judgment Currency...........................................................................9
Annex 1 Form of Supplement
ii
GUARANTY AGREEMENT, dated as of November 5, 2001 among the Persons party
hereto set forth Schedule I (the "Current Guarantors"), such other Persons which
from time to time may become party hereto (the "New Guarantors", and together
with the Current Guarantors, the "Guarantors" and each a "Guarantor") and THE
BANK OF NEW YORK, as administrative agent under the Credit Agreement referred to
in the next paragraph acting on behalf of the Credit Parties.
Reference is made to the Credit Agreement, dated as of November 5, 2001, by
and among TIFFANY & CO., a Delaware corporation (the "Parent"), TIFFANY AND
COMPANY, a New York corporation (the "Tiffany"), TIFFANY & CO. INTERNATIONAL, a
Delaware corporation ("Tiffany International"), the other Borrowers party
thereto, the Lenders from time to time party thereto and The Bank of New York,
as Administrative Agent (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"). Capitalized terms used herein and not
defined herein shall have the meanings assigned to such terms in the Credit
Agreement.
The Lenders have agreed to make Loans to, and the Issuing Bank has agreed
to issue Letters of Credit for the account of, the Borrowers pursuant to, and
upon the terms and subject to the conditions specified in, the Credit Agreement.
Each Guarantor acknowledges that (i) it will derive substantial benefit from the
making of the Loans and the issuance of the Letters of Credit and (ii) the
execution and delivery by the Guarantors of this Guaranty Agreement is a
condition precedent to the effectiveness of the Credit Agreement, and the Credit
Parties would not have entered into the Credit Agreement if the Guarantors had
not executed and delivered this Guaranty Agreement.
Accordingly, the parties hereto agree as follows:
ARTICLE 1. GUARANTY; FRAUDULENT TRANSFER, ETC.; CONTRIBUTION
Section 1.1 Guaranty
Each Guarantor unconditionally guarantees, jointly with the other
Guarantors and severally, as a primary obligor and not merely as a surety, the
Obligations. Each Guarantor further agrees that the Obligations may be extended
or renewed, in whole or in part, without notice to or further assent from it and
that it will remain bound upon its guaranty notwithstanding any extension or
renewal of any Obligations. For purposes hereof, "Obligations" shall mean all of
the obligations and liabilities of the Parent and the Borrowers under the Credit
Agreement (as the same may be amended, increased, modified, renewed or extended
from time to time), in each case whether fixed, contingent, now existing or
hereafter arising, created, assumed, incurred or acquired, and whether before or
after the occurrence of any Event of Default under Sections 9.1(g) or 9.1(h) of
the Credit Agreement (each an "Insolvency Event"), and including (a) any
obligation or liability in respect of any breach of any representation or
warranty, and (b) all post-petition interest, funding losses and make-whole
premiums, whether or not allowed as a claim in any proceeding arising in
connection with an Insolvency Event.
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Section 1.2 Guaranty of Payment
Each Guarantor further agrees that its guaranty hereunder constitutes
a guaranty of payment when due and not of collection, and waives any right to
require that any resort be had by the Administrative Agent or any other Credit
Party to any of the security held for payment of the Obligations or to any
balance of any deposit account or credit on the books of the Administrative
Agent or any other Credit Party in favor of the Borrowers or any other person.
Section 1.3 Fraudulent Transfer
Anything in this Guaranty Agreement to the contrary notwithstanding,
(i) the obligations of each Guarantor hereunder (other than the Parent; each
such Guarantor, a "Subsidiary Guarantor") shall be limited to a maximum
aggregate amount equal to the greatest amount that would not render such
Subsidiary Guarantor's obligations hereunder subject to avoidance as a
fraudulent transfer, obligation or conveyance under Section 548 of Title 11 of
the United States Code or any provisions of applicable state law (collectively,
the "Fraudulent Transfer Laws"), in each case after giving effect to all other
liabilities of such Subsidiary Guarantor, contingent or otherwise, that are
relevant under the Fraudulent Transfer Laws (specifically excluding, however,
any liabilities of such Subsidiary Guarantor (A) in respect of intercompany debt
owed or owing to the Parent or Affiliates of the Parent to the extent that such
debt would be discharged in an amount equal to the amount paid by such
Subsidiary Guarantor hereunder and (B) under any Guarantee of senior unsecured
debt or Indebtedness subordinated in right of payment to the Obligations, which
Guarantee contains a limitation as to maximum amount similar to that set forth
in this clause (i), pursuant to which the liability of such Subsidiary Guarantor
hereunder is included in the liabilities taken into account in determining such
maximum amount) and after giving effect as assets to the value (as determined
under the applicable provisions of the Fraudulent Transfer Laws) of any rights
to subrogation, contribution, reimbursement, indemnity or similar rights of such
Subsidiary Guarantor pursuant to (I) applicable law or (II) any agreement
providing for an equitable allocation among such Subsidiary Guarantor and other
Affiliates of the Borrower of obligations arising under guarantees by such
parties (including the agreements described in Section 1.4) and (ii) the Parent
expressly waives any and all rights of subrogation, reimbursement, indemnity,
exoneration, contribution or any other claim that it may now or hereafter have
against any other Loan Party, any other guarantor or any other Person directly
or contingently liable for the Obligations, or against or with respect to the
property of such other Loan Party, such other guarantor or such other Person,
arising from the existence or performance hereof, and, in furtherance, and not
in limitation, of the preceding waiver, the Parent agrees that, in the event
that any money or property shall be transferred to any Credit Party by the
Parent pursuant to this Guaranty Agreement in reduction of the Obligations, such
transfer shall be deemed to be a contribution to the capital of the applicable
Loan Party, other guarantor or other Person (in the case of the transfer of
property, in an amount equal to the fair market value of the property so
transferred) as of the date of such transfer, and any such transfer shall not
cause the Parent to be a creditor of such Loan Party.
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Section 1.4 Contributions
Each Subsidiary Guarantor (a "Contributing Subsidiary Guarantor")
agrees (subject to this subsection) that, in the event a payment shall be made
by any other Subsidiary Guarantor hereunder (the "Claiming Subsidiary
Guarantor") or assets of such Claiming Subsidiary Guarantor shall be sold
pursuant to any Loan Document to satisfy a claim of any Credit Party hereunder,
the Contributing Subsidiary Guarantor shall indemnify the Claiming Subsidiary
Guarantor in an amount equal to the amount of such payment or the greater of the
book value or the fair market value of such assets, as applicable, in each case
multiplied by a fraction of which the numerator shall be the net worth of the
Contributing Subsidiary Guarantor on the date hereof and the denominator shall
be the aggregate net worth of all the Subsidiary Guarantors on the date hereof
(or, in the case of any Subsidiary Guarantor becoming a party hereto pursuant to
Article 14, the date of the Supplement hereto executed and delivered by such
Subsidiary Guarantor). Any Contributing Subsidiary Guarantor making any payment
to a Claiming Subsidiary Guarantor pursuant to this subsection shall be
subrogated to the rights of such Claiming Subsidiary Guarantor under this
subsection to the extent of such payment. Notwithstanding any provision of this
subsection to the contrary, all rights of the Subsidiary Guarantors under this
subsection and all other rights of indemnity, contribution or subrogation under
applicable law or otherwise shall be fully subordinated to the final and
indefeasible payment in full in cash of the Obligations. No failure on the part
of any Subsidiary Guarantor to make the payments required by this subsection (or
any other payments required under applicable law or otherwise) shall in any
respect limit the obligations and liabilities of any Subsidiary Guarantor with
respect to its obligations under this subsection, and each Subsidiary Guarantor
shall remain liable for the full amount of the obligations of such Subsidiary
Guarantor under this subsection.
ARTICLE 2. OBLIGATIONS NOT WAIVED
To the fullest extent permitted by applicable law, each Guarantor waives
presentment to, demand of payment from, and protest to any Loan Party of any of
the Obligations, and also waives notice of acceptance of its guaranty and notice
of protest for nonpayment. To the fullest extent permitted by applicable law,
the obligations of each Guarantor hereunder shall not be affected by (i) the
failure of the Administrative Agent or any other Credit Party to assert any
claim or demand or to enforce or exercise any right or remedy against the
Borrowers or any other Guarantor under the provisions of the Credit Agreement or
any other Loan Document, or otherwise, (ii) any rescission, waiver, amendment or
modification of, or any release from, any of the terms or provisions of this
Guaranty Agreement, any other Loan Document, any guaranty or any other
agreement, including with respect to any other Guarantor under this Guaranty
Agreement or (iii) the failure to perfect any security interest in, or the
release of, any of the security held by or on behalf of the Administrative Agent
or any other Credit Party.
ARTICLE 3. SECURITY
Each Guarantor authorizes the Administrative Agent and each other Credit
Party to (i) take and hold security for the payment of the obligations under
this Guaranty Agreement and the
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Obligations and exchange, enforce, waive and release any such security, (ii)
apply such security and direct the order or manner of sale thereof in accordance
with the Loan Documents and (iii) release or substitute any one or more
endorsees, other Guarantors or other obligors.
ARTICLE 4. NO DISCHARGE OR DIMINISHMENT OF GUARANTY
The obligations of each Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason (other than the
final and indefeasible payment in full in cash of the Obligations), including
any claim of waiver, release, surrender, alteration or compromise of any of the
Obligations, and shall not be subject to any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of each Guarantor hereunder shall
not be discharged or impaired or otherwise affected by the failure of the
Administrative Agent or any other Credit Party to assert any claim or demand or
to enforce any remedy under the Credit Agreement, any other Loan Document or any
other agreement, by any waiver or modification of any provision of any thereof,
by any default, failure or delay, willful or otherwise, in the performance of
the Obligations, or by any other act or omission that may or might in any manner
or to any extent vary the risk of any Guarantor or that would otherwise operate
as a discharge of any Guarantor as a matter of law or equity (other than the
final and indefeasible payment in full in cash of all the Obligations).
ARTICLE 5. DEFENSES OF BORROWERS WAIVED
To the fullest extent permitted by applicable law, each of the Guarantors
waives any defense based on or arising out of any defense of any Borrower or any
other Loan Party or the unenforceability of the Obligations or any part thereof
from any cause, or the cessation from any cause of the liability of any Borrower
or any other Loan Party, other than the final and indefeasible payment in full
in cash of the Obligations. The Administrative Agent and the other Credit
Parties may, at their election, foreclose on any security held by one or more of
them by one or more judicial or nonjudicial sales, accept an assignment of any
such security in lieu of foreclosure, compromise or adjust any part of the
Obligations, make any other accommodation with any Borrower or any Guarantor or
exercise any other right or remedy available to them against any Borrower or any
Guarantor, without affecting or impairing in any way the liability of any
Guarantor hereunder except to the extent the Obligations have been fully,
finally and indefeasibly paid in cash. Pursuant to applicable law, each
Guarantor waives any defense arising out of any such election even though such
election operates, pursuant to applicable law, to impair or to extinguish any
right of reimbursement or subrogation or other right or remedy of such Guarantor
against any Borrower or any other Guarantor, as applicable, or any security.
ARTICLE 6. AGREEMENT TO PAY; SUBORDINATION
In furtherance of the foregoing and not in limitation of any other right
that the Administrative Agent or any other Credit Party has at law or in equity
against any Guarantor by virtue hereof, upon the failure of any Loan Party to
pay, in the applicable Currency required by the Credit Agreement, any
Obligations when and as the same shall become due, whether at
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maturity, by acceleration, after notice of prepayment or otherwise, each
Guarantor hereby promises to and will forthwith pay, or cause to be paid, to the
Administrative Agent in cash the amount of such unpaid Obligations in the
applicable Currency required by the Credit Agreement. Upon payment by any
Guarantor of any sums to the Administrative Agent, all rights of such Guarantor
against the applicable Loan Party arising as a result thereof by way of right of
subrogation, contribution, reimbursement, indemnity or otherwise shall in all
respects be subordinate and junior in right of payment to the prior final and
indefeasible payment in full in cash of the Obligations. In addition, any debt
of any Loan Party now or hereafter held by any Guarantor is hereby subordinated
in right of payment to the prior final and indefeasible payment in full in cash
of the Obligations. If any amount shall erroneously be paid to any Guarantor on
account of (i) such subrogation, contribution, reimbursement, indemnity or
similar right or (ii) any such debt of such Loan Party, such amount shall be
held in trust for the benefit of the Credit Parties and shall forthwith be paid
to the Administrative Agent to be credited against the payment of the
Obligations, whether matured or unmatured, in accordance with the terms of the
Loan Documents.
ARTICLE 7. INFORMATION
Each Guarantor assumes all responsibility for being and keeping itself
informed of each Loan Party's financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the Obligations and the
nature, scope and extent of the risks that such Guarantor assumes and incurs
hereunder, and agrees that neither the Administrative Agent nor any other Credit
Party will have any duty to advise any of the Guarantors of information known to
it or any of them regarding such circumstances or risks.
ARTICLE 8. REPRESENTATIONS AND WARRANTIES
Each of the Guarantors represents and warrants as to itself that all
representations and warranties relating to it contained in the Credit Agreement
are true and correct.
ARTICLE 9. TERMINATION
The guarantees made hereunder (i) shall terminate when all the Obligations
have been finally and indefeasibly paid in full in cash, the Issuing Bank and
the Lenders have no further commitment to lend or otherwise extend credit under
the Credit Agreement and all outstanding Letters of Credit shall have been
cancelled and returned to the Issuing Bank and (ii) shall continue to be
effective or be reinstated, as applicable, if at any time payment, or any part
thereof, of any Obligations is rescinded or must otherwise be restored by any
Credit Party or any Guarantor upon the bankruptcy or reorganization of any Loan
Party or otherwise.
ARTICLE 10. BINDING EFFECT; SEVERAL AGREEMENT; ASSIGNMENTS
Whenever in this Guaranty Agreement any of the parties hereto is referred
to, such reference shall be deemed to include the successors and assigns of such
party; and all covenants, promises and agreements by or on behalf of any
Guarantor that are contained in this Guaranty Agreement shall bind and inure to
the benefit of each party hereto and its successors and assigns.
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This Guaranty Agreement shall become effective as to any Guarantor when a
counterpart hereof executed on behalf of such Guarantor shall have been
delivered to the Administrative Agent and a counterpart hereof shall have been
executed on behalf of the Administrative Agent, and thereafter shall be binding
upon such Guarantor and the Administrative Agent and their respective successors
and assigns, and shall inure to the benefit of such Guarantor, the
Administrative Agent and the other Credit Parties, and their respective
successors and assigns, except that no Guarantor shall have the right to assign
its rights or obligations hereunder or any interest herein (and any such
attempted assignment shall be void), except as expressly contemplated by this
Guaranty Agreement or the other Loan Documents. If any of the equity interests
in any Guarantor is sold, transferred or otherwise disposed of pursuant to a
transaction permitted by the Loan Documents and, immediately after giving effect
thereto, such Guarantor shall no longer be a Subsidiary of the Parent, then the
obligations of such Guarantor under this Guaranty Agreement shall be
automatically released. This Guaranty Agreement shall be construed as a separate
agreement with respect to each Guarantor and may be amended, modified,
supplemented, waived or released with respect to any Guarantor without the
approval of any other Guarantor and without affecting the obligations of any
other Guarantor hereunder.
ARTICLE 11. WAIVERS; AMENDMENT
Section 11.1 No Waiver
No failure or delay of the Administrative Agent in exercising any
power or right hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Administrative Agent hereunder and of the other Credit
Parties under the other Loan Documents are cumulative and are not exclusive of
any rights or remedies that they would otherwise have. No waiver of any
provision of this Guaranty Agreement or any other Loan Document or consent to
any departure by any Guarantor therefrom shall in any event be effective unless
the same shall be permitted by Section 11.2, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice or demand on any Guarantor in any case shall entitle such
Guarantor to any other or further notice or demand in similar or other
circumstances.
Section 11.2 Amendments, etc.
Neither this Guaranty Agreement nor any provision hereof may be
waived, amended or modified except pursuant to a written agreement entered into
by, between or among the Administrative Agent and the Guarantor or Guarantors
with respect to which such waiver, amendment or modification is to apply,
subject to any consent required in accordance with Section 11.1 of the Credit
Agreement.
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ARTICLE 12. NOTICES
All communications and notices hereunder shall be in writing and given as
provided in Section 11.2 of the Credit Agreement. All communications and notices
hereunder to each Guarantor shall be given to it at its address set forth on
Schedule I hereto.
ARTICLE 13. SURVIVAL OF AGREEMENT; SEVERABILITY
Section 13.1 Survival of Agreement
All covenants, agreements, representations and warranties made by the
Guarantors herein and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Guaranty Agreement or any other
Loan Document shall be considered to have been relied upon by the Administrative
Agent and the other Credit Parties and shall survive the execution and delivery
of any Loan Document, the making of any Loan and the issuance of any Letter of
Credit, regardless of any investigation made by the Credit Parties or on their
behalf, and shall continue in full force and effect until this Guaranty
Agreement shall terminate.
Section 13.2 Severability
In the event any one or more of the provisions contained in this
Guaranty Agreement or in any other Loan Document should be held invalid, illegal
or unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
ARTICLE 14. ADDITIONAL GUARANTORS
Upon execution and delivery after the date hereof by the Administrative
Agent and a Person of an instrument in the form of Annex 1, such Person shall
become a Guarantor hereunder with the same force and effect as if originally
named as a Guarantor herein. The execution and delivery of any such instrument
shall not require the consent of any other Guarantor hereunder. The rights and
obligations of each Guarantor hereunder shall remain in full force and effect
notwithstanding the addition of any New Guarantor as a party to this Guaranty
Agreement.
ARTICLE 15. RIGHT OF SETOFF
If an Event of Default shall have occurred and be continuing, each Credit
Party is hereby authorized at any time and from time to time, to the fullest
extent permitted by applicable law, to setoff and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other obligations at any time owing by such Credit Party to or for the credit or
the account of any Guarantor against any or all the obligations of such
Guarantor now or
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hereafter existing under this Guaranty Agreement and the other Loan Documents
held by such Credit Party, irrespective of whether or not such Credit Party
shall have made any demand under this Guaranty Agreement or any other Loan
Document and although such obligations may be unmatured. The rights of each
Credit Party under this Article are in addition to other rights and remedies
(including other rights of setoff) which such Credit Party may have.
ARTICLE 16. GOVERNING LAW; JURISDICTION; VENUE; WAIVER OF JURY TRIAL
Section 16.1 GOVERNING LAW
THIS GUARANTY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 16.2 Consent to Jurisdiction
Each Guarantor hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or Federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Guaranty Agreement or the other Loan Documents, or
for recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that, to the extent permitted by
applicable law, all claims in respect of any such action or proceeding may be
heard and determined in such New York State court or, to the extent permitted by
applicable law, in such Federal court. Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Guaranty Agreement shall affect any right that
the Administrative Agent or any other Credit Party may otherwise have to bring
any action or proceeding relating to this Guaranty Agreement or the other Loan
Documents against any Guarantor, or any of its property, or in the courts of any
jurisdiction.
Section 16.3 Waiver of Objection to Venue
Each Guarantor hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Guaranty Agreement or the other Loan
Documents in any court referred to in Section 16.2. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by applicable law,
the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
Section 16.4 Consent to Service of Process
Each party to this Guaranty Agreement irrevocably consents to service
of process in the manner provided for notices in Article 12. Nothing in this
Guaranty Agreement will affect the right of any party to this Guaranty Agreement
to serve process in any other manner permitted by law.
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Section 16.5 WAIVER OF JURY TRIAL
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS GUARANTY AGREEMENT. EACH PARTY HERETO (I) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS GUARANTY AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
ARTICLE 17. MISCELLANEOUS
Section 17.1 Headings
Article and Section headings and the Table of Contents used herein are
for convenience of reference only, are not part of this Guaranty Agreement and
shall not affect the construction of, or be taken into consideration in
interpreting, this Guaranty Agreement.
Section 17.2 Counterparts
This Guaranty Agreement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which, when taken together, shall constitute
but one contract (subject to Article 10), and shall become effective as provided
in Article 10. Delivery of an executed counterpart of this Guaranty Agreement by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart of this Guaranty Agreement.
Section 17.3 Rules of Interpretation
The rules of interpretation specified in Section 1.2 of the Credit
Agreement shall be applicable to this Guaranty Agreement.
Section 17.4 Judgment Currency
(a) Each Guarantor's obligations under this Guaranty Agreement 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
Guarantor in any court or in any
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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 Guarantor 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 Guarantor such excess.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have duly executed this
Guaranty Agreement as of the day and year first above written.
TIFFANY & CO.
By: /s/ James N. Fernandez
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Name: James N. Fernandez
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Title:Executive Vice President,
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Chief Financial Officer
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TIFFANY AND COMPANY
By: /s/ James N. Fernandez
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Name: James N. Fernandez
----------------------------
Title:Executive Vice President,
---------------------------
Chief Financial Officer
---------------------------
TIFFANY & CO. INTERNATIONAL
By: /s/ James N. Fernandez
-----------------------------
Name: James N. Fernandez
----------------------------
Title:Executive Vice President,
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Chief Financial Officer
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TIFFANY & CO. JAPAN INC.
By: /s/ James N. Fernandez
-----------------------------
Name: James N. Fernandez
----------------------------
Title: Vice President
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THE BANK OF NEW YORK, as
Administrative Agent
By: /s/ Howard Bascom
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Name: Howard Bascom
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Title:Vice President
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SCHEDULE I
TO GUARANTY AGREEMENT
LIST OF GUARANTORS
======================================================= =====================================================
Guarantor Address for Notices
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Tiffany & Co. 15 Sylvan Way
Parsippany, New Jersey 07054
Attention: Vice President - Treasurer
Telephone: (973) 254-7699
Facsimile: (973) 254-7964
- ------------------------------------------------------- -----------------------------------------------------
Tiffany and Company c/o Tiffany & Co.
15 Sylvan Way
Parsippany, New Jersey 07054
Attention: Vice President - Treasurer
Telephone: (973) 254-7699
Facsimile: (973) 254-7964
- ------------------------------------------------------- -----------------------------------------------------
Tiffany & Co. International c/o Tiffany & Co.
15 Sylvan Way
Parsippany, New Jersey 07054
Attention: Vice President - Treasurer
Telephone: (973) 254-7699
Facsimile: (973) 254-7964
- ------------------------------------------------------- -----------------------------------------------------
Tiffany & Co. Japan Inc. c/o Tiffany & Co.
15 Sylvan Way
Parsippany, New Jersey 07054
Attention: Vice President - Treasurer
Telephone: (973) 254-7699
Facsimile: (973) 254-7964
======================================================= =====================================================
ANNEX 1 TO THE GUARANTY AGREEMENT
FORM OF SUPPLEMENT
SUPPLEMENT NO. __, dated as of _______________, to the GUARANTY AGREEMENT,
dated as of November 5, 2001, among the Guarantors party thereto and The Bank of
New York, as administrative agent under the Credit Agreement referred to in the
next paragraph (as amended, supplemented or otherwise modified from time to
time, the "Guaranty Agreement").
Reference is made to the Credit Agreement, dated as of November 5, 2001, by
and among TIFFANY & CO., a Delaware corporation (the "Parent"), TIFFANY AND
COMPANY, a New York corporation (the "Tiffany"), TIFFANY & CO. INTERNATIONAL, a
Delaware corporation ("Tiffany International"), the other Borrowers party
thereto, the Lenders from time to time party thereto and The Bank of New York,
as Administrative Agent (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"). Capitalized terms used herein and not
defined herein shall have the meanings assigned to such terms in the Credit
Agreement and the Guaranty Agreement.
The Guarantors have entered into the Guaranty Agreement in order to induce
the Lenders to make Loans and the Issuing Bank to issue Letters of Credit.
Article 14 of the Guaranty Agreement provides that additional Persons may become
Guarantors under the Guaranty Agreement by execution and delivery of an
instrument in the form of this Supplement. The undersigned Person (the "New
Guarantor") is executing this Supplement in accordance with the requirements of
the Credit Agreement to become a Guarantor under the Guaranty Agreement in order
to induce the Lenders to make additional Loans and the Issuing Bank to issue
additional Letters of Credit and as consideration for Loans previously made and
Letters of Credit previously issued.
Accordingly, the Administrative Agent and the New Guarantor agree as
follows:
Section 1. In accordance with Article 14 of the Guaranty Agreement, the New
Guarantor by its signature below becomes a Guarantor under the Guaranty
Agreement with the same force and effect as if originally named therein as a
Guarantor, and the New Guarantor hereby (a) agrees to all the terms and
provisions of the Guaranty Agreement applicable to it as a Guarantor thereunder
and (b) represents and warrants that the representations and warranties made by
it as a Guarantor thereunder are true and correct on and as of the date hereof.
Each reference to a "Guarantor" in the Guaranty Agreement shall be deemed to
include the New Guarantor. The Guaranty Agreement is hereby incorporated herein
by reference.
Section 2. The New Guarantor represents and warrants to the Administrative
Agent and the other Credit Parties that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditor's rights generally.
Section 3. This Supplement may be executed in counterparts (and by each
party hereto on a different counterpart), each of which shall constitute an
original, but both of which, when taken together, shall constitute but one
contract. This Supplement shall become effective when the Administrative Agent
shall have received counterparts of this Supplement that, when taken together,
bear the signatures of the New Guarantor and the Administrative Agent. Delivery
of an executed counterpart of this Supplement by facsimile transmission shall be
as effective as delivery of a manually executed counterpart of this Supplement.
Section 4. Except as expressly supplemented hereby, the Guaranty Agreement
shall remain in full force and effect.
Section 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 6. In the event any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Guaranty Agreement shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision hereof in a particular jurisdiction shall not in and of itself affect
the validity of such provision in any other jurisdiction). The parties hereto
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
Section 7. All communications and notices hereunder shall be in writing and
given as provided in Article 12 of the Guaranty Agreement. All communications
and notices hereunder to the New Guarantor shall be given to it at the address
set forth under its signature below.
Section 8. The New Guarantor agrees to reimburse the Administrative Agent
for its out-of-pocket expenses in connection with this Supplement, including the
fees, disbursements and other charges of counsel for the Administrative Agent.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the New Guarantor and the Administrative Agent have
duly executed this Supplement No. __ to the Guaranty Agreement as of the day and
year first above written.
[NEW GUARANTOR]
By:
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Name:
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Title:
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Address:
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Attention:
Telephone No.: ( )
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Facsimile No.: ( )
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THE BANK OF NEW YORK, as
Administrative Agent
By:
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Name:
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Title:
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