Exhibit 99
Report on Form 8-K
GUARANTEE
BY
TIFFANY & CO.
April 3, 1996
American Family Life Assurance Company of Columbus
Japan Branch
AFLAC Square
2-33-2, Kojima-cho,
Chofu-shi, Tokyo 182-01
Japan
Gentlemen:
In consideration of your Company (the "Lender") agreeing to make an advance
in the principal amount of Five Billion Yen ((Y)5,000,000,000) to Tiffany & Co.
Japan Inc., Japan Branch (the "Borrower") pursuant to a loan agreement (the
"Agreement") dated as of April 3, 1996 between the Borrower and the Lender,
Tiffany & Co. (the "Guarantor") hereby agrees as follows (capitalized terms used
but not defined herein having the meanings specified in the Agreement):
1. The Guarantor hereby absolutely and unconditionally, and jointly and
severally with the Borrower, guarantees to the Lender the full and complete
payment when due (by acceleration or otherwise) of any and all sums whether of
principal, interest or other amount payable by the Borrower to the Lender under
or pursuant to the Agreement. The Guarantor hereby represents that, as of the
date hereof, it owns 100% of the capital stock of Tiffany International, who in
turn owns 100% of the capital stock of the Borrower, and hereby agrees to notify
the Lender of any material change in such shareholding.
Notwithstanding the use of the word "Guarantee", the obligation of the
Guarantor hereunder is unconditional irrespective of the genuineness,
legality, validity, regularity or enforceability of the Agreement.
2. Upon receipt by the Guarantor of a notice from the Lender in effect that
the Borrower has defaulted in the payment when due of any or all sums payable by
the Borrower to the Lender under the Agreement, the Guarantor shall forthwith
pay to the Lender at AFLAC Square, 2-33-2, Kojima-cho, Chofu-shi, Tokyo, Japan,
or such other address in Japan as may be notified by the Lender to the Guarantor
for this purpose, such sums in the currency and otherwise in the manner required
of the Borrower by the Agreement. All such payments shall be made without
set-off or counterclaim for any reason whatsoever and free and clear of and
without deduction or withholding for or on account of any present or future
income or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings of any nature whatsoever imposed, levied or withheld by any taxing
authority (other than income tax on the overall net income of the Lender)
("Taxes") now or hereafter imposed, whether by withholding or otherwise, in
Japan or in the United States or any taxing authority thereof or therein or in
any other country through or out of which the Guarantor makes payments hereunder
or any taxing authority of or in such country. In the event that the Guarantor
is prohibited by any law, treaty, ordinance, decree, rule, directive, regulation
or judicial or arbitral decision from making such payments free
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of such Taxes, then the Guarantor shall pay such additional amount as may be
necessary in order that the actual amount received by the Lender after such
Taxes (and after payment of any additional taxes or other charges due as a
consequence of the payment of such additional amount) shall equal the amount
that would have been received by the Lender if such Taxes were not required. The
Guarantor shall furnish the Lender with the receipt issued by the competent tax
authorities in respect of such Taxes or other evidence of payment of such Taxes
reasonably acceptable to the Lender within thirty (30) days after payment of
such Taxes. Notwithstanding the foregoing, the Guarantor shall not be
responsible for, and shall be entitled to deduct and withhold from any amount
payable to the Lender hereunder, any Taxes to the extent such taxes exceed the
amount of taxes which would have been applicable immediately prior to a transfer
or other disposition by the Lender of any interest in the Agreement or the
Advance or a change by the Lender (other than pursuant to the last sentence of
the Section 2 and with the consent of the Guarantor) of the Lending Office
making or maintaining the Advance from the Japan Branch of the Lender to another
Lending Office or branch of the Lender. If, at any time, taxes are or will be
imposed on payments by the Guarantor hereunder, and the Guarantor is or may be
required to make additional payments to or on behalf of the Lender in respect of
such taxes the Guarantor and the Lender shall consult in good faith and shall
each use its reasonable efforts to take action to avoid such requirement (which
action may, at the option of the Lender, include the transfer of the Advance to
another Lending Office of branch which is not subject to such requirement to the
extent such action does not cause material disadvantage to the Lender).
3. The Guarantor hereby waives notice of the making of the loan under the
Agreement, and notice of the acceptance of this Guarantee.
4. The Lender may neglect or forbear to enforce payment hereunder, or under
the Agreement or under any other document, instrument or agreement, without in
any way affecting or impairing the liability of the Guarantor hereunder.
5. The Guarantor hereby waives demand for payment (except as specified in 2
above), and notice of default or non-payment (except as otherwise provided
herein or in the Agreement).
6. The winding-up or dissolution of the Borrower or any change in the name,
objects, capital, ownership or control of the Borrower or any other
circumstances affecting the Borrower which might otherwise afford a legal or
equitable defense to the Guarantor or a discharge of this Guarantee shall not in
any way affect the liability of the Guarantor under this Guarantee.
7. The obligations of the Guarantor under this Guarantee shall be principal
obligations of the Guarantor and
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the Lender shall not be obliged to exhaust recourse against the Borrower before
being entitled to payment from the Guarantor of all the debts and liabilities
hereby guaranteed.
8. The Guarantor acknowledges that the Guarantor has received and reviewed
a copy of the executed Agreement and that no representation has been made to it
on behalf of the Lender and the Guarantor agrees that this Guarantee is in
addition to and not in substitution for any other guarantees which may hereafter
be held by the Lender and shall not be affected by any release or discharge
granted to any other guarantor.
9. This is an irrevocable and unconditional guarantee of payment and shall
remain in full force and effect until all the obligations of the Borrower to the
Lender as sent forth in the Agreement shall have been satisfied and all sums
due thereunder and all indebtedness of the Guarantor to the Lender payable
pursuant to this Guarantee shall have been paid to the Lender in full. The
Guarantor's obligations hereunder shall be reinstated if at any time any payment
received from the Borrower by the Lender is required to be repaid by the Lender
to the Borrower.
The Guarantor shall reimburse the Lender for all reasonable out-of-pocket
fees and expenses of the Lender, including reasonable fees and expenses of
counsel and the payment of any stamp or similar duties, incurred by the Lender
in the enforcement of, or the preservation of rights under, this Guarantee.
10. Any notice or demand on the Guarantor required or permitted to be given
hereunder shall be in writing and shall be (i) personally delivered, (ii)
transmitted by postage prepaid registered mail (airmail if international), (iii)
transmitted by cable (with postage prepaid registered mail confirmation, airmail
if international), or (iv) transmitted by facsimile (which shall be confirmed by
registered mail, air mail if international) to the Guarantor as follows:
Tiffany & co.
5 Sylvan Way
Parsippany, New Jersey 07054
U.S.A.
Facsimile No.: 201-971-3603
Attention: Mr. Luis Ulloa
A notice in writing shall include a notice by facsimile or cable.
Except as otherwise specified herein, all notices and demands shall be
deemed to have been duly given on the date of receipt by the addressee
thereof. The Guarantor may change its address for purposes hereof by notice
in writing to the Lender.
11. This Guarantee shall inure to the benefit of the Lender, its successors
and assigns.
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12. The Guarantor hereby represents and warrants to the Lender as follows:
(a) The Guarantor is a corporation duly organized and validly existing
under the laws of the State of Delaware, U.S.A. and has full corporate
power and authority to incur the obligations provided for in this Guarantee
and to execute and deliver this Guarantee, and to perform its obligations
hereunder.
(b) The Guarantor has taken all necessary corporate action, including
obtaining the approval of its Board of Directors or authorized committee
thereof as required by applicable law to authorize the execution and
delivery of this Guarantee and to authorize the performance and observance
of the terms and conditions hereof.
(c) Neither the execution and delivery of the Guarantee by the
Guarantor, nor the performance by it of its obligations hereunder, not the
compliance by it with the terms hereof, will:
(i) violate, conflict with, or result in the breach of any terms,
conditions or provisions of, or constitute a default under any
applicable law or regulation of the United States of America or the
State of Delaware, or any international treaty or convention by which
the Guarantor or any of its property or assets is bound, or any
administrative regulation or order or any court decree, or the
Certificate of Incorporation or By-Laws of the Guarantor, or
(ii) violate, conflict with, or result in the breach of any
terms, conditions or provisions of, or constitute a default under any
contract, indenture, mortgage, loan agreement, lease or other
agreement or instrument to which the Guarantor is a party or by which
the Guarantor or any of its property or assets is bound, which
violation, conflict, breach or default would have a material adverse
effect on the ability of the Guarantor to perform its obligations
hereunder, or result in the creation or imposition of any lien,
mortgage, pledge or other security of any material nature on any of
its property, assets or revenues.
(d) No governmental or other authorizations, consents, approvals or
registrations are necessary for the execution and delivery of this
Guarantee by the Guarantor or for the performance by the Guarantor of its
obligations hereunder, including, without limitation, foreign exchange and
transfer permits for the Guarantor to purchase or otherwise obtain, and
transmit for payment, the necessary amounts in Yen for payments with
respect to this Guarantee, except those authorizations, consents, approvals
or regulations already obtained.
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(e) This Guarantee constitutes the legal, valid and binding obligation
of the Guarantor enforceable against the Guarantor in accordance with its
terms and will rank pari passu as to priority of payment and in all other
respects, without any preference one over the other by reason of priority
of date of issue, currency of payment, form of instrument evidencing
obligations or otherwise, with all other unsecured and unsubordinated
Indebtedness of the Guarantor now outstanding except with respect to such
priorities and privileges as will be created by law.
(f) The Guarantor is not in default of any agreement relating to its
Indebtedness which default would have a material adverse effect on the
Guarantor's ability to fulfill its obligations hereunder. No Event of
Default, or event which with the passing of time or the giving of notice or
both would constitute an Event of Default relative to the Guarantor, has
occurred and is continuing.
(g) As of the date hereof, under current law, there is no withholding
tax of the United States applicable to any payment to be made by the
Guarantor pursuant to the terms of the this Guarantee.
(h) The Consolidated financial statements of the Guarantor from the
period ended January 31, 1995, which have heretofore been delivered to the
Lender present fairly the financial position of the Guarantor and its
consolidated Subsidiaries taken as a whole as of the date thereof and the
results of operations of the Guarantor and its consolidated Subsidiaries
taken as a whole for the period covered thereby, and since the date of such
financial statements there has been no material adverse change in the
financial position or the results of operations of the Guarantor and its
consolidated Subsidiaries taken as a whole.
(i) There are no proceedings before any arbitration tribunal, court,
government agency or administrative body pending or, to the best knowledge
of the Guarantor, threatened in writing against the Guarantor which, if
adversely determined, are likely to materially adversely affect the
financial condition of operations of the Guarantor or materially impair the
ability of the Guarantor to pay, when due, any amounts due hereunder or is
likely to enjoin the execution and delivery, or to adversely affect in any
manner the validity or enforceability, of this Guarantee.
13. Until all obligations of the Guarantor to the Lender pursuant to this
Guarantee shall have been satisfied:
(a) (i) As soon as practicable, but not later than one hundred and
twenty (120) days after the end of each of its fiscal years, the Guarantor
shall deliver to the Lender its annual consolidated financial statements as
at and for the year then ended, audited by independent accountants and
prepared in accordance with applicable
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rules and regulations of the U.S. Securities and Exchange Commission (the
"SEC") including those relating to Form 10-K.
(ii) As soon as practicable, but not later than sixty (60) days
after the end of each of the first three fiscal quarters occurring
within each of its fiscal years, the Guarantor shall deliver to the
Lender unaudited consolidated financial statements for such quarter
prepared in accordance with applicable rules and regulations of the
SEC including those relating to Form 10-Q.
(iii) The Guarantor shall as soon as practicable after a request
to that effect by the Lender provide the Lender with such additional
information concerning the financial condition of the Guarantor as the
Lender may from time to time reasonably require for the purposes of
this Guarantee.
(b) The Guarantor shall, upon becoming aware thereof, promptly give
notice to the Lender of the occurrence of any Event of Default under the
Agreement or event that, with the giving of notice or the passing of time,
or both, would constitute such an Event of Default.
(c) Except as permitted by (g) below, the Guarantor shall maintain its
corporate existence in good standing under and in compliance with all
applicable laws and regulations in all material respects.
(d) The Guarantor undertakes to obtain or effect, at the appropriate
time, any U.S. governmental consents, licenses, authorizations, approvals,
declarations, filings or registrations as may become necessary in the
future for the performance of any of the terms and conditions of this
Guarantee.
(e) The Guarantor agrees that it shall continue to hold, directly or
indirectly at least 80% of the shares of capital stock (having voting power
to vote for election of directors) of the Borrower.
(f) The Guarantor shall ensure that at all times its obligations
hereunder will rank pari passu as to priority of payment and in all other
respects with all other unsecured and unsubordinated Indebtedness of the
Guarantor now or hereafter outstanding, except with respect to such
priorities and privileges as are created by operation of law.
(g) The Guarantor shall not consolidate with or merge into any other
Person or convey or transfer all or substantially all of its properties and
assets to any Person, unless (i) the successor Person shall be organized
and existing under the laws of the United States or any State thereof, and
shall expressly assume in writing the due and punctual
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performance of all the obligations of the Guarantor hereunder and the
performance of every covenant in the Guarantee on the part of the Guarantor
to be performed or observed; (ii) immediately after giving effect to such
transaction, no Event of Default under the Agreement, and no event which,
after notice or lapse of time or both, would become such an Event of
Default, shall have happened and be continuing; and (iii) the Guarantor
shall have delivered to the Lender an officer's certificate and an opinion
of counsel, each in form and substance reasonably satisfactory to the
Lender stating that such consolidation, merger, conveyance or transfer
comply with the foregoing provisions. In case of any such consolidation,
merger, conveyance or transfer, such successor Person will succeed to and
be substituted for the Guarantor as obligor on the obligations of the
Guarantor hereunder, with the same effect as if it had been named in this
Guarantee as the Guarantor.
(h) The Guarantor shall not make any substantial alteration in the
nature of its business conducted as at the date of this Guarantee which
would have a materially adverse effect on the Guarantor's ability to
perform its obligations hereunder.
(i) The Guarantor shall ensure that the ratio of Consolidated
Indebtedness to Consolidated Capitalization never, at any Balance Date,
exceeds 0.55:1.00.
(j) The Guarantor shall ensure that the ratio of (i) Consolidated EBIT
for the four consecutive financial quarters ending on each Balance Date to
(ii) Consolidated Interest Expense for the same period is, at all times,
greater than 2.50:1.00.
(k) The Guarantor shall not, and shall not permit any Subsidiary
thereof to issue, assume or guarantee any Debt if such Debt is secured by
any Mortgage upon any Principal Property of the Guarantor or of any
Subsidiary thereof or any shares of stock or Indebtedness of any Subsidiary
thereof, whether owned at the date of this Guarantee or thereafter
acquired, without effectively securing the obligations of the Guarantor
hereunder equally and ratably with such Debt. The foregoing restriction
shall not apply to the following Mortgages:
(i) Mortgages on any Principal Property acquired, constructed or
improved by the Guarantor or any Subsidiary thereof after April 3,
1996, which are created or assumed within three years after such
acquisition, or completion of such construction or improvement to
secure or provide for the payment of the purchase price of such
Principal Property or cost of such construction or improvement, or
Mortgages existing on any property at the time of its acquisition;
provided that the Mortgage shall not apply to any property theretofore
owned by the Borrower or any Subsidiary thereof other than, in the
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case of any such construction or improvement, any theretofore
unimproved real property on which the property so constructed, or the
improvement, is located;
(ii) Mortgages existing on any property, shares of stock or
indebtedness acquired from a Person merged or consolidated with or
into the Guarantor or a Subsidiary thereof;
(iii) Mortgages on property of any corporation existing at the
time it becomes a Subsidiary of the Guarantor;
(iv) Mortgages to secure Debt of a Subsidiary of the Guarantor to
the Guarantor;
(v) Mortgages in favor of governmental bodies to secure partial
progress, advance or other payments pursuant to any contract or
statute or to secure indebtedness incurred to finance the purchase
price or cost of constructing or improving the property subject to
such Mortgages; or
(vi) Mortgages for the sole purpose of extending, renewing or
replacing Debt secured by any Mortgage referred to in the foregoing
sub-sections (i) to (v), inclusive, or in this sub-section (vi) or any
Mortgage existing on April 3, 1996; provided, however, that the
principal amount of Debt secured thereby shall not exceed the
principal amount of Debt so secured at the time of such extension,
renewal or replacement shall be limited to the property that secured
the Mortgage so extended, renewed or replaced (plus improvements on
such property).
(l) The Guarantor shall not, and shall not permit any Subsidiary
thereof to, enter into sale and Leaseback Transactions of any Principal
Property unless the net proceeds of such Sale and Leaseback Transactions
are at least equal to the sum of all costs incurred by the Guarantor or any
Subsidiary thereof in connection with the acquisition of, and construction
of any improvement on, the Principal Property to be leased and either (i)
the Guarantor or such Subsidiary would be entitled, pursuant to sub-section
(i) or the second paragraph of (k) above, to incur Debt secured by a
Mortgage on such Principal Property without equally and ratably securing
the obligations of the Guarantor hereunder or (ii) the Value thereof would
be an amount permitted under the last sentence (other than definitions)
under (k) above or (iii) the Guarantor or such Subsidiary thereafter
applies an amount equal to the sum of all costs incurred by the Guarantor
or such Subsidiary in connection with the acquisition of, and the
construction of any improvements on, such property (x) to the payment or
other retirement of Debt incurred or assumed by the Guarantor that ranks
senior to or pari passu with the obligations of the Guarantor hereunder or
of Debt incurred or
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assumed by any Subsidiary of the Guarantor (other than, in either case,
Debt owned by the Guarantor or any Subsidiary thereof); or (y) to the
purchase of other Principal Property.
(m) The Guarantor shall not, directly or indirectly, create, incur,
assume or suffer to exist any Indebtedness or permit any of its
consolidated Subsidiaries to do so, except any of the following types of
Indebtedness:
(i) Indebtedness of the Subsidiaries of the Guarantor in respect
of:
(A) Capitol Lease Obligations;
(B) Property acquired by a Subsidiary and secured by liens
thereon; and
(C) any purchase money Indebtedness;
up to the maximum aggregate principal amount outstanding at any one time of
US$25,000,000;
(ii) Indebtedness owed:
(A) from a Subsidiary of the Guarantor to the Guarantor;
(B) from the Guarantor to a Subsidiary of the Guarantor; and
(C) from one Subsidiary of the Guarantor to another;
(iii) Any Indebtedness of the Guarantor;
(iv) Indebtedness of the Borrower, which Indebtedness may be
guaranteed by Guarantor and/or Tiffany International, up to the
maximum aggregate principal amount of JP(Y)10,450,000,000; and
(v) Any other Indebtedness of Subsidiaries of the Guarantor not
otherwise permitted under sub-sections (i) through (iv) above up to
the maximum aggregate principal amount outstanding at any one time of
US$10,000,000.
(n) The Guarantor will not, and will not permit any consolidated
Subsidiary to, enter into any Derivative Transactions other than
arrangements which are complimentary to the business of the Guarantor and
its consolidated Subsidiaries and are for the sole purpose, in the
reasonable opinion of the Lender, of managing and protecting against the
Guarantor's, or the consolidated Subsidiary's (as the case may be) exposure
to interest rate and/or currency fluctuations.
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(o) Subject to Section 13(p), the Guarantor will not declare or pay
any dividend, or authorize or make any other distribution out of other than
(i) net income or if there is none, out of retained earnings, or (ii) the
net cash proceeds received after the date of this Guarantee from the
issuance of additional shares of the Guarantor's capital stock, unless the
consolidated Net Tangible Assets of the Guarantor and its consolidated
Subsidiaries remaining after such declaration or payment or distribution at
least equals the amount of the capital stock accounts reflecting capital as
determined under Articles 154 and 170 of the Delaware General Corporation
Law as shown on the consolidated balance sheet most recently furnished
pursuant to Section 13(a).
(p) Expect in the case of stock splits, the Guarantor will not declare
or pay any dividend payable in its own stock or authorize or make any other
distribution of any of its own stock, whether now or hereafter outstanding,
in respect of its then issued and outstanding stock, unless the
Consolidated Net Tangible Assets of the Guarantor and its consolidated
Subsidiaries remaining after such declaration or payment or distribution at
least equals the amount of the capital stock accounts reflecting capital as
determined under Article 154 and 170 of the Delaware General Corporation
Law as shown on the consolidated balance sheet most recently furnished
pursuant to Section 13(a).
For the purpose of sub-sections (i) through (p) above, all accounting terms
not otherwise defined have the meanings assigned to them in accordance with
generally accepted accounting principles, meaning such accounting principles are
generally accepted in the country of incorporation of the relevant entity at the
date of determination as being applicable to the type of business in which the
Guarantor and its Subsidiaries are engaged and that are approved by the
independent auditors regularly retained by the Guarantor and the following terms
have the following meanings:
"Balance Date" shall mean the final day of each of the Guarantor's
fiscal quarters, currently January 31, April 30, July 31 and October 31 of
each year and any other day as of which consolidated Subsidiaries are
prepared;
"Consolidated Capitalization" shall mean, as of any date, total
stockholder's equity of the Guarantor 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 Consolidated
Indebt on such date;
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"Consolidated EBIT" shall mean, in respect of any financial period of
the Guarantor and its consolidated Subsidiaries, the total amount of the
operating profits of the Guarantor and its consolidated Subsidiaries for
such period before taking into account any interest payable by the
Guarantor and its consolidated Subsidiaries and taxes on income and profits
payable by the Guarantor and its consolidated Subsidiaries;
"Consolidated Indebtedness" shall mean, at any Balance Date, the total
(on a consolidated basis) of the principal amount then outstanding of
Indebtedness of the Guarantor and its consolidated Subsidiaries determined
in accordance with, and by reference to, the relevant financial statements
and generally accepted accounting principles;
"Consolidated Interest Expenses" shall mean, in respect of any
financial period of the Guarantor and its consolidated Subsidiaries, the
aggregate (on a consolidated basis) of interest that has been paid,
incurred or accrued during such period determined in accordance with, and
by reference to, the relevant financial statements and generally accepted
accounting principles;
"Consolidated Net Tangible Assets", which may be determined as of a
date not more than 60 days prior to the happening of an of an event for
which such determination is being made, shall mean the total of all the
assets appearing on the consolidated balance sheet of the Guarantor and its
consolidated Subsidiaries less the following: (1) current liabilities; (2)
intangible assets such as goodwill, trademarks, trade names, patents, and
unamortized debt discount and expense; and (3) appropriate adjustments on
account of minority interests of other persons holding stock in any
Subsidiary of the Guarantor;
"Debt" shall mean indebtedness for money borrowed.
"Derivative Transactions" shall mean, (a) any transaction (including
an agreement with respect thereto) by the Guarantor or any of its
consolidated Subsidiaries which is a rate swap transaction, basis swap,
forward rate transaction, commodity swap, commodity option, equity or
equity index swap, equity or equity index option, bond option, interest
rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency
rate swap transaction, currency option or any other similar transaction
(including any option with respect to any of these transaction) and (b) any
combination of these transactions.
"Mortgage" shall mean any mortgage, pledge, lien, encumbrance, charge
or security interest of any kind; provided, however, that none of the
following shall be deemed to be a Mortgage:
(i) pledges or deposits under workmen's compensation,
unemployment insurance or similar statutes and mechanics', workmen's,
repairmen's, materialmen's,
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carriers' or other similar liens arising in the ordinary course of
business or deposits or pledges to obtain the release of any such
liens;
(ii) liens for taxes or assessments or governmental charges or
levies not yet due or delinquent, or which can thereafter be paid
without penalty, or which are being contested in good faith by
appropriate proceedings, landlord's liens on property held under
lease; and any other liens of a nature similar to those hereinabove
described in this sub-section (ii) which do not, in the reasonable
opinion of the Guarantor, materially impair the use of such property
in the operation of the business of the Guarantor or a Subsidiary
thereof or the value of such property for the purpose of such
business; or
(iii) any easement or similar encumbrance, the existence of which
does not impair the use of the property subject thereto for the
purposes for which it is used.
"Principal Property" shall mean any Property with a net book value
exceeding ten percent (10%) of the Consolidated Capitalization.
"Property" shall mean any real and personal property, including,
without limitation, store, warehouse, showroom or any other property or any
permanent improvement thereon owned by the Guarantor or any Subsidiary.
"Sale and Leaseback Transaction" shall mean any arrangement with any
Person providing for the leasing to the Guarantor or any Subsidiary thereof
of any Principal Property (except for temporary leases for a term,
including any renewal thereof, of not more than 36 months and except for
leases between the Guarantor and a Subsidiary thereof or between
Subsidiaries thereof), which Principal Property has been or is to be sold
or transferred by the Guarantor or such Subsidiary to such Person; and
"Value" shall mean, with respect to a Sale and Leaseback Transaction,
as of any particular time, the amount equal to the greater of (1) the net
proceeds from the sale or transfer of the property leased pursuant to such
Sale and Leaseback Transaction or (2) the sum of all costs of the Guarantor
or any Subsidiary thereof incurred in connection with the acquisition of
such property and the construction of any improvements thereon, as
determined in good faith by the Guarantor or such Subsidiary at the time of
entering into such Sale and Leaseback Transaction, in either case
multiplied by a fraction, the numerator of which shall be equal to the
number of full years of the term of the lease remaining at the time of
determination and the denominator of which shall be equal to the number of
full years of such term, without regard to any renewal or extension options
contained in the lease.
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14. Until all Indebtedness of the Guarantor to the Lender payable pursuant
to this Guarantee shall have been paid to the Lender in full, the Guarantor
shall have no right of subrogation and waives any right to enforce any remedy
which the Lender now has or may hereafter have against the Borrower and waives
any benefit of, and any right to participate in any security now or hereafter
held by the Lender.
15. This is a loan transaction in which the specification of Yen and
payment in Tokyo are of the essence, and Yen shall be the currency of account
and of payment in all events. The payment obligation hereunder shall not be
discharged by an amount paid in another currency or in another place, whether
pursuant to a judgment or otherwise. In the event that any payment, whether
pursuant to a judgment or otherwise, shall be made in a currency other than Yen
or in a place other than in Tokyo, such amount shall be promptly converted to
Yen and transferred to Tokyo under normal banking procedures. In the event that
such payment does not satisfy the obligations of the Guarantor hereunder, the
Lender shall be entitled to immediate payment of, and shall have a separate
cause of action for, the Yen deficiency in respect of the payments due to the
Lender.
16. This Guarantee shall be governed by and interpreted in accordance with
the laws of Japan.
(a) The Guarantor hereby irrevocably consents that any legal action or
proceedings against it or any of its property or assets with respect to
this Guarantee may be brought in the Tokyo District Court and by execution
and delivery of this Guarantee the Guarantor hereby submits to and accepts
with regard to any such action or proceeding for itself and in respect of
its property and assets, generally and unconditionally, the non-exclusive
jurisdiction of the aforesaid court. For purposes of this Guarantee, the
Guarantor hereby irrevocably appoints the Representative in Japan, from
time to time, of Tiffany & Co. Japan Inc, Japan Branch, as its agent for
service of process in Japan and designates the address, from time to time,
of Tiffany & Co. Japan Inc., Japan Branch, presently at 3-1-31 Minami
Aoyama, 10th Floor, Minato-ku, Tokyo 107, Japan as its address to receive
such service of process.
So long as the Commitment or any portion of the Advance or any other
sums payable by the Borrower or the Guarantor under the Agreement or this
Guarantee remains outstanding, the Guarantor (i) will take any and all
reasonable action, including the execution and filing of any and all
documents, as may be necessary to continue the foregoing appointments and
designations in full force and effect and (ii) if any agent for service so
designated shall cease to act for any reason, will immediately designate
another such agent in Tokyo reasonably satisfactory to the Lender and shall
furnish the Lender with the confirmation of acceptance of such agent so
appointed.
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(b) The Guarantor hereby irrevocably agrees not to present any
objection which it may now or hereafter have to the laying of the venue of
any suit, action or proceeding arising out of or relating to this Guarantee
or any document or instrument provided for hereunder in Tokyo, Japan and
hereby further irrevocably agrees not to claim that Tokyo, Japan is an
inconvenient forum for any such suit, action or proceeding. Nothing in this
Section 16 shall preclude the Lender from serving legal process up the
Guarantor at the office provided for in or designated pursuant to Section
10 or instituting legal proceedings against the Guarantor in the Court of
any other country or place which may have jurisdiction.
IN WITNESS WHEREOF the Guarantor has executed this Guarantee as of the
day and year first above written.
TIFFANY & CO.
By /s/ James N. Fernandez
______________________________
Name James N. Fernandez
____________________________
Title Senior Vice President and
___________________________
Chief Financial Officer
By /s/ Luis R. Ulloa
______________________________
Name Luis R. Ulloa
____________________________
Title Assistant Treasurer
___________________________
Signed in New York, New York
_______________________