Exhibit 99
Report on Form 8-K
TIFFANY & CO.
NOTE PURCHASE AGREEMENT
DATED AS OF JULY 18, 2002
$40,000,000 6.15% SERIES C SENIOR NOTES DUE JULY 18, 2009
$60,000,000 6.56% SERIES D SENIOR NOTES DUE JULY 18, 2012
GUARANTIED BY
TIFFANY AND COMPANY
TIFFANY & CO. INTERNATIONAL
TIFFANY & CO. JAPAN INC.
TABLE OF CONTENTS
Page
1. AUTHORIZATION OF NOTES......................................................................................1
2. SALE AND PURCHASE OF NOTES..................................................................................1
3. CLOSING.....................................................................................................2
4. CONDITIONS TO CLOSING.......................................................................................2
4.1. Representations and Warranties...........................................................................2
4.2. Performance; No Default..................................................................................2
4.3. Compliance Certificates..................................................................................3
4.4. Opinions of Counsel......................................................................................3
4.5. Purchase Permitted By Applicable Law, etc................................................................3
4.6. Sale of Other Notes......................................................................................4
4.7. Guaranty Agreement.......................................................................................4
4.8. Payment of Special Counsel Fees..........................................................................4
4.9. Private Placement Numbers................................................................................4
4.10. Changes in Corporate Structure........................................................................4
4.11. Proceedings and Documents.............................................................................4
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY...............................................................5
5.1. Organization; Power and Authority........................................................................5
5.2. Authorization, etc.......................................................................................5
5.3. Disclosure...............................................................................................5
5.4. Organization and Ownership of Shares of Subsidiaries; Affiliates.........................................6
5.5. Financial Statements.....................................................................................6
5.6. Compliance with Laws, Other Instruments, etc.............................................................7
5.7. Governmental Authorizations, etc.........................................................................7
5.8. Litigation; Observance of Agreements, Statutes and Orders................................................7
5.9. Taxes....................................................................................................8
5.10. Title to Property; Leases.............................................................................8
5.11. Licenses, Permits, etc................................................................................8
5.12. Compliance with ERISA.................................................................................9
5.13. Private Offering by the Company......................................................................10
5.14. Use of Proceeds; Margin Regulations..................................................................10
5.15. Existing Indebtedness; Future Liens..................................................................11
5.16. Foreign Assets Control Regulations, etc..............................................................11
5.17. Status under Certain Statutes........................................................................11
5.18. Environmental Matters................................................................................11
6. REPRESENTATIONS OF THE PURCHASER...........................................................................12
6.1. Purchase for Investment.................................................................................12
6.2. Source of Funds.........................................................................................12
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7. INFORMATION AS TO COMPANY..................................................................................14
7.1. Financial and Business Information......................................................................14
7.2. Officer's Certificate...................................................................................16
7.3. Inspection..............................................................................................17
8. PAYMENT OF THE NOTES.......................................................................................18
8.1. Interest Rates..........................................................................................18
8.2. No Required Principal Prepayments; Payment at Maturity..................................................18
8.3. Optional Prepayments with Make-Whole Amount.............................................................18
8.4. Allocation of Partial Prepayments.......................................................................18
8.5. Maturity; Surrender, etc................................................................................19
8.6. No Other Optional Prepayments or Purchase of Notes......................................................19
8.7. Make-Whole Amount.......................................................................................19
9. AFFIRMATIVE COVENANTS......................................................................................20
9.1. Compliance with Law.....................................................................................20
9.2. Insurance...............................................................................................21
9.3. Maintenance of Properties...............................................................................21
9.4. Payment of Taxes and Claims.............................................................................21
9.5. Corporate Existence, etc................................................................................21
9.6. Subsequent Guarantors...................................................................................22
10. NEGATIVE COVENANTS.........................................................................................22
10.1. Transactions with Affiliates.........................................................................22
10.2. Line of Business.....................................................................................22
10.3. Limitation on Debt...................................................................................22
10.4. Liens................................................................................................23
10.5. Merger, Consolidation, etc...........................................................................26
10.6. Sale of Assets.......................................................................................28
11. EVENTS OF DEFAULT..........................................................................................31
12. REMEDIES ON DEFAULT, ETC...................................................................................34
12.1. Acceleration.........................................................................................34
12.2. Other Remedies.......................................................................................35
12.3. Rescission...........................................................................................35
12.4. No Waivers or Election of Remedies, Expenses, etc....................................................35
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES..............................................................36
13.1. Registration of Notes................................................................................36
13.2. Transfer and Exchange of Notes.......................................................................36
13.3. Replacement of Notes.................................................................................36
14. PAYMENTS ON NOTES..........................................................................................37
14.1. Place of Payment.....................................................................................37
14.2. Home Office Payment..................................................................................37
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15. EXPENSES, ETC..............................................................................................38
15.1. Transaction Expenses.................................................................................38
15.2. Survival.............................................................................................38
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT...............................................38
17. AMENDMENT AND WAIVER.......................................................................................39
17.1. Requirements.........................................................................................39
17.2. Solicitation of Holders of Notes.....................................................................39
17.3. Binding Effect, etc..................................................................................40
17.4. Notes held by Company, etc...........................................................................40
18. NOTICES....................................................................................................40
19. REPRODUCTION OF DOCUMENTS..................................................................................41
20. CONFIDENTIAL INFORMATION...................................................................................41
21. SUBSTITUTION OF PURCHASER..................................................................................43
22. MISCELLANEOUS..............................................................................................43
22.1. Successors and Assigns...............................................................................43
22.2. Payments Due on Non-Business Days....................................................................43
22.3. Severability.........................................................................................43
22.4. Construction.........................................................................................43
22.5. Counterparts.........................................................................................44
22.6. Governing Law........................................................................................44
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Schedules and Exhibits
Schedule A -- Information Relating to Purchasers
Schedule B -- Defined Terms
Schedule 3 -- Payment Instructions
Schedule 4.10 -- Changes in Corporate Structure
Schedule 5.3 -- Disclosure Materials
Schedule 5.4 -- Subsidiaries of the Company and Ownership of Subsidiary Stock
Schedule 5.5 -- Financial Statements
Schedule 5.11 -- Patents, etc.
Schedule 5.12 -- Postretirement Benefit Obligations; ERISA Affiliates
Schedule 5.14 -- Use of Proceeds
Schedule 5.15 -- Existing Indebtedness and Liens
Exhibit 1A -- Form of 6.15% Series C Senior Note due July 18, 2009
Exhibit 1B -- Form of 6.56% Series D Senior Note due July 18, 2012
Exhibit 4.4(a) -- Form of Opinion of Special Counsel for Company and Guarantors
Exhibit 4.4(b) -- Form of Opinion of General Counsel for Company and Guarantors
Exhibit 4.4(c) -- Form of Opinion of Special Counsel for Purchasers
Exhibit 4.7 -- Form of Guaranty Agreement
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TIFFANY & CO.
727 Fifth Avenue
New York, New York 10022
$40,000,000 6.15% SERIES C SENIOR NOTES DUE JULY 18, 2009
$60,000,000 6.56% SERIES D SENIOR NOTES DUE JULY 18, 2012
Dated as of July 18, 2002
Separately addressed to each of the Purchasers
listed on the attached Schedule A
Ladies and Gentlemen:
TIFFANY & CO., a Delaware corporation (together with its successors and
assigns, the "Company"), agrees with you as follows: 1. AUTHORIZATION OF NOTES.
The Company will authorize the issue and sale of
(a) $40,000,000 aggregate principal amount of its 6.15% Series C
Senior Notes due July 18, 2009 (the "Series C Notes," such term to include
any such notes issued in substitution therefor pursuant to Section 13 of
this Agreement or the Other Agreements (as hereinafter defined)), and
(b) $60,000,000 aggregate principal amount of its 6.56% Series D
Senior Notes due July 18, 2012 (the "Series D Notes," such term to include
any such notes issued in substitution therefor pursuant to Section 13 of
this Agreement or the Other Agreements.
The Series C Notes and the Series D Notes shall be substantially in the forms
set out in Exhibit 1A and Exhibit 1B, respectively, with such changes therefrom,
if any, as may be approved by you and the Company. The Series C Notes and the
Series D Notes are herein referred to collectively as the "Notes," and
individually as a "Note." Certain capitalized terms used in this Agreement are
defined in Schedule B; references to a "Schedule" or an "Exhibit" are, unless
otherwise specified, to a Schedule or an Exhibit attached to this Agreement; and
references to a "Section" are, unless otherwise specified, references to a
Section of this Agreement.
2. SALE AND PURCHASE OF NOTES.
Subject to the terms and conditions of this Agreement, the Company will
issue and sell to you and you will purchase from the Company, at the Closing
provided for in Section 3, Notes of the Series and in the principal amounts
specified below your name in Schedule A at the purchase price of 100% of the
principal amount thereof. Contemporaneously with entering into this Agreement,
the Company is entering into separate Note Purchase Agreements (the "Other
Agreements") identical with this Agreement with each of the other purchasers
named in Schedule A (the "Other Purchasers "), providing for the sale at such
Closing to each of the Other Purchasers of Notes of the Series and in the
principal amounts specified below its name in Schedule A. Your obligation
hereunder and the obligations of the Other Purchasers under the Other Agreements
are several and not joint obligations and you shall have no obligation under any
Other Agreement and no liability to any Person for the performance or
non-performance by any Other Purchaser thereunder.
3. CLOSING.
The sale and purchase of the Notes to be purchased by you and the Other
Purchasers shall occur at the offices of Bingham McCutchen LLP, One State
Street, Hartford, Connecticut 06103, at 10:00 a.m., local time, at a closing
(the "Closing") on July 18, 2002. At the Closing, the Company will deliver to
you the Notes to be purchased by you in the form of a single Note (or such
greater number of Notes in denominations of at least $100,000 as you may
request), dated the date of the Closing and registered in your name (or in the
name of your nominee), as indicated in Schedule A, against payment by federal
funds wire transfer in immediately available funds of the amount of the purchase
price therefor as directed by the Company in Schedule 3. If, at the Closing, the
Company shall fail to tender such Notes to you as provided above in this Section
3, or any of the conditions specified in Section 4 shall not have been fulfilled
to your satisfaction, you shall, at your election, be relieved of all further
obligations under this Agreement, without thereby waiving any rights you may
have by reason of such failure or such nonfulfillment.
4. CONDITIONS TO CLOSING.
Your obligation to purchase and pay for the Notes to be sold to you at the
Closing is subject to the fulfillment to your satisfaction, prior to or at the
Closing, of the following conditions:
4.1. Representations and Warranties.
The representations and warranties of the Company in this Agreement shall
be correct when made and at the time of the Closing.
4.2. Performance; No Default.
The Company and each of the Guarantors shall have performed and complied
with all agreements and conditions contained in the Financing Documents required
to be performed or complied with by the Company or such Guarantors prior to or
at the Closing, and, after giving effect to the issue and sale of the Notes (and
the application of the proceeds thereof as contemplated by Schedule 5.14), no
Default or Event of Default shall have occurred and be continuing. Neither the
Company nor any Subsidiary shall have entered into any transaction since the
date of the Memorandum that would have been prohibited by any of Sections 10.1,
10.3 or 10.6 had such Sections applied since such date.
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4.3. Compliance Certificates.
(a) Officer's Certificate. The Company shall have delivered to you an
Officer's Certificate, dated the date of the Closing, certifying that the
conditions specified in Sections 4.1, 4.2 and 4.10 have been fulfilled.
(b) Company Secretary's Certificate. The Company shall have delivered to
you a certificate, signed on its behalf by its Secretary or one of its Assistant
Secretaries, dated the date of the Closing, certifying as to the resolutions
attached thereto and other corporate proceedings relating to the authorization,
execution and delivery of the Notes, this Agreement and the Other Agreements.
(c) Guarantor Secretary's Certificates. Each of the Guarantors shall have
delivered to you a certificate, signed on its behalf by its Secretary or one of
its Assistant Secretaries, dated the date of the Closing, certifying as to the
resolutions attached thereto and other corporate proceedings relating to the
authorization, execution and delivery of the Guaranty Agreement.
4.4. Opinions of Counsel.
You shall have received opinions in form and substance reasonably
satisfactory to you, dated the date of the Closing, from
(a) Gibson, Dunn & Crutcher, counsel for the Company and the
Guarantors, substantially in the form set out in Exhibit 4.4(a) and
covering such other matters incident to the transactions contemplated
hereby as you or your counsel may reasonably request (and the Company
hereby instructs such counsel to deliver such opinion to you), and
(b) Patrick B. Dorsey, Esq., Senior Vice President and General Counsel
of the Company and the Guarantors, substantially in the form set out in
Exhibit 4.4(b) and covering such other matters incident to the transactions
contemplated hereby as you or your counsel may reasonably request (and the
Company hereby instructs such counsel to deliver such opinion to you), and
(c) Bingham McCutchen LLP, your special counsel, substantially in the
form set out in Exhibit 4.4(c) and covering such other matters incident to
the transactions contemplated hereby as you may reasonably request.
4.5. Purchase Permitted By Applicable Law, etc.
On the date of the Closing, your purchase of Notes shall (a) be permitted
by the laws and regulations of each jurisdiction to which you are subject,
without recourse to provisions (such as section 1405(a)(8) of the New York
Insurance Law) permitting limited investments by insurance companies without
restriction as to the character of the particular investment, (b) not violate
any applicable law or regulation (including, without limitation, Regulation T, U
or X of the Board of Governors of the Federal Reserve System) and (c) not
subject you to any tax, penalty or liability under or pursuant to any applicable
law or regulation. If requested by you, you shall have
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received an Officer's Certificate certifying as to such matters of fact as you
may reasonably specify to enable you to determine whether such purchase is so
permitted.
4.6. Sale of Other Notes.
Contemporaneously with the Closing the Company shall sell to the Other
Purchasers and the Other Purchasers shall purchase the Notes to be purchased by
them at the Closing as specified in Schedule A.
4.7. Guaranty Agreement.
You shall have received a counterpart of the Guaranty Agreement, duly
executed and delivered by each of the Guarantors, substantially in the form of
Exhibit 4.7 (as amended or supplemented from time to time, the "Guaranty
Agreement"), and the Guaranty Agreement shall be in full force and effect.
4.8. Payment of Special Counsel Fees.
Without limiting the provisions of Section 15.1, the Company shall have
paid on or before the Closing the reasonable fees, charges and disbursements of
your special counsel referred to in Section 4.4(c) to the extent reflected in a
statement of such counsel rendered to the Company at least one Business Day
prior to the date of the Closing.
4.9. Private Placement Numbers.
A Private Placement Number issued by Standard & Poor's CUSIP Service Bureau
(in cooperation with the Securities Valuation Office of the National Association
of Insurance Commissioners) shall have been obtained for each Series of Notes.
4.10. Changes in Corporate Structure.
Except as specified in Schedule 4.10, the Company shall not have changed
its jurisdiction of incorporation or been a party to any merger or consolidation
and shall not have succeeded to all or any substantial part of the liabilities
of any other entity, at any time following the date of the most recent financial
statements referred to in Schedule 5.5.
4.11. Proceedings and Documents.
All corporate and other proceedings in connection with the transactions
contemplated by this Agreement and all documents and instruments incident to
such transactions shall be satisfactory to you and your special counsel, and you
and your special counsel shall have received all such counterpart originals or
certified or other copies of such documents as you or they may reasonably
request.
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5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to you that:
5.1. Organization; Power and Authority.
The Company is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation, and is duly
qualified as a foreign corporation and is in good standing in each jurisdiction
in which such qualification is required by law, other than those jurisdictions
as to which the failure to be so qualified or in good standing could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. The Company has the corporate power and authority to own or hold
under lease the properties it purports to own or hold under lease, to transact
the business it transacts and proposes to transact, to execute and deliver this
Agreement and the Other Agreements and the Notes and to perform the provisions
hereof and thereof.
5.2. Authorization, etc.
The Financing Documents have been duly authorized by all necessary
corporate action on the part of the Company and each of the Guarantors, and each
of this Agreement and the Other Agreements constitutes, and upon execution and
delivery thereof each Note and the Guaranty Agreement will constitute, a legal,
valid and binding obligation of each Obligor party thereto, enforceable against
each such Obligor in accordance with its terms, except as may be limited by (a)
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and (b) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
5.3. Disclosure.
The Company, through its agents, Lehman Brothers, BNY Capital Markets, Inc.
and J.P. Morgan Securities, Inc., has delivered to you and each Other Purchaser
a copy of a Private Placement Memorandum, dated May, 2002 (the "Memorandum"),
relating to the transactions contemplated hereby. The Memorandum and the
Company's Annual Report to Stockholders for the Fiscal Year ended January 31,
2002, Annual Report on Form 10-K for the Fiscal Year ended January 31, 2002 and
Form 8-K filing dated May 14, 2002 attached as exhibits to the Memorandum and
the Company's Proxy Statement dated April 10, 2002 and Quarterly Report on Form
10-Q for the fiscal quarter ended April 30, 2002 (collectively with the
Memorandum and referred to as the "Disclosure Documents"), taken as a whole,
fairly describe, in all material respects, the general nature of the business
and principal properties of the Company and its Subsidiaries. Except as
disclosed in Schedule 5.3, the Financing Documents, the Disclosure Documents,
the documents, certificates or other writings delivered to you by or on behalf
of the Company in connection with the transactions contemplated by the Financing
Documents and the financial statements listed in Schedule 5.5, taken as a whole,
do not contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements herein or therein not misleading
in light of the circumstances under which they were made. Except as disclosed in
the Memorandum or as expressly described in Schedule 5.3, or in one of the
documents, certificates or other writings identified herein or therein, or in
the financial
5
statements listed in Schedule 5.5, since January 31, 2002, there has been no
change in the financial condition, operations, business, properties or prospects
of the Company or any Subsidiary except changes that individually or in the
aggregate could not reasonably be expected to have a Material Adverse Effect.
There is no fact known to the Company that could reasonably be expected to have
a Material Adverse Effect that has not been set forth herein or in the
Memorandum or in the other documents, certificates and other writings delivered
to you by or on behalf of the Company specifically for use in connection with
the transactions contemplated hereby.
5.4. Organization and Ownership of Shares of Subsidiaries; Affiliates.
(a) Schedule 5.4 contains (except as noted therein) complete and
correct lists of (i) the Company's Subsidiaries, showing, as to each
Subsidiary, the correct name thereof, the jurisdiction of its organization,
and the percentage of shares of each class of its Capital Stock outstanding
owned by the Company and each other Subsidiary and (ii) the Company's
Affiliates, other than Subsidiaries.
(b) All of the outstanding shares of Capital Stock of each Subsidiary
shown in Schedule 5.4 as being owned by the Company or its Subsidiaries
have been validly issued, are fully paid and nonassessable and are owned by
the Company or another Subsidiary free and clear of any Lien (except as
otherwise disclosed in Schedule 5.4).
(c) Each Subsidiary identified in Schedule 5.4 is a corporation or
other legal entity duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization, and is duly qualified
as a foreign corporation or other legal entity and is in good standing in
each jurisdiction in which such qualification is required by law, other
than those jurisdictions as to which the failure to be so qualified or in
good standing could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. Each such Subsidiary has the
corporate or other power and authority to own or hold under lease the
properties it purports to own or hold under lease, to transact the business
it transacts and proposes to transact, to execute and deliver the Financing
Documents to which it is a party and to perform its obligations thereunder.
(d) No Subsidiary is a party to, or otherwise subject to any legal
restriction or any agreement (other than the agreements listed in Schedule
5.4 and customary limitations imposed by corporate law statutes)
restricting the ability of such Subsidiary to pay dividends out of profits
or make any other similar distributions of profits to the Company or any of
its Subsidiaries that owns outstanding shares of Capital Stock of such
Subsidiary.
5.5. Financial Statements.
The Company has delivered to you and each Other Purchaser copies of the
consolidated financial statements of the Company and its Subsidiaries listed in
Schedule 5.5. All of said consolidated financial statements (including in each
case the related schedules and notes) fairly present in all material respects
the consolidated financial position of the Company and its Subsidiaries as of
the respective dates specified in such Schedule and the consolidated results of
6
their operations and cash flows for the respective periods so specified and have
been prepared in accordance with GAAP consistently applied throughout the
periods involved except as set forth in the notes thereto (subject, in the case
of any interim financial statements, to normal year-end adjustments).
5.6. Compliance with Laws, Other Instruments, etc.
The execution, delivery and performance (i) by the Company of this
Agreement and the Notes, and (ii) by each of the Guarantors of the Guaranty
Agreement, will not
(a) contravene, result in any breach of, or constitute a default
under, or result in the creation of any Lien in respect of any property of
the Company or any Subsidiary under, any indenture, mortgage, deed of
trust, loan, purchase or credit agreement, lease, corporate charter or
by-laws, or any other agreement or instrument to which the Company or any
Subsidiary is bound or by which the Company or any Subsidiary or any of
their respective properties may be bound or affected,
(b) conflict with or result in a breach of any of the terms,
conditions or provisions of any order, judgment, decree, or ruling of any
court, arbitrator or Governmental Authority applicable to the Company or
any Subsidiary, or
(c) violate any provision of any statute or other rule or regulation
of any Governmental Authority applicable to the Company or any Subsidiary.
5.7. Governmental Authorizations, etc.
No consent, approval or authorization of, or registration, filing or
declaration with, any Governmental Authority is required to be obtained by the
Company or any of the Guarantors in connection with the execution, delivery or
performance (a) by the Company of this Agreement or the Notes, or (b) by each of
the Guarantors of the Guaranty Agreement.
5.8. Litigation; Observance of Agreements, Statutes and Orders.
(a) There are no actions, suits or proceedings pending or, to the
knowledge of the Company, threatened against or affecting the Company or
any Subsidiary or any property of the Company or any Subsidiary in any
court or before any arbitrator of any kind or before or by any Governmental
Authority that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default under any
term of any agreement or instrument to which it is a party or by which it
is bound, or any order, judgment, decree or ruling of any court, arbitrator
or Governmental Authority or is in violation of any applicable law,
ordinance, rule or regulation (including, without limitation, Environmental
Laws) of any Governmental Authority, which default or violation,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
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5.9. Taxes.
The Company and its Subsidiaries have filed all tax returns that are
required to have been filed in any jurisdiction, and have paid all taxes shown
to be due and payable on such returns and all other taxes and assessments levied
upon them or their properties, assets, income or franchises, to the extent such
taxes and assessments have become due and payable and before they have become
delinquent, except for any taxes and assessments (a) the amount of which is not
individually or in the aggregate Material or (b) the amount, applicability or
validity of which is currently being contested in good faith by appropriate
proceedings and with respect to which the Company or a Subsidiary, as the case
may be, has established adequate reserves in accordance with GAAP. The Company
knows of no basis for any other tax or assessment that could reasonably be
expected to have a Material Adverse Effect. The charges, accruals and reserves
on the books of the Company and its Subsidiaries in respect of Federal, state or
other taxes for all fiscal periods are adequate. The Federal income tax
liabilities of the Company and its Subsidiaries subject to United States income
taxes have been determined by the Internal Revenue Service and paid for all
fiscal years up to and including the fiscal year ended January 31, 1997.
5.10. Title to Property; Leases.
The Company and its Subsidiaries have good and sufficient title to their
respective properties that individually or in the aggregate are Material,
including all such properties reflected in the most recent audited balance sheet
referred to in Section 5.5 or purported to have been acquired by the Company or
any Subsidiary after said date (except as sold or otherwise disposed of in the
ordinary course of business), in each case free and clear of Liens prohibited by
this Agreement. All leases that individually or in the aggregate are Material
are valid and subsisting and are in full force and effect in all material
respects.
5.11. Licenses, Permits, etc.
Except as disclosed in Schedule 5.11,
(a) the Company and its Subsidiaries own or possess all licenses,
permits, franchises, authorizations, patents, copyrights, service marks,
trademarks and trade names, or rights thereto, that individually or in the
aggregate are Material, without known conflict with the rights of others;
(b) to the best knowledge of the Company, no product or practice of
the Company or any Subsidiary infringes in any material respect any
license, permit, franchise, authorization, patent, copyright, service mark,
trademark, trade name or other right owned by any other Person; and
(c) to the best knowledge of the Company, there is no Material
violation by any Person of any right of the Company or any of its
Subsidiaries with respect to any patent, copyright, service mark,
trademark, trade name or other right owned or used by the Company or any of
its Subsidiaries.
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5.12. Compliance with ERISA.
(a) The Company and each ERISA Affiliate have operated and
administered each Plan in compliance with all applicable laws except for
such instances of noncompliance as have not resulted in and could not
reasonably be expected to result in a Material Adverse Effect. Neither the
Company nor any ERISA Affiliate has incurred any liability pursuant to
Title I or IV of ERISA or the penalty or excise tax provisions of the Code
relating to employee benefit plans (as defined in section 3 of ERISA), and
no event, transaction or condition has occurred or exists that could
reasonably be expected to result in the incurrence of any such liability by
the Company or any ERISA Affiliate, or in the imposition of any Lien on any
of the rights, properties or assets of the Company or any ERISA Affiliate,
in either case pursuant to Title I or IV of ERISA or to such penalty or
excise tax provisions or to section 401(a)(29) or 412 of the Code, other
than such liabilities or Liens as would not be individually or in the
aggregate Material.
(b) The present value of the aggregate benefit liabilities under each
of the Plans (other than Multiemployer Plans), determined as of the end of
such Plan's most recently ended plan year on the basis of the actuarial
assumptions specified for funding purposes in such Plan's most recent
actuarial valuation report, did not exceed the aggregate current value of
the assets of such Plan allocable to such benefit liabilities by more than
$5,000,000. The term "benefit liabilities" has the meaning specified in
section 4001 of ERISA and the terms "current value" and "present value"
have the meaning specified in section 3 of ERISA.
(c) The Company and the ERISA Affiliates have not incurred withdrawal
liabilities (and are not subject to contingent withdrawal liabilities)
under section 4201 or 4204 of ERISA in respect of Multiemployer Plans that
individually or in the aggregate are Material.
(d) Part I of Schedule 5.12 sets forth the expected postretirement
benefit obligations of the Company and its Subsidiaries determined as of
the last day of the Company's most recently ended fiscal year in accordance
with Financial Accounting Standards Board Statement No. 106, without regard
to liabilities attributable to continuation coverage mandated by section
4980B of the Code.
(e) The execution and delivery of the Financing Documents and the
issuance and sale of the Notes hereunder will not involve any transaction
that is subject to the prohibitions of section 406 of ERISA or in
connection with which a tax could be imposed pursuant to section
4975(c)(1)(A)-(D) of the Code. The representation by the Company in the
first sentence of this Section 5.12(e) is made in reliance upon and subject
to the accuracy of your representation in Section 6.2 as to the Sources
used to pay the purchase price of the Notes to be purchased by you.
(f) Part II of Schedule 5.12 sets forth all ERISA Affiliates and all
"employee benefit plans" maintained by the Company (or any "affiliate"
thereof) or in respect of which the Notes could constitute an "employer
security" ("employee benefit plan" has the meaning specified in section 3
of ERISA, "affiliate" has the meaning specified in
9
section 407(d) of ERISA and section V of the Department of Labor Prohibited
Transaction Exemption 95-60 (60 FR 35925, July 12, 1995) and "employer
security" has the meaning specified in section 407(d) of ERISA).
(g) All Foreign Pension Plans have been established, operated,
administered and maintained in compliance with all laws, regulations and
orders applicable thereto except for such failures to comply, in the
aggregate for all such failures, that could not reasonably be expected to
have a Material Adverse Effect. All premiums, contributions and any other
amounts required by applicable Foreign Pension Plan documents or applicable
laws have been paid or accrued as required, except for premiums,
contributions and amounts that, in the aggregate for all such obligations,
could not reasonably be expected to have a Material Adverse Effect.
5.13. Private Offering by the Company.
Neither the Company nor anyone acting on its behalf has offered the Notes
or any similar securities for sale to, or solicited any offer to buy any of the
same from, or otherwise approached or negotiated in respect thereof with, any
Person other than you and not more than 19 other Institutional Investors, each
of which has been offered the Notes at a private sale for investment. Neither
the Company nor anyone acting on its behalf has taken, or will take, any action
that would subject the issuance or sale of the Notes to the registration
requirements of section 5 of the Securities Act. For purposes of this Section
5.13 only, each reference to the Notes shall be deemed to include a reference to
the Guaranty Agreement. The Company's representations and warranties in this
Section 5.13 are made in reliance upon similar representations and warranties
made to the Company by Lehman Brothers, BNY Capital Markets, Inc. and J.P.
Morgan Securities, Inc. The Company believes that its reliance upon such
representations and warranties is reasonable under the circumstances and that it
is justified in relying thereon.
5.14. Use of Proceeds; Margin Regulations.
The Company will apply the proceeds of the sale of the Notes as set forth
in Schedule 5.14. No part of the proceeds from the sale of the Notes hereunder
will be used, directly or indirectly, for the purpose of buying or carrying any
margin stock within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System (12 CFR 221), or for the purpose of buying or carrying or
trading in any securities under such circumstances as to involve the Company in
a violation of Regulation X of said Board (12 CFR 224) or to involve any broker
or dealer in a violation of Regulation T of said Board (12 CFR 220). Margin
stock does not constitute more than 25% of the value of the consolidated assets
of the Company and its Subsidiaries and the Company does not have any present
intention that margin stock will constitute more than 25% of the value of such
assets. As used in this Section, the terms "margin stock" and "purpose of buying
or carrying" shall have the meanings assigned to them in said Regulation U.
10
5.15. Existing Indebtedness; Future Liens.
(a) Except as described therein, Schedule 5.15 sets forth a complete
and correct list of all outstanding Indebtedness of the Company and its
Subsidiaries as of the dates specified in such Schedule (and specifying, as
to each such Indebtedness, the collateral, if any, securing such
Indebtedness), since which date there has been no Material change in the
amounts, interest rates, sinking funds, installment payments or maturities
of the Indebtedness of the Company or its Subsidiaries. Neither the Company
nor any Subsidiary is in default and no waiver of default is currently in
effect, in the payment of any principal or interest on any Indebtedness of
the Company or such Subsidiary and no event or condition exists with
respect to any Indebtedness of the Company or any Subsidiary that would
permit (or that with notice or the lapse of time, or both, would permit)
one or more Persons to cause such Indebtedness to become due and payable
before its stated maturity or before its regularly scheduled dates of
payment.
(b) Except as disclosed in Schedule 5.15, neither the Company nor any
Subsidiary has agreed or consented to cause or permit in the future (upon
the happening of a contingency or otherwise) any of its property, whether
now owned or hereafter acquired, to be subject to a Lien not permitted by
Section 10.4.
5.16. Foreign Assets Control Regulations, etc.
(a) Neither the sale of the Notes by the Company hereunder nor its use
of the proceeds thereof will violate the Trading with the Enemy Act, as
amended, or any of the foreign assets control regulations of the United
States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or
any enabling legislation or executive order relating thereto.
(b) Neither the Company nor any of its Subsidiaries has violated the
provisions of United States Executive Order 13224 of September 24, 2001
Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threaten to Commit, or Support Terrorism (Exec. Order No. 13,224, 66 Fed.
Reg. 49,079 (2001)) (the "Anti-Terrorism Order") or the provisions of
Public Law 107-56 (USA Patriot Act).
5.17. Status under Certain Statutes.
Neither the Company nor any Subsidiary is subject to regulation under the
Investment Company Act of 1940, as amended, the Public Utility Holding Company
Act of 1935, as amended, the Transportation Acts (49 U.S.C.), as amended, or the
Federal Power Act, as amended.
5.18. Environmental Matters.
Neither the Company nor any Subsidiary has knowledge of any claim or has
received any notice of any claim, and no proceeding has been instituted raising
any claim against the Company or any of its Subsidiaries or any of their
respective real properties now or formerly owned, leased or operated by any of
them or other assets, alleging any damage to the
11
environment or violation of any Environmental Laws, except, in each case, such
as could not reasonably be expected to result in a Material Adverse Effect.
Except as otherwise disclosed to you in writing,
(a) neither the Company nor any Subsidiary has knowledge of any facts
which would give rise to any claim, public or private, of violation of
Environmental Laws or damage to the environment emanating from, occurring
on or in any way related to real properties now or formerly owned, leased
or operated by any of them or to other assets or their use, except, in each
case, such as could not reasonably be expected to result in a Material
Adverse Effect;
(b) neither the Company nor any of its Subsidiaries has stored any
Hazardous Materials on real properties now or formerly owned, leased or
operated by any of them or disposed of any Hazardous Materials in a manner
contrary to any Environmental Laws in each case in any manner that could
reasonably be expected to result in a Material Adverse Effect; and
(c) all buildings on all real properties now owned, leased or operated
by the Company or any of its Subsidiaries are in compliance with applicable
Environmental Laws, except where failure to comply could not reasonably be
expected to result in a Material Adverse Effect.
6. REPRESENTATIONS OF THE PURCHASER.
6.1. Purchase for Investment.
You represent that you are purchasing the Notes for your own account or for
one or more separate accounts maintained by you or for the account of one or
more pension or trust funds and not with a view to the distribution thereof,
provided that the disposition of your or their property shall at all times be
within your or their control. You understand that the Notes have not been
registered under the Securities Act and may be resold only if registered
pursuant to the provisions of the Securities Act or if an exemption from
registration is available, except under circumstances where neither such
registration nor such an exemption is required by law, and that the Company is
not required to register the Notes.
6.2. Source of Funds.
You represent that at least one of the following statements is an accurate
representation as to each source of funds (a "Source") to be used by you to pay
the purchase price of the Notes to be purchased by you hereunder:
(a) the Source is an "insurance company general account" as defined in
United States Department of Labor Prohibited Transaction Exemption ("PTE")
95-60 (60 FR 35925, July 12, 1995) and in respect thereof you represent
that there is no "employee benefit plan" (as defined in section 3(3) of
ERISA and section 4975(e)(1) of the Code, treating as a single plan all
plans maintained by the same employer or employee organization or affiliate
thereof) with respect to which the amount of the general account reserves
and liabilities of all contracts held by or on behalf of such plan
12
exceeds 10% of the total reserves and liabilities of such general account
(exclusive of separate account liabilities) plus surplus, as set forth in
the National Association of Insurance Commissioners' Annual Statement filed
with your state of domicile; or
(b) if you are an insurance company, the Source does not include
assets allocated to any separate account maintained by you in which any
employee benefit plan (or its related trust) has any interest, other than a
separate account that is maintained solely in connection with your fixed
contractual obligations under which the amounts payable, or credited, to
such plan and to any participant or beneficiary of such plan (including any
annuitant) are not affected in any manner by the investment performance of
the separate account; or
(c) the Source is either (i) an insurance company pooled separate
account, within the meaning of PTE 90-1 (issued January 29, 1990), or (ii)
a bank collective investment fund, within the meaning of the PTE 91-38
(issued July 12, 1991) and, except as you have disclosed to the Company in
writing pursuant to this paragraph (c), no employee benefit plan or group
of plans maintained by the same employer or employee organization
beneficially owns more than 10% of all assets allocated to such pooled
separate account or collective investment fund; or
(d) the Source constitutes assets of an "investment fund" (within the
meaning of part V of PTE 84-14 (the "QPAM Exemption")) managed by a
"qualified professional asset manager" or "QPAM" (within the meaning of
part V of the QPAM Exemption), no employee benefit plan's assets that are
included in such investment fund, when combined with the assets of all
other employee benefit plans established or maintained by the same employer
or by an affiliate (within the meaning of section V(c)(1) of the QPAM
Exemption) of such employer or by the same employee organization and
managed by such QPAM, exceed 20% of the total client assets managed by such
QPAM, the conditions of part I(c) and (g) of the QPAM Exemption are
satisfied, neither the QPAM nor a person controlling or controlled by the
QPAM (applying the definition of "control" in section V(e) of the QPAM
Exemption) owns a 5% or more interest in the Company and
(i) the identity of such QPAM and
(ii) the names of all employee benefit plans whose assets are
included in such investment fund
have been disclosed to the Company in writing pursuant to this paragraph
(d); or
(e) the Source is a governmental plan; or
(f) the Source is one or more employee benefit plans, or a separate
account or trust fund comprised of one or more employee benefit plans, each
of which has been identified to the Company in writing pursuant to this
paragraph (f); or
(g) the Source does not include assets of any employee benefit plan,
other than a plan exempt from the coverage of ERISA.
13
As used in this Section 6.2, the terms "employee benefit plan", "governmental
plan" and "separate account" shall have the respective meanings assigned to such
terms in section 3 of ERISA.
7. INFORMATION AS TO COMPANY.
7.1. Financial and Business Information.
The Company shall deliver to each holder of Notes that is an
Institutional Investor:
(a) Quarterly Statements -- within 60 days after the end of each
quarterly fiscal period in each fiscal year of the Company (other than
the last quarterly fiscal period of each such fiscal year), duplicate
copies of,
(i) a consolidated balance sheet of the Company and its
Subsidiaries as at the end of such quarter, and
(ii) consolidated statements of earnings, stockholders'
equity and cash flows of the Company and its Subsidiaries, for
such quarter and (in the case of the second and third quarters)
for the portion of the fiscal year ending with such quarter,
setting forth in each case in comparative form the figures for the
corresponding periods in the previous fiscal year, all in reasonable
detail, prepared in accordance with GAAP applicable to quarterly
financial statements generally, and certified on behalf of the Company
by a Senior Financial Officer as fairly presenting, in all material
respects, the consolidated financial position of the companies being
reported on and their consolidated results of operations and cash
flows, subject to changes resulting from year-end adjustments,
provided that delivery within the time period specified above of
copies of the Company's Quarterly Report on Form 10-Q (including
copies of each exhibit filed therewith) prepared in compliance with
the requirements therefor and filed with the Securities and Exchange
Commission shall be deemed to satisfy the requirements of this Section
7.1(a) so long as such Report includes each of the financial
statements (and the comparative historical figures) referred to above;
(b) Annual Statements -- within 120 days after the end of each
fiscal year of the Company, duplicate copies of,
(i) a consolidated balance sheet of the Company and its
Subsidiaries, as at the end of such year, and
(ii) consolidated statements of earnings, stockholders'
equity and cash flows of the Company and its Subsidiaries, for
such year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail, prepared in accordance
with GAAP, and accompanied by
14
(A) an opinion thereon of independent certified public
accountants of recognized national standing, which opinion
shall state that such financial statements present fairly,
in all material respects, the consolidated financial
position of the companies being reported upon and their
consolidated results of operations and cash flows and have
been prepared in conformity with GAAP, and that the
examination of such accountants in connection with such
financial statements has been made in accordance with
generally accepted auditing standards, and that such audit
provides a reasonable basis for such opinion in the
circumstances, and
(B) a certificate of such accountants stating that they
have reviewed this Agreement and stating further whether, in
making their audit, they have become aware of any condition
or event that then constitutes a Default or an Event of
Default, and, if they are aware that any such condition or
event then exists, specifying the nature and period of the
existence thereof (it being understood that such accountants
shall not be liable, directly or indirectly, for any failure
to obtain knowledge of any Default or Event of Default
unless such accountants should have obtained knowledge
thereof in making an audit in accordance with generally
accepted auditing standards or did not make such an audit),
provided that the delivery within the time period specified above of
the Company's Annual Report on Form 10-K (including copies of each
exhibit filed therewith) for such fiscal year prepared in accordance
with the requirements therefor and filed with the Securities and
Exchange Commission, together with the accountant's certificate
described in clause (B) above, shall be deemed to satisfy the
requirements of this Section 7.1(b), so long as such Report includes
each of the financial statements (and the comparative historical
figures) referred to above;
(c) SEC and Other Reports -- promptly upon their becoming
available, one copy of (i) each financial statement, annual report
(including, without limitation, the Company's annual report to
shareholders, if any, prepared pursuant to Rule 14a-3 under the
Exchange Act), notice or proxy statement sent by the Company or any
Subsidiary to public securities holders generally, and (ii) each
regular or periodic report, each registration statement (without
exhibits except as expressly requested by such holder), and each
prospectus and all amendments thereto filed by the Company or any
Subsidiary with the Securities and Exchange Commission and of all
press releases and other statements made available generally by the
Company or any Subsidiary to the public concerning developments that
are Material;
(d) Notice of Default or Event of Default -- promptly, and in any
event within five days after a Responsible Officer becoming aware of
the existence of any Default or Event of Default or that any Person
has given any notice or taken any action with respect to a claimed
default hereunder or that any Person has given any notice or taken any
action with respect to a claimed default of the type referred to in
Section 11(f), a written notice specifying the nature and period of
existence thereof and what action the Company is taking or proposes to
take with respect thereto;
15
(e) ERISA Matters -- promptly, and in any event within five days
after a Responsible Officer becoming aware of any of the following, a
written notice setting forth the nature thereof and the action, if
any, that the Company or an ERISA Affiliate proposes to take with
respect thereto:
(i) with respect to any Plan, any reportable event, as
defined in section 4043(c) of ERISA and the regulations
thereunder, for which notice thereof has not been waived pursuant
to such regulations as in effect on the date of the Closing; or
(ii) the taking by the PBGC of steps to institute, or the
threatening by the PBGC of the institution of, proceedings under
section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Plan, or the receipt by the
Company or any ERISA Affiliate of a notice from a Multiemployer
Plan that such action has been taken by the PBGC with respect to
such Multiemployer Plan; or
(iii) any event, transaction or condition that could result
in the incurrence of any liability by the Company or any ERISA
Affiliate pursuant to Title I or IV of ERISA or the penalty or
excise tax provisions of the Code relating to employee benefit
plans, or in the imposition of any Lien on any of the rights,
properties or assets of the Company or any ERISA Affiliate
pursuant to Title I or IV of ERISA or such penalty or excise tax
provisions, if such liability or Lien, taken together with any
other such liabilities or Liens then existing, could reasonably
be expected to have a Material Adverse Effect;
(f) Notices from Governmental Authority -- promptly, and in any event
within 30 days of receipt thereof, copies of any notice to the Company or
any Subsidiary from any Federal or state Governmental Authority relating to
any order, ruling, statute or other law or regulation that could reasonably
be expected to have a Material Adverse Effect; and
(g) Requested Information --- with reasonable promptness, such other
data and information relating to the business, operations, affairs,
financial condition, assets or properties of the Company or any of its
Subsidiaries or relating to the ability of the Obligors to perform their
obligations under the Financing Documents as from time to time may be
reasonably requested by any such holder of Notes, or such information
regarding the Company required to satisfy the requirements of 17 C.F.R.
ss.230.144A, as amended from time to time, in connection with any
contemplated transfer of the Notes.
7.2. Officer's Certificate.
Each set of financial statements delivered to a holder of Notes pursuant to
Section 7.1(a) or Section 7.1(b) hereof shall be accompanied by an Officer's
Certificate signed by a Senior Financial Officer setting forth:
16
(a) Covenant Compliance -- the information (including detailed
calculations) required in order to establish whether the Company was in
compliance with the requirements of Sections 10.3 through 10.6, inclusive,
during the quarterly or annual period covered by the statements then being
furnished (including with respect to each such Section, where applicable,
the calculations of the maximum or minimum amount, ratio or percentage, as
the case may be, permissible under the terms of such Sections, and the
calculation of the amount, ratio or percentage then in existence); and
(b) Event of Default -- a statement that such officer has reviewed the
relevant terms hereof and has made, or caused to be made, under his or her
supervision, a review of the transactions and conditions of the Company and
its Subsidiaries from the beginning of the quarterly or annual period
covered by the statements then being furnished to the date of the
certificate and that such review has not disclosed the existence during
such period of any condition or event that constitutes a Default or an
Event of Default or, if any such condition or event existed or exists
(including, without limitation, any such event or condition resulting from
the failure of the Company or any Subsidiary to comply with any
Environmental Law), specifying the nature and period of existence thereof
and what action the Company shall have taken or proposes to take with
respect thereto.
7.3. Inspection.
The Company shall permit the representatives of each holder of Notes that
is an Institutional Investor:
(a) No Default -- if no Default or Event of Default then exists, at
the expense of such holder and upon reasonable prior notice to the Company,
to visit the principal executive office of the Company, to discuss the
affairs, finances and accounts of the Company and its Subsidiaries with the
Company's officers, and (with the consent of the Company, which consent
will not be unreasonably withheld) its independent public accountants, and
(with the consent of the Company, which consent will not be unreasonably
withheld) to visit the other offices and properties of the Company and each
Subsidiary, all at such reasonable times and as often as may be reasonably
requested in writing; and
(b) Default -- if a Default or Event of Default then exists, at the
expense of the Company, to visit and inspect any of the offices or
properties of the Company or any Subsidiary, to examine all their
respective books of account, records, reports and other papers, to make
copies and extracts therefrom, and to discuss their respective affairs,
finances and accounts with their respective officers and independent public
accountants (and by this provision the Company authorizes said accountants
to discuss the affairs, finances and accounts of the Company and its
Subsidiaries), all at such times and as often as may be requested.
17
8. PAYMENT OF THE NOTES.
8.1. Interest Rates.
Interest on the Notes shall accrue on the unpaid principal balance of the
Notes at the rates and shall be computed on the basis as described in the Notes.
Interest shall be due and payable as provided in the Notes.
8.2. No Required Principal Prepayments; Payment at Maturity.
(a) Series C Notes Prepayments. There are no required prepayments of
principal in respect of the Series C Notes. The entire principal amount of
the Series C Notes outstanding on July 18, 2009, together with all accrued
and unpaid interest thereon, shall be due and payable on such date.
(b) Series D Notes Prepayments. There are no required prepayments of
principal in respect of the Series D Notes. The entire principal amount of
the Series D Notes outstanding on July 18, 2012, together with all accrued
and unpaid interest thereon, shall be due and payable on such date.
8.3. Optional Prepayments with Make-Whole Amount.
The Company may, at its option, upon notice as provided below, prepay at
any time all, or from time to time any part of, the Notes (but if in part, in an
amount not less than $10,000,000 or such lesser amount as shall then be
outstanding), at 100% of the principal amount so prepaid, together with accrued
unpaid interest on such amount, plus the Make-Whole Amount determined for the
prepayment date with respect to such principal amount. The Company will give
each holder of Notes written notice of each optional prepayment under this
Section 8.3 not less than 30 days and not more than 60 days prior to the date
fixed for such prepayment. Each such notice shall specify such prepayment date
(which shall be a Business Day), the aggregate principal amount of the Notes to
be prepaid on such date, the principal amount of each Note held by such holder
to be prepaid (determined in accordance with Section 8.4), and the interest to
be paid on the prepayment date with respect to such principal amount being
prepaid, and shall be accompanied by an Officer's Certificate signed by a Senior
Financial Officer as to the estimated Make-Whole Amount due in connection with
such prepayment (calculated as if the date of such notice were the date of the
prepayment), setting forth the details of such computation. Two Business Days
prior to such prepayment, the Company shall deliver to each holder of Notes an
Officer's Certificate signed by a Senior Financial Officer specifying the
calculation of such Make-Whole Amount as of the specified prepayment date.
8.4. Allocation of Partial Prepayments.
In the case of each partial prepayment of the Notes, the principal amount
of the Notes to be prepaid shall be allocated among all of the Notes (without
regard to Series) at the time outstanding in proportion, as nearly as
practicable, to the respective unpaid principal amounts thereof not theretofore
called for prepayment.
18
8.5. Maturity; Surrender, etc.
In the case of each prepayment of Notes pursuant to this Section 8, the
principal amount of each Note to be prepaid shall mature and become due and
payable on the date fixed for such prepayment, together with interest on such
principal amount accrued to such date and the applicable Make-Whole Amount, if
any. From and after such date, unless the Company shall fail to pay such
principal amount when so due and payable, together with the interest and
Make-Whole Amount, if any, as aforesaid, interest on such principal amount shall
cease to accrue. Any Note paid or prepaid in full shall be surrendered to the
Company and cancelled and shall not be reissued, and no Note shall be issued in
lieu of any prepaid principal amount of any Note.
8.6. No Other Optional Prepayments or Purchase of Notes.
The Company will not, and will not permit any Affiliate to, prepay (whether
directly or indirectly by purchase, redemption or other acquisition) any of the
outstanding Notes except upon the payment or prepayment of the Notes in
accordance with the terms of this Section 8. The Company will promptly cancel
all Notes acquired by it or any Affiliate pursuant to any payment, prepayment or
purchase of Notes pursuant to any provision of this Section 8 and no Notes may
be issued in substitution or exchange for any such Notes.
8.7. Make-Whole Amount.
The term "Make-Whole Amount" means, with respect to any Note, an amount
equal to the excess, if any, of the Discounted Value of the Remaining Scheduled
Payments with respect to the Called Principal of such Note over the amount of
such Called Principal, provided that the Make-Whole Amount may in no event be
less than zero. For the purposes of determining the Make-Whole Amount, the
following terms have the following meanings:
"Called Principal" means, with respect to any Note, the principal of such
Note that is to be prepaid pursuant to Section 8.3 or has become or is declared
to be immediately due and payable pursuant to Section 12.1, as the context
requires.
"Discounted Value" means, with respect to the Called Principal of any Note,
the amount obtained by discounting all Remaining Scheduled Payments with respect
to such Called Principal from their respective scheduled due dates to the
Settlement Date with respect to such Called Principal, in accordance with
accepted financial practice and at a discount factor (applied on the same
periodic basis as that on which interest on the Notes is payable) equal to the
Reinvestment Yield with respect to such Called Principal.
"Reinvestment Yield" means, with respect to the Called Principal of any
Note, the sum of 0.50% per annum plus the yield to maturity implied by (a) the
yields reported, as of 10:00 A.M. (New York City time) on the second Business
Day preceding the Settlement Date with respect to such Called Principal, on the
display designated as Page "PX1" on the Bloomberg Financial Market Service (or
such other display as may replace Page "PX1" on the Bloomberg Financial Market
Service) for actively traded U.S. Treasury securities having a maturity equal to
the Remaining Average Life of such Called Principal as of such Settlement Date,
or (b) if such yields are not reported as of such time or the yields reported as
of such time are not ascertainable (including by way of interpolation), the
Treasury Constant Maturity Series Yields reported, for
19
the latest day for which such yields have been so reported as of the second
Business Day preceding the Settlement Date with respect to such Called
Principal, in Federal Reserve Statistical Release H.15 (519) (or any comparable
successor publication) for actively traded U.S. Treasury securities having a
constant maturity equal to the Remaining Average Life of such Called Principal
as of such Settlement Date. Such implied yield will be determined, if necessary,
by (i) converting U.S. Treasury bill quotations to bond-equivalent yields in
accordance with accepted financial practice and (ii) interpolating linearly
between (A) the actively traded U.S. Treasury security with the maturity closest
to and greater than the Remaining Average Life and (B) the actively traded U.S.
Treasury security with the maturity closest to and less than the Remaining
Average Life.
"Remaining Average Life" means, with respect to any Called Principal, the
number of years (calculated to the nearest one-twelfth year) obtained by
dividing (a) such Called Principal into (b) the sum of the products obtained by
multiplying (i) the principal component of each Remaining Scheduled Payment with
respect to such Called Principal by (ii) the number of years (calculated to the
nearest one-twelfth year) that will elapse between the Settlement Date with
respect to such Called Principal and the scheduled due date of such Remaining
Scheduled Payment.
"Remaining Scheduled Payments" means, with respect to the Called Principal
of any Note, all payments of such Called Principal and interest thereon that
would be due after the Settlement Date with respect to such Called Principal if
no payment of such Called Principal were made prior to its scheduled due date,
provided that if such Settlement Date is not a date on which interest payments
are due to be made under the terms of such Note, then the amount of the next
succeeding scheduled interest payment will be reduced by the amount of interest
accrued to such Settlement Date and required to be paid on such Settlement Date
pursuant to Section 8.3 or 12.1.
"Settlement Date" means, with respect to the Called Principal of any Note,
the date on which such Called Principal is to be prepaid pursuant to Section 8.3
or has become or is declared to be immediately due and payable pursuant to
Section 12.1, as the context requires.
9. AFFIRMATIVE COVENANTS.
The Company covenants that so long as any of the Notes are outstanding:
9.1. Compliance with Law.
The Company will and will cause each of its Subsidiaries to comply with all
laws, ordinances or governmental rules or regulations to which each of them is
subject, including, without limitation, Environmental Laws, the Anti-Terrorism
Order and Public Law 107-56 (USA Patriot Act), and will obtain and maintain in
effect all licenses, certificates, permits, franchises and other governmental
authorizations necessary to the ownership of their respective properties or to
the conduct of their respective businesses, in each case to the extent necessary
to ensure that non-compliance with such laws, ordinances or governmental rules
or regulations or failures to obtain or maintain in effect such licenses,
certificates, permits, franchises and other
20
governmental authorizations could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
9.2. Insurance.
The Company will and will cause each of its Subsidiaries to maintain, with
financially sound and reputable insurers, insurance with respect to their
respective properties and businesses against such casualties and contingencies,
of such types, on such terms and in such amounts (including deductibles,
co-insurance and self-insurance, if adequate reserves are maintained with
respect thereto) as is customary in the case of entities of established
reputations engaged in the same or a similar business and similarly situated.
9.3. Maintenance of Properties.
The Company will and will cause each of its Subsidiaries to maintain and
keep, or cause to be maintained and kept, their respective properties in good
repair, working order and condition (other than ordinary wear and tear), so that
the business carried on in connection therewith may be properly conducted at all
times, provided that this Section shall not prevent the Company or any
Subsidiary from discontinuing the operation and the maintenance of any of its
properties if the Company has concluded that such discontinuance is desirable in
the conduct of its business and that such discontinuance could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
9.4. Payment of Taxes and Claims.
The Company will and will cause each of its Subsidiaries to file all tax
returns required to be filed in any jurisdiction and to pay and discharge all
taxes shown to be due and payable on such returns and all other taxes,
assessments, governmental charges, or levies imposed on them or any of their
properties, assets, income or franchises, to the extent such taxes, assessments,
charges or levies have become due and payable and before they have become
delinquent and all claims for which sums have become due and payable that have
or might become a Lien on properties or assets of the Company or any Subsidiary,
provided that neither the Company nor any Subsidiary need pay any such tax or
assessment or claims if (a) the amount, applicability or validity thereof is
contested by the Company or such Subsidiary on a timely basis in good faith and
in appropriate proceedings, and the Company or a Subsidiary has established
adequate reserves therefor in accordance with GAAP on the books of the Company
or such Subsidiary or (b) the nonpayment of all such taxes, assessments, charges
and levies in the aggregate could not reasonably be expected to have a Material
Adverse Effect.
9.5. Corporate Existence, etc.
Subject to Section 10.5(c), the Company will at all times preserve and keep
in full force and effect its corporate existence. Subject to Sections 10.5 and
10.6, the Company will at all times preserve and keep in full force and effect
the corporate existence of each of its Subsidiaries (unless merged into the
Company or a Subsidiary) and all rights and franchises of the Company and its
Subsidiaries unless, in the good faith judgment of the Company, the termination
of or failure to preserve and keep in full force and effect such corporate
existence, right or franchise could not, individually or in the aggregate, have
a Material Adverse Effect.
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9.6. Subsequent Guarantors.
The Company covenants that if at any time after the date of this Agreement
any Subsidiary, which is not already a Guarantor at such time, shall enter into
a Guaranty of all or any part of the Indebtedness of the Company or its
Subsidiaries under, or in respect of, the Credit Agreement, the Company will
cause each such Subsidiary, contemporaneously with entering into any such
Guaranty (and in any event no later than 30 days thereafter), to execute and
deliver to the holders of the Notes (a) a Guaranty of the Company's obligations
under the Notes and this Agreement, in substantially the form of the Guaranty
Agreement attached as Exhibit 4.7 to this Agreement to the extent permitted
under local law, and (b) to the extent an opinion of counsel is delivered with
respect to such Guaranty of such Indebtedness under, or in respect of, the
Credit Agreement, an opinion of counsel for such Subsidiary with respect to such
Guaranty in substantially the form of the opinion of counsel so delivered under,
or in respect of, the Credit Agreement.
10. NEGATIVE COVENANTS.
The Company covenants that so long as any of the Notes are outstanding:
10.1. Transactions with Affiliates.
The Company will not, and will not permit any Subsidiary to, enter into
directly or indirectly any transaction or group of related transactions
(including, without limitation, the purchase, lease, sale or exchange of
properties of any kind or the rendering of any service) with any Affiliate
(other than the Company or another Subsidiary), except pursuant to the
reasonable requirements of the Company's or such Subsidiary's business and upon
fair and reasonable terms no less favorable to the Company or such Subsidiary
than would be obtainable in a comparable arm's-length transaction with a Person
not an Affiliate.
10.2. Line of Business.
The Company will not, and will not permit any of its Subsidiaries to,
engage in any business if, as a result, the general nature of the business in
which the Company and its Subsidiaries, taken as a whole, would then be engaged
would be substantially changed from the general nature of the business in which
the Company and its Subsidiaries, taken as a whole, are engaged on the date of
this Agreement as described in the Memorandum, except for vertical, horizontal
or geographical expansion of any such business so engaged in, whether under the
Tiffany & Co. name or any other name. Any such expansion may include, but shall
not be limited to, additional manufacturing of jewelry products, trading in and
processing of diamonds and the acquisition/operation of additional retail
operations under other tradenames.
10.3. Limitation on Debt.
(a) Incurrence of Debt. The Company will not, and will not permit any
Subsidiary to, directly or indirectly, create, incur, assume, guarantee, or
otherwise become directly or indirectly liable with respect to, any Debt,
unless on the date the Company or such Subsidiary becomes liable with
respect to any such Debt and immediately after giving effect thereto and
the concurrent retirement of any other Debt,
22
(i) no Default or Event of Default would exist,
(ii) Consolidated Total Debt would not exceed 60% of Consolidated
Total Capitalization, and
(iii) the ratio of (A) the sum of Consolidated Pro Forma
Operating Cash Flow for the period of four (4) consecutive fiscal
quarters of the Company most recently ended at such time to (B) the
sum of Consolidated Pro Forma Interest Expense at such time plus
Consolidated Adjusted Lease Expense for such period, would not be less
than 2.0 to 1.0.
(b) Incurrence of Priority Debt. The Company will not, and will not
permit any Subsidiary to, directly or indirectly, create, incur, assume,
guarantee, or otherwise become directly or indirectly liable with respect
to, any Priority Debt, unless on the date the Company or such Subsidiary
becomes liable with respect to any such Priority Debt and immediately after
giving effect thereto and the concurrent retirement of any other Priority
Debt,
(i) no Default or Event of Default would exist; and
(ii) Priority Debt would not exceed 20% of Consolidated Net
Worth.
(c) Deemed Incurrence. For the purposes of this Section 10.3, any
Person becoming a Subsidiary after the date hereof shall be deemed, at the
time it becomes a Subsidiary, to have incurred all of its then outstanding
Debt, and any Person extending, renewing or refunding any Debt shall be
deemed to have incurred such Debt at the time of such extension, renewal or
refunding.
10.4. Liens.
The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly create, assume, incur or suffer to be created, assumed or
incurred or to exist, any Lien on or with respect to any property or asset
(including, without limitation, any document or instrument in respect of goods
or accounts receivable) of the Company or any such Subsidiary, whether now owned
or held or hereafter acquired, or any income or profits therefrom, or assign or
otherwise convey any right to receive income or profits (unless it makes, or
causes to be made, effective provision whereby the Notes will be equally and
ratably secured with any and all other obligations thereby secured, pursuant to
an agreement or agreements reasonably satisfactory to the Required Holders and,
in any such case, the Notes shall have the benefit, to the fullest extent that,
and with such priority as, the holders of the Notes may be entitled under
applicable law, of an equitable Lien on such property), except:
(a) Taxes, etc. -- Liens for taxes, assessments or other governmental
charges that are not yet due and payable or the payment of which is not at
the time required by Section 9.4;
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(b) Legal Proceedings -- Liens
(i) arising from judicial attachments and judgments,
(ii) securing appeal bonds, supersedeas bonds, and
(iii) arising in connection with court proceedings (including,
without limitation, surety bonds and letters of credit or any other
instrument serving a similar purpose),
provided that the execution or other enforcement of such Liens is
effectively stayed and the claims secured thereby are being actively
contested in good faith and by appropriate proceedings, and in respect of
which adequate reserves shall have been established on the books of the
Company and its Subsidiaries in accordance with GAAP;
(c) Ordinary Course Liens -- Liens incidental to the normal conduct of
the business of the Company or any Subsidiary or the ownership of their
properties or assets which are not incurred in connection with the
incurrence of Debt and which do not in the aggregate materially impair the
use of such properties in the operation of the business of the Company and
its Subsidiaries taken as a whole or materially impair the value of such
properties for the purpose of such business, including, without limitation,
Liens
(i) in connection with workers' compensation, unemployment
insurance, social security and other like laws,
(ii) to secure (or to obtain letters of credit that secure) the
performance of tenders, statutory obligations, surety and performance
bonds (of a type other than set forth in Section 10.4(b)), bids,
leases (other than Capital Leases), purchase, construction or sales
contracts and other similar obligations, in each case not incurred or
made in connection with the borrowing of money, the obtaining of
advances or credit or the payment of the deferred purchase price of
property,
(iii) to secure the claims or demands of materialmen, mechanics,
carriers, warehousemen, vendors, repairmen, landlords, lessors and
other like Persons, arising in the ordinary course of business, and
(iv) in the nature of reservations, exceptions, encroachments,
easements, rights-of-way, covenants, conditions, restrictions, leases
and other similar title exceptions or encumbrances affecting real
property,
provided that any amounts secured by such Liens are not overdue;
(d) (i) Existing Liens -- Liens in existence as of the date of the
Closing securing Debt and listed in Schedule 5.15, and
(ii) Renewals -- Liens securing renewals, extensions (as to time)
and refinancings of Debt secured by the Liens listed in Schedule 5.15,
provided that
24
(A) the amount of Debt secured by each such Lien is not increased in
excess of the amount of Debt outstanding on the date of such renewal,
extension or refinancing, (B) none of such Liens is extended to
include any additional property of the Company or any Subsidiary, and
(C) immediately after giving effect thereto, no Default or Event of
Default would exist;
(e) Intra-Group Liens -- Liens on property of the Company or any of
its Subsidiaries securing Debt owing to the Company or to any of its
Subsidiaries;
(f) Purchase Money Liens -- Liens on fixed assets (or any improvement
thereon) or in rights relating thereto, in each case, acquired or
constructed by the Company or any Subsidiary after the date of the Closing
to secure Debt of the Company or such Subsidiary incurred in connection
with such acquisition or construction, provided that
(i) no such Lien shall extend to or cover any property other than
the property (or improvement thereon) being acquired or constructed,
(ii) the amount of Debt secured by any such Lien shall not exceed
an amount equal to the lesser of (A) the cost to the Company or such
Subsidiary of the property (or improvement thereon) being acquired or
constructed or (B) the Fair Market Value (as determined in good faith
by the Company) of such property, determined at the time of such
acquisition or at the time of substantial completion of such
construction, and
(iii) such Lien shall be created concurrently with or within 120
days after such acquisition or the substantial completion of such
construction;
(g) Acquisition Liens -- Liens existing on property of a Person
immediately prior to its being consolidated with or merged into the Company
or a Subsidiary or its becoming a Subsidiary, or any Lien existing on any
property acquired by the Company or any Subsidiary at the time such
property is so acquired (whether or not the Debt secured thereby shall have
been assumed), provided that
(i) no such Lien shall have been created or assumed in
contemplation of such consolidation or merger or such Person's
becoming a Subsidiary or such acquisition of property,
(ii) each such Lien shall extend solely to the item or items of
property so acquired and, if required by the terms of the instrument
originally creating such Lien, other property which is an improvement
to or is acquired for specific use in connection with such acquired
property, and
25
(iii) the principal amount of the Debt secured by any such Lien
shall at no time exceed an amount equal to the Fair Market Value (as
determined in good faith by the board of directors of the Company or
such Subsidiary) of such property (or improvement thereon) at the time
of such transaction;
(h) Consignment Liens -- Liens incurred in the ordinary course of
business not securing Debt in favor of Persons supplying the Company or any
Subsidiary with precious metals, precious gems or jewelry on a consignment
basis, provided that such Liens cover only the following property of the
Company or such Subsidiary which shall have been supplied by such Persons:
(i) gold and silver bullion, gold and silver granule and other
gold, silver, platinum or precious metals and precious gems or jewelry
in whatever form including all substitutions, replacements and
products in which any gold, silver, platinum or precious metals and
precious gems or jewelry are incorporated or into which gold, silver,
platinum or precious metals and precious gems or jewelry are processed
or converted, whether now or hereafter owned or acquired by the
Company or such Subsidiary or in which the Company or such Subsidiary
now or hereafter acquires an interest, and all proceeds and products
of and accessions to the foregoing, and
(ii) all inventory now or hereafter owned by the Company or such
Subsidiary or in which the Company or such Subsidiary now or hereafter
acquires an interest, including all merchandise, returned and
repossessed goods, raw materials, goods in process, finished goods and
proceeds therefor, and all accounts of the Company or such Subsidiary
including all accounts receivable, notes, drafts, acceptances and
other forms of obligations and receivables now owned or hereafter
arising from such inventory sold or otherwise disposed of by the
Company or such Subsidiary and proceeds thereof and all contract
rights and proceeds of the foregoing; and
(i) Other Liens -- Liens securing Debt of the Company or any
Subsidiary and not otherwise permitted by clauses (a) through (h),
inclusive, of this Section 10.4, but only to the extent that the Debt
secured by each such Lien is, at the time of the incurrence of such Debt,
permitted to be incurred under Section 10.3(b).
10.5. Merger, Consolidation, etc.
The Company will not, and will not permit any Subsidiary to, directly or
indirectly, consolidate with, or merge into, any other Person or permit any
other Person to consolidate with, or merge into, it, or convey, transfer or
lease substantially all of its assets in a single transaction or series of
transactions to any Person, except that
(a) any Subsidiary (other than a Guarantor) may consolidate with, or
merge into, the Company or another Subsidiary if, immediately after, and
after giving effect to, such transaction, no Default or Event of Default
shall exist;
26
(b) any Subsidiary (other than a Guarantor) may consolidate with, or
merge into, any other Person, or allow any other Person to consolidate
with, or merge into, it, if
(i) in the case of any consolidation or merger in which the
successor or surviving corporation is a Subsidiary, immediately after,
and after giving effect to, such transaction,
(A) no Default or Event of Default would exist, and
(B) the successor or surviving corporation would be
permitted to incur at least $1.00 of additional Debt by the
provisions of Section 10.3(a) and at least $1.00 of additional
Priority Debt by the provisions of Section 10.3(b) (in each case,
other than Debt owing to the Company or a Subsidiary), and
(ii) in the case of any consolidation or merger in which the
successor or surviving corporation is not a Subsidiary, such
transaction would be permitted under the provisions of Section
10.6(a)(iii) (deeming such consolidation or merger to be a Transfer of
all of the assets and liabilities of such Subsidiary) and immediately
after, and after giving effect to, such transaction, no Default or
Event of Default would exist; and
(c) the Company or any Guarantor may consolidate with, or merge into,
any other Person, or permit any other Person to consolidate with, or merge
into, it, if
(i) the successor or surviving corporation (the "Successor
Corporation") shall be a solvent corporation organized under the laws
of any state of the United States of America,
(ii) the Successor Corporation, if not the Company or such
Guarantor, shall have executed and delivered to each holder of any
Notes its assumption of the due and punctual performance and
observance of the obligations of the Company under this Agreement, the
Other Agreements and the Notes, or of such Guarantor under the
Guaranty Agreement, as the case may be, including, without limitation,
all covenants herein and therein contained, and the Company shall
cause to be delivered to each holder of a Note an opinion of outside
counsel (such counsel to be reasonably satisfactory to the Required
Holders) confirming the enforceability of such assumption, and
(iii) immediately after, and after giving effect to, such
transaction,
(A) no Default or Event of Default would exist, and
(B) the Successor Corporation would be permitted to incur at
least $1.00 of additional Debt by the provisions of Section
10.3(a) and at least $1.00 of additional Priority Debt by the
provisions of Section 10.3(b) (in each case, other than Debt
owing to the Company or a Subsidiary).
27
10.6. Sale of Assets.
(a) Sale of Assets. The Company will not, and will not permit any of
its Subsidiaries to, make any Transfer, provided that the foregoing
restriction does not apply to a Transfer if:
(i) the property that is the subject of such Transfer constitutes
either (A) inventory held for sale, or (B) equipment, fixtures,
supplies or materials no longer required, in the opinion of the
Company or such Subsidiary, in the operation of the business of the
Company or such Subsidiary or that is obsolete, and, in the case of
any Transfer described in clause (A) or clause (B), such Transfer is
in the ordinary course of business (an "Ordinary Course Transfer"); or
(ii) either
(A) such Transfer is from a Subsidiary to the Company or a
Wholly-Owned Subsidiary;
(B) such Transfer is from the Company to a Wholly-Owned
Subsidiary; or
(C) such Transfer is from a Wholly-Owned Subsidiary to the
Company or any other Wholly-Owned Subsidiary;
so long as immediately before and immediately after the consummation
of such transaction, and after giving effect thereto,
(I) no Default or Event of Default exists or would
exist, and
(II) the Company would be permitted to incur at least
$1.00 of additional Debt by the provisions of Section
10.3(a) and at least $1.00 of additional Priority Debt by
the provisions of Section 10.3(b) (in each case other than
Debt owing to the Company or a Subsidiary)
(each such Transfer, collectively with any Ordinary Course Transfers,
"Excluded Transfers"); or
(iii) such Transfer is not an Excluded Transfer and does not
involve a Substantial Portion of the property of the Company and its
Subsidiaries, so long as immediately before and immediately after the
consummation of such transaction, and after giving effect thereto, no
Default or Event of Default exists or would exist.
28
(b) Debt Prepayment Applications and Reinvested Transfers.
(i) Notwithstanding the provisions of Section 10.6(a), the
determination of whether a Transfer involves a Substantial Portion of
the property of the Company and its Subsidiaries, as provided in
Section 10.6(a)(iii) and Section 10.6(c)(iii), shall be made without
taking into account the same proportion of the book value attributable
to the property subject to such Transfer as shall be equal to the
proportion (the "Designated Portion ") of the Net Asset Sale Proceeds
Amount with respect to such Transfer to be applied to either a Debt
Prepayment Application with respect to such Transfer or the
acquisition of assets of at least equivalent value that are similar to
the assets which were the subject of such Transfer (a "Reinvested
Transfer") within 365 days of the consummation of such Transfer, as
specified in an Officer's Certificate delivered to each holder of
Notes prior to, or contemporaneously with, the consummation of such
Transfer.
(ii) If, notwithstanding the certificate referred to in the
foregoing clause (i), the Company shall fail to apply the entire
amount of the Designated Portion as specified in such certificate
within the period stated in Section 10.6(b)(i), the computation of
whether such Transfer involved a Substantial Portion of the property
of the Company and its Subsidiaries shall be recomputed, as of the
date of such Transfer, by taking into account the same proportion of
the book value attributable to the property subject to such Transfer
as shall be equal to the proportion of the Net Asset Sale Proceeds
Amount actually applied to either a Debt Prepayment Application or a
Reinvested Transfer within such period. If, upon the recomputation
provided for in the preceding sentence, such Transfer involved a
Substantial Portion of the property of the Company and the Restricted
Subsidiaries, an Event of Default shall be deemed to have existed as
of the expiration of such period.
(c) Certain Definitions. The following terms have the following
meanings:
(i) "Debt Prepayment Application" means, with respect to any
Transfer of property by the Company or any Subsidiary, the application
by the Company or such Subsidiary of cash in an amount equal to the
Net Asset Sale Proceeds Amount with respect to such Transfer to pay
Senior Debt of the Company or such Subsidiary (other than Senior Debt
owing to any of the Subsidiaries or any Affiliate and Senior Debt in
respect of any revolving credit or similar facility providing the
Company or such Subsidiary with the right to obtain loans or other
extensions of credit from time to time, except to the extent that in
connection with such payment of Senior Debt the availability of credit
under such credit facility is permanently reduced by an amount not
less than the amount of such proceeds applied to the payment of such
Senior Debt), provided that in the course of making such application
the Company shall offer to prepay each outstanding Note in accordance
with Section 8.3 in a principal amount that equals the Ratable Portion
for such Note. A holder of Notes may accept or reject such offer to
prepay by causing a notice of such acceptance or rejection to be
delivered
29
to the Company at least two Business Days prior to the prepayment date
specified by the Company in such offer. If a holder of Notes has not
responded to such offer by a date which is at least two Business Days
prior to such specified prepayment date, such holder shall be deemed
to have accepted such offer of prepayment. If any holder of a Note
rejects such offer of prepayment, then, for purposes of the preceding
sentence only, the Company nevertheless will be deemed to have paid
Senior Debt in an amount equal to the Ratable Portion for such Note.
As used in this definition,
"Ratable Portion" means, for any Note, an amount equal to the
product of
(a) the Net Asset Sale Proceeds Amount being so offered to
be applied to the payment of Senior Debt, multiplied by
(b) a fraction the numerator of which is the outstanding
principal amount of such Note and the denominator of which is the
aggregate outstanding principal amount of Senior Debt of the
Company and its Subsidiaries, after eliminating all offsetting
debits and credits between the Company and its Subsidiaries and
all other items required to be eliminated in the course of the
preparation of consolidated financial statements of the Company
and its Subsidiaries in accordance with GAAP.
(ii) "Disposition Value" means, at any time, with respect to any
Transfer of property,
(A) in the case of property that does not constitute Capital
Stock of a Subsidiary, the book value thereof, valued at the
amount taken into account (or which would be taken into account)
in the consolidated balance sheet of the Company then most
recently required to have been delivered to the holders pursuant
to Section 7.1, and
(B) in the case of property that constitutes Capital Stock
of a Subsidiary, an amount equal to that percentage of the book
value of the assets of the Subsidiary that issued such Capital
Stock as is equal to the percentage that the book value of such
Capital Stock represents of the book value of all of the
outstanding Capital Stock of such Subsidiary (assuming, in making
such calculations, that all securities convertible into such
Capital Stock are so converted and giving full effect to all
transactions that would occur or be required in connection with
such conversion), determined as of the date of the balance sheet
referred to in the foregoing clause (A).
30
(iii) "Substantial Portion" means, at any time, any property
subject to a Transfer if
(A) the Disposition Value of such property, when added to
the Disposition Value of all other property of the Company and
its Subsidiaries that shall have been the subject of a Transfer
(other than an Excluded Transfer and subject, with respect to
both such property and all such other property, to the provisions
of Section 10.6(b)) during the then current fiscal year of the
Company, exceeds an amount equal to 15% of Consolidated Total
Assets as reflected (or as would be reflected) in the
consolidated balance sheet of the Company then most recently
required to have been delivered to the holders pursuant to
Section 7.1, or
(B) the Disposition Value of such property, when added to
the Disposition Value of all other property of the Company and
its Subsidiaries that shall have been the subject of a Transfer
(other than an Excluded Transfer and subject, with respect to
both such property and all such other property, to the provisions
of Section 10.6(b)) during the period beginning on the date of
the Closing and ending on and including the date of the
consummation of such Transfer, exceeds an amount equal to 30% of
Consolidated Total Assets as reflected (or as would be reflected)
in the consolidated balance sheet of the Company then most
recently required to have been delivered to the holders pursuant
to Section 7.1.
(iv) "Transfer" means, with respect to any Person, any
transaction in which such Person sells, conveys, transfers or leases
(as lessor) any of its property, including, without limitation,
Capital Stock of any other Person, but does not include any such
transaction subject to the provisions of Section 10.5 (other than
Section 10.5(b)(ii)).
11. EVENTS OF DEFAULT.
An "Event of Default" shall exist if any of the following conditions or
events shall occur and be continuing:
(a) the Company defaults in the payment of any principal or
Make-Whole Amount, if any, on any Note when the same becomes due and
payable, whether at maturity or at a date fixed for prepayment or by
declaration or otherwise; or
(b) the Company defaults in the payment of any interest on any
Note for more than five Business Days after the same becomes due and
payable; or
(c) the Company defaults in the performance of or compliance with
any term contained in any of Sections 10.3 through Section 10.6,
inclusive, or Section 7.1(d); or
31
(d) the Company defaults in the performance of or compliance with
any term contained herein (other than those referred to in paragraphs
(a), (b) and (c) of this Section 11) and such default is not remedied
within 30 days after the earlier of (i) a Responsible Officer
obtaining actual knowledge of such default and (ii) the Company
receiving written notice of such default from any holder of a Note; or
(e) any representation or warranty made in writing by or on
behalf of the Company or any Guarantor or by any officer of the
Company or any Guarantor in this Agreement or the Guaranty Agreement
or in any writing furnished in connection with the transactions
contemplated hereby proves to have been false or incorrect in any
material respect on the date as of which made; or
(f) (i) the Company or any Subsidiary is in default (as principal
or as guarantor or other surety) in the payment of any principal of or
premium or make-whole amount or interest on any Indebtedness (other
than Indebtedness under this Agreement and the Notes) beyond any
period of grace provided with respect thereto, that individually or
together with such other Indebtedness as to which any such default
exists has an aggregate outstanding principal amount of at least
$20,000,000, or
(ii) the Company or any Subsidiary is in default in the
performance of or compliance with any term of any evidence of any
Indebtedness (other than Indebtedness under this Agreement and
the Notes), that individually or together with such other
Indebtedness as to which any such default exists has an aggregate
outstanding principal amount of at least $25,000,000, or of any
mortgage, indenture or other agreement relating thereto or any
other condition exists, and as a consequence of such default or
condition such Indebtedness has become, or has been declared (or
one or more Persons are entitled to declare such Indebtedness to
be), due and payable before its stated maturity or before its
regularly scheduled dates of payment, or
(iii) as a consequence of the occurrence or continuation of
any event or condition (other than the passage of time or the
right of the holder of Indebtedness to convert such Indebtedness
into equity interests), (x) the Company or any Subsidiary has
become obligated to purchase or repay Indebtedness before its
regular maturity or before its regularly scheduled dates of
payment in an aggregate outstanding principal amount of at least
$20,000,000, or (y) one or more Persons have the right to require
the Company or any Subsidiary so to purchase or repay such
Indebtedness; or
(g) the Company or any Guarantor (i) is generally not paying, or
admits in writing its inability to pay, its debts as they become due,
(ii) files, or consents by answer or otherwise to the filing against
it of, a petition for relief or reorganization or arrangement or any
other petition in bankruptcy, for liquidation or to take advantage of
any bankruptcy, insolvency, reorganization, moratorium or other
similar law of any jurisdiction, (iii) makes an assignment for the
benefit of its creditors, (iv) consents to the appointment of a
custodian, receiver, trustee or other officer with similar powers with
32
respect to it or with respect to any substantial part of its property,
(v) is adjudicated as insolvent or to be liquidated, or (vi) takes
corporate action for the purpose of any of the foregoing; or
(h) a court or governmental authority of competent jurisdiction
enters an order appointing, without consent by the Company or any
Guarantor, a custodian, receiver, trustee or other officer with
similar powers with respect to the Company or any Guarantor or with
respect to any substantial part of the property of the Company or any
Guarantor, or constituting an order for relief or approving a petition
for relief or reorganization or any other petition in bankruptcy or
for liquidation or to take advantage of any bankruptcy or insolvency
law of any jurisdiction, or ordering the dissolution, winding-up or
liquidation of the Company or any Guarantor, or any such petition
shall be filed against the Company or any Guarantor and such petition
shall not be dismissed within 60 days; or
(i) a final judgment or judgments for the payment of money
aggregating in excess of $25,000,000 (excluding any judgment or
judgments to the extent the Company or any applicable Subsidiary is
fully insured and with respect to which the insurer has assumed
responsibility in writing) are rendered against one or more of the
Company and its Subsidiaries and which judgments are not, within 45
days after entry thereof, bonded, discharged or stayed pending appeal,
or are not discharged within 45 days after the expiration of such
stay; or
(j) (i) the Guaranty Agreement shall cease to be in full force
and effect or shall be declared by a court or governmental authority
of competent jurisdiction to be void, voidable or unenforceable
against any Guarantor, or
(ii) the validity or enforceability of the Guaranty
Agreement against any Guarantor shall be contested by such
Guarantor or the Company, or
(iii) any Guarantor or the Company shall deny that such
Guarantor has any further liability or obligation under the
Guaranty Agreement; or
(k) if
(i) any Plan shall fail to satisfy the minimum funding
standards of ERISA or the Code for any plan year or part thereof
or a waiver of such standards or extension of any amortization
period is sought or granted under section 412 of the Code,
(ii) a notice of intent to terminate any Plan shall have
been or is reasonably expected to be filed with the PBGC or the
PBGC shall have instituted proceedings under ERISA section 4042
to terminate or appoint a trustee to administer any Plan or the
PBGC shall have notified the Company or any ERISA Affiliate that
a Plan may become a subject of any such proceedings,
33
(iii) the aggregate "amount of unfunded benefit liabilities"
(within the meaning of section 4001(a)(18) of ERISA) under all
Plans, determined in accordance with Title IV of ERISA, shall
exceed $10,000,000,
(iv) the Company or any ERISA Affiliate shall have incurred
or is reasonably expected to incur any liability pursuant to
Title I or IV of ERISA or the penalty or excise tax provisions of
the Code relating to employee benefit plans,
(v) the Company or any ERISA Affiliate withdraws from any
Multiemployer Plan, or
(vi) the Company or any Subsidiary establishes or amends any
employee welfare benefit plan that provides post-employment
welfare benefits in a manner that would increase the liability of
the Company or any Subsidiary thereunder;
and any such event or events described in clauses (i) through (vi) above,
either individually or together with any other such event or events, could
reasonably be expected to have a Material Adverse Effect.
As used in Section 11(k), the terms "employee benefit plan" and "employee
welfare benefit plan" shall have the respective meanings assigned to such
terms in section 3 of ERISA.
12. REMEDIES ON DEFAULT, ETC.
12.1. Acceleration.
(a) If an Event of Default with respect to the Company described
in paragraph (g) or paragraph (h) of Section 11 (other than an Event
of Default described in clause (i) of paragraph (g) or described in
clause (vi) of paragraph (g) by virtue of the fact that such clause
encompasses clause (i) of paragraph (g)) has occurred, all the Notes
then outstanding shall automatically become immediately due and
payable.
(b) If any other Event of Default has occurred and is continuing,
any holder or holders of more than 50% in principal amount of the
Notes at the time outstanding may at any time at its or their option,
by notice or notices to the Company, declare all the Notes then
outstanding to be immediately due and payable.
(c) If any Event of Default described in paragraph (a) or (b) of
Section 11 has occurred and is continuing, any holder or holders of
Notes at the time outstanding affected by such Event of Default may at
any time, at its or their option, by notice or notices to the Company,
declare all the Notes held by it or them to be immediately due and
payable.
34
Upon any Notes becoming due and payable under this Section 12.1,
whether automatically or by declaration, such Notes will forthwith mature
and the entire unpaid principal amount of such Notes, plus (x) all accrued
and unpaid interest thereon and (y) the Make-Whole Amount determined in
respect of such principal amount (to the full extent permitted by
applicable law), shall all be immediately due and payable, in each and
every case without presentment, demand, protest or further notice, all of
which are hereby waived. The Company acknowledges, and the parties hereto
agree, that each holder of a Note has the right to maintain its investment
in the Notes free from repayment by the Company (except as herein
specifically provided for) and that the provision for payment of a
Make-Whole Amount by the Company in the event that the Notes are prepaid or
are accelerated as a result of an Event of Default, is intended to provide
compensation for the deprivation of such right under such circumstances.
12.2. Other Remedies.
If any Default or Event of Default has occurred and is continuing, and
irrespective of whether any Notes have become or have been declared
immediately due and payable under Section 12.1, the holder of any Note at
the time outstanding may proceed to protect and enforce the rights of such
holder by an action at law, suit in equity or other appropriate proceeding,
whether for the specific performance of any agreement contained in any
Financing Document, or for an injunction against a violation of any of the
terms thereof, or in aid of the exercise of any power granted thereby or by
law or otherwise.
12.3. Rescission.
At any time after any Notes have been declared due and payable
pursuant to clause (b) or clause (c) of Section 12.1, the holders of not
less than 66-2/3% in principal amount of the Notes then outstanding, by
written notice to the Company, may rescind and annul any such declaration
and its consequences if (a) the Company has paid all overdue interest on
the Notes, all principal of and Make-Whole Amount, if any, due and payable
on any Notes other than by reason of such declaration, and all interest on
such overdue principal and Make-Whole Amount, if any, and (to the extent
permitted by applicable law) any overdue interest in respect of the Notes,
at the Default Rate, (b) all Events of Default and Defaults, other than
non-payment of amounts that have become due solely by reason of such
declaration, have been cured or have been' waived pursuant to Section 17,
and (c) no judgment or decree has been entered for the payment of any
monies due pursuant hereto or to the Notes. No rescission and annulment
under this Section 12.3 will extend to or affect any subsequent Event of
Default or Default or impair any right consequent thereon.
12.4. No Waivers or Election of Remedies, Expenses, etc.
No course of dealing and no delay on the part of any holder of any
Note in exercising any right, power or remedy shall operate as a waiver
thereof or otherwise prejudice such holder's rights, powers or remedies. No
right, power or remedy conferred by any Financing Document upon any holder
of any Note shall be exclusive of any other right, power or remedy referred
to herein or therein or now or hereafter available at law, in equity, by
statute or otherwise. Without limiting the obligations of the Company under
Section 15, the Company will pay to the holder of
35
each Note on demand such further amount as shall be sufficient to cover all
costs and expenses of such holder incurred in any enforcement or collection
under this Section 12, including, without limitation, reasonable attorneys'
fees, expenses and disbursements.
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
13.1. Registration of Notes.
The Company shall keep at its principal executive office a register
for the registration and registration of transfers of Notes. The name and
address of each holder of one or more Notes, each transfer thereof and the
name and address of each transferee of one or more Notes shall be
registered in such register. Prior to due presentment for registration of
transfer, the Person in whose name any Note shall be registered shall be
deemed and treated as the owner and holder thereof for all purposes hereof,
and the Company shall not be affected by any notice or knowledge to the
contrary. The Company and you acknowledge and agree that the Notes are not
"negotiable instruments" within the meaning of ss.3-104 of the Uniform
Commercial Code as adopted in the State of New York. The Company shall give
to any holder of a Note that is an Institutional Investor promptly upon
request therefor, a complete and correct copy of the names and addresses of
all registered holders of Notes.
13.2. Transfer and Exchange of Notes.
Upon surrender of any Note at the principal executive office of the
Company for registration of transfer or exchange (and in the case of a
surrender for registration of transfer, duly endorsed or accompanied by a
written instrument of transfer duly executed by the registered holder of
such Note or his attorney duly authorized in writing and accompanied by the
address for notices of each transferee of such Note or part thereof), the
Company shall execute and deliver, at the Company's expense (except as
provided below), one or more new Notes (as requested by the holder thereof)
in exchange therefor, in an aggregate principal amount equal to the unpaid
principal amount of the surrendered Note. Each such new Note shall be
payable to such Person as such holder may request and shall be
substantially in the form of Exhibit lA or Exhibit 1B, as the case may be.
Each such new Note shall be dated and bear interest from the date to which
interest shall have been paid on the surrendered Note or dated the date of
the surrendered Note if no interest shall have been paid thereon. The
Company may require payment of a sum sufficient to cover any stamp tax or
governmental charge imposed in respect of any such transfer of Notes. Notes
shall not be transferred in denominations of less than $100,000, provided
that if necessary to enable the registration of transfer by a holder of its
entire holding of Notes, one Note may be in a denomination of less than
$100,000. Any transferee, by its acceptance of a Note registered in its
name (or the name of its nominee), shall be deemed to have made the
representation set forth in Section 6.2.
13.3. Replacement of Notes.
Upon receipt by the Company of evidence reasonably satisfactory to it
of the ownership of and the loss, theft, destruction or mutilation of any Note
(which evidence shall be, in the case of an Institutional Investor, notice from
such Institutional Investor of such ownership and such loss, theft, destruction
or mutilation), and
36
(a) in the case of loss, theft or destruction, of indemnity
reasonably satisfactory to it (provided that if the holder of such
Note is, or is a nominee for, an original purchaser or a Qualified
Institutional Buyer, such Person's own unsecured agreement of
indemnity shall be deemed to be satisfactory), or
(b) in the case of mutilation, upon surrender and cancellation
thereof,
the Company at its own expense shall execute and deliver, in lieu thereof, a new
Note, dated and bearing interest from the date to which interest shall have been
paid on such lost, stolen, destroyed or mutilated Note or dated the date of such
lost, stolen, destroyed or mutilated Note if no interest shall have been paid
thereon.
14. PAYMENTS ON NOTES.
14.1. Place of Payment.
Subject to Section 14.2, payments of principal, Make-Whole Amount, if any,
and interest becoming due and payable on the Notes shall be made in New York,
New York at the principal office of the Company in such jurisdiction. The
Company may at any time, by notice to each holder of a Note, change the place of
payment of the Notes so long as such place of payment shall be either the
principal office of the Company in such jurisdiction or the principal office of
a bank or trust company in such jurisdiction.
14.2. Home Office Payment.
So long as you or your nominee shall be the holder of any Note, and
notwithstanding anything contained in Section 14.1 or in such Note to the
contrary, the Company will pay all sums becoming due on such Note for principal,
Make-Whole Amount, if any, and interest by the method and at the address
specified for such purpose below your name in Schedule A, or by such other
method or at such other address as you shall have from time to time specified to
the Company in writing for such purpose, without the presentation or surrender
of such Note or the making of any notation thereon, except that upon payment or
prepayment in full of any Note, you shall promptly surrender such Note for
cancellation to the Company at its principal executive office or at the place of
payment most recently designated by the Company pursuant to Section 14.1. Prior
to any sale or other disposition of any Note held by you or your nominee you
will, at your election, either endorse thereon the amount of principal paid
thereon and the last date to which interest has been paid thereon or surrender
such Note to the Company in exchange for a new Note or Notes pursuant to Section
13.2. The Company will afford the benefits of this Section 14.2 to any Qualified
Institutional Buyer or Institutional Investor that is the direct or indirect
transferee of any Note purchased by you under this Agreement and that has made
the same agreement relating to such Note as you have made in this Section 14.2.
37
15.EXPENSES, ETC.
15.1. Transaction Expenses.
Whether or not the transactions contemplated hereby are consummated, the
Company will pay all costs and expenses (including reasonable attorneys' fees of
one special counsel for all Purchasers and holders of Notes and, if reasonably
required, one local counsel in each jurisdiction where such counsel is so
required) incurred by you and each Other Purchaser or holder of a Note in
connection with such transactions and in connection with any amendments, waivers
or consents under or in respect of the Financing Documents (whether or not such
amendment, waiver or consent becomes effective), including, without limitation:
(a) the costs and expenses incurred in enforcing or defending (or determining
whether or how to enforce or defend) any rights under the Financing Documents or
in responding to any subpoena or other legal process or informal investigative
demand issued in connection with the Financing Documents, or by reason of being
a holder of any Note, and (b) the costs and expenses, including financial
advisors' fees, incurred in connection with the insolvency or bankruptcy of the
Company or any Subsidiary or in connection with any work-out or restructuring of
the transactions contemplated by the Financing Documents. The Company will pay,
and will save you and each other holder of a Note harmless from, all claims in
respect of any fees, costs or expenses if any, of brokers and finders (other
than those retained by you).
15.2. Survival.
The obligations of the Company under this Section 15 will survive the
payment or transfer of any Note, the enforcement, amendment or waiver of any
provision of any Financing Document, and the termination of any Financing
Document.
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained in any Financing Document
shall survive the execution and delivery of this Agreement and the Notes and the
purchase or transfer by you of any Note or portion thereof or interest therein,
and may be relied upon by any subsequent holder of a Note, regardless of any
investigation made at any time by or on behalf of you or any other holder of a
Note. All statements contained in any certificate or other instrument or writing
delivered by or on behalf of the Company pursuant to any Financing Document
shall be deemed representations and warranties of the Company under this
Agreement. Subject to the preceding sentence, the Financing Documents embody the
entire agreement and understanding between you and the Obligors and supersede
all prior agreements and understandings relating to the subject matter hereof.
38
17.AMENDMENT AND WAIVER.
17.1. Requirements.
This Agreement and the Notes may be amended, and the observance of any term
hereof or of the Notes may be waived (either retroactively or prospectively),
with (and only with) the written consent of the Company and the Required
Holders, except that (a) no amendment or waiver of any of the provisions of any
of Sections l, 2, 3, 4, 5, 6 and 21, or any defined term (as it is used
therein), will be effective as to you unless consented to by you in writing, and
(b) no such amendment or waiver may, without the written consent of the holder
of each Note at the time outstanding affected thereby, (i) subject to the
provisions of Section 12 relating to acceleration or rescission, change the
amount or time of any prepayment or payment of principal of, or reduce the rate
or change the time of payment or method of computation of interest or of the
Make-Whole Amount on, the Notes, (ii) change the percentage of the principal
amount of the Notes the holders of which are required to consent to any such
amendment or waiver, or (iii) amend any of Sections 8, 11(a), 11(b), 12, 14.2,
17 and 20.
17.2. Solicitation of Holders of Notes.
(a) Solicitation. The Company will provide each holder of the Notes
(irrespective of the amount of Notes then owned by it) with sufficient
information, sufficiently far in advance of the date a decision is
required, to enable such holder to make an informed and considered decision
with respect to any proposed amendment, waiver or consent in respect of any
of the provisions hereof or of the Notes. The Company will deliver executed
or true and correct copies of each amendment, waiver or consent effected
pursuant to the provisions of this Section 17 to each holder of outstanding
Notes promptly following the date on which it is executed and delivered by,
or receives the consent or approval of, the requisite holders of Notes.
(b) Payment. The Company will not directly or indirectly pay or cause
to be paid any remuneration, whether by way of supplemental or additional
interest, fee or otherwise, or grant any security, to any holder of Notes
as consideration for or as an inducement to the entering into by any holder
of Notes of any waiver or amendment of any of the terms and provisions
hereof unless such remuneration is concurrently paid, or security is
concurrently granted, on the same terms, ratably to each holder of Notes
then outstanding even if such holder did not consent to such waiver or
amendment.
(c) Consent in Contemplation of Transfer. Any consent made pursuant to
this Section 17 by a holder of Notes that has transferred or has agreed to
transfer its Notes to the Company, any Subsidiary or any Affiliate of the
Company and has provided or has agreed to provide such written consent as a
condition to such transfer shall be void and of no force or effect except
solely as to such holder, and any amendments effected or waivers granted or
to be effected or granted that would not have been or would not be so
effected or granted but for such consent (and the consents of all other
holders of Notes that were acquired under the same or similar conditions)
shall be void and of no force or effect except solely as to such holder.
39
17.3. Binding Effect, etc.
Any amendment or waiver consented to as provided in this Section 17 applies
equally to all holders of Notes and is binding upon them and upon each future
holder of any Note and upon the Company without regard to whether such Note has
been marked to indicate such amendment or waiver. No such amendment or waiver
will extend to or affect any obligation, covenant, agreement, Default or Event
of Default not expressly amended or waived or impair any right consequent
thereon. No course of dealing between the Company and the holder of any Note nor
any delay in exercising any rights hereunder or under any Note shall operate as
a waiver of any rights of any holder of such Note. As used herein, the term
"this Agreement" and references thereto shall mean this Agreement as it may from
time to time be amended or supplemented.
17.4. Notes held by Company, etc.
Solely for the purpose of determining whether the holders of the requisite
percentage of the aggregate principal amount of Notes then outstanding approved
or consented to any amendment, waiver or consent to be given under any of the
Financing Documents, or have directed the taking of any action provided in any
of the Financing Documents to be taken upon the direction of the holders of a
specified percentage of the aggregate principal amount of Notes then
outstanding, Notes directly or indirectly owned by the Company or any of its
Affiliates shall be deemed not to be outstanding.
18. NOTICES.
All notices and communications provided for hereunder shall be in writing
and sent (a) by telecopy if the sender on the same day sends a confirming copy
of such notice by a recognized overnight delivery service (charges prepaid), or
(b) by registered or certified mail with return receipt requested (postage
prepaid), or (c) by a recognized overnight delivery service (with charges
prepaid). Any such notice must be sent:
(i) if to you or your nominee, to you or it at the address
specified for such communications in Schedule A, or at such other
address as you or it shall have specified to the Company in writing,
(ii) if to any other holder of any Note, to such holder at such
address as such other holder shall have specified to the Company in
writing, or
(iii) if to the Company, to the Company at its address set forth
at the beginning hereof to the attention of the Chief Financial
Officer, telecopier: (212) 230-5336, or at such other address as the
Company shall have specified to the holder of each Note in writing,
with a copy to the Company's general counsel at the address provided
pursuant to this subsection (iii).
Notices under this Section 18 will be deemed given only when actually received.
40
19. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating hereto, including, without
limitation, (a) consents, waivers and modifications that may hereafter be
executed, (b) documents received by you at the Closing (except the Notes
themselves), and (c) financial statements, certificates and other information
previously or hereafter furnished to you, may be reproduced by you by any
photographic, photostatic, microfilm, microcard, miniature photographic or other
similar process and you may destroy any original document so reproduced. The
Company agrees and stipulates that, to the extent permitted by applicable law,
any such reproduction shall be admissible in evidence as the original itself in
any judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by you in the regular
course of business) and any enlargement, facsimile or further reproduction of
such reproduction shall likewise be admissible in evidence. This Section 19
shall not prohibit the Company or any other holder of Notes from contesting any
such reproduction to the same extent that it could contest the original, or from
introducing evidence to demonstrate the inaccuracy of any such reproduction.
20. CONFIDENTIAL INFORMATION.
For the purposes of this Section 20, "Confidential Information" means
information delivered to you by or on behalf of the Company or any Subsidiary in
connection with the transactions contemplated by or otherwise pursuant to this
Agreement that is proprietary in nature and that was clearly marked or labeled
or otherwise adequately identified when received by you as being confidential
information of the Company or such Subsidiary, provided that such term does not
include information that
(a) was publicly known or otherwise known to you prior to the time of
such disclosure,
(b) subsequently becomes publicly known through no act or omission by
you or any person acting on your behalf,
(c) otherwise becomes known to you other than through disclosure by
the Company or any Subsidiary, or
(d) constitutes financial statements delivered to you under Section
7.1 that are otherwise publicly available.
You will maintain the confidentiality of such Confidential Information in
accordance with procedures adopted by you in good faith to protect confidential
information of third parties delivered to you, provided that you may deliver or
disclose Confidential Information to:
(i) your directors, officers, trustees, employees, agents,
attorneys and affiliates (to the extent such disclosure reasonably
relates to the administration of the investment represented by your
Notes),
41
(ii) your financial advisors and other professional advisors who
agree to hold confidential the Confidential Information substantially
in accordance with the terms of this Section 20,
(iii) any other holder of any Note,
(iv) any Institutional Investor to which you sell or offer to
sell such Note or any part thereof or any participation therein (if
such Person has agreed in writing prior to its receipt of such
Confidential Information to be bound by the provisions of this Section
20),
(v) any Person from which you offer to purchase any security of
the Company (if such Person has agreed in writing prior to its receipt
of such Confidential Information to be bound by the provisions of this
Section 20),
(vi) any federal or state regulatory authority having
jurisdiction over you,
(vii) the National Association of Insurance Commissioners or any
similar organization, or any nationally recognized rating agency that
requires access to information about your investment portfolio or
(viii) any other Person to which such delivery or disclosure may be
necessary or appropriate
(A) to effect compliance with any law, rule, regulation or
order applicable to you,
(B) in response to any subpoena or other legal process,
(C) in connection with any litigation to which you are a
party, or
(D) if an Event of Default has occurred and is continuing,
to the extent you may reasonably determine such delivery and
disclosure to be necessary or appropriate in the enforcement or
for the protection of the rights and remedies under the Financing
Documents.
Each holder of a Note, by its acceptance of a Note, will be deemed to have
agreed to be bound by and to be entitled to the benefits of this Section 20 as
though it were a party to this Agreement. On reasonable request by the Company
in connection with the delivery to any holder of a Note of information required
to be delivered to such holder under this Agreement or requested by such holder
(other than a holder that is a party to this Agreement or its nominee), such
holder will enter into an agreement with the Company embodying the provisions of
this Section 20.
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21. SUBSTITUTION OF PURCHASER.
You shall have the right to substitute any one of your Affiliates as the
purchaser of the Notes that you have agreed to purchase hereunder, by written
notice to the Company, which notice shall be signed by both you and such
Affiliate, shall contain such Affiliate's agreement to be bound by this
Agreement and shall contain a confirmation by such Affiliate of the accuracy
with respect to it of the representations set forth in Section 6. Upon receipt
of such notice, wherever the word "you" is used in this Agreement (other than in
this Section 21), such word shall be deemed to refer to such Affiliate in lieu
of you. In the event that such Affiliate is so substituted as a purchaser
hereunder and such Affiliate thereafter transfers to you all of the Notes then
held by such Affiliate, upon receipt by the Company of notice of such transfer,
wherever the word "you" is used in this Agreement (other than in this Section
21), such word shall no longer be deemed to refer to such Affiliate, but shall
refer to you, and you shall have all the rights of an original holder of the
Notes under this Agreement.
22. MISCELLANEOUS
22.1. Successors and Assigns.
All covenants and other agreements contained in this Agreement by or on
behalf of any of the parties hereto bind and inure to the benefit of their
respective successors and assigns (including, without limitation, any subsequent
holder of a Note) whether so expressed or not.
22.2. Payments Due on Non-Business Days.
Anything in this Agreement or the Notes to the contrary notwithstanding,
any payment of principal of or Make-Whole Amount or interest on any Note that is
due on a date (including, without limitation, the final maturity date of the
Notes) other than a Business Day shall be made on the next succeeding Business
Day without including the additional days elapsed in the computation of the
interest payable on such next succeeding Business Day, except in the case of a
payment on the final maturity date which shall include such additional days in
such computation but shall not include the date on which such payment is
received.
22.3. Severability.
Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
22.4. Construction.
Each covenant contained herein shall be construed (absent express provision
to the contrary) as being independent of each other covenant contained herein,
so that compliance with any one covenant shall not (absent such an express
contrary provision) be deemed to excuse compliance with any other covenant.
Where any provision herein refers to action to be taken by any Person, or which
such Person is prohibited from taking, such provision shall be applicable
whether such action is taken directly or indirectly by such Person.
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22.5. Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be an original but all of which together shall constitute one instrument.
Each counterpart may consist of a number of copies hereof, each signed by less
than all, but together signed by all, of the parties hereto.
22.6. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE
RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK
EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE
THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.
[Remainder of page intentionally left blank. Next page is signature page.]
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it to the
Company, whereupon the foregoing shall become a binding agreement between you
and the Company.
Very truly yours,
TIFFANY & CO.
By____________________________
Name:
Title:
The foregoing is hereby agreed to
as of the date thereof:
[PURCHASER]
By
___________________________
Name:
Title:
[Signature Page to Note Purchase Agreement]
SCHEDULE B
DEFINED TERMS
As used herein, the following terms have the respective meanings set forth
below or set forth in the Section hereof following such term:
"Affiliate" means at any time, and with respect to any Person,
(a) any other Person that at such time directly or indirectly through
one or more intermediaries Controls, or is Controlled by, or is under
common Control with, such first Person; or
(b) (i) any Person beneficially owning or holding, directly or
indirectly, 10% or more of any class of voting or equity interests of the
Company or any Subsidiary, or (ii) any Person of which the Company and its
Subsidiaries beneficially own or hold, in the aggregate, directly or
indirectly, 10% or more of any class of voting or equity interests.
As used in this definition, "Control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise. Unless the context otherwise clearly requires, any
reference to an "Affiliate" is a reference to an Affiliate of the Company.
"Agreement, this" is defined in Section 17.3.
"Anti-Terrorism Order" is defined in Section 5.16(b).
"Business Day" means any day other than a Saturday, a Sunday or a day on
which commercial banks in New York City are required or authorized to be closed.
"Capital Lease" means a lease with respect to which the lessee is required
concurrently to recognize the acquisition of an asset and the incurrence of a
liability in accordance with GAAP.
"Capital Stock" means any class of capital stock, share capital or similar
equity interest of a Person.
"Closing" is defined in Section 3.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the rules and regulations promulgated thereunder from time to time.
"Company" is defined in the introductory sentence of this Agreement.
"Confidential Information" is defined in Section 20.
Schedule B-1
"Consolidated Adjusted Lease Expense" means, for any period, an amount
equal to 33-1/3% of Consolidated Lease Rentals for such period.
"Consolidated Interest Expense" means, for any period, the sum of (i) the
aggregate amount of interest expense on Consolidated Total Debt (without giving
effect to any interest income), plus (ii) without duplication, that portion of
Capital Lease obligations of the Company and its Subsidiaries representing the
interest factor for such period, less (iii) amortization of non-cash debt
issuance costs for such period.
"Consolidated Lease Rentals" means, for any period, the aggregate amount of
lease expense of the Company and its Subsidiaries for such period, as determined
in accordance with GAAP.
"Consolidated Net Income" means, for any period, the net income (or loss)
of the Company and its Subsidiaries for such period (taken as a cumulative
whole), as determined in accordance with GAAP, after eliminating all offsetting
debits and credits between the Company and its Subsidiaries and all other items
required to be eliminated in the course of the preparation of consolidated
financial statements of the Company and its Subsidiaries in accordance with
GAAP.
"Consolidated Net Worth" means, at any time,
(a) the sum, without duplication, of (i) the par value (or value
stated on the books of the corporation) of the Capital Stock (but excluding
treasury stock and Capital Stock subscribed and unissued, and any Preferred
Stock that is mandatorily redeemable on or prior to July 18, 2012) of the
Company and its Subsidiaries, plus (ii) the amount of the paid-in capital
and retained earnings of the Company and its Subsidiaries, in each case as
such amounts (excluding the effect of all foreign currency translation
adjustments) would be shown on a consolidated balance sheet of the Company
and its Subsidiaries as of such time prepared in accordance with GAAP,
minus
(b) to the extent included in clause (a), all amounts properly
attributable to minority interests, if any, in the stock and surplus of
Subsidiaries.
"Consolidated Pro Forma Interest Expense" means, at any time, in respect of
the incurrence of any Debt by the Company or any Subsidiary, the Consolidated
Interest Expense for the period of four (4) fiscal quarters of the Company then
most recently ended assuming for the purposes of the determination thereof, that
(a) such Debt was incurred on the first day of such period and was
outstanding at all times during such period, and
(b) the interest rate applicable to such Debt was not amended or
modified during such period.
"Consolidated Pro Forma Operating Cash Flow" means, for any period, the sum
of
(a) Consolidated Net Income for such period, plus
Schedule B-2
(b) the aggregate amount of Consolidated Interest Expense,
Consolidated Adjusted Lease Expense, income taxes, depreciation,
amortization and any other noncash expenses or charges of any nature
accrued for such period by the Company and its Subsidiaries (to the extent,
but only to the extent, such aggregate amount was reflected in the
computation of Consolidated Net Income for such period);
provided that if the Company or any Subsidiary shall have acquired or disposed
of an On-Going Business after the beginning of such period, the calculation of
Consolidated Pro Forma Operating Cash Flow shall (x) include the EBITDA for such
period of each On-Going Business so acquired as if such On-Going Business had
been owned for the entire period, and (y) exclude the EBITDA for such period of
each On-Going Business so disposed of as if such On-Going Business had not been
owned at any time during such period. As used in this definition, "EBITDA" with
respect to any On-Going Business for any period shall mean, the net income
(after income taxes) of such On-Going Business for such period, determined in
accordance with GAAP, plus, to the extent deducted in calculating such net
income, interest, income taxes, depreciation, amortization and non-cash charges
of any nature.
"Consolidated Total Assets" means, at any time, the total assets of the
Company and its Subsidiaries which would be shown as assets on a consolidated
balance sheet of the Company and its Subsidiaries as of such time prepared in
accordance with GAAP, after eliminating all amounts properly attributable to
minority interests, if any, in the stock and surplus of Subsidiaries.
"Consolidated Total Capitalization" means, at any time, the sum of (a)
Consolidated Total Debt at such time plus (b) Consolidated Net Worth at such
time.
"Consolidated Total Debt" means, as of any date of determination, the total
of all Debt of the Company and its Subsidiaries outstanding on such date, after
eliminating all offsetting debits and credits between the Company and its
Subsidiaries and all other items required to be eliminated in the course of the
preparation of consolidated financial statements of the Company and its
Subsidiaries in accordance with GAAP.
"Credit Agreement" means that certain Credit Agreement, dated as of
November 5, 2001, by and among the Company, certain Subsidiaries of the Company,
the banks that are parties thereto, and The Bank of New York, as administrative
agent, as amended or renewed from time to time, and each successor loan or
credit agreement constituting the Company's primary bank credit facility, with
the same or different group of lenders and agents, in each case as may be
amended from time to time.
"Debt" means, with respect to any Person, without duplication,
(a) its liabilities for borrowed money and its redemption obligations
in respect of mandatorily redeemable Preferred Stock;
(b) its liabilities for the deferred purchase price of property
acquired by such Person (excluding accounts payable arising in the ordinary
course of business but
Schedule B-3
including, without limitation, all liabilities created or arising under any
conditional sale or other title retention agreement with respect to any
such property);
(c) all liabilities appearing on its balance sheet in accordance with
GAAP in respect of Capital Leases;
(d) all liabilities for borrowed money secured by any Lien with
respect to any property owned by such Person (whether or not it has assumed
or otherwise become liable for such liabilities); and
(e) any Guaranty of such Person with respect to liabilities of a type
described in any of clauses (a) through (d) hereof.
Without limitation of the foregoing, Debt of any Person shall include all
obligations of such Person of the character described in clauses (a) through (e)
to the extent such Person or its property remains legally liable in respect
thereof notwithstanding that any such obligation is deemed to be extinguished
under GAAP.
"Debt Prepayment Application" is defined in Section 10.6(c)(i).
"Default" means an event or condition the occurrence or existence of which
would, with the lapse of time or the giving of notice or both, become an Event
of Default.
"Default Rate" means that rate of interest that is the greater of (i) 1.0%
per annum above the rate of interest stated in clause (a) of the first paragraph
of the relevant Series of Notes or (ii) 1.0% over the rate of interest publicly
announced from time to time by Morgan Guaranty Trust Company of New York in New
York City (or its successor) as its "base" or "prime" rate.
"Designated Portion" is defined in Section 10.6(b)(i).
"Disclosure Documents" are defined in Section 5.3.
"Disposition Value" is defined in Section 10.6(c)(ii).
"Environmental Laws" means any and all Federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including but not limited to
those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations promulgated thereunder
from time to time in effect.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
that is treated as a single employer together with the Company under section 414
of the Code.
Schedule B-4
"Event of Default" is defined in Section 11.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time.
"Excluded Transfer" is defined in Section 10.6(a)(ii).
"Fair Market Value" means, at any time and with respect to any property,
the sale value of such property that would be realized in an arm's-length sale
at such time between an informed and willing buyer and an informed and willing
seller (neither being under a compulsion to buy or sell, respectively).
"Financing Documents" means, collectively, this Agreement, the Other
Agreements, the Notes and the Guaranty Agreement.
"Foreign Pension Plan" means any plan, fund or other similar program
(a) established or maintained outside of the United States of America
by any one or more of the Company or any of its Subsidiaries primarily for
the benefit of the employees (substantially all of whom are aliens not
residing in the United States of America) of the Company or its
Subsidiaries which plan, fund or other similar program provides for
retirement income for such employees or results in a deferral of income for
such employees in contemplation of retirement, and
(b) not otherwise subject to ERISA.
"GAAP" means generally accepted accounting principles as in effect from
time to time in the United States of America.
"Governmental Authority" means
(a) the government of
(i) the United States of America or any state or other political
subdivision thereof, or
(ii) any jurisdiction in which the Company or any Subsidiary
conducts all or any part of its business, or that asserts jurisdiction
over any properties of the Company or any Subsidiary, or
(b) any entity exercising executive, legislative, judicial, regulatory
or administrative functions of, or pertaining to, any such government.
"Guarantors" means each of Tiffany and Company, a New York corporation,
Tiffany & Co. International, a Delaware corporation, Tiffany & Co. Japan Inc., a
Delaware corporation, and each other Subsidiary of the Company which delivers a
Guaranty or joinder agreement to the
Schedule B-5
Guaranty Agreement pursuant to Section 9.6 hereof, together with the respective
successors and assigns of each of the foregoing entities, and "Guarantor" means
any one of such Persons.
"Guaranty" means, with respect to any Person, any obligation (except the
endorsement in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing or in effect guaranteeing any
indebtedness, dividend or other obligation of any other Person in any manner,
whether directly or indirectly, including, without limitation, obligations
incurred through an agreement, contingent or otherwise, by such Person:
(a) to purchase such indebtedness or obligation or any property
constituting security therefor;
(b) to advance or supply funds (i) for the purchase or payment of such
indebtedness or obligation, or (ii) to maintain any working capital or
other balance sheet condition or any income statement condition of any
other Person or otherwise to advance or make available funds for the
purchase or payment of such indebtedness or obligation;
(c) to lease properties or to purchase properties or services
primarily for the purpose of assuring the owner of such indebtedness or
obligation of the ability of any other Person to make payment of the
indebtedness or obligation; or
(d) otherwise to assure the owner of such indebtedness or obligation
against loss in respect thereof.
In any computation of the indebtedness or other liabilities of the obligor under
any Guaranty, the indebtedness or other obligations that are the subject of such
Guaranty shall be assumed to be direct obligations of such obligor.
"Guaranty Agreement" is defined in Section 4.7.
"Hazardous Material" means any and all pollutants, toxic or hazardous
wastes or any other substances that might pose a hazard to health or safety, the
removal of which may be required or the generation, manufacture, refining,
production, processing, treatment, storage, handling, transportation, transfer,
use, disposal, release, discharge, spillage, seepage, or filtration of which is
or shall be restricted, prohibited or penalized by any applicable law
(including, without limitation, asbestos, urea formaldehyde foam insulation and
polychlorinated biphenyls).
"holder" means, with respect to any Note, the Person in whose name such
Note is registered in the register maintained by the Company pursuant to Section
13.1.
"Indebtedness" means, with respect to any Person, without duplication,
(a) its liabilities for borrowed money and its redemption obligations
in respect of mandatorily redeemable Preferred Stock;
(b) its liabilities for the deferred purchase price of property
acquired by such Person (excluding accounts payable arising in the ordinary
course of business but
Schedule B-6
including all liabilities created or arising under any conditional sale or
other title retention agreement with respect to any such property);
(c) all liabilities appearing on its balance sheet in accordance with
GAAP in respect of Capital Leases;
(d) all liabilities for borrowed money secured by any Lien with
respect to any property owned by such Person (whether or not it has assumed
or otherwise become liable for such liabilities);
(e) all its liabilities in respect of letters of credit or instruments
serving a similar function issued or accepted for its account by banks and
other financial institutions (whether or not representing obligations for
borrowed money);
(f) Swaps of such Person; and
(g) any Guaranty of such Person with respect to liabilities of a type
described in any of clauses (a) through (f) hereof.
Without limitation of the foregoing, Indebtedness of any Person shall include
all obligations of such Person of the character described in clauses (a) through
(g) to the extent such Person or its property remains legally liable in respect
thereof notwithstanding that any such obligation is deemed to be extinguished
under GAAP.
"Institutional Investor" means (a) any original purchaser of a Note, (b)
any holder of a Note holding more than 5% of the aggregate principal amount of
the Notes then outstanding, and (c) any bank, trust company, savings and loan
association or other financial institution, any pension plan, any investment
company, any insurance company, any broker or dealer, or any other similar
financial institution or entity, regardless of legal form.
"Lien" means, with respect to any Person, any mortgage, lien, pledge,
charge, security interest or other encumbrance, or any interest or title of any
vendor, lessor, lender or other secured party to or of such Person under any
conditional sale or other title retention agreement or Capital Lease, upon or
with respect to any property or asset of such Person (including in the case of
stock, stockholder agreements, voting trust agreements and all similar
arrangements).
"Make-Whole Amount" is defined in Section 8.7.
"Material" means material in relation to the business, operations, affairs,
financial condition, assets, properties or prospects of the Company and its
Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, affairs, financial condition, assets or properties of the
Company and its Subsidiaries taken as a whole, or (b) the ability of the
Obligors to perform their obligations under the Financing Documents, or (c) the
validity or enforceability of any of the Financing Documents.
"Memorandum" is defined in Section 5.3.
Schedule B-7
"Multiemployer Plan" means any Plan that is a "multiemployer plan" (as such
term is defined in section 4001(a)(3) of ERISA).
"Net Asset Sale Proceeds Amount" means, with respect to any Transfer of any
property by any Person, an amount equal to the difference of
(a) the aggregate amount of the consideration (valued at the Fair
Market Value of such consideration at the time of the consummation of such
Transfer) received by such Person in respect of such Transfer, minus
(b) all ordinary and reasonable out-of-pocket costs and expenses
actually incurred by such Person in connection with such Transfer.
"Notes" is defined in Section 1.
"Obligors" means the Company and each Guarantor, and "Obligor" means any
one of such Persons.
"Officer's Certificate" means a certificate of the Company executed on its
behalf by a Senior Financial Officer or any other officer of the Company whose
responsibilities extend to the subject matter of such certificate.
"On-Going Business" means a distinct operating business, whether operated
as a division of a larger business operation or operated independently, which,
regardless of the form of legal entity, owns and operates the assets and has the
liabilities of such business.
"Ordinary Course Transfer" is defined in Section 10.6(a)(i).
"Other Agreements" is defined in Section 2.
"Other Purchasers" is defined in Section 2.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA or any successor thereto.
"Person" means an individual, partnership, corporation, limited liability
company, association, trust, unincorporated organization, or a government or
agency or political subdivision thereof.
"Plan" means an "employee benefit plan" (as defined in section 3(3) of
ERISA) that is or, within the preceding five years, has been established or
maintained, or to which contributions are or, within the preceding five years,
have been made or required to be made, by the Company or any ERISA Affiliate or
with respect to which the Company or any ERISA Affiliate may have any liability.
"Preferred Stock" means any class of Capital Stock of a Person that is
preferred over any other class of Capital Stock of such Person as to the payment
of dividends or other equity distributions or the payment of any amount upon
liquidation or dissolution of such Person.
Schedule B-8
"Premises" means the building and land located at 727 Fifth Avenue, New
York, New York.
"Priority Debt" means, at any time, without duplication, the sum of
(a) all then outstanding Debt of the Company or any Guarantor secured
by any Lien on any property of the Company or any Subsidiary, other than
any such Debt secured by Liens permitted by any one or more of clauses (a)
through (i), inclusive, of Section 10.4, plus
(b) all then outstanding Debt of Subsidiaries (other than Debt of any
Guarantor);
provided that Priority Debt shall not include Debt of any Subsidiary (x) owing
solely to the Company or another Subsidiary, or (y) under any Guaranty by a
Subsidiary which is a party to the Guaranty Agreement of the Debt of the Company
or any other Subsidiary.
"property" or "properties" means, unless otherwise specifically limited,
real or personal property of any kind, tangible or intangible, choate or
inchoate.
"PTE" is defined in Section 6.2(a).
"QPAM Exemption" is defined in Section 6.2(d).
"Qualified Institutional Buyer" means any Person who is a "qualified
institutional buyer" within the meaning of such term as set forth in Rule
144A(a)(1) under the Securities Act.
"Reinvested Transfer" is defined in Section 10.6(b)(i).
"Required Holders" means, at any time, the holder or holders of at least
66-2/3% in principal amount of the Notes at the time outstanding (exclusive of
Notes then owned by the Company, any Subsidiary or any of their respective
Affiliates).
"Responsible Officer" means any Senior Financial Officer and any other
officer of the Company with responsibility for the administration of the
relevant portion of this Agreement.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"Senior Debt" means the Notes and any Debt of the Company or its
Subsidiaries that by its terms is not in any manner subordinated in right of
payment to any other unsecured Debt of the Company or any Subsidiary.
"Senior Financial Officer" means the chief financial officer, principal
accounting officer or treasurer of the Company.
"Series" means any one or more of the series of Notes issued hereunder.
"Series C Notes" is defined in Section 1(a).
Schedule B-9
"Series D Notes" is defined in Section 1(b).
"Source" is defined in Section 6.2.
"Subsidiary" means, as to any Person, any corporation, partnership, limited
liability company, association or other business entity in which such Person or
one or more of its Subsidiaries or such Person and one or more of its
Subsidiaries owns sufficient equity or voting interests to enable it or them (as
a group) ordinarily, in the absence of contingencies, to elect a majority of the
directors (or Persons performing similar functions) of such entity, and any
partnership or joint venture if more than a 50% interest in the profits or
capital thereof is owned by such Person or one or more of its Subsidiaries or
such Person and one or more of its Subsidiaries (unless such partnership or
joint venture can and does ordinarily take major business actions without the
prior approval of such Person or one or more of its Subsidiaries). Unless the
context otherwise clearly requires, any reference to a "Subsidiary" is a
reference to a Subsidiary of the Company.
"Substantial Portion" is defined in Section 10.6(c)(iii).
"Successor Corporation" is defined in Section 10.5(c).
"Swaps" means, with respect to any Person, payment obligations with respect
to interest rate swaps, currency swaps and similar obligations obligating such
Person to make payments, whether periodically or upon the happening of a
contingency. For the purposes of this Agreement, the amount of the obligation
under any Swap shall be the amount determined in respect thereof as of the end
of the then most recently ended fiscal quarter of such Person, based on the
assumption that such Swap had terminated at the end of such fiscal quarter, and
in making such determination, if any agreement relating to such Swap provides
for the netting of amounts payable by and to such Person thereunder or if any
such agreement provides for the simultaneous payment of amounts by and to such
Person, then in each such case, the amount of such obligation shall be the net
amount so determined.
"Transfer" is defined in Section 10.6(c)(iv).
"Wholly-Owned Subsidiary" means, at any time, any Subsidiary of which (a)
100% of the Capital Stock of such Subsidiary is beneficially owned by any one or
more of the Company and the Company's other Wholly-Owned Subsidiaries at such
time and (b) all of the legal title to such Capital Stock (other than Capital
Stock held by third parties as may be required under the laws of any
jurisdiction where such Subsidiary is organized or conducts business) is held by
one or more of the Company and the Company's other Wholly-Owned Subsidiaries at
such time.
Schedule B-10
SCHEDULE 5.14
USE OF PROCEEDS
General corporate purposes, including seasonal working capital needs, and
the redemption of $51,500,000 of the Company's Senior Notes due January 2003.
Schedule 5.14-1
SCHEDULE 5.15
EXISTING INDEBTEDNESS AND LIENS
1. Indebtedness under the Credit Agreement of up to $250,000,000,which may be incurred by the Company, and those of its direct
and indirect subsidiaries that are or become parties thereto (unsecured; $36,855,118 outstanding).
2. Guarantees provided by each of the Guarantors of the indebtedness described in Item 1 above (unsecured).
3. $51,500,000 7.52% Senior Notes due 2003 issued by the Company to certain purchasers thereof (unsecured; $ 51,500,000
outstanding).
4. Guarantees provided by each of the Guarantors of the indebtedness described in Item 3 above (unsecured).
5. $60,000,000 6.90% Series A Senior Notes due 2008 issued by the Company to certain purchasers thereof (unsecured;$60,000,000
outstanding).
6. Guarantees provided by each of the Guarantors of the indebtedness described in Item 5 above (unsecured).
7. $40,000,000 7.05% Series B Senior Notes due 2010 issued by the Company to certain purchasers thereof (unsecured;$40,000,000
outstanding).
8. Guarantees provided by each of the Guarantors of the indebtedness described in Item 7 above (unsecured).
9. $1,000,000 6.00% Rhode Island Industrial Facilities Corporation Industrial Development Revenue Bond (Tiffany and Company
Project - 2000 Series) due 2010 (secured; $ 1,000,000 outstanding).
10. Y5,000,000,000 4.50% Loan due 2011 from American Family Life Assurance Company of Columbus, Japan Branch (unsecured;
Y5,000,000,000 outstanding).
11. Guaranty provided by the Company of the indebtedness described in Item 10 above (unsecured).
12. Y5,500,000,000 Variable Rate Loan due 2004 from The Fuji Bank, Ltd. (unsecured; Y5,500,000,000 outstanding).
13. Interest Rate Swaps with J.P. Morgan Chase Bank in connection with the indebtedness described in item 12 above (unsecured).
Schedule 5.15-1
14. Guaranty provided by the Company of the indebtedness described in Item 12 above (unsecured).
15. Brazilian Reais 7,250,000 uncommitted line of credit provided to Tiffany-Brasil Ltda. by Bank Boston N.A. (unsecured; BRL
6,963,595 outstanding). There is not more than $3,000,000 of outstanding obligations on such Indebtedness as of the date of
Closing.
16. Guaranty provided by the Company of the indebtedness described in Item 14 above (unsecured).
17. Forward exchange yen contracts, including those arising under that certain Foreign Exchange and Options Master Agreement
dated as of March 28, 1997, by and between The Bank of New York and Tiffany and Company ("FEOMA-1") and that certain
Foreign Exchange and Option Master Agreement dated as of March 28, 1997, by and between The Bank of New York and Tiffany &
Co. International ("FEOMA-2") (unsecured). There is not more than $3,000,000 of outstanding obligations on such
Indebtedness as of the date of Closing.
18. Guaranty provided by Tiffany & Co. International of the indebtedness arising under FEOMA-1 (unsecured). There is not more
than $3,000,000 of outstanding obligations on such Indebtedness as of the date of Closing.
19. Guaranty provided by Tiffany and Company of the indebtedness arising under FEOMA-2 (unsecured). There is not more than
$3,000,000 of outstanding obligations on such Indebtedness as of the date of Closing.
20. Consigned Lien in favor of Fleet Precious Metals Inc. under a certain Consignment Agreement made as of July 24, 1998
between Fleet Precious Metals, Inc. and Tiffany and Company. (Consignment Limit: $10,000,000)
21. Liens covering consigned gemstones as contemplated by Section 10.4(h).
*Stated principal amounts outstanding are as of June 30, 2002.
Schedule 5.15-2
EXHIBIT lA
[FORM OF SERIES C NOTE]
TIFFANY & CO.
6.15% SERIES C SENIOR NOTE DUE JULY 18, 2009
No. RC-[__] July 18, 2002
$[________] PPN: 886547 B* 8
FOR VALUE RECEIVED, the undersigned, TIFFANY & CO. (herein called the
"Company"), a corporation organized and existing under the laws of the State of
Delaware, hereby promises to pay to [________________], or registered assigns,
the principal sum of [______________] DOLLARS ($[_________]) on July 18, 2009,
with interest (computed on the basis of a 360-day year of twelve 30-day months)
(a) on the unpaid balance thereof at the rate of 6.15% per annum from the date
hereof, payable semiannually on the 18th day of January and July in each year,
commencing on January 18, 2003, until the principal hereof shall have become due
and payable, and (b) to the extent permitted by law on any overdue payment
(including any overdue prepayment) of principal, any overdue payment of interest
and any overdue payment of any Make-Whole Amount (as defined in the Note
Agreements referred to below), payable semiannually as aforesaid (or, at the
option of the registered holder hereof, on demand), at a rate per annum from
time to time equal to the greater of (i) 7.15% or (ii) 1.0% over the rate of
interest publicly announced from time to time by Morgan Guaranty Trust Company
of New York in New York, New York (or its successor) as its "base" or "prime"
rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the address shown in the register maintained by the Company for such
purpose or at such other place as the Company shall have designated by written
notice to the holder of this Note as provided in the Note Agreements referred to
below.
This Note is one of a series of the 6.15% Series C Senior Notes due July
18, 2009 (herein called the "Series C Notes") of the Company in the aggregate
principal amount of $40,000,000 issued pursuant to separate Note Agreements,
each dated as of July 18, 2002, (as from time to time amended, the "Note
Agreements"), between the Company and the respective purchasers named therein
and under and pursuant to which the Company is also issuing $60,000,000
aggregate principal amount of its 6.56% Series D Senior Notes due July 18, 2012
(the "Series D Notes" and, together with the Series C Notes, the "Notes"), and
is entitled to the benefits thereof. Each holder of this Note will be deemed, by
its acceptance hereof, (i) to have agreed to the confidentiality provisions set
forth in Section 20 of the Note Agreements and (ii) to have made the
representation set forth in Section 6.2 of the Note Agreements. Capitalized
terms used herein, unless otherwise specified herein, shall have the respective
meanings specified in the Note Agreements.
Exhibit 1A-1
This Note is a registered Note and, as provided in the Note Agreements,
upon surrender of this Note for registration of transfer, duly endorsed, or
accompanied by a written instrument of transfer duly executed, by the registered
holder hereof or such holder's attorney duly authorized in writing, a new Note
for a like principal amount will be issued to, and registered in the name of,
the transferee. Prior to due presentment for registration of transfer, the
Company may treat the Person in whose name this Note is registered as the owner
hereof for the purpose of receiving payment and for all other purposes, and the
Company will not be affected by any notice to the contrary. This Note is not a
"negotiable instrument" within the meaning of ss.3-104 of the Uniform Commercial
Code as adopted in the State of New York.
This Note and the holder hereof are entitled, equally and ratably with the
holders of all other Notes, to the benefits provided by the Guaranty Agreement,
as to which reference is hereby made for the statement thereof.
This Note is subject to optional prepayment, in whole or from time to time
in part, at the times and on the terms specified in the Note Agreements, but not
otherwise.
If an Event of Default, as defined in the Note Agreements, occurs and is
continuing, the principal of this Note may be declared or otherwise become due
and payable in the manner, at the price (including any applicable Make-Whole
Amount) and with the effect provided in the Note Agreements.
THIS NOTE AND THE NOTE AGREEMENTS ARE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, EXCLUDING CHOICE-OF-LAW
PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE THE APPLICATION OF THE
LAWS OF A JURISDICTION OTHER THAN SUCH STATE.
TIFFANY & CO.
By __________________________
Name:
Title:
Exhibit 1A-2
EXHIBIT 1B
[FORM OF SERIES D NOTE]
TIFFANY & CO.
6.56% SERIES D SENIOR NOTE DUE JULY 18, 2012
No. RD-[__] July 18, 2002
$[________] PPN: 886547 B@ 6
FOR VALUE RECEIVED, the undersigned, TIFFANY & CO. (herein called the
"Company"), a corporation organized and existing under the laws of the State of
Delaware, hereby promises to pay to [________________], or registered assigns,
the principal sum of [____________] DOLLARS ($[___________]) on July 18, 2012,
with interest (computed on the basis of a 360-day year of twelve 30-day months)
(a) on the unpaid balance thereof at the rate of 6.56% per annum from the date
hereof, payable semiannually on the 18th day of January and July in each year,
commencing on January 18, 2003, until the principal hereof shall have become due
and payable, and (b) to the extent permitted by law on any overdue payment
(including any overdue prepayment) of principal, any overdue payment of interest
and any overdue payment of any Make-Whole Amount (as defined in the Note
Agreements referred to below), payable semiannually as aforesaid (or, at the
option of the registered holder hereof, on demand), at a rate per annum from
time to time equal to the greater of (i) 7.56% or (ii) 1.0% over the rate of
interest publicly announced from time to time by Morgan Guaranty Trust Company
of New York in New York, New York (or its successor) as its "base" or "prime"
rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the address shown in the register maintained by the Company for such
purpose or at such other place as the Company shall have designated by written
notice to the holder of this Note as provided in the Note Agreements referred to
below.
This Note is one of a series of the 6.56% Series D Senior Notes due July
18, 2012 (herein called the "Series D Notes") of the Company in the aggregate
principal amount of $60,000,000 issued pursuant to separate Note Agreements,
each dated as of July 18, 2002, (as from time to time amended, the "Note
Agreements"), between the Company and the respective purchasers named therein
and under and pursuant to which the Company is also issuing $40,000,000
aggregate principal amount of its 6.15% Series C Senior Notes due July 18, 2009
(the "Series C Notes" and, together with the Series D Notes, the "Notes"), and
is entitled to the benefits thereof. Each holder of this Note will be deemed, by
its acceptance hereof, (i) to have agreed to the confidentiality provisions set
forth in Section 20 of the Note Agreements and (ii) to have made the
representation set forth in Section 6.2 of the Note Agreements. Capitalized
terms used herein, unless otherwise specified herein, shall have the respective
meanings specified in the Note Agreements.
Exhibit 1B-1
This Note is a registered Note and, as provided in the Note Agreements,
upon surrender of this Note for registration of transfer, duly endorsed, or
accompanied by a written instrument of transfer duly executed, by the registered
holder hereof or such holder's attorney duly authorized in writing, a new Note
for a like principal amount will be issued to, and registered in the name of,
the transferee. Prior to due presentment for registration of transfer, the
Company may treat the Person in whose name this Note is registered as the owner
hereof for the purpose of receiving payment and for all other purposes, and the
Company will not be affected by any notice to the contrary. This Note is not a
"negotiable instrument" within the meaning of ss.3-104 of the Uniform Commercial
Code as adopted in the State of New York.
This Note and the holder hereof are entitled, equally and ratably with the
holders of all other Notes, to the benefits provided by the Guaranty Agreement,
as to which reference is hereby made for the statement thereof.
This Note is subject to optional prepayment, in whole or from time to time
in part, at the times and on the terms specified in the Note Agreements, but not
otherwise.
If an Event of Default, as defined in the Note Agreements, occurs and is
continuing, the principal of this Note may be declared or otherwise become due
and payable in the manner, at the price (including any applicable Make-Whole
Amount) and with the effect provided in the Note Agreements.
THIS NOTE AND THE NOTE AGREEMENTS ARE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, EXCLUDING CHOICE-OF-LAW
PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE THE APPLICATION OF THE
LAWS OF A JURISDICTION OTHER THAN SUCH STATE.
TIFFANY & CO.
By ___________________________
Name:
Title:
Exhibit 1B-2
EXHIBIT 4.7
[FORM OF GUARANTY AGREEMENT]
Exhibit 4.7-1
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT, dated as of July 18, 2002 (as amended or restated
from time to time, this "Guaranty"), by Tiffany and Company, a New York
corporation, Tiffany & Co. International, a Delaware corporation and Tiffany &
Co. Japan Inc., a Delaware corporation (together with their respective
successors and assigns, the "Guarantors") is in favor of each of the Noteholders
(as such term is hereinafter defined).
1. PRELIMINARY STATEMENT
(a) Tiffany & Co., a Delaware corporation (together with its
successors and assigns, the "Company"), has authorized the issuance of its
(i) 6.15% Series C Senior Notes due July 18, 2009 in the aggregate
principal amount of Forty Million Dollars ($40,000,000) (the "Series C
Notes") and (ii) 6.56% Series D Senior Notes due July 18, 2012 in the
aggregate principal amount of Sixty Million Dollars ($60,000,000) (the
"Series D Notes" and together with the Series C Notes, collectively, and as
may be amended or restated from time to time, the "Notes"), pursuant to
separate Note Purchase Agreements, of even date herewith (collectively, as
may be amended or restated from time to time, the "Note Purchase
Agreement'), between the Company and the respective purchasers listed on
Schedule A attached thereto (the "Purchasers").
(b) In order to induce the Purchasers to purchase the Notes from the
Company, the Company has agreed that it will cause each Guarantor to
guaranty unconditionally all of the obligations of the Company to pay
principal of and interest and Make-Whole Amount on the Notes and all other
amounts payable by the Company under the terms of the Notes and the Note
Purchase Agreement pursuant to the terms and provisions hereof.
(c) Each Guarantor and the Company are operated as part of one
combined business group and are directly dependent upon each other for and
in connection with their respective business activities and their
respective financial resources. Each Guarantor will receive direct and
indirect economic, financial and other benefits from the indebtedness
incurred under the Note Purchase Agreement and the Notes by the Company,
and under this Guaranty by each Guarantor, and the incurrence of such
indebtedness is in the best interests of each Guarantor. The Company and
each Guarantor have induced the Purchasers to purchase the Notes based on
the consolidated financial condition of each Guarantor and the Company.
(d) All acts and proceedings required by law and by the certificate of
incorporation and bylaws of each Guarantor necessary to constitute this
Guaranty a valid and binding agreement for the uses and purposes set forth
herein in accordance with its terms have been done and taken, and the
execution and delivery hereof has been in all respects duly authorized.
2. GUARANTY AND OTHER RIGHTS AND UNDERTAKINGS
2.1. Guarantied Obligations.
Each Guarantor, in consideration of the execution and delivery of the Note
Purchase Agreement, the purchase of the Notes by the Purchasers and other
consideration, hereby irrevocably, unconditionally, absolutely, jointly and
severally guarantees, on a continuing basis, to each holder of Notes (each such
holder being referred to herein as a "Noteholder" and, collectively, as the
"Noteholders"), whether such Note has been issued, is being issued on the date
hereof or is hereafter issued in compliance with the provisions of the Note
Purchase Agreement, as and for each Guarantor's own debt, until final and
indefeasible payment has been made in cash
(a) the due and punctual payment of the principal of and accrued and
unpaid interest (including, without limitation, interest which otherwise
may cease to accrue by operation of any insolvency law, rule, regulation or
interpretation thereof) and Make-Whole Amount, if any, and any other fees
and expenses, on the Notes at any time outstanding and the due and punctual
payment of all other amounts payable, and all other indebtedness owing, by
the Company to the Noteholders under the Note Purchase Agreement and the
Notes, in each case when and as the same shall become due and payable,
whether at maturity, pursuant to optional prepayment, by acceleration or
otherwise, all in accordance with the terms and provisions hereof and
thereof, including, without limitation, overdue interest, indemnification
payments and all reasonable costs and expenses incurred by the Noteholders
in connection with enforcing any obligations of the Company under the Note
Purchase Agreement and the Notes; it being the intent of each Guarantor
that the guaranty set forth herein shall be a continuing guaranty of
payment and not a guaranty of collection; and
(b) the prompt and complete payment, on demand, of any and all
reasonable costs and expenses incurred by the Noteholders in connection
with enforcing the obligations of such Guarantor hereunder, including,
without limitation, the reasonable fees and disbursements of the
Noteholders' special counsel.
All of the obligations set forth in clauses (a) and (b) of this Section 2.1 are
referred to herein as the "Guarantied Obligations" and the guaranty thereof
contained herein is referred to herein as the "Unconditional Guaranty." The
Unconditional Guaranty is a primary, original and immediate obligation of each
Guarantor and is an absolute, unconditional, continuing and irrevocable guaranty
of payment and performance and shall remain in full force and effect until the
full, final and indefeasible payment in cash of the Guarantied Obligations.
2.2. Performance Under the Note Purchase Agreement.
In the event the Company fails to pay, perform. keep, observe, or fulfill
any Guarantied Obligation specified in clause (a) of Section 2.1 in the manner
provided in the Notes or in the Note Purchase Agreement, each Guarantor shall
cause forthwith to be paid the moneys in respect of which such failure has
occurred in accordance with the terms and provisions of the Note
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Purchase Agreement and the Notes. In furtherance of the foregoing, if an Event
of Default shall exist, the Guarantied Obligations shall, in the manner and
subject to the limitations provided in the Note Purchase Agreement for the
acceleration of the Notes, forthwith become due and payable without notice,
regardless of whether the acceleration of the Notes shall be stayed, enjoined,
delayed or otherwise prevented.
2.3. Releases.
Each Guarantor consents and agrees that, without notice to or by any
Guarantor and without impairing, releasing, abating, deferring, suspending,
reducing, terminating or otherwise affecting the obligations of each Guarantor
hereunder, each Noteholder, in the manner provided herein, by action or
inaction, may:
(a) compromise or settle, renew or extend the period of duration or
the time for the payment, or discharge the performance of, or may refuse
to, or otherwise not, enforce, or may, by action or inaction, release all
or any one or more parties to, any one or more of the Notes, the Note
Purchase Agreement, any other guaranty thereof or agreement or instrument
related thereto or hereto;
(b) assign, sell or transfer, or otherwise dispose of, any one or more
of the Notes;
(c) grant waivers, extensions, consents and other indulgences to the
Company or any other Guarantor or guarantors in respect of any one or more
of the Notes, the Note Purchase Agreement, any other guaranty thereof or
any agreement or instrument related thereto or hereto;
(d) amend, modify or supplement in any manner and at any time (or from
time to time) any one or more of the Notes, the Note Purchase Agreement,
any other guaranty thereof or any agreement or instrument related hereto;
(e) release or substitute any one or more of the endorsers or
guarantors of the Guarantied Obligations whether parties hereto or not; and
(f) sell, exchange, release, surrender or enforce, by action or
inaction, any property at any time pledged or granted as security in
respect of the Guarantied Obligations, whether so pledged or granted by the
Company, each Guarantor or another guarantor of the Company's obligations
under the Note Purchase Agreement, the Notes, any other guaranty thereof or
any agreement or instrument related hereto.
2.4. Waivers.
To the fullest extent permitted by law, each Guarantor does hereby waive:
(a) any notice of:
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(i) acceptance of the Unconditional Guaranty;
(ii) any purchase of the Notes under the Note Purchase Agreement,
or the creation, existence or acquisition of any of the Guarantied
Obligations, or the amount of the Guarantied Obligations, subject to
each Guarantor' rights to make inquiry of each Noteholder to ascertain
the amount of the Guarantied Obligations owing to such Noteholder at
any reasonable time;
(iii) any adverse change in the financial condition of the
Company or any other fact that might increase, expand or affect each
Guarantor's risk hereunder;
(iv) presentment for payment, demand, protest, and notice thereof
as to the Notes or any other instrument;
(v) any Default or Event of Default; and
(vi) any notice or demand of any kind or nature whatsoever to
which each Guarantor might otherwise be entitled (except if such
notice or demand is specifically otherwise required to be given to
such Guarantor pursuant to the terms of this Guaranty);
(b) any right, by statute or otherwise, to require any Noteholder to
institute suit against the Company or any other guarantor or to exhaust the
rights and remedies of any Noteholder against the Company or any other
guarantor, each Guarantor being bound to the payment of each and all
Guarantied Obligations, whether now existing or hereafter accruing, as
fully as if such Guarantied Obligations were directly owing to the
Noteholders by each Guarantor;
(c) the benefit of any stay (except in connection with a pending
appeal), valuation, appraisal, redemption or extension law now or at any
time hereafter in force which, but for this waiver, might be applicable to
any sale of property of any Guarantor made under any judgment, order or
decree based on this Guaranty, and each Guarantor covenants that it will
not at any time insist upon or plead, or in any manner claim or take the
benefit or advantage of, such law; and
(d) any defense or objection to the absolute, primary, continuing
nature, or the validity, enforceability or amount of the Unconditional
Guaranty, including, without limitation, any defense based on (and the
primary, continuing nature, and the validity, enforceability and amount of
the Unconditional Guaranty shall be unaffected by), any of the following:
(i) any change in future conditions;
(ii) any change of law;
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(iii) any invalidity or irregularity with respect to the issuance
or assumption of any obligations (including, without limitation, the
Note Purchase Agreement, the Notes or any agreement or instrument
related hereto) by the Company or any other Person;
(iv) the execution and delivery of any agreement at any time
hereafter (including, without limitation, the Note Purchase Agreement,
the Notes or any agreement or instrument related hereto) of the
Company or any other Person;
(v) the genuineness, validity, regularity or enforceability of
any of the Guarantied Obligations;
(vi) any default, failure or delay, willful or otherwise, in the
performance of any obligations by the Company or any Guarantor;
(vii) any creditors' rights, bankruptcy, receivership or other
insolvency proceeding of the Company or any Guarantor, or
sequestration or seizure of any property of the Company or any
Guarantor, or any merger, consolidation, reorganization, dissolution,
liquidation or winding up or change in corporate constitution or
corporate identity or loss of corporate identity of the Company or any
Guarantor;
(viii) any disability or other defense of the Company or any
Guarantor to payment and performance of all Guarantied Obligations
other than the defense that the Guarantied Obligations shall have been
fully and finally performed and indefeasibly paid in cash;
(ix) the cessation from any cause whatsoever of the liability of
the Company or any Guarantor in respect of the Guarantied Obligations
(other than as provided herein), and any other defense that any
Guarantor may otherwise have against the Company or any Noteholder;
(x) impossibility or illegality of performance on the part of the
Company or any Guarantor under the Note Purchase Agreement, the Notes
or this Guaranty;
(xi) any change of the circumstances of the Company, any
Guarantor or any other Person, whether or not foreseen or foreseeable,
whether or not imputable to the Company or any Guarantor, including,
without limitation, impossibility of performance through fire,
explosion, accident, labor disturbance, floods, droughts, embargoes,
wars (whether or not declared), civil commotions, acts of God or the
public enemy, delays or failure of suppliers or carriers, inability to
obtain materials, economic or political conditions, or any other
causes affecting performance, or any other force majeure, whether or
not beyond the control of the Company or any Guarantor and whether or
not of the kind hereinbefore specified;
5
(xii) any attachment, claim, demand, charge, Lien, order,
process, encumbrance or any other happening or event or reason,
similar or dissimilar to the foregoing, or any withholding or
diminution at the source, by reason of any taxes, assessments,
expenses, indebtedness, obligations or liabilities of any character,
foreseen or unforeseen, and whether or not valid, incurred by or
against any Person, or any claims, demands, charges, Liens or
encumbrances of any nature, foreseen or unforeseen, incurred by any
Person, or against any sums payable under the Note Purchase Agreement
or the Notes or any agreement or instrument related hereto so that
such sums would be rendered inadequate or would be unavailable to make
the payment as herein provided;
(xiii) any change in the ownership of the equity securities of
the Company, any Guarantor or any other Person liable in respect of
the Notes; or
(xiv) any other action, happening, event or reason whatsoever
that shall delay, interfere with, hinder or prevent, or in any way
adversely affect, the performance by the Company or any Guarantor of
any of their obligations under the Note Purchase Agreement, the Notes
or this Guaranty.
2.5. Certain Waivers of Subrogation, Reimbursement and Indemnity.
Each Guarantor hereby acknowledges and agrees that:
(a) no Guarantor shall have any right of subrogation, contribution,
reimbursement, or indemnity whatsoever in respect of the Guarantied
Obligations, and no right of recourse to or with respect to any assets or
property of the Company;
(b) no Guarantor will file any claims against the Company or the
estate of the Company in the course of any proceeding under any applicable
bankruptcy or insolvency law in respect of the rights referred to in this
Section 2.5; and
(c) each holder of Notes may specifically enforce the provisions of
this Section.
2.6. Indemnity.
As a separate, additional and continuing obligation, each Guarantor
unconditionally and irrevocably undertakes and agrees with the Noteholders that,
should the Guarantied Obligations not be recoverable from any Guarantor for any
reason whatsoever (including, without limitation, by reason of any provision of
the Note Purchase Agreement, the Notes or any other agreement or instrument
executed in connection therewith being or becoming void, unenforceable or
otherwise invalid under any applicable law) then, notwithstanding any knowledge
thereof by any Noteholder at any time, each Guarantor as sole, original and
independent obligor, upon demand by the Noteholders, will make payment of the
Guarantied Obligations to the Noteholders by way of a full indemnity in such
currency and otherwise in such manner as is provided in the Note Purchase
Agreement and the Notes.
6
2.7. Invalid Payments.
Each Guarantor further agrees that, to the extent the Company makes a
payment or payments to any Noteholder, which payment or payments or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside or required, for any of the foregoing reasons or for any other reason,
to be repaid or paid over to a custodian, trustee, receiver or any other party
or officer under any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution or liquidation law of any jurisdiction, state
or federal law, or any common law or equitable cause, then to the extent of such
payment or repayment, the obligation or part thereof intended to be satisfied
shall be revived and continued in full force and effect as if said payment had
not been made and each Guarantor shall be primarily liable for such obligation.
2.8. Marshaling.
Each Guarantor consents and agrees that each Noteholder, and each Person
acting for the benefit of each Noteholder, shall be under no obligation to
marshal any assets in favor of any Guarantor or against or in payment of any or
all of the Guarantied Obligations.
2.9. Subordination, Subrogation, Etc.
Each Guarantor agrees that any present or future indebtedness,
obligations or liabilities of the Company to any Guarantor shall be fully
subordinate and junior in right and priority of payment to any present or future
indebtedness, obligations or liabilities of the Company to the Noteholders. Each
Guarantor waives any right of subrogation to the rights of the Noteholders
against the Company or any other Person obligated for payment of the Guarantied
Obligations and any right of reimbursement, contribution or indemnity whatsoever
(including, without limitation, any such right as against any other guarantor)
arising or accruing out of any payment that any Guarantor may make pursuant to
this Guaranty, and any right of recourse to security for the debts and
obligations of the Company, unless and until the entire amount of the Guarantied
Obligations shall have been paid in full.
2.10. Subordination of Affiliate Obligations.
In the event that, for any reason whatsoever, the Company or a Person
obligated in respect of the Guarantied Obligations pursuant to another guaranty,
is now or hereafter becomes indebted to any Guarantor in any manner (an
"Affiliate Obligation"), such Guarantor agrees that the amount of such Affiliate
Obligation, interest thereon, and all other amounts due with respect thereto,
shall, at all times during the existence of a Default or an Event of Default, be
subordinate as to time of payment and in all other respects to all the
Guarantied Obligations, and that such Guarantor shall not be entitled to enforce
or receive payment thereof until all sums then due and owing to the Noteholders
in respect of the Guarantied Obligations shall have been paid in full, except
that such Guarantor may enforce any obligations in respect of any such Affiliate
Obligation owing to such Guarantor from the Company or such indebted Person so
long as all proceeds in respect of any recovery from such enforcement, to the
extent of all amounts owing
7
with respect to this Guaranty, shall be held by such Guarantor in trust for the
benefit of the Noteholders. If any other payment, other than pursuant to the
immediately preceding sentence, shall have been made to any Guarantor by the
Company or such indebted Person on any such Affiliate Obligation during any time
that a Default or an Event of Default exists and there are Guarantied
Obligations outstanding, such Guarantor shall hold in trust all such payments,
to the extent of all amounts owing with respect to this Guaranty, for the
benefit of the Noteholders.
2.11. Set-off, Counterclaim or Other Deductions.
Except as otherwise required by law, each payment by any Guarantor shall be
made without set-off, counterclaim or other deduction.
2.12. Election by Guarantors to Perform Obligations.
Any election by any Guarantor to pay or otherwise perform any of the
obligations of the Company under the Notes, the Note Purchase Agreement or any
agreement or instrument related hereto shall not release the Company, such
Guarantor or any other guarantor from such obligations or any of such Person's
other obligations under the Notes, the Note Purchase Agreement or any agreement
or instrument related hereto.
2.13. No Election of Remedies by Noteholders.
Each Noteholder shall, individually or collectively, have the right to seek
recourse against any Guarantor to the fullest extent provided for herein for
such Guarantor's obligations under this Guaranty in respect of the Guarantied
Obligations. No election to proceed in one form of action or proceeding, or
against any party, or on any obligation, shall constitute a waiver of such
Noteholder's right to proceed in any other form of action or proceeding or
against other parties unless such Noteholder has expressly waived such right in
writing. Specifically, but without limiting the generality of the foregoing, no
action or proceeding by any Noteholder against the Company or any Guarantor
under any document or instrument evidencing obligations of the Company or any
Guarantor to such Noteholder shall serve to diminish the liability of any
Guarantor under this Guaranty, except to the extent that such Noteholder finally
and unconditionally shall have realized payment by such action or proceeding.
2.14. Separate Action; Other Enforcement Rights.
Each of the rights and remedies granted under this Guaranty to each
Noteholder in respect of the Notes held by such Noteholder may be exercised by
such Noteholder with notice by such Noteholder to, but without the consent of or
any other action by, any other Noteholder; provided, however, that the maturity
of the Notes may only be accelerated in accordance with the provisions of the
Note Purchase Agreement or operation of law. Each Noteholder may proceed to
protect and enforce the Unconditional Guaranty by suit or suits or proceedings
in equity, at law or in bankruptcy, and whether for the specific performance of
any covenant or agreement contained herein or in execution or aid of any power
herein granted or for the recovery of judgment for the obligations hereby
guarantied or for the enforcement of any other proper, legal or equitable remedy
available under applicable law.
8
2.15. Noteholder Set-off.
Each Noteholder shall have, to the fullest extent permitted by law and this
Guaranty, a right of set-off against any and all credits and any and all other
property of either or both of the Guarantors or any other Person, now or at any
time whatsoever, with or in the possession of, such Noteholder, or anyone acting
for such Noteholder, to ensure the full performance of any and all obligations
of each Guarantor hereunder.
2.16. Delay or Omission; No Waiver.
No course of dealing on the part of any Noteholder and no delay or failure
on the part of any such Person to exercise any right hereunder shall impair such
right or operate as a waiver of such right or otherwise prejudice such Person's
rights, powers and remedies hereunder. Every right and remedy given by the
Unconditional Guaranty or by law to any Noteholder may be exercised from time to
time as often as may be deemed expedient by such Person.
2.17. Restoration of Rights and Remedies.
If any Noteholder shall have instituted any proceeding to enforce any right
or remedy under the Unconditional Guaranty or under any Note held by such
Noteholder, and such proceeding shall have been dismissed, discontinued or
abandoned for any reason, or shall have been determined adversely to such
Noteholder, then and in every such case each such Noteholder, the Company and
each Guarantor shall, except as may be limited or affected by any determination
(including, without limitation, any determination in connection with any such
dismissal) in such proceeding, be restored severally and respectively to its
respective former positions hereunder and thereunder, and thereafter, subject as
aforesaid, the rights and remedies of such Noteholders shall continue as though
no such proceeding had been instituted.
2.18. Cumulative Remedies.
No remedy under this Guaranty, the Note Purchase Agreement or the Notes is
intended to be exclusive of any other remedy, but each and every remedy shall be
cumulative and in addition to any and every other remedy given pursuant to this
Guaranty, the Note Purchase Agreement or the Notes.
2.19. Notices in Respect of Payments.
If any Guarantor shall pay to any Noteholder any amount in respect of the
Guarantied Obligations, such Guarantor, within five (5) Business Days after
making such payment, shall provide notice of such payment to each other
Noteholder.
9
2.20. Limitation on Guarantied Obligation.
Notwithstanding anything in Section 2.1 or elsewhere in this Guaranty, the
Note Purchase Agreement or the Notes to the contrary, the obligations of each
Guarantor hereunder shall at each point in time be limited to an aggregate
amount equal to the greatest amount that would not result in such obligations
being subject to avoidance, or otherwise result in such obligations being
unenforceable, at such time under applicable law (including, without limitation,
to the extent, and only to the extent, applicable to each Guarantor, Section 548
of the Bankruptcy Code of the United States of America and any comparable
provisions of the law of any other jurisdiction, any capital preservation law of
any jurisdiction and any other law of any jurisdiction that at such time limits
the enforceability of the obligations of such Guarantor hereunder).
2.21. Confirmation of Guaranty.
Promptly following the request of any holder of Notes in connection with
any issuance of additional Notes pursuant to the terms of the Note Purchase
Agreement, each Guarantor agrees to confirm in writing that the Unconditional
Guaranty hereunder extends to the obligations of the Company evidenced by such
newly issued Notes, and that such Notes are Guarantied Obligations hereunder.
3. INTERPRETATION OF THIS GUARANTY
3.1. Terms Defined.
For purposes of this Guaranty, the following terms have the meanings
specified below or provided for in the Section of this Guaranty referred to
immediately following such term (such definitions to be equally applicable to
both the singular and plural forms of the terms defined). Capitalized terms used
herein and not otherwise defined herein have the meaning specified in the Note
Purchase Agreement.
Affiliate Obligation -- Section 2.10.
Company -- Section 1(a).
Guarantied Obligations -- Section 2.1.
Guarantors -- has the meaning assigned to such term in the introductory
paragraph hereof.
Note Purchase Agreement -- Section 1(a).
Noteholder -- Section 2.1.
Notes -- Section 1(a).
10
Person -- means an individual, partnership, corporation, limited liability
company, association, trust, unincorporated organization, or a government or
agency or political subdivision thereof.
Purchasers -- Section 1(a).
Series C Notes --Section 1(a).
Series D Notes -- Section 1(a).
Unconditional Guaranty -- Section 2.1.
3.2. Section Headings and Construction.
(a) Section Headings, etc. The titles of the Sections appear as a
matter of convenience only, do not constitute a part hereof and shall not
affect the construction hereof. The words "herein," "hereof," "hereunder"
and "hereto" refer to this Guaranty as a whole and not to any particular
Section or other subdivision.
(b) Construction. Each covenant contained herein shall be construed
(absent an express contrary provision herein) as being independent of each
other covenant contained herein, and compliance with any one covenant shall
not (absent such an express contrary provision) be deemed to excuse
compliance with one or more other covenants.
4. WARRANTIES AND REPRESENTATIONS
Guarantors warrant and represent, as of the date hereof, that each of the
warranties and representations made by the Company in Section 5 of the Note
Purchase Agreement with respect to each Guarantor are true with respect to each
Guarantor on the date hereof.
5. GENERAL COVENANTS
Each Guarantor covenants and agrees that on and after the date hereof and
so long as any of the Guarantied Obligations shall be outstanding:
5.1. Undertakings in the Note Purchase Agreement.
Each Guarantor will comply with each of the undertakings of the Company in
the Note Purchase Agreement in respect of which the Company undertakes to cause
such Guarantor to comply with such undertakings, as if such undertakings (as
they apply to the Guarantors) were set forth at length herein as the
undertakings of such Guarantor.
11
5.2. Payment of Notes and Maintenance of Offices.
Each Guarantor will punctually pay, or cause to be paid, all of the
Guarantied Obligations when due and all other payment obligations required of it
hereunder and will maintain an office at its address as set forth pursuant to
Section 6.3 where notices, presentations and demands in respect of this Guaranty
may be made upon it. Such office will be maintained at such address until such
time as such Guarantor shall notify the Noteholders of any change of location of
such office.
5.3. Further Assurances.
Each Guarantor will cooperate with the Noteholders and execute such further
instruments and documents as the Noteholders shall reasonably request to carry
out, to the reasonable satisfaction of the Noteholders, the transactions
contemplated by the Note Purchase Agreement, the Notes and this Guaranty.
6. MISCELLANEOUS
6.1. Successors and Assigns.
(a) Whenever any Guarantor or any of the parties to the Note Purchase
Agreement is referred to, such reference shall be deemed to include the
successors and assigns of such party, and all the covenants, promises and
agreements contained in this Guaranty by or on behalf of such Guarantor
shall bind the successors and assigns of such Guarantor and shall inure to
the benefit of each of the Noteholders from time to time whether so
expressed or not and whether or not an assignment of the rights hereunder
shall have been delivered in connection with any assignment or other
transfer of Notes.
(b) Each Guarantor agrees to take such action as may be reasonably
requested by any Noteholder in connection with the purchase by such
Noteholder or the transfer of the Notes of such Noteholder in accordance
with the requirements of the Note Purchase Agreement in connection with
providing an executed copy of this Guaranty to the new Noteholder or
Noteholders of such Notes; provided, however, that no additional
obligations of such Guarantor shall thereby be created (beyond what is
provided by this Guaranty).
6.2. Partial Invalidity.
The unenforceability or invalidity of any provision or provisions hereof
shall not render any other provision or provisions contained herein
unenforceable or invalid.
6.3. Communications.
All communications hereunder shall be in writing, shall be delivered in the
manner required by the Note Purchase Agreement, and shall be addressed, if to
any Guarantor, at the applicable address set forth on Annex 1 hereto, and if to
any of the Noteholders:
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(a) if such Noteholder is a Purchaser, at the address for such
Noteholder set forth on Schedule A to the Note Purchase Agreement, and
further including any parties referred to on such Schedule A which are
required to receive notices in addition to such Noteholder, and
(b) if such Noteholder is not a Purchaser, at the address for such
Noteholder set forth in the register for the registration and transfer of
Notes maintained pursuant to Section 13.1 of the Note Purchase Agreement,
or to any such party at such other address as such party may designate by notice
duly given in accordance with this Section 6.3. Notices shall be deemed given
only when actually received.
6.4. Governing Law.
THIS GUARANTY SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
6.5. Effective Date.
This Guaranty shall be effective as of the date first written above.
6.6. Benefits of Guaranty Restricted to Noteholders.
Nothing express or implied in this Guaranty is intended or shall be
construed to give to any Person other than each Guarantor and the Noteholders
any legal or equitable right, remedy or claim under or in respect hereof or any
covenant, condition or provision therein or herein contained; and all such
covenants, conditions and provisions are and shall be held to be for the sole
and exclusive benefit of each Guarantor and the Noteholders.
6.7. Survival of Representations and Warranties.
All representations and warranties contained herein or made in writing by
each Guarantor in connection herewith shall survive the execution and delivery
hereof.
6.8. Expenses.
(a) Each Guarantor shall pay when billed the reasonable costs and
expenses (including reasonable attorneys' fees) incurred by the Noteholders
in connection with the consideration, negotiation, preparation or execution
of any amendments, waivers, consents, standstill agreements and other
similar agreements with respect hereto (whether or not any such amendments,
waivers, consents, standstill agreements or other similar agreements are
executed).
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(b) At any time when any of the Company or the Guarantors and the
Noteholders are conducting restructuring or workout negotiations in respect
hereof, or a Default or Event of Default exists, each Guarantor shall pay
when billed the reasonable costs and expenses (including reasonable
attorneys' fees of one firm of attorneys and the reasonable fees of one
firm of professional advisors) incurred by the Noteholders in connection
with the assessment, analysis or enforcement of any rights or remedies that
are or may be available to the Noteholders.
(c) If each Guarantor shall fail to pay when due any principal of, or
interest on, or any other amount due in respect of any Note, each Guarantor
shall pay to each Noteholder, to the extent permitted by law, such amounts
as shall be sufficient to cover the costs and expenses, including but not
limited to reasonable attorneys' fees, incurred by such Noteholder in
collecting any sums due on the Notes.
6.9. Amendment.
This Guaranty may be amended only in a writing executed by each Guarantor
and each Noteholder.
6.10. Survival.
So long as the Guarantied Obligations and all payment obligations of each
Guarantor hereunder shall not have been fully and finally performed and
indefeasibly paid, the obligations of each Guarantor hereunder shall survive the
transfer and payment of any Note and the payment in full of all the Notes.
6.11. Entire Agreement.
This Guaranty constitutes the final written expression of all of the terms
hereof and is a complete and exclusive statement of those terms.
6.12. Duplicate Originals.
Two or more duplicate counterpart originals hereof may be signed by the
parties, each of which shall be an original but all of which together shall
constitute one and the same instrument.
6.13. Waiver of Jury Trial; Consent to Jurisdiction; Etc.
(a) Waiver of Jury Trial. THE PARTIES HERETO VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
GUARANTY OR ANY OF THE DOCUMENTS, AGREEMENTS OR TRANSACTIONS CONTEMPLATED
HEREBY.
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(b) Consent to Jurisdiction. ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS GUARANTY, OR ANY OF THE DOCUMENTS, AGREEMENTS OR
TRANSACTIONS CONTEMPLATED HEREBY OR ANY ACTION OR PROCEEDING TO EXECUTE OR
OTHERWISE ENFORCE ANY JUDGMENT IN RESPECT OF ANY BREACH UNDER THIS GUARANTY
OR ANY DOCUMENT OR AGREEMENT CONTEMPLATED HEREBY MAY BE BROUGHT BY SUCH
PARTY IN ANY FEDERAL DISTRICT COURT LOCATED IN NEW YORK CITY, NEW YORK, OR
ANY NEW YORK STATE COURT LOCATED IN NEW YORK CITY, NEW YORK AS SUCH PARTY
MAY IN ITS SOLE DISCRETION ELECT, AND BY THE EXECUTION AND DELIVERY OF THIS
GUARANTY, THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMIT TO THE
NON-EXCLUSIVE IN PERSONAM JURISDICTION OF EACH SUCH COURT, AND EACH OF THE
PARTIES HERETO IRREVOCABLY WAIVES AND AGREES NOT TO ASSERT IN ANY
PROCEEDING BEFORE ANY TRIBUNAL, BY WAY OF MOTION, AS A DEFENSE OR
OTHERWISE, ANY CLAIM THAT IT IS NOT SUBJECT TO THE IN PERSONAM JURISDICTION
OF ANY SUCH COURT IN ADDITION, EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION THAT IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE IN ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY DOCUMENT,
AGREEMENT OR TRANSACTION CONTEMPLATED HEREBY BROUGHT IN ANY SUCH COURT, AND
HEREBY IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
(c) Service of Process. EACH PARTY HERETO IRREVOCABLY AGREES THAT
PROCESS PERSONALLY SERVED OR SERVED BY U.S. REGISTERED MAIL AT THE
ADDRESSES PROVIDED HEREIN FOR NOTICES SHALL CONSTITUTE, TO THE EXTENT
PERMITTED BY LAW, ADEQUATE SERVICE OF PROCESS IN ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY DOCUMENT,
AGREEMENT OR TRANSACTION CONTEMPLATED HEREBY, OR ANY ACTION OR PROCEEDING
TO EXECUTE OR OTHERWISE ENFORCE ANY JUDGMENT IN RESPECT OF ANY BREACH
HEREUNDER OR UNDER ANY DOCUMENT OR AGREEMENT CONTEMPLATED HEREBY. RECEIPT
OF PROCESS SO SERVED SHALL BE CONCLUSIVELY PRESUMED AS EVIDENCED BY A
DELIVERY RECEIPT FURNISHED BY THE UNITED STATES POSTAL SERVICE OR ANY
COMMERCIAL DELIVERY SERVICE.
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(d) Other Forums. NOTHING HEREIN SHALL IN ANY WAY BE DEEMED TO LIMIT
THE ABILITY OF ANY HOLDER OF NOTES TO SERVE ANY WRITS, PROCESS OR SUMMONSES
IN ANY MANNER PERMITTED BY APPLICABLE LAW OR TO OBTAIN JURISDICTION OVER
ANY GUARANTOR IN SUCH OTHER JURISDICTION, AND IN SUCH OTHER MANNER, AS MAY
BE PERMITTED BY APPLICABLE LAW.
[Remainder of page intentionally left blank. Next page is signature page.]
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IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be executed
on each Guarantor's behalf by a duly authorized officer of each such Guarantor.
TIFFANY AND COMPANY
By: ___________________________
Name: Michael Connolly
Title:Vice President and Treasurer
TIFFANY & CO. INTERNATIONAL
By: ___________________________
Name: Michael Connolly
Title:Vice President and Treasurer
TIFFANY & CO. JAPAN INC.
By: ___________________________
Name: Michael Connolly
Title:Vice President and Treasurer
[Signature Page to Guaranty Agreement]
ANNEX 1
ADDRESSES OF GUARANTORS
Tiffany and Company
c/o Tiffany & Co.
727 Fifth Avenue
New York, New York 10022
Attn: Chief Financial Officer
Fax: (212) 230-5336
Tiffany & Co. International
c/o Tiffany & Co.
727 Fifth Avenue
New York, New York 10022
Attn: Chief Financial Officer
Fax: (212) 230-5336
Tiffany & Co. Japan Inc.
c/o Tiffany & Co.
727 Fifth Avenue
New York, New York 10022
Attn: Chief Financial Officer
Fax: (212) 230-5336
Annex 1-1